text:
    Norman Louis SCHEEL, and Ronald Gene Wettlaufer, Appellants, v. The STATE of Florida, Appellee.
    Nos. 76-919 and 76-963.
    District Court of Appeal of Florida, Third District.
    Oct. 18, 1977.
    Weiner, Robbins, Sheres & Tunkey and Frederick S. Robbins, Miami, for appellants.
    Robert L. Shevin, Atty. Gen., and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

The appellants, Norman Louis Scheel and Ronald Gene Wettlaufer, have filed separate appeals from adjudications of guilt and the sentences pursuant thereto. The appellants were tried together with one George Ralston in one jury trial. Scheel was found guilty of involuntary sexual battery and Wettlaufer was found guilty of attempted involuntary sexual battery. Ralston was found guilty of involuntary sexual battery. The Ralston appeal was heard first and the opinion of this court affirming the judgment and sentence was filed September 20, 1977. See Ralston v. State, 350 So.2d 791 (Fla.3d DCA 1977), filed September 20, 1977.

Scheel and Wettlaufer have presented five points as follows: (1) The trial court erred in answering a question posed to it by the jury. (2) The trial court erred in denying defendants’ motion for judgment of acquittal. (3) The trial court erred in declaring Richard Daniels a court witness. (4) The trial court erred in denying appellants’ motion for a severance. (5) The trial court erred in allowing the jury to question the defendants after the conclusion of their examination by defense counsel and the state’s attorney.

Points one and two presented by this appeal have been considered by this court upon the appeal of co-defendant, Ralston. As to point one, we held in the Ralston opinion, above cited:

“As to the first point, the trial court correctly declined to respond to the question by the jury in regard to implied consent. Consent by the prosecutrix is a complete defense to the crime charged. The consent may be actual or implied. Whether or not the facts, as determined by the jury, support such a defense is for determination by the jury, and the trial court was not required to give a specific instruction on ‘implied consent’. Danford v. State, 53 Fla. 4, 43 So. 593 (1907); Lindberg v. State, 134 Fla. 786, 184 So. 662 (1938); Wester v. State, 141 Fla. 374, 193 So. 303 (1940); State v. Bryan, 287 So.2d 73 (Fla.1973).”

We need not further discuss the first point.

The second point, which raises the sufficiency of the evidence to support the verdict, has been considered and found not to present error for the reasons stated in Ralston v. State, supra.

The third point presented urges that prejudicial error was committed by the trial judge when, in response to the State’s motion, the court declared a witness subpoenaed by the State as the court’s own witness and after initial questioning by the court, allowed the State and the defendants to cross-examine the witness. The appellants have failed to show an abuse of the discretion. See Buchanan v. State, 95 Fla. 301, 116 So. 275 (1928). The record shows that the witness had, by his conduct prior to trial, given the State ample grounds to believe, although a material witness to the acts of the defendants, the witness would fail to testify fully to facts within his knowledge. Cf. Chapman v. State, 302 So.2d 136 (Fla.2d DCA 1974).

Appellants’ contention that the trial judge erred in denying their oral motion immediately prior to trial for a severance of their trial because of possible prejudice because of their joinder with defendant George Ralston does not present reversible error. All of the defendants participated in the same series of events. The fact that Ralston’s acts were more reprehensible does not alone make the denial of a severance error. The subsequent record of the trial does not substantiate appellants’ allegations of prejudice. The testimony as to Ralston’s participation was essential to a presentation of the case against these defendants. See Manson v. State, 88 So.2d 272 (Fla.1956); Tifford v. State, 334 So.2d 91 (Fla.3d DCA 1976); Abbott v. State, 334 So.2d 642 (Fla.3d DCA 1976).

No Florida authority for reversal is presented upon appellants’ fifth point. We conclude that the matter is within the discretion of the trial judge and will not be grounds for reversal in the absence of a showing that the procedure employed denied the defendants of a fair trial. Cf. Strawn v. State ex rel. Anderberg, 332 So.2d 601 (Fla.1976).

Affirmed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    M. P., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1236.
    District Court of Appeal of Florida, Third District.
    Oct. 18, 1977.
    Bennett H. Brummer, Public Defender, and Warren S. Schwartz, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Anthony C. Musto, Asst. Atty. Gen., and Robert K. Burlington, Legal Intern, for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

The point presented on this appeal from an adjudication of delinquency is that the trial court erred in refusing to allow the respondent (a juvenile) to make a proffer for the record of testimony, where the court sustained the State’s objection thereto. On this appeal, the State admits that such a refusal is ordinarily error. See Francis v. State, 308 So.2d 174 (Fla. 1st DCA 1975), and Piccirrillo v. State, 329 So.2d 46 (Fla. 1st DCA 1976). The State urges, nevertheless, that reversible error does not appear because enough appears from the record to show that the testimony was inadmissible.

Our examination of the record convinces us that the State’s position is not supported by the record. The testimony concerned a critical point, placing a witness’s credibility in issue, and was critical to the defense. See State v. Johnson, 284 So.2d 198 (Fla.1973).

We, therefore, reverse the adjudication of delinquency and remand the cause for a new trial.

Reversed and remanded.


text:
    Vivian SKINNER, etc., Appellant, v. VOLKSWAGEN OF AMERICA, INC., a Florida Corporation, et al., Appellees.
    Nos. 76-1306 and 76-1307.
    District Court of Appeal of Florida, Third District.
    Oct. 18, 1977.

      Horton, Perse & Ginsberg, Fred 0. Past-ernack, Miami, for appellant.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and Mark Hicks, Miami, for appel-lees.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

These consolidated appeals are from an order granting summary final judgment for a defendant, Volkswagen of America, Inc., and the summary judgment entered pursuant to the first order. The judgment appealed is for the company which imported and then distributed a foreign built automobile to dealers in the United States. The negligence alleged was a failure to warn of a claimed design defect. It affirmatively appears from this record that there is no factual allegation or facts presented to support the knowledge of this defendant of the alleged design defect. Therefore, the judgment appealed must be affirmed upon authority of the holdings in Carter v. Hector Supply Co., 128 So.2d 390 (Fla.1961), and Williams v. Joseph L. Rozier Machinery Co., 135 So.2d 763 (Fla.2d DCA 1961).

Affirmed.


author: HUBBART, Judge.

text:
    Alfie MART, Appellant, v. STATE of Florida, Appellee
    No. 76-2137.
    District Court of Appeal of Florida, Third District.
    Oct. 18, 1977.

      Grusmark, Jaffe, Karten and Milton E. Grusmark, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Linda Collins Hertz, Asst. Atty. Gen., for appellee.
    Before BARKDULL, NATHAN and HUBBART, JJ.
   HUBBART, Judge.

This is a criminal prosecution for maintaining a gambling house. The defendant was convicted as charged and appeals.

The issue presented for review is whether an apartment controlled by the defendant and frequented by no one other than the defendant is a gambling house proscribed by Section 849.01, Florida Statutes (1975), when the defendant habitually takes bets by telephone at the apartment from outsiders on various sporting events. We hold that such an apartment cannot be a gambling house as condemned by Section 849.01, Florida Statutes (1975), and reverse.

The defendant Alfie Mart was charged by information with one count of maintaining a gambling house in violation of Section 849.01, Florida Statutes (1975), and three counts of bookmaking in violation of Section 849.25, Florida Statutes (1975), before the Circuit Court for the Eleventh Judicial Circuit of Florida. At trial, the state presented evidence tending to establish that the defendant controlled and frequented an apartment in Dade County, Florida, in which he took bets at the apartment on the telephone from outside callers on various sporting events. These sporting events took place outside the apartment and included football and basketball games. No one other than the defendant ever frequented this apartment for gambling purposes.

At the close of all the evidence, the defendant moved for a judgment of acquittal which was denied. The jury convicted the defendant of maintaining a gambling house and acquitted him of the bookmaking charges. The trial court sentenced the defendant to one year in the county jail.

The defendant was charged with and convicted of violating Section 849.01, Florida Statutes (1975), which provides in relevant part as follows:

“Whoever . . . maintains a gaming table or room, or gaming implements or apparatus, or house ... for the purpose of gaming or gambling . shall be guilty of a felony of the third degree . .”

The law is well-settled that “[t]o convict one of operating a gambling house, the ownership or control of the house must be proven, and then it must be proven that by the owner’s knowledge and consent or direction some game or device condemned as gambling has been habitually played or carried on there.” Creash v. State, 131 Fla. 111, 179 So. 149, 152 (1938); Stanger v. State, 117 So.2d 417, 418 (Fla.3d DCA 1960). The thrust of the statute is not to proscribe gambling itself, but to condemn the maintenance or keeping of a house or room designed for people to assemble and gamble therein. Perlman v. State, 269 So.2d 385 (Fla.4th DCA 1972); State v. Schell, 211 So.2d 581 (Fla.2d DCA 1968); Stanger v. State, 117 So.2d 417 (Fla.3d DCA 1960); State v. Hindle, 108 R.I. 389, 275 A.2d 915 (1971); Gullatt v. State ex rel. Collins, 169 Ga. 538, 150 S.E. 825 (1929). Maintaining a room or house designed for people to gather and place bets with a bookmaker on various sporting events constitutes the maintenance or keeping of a gambling house. McBride v. State, 39 Fla. 442, 22 So. 711 (1897).

Measured by these standards, it is obvious that the apartment in this case was not a gambling house because it was not designed for people to assemble and gamble therein. The evidence is uncontradicted that the apartment was frequented solely by the defendant, and that no people ever assembled and gambled at the apartment at any time.

It is true, as the state strongly argues, that there is evidence in the record of illegal bookmaking activities by the defendant. The jury, however, chose not to believe this evidence and found the defendant not guilty of bookmaking. Although this in itself would not preclude the jury from rendering a verdict of guilty of maintaining a gambling house, Goodwin v. State, 157 Fla. 751, 26 So.2d 898 (1946), the evidence here is totally lacking to sustain such a verdict because the apartment was never maintained or kept for people to assemble and gamble therein. As such, the apartment can not be a gambling house under Section 849.01, Florida Statutes (1975).

The trial court erred in denying the defendant’s motion for judgment of acquittal made at the close of all the evidence. The judgment of conviction and sentence herein is reversed and the cause remanded to the trial court with directions to discharge the defendant from the cause.

Reversed.


text:
    Marianne L. STANDER, Appellant, v. Ronald Israel STANDER, Appellee.
    No. 77-843.
    District Court of Appeal of Florida, Third District.
    Oct. 18, 1977.
    Rehearing Denied Nov. 3, 1977.
    Rosenkrantz & Sutton and Jerold Hart, Miami Beach, for appellant.
    Heller & Kaplan and Daniel Neal Heller, Miami, for appellee.
    Before HENDRY, C. J., and NATHAN and KEHOE, JJ.
   PER CURIAM.

The question raised by appellant, petitioner/wife below, by this interlocutory appeal is whether the trial court, in an order dated May 19,1976, dismissing a petition for dissolution of marriage and reserving jurisdiction as to the allowability of attorneys’ fees, retained jurisdiction to set the amount of such fees. We are of the opinion that the trial court did retain such jurisdiction; therefore, the orders appealed are affirmed.

The contentious language in the order reads as follows:

“. . . it is hereby directed that the Court reserves jurisdiction to consider, after hearing upon notice, the sole question of the allowability, as distinguished from determination of the amount, of attorneys’ fees for the Petitioner-Wife’s attorneys.”

In retrospect this phraseology could have been more precise; however, we think that a fair construction of the quoted language indicates the trial court retained jurisdiction both to determine the allowability of attorneys’ fees and to set the amount of such fees. It is logical that the intent of the order was for the trial court to determine first the allowability of attorneys’ fees. If the fees were disallowed, the hearing as to the amount of such fees would be obviated, thereby promoting judicial economy and minimizing further time and expense to the parties. See Cardillo v. Cardillo, 269 So.2d 773 (Fla. 3rd DCA 1972); Keena v. Keena, 245 So.2d 665 (Fla. 1st DCA 1971), and Section 61.16, Florida Statutes (Supp.1976).

Affirmed.


author: RYDER, Judge.

text:
    Elton McCRAY, Appellant, v. STATE of Florida, Appellee.
    No. 77-1004.
    District Court of Appeal of Florida, Second District.
    Oct. 19, 1977.
    As Amended Oct. 31, 1977.
    Robert E. Pyle, Lake Alfred, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Judge.

On July 28, 1976 the appellant was cited by the Winter Haven Police Department with driving while under the influence of alcoholic beverages and willful and wanton reckless driving.

Appellant was acquitted of both charges in the Municipal Court of Winter Haven on October 7, 1976.

Thereafter, appellant was charged in a two count information with manslaughter by culpable negligence in Count I, and in Count II with manslaughter due to intoxication.

A motion to dismiss the information was filed asserting the acquittal in the municipal court of the two charges for which he received citations and that if appellant were to be tried on the information it would constitute double jeopardy. The motion to dismiss was denied without a hearing.

The appellant sought a writ of prohibition from this court on the grounds of multiple jeopardy and this court denied the writ without prejudice to the appellant to plead collateral estoppel and to make the necessary evidentiary showing of facts previously adjudged in his favor.

The appellant filed an amended motion to dismiss the information, realleging the assertions in his prior motion as well as raising the doctrine of collateral estoppel and res judicata.

A hearing was held and appellant called Mr. Jerry Hill, an attorney who prosecuted the case in the Winter Haven Municipal Court. Mr. Hill testified there was no reporter at the non-jury trial. Mr. Hill further testified that the willful and wanton reckless driving charge arose out of an accident with no independent witnesses. The police investigation disclosed that the right front tire of the appellant’s vehicle went off the road and, when appellant’s vehicle came back onto the road, it veered to the other side of the road, striking another car, killing an occupant. The police investigation was unable to determine the appellant’s speed.

As to the driving while intoxicated charge, attorney Hill testified that the blood sample from appellant was not introduced into evidence inasmuch as the prosecution was unable to prove the chain of evidence.

A directed verdict of acquittal was then granted on both charges by the municipal court.

At the close of the hearing on the motion to dismiss, the circuit court granted the motion to dismiss Count II (manslaughter by intoxication), but denied the motion to dismiss Count I (manslaughter by culpable negligence) of the information.

Appellant then changed his plea to nolo contendere to Count I, reserving the right to appeal the denial of his amended motion to dismiss as to Count I. Adjudication of guilt was withheld and the appellant was placed on probation for five years.

It is from the order denying appellant’s amended motion to dismiss that this appeal reaches this court.

We reverse, remand and order that the sentence to probation be set aside.

The elements of the lesser charge of willful and wanton reckless driving are inherently intertwined with those of the more serious charge of manslaughter (by vehicle) by culpable negligence.

Culpable negligence which will sustain a manslaughter conviction means conduct of gross and flagrant character evincing a reckless disregard of human life or of safety of persons exposed to its dangerous effects, or means entire want of care which would raise a presumption of conscious indifference to consequences or which shows wantonness, recklessness, or grossly careless disregard of safety and welfare of the public or that reckless indifference which is equivalent to intentional violation of the rights of others. Getsie v. State, 193 So.2d 679 (Fla. 4th DCA 1966), and cases cited therein.

The Winter Haven Municipal Court having found appellant not guilty of conduct less reprehensible than that required by the Getsie court and other appellate courts of Florida, then he may not be prosecuted in the same case requiring a higher standard of conduct and proof.

We are cognizant of the case of State v. Stiefel, 256 So.2d 581 (Fla. 2d DCA 1972), which held that a prior conviction of driving while intoxicated does not bar a subsequent prosecution for manslaughter by culpable negligence. However, it is our view that the circumstances of Stiefel are indeed the converse of the instant case, because Stiefel was found guilty of the charge involving the lesser degree of culpability. For this reason, as well as the numerous other reasons set forth in the thoughtful opinion in Stiefel, in that case there was no bar to the subsequent manslaughter prosecution. The crux of the instant case differs in that appellant herein was found not guilty of the charge involving the lesser degree of culpability, and thus we hold that he may not now be prosecuted on a charge of manslaughter by culpable negligence arising from the same facts.

Reversed and remanded with directions.

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

      . § 316.029, Fla.Stat. (1975).

      . § 782.07, Fla.Stat. (1975).


author: RAWLS, Judge.

text:
    Hooper ALEXANDER, III, as Administrator of the Estate of Margaret M. Alexander, deceased, Petitioner, v. ALTERMAN TRANSPORT LINES, INC., a Florida corporation, and Charles E. Penley, Respondents.
    No. EE-43.
    District Court of Appeal of Florida, First District.
    Oct. 19, 1977.

      Joseph D. Farish, Jr., and Alice Cortina Post of Farish & Farish, West Palm Beach, for petitioner.
    E. Harper Field and Helen C. Ellis of Keen, O’Kelley & Spitz, Tallahassee, for respondents.
   RAWLS, Judge.

With the assistance of this court, petitioner-plaintiff has encountered considerable difficulty in sustaining his allegation seeking to recover punitive damages. For the reasons stated therein, we granted cer-tiorari in a prior consideration of petitioner’s complaint and held that “[t]he bare allegations of gross negligence on the part of an employee in operating an employer’s motor vehicle are not sufficient to sustain a claim for punitive damages on the part of an employer.” Upon remand, petitioner filed a third amended complaint, alleging therein that by reason of the truck driver’s grossly negligent acts of such willful, wanton and outrageous character his employer was liable for punitive damages. An amendment to the third amended complaint was subsequently filed by petitioner alleging that Penley, the driver of Alterman’s truck, was operating same in furtherance of the interests of his employer, had been adjudicated guilty of manslaughter, and thus Penley and Alterman were each liable for punitive damages. In dismissing the claim for punitive damages as to Alterman, the trial court cited our prior mandate and Sideris v. Warrington Motor Company, 181 So.2d 650 (Fla. 1st DCA 1966). Due to the prior history of this case, we exercise our discretion to entertain this question through the offices of common law certiora-ri.

The basic issue is whether or not an employer, pursuant to the doctrine of respon-deat superior, is punitively liable for the criminal acts of an employee who was allegedly furthering the interests of his employer.

In the year 1763, the doctrine of punitive damages was articulated by Lord Camden in Huckle v. Money, wherein he stated:

“The personal injury done to [the plaintiff] was very small so that if the jury had been confined by their oath . perhaps £20 damages would have been thought damages sufficient; but the small injury done to the plaintiff . did not appear to the jury in that striking light in which the great point of law touching the liberty of the subject appeared to them at the trial . [I] think they have done right in giving exemplary damages. To enter a man’s house by virtue of a nameless warrant, in order to procure evidence, is worse than the Spanish Inquisition; a law under which no Englishman would wish to live an hour; it was a most daring attack upon the liberty of the subject.”

The foregoing excerpt demonstrates a factual situation in which punitive damages have long been sanctioned by permitting the jury to award punitive, vindictive or exemplary damages to the aggrieved individual not only to recompense the sufferer but to punish the offender.

Of course, Alterman is liable for all compensatory damages resulting from the acts of its employee in operating the company’s motor vehicle by reason of its status as employer and the dangerous instrumentality doctrine. But, what wrong did Alterman commit that demanded it be punished? According to the third amended complaint, Alterman’s gross negligence was solely the act of operating a trucking business. Not a single allegation is found as to Alterman’s negligently failing to investigate or to otherwise verify Penley’s ability to operate its truck in a law abiding manner; there is not a single allegation that Alterman knew or should have known Pen-ley’s propensity to consume alcoholic beverages; there is not a single allegation that Alterman knew or should have known that Penley would operate its truck in a “grossly negligent manner and with outrageous, willful, wanton and utter disregard for other vehicles and users”. In fact, the allegations that Penley was driving the tractor-trailer truck, while under the influence of alcohol or some other drug at a speed that was greater than reasonable or prudent, and was adjudicated guilty of manslaughter are repugnant to the doctrine of respondeat superior or that he operated said vehicle in furtherance of the interests and benefit of his employer.

This court’s opinion in M R & R Trucking Company v. Griffin, 198 So.2d 879 (Fla. 1st DCA 1967), offers some light upon the subject. After reviewing the record which reflected that the driver of the employer’s truck intentionally drove across a picket line resulting in injury to one individual, we concluded that the employer was not liable for either compensatory or punitive damages. In reaching this conclusion, this court stated:

“It cannot be questioned but that plaintiff was injured by a truck driven by Dukes while in the performance of his duties as an employee of the defendant trucking company. . . .We find in the record no evidence tending to prove that the act of the employee resulting in injury to plaintiff was committed in the furtherance of the employer’s interest or for its benefit. In fact, it is hard to conceive what steps the corporate defendant could have taken to guard against an assault and battery being committed by its employee upon plaintiff or any other strikers at the chemical plant, other than the precautions it took as shown by the evidence in this case.”

Paraphrasing another statement in the Griffin opinion, the third amended complaint before us contains no allegation from which a jury could lawfully infer that the corporate defendant was negligent by employing or retaining in its employment the defendant, Penley, or that he possessed dangerous propensities known or which should have been known to his employer.

As stated in Gulf Shore Seafood & Co., Inc. v. Cities Service Company, 501 F.2d 957 (5th Cir. 1974): “. . . the actor must have knowledge, actual or constructive, of the likelihood that his conduct will cause injury to other persons or property . . .” Query: What knowledge, actual or constructive, did Alterman possess of the likelihood that its driver would engage in such conduct that Alterman would be subjected to a punitive civil penalty for the criminal actions of its employee? Sider-is v. Warrington Motor Company, supra, is in point. There, in a strikingly similar factual situation, this court held that the owner of a motor vehicle was not liable for punitive damages solely by reason of its status as employer.

As stated at the outset, this court has contributed to petitioner’s difficulty in framing allegations which would sustain a jury verdict for punitive damages. Solely for this reason, certiorari is granted for the purpose of remanding with directions to the trial judge to permit petitioner to once again amend his complaint as to punitive damages; otherwise, certiorari is denied.

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

      . Alexander v. Alterman Transport Lines, 327 So.2d 860 (Fla. 1st DCA 1976).

      . Huckle v. Money, 2 Wils.K.B. 205, 95 Eng. Reps. 768 (1763).

      . We are not unaware of the Florida Supreme Court’s recent opinion in Bould v. Touchette, 349 So.2d 1181, opinion filed July 28, 1977, rehearings denied September 13, 1977. The single issue that we have here considered was not considered or passed upon by the Supreme Court in its Bould opinion.


author: HOBSON, Judge.

text:
    Edward E. PLANTE, Appellant, v. Lonnie H. WATSON, d/b/a Kirby Distributing Company, and C. W. Jarvis, Appellees.
    No. 76-1093.
    District Court of Appeal of Florida, Second District.
    Oct. 21, 1977.

      James E. Deakyne, Jr. and Robert F. Nunez, Law Offices of Robert F. Nunez, St. Petersburg, for appellant.
    Warren A. Wilson III and John T. Blakely of Johnson, Blakely, Pope & Bokor, Clearwater, for appellee Watson.
   HOBSON, Judge.

Plante, appellant here and defendant below, appeals the order of the circuit court below finding Plante in contempt of a permanent injunction issued six years earlier. The order was entered upon a motion filed by Kenst. Plante contends that Kenst had no standing to enforce the permanent injunction. We agree and reverse the contempt order.

A clear understanding of the alignment of the parties below is necessary to the disposition of this appeal. Lonnie Watson, doing business as Kirby Distribution Company, was a distributor of Kirby products in Pinellas County pursuant to a 1968 agreement with the Kirby Company. As distributor, Watson was authorized by the Kirby Company to appoint area distributors (sub-distributors) within Watson’s territory and to sublease the right to use the “Kirby” name in promotions. In 1969, Watson entered into a contract with Jarvis, doing business as Kirby Sanitronic Systems, appointing Jarvis as an area distributor and authorizing Jarvis to use the “Kirby” name. This contract required Jarvis to cease using the “Kirby” name immediately upon termination of Jarvis’ status as an authorized area distributor. Later that year, Jarvis’ status as an authorized area distributor was terminated by Watson. It appears that Jarvis continued to use the “Kirby” name. Watson filed suit to enforce the provision of the contract requiring Jarvis, and his alleged business associate Plante, to discontinue use of the “Kirby” name. At no time was the Kirby Company a party to these proceedings. In due course, a permanent injunction issued which enforced the contract provision. Plante does not contend that the injunction improperly enjoined his use of the “Kirby” name.

In 1975, the Kirby Company terminated Watson as a distributor. Since Watson was no longer associated with the Kirby Company, Plante apparently felt at liberty to resume use of the “Kirby” name. Later in 1975, Kenst assumed Watson’s former position as distributor through a separate agreement with the Kirby Company. Kenst began pursuit of a number of vacuum cleaner businesses which, like Plante, allegedly were using the “Kirby” name without permission. Kenst pursued Plante by filing a motion for contempt in the prior action brought by Watson. After hearing, the court below entered its order granting Kenst’s motion for contempt. The order found that “Petitioner, Fred Kenst, stands in the shoes of Plaintiff, Lonnie H. Watson, and/or has a pecuniary interest in the right protected by the permanent injunction . .” The order also set forth the steps to be taken by Plante to comply with the injunction and denied a compensatory fine payable to Kenst.

An individual may institute proceedings for civil contempt only if that individual: 1) is one of the aggrieved parties; 2) has succeeded to the rights of the aggrieved parties; or 3) has a pecuniary interest in the exact right protected by the order violated. State ex rel. Everette v. Petteway, 131 Fla. 516, 532, 179 So. 666, 672-73 (1938); In Re: S. L. T., 180 So.2d 374 (Fla.2d DCA 1965). Kenst does not contend that he is the aggrieved party in the suit for the injunction. Kenst expressly stated to the lower court that he has not succeeded to the rights of the aggrieved party, Watson, and that Kenst’s interest in the “Kirby” name arises solely out of separate dealings with the Kirby Company. The only bone of contention is whether Kenst may institute the contempt proceeding as one who has a pecuniary interest in the right to be protected by the injunction.

The thrust of Kenst’s argument is that any authorized distributor in the area may use the injunction to prevent the unauthorized use of the “Kirby” name. However, under the controversy framed by the complaint upon which the injunction issued, the “Kirby” name was not a res sought to be protected on behalf of the Kirby Company. The complaint seeking the permanent injunction was not filed by Watson as an agent of the Kirby Company to bring an action in the name of the Kirby Company seeking to enforce in the courts of this state the trademark rights or similar rights of the Kirby Company. Rather, the action was brought by Watson seeking to enforce a provision of his contract with Jarvis. According to the business practices of the Kirby Company, the creation and termination of the authority to use the “Kirby” name was a matter of contract between the distributor and his subdistributor. The contractual right to terminate use of the name was protected by the injunction, but only after Watson had borne his burden of proof on all issues necessary to the injunction. Kenst was a complete stranger to the contract and to the legal proceedings on the contract. Kenst cannot benefit of Watson’s proof of this contractual arrangement. Although Kenst may have a similar right to be protected from the unauthorized use of the “Kirby” name, Kenst’s right would arise from an entirely different source and set of circumstances. Kenst has no pecuniary interest in Watson’s contractual rights protected by the injunction.

Kenst neither stands in the shoes of Watson nor has a pecuniary interest in the right protected. Kenst did not have standing to institute the contempt proceedings below. The trial court reversibly erred in entering its order granting Kenst’s motion for contempt. Accordingly, that order must be, and is hereby, reversed.

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

      . We note that the record contains an agreement between Watson and Kenst whereby Watson appointed Kenst as an area distributor. However, by Kenst’s admissions, Kenst is not a successor to Watson’s rights. We must assume from this that at the time the contempt proceedings were instituted, after Watson was no longer associated with the Kirby Company, Kenst had no rights to protection of the “Kirby” name under the agreement with Watson.

      . Although this was not argued by the parties, Florida Rules of Civil Procedure, Rule 1.590, does not dictate a different result. Under our understanding of the complaint and resulting injunction, Kenst did not obtain the order creating the injunction and was not a person in whose favor the order enforcing the contract was made. See United States v. American Society of Composers, Auth. & Pub., 341 F.2d 1003 (2d Cir.1965), cert. denied 382 U.S. 877, 86 S.Ct. 160, 15 L.Ed.2d 119 (1965) (discussing a similar federal rule).


text:
    James Junior ENFINGER, Appellant, v. STATE of Florida, Appellee.
    No. 77-7.
    District Court of Appeal of Florida, Second District.
    Oct. 21, 1977.
    Jack 0. Johnson, Public Defender, Bar-tow, Stephen 0. Rushing, Asst. Public Defender, and Richard D. Muga, Legal Intern, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

After reviewing the briefs and record on appeal, we find appellant has failed to demonstrate any reversible error; therefore, the judgment appealed is affirmed. The order revoking probation, while indicating the appellant was to receive credit for time served, does not specifically set forth the period of credit time to be allowed as required by Section 921.161(1), Florida Statutes. Smith v. State, 310 So.2d 770 (Fla.2d DCA 1975).

Remanded for correction of the sentence; otherwise affirmed. Appellant need not be present for this purpose.

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


author: HOBSON, Acting Chief Judge.

text:
    CLEARWATER FEDERAL SAVINGS & LOAN ASSOCIATION, Petitioner, v. DEPARTMENT OF REVENUE of the State of Florida, Respondent.
    No. 77-226.
    District Court of Appeal of Florida, Second District.
    Oct. 21, 1977.

      David E. Platte of Richards, Nodine, Gil-key, Fite, Meyer & Thompson, Clearwater, for petitioner.
    Robert L. Shevin, Atty. Gen., and E. Wilson Crump, II, Asst. Atty. Gen., Tallahassee, for respondent.
   HOBSON, Acting Chief Judge.

Petitioner brings this petition to review an administrative order entered by the respondent assessing certain income tax deficiencies against petitioner for the calendar years 1972,1973 and 1974 under the Florida Income Tax Code.

Petitioner is a federally chartered savings and loan association which prior to the calendar year 1971 used the cash receipts and disbursements method of accounting for federal income tax purposes. Petitioner desired to change its method of accounting to the accrual method commencing with the calendar year 1971. Permission to do this was granted by the Internal Revenue Service. Consistent with this change of its method of accounting, all net accrued income as of January 1, 1971 was recorded in its entirety in petitioner’s financial statements as of December 31, 1970. However, rather than report a large block of income on January 1, 1971, the date of the change, petitioner entered into an agreement with the Internal Revenue Service, pursuant to Revenue Procedure 70-27, to spread the reporting of its accrued income over a ten-year period for federal tax purposes. The total net adjustment required to convert to the accrual method was $758,911. The agreement with the Internal Revenue Service required petitioner to report an annual adjustment of $75,891 on its federal income tax return. However, all income represented by these annual adjustments was accrued and realized by petitioner prior to January 1, 1971.

In 1970 and 1971, petitioner timely filed its Florida intangible personal property tax returns and paid Florida intangible tax for each of those years. Upon subsequent review of petitioner’s records, it became apparent that petitioner had overpaid the intangible tax for those years and a refund claim was submitted. This refund was issued to petitioner by the State of Florida during the calendar year 1973 and reported in petitioner’s 1973 federal corporate income tax return.

On January 1, 1972, the Florida Income Tax Code became effective. However, petitioner did not report the annual adjustment of $75,891 on its Florida corporate income tax return for the years 1972, 1973 and 1974, nor did petitioner report the refund of the erroneously paid intangible tax received in 1973 on its Florida corporate income tax return.

Respondent assessed the deficiencies in dispute despite the fact that the income reported by the annual adjustment and petitioner’s entitlement to the refund of the intangible tax both occurred prior to November 2, 1971, when the Florida Constitution was amended to permit imposition of a tax on the income of other than natural persons. Following the amendment, the Florida Legislature enacted the Florida Income Tax Code, Chapter 220, Fla.Stat. (1975), which imposed an income tax commencing January 1,1972 on other than natural persons.

The administrative order before us for review provided:

“1. That the proposed corporate income tax deficiencies for the tax years 1972, 1973, and 1974, issued by the Respondent with respect to annual adjustments of $75,891.00 for each of the tax years reflecting a change in the Petitioner’s accounting method is affirmed.
“2. The proposed deficiency for the 1973 tax year which relates to a refund of Petitioner’s intangible personal property taxes for the years 1970 and 1971 is affirmed.”

Prior to November 2, 1971, the Florida Constitution contained a direct prohibition against the levying of any tax upon corporate income. It is petitioner’s position that all of the income upon which the corporate income tax assessed against it is based was realized prior to November 2, 1971, when the Florida Constitution prohibited any tax upon corporate income. Petitioner receives absolutely no benefit at the time the annual adjustments are reported on its federal income tax return. In fact, any benefit petitioner might have received occurred immediately at the time of the change in its accounting method on January 1, 1971. The total net adjustment of accrued income was $758,911, consisting of one month’s total interest due on all mortgage loans made by petitioner. Interest is paid in arrears to petitioner by its borrowers. On January 1, 1971, the date of petitioner’s change to the accrual method of accounting, petitioner was entitled to receive $758,911 in interest income representing accrued interest from December, 1970. This amount would, of course, not be reported on petitioner’s 1970 federal income tax return inasmuch as petitioner was still on the cash method of accounting for 1970 and the borrowers’ payments for December’s interest would not have been due or received until after December 31,1970. However, since petitioner was using the accrual method of accounting subsequent to January 1, 1971, only the accrued income for each of the months ending in 1971 would be reported on petitioner’s 1971 income tax return. Therefore, the federal government required petitioner to make the adjustment of $758,911 as of the date of petitioner’s change of accounting methods, lest this amount escape federal taxation. Petitioner’s actual receipt of a benefit occurred on January 1, 1971, when it increased its net worth on its financial statement for December 31, 1970, and assuming all borrowers made their interest payment on January 1, 1971, actual receipt of the money occurred on that date.

As to the corporate income tax imposed on the intangible tax refund received by petitioner in 1973, petitioner theorizes that it had erroneously overpaid its Florida intangible personal property taxes during 1970 and 1971, which overpayment was refunded during 1973. For federal income tax purposes, petitioner had deducted the amount of the State intangible tax paid from its federal income taxes for the 1970 and 1971 tax years. The refund was reported on petitioner’s 1973 federal income tax return as income under Section 111 of the Internal Revenue Code. 26 U.S.C.A., Section 111. The amount was necessarily includable as income in 1973 for federal tax purposes because petitioner had received a federal tax benefit during the years 1970 and 1971.

Under Section 220.02(3) of the Florida Statutes, the concepts embodied in Section 111 of the Internal Revenue Code should be utilized in determining petitioner’s Florida income tax. With respect to petitioner’s recovery in 1973 of the $35,246 erroneously paid intangible taxes for the years 1970 and 1971, it is apparent that the prerequisite to the realization of income under Section 111 concepts is absent. In 1970 and 1971, the years the intangible tax was paid, there was no Florida income tax and, thus, no Florida taxable income from which a tax-reducing deduction could be taken. The necessary deduction was not only improper, but nonexistent. Section 111 concepts, as applied to the Florida income tax, plainly would not create any income. The refund was necessarily includable as income for federal tax purposes in 1973 because petitioner had received a federal tax benefit during 1970 and 1971. No similar Florida tax benefit had been realized since the Florida corporate income tax was not then in existence.

It is the respondent’s position that even though the income upon which the Florida corporate income tax is levied was realized prior to the constitutional amendment of November 2, 1971, it was recognized for federal income tax purposes after said amendment and that the Florida Corporate Income Tax Code specifically contemplates taxation of such sums by virtue of using as a starting point “adjusted federal income.” Fla.Stat. Section 220.12(1). Therefore, they posit that where the income to be taxed is reflected on the federal income tax return for the same period, regardless of what the reasons may be for its inclusion on the federal return, such tax imposition is not retroactive and therefore not prohibited by Florida Statute, Section 220.02(4).

As we understand the respective positions of the parties, the petitioner is depending on the realization of income doctrine and the respondent on the doctrine of recognition of the income as reported to and taxed by the federal government.

In Department of Revenue v. Leadership House, Inc., 343 So.2d 611 (Fla.1977), our supreme court stated the issue and its holding as follows:

“The issue concerns the validity of the state corporate income tax upon increases in the value of capital assets which occurred prior to November 2, 1971, but were not realized by the sale or transfer of the capital assets until after the effective date of the corporate income tax constitutional amendment and the enactment of the Florida Income Tax Code. We reverse, holding that appreciation in value of a capital asset is not income until it is realized from a sale, exchange or other disposition of the asset, and that the present Florida corporate income tax on such capital gain is constitutional and proper.”

While the issue involved in this case is not the same as in the Leadership case, our supreme court stated in Leadership, “We believe the realization doctrine is the fairest for all taxpayers.” We agree with this statement and, therefore, grant the petition for review and reverse the administrative order entered by respondent.

McNULTY and OTT, JJ., concur.


author: RAWLS, Acting Chief Judge. SMITH, Judge,

text:
    Cam MAPOLES and Auto-Owners Insurance Company, Appellants, v. Clayton Webb MAPOLES, III, by his next friend and father, Clayton Webb Mapoles, Jr., Appellees.
    No. DD-317.
    District Court of Appeal of Florida, First District.
    Oct. 24, 1977.
    William H. Clark of Clark, Partington, Hart & Hart, Pensacola, for appellants.
    T. Sol Johnson of Johnson, Johnson & Green, Milton, for appellees.
   RAWLS, Acting Chief Judge.

By this interlocutory appeal, appellants challenge the order of the trial court entered in favor of the plaintiffs and against the owner of a dog and her insurer on the issue of liability.

This bizarre accident occurred on December 3, 1971, when an 18-year old boyfriend of appellant Cam Mapoles, upon returning from a hunting trip, placed his loaded 12-gauge pump shotgun in the back seat of a Volkswagen automobile. The young man then drove to Cam’s home, picked her up and proceeded to the home of Cam’s brother for the purpose of picking up Cam’s St. Bernard dog. The 150- to 200-pound dog was compressed into the rear seat of the Volkswagen by Cam’s boyfriend. Cam Ma-poles testified that she was unaware that the shotgun was in the rear seat and would not have permitted the dog to be placed in the car had she known of the presence of the loaded shotgun. A few seconds after the dog was placed in the Volkswagen, the loaded shotgun discharged severely injuring appellee-plaintiff Clayton Mapoles, III, who was standing near the car. The instant judgment as to liability on the part of Cam Mapoles was entered by the trial court upon the theory that Section 767.01, Florida Statutes, imposed strict liability upon the dog owner under the facts of this case.

Section 767.01, Florida Statutes, provides, inter alia: “ . . . Owners of dogs shall be liable for any damage done by their dogs . to persons [emphasis supplied].” The constitutionality of this statute has not been challenged. The facts are clear: Cam Mapoles’ dog and the loaded shotgun were compressed in a small cubicle; all reasonable inferences lead to the inescapable conclusion that the dog and the shotgun became entangled resulting in the discharge of the shotgun. The unfortunate result of the shotgun firing through the side of the Volkswagen was the severe injury of the minor plaintiff. If the statute means what it says, the syllogism is clear: Cam was the owner of the dog; damage was caused to a person by the dog; and thus the owner of the dog is liable for the damage done.

Appellants, citing a number of eases, theorize that it is only in cases where a dog acts aggressively or affirmatively have the courts interpreted the statute to impose strict liability. What appellants fail to recognize is that the facts in this case are such that the injury resulted from the affirmative act of the dog. Thus, the subject statute that virtually makes an owner the insurer of the dog’s conduct is applicable.

AFFIRMED.

ERVIN, J., concurs.

SMITH, J., dissents.

SMITH, Judge,

dissenting:

Nothing in this record suggests, let alone demonstrates sufficiently for summary judgment on liability, that the shotgun was fired as a result of canine characteristics for which the legislature intended to make the owner an insurer. To the majority that is irrelevant; they impose liability simply because in a general sense the dog’s presence caused the shotgun to fire. By this draconian reading of the statute, the owner is absolutely liable although dogness played no more a part than if the trigger had been jolted by a cat or a falling sack of groceries. I had understood that “strict liability has been confined to consequences which lie within the extraordinary risk whose existence calls for such special responsibility.” W. Prosser, Law of Torts 517-18 (4th ed. 1971). Strict liability for dog biting, barking, chasing, jumping, vicious or rambunctious conduct, yes. For passive movement which discharges a shotgun, no. See Rutland v. Biel, 277 So.2d 807 (Fla.2d DCA 1973); Smith v. Allison, 332 So.2d 631, 634 (Fla.3d DCA 1976):

Where . . the damage results from some physical agency set into motion by a chain of events which may have been triggered by the presence of the dog, absolute liability should not be imposed.

Here the injury was literally “triggered by the presence of the dog,” but that is all. I would reverse.

      . Fla.App. Rule 4.2.a provides that interlocutory appeals may be taken from “orders granting partial summary judgment on liability in civil actions”. ■

      . It is not the owner’s acts, but it is the act of ownership by which statutory liability is imposed.

      . This is the second interlocutory appeal concerning liability in this case. On the prior appearance, Mapoles v. Mapoles, 332 So.2d 373 (Fla. 1st DCA 1976), this court, in reversing a summary judgment as to liability, stated:
      “ . . . This cause is remanded to the trial court for the purpose of considering any motions which might be made to raise the applicability of Section 767.01, Florida Statutes, of receiving evidence on the issues as made by the pleadings, and rendering final judgment thereon.”

      . English v. Seachord, 243 So.2d 193 (Fla. 4th DCA 1971), aff'd 259 So.2d 136 (Fla.1972).

      . In Allstate Insurance Co. v. Greenstein, 308 So.2d 561 (Fla. 3rd DCA 1975), Greenstein swerved his car to avoid hitting “Pandora”, a great dane, that was in the street. In sustaining the trial court’s directed verdict in favor of Greenstein, the Third District Court of Appeal held that “Pandora” took some affirmative action resulting in Greenstein’s injury.


text:
    INDIAN RIVER CONSTRUCTION COMPANY, INC., a corporation, Appellant, v. CITY OF JACKSONVILLE, Florida, a Municipal Corporation, Appellee.
    No. DD-419.
    District Court of Appeal of Florida, First District.
    Oct. 24, 1977.
    S. Gordon Blalock, of Blalock, Holbrook, Lewis, Paul & Isaac, Jacksonville, for appellant.
    Dawson A. McQuaig, Gen. Counsel, William Lee Allen and William L. Coalson, Asst. Gen. Counsels, Jacksonville, for appel-lee.
   PER CURIAM.

Having considered the record and briefs of the parties, we conclude no error occurred. Appellant’s argument that the lower court erred in directing verdict against it as to its $75,872.43 claim by reason of delay caused by eight change orders mutually agreed upon by appellant and ap-pellee is without foundation. Had appellant intended to claim more, such additional items of expense should have been included within the change orders. They were not. Having failed to do so, appellant may not now attempt to rewrite a contract properly executed. Jacksonville and A. R. Co. v. Woodworth, 26 Fla. 368, 8 So. 177 (1890).

The argument raised that the lower court erred in giving an instruction to the jury was not objected to by appellant. The objection was thereby waived. Fla.R.Civ.P. 1.470(b).

AFFIRMED.

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


text:
    David Ray WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. FF-163.
    District Court of Appeal of Florida, First District.
    Oct. 24, 1977.
    Thomas G. Hall, Fernandina Beach, for appellant.
    Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for ap-pellee.
   PER CURIAM.

Defendant was tried and convicted of breaking and entering with intent to commit larceny and with larceny of an air jack. He has raised two points on appeal for this court to consider. The first is the insufficiency of the evidence to sustain defendant’s conviction and the second is ineffective assistance of counsel. As to the first point, we hold there was substantial evidence presented at trial to convict the defendant of the crimes charged. The second point on appeal, ineffective assistance of counsel, may not be properly raised before this court for the first time on direct appeal when it was not ruled upon by the trial court. State v. Barber, 301 So.2d 7 (Fla.1974).

However, this opinion should not be construed as prohibiting defendant from raising this argument before the trial court by the proper vehicle of a Fla.R.Crim.P. 3.850 motion.

IT IS SO ORDERED.

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


author: SMITH, Judge.

text:
    Rene GARCIA and Adrienne Garcia, his wife, Appellants, v. MID-FLORIDA HAULING, INC., a corporation, and Wilson Sawyer, Appellee.
    No. FF-412.
    District Court of Appeal of Florida, First District.
    Oct. 24, 1977.
    John F. Roscow, III, of Scruggs, Carmichael, Long, Tomlinson, Roscow, Pridgeon, Helpling & Young, Gainesville, for appellants'.
    Toby S. Monaco, of Dell, Graham, Will-cox, Barber, Ryals & Henderson, Gaines-ville, for appellee.
   SMITH, Judge.

Appellants have not produced any agreement or shown any relationship between Mid-Florida and appellee Sawyer suggesting Mid-Florida would indemnify Sawyer for damages resulting from his negligent acts. Nor have appellants properly invoked the dangerous instrumentality doctrine. A trailer is not a dangerous instrumentality, and appellants have not shown Mid-Florida exercised ownership or dominion over the tractor.

AFFIRMED.

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


text:
    King Edward BRILL, Appellant, v. STATE of Florida, Appellee.
    No. GG-177.
    District Court of Appeal of Florida, First District.
    Oct. 24, 1977.

      King Edward Brill, in pro per.
    Robert L. Shevin, Atty. Gen., and Patti Englander, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

Appellant could have raised his complaint concerning the jury instructions on direct appeal. That issue is therefore not properly raised in a motion to vacate judgment and sentence. Ashley v. State, 350 So.2d 839 (Fla.1st DCA 1977).

AFFIRMED.

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


text:
    Linda Jean CURTIS and Gwendolyn Oliver, Petitioners, v. STATE of Florida, Respondent.
    No. GG-253.
    District Court of Appeal of Florida, First District.
    Oct. 24, 1977.
    Michael J. Minerva, Public Defender, Louis G. Carres, Asst. Public Defender, for petitioners.
    Robert L. Shevin, Atty. Gen., George R. Georgieff and Richard W. Prospect, Asst. Attys. Gen., for respondent.
   PER CURIAM.

Petitioners filed their petition for certio-rari alleging the lower court’s order denying their petition for writ of habeas corpus was a departure from the essential requirements of law.- They argue the lower court, although declaring them insolvent, erred in refusing to grant their motion for an order directing the court reporter to transcribe notes. In its order denying the motion, the lower court observed the majority rule is that the payment of a fine renders a case moot so as to preclude any review of an attack upon such a conviction, relying upon Annot., 9 A.L.R.3rd 476-477 (1966).

Having reviewed the record and briefs of counsel, we find there has been no departure from the essential requirements of law. The petition for writ of certiorari is

DENIED.

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


text:
    CUSTOM HOME BUILDERS, INC., Appellant, v. William L. BAILEY, Appellee.
    No. EE-469.
    District Court of Appeal of Florida, First District.
    Oct. 25, 1977.
    C. Ray Greene, Jr. of Greene & Greene and Stanley B. Gelman, Jacksonville, for appellant.
    Joseph M. Glickstein, Jr., Jacksonville, for appellee.
   PER CURIAM.

We have considered the record, the briefs and the oral arguments of counsel. We find no reversible error in the trial court’s refusal to allow the jury a view of the residence, in that no motion requesting the view was made by counsel. We likewise find no error in the court’s refusal to give .the requested instruction. See Committee Note 1 of Standard Jury Instruction Number 2.2. Moreover, the court’s disallowance of part of Appellee’s expert witnesses’ fees was not an abuse of discretion.

Affirmed.

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


author: PER CURIAM. BOYER, Acting Chief Judge,

text:
    Ann Reese KNIFFEN, Appellant, v. Jared Charles KNIFFEN, Appellee.
    No. FF-139.
    District Court of Appeal of Florida, First District.
    Oct. 25, 1977.
    Selig I. Goldin, of Goldin & Cates, Gaines-ville, for appellant.
    Leonard E. Ireland, Jr., of Clayton, Duncan, Johnston, Quincey, Ireland, Felder & Gadd, Gainesville, for appellee.
   PER CURIAM.

We find no abuse of discretion in the trial judge’s alimony award. Appellant will be given an opportunity to show a need for an extension of the rehabilitative payments if she is unable to obtain employment in the given period of time.

Affirmed.

MILLS and ERVIN, JJ., concur.

ly. BOYER, Acting C. J., concurring special-

BOYER, Acting Chief Judge,

concurring specially.

I concur in affirming the award of rehabilitative (as distinguished from permanent) alimony, the trial court having reserved jurisdiction to review the need for an extension of the rehabilitative period. However, I again express the view that there is no more important position or job in our society than that of being a parent. Therefore, inasmuch as appellant has been awarded the custody of the children of the parties and has announced a desire to devote her efforts to mothering rather than entering the job market, if at the expiration of the period for which rehabilitative alimony has been awarded the evidence should reveal that appellant is in fact fulfilling her role of being a mother and furnishing guidance to the children the rehabilitative alimony should be continued until such time as the children have attained adulthood or ceased the need for parental guidance (whichever event should occur first) even though the evidence should also reveal that appellant has in the meantime become a viable candidate for the job market and self-support.


text:
    James Robert KILGORE, Appellant, v. STATE of Florida, Appellee.
    No. FF-295.
    District Court of Appeal of Florida, First District.
    Oct. 25, 1977.
    Michael J. Minerva, Public Defender, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., and Michael Davidson, Asst. Atty. Gen., Tallahassee, for appellee.
   SMITH, Judge.

Appellant contends an inculpatory statement he gave to the police was inadmissible because he did not receive a first appearance before a judicial officer within 24 hours of his arrest as required by Fla.R. Crim.P. 3.130(b). Since one of the purposes of first appearance is to ensure the magistrate advises the defendant of his rights to silence and counsel, we would be inclined to agree with appellant if he had confessed more than 24 hours after his arrest. Here, however, appellant confessed less than 18 hours after his arrest. We see no reason why a subsequent failure to provide appellant with a timely first appearance should render an otherwise admissible confession inadmissible. Appellant does not contend he was not advised of his constitutional rights or that his confession was involuntary.

AFFIRMED.

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


text:
    Edward Lee CURRY, Appellant, v. STATE of Florida, Appellee.
    No. GG-149.
    District Court of Appeal of Florida, First District.
    Oct. 25, 1977.
    Michael J. Minerva, Public Defender, and Theodore E. Mack, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Michael H. Davidson, Asst. Atty. Gen., for appellee.
   PER CURIAM.

This case is REMANDED for entry of a judgment conforming to the verdict. The trial court is authorized to impose a different sentence or to confirm the sentence already pronounced. Defendant need not be present.

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


text:
    The SECOND NATIONAL BANK OF NORTH MIAMI, Appellant, v. The HANNAN COMPANY and Hannan South Construction, Inc., Appellees.
    No. 76-1608.
    District Court of Appeal of Florida, Third District.
    Oct. 25, 1977.
    Ress, Gomez, Rosenberg, Berke & How-land and Sheldon Rosenberg, North Miami, for appellant.
    Lapidus & Hollander and Richard L. La-pidus, Miami, for appellees.
    Before HENDRY, C. J., and NATHAN and HUBBART, JJ.
   PER CURIAM.

Affirmed. Hay v. Salisbury, 92 Fla. 446, 109 So. 617 (1926). See also Super Service Products Corp. v. North Store Corp., 214 So.2d 664 (Fla.3d DCA 1968), and compare Donahue v. Davis, 68 So.2d 163 (Fla.1953).


text:
    Louis S. BLANCO, Appellant, v. Yale MOSK, Appellee.
    No. 76-1843.
    District Court of Appeal of Florida, Third District.
    Oct. 25, 1977.
    Hendricks & Hendricks, Coral Gables, for appellant.
    Leff, Pesetsky & Zack and Elliott N. Zack, North Miami Beach, for appellee.
    Before PEARSON, NATHAN and KE-HOE, JJ.
   PER CURIAM.

Appellant’s motion for relief pursuant to Fla.R.Civ.P. 1.540 was denied by the trial court. On this appeal, appellant asserts that the trial judge abused his discretion in denying the motion. Our review of the record convinces us that no abuse of discretion has been shown. All of the errors alleged could have been urged upon an appeal from the final judgment. See Butler v. Butler, 172 So.2d 899, 902 (Fla.3d DCA 1965), and cases cited therein.

Affirmed.


text:
    Carmen REYES a/k/a Carmen Reyes Medina, Appellant, v. Antonio BETHENCOURT, Appellee.
    No. 76-1882.
    District Court of Appeal of Florida, Third District.
    Oct. 25, 1977.
    Manuel Vazquez, Miami, and Manuel Al-onso, Coral Gables, for appellant.
    Fowler, White, Hurley, Burnett, Banick & Knight and Fred R. Ober, Miami, for appellee.
    Before HENDRY, C. J., and NATHAN and HUBBART, JJ.
   PER CURIAM.

Reversed. See Williams v. Board of Public Instruction of Flagler County, 61 So.2d 493 (Fla.1952); Navison v. Winn and Lovett Tampa, 92 So.2d 531 (Fla.1957); Berlanti Construction Co. v. Miami Beach Federal Savings and Loan Association, 183 So.2d 746 (Fla. 3d DCA 1966); Kemper v. First National Bank of Dayton, Ohio, 277 So.2d 804 (Fla. 3d DCA 1973); Fontainebleau Hotel Corporation v. Southern Florida Hotel and Motel Association, 294 So.2d 390 (Fla. 3d DCA 1974).


text:
    Robert Louis BROWN, Appellant, v. The STATE of Florida, Appellee.
    No. 76-2023.
    District Court of Appeal of Florida, Third District.
    Oct. 25, 1977.
    Albert L. Carricarte, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and William M. Grodnick, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, NATHAN and KEHOE, JJ.
   PER CURIAM.

Affirmed. Lawson v. State, 251 So.2d 683 (Fla. 3d DCA 1971); State v. Hanigan, 312 So.2d 785 (Fla. 2d DCA 1975); State v. Butler, 325 So.2d 55 (Fla. 3d DCA 1976).


text:
    Joan V. LEE et al., Appellants, v. GILBERT, SILVERSTEIN & HELLMAN, P. A., Appellee.
    No. 77-3.
    District Court of Appeal of Florida, Third District.
    Oct. 25, 1977.
    Jerry B. Schreiber, Miami, for appellants.
    Gilbert, Silverstein & Heilman and Maynard J. Heilman, Miami, for appellee.
    Before HENDRY, C. J., and NATHAN and HUBBART, JJ.
   PER CURIAM.

By this appeal we are asked to review the propriety of an order on a charging lien awarding a lawyer $2,500 for legal services rendered to a client on a tort claim. The client appeals and contends that there was insufficient evidence adduced in the trial court to support the order appealed from because no expert testimony was offered. We agree and reverse. A trial court may not fix attorneys fees without expert testimony. Lamar v. Lamar, 323 So.2d 43 (Fla.4th DCA 1975); Nivens v. Nivens, 312 So.2d 201 (Fla.2d DCA 1975); Ortiz v. Ortiz, 211 So.2d 243, 245 (Fla.3d DCA 1968); Lyle v. Lyle, 167 So.2d 256 (Fla.2d DCA 1964).

Reversed.


text:
    Elmer David PLESCOW, Appellant, v. GULF STATES ZAYRE, INC., a Foreign Corporation, and David Birch, Appellees.
    No. 77-593.
    District Court of Appeal of Florida, Third District.
    Oct. 25, 1977.
    Pozen & Gold and Ira Pozen, Miami, for appellant.
    Thornton, Dougherty & Conroy and Bruce F. Simberg, Fowler, White, Burnett, Hurley, Banick & Knight, Miami, for appel-lees.

      Before HENDRY, C. J., and NATHAN and KEHOE, JJ.
   PER CURIAM.

Appellant, plaintiff below, brought a complaint, as amended, against appellees, defendants below, alleging causes of action for malicious prosecution, false imprisonment, and false arrest. After the cause was noticed for a jury trial, the trial court entered an order, along with pre-trial instructions, setting the cause for trial. Among other things, this order directed the parties to appear before the court on November 10, 1976, for call of the trial calendar. At this time, the cause was continued. Subsequently, pursuant to notice, an evi-dentiary hearing on the issue of probable cause was held on February 15, 1977, with counsel for all parties present. During this hearing, the court heard testimony from witnesses, received the deposition testimony of a witness, and heard argument of counsel. Thereafter, the court on February 17, 1977, issued an order titled “Order on Evi-dentiary Hearing and Summary Judgment,” and then, on March 3, 1977, it issued an additional order titled “Final Summary Judgment and Order on Probable Cause Hearing.” From these two orders, appellant brings this appeal.

Appellant contends that the trial court erred in issuing the orders of February 17 and March 3, 1977, because they were in violation of Rule 1.510 of the Florida Rules of Civil Procedure. Additionally, appellant contends that the trial court abused its discretion in issuing the orders because, at the time of their issuance, genuine material factual issues existed which precluded the granting of summary judgment.

Appellant’s points are well taken. Rule 1.510 of the Florida Rules of Civil Procedure sets forth the procedure whereby a trial court can render a summary judgment. This Rule and the case law in Florida make clear that the taking of testimony, passing on the credibility of witnesses, and the determination of genuine material facts cannot be properly accomplished during a hearing for summary judgment. E. g., Mutual of Omaha Ins. Co. v. Eakins, 337 So.2d 418 (Fla.2d DCA 1976); Megdell v. Wieder, 327 So.2d 781 (Fla.3d DCA 1976); Norman v. Hawthorne, 321 So.2d 112 (Fla.1st DCA 1975); Rice v. Mercy Hospital, 275 So.2d 566 (Fla.3d DCA 1973); Coquina Ridge Properties v. East West Company, 255 So.2d 279 (Fla.4th DCA 1971); and Fla.R.Civ.P. 1.510. The record in the instant case shows that the trial court, when it received and ruled upon the evidence relating to the issue of probable cause, failed to follow the requirements of the principles stated above. Therefore, the orders appealed are reversed and the cause is remanded to the trial court for further proceedings not inconsistent with this opinion.

Reversed and remanded.


text:
    Diana ADLINGTON, Petitioner, v. The STATE of Florida, Respondent.
    No. 77-599.
    District Court of Appeal of Florida, Third District.
    Oct. 25, 1977.

      Martin J. Schwartz, Hollywood, Horton, Perse & Ginsberg and Arnold R. Ginsberg, Miami, for petitioner.
    Richard E. Gerstein, State Atty. and John P. Durant, Asst. State Atty., for respondent.
    Before HENDRY, C. J., and NATHAN and KEHOE, JJ.
   PER CURIAM.

Petitioner-cross-respondent, defendant in the trial court and appellant in the circuit court, seeks issuance of a writ of certiorari directed to an order of the circuit court which, inter alia, affirmed her conviction for petit larceny (shoplifting).

Respondent-cross-petitioner, prosecution in the trial court and appellee in the circuit court, has cross-petitioned this court to quash a portion of that same order which reversed petitioner-cross-respondent’s conviction for resisting arrest without violence.

Petitioner-cross-respondent was charged with the crimes of petit larceny, in violation of Section 812.021, Florida Statutes (1975); resisting arrest without violence, in violation of Section 843.02 Florida Statutes (1975); and reckless driving, in violation of Section 316.029, Florida Statutes (1975).

After pleading not guilty to all three charges, the case proceeded to non-jury trial in the county court. At the conclusion of the trial, petitioner-cross-respondent was found guilty on all three charges, fined $250.00 on each charge and sentenced to 30 days each on the shoplifting and resisting arrest convictions, sentences to run consecutively. On appeal, the circuit court sitting in its appellate capacity affirmed both the reckless driving and shoplifting convictions. The resisting arrest without force conviction was reversed on the ground that no probable cause existed at the time to arrest petitioner-cross-respondent, thus making the arrest illegal.

Having carefully considered the record, briefs and arguments of counsel it is our opinion that the circuit court departed from the essential requirements of law in affirming petitioner-cross-respondent’s conviction for petit larceny in that respondent-cross-petitioner failed to prove the requisite ownership or superior possession of the alleged stolen property in one other than petitioner-cross-respondent. Simkovitz v. State, 340 So.2d 959 (Fla.3d DCA 1976); Johnson v. State, 190 So.2d 601 (Fla.3d DCA 1966).

As for the cross-petition for certiorari directed to that portion of the order which reversed petitioner-cross-respondent’s conviction for resisting arrest without violence, no departure from the essential requirements of law has been shown.

Accordingly, the petition for certio-rari is hereby granted and the petit larceny conviction is quashed. Cross-petition for certiorari is denied.

Petition for certiorari granted; cross-petition denied.

      . The reckless driving conviction is not a part of this petition for certiorari and as such, will not be reviewed by this court.


text:
    WACKENHUT PROTECTIVE SYSTEMS, INC., Appellant, v. KEY BISCAYNE COMMODORE CLUB CONDOMINIUM I, INC., a non-profit corporation, Appellee.
    No. 77-946.
    District Court of Appeal of Florida, Third District.
    Oct. 25, 1977.
    Preddy, Kutner & Hardy and Charles W. Rice and Barry A. Pemsler, Miami, for appellant.
    Snyder, Young, Stern, Barrett & Tan-nenbaum and Thomas M. Carney, Miami, for appellee.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   PER CURIAM.

The question here on appeal concerns the alleged error of the trial court in denying the Plaintiff’s Motion for Leave to Amend where the denial was predicated primarily on the fact that nearly two and one-half years had elapsed from the filing of the third party complaint to the time of the motion to amend (Fla.R.Civ.P. 1.190).

Appellant Wackenhut Protective Services, Inc., as plaintiff, filed its complaint for damages arising out of a breach of contract action against Fisher Development Corporation and Grandlich Development Corporation on September 10,1974. On October 24, 1974, the defendants answered and thereafter, on October 29, 1974, filed their third party complaint for indemnity against the appellee herein, Key Biscayné Commodore Club Condominium I, Inc. On December 3, 1974, the appellee, as third party defendant, filed its answer to the third party complaint and counterclaimed. From April 9, to June 16, 1975, all activity in the case was continued due to the legislative duties of the attorney for the third party defendant. On June 20, 1975, the third party defendant filed its motion for summary judgment against the defendants and a hearing date in August, 1975, was set, but was cancelled. Again, due to the legislative duties of the attorney for the third party defendant, the case was continued for a second time on February 27,1976. The third party defendant’s motion for summary judgment was then rescheduled for July 1, 1976. However, on July 2,1976, a bankruptcy judge of the United States District Court entered an order staying all proceedings involving the defendants in this case and on July 9, 1976, Notice of Entry of Automatic Stay was filed with the circuit court by the defendants’ attorney.

Finally, on March 18, 1977, the appellant (plaintiff) filed its Motion for Leave to Amend to add the third party defendant as a party defendant. Six days later, the trial judge recused himself and the following day, March 25, 1977, the successor judge heard argument on the motion for leave to amend and, thereafter, on March 31, 1977, entered an order denying the motion. A motion for reconsideration of the motion to amend was filed by the plaintiff on April 14, 1977, and on April 27, 1977, the trial judge entered his order denying the motion. This appeal followed.

The March 31, 1977, order of the trial court reflects a finding that “. . . the Plaintiff has had ample opportunity to timely amend its Complaint to make any claims it may have against the Third Party Defendant and the Plaintiff has given no adequate explanation for its delay in doing so . . . ” Based on this delay, the trial court denied the plaintiff’s motion for leave to amend.

Florida case law applies a test of prejudice to the defendant as the primary consideration in determining whether the plaintiff’s motion to amend should be granted or denied. See Atlantic Coast Line Railroad Company v. Feagin, 93 Fla. 1015, 113 So. 89 (1927); Carroll v. Gore, 106 Fla. 582, 143 So. 633 (1932); and Penn Cork & Closures, Inc. v. Piggyback Shippers Assoc, of Florida, Inc., 281 So.2d 46 (Fla.3d DCA 1973). Under the Federal Rules of Civil Procedure, from which Florida patterned its Rules of Civil Procedure, the test also is that of prejudice to the defendant. See Deakyne v. Commissioners of Lewes, 416 F.2d 290 (3d Cir. 1969).

In the Penn Cork & Closures, Inc., case, supra, at 47, this court stated:

* * * * * *
“The test of finding that point wherein the moving party has abused his privilege to amend is not a mere counting up of the number of chances that he has already been given. The test must go more to the substance of the error and the possible prejudice that might result to the non-moving party.”

Our review of this appeal reveals that at most the appellee would suffer only slight, and certainly not substantial, prejudice as a result of the amended complaint. As the appellant points out, the issues and facts alleged in the amended complaint are the same ones the appellee would confront in defending against the third party complaint, and inasmuch as the defendants sought indemnity against the appellee, the latter was already defending the issues of ratification of contract, breach of contract and damages for breach as presented in the amended complaint. Finally, the appellee participated in all discovery and court proceedings in this cause and was familiar with the facts as well as the issues. Furthermore, we note that the intervening bankruptcy proceedings would not substantially prejudice the appellee under the amended complaint.

There being no substantial prejudice to the appellee as a result of the amended complaint, and there being a policy under the Florida Rules of Civil Procedure of liberality in granting motions to amend complaints, we reverse the trial court’s denial of the plaintiff’s motion to amend its complaint and we remand the cause to the trial court to grant the plaintiff leave to amend its complaint in order to add the appellee as a named defendant.

Reversed and remanded.

      . “(a) Amendments. A party may amend his pleading once as a matter of course at any time before a responsive pleading is served or if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may so amend it at any time within twenty days after it is served.

        Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party and leave shall be given freely when justice so requires.

      * * * * * *
      “(e) Amendments Generally. At any time in furtherance of justice, upon such terms as may be just, the court may permit any process, proceeding, pleading or record to be amended or material supplemental matter to be set forth in an amended or supplemental pleading. At every stage of the action the court must disregard any error or defect in the proceedings which does not affect the substantial rights of the parties. [Emphasis Added]

      . No question has been raised by the parties with regard to the running of any statute of limitations.


text:
    Walter PEAVY, Jr., Appellant, v. STATE of Florida, Appellee.
    No. EE-471.
    District Court of Appeal of Florida, First District.
    Oct. 26, 1977.
    Michael Minerva, Public Defender, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., Tallahassee, for appellee.
   SMITH, Judge.

A conviction for auto theft. Although the trial court charged the jury that each material allegation of the information must be proved, and that those allegations included the defendant’s “intent to permanently deprive or defraud the true owner of the property of the use and benefit thereof,” the court did not repeat “permanently” when defining larceny. There was no objection. There was no fundamental error. Humphries v. State, 320 So.2d 843 (Fla. 4th DCA 1975), cert, den., 333 So.2d 463 (Fla. 1976).

AFFIRMED.'

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


text:
    William George DRESSER, Appellant, v. Brenda Wilsey DRESSER, Appellee.
    No. FF-212.
    District Court of Appeal of Florida, First District.
    Oct. 26, 1977.

      Harold B. Haimowitz, Jacksonville, for appellant.
    Frank M. Scruby of Scruby, Yonge & Cobb, P.A., Orange Park, for appellee.
   SMITH, Judge.

We have reviewed the merits of this appeal on money issues in a marriage dissolution proceeding and find no error. The judgment therefore will be affirmed.

As is customary in these eases, the appel-lee wife timely filed, with her brief on the merits, a motion for allowance of fee money on account of the past and prospective appellate services of her attorney. Fla.App.R. 3.16 e. The motion was in simple terms, requesting the desired relief but making no recitation of supporting grounds. In this the motion is typical of motions which this court has frequently granted when deciding appeals favorably to the appellee wife. With some exceptions not reflected by published opinions, this court until recently has favorably considered similar motions by the prevailing appellee when it appeared from the record that the trial court awarded fee money to the appellee in the judgment of dissolution. We also have awarded fee money to the prevailing appellant when, in the dissolution judgment, the trial court awarded fee money to that party. Our unstated rationale for that practice was as described in Ludemann v. Ludemann, 317 So.2d 860, 861 (Fla. 4th DCA 1975): that the determination of whether to award fee money for appellate services in dissolution litigation is a prerogative of the appellate court; that, as in the trial court, the controlling circumstances are “one party’s need for, and the other party’s ability to pay, reasonable attorney’s fees”; and that we may assume, in the absence of a contrary showing, that the disparity in economic ability which supported the trial court award has continued through the appellate process. Almost invariably we have remanded cases to the trial court to set the amount of the award upon consideration of the appropriate factors in the attorney’s services.

Our increasing concern with the reliability of assuming continued economic disparity between the parties during the appeal led a panel of this court to depart from our prevailing practice in Burns v. Snedaker, 348 So.2d 597 (Fla. 1st DCA 1977). Relying on prior decisions which were concerned with the adequacy of allegations and proof of the requisites for fee money awards in trial courts, the court stated:

“Although appellee has requested attorney^ fees, his motion fails to allege his need or appellant’s ability to pay. See Johnson v. Johnson, 346 So.2d 591 (Fla. 1st DCA 1977) . . . and Patterson v. Patterson, 348 So.2d 592 (Fla. 1st DCA 1977) . . . . Therefore, although ap-pellee prevails in the appeal there is no basis for our determination as to whether or not an attorney’s fee may be properly allowed. . . . Accordingly, the motion for attorney’s fees is denied.” 348 So.2d at 598.

Adherence to the Burns opinion would, of course, require denial in this case of appel-lee’s motion. However, we have reconsidered the implications of the Burns opinion. Although we are reluctant to assume that any disparity in the parties’ financial abilities at the time of dissolution has continued until disposition of the appeal, we recognize it is impractical and inappropriate for an appellate court to entertain and resolve issues concerning the relative financial abilities of the parties at the time an appellate motion for allowance of fees is filed, or when a response may be seasonably filed, or when the case is submitted by argument or otherwise, or when the appellate decision is rendered. Short of taking testimony or conducting a trial by affidavits, we cannot determine the issues that adherence to Burns will generate.

We therefore recede from Burns insofar as that decision calls for factual representations by the movant concerning circumstances which may justify an appellate award of fee money. In this case and henceforth we shall undertake to dispose of such motions without either indulging problematic assumptions or undertaking a trial of new issues on appeal. When we consider a fee money award inappropriate regardless of the parties’ financial circumstances, we shall exercise our prerogative to deny such motions. But when the trial court has awarded fee money to the moving party and it appears that a further award on account of appellate services is appropriate, assuming the relative financial needs and abilities of the parties are essentially the same as at final judgment, we shall provisionally grant the motion for allowance of fee money and remand to the trial court both the question of the amount of a reasonable fee for the appellate services of the movant’s lawyer and the question of what part of that amount, if any, should be paid by the other party because of a present disparity in ability to pay. Valparaiso Bank & Trust Co. v. Sims, 343 So.2d 967, 970 (Fla. 1st DCA 1977).

A provisional award is appropriate in the case now before us. The judgment of dissolution entered August 20, 1976 required adjustments in the parties’ economic affairs which tended to lessen the husband’s substantially greater ability to pay and the wife’s correspondingly greater need. The judgment awarded $500 on account of services to the wife’s lawyer in the circuit court. Thereafter an issue arose in implementing the final judgment and the trial court determined that issue favorably to the wife, leading to this appeal by the husband on March 15, 1977. The appellee wife has now prevailed on the appeal and there are no circumstances before us which militate against an award of fee money to her. The dissolution judgment affords a predicate for finding that there was disparity in the parties’ need and ability to pay at that time; but the evidence is stale. We therefore provisionally grant the motion of appellee wife for a reasonable award on account of her lawyer’s services on appeal, but remand the case for trial court determination of the amount of a reasonable fee for such services and the portion of it, if any; that appellant husband should be required to pay because of continuing disparity in the parties’ needs and abilities to pay.

The judgment on which the appeal was taken is AFFIRMED. Appellee’s motion for allowance of fee money is provisionally granted and the case is remanded for further proceedings.

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

      . We need not and do not here decide that fee money for appellate services can never be awarded the losing party who otherwise shows the propriety of such an award. See Phifer v. Phifer, 124 Fla. 223, 168 So. 9 (1936); Valparaiso, 343 So.2d at 971.


text:
    Perry L. TAYLOR, Appellant, v. STATE of Florida, Appellee.
    No. FF-411.
    District Court of Appeal of Florida, First District.
    Oct. 26, 1977.
    Michael J. Minerva, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Michael H. Davidson, Asst. Atty. Gen., for appellee.
   PER CURIAM.

The judgment is AFFIRMED. Since the sentence exceeds that allowable for a felony of the second degree, the sentence is VACATED and the case REMANDED for imposition of a proper sentence. Defendant need not be present.

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


author: McNULTY, Acting Chief Judge.

text:
    Frank C. HAIGHT, Appellant, v. Dorothy P. HAIGHT, Appellee.
    No. 76-1714.
    District Court of Appeal of Florida, Second District.
    Oct. 26, 1977.

      Robert Jack McGill of Korp, Wheeler & McGill, P. A., Venice, for appellant.
    Iris Y. Bell, Englewood, for appellee.
   McNULTY, Acting Chief Judge.

In this appeal from a dissolution of marriage judgment appellant/husband challenges the award of the marital home to appellee/wife as lump-sum alimony and also the award of periodic alimony to the wife. By cross-assignments of error, ap-pellee/wife attacks the refusal of the trial court to find a special equity in the wife in the husband’s interest in the jointly-owned marital home and in certain jointly-owned bonds. We affirm the trial court as to its refusal to find a special equity in favor of the wife in the aforesaid properties, but we reverse the trial court’s awards of lump-sum and periodic alimony and remand for further proceedings on the issue of alimony.

This case has a somewhat unusual though not necessarily an untoward procedural history. Appellant/husband filed a petition for dissolution of marriage, and ap-pellee/wife filed an answer and counterpet-ition. The wife’s counterpetition contained no specific prayer for alimony, although it did contain prayers, inter alia, that the wife be awarded sole title to the jointly-owned marital home, special equities in various items of persona] property, either owned jointly or in the sole name of the husband, and payment of child support for the minor child of the parties.

Subsequently, this cause came for final hearing and at the opening thereof counsel for the husband announced for the record several stipulations of the parties which are not material to this discussion. The court interjected questions, to which counsel for the wife responded, and then the husband’s attorney stated, “No prayer for alimony. So the only issue is special equity and custody and child support.” The wife’s attorney did not respond to this statement, neither indicating agreement nor voicing any objection thereto.

The final hearing then proceeded to its conclusion, whereupon the trial court stated that he found no special equity in favor of the wife in the marital home (valued at approximately $25,000). Further, he indicated that he would award the husband’s half interest in the jointly-owned marital home to the wife as lump-sum alimony, as well as periodic alimony of $150 monthly and also certain child support. Counsel for the husband at once objected that the wife had not prayed for periodic or lump-sum alimony, to which the trial court responded that “the equities are with her and the court is awarding her these.”

Thereafter, the wife filed a motion to amend the pleadings to conform to the evidence, pursuant to Fla.R.Civ.P. 1.190(b), to include a specific request for alimony. The husband filed a motion to strike the wife’s motion to amend the pleadings, asserting that the parties had stipulated that alimony was not an issue herein. The trial court granted the wife’s motion and allowed amendment to her pleadings to include specific requests for periodic and lump-sum alimony. The court then entered final judgment dissolving the marriage and made the above-mentioned alimony awards to the wife.

Considering the procedural history of this case in conjunction with the evidence presented at the final hearing, we are of the view that the determination of this question is controlled by Fla.R.Civ.P. 1.190(b) which provides in part:

. .If the evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended to conform with the evidence and shall do so freely when the merits of the cause are more effectually presented thereby and the objecting party fails to satisfy the court that the admission of such evidence will prejudice him in maintaining his action or defense upon the merits.” (Emphasis added.)

The very terms of the above-quoted rule provide that amendments to the pleadings should be freely granted; and numerous cases have held that great liberality should be allowed whenever a party seeks to amend his pleading. Moreover, it appears well settled that the trial court’s decision to allow an amendment to the pleadings will not be disturbed on appeal in the absence of a demonstrated abuse of discretion. We see no abuse shown here. Accordingly, it is our view that the trial court acted correctly in allowing the amendment.

Additionally, we are not convinced by the husband’s argument that the purported stipulation of the parties had precluded consideration of the issue of alimony. The purported stipulation was made by pa-rol before the court and promptly made a part of the record. Thus, it meets the requirements of Fla.R.Civ.P. 1.030(d), regarding parol agreements. However, even if we assume arguendo that the stipulation is a valid one, the substance of the stipulation added nothing to the mere fact, discussed above, that the original counterpetition of the wife contained no specific prayer for alimony. The stipulation, then, in no way serves to alter the propriety of the trial court’s subsequent discretionary decision to allow the wife to amend her pleadings.

In light of the procedural posture of this ease regarding the issue of alimony, the husband may understandably have been misled on the issue and was undoubtedly denied the opportunity to explore the wife’s resources insofar as they may bear on her need for, and thus entitlement to, alimony at all or, if so, in what amounts and form. A hearing should be held on this. Thus, we reverse the portion of the final judgment awarding lump-sum and periodic alimony to the wife and remand for such a hearing.

In view whereof, the judgment appealed from should be, and it is hereby, affirmed in part; reversed in part; and the cause is remanded for further proceedings not inconsistent herewith.

GRIMES and SCHEB, JJ., concur.

      . See, e. g., Gull Construction Company v. Hendrie, 271 So.2d 775 (Fla.2d DCA 1973); Robbins v. Grace, 103 So.2d 658 (Fla.2d DCA 1958).

      . See McSwiggan v. Edson, 186 So.2d 13 (Fla.1966); Houston Texas Gas & Oil Corporation v. Hoeffner, 132 So.2d 38 (Fla.2d DCA 1961).


text:
    Ludmila R. ASHBURN, Appellant, v. Milton S. ASHBURN, Appellee.
    No. 77-244.
    District Court of Appeal of Florida, Second District.
    Oct. 26, 1977.
    Joseph R. Park, Clearwater, for appellant.
    Jerry H. Center of Cobbey, Jendrynski & Center, Clearwater, for appellee.
   PER CURIAM.

Appellant/respondent, Ludmila R. Ash-burn, appeals an order modifying a final judgment dissolving her marriage with ap-pellee/petitioner, Milton S. Ashburn.

Upon review of the record, which we believe is adequate to decide the legal issue presented here, and after consideration of the briefs and oral arguments of counsel for the respective parties, we hold that the trial court erred in light of existing Florida case law in reducing the alimony payments awarded to appellant from $400 per month to $300 per month. The final judgment of dissolution of marriage provided in pertinent part:

4. Petitioner shall pay $400.00 per month to respondent as alimony, until the respondent remarries, dies, or until there is a substantial change of circumstances, in which event the amount of alimony may be modified or, if appropriate, terminated. Alimony payments shall commence on November 1, 1975, and shall be paid on the first of each month thereafter.
6. The parties shall sell, as soon as practicable, the marital house located at 2307 Vanderbilt, Clearwater, Florida. The respondent, however, shall not be required to surrender possession of said house prior to January 1976, and any sale of said house shall be made subject to this condition. Until the respondent surrenders possession of said house, she shall pay all mortgage payments, taxes, and insurance expense on said house that accrue after the date of this final judgment. 1975 taxes shall be paid from the net proceeds of the sale of the house, before the proceeds are divided between the parties. If either party pays said taxes prior to closing, he or she shall be reimbursed from the proceeds of said sale.

The question for this court to decide is whether, as stated in the final judgment, appellee has demonstrated a substantial change in circumstances. The burden to do this was upon appellee. We think he has not carried it. From reading the provisions of the final judgment the parties were well aware, as was the trial court, that the sale of the marital home was contemplated after January 1976. In Howell v. Howell, 301 So.2d 781 (Fla. 2d DCA 1974) we held that a change of circumstances, that is receipt of the proceeds from the sale of the marital home, is not a substantial change if it had been contemplated in the final judgment. Therefore, the order appealed is modified by deleting paragraph 2 thereof which provided:

2. The husband’s Motion for Modification is granted to the following extent and for the reason that the wife is to receive, or has received, approximately $8,000 from the sale of the former marital home:
Paragraph 4 of the Final Judgment entered October 22, 1975 is hereby modified to read as follows:
Petitioner (MILTON S. ASHBURN) shall continue to pay the sum of $400.00 per month to respondent (LUD-MILLA [sic] R. ASHBURN) as alimony until January 1,1977, at which time the alimony shall be reduced to $300.00 per month as alimony, until the respondent remarries, dies, or until there is a substantial change of circumstances, in which event the amount of alimony may be modified or, if appropriate, terminated. The court shall recall petitioner’s Motion for Modification after July 1, 1977 for a review and determination of appropriate order at that time.

At oral argument we were informed by counsel that appellant had received the $8,000 referred to in the above order.

The order modifying the final judgment dissolving the marriage of the parties is reversed as to the issue before us and affirmed in all other respects.

AFFIRMED in part and REVERSED in part.

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


author: SCHEB, Judge.

text:
    Alfred J. WICKHAM and Edith Wickham, Appellants, v. FAMCO SERVICES, INC., Appellee.
    No. 77-551.
    District Court of Appeal of Florida, Second District.
    Oct. 26, 1977.

      Lester W. Jennings, Miami, for appellants.
    Shepherd D. Johnston of Smathers & Thompson, Miami, for appellee.
   SCHEB, Judge.

The Wickhams appeal and Famco Services cross-appeals from the trial court’s judgment wherein Famco was denied re-plevin of a mobile home occupied by the Wickhams, yet was awarded “rent” from the Wickhams for the use of the mobile home. We find the judgment totally inconsistent. We therefore reverse and remand for a new trial.

The Wickhams purchased a mobile home from a dealer under a retail installment contract. The dealer then assigned the contract to Famco. In September 1973 Famco sought to replevy the mobile home, alleging that the Wickhams had failed to make payments as required by the contract. The Wickhams answered with a general denial and affirmative defenses, but did not file a counterclaim.

After several hearings, the trial court entered an order on November 18, 1976 (nunc pro tunc January 26, 1974), denying Famco’s requested relief but granting Fam-co “rent” of $125 per month from the time of the Wickhams’ alleged delinquency (April 2, 1973) until such time as they should vacate the mobile home. The Wick-hams, in turn, were granted a setoff of $1,250, representing their initial down payment under the contract. Thereafter, on February 23, 1977, the trial judge entered a final judgment in favor of Famco for $4,625, representing the “rent” due for the period of the Wickhams’ occupancy less their setoff.

Replevin actions in this state are governed by Chapter 78, Florida Statutes. The issue to be determined in a replevin action is whether the plaintiff has the right to possession of personal property which is being wrongfully withheld by the defendant. Section 78.055, Florida Statutes (1973). If the plaintiff prevails on this issue, damages incident to the wrongful withholding of possession may then be assessed. Section 78.01, Florida Statutes (1973).

Even though the trial judge denominated the award in favor of Famco as “rent” we must interpret it as damages for wrongful detention, since no landlord and tenant relationship could be implied from the context of this vendor-vendee contract. Here the court by its order explicitly found Famco had no right to possession; yet in finding Famco entitled to “rent” implicitly held Famco had been wrongfully deprived of possession.

In effect, the trial judge attempted to accomplish a rescission of the contract; the Wickhams would be reimbursed for their down payment, but charged a reasonable sum for use and occupancy of the mobile home until they vacated it. This was clearly improper as neither of the parties sought rescission in the pleadings. On oral argument counsel for both parties recognized there was no basis for the judgment against the Wickhams; however, the Wick-hams forcefully argued that since Famco’s request for a writ of replevin was within the scope of the pleadings it was properly denied, and therefore this denial must be upheld. In this instance, we cannot agree.

Though courts will endeavor to uphold a judgment if possible, this cannot be done when a trial court’s conclusions of law are antagonistic. 89 C.J.S. Trial § 636 (1955).

Appellate courts in other jurisdictions when faced with a trial court’s judgment containing inconsistent conclusions of law have found it necessary to invalidate the judgment. See, e. g., Hawkins v. Teeples & Thatcher, Inc., 267 Or. 151, 515 P.2d 927 (1973), where the trial court found that both the plaintiff and defendant could recover for breach of the same contract; and Wenzel v. Wenzel, 283 S.W.2d 882 (Mo.App.1955), where the trial court found there had been no valid marriage, then proceeded to grant dissolution.

We cannot resolve the obvious inconsistency, i. e., the Wickhams would have the right to retain possession of the mobile home yet also be liable for damages for their wrongful possession of it. Accordingly, we vacate the order and judgment and remand this cause for a trial on the merits. The trial court shall grant leave to the parties to make any appropriate amendments to their pleadings.

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