author: MELVIN, Judge. ERVIN, Acting Chief Judge,

text:
    William B. MILLS, as Trustee under the Last Will and Testament and Codicils thereto of Alfred I. duPont, Deceased, v. Edward BALL, and the Florida First National Bank of Jacksonville, as Trustees under the Last Will and Testament and Codicils thereto of Alfred I. duPont, Deceased, Florida National Associates, Inc., a Florida Corporation, and the Florida National Banks of Florida, Inc., a Florida Corporation, Appellees.
    No. JJ-270.
    District Court of Appeal of Florida, First District.
    June 6, 1979.
    Rehearing Denied July 6, 1979.
    James F. Valenti, Jr.,. Christine Rieger Milton and John H. Wilbur, of Milam & Wilbur, Jacksonville, for appellant.
    Frederick H. Kent, of Kent, Sears, Dur-den & Kent, E. Earle Zehmer, of Bedell, Bedell, Dittmar & Zehmer, Jacksonville, Richard R. Paige, of Paige & Catlin, Miami, F. J. Tassone, A. August Quesada, Jacksonville, for appellees.
   ON PETITION FOR REHEARING GRANTED

MELVIN, Judge.

Appellant-Mills (Mills) appeals an order dismissing his second amended complaint with prejudice.

Mills is a trustee of the testamentary trust established under the Last Will and Testament of Alfred I. duPont. Appellees-Edward Ball (Ball) and The Florida First National Bank of Jacksonville (First National) are also trustees. In 1973, the Board of Governors of the Federal Reserve System (Board) ordered the duPont Trust to divest itself of 2,330,638 shares of the common stock of appellee-Florida National Banks of Florida, Inc. (Florida National). Florida National is a holding company and the sole owner of the corporate trustee, First National. Pursuant to the Board’s order, the trustees entered into a sale agreement with appellee-Florida National Associates, Inc. (FNA). Simultaneously with the execution of the sale agreement, the trustees entered into an irrevocable living trust agreement transferring the stock in trust to the People’s First National Bank of Miami Shores. Under the terms of the stock trust agreement, the stock was to be held by the Miami bank until purchased by FNA or another purchaser designated by FNA.

The sale agreement provided for FNA’s purchase price to be the bid price per share for the stock as reported by the National Association of Securities Dealers in its over-the-counter quotation sixty days after the day on which sale of the stock is approved by the Board of $18.00 whichever was greater. Pursuant to the terms of the sale agreement, FNA had the option to refuse to purchase the stock, and, if it chose to do so, to designate to the Miami bank a substitute purchaser of the stock after, approval of that purchaser by the Board. If FNA made a designation of an approved purchaser, then the sale price of the stock was to be not less than that which FNA was obligated to pay for the stock. If FNA failed to designate a purchaser, the stock was to be sold at a public sale.

The officers and directors of FNA subsequently determined that the corporation would be financially unable to purchase the stock. Pursuant to the option to designate a substitute purchaser, FNA began, during 1977, to consider offers from interested parties concerning the purchase of Florida National’s stock. On August 22, 1977, Florida National itself made an offer of $18.00 per share, payable in cash, to FNA to purchase its shares. Another offer was submitted to FNA on August 25, 1977, from ComBanks Corporation, another holding company, stating a purchase price of $18.50 per share, payable in cash, or, in the alternative, a purchase price of $19.00 per share to be paid over a two year period. On that same date, FNA submitted to the Board the offer made by Florida National. FNA did not submit for the Board’s consideration either of the two alternative offers made by Com-Banks, although both were higher than the offer made by Florida National. On September 21, 1977, the Board approved FNA’s designation of Florida National as a purchaser of its own shares. FNA then designated to the Miami bank The Florida National Banks of Florida, Inc., as the purchaser of the stock, and the sale was consummated on November 23,1977, at a price of $18.00 per share.

Subsequent to the sale of the stock, Mills filed his second amended complaint. Count I of that complaint seeks damages against Ball, the corporate trustee, First National, FNA, and the holding company, Florida National, based on the alleged breach of the fiduciary obligations imposed upon each of those parties under standard principles of applicable trust law. Count II seeks damages against FNA and Florida National Bank based on the alleged negligence of FNA, and the vicarious liability of Florida National therefor, arising out of the sale of the stock. The last count seeks damages against Ball and Florida National based on their alleged tortious interference with the contractual relationship which existed between the trust and FNA. The basis of the law suit concerns the loss to the trust of $1,165,319 resulting from the sale of the stock to Florida National for $.50 per share less than the cash offer submitted by Com-Banks.

It is too well settled to require citation that a motion to. dismiss admits the well pleaded allegations of the complaint. The facts properly pleaded are taken as true.

However, notwithstanding those legal principles, appellees submit that a motion to dismiss does not admit allegations that are contradicted by records of which the trial court may take judicial notice. Byrne Realty Co. v. South Florida Farms Company, 81 Fla. 805, 89 So. 318, 327 (Fla.1921); Freimuth v. State, 272 So.2d 473 (Fla.1972). Therefore, appellees urge us to take judicial notice of the statements of fact made by the Board in its “statement in connection with order approving designation of purchaser of shares of Florida National Banks of Florida, Inc.”. 42 Fed.Reg. 54, 872 and the Federal Bank Holding Company Act, 12 U.S.C. § 1842.

Primarily, appellees urge that Florida National’s offer was the only bona fide offer presented to the lower court because the record in this proceeding shows that ComBanks’ offer was not a bona fide offer. Specifically, appellees contend that 12 U.S.C. § 1842 made a purchase by Com-Banks impossible.

Subsection (a) of that statute requires that before one bank holding company can purchase more than 5% of the outstanding shares of another bank, holding company, prior approval of the Federal Reserve Board must be obtained. Appellees state that the Florida National stock involved was approximately 25% of the then outstanding stock of Florida National. Appel-lees also submit that the name “ComBanks” used in the complaint indicates that it was a bank holding company. Although the allegations of the complaint do not make that fact crystal clear, appellees contend and appellant Mills does not deny that Com-Banks was a bank holding company and such was established at a hearing before the trial court in September, 1977.

Further, appellees argue that according to subsection (b) of 12 U.S.C. § 1842, once an application for approval has been filed with the Board, the Comptroller of Currency has 30 days after the Board gives notice within which to comment upon the acquisition. If the Comptroller disapproves, the Board must, within three days, set a public hearing which would have to commence not less than ten nor more than thirty days thereafter.

Accordingly, appellees conclude that since ComBanks made its offer August 25, 1977, and according to the sale agreement the deadline for effecting a private sale of the Florida National stock was September 22, 1977, it was legally impossible for Com-Banks to make a purchase in that time period.

On the other hand, appellant states that 12 U.S.C. § 1842(b) provides for emergency situations by stating: “The views and recommendations shall be submitted within thirty calendar days of the date on which notice is given, or within ten calendar days of such date if the Board advises the Comptroller of the Currency or the State supervisory authority that an emergency exists requiring expeditious action.” (emphasis supplied) Therefore, appellant submits that if FNA designated and submitted ComBanks’ offer to the Federal Reserve Board on August 25, 1977, when it was made, along with the offer of Florida National, there would have remained enough time for the Board to have acted to approve or deny the ComBanks’ offer. Accordingly, appellant submits that the trial court could not determine as a matter of law what the Federal Reserve Board might or might not have done given the opportunity to rule upon the ComBanks’ offer.

The position thus asserted by the appellant is plagued with the problem that the provisions referred to in 12 U.S.Code, Section 1842(b) were not the law either on August 25, 1977, or September 23, 1977. Such provisions became the law on November 16, 1977. Therefore, the same may not be considered in the disposition of the case now before this court. We further note that under the provisions of 12 U.S.Code, Section 1842(b), which were in effect during all dates material to the disposition of this question, it was the responsibility of Com-Banks to file its application with the Board rather than to depend on FNA to file such application for it.

The applicable provisions of Section 1842(b) provided for a mandatory thirty day waiting period, upon receiving any application for approval and notice thereof having been given to the Comptroller of the Currency. During this time the Comptroller of the Currency would prepare his views and recommendations for the consideration of the Board. Obviously ComBanks’ offer of August 25, even if considered to have been legally tendered when the same was filed with FNA, was submitted on such a late, date as to make it impossible to be processed and accepted by the dead line of September 22. We do not find any authority in the Bank Holding Company Act that would authorize the Federal Reserve Board to reduce any of the time periods affirmatively required under the act then in effect.

All of the charges of alleged misconduct made by the appellant against the appellees (trustees) are anchored directly or indirectly to the alleged duty of the trustees to submit ComBanks’ late offer. The offer having come at a time not within the framework of the applicable provisions of the Federal Code, was one that was legally impossible to be processed. Therefore, the appellees did not breach any duty with reference to this matter. The trial court was imminently correct in dismissing with prejudice the second amended complaint. The final judgment appealed from is AFFIRMED.

MASON, ERNEST E., Associate Judge, concurs.

ERVIN, Acting C. J., specially concurs.

ERVIN, Acting Chief Judge,

specially concurring.

I agree that the appellants’ second amended complaint was properly dismissed. The sale agreement between FNA and First National provided that FNA could purchase the Florida National stock or designate a purchaser. One day before the deadline, FNA designated Florida National as the purchaser at a price within the terms of the sale agreement. Nothing in the agreement stated that FNA was to be responsible for obtaining approval of purchase offers under Title 12, U.S.C. § 1842, and Combanks is surely chargeable with knowledge of federal statutes regulating banks and holding companies.

I do not agree with the majority, however, that Section 1842(b) provides a mandatory 30-day period before the Board may approve of a purchase. The section merely says that the Comptroller has 30 days “within which” to submit recommendations to the Board. I see no statutory proscription on the comptroller’s ability to make recommendations within less than 30 days. Approval of Florida National’s acquisition was had within 27 days.


source: Caselaw Access Project

author: LETTS, Judge.

license: Public Domain

text:
    DIVISION OF ADMINISTRATION, State of Florida, DEPARTMENT OF TRANSPORTATION, Appellant, v. Mike TSALICKIS and Trudie Jerkins, Appellees.
    No. 78-720.
    District Court of Appeal of Florida, Fourth District.
    June 13, 1979.

      Alan E. DeSerio, Appellate Section, Atkinson Edwin Pooser, IV, and H. Reynolds Sampson, Gen. Counsel, Tallahassee, for appellant.
    Ronald E. Lee of Law Offices of Ronald E. Lee, and Harvey J. Garod of Law Offices of Reasbeck & Fegers, P. A., Hollywood, for appellees.
   LETTS, Judge.

Following an amended motion to assess interest filed some ten months after a final judgment the court so ordered. We reverse.

At issue here is a condemnation suit which resulted in the entry of a final judgment upon joint motion of the parties which final judgment said in part,

“. . .it appearing to the Court that the parties are authorized to enter into such Motion, the Court finding that the compensation to be paid by the Defendant is full, just, and reasonable for all parties concerned, and the Court being fully advised in the premises, it is ADJUDGED that the Plaintiffs Mike Tsaliekis and Trudie Jerkins do have and recover of and from the Defendants the sum of Seven Thousand and °°/ioo ($7,000.00) Dollars in full payment for the property (Designated Parcel No. 183) taken and for damages resulting to the remainder if less than the entire property was taken and for all other damages of any nature . .

Some ten months after the entry of the above quoted final judgment, the property owner filed a motion to assess interest on the award and for additional attorney’s fees. The interest claimed, dated back to the date of taking (1970) all the way through to the final judgment, dated March 28th, 1977 and beyond until the date of payment. The trial court granted this motion and awarded $3,050 in interest on the $7,000 award from March 1, 1970 on up through the final judgment to the date of payment some 60 days later. This was error.

We would commence by pointing out that the Circuit Court had no jurisdiction whatsoever to entertain this motion some ten months after the final judgment. It is true that this particular point is not raised on appeal, however, since this is a question of jurisdiction, we will address it.

In addition to the language quoted above, the final judgment only provided that “attorney’s fees and costs will be determined by the court at a hearing to be set upon motion.” Pursuant thereto, the attorney’s fees and costs were awarded some 30 days later. The final judgment contained no other provisions whatever for continuing jurisdiction. This being so, it was clearly improper for the property owner to walk into the courthouse some ten months later and file a motion for additional interest. Under Florida Rule of Civil Procedure 1.540 this could not be done, unless the motion filed attempted to allege clerical mistakes, mistakes by inadvertence, excusable neglect, newly discovered evidence or fraud, all in accordance with Rule 1.540. No Rule 1.540 grounds were alleged.

The foregoing effectively disposes of this appeal, but while in the process we see fit to address the point raised which claims that the trial court erred in awarding interest subsequent to a consent judgment entered into by the parties.

It is clear to us that the parties stipulated by joint motion, to the entry of the final judgment the wording of which settled the entire controversy for the amount stated, with no provision for interest. U. S. v. 71,500 Square Feet, Etc., 69 F.Supp. 810 (S.D.New York 1947). The wording in the final judgment, stipulated to by the parties, stated that the $7,000 amount was “full, just, and reasonable” and was “in full payment for the property.” See Behm v. Division of Administration, 366 So.2d 828 (Fla. 4th DCA 1979). See also In U. S. v. Certain Land in City of St. Louis, Etc., 58 F.Supp. 305 (E.D.Mo.1944). Were we to decide that interest was still assessable, our decision would constitute a holding that interest is always due as a matter of law despite any agreement between the parties. The judgment here, in effect, is a consent final judgment and as such the wording is a binding contract. Curtiss-Wright Corporation v. Exhaust Parts, Inc., 144 So.2d 822 (Fla. 3d DCA 1962).

This opinion should not be construed as being contrary to the provisions of Section 74.061, Florida Statutes (1977) and we are aware that that statute provides that interest be allowed from the date of surrender of possession to the date of payment. However, the statute is not applicable here in view of the above discussions pertaining to the agreed upon provisions of the final judgment.

Lastly however, we likewise do not hold that no interest whatever need be paid on this judgment inasmuch as the provisions of Section 55.03, Florida Statutes (1977) will apply from the date of the final judgment on March 28th, through the date of payment thereof, some 60 days later.

REVERSED IN ACCORDANCE HEREWITH.

CROSS and MOORE, JJ., concur.


author: MILLS, Acting Chief Judge.

text:
    Phillip VAN ZANT, Appellant, v. STATE of Florida, Appellee.
    No. KK-469.
    District Court of Appeal of Florida, First District.
    June 15, 1979.
    Rehearing Denied July 19, 1979.

      M. Howard Williams and Timothy D. Harley and L. S. Selvey, II of Williams, Gibson & Harley, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Wallace E. All-britton, Asst. Atty. Gen., for appellee.
   MILLS, Acting Chief Judge.

On 24 June 1976, Ruthie Taylor was killed in her home. A jury convicted Van Zant, her on-again-off-again boyfriend, of first degree murder and burglary of a dwelling in connection with her death.

At the trial the State, over Van Zant’s objection, introduced two exhibits into evidence. The exhibits were a probable cause affidavit and a sworn complaint executed by Taylor on 6 May 1976.

In the probable cause affidavit, Taylor alleges that on 4 May 1976, Van Zant used a key to force his way into her home, argued with her, threw her on the bed, pointed a shotgun at her and said he was going to kill her. Taylor states she then convinced Van Zant to put the gun down and leave. In the same affidavit, Taylor claimed that Van Zant returned to her home on 6 May, threatened her, and then tried to take his own life by slashing his wrists with a knife.

In the complaint, Taylor charges Van Zant with assaulting her with a deadly weapon on 4 May.

Van Zant contends that his objections to the admission of the documents should have been sustained because (1) the documents contain inadmissible hearsay; (2) the State failed to disclose the documents to the defense until thirty minutes before they were introduced; (3) the documents were not proper rebuttal evidence.

The State contends that the documents were properly admitted into evidence because (1) they come within the business record exception to the hearsay rule and were admitted to show Van Zant’s and Taylor’s state of mind; (2) the trial judge determined after adequate inquiry that the State did not deliberately withhold the documents from the defense; (3) the documents properly rebutted Van Zant’s testimony, or the inference suggested by it, that the relationship between Van Zant and Taylor was harmonious and that Taylor was not afraid of Van Zant.

Section 92.36, Florida Statutes (1977), is the Uniform Business Records as Evidence Act. Section 92.36(2) reads:

“(2) A record of an act, condition or event, including a record kept by means of electronic data processing, shall, in so far as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission.”

The State argues that every element of the above statute has been met by Exhibits 9 and 10, and therefore the exhibits were properly admitted into evidence. We do not agree.

Exhibits 9 and 10 might qualify under the business record exception to the hearsay rule to the extent that each is an out of court statement of the person who prepared the record in the regular course of business. However, the source of the information contained in the documents was Taylor, not the person who prepared the record. Therefore, not only were the exhibits themselves hearsay, they contained hearsay.

When a business record contains a hearsay statement, the admissibility of the record depends on whether the hearsay statement in the record would itself be admissible under some exception to the hearsay rule. In other words, if the person who prepared the record could not testify in court concerning the recorded information, the information does not become admissible as evidence merely because it has been recorded in the regular course of business.

In McGowan v. City of Los Angeles, 100 Cal.App.2d 386, 223 P.2d 862 (1950), the Court, in discussing the Uniform Business Records as Evidence Act, stated:

“The statute does not change the rules of competency or relevancy with respect to recorded facts. It does not make that proof which is not proof. It merely provides a method of proof of an admissible ‘act, condition or event’. It does not make the record admissible when oral testimony of the same facts would be inadmissible.”

The Court in Penn v. Hartman, 525 S.W.2d 773 (Mo.App.1975), made the same observation, stating that the Uniform Business Records Act “. . . does not make admissible any evidence which would be incompetent if offered in person.”

Numerous cases have held various types of law enforcement reports inadmissible as business records on the ground that the recorded statement was not based on the entrant’s own observations or on information supplied by one who had a business duty to transmit such information. Fairmont v. Sjostrom, 280 Minn. 87, 157 N.W.2d 849 (1968); Weils v. State, 254 Ind. 608, 261 N.E.2d 865 (1970); Calhoun v. Chappell, 117 Ga.App. 865, 162 S.E.2d 300 (1968); Moncrief v. City of Detroit, 398 Mich. 181, 247 N.W.2d 783 (1976); Logan v. Grady, 482 S.W.2d 313 (Tex.Civ.App.1972).

The question before us then is whether there is some exception to the hearsay rule which would permit the statements of Taylor to be admitted into evidence had they not been recorded. In other words, could Charles Barfield, who prepared the exhibits, testify about what Taylor told him. We think not.

The States suggests that Taylor’s statement is admissible under the “state of mind” exception to the hearsay rule, contending that the statement indicated Van Zant’s state of mind as well as Taylor’s. The state of mind exception to the hearsay rule relates to a statement showing the declarant’s state of mind, not someone else’s. The statement is admissible to prove the declarant’s state of mind at the time of the statement when that is at issue, or may be offered to prove that the plan or intention stated by the declarant was subsequently acted upon. McCormick on Evidence, 2nd Ed., §§ 294, 295 (1972). See Webb v. State, 336 So.2d 416 (Fla.2d DCA 1976). Taylor’s statement neither refers to any plan or intention she had regarding Van Zant nor does it indicate what her state of mind was on the date she made the statement, assuming that her state of mind on 6 May might be relevant.

We hold, therefore, that it was error to admit Exhibits 9 and 10 into evidence.

Reversed and remanded for a new trial.

ERVIN, J., and MASON, ERNEST E., Associate Judge, concur.


author: PER CURIAM.

text:
    UNITED SERVICES AUTOMOBILE ASSOCIATION, Herman Graulich and Laurie Graulich, Appellants, v. Barry K. NOELL, Appellee.
    No. 78-2305.
    District Court of Appeal of Florida, Third District.
    June 19, 1979.

      Virgin, Whittle, Garbis & Gilmour and Thomas J. Morgan, Miami, for appellants.
    Spiegel & Chaffin and Frederick B. Spie-gel, Miami, for appellee.
    Before HAVERFIELD, C. J., and PEARSON and SCHWARTZ, JJ.
   PER CURIAM.

Defendants, United Services Automobile Association and its insureds, Herman and Laurie Graulich, appeal an order denying their motion to tax costs.

Barry Noell was injured in an automobile collision which resulted from the negligence of Herman Graulich. Noell filed suit against Graulich, his wife, Laurie, and their liability insurer, U.S.A.A. Thereafter, U.S. A.A. submitted an offer of judgment for $3,001.00 plus legally taxable costs. Noell refused the offer and the cause was tried by a jury which returned the following verdict:

“WE, THE JURY, find in favor of the Plaintiff, BARRY K. NOELL, and against the Defendants, HERMAN GRAULICH and LAURIE GRAULICH, and assess his damages at $7,680 -5.000 $2,680
“SO SAY WE ALL.
/s/ Armando J. Olivera ARMANDO J. OLIVERA, Foreman
“DATED: SEPTEMBER 29, 1978”

A final judgment for $2,680 was entered for Noell. Thereupon, U.S.A.A. filed a motion to tax costs against Noell pursuant to Fla. R.Civ.P. 1.442 on the ground that the offer of judgment was more than the judgment awarded to Noell. Noell also moved to tax costs against the Graulichs and U.S.A.A. The trial judge then heard the respective motions to tax costs and entered an order taxing costs against U.S.A.A. and the Grau-lichs on the ground that the unreduced jury verdict ($7,680) exceeded the $3,001 offer of judgment. U.S.A.A. and the Graulichs appeal therefrom. We reverse.

Fla.R.Civ.P. 1.442 clearly provides “if the judgment finally obtained by the adverse party is not more favorable than the offer, he must pay the costs incurred after the making of the offer.” [Emphasis supplied]. The final judgment obtained by Noell was $2,680. That amount being less than the unconditional offer of judgment of $3,001.00, it was error to tax costs against U.S.A.A. and the Graulichs. Pursuant to Fla.R.Civ.P. 1.442 Noell must pay the costs incurred after the making of the offer.

Reversed and remanded.


text:
    DRS. WEILAND, KEISER, JONES, SHUFFLEBARGER, COOPER, P. A. d/b/a Coral Gables Orthopedic Associates, Petitioners, v. Robert L. TINDALL, M.D., Respondent.
    No. 79-502.
    District Court of Appeal of Florida, Third District.
    June 19, 1979.
    Rehearing Denied July 18, 1979.

      Smathers & Thompson and Hugh J. Turner, Jr., Miami, for petitioners.
    Turner, Hendrick, Guilford, Goldstein & McDonald and S. Alan Stanley, Coral Gables, for respondent.
    Before HENDRY, HUBBART and SCHWARTZ, JJ.
   PER CURIAM.

Petitioners seek review of an order denying their motion for protective order with respect to the production of certain items subpoenaed by the respondent.

This proceeding arose out of a dispute between the parties regarding compensation and stock purchase matters. There is a suit pending in which petitioners are suing respondent and respondent has answered and also filed a counterclaim against the petitioners seeking an accounting from the petitioners.

In order to obtain discoverable evidence to establish his counterclaim, respondent sought production of certain books and records belonging to the petitioners. Respondent served a request to produce on the petitioners and subpoenas duces tecum were served on various employees of the petitioners.

The petitioners and its employees moved for a protective order with respect to certain of the items on the grounds, inter alia, that it was premature for the trial court to order the production of the documents requested before a preliminary determination was made as to respondent’s right to an accounting. The trial court disagreed and denied the petitioners’ motion for protective order.

Petitioners contend that the trial court departed from the essential requirements of law and that they will not have full and adequate remedy by appeal after final judgment. We agree.

It is well established that discovery as to an accounting must be deferred until the preliminary issue of the right to accounting is settled. International Business Machines Corp. v. Elder, 187 So.2d 82 (Fla. 3d DCA 1966) and Crawford Co. Financial Services v. Goch, 292 So.2d 54 (Fla. 3d DCA 1974).

For the reasons stated the petition for certiorari is granted and the order under review is quashed.


author: MELVIN, Judge.

text:
    J. Kermit COBLE, Appellant, v. James LEKANIDIS, Appellee.
    No. LL-38.
    District Court of Appeal of Florida, First District.
    June 20, 1979.

      John R. Godbee, Jr., of Coble, McKinnon, Rothert, Bohner & Godbee, Daytona Beach, for appellant.
    J. Lester Kaney, of Cobb, Cole, McCoy, Abraham, Bell, Bond, Monaco & Kaney, Daytona Beach, for appellee.
   MELVIN, Judge.

Appellant brings for review the order of the trial court dismissing with prejudice, his amended counterclaim filed in a suit brought against him for specific performance of a contract for sale and purchase or real property in Volusia County, Florida, and also seeking damages in excess of the minimum jurisdiction of the court. A copy of the contract for sale and purchase is an exhibit and a part of the complaint. Plaintiff alleged that he had caused the property described in the contract to be surveyed and it revealed an encroachment along the northern property line, such encroachment being a part of a swimming pool allegedly constructed by the neighboring property owner. Plaintiff alleged his demand that the defendant remove the encroachment or that a fair and equitable adjustment of the contract price be determined to compensate the plaintiff for receiving less than what was alleged to have been bargained for under the contract. He alleged that the defendant, Coble, had failed to eliminate the encroachment, and failed to agree on price readjustment. He charged that the defendant had not adequately maintained the buildings and equipment included in the sale since the contract had been executed. The plaintiff demanded specific performance of the contract for sale and purchase and prayed the court to assess a fair and equitable reduction in contract price that it is alleged should be granted by reason of the defendant’s failure or refusal to remove the encroachments referred to.

The defendant answered and alleged that the survey obtained by the plaintiff subsequent to the entering into the contract to buy and sell the property did reflect encroachment as alleged by Lekanidis. The defendant further asserted that the plaintiff’s demands for price adjustment were unconscionable and that his attempt to arrive at a fair and equitable price reduction with the plaintiff was to no avail. Having thus in substance answered, defendant then counterclaimed for a rescission of the contract. The counterclaim alleged that the plaintiff and defendant had each inspected the property (although not at the same time) and that the plaintiff at the time of the signing of the contract to purchase lived in the apartment building that was located on the described property, the subject matter of the purchase and sale agreement. The counterclaimant further alleged that at the time the agreement was entered into, neither party knew of the existence of any survey of the property and, neither party knew of any encroachment along the northern line. The counterclaimant then alleged that the parties had contracted the purchase and sale of the property “as is." The encroachment, a swimming pool, extended thereon some 10 to 11 feet. In summary, the counterclaimant contended that the lack of knowledge on the part of the buyer and seller with reference to the encroachment constituted a mutual mistake that would justify his seeking rescission of the contract. The court granted the plaintiff’s motion to dismiss the counterclaim with leave to amend and the counterclaim having been amended was dismissed by the court with prejudice, it being the view of the court that the amended counterclaim presented no new matter for judicial consideration.

Parties sui juris are privileged to contract as the may desire concerning any legal subject.

While we agree with the trial judge that the matters as alleged in the counterclaim did not constitute a legal predicate for a rescission of the contract, we do not agree that such counterclaim should have been dismissed with prejudice. Under the provisions of Rule 1.110(d), Affirmative Defenses, Fla.R.Civ.P., it is provided that when a party mistakenly designates a defense as a counterclaim the court, on such terms as justice requires, will treat the pleading as if it had been given a proper designation. We construe the matters set forth in Coble’s counterclaim and amended counterclaim as affirmative defenses which he was entitled to have an opportunity to establish before a trier of the fact. Under the provisions of the rule referred to, affirmative defenses include es-toppel, release, and matters relating to waiver.

In Hopke v. O’Byrne, 148 So.2d 755, at 756 (Fla. 1st DCA 1963) we held:

“. . . It is basic that in passing upon a motion to dismiss a complaint, all of the well-pleaded allegations of the complaint must be accepted as true. In our court system no privilege is more valuable than the opportunity accorded a plaintiff who has sufficiently alleged in his complaint a cognizable cause of action, to present his evidence in support of those allegations before the appropriate trier of the facts."

See also Thompson v. City of Jacksonville, 130 So.2d 105, at p. 107 (Fla. 1st DCA 1961).

The contract to buy and sell was on a printed form generally used by the Volusia County Bar Association and the Daytona Beach Area Board of Realtors. That statement appears at the bottom of the first page of the contract. Paragraph d of the printed contract relates to the examination of title, provides that the buyer may have the property surveyed at his own expense and that if such survey reveals any encroachments upon the land described or that if any improvements on the land described encroach upon the land of others, upon written notice to that effect, the seller shall have a stated period of time to remove the same. It is then provided that the failure to eliminate such encroachments shall be regarded as a default on the part of the seller. Paragraph d referred to is printed along with many other paragraphs usually found in contracts to buy and sell real estate. Upon a reading of this contract, we find, however, that paragraph 13 is entitled “SPECIAL CLAUSES: TO CONTROL ALL CLAUSES: SEE ADDENDUM ATTACHED HERETO." (emphasis supplied) Those two sentences were typed in the printed form referred to. The first paragraph of the addendum sets forth the legal description of the real estate. The second paragraph, being numbered 13-Special Clauses, provides:

“1. It is understood and agreed between the parties hereto that the property is being sold ‘as is’."

Bearing in mind that these parties contracted that such clause would control the interpretation of all other clauses contained in the contract, coupled with the allegation that the buyer lived in the apartment house located on the subject real estate and was familiar with the premises, gives entitlement to the defendant Coble to have his misnamed counterclaim considered as affirmative defenses to the action seeking specific performance and reduction in contract price, thus bringing forth for consideration the question of the buyer’s possible estoppel to complain as to encroachment and waiver of any right to demand reduction in the contract purchase price.

The order of the trial judge dismissing with prejudice the amended counterclaim is reversed with directions that such pleading be considered as if entitled affirmative defenses. Although the pleading filed by Co-ble is incorrectly styled as a counterclaim, is not a model pleading to set forth affirmative defenses, it nevertheless contains sufficient allegations of cognizable affirmative defenses to the suit for specific performance and alleged entitlement to reduction in the contract purchase price. He, therefore, is entitled to the opportunity to present his evidence before the trier of the facts. Reversed with directions to proceed in accord with the views herein expressed with leave granted to Coble to file an amended answer as he may be advised.

McCORD, C. J., and BOOTH, J., concur.


text:
    Marqueen A. SCHLARBAUM and Charles Schlarbaum, her husband, Appellants, v. TEMPLE EMANU-EL et al. Appellees.
    No. 78-868.
    District Court of Appeal of Florida, Third District.
    June 26, 1979.
    Rehearing Denied July 18, 1979.
    Joe N. Unger, Richard M. Welsh & Associates, Miami, for appellants.
    Virgin, Whittle, Garbis & Gilmour and Gary E. Garbis, Miami, for appellees.
    Before HENDRY, HUBBART and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed. See Saucer v. City of West Palm Beach, 155 Fla. 659, 21 So.2d 452 (1945); Pagano v. Morrison’s Textiles, Inc., 149 So.2d 897 (Fla.3d DCA 1963), and Causeway Marina, Inc. v. Mandel, 276 So.2d 71 (Fla.3d DCA 1973).


text:
    Daniel M. EICHENBAUM, Appellant, v. Esther T. EICHENBAUM, Appellee.
    No. 78-1882.
    District Court of Appeal of Florida, Third District.
    June 26, 1979.
    Rehearing Denied July 16, 1979.

      Horton, Perse & Ginsberg and Mallory H. Horton, Miami, for appellant.
    Barranco, Darlson & Daniel, Daniels & Hicks and Sam Daniels, Miami, for appellee.
    Before HAVERPIELD, C. J., and BARK-DULL and KEHOE, JJ.
   PER CURIAM.

Petitioner, Daniel Eichenbaum, appeals the provisions of a final dissolution of marriage judgment awarding his former wife, Esther, $600 per month rehabilitative alimony for a period of six years and directing that in addition to the regular monthly support of the three minor children, he shall pay for their summer camp and the expenses of their religious training and schooling. Esther Eichenbaum cross-appeals and contends that the trial judge erred in awarding her rehabilitative instead of permanent alimony.

After approximately eight years of marriage, Daniel Eichenbaum filed a petition for dissolution. He is a successful ophthalmologist whose salary for the year 1979 will be $72,000 excluding bonuses. His salary will increase to $80,000 in 1980. ■

On the other hand, Esther Eichenbaum has a master’s degree in social work and, although she has earned more in the past, for the year 1978-1979 Esther is under contract for the sum of $8,000 as a professor at F.I.U.

Taking into consideration the high standard of living enjoyed by the parties during the marriage and the financial ability of the husband, we cannot say that the trial judge abused his discretion in awarding Esther Eichenbaum $600 monthly rehabilitative alimony. See Shaw v. Shaw, 334 So.2d 13 (Fla.1976).

We find no reversible error with respect to the order directing Daniel Eichenb-aum to pay the expenses of the children’s summer camp and religious education particularly in light of the fact that Daniel Eichenbaum expressed the desire that the children continue their religious training. Cf. Schatz v. Schatz, 356 So.2d 892 (Fla.3d DCA 1978). Nor do we find any merit in the cross-appeal.

Affirmed.


author: PEARSON, Judge.

text:
    Donald WAGNER and Highlands Insurance Company, Appellants, v. Elizabeth M. WAGNER and Stanley Wagner, Appellees.
    Nos. 78-1924, 78-2156.
    District Court of Appeal of Florida, Third District.
    June 26, 1979.
    Rehearing Denied July 13, 1979.

      Leland E. Stansell, Jr., and Robert A. Glassman, Miami, for appellants.
    Horton, Perse & Ginsberg, P. J. Carroll & Associates, Miami, for appellees.
    Before HAVERFIELD, C. J., and PEARSON and HENDRY, JJ.
   PEARSON, Judge.

Donald Wagner and Highlands Insurance Company were defendants in the trial court to a personal injury action in which the appellees Elizabeth M. Wagner and Stanley Wagner were the plaintiffs. The trial court entered a summary judgment on liability and the defendants appealed. Thereafter, pending the appeal, the cause was tried before a jury and the plaintiffs received jury verdicts of $115,000 for Elizabeth M. Wagner and $15,000 for Stanley Wagner, her husband. The defendants filed a motion for new trial and a motion for remitti-tur, which were denied, with a final judgment entered upon the jury verdict, in violation of Florida Appellate Rule 9.130(f). The defendants filed a notice of appeal from the final judgment, and this appeal was consolidated with the prior appeal from the summary judgment on liability.

The defendants have presented four points in these consolidated appeals: (1) error is urged in the entry of the summary judgment on liability on the ground that there was a genuine issue of material fact concerning comparative negligence, (2) error is urged in the court’s instructions to the jury, (3) error is urged in the court’s refusal to enter a remittitur on the ground that the amount of the verdict was so excessive as to shock the conscience of the court, and (4) error is urged in the court’s violation of Florida Appellate Rule 9.130(f), cited above.

The first point claims that there was an issue of the proximate cause of the injuries in that under the undisputed facts presented to the trial court, the injured plaintiff may have been comparatively negligent. We find no error under this point and rely upon the statement of the District Court of Appeal, First District, in Thompson v. Jacob, 314 So.2d 797, 800 (Fla. 1st DCA 1975), where the court stated:

“The reasonable person rather than the perfect person is still the standard for determining what acts or omissions of a party will be found to constitute negligence and the definition of that term had not been altered by the comparative negligence doctrine.”

While the defendants, as non-moving parties below, were entitled to every reasonable-inference from the evidence, we fail to find facts in this record upon which a jury of reasonable persons could find that the plaintiff contributed to her own injuries. Cf. Berlin v. Southgate Corp., 142 So.2d 362 (Fla. 3d DCA 1962).

The defendants’ second point, directed to the jury instruction, fails to show error or prejudice as the instruction complained of was clearly applicable to the cause.

On the third point, the defendants concede that in order to disturb the judgment on the ground that it is excessive, they must show that such a verdict is based on passion and prejudice. See Walker v. City of Miami, 337 So.2d 1002 (Fla. 3d DCA 1976). The defendants fail to point to anything during the conduct of this trial which could have induced an excessive verdict. It is simply the defendants’ opinion that the amount is excessive because of the amount of suffering and the extent of the injury. This is not sufficient for reversal and we cannot see that the defendants have demonstrated that the conscience of the trial judge, who heard all of the evidence, should have been shocked by the amount of the verdict.

The last point, directed to the entry of a final judgment while the summary judgment on liability was on appeal, has merit. See De La Portilla v. De La Portilla, 304 So.2d 116 (Fla.1974). Inasmuch as the trial court directly violated the rule as provided for such situations, we vacate the judgment entered and direct the entry of a new judgment upon the jury verdict. This judgment shall be dated and become effective on the date- of its entry.

The final judgment appealed is vacated with directions to enter another final judgment for the plaintiffs on the jury verdict.

      . “RULE 9.130. Proceedings to Review Non-Final Orders

      “(f) Stay of Proceedings. In the absence of a stay, during the pendency of a review of a non-final order, the lower tribunal may proceed with all matters, including trial or final hearing; provided that the lower tribunal may not render a fínal order disposing of the cause pending such review." [Emphasis added]


text:
    MARCHION TERRAZZO, INC., d/b/a Super Surface Sales, Appellant, v. Robert S. ALTMAN, Appellee.
    Nos. 78-2042, 78-2047.
    District Court of Appeal of Florida, Third District.
    June 26, 1979.

      Richard Touby, Miami, for appellant.
    Weissenborn & Burr and Lee Weissen-bom, Miami, for appellee.
    Before PEARSON, HUBBART and SCHWARTZ, JJ.
   PEARSON, Judge.

These appeals — an interlocutory appeal and an appeal from a final judgment— present the same question in the same case. The question involved is whether an allowance of a $500.00 attorney’s fee, pursuant to Section 501.210(3), Florida Statutes (1977), is so inadequate, based upon the record, as to constitute an abuse of discretion. We hold that the trial judge did abuse his discretion and that the order must be reversed under the principles stated in the Code of Professional Responsibility, DR 2-106(B). See also Folmar v. Davis, 108 So.2d 772 (Fla. 3d DCA 1959).

The trial judge recognized the appropriateness of an allowance of an attorney’s fee for the defendant in this cause where a violation of the Florida Deceptive and Unfair Trade Practices Act was affirmatively pled as a defense to an action to recover the balance due on a construction contract. At the hearing on the defendant’s motion for costs and attorney’s fee, the judge had before him an uncontroverted affidavit showing at least 25 hours spent on this aspect of the litigation. The parties also presented, at the court’s suggestion, affidavits on the value of the services rendered. The plaintiff’s affidavit on the value of these services was based solely on the witness’s examination of the file of the plaintiff’s attorney. The affidavits of the parties on the value of the services varied so greatly in amount (plaintiff $250; defendant $3,500) that one of them must be wrong.

While the setting of an attorney’s fee upon affidavits presented is allowed where neither party objects, it is not the proper method for determining this issue of fact. See Thoni v. Thoni, 179 So.2d 420 (Fla. 3d DCA 1965). Expert witnesses should present testimony showing the basis for the amount suggested to the court.

Although we are usually not inclined to tread upon the trial court’s discretion in matters involving attorney’s fees, nevertheless, we must do so where we find a clear abuse evidenced jn the record before us, see Bryan and Sons Corp. v. Klefstat, 265 So.2d 382, 385 (Fla. 4th DCA 1972), and this principle applies not only where the fee is found to be excessive, but also where it is found to be inadequate. See, e. g., Flagala Corporation v. Hamm, 302 So,2d 195 (Fla. 1st DCA 1974), and Canal Authority v. Ocala Manufacturing Ice and Packing Company, 253 So.2d 495 (Fla. 1st DCA 1971).

It is clear in this case that the fee allowed is not in keeping with time expended and with the novelty and importance of the legal work involved. In addition, the proofs submitted do not support the amount awarded.

The order appealed is reversed and the cause remanded for proceedings in accordance with the views herein expressed.

Reversed and remanded.

      . This section is a part of the Florida Deceptive and Unfair Trade Practices Act. It provides in part:
      “501.210 Attorney’s fees.—
      “(1) In any civil litigation resulting from a consumer transaction involving a violation of this part, except as provided in subsection (5), the prevailing party, after judgment in the trial court and exhaustion of all appeals, if any, shall receive his reasonable attorney’s fees and costs from the nonprevailing party.
      “(2) The attorney for the prevailing party shall submit a sworn affidavit of his time spent on the case and his costs incurred for all the motions, hearings, and appeals to the trial judge who presided over the civil case.
      “(3) The trial judge shall award the prevailing party the sum of reasonable costs incurred in the action plus a reasonable legal fee for the hours actually spent on the case as sworn to in an affidavit.”


text:
    The STATE of Florida, Appellant, v. G.D.C., a juvenile and J.L.M., a juvenile, Appellees.
    Nos. 78-2220, 78-2221.
    District Court of Appeal of Florida, Third District.
    June 26, 1979.
    Janet Reno, State’s Atty., and Ira N. Loewy, Asst. State’s Atty., for appellant.
    Bennett H. Brummer, Public Defender, and Bruce A. Rosenthal, Asst. Public Defender, for appellees.
    Before HAVERFIELD, C. J., and BARK-DULL and KEHOE, Jj.
   PER CURIAM.

In these consolidated appeals, the State of Florida seeks review of two orders dismissing delinquency petitions against G.D.C. and J.L.M. as untimely filed.

The undisputed facts are as follows:

J.L.M. was taken into custody on March 20, 1978, an arrest affidavit was filed with the intake officer on April 6 and a delinquency petition (for assault with a deadly weapon) was filed on May 1.

G.D.C. was taken into custody on July 27, 1978, an arrest affidavit was filed with the intake officer on August 15 and a petition for delinquency (for unlawful entry and theft) was filed on September 1.

J.L.M. and G.D.C. moved to dismiss their respective petitions for violation of the 30 day rule in Section 39.05(7), Florida Statutes (1977):

“(7) On motions by or in behalf of a child, a petition alleging delinquency shall be dismissed with prejudice if it was not filed within 30 days from the date the complaint was referred to the intake office.”

After hearing the motions, the juvenile court dismissed the delinquency petitions on the ground that if the arrest affidavits had been filed with the intake officer within 3 days of the respective dates the juvenile respondents had been taken into custody as required by Section 39.03(2), Florida Statutes (1977), they would still have been entitled to dismissal under Section 39.05(7), Florida Statutes (1977). We affirm.

Our Supreme Court in S. R. v. State, 346 So.2d 1018 (Fla.1977) held that Section 39.-05(7), Florida Statutes (1975) requiring dismissal with prejudice if a petition alleging delinquency is not filed within 30 days after a complaint is received by the intake officer provides a juvenile with a substantive right. The requirement that a written report is to be filed with the intake office within 3 days of the date of a juvenile’s arrest, however, has been determined to be procedural and absent a showing of prejudice, the noncompliance would not dictate automatic dismissal. G. L. T., Jr. v. State, 366 So.2d 25 (Fla.1978).

The failure of the State to timely file the written report with the intake officer in the instant cases resulted in the delinquency petitions being filed 36 days after the arrest of G.D.C. and 42 days after the arrest of J.L.M. Reading Section 39.03(2) and 39.05(7), Florida Statutes (1977) as a whole, a petition for delinquency should not be filed later than 33 days after a juvenile is taken into custody. We therefore, conclude that the substantive right of G.D.C. and J.L.M. under Section 39.05(7), Florida Statutes (1977) was violated when the respective petitions were filed in excess of 33 days after their arrests and the petitions were properly dismissed. Cf. A. W. v. State, 358 So.2d 71 (Fla.3d DCA 1978).

Affirmed.

      .“Within 3 days of the time the child is taken into custody, a supplemental report containing sufficient information to establish the jurisdiction of the court and to support a finding by the court that the child is delinquent or dependent shall be submitted to the appropriate intake officer.”

      . Same as the current statute.

      . 19 days after the arrest of G.D.C. and 17 days after the arrest of J.L.M.


author: DAUKSCH, Judge.

text:
    Charles DROTZUR, Appellant, v. STATE of Florida, Appellee.
    No. 77-2133.
    District Court of Appeal of Florida, Fourth District.
    June 27, 1979.

      Richard L. jJorandby, Public Defender, and Tatjana Ostapoff and Paul M. Herman, Asst. Public Defenders and Kathleen Kroll, Legal Intern, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary E. Marsden, Asst. Atty. Gen., West Palm Beach, for appellee.
   DAUKSCH, Judge.

This appeal concerns a juvenile entitled to the protections and considerations of Chapter 39, Florida Statutes (1977) being involuntarily waived to the adult criminal court for trial and punishment as an adult. Under the provisions of Section 39.09, Florida Statutes (1977) and the applicable Florida Rules of Juvenile Procedure, certain procedures must be followed before a juvenile can be tried as an adult. The procedure here is governed by Florida Rules of Juvenile Procedure 8.110(b) (1975) which rule has been amended, but we do not limit our holding in this case to that rule because a substantive right is involved ultimately in our holding. The question is whether in a Waiver of Jurisdiction hearing, the court may rely solely upon hearsay testimony and documentary evidence to support an allegation that an offense was committed by the juvenile. We hold, in this case of first impression, that hearsay evidence is admissible in a waiver of jurisdiction hearing but that to support an involuntary waiver there must be substantial direct inculpatory evidence against the accused before jurisdiction can be waived for criminal prosecution. Hearsay evidence by itself is not sufficient under the juvenile procedure rules nor is it under Section 39.09(2)(c)(4), Florida Statutes (1977).

The order waiving jurisdiction and all subsequent proceedings are reversed and this cause is remanded for proceedings consistent with this opinion.

REVERSED and REMANDED.

LETTS and BERANEK, JJ., concur.


text:
    Jean E. DUNHAM, Appellant, v. BREVARD COUNTY SCHOOL BOARD and the Department of Education, Appellees.
    No. 77-2544.
    District Court of Appeal of Florida, Fourth District.
    June 27, 1979.
    Stanley Wolfman of Stanley Wolfman, P. A., Merritt Island, for appellant.

      William C. Walker, Jr., Titusville, for ap-pellee Brevard County School Board.
   PER CURIAM.

The issue before the court is whether the appellant may bring an action against the school board for alleged sex discrimination in employment under the provisions of the Federal Equal Pay Act, 29 U.S.C. § 206(d)(1). We conclude that the trial court erred in dismissing appellant’s complaint alleging such discrimination. Usery v. Charleston County School District, 558 F.2d 1169 (4th Cir. 1977); Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614. In addition, the complaint sufficiently alleged a cause of action based upon a specific contract between the school board and appellant and the subsequent breach thereof by the school board.

Accordingly, the order of dismissal is reversed with directions for further proceedings in accordance with this decision.

ANSTEAD and LETTS, JJ., and JOHNSON, TOM, Associate Judge, concur.


text:
    John R. PIERSON, d/b/a City Trailer Park, Appellant, v. CITY OF VERO BEACH, Florida, a Municipal Corporation, Appellee.
    No. 78-283.
    District Court of Appeal of Florida, Fourth District.
    June 27, 1979.
    John H. Pierson, appellant, in proper person, Vero Beach.
    Thomas C. Palmer, City Atty., Vero Beach, for appellee.
   PER CURIAM.

This is an appeal by the plaintiff in a civil action. Plaintiff appeared in the trial court and before this Court pro se. We consider this as an appeal from the final order of dismissal with prejudice entered after plaintiff presented evidence at a non-jury trial. Essentially, plaintiff alleged but did not prove that the City of Vero Beach overcharged for water and sewer services to a trailer park owned by plaintiff. We find that the plaintiff/appellant has failed to demonstrate reversible error in regard to the dismissal, taxation of costs and the trial court’s ruling on post trial motions. See Contractors & Builders Association v. City of Dunedin, 329 So.2d 314 (Fla.1976), and Cooksey v. Utilities Commission, 261 So.2d 129 (Fla.1972). The dismissal and orders below are, therefore, affirmed.

AFFIRMED.

DOWNEY, C. J., and DAUKSCH and BERANEK, JJ., concur.


text:
    LUMBERMENS MUTUAL INSURANCE COMPANY, Appellant, v. Ernestine PRICE, Appellee.
    No. 78-480.
    District Court of Appeal of Florida, Fourth District.
    June 27, 1979.
    Raymond 0. Holton, Jr. and Bradley P. Goodman of Pyszka, Kessler & Adams, Fort Lauderdale, for appellant.
    Patrick N. Chidnese, Fort Lauderdale, for appellee.
   PER CURIAM.

AFFIRMED. See Dewberry v. Auto-Owners Ins. Co., 363 So.2d 1077 (Fla.1978); Tucker v. Government Employees Insurance Co., 288 So.2d 238 (Fla.1973); Allstate Insurance Co. v. Dairyland Insurance Co., 271 So.2d 457 (Fla.1972); Sellers v. United States Fidelity & Guaranty Co., 185 So.2d 689 (Fla.1966); and United States Fidelity & Guaranty Company v. Curry, 371 So.2d 677 (Fla. 3d DCA, 1979).

CROSS and ANSTEAD, JJ., and BAKER, JOSEPH P., Associate Judge, concur.


author: MOORE, Judge.

text:
    George HEEBNER, Appellant, v. Judith SUMMERLIN, Appellee.
    No. 78-809.
    District Court of Appeal of Florida, Fourth District.
    June 27, 1979.
    Larry Klein, West Palm Beach, for appellant.
    Donald L. Burrie, Pompano Beach, for appellee.
   MOORE, Judge.

This is an appeal from a final judgment entered pursuant to a directed verdict. The parties will be referred to as they appeared before the trial court.

In a non-jury trial, the plaintiff-appellant sought recovery of certain monies and jewelry (or damages) from his stepdaughter, the defendant-appellee. The plaintiff married his deceased wife after the execution of an antenuptial agreement. Subsequent to her demise, he discovered that many items of jewelry and funds from their joint accounts were missing and he instituted suit against his stepdaughter, claiming that she had conspired with her mother to fraudulently divert plaintiff’s money and property to herself.

Although the plaintiff well may have established a prima facie case precluding the entry of an involuntary dismissal, we find it unnecessary to address this issue due to our conclusion on the applicability of Section 90.05, Florida Statutes (1977), popularly known as the “Dead Man’s Statute”. During the trial, the plaintiff attempted to call the defendant as an adverse witness. Objections to her testimony by her counsel were sustained on the basis of the Dead Man’s Statute, thus precluding her vital evidence from consideration by the court. We consider this ruling to exceed the prohibition of Section 90.05 and, therefore error.

Perhaps the most succinct statement of the purpose of the Dead Man’s Statute is found in Traurig v. Spear, 102 So.2d 165 (Fla.3rd DCA 1958), wherein the Court said:

“ . . . The purpose of the statute is to prevent the surviving party or parties from having the benefit of his or their own testimony, where, by reason of the death of the adversary his representative is deprived of the decedent’s version of the transaction or statement . . . .”

In the instant case, there is no claim against the decedent or her estate. The witness whose testimony is sought has no interest adverse to the decedent’s estate. The effect of the court’s ruling, therefore, was to prevent the plaintiff from proving the amounts of money and jewelry which were allegedly surreptitiously funneled to the defendant. This is not a case where a party is seeking to utilize his or her own testimony which cannot be rebutted by the decedent, but is rather a case where a party is called as an adverse witness to give testimony adverse to her own interests, not against the interests of the survivor of the decedent.

The legislative intent in passing the Dead Man’s Statute was to provide a shield when, by reason of death, a party to a transaction is prevented from testifying. It is not to provide a privilege akin to the privilege against self incrimination. As the Court stated in Ehmke v. Hill, 236 Minn. 60, 51 N.W.2d 811 (1952), and adopted by our sister Court in Disbro v. Boyce, 124 So.2d 756 (Fla.3rd DCA 1960):

“ . . Without question, the legislative purpose was only to seal the lips of those whose personal and immediate interest in the issue litigated might tempt them to give false testimony of a self-serving nature. Where a witness testifies adversely to his own interest, all motive for a self-serving falsification is absent, and no statutory purpose is served by excluding his testimony. It follows that, pursuant to a fair and reasonable construction of the dead man’s statute, § 595.04, to accomplish its entire purpose as intended by the legislature, any person, whether he be a party to the action or not, and even though he has some pecuniary, legal, certain, and immediate interest in the event of the action with respect to the issue to which his testimony relates, is competent to testify when his testimony is adverse to his own interest.” (emphasis supplied by 3rd DCA).

We feel the defendant was a competent witness to testify regarding transactions she had with the deceased under the circumstances of the instant case. Considering her testimony, there is no doubt that a factual dispute existed in the presentation of the plaintiff’s case and the entry of an involuntary dismissal was therefore error. We reverse and remand this cause for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

ANSTEAD, J. and DWIGHT L. GEIGER, Associate Judge, concur.

      . The use of the term “directed verdict” is improper and we will consider the matter one of involuntary dismissal pursuant to Fla.R. Civ.P. 1.420(b).

      . The pertinent portions of § 90.05 Fla.Stat. (1977) for purposes of this appeal are: “No person, in any court, or before any officer acting judicially, shall be excluded from testifying as a witness by reason of his interest in the event of the a'ction or proceeding, or because he is a party thereto; provided, however, that no party to such action or proceeding, nor any person interested in the event thereof, . shall be examined as a witness in regard to any transaction or communication between such witness and a person at the time of such examination deceased, against the . survivor of such deceased person, . . (Emphasis ours).


text:
    WOOD, JOHNSON & COMPANY, and Joseph Wood, Appellants, v. WINTERS GOVERNMENT SECURITIES CORPORATION, a Florida Corporation, Appellee.
    No. 78-811.
    District Court of Appeal of Florida, Fourth District.
    June 27, 1979.
    John B. DiChiara of DiGiulian, Spellacy & Bernstein, Fort Lauderdale, for appellants.
    Allan M. Lerner of Beyer & Lerner, Fort Lauderdale, for appellee.
   PER CURIAM.

This is an interlocutory appeal from an order denying defendant’s motion to quash service of process. Process was effected under the Florida Long Arm Statute, Section 48.193, Florida Statutes (1975). The order denying the motion to quash is affirmed based upon Bank of Wessington v. Winters Government Securities Corp., 361 So.2d 757 (Fla. 4th DCA 1978), and Citizens State Bank v. Winters Government Securities Corp., 361 So.2d 760 (Fla. 4th DCA 1978).

AFFIRMED.

ANSTEAD, LETTS and BERANEK, JJ., concur.


author: BERANEK, Judge.

text:
    HALLMARK MANUFACTURING INC., a Florida Corporation, Petitioner, v. LUJACK CONSTRUCTION COMPANY, INC., a Florida Corporation, Respondent.
    No. 79-478.
    District Court of Appeal of Florida, Fourth District.
    June 27, 1979.

      Kenneth J. Scherer of DeSantis, Cook, Meehan, Cohen, Gaskill & Silverman, P. A., North Palm Beach, for petitioner.
    Ronald E. Jones, West Palm Beach, for respondent.
   BERANEK, Judge.

The defendant, by petition for common law certiorari, seeks review of an order of the Circuit Court denying a motion to dismiss a count in a complaint seeking establishment of an equitable lien on real estate and an order denying dissolution of a notice of lis pendens filed by plaintiff.

Plaintiff filed suit alleging that pursuant to a contract it had furnished labor and materials for improvements on certain residences located on realty owned by the defendant. Plaintiff alleged that defendant had not paid for the work in accordance with the contract. Based solely on this breach of contract, plaintiff sought an equitable lien on the improved real estate owned by the defendant. Simultaneously with the filing of the complaint and without Court approval plaintiff filed a notice of lis pendens as to the subject real estate. Defendant moved to dismiss the equitable lien count for failure to state a cause of action and also moved to dissolve the lis pendens. After hearing the trial court denied both motions.

Defendant now argues that the trial court’s denial of the motion to dismiss the equitable lien and the trial court’s failure to dissolve the lis pendens constitute departures from the essential requirements of law for which there would be no adequate remedy by appeal after final judgment. We agree and accept jurisdiction.

The mere denial of the motion to dismiss is generally not subject to review by petition for common law certiorari because any error can be corrected by appeal after final judgment. See Johnson v. Henningson, 370 So.2d 60 (Fla. 4th DCA 1979), and Lynch v. City of Deerfield Beach, 369 So.2d 1042 (Fla. 4th DCA 1979). The instant decision is in accord with these prior cases. The distinguishing factor here is the lis pendens which clouds defendant’s title to his real estate. The defendant/owner’s right of alienability of property is constrained. Beefy King International, Inc. v. Veigle, 464 F.2d 1102 (5th Cir. 1972). The loss of the ability to sell the property during the pendency of the litigation may well not be subject to remedy by appeal after final judgment. We conclude that the jurisdictional requirements of common law certio-rari have been met herein in accordance with Santini Brothers, Inc. v. Grover, 338 So.2d 79 (Fla. 4th DCA 1976); Siegel v. Abramowitz, 309 So.2d 234 (Fla. 4th DCA 1975); and Solitron Devices, Inc. v. Reiland, 311 So.2d 729 (Fla. 4th DCA 1975).

The denial of the motion to dismiss the equitable lien count was error and a substantial deviation from the essential requirements of law. The complaint alleged only that the defendant had failed to pay for labor and materials incorporated into the residences owned by defendant. There were absolutely no allegations other than this breach of contract. The written contracts were attached to the complaint and there is no indication of any intention that the land should stand as security for payment. Under these circumstances no claim for an equitable lien was stated. Merritt v. Unkefer, 223 So.2d 723 (Fla.1969). The facts of Merritt are similar in that a direct contract was involved between an architect and the owner of property improved by the architect’s services. The Fourth District Court of Appeal held the complaint stated a cause of action for equitable lien and the Supreme Court reversed. Merritt involved all of the factual elements present in the complaint now in question plus additional allegations relating to the doctrine of equitable estoppel. The Supreme Court held that such allegations were insufficient. If no cause of action for an equitable lien was stated in Merritt, then certainly no such cause of action was stated in the complaint now at issue.

In Marshall v. Scott, 277 So.2d 546 (Fla. 2d DCA 1973), the Second District held that a particular complaint did not state a cause of action for an equitable lien. Therein the Court summarized the general law on the subject and stated as follows at page 547:

Appellee did not allege lack of an adequate remedy at law, or special or peculiar equities justifying the imposition of an equitable lien; Wood v. Wilson, Fla. 1955, 84 So.2d 32; Crane Co. v. Fine, Fla.1969, 221 So.2d 145. There was no mention of a written contract which showed an intention to charge the particular property with a debt or obligation; Jones v. Carpenter, 1925, 90 Fla. 407, 106 So. 127. Neither was there an allegation of ultimate facts showing mistake, fraud, misrepresentation of essential facts or other wrongdoing which would entitle ap-pellee to an equitable lien; Merritt v. Unkefer, Fla.1969, 223 So.2d 723; Phillips Petroleum Company v. Schun Co., Fla. App.1969, 222 So.2d 491; Jennings v. Connecticut General Life Insurance Co., Fla.App.1965, 177 So.2d 66.
. The mere fact that a promise to pay is subsequently broken does not give rise to a cause of action for equitable relief. Otherwise any breach of contract would call for such a remedy.

Here the complaint alleged no more than a breach of contract. There were no grounds on which to base an equitable lien and plaintiff apparently has an adequate remedy at law.

Since no cause of action for an equitable lien existed, the notice of lis pendens should have been dissolved. Failure to grant the motion to dissolve was error constituting a departure from the essential requirements of law. The order of the trial court entered February 1,1979, is quashed. The matter is remanded with directions to grant the motion to dismiss and the motion to dissolve the lis pendens.

We note that this is the second amended count seeking to impose an equitable lien. The trial court may, in its discretion, consider any request made by plaintiff for further leave to amend.

CERTIORARI GRANTED AND ORDER QUASHED.

ANSTEAD and LETTS, JJ., concur.

      . At the hearing plaintiffs counsel stated that a statutory mechanic’s lien had not been perfected due to the plaintiffs having failed to file the necessary notices in a timely fashion. The complaint does not attribute any fault to the defendant in this respect.

      . We should point out that neither party had raised either before the trial court or before this Court the existence of Section 48.23(3) Fla.Stat. (1977), which provides as follows:
      “(3) When the initial pleading does not show that the action is founded on a duly recorded instrument, or on a mechanic’s lien, the court may control and discharge the notice of lis pendens as the court may grant and dissolve injunctions.”
      In addition, no argument has been made regarding the principles established in Kirk v. Baumann, 336 So.2d 125 (Fla. 2d DCA 1976), which holds that a lis pendens such as is involved here may not be filed without a prior court hearing consistent with all requirements for the issuance of an injunction.


author: McCORD, Chief Judge.

text:
    Peter Lynn VILLARI, Appellant, v. STATE of Florida, Appellee.
    No. LL-381.
    District Court of Appeal of Florida, First District.
    June 29, 1979.

      Nicholas M. Matassini, Tampa, for appellant.
    Jim Smith, Atty. Gen., and Charles A. Stampelos, Asst. Atty. Gen., for appellee.
   McCORD, Chief Judge.

Villari appeals his conviction for possession of 100 pounds of cannabis with intent to sell and sentence of five years entered pursuant to a nolo contendere plea reserving the right to appeal the denial of his motion to suppress. Appellant contends the search was conducted without his consent. We agree and reverse.

Villari, driving a pick-up truck, was stopped by agricultural inspector Leonard Pease, after having passed the station without stopping as he is required to do. Section 570.15(2), Fla.Stat. (1977). Pease asked if he could “see in the truck” and Villari opened the door to the bed of the truck. The inspector, using a flashlight, saw some luggage, two tires, and a blanket covering the remaining cargo. The inspector took Villari back to the station for further inspection because of the heavy highway traffic and darkness. He asked appellant to again open the truck. Villari did so and the inspector began to enter the truck. Villari then stated, “Don’t you need a search warrant to look at my personal belongings?” Pease pointed to the suitcases which were separated from the other cargo and stated, “I have no intention of looking in there.” Villari then stepped back, stating, “Un-huh” or “Okay.” Pease left and called his supervisor to be certain he could search the remaining cargo area. He returned and lifted the blanket covering several large bags. He then smelled the strong odor of marijuana, arrested Villari for violating § 570.15(2), and called Deputy Jones who placed Villari under arrest for possession of cannabis after the bags were opened and found to contain marijuana.

We again have before us the task of determining whether or not the state has clearly established consent to the search of a truck so as to obviate the necessity for a search warrant under § 570.15(l)(b), Fla. Stat.(1977). As we have previously stated, consent must be free and voluntary and must not be merely a submission to the apparent authority of the officer. Powell v. State, 332 So.2d 105 (Fla. 1st DCA 1976). Up to the point of Villari’s question, “Don’t you need a search warrant to look at my personal belongings?” his actions constituted consent to the search. There is no question that he consented, upon reasonable request, to the flashlight inspection of the truck on the highway and at the station since he willingly opened the truck and there was no refusal or resistance to this limited search. See Eden v. State, 370 So.2d 826 (Fla. 1st DCA 1979); Sharpe v. State, 366 So.2d 500 (Fla. 1st DCA 1979); Bagocus v. State, 359 So.2d 885 (Fla. 1st DCA 1978); State v. Drake, 343 So.2d 1336 (Fla. 1st DCA 1977). When appellant asked the foregoing question, however, he indicated lack of consent to any further search in that he questioned the officer’s authority to search further without a warrant. The officer’s response was evasive. He sought to interpret “personal belongings” to mean only the suitcases thereby indicating that he needed no warrant to search the balance of the cargo. Villari’s statement of “Un-huh” or “Okay” was- merely acquiescence or resignation to Pease’s statement. This does not meet the state’s burden to produce clear and convincing evidence showing voluntary consent by Villari. See Powell, supra, and Rose v. State, 369 So.2d 447 (Fla. 1st DCA 1979). To accept the state’s version would require that we interpret appellant’s remarks to mean that he did not consent to the search of his suitcases, which in no way incriminated him, but voluntarily consented to the search of the cargo consisting of the marijuana which did incriminate him. We find this reasoning untenable and consider the following statement from Talavera v. State, 186 So.2d 811 (Fla. 2d DCA 1966), to be appropriate here:

“We feel in consideration of the record in the case sub judice, to hold that a consent to search was freely and voluntarily given would not be ‘in accord with human experience.’ ”

In Rose, supra, this Court said:

“While it is true that appellant was cooperative in opening the camper top to his truck, it is equally true that he had indicated his lack of consent to a further search of the closed boxes.”

We have the same situation here. By his question, Villari indicated that he did not voluntarily consent to the search of his truck beyond the flashlight search which had already been made. At this point, in the absence of consent, further search necessitated the issuance of a search warrant pursuant to § 570.15(l)(b), Fla.Stat.(1977).

REVERSED.

LARRY G. SMITH, J., concurs.

BOOTH, J., dissents.


text:
    Billy DENSMORE, Appellant, v. STATE of Florida, Appellee.
    No. 77-1872.
    District Court of Appeal of Florida, Fourth District.
    June 29, 1979.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   MOORE, Judge.

We find sufficient evidence to affirm the revocation of appellant’s probation. The trial court erred, however, in sentencing appellant to a term of imprisonment at “hard labor”, and that portion requiring the sentence to be served at “hard labor” is stricken. Egan v. State, 364 So.2d 1263 (Fla. 4th D.C.A. 1978). In all other respects, the judgment and sentence is affirmed.

AFFIRMED as modified.

DOWNEY, C. J., and CROSS, J., concur.


text:
    Vincent James LUMIA, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 77-2136.
    District Court of Appeal of Florida, Fourth District.
    June 29, 1979.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Chief, Appellate Division, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   BERANEK, Judge.

Defendant appeals from a conviction of grand larceny after a jury trial. Defendant was charged by a two-count information with armed robbery in that he took by force “certain property of value, to-wit: money being good and lawful money of the United States of America.” The information did not contain any allegation as to the amount taken.

The case proceeded to trial and defendant took the stand and testified he had taken approximately $400 from the victims during a fake drug deal but that it was not an armed robbery. After the evidence was presented, defense counsel requested that the court instruct the jury on grand larceny and petit larceny as lesser included offenses of armed robbery. The trial court gave the instructions as requested by defense counsel. The jury found defendant guilty of grand larceny.

On appeal defendant relies on Tillman v. State, 329 So.2d 370 (Fla. 2d DCA 1976), and Haley v. State, 315 So.2d 525 (Fla. 2d DCA 1975). Both of these cases are to the effect that a defendant cannot be convicted of grand larceny in a situation where the information does not assert the value of the thing taken as being in excess of $100. Haley holds that defense counsel’s failure to object to a grand larceny instruction in such a circumstance cannot be held to be a waiver and concludes that a conviction óf grand larceny under such circumstances constitutes fundamental error. We do not find the Haley and Tillman cases controlling in the instant situation because here the defendant affirmatively sought the court’s instruction of grand larceny. There was absolutely no argument at trial that the amount taken was not in excess of $100 and it appears the defense was actually based on the theory that while defendant might be guilty of grand larceny, he was not guilty of armed robbery. Defense counsel chose this tactical approach before the jury. Also of application is the case of Thompson v. State, 368 So.2d 670 (Fla. 3d DCA 1979). Therein, the Third District speaking through Judge Alan Schwartz stated as follows:

Because he made no objections below either to the court’s instructions or to the pertinent verdict form, we do not consider his alternative claim, raised for the first time on appeal, that the elements of the lesser included crime of which he was convicted were not alleged in the information. Under the circumstances of this case, which are very similar to those involved in Andrews v. State, 309 So.2d 576, 577 (Fla. 1st DCA 1975) (specially concurring opinion), the alleged error was not a fundamental one which may be reviewed notwithstanding the defendant’s failure to preserve the point below. Andrews v. State, supra; see also Smith v. State, 344 So.2d 905 (Fla. 3d DCA 1977), cert. denied, 353 So.2d 678 (Fla.1977); McPhee v. State, 254 So.2d 406 (Fla. 1st DCA 1971); compare Minor v. State, 329 So.2d 30, 31 (Fla. 2d DCA 1976), and cases cited.

We conclude that the error complained of here was not, under the particular circumstances of the case, fundamental. We have carefully scrutinized the record and find without question that appellant was neither prejudiced nor embarrassed in his defense. We, therefore, decline to apply the Haley and Tillman rationale, and the judgment and conviction below is hereby affirmed.

AFFIRMED.

DOWNEY, C. J., and CROSS, J., concur.


author: DOWNEY, Chief Judge. DAUKSCH, Judge,

text:
    William L. SIMPSON, Appellant, v. Frieda L. SIMPSON, Appellee.
    No. 77-2434.
    District Court of Appeal of Florida, Fourth District.
    June 29, 1979.
    Edna L. Caruso, West Palm Beach, for appellant.
    Frances Ann Jamieson and Stephannie L. DaCosta of Taylor & DaCosta, Cocoa Beach, for appellee.
   DOWNEY, Chief Judge.

The appellant husband seeks reversal of an award to the wife-appellee of $140 per week periodic alimony and the lump sum award of the husband’s undivided one-half of the jointly held marital home.

The pertinent facts are that the marriage endured for thirty-one years; one adult child resulted from the union. The parties jointly owned a home with an equity therein of $42,000. They had other joint assets worth $40,000. In addition, the husband owned property jointly with his son valued at $42,000. The wife, age 60, had not been employed during the marriage and was unemployable while the husband’s net take-home pay was $350 per week. The wife claimed she needed $225 per week upon which to live.

The court awarded the wife $140 per week periodic alimony and the husband’s interest in the marital home. Thus, the wife ended up with the home the equity in which is worth $42,000, her one-half of the other jointly owned property equalling $20,-000 and $140 per week alimony. The husband came away with his one-half of the jointly owned assets equalling $20,000 and his one-half of the assets jointly owned with his son, amounting to $21,000.

Lump sum alimony is not an option open to the trial court in all dissolution cases where there is a demonstrated need and an ability to pay. There is an additional ingredient required to justify a lump sum award, i. e., necessity, and that ingredient is missing in this case. Even though the wife claimed she needed more than the amount of periodic alimony awarded, we do not think this record justified taking a $21,-000 asset from the husband and transferring it to the wife. Her needs over and above the amount of alimony awarded could be adequately satisfied by giving her exclusive possession of the marital home, even though there are no minor children involved. Banks v. Banks, 98 So.2d 337 (Fla.1957). Interestingly enough, the husband has suggested that she be given exclusive possession of the home. Since the only “necessity” appearing in the record can be satisfied by affording a home for the wife in which she may live, we find it to be an abuse of discretion to resort to lump sum alimony and the transfer of the husband’s one-half interest in said property. We can only assume the purpose in transferring that asset entirely to the wife was to build a little estate for her. However, the courts are prohibited from creating estates for parties, laudable as it might appear, just as they are prohibited from making other types of property settlements for the parties. Palmer v. Palmer, 330 So.2d 839 (Fla. 2nd DCA 1976); Ramirez v. Ramirez, 309 So.2d 25 (Fla. 4th DCA 1975).

Accordingly, that aspect of the final judgment awarding the wife the husband’s one-half interest in the marital home is reversed and the cause is remanded with directions to modify the judgment leaving the parties as tenants in common and to award the wife exclusive possession of the home. If the trial court feels it appropriate to make any provisions for payment of the mortgage, taxes, insurance and other expenses of the property, based upon the present record or upon the taking of additional evidence, it may do so. In all other respects the judgment appealed from is affirmed.

AFFIRMED IN PART; REVERSED IN PART, and remanded with directions.

LETTS, J., concurs.

DAUKSCH, J., dissents with opinion.

DAUKSCH, Judge,

dissenting:

I respectfully dissent. In my opinion the trial court made the best of a very difficult situation and the trial judge did not abuse his discretion in any respect and his decisions should be affirmed.

      . Meredith v. Meredith, 366 So.2d 425, Florida Supreme Court 1978; Cummings v. Cummings, 330 So.2d 134 (Fla.1976); Yandell v. Yandell, 39 So.2d 554 (Fla. 1949); Lee v. Lee, 365 So.2d 742 (Fla. 4th DCA 1978).


text:
    Samuel and Dora FISCHER, Appellants, v. TRAFALGAR TOWERS ASSOCIATION # 2, INC., Appellee.
    No. 77-2557.
    District Court of Appeal of Florida, Fourth District.
    June 29, 1979.
    Marilyn Sher, Law Offices of Neil Cho-nin, P.A., Miami, for appellants.
    Paul H. Bass, of Krongold & Bass, P.A., Coral Gables, for appellee.
   PER CURIAM.

This is an appeal from the dismissal with prejudice of one count from a two-count complaint. Although judgment was entered against appellants oh the dismissed count, the other count remains pending. The two counts are based on the same factual circumstances and are inter-related. Thus, the dismissal is an interlocutory order not subject to appeal until after final judgment in the case. The appeal is hereby dismissed. Mendez v. West Flagler Family Association, Inc., 303 So.2d 1 (Fla.1974); Venezia A., Inc. v. Askew, 314 So.2d 254 (Fla.1st DCA 1975).

DAUKSCH, LETTS and BERANEK, JJ., concur.


text:
    Henry A. SALDANA, Appellant, v. Ada F. SALDANA, Appellee.
    No. 78-208.
    District Court of Appeal of Florida, Fourth District.
    June 29, 1979.

      John M. Cain, Orlando, for appellant.
    Ada F. Saldana, pro se, and J. G. Petrus-ka, Orlando, for appellee.
   MOORE, Judge.

This is a final judgment in a dissolution of an off-again, on-again marriage. The parties were originally married in 1954 in Puerto Rico and divorced there in 1964, only to remarry approximately four months later.

Although the appellant, husband, challenges all of the provisions of the final judgment, we are concerned only with those disposing of the marital home (and the swimming pool lien thereon) and rental property owned in Puerto Rico. The trial court awarded the wife exclusive ownership of the rental property in Puerto Rico and also awarded her, as lump sum alimony, the husband’s interest in the marital home which had been owned as tenants by the entireties.

We initially direct our attention to the award of the marital home as lump sum alimony. Absent some special equities requiring it or making it advisable, one spouse’s interest in the marital home should not be awarded as lump sum alimony. Yandell v. Yandell, 39 So.2d 554 (Fla.1949); Meridith v. Meridith, 366 So.2d 425 (Fla.1978) adopting the dissenting opinion in Meridith v. Meridith, 352 So.2d 72 (Fla. 4th DCA 1977). This is not to be confused with the special equity required for one spouse to acquire an interest in property accumulated during the marriage. Cann v. Cann, 334 So.2d 325 (Fla. 1st DCA 1976). An award of lump sum alimony also must be consistent with a finding of need on the part of one spouse and an ability of the other to comply with payment thereof, without suffering a devastating financial set-back. Reid v. Reid, 365 So.2d 1050 (Fla. 4th DCA 1978); Lee v. Lee, 365 So.2d 742 (Fla. 4th DCA 1978); see also McAllister v. McAllister, 345 So.2d 352 (Fla. 4th DCA 1977). The record below shows a couple with modest means who made the best of a military salary combined with that of a civil servant. They were able to accumulate a reasonable wealth, notwithstanding their marital difficulties, and unfortunately, their mutual efforts cannot continue in harmony. There is no evidence that one contributed to that accumulation more than the other such as to entitle that one to any special equitable consideration. After paying child support as ordered by the trial court, the husband’s weekly income approximates that of the wife. Because the court granted custody of a twelve year old son to the wife, he may well have considered granting her exclusive occupancy of the marital home until no longer deemed necessary. The record, however, does not support the award of lump sum alimony in any form. In this case, the trial court awarded the lump sum alimony in lieu of any periodic alimony.

We now consider the property located in Puerto Rico. This property was acquired in the wife’s name only during the first marriage between the parties. No reference to the property was contained in the Puerto Rican divorce decree. Thus, absent some provision of Puerto Rican law, on which we make no comment, the parties commenced their second marriage with the wife owning said property individually. The husband now contends that the property was subject to the community property laws of Puerto Rico. With that contention, he insists that he is entitled to a one-half interest. The trial court disagreed and awarded the wife sole and exclusive ownership of the property.

If the law of Puerto Rico on which we have indicated that we make no comment, provided that the parties were tenants in common with regard to community property, then the husband obtained a one-half interest in the subject property. In order to award that interest to the wife, the trial court necessarily would have had to do so on a theory of lump sum alimony or in connection with some special equity the wife may have had therein. We have already indicated that the record does not support an award of lump sum alimony in the instant case. Neither does it support the finding of a special equity. On the other hand, if the law of Puerto Rico considered the wife to be the sole owner of this property, there was nothing to adjudicate with regard thereto. The husband claimed a one-half interest in the property. He did not do so on the basis of special equity, nor did he prove a special equity in the property. There was, therefore, nothing from which to divest him.

As in Ball v. Ball, 335 So.2d 5 (Fla.1976), we commence with the premise that record title to the Puerto Rican property is in the wife. In the absence of any proof to warrant a variance from the record title, the better procedure would have been to leave the parties as that title appeared with respect to said property. If the husband does, in fact, have any remedy pursuant to the law of Puerto Rico, he is not without recourse in an appropriate forum.

Accordingly, the trial court erred in awarding the wife sole and exclusive ownership of the Puerto Rican property and granting her the husband’s interest in the marital home as lump sum alimony. We therefore reverse and remand with directions to: (a) adjudicate the parties to be tenants in common with respect to the marital home; (b) consider awarding the appel-lee exclusive use and occupancy of the marital home until further order of the court; (c) eliminate from the final judgment any adjudication regarding the Puerto Rican property; (d) make such other judgments as may be equitable for payment of liens for improvements, mortgages, insurance, taxes and maintenance of the marital home; and (e) reconsider the wife’s prayer for rehabilitative or permanent periodic alimony in lieu of lump sum alimony, if he considers the equities of the cause require it.

REVERSED AND REMANDED.

CROSS and DAUKSCH, JJ., concur.

      . Although the complaint in this case was fill dismissed in 1971. d in 1976, another one was apparently filed and

      . The first such contention below was set forth in a motion for rehearing. It was not raised during the trial. It was therefore untimely.


author: DOWNEY, Chief Judge.

text:
    John LUCIANI and Virginia Luciani, his wife, Appellants, v. Richard T. HIGH, James A. Winchester, Karl Riddle and Reliance Homes, Inc., a Florida Corporation, Individually and severally, Appellees.
    No. 78-560.
    District Court of Appeal of Florida, Fourth District.
    June 29, 1979.

      Gary I. Zwickel, of Renick, Zwickel & Gross, Lake Worth, for appellants.
    Donald L. Brooks, of L. M. Taylor, Lawyers, North Palm Beach, for appellee Riddle.
   DOWNEY, Chief Judge.

This is an appeal from a final judgment entered subsequent to an order granting a judgment on the pleadings in favor of the defendant-appellee-Riddle.

Appellants sued appellees in a five count amended complaint for damages arising out of the construction of their single family residence. Counts IV and V were directed solely against appellee Riddle. Said counts charged that Riddle, a duly registered and licensed engineer, was employed by one or all of the appellees to perform the necessary testing and examination of the land upon which the residence was to be built; that Riddle negligently performed the tests resulting in damage to appellants’ property. Appellee Riddle answered said amended complaint, and after the cause was at issue Riddle moved for a judgment on the pleadings. The grounds of said motion were that the appellants had not contracted with Riddle and that privity of contract was necessary to support the appellants’ claim against Riddle. Said motion for judgment on the pleadings was granted and ultimately a final judgment was entered thereon.

It seems to us the theory alleged in the complaint against Riddle is one for economic loss proximately caused by the negligent performance of a contractual duty. Riddle is charged with negligently performing the tests on the land upon which the residence was to be built. The mere fact that Riddle was employed by the contractor rather than the owner to perform the necessary testing does not absolve him from liability to the owner for negligent testing resulting in damage to the owner. Riddle is liable not only to one in privity with him but also to those third persons who might foreseeably be injured as a result of his negligence. Audlane Lumber & Builders Supply, Inc. v. D. E. Britt Associates, Inc., 168 So.2d 333 (Fla. 2d DCA 1964); A. R. Moyer, Inc. v. Graham, 285 So.2d 397 (Fla.1973). Thus, it was error to grant the motion for judgment on the pleadings.

During the earlier stages of the pleadings appellee Riddle filed a motion for more definite statement regarding the alleged contract between Riddle and his employer. We think the resolution of this case would be facilitated by granting such motion and requiring a more particular specification of the services contracted for.

REVERSED AND REMANDED.

CROSS and BERANEK, JJ., concur.


text:
    In re the ESTATE of John W. FINCH, Deceased.
    No. 78-563.
    District Court of Appeal of Florida, Fourth District.
    June 29, 1979.
    Stephen J. McDonald, of Hodges, Gossett, McDonald & Wakefield, Hollywood, for appellant.
    Robert I. MacLaren, II, of Osborne & Hankins, Boca Raton, for appellee.
   DAUKSCH, Judge.

This is an appeal in a probate matter wherein the trial judge entered an order “setting aside homestead real estate.” The effect of the order was to remove from the operation of a will the homestead property of the testator thereby nullifying a devise of the property to the surviving spouse for life and the remainder in fee to one of the two adult lineal descendants. In doing this the circuit judge initially and directly, albeit by implication, construed a provision of the state constitution, to-wit Article X, Section 4(c), Florida Constitution which says:

The homestead shall not be subject to devise if the owner is survived by spouse or minor child, except the homestead may be devised to the owner’s spouse if there be no minor child.

Here the trial court construed the constitution to prohibit a devise of a life estate to the spouse with the remainder to a lineal descendant because the order appealed sets aside that devise and requires the homestead to pass by intestacy laws as required in Section 732.401(1), Florida Statutes (Supp.1976).

Whenever an order of a trial court initially and directly construes a provision of the state constitution our Supreme Court has exclusive jurisdiction. Art. V, § 3(b)(1), Fla.Const.

This appeal is transferred to the Supreme Court of Florida.

APPEAL TRANSFERRED.

BERANEK, J., and SCHWARTZ, ALAN R., Associate Judge, concur.