author: ADKINS, Chief Justice: ENGLAND, Justice

text:
    SPECIAL DISABILITY TRUST FUND, Petitioner, v. The SOUTHLAND CORPORATION, d/b/a Seven-Eleven Stores, et al., Respondents.
    No. 45321.
    Supreme Court of Florida.
    Nov. 14, 1975.

      Margaret M. Black, Coral Gables, and M. Wayne Myers, Miami, for -petitioner.
    Guy A. Gladson, Jr., of Gladson & Knecht, Coral Gables, for respondents.
   ADKINS, Chief Justice:

In Southland Corporation v. Special Disability Fund, 284 So.2d 381 (Fla.1973), upon our first consideration of this case, we reversed and remanded to the Industrial Relations Commission with directions to further remand to the Judge of Industrial Claims for proceedings consistent with our interim decision in Special Disability Trust Fund v. Fleet Transport Co., 283 So.2d 31 (Fla.1973). The case is now before us again on writ of certiorari to review the order of the Commission rendered pursuant to our earlier mandate.

A brief review of the facts of this case reveals that an employee of the Respondent, Southland, became involved in an argument with an intoxicated customer at his place of employment on June 9, 1969. As a result of this incident the employee became ill and was admitted to a hospital where he lost consciousness and died two days later of a brain stem hemorrhage. Thereafter, Southland and the widow of the deceased entered into disability benefit negotiations and reached a compromise settlement, which was approved by order of the Judge of Industrial Claims on November 19, 1970. The amount of the lump sum settlement was $7,723.61. Southland then filed a claim against the Fund for reimbursement pursuant to Fla.Stat. 440.49(4) (d), contending that the deceased employee had died due to the combined effect of his pre-existing hypertension and the effects of the June 9, 1969, incident with the intoxicated customer.

The Judge of Industrial Claims found inter alia that 40% of the employee’s death was attributable to the accelerating accident and 60% was due to the pre-exist-ing condition; that the widow and four minor children were entitled to full death benefits in the sum of $15,000, of which 40% or $6,000 was attributable to the accelerating accident of June 9, 1969, and is the obligation solely of the employer/carrier ; that the employer/carrier having paid the sum of $7,723.61 in compensation benefits, is entitled to be reimbursed by the Fund in the amount of $1,723.61, which represents the excess (as per F.S. 440.49(4) (d), F.S.A.).

The Commission reversed the Judge of Industrial Claims, finding instead that only 40% of the death was due to the preexisting condition, and that the order improperly included reimbursement of funeral expenses. The cause was remanded to the judge to determine if the claim reached the $1,500 jurisdictional minimum, exclusive of funeral expenses.

On certiorari to. this Court, we then reversed and remanded the cause for further consideration in light of Fleet Transport, after holding that the decision therein is applicable to this case.

On remand, the Commission lj,eld:

“We interpret the order of the Supreme Court to hold that Petitioners, The Southland Corporation d/b/a 7-11 Stores and Travelers Insurance Company, its carrier, are entitled to reimbursement from the Special Disability Trust Fund on the basis of 40% of the amount actually paid by the employer/carrier pursuant to the settlement arising out of the joint stipulation which has been approved by the Judge of Industrial Claims. Such order of .the Supreme Court makes no specific reference to the deduction of the amount required for funeral expenses, but appears to require a full 40% reimbursement by the Special Disability Trust Fund of the total amount paid rather than 40% of the amount which might have been due had full death benefits been paid had there been no settlement.”

From this decision the Fund seeks review by writ of certiorari, contending that the Commission erred in not applying or improperly applying Fleet Transport to the case of compensable death and in ordering the Fund to reimburse funeral expenses.

In Fleet Transport, we held:

“Only two facts are really necessary for the proper functioning of the Fund. First, it must be determined how much the employer has been required to pay in compensation and medical benefits. Second, it must be determined how much the employer would have had to pay had the claimant not suffered from the preexisting permanent physical impairment. The latter is the amount properly borne by the employer, and the difference between the former and the latter is the amount for which the employer can properly seek reimbursement from the Fund, if that amount exceeds the minimum requirement of $1500.00. Fla.Stat. § 440.49(4) (f), F.S.A.
“Thus, for purposes of implementing Fla.Stat. § 440.49, F.S.A., the Judge of Industrial Claims must make findings of fact as to the dollar amount of compensation and medical benefits actually paid by the employer, and as to the amount of compensation and medical benefits which would have been paid on the basis of the accident alone without the merger effect with the pre-existing permanent physical impairment. It is only the ratio of compensation which was actually paid to compensation which would have been paid for the accident alone — without consideration of medical benefits — which determines the portion of temporary disability compensation to be borne by the Fund.” 283 So.2d at 32, 33.

The Commission held sub judice that 40% of whatever was paid Southland must be reimbursed by the Fund. In other words, since 60% of the cause of death is attributable to the accelerating accident then 40% of the actual death benefits paid, which are attributable to the pre-existing hypertension, should be reimbursed by the Fund. Southland contends that pursuant to Fleet Transport it should be reimbursed 100% of the death benefits paid to the dependents of the deceased since the death would not have occurred in the absence of the pre-existing condition, a prerequisite to Fund reimbursement under F.S. 440.49 (4)(d). The Fund protests that if such were the case it would have to reimburse 100% in all death cases, a result obviously not intended by the Legislature in adopting F.S. 440.49. Instead the Fund takes the position that Southland’s liability for the accelerating accident or subsequent injury considered by itself must be a fixed sum, as it is in disability cases, based upon the total allowable as compensation for death. In other words, since the maximum allowed for death benefits at the time of the accident was $15,000 (increased to $25,000 in 1973, see F.S. 440.16, Laws 1973, 73-127, § 6) and since the accident was responsible for 60% of the death, Southland would have had to pay 60% of the $15,000 or $9,000 for the accident’s acceleration of death considered by itself. Applying the Fund’s formula it is clear that there would be no excess to be reimbursed by the Fund under application of the Fleet doctrine.

Both the position taken by Southland and that taken by the Fund have merit. Each litigant has argued forcefully and persuasively for the position each espouses. Southland points out that the accelerating accident, when considered by itself and not in conjunction with the pre-existing condition, would have produced little or no injury whatsoever and certainly not death. Indeed by the very language of the statute death must not have occurred but for the presence of the pre-existing condition. Why then, asks Southland, must it be held responsible for any of the death benefits when it is clear that the death was caused by the pre-existing condition, in the absence of which death would not have occurred and no benefits at all would have been forthcoming. The very intent of the Fund provisions is to encourage the employment of the handicapped by assuring the employer that he will be liable for the accelerating accident only, as if the injury it produced were the only one extant and as if the employee were in fact unhandicapped by anv previous impairment.

The result urged by Southland however, would not necessarily require 100% Fund reimbursement in all death cases as feared by the Fund. It is arguable that the requirement that the accelerating accident be considered by itself merely requires the assessment of disability benefits which would have 'been owed had the decedent not suffered from the pre-existing impairment. For example, if the accelerating accident, although not capable of producing death per se, were substantial enough to cause serious or disabling injury, then it follows that, considered by itself, the accident would require the payment of disability compensation - by the employer. Thus, under the Fleet doctrine, this potential disability compensation would be deducted from the total death benefits payable in fulfillment of the second requirement of Fleet, i. e., the determination of how much compensation the employer would have had to pay had the decedent not suffered from a previous impairment. The difference would be the amount of reimbursement owed by the Fund. On the other hand, if the accelerating accident produces slight or no injury per se, but merely provides the catalyst for the chain of events leading to death, which is frequently the case in hypertension-causing death, then the entire responsibility for the death would be rightly attributable to the pre-existing impairment and hence to the Fund.

Since the enactment of the Fund in 1955, its provisions have been revised several times by the Legislature, in part due to reactions to decisions of this Court and also in recognition of the need for more workable and salutory provisions. The original provisions dealing with reimbursement from the Fund when death resulted from the combination of an industrial accident and a pre-existing impairment or disease provided that the employer

“ . . . shall be reimbursed . for all benefits payable in excess of those allowed for such subsequent injury or occupational disease when considered by itself and not in conjunction with the previous permanent physical impairment. F.S. 440.15(5) (d)(3) (1955)." (Emphasis supplied.)

The wording of this provision supports the argument that the employer is liable only for disability compensation for the subsequent injury, not death benefits, and it is this compensation, if any, that is to be deducted from the total compensation paid for death. Section 440.15(5) (d) (3) was amended in 1959, however, the effect of which requires re-examination. See F.S. 440.49(4) (d) supra, for the amended version.

It is not clear whether the change in the language of the statutes was one of form rather than substance. Perhaps it was merely an attempt to more narrowly define the intent of the Legislature and therefore simply restated the statute in more precise language. If that is the case we fear that however valiant may have been the attempt the result leaves much to be desired, for the provision is not happily drafted. Reading the amended version in conjunction with F.S. 440.02(19), however, elicits the unavoidable conclusion that the Fund’s liability in a death case is for all compensation for death paid over and above that reasonably attributable to the last accident’s acceleration of death. In other words, the employer is not liable merely for the disability compensation effected by the accelerating accident considered by itself, rather he is liable for a part of the death itself, i. e., the acceleration of the death that is reasonably attributable to the accident. The clear implication of the statutory language is that the employer in a case where an injury compounds a pre-existing condition to cause death is liable for the compensation owed to the employee for that portion of his life which the accelerating accident cut short. jJWe arrive upon the real issue in this case, peeled to the core: in contemplation of Fleet Transport should the second finding required to be made in the determination of Fund reimbursement be based upon the maximum benefits allowed by law or upon the benefits actually paid by the employer ? The death benefits sub judice were paid pursuant to a lump sum settlement which fell short of the maximum benefits allowed by law, although the Judge of Industrial Claims found that the decedent’s dependents were entitled to maximum benefits of $15,000. The Fund urges that the employer’s liability should be 60% of the maximum benefits allowed by law, rather than 60% of the benefits actually paid, as held by the Commission. The employer’s liability must be fixed and certain, as it is in disability cases. That is, just as in disability cases, where the percentage of disability due to the last accident is figured on a percentage of 350 weeks, the Fund contends that in death cases the percentage of compensation for death reasonably attributable to the last accident’s acceleration of death must also be fixed upon a percentage of the maximum compensation for death, whether it be $15,000.00, $25,000.00 or 350 weeks.

We agree. The compensation attributable to the accelerating accident does not vary depending on the amount of compensation ultimately paid by the employer, as the Commission has held. While the amount of excess compensation may vary, depending on the total paid by the employer, the amount attributable to the accelerating accident remains a constant, easily determinable figure. Just as in disability cases, where the percentage of disability due to the last accident is figured on a percentage of 350 weeks, so too in death cases is the percentage due to the accelerating accident to be fixed upon a percentage of the maximum compensation for death, in this case, $15,000. Sub judice, since the accelerating accident was found to have contributed 60% to the death, the amount of compensation attributable to that accident is therefore $9,000, or 60% of the maximum compensation for death of $15,000. That amount remains constant regardless of how much the employer ultimately pays in death benefits. See Tingle v. Board of County Commissioners (Dade County Port Authority), 214 So.2d 1 (Fla.1971), where we held that compensation to the deceased’s dependents shall be allowed for that portion of the cause of death attributable to the accelerating accident. See also Hampton v. Owens-Illinois Glass Co., Paper Products Division, 140 So.2d 868 (Fla. 1962), where we stated that compensation for death shall be allowed

“ . . .in the proportion which the industrial accident bears to the total allowable recovery if 'the death were produced entirely by an industrial accident. For example, under the existing statute, if the industrial accident is found to be 10% of the cause of death, then recovery would be allowed for 10% of 350 weeks or 35 weeks, or if, as here, the industrial accident is found to have contributed 30% to the cause of death, compensation is allowed for 30% of the statutory period.” . At 870.

At this juncture we point out the obvious fact that the merger of pre-existing impairment and subsequent injury resulting in death presents a somewhat different situation than does merger resulting in permanent disability. The significance of this distinction lies in the determination of the excess compensation ultimately to be reimbursed the employer. In a disability case, for example, a previous injury to the left arm which resulted in a 15'% disability rating may merge with an injury to the right arm (20% disability rating), effecting an overall 50% permanent partial disability of the body as a whole. If the employer is responsible for the second accident only, the excess compensation, assuming benefits were paid for the entire permanent partial disability, is not just that compensation attributable to the pre-existing impairment that would have been apportioned out of the award in an apportionment situation, it would also include the compensation which is attributable to the merger’s enhancement of the resulting entire disability. Hartford Accident & Indemnity Co. v. Special Disability Fund, 249 So.2d 673 (Fla.1971); Fleet Transport, supra. In a death case, however, a person cannot be said to be 20% dead or 10% dead. One is either dead 100% or not at all. The relative causal effect of the pre-existing disease and the accelerating accident in producing the death requires that the contributions to the death made by the preexisting disease and the accelerating accident be expressed in relative percentages, the sum of which equals 100%. Sub judice, those percentages were found to be 40% attributable to the pre-existing hypertension and 60% attributable to the accelerating accident. Unlike disability cases, however, it is apparent that in death cases where the employer/carrier is entitled to reimbursement the excess compensation owed by the Fund will be that amount which would have been apportioned out of the claimant’s award of compensation in an apportionment situation, had maximum allowable death benefits been paid. Fleet Transport provides the formula by which that reimbursement is to be determined.

Summarizing what we have said so far, we reaffirm our holding that Fleet Transport is applicable to the case sub judice, even though the result of a merger of the pre-existing permanent physical impairment and the subsequent injury is death rather than permanent disability. Therefore the dual findings of fact required to be made in Fleet Transport must also be made in the case sub judice with slight variation as to the second required finding. In the case of resulting permanent disability, as in Fleet Transport, wé held that it must be determined how much compensation and medical benefits would have been paid on the basis of the accident alone without the merger effect of the pre-exist-ing permanent physical impairment. In the case of death, however, we hold that it must be determined how much compensation would have been paid for acceleration of death reasonably attributable to the subsequent injury or occupational disease when considered by itself and not in conjunction with the previous permanent physical impairment.

It follows that the Commission improperly applied Fleet Transport in holding that the Fund must reimburse 40% of the actual benefits paid by Southland. Applying the two-step procedure enunciated in Fleet it is clear that the judge must first determine the amount of death benefits actually paid, then subtract from that figure the amount of death benefits that would have been paid had the death been caused by the industrial accident considered by itself. Albeit the latter determination is simply the mathematical product of the percentage of death caused by the industrial accident times the maximum death benefits determined to be owed the dependents, the ultimate result will obviously differ from that reached by the Commission.

The next question is whether funeral expenses paid by Southland are reimbursable by the Fund. Fla.Stat. § 440.49 (4) (d) provides that the employer shall pay the funeral expenses and death benefits provided in Chapter 440 but shall be reimbursed from the Fund for all excess “compensation for death” otherwise payable for acceleration of death. We find that the term “compensation for death” describes “death benefits”, excluding funeral expenses.

The Florida Special Disability Fund provisions are modeled after the New York Workmen’s Compensation Law. Article II, § 15(8)(d), New York Compensation Law is almost identical to § 440.49(4) (d), F.S.A. It provides, in pertinent part, that:

“The employer . . . shall in the first instance pay the funeral expenses and the death benefits prescribed by this chapter, but he or his insurance carrier, ., shall be reimbursed from the special disability fund created by this subdivision for all death benefits payable in excess of one hundred four weeks.”

In Unit Wall v. Speh, supra, Note 4, we noted that the decisions of the New York courts pertinent to the fund provisions have special significance in interpreting the Florida provisions. See also Pylant v. Smith and Sponholtz, 2 FCR 408 (1957), cert. denied; Smith and Sponholtz v. Pylant, 98 So.2d 90 (Fla. 3d DCA 1957) and State v. Kelly, 76 So.2d 798 (Fla.1954).

In Krause v. Ronnell Decorators, 1 N.Y.2d 676, 115 N.Y.S.2d 202, 133 N.E.2d 710 (1956), the New York Court of Appeals held that the employer is not entitled to reimbursement from the special disability fund for funeral expenses under Article II, § 15(8) (d) New York Workmen’s Compensation Law. Although the New York statute provides that the employer shall be reimbursed for all excess “death benefits”, we hold that the term “compensation for death” used in F.S. 440.49(4) (d) is the equivalent of the term “death benefits” used in the New York statute as well as in F.S. 440.49(4) (d). It seems reasonably clear from a reading of the statute that the Legislature did not intend to include funeral expenses in the general term “death benefits”, or otherwise there would have been no point in the separation of the two items. We note that the Florida Legislature has recently amended § 440.49(4) (d), F.S., (1974), providing for reimbursement of 75'% of the amount paid as funeral expenses. However, this amendment supports our conclusion that prior to the effective date (October 1, 1974) of the amendment, funeral expenses are not reimbursable from the Florida Special Disability Trust Fund.

The decision of the Industrial Relations Commission is quashed, with directions to remand for proceedings not inconsistent herewith.

ROBERTS and OVERTON, JJ., and CHAPPELL, Circuit Judge, concur.

ENGLAND, J., dissenting with an opinion.

ENGLAND, Justice

(dissenting).

I agree with the majority determination that funeral expenses are not a part of “compensation for death” under Section 440.49(4) (d), Florida Statutes. I further agree that an employer’s reimbursement should not be determined by a deduction of disability compensation from death benefits. I do not agree, however, that death benefits payable under this section should be computed as a percentage of the maximum death benefits payable under the act. The language of the statute provides no clear formula for a particular result, but the policies of the act are, I believe, better served by computing reimbursement by reference to benefits actually paid.

The majority has held that the employer is obligated to pay an amount which is computed by multiplying the percentage attributable to the last accident against the maximum death compensation provided by law. In this case, the last accident percentage was 60%, so that the employer would be obligated to pay $9,000 (based on the $15,000 maximum then in effect) before receiving any reimbursement from the special disability trust fund. Having settled the death claim for less than that sum, the employer will receive no reimbursement despite the undisputed evidence that decedent was hired with a known pre-existing disability which in part caused his death. This result in my view, will either discourage future hirings of disabled persons or eliminate much of the incentive which now exists to settle claims for less than the maximum.

Settlement is only feasible, in my view, so long as the parties analyze their positions without reference to a minimum employer obligation. No such minimum obligation exists if the last accident percentage is applied against the amount actually paid. It does exist when the percentage is applied against the statutory maximum. In this case, for example, neither the employee nor employer would have any incentive to settle for $9,000, or any higher sum less than $15,000, because the fund will pay the entire excess up to $15,000 but the employer cannot reduce his minimum $9,000 obligation. Where the last accident percentage is a smaller percentage, the dollar level of settlement potential diminishes.

In contrast, settlements are encouraged by using the amount actually paid. Each party knows that the employer can save, and the fund will only pay, specific proportions of any amount they may agree upon. Whether the last accident percentage is 20% or 80%, the proportions of employer-savings and fund payment remain constant.

For this reason, I would conclude that the purposes of the act are best fulfilled by applying the last accident percentage in death cases against the amount actually paid by the employer, up to the maximum allowed by law.

      . 440.49(4) (d) provides, with emphasis supplied to the essential elements:

        “(d)When death results. If death results from the subsequent disability contemplated in paragraph (e) within one year after the subsequent injury or within five years after the subsequent injury when disability has been continuous since the subsequent injury, and it shall he determined that the death would not have occurred except for such pre-existing permanent physical impairment, the employer shall in the first instance pay the funeral expenses and the death benefits prescribed by this chapter, but subject to the limitations specified in paragraph (f) he shall be reimbursed from the special disability trust fund created by this subsection for all compensation for death payable in excess of the compensation which otherwise would have been payable for acceleration of death reasonably attributable to the subsequent injury or occupational disease when considered by itself and not in conjunction with the previous permanent physical impairment.”

      . F.S. 440.02(19).
      “ . . . Where a pre-existing disease or anomaly is accelerated or aggravated by accident arising out of and in the course of employment, only acceleration of death or the acceleration or aggravation of disability reasonably attributable to the accident shall be compensable with respect to permanent disability or death. Compensation for temporary disability and medical benefits provided by this chapter shall not be subject to apportionment under this subsection.” (Emphasis supplied)

      . Although Hampton involved apportionment and not reimbursement from the Fund, the procedure used for determining the amount of compensation for death found to be attributable to the industrial accident remains valid for the determination of the amount of compensation attributable to the last accident’s acceleration of death considered by itself.

      . Unit Wall v. Speh, 133 So.2d 304 (Fla.1961).

      . See text of 440.49(4) (d) quoted at Note 1, supra.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Mack Reed TEDDER, II, Appellant, v. STATE of Florida, Appellee.
    No. 46267.
    Supreme Court of Florida.
    Nov. 19, 1975.

      James A. Gardner, Public Defender, and Elliott C. Metcalfe, Jr., Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Andrew w- Lindsey, Asst. Atty. Gen., for ap-pellee.
   PER CURIAM.

This case is here on direct appeal from the Hernando County Circuit Court. Appellant was convicted by a jury of first degree murder and sentenced by the trial judge to death. We have jurisdiction pursuant to Article V, § 3(b)(1) of the Florida Constitution (1973).

On January 17, 1974, appellant’s wife and mother-in-law were laying a sidewalk outside the trailer where they resided. Appellant and his wife had recently separated. Without advance warning of any sort, appellant stepped from behind a tree and fired a shot in the direction of the women and appellant’s infant son. All fled toward the trailer, where appellant’s wife ran with the baby to a back bedroom in order to obtain a shotgun. She succeeded in locking the bedroom door behind her, but while loading the shotgun she heard more shots and the scream of her mother. Appellant then broke open the bedroom door and, gun in hand, took away the shotgun and told his wife to bring the baby and come with him. As they left, his wife saw her mother lying on the floor in a hallway. Appellant would not permit his wife to examine the body. The next morning appellant was arrested at a farm owned by his father. On February 14, appellant’s mother-in-law died from gunshot wounds.

Appellant’s trial resulted in a conviction for first degree murder. Pursuant to Section 921.141, Fla.Stat. (1973), a second jury trial was held to determine whether appellant should be sentenced to death or life imprisonment. No additional evidence was presented to the jury during this second trial except appellant’s age (20 years), and after deliberating for 16 minutes the jury returned a recommendation of life imprisonment.

On the following day the trial judge conducted a hearing on which to base his recommendation for appellant’s sentence. The only evidence considered which had not been before the jury was a pre-sen-tence investigation report showing that appellant had been convicted on one prior occasion of breaking and entering with intent to commit a misdemeanor (petit larceny). At the conclusion of this hearing the trial judge recommended a sentence of death, complying with Section 921.141(3) by listing three aggravating circumstances and finding none in mitigation. The aggravating circumstances identified by the trial judge were (1) that appellant knowingly created a great risk of death to many persons, (2) that the crime was committed while the defendant was engaged in the commission of kidnapping, and (3) that the crime was especially heinous, atrocious or cruel.

Appellant raises several grounds for reversing the conviction and the sentence of death. The only argument addressed to the conviction is an assertion that the record evidence does not support a determination that appellant had a premeditated design to effect the death of his mother-in-law. We believe that it does. It was not necessary for the state to establish prior hostility between appellant and his mother-in-law, or prior pronouncements of murderous intent, as appellant contends. Premeditated design may be established by circumstantial evidence, and in this case the circumstances amply justify such a finding. Appellant came from a place of concealment with a deadly weapon in his hand, and without discussion or warning began firing shots at his intended victim. He pursued his victim inside her trailer, where additional shots were fired. He then abandoned his victim and prevented the only persons present from providing aid. Appellant’s conduct establishes premeditation to effect that which was in fact accomplished. The evidence was sufficient to establish that he “had formed' in his mind a distinct and definite purpose to take the life of another human being and deliberated or meditated upon such purpose for a sufficient length of time to be conscious of a well defined purpose and intention to kill another human being . . . .”

With respect to the trial court’s sentence, we agree with appellant that the death penalty was inappropriate and that a life sentence should have been imposed. A jury recommendation under our trifurcated death penalty statute should be given great weight. In order to sustain a sentence of death following a jury recommendation of life, the facts suggesting a sentence of death should be so clear and convincing that virtually no reasonable person could differ. That is not the situation here.

It is apparent that all killings are atrocious, and that appellant exhibited cruelty, by any standard of decency, in allowing his injured victim to languish without assistance or the ability to obtain assistance. Still, we believe that the Legislature intended something “especially” heinous, atrocious or cruel when it authorized the death penalty for first degree murder.

On the facts and circumstances of this case, there is no reason to override the jury’s advisory sentence. Appellant’s conviction for first degree murder is affirmed. The order of the trial judge sentencing appellant to death by electrocution is quashed, and the trial judge is directed to enter a sentence of life imprisonment.

BOYD, OVERTON, ENGLAND, SUNDBERG and DREW (Retired), JJ.. concur.

ADKINS, C. J., agrees to conclusion.

ROBERTS, J., dissents.

      . Larry v. State, 104 So.2d 352 (Fla.1958).

      . Snipes v. State, 154 Fla. 262, 270, 17 So.2d 93, 97 (Fla.1944) (concurring opinion).

      . “It is our interpretation that heinous means extremely wicked or shockingly evil; that atrocious means outrageously wicked and vile; and that cruel means designed to inflict a high degree of pain with utter indifference to, or even enjoyment of, the suffering of others. What is intended to be included are those capital crimes where the actual commission of the capital felony was accompanied by such additional acts as to set the crime apart from the norm of capital felonies — the conscienceless or pitiless crime which is unnecessarily torturous to the victim.” State v. Dixon, 283 So.2d 1, 9 (Fla.1973).

      . It is unnecessary to deal with appellant’s request that we declare the death penalty unconstitutional under Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).


text:
    The CITIZENS OF the State of FLORIDA, Petitioners, v. William T. MAYO et al., and Southern Bell Telephone and Telegraph Company, Respondents.
    No. 47036.
    Supreme Court of Florida.
    Nov. 19, 1975.
    Woodie A. Liles, Public Counsel, Lake-land, and Donald W. Weidner, Deputy Public Counsel, Tallahassee, for petitioners.
    Prentice P. Pruitt, Legal Director and William Weeks, Tallahassee, of the Florida Public Service Commission, Earl B. Had-low, Mahoney, Hadlow, Chambers & Adams, Jacksonville, and Walter H. Alford, Miami, for respondents.
   PER CURIAM.

Certiorari 'denied on the authority of Citizens of the State of Florida v. Mayo, 316 So.2d 262 (Fla.1975).

It is so ordered,

ADKINS, C. J., and ROBERTS, ENGLAND, SUNDBERG and HATCHETT, JJ., concur.


author: ENGLAND, Justice.

text:
    Thomas A. REGISTER et al., Petitioners, v. GLADDING CORPORATION and Outdoor Sporting Goods Co., Respondents.
    No. 45730.
    Supreme Court of Florida.
    Nov. 19, 1975.
    Hugh M. Davenport of Greene, Greene, Smith & Davenport, Jacksonville, for petitioners.
    M. Lewis Hall, Jr., of Hall & Hedrick, Miami, for respondents.
   ENGLAND, Justice.

This case is here on petition for a writ of certiorari directed to the Third District Court of Appeal, seeking to have us review that court’s opinion which appears at 293 So.2d 729. We tentatively granted certio-rari to allow oral argument and the submission of briefs on the merits.

Our review of the entire case now persuades us that certiorari was improvidently granted. The direct conflict between the district court’s decision and that of other Florida appellate courts, which is the basis for our jurisdiction, can only be developed from the trial transcript of the circuit court’s proceeding. We have consistently held that we will not treat the district courts as intermediate courts, or grant litigants two opportunities for full appellate review, by re-analyzing testimonial evidence to establish constitutional “conflict”.

The writ of certiorari is discharged.

ROBERTS and OVERTON, JJ., and AGNER, Circuit Judge, concur.

ADKINS, C. J., and PATTERSON, Circuit Judge, dissent.

      . Fla.Const. art. Y, § 3(b)(3).

      . E. g., Foley v. Weaver Drugs, Inc., 177 So.2d 221, 225 (Fla.1965) (defining “record proper”).


text:
    Archie W. CAVES, Petitioner, v. STATE of Florida, Respondent.
    No. 46787.
    Supreme Court of Florida.
    Sept. 29, 1975.
    Rehearing Denied Dec. 1, 1975.
   Certiorari denied. 303 So.2d 658.

ADKINS, C. J., and OVERTON, ENGLAND and SUNDBERG, JJ., concur.

ROBERTS and BOYD, JJ., dissent.


text:
    F. A. CONNER, Petitioner, v. ATLAS AIRCRAFT CORPORATION, etc., Respondent.
    No. 47325.
    Supreme Court of Florida.
    Sept. 30, 1975.
    Rehearing Denied Dec. 16, 1975.
   Certiorari denied. 310 So.2d 352.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and ENGLAND, JJ., concur.


text:
    UNITED STATES FIDELITY & GUARANTY COMPANY et al., Petitioners, v. L. B. OLIVER, Respondent.
    No. 47208.
    Supreme Court of Florida.
    Oct. 13, 1975.
    Rehearing Denied Dec. 9, 1975.
   Certiorari denied. 309 So.2d 237.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and ENGLAND, JJ., concur.


text:
    WORLD INSURANCE COMPANY, a corporation, Petitioner, v. Emma C. WRIGHT, Respondent.
    No. 47221.
    Supreme Court of Florida.
    Oct. 20, 1975.
    Rehearing Denied Dec. 1, 1975.
   Certiorari denied. 308 So.2d 612.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and ENGLAND, JJ., concur.


text:
    James WILSON et al., Appellants, v. SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY, Appellee.
    No. 46957.
    Supreme Court of Florida.
    Oct. 21, 1975.
   Appeal dismissed, sua sponte.

ADKINS, C. J., and ROBERTS, BOYD, ENGLAND and SUNDBERG, JJ., concur.


text:
    Donald Anthony IZZO, Petitioner, v. STATE of Florida, Respondent.
    No. 47918.
    Supreme Court of Florida.
    Oct. 22, 1975.
   Certiorari denied.

ROBERTS, OVERTON, ENGLAND and SUNDBERG, JJ., concur.

ADKINS, C. J., and BOYD and HATCHETT, JJ., dissent.


text:
    Louis J. TSAVARIS, Petitioner, v. Carol T. TSAVARIS, Respondent.
    No. 47164.
    Supreme Court of Florida.
    Oct. 22, 1975.
   Certiorari denied. 307 So.2d 845.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and ENGLAND, JJ., concur.


text:
    Archie GAY et ux., et al., Petitioners, v. BREVARD COUNTY, etc., Respondent.
    No. 47624.
    Supreme Court of Florida.
    Oct. 23, 1975.
   Certiorari denied. 312 So.2d 828.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and ENGLAND, JJ., concur.


text:
    Cathlene Mae LEWIS, a/k/a Johnnie Mae Lewis, Petitioner, v. STATE of Florida, Respondent.
    No. 47468.
    Supreme Court of Florida.
    Oct. 23, 1975.
   Certiorari denied. 313 So.2d 495.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and ENGLAND, JJ., concur.


text:
    RAYEL CORPORATION, etc., et al., Petitioners, v. CITY OF HALLANDALE, etc., et al., Respondents.
    No. 47632.
    Supreme Court of Florida.
    Oct. 23, 1975.
   Cause dismissed sua sponte. 313 So.2d 113.


text:
    Walter WILLIAMS, Petitioner, v. The BOARD OF PUBLIC INSTRUCTION OF DADE COUNTY, Florida, et al., Respondents.
    No. 47572.
    Supreme Court of Florida.
    Oct. 23, 1975.
   Certiorari denied. 311 So.2d 812.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and ENGLAND, JJ., concur.


text:
    GENERAL TRUCKING SERVICE and Aetna Insurance Company, Petitioners, v. Daniel WEATHERFORD and the Industrial Relations Commission, etc., Respondents.
    No. 46805.
    Supreme Court of Florida.
    Oct. 24, 1975.
   Petition denied.

ADKINS, C. J., SUNDBERG and HATCHETT, JJ., and BOYER, District Court of Appeal Judge, concur.

ENGLAND, J., dissents.


text:
    Edwin McKINNEY, Petitioner, v. VERO INDIAN RIVER PRODUCERS ASSOCIATION et al., Respondents.
    No. 47385.
    Supreme Court of Florida.
    Oct. 24, 1975,
   Certiorari denied.

ROBERTS, BOYD, OVERTON, ENGLAND and SUNDBERG, JJ„ concur.


text:
    Reese H. REDDEN and Sarah Redden, Appellants, v. GENERAL MOTORS ACCEPTANCE CORPORATION, a Foreign Corporation, Appellees.
    No. 47912.
    Supreme Court of Florida.
    Oct. 27, 1975.
   Appeal dismissed.


text:
    In re ESTATE of Ralph Hutchison GIBSON, Deceased. Mildred Gibson WRIGHT and Frances Gibson Proctor, Appellants, v. Thelma D. GIBSON, Individually, et al., Appellees.
    No. 47930.
    Supreme Court of Florida.
    Oct. 28, 1975.
   Appeal dismissed.


text:
    William CANDELETTA, Petitioner, v. METRO SEPTIC TANK COMPANY, et al., Respondents.
    No. 47651.
    Supreme Court of Florida.
    Oct. 29, 1975.
   Cause dismissed, sua sponte.


text:
    Harold BADER t/a Harold Bader and Associates and/or Harold Bader and Associates, Inc., Petitioner, v. INTERNATIONAL GRAPHICS, INC., a Florida Corporation f/k/a Dukane Press, Inc., Respondent.
    No. 47819.
    Supreme Court of Florida.
    Nov. 3. 1975.
   Certiorari denied. 314 So.2d 821.

BOYD, Acting C. J., and OVERTON, ENGLAND, SUNDBERG and HATCH-ETT, JJ., concur.


text:
    Nicholas TARANTINO, Petitioner, v. STATE of Florida, Respondent.
    No. 47530.
    Supreme Court of Florida.
    Nov. 3, 1975.
   Certiorari denied. 311 So.2d 789.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and ENGLAND, JJ., concur.


text:
    PULIX SUPERMARKETS, INC., Petitioner, v. Helen KOSTEVICZ, Respondent.
    No. 47852.
    Supreme Court of Florida.
    Nov. 3, 1975.
   Certiorari denied. 315 So.2d 250.

BOYD, Acting C. J., and OVERTON, ENGLAND, SUNDBERG and HATCH-ETT, JJ., concur.


text:
    John Albert McMICHAEL, Petitioner, v. STATE of Florida, Respondent.
    No. 48292.
    Supreme Court of Florida.
    Nov. 5, 1975.
   Certiorari dismissed sua sponte. 320 So.2d 500.


text:
    William Arthur SCOTT, Petitioner, v. STATE of Florida, Respondent.
    No. 47766.
    Supreme Court of Florida.
    Nov. 5, 1975.
   Petition denied.


text:
    CNA MORTGAGE INVESTORS, LTD., Appellant, v. FIDELITY MORTGAGE INVESTORS, etc., and Outrigger Club, Inc., Appellees.
    Nos. 47514, 47515.
    Supreme Court of Florida.
    Nov. 6, 1975.
   Cases dismissed.

ADKINS, C. J., and ROBERTS, ENGLAND, SUNDBERG and HATCHETT, JJ., concur.


text:
    Jimmy Lee SNELLING, Petitioner, v. STATE of Florida, Respondent.
    No. 48300.
    Supreme Court of Florida.
    Nov. 5, 1975.
   Certiorari dismissed sua sponte.


text:
    Kathleen DAVIS, Petitioner, v. FUTRELL COMPANY REALTORS and the State of Florida Department of Commerce Industrial Relations Commission, Respondents.
    No. 46368.
    Supreme Court of Florida.
    Nov. 6, 1975.
   Certiorari denied.

ROBERTS, BOYD, OVERTON and SUNDBERG, JJ., concur.

ADKINS, C. J., dissent.


text:
    GULFSTREAM PARK RACING ASSOCIATION, INC., etc., Petitioner, v. BOARD OF BUSINESS REGULATION OF the DEPARTMENT OF BUSINESS REGULATION, etc., et al., Respondents.
    No. 48086.
    Supreme Court of Florida.
    Nov. 6, 1975.
    Rehearing Denied Dec. 1, 1975.
   Certiorari denied. 318 So.2d 458.

ADKINS, C. J., and ROBERTS, BOYD, ENGLAND and SUNDBERG, JJ., concur.


text:
    Charles J. McLEOD, Petitioner, v. The CLERK OF the CIRCUIT COURT IN AND FOR DUVAL COUNTY, Florida, and Honorable Roger J. Waybright, Circuit Court Judge, etc., Respondents.
    No. 48096.
    Supreme Court of Florida.
    Nov. 6, 1975.
   Petition denied.


text:
    MIAMI BATTERY & ELECTRIC CORPORATION and Financial Fire & Casualty Corp., Petitioners, v. Milton LANE et al., Respondents.
    No. 46705.
    Supreme Court of Florida.
    Nov. 6, 1975.
   Certiorari denied.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON, and SUNDBERG, JJ., concur.


text:
    Judith SIKES, Appellant, v. STATE of Florida, Appellee.
    No. 47782.
    Supreme Court of Florida.
    Nov. 6, 1975.
   Case dismissed. 313 So.2d 436.

ADKINS, C. J., and OVERTON, ENGLAND, SUNDBERG and HATCHETT, JJ., concur.


text:
    Roy G. VANDERFORD, Petitioner, v. BOWMAN TRANSPORTATION COMPANY et al., Respondents.
    No. 47246.
    Supreme Court of Florida.
    Nov. 6, 1975.
   Certiorari denied.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON, and ENGLAND, JJ., concur.


text:
    Robert DUDGEON, Petitioner, v. Louie L. WAINWRIGHT, Secretary, Department of Offender Rehabilitation, State of Florida, Respondent.
    No. 48236.
    Supreme Court of Florida.
    Nov. 7, 1975.
   Petition denied.


text:
    Daniel Patrick McENERY, Petitioner, v. Louie L. WAINWRIGHT, Secretary, Dept. of Offender Rehabilitation, Respondent.
    No. 48237.
    Supreme Court of Florida.
    Nov. 7, 1975.
   Case dismissed.


text:
    SENTRY INDEMNITY COMPANY, Petitioner, v. COUNTY OF SEMINOLE, Florida, a political subdivision of the State of Florida, for the Use and Benefit of Edith D. Valentine and Judith R. Harriett, Respondents.
    No. 48053.
    Supreme Court of Florida.
    Nov. 7, 1975.
   Certiorari dismissed. 316 So.2d 645.


text:
    Louis L. THOMAS, Petitioner, v. STATE of Florida, Respondent.
    No. 48028.
    Supreme Court of Florida.
    Nov. 7, 1975.
   Habeas corpus denied.


text:
    Joseph S. TURNIPSEED, Petitioner, v. Louie L. WAINWRIGHT, Secretary, Department of Offender Rehabilitation, State of Florida, Respondent.
    No. 48027.
    Supreme Court of Florida.
    Nov. 7, 1975.
   Petition denied.


text:
    Benton BELL, Petitioner, v. Louie L. WAINWRIGHT, Secretary, Department of Offender Rehabilitation, State of Florida, Respondent.
    No. 48010.
    Supreme Court of Florida.
    Nov. 10, 1975.
   Petition denied.

ADKINS, C. J., and OVERTON, ENGLAND, SUNDBERG and HATCHETT, JJ., concur.


text:
    Louie B. CATO, Petitioner, v. STATE of Florida, Respondent.
    No. 48181.
    Supreme Court of Florida.
    Nov. 10, 1975.
   Petition denied.

ROBERTS, Acting C. J., and BOYD, OVERTON, ENGLAND and SUND-BERG, JJ., concur.


text:
    Jack M. JACOBS, Petitioner, v. John COLEMAN, et al., Respondents.
    No. 48124.
    Supreme Court of Florida.
    Nov. 10, 1975.
   Petition denied.

ADKINS, C. J., and ROBERTS, BOYD, and OVERTON, JJ., concur. .

HATCHETT, J., would transfer to the District Court of Appeal, Third District.


text:
    Susan L. WEITZEL, by Marjorie A. Boughner, her next friend, Appellant, v. STATE of Florida, BOARD OF REGENTS OF the State of Florida, and Cecil Mackey, as President of the University of South Florida, Appellees.
    No. 47022.
    Supreme Court of Florida.
    Nov. 10, 1975.
   Case dismissed. 306 So.2d 188.

ADKINS, C. J., and ROBERTS, BOYD, ENGLAND and SUNDBERG, JJ., concur.


text:
    Robert L. ADAMS, Petitioner, v. STATE of Florida, Respondent.
    No. 47380.
    Supreme Court of Florida.
    Nov. 12, 1975.
   Certiorari denied.

ADKINS, C. J., and ROBERTS, BOYD, ENGLAND and SUNDBERG, JJ., concur.


text:
    ARVIDA CORPORATION, etc., Petitioner, v. FLORIDA POWER & LIGHT COMPANY, etc., Respondent.
    No. 47096.
    Supremo Court of Florida.
    Nov. 12, 1975.
   Certiorari denied. 307 So.2d 509.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and SUNDBERG, JJ., concur.


text:
    The BOARD OF TRUSTEES, CITY PENSION FUND FOR FIREMEN AND POLICEMEN IN the CITY OF MIAMI BEACH, etc., Petitioner, v. Ernest E. SISTRUNK, Jr., Respondent.
    No. 47396.
    Supreme Court of Florida.
    Nov. 12, 1975.
   Certiorari denied. 310 So.2d 405.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and ENGLAND, JJ., concur.


text:
    Clyde D. DENMARK, Petitioner, v. Louie L. WAINWRIGHT, Secretary, Department of Offender Rehabilitation, State of Florida, Respondent.
    No. 48295.
    Supreme Court of Florida.
    Nov. 12, 1975.
   Petition denied.


text:
    Cornelius L. CHANEY, Petitioner, v. STATE of Florida, Respondent.
    No. 48189.
    Supreme Court of Florida.
    Nov. 12, 1975.
   Petition denied.


text:
    Helen F. BOURQUIN, Petitioner, v. The FIRST NATIONAL BANK OF CLEARWATER, etc., et al., Respondents.
    No. 47412.
    Supreme Court of Florida.
    Nov. 12, 1975.
   Certiorari denied. 310 So.2d 310.

ROBERTS, Acting- C. J., and BOYD, OVERTON, ENGLAND and SUND-BERG, JJ., concur.


text:
    Ronald A. DRAWDY, Petitioner, v. Louie L. WAINWRIGHT, Secretary, Department of Offender Rehabilitation, State of Florida, Respondent.
    No. 48235.
    Supreme Court of Florida.
    Nov. 12, 1975.
   Petition denied.


text:
    HENRY SILVERBERG, INC., etc., Petitioner, v. SILVERBERG JEWELRY COMPANY, etc., Respondent.
    No. 47358.
    Supreme Court of Florida.
    Nov. 12, 1975.
   Certiorari denied. 310 So.2d 791.

ADKINS, C. J., and ROBERTS, BOYD, ENGLAND and HATCHETT, JJ., concur.


text:
    JERRY D. DICKERT, INC., and Universal Underwriters Insurance Company, Petitioners, v. Barbara WISE, etc., et al., Respondents.
    No. 46988.
    Supreme Court of Florida.
    Nov. 12, 1975.
   Certiorari denied.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and SUNDBERG, TT., concur.


text:
    Willie LONG, Petitioner, v. R. D. MASSEY, Superintendent, Union Correctional Institution, Respondent.
    No. 48009.
    Supreme Court of Florida.
    Nov. 12, 1975.
   Petition denied.


text:
    NIAGARA FIRE INSURANCE CO., Petitioner, v. ALLIED ELECTRICAL CO., Respondent.
    No. 48317.
    Supreme Court of Florida.
    Nov. 12, 1975.
   Certiorari dismissed sua sponte. 319 So.2d 594.


text:
    Walter D. REESE et ux., Petitioners, v. Elmer B. RIDENOUR et al., Respondents.
    No. 47394.
    Supreme Court of Florida.
    Nov. 12, 1975.
   Certiorari denied. 310 So.2d 789.

ROBERTS, BOYD, OVERTON and ENGLAND, JJ., concur.

ADKINS, C. J., dissents.


text:
    7-ELEVEN FOOD STORES, INC., Petitioner, v. Walter Lee ALLS, etc., et al., Respondents.
    No. 47047.
    Supreme Court of Florida.
    Nov. 12, 1975.
   Certiorari denied. 308 So.2d 660.

ADKINS, C. J., and ROBERTS, BOYD, SUNDBERG and HATCHETT, JJ., concur.

OVERTON and ENGLAND, JJ., dissent.


text:
    Charles WEARY, Petitioner, v. HUGHES SUPPLY, INC., et al., Respondents.
    No. 47711.
    Supreme Court of Florida.
    Nov. 12, 1975.
   Certiorari denied.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and ENGLAND, JJ., concur.


text:
    Marvin E. SHIPES, Petitioner, v. STATE of Florida, Respondent.
    No. 48233.
    Supreme Court of Florida.
    Nov. 12, 1975.
   Petition denied.


text:
    Charles A. WALKER, Petitioner, v. Basil GAINES, Respondent.
    No. 48079.
    Supreme Court of Florida.
    Nov. 12, 1975.
   Petition denied.


text:
    John Henry TICE, Petitioner, v. STATE of Florida, Respondent.
    No. 48363.
    Supreme Court of Florida.
    Nov. 19, 1975.
   Certiorari dismissed sua sponte. 319 So.2d 201.


author: DOWNEY, Judge.

text:
    EMPIRE PONTIAC CENTER, INC., a Florida Corporation, and West Toyota, Inc., a Florida Corporation, Appellants, v. GENERAL MOTORS ACCEPTANCE CORPORATION, a New York Corporation, Appellee.
    No. 75-1138.
    District Court of Appeal of Florida, Fourth District.
    Nov. 21, 1975.
    E. Earle Zehmer and Wayne Hogan Be-dell, Bedell, Dittmar, Smith & Zehmer, Professional Association, Jacksonville, for appellants.
    Howard R. Marsee, Pitts, Eubanks, Ross & Rumberger, P. A., Orlando, for appellee.
   DOWNEY, Judge.

This is an interlocutory appeal from an order granting a temporary injunction against appellants restraining them from disbursing any of the proceeds from the sale of any of their assets pending the outcome of this litigation in the trial court.

Appellants strenuously contend that ap-pellee was not entitled to a temporary injunction and that they were prepared to adduce proof of their contentions. However, inadequate time was allowed for the hearing so that the trial court was unable to and did not hear any of appellants’ witnesses.

Our review of the record presented leads us to conclude that the entry of the temporary injunction was premature.

Accordingly, the order appealed from is reversed and the cause is remanded with directions to allow appellants an opportunity to adduce proof in opposition to appel-lee’s application for temporary injunction.

Reversed and remanded with directions.

WALDEN, C. J., and McCAULEY, JAMES A., Associate Judge, concur.


text:
    BASIC FOOD INDUSTRIES, INC., Appellant, v. The WACKENHUT CORPORATION, Appellee.
    No. 75-480.
    District Court of Appeal of Florida, Third District.
    Nov. 25, 1975.
    Diaz-Asper, Katzen & Chulock, So. Miami, for appellant.
    Ronald L. Davis, Miami, for appellee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Defendant appeals a final judgment entered in favor of plaintiff for the sum of $6,998.54 plus interest and costs in this action to recover on an account stated.

Plaintiff, the Wackenhut Corporation, filed a complaint alleging that at the request of the defendant, Basic Food Industries, Inc., it had furnished guard and security services to various fruit orchards and packing plants of the defendant in central and northern Florida; that in spite of the fact on several occasions it had sent to the defendant invoices for services rendered (totaling $6,998.54), defendant refused to pay them. Basic Food Industries by way of affirmative defense alleged that services performed by Wackenhut were requested by and performed for a separate corporate entity, Peaches of Florida, Inc., in which Basic Food Industries is a shareholder. The trial judge found that the defendant had failed to prove its affirmative defense, and there was an account stated between the parties. Thereupon, final judgment was entered in favor of plaintiff. We affirm.

There being no dispute as to the performance of the guard services or the value of these services as reflected in the invoices and there being substantial competent evidence in the record to support the finding of the trial judge, we will not disturb this determination and the resultant final judgment for plaintiff for $6,998.54.

Affirmed.


author: WOODSON, J. WILLIAM, Associate Judge.

text:
    GRANDWAY CREDIT CORPORATION, Appellant, v. Leon WESTBROOK and Lela Westbrook, his wife, Appellees.
    No. 74-718.
    District Court of Appeal of Florida, Fourth District.
    Dec. 5, 1975.
    Howard Todd Jaffe of Douglas C. Kap-lan & Associates, Hollywood, for appellant.
    David Newman, Robert Graddy and Kathleen Buck of Fla. Rural Legal Services, Delray Beach, for appellees.
   WOODSON, J. WILLIAM, Associate Judge.

This was an action to foreclose a mortgage on real estate. The action was before the trial judge sitting without a jury. The trial judge made a finding that:

1. Defendants/appellees did not intend to sign, nor did they have knowledge of signing, the subject mortgage.
2. There was overreaching involved on the part of plaintiff/appellant’s assignor or his employees in the execution of the subject mortgage.
3. Plaintiff/appellant’s assignor or his employees provided defendants/ap-pellees with goods and services of a fair market value of $1,600.

Based upon these findings, the court invalidated the mortgage.

At the trial, the appellees denied executing the note, mortgage, contract, completion certificate, three-day notice of rescission and disclosure document. On cross-examination appellees admitted they could not remember signing certain instruments prepared by their attorney, which included declaration of homestead, motion to set aside default, three-page affidavit and answers to request for admissions. An expert was qualified and testified that the signatures on all of the instruments were those of the appellees. Appellees admitted that they had signed a mortgage in the past and had borrowed money at various times in the past and signed notes to. obtain these loans.

Upon a review of the evidence we conclude that it is legally insufficient to sustain the trial court’s finding (1) that the appellees did not intend to sign nor did they have knowledge of signing the subject mortgage, and (2) that there was such overreaching on the part of the appellant’s assignor or his employees in the execution of the mortgage or other instruments as to require setting aside these instruments. We therefore hold that the trial court erred in invalidating the mortgage.

The order appealed is reversed and the cause remanded for further proceedings consistent herewith.

Reversed and remanded.

CROSS and OWEN, JJ., concur.


text:
    S. D. BRULL & ASSOCIATES, INC., Appellant, v. The CUTLER CLUB, INC., Appellee.
    No. 75-70.
    District Court of Appeal of Florida, Third District.
    Dec. 2, 1975.
    Walton, Lantaff, Schroeder, Carson & Wahl and James Knight, Miami, for appellant.
    Lapidus & Hollander and Robert J. Schaffer, Miami, for appellee.
    Before BARKDULL, C. J., and HEN-DRY and NATHAN, JJ.
   PER CURIAM.

This is an appeal from an order of the Circuit Court of Dade County discharging appellant’s claim of lien against appellee’s property pursuant to appellee’s suit for such relief on the grounds that the appellant-contractor willfully exaggerated the amount of such claim; that the claim included work not performed and materials not furnished upon the property; that the claim of lien was compiled with such willful and gross negligence as to amount to willful exaggeration. See Fla.Stat. § 713.-31, F.S.A.

The trial court, after examination and consideration of the pleadings and depositions granted the appellee’s motion to discharge the claim of lien.

Appellant seeks reversal on the ground that the trial court erred in ordering the claim of lien discharged as there was no evidence before the court that the appellant had compiled its claim with such willful and gross negligence as to amount to a willful exaggeration which would entitle appellee to an order discharging the claim of lien.

We have carefully reviewed the record and considered the briefs and arguments of counsel and have concluded that the court erred in ordering the claim of lien discharged upon the showing made in the record. ' '

Therefore we reverse the order appealed and remand the cause for further proceedings.

Reversed and remanded.


author: PER .CURIAM.

text:
    Jose PEREZ and Augustina Perez, Appellants, v. Raul HERNANDEZ, Appellee.
    No. 75-209.
    District Court of Appeal of Florida, Third District.
    Dec. 2, 1975.
    Tobias Simon and Elizabeth du Fresne, Miami, for appellants.
    Bruckner, Greene & Manas, Miami, for appellee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.

   PER .CURIAM.

Defendants appeal a judgment finding them and the plaintiff to be partners in a certain laundry business and granting plaintiff an accounting.

Plaintiff-appellee, Raul Hernandez, filed a complaint against the defendant-appellants, Jose and Augustina Perez, for an accounting and partition and sale of a business venture known as the Atlantic Laundry located in Hialeah, Florida. Plaintiff alleged that he and defendants owned a i/¿ interest each in the laundry; nevertheless, defendants exercised full control and retained all income, receipts and profits from the business dispite his objections and demand for his share. Defendants answered that plaintiff was an employee only, not a partner. The cause proceeded to a non-jury trial, at the conclusion of which the trial judge entered the above judgment for the plaintiff. We affirm.

As so frequently happens, the existence vel non of a partnership became a question of fact to be determined from the conflicting testimony or the testimony from which different inferences may have been drawn and it was within the province of the judge, sitting as the trier of the facts, to decide whether those facts exist that show that a partnership had been formed. See 24 Fla.Jur. Partnership §§ 39-42 (1959).

The testimony reflected that plaintiff and defendants previously founded and operated the Atlantic Market as a partnership, and the equipment for the Atlantic Laundry had been purchased from funds generated from the operation of the market. The Mar-Eli Corporation, which held title to both the market and laundry business, was named for the daughters of each of the parties, Marts. Perez and .Elizabeth Hernandez. There was also testimony of witnesses that it was their impression that plaintiff and defendants are partners in the laundry and held themselves out as such.

The trial judge concluded from the testimony that a partnership had been formed and there being competent substantial evidence contained in the record to support this conclusion, it will not be disturbed on appeal.

Affirmed.


text:
    Claxton LATTIMORE, Appellant, v. The STATE of Florida, Appellee.
    No. 75-641.
    District Court of Appeal of Florida, Third District.
    Dec. 2, 1975.
    Phillip A. Hubbart, Püblic Defender, and Karen Gottlieb, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Ira Loewy, Asst. Atty. Gen., for appellee.

      Before PEARSON and NATHAN, JJ., and CHARLES A. CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The appellant was charged by information with the crime of second degree murder, for the fatal stabbing of his wife. Upon a non-jury trial, he was found and adjudged guilty, was sentenced to imprisonment for a term of ten years, and appealed.

In response to a call to the police, shown to have been made by the appellant, reporting that a woman had been cut, a police officer went to the address given, which was the appellant’s residence. On entering and inquiring with reference thereto, the officer was led by the appellant to a bedroom where he observed a woman lying on a bed bleeding from stab wounds but still alive. The officer inquired of the appellant as to the whereabouts of the knife. Thereupon appellant produced a bloody kitchen knife from a table or dresser in the room and handed it over to the officer. Thereafter the appellant was placed under arrest, and later, after having been duly warned of his rights, was questioned at which time he made a statement.

On this appeal it is contended by the appellant that the trial court committed reversible error by overruling a defense objection to introduction of the knife into evidence by the State. On consideration of the briefs, argument and the record, we hold that the questioned ruling of the trial court was not error. See: § 901.151(5), Fla.Stat, F.S.A. The officer’s question was prior to the arrest of the appellant, and was not made in the course of any custodial interrogation. The knife produced thereby by the appellant was not inadmissible. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694; United States v. Montos, 5th Cir. 1970, 421 F.2d 215; Koran v. United States, 5th Cir. 1972, 469 F.2d 1071. The inquiry which resulted in the disclosure of the knife was general on-the-scene questioning. See: Melero v. State, Fla.App.1975, 306 So.2d 603; Hill v. State, Fla.App.1969, 223 So.2d 548.

The judgment is affirmed.

      . “Q. (By Mr. Kaye) What, if anything was said by you or him?
      “A. [By the Officer] I said, ‘Where is tho knife?’ Mr. Lattimore turned back around and reached up on top of the dresser in among a lot of bottles and things and picked up a used kitchen knife and came back around rather fast at my direction, at which time I reached up and grabbed his hands and said, ‘Just let me have it. Let me take it.’ I took it out of his hands.”


author: GRIMES, Judge.

text:
    PINELLAS COUNTY, a political subdivision of the State of Florida, Appellant, v. Carl M. AUSTIN and Norma D. Austin, his wife, Appellees.
    No. 74-967.
    District Court of Appeal of Florida, Second District.
    Dec. 5, 1975.

      Nugent M. Walsh, Asst. County Atty., Clearwater, for appellant.
    Gilman M. Hammond, of Hammond & Holman, Pinellas Park, for appellees.
   GRIMES, Judge.

This case involves the question of whether the vacation of a street by a public body which results in a substantial deprivation of access constitutes a taking of property so as to entitle the owner to a recovery under the theory of inverse condemnation.

Mr. and Mrs. Austin owned and live on a rectangular parcel of land in Pinellas County consisting of five acres. A canal running in a northeasterly direction intersected the property near the southeast corner. Pursuant to resolution, the County of Pinellas vacated certain portions of platted streets which led to the Austins’ land from the north and the west. The street from the north contained a dirt road which the Austins had used as a means of access. A totally unimproved platted street ran near the northeast corner of the parcel, but the record is not clear whether this street actually touched the Austin property. The only other access to the land was a street along the southern border east of the canal. The only remaining road to the Austins’ home and the bulk of their land was from this street by way of a small wooden bridge over the canal.

Slightly more than two years after the vacation of the streets, the Austins brought suit against the county and the adjoining property owners who had requested the vacation of the streets. Following the taking of testimony, the court dismissed the suit against all parties except Pinellas County. No appeal was taken from this order, so we need not be concerned with that aspect of the case. However, the court entered a separate order from which the county appeals declaring that the Austins had proved that inverse condemnation had taken place because their right of access to the property had been taken “without due process of law and without compensation.”

On this subject 11 E. McQuillin, The Law of Municipal Corporations, § 30.188 (3d ed. 1964) states:

“The right of a landowner injured by the closing of a street to damages therefor is almost universally recognized either because of general constitutional provisions relating to the taking of property for public use or under statutes expressly providing for a recovery of damages on the vacation of a street. If there is an express statute authorizing a recovery, then of course it governs. In the absence of any special statute, the general rule is that an abutting owner who is injured is entitled to compensation for damage caused by the vacation of the street or alley . . . . ”

See also 1A C. Antieau, Municipal Corporation Law, § 9.29 (1974).

The right of access to one’s land is a property right. See Anhoco Corporation v. Dade County, Fla.1962, 144 So.2d 793. Therefore, even where a public body has properly exercised its discretion in determining to vacate a street, a property owner may be entitled to compensation for the consequent loss of access. The theory of most of these cases is that a property right has been taken without compensation. E. g., City of Rock Hill v. Cotthran, 1946, 209 S.C. 357, 40 S.E.2d 239. The fact that title to the vacated street reverts to adjacent property owners rather than to the public body does not render it any less a taking insofar as the person who lost his access is concerned. A street can only be vacated through the approval of the appropriate public body, and, by having taken the action necessary to close the street, this body becomes liable for compensation to those whose right of access has been taken away.

On the other hand, not everyone owning property near a street which has been vacated is entitled to be compensated. A landowner must demonstrate that he has suffered special damages which are not common to the general public. 11E. Mc-Quillin, The Law of Municipal Corporations, § 30.188 (3d ed. 1964). Thus, in Linning v. Board of County Commissioners of Duval County, Fla.App. 1st, 1965, 176 So.2d 350, the court held that a person who owned a home about 250 feet away lacked standing to contest the validity of the vacation of a street because he had not shown an injury different in kind and degree from that sustained by other property owners or citizens of the community. See 11 E. McQuillin, The Law of Municipal Corporations, §§ 30.192-30.194 (3d ed. 1964). The fact that a person loses his most convenient method of access is not such damage which is different in kind from damages sustained by the community at large where his property has suitable access from another street even though the alternate route is longer. Bozeman v. City of St. Petersburg, 1917, 74 Fla. 336, 76 So. 894; Halpert v. Udall, S.D.Fla.1964, 231 F.Supp. 574. Cf. Daugherty v. Latham, 1937, 128 Fla. 271, 174 So. 417.

Applying these principles to the instant case, it must be conceded that the Austins were not totally deprived of access to their property. Nevertheless, the quality of their access was diminished. The old wooden bridge was not adequate to support heavy vehicular traffic, such as garbage trucks or fire trucks. Regardless of whether the platted street touches the Austin property at the northeast corner, there is no road there, and, even if you could get in, it would then be necessary to cut down trees and drive through some nursery stock in order to have effective access to the bulk of the tract. On balance, we believe the record is sufficient to support the conclusion that the Austins suffered a sufficient impairment of their right of access as to be different in kind from the public at large. The existence of the other possible means of access may reduce the amount of the recovery, but because of the limitations upon the other access, the Austins are entitled to be compensated for the loss suffered by the vacation of the streets in question.

By cross-appeal, the Austins complain that the court should have invalidated the vacation proceedings because the length of time between the date of the first publication of notice and the public hearing fell short of the legal requirements. The court below held that the Austins were barred from making this claim by reason of “estoppel in laches” and because of their failure to present a claim to the county commissioners within one year pursuant to Fla.Stat. § 95.08 (1973). According to 11 E. McQuillin, The Law of Municipal Corporations, § 30.196 (3d ed. 1964):

“Vacation can be effected only by a substantial observance of all mandatory legal requirements, which, as noticed above are in some instances exclusive. However, slight irregularities will not render such action void, and by estoppel and laches an irregular vacation may become absolute.”

Since the record is sufficient to support the finding of laches, we need not decide the applicability of Fla.Stat. § 95.08 (1973).

Affirmed.

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

      . Clearly, this statute is not applicable to the claim of inverse condemnation. Hillsborough County v. Kensett, 1932, 107 Fla. 237, 144 So. 393; Hancock v. Piper, Fla. App.2d, 1969, 219 So.2d 746.


author: TENCH, BENJAMIN M., Associate Judge.

text:
    Charlie CANNON, Appellant, v. Mattie CANNON, Appellee.
    No. W-303.
    District Court of Appeal of Florida, First District.
    Dec. 5, 1975.

      Theodore R. Bowers, Panama City, for appellant.
    J. C. Bodiford, Panama City, for appel-lee.
   TENCH, BENJAMIN M., Associate Judge.

The wife brought an action for Separate Maintenance; the husband answered and filed his Counterclaim for Dissolution of marriage. Immediately prior to the final hearing, the wife was permitted to amend ore tenus her Petition for Separate Maintenance, altering it to a Petition for Dissolution of Marriage and seeking alimony and other relief. The cause proceeded to final hearing and judgment was entered dissolving the marriage, dividing property between the husband and the wife, granting the wife lump sum alimony in the amount of six hundred fifty dollars ($650.-00), granting the wife’s attorney his fees and court costs, and setting a schedule for payment of those moneys awarded the wife. The husband’s Motion for New Trial was denied, and this appeal was taken.

The husband’s first point on appeal raises the propriety of the trial court’s granting the wife’s ore tenus motion to amend her Petition for Separate Maintenance to a Petition for Dissolution of Marriage and other relief. Florida RCP 1-190(e) provides that “At any time in furtherance of justice, upon such terms as may be just, the court may permit any . pleading . . . to be amended . ”. The transcript of the proceedings makes it plain that the Court below was not in error in permitting the amend-' ment of the wife’s Petition. In any event, permitting the amendment was harmless error because the husband had filed his Counterclaim Petition for Dissolution.

We pause here to point out the disparity in the language of F.S. Section 61.052, which deals with dissolution of marriage and is commonly known as the no-fault statute, and the provisions of F.S. Sections 61.09 and 61.10, which deal with non-support and the rights of parties unconnected with dissolution. The position of litigants and Courts would be greatly improved if the Legislature were to clarify whether those seeking relief under F.S. Sections 61.-09 and 61.10 are held to the older and higher standard of proving fault, as opposed to those seeking a dissolution of marriage under the no-fault statute. We commend to our sister Branch of government this clarification at the first opportunity.

Regarding the husband’s contention 1) that the Court improperly rejected evidence of the conduct • of the parties prior to marriage, and 2) that the Court erred in awarding certain property to the wife and other property to the husband, we point to the conflicting testimony and claims of the parties. An appellate court may not substitute its fact findings for those of a circuit judge who sits as a trier of fact, if sufficient competent substantial evidence is adduced at trial to support the circuit judge’s findings. Lowery v. Rosenberg; 147 So.2d 321 (Fla.App. 1st 1963). We note that the Court below had the opportunity to observe the parties while they were testifying and to determine for itself the demeanor of each witness, his frankness or lack of frankness, and his interest, if any, in the outcome of the case. The credibility of witnesses is an issue of fact for the trier of fact. Staggers v. State, 258 So.2d 461 (Fla.App. 1st 1972). As to those two matters we decline to disturb the rulings of the trial court.

Regarding the award of lump sum alimony, howevér, we cannot concur with the trial court. The wife is younger by seven years, is better educated, has an income almost equal to the husband’s, and can practice her trade as a cook. He, on the other hand, is restricted by his lack of education to working as a common laborer. In Yandell v. Yandell, 39 So.2d 554 (Fla.1949), the Florida Supreme Court held it was improper to award lump sum alimony where the evidence failed to disclose that the wife was entitled thereto by an equitable contribution to the husband’s estate, except where the husband was financially in a position to pay the alimony so awarded. A comparison of the future prospects of earning capacity between the two parties reveals that the husband would be overburdened by the lump sum alimony payments. We hold that there has been no showing that the wife’s claim for lump sum alimony is justified.

Reversed in part and affirmed in part, and remanded for further proceedings consistent with this opinion.

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


author: SMITH, Judge.

text:
    Nuby SHEALY et al., Appellants, v. CLARK CONSTRUCTION COMPANY OF OCALA, INC., etc. et al., Appellees.
    No. X-413.
    District Court of Appeal of Florida, First District.
    Nov. 26, 1975.

      John M. Green, Jr., of Green, Simmons, Green & Hightower, Ocala, for appellants.
    Edwin C. Cluster, of Ayres, Cluster, Curry, Meffert & McCall, John P. Mc-Keever, Victor J. Musleh, Ocala, and Richard T. Jones, Gainesville, for appel-lees.
   SMITH, Judge.

The Shealys appeal from an order designated “final summary judgment” entered in favor of appellees Clark and Auto-Owners, one of Clark’s liability insurers, on the Shealys’ cross-claim for indemnity in the amount of any damages the Shealys may be called on to pay to the Rountrees, plaintiffs in this action for personal injuries.

William Rountree was injured at the Shealys’ service station when one of the exterior doors was opened outward over a four inch drop to the sidewalk where Rountree was standing. The sharp lower edge of the door cut Rountree’s Achilles’ tendon just above the shoe on his right foot. The Rountrees’ third amended complaint asserts claims against the Shealys, for negligence in maintaining the allegedly dangerous entryway, and Clark, for negligence in designing and building the entryway some years earlier. The Shealys, asserting that any active negligence was Clark’s and that they were at most passively negligent, cross-claimed for indemnity on the theory recognized in Winn-Dixie Stores, Inc. v. Fellows, 153 So.2d 45 (Fla.App. 1st, 1963) and Mims Crane Service, Inc. v. Insley Mfg. Corp., 226 So.2d 836 (Fla.App. 2nd, 1969).

With the Rountrees’ claim against all defendants as yet untried, the trial court ruled that the prospective liability of the Shealys to the plaintiffs would not result from merely passive negligence but rather from their active negligence concurring with Clark’s negligence, if any, in producing Rountree’s injury. Accordingly, the trial court ruled that, in the event of a verdict for the plaintiffs, no indemnity would be due from Clark, one of the alleged joint tortfeasors, to the Shealys. The Shealys seek by this appeal to establish that any negligence on their part is only passive, compared with Clark’s active negligence, and consequently that the Shea-lys are entitled to indemnity from Clark for any amounts they may be eventually required to pay the Rountrees. The law as it existed when the matter was before the lower court- permitted neither contribution among joint tortfeasors nor proportionate allocation of plaintiffs’ damages between the defendants. Travelers Ins. Co. v. Bal-linger, 312 So.2d 249 (Fla.App. 1st, 1975).

The trial court’s “final summary judgment” was entered in November 1974, several months before the Supreme Court’s decision in Lincenberg v. Issen, 318 So.2d 386 (opinion filed July 30, 1975, rehearing denied October 8, 1975), and the enactment of Ch. 75-108, Fla.Laws 1975, the Uniform Contribution among Tortfeasors Act, made applicable to this case by § 4 thereof.

At oral argument we questioned whether the order from which this appeal was taken is in fact a final judgment. Counsel for the parties, no doubt mindful of the effort and expense they, their clients and the courts have already committed to the prosecution of this appeal, regard the trial court’s order as final and appealable and they urge us to do the same. We have concluded, however, that the order was interlocutory. The Roun-trees’ claim against both the Shealys and Clark is still pending and untried. The order eliminates no parties and it does not materially affect the necessity for a trial. It simply eliminates, as between the Shea-lys and Clark, certain issues which cannot arise until a verdict for the Rountrees has been returned, which may never occur. The indemnity claim by the Shealys against Clark is so interrelated' with the principal claim remaining to be tried that the appealed matter cannot be regarded as a distinct, and severable cause of action the disposition of which is appealable. This plenary appeal is therefore inappropriate. S.L.T. Warehouse Co. v. Webb, 304 So.2d 97 (Fla.1974); Meadows v. Ward, 306 So. 2d 179 (Fla.App. 2nd, 1975).

The order appealed from is one “granting partial summary judgment on liability.” It is therefore reviewable by interlocutory appeal pursuant to Rule 4.2, F. A.R. Compare DeWitt v. Seaboard Coast Line R.R. Co., 268 So.2d 177 (Fla.App. 2nd, 1972). While we may treat the case as having been properly brought here by interlocutory appeal [Crepaldi v. Wagner, 128 So.2d 759 (Fla.App. 1st, 1961)], the case would gain nothing by our doing so. No decision we could make would eliminate the necessity for a trial on plaintiffs’ claim against both the Shealys and Clark and their respective insurers. Because the responsibilities of the Shealys and Clark inter se and to the plaintiffs must be reevaluated in the light of Lincenberg and Ch. 75-108, Fla.Laws 1975, it is preferable that the trial court do so initially, upon the full record that the trial will afford.

Good lawyers face a dilemma when contemplating a trial court order which is marginally final and appealable. To appeal may be futile and expensive, yet to withhold appeal can be disastrous. E. g., Conboy v. City of Naples, 226 So.2d 108 (Fla.App.2nd, 1969). There are available means for salvaging the value of the time and effort we and counsel have devoted to a plenary appeal from a nonappealable interlocutory order. In this case one such means, as we have said, would be to treat the case as having been- perfected by interlocutory appeal. Another is to review the case as on petition for common law writ of certiorari. Stuart v. Hertz Corp., 302 So. 2d 187 (Fla.App. 4th, 1974); Beta Eta House Corp. v. Gregory, 230 So.2d 495 (Fla.App. 1st, 1970). There is precedent for rendering an informal advisory opinion in the course of dismissing the appeal. See 9 Moore, Federal Practice, para. 110.-07, at 110, note 16 (2d ed. 1948). We abstain from these measures in this case only because we cannot thereby speed the disposition of the case nor prevent unnecessary labor in the court below.

Appeal dismissed.

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


author: MILLS, Judge.

text:
    Lowell W. Lewis and Ivie D. Griffen. In re the GUARDIANSHIP OF Cheryl Lynn LEWIS. Linda Sue LEWIS, on behalf of Cheryl Lynn Lewis, Appellants, v. Bertha Mae GODWIN, Appellee.
    Nos. X-60, X-89.
    District Court of Appeal of Florida, First District.
    Dec. 4, 1975.
    G. Robert Barron of Smith, Grimsley, Barron & Remington, Fort Walton Beach, and Daniel C. Campbell of Ferrin C. Campbell, Sr. Law Offices, Crestview, for appellants.
    Brooks, Taylor, Crestview, for appellee.
   MILLS, Judge.

The natural mother, maternal grandfather, and paternal uncle of a three-year-old female child appeal from a final judgment appointing the nonrelative appellee as guardian of the child’s person and property. The issue is whether the circuit court has authority to appoint a guardian where no petition for appointment of guardian is filed with the court.

Appellee filed a petition for adoption; the paternal uncle filed a petition for appointment as guardian; the maternal grandfather filed a counterpetition for appointment as guardian; and the natural mother filed a petition for writ of habeas corpus. The cases were consolidated for final hearing. The court denied each of the petitions, but appointed appellee as guardian.

The authority of the circuit court in guardianship matters is conferred by Chapter 744, Florida Statutes, 1973. Section 744.30, Florida Statutes, 1973, requires that a verified petition for appointment of guardian be filed with the court. In addition, this section sets forth what must be stated in the petition. Because appellee did not comply with Section 744.30, the court lacked jurisdiction to appoint her as guardian.

The trial court denied the petitions of the natural mother, maternal grandfather, and paternal uncle, because it appointed appellee as guardian. Since we have reversed this appointment, it is our opinion that these cases should be remanded for reconsideration of their petitions by the trial court, and, in addition, the trial court may permit the appellee to file a petition for appointment as guardian, if she desires to file one. We do this because we feel that the trial court is in a better position to evaluate the witnesses and their testimony than we are. The trial court may allow such additional testimony as he deems necessary.

Reversed and remanded for reconsideration of the petitions of the natural mother, maternal grandfather, and paternal uncle, and consideration of a petition by appellee, if permitted, and if filed.

McCORD, Acting Chief Judge, and WILLIS, BEN C., Associate Judge, concur.


text:
    Elmo James IVIE, Petitioner, v. FLORIDA DEPARTMENT OF COMMERCE, INDUSTRIAL RELATIONS COMMISSION, and Postal Data Service Center, Respondents.
    No. 75-1050.
    District Court of Appeal of Florida, Fourth District.
    Dec. 5, 1975.
    Elmo James I vie, in pro per.
    Kenneth H. Hart, Jr., Gen. Counsel, Tallahassee, and James R. Parks, Miami for appellee, Florida Dept, of Commerce Industrial Relations Com’n.
   PER CURIAM.

We have considered the merits of this timely Petition for Certiorari to review the decision of the Industrial Relations Commission denying unemployment compensation benefits. We find competent substantial evidence to support the finding that petitioner voluntarily left his employment without good cause attributable to his employer. Thus, the petition is

Denied.

WALDEN, C. J., and OWEN and DOWNEY, JJ., concur.


text:
    Sally BROWN and Harry Brown, her husband, Appellants, v. MIAMI ELEVATOR COMPANY, a corporation, and United States Fidelity & Guaranty Company, a corporation, Appellees.
    No. 74-1479.
    District Court of Appeal of Florida, Third District.
    Dec. 2, 1975.

      Kaplan, Dorsey, Sicking & Hessen and Joseph C. Segor, Miami, for appellants.
    Daniel V. Ligman, Coral Gables, Jeanne Heyward, Miami, for appellees.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

The plaintiff appeals a directed verdict for the defendant entered at the close of all the evidence. The question presented is whether there was evidence to go to the jury concerning appellants’ allegation that the defendants negligently maintained an elevator which malfunctioned thereby causing plaintiff’s injury. A review of the record reveals that the court correctly ruled that there was no evidence of a negligent breach of duty. See McGriff v. Associated Grocers of Florida, Inc., Fla.App. 1972, 258 So.2d 468.

Affirmed.


text:
    Timothy STREETER, Appellant, v. The STATE of Florida, Appellee.
    No. 75-491.
    District Court of Appeal of Florida, Third District.
    Dec. 2, 1975.
    Phillip A. Hubbart, Public Defender, and Paul Morris, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., and Carl Schwait, Legal Intern, for appellee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Defendant seeks review of his conviction and life sentence for second degree murder on the grounds that by the exclusion of certain defense witnesses, he was denied his constitutional right to prepare and present a defense.

Defendant, Timothy Streeter, was charged with second degree murder by information filed on July 29, 1974. On this information, reciprocal discovery was invoked pursuant to RCrP 3.220. On November 7, the grand jury handed down an indictment for first degree murder against the defendant based upon the same facts alleged in the information of July 29. On November 18, the defendant appeared for trial on the information at which time the prosecution requested a nolle prosequi. The information was dismissed in order that the same case number be retained, and the defendant at the same time was arraigned on the indictment.

Thereafter, the defense invoked unilateral discovery on the indictment. The cause proceeded to a jury trial and at the close of the prosecution’s case the defense sought to call two witnesses, one of whom would have testified that he had observed the crime and the defendant did not commit it. The prosecution objected on grounds that they had not been supplied with the names and addresses of these witnesses although the reciprocal rules of discovery had been invoked. After hearing argument of counsel, the trial judge excluded these defense witnesses. The jury returned a verdict of guilty of second degree murder and this appeal resulted. We reverse.

The prosecution argues that although the July 29 information was dismissed, the same case number was maintained and all pleadings retained in the file and, therefore, the reciprocal rules of discovery were still in effect with regards to the indictment. The defense contends to the contrary that upon the information being dismissed, the reciprocal discovery invoked under it also terminated and did not apply to the subsequent indictment.

After an examination of the record, it becomes apparent that there was a valid misunderstanding as to whether or not, upon the dismissal of the information for second degree murder, the reciprocal rules, of discovery invoked under it would still be in effect and applicable to the subsequently filed indictment for first degree murder. Further, defense counsel informed the court that the prosecution had been apprised of the existence of the defense witnesses prior to trial. We conclude that the trial judge abused his discretion in invoking the severe sanction of prohibiting the defense from calling its two witnesses instead of granting a recess and allowing the prosecutor to interview the witnesses and satisfy himself as to whether the prosecution would be prejudiced by the witnesses being allowed to testify. See Richardson v. State, Fla.1971, 246 So.2d 771; Picot v. State, Fla.App. 1973, 280 So.2d 693 and cases cited therein.

The judgment and sentence is reversed and the cause remanded to the trial court for a new trial.

      . As suggested by the clerk of the circuit court.