text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al., Appellants, v. Joseph William GUTHRIE, and Laura Guthrie, as mother and natural guardian of Joseph William Guthrie, Appellees.
    No. 74-1754.
    District Court of Appeal of Florida, Third District.
    Oct. 28, 1975.

      Talburt, Kubicki & Bradley, and Robert Dickman, Jeanne Heyward, Miami, for appellants.
    Iva W. Kay, Jr., Miami, for appellees.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Defendants appeal an order granting a new trial for the reason that the conduct of defense counsel prejudiced the jury against the plaintiffs.

On August 9, 1971, minor plaintiff Joseph Guthrie while in his vehicle, stopped in traffic, was struck from behind by an automobile operated by Antonio Varona and owned by Oscar Varona. Having sustained a neck injury as a result thereof, Joseph and his mother, Laura Guthrie, filed suit against the Varonas and their liability insurer, State Farm Mutual Automobile Insurance Company. During the trial a directed verdict on the issue of liability was entered against the defendants and the cause proceeded to be tried on the issue of damages. The jury returned a verdict in favor of Joseph Guthrie for $2,000 and in favor of Laura Guthrie for $500. After final judgment was entered, plaintiffs filed a motion for new trial on the grounds that defense counsel’s comments during trial were prejudicial to plaintiffs. The order granting the motion reads in pertinent part:

“That the Court permitted Defense Counsel in opening statement and throughout the trial to refer to numerous accidents that the Plaintiff had allegedly been involved in. The Court permitted this over objection of Plaintiffs’ Counsel based upon the representation of Defense Counsel that the aforementioned accidents were similar in nature to the accident which is the subject matter of this suit and that they involved similar injuries to those the Plaintiff complained of in this cause.
“It is the finding of the Court that in fact the aforementioned accidents were not similar in nature and further that they did not involve similar injuries to those of which the Plaintiff complained in the subject case; and that the effect of the above was to so prejudice the jury against the Plaintiffs so as to prevent a fair and impartial trial for the Plaintiffs; that the conduct of the Defense Counsel during the course of the entire trial was such that it prejudiced the jury against the Plaintiffs; that Defense Counsel repeatedly refused to heed rulings and admonishments by the Court all of which had the effect of prejudicing the jury against the Plaintiffs; that despite admonishments by the Court, Defense Counsel’s comments and conduct during final argument were prejudicial to the Plaintiff; that the jury’s verdict reflected passion and prejudice against the Plaintiffs and was so inadequate as to shock the Judicial conscience of the Court.”

Appellants contend the trial court erred in entering the above order where the verdict was supported by the manifest weight of the evidence, no improper evidence was introduced at trial, and defense counsel did not engage in prejudicial remarks during final argument.

With regard to defense counsel’s reference to other accidents in which minor plaintiff had been involved, the record demonstrates that in opening argument plaintiffs’ counsel advised the jury thereof and the trial judge instructed the jury to disregard defense counsel’s references to these accidents whenever he determined the references were improper. Thus, no substantial harm appears to have resulted therefrom.

As to the improper statement of defense counsel in his closing argument, it is well established that these statements will not result in mistrial, reversal or a new trial unless closing argument is highly prejudicial and inflammatory. Decks, Inc. v. Nunez, Fla.App.1974, 299 So.2d 165, 167 and cases cited therein. We do not find defense counsel’s statement to be so inflammatory and highly prejudicial as to require a new trial. Cf. Metropolitan Dade County v. Dillon, Fla.App.1974, 305 So.2d 36.

The trial judge having rendered curative instructions to the jury with regards to the improper reference to prior accidents and statements in closing argument made by defense counsel and, in addition, there being no finding that the verdict was against the manifest weight of the evidence, we are impelled to hold that the trial judge overstepped the bounds of his broad discretion.

The order granting a new trial as to damages is set aside and the cause remanded to the trial court with directions to reinstate the final judgment entered in accordance with the jury’s verdict.

It is so ordered.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    A. H. BLAKE et al., Appellants, v. FARRAND CORPORATION, INC., a Florida Corporation, and Mackle Company, Inc., a Florida Corporation, Appellees.
    No. 75-69.
    District Court of Appeal of Florida, Third District.
    Oct. 28, 1975.
    Stuart Simon, County Atty., and R. A. Cuevas, Jr., Asst. County Atty., for appellants.
    Adams, George, Wood, Lee & Schulte and David L. Willing, Miami, for appel-lees.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

The tax assessor of Dade County takes this appeal to review a final judgment re-during the 1973 tax assessment against the real property of the plaintiffs.

Ferrand Corporation, Inc. and Mackle Company, Inc., plaintiff-appellees, each own three parcels of adjacent real property which is located on Key Biscayne and zoned for multi-residential or high density use. As of January 1, 1973, the taxing date, the land which was assessed for $3,067,519 was subject to a building moratorium precluding the use of the property under the high density zoning. Plaintiff taxpayers filed suit to challenge this assessment as being excessive.

At the trial, extensive testimony as to the value of the property, which ranged from $0.00 to $4,467,450, was offered by plaintiff taxpayers and the taxing authorities. The trial judge determined that the 1973 assessment was made arbitrarily and without consideration of the enumerated factors as set forth in § 193.011, Fla.Stat., F.S.A., and enjoined the defendant taxing authorities from assessing or collecting ad valorem taxes against plaintiffs’ property upon the evaluation in excess of the total sum of $1,840,511.40. The tax assessor appeals this reduced assessment. We affirm.

On appeal, defendant-appellants did not contest the finding of the trial judge that the subject assessment was arbitrary and made without consideration of the enumerated factors as set forth in § 193.011, Fla. Stat., but rather they argue the court cannot fix an assessment at a figure between the values which were testified to at trial.

The determination of the weight to be accorded to the expert testimony of the real estate appraisers rested upon the trial judge, as trier of the facts, and if competent substantial evidence is introduced demonstrating that the tax assessor’s assessment is erroneous, he may reduce that assessment. See Dade County v. Miami Herald Publishing Company, Fla.App.1973, 285 So.2d 671 and Simpson v. Merrill, Fla.1970, 234 So.2d 350, 352.

Although no one specifically testified that $1,840,511.40 represented the value of the property as of the tax date, we cannot say that the trial judge arbitrarily arrived at this figure inasmuch as there was competent substantial evidence presented to support his determination of the just valuation of the property.

Accordingly, the judgment appealed is affirmed.


text:
    Jerry Lee JOHNSON and William Earl Ryder, Appellants, v. STATE of Florida, Appellee.
    No. Y-369.
    District Court of Appeal of Florida, First District.
    Oct. 31, 1975.

      Richard W. Ervin, III, Public Defender, for appellants.
    Robert L. Shevin, Atty. Gen., and Gerald L. Knight, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellants were charged in the trial court with breaking and entering with intent to commit a felony, to wit: larceny of a firearm, and with larceny of a firearm. They filed a motion seeking discharge, alleging a violation of the speedy trial rule, which motion was denied. On the same day the defendants appeared before the trial court and entered a plea of nolo con-tendere to the offense charged in the second count of the information, viz: larceny of a firearm. The learned trial judge, after interrogating appellants as to the volun-tariness of their pleas and after advising them that their pleas constituted a waiver of certain constitutional rights, accepted the pleas of nolo contendere to the charge of larceny of a firearm, ordered that adjudication of guilt and imposition of sentence be withheld, and further ordered that both appellants be placed on probation for a period of three years. In what appears to be obviously a scrivener’s error, the formal orders withholding adjudication of guilt and placing appellants on probation provided that they both plead guilty to the offense of breaking and entering with the intent to commit a felony, to wit: larceny of a firearm, as charged in Count One of the information. However, as above recited, the transcript of the proceedings reflects that the defendants plead nolo contendere to larceny of a firearm as charged in Count Two of the information.

We find that the learned trial judge correctly ruled on appellants’ motions for discharge. (State ex rel. Butler v. Cullen, Sup.Ct. Fla. 1971, 253 So.2d 861.) However, the discrepancy between the record and the formal order above mentioned should be corrected. This cause is therefore remanded to the trial court with directions that corrected orders be entered. It is not necessary that appellants be returned to the trial court for such purpose. Upon corrected orders being entered this cause shall stand

AFFIRMED.

BOYER, C. J., and RAWLS and Mc-CORD, JJ., concur.


author: OWEN, Judge.

text:
    William H. GOODFRIEND, Appellant, v. Elbert J. DRUCK and Transit Company of the Palm Beaches, a Florida Corporation, Appellees.
    No. 75-701.
    District Court of Appeal of Florida, Fourth District.
    Oct. 31, 1975.

      John A. Gentry, III, of Moyle, Gentry, Jones & Flanigan, West Palm Beach, for appellant.
    Lawrence Philip Zolot of Druck, Grim-mett, Norman & Weaver, Fort Lauderdale, for appellee-Druck.
   OWEN, Judge.

Appellant, a judgment debtor of one of the appellees, has filed this interlocutory appeal from an order overruling his objection to certain interrogatories propounded in aid of execution as authorized by Rule 1.560 RCP. While the objection related to questions concerning property held in the name of appellant’s spouse and/or children, the questions propounded do not seek privileged information and are reasonably within the scope of discovery permitted under Rule 1.280(b) RCP.

Affirmed.

WALDEN, C. J., and CROSS, J., concur.


text:
    Lee Marvin ROBINSON, Appellant, v. The STATE of Florida, Appellee.
    No. 75-372.
    District Court of Appeal of Florida, Third District.
    Oct. 28, 1975.
    Hacker & Phelps, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Lance Stelzer and Joel Rosenblatt, Asst. Attys. Gen., for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

This is an appeal from an order denying petitioner’s motion for post-judgment relief after a full evidentiary hearing. The motion is bottomed upon the defendant’s allegation that he should be granted a trial because the trial court erred in accepting his guilty plea. It is urged that although he and his counsel stated fully that the plea was voluntary under interrogation by the trial judge at the time that it was accepted, that it should now be set aside because the trial judge should have suspected that he was not well and that there were “coercive factors” present. The question presented to us, therefore, is whether or not the evidence before the trial judge was sufficient to support a denial of the petition. We find that the evidence was sufficient and we hold that it amply supported a finding that the 1971 guilty plea was voluntary. See Mason v. State, Fla.App.1969, 221 So.2d 186, 24 L.Ed.2d 168, and cf. Ross v. Wainwright, Fla.App.1969, 224 So.2d 779, where the voluntariness of the guilty plea was upheld despite the absence there, unlike the present case, of an evidentiary hearing.

We have considered appellant’s other point and have found no error demonstrated.

Affirmed.


text:
    Johnny Lee JACKSON, Appellant, v. The STATE of Florida, Appellee.
    No. 75-384.
    District Court of Appeal of Florida, Third District.
    Oct. 28, 1975.
    Phillip A. Hubbart, Public Defender and Bennett H. Brummer, Asst, Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

Affirmed on the authority of State v. Coles, Fla.1956, 91 So.2d 200; State v. Sebastian, Fla.1965, 171 So.2d 893; Payton v. State, Fla.App.1967, 200 So.2d 255; Shifrin v. State, Fla.App.1967, 210 So.2d 18; Wetherington v. State, Fla.App.1972, 263 So.2d 294; Turner v. State, Fla.App.1974, 298 So.2d 559.


author: PER CURIAM. HENDRY, Judge

text:
    Ramos CLEARE, Appellant, v. The STATE of Florida, Appellee.
    No. 75-260.
    District Court of Appeal of Florida, Third District.
    Oct. 28, 1975.
    Phillip A. Hubbart, Public Defender, and Steven Rappaport, Asst. Public Defender, and Ramon Rasco, Legal Intern, for appellant.
    Robert L. Shevin, Atty. Gen., and Linda Collins Hertz, Asst. Atty. Gen., for appel-lee.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

The only substantial question presented on this appeal is whether the evidence considered as a whole is sufficient to establish that the defendant was guilty of grand larceny as distinguished from petty larceny. The appellant stole two cases of cigarettes, containing fifty-eight cartons. The two cases were testified to contain 580 individual packages of cigarettes. The State’s witness in response to the question: “Do you know the value of these fifty-eight cartons of cigarettes ? ” gave an answer as to the value of the individual packs as follows: “Well, wholesale they cost us forty-two cents. Retail we sell them for sixty.”

We hold that a fair reading of the testimony shows that the two cases of cigarettes had a value of at least $243. The judgment is affirmed upon the rule stated in Golden v. Morris, Fla.1951, 55 So.2d 714.

Affirmed.

HENDRY, Judge

(dissenting).

I respectfully dissent.

Appellant contends on appeal that the evidence adduced at his trial was insufficient to sustain a conviction for grand larceny, because appellee, the State of Florida, failed to prove the value of the property taken was $100 or more, as required by § 811.021(2), Fla.Stat., F.S.A. Appellant further contends that the evidence showed, at most, only an attempted petit larceny.

Appellee contends that there was sufficient competent evidence of the value of the stolen property to support the conviction and sentence for grand larceny.

As in criminal cases generally, the state has the burden of proving beyond a reasonable doubt every essential element of the statutory offense of grand larceny. Under § 811.021, Fla.Stat., F.S.A., it is necessary to prove the value of the property stolen so that the grade of the offense can be determined, i. e., grand or petit larceny. For purposes of classifying the larceny as grand or petit, the value to be used is normally market value at the time of the theft. Platt v. State, Fla.App.1974, 291 So.2d 96; Spencer v. State, Fla.App.1968, 217 So.2d 332, and Todd v. State, Fla.App.1966, 187 So.2d 908.

Our review of the record in the instant appeal shows that the only testimony as to the value of the property stolen was as follows :

“Q. What was inside these cases, do you know?
“A. That he picked up ?
“Q. Yes.
“A. Cigarettes.
“Q. Do you know how many cases?
“A. Well, there were fifty-eight cartons, two cases with — you know, they have thirty cartons in each case, but one case was two cartons short.
“Q. Did you count those yourself?
“A. Yes.
“Q. And you found fifty-eight cartons ?
“A. Right.
“Q. Do you know the value of those fifty-eight cartons of cigarettes?
“A. Well, wholesale they cost us forty-two cents. Retail, we sell them for sixty.
“Q. And do you know how many individual packages of cigarettes would have been in those fifty-eight cartons?
“A. It would be five hundred and eighty.
“Q. Ten cigarettes per carton?
“A. Yes.”

I do not feel that this testimony sufficiently establishes the market value of the property at the time of theft so as to support the conviction for grand larceny. Further, I do not feel that I can, as urged by appel-lee, take judicial notice of the value of the stolen property, since innumerable factors could have affected its market value at the time of the theft. However, the evidence does show that the cartons of cigarettes had some value and the proof was adequate to sustain a conviction for petit larceny, an offense of a lesser degree included within the charge of grand larceny. § 811.021(3), Fla.Stat., F.S.A.

After a consideration of the record, all points in the briefs and arguments of counsel in light of the controlling principles of law, I am of the opinion that reversible error has been demonstrated. In conformity with § 924.34, Fla.Stat., F.S.A., I would reverse the judgment and sentence of the trial court in regard to the grand larceny charge with directions to enter a judgment of conviction for petit larceny and to impose sentence accordingly, taking into account the incarceration to which appellant has been subjected under the improper judgment and sentence.

      . We take judicial knowledge of Florida Statutes, chapter 210, which imposes a tax of seventeen cents on eacli package containing more than ten but not more than twenty cigarettes and provides for the payment of the tax by the affixing of stamps to the package. In addition, we take j'udicial knowledge of the United States Code, chapter 52, which levies a tax of $4.00 per thousand on cigarettes manufactured or imported into the United States and provides for the payment by the manufacturer or importer.


author: SCHWARTZ, ALAN R., Associate Judge.

text:
    WELLINGTON-HALL, LTD., a North Carolina Corporation, Appellant, v. COMPREHENSIVE COMMUNITIES CORPORATION, formerly Osias Organization, Inc., Appellee.
    No. 73-1346.
    District Court of Appeal of Florida, Fourth District.
    Oct. 31, 1975.

      Charles R. Morgan, Morgan, Carratt & O’Connor, Ft. Lauderdale, for appellant.
    Marshall J. Cooper, Ft. Lauderdale, for appellee.
   SCHWARTZ, ALAN R., Associate Judge.

The plaintiff-appellant sued the defendant-appellee for money damages arising out of an alleged breach of contract. Pursuant to Fla.Rule of Civil Procedure 1.110(d), the defendant raised the affirmative defense that the admittedly unsecured debt sued upon had been discharged in bankruptcy. At the non jury trial the defendant introduced in support of this defense only a “Final Decree” entered by a Bankruptcy Judge which reflected that Comprehensive Communities had been involved in Chapter XI proceedings under the Bankruptcy Act and that the “estate [was] . . . closed;” the “Final Decree” did not reflect — and there was no other evidence presented as to these issues —that a plan of arrangement under Chapter XI had been presented to the Bankruptcy Court; that any plan had actually been approved; or, most importantly, that any such plan made any provision either for the plaintiff’s claim specifically or those in its class generally. The trial judge nonetheless entered a final judgment for the defendant on the sole ground that the cause of action had been in fact “discharged in bankruptcy.” We reverse the judgment for a new trial upon a holding that the evidence presented below was insufficient, as a matter of law, to support the affirmative defense relied upon.

The purpose of a Chapter XI proceeding is to keep a debtor out of “ordinary” bankruptcy if he can offer an “arrangement” for the payment of his debts which is fair and acceptable to most of his creditors. 9 Remington on Bankruptcy, § 3565, p. 202. Such an arrangement may provide for the payment of all, or only some, of the debtor’s unsecured creditors, and may treat different classes of creditors in different ways. 9 Remington on Bankruptcy, § 3587, p. 230, § 3606, p. 246. The effect of any such arrangement upon the issue before us — the discharge of a particular debt — is treated very directly in § 371 of the Bankruptcy Act itself. 11 U.S.C.A., § 771 provides:

“The confirmation of an arrangement shall discharge a debtor from all his unsecured debts and liabilities provided for by the arrangement, except as provided in the arrangement or the order confirming the arrangement, but excluding such debts as, under section 35 of this title, are not dischargeable.” [emphasis supplied]

A simple reading of this statutory provision, without more, compels the conclusions both that a debt, such as the plaintiff’s here, may well not be discharged by the confirmation of a plan of arrangement (assuming both the existence of such a plan and the fact of its confirmation), and, therefore, that the affirmative defense of discharge may not be sustained merely by a showing that a Chapter XI proceeding once existed and then was terminated. As is said in 9 Collier on Bankruptcy, § 9.-32 [4] pp. 406-407:

“A debt is not discharged by confirmation of a plan unless it is ‘provided for by the arrangement.’ A plan need not necessarily deal with creditors. It can deal with all unsecured debts on a parity; or it can divide the unsecured debts into classes and treat the classes in different ways or upon different terms; or it can divide the unsecured debts into classes and deal with one or more of the classes but not with all of them. In requiring that a debt be ‘provided for by the arrangement’ in order to be discharged by confirmation, § 371 means that the plan must deal with that debt by providing for the payment of some consideration to the holder of that debt. If a plan does not provide for the payment of some consideration for the modification or alteration of a creditor’s rights, the debt owed to that creditor is not affected by the discharge which results from confirmation of the plan. A creditor ‘provided for by the arrangement’ should not be confused with a creditor ‘affected’ by the plan. Under § 308, a creditor is ‘deemed’ to be ‘affected’ by an arrangement only if his interest shall be materially and adversely affected thereby.’ Whether or not the creditor is being dealt with in the plan is not determinative of whether he is affected by it. A creditor not dealt with may be ‘affected’ by the plan, but since he is not ‘provided for by the arrangement' the debt owing to him is not discharged by confirmation of the plan.”

The appellee argues that the fact that the plaintiff failed to file a claim in the Chapter XI proceeding despite its awareness of its pendency automatically precludes recovery. This contention misses the mark entirely. It is plain that a particular debt may, or may not be discharged regardless of whether a creditor filed a claim. As Collier goes on to say at § 9.-32 [4], p. 407:

“A creditor ‘provided for by the arrangement’ likewise should not be confused with a creditor listed in the schedules of the debtor, since there is no necessary relationship between the two. A creditor may be scheduled, but not provided for by the plan, and therefore the debt owing to him would not be discharged by confirmation. On the other hand, a creditor may not be scheduled and yet be provided for by the plan, as where the plan provides for all unsecured creditors. That offer extends to unscheduled as well as scheduled secured creditors, and if an unscheduled creditor timely files his claim and it is allowed, he participates in the distribution of the consideration and receives the rights provided by the plan. Whether or not the unscheduled creditor files his claim, since it is provided for by the plan it is discharged by confirmation if the creditor had timely notice or knowledge of the case and the debt otherwise comes within § 371.” [emphasis supplied]

As our rules specifically provide, the defense of discharge in bankruptcy must be pleaded and proven by the party relying upon it. See also, e.g., Helms v. Holmes, 4 Cir. 1942, 129 F.2d 263; Personal Indus. Loan Corp. v. Forgay, 10 Cir. 1957, 240 F.2d 18, cert. denied, 354 U.S. 922, 77 S.Ct. 1380, 1 L.Ed.2d 1436 (1957), 8 Remington on Bankruptcy, §§ 3240-3241, pp. 70-72. In the case of an “ordinary” bankruptcy, introduction of the “discharge in bankruptcy” is prima facie proof of the discharge of a particular claim. E.g., U.S.F & G Co. v. Tanner, D.Colo.1968, 279 F.Supp. 396, 399. In this instance, however, essentially because, as we have seen, a discharge may be effected under Chapter XI only because and under the terms of the arrangement and the order confirming it, both of these documents are required to sustain the debtor’s affirmative burden. The case is remanded so as to allow the defendant the opportunity properly to demonstrate the discharge and, if it cannot, for the Court to enter such judgment on the merits of the plaintiff’s cause of action as it deems appropriate.

Reversed and remanded.

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


author: McCORD, Judge.

text:
    Raymond Lee HORNBROOK, Appellant, v. STATE of Florida, Appellee.
    No. X-201.
    District Court of Appeal of Florida, First District.
    Nov. 5, 1975.

      Henry R. Barksdale of Barksdale, Murphy & Crongeyer, Pensacola, for appellant.
    Robert L. Shevin, Atty. Gen., and Michael M. Corin, Asst. Atty. Gen., for appel-lee.
   McCORD, Judge.

This is an appeal from appellant’s conviction of receiving stolen property and his sentence thereon. Among other points urged by appellant for reversal was his contention that the state did not prove that the subject matter of the case, the stolen air conditioning system, was the system found in appellant’s possession. This point has merit and requires reversal. The only evidence presented as to such identification was a hearsay statement of a conclusion by a deputy sheriff to the effect that through their investigation they had identified the units found in appellant’s truck as the stolen units. He did not say how or by what means they were identified or that he made the identification. The testimony shows that one of the stolen units had a serial number on it, but there was no testimony that any unit found in appellant’s truck bore that serial number. In sum there was an absence of proof to connect any of the stolen units with the units found in appellant’s truck.

As stated by the District Court of Appeal, Second District in Smith v. State, Fla.App., 228 So.2d 440 (1969):

“The applicable law in this matter is well stated in Armstrong v. State, 1932, 107 Fla. 494, 496, 145 So. 212, 213:
‘This court is committed to the doctrine that a verdict of guilt of felony should not be upheld when based on guesswork or suspicion, and that, where the evidence, considered as a whole, entirely fails to disclose any substantial proof of material facts necessary to be alleged and proved, a judgment of conviction will be reversed. (Citations omitted.)’ ”

Reversed and remanded for a new trial.

RAWLS, Acting C. J., and SMITH, SAMUEL S., Associate Judge, concur.


author: DOWNEY, Judge.

text:
    Paul POTTER, as Executor of the Estate of Frederic C. Collin, Deceased, et al., Appellants, v. Doris COLLIN, Appellee.
    No. 74-40.
    District Court of Appeal of Florida, Fourth District.
    Aug. 29, 1975.
    Rehearing Denied Nov. 18, 1975.

      C. H. Albury, of Carlton, Brennan, McAliley, Albury & Hayskar, West Palm Beach, for appellant-Paul Potter, as Executor of the Estate of Frederic C. Collin, deceased.
    John S. Call, Jr., of Stewart, Van der Hulse, Call & Byrd, Palm Beach, for appellant-Florida Polo, Inc.
    James W. Winters of Winters, Brackett, Lord & Held, West Palm Beach, for appellant-James G. Collin.
    John V. Christie, Miami, and Robert C. Ward of Sibley, Giblin, Levenson & Ward, Miami Beach, for appellee.
   DOWNEY, Judge.

The ultimate question we have for review concerns the validity of an antenup-tial agreement executed by a wealthy, twice married and divorced, 81 year old man and a relatively impecunious, once married and divorced, 47 year old woman. In a suit by the wife against her deceased husband’s executor to set aside said agreement, the trial court held the agreement was void and unenforceable, and the executor and other persons interested in the estate have appealed.

The decedent, Frederic Collin, and appel-lee (formerly Dorothy Reitz) had “dated” for several years when they decided to marry. Although 81 years of age, Mr. Collin was a vigorous domineering individual who had accumulated considerable wealth. Two unhappy marriages ending in divorce left their mark on him, as can be seen from the subject antenuptial agreement. Appellee had also been married for some 16 years, had an adult daughter, and had entered into a property settlement agreement at the conclusion of her first marriage. Appellee had a high school education and held jobs as a bookkeeper, a secretary, and a salesperson. She and her sister had constructed a rental apartment building of modest size, and though she received one-half the income therefrom, her weekly income prior to marriage was rather minimal.

Prior to the marriage ceremony, Mr. Collin had his attorney prepare a proposed antenuptial agreement. He furnished said agreement, together with a formally written, detailed disclosure of his assets, to ap-pellee and insisted she take them to a lawyer of her choosing for advice and counsel. Appellee took the proposed agreement and the financial disclosure statement to her lawyer. After conferring with him several times regarding the proposed agreement, and after some changes had been made, ap-pellee signed the agreement in her lawyer’s office. Appellee’s lawyer then conveyed the executed agreement to Mr. Collin’s lawyer with a cover letter stating that he had strongly advised appellee not to execute the agreement as it was “a bad business proposition.” Appellee’s counsel also certified in writing that he had reviewed the financial disclosure statement with ap-pellee and that he had represented her “with respect to entering into the . agreement and ha[d] given her [his] best advice with respect thereto.”

The antenuptial agreement involved herein as finally executed is some nine pages long and very explicit. It contains a recital of the background giving rise to the need therefor, such as the prior divorces of the parties, the determination that the anticipated marriage might have a better chance of success if there were no possible financial inducements to separation or divorce, and the express representation of appellee that she would enter into the agreement regardless of the size of Mr. Collin’s estate. The agreement recites that appellee, though possessing only minimal income in the past, had “gotten along nicely” and that she felt the provisions for her set forth in the agreement were reasonable. Those provisions included an allowance of $300 per month during the marriage for appellee to use for clothes and other personal needs, an allowance of $100 per month for 17 months to cover her premarital obligations, and the gift of a new automobile. In addition, Mr. Collin was to pay all of appellee’s medical, dental, and drug bills and all of their mutual household and entertainment expenses while they cohabited as man and wife. In the event of suit for divorce or separate maintenance, Mr. Collin, in lieu of temporary alimony, was to pay appellee in monthly installments during the proceedings a sum equal to her premarital income as recited in the agreement. If a judgment of divorce were entered, Mr. Collin was to pay appellee $5,000 in full satisfaction of all claims she might have, and each party was to pay his own attorney’s fees and costs. In the event of Mr. Collin’s death while the parties were still married and cohabiting as husband and wife, appellee was to receive $20,000 from Mr. Collin’s estate; and if she received any bequest under his will the $20,000 was to be credited against said bequest. If appellee survived Mr. Collin and they were not cohabiting as man and wife at his demise, then she was to receive only what was provided for her upon divorce. Each of the parties waived all rights (other than as provided in the agreement) to the property and estate of the other. Finally, appellee acknowledged that she had retained her own counsel; that she had been fully advised and had entered into the agreement freely and voluntarily and without any suggestion, coercion, or influence of any nature.

In due course the wedding took place and apparently the couple lived happily until Mr. Collin’s death about seventeen months after the wedding. This litigation was commenced approximately seven months after Mr. Collin’s death. The learned chancellor entered judgment in ap-pellee’s favor upon finding that appellee

“was so anxious to marry a man of wealth and society, whom she loved and was completely subservient to, that she would have agreed to any terms imposed upon her by her prospective husband. She hoped that her constant love and affection would cause him to make adequate provision for her upon his death.”

He also found that the provisions of the antenuptial agreement were so inadequate as to shock the conscience of the court.

In the context of the Collin-Reitz financial circumstances the agreement makes seemingly unreasonable and penurious provision for appellee. Were that the only factor involved in determining whether the agreement is valid, the decision below would unquestionably be correct. However, it is our view that the courts are not free to interfere with lawful but improvident marital agreements knowingly entered into by a person sui juris. Compare Posner v. Posner, Fla. 1972, 257 So.2d 530, with D’Amato v. D’Amato, Fla.App. 1965, 176 So.2d 907.

The guide lines for determining the lawfulness of antenuptial agreements are set forth in Del Vecchio v. Del Vecchio, Fla. 1962, 143 So.2d 17. That case involved the classical setting, as does this case, for an antenuptial agreement: a man in his twilight years preparing to marry a young woman, yet wanting to protect his estate for his children of a prior marriage or for close relatives. After Mr. Del Vec-chio died Mrs. Del Vecchio sued the executor of her husband’s estate to set aside their antenuptial agreement. There was no full disclosure of his assets nor had she had independent advice of counsel as to her rights. Recognizing that the subject of antenuptial agreements had not theretofore been squarely presented to it, the Supreme Court of Florida set about to explicate its views on the subject. Particularly pertinent to the decision in this case are the following pronouncements from that case:

“A valid antenuptial agreement contemplates a fair and reasonable provision therein for the wife, or, absent such provision, a full and frank disclosure to the wife, before the signing of the agreement, of the husband’s worth, or, absent such disclosure, a general and approximate knowledge by her of the prospective husband’s property. .
“If the provision made by the agreement is not fair and reasonable then it should be made to appear that the wife, when she signed, had some understanding of her rights to be waived by the agreement. In any event she must have signed freely and voluntarily, preferably, but not necessarily a required pre-requi-site, upon competent and independent advice.
“Inadequacy of provision for the wife does not in itself vitiate an antenuptial agreement. If, when she signed the contract freely and voluntarily, she had some understanding of her rights and had been fully informed by the husbatid as to his property or if, notwithstanding the husband’s failure to disclose, she had or reasonably should have had a general and approximate knowledge of the character and extent of his property she will be bound.” (Emphasis added.) 143 So. 2d at 20.

The rule we glean from the Del Vecchio case is that an antenuptial agreement which does not appear to be fair and reasonable will still be upheld if the less affluent prospective spouse entered into it freely and voluntarily and the more affluent prospective spouse made a full and frank disclosure of his worth before the agreement was executed, or the less affluent prospective spouse had an approximate knowledge of the other’s property. Thus we perceive it to be the law of this state that a prospective spouse has a right to freely choose to enter into an antenuptial agreement which may be improvident as to him or her, and the agreement will be upheld if there has been a full disclosure of the other prospective spouse’s worth or knowledge of the value of the latter’s estate. The case for validity of the agreement is strengthened if the prospective spouse was informed of his or her rights by independent counsel. Stated another way, any adult contemplating marriage who is sui juris can voluntarily agree to take all, little, or nothing from his or her prospective spouse’s estate upon the latter’s death, if the former is fully informed at the time he or she so elects. This rule applies to women as well as men. In this day and age there is no longer any suggestion that women are unequal and in need of the protective arm of the court. As Professor Gamble puts it:

“ . . . even though the male’s supposed intellectual dominance over the woman is seen throughout the law of antenuptial agreements as requiring legal protection for the weaker female, this premise is contrary both to the contemporary concept of the equality of women and to the freedom of mature parties to chart the rights and liabilities of their marriage relationship.”

No longer will the courts in viewing ante-nuptial contracts invariably begin “with the realization that between persons in the pre-matrimonial state there is a mystical, confidential relationship which anesthetizes the senses of the female partner.”

It is evident from this record that the appellee was fully aware of her prospective husband’s past unfortunate marital experiences and that he would not marry her without an antenuptial agreement. He fully disclosed that his assets exceeded $1,800,000. She consulted with a competent, independent lawyer of her own choosing who fully advised her of her rights — so fully that he advised her not to sign the agreement! She was an educated woman with experience in the world of business and with experience in divorce and property settlement agreements. The record supports a conclusion that the prospective husband had a domineering personality, but we are convinced from the totality of the evidence that it is clearly shown appellee entered into the agreement freely and voluntarily with full knowledge of the circumstances and of her rights. This conclusion is reinforced by the trial judge’s finding that appellee had high hopes that after the marriage her husband would soften up and make better provision for her as time went on.

Our reading of the record reveals that there is no substantial competent evidence in this record upon which to find any lack of volition on appellee’s part. It should be noted first that at no point in the trial did the appellee testify that she did not sign the agreement freely and voluntarily. In addition, on the issue of voluntariness the appellee offered the testimony of Byron Thomas and the deposition of Alex Gregory. Thomas’ testimony was of no significance, it consisting of such little vignettes as Mr. Collin insisting on where they should sit at a tennis match or insisting that appellee remain seated at the dining room table and not wait on him, or that she kiss him before leaving the room.

Gregory’s deposition contains testimony on the question of voluntariness; however, that testimony was hearsay and inadmissible as evidence under the stipulation of the parties relative to the admissibility of said deposition.

Appellee suggests on authority of Lindsay v. Lindsay, Fla.App. 1964, 163 So.2d 336, that the provisions of the agreement relating to alimony in the event of divorce are inadequate and unenforceable, thus rendering the entire agreement void. We do not accept that suggestion. The Lindsay case (citing Stratton v. Wilson, 170 Ky. 61, 185 S.W. 522 (1916)) indicates that the portion of a marital agreement providing for a waiver of dower in consideration of a sum certain may be upheld even though that portion of the agreement dealing with a waiver of alimony is void. We reject the suggestion that the possible invalidity of the alimony provision causes the entire antenuptial agreement under review to fail. This conclusion is reinforced by a comparison of Belcher v. Belcher, Fla. 1972, 271 So.2d 7, with Belcher v. Belcher, Fla.App. 1975, 307 So.2d 918.

For the foregoing reasons we reverse the final judgment under review and remand the cause with directions to enter judgment for the appellants.

CROSS, J., and LEE, THOMAS E., Associate Judge, concur.

      . “Legion are the judicial statements that the antenuptial contract is favored by public policy as being conducive to the welfare of the marriage relationship, and useful toward removing one of the frequent causes of family disputes — contentions about marital property rights.” Gamble, The Antenuptial Contract, 26 University of Miami Law Review 692.

      . Id. at 716.

      . Id. at 693.

      . Id., at 719.

      . Compare Cantor v. Palmer, Fla.App.1964, 166 So.2d 466, wherein it was held:
      “ . . . and when said [antenuptial] agreements are fairly entered into and both parties are represented by independent counsel of their own choosing [and it is apparent that the prospective wife had at least ‘approximate’ knowledge of the potential resources of the prospective husband] they should be upheld; particularly in view of the fact that generally, as in this case, the complaining wife awaits until death has sealed the lips of her husband before she makes an attack on the agreement.”
      It is of some interest that here too the complaining wife waited until her husband’s death to attack the agreement.

      .We recognize that the trial court found ap-pellee’s signature was involuntary. However, our review of the record leads us to conclude that this finding was erroneous.


author: OWEN, Chief Judge. CROSS, Judge

text:
    The WATERGATE CORPORATION, Appellant, v. Alma Lyons REAGAN et al., Appellees.
    Nos. 74-181, 74-183.
    District Court of Appeal of Florida, Fourth District.
    Sept. 26, 1975.
    Rehearing Denied Nov. 18, 1975.

      George H. Bailey of Jones, Paine & Foster, West Palm Beach, for appellant.
    Delbridge L. Gibbs, Francis P. Conroy and Christopher W. Gardner of Marks, Gray, Conroy & Gibbs, Jacksonville, for ap-pellees.
   OWEN, Chief Judge.

Count I of appellant’s second amended complaint, seeking declaratory judgment and other relief, was dismissed with prejudice. We conclude that this was error.

In substance, Count I of appellant’s second amended complaint alleged the following: Appellant’s predecessor in interest had purchased certain real property from appellee Reagan under a written agreement which granted to the buyer a “right of first refusal” with respect to any property owned by Reagan contiguous to the parcel purchased; that by process of merger plaintiff acquired the parcel of real property purchased from Reagan together with the “right of first refusal” as to the contiguous real property; that at a subsequent date appellee Reagan, desiring to acquire certain lands in Alabama and Mississippi, entered into a plan with the other appellees the net effect of which would result in (1) appellee Reagan exchanging 1,912.81 acres of land contiguous to appellant’s property for 20,595 acres of land located in Alabama and Mississippi, and (2) appellee Oriole Homes Corporation acquiring title to the 1,912.81 acres in Palm Beach County contiguous to appellant’s property subject to a mortgage held by appellee Chase Manhattan Mortgage and Realty Trust; that when the said plan was developed each of the appellees, with knowledge of the right of first refusal provision of the written agreement, agreed that the owner of said right of first refusal would not be informed of the full details of the planned transaction; that pursuant to such plan Reagan purported to invoke the right of first refusal provisions of the written agreement by means of an undated letter addressed to one of the principals of appellant in which it was stated that Reagan had received a written offer to enter into a contract for an exchange of property whereby approximately 1,930 acres of contiguous property would be exchanged for approximately 20,595 acres of land in Alabama and Mississippi; that such purported attempt by Reagan to invoke the right of first refusal provisions of the contract was void and ineffective because it did not provide appellant with the right to purchase the contiguous property at a price, nor did it adequately disclose the existence of the planned transaction or the crucial terms thereof so as to permit appellant to effectively exercise the right; that appellant sought to ascertain the details of the offer and to exercise the right and was at all times material ready, willing and able to exercise such right, but that thereafter and without regard to appellant’s right of first refusal the appellees did consummate the planned transaction; that appellant is in doubt as to its rights under the written agreement which appellee Reagan claims are either unenforceable or in any event were not timely and properly exercised; and that, as a result thereof, there is a bona fide, actual, present need for a judicial declaration of such rights and the enforcement thereof.

Upon the defendants’ motion the court entered its order dismissing with prejudice this count of the second amended complaint because (1) the right of first refusal imposed an unlimited restraint upon the free alienation of land and violated the rule against perpetuities, and (2) the complaint failed to allege that plaintiff strictly complied with the offer to exchange property or to allege that plaintiff unqualifiedly agreed to accept the offer within the time specified on the same terms and conditions offered by the third party.

In our opinion these allegations set forth a justiciable controversy upon which plaintiff/appellant has shown a bona fide need for a judicial declaration of its rights under the first refusal clause of the written agreement. The test of the sufficiency of the complaint is not whether the complaint shows that the plaintiff will succeed in getting a declaration of rights in accordance with his theory and contention, but whether he is entitled to a declaration of rights at all. Rosenhouse v. 1950 Spring Term Grand Jury, Fla.1952, 56 So.2d 445; Broward County v. Lerer, Fla.App.1967, 203 So.2d 672; Hankins v. Title and Trust Company of Florida, Fla.App.1964, 169 So.2d 526. On this basis alone we could quite properly conclude that it was error to dismiss this count of the second amended complaint. However, because the court based its ruling on certain specified grounds, each of which has been properly raised as a point on this appeal, we address ourselves to those points as well.

UNLAWFUL RESTRAINT ON ALIENATION

The agreement, which merely granted a right of first refusal, did not impose an unlawful restraint upon the free alienation of the property. This is in accord with the view of substantially all of the authorities, based on the rationale, generally speaking, that alienability is not restrained at all, but is in fact enhanced because the seller has two potential buyers instead of one. See, Restatement of Property, Section 413 (1944); 1A Corbin, Contracts, Section 261, at 481-482, (1950).

VIOLATION OF RULE AGAINST PERPETUITIES

Although there is respectable authority for the proposition that, since the right of first refusal constitutes no impediment to transfer of the property, the rule against perpetuities ought not be applied at all, 6 American Law of Property, Section 26.67 (1952), we think the better view to be that the agreement for the right of first refusal must not violate the rule against perpetuities. See, Restatement of Property, § 413.

The rule against perpetuities requires that an estate or interest, in order to be good, must vest, if at all, within the period of life or lives in being at the effective date of the instrument creating the future interest and twenty-one years thereafter, together with the period of gestation in case of posthumous birth. Adams v. Vidal, Fla.1952, 60 So.2d 545. Whether the right of first refusal would necessarily vest within this period depends upon a factual issue, i. e., whether the obligation is personal to appellee Reagan. If in fact the right of first refusal here is one which is personal to appellee Reagan, (so that it applies only if she should elect to sell or transfer any of the contiguous property during her lifetime) then such right of first refusal would necessarily vest, if at all, within the lifetime of Reagan and thus would not violate the rule against perpetuities. Points v. Barnes, Fla.App.1974, 301 So.2d 102. On the other hand, if the right of first refusal is one which follows the contiguous property into the hands of Reagan’s heirs or devisees, it would violate the rule against perpetuities since the right would not necessarily vest within the period of the rule.

Whether the right of first refusal was intended to be personal to appellee Reagan and to terminate upon her death cannot be determined from the instrument alone. This will require a determination of the intent of the parties to be developed by extrinsic evidence. But in the absence of such, and faced with ambiguity, the court should adopt a construction which will uphold the contract rather than one .which will invalidate it. See, 61 Am.Jur. 2d, Perpetuities, Section 8; Restatement of Property, Section 375.

FAILURE TO ALLEGE COMPLIANCE WITH OFFER

While ordinarily the holder of a right of first refusal, when suing for a breach of the agreement, must allege that he offered to match the competing offer. See, Mathews v. Kingsley, Fla.App.1958, 100 So.2d 445, such is not required when the complaint alleges a valid excuse for plaintiff’s failure to perform. See, 17 Am.Jur.2d, Contracts, Section 355; Restatement of Contracts, Section 295 (1932) ; 3A Corbin on Contracts, Section 767 (1951). Viewing the allegations most favorable to the pleader, we find that Count I of the second amended complaint meets this test. See, Denco, Inc. v. Belk, Fla.App.1959, 109 So.2d 201; Brenner v. Duncan, 1947, 318 Mich. 1, 27 N.W.2d 320. Whether in fact the notice which Reagan gave appellant was proper and effectual to invoke the right of first refusal will undoubtedly become an issue to be tried when appellees file their answer.

The order dismissing Count I of the second amended complaint is reversed and this cause remanded for further proceedings.

Reversed and remanded.

DOWNEY, J., concurs.

CROSS, J., dissents with opinion.

CROSS, Judge

(dissenting) :

I respectfully dissent.

Count I of appellant’s second amended complaint fails to set forth factual allegations that either (1) appellant offered to match the competing offer for appellee Reagan’s property, or (2) circumstances prevented appellant’s tendering such an offer. The absence of such allegation is fatal to appellant’s attempt to state a cause of action for breach of the right of first refusal agreement.

Accordingly, I would affirm the order of the trial court dismissing count I of the second amended complaint with prejudice.


text:
    STATE of Florida ex rel. Werner BUNTEMEYER, Appellant, v. The FLORIDA STATE COMMISSION ON ETHICS, Appellee.
    No. Y-223.
    District Court of Appeal of Florida, First District.
    Oct. 10, 1975.
    Michael R. N. McDonnell, Naples, and Henry K. Van Assenderp, Brown, Smith, Young & Pelham, Tallahassee, for petitioner.
    Talbot D’Alemberte, Miami, Robert L. Shevin, Atty. Gen., and William C. Sher-rill, Jr., Asst. Atty. Gen., for respondent.
   McCORD, Judge.

Relator filed Suggestion for Writ of Prohibition to prevent respondent from proceeding with a complaint filed against relator by one Thomas H. Callahan. We issued rule nisi and respondent has filed its return.

This proceeding involves a construction of certain provisions of Part III of Chapter 112, Florida Statutes, 1974, entitled “Standards of Conduct for Public Officers and Employees.” § 112.320 of that chapter creates respondent, the Commission on Ethics, and § 112.322 sets forth respondent’s duties and powers. Subsections (1) and (2) of § 112.322 provide as follows:

“(1) It is the duty of the commission on ethics to receive and investigate complaints of violation of the code of ethics as established in this part.
(2) When the commission determines in any case affecting an official or employee of the state, or of a county, city, or other political subdivision of the state, that a violation has been committed, the findings shall be transmitted to the person involved and to the official having power to take disciplinary action. The findings shall then become a matter of public record, but not before said finding.”

Subsections (l)(e) and (2) (a) of § 112.324 provide as follows:

“(e) Complaints concerning the violation of any provision of this part by an employee of a county, city, or other political subdivision of the state shall be directed to the official or board responsible for hiring that employee.
(2) (a) If, after 30 days, the responsible body, person, or board has not initiated action on the complaint, it shall be the duty of the commission on ethics to conduct its own investigation and recommend appropriate action to the proper disciplinary body of the senate or the house of representatives, the governor and cabinet, the head of the appropriate agency, or the official or board responsible for hiring the employee, whichever is applicable. If the commission finds probable cause that a violation of law has occurred, it may report the same to the appropriate law enforcement authorities.”

As shown by the suggestion and the return, respondent forwarded to Sunshine Drainage District and North Springs Improvement District copies of a complaint filed against relator by Callahan. The complaint alleges that a conflict of interest exists in relation to relator’s employment by each of the two districts. It is contended by relator that each of the districts initiated action on the complaints within the 30 day period provided by above-quoted subsection (2) (a) of § 112.324, thus precluding the independent investigation which is being initiated by respondent. Respondent contends the statute should be given a liberal construction commensurate with the express legislative intent and declaration of policy set forth in § 112.311, Florida Statutes; that the above-quoted limitation on respondent’s power to investigate a complaint limiting it to cases in which the responsible agency has not “initiated action” on the complaint within thirty days should be construed to require that the agency must “investigate and recommend appropriate action” within such period. Relator, on the other hand, contends that the two districts have each “initiated action” and have each determined that no violation of law existed; that the meaning of the statute is clear, and, thus, there is no reason to apply the rules of construction urged by respondent.

In this instance, pursuant to the statute, the complaints were forwarded by respondent commission to the two districts who were employers of relator on March 4, 1975. On March 18, 1975, relator filed a disclosure statement in compliance with § 112.313(3), Florida Statutes (1974), for the purpose of disclosing the fact of his status as an officer of Coral Ridge Properties, Inc., and Florida National Properties, Inc., and as superintendent of the North Springs and Coral Springs Improvement Districts and the Sunshine Drainage District. On the same date, the board of supervisors of the North Springs Improvement District considered the complaint filed by Callahan against relator and reviewed relator’s disclosure statement. As requested by the board, the attorney for the North Springs Improvement District reviewed the provisions of Chapter 112, Florida Statutes, and concluded and advised that the complaint was insufficient to allege a conflict and that relator’s mere position as an employee of the district did not constitute a basis for disqualification. The board then concluded that no further action was necessary as to the complaint and requested its attorney to so inform respondent.

On March 20, 1975, the Board of Supervisors of the Sunshine Drainage District met and considered the matter. After some discussion and the apparent assumption that respondent would rqyiew any action they took, the following motion was made and passed unanimously:

“Mr. Singer: I would like to make a motion then that we go ahead and at this time rule that a conflict of interest does not exist as we see it and request a review by the Ethics Commission.”

It is clear that the governing bodies of both districts considered the complaints and ruled that their superintendent had no conflict of interest. While the Sunshine Drainage District operated under a misapprehension that their action would be reviewed by respondent and requested a review by respondent, it is clear that both districts ruled there was no conflict of interest. We can reach no other conclusion but that such action on their part not only initiated action but completed it within the 30-day period allowed them by the statute. Had either board desired that respondent investigate the complaint, their only course under the statute to accomplish that result would have been to initiate no action. By initiating action with the prescribed time period, they precluded action by respondent and respondent does not have jurisdiction to investigate and take further action on the complaints.

We note in passing that the 1975 Legislature has amended this statute (by Chapter 75-199, Laws of Florida) and if that law were applicable to these complaints, the result would not be the same. That law provides that all complaints filed with respondent commission prior to July 1, 1975, shall be continued to conclusion under the old law. These complaints were, of course, filed prior to July 1, 1975.

The writ of prohibition is issued and is made absolute.

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


text:
    Willie FERGUSON and Richard Bowe, Appellants, v. STATE of Florida, Appellee.
    No. 74-1024.
    District Court of Appeal of Florida, Fourth District.
    Oct. 17, 1975.
    Rehearing Denied Nov. 18, 1975.

      Richard L. Jorandby, Public Defender, and Bruce Zeidel, Asst. Public Defender, West Palm Beach, for appellants.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Stephen R. Koons, Asst. Atty. Gen., West Palm Beach, for appellee.
   OWEN, Judge.

Appellants, Ferguson and Bowe, were jointly charged, tried and convicted of grand larceny. No error is shown as to appellant Bowe and his conviction is affirmed. The evidence is legally insufficient to sustain the conviction of appellant Ferguson and his judgment and sentence are reversed.

Succinctly stated, the State’s evidence established only the following: a store detective for the J. C. Penney Company saw a man (subsequently identified as Bowe) come into the store, take two men’s suits off a rack in the men’s department, and walk out the door. The detective followed Bowe, heard him shout “Get the car started’’, and saw him jump into an automobile. Ferguson, seated in the driver’s seat of the automobile, apparently could not get it started, whereupon Bowe jumped out and ran back into the store where he dropped the suits and fled. Ferguson made no attempt to flee, remaining in the car at the request of the store detective until subsequently arrested by city police officers. Bowe was not apprehended until some time later.

For reasons which we explained in Lockett v. State, 262 So.2d 253 (Fla.App. 4th 1972), the State cannot convict Ferguson of grand larceny on no more evidence than this. He should have been charged, if at all, as an accessory after the fact under Fla.Stat. § 776.03 (1973).

The judgment and sentence as to appellant Ferguson are severally reversed and upon remand he shall be discharged. The judgment and sentence as to appellant Bowe are severally affirmed.

Reversed as to Ferguson; affirmed as to Bowe.

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


author: NATHAN, Judge. PEARSON, Judge

text:
    CITY OF MIAMI, a Municipal Corporation created and existing pursuant to the laws of the State of Florida, Appellant, v. DADE COUNTY, a political subdivision of the State of Florida, et al., Appellees.
    No. 74-1570.
    District Court of Appeal of Florida, Third District.
    Oct. 14, 1975.
    Rehearing Denied Nov. 12, 1975.

      John S. Lloyd, City Atty., and Montague Rosenberg, Asst. City Atty., for appellant.
    Stuart Simon, County Atty., and Robert L. Krawcheck, Asst. County Atty., for ap-pellees.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   NATHAN, Judge.

The City of Miami appeals and seeks reversal of an order of dismissal for failure to prosecute under Rule 1.420(e), RCP, which in part states:

“(e) Failure to Prosecute. All actions in which it affirmatively appears that no action has been taken by filing of pleadings, order of court or otherwise for a period of one year shall be dismissed by the court on its own motion or on motion of any interest person . . . ”

The issue in this appeal is whether the trial court properly dismissed this cause when the cause was at issue and ready to be set for trial, and proper notice of trial was given pursuant to Rule 1.440(b), RCP, and no action was taken by any party or the court within a period of one year after notice of trial.

The record reflects that the defendant, Dade County, filed its notice for non-jury trial on September 6, 1973, and no action of record or affirmative non-record activity was taken by either of the parties or the court until September 12, 1974, at which time Dade County moved to dismiss for failure to prosecute. The court entered its order of dismissal on October 18, 1974.

The City of Miami’s main contention here, and in the trial court, is that the case, having been noticed for trial pursuant to Rule 1.440, RCP, the City was awaiting the setting of trial by order of the court which was good cause to prevent dismissal. Therefore, it was not required to take any affirmative action. The court, in its order of dismissal, relied on the case of Allen v. Gaither, Fla.App. 1959, 112 So.2d 855. This case held that request by counsel to place a cause on the trial docket was not sufficient action to prevent dismissal for lack of prosecution. Cf. Adams Engineering Company v. Construction Products Corporation, Fla.App.1962, 141 So.2d 300; Beck v. Humkey, Fla.App.1962, 146 So.2d 613; Ferrara v. Coyle Beverages, Inc., Fla.App.1963, 156 So.2d 907.

Rule 1.440, RCP, as last amended, effective January 1, 1973, requires that the clerk, after notice of trial, shall submit the notice and file to the court and that the court shall enter an order fixing the date of trial. The precise question before us, then, is when the trial court fails for a period of one year to enter an order setting a cause for trial, after proper notice under the rule was given by a party that the cause is ready for trial, is it the duty of a party to take some action within the one year period from the notice of trial so as to prevent dismissal of the cause by the trial court for failure to prosecute. •

The Allen, and other herein cited cases, were decided when Rule 2.2, RCP, pertaining to the setting of cases for trial was in effect and, therefore, are distinguished from this case. Under former Rule 2.2, RCP, when a case was ready for trial, either plaintiff or defendant might serve on the opposing party a notice, in writing, that the case was ready for trial and would be placed on the trial calendar on the next ensuing term. It was then the duty of the clerk to enter the case upon the trial docket. The trial docket, at specified times, was then sounded by the judge or the clerk for the setting of cases for trial for the next ensuing term of court. The rule did not require that an order be entered by the court fixing the date of trial.

From the reading of Rule 1.440(c), we hold that it is the duty of, and the trial court is required, to enter an order setting the cause for trial after notice is given that the cause is ready for trial, and if, in fact, it is ready for trial. Good cause having been shown by the City of Miami, the trial court erred in entering its order of dismissal.

We agree that the primary purpose of the rule governing dismissals for failure to prosecute is to expedite the course of litigation and require litigants to keep the court dockets as nearly current as possible. We also take the view that it is incumbent on the courts to do likewise and we so interpret the language and intent of Rule 1.-440(c).

Reversed and remanded with directions to reinstate the cause.

PEARSON, Judge

(dissenting).

The majority has accurately stated the determinative issue involved here, i.e., “ . . . is it the duty of a party to take some action within the one year period from the notice of trial so as to prevent dismissal of the cause by the trial court for failure to prosecute” ? [Emphasis supplied] The majority holds that there is no duty on a party to attempt to progress the cause once the “ball has been passed” to the court by the filing of a notice of trial. I think this is a misreading of the rules and an unhappy precedent.

The duty to progress a cause should rest equally on the court, on the parties and on their attorneys. The thought that judges and clerks of court should go looking for delinquent cases is a good one, but we should not relieve the parties and their attorneys of their duty to see that the rules of court are carried out. For, indeed, the purpose of the rule calling for dismissal for failure to prosecute “ . . . is best served by recognizing and encouraging as sufficient ‘prosecution,’ action on the part of either party which is more than ’a mere passive effort/ when it is an affirmative act directed toward the disposition of the cause.” [Emphasis supplied] Eastern Elevator, Inc. v. Page, Fla.1972, 263 So.2d 218. Cf. Lambert v. State, Fla.App.1958, 105 So.2d 612. The task of keeping our system of justice operating under the almost impossible burden of increased litigation requires that the duty to move litigation to a timely conclusion be placed on all those who are a part of the system of justice.

I would affirm the order on authority of Allen v. Gaither, Fla.App.1959, 112 So. 2d 855. See also Laug v. Murphy, Fla.App.1968, 205 So.2d 695.

      . Rule 1.440, RCP, states, in pertinent part, as follows:
      “(b) Notice for Trial. Thereafter any party may file and serve a notice that the action is at issue and ready to be set for trial. . . . The clerk shall then submit the notice and the case file to the court, (c) Setting for Trial. If the court finds the action ready to be set for trial, it shall enter an order fixing a date for trial. . ” Emphasis Added.

      . Ibid.

      . Rule 2.2 of the 1954 Florida Rules of Civil Procedure provided in pertinent part that,
      “(a) What Cases. When a cause shall be ready for trial, either plaintiff or defendant may, at least fifteen (15) days before the commencement of a term of the court, serve on the opposing party a notice in writing that the case is ready for trial and will be placed on the trial calendar at the next ensuing term. If such notice if filed fifteen days before the commencement of such term the clerk shall enter the case upon the trial docket.
      (b) When Sounded. The trial docket shall be sounded for the setting of cases for trial on the Tuesday before the opening day of said term, in the courtroom of said court at 2 :00 P.M. or thereafter upon one week’s notice by the clerk to the parties, which sounding and setting of causes shall be by the judge, or by the clerk of said court in the judge’s absence.”


author: WALDEN, Chief Judge.

text:
    The HARTFORD ACCIDENT AND INDEMNITY COMPANY, INC., a Foreign Corporation, Appellant, v. LIBERTY MUTUAL INSURANCE CO., INC., a Foreign Corporation, Appellee.
    No. 74-174.
    District Court of Appeal of Florida, Fourth District.
    Oct. 10, 1975.
    Rehearing Denied Nov. IS, 1975.
    John H. Wahl, Jr., S. O. Carson, Miami, and Michael B. Davis, West Palm Beach, Walton, Lantaff, Schroeder, Carson & Wahl, Miami, for appellant.
    Henry Burnett, Fowler, White, Humkey, Burnett, Hurley & Banick, Miami, for ap-pellee.
   WALDEN, Chief Judge.

The facts in this case are fully explained in a prior appellate appearance of this case: Hartford Accident and Indemnity Co., Inc. v. Liberty Mutual Ins. Co., Inc., 277 So.2d 775 (Fla.1973):

“ . . . Ryder Truck Rental, Inc., owned a tractor which was insured by respondent Liberty Mutual Insurance Co., Inc. The tractor was then leased to Elberta Crate Company which used the tractor to pull a trailer owned by the company and insured by petitioner, Hartford Accident and Indemnity Company. While the tractor-trailer combination was being driven by an employee of El-berta Crate, an accident occurred which gave rise to the damages involved in the case . . . Id. at 776.

The Supreme Court reversed this court’s pro-ration of the liabilities of each insurance company, and the case was remanded by us to the Circuit Court to determine the formula for pro-ration of the liabilities of each carrier in accord with the Supreme Court’s opinion. The Supreme Court specifically held that both insurance policies were primary, and that the $1,000,000 liability limit of an endorsement to the Liberty Mutual policy was available to be taken into consideration when pro-rating the insurance proceeds:

“ . . . The trial judge found that there was nothing to indicate that the $1,000,000 coverage was available to El-berta Crate or the driver of the tractor-trailer rig, and refused to apply it to the facts of the case sub judice. On the contrary, there is nothing to indicate that the $1,000,000 should not be applicable. In fact, the endorsement specifically makes the said limit of liability available when there is an accident involving coverage under only one of the policies.” Id. at 778. (Emphasis supplied.)

The case was remanded because the Supreme Court record did not contain information as to the total amount of claims arising out of the accident. Upon remand, the parties stipulated the total amount of claims to be $41,481.25. The trial court interpreted the emphasized language to mean that the $1,000,000 limit should be applicable only as excess coverage and only be available, therefore, if the combined claims should be greater than the combined primary coverage of the insureds ($400,-000/$800,000/$25,000). As that was not the case, the trial court prorated the coverage per individual by Liberty Mutual of $100,000 and the coverage per individual by Hartford Accident of $300,000 to result in a one-fourth liability for Liberty Mutual and three-fourths liability for Hartford Accident. We reverse. The Supreme Court opinion holds the $1,000,000 coverage is applicable. The sentence:

‘‘[0]n the contrary there is nothing to indicate that the $1,000,000 should not be applicable”,

clearly states that there are no considerations that would negate applicability of the $1,000,000. Although the Supreme Court did not have the figures present in the record, it did not state that the amount of damages would affect what coverage would apply, and in fact held that nothing would prevent the $1,000,000 limit from being applicable. As a result it is the law of the case that Liberty Mutual’s $1,000,000 coverage is to be included in prorating the respective liabilities of the two insurance companies. Hartford’s limit was found to be $300,000, see Hartford Accident and Indemnity Co., Inc. v. Liberty Mutual Ins. Co., Inc., supra, and Liberty Mutual’s limit is $1,000,000 per law of the case as discussed. The proration formula would pattern as follows :

Total Coverage — $1,300,000
Hartford's coverage of $300,000 =23.08%
Liberty Mutual's coverage of $1,000,000 =76.92%
Total of Claims — $41,481.25
Hartford's share at 23.08% =$ 9,573.87
Liberty Mutual's share at 76.92% =$31,907.38

Reversed and remanded for proceedings consistent herewith.

CROSS, J, and LEE, THOMAS J., Associate Judge, concur.

      . Liberty Mutual coverage:
      $100,000/3300,000/$25,000
      Hartford Accident coverage:
      $300,000/$500,000/$100,000


text:
    Boyd EDWARDS, Appellant, v. STATE of Florida, Appellee.
    No. 74-1106.
    District Court of Appeal of Florida, Fourth District.
    Oct. 3, 1975.
    Rehearing Denied Nov. 12, 1975.
   PER CURIAM.

Affirmed.


text:
    Thomas STEWART, Appellant, v. STATE of Florida, Appellee.
    No. 74-598.
    District Court of Appeal of Florida, Fourth District.
    Oct. 3, 1975.
    Rehearing Denied Nov. 12, 1975.
   PER CURIAM.

Affirmed.


text:
    Dr. David CASTANEDA et al., Appellants, v. Al R. DENKER et al., Appellees.
    No. 75-486.
    District Court of Appeal of Florida, Third District.
    Oct. 7, 1975.
   PER CURIAM.

Affirmed.


text:
    CITY OF MIAMI, a Municipal Corporation of Florida, Appellant, v. BELCO LTD., a Florida limited partnership, Appellee.
    No. 75-810.
    District Court of Appeal of Florida, Third District.
    Oct. 7, 1975.
   PER CURIAM.

Affirmed.


text:
    MANCHESTER INSURANCE & INDEMNITY COMPANY, a foreign corporation authorized to do business in the State of Florida, Appellant, v. TRANSPORT INDEMNITY COMPANY, a foreign corporation authorized to do busines in the State of Florida, Appellee.
    Nos. 74-1031, 75-143.
    District Court of Appeal of Florida, Third District.
    Oct. 7, 1975.
   PER CURIAM.

Affirmed.


text:
    James D. ROBERTSON and Lorna Robertson, d/b/a Jamestown Center Apartment, Appellant, v. NATIONAL CASH REGISTER CO., Appellee.
    No. 75-276.
    District Court of Appeal of Florida, Third District.
    Oct. 7, 1975.
   PER CURIAM.

Affirmed.


text:
    Jacob MOORE, Appellant, v. STATE of Florida, Appellee.
    No. 74-496.
    District Court of Appeal of Florida, Second District.
    Oct. 8, 1975.
    Rehearing Denied Nov. 6, 1975.
   PER CURIAM.

Affirmed.


text:
    GRANGE MUTUAL CASUALTY COMPANY et al., Appellants, v. Mark HYATT, Appellee.
    Nos. 74-728, 75-783.
    District Court of Appeal of Florida, Second District.
    Oct. 10, 1975.
    Rehearing Denied Nov. 10, 1975.
   PER CURIAM.

Affirmed.


text:
    Todd McMULLEN, a minor, by his father and next friend, R. L. McMullen, Jr., and R. L. McMullen, Jr., individually, Appellants, v. Hubert RUTLAND and South Carolina Insurance Company, Appellees.
    No. 74-1395.
    District Court of Appeal of Florida, Second District.
    Oct. 10, 1975.
    Rehearing Denied Nov. 10, 1975.
   PER CURIAM.

Affirmed.


text:
    Susan TANNER, Appellant, v. Lewis David TOUCHSTON et al., Appellees.
    No. 75-67.
    District Court of Appeal of Florida, Fourth District.
    Oct. 10, 1975.
    Rehearing Denied Nov. 12, 1975.
   PER CURIAM.

Affirmed.


text:
    In re Guardianship of Lillian Cerf. Lillian CERF and her husband Floyd Cerf, Appellants, v. CENTRAL BANK AND TRUST COMPANY, as Guardian of the Property, and Jean Becker, as Guardian of the Person, Appellees.
    Nos. 75-100, 75-159 and 75-236.
    District Court of Appeal of Florida, Third District.
    Oct. 14, 1975.
    Rehearing Denied Oct. 29, 1975.
   PER CURIAM.

Affirmed.


text:
    Vernora Charlottee KEMP, Appellant, v. STATE of Florida, Appellee.
    No. 75-1616.
    District Court of Appeal of Florida, Fourth District.
    Oct. 15, 1975.
   Appeal dismissed.


text:
    PENTOMAIN CORPORATION, Appellant, v. Theodore C. MILLER, etc., Appellee.
    No. 75-1513.
    District Court of Appeal of Florida, Fourth District.
    Oct. 15, 1975.
   Appeal dismissed.


text:
    Elijah V. ROBERTS, Individually and as Trustee, Appellant, v. FIRST NATIONAL BANK OF TAMPA, Appellee.
    No. 75-88.
    District Court of Appeal of Florida, Second District.
    Oct. 15, 1975.
    Rehearing Denied Nov. 17, 1975.
   PER CURIAM.

Affirmed.


text:
    William D. SWEET et al., Appellants, v. Charles H. SWEET et al., Appellees.
    No. 75-42.
    District Court of Appeal of Florida, Second District.
    Oct. 15, 1975.
    Rehearing Denied Nov. 17, 1975.
   PER CURIAM.

Affirmed.


text:
    Donald D. BAKER, Appellant, v. Louie L. WAINWRIGHT, Secretary, Department of Offender Rehabilitation, Appellee.
    No. 75-1751.
    District Court of Appeal of Florida, Fourth District.
    Oct. 17, 1975.
   Habeas corpus denied.


text:
    George K. BEEBE, Appellant, v. STATE of Florida, Appellee.
    No. 75-556.
    District Court of Appeal of Florida, Fourth District.
    Oct. 17, 1975.
   Appeal dismissed.


text:
    Carole Lynn BORBONUS, etc., Appellant, v. TOWN OF PALM BEACH, a Municipal Corporation, Appellee.
    No. 74-1542.
    District Court of Appeal of Florida, Fourth District.
    Oct. 17, 1975.
   PER CURIAM.

Affirmed.


text:
    Shirley BLOOM, as the Administratrix of the Estate of Shirley Gay, Deceased, Appellant, v. CITY OF FORT MYERS, a Municipal Florida Corporation, and the Travelers Insurance Company, Appellees.
    No. 74-1340.
    District Court of Appeal of Florida, Second District.
    Oct. 17, 1975.
    Rehearing Denied Nov. 13, 1975.
   PER CURIAM.

Affirmed.


text:
    Sammy Lee BUSH, Appellant, v. STATE of Florida, Appellee.
    No. 75-1239.
    District Court of Appeal of Florida, Fourth District.
    Oct. 17, 1975.
   Appeal dismissed.


text:
    Willie Charles CONLEY, Appellant, v. STATE of Florida, Appellee.
    No. 74-1184.
    District Court of Appeal of Florida, Fourth District.
    Oct. 17, 1975.
   Appeal dismissed.


text:
    Melitta H. GEARY, Appellant, v. William J. GEARY, Appellee.
    No. 74-1549.
    District Court of Appeal of Florida, Fourth District.
    Oct. 17, 1975.
   PER CURIAM.

Affirmed.


text:
    Samuel GAINES, Appellant, v. STATE of Florida, Appellee.
    No. 74-1267.
    District Court of Appeal of Florida, Fourth District.
    Oct. 17, 1975.
    Rehearing Denied Nov. 12, 1975.
   PER CURIAM.

Affirmed.


text:
    Ernest Jerome DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 74-1531.
    District Court of Appeal of Florida, Fourth District.
    Oct. 17, 1975.
   Appeal dismissed.


text:
    Rudolph GIBSON, Appellant, v. STATE of Florida, Appellee.
    No. 74-814.
    District Court of Appeal of Florida, Fourth District.
    Oct. 17, 1975.
   Appeal dismissed.


text:
    Pearl Joy GRANT, Appellant, v. Neil M. GRANT, Appellee.
    No. 74-390.
    District Court of Appeal of Florida, Second District.
    Oct. 17, 1975.
    Rehearing Denied Nov. 17, 1975.
   PER CURIAM.

Affirmed.


text:
    Joey Lee HIPP, Appellant, v. STATE of Florida, Appellee.
    No. 74-1432.
    District Court of Appeal of Florida, Fourth District.
    Oct. 17, 1975.
   Appeal dismissed.


text:
    JOHN SCOTT, INC., Appellant, v. LGS CONCORD CORPORATION, a Florida Corporation, General Partner of NorCon, Ltd., a Limited Partnership, Appellee.
    No. 74-1264.
    District Court of Appeal of Florida, Second District.
    Oct. 17, 1975.
    Rehearing Denied Nov. 17, 1975.
   PER CURIAM.

Affirmed.


text:
    Arthur F. LAWRENCE and Juanita L. Lawrence, his wife, Appellants, v. A. D. BESSEMER, Trustee, Appellee.
    No. 75-1299.
    District Court of Appeal of Florida, Fourth District.
    Oct. 17, 1975.
    Rehearing Denied Dec. 8, 1975.
   Appeal dismissed.


text:
    Balbino MATTA, Appellant, v. STATE of Florida, Appellee.
    No. 75-270.
    District Court of Appeal of Florida, Fourth District.
    Oct. 17, 1975.
   PER CURIAM.

Affirmed.


text:
    Perry L. MITCHELL, Appellant, v. ATLANTIC NATIONAL BANK OF WINTER PARK, a corporation, Appellee.
    No. 75-334.
    District Court of Appeal of Florida, Fourth District.
    Oct. 17, 1975.
    Rehearing Denied Nov. 12, 1975.
   PER CURIAM.

Affirmed.


text:
    Antonio MUNIA, M.D., Appellant, v. FORT PIERCE MEMORIAL HOSPITAL, Appellee.
    No. 75-1675.
    District Court of Appeal of Florida, Fourth District.
    Oct. 17, 1975.
   Appeal dismissed.


text:
    David NELSON, Appellant, v. STATE of Florida, Appellee.
    No. 75-798.
    District Court of Appeal of Florida, Fourth District.
    Oct. 17, 1975.
   PER CURIAM.

Affirmed.


text:
    Mr. and Mrs. Arthur PEPIN et al., Appellants, v. Myer FRANK, d/b/a Myer Frank & Associates, and T. K. Knight, Inc., Appellees.
    No. 74-1303.
    District Court of Appeal of Florida, Second District.
    Oct. 17, 1975.
    Rehearing Denied Nov. 17, 1975.
   PER CURIAM.

Affirmed.


text:
    Arthur John PROCHASKA, Appellant, v. Barbara M. Ogden PROCHASKA, Appellee.
    No. 75-31.
    District Court of Appeal of Florida, Fourth District.
    Oct. 17, 1975.
   PER CURIAM.

Affirmed.


text:
    VILLAGE PUB, INC., a Florida Corporation, Appellant, v. The CITY OF INDIAN HARBOUR BEACH, Florida, a Municipal Corporation and Charles Franklin, as building official for the City of Indian Harbour Beach, Florida, Appellees.
    No. 75-1123.
    District Court of Appeal of Florida, Fourth District.
    Oct. 17, 1975.
   Appeal dismissed.


text:
    The STATE of Florida ex rel. Charles Edward ADAMS, Relator, v. Emery NEWELL, Circuit Judge, Respondent.
    No. 75-1814.
    District Court of Appeal of Florida, Fourth District.
    Oct. 17, 1975.
   Prohibition denied.


text:
    Jesse STATEWRIGHT, Sr., Appellant, v. Louie L. WAINWRIGHT, Director, Division of Offender Rehabilitation, Appellee.
    No. 75-1752.
    District Court of Appeal of Florida, Fourth District.
    Oct. 17, 1975.
    Rehearing Denied Nov. 6, 1975.
   Habeas Corpus denied.


text:
    SUN TATTLER COMPANY, INC., a Florida Corporation, d/b/a a Hollywood Sun-Tattler Newspaper, et al., Petitioners, v. Charles A. FINKEL, Respondent.
    No. 75-1621.
    District Court of Appeal of Florida, Fourth District.
    Oct. 17, 1975.
   Certiorari dismissed.


text:
    Joseph VISTOSO, Appellant, v. STATE of Florida, Appellee.
    No. 74-643.
    District Court of Appeal of Florida, Fourth District.
    Oct. 17, 1975.
   Appeal dismissed.


text:
    John Edward VON DETTE, Appellant, v. Denise M. VON DETTE, Appellee.
    No. 75-452.
    District Court of Appeal of Florida, Fourth District.
    Oct. 17, 1975.
    Rehearing Denied Nov. 13, 1975.
   PER CURIAM.

Affirmed.


text:
    WESTERN ELECTRIC COMPANY, INC., a New York Corporation, Appellant, v. Frank W. BROOKS et al., Appellees.
    No. 75-1026.
    District Court of Appeal of Florida, Fourth District.
    Oct. 17, 1975.
   Appeal dismissed.


text:
    B. E. I. NATIONAL, INC., Appellant, v. The TIARA BLDG., LTD., a partnership, et al., Appellees.
    No. 75-660.
    District Court of Appeal of Florida, Fourth District.
    Oct. 22, 1975.
   Appeal dismissed.


text:
    Allen C. CLARK, as Tax Collector of Palm Beach County, Florida, Appellant, v. John P. CLERICI et al., Appellees.
    No. 75-1601.
    District Court of Appeal of Florida, Fourth District.
    Oct. 22, 1975.
   Appeal dismissed.


text:
    John Frank HUNTER, Appellant, v. STATE of Florida, Appellee.
    No. 74-285.
    District Court of Appeal of Florida, Fourth District.
    Oct. 22, 1975.
   Appeal dismissed.


text:
    Mary Ruth McFADIN, wife, Appellant, v. Connie W. McFADIN, husband, Appellee.
    No. 75-1099.
    District Court of Appeal of Florida, Fourth District.
    Oct. 22, 1975.
   Appeal dismissed.


text:
    Chic Tullie McLEOD, Appellant, v. Clarence SCHMELTER, Appellee.
    No. 75-1486.
    District Court of Appeal of Florida, Fourth District.
    Oct. 22, 1975.
   Appeal dismissed.


text:
    Alma Jean MORGAN, Appellant, v. STATE of Florida, Appellee.
    No. 74-1714.
    District Court of Appeal of Florida, Fourth District.
    Oct. 22, 1975.
   Appeal dismissed.


text:
    Dorothy D. PERRY, Appellant, v. Mary L. ARBUTHNOT, Appellee.
    No. 74-1514.
    District Court of Appeal of Florida, Second District.
    Oct. 22, 1975.
   PER CURIAM.

Affirmed.


text:
    PORT CANAVERAL MARINA, INC., a Florida Corporation, Appellant, v. BARNES & BARBER, INC., and Consolidated Cybertronics, Inc., et al., Appellees.
    No. 75-1071.
    District Court of Appeal of Florida, Fourth District.
    Oct. 22, 1975.
   Appeal dismissed.


text:
    Alphonso SHANNON, Appellant, v. STATE of Florida, Appellee.
    No. 75-1038.
    District Court of Appeal of Florida, Fourth District.
    Oct. 22, 1975.
   Appeal dismissed.


text:
    John J. TIMMINS and Margaret I. Timmins and the Seven Minor Plaintiffs by and thru their father and next friend, Appellants, v. Christina D. DINALLO, Appellee.
    No. 75-700.
    District Court of Appeal of Florida, Fourth District.
    Oct. 22, 1975.
   Appeal dismissed.


text:
    Merrill A. YARBROUGH, Jr., and Charles P. Rowan, Appellants, v. FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF the PALM BEACHES, a corporation existing under the laws of the United States of America and First Continental Dev-Con, Inc., a Delaware Corporation, et al.
    No. 75-1289.
    District Court of Appeal of Florida, Fourth District.
    Oct. 22, 1975.
   Appeal dismissed.


text:
    Betty BEAUGRAND, Petitioner, v. Leon Alvin McCORMICK, Respondent.
    No. 75-1877.
    District Court of Appeal of Florida, Fourth District.
    Oct. 23, 1975.
   Prohibition denied.


text:
    Harry P. BAKER, Appellant, v. Monda BAKER, Appellee.
    No. 75-1392.
    District Court of Appeal of Florida, Third District.
    Oct. 23, 1975.
   PER CURIAM.

Appeal dismissed.


author: MILLS, Judge.

text:
    DIVISION OF ADMINISTRATION, State of Florida DEPARTMENT OF TRANSPORTATION, Appellant (Plaintiff), v. GERTNERS, INCORPORATED et al., Appellees (Defendants).
    No. X-328.
    District Court of Appeal of Florida, First District.
    Oct. 23, 1975.
   MILLS, Judge.

Interlocutory appeal dismissed.


text:
    Charles LEE and Christine Lee Lett, Appellants, v. The CITIZENS AND PEOPLES NATIONAL BANK OF PENSACOLA, Pensacola, Florida, a National Florida Banking Corporation, et al., Appellees.
    No. X-441.
    District Court of Appeal of Florida, First District.
    Oct. 23, 1975.
   PER CURIAM.

Affirmed.


text:
    Clarence E. PREVATT, Jr., Petitioner, v. John H. DEWELL, Circuit Judge, Highlands County, Florida, Respondent.
    No. 75-1502.
    District Court of Appeal of Florida, Second District.
    Oct. 23, 1975.
   Prohibition denied.


text:
    Evelyn L. MULLINS, Appellant, v. James L. MULLINS, Appellee.
    No. 75-1539.
    District Court of Appeal of Florida, Third District.
    Oct. 23, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Frank PULEO, Appellant, v. Rose B. PULEO, Appellee.
    No. X-124.
    District Court of Appeal of Florida, First District.
    Oct. 23, 1975.
   PER CURIAM.

Affirmed.


text:
    RCA CORPORATION, Appellant, v. Fred O. DICKINSON, Jr., Comptroller of Florida, and J. Ed Straughn, Executive Director, Department of Revenue of the State of Florida, Appellees.
    No. X-343.
    District Court of Appeal of Florida, First District.
    Oct. 23, 1975.

   PER CURIAM.

Affirmed.


text:
    Lillian WILISCH, Appellant, v. Theodore WILISCH, Appellee.
    No. 75-976.
    District Court of Appeal of Florida, Third District.
    Oct. 23, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Hy UCHITEL, Appellant, v. Audre BREEN et al., Appellees.
    No. 75-960.
    District Court of Appeal of Florida, Third Distinct.
    Oct. 23, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    SUMMERWINDS APARTMENTS, INC., a Florida Corporation, et al., Appellants, v. FLAGSHIP FIRST NATIONAL BANK OF MIAMI BEACH, formerly the Miami Beach First National Bank, a National Banking Association, Appellees.
    No. 75-1555.
    District Court of Appeal of Florida, Third District.
    Oct. 23, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    AUTO-OWNERS INSURANCE COMPANY, Appellant, v. Mary ALONEFTIS and Anthony Aloneftis, Appellees.
    No. 75-32.
    District Court of Appeal of Florida, Second District.
    Oct. 24, 1975.
   PER CURIAM.

Affirmed.


text:
    H. B. BAKER, Appellant, v. STATE of Florida, Appellee.
    No. 74-1328.
    District Court of Appeal of Florida, Fourth District.
    Oct. 24, 1975.
   PER CURIAM.

Affirmed.


author: Appeal dismissed.

text:
    Elizabeth BAUR and George Baur, Appellants, v. CITY OF HOLLYWOOD, a municipality under the laws of the State of Florida and Continental Insurance Company, Appellees.
    No. 75-1465.
    District Court of Appeal of Florida, Fourth District.
    Oct. 24, 1975.
   Appeal dismissed.


text:
    Shirley S. BECK and Design East, Inc., a Florida Corporation, Appellants, v. Angela C. ROSS, Appellee.
    No. 74-1275.
    District Court of Appeal of Florida, Second District.
    Oct. 24, 1975.
   PER CURIAM.

Affirmed.


text:
    Charles W. BOSTWICK et al., Appellants, v. CITY OF POMPANO BEACH, etc., Appellee.
    No. 74-229.
    District Court of Appeal of Florida, Fourth District.
    Oct. 24, 1975.
   PER CURIAM.

Affirmed.


text:
    Evelyn E. BRITT, Appellant, v. Merrill W. BRITT, Appellee.
    No. 75-247.
    District Court of Appeal of Florida, Second District.
    Oct. 24, 1975.
   PER CURIAM.

Affirmed.


text:
    McNeal BUTLER, Appellant, v. STATE of Florida, Appellee.
    No. 75-1549.
    District Court of Appeal of Florida, Fourth District.
    Oct. 24, 1975.
   Habeas corpus denied.


text:
    CONTINENTAL REAL ESTATE EQUITIES, INC., a foreign corporation authorized to do business in the State of Florida, Petitioner, v. The KEYES COMPANY, a Florida Corporation, Respondent.
    No. 75-761.
    District Court of Appeal of Florida, Third District.
    Oct. 24, 1975.
   PER CURIAM.

Certiorari dismissed.


text:
    Lloyd A. DIXON, Jr., et al., Appellants, v. AVM CORPORATION and Seaboard Surety Company, Appellees.
    No. 75-770.
    District Court of Appeal of Florida, Fourth District.
    Oct. 24, 1975.
   PER CURIAM.

Affirmed.


text:
    Rudolph “Doc” DUNN and Earl Branch, Relators, v. The Honorable William A. NORRIS, Jr., Respondent.
    No. 75-1533.
    District Court of Appeal of Florida, Second District.
    Oct. 24, 1975.
   Prohibition denied.


text:
    In re ESTATE of Joseph A. FROST, Deceased.
    Nos. 74-620, 74-621.
    District Court of Appeal of Florida, Fourth District.
    Oct. 24, 1975.
   PER CURIAM.

Affirmed.


text:
    Anthony FURY, Appellant, v. BANKERS FIRE & CASUALTY INSURANCE COMPANY et al., Appellees.
    No. 75-963.
    District Court of Appeal of Florida, Fourth District.
    Oct. 24, 1975.
   Appeal dismissed.


text:
    Tommy GRAY, Appellant, v. STATE of Florida, Appellee.
    No. 74-1090.
    District Court of Appeal of Florida, Fourth District.
    Oct. 24, 1975.
   PER CURIAM.

Affirmed.


text:
    MANPOWER, INC. OF SOUTH FLORIDA, Appellant, v. CITY OF FORT LAUDERDALE, a Municipal Corporation, Mildred M. Ries Johnson, et al., Appellees.
    No. 75-1408.
    District Court of Appeal of Florida, Fourth District.
    Oct. 24, 1975.
   Appeal dismissed.


text:
    Morton D. KRAMER, Appellant, v. DICK BOND ASSOCIATES, INC., a Florida Corporation, and Richard Bond, a/k/a Dick Bond, individually, Appellees.
    No. 74-1005.
    District Court of Appeal of Florida, Fourth District.
    Oct. 24, 1975.
   PER CURIAM.

Affirmed.


text:
    Joseph John KOSEMPA, Appellant, v. Madeline KOSEMPA, Appellee.
    No. 75-987.
    District Court of Appeal of Florida, Fourth District.
    Oct. 24, 1975.
   Appeal dismissed.


text:
    Herbert A. MITCHELL, Petitioner, v. BURNS INTERNATIONAL SECURITY SERVICE, Employer Number 014764, and Industrial Relations Commission, Respondents.
    No. 75-696.
    District Court of Appeal of Florida, Fourth District.
    Oct. 24, 1975.
   PER CURIAM.

Denied.


text:
    William R. OMASTA, Jr., Appellant, v. William T. ROBERTS, Sheriff, Appellee.
    No. 75-768.
    District Court of Appeal of Florida, Second District.
    Oct. 24, 1975.
   Appeal dismissed.


text:
    OLIVER CONSTRUCTION COMPANY, INC., Appellant, v. KELLER BUILDING PRODUCTS OF FORT LAUDERDALE, INC., a corporation, et al., Appellees.
    No. 75-815.
    District Court of Appeal of Florida, Fourth District.
    Oct. 24, 1975.
   Appeal dismissed.


text:
    Emanuel SCHATTEN and Edgar D. Schraub, Appellants, v. COPLAN PIPE & SUPPLY CO., INC. d/b/a Beautyware Plumbing Supply and Milford Heating & Cooling, Inc., Appellees.
    No. 75-1369.
    District Court of Appeal of Florida, Fourth District.
    Oct. 24, 1975.
   Appeal dismissed.


text:
    Paul W. WELCH and Myrtle Welch, his wife, Appellants, v. ST. PAUL FIRE & MARINE INSURANCE COMPANY et al., Appellees.
    No. 75-59.
    District Court of Appeal of Florida, Fourth District.
    Oct. 24, 1975.
   PER CURIAM.

Affirmed.


text:
    Raymond M. STRICKLAND, Sr., Appellant, v. STATE of Florida, Appellee.
    No. 74-1375.
    District Court of Appeal of Florida, Fourth District.
    Oct. 24, 1975.
   PER CURIAM.

Affirmed.


text:
    Marcus SUTTON, Appellant, v. STATE of Florida, Appellee.
    No. 74-1573.
    District Court of Appeal of Florida, Fourth District.
    Oct. 24, 1975.
   PER CURIAM.

Affirmed.


text:
    Steven M. TYRE, Appellant, v. STATE of Florida, Appellee.
    No. 75-98.
    District Court of Appeal of Florida, Fourth District.
    Oct. 24, 1975.
   PER CURIAM.

Affirmed.


text:
    Robert Henry ARMSTRONG, Appellant, v. STATE of Florida, Appellee.
    No. X-528.
    District Court of Appeal of Florida, First District.
    Oct. 27, 1975.
   PER CURIAM.

Affirmed.


text:
    INSTITUTIONAL INVESTORS TRUST, Appellant, v. Thomas M. WOHL et al., Appellees.
    No. 75-1334.
    District Court of Appeal of Florida, Third District.
    Oct. 27, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Phillip Dennis HUMPHRIES, Appellant, v. STATE of Florida, Appellee.
    No. 75-119.
    District Court of Appeal of Florida, Second District.
    Oct. 29, 1975.
   PER CURIAM.

Affirmed.


text:
    Matthew P. MONSTWILLO, Appellant, v. STATE of Florida, Appellee.
    No. 75-105.
    District Court of Appeal of Florida, Second District.
    Oct. 29, 1975.
   PER CURIAM.

Affirmed.


text:
    Thomas Henry MATTINGLY, Appellant, v. STATE of Florida, Appellee.
    No. 75-625.
    District Court of Appeal of Florida, Fourth District.
    Oct. 31, 1975.
    Rehearing Denied Nov. 17, 1975.
   PER CURIAM.

Affirmed.


text:
    Junior Wilnon BIRD, Appellant, v. STATE of Florida, Appellee.
    No. 75-1284.
    District Court of Appeal of Florida, Second District.
    Nov. 7, 1975.
   Appeal dismissed.


text:
    Leyman Landon LAMB, Appellant, v. STATE of Florida, Appellee.
    No. 75-1157.
    District Court of Appeal of Florida, Second District.
    Nov. 7, 1975.
   Appeal dismissed.