author: McCORD, Chief Judge.

text:
    Benjamin S. SCHWARTZ, Appellant, v. CAPITAL CITY FIRST NATIONAL BANK, Appellee.
    No. II-296.
    District Court of Appeal of Florida, First District.
    Nov. 22, 1978.
    Rehearing Denied Jan. 8, 1979.

      James C. Truett, Tallahassee, and Brian T. Hayes, Monticello, for appellant.
    William M. Smith and Timothy B. Elliott of Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, for appellee.
   McCORD, Chief Judge.

This interlocutory appeal is from an order of the trial court denying appellant’s motion for change of venue, motion to dismiss and motion to stay. We affirm.

The trial court entered a summary judgment in favor of appellee against Harold Taines, Sue Taines, Gerald Taines and Beatrice Taines. Writ of execution was issued and delivered to the Sheriff of Broward County where some of the judgment debtors resided and the writ of execution has not been satisfied. Appellee Bank then filed in the cause its “Motion for Proceedings Supplementary to Execution and Motion for Impleader of Third Parties.” The trial court entered an “Order for Proceedings Supplementary to Execution and Im-pleader of Third Parties” which directed that a summons be issued by the Clerk of the Court and that an answer or other response be filed by the impleaded parties within 20 days of service on them. The Bank subsequently had the Clerk of the Court issue only one summons and that one was directed to Benjamin S. Schwartz individually and as co-trustee, along with Craig Taines, Lauren S. Taines, and Lance Taines of an unrecorded trust dated September 4, 1974. That summons was served on appellant Benjamin S. Schwartz in Dade County where he resided on October 14, 1977. Schwartz filed an answer, a motion to stay, a motion to dismiss and motion for change of venue. The court entered its order denying the motions. As to the motion to stay, it was denied without prejudice to appellant to refile with supporting documentation required under Fla.R.Civ.P. 1.210(c). The supporting documentation referred to would be documentation showing that appellant did not have the powers listed in Rule 1.210(c) and could not, therefore, represent the trust by himself.

Appellant first contends that the provisions of § 47.061, Florida Statutes, relating to venue in suits on promissory notes do not cover supplementary proceedings filed pursuant to Chapter 56.29, Florida Statutes (1975); that venue in supplementary proceedings under § 56.29 may be (and in this instance is) in a county other than where the principal action was maintained. We disagree. § 56.29, Florida Statutes, provides in subsection (1) thereof as follows:

“When any sheriff holds an unsatisfied execution, the plaintiff in execution may file an affidavit so stating and that the execution is valid and outstanding and thereupon is entitled to these proceedings supplementary to execution.”

There is nothing in the wording of the above quoted provision of the statute which indicates that a new suit on supplementary proceedings after judgment may be filed in another county. Subsection (2) of § 56.29 provides as follows:

“On such plaintiff’s motion, the court shall require the defendant in execution to appear before it or a commissioner or a master at a time and place specified by the order in the county of the defendant’s residence to be examined concerning his property." (Emphasis supplied.)

Under the above statute, the court (obviously the original court) requires the defendant in execution to appear before it or a master. § 56.29(9) emphasizes the broad purpose of supplementary proceedings and the broad discretion of the court as follows:

“The court may enter any orders required to carry out the purpose of this section to subject property or property rights of any defendant to execution.”

This broad purpose was emphasized in State v. Viney, 120 Fla. 657, 163 So. 57 (1935), where the Supreme Court stated that proceedings supplementary were:

“. . . intended to give the circuit court broad discretionary powers to carry out the full intent and purpose of the proceedings supplementary to execution law which was to confer on circuit courts the right to subject any and all property, or property rights of any defendant in execution, however fraudulently conveyed, covered up, or concealed, the same might be, whether in the name or possession of third parties or not, to the satisfaction of an execution outstanding against him.” (Emphasis supplied.)

Also, the Supreme Court in Virginia-Carolina Chemical Corp. v. Smith, 121 Fla. 720, 164 So. 717 (1935), commenting on an earlier version of § 56.29, said:

“. . .It was the evident intent and purpose of the Legislature in enacting Chapter 7842, Acts 1919, sections 4540 to 4549, inclusive, C. G. L., to ‘empower the [circuit] court to follow through with the enforcement of its judgment, so that there would be no necessity for an independent suit to reach property which legally should be applied to the satisfaction of the judgment.’ Florida Guaranteed Securities Co. v. McAllister (D.C.Fla.) 47 F.2d 762, 765.
Judgments of the circuit court are enforceable in all counties throughout the state and the executions issued upon judgments rendered run with full force throughout the state. . . .” (Emphasis supplied.)

It is apparent that proceedings supplementary to judgment under the foregoing statute are a continuation of the same proceeding and that venue in the case does not shift from jurisdiction to jurisdiction during such proceeding, but remains with the court which entered the judgment.

Appellant also contends that when co-trustees of a trust are named as defendants, all of the co-trustees must be served before the court has jurisdiction of the co-trustees. Appellee responds contending that valid service of process in this cause was obtained upon the trust by personally serving one of the co-trustees — appellant Schwartz. We agree with appellee’s contention unless it can be shown by appellant (which he has not yet done) that he did not have the powers listed in Fla.R.Civ.P. 1.210(c) and could not, therefore, represent the trust by himself. The pertinent part of the rule is as follows:

“In actions concerning property to which title is vested in trustees, where such trustees are competent to sell and give discharges for the proceeds of the sale, or the rents, income or profits of the estate, all or any of such trustees, shall represent the persons beneficially interested in the estate . . .” (Emphasis supplied.)

If appellant as trustee has the powers set forth in the rule, he is authorized to represent the trust and appellees are not required to bring other trustees in as parties to the suit. Upon remand the trial court should give appellant an additional opportunity to show that he does not have the powers listed in Rule 1.210(c).

AFFIRMED.

BOYER and SMITH, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    ROWSTON, INC., a Florida Corporation, Appellant, v. Lawrence L. GHIDONI, Appellee.
    No. JJ-495.
    District Court of Appeal of Florida, First District.
    Nov. 22, 1978.
    Rehearing Denied Jan. 8, 1979.
    Elwin R. Thrasher, Jr. of Dye & Thrasher, Tallahassee, for appellant.
    Sidney L. Matthew, Tallahassee, for ap-pellee.
   PER CURIAM.

After having considered the record, briefs and oral argument we conclude that the learned trial judge properly applied the relevant law and that the conflicting evidence as to the operative facts was correctly submitted to the jury, whose verdict was consistent with a reasonable interpretation of the evidence as applied to the law properly charged. Although we may well have arrived at a different conclusion had we been sitting as trier of the facts, it is not our prerogative to substitute our view for that of the jury.

Appellant having failed to demonstrate error, the judgment appealed is

AFFIRMED.

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


text:
    George W. DuBREUIL, Appellant, v. James J. JAMES, Appellee.
    No. 77-1448.
    District Court of Appeal of Florida, Third District.
    Nov. 28, 1978.
    Rehearing Denied Jan. 3, 1979.
    A. John Goshgarian and Howard J. Hoch-man, Miami, for appellant.
    Papy, DuVal, Poole & Usich and James S. Usich, Coral Gables, for appellee.
    Before PEARSON and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The appellant, defendant in the trial court, appeals a judgment dismissing his counterclaim without leave to amend. Defendant was sued by the plaintiff-appellee for alleged fraud in a stock purchase agreement. Defendant attempted to set up a counterclaim in which he alleged that a promissory note he had previously paid to the plaintiff was made and paid under duress. The trial court dismissed the counterclaim upon the plaintiff’s motion which relied upon the applicable statute of limitations. Inasmuch as it affirmatively appears from the pleadings that the attempted counterclaim is permissive and not compulsory, see Barrett v. Pickard, 85 So.2d 630 (Fla.1956); McDonald Air Conditioning v. 1041 Corporation, 251 So.2d 319 (Fla. 1st DCA 1971); and Florida Rules of Civil Procedure 1.170(b), and that the time specified by the statute of limitations, Section 95.11, Florida Statutes (1973), had run, the judgment is affirmed.

Affirmed.


text:
    Carol ROSENBERG, Appellant, v. Leonard ROSENBERG, Appellee.
    Nos. 77-2246, 78-41 and 78-149.
    District Court of Appeal of Florida, Third District.
    Nov. 28, 1978.
    Rehearing Denied Jan. 3, 1979.
    Sinclair, Louis, Siegel & Heath and John L. Zavertnik and Paul A. Louis, Goodhart & Rosner, Miami, for appellant.
    Hirschhorn & Freeman and Joel Hirsch-horn, Miami, for appellee.
    Before PEARSON, HENDRY and BARKDULL, JJ.
   PER CURIAM.

This is the consolidation of an appeal by the wife from a final judgment, changing permanent custody of the parties’ ten-year-old child from the mother to the father, and an interlocutory appeal and cross-interlocutory appeal by the wife and husband, respectively, from an order denying motions by both parties for attorneys’ fees and costs. The trial judge’s order of change in custody reads, in part, as follows:

* * * * * *
“THIS CAUSE having come on before me, upon the Petitioner-Father’s Motion for Change of Custody, and the Court having conducted six lengthy hearings herein during which time testimony was taken from the respective parties, their nine-year-old son, the parties’ respective witnesses, and the court-appointed psychiatrist, and the Court having received numerous exhibits in evidence and having heard argument of counsel and being otherwise fully advised in the premises, the Court makes and enters the following:
“FINDINGS OF FACT
“1. For the reasons stated with more particularity in the transcript of the proceedings herein on September 15,1977,” [] “the Court finds that:
“a) There has been a significant change in the parties’ respective circumstances with respect to the issue of who shall be primary custodian of the parties’ minor child, ADAM ROSENBERG, since June, 1976 (the time when the Property Settlement Agreement entered into between the parties was ratified by this Court), and the present, and
“b) The child, ADAM ROSENBERG, will be able to live in a more stable, structured, ordered and familiar environment if he is in the primary custody of the father, LEONARD ROSENBERG, in Dade County, Florida, and “c) The best interests of the child in attempting to achieve a more stable and familiar environment and setting for the child will be met by awarding primary custody of ADAM ROSENBERG to his father, LEONARD ROSENBERG, the Petitioner herein.
“2. The Mother should be entitled to liberal visitation rights with the minor child; the child should have a considerable amount of access to the maternal grandparents.
“3. The parties hereto, LEONARD ROSENBERG and CAROL ROSENBERG, and the maternal grandparents, EVELYN PHILLIPS and MARTIN PHILLIPS, should be proscribed from trying to change the child’s mind or otherwise influence him with respect to who shall be the primary custodian of the child, and, further, the parties and the maternal grandparents should not seek to interfere with the natural love and affection the child has for both his parents and the maternal grandparents.”
* * * * * *

The record supports the trial judge’s finding that it was in the best interests of the child (in an effort to achieve a more stable environment) that the father have custody. This is amply demonstrated by the nomad type of existence the boy endured while he was in the custody of his mother. What, in fact, the trial judge has done is to return the child to the familiar and orderly environment in which he had spent the better portion of his life. In re Gregory, 313 So.2d 735 (Fla.1975); Dinkel v. Dinkel, 322 So.2d 22 (Fla.1975); Spradley v. Spradley, 335 So.2d 822 (Fla.1976).

Both parties have preserved points on appeal going to attorneys’ fees and costs, the trial court having required each of them to bear their own costs. We find no abuse of discretion in his rulings, and therefore, they will be affirmed. Colbath v. Colbath, 268 So.2d 361 (Fla.1972); Krasner v. Krasner, 339 So.2d 674 (Fla. 3d DCA 1976); Jassy v. Jassy, 347 So.2d 478 (Fla. 2d DCA 1977).

For the reasons above stated, the order under review be and the same is hereby affirmed.

Affirmed.

       ******
      “THE COURT: Sir, that child stays here. That child stays here because every one of the professionals who have examined him has reported that he lacks stability. He needs stability. I feel and 1 find, as a matter of fact in this case, that the stability that that child needs is going to be better provided by Mr. Rosenberg, as well as by Mr. and Mrs. Phillips, the maternal grandparents.
      * * * * * *
      “As far as Mrs. Rosenberg, I think that is probably true for her. I think her problem is probably immaturity and she is working it out in her own fashion. She is entitled to do so, but not in a way that will harm the boy.”
      * * * * * *
      Mrs. Rosenberg is living with someone who is not her husband. I am impressed by the fact that they have absolutely no plans to formalize their relationship. They may break up at any time as they have in the past. I think that is destructive to the child’s well-being.
      # sfc s(s $ ‡ sf:
      “Neither one of them is an absolutely perfect parent. Both of them are very caring and intelligent people. I sincerely hope that they each make a decent life for themselves. I do not intend the child to be shifted around anymore. He stays here.”


text:
    BENTLEY MACHINERY, INC., a Foreign Corporation, Appellant, v. ARIGA TEXTILE, INC., a Florida Corporation, Appellee.
    No. 78-260.
    District Court of Appeal of Florida, Third District.
    Nov. 28, 1978.
    Rehearing Denied Jan. 3, 1979.
    Ronald Payne, Fort Lauderdale, for appellant.
    Gars & Dixon, Miami, for appellee.
    Before PEARSON, BARKDULL and KEHOE, JJ.
   PER CURIAM.

Affirmed. See Treasure, Inc. v. White Star Realty Co., 101 So.2d 866 (Fla.1958); and Paul’s Drugs, Inc. v. Southern Bell Telephone & Telegraph Company, 175 So.2d 203, 205-206 (Fla. 3d DCA 1965).


author: PEARSON, Judge.

text:
    SHEARSON HAYDON STONE, INC., and Ronald Deblinger, Appellants, v. Cheri SATHER, Appellee.
    No. 78-410.
    District Court of Appeal of Florida, Third District.
    Nov. 28, 1978.
    Rehearing Denied Jan. 3, 1979.
    Weiner, Robbins & Tunkey and Alan S. Ross, Gilbride & Heller, Paul, Landy & Bei-ley and Stanley Arthur Beiley, Miami, for appellants.
    Fine & Brownstein and Shalle Stephen Fine, Miami, for appellee.
    Before PEARSON and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PEARSON, Judge.

The appellants, Shearson Haydon Stone, Inc., and Ronald Deblinger, were sued by the appellee, Cheri Sather, upon an allegation that Deblinger, as account executive, mishandled the appellee’s account by manipulating it in order to produce commissions resulting in substantial losses to the account. The appellants moved to dismiss the complaint upon the ground that the state courts do not have jurisdiction for this type of action, inasmuch as it involves violations of the Securities Exchange Act of 1934, 15 U.S.C. § 78a et seq., and that such actions are pre-empted to the federal courts by the terms of that act. The motion to dismiss was granted with leave to amend and the appellee thereafter filed the same complaint, adding a paragraph stating that the actions of the appellants amounted to fraud and that because of the malicious nature of the fraud, the appellee was entitled to recover punitive damages. Appellants then filed a motion to dismiss upon the same grounds they had previously urged and the court denied the motion. The denial of that motion is the principal issue on this appeal.

In Community National Bank & Trust Co. v. Vigman, 330 So.2d 211 (Fla.3d DCA 1976), this court had the same issue for decision. In that case, the first complaint alleged violations of the Securities Exchange Act of 1934. When that complaint was dismissed, an amended complaint was filed which did not base the claim for recovery on a violation of the act but alleged the same factual situation. One of the violations of the Securities Exchange Act of 1934 dealt with in the Vigman case was the “over trading” of the plaintiffs’ account for the purpose of creating commissions. This is essentially all that was alleged in the complaint now before us. In Vigman, we held that where the facts disclosed in the complaint showed the action to be predicated upon violations of restrictions or duties imposed by the Securities Exchange Act of 1934 or regulations thereunder, the failure of the complaint to refer thereto would not operate to avoid the provisions of the federal act under which jurisdiction for such actions lay exclusively in the United States District Courts. Acting thereupon, we held:

“Likewise the claim of liability against the broker for having so acted in the transactions for the purpose of increasing its business to create commissions, that is, for ‘churning’, had reference to a matter which would be a violation of the Securities Exchange Act of 1934, the jurisdiction for action upon which would be in the United States district courts.”

We hold, therefore, that it was error for the trial court to deny the appellants’ motions to dismiss the amended complaint, and that the complaint must be dismissed without prejudice to the appellee’s right to proceed in the federal courts.

Having reached the conclusion that the trial court lacked subject matter jurisdiction of this cause, we need not proceed with appellants’ points urging that punitive damages are not allowable under the facts proved, and that the compensatory damages are in an amount not supported by the evidence.

The judgment is reversed and the cause remanded with directions.

      . The paragraph added is as follows:
      “The actions of the Defendants, in trading the account for the purpose of producing commissions, rather than acting in your Plaintiffs behalf, is and was a fraud upon your Plaintiff at common law entitling your Plaintiff to recover and because of its willful and malicious nature, is such a fraud as entitles your Plaintiff to punitive damages.”


text:
    The STATE of Florida, Appellant, v. Omar B. SOTO, Appellee.
    No. 78-500.
    District Court of Appeal of Florida, Third District.
    Nov. 28, 1978.
    Rehearing Denied Jan. 3, 1979.
    Janet Reno, State’s Atty. and George Volsky, Asst. State’s Atty., Miami, and Howard Blumberg, Legal Intern, for appellant.
    Weiner, Robbins & Tunkey and William R. Tunkey, Miami, for appellee.
    Before PEARSON, HENDRY and BARKDULL, JJ.
   PER CURIAM.

Affirmed. See: Section 914.04, Florida Statutes (1977).


text:
    POSTON BRIDGE & IRON CO., INC., and Fidelity & Deposit Company of Maryland, Appellants, v. CENTRAL STEEL COMPANY and Trop-X, Appellees.
    No. 78-526.
    District Court of Appeal of Florida, Third District.
    Nov. 28, 1978.
    Rehearing Denied Jan. 3, 1979.
    Moore, Kessler, Roth & Beckerman and Stephen F. Kessler, Miami, for appellants.
    Wesley A. Lauer, Hallandale, Friedman, Britton, Cohen, Kaufman, Zinkow, Benson & Schantz and J. Robert Olian, Miami, for appellees.
    Before PEARSON, HENDRY and BARKDULL, JJ.
   PER CURIAM.

The appellant contractor was the defendant and third party plaintiff in the trial court. The cause was heard by the court without a jury and resulted in (1) a judgment for the plaintiff supplier upon its complaint for materials furnished on a construction site and (2) a judgment for the third party defendant subcontractor upon the claim of the appellant contractor. Our review of the record in the light of the briefs and oral argument does not reveal reversible error upon any of the points presented.

Affirmed.


author: ERVIN, Judge.

text:
    Vincent J. STROLLO, Appellant, v. Gertrude Harriet STROLLO, Appellee.
    No. JJ-70.
    District Court of Appeal of Florida, First District.
    Dec. 1, 1978.

      Stephen A. Smith of Smith & Smith, Lake City, for appellant.
    Lacy Mahon, Jr. of Mahon, Mahon & Farley, Jacksonville, for appellee.
   ERVIN, Judge.

Appellant, Vincent Strollo, appeals several points from a final judgment dissolving his marriage to appellee, Gertrude Strollo. The final judgment awarded appellee custody of the five minor children and exclusive use and possession of the marital home during the children’s minority. Appellant was ordered to pay appellee $350 a month for alimony and $900 a month for child support.

Appellant’s first argument that the trial judge abused his discretion in the amount of the alimony and child support award is without merit. We will not disturb findings or awards of the trial judge in dissolution proceedings absent a clear showing of abuse of discretion. Sisson v. Sisson, 336 So.2d 1129 (Fla.1976); Moses v. Moses, 344 So.2d 1322 (Fla. 2d DCA 1977). Nor do we agree with appellant that the trial judge abused his discretion for awarding one lump sum child support payment rather than separate sums for each of the five children so that the award for each child would terminate upon the child’s attaining his or her majority. See Jones v. Jones, 330 So.2d 536 (Fla. 1st DCA 1976). We affirm the awards made as to the assertion that the trial court abused its discretion as to the amounts ordered.

We agree, however, that the awards should be amended to reflect that it is the husband’s — not the wife’s — responsibility for mortgage payments made on the marital home. The court’s final judgment stated that the wife was “responsible for mortgage payments out of the proceeds . . . provided by the Husband to the Wife as . . . alimony for the Wife and child support monies for the minor children.” Despite the wife’s use as conduit for the payments upon the mortgage, it is clear that the husband had the ultimate burden. The residence the parties owned during the marriage was held as a tenancy by the entireties. Upon divorce they owned it as tenants in common, and each had the burden of one-half the expenses. Lyons v. Lyons, 208 So.2d 137 (Fla. 3d DCA 1968). However, the party who is made responsible for the mortgage payments should be allowed credit against the non-paying party’s one-half share from the proceeds of the sale of the home. Jones v. Jones, supra.

We conclude the cause should be remanded in order that the final judgment be amended to conform with this opinion.

We also agree with appellant that the trial judge should have provided that appellee’s exclusive use and possession of the marital home and appellant’s alimony obligations would cease upon appellee’s remarriage, and the judgment is amended accordingly. Jones v. Jones, supra; Hendricks v. Hendricks, 312 So.2d 792 (Fla. 3d DCA 1975).

The trial judge failed to specify a termination date for the periodic award of alimony. It provided only that the amounts be paid until further order of court. It is difficult to determine whether the court intended the award to be permanent or rehabilitative. If rehabilitative, the judgment should specify a termination date. Zilbert v. Zilbert, 287 So.2d 100 (Fla. 3d DCA 1973). The cause is remanded for such purpose.

The final judgment is affirmed in part, reversed in part and remanded for further action consistent with this opinion.

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


author: SCHWARTZ, Judge.

text:
    David H. COWHEARD, Appellant, v. The STATE of Florida, Appellee.
    No. 78-648.
    District Court of Appeal of Florida, Third District.
    Dec. 5, 1978.
    Rehearing Denied Jan. 3, 1979.

      Sheldon Yavitz, Miami, for appellant.
    Robert L. Shevin, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before HUBBART, KEHOE and SCHWARTZ, JJ.
   SCHWARTZ, Judge.

The defendant appeals from a judgment and sentence rendered against him after a jury found him guilty of grand larceny by false pretenses. We reverse for a new trial because the trial judge erroneously restricted the cross-examination of the star witness against him.

The record showed that the witness, a man named Price, who was an alleged co-participant in the scam with which Cow-heard was charged, had been summoned to appear before an Assistant State Attorney. In his testimony on that occasion, Price gave two diametrically contradictory stories about the scheme, one “on” the record and one “off,” but both under oath. In the one on the record, he denied everything; off the record, he stated that both he and Cow-heard were very guilty. The State Attorney thereupon informed him that he, Price, would either accept immunity (for both grand larceny and perjury) and testify against Cowheard; or be charged with perjury because of his conflicting statements. Price chose the former course. At that time, and at the time of trial, Price had pled guilty and was awaiting sentencing in the Miami Federal District Court for an unrelated narcotics smuggling charge.

At the trial, Cowheard’s attorney sought to impeach Price by reference to the outstanding Federal case. He proffered to the trial court that cross-examination on this point was pertinent because it went to the, or at least a, reason Price was testifying against Cowheard; that is, to avoid the filing of state perjury charges which would obviously and adversely affect the pre-sen-tence investigation being run on him and thus his Federal sentence itself. Ruling that the narcotics case could be referred to only if (as was not the case) the state had promised Price a favorable recommendation to the Federal authorities in return for his testimony, the trial judge denied the defendant the right to cross-examine on this issue. This was error.

Several recent Florida decisions have held that a state’s witness may be cross-examined on the basis of other pending criminal charges. This impeachment is not permitted, as in the case of an actual conviction, in order to affect his general credibility, but rather to demonstrate the witness’s bias or motive. In the latest such case, Blanco v. State, 353 So.2d 602, 604 (Fla. 3d DCA 1977), this court stated:

“Turning now to the first issue raised above, we also conclude the trial judge committed reversible error in not permitting defense counsel to make inquiry with regard to pending charges against this same witness. The law is clear that if a prosecution witness is presently or recently under actual or threatened criminal charges or investigation leading to such charges, the person against whom the witness testifies in a criminal case has an absolute right to bring those circumstances out on cross-examination or otherwise so that the jury will be fully apprised as to the witness’ possible motive or self-interest with respect to the testimony he (or she) gives. Morrell v. State, 297 So.2d. 579 (Fla. 1st DCA 1974); Stripling v. State, 349 So.2d 187, 191 (Fla. 3d DCA 1977) and cases cited therein.” [emphasis supplied]

Accord: Fulton v. State, 335 So.2d 280, 283-284 (Fla.1976); Crespo v. State, 344 So.2d 598, 600-601 (Fla. 3d DCA 1977); Lee v. State, 318 So.2d 431 (Fla. 4th DCA 1975).

We need not decide in this case whether, as the state argues, this rule may not be ordinarily applicable to charges pending only in another jurisdiction (on the theory that the witness would not be motivated to “curry . . . favor,” Morrell v. State, 297 So.2d 579, 580 (Fla. 1st DCA 1974), with authorities who had nothing to do with the prosecution against him). This is so because the record here demonstrates that the pending Federal case was directly related to the reason, the “motive,” Price was testifying against Cowheard. And we cannot agree with the trial judge that such evidence is properly restricted to a showing of threats or promises made by the state in connection with the Federal case. Any evidence which tends to establish that a witness is appearing for the state for any reason other than merely to tell the truth should not be kept from the jury.

Although we find no error in the remaining two points raised by the defendant, the judgment below is therefore reversed and the cause remanded for a new trial.

Reversed and remanded.

      . There is a suggestion in the record that, at the time, Price told the State Attorney who offered him immunity that he was “between a rock and a hard place” because of the pending Federal pre-sentence investigation.


text:
    FIRST OF GEORGIA INSURANCE COMPANY, Appellant, v. Thomas R. HOLZHAUSER, as father and next friend of Lisa M. Holzhauser, a minor, and Thomas R. Holzhauser, Individually, John D. Rosol & Alice U. Rosol, Appellees.
    No. 77-1331.
    District Court of Appeal of Florida, Fourth District.
    Dec. 6, 1978.
    Rehearing Denied Jan. 9, 1979.
    Thomas E. Scott, Jr. and Luis C. Busta-mante of Bradford, Williams, McKay, Kimbrell, Hamann & Jennings, P.A., Miami, for appellant.
    Wm. Bruce Harper, Jr. and Andrew J. Mirabito of Frates, Floyd, Pearson, Stewart, Richman & Greer, P.A., Miami, for appellees.
   PER CURIAM.

AFFIRMED. See Hogan v. O’Brien, 123 Misc. 865, 206 N.Y.S. 831 (1924).

DOWNEY, C. J., and ANSTEAD and MOORE, JJ., concur.


author: LETTS, Judge.

text:
    Charles MORT, Appellant, v. Patty MORT, Appellee.
    No. 78-1263.
    District Court of Appeal of Florida, Fourth District.
    Dec. 6, 1978.
    Gary E. Massey of Brock, Massey, Walden & Eaton, Altamonte Springs, for appellant.
    W. J. Heffernan, Jr. of Lubet, Heffernan & Rabinowitz, Altamonte Springs, for ap-pellee.
   LETTS, Judge.

This is an appeal from a non-final order affecting child custody, the court having determined that both Pennsylvania and Florida could exercise dual jurisdiction under the Uniform Child Custody Jurisdiction Act effective in this state October 1, 1977. We reverse and remand.

The entire family lived in Pennsylvania until mid 1977 when they moved to Florida with the two children aged 6 and 4. Shortly thereafter family strife was renewed and the wife returned to Pennsylvania taking the children. Subsequently the wife permitted the children to make a summer visit to their father in Florida, but instead of returning them at the conclusion thereof, he instituted custody proceedings here and later, upon satisfaction of his residency requirement, a dissolution proceeding in which he again requested custody.

Pursuant to the progress of the various custody enquiries and hearings (which included a recommendation from the Department of Health and Rehabilitative Services that the father be given permanent custody with liberal visitation rights to the mother) the court entered the order appealed from.

The order in question provided, inter alia, that,

(1) The Florida Court had jurisdiction
(2) The Pennsylvania Court had jurisdiction, and
(3) The Pennsylvania Court and the Florida Court'could both determine matters concerning the care, custody and control of the children.
(4) “this temporary order shall be subject to modification by either this court or a court of competent jurisdiction in the State of Pennsylvania.”

The Father correctly argues on appeal that the provisions of the applicable Florida Statute require the Florida Court to ascertain

(1) Whether it has jurisdiction,
(2) Whether there are already custody proceedings pending in another state and
(3) Whether Florida is a convenient forum for custody .

In the case now before us, the court did find jurisdiction in Florida and also that no proceedings had been instituted in Pennsylvania . However it did not find Florida to be an inconvenient forum and in fact all indications from the record are to the effect that Florida is a convenient forum. This being so, we feel it was error for the Florida Court to grant the power to the Pennsylvania Court to exercise jurisdiction and modify custody while simultaneously keeping that power unto itself as well. In other words, if Florida is convenient, the jurisdiction should be exercised here. If inconvenient, it should be so exercised in Pennsylvania.

The Florida Uniform Act in Section 61.134, Florida Statutes (1977) clearly provides:

Hearings and studies in another state; orders to appear.
(1) A court of this state may request the appropriate court of another state to hold a hearing to adduce evidence, to order a party to produce or give evidence under other procedures of that state, or to have social studies made with respect to the custody of a child involved in proceedings pending in the court of this state; and to forward to the court of this state certified copies of the transcript of the record of the hearing, the evidence otherwise adduced, or any social studies prepared in compliance with the request.

Accordingly, there is no error in requesting the Pennsylvania Court to “assist” the Florida Court in determining custody. However, it goes far beyond the statutory intent to, in effect, confer the exercise of dual jurisdiction so that Florida and Pennsylvania can both act “ . . . concerning the . . . care, custody and control of the minor children of the parties . . ..”

We find no Florida case exactly on point but are persuaded by the Oregon case of Carson v. Carson, 29 Or.App. 861, 565 P.2d 763 (1977). It is true that the model version of the Uniform Act has an express provision which states “while jurisdiction may exist in two states ... it will not be exercised in both . . ..” whereas the Florida version contains no such language. However, the Florida act does state in Section 61.1304 that “. . . the general purposes of this act are to . avoid jurisdictional competition and conflict with courts of other states . . . .” To us this language is tantamount to an instruction that jurisdiction is not to be simultaneously exercised in both states. Certainly we are of the opinion that the trial judge’s order here appealed, in effect provides the opportunity for competition between the two courts and appears to be “. . . wholly contrary to the purposes of the Uniform Act.” Carson, supra, 768.

We therefore reverse this cause and remand it for further proceedings in accordance herewith.

CROSS and ANSTEAD, JJ., concur.

      . § 61.1308, Fla.Stat. (1977)

      . § 61.1314, Fla.Stat. (1977)

      . § 61.1316, Fla.Stat. (1977)

      . This is apparent from the further language of the order which states “that the Respondent is entitled to institute proceedings in Pennsylvania to assist this court in determining custody

      . The word “assist” is the very word used by the trial judge in this cause.

      . Neither does the Oregon Statute. See Carson, supra.


text:
    Carlton Wesley GERLACH, Appellant, v. STATE of Florida, Appellee.
    No. 77-1433.
    District Court of Appeal of Florida, Second District.
    Dec. 6, 1978.
    James Robert Yon, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm the judgment of the trial court, but we find the phrase “at hard labor” in the sentence is improper because no existing Florida statute provides for imprisonment at hard labor as a sentence for any crime. Corsey v. State, 349 So.2d 738 (Fla.2d DCA 1977).

Remanded for striking the phrase “at hard labor” in the judgment and sentence; otherwise affirmed. Appellant need not be present for this purpose.

BOARDMAN, Acting C. J., and RYDER and DANAHY, JJ., concur.


text:
    Russell C. BAUER, Appellant, v. VANGUARD REALTY, INC., Appellee.
    No. KK-400.
    District Court of Appeal of Florida, First District.
    Dec. 7, 1978.
    William A. MacGuire, Orange Park, for appellant.
    Stephen O. Parker, Jacksonville, for ap-pellee.
   PER CURIAM.

This cause is before us on appeal from the final judgment of the Circuit Court, Clay County, dismissing the second amended complaint of the plaintiff, appellant herein, against defendant Vanguard Realty, Inc. and its agent, Peter 0. Dalton, real estate brokers. The judgment sought to be reviewed is, in pertinent part, as- follows:

“Plaintiff seeks to impose liability upon the real estate broker, an agent of thé seller for a listing stating the home contained 1,980 square feet. Plaintiff further states that the defendant verbally stated the house contained ‘just under 2,000 square feet’. Plaintiff alleges thát the house in fact contained 1,837 square feet. Nowhere does the plaintiff allege that such deficiency in square footage, if it existed, was material to the contract to purchase.
Plaintiff seeks to impose liability upon the real estate broker on the theory of a fiduciary relationship to the buyer. Florida courts have consistently held there is no such fiduciary relationship existing between the real estate broker and the buyer.
Florida courts have consistently put a burden upon the purchasers to ascertain for themselves those facts which are easily ascertainable. The gross square footage of a home is such an easily ascertainable fact that strict reliance on a representation by a broker can be misplaced. Plaintiff herein does not seek recission of the contract but merely demands money judgment for damages. Based on the allegations of the second amended complaint, the court can not as a matter of law find that the allegations would support such a cause of action against this defendant.”

We have reviewed the record and briefs and find that the trial court did not err in dismissing the complaint. Accordingly, the judgment below is AFFIRMED.

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


author: BOOTH, Judge.

text:
    M. D. MOODY & SONS, INC., Appellant, v. DEPARTMENT OF REVENUE, Appellee.
    No. II-448.
    District Court of Appeal of Florida, First District.
    Dec. 7, 1978.
    Daniel S. Dearing, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., and Patricia S. Turner, Asst. Atty. Gen., for appellee.
   BOOTH, Judge.

This cause is before us on appeal from a final order of the Department of Revenue [DOR] dated November 22, 1977, upholding a sales tax deficiency assessed against appellant Moody. The question presented is whether interest charged by petitioner Moody on a lease-purchase transaction should be classified as a charge for the extension of credit and hence not subject to sales tax (as contended by Moody) or as part of the total sales price paid when the option to purchase is exercised and hence subject to sales tax (as contended by DOR).

Appellant M. D. Moody & Sons, Inc., deals in sales and rentals of heavy equipment such as mobile and stationary cranes, concrete mixers, tractors, and other road building and heavy construction machinery. Since the mid-1940’s, Moody has sold a general line of construction equipment on a lease-purchase basis. This procedure allows a customer to acquire heavy machinery without committing large sums of capital to long-term credit transactions. Moody’s bid to a prospective purchaser includes (1) the price of a piece of equipment, (2) a monthly rental price applicable should purchaser elect to lease the equipment, (3) a discount negotiated to apply in the event of purchase and (4) the interest rate which is negotiated and agreed to when the original lease-purchase agreement is made, to apply in the event the purchaser exercises the option to purchase. The purchaser may either lease the equipment by paying the monthly rental, and never exercise his option to purchase, or the purchaser may lease for a number of months until his “equity” builds up to the point that it becomes economical to purchase the equipment. Upon election of the purchase option, all amounts previously paid as rental are subtracted from the purchase price, less a discount previously negotiated and agreed upon. The interest rate previously negotiated is then multiplied by the outstanding principal balance reduced each month from the beginning of the transaction to the date of the exercise of the option. The interest is computed on the credit extended during the previous period of the lease and is a charge for the use of Moody’s money during the term of the lease.

Moody points out that it borrows money from banks to finance the purchase of equipment that it then leases and that the lease-purchase transaction reflects an extension of credit by Moody to the purchaser. The interest charged is the cost of money incurred by Moody in financing the equipment during the period the customer used it before exercising the option to purchase.

The hearing officer’s order recommended that DOR abandon its deficiency assessment, and stated, in part', the following conclusions:

“[T]he portions of lease payments which petitioner allocates to interest constitute a finance charge, which was separately stated at the time the lease purchase agreement was entered into. The gist of Rule 12A-1.17, F.A.C., is that installament payments in themselves give rise to no presumption that credit has been extended. But the lease purchase agreements petitioner enters into with its customers expressly contemplate the extension of credit and specify the rate of interest. Rule 12A-1.17, F.A.C., which provides that separately stated finance charges are exempt from sales tax, evinces no intent to exclude installment sales involving lease options from its coverage. Because petitioner’s customers who exercised their purchase options had already paid sales tax on the portions of lease payments petitioner allocated to interest, they were entitled to the offsetting credits they received when the transactions were closed out.
Pursuant to Rule 12A — 1.17, F.A.C., interest is not subject to sales tax in situations where ‘a cash selling price is stated and interest . . . [is] added thereto.’ This is the equivalent of a situation where the rate of interest at which credits against a cash selling price are to be reduced is stated, as in petitioner’s contract with Poston.
The ambiguity inherent in a lease purchase agreement resolves itself only when the option to purchase expires, whether by being exercised or upon termination of the lease. Pursuant to Rule 12A-1.71(6), F.A.C., sales taxes are paid on the entire amount of periodic ‘payments under a lease purchase . . . agreement.’ Because such payments are ordinary rental payments in the event the lessee does not exercise the option to purchase, this results in equal treatment of lessees without regard to whether their leases contain certain purchase options. If the option to purchase is exercised, rendering the transaction an installment sale, the installment buyer need not forfeit sales tax paid on finance charges, if those charges have been separately stated. Rule 12A-1.17, F.A.C. This results in equal treatment of installment buyers without regard to whether their installment sales contracts contain lease options.”

The Department adopted the Findings of Fact of the hearing officer, but rejected his Conclusion. The Department’s recommendation that the assessment for sales tax be upheld was adopted by the Governor and Cabinet.

We reverse, and hold that the interest charges are not subject to sales tax. Accordingly, the order of the DOR is REVERSED and the cause REMANDED with directions that the deficiency assessment against appellant be withdrawn.

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


text:
    Chris Alton WHITE, Appellant, v. STATE of Florida, Appellee.
    No. II-306.
    District Court of Appeal of Florida, First District.
    Dec. 7, 1978.
    James B. Gibson, Public Defender, Seventh Judicial Circuit, and Frank G. Ho watt, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., for appel-lee.
   PER CURIAM.

We treat appellant’s notice of appeal from the judgment of conviction for burglary of a structure as a petition for a belated appeal under Hollingshead v. Wainwright, 194 So.2d 577 (Fla.1967). The petition is granted. After reviewing the record and briefs, we find that no reversible error has been demonstrated. The judgment and sentence are accordingly AFFIRMED.

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


author: DANAHY, Judge.

text:
    Phillip J. WHITE and Willie Barnes, Jr., Appellants, v. STATE of Florida, Appellee.
    Nos. 77-1858, 77-1918.
    District Court of Appeal of Florida, Second District.
    Dec. 8, 1978.

      Jack 0. Johnson, Public Defender, and Susan G. Sexton, Asst. Public Defender, Bartow, for appellants.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appellee.
   DANAHY, Judge.

Appellants argue that the trial court erred in denying their motion for mistrial after a witness made reference to their privilege against self-incrimination. We agree and reverse their convictions.

A Polk County grand jury indicted appellants and five others for the first degree murder of a Cypress Gardens security guard in 1974. Appellants received a separate trial at which the state’s main witness was David Mitchell. Mitchell was a participant in the burglary which led to the killing of the security guard, but the state gave him immunity in return for his testimony.

During the cross-examination of Mitchell by appellant White’s counsel, the following took place:

Q. What did you tell him?
A. I just told him I wanted a lawyer, that I didn’t know nothing about the Honeywell breaking and entering.
Q. That was a lie?
A. Yes.
Q. That’s two lies we are talking about now?
A. Well, I exercised my right to remain silent, the same thing these people are doing.

Appellant Barnes' counsel immediately objected to the testimony and moved for a mistrial. After the court removed the jury, White’s counsel joined the mistrial motion. The court then denied the motion and trial continued with the jury returning verdicts of guilty as charged.

In Clark v. State, 363 So.2d 331, 334 (Pla. 1978) our supreme court held, “[Rejversible error occurs when any state, defense, or court witness in a jury trial spontaneously volunteers testimony concerning the defendant’s exercise of his right to remain silent.” At 334. Clearly, then, Mitchell’s statement, “Well, I exercised my right to remain silent, the same thing these people are doing,” constituted reversible error. Defense counsel did not solicit the remark, and it certainly was a reference to appellants’ right to remain silent. Moreover, counsel correctly preserved the point for appeal by objecting and moving for a mistrial. Clark v. State, supra.

We note that appellant Barnes has already had two mistrials, and we believe it is unfortunate that the state will have to try him a fourth time. This is particularly so since the state did not create the error upon which we must reverse. Yet the mandate of Clark is clear, and it is our duty to protect the legitimate rights of defendants in the criminal justice system. We think, however, that there is a lesson to be learned from this case, namely, that a prosecutor must always carefully warn witnesses not to make any reference to a defendant’s right to remain silent.

We have considered appellants’ other point and find it to be without merit. We remand this case for a new trial for both appellants.

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


text:
    Jesus N. ABREAU, Appellant, v. STATE of Florida, Appellee.
    No. 76-570.
    District Court of Appeal of Florida, Third District.
    Dec. 11, 1978.
    Kogen & Kogan and Geoffrey C. Fleck, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Arthur Joel Berger, Asst. Atty. Gen., for appellee.
    Before PEARSON, HENDRY, and HUB-BART, JJ.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on July 6, 1977 (847 So.2d 819) reversing the judgment and sentence of the Circuit Court of Dade County, Florida, in the above-styled cause; and

WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida, 363 So.2d 1063, by its opinion and judgment dated May 26, 1978 now lodged in this court, quashed this court’s judgment.

NOW, THEREFORE, It is Ordered that the mandate of this court heretofore issued in this cause on July 22,1977 is withdrawn, the judgment of this court filed July 6,1977 is vacated, the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court. Further, the court has considered the two other contentions raised by the appellant in this court upon the original appeal urging reversal of the judgment and sentence appealed from which contentions were reserved and not reached by this court in its original opinion and judgment stated above. We now find that these contentions have no merit. Accordingly, the judgment and sentence of the trial court is reinstated and affirmed. Costs allowed shall be taxed in the trial court. Fla.R.App.P. 9.400(a).


author: PER CURIAM. MILLS, Judge,

text:
    Eddie Jerome WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. JJ-346.
    District Court of Appeal of Florida, First District.
    Dec. 12, 1978.

      Michael J. Minerva, Public Defender and Judith J. Dougherty, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Richard W. Prospect, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Williams appeals the revocation of his probation, challenging the trial court’s jurisdiction to revoke and its failure to make a finding that he had the ability to pay amounts required as a condition of his probation before revoking on that ground. He also appeals his sentence. We affirm in part and remand the case for further determinations.

We address the alleged sentencing error first. The record reveals that the trial court sentenced appellant to a term of one year and one day with 33 days jail time credit after being told by appellant’s counsel that appellant had been in jail for 33 days since being arrested on the probation violation. After the announcement of this sentence, appellant’s counsel stated that appellant had served 30 days at the time of his original sentence and would also be entitled to credit for that time. The court then modified the sentence to 15 months with credit for 63 days. Appellant argues here that the court’s second sentence violates this court’s decisions in Flowers v. State, 351 So.2d 387 (Fla. 1st DCA 1977) and Andrews v. State, 357 So.2d 489 (Fla. 1st DCA 1978). In Flowers, supra, the trial court resentenced the defendant to a straight prison term two days after sentencing him in open court to a split prison and probation term. This court, noting that every element of a “sentence" as defined by Florida Rule of Criminal Procedure 3.700 had been supplied by the earlier proceedings, reversed the trial court and reinstated appellant’s original sentence. In Andrews, supra, the trial court sentenced the appellant to nine months in the county jail. He was then taken across the street to the county jail to begin serving his term. Subsequently appellant’s counsel pointed out to the court that it had failed to credit jail time in its sentence. The court then set aside the prior sentence and resentenced the defendant to ten months imprisonment with credit for 54 days jail time. This court reversed, finding that the trial court had no authority to set aside a prior sentence and impose a new one after the first sentence had begun to be served.

Those cases are distinguishable from this one in that here the sentence had not begun to be served before it was modified by the trial court. Moreover, appellant’s counsel failed to mention the previous time served when asked how long appellant had been in jail. We see nothing in Flowers or Andrews requiring a trial court to adhere to a sentence merely because it has been announced, where it is based on incomplete information and all of the elements of a sentence as defined by the Rule, i. e., the completion and filing of the form of judgment and sentence, have not been satisfied. Appellant’s sentence is therefore affirmed.

Appellant also contends that the court erred in revoking his probation for failing to pay restitution, court costs, and attorney’s fees (payment of which was a condition of his probation) without making a finding that he had the ability to pay those amounts. Jones v. State, 360 So.2d 1158 (Fla. 1st DCA 1978). With this contention we agree. The case will therefore be remanded for a determination of appellant’s financial capability, as delineated in Jones, supra.

Appellant’s primary point, however, is his contention that his legal probationary period had expired at the time of the revocation and therefore the court was without jurisdiction to take further action in his case. After a thorough review of the very confusing series of dates and events suggested by appellant in support of his argument, we find it impossible to determine the jurisdictional point and remand for further supplementation of the record. It appears that appellant’s two year probation began late in February, 1975. The exact date is disputed. It further appears that appellant executed a request for a one-year extension of his probation and waived a hearing on this request late in January, 1977, before the expiration of his term. The confusion occurs here. The record reveals that appellant’s request for extension was not filed with the court until April, 1978. In the meantime, however, the trial court, on March 8, 1977, issued an order extending probation for one year, nunc pro tunc February 26, 1977. That order was not appealed and there is no indication in the record of what proceedings caused the trial court to issue the extension order or what proceedings caused the appellant to execute the extension request. In any event appellant’s probation continued after the trial court’s extension order, but he still apparently did not pay the required amounts. His probation officer filed an affidavit for violation of probation on this ground on February 27, 1978. Appellant filed a motion to dismiss the revocation action alleging that his probation had already expired. The motion was denied and appellant’s probation was subsequently revoked and sentence was imposed.

Giving effect to the presumption in favor of the correctness of the trial court’s action, we cannot on the record presented say with certainty that the trial court did or did not have jurisdiction at the time of the revocation here appealed. As mentioned above, there is no explanation in the record of what events took place to cause the trial court to issue its order of extension in March, 1977, and without this explanation we cannot decide the jurisdiction question. We therefore remand the case for further supplementation of the record and relinquish jurisdiction for this purpose, including, if necessary, a hearing. We also remand for a determination of appellant’s ability to pay, as stated above.

The sentence is affirmed and the case is remanded for further proceedings in accordance with this opinion.

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

MILLS, J., dissents.

MILLS, Judge,

dissenting:

It is apparent from the record that the trial court lost jurisdiction over appellant before revoking his probation. Regardless of what proceedings took place to cause the trial court’s extension order, the record reflects that the affidavit to revoke appellant’s probation was not filed until 27 February 1978, which was one day after the extended probationary term expired even if the court’s extension order of 8 March 1977 was effective.

There is no rule allowing this court to relinquish jurisdiction to the trial court to allow the State to have a hearing to build a record simply to support the trial court’s action.

I would reverse the revocation of appellant’s probation.


author: HUBBART, Judge.

text:
    KUEHNE & NAGEL, INC., Appellant, v. LEWIS MARINE SUPPLY, INC., Appellee.
    No. 77-1077.
    District Court of Appeal of Florida, Third District.
    Dec. 12, 1978.
    Friedman & Britton and J. Robert Olian, Miami, for appellant.
    Gustafson, Stephens, Ferris & Forman and Donald R. Hall, Fort Lauderdale, for appellee.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   HUBBART, Judge.

The central issue raised by this appeal is whether a final summary judgment may be entered in favor of a party on a cause of action not pled in the complaint. We hold that such a summary judgment can never be so rendered and reverse.

The facts relevant to the above issue are undisputed. The plaintiff Lewis Marine Supply, Inc. filed a lawsuit sounding in breach of contract against the defendant Kuehne & Nagel, Inc. before the Circuit Court for the Eleventh Judicial Circuit of Florida. The complaint alleged that the plaintiff Lewis Marine is in the business of supplying marine products, that the defendant Kuehne & Nagel is in the business of forwarding freight, that on two separate dates the plaintiff Lewis Marine delivered certain marine products to the defendant Kuehne & Nagel to be forwarded C.O.D. to a certain consignee [Remomar] in Caracas, Venezuela, that the transaction between the parties was evidenced by certain documents including an airway bill attached to the complaint, that the defendant Kuehne & Nagel breached its contractual obligation to the plaintiff Lewis Marine by failing to have collected or to have caused to be collected the cash due on delivery for each of the aforesaid shipments, and that by such breach of contract the plaintiff Lewis Marine suffered certain damages in that the aforementioned shipments of marine products were seized in Venezuela without being paid for and cannot now be claimed.

The defendant Kuehne & Nagel filed an answer admitting the facts alleged in the complaint except for those facts charging a breach of contract. Such latter allegations were denied. In addition, Kuehne & Nagel filed a counterclaim against the plaintiff •Lewis Marine seeking the amount allegedly due and owing on the freight forwarding charges arising out of the transactions alleged in the complaint. The plaintiff Lewis Marine filed a general denial answer to the counterclaim.

The undisputed evidence developed during the discovery in this cause established that the alleged contract was entered into between the parties, that the alleged marine products were delivered to the defendant Kuehne & Nagel as a freight forwarder, that the defendant Kuehne & Nagel caused the shipments to be sent by air to Caracas, Venezuela, that the defendant Kuehne & Nagel immediately notified the consignee Remomar as to arrival of the marine products in Caracas, Venezuela, that such consignee Remomar did not initially, but ultimately did refuse delivery and did not pay the defendant Kuehne & Nagel any of the purchase price for the shipped marine products, that the plaintiff Lewis Marine refused to make payment on the freight forwarding charges owed to the defendant Kuehne & Nagel, and that the shipped merchandise was eventually seized by customs officials in Caracas, Venezuela and sold for unpaid customs charges.

Both parties moved for summary judgment. After due notice and hearing, the trial court entered a final summary judgment in favor of the plaintiff Lewis Marine on the ground that the defendant Kuehne & Nagel had failed to reasonably notify the plaintiff Lewis Marine of the non-delivery of the goods to the consignee Remomar and that it also failed to reasonably notify the plaintiff Lewis Marine as to the accrual of customs charges in Caracas, Venezuela. The defendant Kuehne & Nagel appeal therefrom.

In our view, the defendant Kuehne & Nagel was not guilty of the breach of contract pled in the complaint. It was in no way responsible for not collecting upon delivery the purchase price of the shipped marine products from the consignee Remo-mar. In point of fact, Remomar was the wrongdoer in that it ultimately refused to accept delivery or to make payment on the goods after the defendant Kuehne & Nagel had promptly notified Remomar of the arrival of such goods in Caracas, Venezuela, pursuant to the contract between the parties. As such, the cause of action alleged in the complaint had no basis in fact.

The trial court, however, bottomed its summary judgment herein for the plaintiff Lewis Marine on a different cause of action. It concluded that the defendant Kuehne & Nagel had failed to perform certain acts relative to notifying Lewis Marine on Re-momar’s ultimate refusal to accept delivery and the subsequent accrual of customs charges thereby creating liability sounding in either contract or tort against the defendant Kuehne & Nagel. It is unnecessary to determine whether such liability was established on this record as a matter of law on such a cause of action. It is enough to observe that such a cause of action is not alleged in the instant com-' plaint. Nowhere in the complaint is it expressly or impliedly alleged that the defendant Kuehne & Nagel failed to notify Lewis Marine of anything. It is axiomatic that a party is never entitled to summary judgment based on a cause of action not pled in the complaint. White v. Fletcher, 90 So.2d 129, 131-32 (Fla.1956); Connolly v. Sebeco, Inc., 89 So.2d 482, 484 (Fla.1956); Meigs v. Lear, 191 So.2d 286, 288-89 (Fla. 1st DCA 1966); Fla.R.Civ.P. 1.510(a), (b).

The final summary judgment under review is reversed and the cause remanded for further proceedings.


text:
    Kenneth Leroy GRAY, Appellant, v. The STATE of Florida, Appellee.
    No. 77-2083.
    District Court of Appeal of Florida, Third District.
    Dec. 12, 1978.

      George & McQüade and Walter F. McQuade, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and William M. Grodnick, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and HEN-DRY and HUBBART, JJ.
   PER CURIAM.

Defendant, Kenneth Gray, appeals his conviction for grand larceny. Gray was a real estate broker who operated Continental Consultants, Inc. He had sole control over Continental’s escrow account, and made all deposits and issued and signed all checks. In April, 1976 Mr. and Mrs. Bubnow contacted Gray in his capacity as broker and he showed them the home of Mr. and Mrs. Smith. Desirous of purchasing the Smith residence, the Bubnows signed a purchase agreement conditioned upon their obtaining FHA financing and deposited $5,000 with Gray who stated that the money would be placed in Continental’s escrow account. Unable to obtain FHA financing, the Bub-nows requested return of their $5,000. Gray refused but told the Bubnows that his associate, Esther Flores, would find them another house to purchase and the $5,000 would be applied towards the purchase price. In July, 1976 Flores found the Bub-nows a suitable residence for sale owned by a Mrs. Mandt. At the closing on the Mandt house, Gray had agreed to produce two checks, a $2,366 check for the seller, Mrs. Mandt, and a $1,317 check for the co-operating broker, Vernon Stewart Realty. The remainder of the $5,000 was to be split between Gray and Flores as their commission. Gray failed to appear with the checks, but the transaction was closed when Vernon Stewart advanced Mrs. Mandt $2,171.45 so she could close on the purchase of her home. Vernon Stewart then demanded payment from Gray who never paid the money. Thereafter, Gray was informed against for grand larceny and it was subsequently discovered that Gray had withdrawn most of the money out of Continental’s escrow account and placed it in another Continental account used for his personal purposes. At the trial Gray’s defense was basically that he did not know what happened to the $5,000 placed in the escrow account. The jury returned a verdict of guilty and Gray appeals contending generally the evidence was insufficient and specifically the failure to prove the element of intent.

Generally facts are sufficient to support a conviction of grand larceny where the receipt of money from another is coupled with a promise that the money would be returned sometime in the future but is never returned. Stanton v. State, 349 So.2d 761 (Fla. 3d DCA 1977); O’Brien v. State, 327 So.2d 237 (Fla. 1st DCA 1976); Winnemore v. State, 150 So.2d 277 (Fla. 2d DCA 1963); Nunamaker v. State, 116 So.2d 450 (Fla. 2d DCA 1959). It is undisputed that Gray never returned the money as promised. In addition, there is sufficient evidence that he withdrew the deposited funds out of the escrow account and transferred them to a corporate account of which he could and did make personal use. Under these circumstances the record excludes every reasonable hypothesis of innocence.

Affirmed.


text:
    B. C. C., INC., a Florida Corporation, Appellant, v. Miriam ROZYNER, Ervin M. Entrekin, et al., Appellees.
    No. 77-2372.
    District Court of Appeal of Florida, Third District.
    Dec. 12, 1978.
    Goethel & Garcia-Vidal and Richard Karl Goethel, Coral Gables, for appellant.
    Curry, Shamas & Elias and George Elias, Jr., Faunce, Fink & Forman and Gerald Forman, Miami, for appellees.
    Before HAVERFIELD, C. J., and PEARSON and KEHOE, JJ.
   PER CURIAM.

Affirmed. See Fla.R.Civ.P. 1.030(d); Orthwein v. Cobbs Fruit & Preserving Company, 229 So.2d 607 (Fla. 1st DCA 1969), and Fink v. Powsner, 108 So.2d 324 (Fla. 3d DCA 1958); Lipton v. Southeast First Nat. Bank of Miami, 343 So.2d 927 (Fla. 3d DCA 1977); Mawi Corp. v. Advance Mortgage Corp., 353 So.2d 564 (Fla. 3d DCA 1977).


author: KEHOE, Judge.

text:
    C. B. JACKSON & SONS CONSTRUCTION COMPANY, a Florida Corporation, Appellant, v. Robert DAVIS and Jean Davis, his wife, Appellees.
    No. 78-139.
    District Court of Appeal of Florida, Third District.
    Dec. 12, 1978.
    Jeffrey M. Feuer, Miami, for appellant.
    du Fresne & du Fresne and Elizabeth J. du Fresne, Miami, for appellees.
    Before HUBBART, KEHOE and SCHWARTZ, JJ.
   KEHOE, Judge.

Appellant, plaintiff below, brings this appeal from an order dated November 18, 1977, dismissing its complaint in a mechanic’s lien case and entering final judgment for appellees, defendants below. We reverse.

The order appealed and the record show that the trial court dismissed appellant’s complaint on the grounds that it had not complied with Chapter 468, Florida Statutes (1975) and Section 10 — 5, Metropolitan Code of Dade County, requiring it to be licensed as a “contractor” or “general contractor” to perform certain work under a construction contract between the parties. In our opinion, the failure to follow the licensing procedure of these Sections would not preclude appellant from maintaining a cause of action based on quantum meruit, although it might subject it to certain other penalties. See, e. g., Wood v. Black, 60 So.2d 15 (Fla. 1952); and Warren v. Bill Ray Construction Co., Inc., 269 So.2d 25 (Fla. 3d DCA 1972). See generally Annot., 82 A.L.R.2d 1429 (1962). Accordingly, the order appealed is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.


text:
    Yaffa DERMER, Appellant, v. HARTFORD ACCIDENT AND INDEMNITY COMPANY, Jefferson Bancorp, Inc., and Jose Garcia, Appellees.
    No. 78-371.
    District Court of Appeal of Florida, Third District.
    Dec. 12, 1978.
    Joe N. Unger and Jay Dermer, Miami Beach, for appellant.
    Talburt, Kubicki & Bradley and Betsy E. Hartley, Miami, for appellees.
    Before PEARSON, KEHOE and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed. Lassitter v. International Union of Operating Engineers, 349 So.2d 622, 627 (Fla.1977).


text:
    Deborah KOHL f/k/a Deborah Hertzon, Appellant, v. Joel PURETZ, Allen Ralph Puretz and Home Insurance Company, Appellees.
    No. 78-721.
    District Court of Appeal of Florida, Third District.
    Dec. 12, 1978.

      Bradford, Williams, McKay, Kimbrell, Hamann & Jennings and Richard T. Woulfe, Miami, for appellant.
    Ligman, Martin, Shiley & McGee, Coral Gables, Jeanne Heyward, Miami, for appel-lees.
    Before PEARSON, KEHOE and SCHWARTZ, JJ.
   KEHOE, Judge.

Appellant, plaintiff below, brings this appeal from an amended final judgment, the nature of which is a final order on appel-lees’, defendants below, motion for summary judgment, in a personal injury automobile accident case. The primary issue presented on appeal is whether, from the discovery evidence presented, the trial court properly concluded that there were no material issues of fact remaining in regard to the question of negligence. Our review of the record leads us to the conclusion that there were justiciable issues of material facts remaining at the time the trial court granted summary judgment in favor of ap-pellees. In the light of this conclusion, it is our opinion that the trial court erred in entering the amended final judgment appealed. See Fla.R.Civ.P. 1.510. Accordingly, the judgment is reversed and the cause is remanded for further proceedings.

Reversed and remanded.


text:
    Omarto PERDOMO, Appellant, v. The STATE of Florida, Appellee.
    No. 78-899.
    District Court of Appeal of Florida, Third District.
    Dec. 12, 1978.
    Albert L. Carnearte and Harold Mende-low, Miami Springs, for appellant.
    Robert L. Shevin, Atty. Gen. and William M. Grodnick, Asst. Atty. Gen., for appellee.
    Before PEARSON, HENDRY and BARKDULL, JJ.
   PER CURIAM.

Affirmed upon authority of the rule stated in Darty v. State, 161 So.2d 864, 872-873 (Fla. 2d DCA 1964).


text:
    PROFESSIONAL PATIENT TRANSPORTATION, INC., Appellant, v. Manny FINK, Mrs. David Bengen, widow of David Bengen, and the Estate of David Bengen, Jointly, Severally, and Individually, Appellees.
    No. 78-1652.
    District Court of Appeal of Florida, Third District.
    Dec. 12, 1978.

      David S. Wieder, Miami, for appellant.
    Schwartz, Klein & Steinhardt and Norman S. Klein,'North Miami Beach, for ap-pellees.
    Before PEARSON, HUBBART and SCHWARTZ, JJ.
   SCHWARTZ, Judge.

The trial judge quashed the service of process attempted upon the nonresident defendants, under the Florida long-arm statute, notwithstanding the allegation in the complaint that they had breached their agreement to make payment in the State of Florida for services rendered to them by the plaintiff outside the state. As the court held in the controlling case of Madax International Corp. v. Delcher Intercontinental Moving Services, Inc., 342 So.2d 1082 (Fla. 2d DCA 1977), this breach, which amounted to the defendants’ “failure to perform acts required by the contract to be performed in this state," under Fla.Stat. § 48.193(l)(g), (1975), was sufficient to confer Florida jurisdiction over the defendants. The order under review is therefore reversed and the cause remanded for further consistent proceedings.

Reversed and remanded.


text:
    PALACE BAR & LOUNGE, INC., a Florida Corporation, Appellant, v. Janet RENO, as State Attorney of the Eleventh Judicial Circuit of Florida in and for Dade County, Appellee.
    No. 78-1863.
    District Court of Appeal of Florida, Third District.
    Dec. 12, 1978.
    S. Charles Adams, Pompano Beach, for appellant.
    Janet Reno, State’s Atty., and Bayard Heath, Asst. State’s Atty., for appellee.
    Before PEARSON, HUBBART and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed on the authority of Orlando Sports Stadium, Inc., v. State ex rel. Powell, 262 So.2d 881 (Fla.1972).


text:
    METROPOLITAN DADE COUNTY, Florida, a Political Subdivision of the State of Florida, Appellant, v. Otis W. SHIVER, Individually, North Dade Oceanfront Resort Owners Association, an Unincorporated Association, Marco Polo Hotel, a Florida Corporation, Serita Elwood, Individually and Shiver Enterprises, Inc., a Florida Corporation, Appellees, and Miami Dolphins, Ltd., a Florida Limited Partnership, Intervenor/Appellee.
    No. 78-2031.
    District Court of Appeal of Florida, Third District.
    Dec. 12, 1978.

      Stuart L. Simon, County Atty., for appellant.
    Frates, Floyd, Pearson, Stewart, Richman & Greer and Gerald F. Richman, Paul & Thomson and Jon W. Zeder, Miami, for appellees.
    Before HENDRY and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   HUBBART, Judge.

This is an action for declaratory and in-junctive relief seeking to restrain the holding of a referendum election on a certain county tax ordinance in the Circuit Court for the Eleventh Judicial Circuit of Florida. The trial court granted the injunction from which an appeal was taken to this court. After full briefs and argument, this court entered an order reversing the order under review and placed the said election issue back on the November 7, 1978 ballot. This opinion more fully explains our reasons for taking such action.

The controlling facts in this case are undisputed. The Board of County Commissioners of Dade County, Florida enacted an ordinance subject to voter approval imposing a certain tourist development tax pursuant to Section 125.0104, Florida Statutes (1977) throughout Dade County, Florida except within the municipal limits of Miami Beach, Bal Harbour, and Surfside where municipal resort taxes were already in effect. This ordinance was placed on the ballot for the October 5, 1978 election. An action was thereafter filed by certain residents of Dade County to enjoin the holding of an election on such question before the Circuit Court for the Eleventh Judicial Circuit of Florida. On September 8, 1978, the trial court granted the injunction from which no appeal was taken.

On October 4, 1978, the Board of County Commissioners again met and duly enacted another ordinance similar to the above prior ordinance but calling for a voter referendum thereon to be held on the November 7, 1978 election. A resolution was also passed providing the language for the ballot question on the referendum. The plaintiff residents of Dade County Otis W. Shiver, et al., thereafter filed another action for declaratory and injunctive relief seeking to keep the above question off the November 7, 1978 ballot. On October 27, 1978, the trial court granted the injunctive relief requested from which Dade County duly appealed to this court. On November 2,1978, this court reversed the trial court’s final determination with an opinion to follow in due course. The question was thereupon placed on the November 7, 1978 ballot, and we are informed that the ordinance herein was approved by the voters at such election.

The law is well-settled that a court of equity as a general rule will not restrain the holding of an election because a free election in a democracy is a political matter to be determined by the electorate and not the courts. City of Deland v. Fearington, 108 Fla. 498, 146 So. 573 (1933); Joughin v. Parks, 107 Fla. 833, 143 So. 145 (1932); Dulaney v. City of Miami Beach, 96 So.2d 550 (Fla. 3d DCA 1957). Limited exceptions to this rule have been recognized but only on the narrowest of grounds. One such exception is where the election is being held in violation of an applicable legislative enactment. City of Miami Beach v. Herman, 346 So.2d 122 (Fla. 3d DCA 1977). Another is where the ballot question on a referendum is misleading and deprives the voter of an opportunity to know and to be on notice as to the proposition on which he is to cast his vote. Hill v. Milander, 72 So.2d 796 (Fla.1954).

In the instant case, the trial court rested its decision to enjoin the holding of the election herein on two basic grounds, to wit: (1) the ballot question as framed violated Section 125.0104(6)(b), Florida Statutes (1977), and (2) the ballot question as framed was grossly misleading to the public. We disagree.

Section 125.0104(6)(b), Florida Statutes (1977), provides for the ballot language on the tourist development tax referendum herein in the following terms:

“(b) The governing board of the county levying the tax shall arrange to place a question on the ballot at the next regular or special election to be held within the county, substantially as follows:
FOR the Tourist Development Tax
. AGAINST the Tourist Development Tax” [emphasis added]

The ballot question in the instant case reads in relevant part as follows:

. . . FOR THE TOURIST BOOM TAX
. . . AGAINST THE TOURIST ROOM TAX” [emphasis added]

In our view, this ballot language is in compliance with the above statute because the ballot contains, as the statute provides, “substantially” the same question as stated in the statute. The fact that the term “room” is used on the ballot, rather than the term “development” as used in the statute, does not significantly alter the statutory ballot language. This is particularly true where, as here, there is some explanation on the ballot as to the purpose of the tourist tax, namely, to provide for tourist development. It seems to us a highly technical and ultimately unconvincing reason to remove this referendum from the ballot based on this slight variation in ballot language. Indeed, the variation herein is de minimus.

Nor are we persuaded that the ballot question as framed is misleading and deprives the voter of an opportunity to know and to be on notice as to the proposition on which he is to cast his vote. The ballot question contains an essential, although not exhaustive, description of the tourist tax ordinance and its purposes. Surely, no voter who had done his homework would be misled thereby. It is true, as the trial court found , that certain of the details of the ordinance as well as some of its ramifications were either omitted from the ballot question or could have been better explained therein. That, however, is not the test. There is no requirement that the referendum question set forth the ordinance verbatim nor explain its complete terms at great and undue length. Such would hamper instead of aiding the intelligent exercise of the privilege of voting. Under our system of free elections, the voter must acquaint himself with the details of a proposed ordinance on a referendum together with the pros and cons thereon before he enters the voting booth. If he does not, it is no function of the ballot question to provide him with that needed education. What the law very simply requires is that the ballot give the voter fair notice of the question he must decide so that he may intelligently cast his vote. That requirement has been more than adequately met in this case. Hill v. Milander, 72 So.2d 796 (Fla.1954).

We have considered the other contentions raised by the plaintiffs herein and find them insufficient as a basis for enjoining the holding of the tourist tax referendum in this cause. Dulaney v. City of Miami Beach, 96 So.2d 550 (Fla. 3d DCA 1957). The order under review is accordingly reversed.

Reversed.

      .The ballot language on such referendum reads as follows:
      “TOURIST ROOM TAX
      The Board of County Commissioners of Dade County, Florida, has adopted Ordinance No. 78-62 levying and imposing a Tourist Room Tax at the rate of two percent (2%) on hotel, motel, and similar accommodations rented for a term of six (6) months or less. Said ordinance further provides the following plan for the expenditure of the tax revenues received:
      1. To fund a Tourist and Convention bureau. $437,900 (10 percent).
      2. To promote and advertise Dade County tourism within domestic and international markets. $2,189,500 (50 percent).
      3. To promote Dade County tourism by sponsoring tourist-oriented cultural and special events such as visual and performing arts including theater, concerts, recitals, opera, dance, art exhibitions, festivals and other tourist-related activities. $875,800 (20 percent).
      4. To modernize and improve the present Orange Bowl Football Stadium including chairback seats, additional food and beverage concessions, additional and improved parking facilities and additional restrooms and construction. $875,800 (20 percent).
      Shall this ordinance levying and imposing such Tourist Room Tax be approved?
      FOR THE TOURIST ROOM TAX AGAINST THE TOURIST ROOM TAX”

      . The trial court order appealed from states in pertinent part as follows:
      “The Ballot Question is also grossly misleading to the public in that the phraseology of ‘imposing a Tourist Room Tax at the rate of two percent (2%) on hotel, motel, and similar accommodations’ is not in accord with the Tourist Development Tax which subjects apartments, condominiums, rooming houses and trailer camps to the tax and such facilities are not similar accommodations to hotels and motels. The Defendant’s Ballot Question also does not properly inform the electorate of relevant information in that: (1) no mention whatsoever is made of the fact that once the tax is approved the Defendant may pledge the revenues from the Tourist Development Tax to secure and liquidate revenue bonds; (2) no mention is made that the Plan to expend the revenues can be completely changed without a referendum once the tax is approved; (3) no mention is made of the fact that an estimated $681,-000 of the revenue derived is for collection and administrative costs alone; (4) no mention is made of where the tax will be levied or of the fact that Bal Harbour, Miami Beach and Surf-side are exempted from the Tourist Development Tax; and (5) no mention is made of the fact that electors in Bal Harbour, Miami Beach and Surfside are not permitted to vote on this question.”


author: MOORE, Judge.

text:
    Phyllis CHAMBERS, as Administratrix and personal representative of the estate of William J. Chambers, Appellant, v. John GAUL, D. L. and George Court, D. O., Appellees.
    Nos. 77-471, 77-1149.
    District Court of Appeal of Florida, Fourth District.
    Dec. 13, 1978.

      Edward A. Perse of Horton, Perse & Ginsberg, Miami, for appellant.
    Richard A. Sherman of Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O’Hara, Miami, for appellee Dr. Gaul.
   MOORE, Judge.

This is an appeal by the plaintiff in a malpractice action from an order dismissing the complaint because it was not filed within 60 days after the termination of jurisdiction of the medical mediation panel.

William Chambers was admitted to a hospital in March, 1975 and died that month when complications developed after surgery. The personal representative of his estate filed a medical mediation claim. Jurisdiction of the panel terminated, without any decision having been rendered, on June 4, 1976. The personal representative then filed a wrongful death-malpractice action on December 21, 1976. Even though the action was filed within the applicable two year statute of limitations, the trial judge dismissed the complaint, pursuant to Section 768.44(4), Florida Statutes (1976 Supp.), which provides that a complaint shall be filed within 60 days from the date on which the jurisdiction of the panel is terminated.

The 60 day filing period of § 768.-44(4) does not shorten the applicable statute of limitations. Jones v. North Dade Hospital, Inc., 359 So.2d 56 (Fla.3d DCA 1978); Enfield v. Held, 357 So.2d 772 (Fla.2d DCA 1978). The effect of the 60 day provision is to extend the applicable statute of limitations up to 60 days after termination of the mediation proceeding in those cases where less than 60 days remain on the statute of limitations.

The order appealed from is reversed and the cause is remanded with directions to reinstate the complaint.

ANSTEAD and LETTS, JJ., concur.


text:
    RCA CORPORATION, Appellant, v. ALLAPATTAH BAPTIST CHURCH, INC. and Johns-Koenig & Associates, Inc., Appellees.
    No. 77-756.
    District Court of Appeal of Florida, Fourth District.
    Dec. 13, 1978.

      George B. Foss, Jr. of Fowler, White, Burnett, Hurley, Banick & Knight, P.A., Miami, for appellant.
    Richard H. Critchlow of Tew, Critchlow, Sonberg & Scott, P.A., Miami, for appellee-Allapattah Baptist Church.
   LETTS, Judge.

This case concerns a church which leased television equipment from RCA and subleased said equipment to a T.V. station which later filed for bankruptcy. The trial court held inter alia that the original lessee church was not liable for the remaining unpaid rental period occurring after the sublessee T.V. station filed for bankruptcy. The trial court further held that the provisions in the original lease agreement relative to the monthly payment of sums towards an option were ambiguous and therefore, unenforceable by the lessor. We reverse both findings.

It is true that the lessor, RCA, knew, at the time the lease was entered into, that the church proposed to sublease the television broadcasting equipment to the T.V. station. Nonetheless, the T.V. station was to pay its rent to the church not to RCA and the church remained responsible for all rental payments to RCA.

Generally speaking, the assignment of a lease by a lessee does not relieve the lessee of its obligations thereunder. Craig v. 60 Minute of Miami, Inc., 267 So.2d 94 (Fla.3d DCA 1972). The liability of a lessee for rent accruing after he makes an assignment of the lease is principally dependent on whether he expressly covenanted to pay rent; if he did, his liability continues. 20 Fla.Jur. Landlord and Tenant Section 68. The church did so expressly covenant. This being so, we hold that the advent of bankruptcy made no difference to the continuing rental obligations owed by the church to RCA.

We must also resolve the second issue against the church. RCA is a major corporation and that being so, it is tempting to find excuse for any church. However, we see no ambiguity under the original lease agreement which quite clearly provided, not only that $4,000 per month be paid as basic rent, but also that an additional $4,000 per month be paid during the entire lease term for the privilege of a granted (not to be granted in the future) option to buy the leased equipment. The church maintains that the $4,000 monthly payment on the option, was conditioned upon the church activating that option by making a $25,000 down payment which it never did. Accordingly, the church reasons that because it didn't pay the $25,000, the option lapsed and consequently so did the additional monthly $4,000 payable thereafter. We cannot agree. The lease itself clearly and unequivocally foresaw such an eventuality and we note the following language:

Should Allapattah exercise the option, the aforesaid sum of TWENTY-FIVE THOUSAND DOLLARS ($25,000) shall be applied to the purchase price of the property and, on receipt of the balance of the purchase price by RCA, together with a sum equal to any new or applicable unpaid sales and use taxes, RCA will transfer title of property to Allapattah and will deliver, on Allapattah’s written request, written evidence of the transfer of said title.
Should the option not be so exercised (or should this Lease be terminated by the occurrence of any event of default or otherwise), Allapattah shall return the property as provided for in paragraph 9 hereof and shall pay, in addition to the rentals payable and the aforesaid amount of TWENTY-FIVE THOUSAND DOLLARS ($25,000), and as additional consideration for the grant of this option, a sum to be calculated by multiplying the sum of FOUR THOUSAND DOLLARS ($4,000) times the number of calendar months or portions thereof transpired from the beginning of the Lease term until the date property is returned to the possession, dominion and control of RCA. The sums so paid shall not be regarded as a penalty or forfeiture, but as consideration for the grant of the option.

What could be clearer? This was not an option to purchase an option, the moneys were due in any event. Moreover, there can be no doubt that the church was well aware of its continuing total obligations under the lease with RCA because its sublease (and other accompanying complicated agreements) passed on to the T.V. station, not merely the $4,000 rental per month, but also the entire $8,000 figure (and the down payments) and also gave to the church free time for it to air its religious programs. Finally, it is conceded that a mere $4,000 per month would be far below the fair rental value of the leased equipment. All this being so, we must reverse the trial judge and remand this cause for the entry of a judgment in favor of RCA in accordance with the terms of the original lease, less any sums already paid thereunder by the church.

The remaining points on appeal are determined to be moot or without merit.

REVERSED AND REMANDED.

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


author: SCHWARTZ, ALAN R., Associate Judge.

text:
    WOOL WHOLESALE PLUMBING SUPPLY, INC., a Florida Corporation, Appellant, v. John E. ABDO, a single man, et al., Appellees.
    No. 77-1579.
    District Court of Appeal of Florida, Fourth District.
    Dec. 13, 1978.

      Charles S. Dale of Dale & Stevens, Fort Lauderdale, for appellant.
    John B. DiChiaro of DiGiulian, Spellacy & Bernstein, Fort Lauderdale, for appellees.
   SCHWARTZ, ALAN R., Associate Judge.

The plaintiff appeals from the dismissal with prejudice of its first amended complaint in an action for the foreclosure of an alleged materialman’s lien. The trial court dismissed the case upon a determination that the face of the pleading revealed that the plaintiff had not timely filed a notice to owner within 45 days of first delivery as required by § 713.06(2)(a), Fla.Stat. (1975). We hold that the complaint properly alleged (a) that the notice was in fact timely filed and (b) that the plaintiff was entitled to recovery notwithstanding late notice because of improper distributions by the defendant-owner. Accordingly, we reverse the judgment below.

The amended complaint, which claimed a lien of $1,674.64, alleged that the plaintiff had entered into an oral agreement on April 20, 1976, with Kris Plumbing Co., the defendant-owners’ plumbing subcontractor, to furnish plumbing materials to the job in question, and that, starting on that date, and continuing through May 26, 1976, it actually did so. On May 24, 1976, Wool furnished the defendants a proper notice to owner, which was attached to the complaint, and which was thus filed well within the 45 day period after the alleged first delivery on April 20. The “problem” presented by this case arises because the plaintiff, putting all its cards on the table, also attached to its pleading a copy of a partial release of lien, filed pursuant to § 713.20(2), (3), Fla.Stat. (1975), which purported to release the property from any lien claimed by Wool for any materials furnished to the job site through March 24, 1976. This document at least strongly implied — though it did not say — that materials had in fact been supplied at least on, if not before, March 24, which was more than 45 days before the notice to owner. The amended complaint sought to “explain” the apparent discrepancy as follows:

“7. On or about April 22, 1976, Wellington Construction Company, Inc. by its executive Vice-President, John E. Abdo, [defendants] requested Kris Plumbing, Inc. to furnish as a prerequisite to payment, an affidavit as prescribed in F.S. 713.06(3)(d)l. To meet this requirement, Kris Plumbing, Inc. supplied Wellington Construction Company, Inc. with a notarized partial release of lien from Plaintiff, a copy of the release being attached hereto as Exhibit “B”.
8. The partial release, Exhibit “B” specifically released the real property described above from a lien claim by Plaintiff arising from materials furnished only through March 24, 1976, the date through which the Plaintiff had last closed its books. Material shipments after March 24,1976 and before the date of the partial release, April 22nd, 1976, had not been posted to Plaintiff’s ledger card for the Kris Plumbing/Wellington Plaza ledger card when Kris Plumbing, Inc. at the request of Wellington Construction Company, Inc. requested the partial release.”

Wool’s pleading also alleged that the defendant-owner-contractor made two “improper” payments to Kris Plumbing totaling $1,914.50 on April 23 and May 7, before Kris abandoned the job on June 12, 1976 and well before the owners filed a notice of commencement pursuant to § 713.13, Fla. Stat. (1975). The trial judge dismissed the amended complaint obviously on the ground that despite its specific allegation that the first delivery actually occurred on April 20, 1976, Wool was conclusively bound by the March 24, 1976 date recited in the partial release of lien, precluding the action because of the thus-determined-to-be untimely filing of the notice to owner. We do not agree with this view of the amended complaint.

Construing the pleading, as we must, “. . . so as to do substantial justice . . Fla.R.Civ.P. 1.110(g),, it does not affirmatively disclose that the plaintiff violated the 45 day rule; indeed, it states specifically and directly otherwise, and this allegation must be regarded as true in testing the sufficiency of the complaint. O’Neal v. Crumpton Builders, Inc., 143 So.2d 344 (Fla. 1st DCA 1962). Particularly in view of the explanation of the March 24 date in the complaint itself, it surely cannot be said that there is an irreconcilable . . inconsistency between the general allegations of material facts in the amended complaint and the specific facts revealed by the exhibit [the release of lien] . . such as that involved in Harry Pepper & Associates, Inc. v. Lasseter, 247 So.2d 736 (Fla. 3rd DCA 1971), cert. den. 252 So.2d 797 (Fla.1971), upon which the appellees rely. Here, there is a favorable specific allegation that commencement occurred on April 20 and merely an inference which may be drawn to the contrary from the exhibit, but which is itself dispelled by other allegations. Nor is there anything like the knowingly false and misleading partial release of lien which was held in Continental Casualty Co. v. Associated Plastics, Inc., 347 So.2d 822 (Fla. 3rd DCA 1977), which the defendants also cite, to have given rise to an equitable estoppel against the materialman which filed it. In this case, there is no showing either of a knowing falsehood or of any detrimental reliance by the owners. The plaintiff, in sum, should be given the opportunity to show that the notice to owner was in fact timely furnished.

Moreover, even if it is shown that the notice was untimely, the plaintiff may nevertheless recover. This is so because of the specific allegations of the complaint that the owners made payments to Kris, which exceeded the amount of the lien claimed, prior to the filing of a notice of commencement under § 713.13, Fla.Stat. (1975). It is clear that these payments, rendered improper by § 713.06(3)(a), Fla.Stat. (1975), may be reached in a foreclosure action notwithstanding an untimely notice to owner. Tamarac Village, Inc. v. Bates & Daly Co., 348 So.2d 23 (Fla. 4th DCA 1977); Westinghouse Electric Supply Co. v. Midway Shopping Mall, Inc., 277 So.2d 809 (Fla. 3rd DCA 1973); 1800 North Federal Corp. v. Westinghouse Electric Supply Co., 224 So.2d 384 (Fla. 4th DCA 1969); Crane Co. v. Fine, 221 So.2d 145 (Fla.1969). The defendants argue that a complaint seeking to foreclose upon the fictitious fund created by improper payments must also allege that the fund has not been dissipated by other properly paid costs of completion which do not exceed the “contract price,” Alton Towers, Inc. v. Coplan Pipe & Supply Co., 262 So.2d 671 (Fla. 1972); or by payment to other lienholders superior in right to the plaintiff. Moretrench Corporation v. Bronson & Veal Enterprises, Inc., 262 So.2d 206 (Fla. 4th DCA 1972); Crane & Co. v. Fine, supra. In our view, however, these facts, if they exist, are essentially matters of avoidance which are peculiarly within the knowledge of the defendant-owner. As such, they should be raised as affirmative defenses, see 25 Fla. Jur. Pleadings, § 77, pp. 237-238, and need not be negated in the complaint.

The judgment is therefore reversed and the cause remanded for further proceedings consistent with this opinion.

Reversed and remanded.

CROSS and BERANEK, JJ., concur.

      . The rule that pleadings are to be construed most strongly against the pleader has been an anachronism since the adoption of the “new” rules in the 1950’s. 25 Fla.Jur., Pleadings, § 39, pp. 210-211.

      . The appellant’s reply brief contains this common sense explanation of what may have occurred: “It quite often happens that a project owner will know who the suppliers on his job are, but when it comes time to pay a sub-contractor, the owner will be unaware of which of the suppliers have begun deliveries. To protect himself, the owner before making a progress payment, may require partial releases from all the suppliers, even if they have not as yet furnished notice to owners. In this case, Kris Plumbing signed a contract on April 16, 1976 and requested a payment on April 23, 1976, 7 days later. The owner quite sensibly knew that materials had been used during the 7 days of construction, but had not as yet obtained a notice to owner from the person or persons supplying the materials. To protect himself, ABDO requested a partial release from Kris Plumbing’s materialman. As it turned out, the materialman was Wool Wholesale Plumbing Supply, Inc., but for internal bookkeeping procedures, was unable to clear the ABDO project up to April 23, 1976. The best that could be done was to clear the job up to March 24, 1976 and this was done and it was done properly and the statements made in the release are completely true.” It certainly does not appear as a matter of law from the face of the amended complaint, that this did not take place.

      . Dicta in E.E. Dean Snavely, Inc. v. Weather-king, Inc., 343 So.2d 58, 60 (Fla. 4th DCA 1977) may indicate a contrary view. If so, we recede from the offending language, for which — for obvious reasons and with due contrition — the present writer takes full responsibility.