author: PER CURIAM.

text:
    THE FLORIDA BAR, Complainant, v. Edwin L. MASON, Respondent.
    No. 47525.
    Supreme Court of Florida.
    Jan. 15, 1976.
    Order Establishing Effective Date of Suspension June 30, 1976.
    Bernard H. Dempsey, Jr., Bar Counsel, Orlando, Richard C. McFarlain, Asst. Director; and Wilson J. Foster, Jr., Asst. Staff Counsel, Tallahassee, for The Florida Bar, complainant.
    Edgar M. Moore, of Smith & Moore, Tallahassee, for respondent.
   PER CURIAM.

This disciplinary proceeding is before a special panel of this Court upon complaint of The Florida Bar, report of the Referee, and petition for review filed by the respondent.

Chief Justice Adkins and Justices Roberts, Boyd, England, and Sundberg have been disqualified in this matter for cause. Sitting in their respective positions are five chief judges of the respective circuits selected in order of circuit court judicial seniority excluding only those disqualified or unavailable to participate in this matter.

This cause concerns admitted ex parte communications upon the merits of a pending case with Justices of this Court, and respondent’s subsequent intentional concealment of the fact of the communications from opposing counsel.

The Referee found respondent guilty of the principal charges, and recommended a public reprimand and suspension for a period of one year and thereafter until respondent shall have proven his rehabilitation, together with the payment of the costs of these proceedings.

We agree that the actions and conduct of the respondent are clear and serious violations of the Code of Professional Responsibility. This misconduct is magnified because it concerns the highest court of this state and has caused public mistrust of not only this Court but the system as a whole. We find the recommended discipline appropriate.

The charges, findings, and recommended discipline are detailed for the benefit of the public and the Bar.

The Florida Bar filed a four-count complaint, charging respondent with ethical violations arising out of the ex parte communications with Justices of the Supreme Court concerning the case of Gulf Power Company v. Bevis, 289 So.2d 401 (Fla.1974), then pending before the Court. Count one charged that respondent engaged in prohibited communications between July and November, 1973, with Justices of the Supreme Court concerning the merits of the Gulf Power case. Count two charged the respondent with refusal to reveal the mentioned prohibited communications when he was asked about them by an opposing counsel of record prior to the rendition of the decision. Count three charged that respondent had testified falsely relative to rumors or gossip he allegedly heard in June or early July, 1973, to the effect that the Supreme Court had voted to reverse the decision of the Public Service Commission in the Gulf Power case and that Justice Boyd had been assigned to write the majority opinion. Count four charged that respondent testified falsely concerning whether he offered to supply the ex parte memorandum of law or whether Justice Boyd had requested him to prepare the memorandum.

The Referee found the evidence inadequate to support a finding of guilt with reference to count four and dismissed those charges. The following are the Referee’s findings of fact relating to counts one, two, and three of the Bar’s complaint:

“A. Count I:

“1. Gulf Power Company filed a petition for a writ of certiorari in the Supreme Court of Florida on January 8, 1973 to have reviewed an order of the Florida Public Service Commission in a rate case. Broadly stated, the issue involved the treatment to be accorded the recently enacted State Corporate Income Tax Law in the calculation of test year expenses for rate making purposes.

“2. Edwin L. Mason (hereinafter Mason) then requested the Court to allow him to file briefs as amicus curiae, and be heard on behalf of Gulf Telephone Company and St. Joseph Telephone and Telegraph Co. This request was granted, Mason filed amicus briefs, and participated in oral argument of the cause on June 7, 1973. The panel assigned to the case consisted of then Chief Justice Carlton, and Justices Adkins, McCain, Boyd, and Dekle.

“3. In late June or early July, 1973 Mason discussed Gulf Power Company v. Bevis with Justice Boyd during a golf game. From this discussion Mason concluded that Justice Boyd had been assigned to write the majority opinion in favor of Gulf Power Company, and that the case was a difficult one with which the Justice could use assistance beyond the briefs which had been filed.

“4. Mason solicited Louis Petteway, an experienced public utilities attorney, to assist him in the preparation of a concise memorandum of law concerning the mentioned principal issue in the case. Pette-way billed St. Joseph Telephone and Telegraph Co. and Gulf Telephone Co. for his work on the memorandum, but Mason did not render a statement for his services. The completed memorandum was approximately fourteen pages on long legal style paper. Mason showed the memorandum to his law partner for review, after which one copy was given to Petteway, and one copy was delivered to Justice Boyd in July, 1973.

“5. There is conflicting testimony concerning the circumstances which led to the creation and delivery of the memorandum to Justice Boyd. Mason, however, admits to having prepared the memorandum with the intention that it be used by the Court, an,d to having delivered it without notifying counsel of record that he had done so, and without having served copies of it on such counsel. Other witnesses, including Justices Boyd and Dekle, substantiated the existence of the memorandum, and its use as an aid in the preparation of the majority opinion. It is therefore unnecessary to the ultimate disposition of this cause to resolve the conflicting testimony concerning the genisis [sic] of the memorandum, its delivery, and ultimate use.

“6. The memorandum itself is no longer in existence, but there was adequate evidence concerning its preparation, content, and style to establish that it did exist. In addition that it was given to Justices Boyd and Dekle in a form that did not include a case caption, certificate of service, or clerk’s file stamp. The Court’s Progress Docket does not indicate that the memorandum was docketed.

“7. Mason also delivered a copy of the memorandum to Justice Dekle in July, 1973 and expressed the hope that it might be helpful in the event the Justice concurred with the majority. Justice Dekle did not invite, nor was he forwarned [sic] of Mason’s visit to chambers. There is no direct evidence that they discussed the substance of the case. Justice Dekle, who was not then assigned to write the opinion, put the memorandum aside without immediately reading it.

“Mason made a second visit to Justice Dekle in chambers on or about November 30, 1973 for the purpose (according to Mason) of inquiring concerning the status of the case. To the contrary, however, it appears from an interoffice memorandum between Justices Dekle and McCain dated November 30, 1973 that Mason probably discussed the merits of Gulf Power Company v. Bevis with Justice Dekle that day.

“Justice Dekle testified that as a result of Mason’s November 30 visit, he placed the case on an expedited basis for final disposition.

“Although Mason and Justice Dekle denied having discussed the merits of the case on or about November 30, 1973, the wording of the memorandum between the Justices; the status of the opinion then in preparation; the manner in which the ex parte memorandum was used; and Mason’s subsequent evasion of a pointed inquiry made by opposing counsel the following month concerning the chambers visit, lead to the finding that the two men discussed the merits of the case.

“8. For the sake of rendering a complete report, mention is made of the fact that Justice Boyd was initially assigned to write the majority opinion in favor of Gulf Power Company. It came to pass that his was the minority view, and Justice Dekle wrote the majority opinion in favor of the utility in which Chief Justice Carlton specially concurred. Both Justice De-kle and his then Research Aide testified that substantial reliance was placed upon the memorandum in the preparation of the majority opinion.

“There is no question but that knowledgeable utilities counsel agree the majority opinion is a correct statement of the law. It is impossible to compare the subject memorandum with the Court’s opinion, but the opinion does cite and follow the authorities and argument contained in the petitioner’s briefs. Thus, the fabric of substantive Florida jurisprudence was not impaired by the use of the memorandum, although its proffer and use was [sic] unquestionably wrong.

“9. The Supreme Court [decision] in Gulf Power Company v. Bevis was rendered January 30, 1975 [1974] holding generally in favor of the utility that the State Corporate Income Tax was a proper operating expense for rate making purposes. Justice Dekle wrote the opinion in which Justices Adkins and McCain concurred, and Chief Justice Carlton concurred specially. Justice Boyd dissented.

“B. Count II:

“1. Arthur J. England, Jr. appeared in Gulf Power Company v. Bevis as a respondent in his capacity as Consumer Advisor and Special Counsel to the Governor. On December 17, 1973 he wrote to Mason to mention a report published in the St. Petersburg Times two days previously. The newspaper reported that Mason had at least one private discussion with Justice Dekle concerning the case which the Justice characterized as a routine inquiry. Mention was also made of an interoffice memo between Justices Dekle and McCain concerning the case, and Mason’s visit to chambers. The same article reported that England had inquired of the Clerk’s office concerning the status of the case. England’s letter merely emphasized the nature of his inquiry in the Clerk’s office.

“2. On December 28, 1973 England again wrote to Mason, but this was a pointed request, i.e.:

“ ‘ . . . I would like to have your explanation of that [November 30 conversation with Justice Dekle] and any other meeting, and if you at any time furnished the Court or any Justice with written material not on the record, I would like to have a copy of those documents.’

“Mason replied to this inquiry by letter dated January 7, 1974 in which he wrote:

“ T, too, saw the piece in the St. Pe-tersburg paper about my having spoken to Mr. Justice Dekle about a case pending before the Supreme Court. The article as I recall contained his explanation of the matter. Your present letter to me would indicate that you do not believe the Justice’s explanation. Perhaps you should discuss the matter with him. In any event, I am forwarding your letter to him, together with my reply for his information.’

“3. England did not accept Mason’s reply, and he again wrote on January 22, 1974 to express his disappointment that Mason had not availed himself of the opportunity to explain his ex parte communication with Justice Dekle. Mason did not reply to this letter, and failed to speak out on the subject until summoned as a witness by the Florida Judicial Qualifications Commission on July 17,1974.

“Mason’s testimony regarding his treatment of the England inquiry neither contradicts or [sic] mitigates in any way the above-mentioned correspondence or intra-court memorandum. He did not offer a creditable explanation of his refusal to make a candid response to England’s inquiry, but instead continued to evade the obvious.

“C. Count III:

“1. Mason testified under oath on November 18 and 19, 1974 as a witness in the Justice Boyd inquiry before the Florida Judicial Qualifications Commission that shortly after the oral argument in Gulf Power Company v. Bevis, it was common discussion ‘around the Commission’ [Florida Public Service Commission] that the Court had voted to overrule the Commission. He was unable to identify the participants in any such discussion or the source of a rumor to that effect.

“Mason reiterated the same testimony at the hearing in this cause. This testimony is found to be an attempt on his part to lay a predicate for his first contact or conversation with Justice Boyd concerning the case in late June or early July, 1973. As such, it was an additional reason to his some thirty-year friendship with Justice Boyd for- his having had such an ex parte communication.

“2. Mason testified under oath on November 21, 1974 as a witness in the Justice Dekle inquiry before the Florida Judicial Qualifications Commission that his first discussion with Justice Boyd concerning Gulf Power Company v. Bevis, confirmed the rumors that he heard ‘around the Commission’ that the Court had voted to reverse the Commission, and Justice Boyd had been assigned to write the opinion. This testimony was apparently for the same purpose as his above-mentioned testimony in the Justice Boyd proceeding, and in this cause.

“3. Mason repeated the ‘rumor around the Commission’ testimony in a sworn statement before an executive session of the Board of Governors of the Florida Bar on January 16, 1975.

“4. Mason repeated the same ‘rumor or discussion around the Commission’ testimony under oath as a witness before the Florida House of Representatives Select Committee on Impeachment on February 25, 1975.

“5. Mason repeated the same ‘rumor or discussion around the Commission’ testimony under oath when his deposition was taken in this cause on March 5,1975.

“6. A number of witnesses testified concerning the question of whether there was such a rumor as Mason had described. None of them testified with Mason’s certainty that there was a rumor between June 7, 1973 and July 16, 1973 that the Supreme Court of Florida had in fact voted to reverse the Commission, and further that Justice Boyd had been assigned to write the majority opinion. Some witnesses, such as Lewis W. Petteway who was Mason’s collaborator, testified that there was no such rumor. Others such as William L. Weeks, General Counsel for the Commission, testified that the case was the subject of discussion, but not in detail which Mason attributed to the rumor.

“The parties have stipulated that if they were called to testify in this cause, Commissioners Bevis and Mayo would say that from June 7, 1973 to January 30, 1974 they did not hear the same rumor as that which Mason described.

“7. As previously mentioned, the Mason testimony regarding ‘rumor around the Commission’ was his predicate for the circumstances of the first discussion he had with Justice Boyd. As such, it was a contrived ‘cover story’ designed to ameliorate the impact of his ex parte contact (if not conversation) regarding Gulf Power Company v. Bevis. Surely there was speculation by interested counsel concerning the probable outcome of the case, and it appears that knowledgeable utilities counsel had concluded that the Commission would be reversed. There is no support in the record, however, for the proposition that there was either discussion or rumor ‘around the Commission’ or anywhere else between June 7 and July 16, 1974 [1973] (the approximate date of the first Mason-Boyd contact) that the Supreme Court of Florida had voted to reverse the Commission’s order in Gulf Power Company v. Bevis, and that Justice Boyd had been assigned to write the majority opinion.”

To further understand the factual circumstances and the findings of the Referee, we have attached as an appendix copies of the correspondence between opposing counsel and the respondent.

For counts one, two, and three the Referee recommended a public reprimand and suspension for one year and thereafter until respondent shall establish rehabilitation as provided in Integration Rules 11.10(2) and (3), the discipline to be imposed concurrently. He further recommended that respondent should appear and personally hear the Court’s judgment and that copies of the Referee’s report and judgment be served by the respondent upon the chief executive officers of Gulf Telephone Company and St. Joseph Telephone and Telegraph Company.

The recommended discipline was accompanied by the following judicious and objective observations of the Referee:

“This case has been the focus of statewide attention which is entirely justified by a record replete with proof of a threat to the integrity of the judicial branch. Although that threat has passed without having inflicted lasting damage on substantive Florida jurisprudence, it has impaired the public confidence in the Bar and in constitutional processes.
“The Respondent has admitted without reservation that he communicated privately (ex parte) with Justices of the Supreme Court of Florida concerning a pending case in which he and his clients had an interest. He has admitted to more than mere communication. He admits, and the proof shows, that he attempted to influence the Court’s decision in a manner contrary to the Florida Appellate Rules, contrary to the traditions of the Bar, and contrary to what is the commonly accepted notion of equal and untampered justice. In fact, the Respondent’s conduct is the antithesis of an independent judiciary which Chief Justice Charles Evans Hughes envisioned as weighing ‘evidence in scales with which prejudice has not tampered,’ a judiciary which is a symbol of firmness ‘in resisting both solicitation and clamor.’
“The Respondent’s conduct was so fundamentally wrong that there is scant precedent. The discipline to be invoked in this case, as is true with all disciplinary cases, must be determined upon its own record. The Florida Bar v. Scott, 197 So.2d 518, 520 (Fla.1967).
“The determination of recommended discipline must in any event account for the welfare of the public which the Supreme Court of Florida has aptly described as a ‘silent litigant’ in disciplinary cases. State [ex rel. Florida Bar] v. Ruskin, 126 So.2d 142, 143 (Fla.1961). The ultimate judgment of discipline must be one which is:
“ ‘. . . just to the public and, at the same time, fair to the accused attorney; it should be “designed to correct any anti-social tendency on the part of respondent as well as deter others who might tend to engage in like violations * * *.” ’ ” State [ex rel. Florida Bar] v. Bass, 106 So.2d 77, 78 (Fla.1958) citing State ex rel. Florida Bar v. Murrell, 74 So.2d 221, 227 (Fla.1954).
******
“The record shows that the Respondent has held elective office, and that he is accomplished at political and legal persuasion. By no means was he shown to have been a weakminded or naive person. Although he was not a frequent practitioner in the Supreme Court of Florida, he appeared in that Court more than a few times. Moreover, his experience as a justice of the peace, and as a Commissioner of the Florida Public Service Commission exposed him to the routine of practice which is common to the Bar.
“The record also shows that the Respondent acted intentionally in all that he did. He chose to have discussions with the two justices, and he chose to prepare and deliver the memorandum. The evidence very clearly shows that he sought out Justice Dekle.
“There cannot be any good motive associated with Respondent’s ex parte contacts with the Court, or with his memorandum. His claimed personal desire to ‘assist Justice Boyd’ was translated into clearly improper conduct. His unspoken motive was to obtain an advantage over his adversaries.
“In the words of the Court — ‘there can be no temporizing with an offense the commission of which serves to destruct the judicial process.’ Florida Bar v. Rayman, 238 So.2d 594, 598 (Fla.1970) (dictum). The gravity of the proven offenses, and the Respondent’s refusal to admit the plain fact that he actively concealed his wrongdoing negate the timeworn cliches that ‘he has learned his lesson,’ or ‘that he is unlikely to do it again,’ or that ‘he has already suffered degradation and humiliation in public proceedings.’ These facts, his past good record, and prospects for the future serve only to avoid disbarment.
“Discipline and deterrence would be meaningless if the Respondent’s activity would only be condemned, but not acted upon. . . . ”

We fully agree with these comments by the Referee.

We disagree, however, with the finding of guilt for count three. Standing alone, the evidence is not sufficient to sustain a separate disciplinary violation.

The facts and circumstances of these disciplinary charges are all directly related. In considering the appropriate discipline, the Referee recommended concurrent public reprimands and one-year suspensions which have the effect of one discipline for the entire incident. In our opinion, the uncontroverted facts admitted by the respondent justify the finding of guilt as to counts one and two and the punishment recommended by the Referee. We are unimpressed with respondent’s argument that the punishment is too severe, particularly in view of respondent’s willful failure to disclose the ex parte communications after being asked to do so by opposing counsel.

The Referee recommended that respondent pay the itemized costs totaling $8,479.41. The major portion of these costs is for pretrial depositions and out-of-pocket travel and other cost expenses for Bar counsel and the Referee. Neither of these individuals received compensation for there services. This is an unusual case which, because of its nature and publicity, required the appointment of a Referee and Bar counsel from outside the jurisdiction where the respondent practices. We find the unusual circumstances justify the costs in this action, however, because of its uniqueness it should not be considered a precedent for other disciplinary proceedings. We believe the respondent should be given adequate time to pay the amount of costs, and we reserve jurisdiction for the purpose of establishing an installment payment schedule if such should be necessary.

The discipline recommended by the Referee is approved, and the respondent is hereby publicly reprimanded and suspended from the practice of law for one year and thereafter until he proves rehabilitation in accordance with Integration Rule 11.10(2). The substantial impact of this public reprimand and suspension, together with the practical difficulty of reconvening this panel, convinces us that we should dispense with requiring the respondent to personally appear to hear this judgment. Respondent is directed to promptly serve a copy of this judgment upon the executive officers of Gulf Telephone Company and St. Joseph Telephone and Telegraph Company within twenty days from the date of this order. Execution for costs- against respondent will be directed by subsequent order.

OVERTON, Acting C. J., HATCHETT, J., and KELLY, LENFESTEY, Mc-CRARY, SMITH and WILLIS, Circuit Judges, concur.

APPENDIX

December 17, 1973

Edwin L. Mason, Esquire

1030 E. Lafayette Street Suite 112

Tallahassee, Florida 32301

Re: Gulf Power Company v. Bevis, et al Supreme Court Docket No. 43,245

Dear Ed:

Saturday’s St. Petersburg Times reports that you had a conversation with Justice Dekle on November 30 concerning the Gulf Power case. I enclose a copy of that article. Since the article also refers to inquiries I made concerning the case, I want you, the other attorneys of record, and the Court to know the nature of those inquiries.

On two occasions when I was in Tallahassee during the past two' months I stopped by the office of the clerk to inquire as to the progress of the case. On both occasions I asked personnel in the clerk’s office as to the progress of the case, and as to whether there had been any disposition of the motion that had been filed after oral argument in order to complete and up-date the record. (You will recall that a motion was filed to provide the Court with a copy of the Public Service Commission’s final determination in the income tax rule-making docket.) On both of my visits to the clerk’s office, one of the assistant or deputy clerks reviewed a docket book and told me that the case and motion were still circulating among the justices. On both occasions I also saw Sid White and mentioned to him what information I had sought from his staff. I did not, however, ask him to expedite the case or to make any inquiries among the justices, and I did not ask that I be given any further or additional status report. On neither of those occasions, nor on any other, did I speak to any justice of the Court or submit anything in writing regarding the status, merits, progress, or anything else concerning this case.

Very truly yours,

(s) Arthur

Arthur J. England, Jr.

AJEJr/jt

Enclosure

Edwin L. Mason, Esquire -2- December 17, 1973

Enc: Copy of St. Petersburg Times of 12/15/73, lead article page 1.

cc: Chief Justice Vassar B. Carlton

Justice B. K. Roberts

Justice Richard W. Ervin

Justice James C. Adkins, Jr.

Justice Joseph A. Boyd

Justice David L. McCain

Justice Hal P. Dekle

Hon. Sid J. White, Clerk Supreme Court

Howell Ferguson, Esquire

counsel for the Governor of Florida

Honorable Robert Shevin

Attorney General of Florida

Bert Lane, Esquire

counsel for Gulf Power Company

Donald Alexander, Esquire

counsel for the Florida Public Service Commission

B. Kenneth Gatlin, Esquire

counsel for Florida Power Corporation

Robert R. Feagin, Esquire

counsel for Tampa Electric Company

John W. McWhirter, Esquire

counsel for Monsanto Company

Jack Graff, Esquire

counsel for American Cyanamid Co.

Joseph C. Jacobs, Esquire

counsel for Air Products & Chemicals, Inc.

Major David M. Lewis, Jr.

counsel for GSA and other U. S. executive agencies

December 28, 1973

Edwin L. Mason, Esquire

1030 E. Lafayette Street

Suite 1030

Tallahassee, Florida 32301

Re: Gulf Power Company v. Bevis

Dear Ed:

I recently wrote you regarding my contacts with the Florida Supreme Court relative to the above case, after reading of your November 30 conversation with Mr. Justice Dekle. I would like to have your explanation of that and any other meeting, and if you at any time furnished the Court or any justice with written material not on the record, I would like to have a copy of those documents. Surely in light of Mr. Justice Dekle’s acknowledgment of the meeting and the apparent verification of the memorandum to Mr. Justice McCain, all counsel of record are entitled to an explanation and full disclosure from you.

Sincerely yours,

Arthur J. England, Jr.

AJEJr/jt

January 7, 1974

Arthur J. England, Jr., Esq.

Paul & Thomson

1300 First National Bank Building

Miami, Florida 33131

Re: Gulf Power Company v. Bevis

Dear Art:

I, too, saw the piece in the St. Petersburg paper about my having spoken to Mr. Justice Dekle about a case pending before the Supreme Court. The article as I recall contained his explanation of the matter. Your present letter to .me would indicate that you do not believe the Justice’s explanation. Perhaps you should discuss the matter with him. In any event, I am forwarding your letter to him, together with my reply, for his information.

Sincerely,

(s) Ed

EDWIN L. MASON

ELM :cp

cc: Mr. Justice Dekle (with enclosure)

January 22, 1974

Edwin L. Mason, Esquire

Mason & Erwin

1030 East LaFayette Street

Suite 12

Tallahassee, Florida 32301

Re: Gulf Power Company v. Bevis et al

Dear Ed:

I received your letter of January 7, 1974. Apparently you do not feel that it is important to offer the other attorneys in this case an explanation of your ex parte communications with Mr. Justice Dekle. I am distressed at your lack of sensitivity to the ethical considerations involved in such discussions, and I would have thought you would welcome the opportunity to clarify or explain your behaviour. Since you read the Times article you must know that Justice Dekle’s explanation does not fully comport with the language of the memorandum to Justice McCain. I regret that you are unwilling to make any attempt at clarification.

Sincerely yours,

Arthur J. England, Jr.

AJEJr/jt

ORDER ESTABLISHING EFFECTIVE DATE OF SUSPENSION

On consideration of the Petition to Establish Date of Commencement of Suspension or, in Alternative, to Convert Suspension to Probation filed by Edwin L. Mason and Response thereto, it is ordered that said petition is denied, and

Stipulation having been filed by attorneys for the parties, the effective date of suspension shall be May 26, 1976.


source: Caselaw Access Project

author: ROBERTS, Justice.

license: Public Domain

text:
    Joan HANLEY, Administratrix of the Estate of John Scott Hanley, a minor, Deceased, Petitioner, v. LIBERTY MUTUAL INSURANCE COMPANY, a Foreign Corporation, et al., Respondents.
    No. 48617.
    Supreme Court of Florida.
    May 28, 1976.
    Rehearing Denied July 16, 1976.
    Edward A. Perse of Horton, Perse & Ginsberg, and Brumer, Moss, Cohen & Rodgers, Miami, for petitioner.
    Mark Hicks of Blackwell, Walker, Gray, Powers, Flick & Hoehl, Miami, for respondents.
    Robert Orseck of Podhurst, Orseck & Parks, and Tony Cunningham of Wagner, Cunningham, Vaughan, May & Genders, Tampa, for The Academy of Florida Trial Lawyers, amicus curiae.
    Mayo C. Johnston and William A. Cooper, Jr., of Davenport, Johnston, Harris, Gerde & Harrison, Panama City, for Mildred A. Sellers, amicus curiae.
    J. Robert Hughes of Barron, Redding, Boggs & Hughes, Panama City, for Charles Edwin Skipper, L. C. Carter and National Indem. Co., amicus curiae.
    Lynn C. Higby and George P. Daniels of Isler, Higby, Brown & Smoak, Panama City, for William Ellis Martin, Sinclair Operating Co., General Acc. Fire and Life Assur. Corp., Ltd., and Western Elec. Co., amicus curiae.
    Bill R. Hutto of Syfrett, Hutto, O’Brien & Paulk, Panama City, for Olan Maxwell McQuaggle, Emmitt L. Smith, d/b/a Bay-view Dairy and American States Ins. Co., amicus curiae.
   ROBERTS, Justice.

We have for review on petition for writ of certiorari granted a certified decision from the District Court of Appeal, Third District, in Hanley, etc., v. Liberty Mutual Insurance Co., etc., et al., reported at 323 So.2d 301 (Fla.App. 3rd 1975). We have jurisdiction pursuant to Article V, Section 3(b)(3), Constitution of Florida.

The Circuit Court certified the following question to the District Court of Appeal, Third District:

“Whether § 1[.01](14) or § 743.07, Florida Statutes, purport to and/or expressly or impliedly repeal or amend the provisions of §§ 768.16-768.27, Florida Statutes, so as to change the definition of the word ‘minor’ contained in the latter statutes to mean ‘any unmarried child under the age of eighteen years of age,’ as opposed to ‘any unmarried child under the age of twenty-one years of age’ ”

The relevant facts are succinctly stated in the decision of the District Court under review, as follows:

“John Scott Hanley, the natural son of John and Joan Hanley, was born on January 30, 1956, and at all times pertinent hereto was a member of the household of Joan Hanley and dependent upon her for his support.
“The complaint which initiated the within case was filed by Joan Hanley, acting in her capacity as administratrix of the estate of John Scott Hanley, deceased, and seeks wrongful death damages on behalf of the decedent’s estate and for the use and benefit of John Han-ley and Joan Hanley, individually, under the aegis of new Florida Wrongful Death Act, Fla.Stat. §§ 768.16 et seq. The complaint contains the following pertinent damage allegations:
H ******
“ ‘12. That as a direct and proximate result of the negligence of the defendants as alleged before, the Estate of the decedent has suffered a loss of the probable accumulation of the Estate of the decedent had he been able to live and work for the rest of his normal life. That the deceased minor lived at home at the time of his death and was supported by JOAN and JOHN HANLEY; that JOAN HAN-LEY as the natural mother and JOHN HANLEY, as the natural father suffered great mental pain and suffering as a result of the death of their minor son; that the Estate has incurred funeral expenses.’
“The defendants moved to strike all claims for damages based upon the allegation of the minority of the deceased. (We have accepted the question as determinative of the cause upon the stipulation of the parties that all damages not based upon the allegation of minority have been settled.)”

The District Court responded affirmatively to the certified question, determined that the definition of minor child in the Wrongful Death Statutes, Ch. 72-35, which became effective July 1, 1972, was changed from 21 to 18 years of age by the Florida Emancipation Act, Chapter 73-21, Laws of Florida, effective July 1, 1973, and reasoned:

“The basic tenet for statutory construction is that the purpose of the Legislature should be determined where possible from the language of the statute. McDonald v. Roland, Fla.1953, 65 So.2d 12. The Florida Emancipation Act by its plain language changes the ‘Rights, privileges and obligations of persons 18 years of age or older.’ The right to recover for the wrongful death of a minor is based upon the obligations of the minor. See Seaboard Airline Ry. v. Moseley, Fla.1910, 60 Fla. 186, 53 So. 718; Wilkie v. Roberts, Fla.1926, 91 Fla. 1064, 109 So. 225; and Williams v. Legree, Fla.App.1968, 206 So.2d 13. The obligation of a normal adult is to care for himself. A person may not be a dependent member of a family and an independent adult at the same time; this would be a contradiction of terms. Thus, an 18 year old has no legal obligation within the family and, as such, has no legal benefit of support.’

We agree that the posited question should be answered in the affirmative. Section 743.07, Florida Statutes (Ch. 73-21, Laws of Florida), provides:

“743.07 Rights, privileges, and obligations of persons 18 years of age or older.
(1) The disability of nonage is hereby removed for all persons in this state who are 18 years of age or older, and they shall enjoy and suffer the rights, privileges and obligations of all persons 21 years of age or older except as otherwise excluded by the state constitution immediately preceding the effective date of this section.
(2) This section shall not prohibit any court of competent jurisdiction from requiring support for a dependent person beyond the age of 18 years; and any crippled child as defined in chapter 391 shall receive benefits under the provisions of said chapter until age 21, the provisions of this section to the contrary notwithstanding.
(3) This section shall operate prospectively and not retrospectively, and shall not affect the rights and obligations existing prior to July 1, 1973.”

Section 1.01(14), Florida Statutes (Ch. 73-21, Laws of Florida), provides:

In construing these statutes and each and every word, phrase or part hereof, where the context will permit:
(14) The word ‘minor’ includes any person who has not attained the age of 18 years.”

Significantly, we find that the Legislature expressly stated in Chapter 73-21, Laws of Florida, the latest expression of the Legislature as to the definition of “minor,” that:

“Any law inconsistent herewith is hereby repealed to the extent of such inconsistency. In editing the manuscript for the next revision of the Florida Statutes, the statutory revision and indexing service is hereby directed to conform existing statutes to the provisions of this act.” (emphasis supplied)

The legislative intent is clearly and plainly expressed in Chapter 73-21, Laws of Florida, specifically directing that laws containing a definition of minor inconsistent with the newly created definition of “minor” as one who has not attained the age of 21 years be repealed to the extent of inconsistency.

The District Court correctly decided that Chapter 73-21 amended the definition of “minor” as contained in Sections 768.16 to 768.27 to mean any unmarried child under the age of 18 years of age as opposed to any unmarried child under the age of 21 years of age.

Accordingly, the question posed is answered in the affirmative and the decision of the District Court is affirmed.

It is so ordered.

OVERTON, C. J., and ADKINS, BOYD and SUNDBERG, JT., concur.

      . Section 768.18(2) provides: “‘Minor children’ means unmarried children under twenty-one years of age.”


author: SUNDBERG, Justice.

text:
    Gerald B. SHAW, Petitioner, v. Jean A. SHAW, Respondent.
    No. 47710.
    Supreme Court of Florida.
    May 12, 1976.
    Rehearing Denied July 16, 1976.

      Edward Schroll, Miami, for petitioner.
    Milton M. Ferrell, Miami, for respondent.
   SUNDBERG, Justice.

This is a petition for writ of certiorari to review a decision of the Third District Court of Appeal reported at 314 So.2d 205, which is asserted to be in conflict with Westerman v. Shell’s City, Inc., 265 So.2d 43 (Fla.1972), as well as similar cases which announce the proposition that an appellate court may not substitute its judgment for that of the trial court by re-evaluating the evidence in the cause. Jurisdiction vests in this Court pursuant to Article V, Section 3(b)(3), Florida Constitution.

In proceedings for dissolution of marriage between petitioner-husband and respondent-wife, in which respondent was the moving party, the trial judge on July 15, 1974, entered an amended final judgment (i) finding that the marriage was irretrievably broken and thereby dissolving the bonds of marriage between the parties; (ii) finding that wife, “although she is in her 49th year and has been married 20 years and has minor children, is capable of supporting herself” and,, based upon the financial affidavits of the parties, exhibits admitted into evidence, and the testimony, that the husband could not sustain both households, therefore ordering that the husband pay to the wife rehabilitation alimony in the amount of $50 per week for a period of one year commencing July 1, 1974; (iii) adjudicating that certain savings accounts of the parties belonged to both parties equally and ordering that the accounts be equalized based upon balances as of the date of the final hearing; (iv) granting custody of the two minor children of the parties to the wife with rights of visitation in the husband and ordering the husband to pay to the wife the sum of $30 per week per child until said child reaches majority, marries or becomes self-supporting; (v) granting use and occupancy of the marital home to the wife until the children move out or until she remarries or the children reach their majority provided that the wife should make all payments on the home place, including mortgage payments, taxes, insurance, utilities, and all repairs and maintenance with the stipulation that the home place together with its contents belong to the parties as tenants in common; (vi) providing that all future medical and dental expenses of the children were to be divided equally between the husband and wife; (vii) providing for transfer by the husband to the wife of title to an automobile in the possession of the wife; and (viii) reserving jurisdiction for costs and assessment, if any, of attorneys’ fees, but not retaining jurisdiction for any other purposes.

The evidence at the final hearing upon which the amended final judgment is based was essentially as follows: The 49-year-old wife has a high school education, plus one year of business college. She has also attended court reporting school and has engaged in sales work for less than a year. She has had 16 years of experience in secretarial work, in addition to three years’ experience as a legal secretary, plus 10 to 12 years of legal secretarial experience working intermittently for the husband.

The husband is an attorney at law practicing in Miami, Florida. Although his 1973 tax return reflects an adjusted gross income in excess of $30,500, the evidence reflected that, over the past five years, he has realized an average weekly net income of $247.25. As testified by the wife, the parties have lived modestly and “things have been tight from time to time.” The home of the parties is modest and has never been fully painted. The husband drives a 1971 Volkswagen, and the wife drives a 1968 Ford. Title to the home place was held by the husband and wife as a tenancy by the entireties.

The marriage produced four children, one of whom is deceased. The oldest child is a male, 19 years of age, and is self-supporting. The remaining two children are daughters, Leslie, age 16, and Julie, age 8.

The marital home was purchased entirely with funds of the husband. The present mortgage payments on the home are $85 per month. The only other assets of the parties were a savings account in the amount of $10,450 held in the name of the husband and a savings account in the sum of $4,500 held in joint name of husband and wife. At the time of commencement of the suit for dissolution of the marriage, the wife withdrew $4,300 from the joint savings account, $1,000 of which she paid to her attorney for his representation in the proceedings.

An employment expert testified at the final hearing. Based upon information related to him concerning the wife’s total background, including her education, work experience, physical complaints (which were unsubstantiated by medical testimony), age and current activities, he testified that the wife is employable, that there is work available for her, and that she could earn up to $175 per week. There was also evidence adduced from the wife that on occasions after the separation she attended night art classes at which time the older daughter babysat for the younger.

In reviewing the trial court’s amended final judgment in light of the record, the district court concluded that there was no abuse of discretion except (i) in failure of the trial court to reserve jurisdiction so that it might reconsider an extension of alimony in the light of changed circumstances because the wife testified that she was limited in seeking employment due to her responsibilities in caring for the children and also because of a physical problem with her arm; (ii) in adjudicating the wife solely responsible for the mortgage payments, taxes and insurance upon the marital home; and (iii) in requiring the wife to pay one-half of all future medical and dental expenses of the minor children. Accordingly, the district court of appeal modified the amended final judgment to provide for retention of jurisdiction for purposes of entertaining a petition for modification to continue the payments of alimony to her; to require that the husband be solely responsible for all future medical and dental expenses of the minor children; and to require the husband to pay the mortgage payments, taxes and insurance upon the marital home with the proviso that upon the eventual sale thereof the husband shall be entitled to a credit for one-half of such payments.

We concur with the husband that the decision of the district court of appeal in the instant case conflicts with the principles of law enunciated in Westerman v. Shell’s City, Inc., supra. It is clear that the function of the trial court is to evaluate and weigh the testimony and evidence based upon its observation of the bearing, demeanor and credibility of the witnesses appearing in the cause. It is not the function of the appellate court to substitute its judgment for that of the trial court through re-evaluation of the testimony and evidence from the record on appeal before it. The test, as pointed out in Westerman, supra, is whether the judgment of the trial court is supported by competent evidence. Subject to the appellate court’s right to reject “inherently incredible and improbable testimony or evidence,” it is not the prerogative of an appellate court, upon a de novo consideration of the record, to substitute its judgment for that of the trial court. The district court in the case at bar found it to be an abuse of the trial court’s discretion not to reserve jurisdiction so that the court might reconsider an extension of alimony in the light of changed circumstances. The district court of appeal “deem[ed] it prudent” to make such a reservation in that the wife testified she was limited from seeking employment because of her responsibilities in caring for the children and also because of a physical problem with her arm. As indicated in Elkins v. Elkins, 287 So.2d 119, 120 (3d D.C.A.Fla.1973), cited by the district court of appeal, “A chancellor is not required as a matter of law to reserve jurisdiction to award periodic alimony in the future, rather it is a matter within his discretion.” It appears from the record that the only evidence of the wife’s physical problem was her own uncorroborated testimony. It further appears that the wife was content to leave the 8-year-old child in the charge of her 16-year-old sister during nighttime periods when she attended art classes. The trial judge was in a superior position to assess the significance of the wife’s asserted physical impairment due to her ability to observe the demeanor of the wife while on the stand. She apparently concluded that neither the asserted physical disability nor responsibility to care for the minor children of the parties would be an impediment to the wife’s seeking employment where there was uncontradicted testimony that such employment was available to her. Hence, her conclusion that reservation of jurisdiction to entertain petitions for modification of the alimony award was unnecessary cannot be said to be unsupported by the evidence nor an abuse of discretion. Although the appellate court concluded that it would be “prudent” in its judgment to include such a reservation of jurisdiction, it was not error for the trial court to fail to do so. Goldfarb v. Robertson, 82 So.2d 504, 506 (Fla.1955).

With respect to mortgage payments, taxes and insurance upon the marital home and payment of future medical and dental expenses of the minor children, the record reflects that the trial judge predicated her decision upon the relative financial resources and earning capacity of the parties in light of the disposition of the parties’ assets, including the marital home. The district court of appeal apparently placed sub-stantial weight upon the fact that the husband’s 1973 tax return disclosed an adjusted gross income in excess of $30,500. However, the evidence also disclosed that the husband, for the preceding five years, realized an average weekly net income of $247.25. Although the district court of appeal, and even this Court, might honestly strike the financial balance and division of assets between the parties in a different fashion, we do not deem it error or an abuse of discretion for the trial court to arrive at the result it reached.

Accordingly, the petition for writ of cer-tiorari is granted, and the decision of the Third District Court of Appeal is quashed, with instructions to remand to the trial court for reinstatement of the amended final judgment.

It is so ordered.

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

BOYD and HATCHETT, JJ., dissent.

      . See, e. g., Pope v. O’Brien, 213 So.2d 620 (1st D.C.A.Fla.1968); Cole v. Cole, 130 So.2d 126 (1st D.C.A.Fla.1961); and Smith v. State, 118 So.2d 257 (2d D.C.A.Fla.1960).

        . Catlett v. Chestnut, 107 Fla. 498, 146 So. 241 (1933); Howell v. Blackburn, 100 Fla. 114, 129 So. 341 (1930); and World Ins. Co. v. Kincaid, 145 So.2d 268 (1st D.C.A.Fla.1962), cert. discharged, 157 So.2d 517 (Fla.1963).


author: HATCHETT, Justice.

text:
    J. T. CROSSLEY, Appellant, v. STATE of Florida, Appellee.
    No. 47961.
    Supreme Court of Florida.
    May 28, 1976.
    Rehearing Denied July 14, 1976.

      Robert E. Pyle of Pyle & Barber, Lake Alfred, for appellant.
    Robert L. Shevin, Atty. Gen., and Mary Jo M. Gallay, Asst. Atty. Gen., for ap-pellee.
   HATCHETT, Justice.

This appeal is taken from a judgment of conviction entered in the Circuit Court, Tenth Judicial Circuit. Appellant Cross-ley, defendant below, raised the question of the constitutionality of the statute under which he was charged, by timely filing a motion to dismiss the information. The trial court explicitly rejected his contention that the statute was unconstitutional, in a written order denying the motion to dismiss. Because the trial court “initially and directly pass[ed] on the validity of a state statute," Florida Constitution, art. V § 3(b)(1) (1975), we have jurisdiction. Wooten v. State, 332 So.2d 15 (Fla.1976); Singletary v. State, 322 So.2d 551 (Fla.1975); Hurley v. State, 322 So.2d 506 (Fla.1975). We affirm.

The information filed against appellant accused him of a violation of Section 790.23, Florida Statutes (1975), which provides:

(1) It is unlawful for any person who has been convicted of a felony in the courts of this state or of a crime against the United States which is designated as a felony or convicted of an offense in any other state, territory, or country punishable by imprisonment for a term exceeding 1 year to own or to have in his care, custody, possession, or control any firearm or to carry a concealed weapon, including all tear gas guns and chemical weapons or devices.
(2) This section shall not apply to a person convicted of a felony whose civil rights have been restored.
(3) Any person convicted of violating this section is guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

After his motion to dismiss was denied, appellant pleaded nolo contendere, expressly preserving for appeal the question whether the motion to dismiss was properly denied. See Kelly v. State, 323 So.2d 565 (Fla.1975); Baker v. State, 323 So.2d 556 (Fla.1975); State v. Ashby, 245 So.2d 225 (Fla.1971). It is conceded that appellant was in possession of a firearm, having been previously convicted of a felony (aggravated assault), as alleged in the information.

Appellant contends that the statute is defective because subsection two excludes persons convicted of felonies, whose civil rights have been restored, from the prohibition in subsection one, against possession of firearms by felons. A predecessor of present Section 790.23 exempted from its proscription not only convicted felons whose civil rights had been restored but also persons convicted of “antitrust violation, unfair trade practice, restraints of trade, nonsupport of dependents, bigamy, or other similar offense.” Fla.Laws, ch. 69-306 § 9 (1969) as amended Fla.Stat. § 790.23(2) (1975). Criminal defendants charged under the old statute, and who had previously been convicted of forgery and lottery law violations, argued in Driver v. Van Cott, 257 So.2d 541 (Fla.1971) (reh. den. 1972), that the exemption for “other similar offense [s]” was unconstitutionally vague. The Court was “impelled to agree” that the language complained of in Van Cott “does fail to meet the constitutional test of clarity,” 257 So.2d at 543, but declined to vitiate the whole statute on that account:

The holdings under review declaring the entire statute unconstitutional are inappropriate where the objectionable part of the statute can properly be eliminated without rendering the remainder of the statute incomplete or without causing results not contemplated by the Legislature. This is consistent with the policy of preserving the constitutionality of a statute if it is possible to do so by elimination of invalid clauses without destroying the legislative objectives. The constant standard of our authorities through the years has been that statutory enactments are to be interpreted so as to accomplish rather than defeat their purpose. Id. (footnotes omitted)

This reasoning applies with equal force in the present case. If there were merit in the contention that the exemption in subsection two of the present statute is constitutionally defective for vagueness, appellant’s conviction for violation of subsection one wpuld still stand.

We believe there is no merit, however, in the view that the exemption for convicts whose civil rights have been restored runs afoul of constitutional requirements, as we indicated in Driver v. Van Cott, supra:

The . . . clause . . . exempting those whose civil rights have been restored is, of course, clear and unambiguous and is constitutional. At 543.

To the same effect, we earlier held in Nelson v. State, 195 So.2d 853 (Fla.1967), as follows:

The statutory prohibition of possession of a pistol by one convicted of a felony, civil rights not restored, is a reasonable public safeguard.
We uphold the validity of § 790.23
At 855-6.

See generally Florida Constitution, art. IV § 8 and art. VI § 4 (1975); Section 944.-292, Florida Statutes (1975) (“civil rights which shall be suspended by conviction are the rights to vote, hold public office, and serve on a jury”); In re Advisory Opinion of the Governor Civil Rights, 306 So.2d 520 (Fla.1975); Singleton v. State, 38 Fla. 297, 21 So. 21 (1896); State ex rel. Jones v. Morphonios, 258 So.2d 42 (Fla.App. 3d 1972).

The judgment of conviction is affirmed.

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

      . No appeal was taken from two convictions for related offenses occurring the same day as the offense sub judice.

      . The body of the motion to dismiss reads, as follows:
      COMES NOW the Defendant, J. T. CROSSLEY, by and through his undersigned attorney, and respectfully moves this Honorable Court to dismiss the charges against him in the above entitled cause, and as good and sufficient grounds therefor, says:
      1. That Chapter 790.23, Florida Statutes, the statutory basis for the subject charge, is vague and ambiguous, requiring persons to guess at its meaning and application, at their peril, hence is unconstitutional.
      2. That the subject statute purports to make it a second degree felony for one who has been convicted of a felony to possess a firearm, exempting, however, from its purview those persons whose [sic] possess their Civil Rights.
      3. Whatever a “Civil Right” is, it is urgently asserted that this Defendant has never lost his. True, this Defendant was convicted of a felony some years past, nowhere in the penal provisions of the statute under which Defendant was previously convicted did it provide, nor does it now provide, for the loss of Defendant’s Civil Rights upon conviction.
      4. It is elementary that criminal statutes, particularly such as is the subject hereof, which seek to make a particular offense mal[um] prohibit [um], must be strictly construed. That is, if a statute does not provide within its four corners or by reference for the loss of Civil Rights upon conviction, such Civil Rights, whatever that may be, remain intact. It would seem a redundancy to point out that which has never been lost cannot be restored. If, then, the statute applies only to those persons who are devoid of Civil Rights, there must be some constitutional or statutory authority for divesting one of these mysterious Civil Rights, the possession of which is apparently inherent in citizenship.

      . Fla.Laws, ch. 69-306 § 9 (1969) as amended Fla.Stat. § 790.23 (1975).


author: ENGLAND, Justice.

text:
    George A. GOLDTRAP, Jr., Appellant, v. Reubin O’D. ASKEW, Governor of the State of Florida, and the Commission on Ethics, State of Florida, Appellees.
    No. 48116.
    Supreme Court of Florida.
    June 17, 1976.
    Rehearing Denied July 14, 1976.

      Julius F. Parker, Jr., and H. Jerrol Raymond, of Madigan, Parker, Gatlin, Truett & Swedmark, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., and John A. Barley, Sharyn Smith and William C. Sherrill, Jr., Asst. Attys. Gen., for appel-lees.
   ENGLAND, Justice.

By direct appeal from the Leon County Circuit Court, we are asked to review a final declaratory judgment upholding as constitutional Section 112.3145, Florida Statutes (Supp.1974), which requires public disclosure of the financial affairs of “public officers.” We have jurisdiction to consider this appeal pursuant to Article V, Section 3(b)(1) of the Florida Constitution.

The facts involved in this controversy were stipulated by the parties. Simply stated, George Goldtrap was elected to the Lee County Commission in 1972 and was serving as a Commissioner when the Legislature enacted the financial disclosure provisions now under attack. As an elected county commissioner he was a “public officer” under the act, and as such required to disclose his financial affairs through public filings! Goldtrap refused to file the financial information required by the act, and he commenced this action for declaratory relief. After the trial court declared the act valid and directed his compliance, Goldtrap initiated tjiis appeal.

In general outline, the matters required by the act to be made public are:

(1) income sources which constitute 10% or more of a public officer’s income, excluding dividends, interest and certain other sources;

(2) interests in excess of 10% in certain regulated or licensed businesses, such as banks and pari-mutuel wagering companies;

(3) representation of the public officer for compensation before his own governmental agency or an agency at the same level of government;

(4) debts on which a rate of interest is charged which is substantially below customary and usual charges;

(5) all debts which exceed the public officer’s net worth; and

(6) all assets having a value in excess of 15% of the public officer’s aggregate assets, excluding a personal residence and non-Florida real estate.

Goldtrap contends that Section 112.3145 is impermissibly broad, both as to the classes of people required to file under its provisions and as to the materials required to be filed, and for that reason constitutes an unconstitutional invasion of privacy. He relies upon United States Supreme Court decisions establishing a right of privacy under the United States Constitution, and on the rationale of a California Supreme Court decision involving financial disclosure by public officials. The Governor and the Ethics Commission do not deny a constitutional right of privacy in certain areas, but they distinguish those areas from reasonable financial disclosure laws applicable to elected public officials. They also suggest that the California decision upon which Goldtrap relies has been eroded by a later California decision, and assert that the appellate decisions in other jurisdictions have uniformly upheld financial disclosure statutes.

It is not necessary here either to delineate the boundaries of the federal right of privacy or to determine whether that right extends to the financial interests of elected public officials. The State of Florida has a compelling interest in protecting its citizens from abuse of the trust placed in their elected officials, and no court has yet declared that a federal right of privacy overrides a reasonable effort by the state to implement a policy of ethics in government. In this state, in particular, the interest in preventing conflicts of interest rests on the broadest possible base.

In 1968, the people of Florida adopted as part of their Constitution this directive to their legislators:

“A code of ethics for all .state employees and non-judicial officers prohibiting conflict between public duty and private interests shall be prescribed by law.”

The Legislature responded in 1974 with the statute which Goldtrap attacks, declaring as the policy of this state:

“It is hereby declared to be the policy of the state that no officer or employee of a state agency or of a county, city, or other political subdivision of the state, and no member of the legislature or legislative employee, shall have any interest, financial or otherwise, direct or indirect; engage in any business transaction or professional activity; or incur any obligation of any nature which is in substantial conflict with the proper discharge of his duties in the public interest.”

The disclosure of personal finances to the extent prescribed in .Section 112.3145 advances the legitimate interest of the state in preventing the wrongful diversion of governmental authority to private financial gain. The Legislature could reasonably conclude that a holder of public office is most apt to act for the public’s good only when any member of the public can see any possible conflicts of interest. It was not necessary that the Legislature experiment with less intrusive or more particularized disclosure laws, or that less rigid disclosure thresholds be established. In this area the Legislature need only adopt a uniform code which requires disclosure of matters reasonably relevant to the duties of public office. We agree with the Supreme Court of Washington that it would be “an insurmountable legislative task to tailor disclosures to each of literally a myriad of public posts, and an anomaly to require each individual to make a personal determination as to what items of his financial affairs would be relevant.”

Goldtrap is an elected public official whose responsibilities as county commissioner have significant impact in many areas. He does not contend otherwise, and he has not shown that the required disclosures as applied to him will involve financial relationships which could not materially affect the performance of his public duties.

For these reasons, we hold that Chapter 74 — 177 is constitutional on its face and as applied to this litigant. The judgment of the circuit court is affirmed.

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

ADKINS, J., concurs with result only.

      . Chapter 74-177, § 5, Laws of Florida.

      . Section 112.312(7) (a), Fla.Stat. (Supp.1974).

      . We note that the provision we are called upon to review was amended by the 1975 Legislature. See Section 112.3145 Fla.Stat. (1975). The changes in definitions and requirements under the revised act do not obviate our review of the issue which Goldtrap has posed, however. Under them Goldtrap would be classified as a “local officer” (Section 112.3145(1) (a) (1)), but subject to similar filing requirements as were imposed under the original act.

      . See Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960); and Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).

      . City of Carmel-By-The-Sea v. Young, 2 Cal.3d 259, 85 Cal.Rptr. 1, 466 P.2d 225 (1970).

      . County of Nevada v. MacMillen, 11 Cal.3d 662, 114 Cal.Rptr. 345, 522 P.2d 1345 (1974).

      . Montgomery County v. Walsh, 274 Md. 502, 336 A.2d 97 (1975); Illinois State Employees Ass’n v. Walker, 57 Ill.2d 512, 315 N.E.2d 9 (1974), cert. denied sub nom., Troopers Lodge No. 41 v. Walker, 419 U.S. 1058, 95 S.Ct. 642, 42 L.Ed.2d 656 (1975); Fritz v. Gorton, 83 Wash.2d 275, 517 P.2d 911, appeal dismissed, 417 U.S. 902, 94 S.Ct. 2596, 41 L.Ed.2d 208 (1974); Lehrhaupt v. Flynn, 129 N.J.Super. 327, 323 A.2d 537 (1974); Stein v. Howlett, 52 Ill.2d 570, 289 N.E.2d 409 (1972), appeal dismissed, 412 U.S. 925, 93 S.Ct. 2750, 37 L.Ed.2d 152 (1973). Also see, In re Kading, 70 Wis.2d 508, 235 N.W.2d 409 (1975).

      . Fla.Const. art. III, § 18.

      . Section 112.311(5), Fla.Stat. (Supp.1974).

      . Fritz v. Gorton, 83 Wash.2d 275, 517 P.2d 911, 926, appeal dismissed, 417 U.S. 902, 94 S.Ct. 2596, 41 L.Ed.2d 208 (1974).

      . Goldtrap has no standing to challenge the statute on behalf of appointed “public officials” or others included in that statutory elass whose responsibilities are arguably less likely to affect the public directly.


author: PER CURIAM. ADKINS, Justice

text:
    THE FLORIDA BAR. In re Paul M. PAHULES.
    No. 48185.
    Supreme Court of Florida.
    June 16, 1976.
    Rehearing Denied July 8, 1976.
    H. Hobert Koltnow, Miami, and John A. Weiss, Tallahassee, for The Florida Bar, complainant.
    Arthur M. Wolff of Wolff, Gora & Panza, Fort Lauderdale, for respondent.
   PER CURIAM.

This disciplinary proceeding is before us on Complaint of The Florida Bar, Report of the Referee, Petition for Review by Respondent Paul M. Pahules, and Cross-Petition for Review by The Florida Bar.

Respondent, Pahules, petitions this Court to review the penalty recommended by the Referee and submits that in light of the facts and evidence such penalty is unduly harsh. By Cross-Petition, The Florida Bar suggest that the penalty is not severe enough and should be increased from three months to one year.

Pahules was charged by Complaint of The Florida Bar with violations of DR 5-101(A), DR 5-104(A), DR S-10S(B), in that in the transactions in question there was an irreconcilable conflict in interest between Pahules and Cy Georges, Dr. Kliott, and LCP (a private corporation) on the one hand and Color flame (a public corporation) on the other hand, violation of Integration Rule 11.02(4) — money and other property entrusted to an attorney for a specific purpose is held in trust and must be applied to that purpose, violation of DR 9-102(B)(3) and 9-102(B)(4), DR 1-102(A)(1), 1-102(A)(6), DR 6-101, and Integration Rule 11.02(3)(a). The Referee found that he was guilty of violating DR 5-101 (A), 5-104(A) and 5-105(B) and Integration Rule 11.02(4), but absolved Respondent of guilt on the other counts.

The findings of the Referee relative to the activities of Respondent which have been called into question by these proceedings are as follows:

“Previous to May of 1971, the Respondent had represented a young promoter by the name of Cy Georges in several real estate ventures. Some time prior to that, an inventor by the name of Dr. Leon Kliott had come to the Respondent with seventeen scientific creations he claimed to be original and which he desired to patent. The Respondent has had considerable experience in patent law both in government and in private practice since his admission to the Bar in 1951.
“The Respondent obtained for Dr. Kliott a United States patent on a process that has been referred to in these proceedings as ‘colorflame’. After obtaining the patent, the Respondent then took the lead in devising a plan to exploit the patent commercially. Pursuant to this plan, the Respondent brought Dr. Kliott and Cy Georges together; the Respondent then formed a corporation called LCP Scientific (hereinafter ‘LCP’), the stock of which was owned one-third by Respondent, one-third by Cy Georges and one-third by Dr. Kliott, and caused the patent to be assigned by Dr. Kliott to LCP. The Respondent, then, formed another corporation called Color-flame of Hollywood, Inc. (hereinafter ‘Colorflame’) with authorized capital stock of 200,000 shares, with the intent that 51% of the stock of Colorflame would be issued to LCP, and the balance to the public. Respondent served as Secretary-Treasurer and general counsel of Colorflame.
“In a document dated May 29, 1971, LCP licensed the colorflame patent to Colorflame in return for a royalty of two percent (2%) of gross receipts. Then, in a document described as an ‘addendum’ to the May 29, 1971 agreement, dated May 31, 1971, Colorflame — without receipt of any additional consideration— sweetened the yield to LCP for the col-orflame patent license by providing in addition to the 2% royalty a fee of $50,000 per annum, beginning six months after colorflame goes on the market' and sales exceed $100,000, with a deadline date of June 30, 1973. And, significantly, LCP — under this Addendum — gets an option to terminate the license agreement if marketing does not start before June 30, 1973.
“The only notable asset Colorflame ever had was this patent license, and all promotion of the corporation revolved around this license. Marketing of the colorflame produce was never started.
“Respondent prepared the document dated May 29 and the document dated May 31, 1971.
“On June 3, 1971, the Respondent went to the Little River Bank and Trust Company with the corporate kit of Col-orflame. There, Cy Georges and his brother, Art Georgialis, were in the process of selling 50,000 shares of Color-flame to Dr. Duard Lawrence and those in the transaction with him for $1.00 per share. Respondent was represented to Dr. Lawrence as the general counsel and Secretary-Treasurer of Colorflame, and presented the corporate kit to Dr. Lawrence at his request for inspection.
“Although the corporate kit contained the patent license agreement dated May 29, 1971 and, perhaps, contained the Addendum dated May 31, 1971, Dr. Lawrence missed the Addendum in the kit.
“Neither Cy Georges, Art Georgialis nor the Respondent disclosed to Dr. Lawrence the existence of the Addendum, the material changes in the May 29, 1971 agreement included in the Addendum, nor the fact that Colorflame had granted to LCP the additional and material concessions in the Addendum dated May 31 without consideration. As enthused as Dr. Lawrence was about the Colorflame process, he would not have invested in Colorflame if he had known the above facts. Neither was the material fact disclosed to Dr. Lawrence the [sic] LCP (i. e., Respondent, Kliott and Georges) had already obtained 51% of the stock and control of Colorflame without monetary consideration by the time Dr. Lawrence was solicited to purchase at $1.00 per share.
“Dr. Lawrence with his associates before the end came for Colorflame bought 85,000 shares at $1.00 per share, for a total of $85,000. In all, the public put in excess of $300,000 into Colorflame before the story ended. Each of these public shareholders paid money to the Respondent in escrow for the shares, and the Respondent, as Secretary-Treasurer of the corporation, in turn, issued each member of the public his shares. The Respondent, however, did not always pay the escrow funds into Colorflame. Whenever so requested by Cy Georges, he turned escrow funds over to Cy Georges personally, who sometimes used the funds personally and sometimes placed the funds into Colorflame. Respondent, by examining the back of the checks appropriated by Cy Georges to his own personal use, could have determined that Cy Georges was misappropriating these funds, but he did not, and continued to turn the funds over to Cy Georges personally after he knew, or should have known, that Cy Georges was misappropriating some of them.
“At the time Respondent was turning these escrow funds belonging to Color-flame over to Cy Georges personally, Cy Georges personally was indebted to the Respondent. And on one occasion, Cy Georges took $7,000 out of Colorflame, purchased a cashier’s check payable to Respondent, gave it to Respondent, and Respondent cashed it and used it for his own purposes. At the hearing, Respondent testified that Cy Georges remitted these funds to Respondent in payment of a personal liability for fees; earlier, however, at the Committee Hearing, Respondent had testified that these funds represented payment of a Colorflame obligation to him. Colorflame is now bankrupt.
“Since the colorflame process has never been marketed, LCP — whenever it wishes — may, under the Addendum dated May 31, 1971, get the colorflame patent back for nothing, and the colorflame patent was the raison d’etre of Colorflame from the start.
“The Respondent also documented for Cy Georges a sham transaction pursuant to which Colorflame appeared on paper to have acquired at a purchase price of $175,000 from another corporation dominated by Cy Georges (Gregory Pahules, the brother of Respondent, also shows on the records of that corporation as an in-corporator) a motel called The Planet. No money passed in this transaction; and no papers were filed in the public records. The only attorney involved in the ‘transaction’ was the Respondent. The Respondent billed Colorflame $1,750 (1% of the purchase price that was never paid) for his services on this ‘transaction.’ The purpose of the ‘transaction’ according to the testimony, was to make it appear on the Colorflame balance sheet that Colorflame possessed a real estate asset when, in fact, it did not. Colorflame never paid the statement of Respondent in the amount of $1,750 for legal services rendered in connection with his transaction.
“In June of 1972, Dr. Duard Lawrence and others removed Cy Georges, Kliott and Respondent and took control of Col-orflame. Dr. Lawrence and his group from that moment assumed a position of belligerent hostility to Georges, Respondent and Kliott, at first threatening and then instituting litigation against Georges and the Respondent. Although Respondent failed or was slow to comply with the requests by Colorflame made by and through the new control group for records, and other properties of Color-flame in Respondent’s possession by reason of the positions of Secretary-Treasurer and general counsel from which he had been deposed, Colorflame by that time had ceased any fiduciary reliance on the Respondent and, in fact, had assumed an aggressive hostility towards him.”

The Referee found that Respondent’s conduct did not involve dishonesty, fraud, deceit or misrepresentation and recommends that Respondent be suspended for a period of three months.

Having heard argument, and having carefully reviewed the briefs and record, we approve the findings and recommendations of the Referee.

Accordingly, Respondent is hereby suspended from the practice of law for a period of three months from the effective date of this order. Execution is hereby directed to issue against Respondent for costs in the amount of $1,704.08.

It is so ordered.

OVERTON, C. J., and ROBERTS, ENGLAND and HATCHETT, JJ., concur.

ADKINS, J., concurs specially with an opinion, with which BOYD, J., concurs.

ADKINS, Justice

(concurring specially).

I concur m the finding of misconduct, but I would give a public reprimand as penalty, as there was no fraud, dishonesty or misrepresentation.

BOYD, J., concurs.


author: RAWLS, Judge.

text:
    Robin M. OROSZ, a/k/a Charles Gibson, Appellant, v. STATE of Florida, Appellee.
    No. Y-193.
    District Court of Appeal of Florida, First District.
    June 23, 1976.

      L. Haldane Taylor, of Taylor & Brecher, Jacksonville, for appellant.
    Robert L. Shevin, Atty. Gen., and Richard W. Rrospect, Asst. Atty. Gen., for ap-pellee.
   RAWLS, Judge.

The justiciable point on appeal posed by appellant-defendant Orosz is that the trial court erred in denying appellant’s motion to dismiss based upon the theory that the state, in subpoenaing and questioning appellant about incriminating transactions alleged in the instant case, granted to him transactional immunity.

On August 27, 1974, one Jackie Boyd Swain was charged with possession of a firearm by a convicted felon. The firearm involved in Swain’s case was found by a police officer on August 18, 1974, in a car driven by Swain and in which car Orosz, a passenger, was sleeping in the back seat. Swain’s counsel listed Orosz as a defense witness in his firearm case. On October 2, 1974, an assistant state attorney deposed Orosz in his investigation of Swain’s firearm case. Orosz was represented by an assistant public defender in the deposition proceedings. In answer to questions concerning the firearm charge lodged against Swain, Orosz testified that he, Swain and one Bradley had been together on August IS, 1974; that Swain did not own a gun, but that same was owned by Bradley; and that he had known Swain since June, 1974. Orosz and Swain were, by amended grand jury indictment returned on January 24, 1975, charged with committing armed robbery on August 15, 1974. Orosz then filed a motion to dismiss, alleging that incriminating evidence was elicited from him by the state while he was under prosecutorial subpoena which entitled him to immunity pursuant to the provisions of Florida Statute 914.04. The gist of Orosz’s contention is that he was entitled to transactional immunity.

The trial court was correct in denying the subject motion to dismiss for two reasons : 1) the testimony elicited from Orosz pursuant to the state’s subpoena related primarily to the firearm charge lodged against Swain, and 2) the subject subpoena did not compel Orosz to testify; it compelled his attendance.

The transcript of Orosz’s deposition discloses that the state’s initial questions related to his and Swain’s activities on the night of August 18, 1974. According to Orosz, he was asleep and drunk when an officer stopped their vehicle for a traffic violation. Upon this occasion the firearm was discovered, resulting in a charge being lodged against Swain. It was at this point in his deposition that Orosz volunteered information as to their activities on August IS, 1974, when he related that the gun really belonged to Bradley and that he put it into the glove compartment after Swain urged that “he didn’t want anything to do with it.” Clearly, the state was pursuing its right of discovery from Orosz in preparing for trial on Swain’s firearm charge. Orosz’s and Swain’s activities as to the instant conviction were not inquired into. Florida’s enlightened discovery proceedings in a criminal case is a two-way street. The state having been furnished Orosz’s name as a witness for Swain on the firearm charge, in preparing for that trial, was performing its responsibility in finding out what testimony this key defense witness would proffer. We emphasize that this interrogation was not one governed by the Miranda doctrine for Orosz was not a suspect or target at the time of interrogation.

Secondly, Florida Statute 914.04 is not self-operating. As stated in State ex rel Foster v. Hall, 230 So.2d 722 (Fla.App.2nd 1970): “Compulsory attendance is one thing and compulsory testimony is quite another.” Orosz was accompanied by his public defender lawyer at the deposition proceedings. Not one time did Orosz or his lawyer raise any question of self-incrimination. As stated by Mr. Justice Powell, speaking for the U. S. Supreme Court in Garner v. United States, 424 U.S. 648, 96 S.Ct. 1178, 47 L.Ed.2d 370. Opinion filed March 23, 1976, viz:

“We start from the fundamental proposition that

‘a witness protected by the privilege may rightfully refuse to answer unless and until he is protected at least against the use of his compelled answers and evidence derived therefrom in any subsequent criminal case in which he is a defendant. Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972). Absent such protection, if he is nevertheless compelled to answer, his answers are inadmissible against him in a later criminal prosecution. Bram v. United States, [168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568 (1897)]; Boyd v. United States, [116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886)].’ Lefkowitz v. Turley, 414 U.S. 70, 78, 94 S.Ct. 316, 322, 38 L.Ed.2d 274, 282 (1973).”

Since Orosz did not object, the state could well assume that its compulsory process was not resulting in eliciting testimony that Orosz deemed to be incriminating.

Other points asserted by Orosz have been reviewed and found to be without merit.

AFFIRMED.

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

      . Orosz and Swain were also charged with robbery in an unrelated case. Orosz was incarcerated upon that charge at the time he was deposed on October 2,1974.

      . Florida Statute 914.04 states: “Witnesses; person not excused from testifying in certain prosecutions on ground testimony might incriminate him; immunity from prosecution.— No person, having been duly served with a subpoena or subpoena duces tecum, shall be excused from attending and testifying or producing any book, paper, or other document before any court having felony trial jurisdiction, grand jury, or state attorney, upon investigation, proceeding, or trial for a violation of any of the criminal statutes of this state upon the ground or for the reason that the testimony or evidence, documentary or otherwise, required of him may tend to convict him of a crime or to subject him to a penalty or forfeiture, but no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he may so testify or produce evidence, documentary or otherwise, and no testimony so given or produced shall be received against him upon any criminal investigation or proceeding.”

      . Orosz’s deposition was not proffered by the state in the instant cause.

      . Compare Florida’s rules with the Federal Rules which are most restrictive.


text:
    MIAMI ATLANTIC DEVELOPMENT CORP., etc., Appellant, v. A. H. BLAKE, etc., et al., Appellees.
    No. 74-1656.
    District Court of Appeal of Florida, Third District.
    Dec. 9, 1975.
    Smith, Mandler, Smith, Parker & Wer-ner and Joe Unger, Miami Beach, for appellant.
    Stuart Simon, County Atty., and Lisa Bennett, Asst. County Atty., for appellees.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Plaintiff appeals a summary final judgment finding that the defendant tax assessor properly assessed its property as individual condominium units for the 1973 tax year.

Plaintiff, Miami Atlantic Development Corporation, is the owner of the Crystal House, a luxury residential high rise located on Collins Avenue, Miami Beach, Florida. Having decided to change the status of the building from an apartment house to a condominium, plaintiff on December 29, 1972, executed and recorded a declaration of condominium in the public records of Dade County. The tax assessor, for the 1973 tax year beginning January 1, assessed the Crystal House as a condominium. Plaintiff corporation on behalf of itself and all others similarly situated instituted this action contesting the 1973 ad va-lorem tax assessment on the grounds that the Crystal House was an apartment building on January 1, 1973 and, therefore, the tax assessor incorrectly assessed the building as a condominium. Following pretrial discovery, both parties moved for summary judgment. Final summary judgment upholding the validity of the tax assessment was entered and plaintiff corporation appeals therefrom. We affirm.

Upon plaintiff’s execution and recordation of the declaration of condominium on December 29, 1972, the Crystal House Condominium was created as of that date. See § 711.08, Fla.Stat., F.S.A. and McCaughan, The Florida Condominium Act Applied, 17 U.Fla.L.Rev. 1, 27 (1964-65).

One of the factors to be considered in arriving at a just valuation is “the highest and best use to which the property can be expected to be put in the immediate future and the present use of the property.” § 193.011(2), Fla.Stat., F.S.A. The courts have held that the assessment must be made on the basis of the actual use or any immediate expected use to which the property is designed to be put during the expected tax year. Lanier v. Overstreet, Fla. 1965, 175 So.2d 521; McKinney v. Hunt, Fla.App. 1971, 251 So.2d 6. There is no question that the Crystal House in the very immediate future was expected to be used as a condominium and, in fact, by March of 1973 the sale of the first condominium unit had been consummated. We conclude that plaintiff has failed to demonstrate that the tax assessor wrongfully assessed the Crystal House as a condominium.

We also considered plaintiffs second point on appeal concerning the trial court’s determination that the suit was not properly brought as a class action and in light of the above disposition, we find that it is moot.

Affirmed.


text:
    Ronald E. CUETO, Appellant, v. JOHN ALLMAND BOATS, INC., etc., Appellee.
    No. 75-1147.
    District Court of Appeal of Florida, Third District.
    March 17, 1976.
    Rehearing Denied July 6, 1976.

      Cohen & Kokus, Miami, for appellant.
    Adams, George, Wood, Lee & Schulte, Miami, for appellee.
    Before BARKDULL, C. J., and HAV-ERFIELD and NATHAN, JJ.
   PER CURIAM.

Plaintiff appeals a final judgment awarding him a total of $3,056.46 in this action to recover commissions allegedly owed him for sales which he had secured following notification of termination of employment.

In 1968 plaintiff-appellant, Ronald E. Cueto, was hired by the defendant, John Allmand Boats, Inc., to represent the defendant in a particular assigned territory, and on January 7, 1970 the parties entered into the following employment agreement which reads in pertinent part:

“It is hereby Agreed that RONALD E. CUETO will travel, and service and receive a 4% sales commission on 23 Series and 25 Series and 3% sales commission on 28 Series in the following states:
“South Carolina Pennsylvania
North Carolina New Jersey
Virginia New York
West Virginia Delaware
Washington D.C. Connecticut
New Hampshire Massachusetts
Maryland Vermont
Maine
“If there is a failure on the part of RONALD E. CUETO to meet his responsibilities of travel, service and sales in the above territories, this Contract will be reviewed and appropriate changes made in writing, with a prior written notice of 30 days.
“This Agreement will continue until cancelled by JOHN ALLMAND BOATS, INC., with a 30 day written notice, but not before January 31, 1971.
“RONALD E. CUETO may cancel this Agreement with a 30 day written ntocce.
“JOHN ALLMAND BOATS, INC.
“E. B. CAHEN, RONALD E. CUETO
“Vice President, General Manager Eastern & Regional Sales
Manager”

On December 1, 1972 defendant orally informed plaintiff that he was being terminated and on December 14 he received a written severance notice. Plaintiff continued to solicit orders for boats until he was ordered to vacate his office on January 2, 1973. Alleging that he was entitled to be paid upon (1) sales initiated, (2) orders taken, and (3) boats delivered subsequent to January 2, 1973, plaintiff filed the instant action to recover in excess of $45,000 in commissions on the sales of these boats. The case was tried non-jury and at the conclusion of the trial, the judge found that the agreement in question was a service contract and not a commission contract (or an agreement in which payment is to he made for effectuating sales) and concluded that when the agreement came to an end on January 14, 1973 (pursuant to the 30 day notice requirement) then the duties and obligations of the parties came to an end and there was no obligation on the part of defendant to pay the sales commissions which were effectuated subsequent to the termination of the agreement. Thereupon, the trial judge awarded plaintiff $2,668.55 plus interest for deliveries and payments made during the 30 days from the written notice of December 14, 1972.

Plaintiff primarily contends the trial judge erred in construing the agreement between the parties to be a service contract rather than a sales commission contract. We disagree.

A contract will be construed according to its own clear and unambiguous terms. Arnold v. First Savings & Trust Co., 104 Fla. 545, 559, 141 So. 608 (1932). The agreement plainly reads that plaintiff is to travel, service and receive commissions until cancelled by 30 days notice. Thus, it is a service contract. Further, the evidence reflects that plaintiff was permitted and did receive commissions from sales which were made in his assigned geographical area by other salesmen and with which he had nothing to do other than service customers. In addition, the agreement contained no provision for commission payments to continue after termination of plaintiff’s employment. We further note that in addition to sales, plaintiff was required to service the customers of his assigned area in order to be entitled to earn a commission. Obviously plaintiff did not and could not perform such services in connection with the sales which he made up to January 2, 1973, but not paid for until after that date. Last, where a salesman claims commissions for a period of time subsequent to his termination, the best guide to follow in interpreting the contractual obligations of the parties is the usage of the particular business involved. Trent v. Channel 10, WPLG-TV, Post-NewsWeek Stations, Florida, Inc., Fla.App.1975, 309 So.2d 631. The testimony with regard to this question reveals that for plaintiff to prevail on this claim would be contrary to the practice followed by the defendant in that, by established custom, plaintiff himself received commissions on boat sales effectuated by his predecessors just as his successors received commissions on orders procured by him. Thus, this contention of plaintiff lacks merit.

We also considered the remaining points presented in this appeal and conclude plaintiff has failed to demonstrate reversible error.

Affirmed.


author: HENDRY, Judge.

text:
    Thomas R. DANLUCK, Individually and for the Use and Benefit of Environments, Inc., Petitioner, v. LOTSPEICH COMPANY and J. W. Lotspeich, Respondents.
    No. 75-1217.
    District Court of Appeal of Florida, Third District.
    March 17, 1976.
    Rehearing Denied July 6, 1976.

      McCormick, Bedford & Backmeyer, Miami, for petitioner.
    Koeppel, Stark, Marks & Newmark, Miami, for respondents.
    Before BARKDULL, C. J., and HEN-DRY and HAVERFIELD, JJ.
   HENDRY, Judge.

Petitioner, plaintiff below, seeks review of an order of the trial court on pending motions.

In February, 1971, petitioner entered into a written employment contract with respondent Lotspeich Company which, along with J. W. Lotspeich, were defendants below. The term of this agreement was from June 1, 1971, to May 31, 1973. Subsequently, on August 14, 1973, a memorandum was signed by respondent J. W. Lotspeich providing for a salary, profit participation, and bonus compensation for petitioner.

Thereafter, a disagreement arose between the parties, and on February 14, 1975, petitioner filed an amended complaint against respondents seeking, inter alia, money damages for breach of the employment contract dated August 14, 1973. Respondents answered and demanded a jury trial. Later, respondents retained new counsel who filed a motion to dismiss the amended complaint on the grounds that the trial court lacked both personal and subject matter jurisdiction and that the amended complaint failed to state a cause of action. This motion along with petitioner’s motion to dismiss respondents’ counterclaim and the prayer in petitioner’s amended complaint to appoint an arbitrator were set for a hearing before the trial court. On July 10, 1975, the trial court entered an order on these pending motions and prayer. From the order, petitioner brings this petition for certiorari.

Petitioner contends that the trial court erred in entering the order which held, inter alia, that the August 14, 1973, memorandum revised the June 1, 1971 to May 31, 1973, employment contract; that the arbitration provision of the earlier contract was binding on the parties; and which appointed an arbitrator to review the controversy and report his findings to the court. Petitioner argues (1) that the order constituted fact finding by the trial court thereby denying him his right to a trial by jury of the issues framed by the amended complaint, answer and exhibits thereto; (2) that the order requires petitioner to arbitrate his dispute with respondents thereby denying him his right to a jury trial on those issues raised by Count I of the amended complaint; and (3) that the trial court’s order is self-contradictory thereby placing him in doubt of his rights and obligations under the order.

Respondents contend (1) that the trial court’s preliminary construction of the written instruments evidencing the employment agreement did not constitute an abuse of discretion by removing from jury fact-finding any genuine issue properly committed to jury decision; (2) that petitioner has shown no violation of the essential requirements of law and no irreparable injury, thus he has not justified certiorari review of the trial court’s interlocutory order; and (3) that petitioner’s claim that the order is self contradictory and confusing overlooks the plain language of the order, and, since the point was not raised in the trial court, is premature in this court.

On certiorari, as on appeal, there is a presumption as to the correctness of the trial court’s rulings, and the burden rests on the petitioner for certiorari to make any error complained about to appear fully. Likewise, the burden is on the petitioner to establish any abuse of discretion by the trial court that is relied upon for quashal of its rulings. See, e. g., Collier v. Homestead, Fla.1955, 81 So.2d 201; Republic of Cuba v. Ritter, Fla.App.1961, 130 So.2d 98, and 5 Fla.Jur., Certiorari § 27.

In our opinion, petitioner has failed to show any grounds for quashal of the order here under review, except as to Paragraphs 3 and 6 thereof appointing an arbitrator and specifying his duties. The trial court has properly determined that the August 14, 1973, memorandum revised the terms of the June 1, 1971, to May 31, 1973, employment contract and, thereby, incorporated the arbitration provisions of Paragraph 13 of the original agreement. Therefore, as provided in Paragraph 13, the trial court should have appointed an arbitrator and directed him to proceed in settling the dispute between the parties according to the applicable rules of the American Arbitration Association.

We have considered the record, all points in the briefs, and arguments of counsel in the light of the controlling principles of law and have concluded that no grounds for quashal have been demonstrated, except as to the trial court’s appointment of the arbitrator as set forth above. Therefore, for the reasons stated and upon the .authorities cited, the petition of certiorari is denied, except that part of the trial court’s order appointing an arbitrator and specifying his duties is quashed.

Quashed in part, denied in part.