author: PER CURIAM.

text:
    Frank Albert LOVETT, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 49369.
    Supreme Court of Florida.
    Aug. 31, 1977.
    Phillip A. Hubbart, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Joel D. Rosenblatt, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Affirmed. See State v. Saunders, 339 So.2d 641 (Fla.1976).

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


source: Caselaw Access Project

license: Public Domain

text:
    SUNNYLAND MANAGEMENT CORP., Appellant, v. MURRY HILLS ASSOCIATION, INC., et al., Appellee.
    Nos. 76-1146, 76-1215.
    District Court of Appeal of Florida, Fourth District.
    July 26, 1977.
    Rehearing Denied Oct. 4, 1977.
    Philip H. Reid, Jr., Palm Beach, for appellant.
    Herbert L. Gildan of Nason, Gildan & Yeager, P.A., West Palm Beach, for appel-lee.
   PER CURIAM.

AFFIRMED. We find that the record supports the trial court’s findings that the management contract was void and unenforceable and that the appellant, Sunnyland Management Corp., substantially breached the contract. The contract involved herein virtually divested the appellee, Murry Hills Association, Inc., of any authority whatsoever. The extent of the transfer of authority is made even more apparent by the claim of the management company, the appellant herein, that it did not even have an obligation to account to the appellee association for the expenditure of association funds.

DOWNEY and ANSTEAD, JJ., and DEAN, ROY E., Associate Judge, concur.


author: DOWNEY, Judge.

text:
    Lorenzo J. LEEKS, Palm Beach Chemical Company and Ohio Casualty Insurance Company, Appellants, v. Donna Lynn DOLLING, joined by her husband, Sam L. Dolling, Appellees.
    No. 76-2253.
    District Court of Appeal of Florida, Fourth District.
    July 26, 1977.
    Rehearing Denied Oct. 6, 1977.

      Marjorie D. Gadarian of Jones, Paine & Foster, West Palm Beach, for appellants.
    Hubert R. Lindsey of Farish & Farish, West Palm Beach, for appellees.
   DOWNEY, Judge.

The last record activity in this case in the trial court took place thirteen months prior to appellants’ motion to dismiss for lack of prosecution pursuant to Fla.R.Civ.P. Rule 1.420(e). The defense to said motion was that the parties had been involved in settlement negotiations during the interim, which negotiations progressed to the point of actually reaching an apparent settlement. But obviously the negotiations never reached fruition.

The trial court denied the motion to dismiss because of the settlement negotiations.

This court held in Laug v. Murphy, 205 So.2d 695 (Fla. 4th DCA 1968), that settlement negotiations are not sufficient to toll the running of the time period contained in Rule 1.420(e). The Third District Court of Appeal ruled similarly in Steisel v. Birnholz, 313 So.2d 125 (Fla. 3d DCA 1975).

Accordingly, we are compelled to reverse the order of the trial court and remand the cause with directions to dismiss the cause under Rule 1.420(e).

REVERSED AND REMANDED, with directions.

MAGER, C. J., and DAUKSCH, J., concur.


text:
    Lawrence D. KELLEY, Appellant, v. Barbara Guthrie KELLEY, Appellee.
    No. 76-54.
    District Court of Appeal of Florida, Fourth District.
    Aug. 12, 1977.
    Rehearing Denied Oct. 6, 1977.

      Frank C. Decker, Jacksonville, for appellant.
    Jerry S. Luxenberg, Orlando, for appel-lee.
   STEWART, JAMES R., Jr., Associate Judge.

In 1973 the Kelley’s marriage was dissolved by a Florida judgment which required Lawrence to pay periodic alimony to Barbara. The payments were to terminate should she remarry. In 1973 she remarried in Texas and he stopped further payments. When a Texas Court annulled the second marriage, he did not resume payments.

Subsequently Barbara returned to Florida, petitioned to modify the Final Judgment and moved to have Lawrence held in contempt for failure to pay alimony. He answered the petition alleging her remarriage as an affirmative defense to alimony payments and filed a counterpetition for modification.

In the course of ruling upon the many matters presented at the Final Hearing, the trial Court stated:

“(h) Upon consideration of all the pleadings as amended and the evidence adduced at the trial the Court finds that the marriage . . . was annulled and rendered void ab initio ... by judgment (of the Texas Court) and the Husband is therefore obligated for future alimony . . . and for arrearage

Lawrence appeals the cited portion of the Order modifying Final Judgment and argues the trial court improperly construed the legal effect of the Texas judgment. He now contends the Texas marriage was only voidable under Florida law and he received inadequate notice that Barbara would request the trial court to take judicial notice of any applicable Texas law to the contrary.

We find the argument concerning the legal effect of the Texas judgment to be without merit.

The ground upon which the annulment was based would only render the marriage voidable in Florida, Evans v. Evans, 212 So.2d 107 (Fla. 4th DCA 1968) and would not require the resumption of alimony payments. However, the same ground, by Texas statute renders the marriage void ab initio, Tex.Fam.Code Ann. §§ 2.41-2.46 (Vernon). A void second marriage is ineffective to alter the legal rights existing between Lawrence and Barbara. Reese v. Reese, 192 So.2d 1 (Fla.1966).

Since Barbara did not plead the Texas law and the trial record does not reflect the authorities upon which she intended to rely with reference to the foreign law, Uniform Judicial Notice of Foreign Law Act, Section 92.031, Florida Statutes (1975), Kingston v. Quimby, 80 So.2d 455 (Fla.1955), Lawrence would seem to be justified in claiming that Barbara should have been required to do more than just mention the Texas statute in pretrial discussions and correspondence between counsel in order to comply with the prerequisites of the uniform act.

“. . .to enable a party to offer evidence of the law in another jurisdiction or to ask that judicial notice be taken thereof, reasonable notice shall be given to the adverse parties either in the pleadings or otherwise.” [Section 92.031(4), F.S.]

However, Lawrence did not raise this point in his Assignments of Error and we must confine the parties to the points properly raised for our consideration. 2 Fla. Jur., Appeals, § 290. The points which were raised having been considered and found to be without merit, the decision of the trial court is affirmed.

AFFIRMED.

MAGER and DOWNEY, JJ., concur.


author: LETTS, Judge.

text:
    Michael B. SMALL and Ann Small, his wife, Petitioners, v. LOWEN AIR CONDITIONING, INC., a Florida Corporation, Respondent.
    No. 76-2744.
    District Court of Appeal of Florida, Fourth District.
    Aug. 12, 1977.
    Philip J. Gouze, Law Offices of Michael B. Small, P. A., West Palm Beach, for petitioners.
    John A. Gentry, III, Moyle, Gentry, Jones, Flanigan & Groner, P. A., West Palm Beach, for respondent.
   LETTS, Judge.

The judge’s order is quashed upon the authority of Gordon v. Warren Heating and Air Conditioning, Inc., 340 So.2d 1234 (Fla. 4th DCA 1976).

CROSS and MAGER, JJ., concur.


text:
    Billy TAYLOR, Appellant, v. STATE of Florida, Appellee.
    No. 76-1800.
    District Court of Appeal of Florida, Fourth District.
    Aug. 16, 1977.
    Rehearing Denied Oct. 11, 1977.
    Richard L. Jorandby, Public Defender, and Frank B. Kessler, Asst. Public Defender, and Lester A. Lewis, Legal Intern, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Harry M. Hipler, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Defendant appeals his conviction for resisting arrest with violence. The sole issue is whether the court erred in refusing to give a jury instruction requested by the defendant. We find no error and affirm.

In this case the defendant requested an instruction which in our opinion is inadequate and incomplete. The trial court is not required to give such an instruction, nor is it obligated to re-write the requested instruction to make it right. The jury was correctly instructed on the elements of the crime charged and on what the State had to prove. We find no fundamental error in the instructions as given.

AFFIRMED.

ALDERMAN, C. J., and CROSS and DAUKSCH, JJ., concur.


author: DAUKSCH, Judge.

text:
    Karl Jon PORTER, Appellant, v. STATE of Florida, Appellee.
    No. 76-103.
    District Court of Appeal of Florida, Fourth District.
    Aug. 23, 1977.
    Rehearing Denied Oct. 11, 1977.
    Richard L. Jorandby, Public Defender, Craig S. Barnard, Asst. Public Defender, and Geoffrey D. Cohen, Legal Intern, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Basil S. Diamond, Asst. Atty. Gen., West Palm Beach, for appellee.
   DAUKSCH, Judge.

This is an appeal from a denial of post-conviction relief requested under Fla.R. Crim.P. 3.850. The Appellant alleges that he was convicted in violation of his constitutional right to effective assistance of counsel at trial. No useful purpose would be served to set out all the facts; it is sufficient to say Appellant was represented by an attorney appointed by the court who also represented his co-defendant. He was retained counsel for the co-defendant. Appellant’s defense to the murder charge was antagonistic to that of his co-defendant and a review of the record discloses that substantial prejudice resulted from the obvious conflict of interest. Therefore the Judgment and Sentence are reversed and this matter is remanded for a new trial. Wilson v. State, 348 So.2d 10 (Fla. 4th DCA 1977). Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942). Baker v. State, 202 So.2d 563 (Fla.1967).

REVERSED and REMANDED.

CROSS and LETTS, JJ., concur.


text:
    William T. BENNETT, Appellant, v. STATE of Florida, Appellee.
    No. 76-2167.
    District Court of Appeal of Florida, Fourth District.
    Aug. 23, 1977.
    Rehearing Denied Oct. 4, 1977.

      P. D. Aiken, Fort Lauderdale, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee and Harry M. Hipler, Asst. Atty. Gen., West Palm Beach, for appellee.
   DAUKSCH, Judge.

The Appellant was convicted of a felony, possession of marijuana, to which he pleaded nolo contendere after having his Motion to Suppress denied. He specifically reserved his right to appeal the Order denying the Motion to Suppress when he entered his plea of nolo contendere.

The facts are that an employee of a restaurant received a telephone call early in the day saying that the restaurant may be robbed. Appellant and his friends came to the restaurant later and “looked suspicious” to the restaurant employee though he could not articulate anything particularly suspicious. The employee called the police who responded immediately. The police in observing the Appellant first saw that he was talking on the telephone and then observed him pay his check and leave the restaurant. Policemen testified they saw nothing of a suspicious nature in the actions of the Appellant and further stated that they observed one of Appellant’s companions leave in an automobile. The police made no effort to detain the companion.

Police testified they had no suspicion any robbery had been committed or any suspicion that any robbery or any other crime was going to be committed. Notwithstanding all of that, the Appellant’s car was blocked from leaving the restaurant while a computer check was run on the Appellant’s automobile and the Appellant. The police testified that the principal purpose for detaining the Appellant was to have a name to put in the report about the incident.

Appellant’s car was connected to a boat and trailer. While the computer check was being conducted one of the policemen, idly walking about with nothing better to do, shined a light into the boat and saw a lid of marijuana.

The police had no probable cause to stop the Appellant, arrest the Appellant or search anything belonging to the Appellant. They did not even have any suspicion in regard to any of the activities of the Appellant or anyone else. Bailey v. State, 319 So.2d 22 (Fla.1975).

The conviction of the Appellant is REVERSED.

CROSS and LETTS, JJ., concur.


text:
    The CHESTERFIELD COMPANY, Appellant, v. Frederick E. RITZENHEIM and Ada B. Ritzenheim, his wife, Appellees.
    No. 76-2645.
    District Court of Appeal of Florida, Fourth District.
    Aug. 23, 1977.
    Rehearing Denied Oct. 6, 1977.

      Stephen F. Bacen and Leo N. Rose of Hunter, Atkinson & Golden, P.A., Hollywood, for appellant.
    Fred R. Bland of Buckley & Bland, Fort Lauderdale, for appellees.
   DAUKSCH, Judge.

Appellant was the lessee and Appellee the lessor. This appeal is from an Order awarding attorneys fees to the lessor based on a contract provision which stated

“The Lessee shall be liable to the Lessor for all costs, expenses, damages and attorneys’ fees which may be incurred or sustained by the Lessor by reason of the Lessee’s breach of any of the provisions of this lease.”

The lessee had sought a declaratory judgment under Chapter 86, Florida Statutes. That chapter does not provide attorneys fees for either party. Therefore, in order for the trial court to have properly awarded the fees it must have found the lessee to have breached a provision of the lease.

The lease provided a method by which the rent would escalate in proportion to the Consumer Price Index. The lease also had an option to purchase provision and the price to purchase rose with the Consumer Price Index.

Lessee became uncertain of his obligations under the lease because he alleged the rental and purchase price had risen beyond the fair market value of the property and beyond what the parties had contemplated when the lease was agreed upon. That is why he sought declaratory relief. Before Judgment lessee voluntarily dismissed his Complaint and bought the property.

The court awarded $3500 attorneys fees saying “the filing of this suit was in effect an effort ... to circumvent the provisions of the lease requiring the defense of the lease . . . and under the stated circumstances the Defendants are entitled to recover as costs their reasonable attorneys’ fees based on the lease.” If this Order meant the fees are recoverable as costs under Section 86.081, Florida Statutes, we disagree and reverse. Harris v. Richard N. Groves Realty, Inc., 315 So.2d 528 (Fla.4th DCA 1975). If this Order meant based on the lease we disagree and reverse because there was no showing of any breach of the lease.

Reversed.

LETTS, J., concurs.

CROSS, J., concurs only in conclusion.


text:
    MARGATE VILLAGE CONDOMINIUM ASSOCIATION, INC., Appellant, v. WILFRED, INC., a Florida Corporation, Appellee.
    Nos. 76-2539, 77-637.
    District Court of Appeal of Florida, Fourth District.
    Sept. 6, 1977.

      Alan S. Becker of Becker & Poliakoff, P. A., Fort Lauderdale, for appellant.
    Robert H. Anderson II of Coleman, Leonard & Morrison, Fort Lauderdale, for appel-lee.
   PER CURIAM.

These are consolidated appeals taken by the appellant from orders granting a temporary injunction and denying motions to dismiss and for summary judgment. The appellee, Wilfred, Inc., brought the action below seeking a temporary and permanent injunction against the appellant, Margate Village Condominium Association, Inc., from imposing assessments against Wilfred, as a unit owner, for the purpose of financing any legal actions brought against Wilfred, as the owner and developer. We reverse.

The complaint alleged that the association, through its board of directors, adopted a resolution levying an assessment against unit owners to defray the expense of bringing a lawsuit against the developer-lessor, Wilfred; that the association lacks standing to bring such a suit; and that Wilfred has no adequate remedy at law and will be irreparably harmed if the assessments are allowed to stand.

The complaint specifically alleged that a condominium association lacks standing to bring suit against a developer-lessor to test the validity of a recreation lease. The law is to the contrary. As a unit owner, Wilfred is subject to the same assessments as other unit owners. And the legality of those assessments is subject to no extra challenge because the unit owner happens, as a matter of coincidence, to be the developer-lessor.

There is some suggestion on appeal that the assessments are illegal because of the manner in which they were passed. However, there are no specific allegations in the complaint supporting such a claim.

Moreover, the time to challenge the legality of the assessments is when the assessments are sought to be enforced. We do not think the complaint stated a cause of action for injunctive relief, and the motion to dismiss should have been granted.

Accordingly, this cause is hereby reversed and remanded for further proceedings consistent herewith.

ANSTEAD, DAUKSCH and LETTS, JJ., concur.

      . Avila South Condominium Association, Inc. v. Kappa Corporation, Florida Supreme Court, 347 So.2d 599, Opinion issued March 31, 1977; Imperial Towers Condominium v. Brown, 338 So.2d 1081 (Fla. 4th DCA 1976).

      . Century 21 Commodore Plaza, Inc. v. Commodore Plaza at Century 21 Condominium Association, 340 So.2d 945 (Fla. 3d DCA 1976).


text:
    REGENCY TOWERS OF NAPLES, INC., a non-profit Florida Corporation, Appellant, v. Arthur L. ARNOLD et al., Appellees.
    No. 76-310.
    District Court of Appeal of Florida, Second District.
    Sept. 9, 1977.
    Howard S. Rhoads of Allen, Knudsen, Swartz, DeBoest, Rhoads & Edwards, Fort Myers and Spingler & Allen, Naples, for appellant.
    G. E. Carroll, Naples, for appellees.
   PER CURIAM.

An exhaustive review has been made of the questions presented on appeal. Two of these questions merit comment.

The first question concerns the retroactive application of Section 711.465, Florida Statutes (1975). This question has been answered by the Supreme Court in Fleeman v. Case, 342 So.2d 815 (Fla.1976), and we find no error in the trial judge’s holding that the statute could not be applied retrospectively.

The second question of whether the plaintiffs, as former fee simple owners/lessors have standing, as trustees, to seek a declaratory judgment as to the proper interpretation of the lease where they had transferred the property several years earlier was answered in the affirmative by the trial judge, and we affirm his ruling. Fla. R.Civ.P. 1.210.

AFFIRMED.

HOBSON, Acting C. J., McNULTY, J., and FOGLE, HARRY W., Associate Judge, concur.


text:
    Keith Edward AVERY, Appellant, v. STATE of Florida, Appellee.
    No. 77-275.
    District Court of Appeal of Florida, Second District.
    Sept. 9, 1977.
    Jack 0. Johnson, Public Defender, and James A. Cornelius, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

The judgment is affirmed but this case is remanded for resentencing of appellant. The present sentence does not' specifically set forth the period of credit time to be allowed as required by Section 921.161(1), Florida Statutes (1975), Smith v. State, 310 So.2d 770 (Fla.2d DCA 1975). The appellant does not have to be present at resen-tencing.

BOARDMAN, C. J., and GRIMES and OTT, JJ., concur.


text:
    Henry GONSOVOWSKI, Appellant, v. STATE of Florida, Appellee.
    No. 77-422.
    District Court of Appeal of Florida, Second District.
    Sept. 9, 1977.
    Jack O. Johnson, Public Defender, and James A. Cornelius, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant was convicted in 1975 of buying, receiving, or aiding in the concealment of stolen property contrary to Section 811.-16, Florida Statutes (1973), and was placed on three years probation.

In February 1977, the trial court properly revoked appellant’s probation on proof that he committed a lewd and lascivious act in the presence of a child under the age of fourteen years. At that point the trial court, after psychiatric examination and hearing, adjudged appellant to be a mentally disordered sex offender pursuant to Chapter 917, Florida Statutes (1975). Appellant was then sentenced to five years in prison with the stipulation that he would be transferred to the Florida State Hospital for treatment and be returned to prison upon completion of such treatment.

Having determined appellant to be a mentally disordered sex offender, the trial court was without authority to sentence him to prison before he received treatment pursuant to Chapter 917.

Under Section 917.19, upon adjudging a person convicted of any offense to be a mentally disordered sex offender, the trial judge is required to commit him to the custody of the Department of Offender Rehabilitation for care, treatment and rehabilitation. Further proceedings against such person are suspended pending his return therefrom. Upon return of such person to the court, under Section 917.20, if the trial court, following another hearing, determines such person has recovered and is not a menace to others, the court shall recommence the proceedings and may then impose any sentence alternative available to the court for the crime for which such person was initially convicted. If, on the other hand, the court concludes such person is in need of further treatment, he must recommit him as provided in Section 917.20.

The procedure outlined above was not followed here.

Accordingly, the judgment revoking probation is affirmed but the sentence is vacated and the cause remanded for further proceedings consistent with this opinion.

HOBSON, Acting C. J., and McNULTY and SCHEB, JJ., concur.


text:
    Sam MANNING, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 76-1709.
    District Court of Appeal of Florida, Fourth District.
    Sept. 13, 1977.
    Richard L. Jorandby, Public Defender, and Craig S. Barnard, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Marsha G. Madorsky, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed.

CROSS, ANSTEAD and LETTS, JJ., concur.


text:
    Allen FERGUSON, Appellant, v. STATE of Florida, Appellee.
    No. 76-2162.
    District Court of Appeal of Florida, Fourth District.
    Sept. 13, 1977.
    Richard L. Jorandby, Public Defender, Frank B. Kessler, Chief, App. Div., Asst. Public Defender, and Marc R. Goldstein, Legal Intern, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Harry M. Hipler, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed.

DOWNEY, DAUKSCH and LETTS, JJ., concur.


text:
    Wilma R. WOODS, Appellant, v. Kenneth DUNWORTH, Travelers Insurance Company and Roy R. Woods, Appellees.
    No. 76-2578.
    District Court of Appeal of Florida, Fourth District.
    Sept. 13, 1977.
    William H. Stolberg, Fort Lauderdale, for appellant.
    Steven R. Berger of Carey, Dwyer, Cole, Selwood & Bernard, Miami, for appellees— Dunworth and Travelers Ins. Co.
   PER CURIAM.

The order appealed from dismissing Count II of appellant’s amended complaint is not an appealable order since the action is not one formerly cognizable in equity and Count II is not a cause of action separate from the cause of action stated in Count I.

Accordingly, the appeal is dismissed for lack of jurisdiction.

DOWNEY, ANSTEAD and LETTS, JJ., concur.


text:
    INTERNATIONAL FUNDING CORPORATION, a Florida Corporation, Appellant, v. ALEXANDER GRANT & COMPANY, a Florida Corporation, Appellee.
    No. 77-74.
    District Court of Appeal of Florida, Fourth District.
    Sept. 13, 1977.
    John A. Ritter of Ritter & Ritter, Coral Gables, for appellant.
    Earle W. Peterson, Jr. of McCune, Hiaa-sen, Crum, Ferris & Gardner, Fort Lauder-dale, for appellee.
   PER CURIAM.

AFFIRMED.

ALDERMAN, C. J., and ANSTEAD and LETTS, JJ., concur.


text:
    Lotfy E. GUIRGUIS and Nusa F. Guirguis, his wife, Appellants, v. Larry B. ELLIOT, Patrol Officer of the Florida Highway Patrol, and Department of Highway Safety and Motor Vehicles, Appellees.
    No. 77-650.
    District Court of Appeal of Florida, Fourth District.
    Sept. 13, 1977.

      Norman Dean Kohl, Jr. of Kohl, Springer & Springer, Palm Springs, for appellants.
    Paul R. Regensdorf of Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellee State of Florida.
   PER CURIAM.

AFFIRMED. See Game & Fresh Water Fish Commission v. Carlile, 341 So.2d 1015 (Fla. 4th DCA 1977).

DOWNEY, ANSTEAD and DAUKSCH, JJ., concur.


author: HUBBART, Judge.

text:
    Lilia SABUGO, Appellant, v. GDS DRUGS, INC., Appellee.
    No. 76-711.
    District Court of Appeal of Florida, Third District.
    Sept. 13, 1977.
    Rehearing Denied Oct. 13, 1977.
    Corlett, Merritt, Killian & Sikes and Donald W. Hardeman, Jr., Miami, for appellant.
    Knight, Peters, Hoeveler, Pickle, Niem-oeller & Flynn, Jeanne Heyward, Miami, for appellee.
    Before BARKDULL, HAVERFIELD and HUBBART, JJ.
   HUBBART, Judge.

The plaintiff (Lilia Sabuto) appeals from an adverse summary judgment entered in favor of the defendant (GDS Drugs, Inc.) in a slip and fall negligence action before the Circuit Court for the Eleventh Judicial Circuit of Florida. The law is clear that if a dangerous condition on the floor of a business establishment is created by (1) a servant or agent of the owner or (2) an outsider and the condition is one which has existed for sufficient length of time that the owner should have known of it, the owner is liable for any ensuing injuries proximately caused by the dangerous condition when sustained by a business invitee. Food Fair Stores, Inc. v. Trusell, 131 So.2d 730, 732 (Fla.1961); Food Fair Stores of Florida, Inc. v. Patty, 109 So.2d 5, 6 (Fla.1959); Carls Markets, Inc. v. Meyer, 69 So.2d 789, 791-92 (Fla.1953); Haley v. Harvey Building, Inc., 168 So.2d 330, 332 (Fla. 2d DCA 1964).

The evidence [viewed in a light most favorable to the non-moving party on the motion for summary judgment], establishes that the plaintiff while shopping at the defendant’s store slipped and fell on some paper debris on the floor of the store at a place where there had not been an inspection by store employees for at least 3V2 hours prior to the accident. This constitutes sufficient evidence to preclude the entry of a summary judgment for the defendant based on the following authorities: Ferguson v. Kress and Co., 253 So.2d 472 (Fla. 4th DCA 1971); Matarese v. Leesburg Elks Club, 171 So.2d 606 (Fla. 2d DCA 1965); Jenkins v. Brackin, 171 So.2d 589 (Fla. 2d DCA 1965).

The summary judgment entered for the defendant in this case is reversed and the cause remanded to the trial court for further proceedings.

Reversed and remanded.


text:
    Michael L. DAVIES and Ferncrest Utilities, Inc., Appellants, v. CANCO ENTERPRISES, a partnership consisting of Murray A. Candib and Ollie Cohen, Appellees.
    No. 76-1299.
    District Court of Appeal of Florida, Third District.
    Sept. 13, 1977.
    Rehearing Denied Oct. 14, 1977.
    Tendrich & Todd, Miami, Ryan & Sha-hood, Dania, for appellants.
    John W. Watson, Miami, for appellees.
    Before ' BARKDULL, NATHAN and HUBBART, JJ.
   HUBBART, Judge.

By this appeal we are asked to review a final judgment enforcing the terms of the stipulation and settlement agreement allegedly entered into by the parties to this appeal. The appellants contend inter alia that the agreement is unenforceable because it was incorporated into the transcript of a deposition which neither the parties nor their respective attorneys ever signed or waived signing. We agree and reverse.

The law is clear that “[n]o private agreement or consent between parties or their attorneys shall be of any force unless the evidence thereof is in writing, subscribed by the party or his attorney against whom it is alleged; provided that parol agreements may be made before the court if promptly made a part of the record or incorporated in the stenographic notes of the proceedings and agreements made at depositions which are incorporated in the transcript thereof need not be signed when signing thereof is waived.” Fla.R.Civ.P. 1.030(d). An agreement entered into in a lawsuit between the parties or their attorneys which does not conform with these ' formalities is unenforceable. Alaimo v. Tirone, 297 So.2d 584 (Fla. 3d DCA 1974). Melfi Construction, Inc. v. Coastal Theaters, Inc., 279 So.2d 341 (Fla. 4th DCA 1973).

The stipulation and settlement agreement involved in this case was incorporated into the transcript of a deposition which was never signed by the parties or their respective attorneys and in which the proper signatures were not waived by the parties or their attorneys. It is, therefore, clear that the said agreement is of no force and effect and a final judgment based thereon must be reversed.

Reversed.


text:
    T. V. JONES, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1386.
    District Court of Appeal of Florida, Third District.
    Sept. 13, 1977.
    Pollack, Tunkey, Robbins & Leen, Miami, for appellant.
    Robert L. Shevin, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., PEARSON and HAVERFIELD, JJ.
   PER CURIAM.

Appellant appeals his conviction and sentence for the crime of second degree murder, in violation of Section 782.04(2), Florida Statutes (1975).

An information was filed against appellant charging him with second degree murder for the stabbing death of one Herbert Tyler, on December 15, 1975. Appellant pled not guilty and the cause proceeded to trial whereupon, at its conclusion, the jury returned a verdict of guilty. On July 9, 1976, the trial court adjudicated appellant guilty and sentenced him to fifteen (15) years imprisonment. This appeal follows.

Appellant’s sole contention on appeal is that the trial court erred in commenting upon the evidence in responding to an objection raised by appellant over the use of a hypothetical question posed by the State, which sought to determine the cause of the victim’s death. It is appellant’s contention that facts comprising the hypothetical question were not in evidence and in overruling appellant’s objection to the question, the court in fact lent undue credibility to the State’s case, prejudicing appellant’s trial.

The alleged erroneous comment was as follows:

“I think the jury will have to rely upon its own recollection as to whether these facts in quotes are, in fact, what has been testified to.”

Initially, we are of the opinion that the above statement in no way prejudiced appellant’s trial. Furthermore, the record reveals that the facts contained in the State’s hypothetical question were established by competent testimony or evidence. Autrey v. Carroll, 240 So.2d 474 (Fla.1970). Steiger v. Massachusetts Casualty Insurance Company, 273 So.2d 4 (Fla. 3d DCA 1973). As such, no abuse of discretion has been shown in allowing the question to be asked. Seibels, Bruce & Company v. Giddings, 264 So.2d 103 (Fla. 3d DCA 1972).

Accordingly, appellant’s conviction and sentence are hereby affirmed.

Affirmed.


text:
    David DORTA, a minor, by and through his parent and natural guardian, Emile Dorta, and Emile Dorta, Individually, et al., Appellants, v. Kevin BLACKBURN, Jr., a minor, by and through his father and next friend, Kevin Blackburn, Sr., Individually, Appellees.
    No. 73-1094.
    District Court of Appeal of Florida, Third District.
    Sept. 14, 1977.
    Helliwell, Melrose & DeWolf and Marsh L. Lyons, Miami, for appellants.
    Frates, Floyd, Pearson, Stewart, Proenza & Richman and Ira H. Leesfield, Miami, for appellees.
    Before HENDRY, C. J., and HAVER-FIELD, J., and SMITH, SAMUEL, Associate Judge.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on September 15, 1974 (302 So.2d 450) reversing the judgment of the Circuit Court of Dade County, Florida, in the above styled cause; and

WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida, by its opinion and judgment filed May 5, 1977, 348 So.2d 287 and mandate now lodged in this court, quashed this court’s judgment with directions to reinstate the judgment of the trial court;

NOW, THEREFORE, It is Ordered that the mandate of this court heretofore issued in this cause on November 18, 1974 is withdrawn, the judgment of this court filed September 17, 1974 is vacated, the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court and the judgment of the circuit court is reinstated and affirmed. Costs allowed shall be taxed in the circuit court (Rule 3.16 b, Florida Appellate Rules).


text:
    Napoleon BRITT, Appellant, v. STATE of Florida, Appellee.
    No. 75-1817.
    District Court of Appeal of Florida, Fourth District.
    Sept. 20, 1977.

      Richard L. Jorandby, Public Defender, Frank B. Kessler, Chief, Appellate Division, and Marc R. Goldstein, Legal Intern, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Petition for writ of habeas corpus having been granted with full appellate review, the appealed order is

AFFIRMED.

ALDERMAN, C. J., and DOWNEY and LETTS, JJ., concur.


author: DAUKSCH, Judge. BURNSTEIN, MIETTE K., Associate Judge,

text:
    Augusten BONO and Dorothy Bono, his wife, Appellants, v. W. Norman DUBREE et al., Appellees.
    No. 76-1144.
    District Court of Appeal of Florida, Fourth District.
    Sept. 20, 1977.
    John T. Christiansen of Sales & Chris-tiansen, Palm Beach, for appellants.
    Frank W. Weathers, Jr., and Jonathan D. Schumann of Weathers & Narkier, P. A., West Palm Beach, for appellees.
   DAUKSCH, Judge.

On appeal is an Order of the trial court dismissing Plaintiff’s cause of action because of Plaintiff’s failure to comply with Fla.R.Civ.P. 1.260(a) by not moving for substitution of parties within ninety days of the filing of a suggestion of the death of the Defendant, W. Norman Dubree. The question of excusable neglect is a most troublesome area with which judges must deal. There are no guidelines for a trial judge to follow and in our perusal of the various cases we find appellate courts almost evenly divided on nearly the same circumstances. In this case we must agree with the Appellant that the neglect was excusable and therefore reverse the Order dismissing the cause of action with directions to permit the substitution of the deceased party and proceed to trial.

REVERSED with directions.

DOWNEY, J., concurs.

BURNSTEIN, MIETTE K., Associate Judge, dissents, with opinion.

BURNSTEIN, MIETTE K., Associate Judge,

dissenting:

I respectfully dissent.

In this case, despite what appears to be adequate office procedure, a suggestion of death was mislaid or erroneously misfiled. Some 123 days later (33 days after the expiration of the 90 day requirement of moving for the substitution of parties in accordance with Fla.R.Civ.P. 1.260[a]) the error was brought to the attention of the appellants. Appellants thereafter moved for an extension of the time in accordance with Fla.R.Civ.P. 1.090(b)(2) which Motion was denied and an Order entered dismissing Plaintiff’s cause of action.

Time requirements under 1.260(a) were set in motion by the appropriate filing of the suggestion of death. King v. Tyree’s of Tampa, Inc., 315 So.2d 538 (Fla.2d DCA 1975). The question of excusable neglect for which time limitations may be extended is a matter within the sound discretion of the trial judge.

No abuse of such discretion was shown, therefore, I would affirm.


text:
    Robert J. McDOUGALL, II, Appellant, v. STATE of Florida, Appellee.
    No. 76-1565.
    District Court of Appeal of Florida, Fourth District.
    Sept. 20, 1977.
    Richard L. Jorandby, Public Defender, and Frank B. Kessler, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Harry M. Hipler, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED on authority of State v. Nelson, 347 So.2d 749 (Fla. 4th DCA 1977).

ALDERMAN, C. J., and DOWNEY and LETTS, JJ., concur.


text:
    C. A. DAVIS, INC., and the City of Miami, Appellants, v. K & R ELECTRIC, INC., a Florida Corporation, and Raybro Electric Supplies, Inc., Appellees.
    No. 76-1638.
    District Court of Appeal of Florida, Third District.
    Sept. 20, 1977.
    Moore, Kessler, Roth & Beckerman and Stephen F. Kessler, George F. Knox, Jr., City Atty., and Montague Rosenberg, Asst. City Atty., Miami, for appellants.
    Sandler & Sandler and Garry J. Alhalel, Donald P. March, Miami, for appellees.
    Before BARKDULL, HAVERFIELD and HUBBART, JJ.
   PER CURIAM.

In a contract dispute involving the installation of electrical wiring at City parks, the City of Miami was joined as a party-defendant. It filed an answer and cross claim in the nature of interpleader against numerous parties, including Raybro Electric Supplies, Inc. In said crossclaim, the City indicated it was a disinterested party in and to funds in the approximate amount of $18,-000.00; that the cross-defendants made adverse claims to the funds; and that the City stood ready, willing, and able to deposit the money in the registry of the court if the court deemed appropriate. At final hearing the trial court, being under the impression that the money had been deposited, entered a judgment for Raybro in the sum of $4,270.76 from the funds on deposit in the court registry as a result of the interpleader. However, some time after entry of the order granting interpleader, the City paid the money direct to another cross-defendant, C. A. Davis, Inc. (who had original contract with the City). Upon this becoming known to Raybro, it filed a motion to compel compliance with the final judgment by the City of Miami; this was met with a unilateral notice of dismissal under Fla.R. Civ.P. 1.420 by the City. Subsequently, Raybro filed a motion to amend the final judgment. Upon hearing, the trial judge amended the final judgment and granted Raybro a judgment against C. A. Davis, Inc., and the City of Miami, Florida, in the sum of $4,270.76. Davis appealed; this appeal was joined in by the City. We affirm.

We first doubt whether the City had the right to file a unilateral dismissal under Fla.R.Civ.P. 1.420, after a final judgment had been entered on its crossclaim for interpleader. In Re Adoption of Sizemore v. State Department of Public Welfare, 231 So.2d 853 (Fla.2d DCA 1970); Equibank, N. A. v. Penland, 330 So.2d 739 (Fla.1st DCA 1976); Fla.R.Civ.P. 1.420(a)(1). Further, at the time the trial court entered the final judgment, there was no dispute but that Raybro had supplied the materials and the judge was correct in entering the original final judgment. Subsequently, Davis attempted to bring into the action a purported release from Raybro to Davis, releasing it and the City’s surety from any claim for materials involved in the contract. However, this release was not brought to the attention of the trial court timely even if it was applicable (which we do not here find) because it was not tendered to the trial court until the filing of the motion for new trial, and it was readily apparent that the release was known to Davis prior to the entry of the final judgment. Normally, a party will not be permitted to bring in evidence on a motion for new trial, which was known to them at the time of the trial. Vining v. American Bakeries Co., 121 Fla. 116, 163 So. 396 (1935); Deauville Realty Co., Inc. v. Tobin, 111 So.2d 743 (Fla.3d DCA 1959).

Therefore, for the reasons above stated, the final judgment here under review be and the same is hereby affirmed.

Affirmed.


text:
    PAN AMERICAN HOSPITAL and Argonaut Insurance Company, Appellants, v. Julia PASCUAL, Appellee.
    No. 76-1925.
    District Court of Appeal of Florida, Third District.
    Sept. 20, 1977.
    Rehearing Denied Oct. 13, 1977.
    Writ Granted Dec. 9, 1977.

      Williams, Tomlinson & DuFresne, Coral Gables, for appellants.
    Edward Schroll, Miami, for appellee.
    Before BARKDULL, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

This is an appeal by the defendants, Pan American Hospital and Argonaut Insurance Company, from a final judgment on the petition of the plaintiff, Julia Pascual, ap-pellee herein, for rule nisi to enforce the order of the judge of industrial claims.

Defendants’ first point on appeal is that the circuit court had no jurisdiction over defendants because of improper service of process. We find no merit in this contention on the authority of Phoenix Assurance Company of New York v. Merritt, 160 So.2d 552 (Fla. 2d DCA 1963); Lillard v. City of Miami, 220 So.2d 413 (Fla. 3d DCA 1969); Sikes v. Sikes, 242 So.2d 494 (Fla. 3d DCA 1970); Marshall v. Bacon, 97 So.2d 252 (Fla.1957).

Defendants’ second point on appeal is that the circuit court erred in requiring the defendants to pay disability benefits during the duration of plaintiff’s disability. This argument is without merit. See Phoenix Assurance Company of New York v. Merritt, supra; Grant-Sholk Construction Company v. Moore, 282 So.2d 634 (Fla.1973).

Defendants are privileged to go before the judge of industrial claims and seek modification of the award, if such modification is meritorious. We disagree with defendants’ next point on appeal, that the court erred in retaining jurisdiction to award attorneys fees for plaintiff, on authority of Steele v. A. D. H. Building Contractors, Inc., 196 So.2d 430 (Fla.1967).

We do find “scriveners errors” in the final judgment which order payment to Regina Christina Gomez from May 2, 1974, to July 13,1975, rather than to July 3,1975; and payment for attendant care for sixteen (16) hours per day, seven (7) days per week rather than eight (8) hours per day, seven (7) days per week from July 3, 1975, to the date of the final judgment. The trial court is directed to modify the judgment accordingly.

Affirmed in part and reversed in part with directions.


text:
    Nancy M. O’NEAL, Appellant, v. PENINSULAR LIFE INSURANCE COMPANY, a Florida Corporation, Appellee.
    No. EE-85.
    District Court of Appeal of Florida, First District.
    Sept. 22, 1977.
    Harry Lewis Michaels and E. Douglas Spangler, Jr., of Michaels & Spangler, Tallahassee, for appellant.
    William E. Williams of Mahoney, Hadlow & Adams, Tallahassee, for appellee.
   PER CURIAM.

Appellant, the named beneficiary of a life insurance policy, appeals a summary judgment in favor of insurer. The principles of the law applicable to summary judgments has been thoroughly explored by this court in Connell v. Sledge, 306 So.2d 194 (Fla. 1st DCA 1975). No useful purpose will be accomplished by repetition here. Rigid application of those principles is mandated by a recent opinion of the Supreme Court of Florida, Wills v. Sears, Roebuck & Company, 351 So.2d 29 (Fla.1977), wherein the writer of that opinion stated:

“A party moving for summary judgment must meet a twofold requirement:
“The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file together with the affidavits [in support or opposition, or both], if any, show [1] that there is no genuine issue as to any material fact and [2] that the moving party is entitled to a judgment as a matter of law. Fla.R.Civ.P. 1.510(c). “In order to carry its burden as to the first of these requirements, the movant must show conclusively the absence of any genuine issue of material fact, Visingardi v. Tirone, supra [Fla., 193 So.2d 601]; Holl v. Talcott, supra [Fla., 191 So.2d 40]. The Holl court additionally stated that the burden on parties moving for summary judgment is greater than the burden which the plaintiff must carry at trial, because the movant must prove a negative — the nonexistence of a genuine issue of material fact. Id. at 43.
:{? # # * * #
“Mindful as we are of the presumption of correctness which attaches to an order of the trial court, nevertheless we must draw every possible inference in favor of the party against whom the motion is made. First Realty Corp. v. Standard Steel Treating Co., 268 So.2d 410, 413 (Fla. 4th DCA 1972). Accordingly, we find that respondent has not carried its burden of showing conclusively that there was no genuine issue as to any material fact. * * *”

Application of the foregoing principles to the case sub judice in the light of Johnson v. Life Ins. Co. of Georgia, 52 So.2d 813 (Fla.1951) and Hardy v. American Southern Life Ins. Co., 211 So.2d 559 (Fla.1968) requires reversal.

We only hold that the record as it existed at the time of entry of summary judgment here appealed was such as to render entry of that judgment improper. We do not determine nor even consider whether appellant will be ultimately entitled to recovery.

Reversed and remanded for further proceedings in accordance with the principles announced in the above cited cases.

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


text:
    Mavis Y. NORRIS, Individually, Appellant, v. Monroe STEWART, Appellee.
    No. DD-402.
    District Court of Appeal of Florida, First District.
    Sept. 23, 1977.
    Allen C. D. Scott, II, of Maxwell & Scott, Jacksonville, for appellant.
    Paul M. Harden, of Smith, Davenport, Peek & Bloom, Jacksonville, for appellee.
   PER CURIAM.

Mrs. Norris’ appeal challenges the propriety of the trial court’s order directing a verdict against her and in favor of Monroe Stewart, the holder of a $15,000.00 promissory note signed by her and her now deceased husband. We agree with the trial court that Mrs. Norris failed to establish she was duressed into executing the note.

Stewart had advanced $15,000.00, unsecured and without a written instrument, for Mr. Norris to invest in real property. The uncontradicted testimony shows Mr. Norris converted the monies in order to make payments on his farm where he and his wife resided. Mrs. Norris knew nothing of the business deal nor of her husband’s conversion. When Stewart learned of the misappropriation, he visited the Norris home three times to discuss repayment. Mrs. Norris testified she once overheard Stewart talking to her husband in an upset manner, indicating that should he not get satisfaction, he would take the matter to the state attorney. Eventually, Mr. Norris had his wife type a promissory note and both signed it. Mrs. Norris testified she signed the note because, having overheard the conversation with Stewart and having discussed the matter with her husband, she didn’t want her husband to go to jail. This suit was then brought on the unpaid note.

Summary judgment was granted against the estate of Mr. Norris and that determination is not here on appeal. We are only concerned with Mrs. Norris’ liability as a co-signer of the note. She argues the general law in Florida is that a wife may avoid a conveyance obtained by express or implied threats of imprisonment of her husband, citing Burton v. McMillan, 52 Fla. 469, 42 So. 849 (1907); Sheldon v. Wilfore, 136 Fla. 312, 186 So. 508 (1939); Loew v. Friedman, 80 So.2d 672 (Fla.1955).

Duress, however, requires a showing the act of the party compelling obedience of another is unlawful or wrongful. Corporación Peruana de Aeropuertos y Aviacion v. Boy, 180 So.2d 503 (Fla.2nd DCA 1965). There was no showing by Mrs. Norris that Stewart’s intimations were illegal. See Smith v. Commercial Bank of Jasper, 77 Fla. 163, 81 So. 154 (1919); Commercial Credit Co. v. Davis, 103 Fla. 519, 137 So. 688 (1931); Tyler v. Hill Bros., 127 Fla. 419, 173 So. 147 (1937), and Corporación Peruana, supra.

AFFIRMED.

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


text:
    Jessie Lee LUCAS, Appellant, v. STATE of Florida, Appellee.
    No. 76-1525.
    District Court of Appeal of Florida, Second District.
    Sept. 23, 1977.
    Jack 0. Johnson, Public Defender, Bar-tow, and Douglas A. Wallace, Asst. Public Defender, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

The only point raised on this appeal is the propriety of appellant’s sentence to confinement “at hard labor.” To be imprisoned “at hard labor” is improper because no existing state statute provides for imprisonment at hard labor as a sentence for any offense. McDonald v. State, 321 So.2d 453 (Fla. 4th DCA 1975).

Remanded for the purpose of striking the language “at hard labor” from the sentencing order; otherwise affirmed. Appellant need not be present for this purpose.

McNULTY, A. C. J., and GRIMES and OTT, JJ., concur.


author: OTT, Judge.

text:
    David Laverne ROUNDTREE, Appellant, v. STATE of Florida, Appellee.
    No. 76-1771.
    District Court of Appeal of Florida, Second District.
    Sept. 23, 1977.
    Rehearing Denied Oct. 11, 1977.

      Jack 0. Johnson, Public Defender, Bar-tow, and Wayne Chalu, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   OTT, Judge.

Appellant was charged with possession of heroin. In due course he came on for trial by jury, was found guilty, was adjudicated by the court and sentenced to a term of 5 years in the state prison with a general credit for all jail time. We affirm the judgment of conviction but remand for a correction of the sentence to' reflect the specific amount of credit time to which the appellant is entitled pursuant to the requirements of Section 921.161(1), Florida Statutes.

On this appeal we find two points among those raised by the appellant that warrant treatment by this court.

The first of such points involves the testimony of the arresting officer pursuant to questions by the prosecuting attorney as follows:

Q. All right. So, he was arrested at that time?
A. That’s right.
Q. All right. Did Mr. Roundtree make any statements of any sort to you?
A. Not that I can recall.
MRS. CONDON: I would object to that question and answer by the witness and ask that it be stricken from the record.
THE COURT: Sustained. Strike it from the record. The jury is instructed to disregard it.
MR. SKYE: Okay. I have nothing else of this witness, your Honor.

We find, and so hold, that the above testimony falls within the position and rationale of this court in Clark v. State, 336 So.2d 468 (Fla.2d DCA 1976) which is not changed by the particular limited objection and request by appellant’s trial counsel. There is no requirement for the trial court to treat the objection as including a request for mistrial nor is the nature of the testimony such as to elevate it to fundamental error mandating reversal irrespective of objection.

The failure of the trial court to credit the appellant with the specific period of time served in the county jail before sentence as required by Section 921.161(1), Florida Statutes requires that the case be remanded for appropriate correction in this regard. The appellant need not be present for this purpose.

McNULTY, Acting C. J., and GRIMES, J., concur.


text:
    Bennie WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 77-432.
    District Court of Appeal of Florida, Second District.
    Sept. 23, 1977.
    Jack 0. Johnson, Public Defender, and James A. Cornelius, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., for appellee.
   PER CURIAM.

The judgment is affirmed but this case is remanded for resentencing of appellant. The present sentence does not specifically set forth the period of credit time to be allowed as required by Section 921.161(1), Florida Statutes (1975), Smith v. State, 310 So.2d 770 (Fla. 2d DCA 1975). The appellant does not have to be present at resen-tencing.

McNULTY, C. J., and GRIMES and OTT, JJ., concur.


text:
    Jesse McNEAL, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 77-568.
    District Court of Appeal of Florida, Second District.
    Sept. 23, 1977.
    Jack 0. Johnson, Public Defender, Bar-tow, Douglas A. Wallace, Asst. Public Defender, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

The only point which merits discussion is the propriety of appellant’s sentence to confinement “at hard labor.” To be imprisoned “at hard labor” is improper because no existing state statute provides for imprisonment at hard labor as a sentence for any offense. McDonald v. State, 321 So.2d 453 (Fla. 4th DCA 1975).

Remanded for the purpose of striking the language “at hard labor” from the sentencing order; otherwise affirmed. Appellant need not be present for this purpose.

McNULTY, Acting C. J., and GRIMES and OTT, JJ., concur.


text:
    Mary Helen GILES, Appellant, v. STATE of Florida, Appellee.
    No. EE-443.
    District Court of Appeal of Florida, First District.
    Sept. 26, 1977.
    Michael J. Minerva, Public Defender, and Theodore E. Mack, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Patti Englander, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellant pled guilty to a charge of uttering a forged instrument and was placed on probation for five years with adjudication of guilt withheld. Subsequently, she was charged with violation of probation, entered a plea of no contest, and her probation was modified. Thereafter, appellant was again charged with violation of probation by uttering a forged instrument and pled no contest to the violation and pled guilty to the charge of uttering a forged instrument. Her probation was revoked and she was adjudicated guilty of both uttering offenses and was sentenced on each offense to serve five years imprisonment, six months of which was to be served in the county jail after which she was to be placed on probation for three years. The sentences were to run concurrently. She was given credit for all jail time previously served though the amount thereof was not specified. Later, appellant was again charged with violation of her probation by uttering a forged instrument and she again pled guilty to the probation violation and to the substantive crime. She had previously been adjudged guilty of the crimes for which she was serving probation, and the court adjudged her guilty of the new offense of uttering a forged instrument and then sentenced, her to five-year concurrent sentences in the state penitentiary with credit for 40 days jail time previously served. Appellant contends here that the trial court erred in not giving her credit for six months that she served previously on the split sentence citing State v. Jones, 327 So.2d 18 (Fla.1976). The record before this Court, however, does not show whether appellant served a part or all of the six months split sentence. Also, it does not appear that appellant raised this question in the trial court.

The judgment and sentence are affirmed without prejudice to appellant to test the legality of the sentence by filing in the trial court a motion under Fla.R.Crim.P. 3.850.

McCORD, C. J., and SMITH and MELVIN, JJ., concur.


text:
    Amos B. HERROD and Kelly B. Herrod, his wife, Appellants, v. Mathias ROLAND, Teresa P. Rolao, Estate of Mathias Rolao, Deceased, and Mat Roland Seafood Company, Inc., a Florida Corporation, Appellees.
    No. FF-157.
    District Court of Appeal of Florida, First District.
    Sept. 26, 1977.

      Oliver C. Ball, Jacksonville, for appellants.
    Russell H. Showalter, Jr., Jacksonville, for appellees.
   PER CURIAM.

On the authority of David Miller Distributing Company, Inc. v. Florida National Bank at Arlington, 342 So.2d 856 (Fla. 1st DCA 1977), we reverse as to all parties except the Estate of Mathias Rolao. As to the other parties, the allegations of the second- amended complaint state a cause of action in trespass.

MILLS, Acting C. J., and SMITH and ERVIN, JJ., concur.


author: HENDRY, Chief Judge.

text:
    Patrick Joseph CONNOLLY, Appellant, v. The STATE of Florida, Appellee.
    No. 76-408.
    District Court of Appeal of Florida, Third District.
    Sept. 27, 1977.
    Robert L. Moore, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen., for appel-lee.
    Before HENDRY, C. J., and PEARSON and HAVERFIELD, JJ.

      . The state’s two expert witnesses, Dr. Corwin and Dr. Mutter reached the identical conclusion reached by Dr. Sylvester, to-wit: that at the time of the murder, appellant knew right from wrong and was aware of the nature and consequences of his acts.

   HENDRY, Chief Judge.

Appellant, Patrick Joseph Connolly, was convicted of second degree murder for the death of one Myrtle Grist, and sentenced to life imprisonment.

In seeking reversal of his conviction and sentence, appellant has raised two points on appeal, to wit: (1) that the trial court erred in denying appellant’s motion to suppress his oral confession, allegedly given as a result of police misrepresentations to the effect that the only purpose the presence of an attorney would serve would be to advise appellant not to speak to the police and (2) that the trial court erred in allowing the state to introduce the opinion, through written report, of one Dr. Sylvester, on the subject of appellant’s sanity, when the doctor was not available as a witness and subject to cross-examination.

After carefully reviewing the voluminous record in this case, it is our opinion that appellant’s conviction and sentence must be affirmed for the following reasons.

As to appellant’s first point, the record is quite clear that it was appellant who voluntarily went to the police to confess his crime. The record is also clear that appellant was both fully and carefully advised of his constitutional rights, including his right to counsel. Notwithstanding the fact that, during questioning, one of the officers told appellant that an attorney “would tell him not to talk,” we are not of the opinion that said comment dissuaded appellant from first seeking the aid and advice of counsel. As such, we find no error in the trial judge’s refusal to suppress appellant’s confession. Compare Thompson v. State, 328 So.2d 1 (Fla.1976), wherein the Florida Supreme Court held that notwithstanding a police officer’s testimony that he advised the defendant that if he had an'attorney present, “he would not be able to talk to us and tell us his side of the story,” and the continued questioning of the defendant by the officers despite the defendant’s announced desire to first seek the aid of counsel, the failure of the trial court to suppress the elicited confession, if error, was harmless, under the circumstances of that ease. The facts sub judice are much stronger than in the Thompson decision, as here, the record is completely devoid of any testimony concerning appellant’s wish to either first speak to an attorney or postpone his questioning until counsel arrived.

Appellant’s second point on appeal claims error on the part of the trial judge in allowing the state to utilize, for impeachment purposes, a written opinion prepared by one of the state’s examining physicians and addressed to the subject of appellant’s sanity. Appellant contends that the absence of the physician from the courtroom, preventing cross-examination as to the methods used by him in reaching his conclusion, rendered the opinion hearsay and thus, inadmissible.

In that the opinion reached by Dr. Sylvester was cumulative .of other competent evi-dénce introduced at trial, it is our opinion that any error committed by the trial judge in allowing the state the use of said opinion for impeachment purposes would be harmless in nature. Section 924.33, Florida Statutes (1975); see Urga v. State, 155 So.2d 719 (Fla.2d DCA 1963); see also Hughes v. Canal Insurance Company, 308 So.2d 552 (Fla.3d DCA 1975) and International Sales-Rentals Leasing Company v. Nearhoof, 251 So.2d 349 (Fla.3d DCA 1971).

Accordingly, no reversible error having been made to appear, appellant’s conviction must be and is hereby affirmed.

Affirmed.


text:
    Jose SUAREZ, Appellant, v. Yolanda SUAREZ, Appellee.
    No. 76-1102.
    District Court of Appeal of Florida, Third District.
    Sept. 27, 1977.
    Tobin & Fisch and Donald E. Krentsa, Miami, for apipellant.
    Dubbin, Schiff, Berkman & Dubbin and Evan J. Langbein, Miami, for appellee.
    Before PEARSON, NATHAN and HUB-BART, JJ.
   PER CURIAM.

Affirmed on the authority of Shaw v. Shaw, 334 So.2d 13 (Fla.1976); Krasner v. Krasner, 339 So.2d 674 (Fla.3d DCA 1976); Herzog v. Herzog, 346 So.2d 56 (Fla.1977).


text:
    Norman A. COLL, Appellant, v. Nancy P. COLL, Appellee.
    No. 76-1592.
    District Court of Appeal of Florida, Third District.
    Sept. 27, 1977.
    Quinton, Leib & Lummus and Karl J. Leib, Jr., Miami, for appellant.
    James F. Dougherty, II, Miami, for appel-lee.
    Before PEARSON, NATHAN and HUB-BART, JJ.
   PER CURIAM.

Affirmed. See Pfohl v. Pfohl, 345 So.2d 371, 379 (Fla.3d DCA 1977); Ochoa v. Ochoa, 275 So.2d 267 (Fla.3d DCA 1973); Lee v. Lee, 262 So.2d 6 (Fla.4th DCA 1972); Williams v. Williams, 177 So.2d 865, 867 (Fla.3d DCA 1965).


text:
    FIDELITY AND CASUALTY COMPANY OF NEW YORK, Appellant, v. Richard MORENO and Pilayo Moreno, Appellees.
    Nos. 76-1695 and 76-1696.
    District Court of Appeal of Florida, Third District.
    Sept. 27, 1977.
    Thornton, Dougherty, Conroy & Herndon and John Edward Herndon, Jr., Miami, for appellant.
    West, Friesner & Goldman and Murray Goldman, Miami, for appellees.
    Before BARKDULL, HAVERFIELD and HUBBART, JJ.
   HUBBART, Judge.

By this appeal, we are asked to review a $68,500 money judgment rendered in a declaratory decree action in favor of an insured [Richard Moreno] against his uninsured motorist carrier [Fidelity & Casualty Co. of New York] for injuries sustained by the insured in an automobile accident with an uninsured motorist. Fidelity appeals and contends inter alia that it is entitled to a set-off for the $5,000 personal injury protection benefits received by the insured from another insurance carrier [Resources Insurance Co.] as compensation for injuries sustained in the same automobile accident. We agree and reverse.

The law is clear that uninsured motorist insurance constitutes excess coverage and should not duplicate the same benefits available to the insured under the no-fault personal injury protection coverage. As such, the uninsured motorist carrier is entitled to a set-off for any such personal injury protection benefits received by its insured to be applied against the uninsured motorist claim. Stuyvesant Insurance Co. v. Johnson, 307 So.2d 229 (Fla. 4th DCA 1975), cert. den. 316 So.2d 290 (Fla.1975); Section 627.727(1), Florida Statutes (1975). See American Service Mutual Insurance Co. v. Wilson, 323 So.2d 645, 647 (Fla. 3d DCA 1975).

In the instant case, Fidelity was entitled to a set-off for the personal injury protection benefits received by Moreno to be applied against the uninsured motorist claim. We reverse the judgment appealed from and remand the cause with directions to give the appellant a $5,000 set-off from the total judgment awarded. In all other respects the judgment is affirmed.

Affirmed in part; reversed in part.

      . Pilayo Moreno was the named insured on the Fidelity policy. Richard Moreno is covered as an insured under the terms of the Fidelity policy because he is the named insured’s son and was living with the named insured at the time of the accident.


text:
    Raymond MILLER v. MERRIL J. BUSTER BROWN AND CONTINENTAL INS. CO.
    No. 60283.
    Supreme Court of Louisiana.
    Sept. 30, 1977.
   In re: Raymond Miller applying for cer-tiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of St. Mary, 346 So.2d 731.

Application denied.


text:
    Huey P. GUILLOT v. Andrew J. GUILLOT.
    No. 60266.
    Supreme Court of Louisiana.
    Sept. 30, 1977.
   In re: Andrew J. Guillot applying for :ertiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Lafourche, 146 So.2d 813.

Writ denied. Judgment not final.


text:
    STATE of Louisiana v. William R. DUDLEY, Jr.
    No. 60263.
    Supreme Court of Louisiana.
    Sept. 30, 1977.
   In re: William R. Dudley, Jr. applying for writ of certiorari.

Application denied; no merit in the application. C.Cr.P. 691, 693 & 592.


author: SUGG, Justice, PATTERSON, Chief Justice,

text:
    Frank COMBS and Jerry Combs, d/b/a Combs Construction Company v. Ellis ADAMS.
    No. 49960.
    Supreme Court of Mississippi.
    Sept. 7, 1977.
    Barry W. Gilmer, Michael J. Malouf, Jackson, for appellant.
    James H. Herring, Canton, Frank 0. Evans, Ridgeland, for appellee.
   SUGG, Justice,

for the Court:

This appeal is from a judgment of the Circuit Court of Madison County affirming an order of the county court upholding the validity of a sheriff’s sale under execution.

The issue is whether the sheriff’s sale is in compliance with the ten day advertisement requirements of Section 13-3-165 Mississippi Code Annotated (1972), when the first notice was posted on November 14, 1975, and the sale occurred on November 24, 1975. Section 13-3-165 provides:

Sales of personalty may be made on any day except Sunday, and shall be advertised ten days before, the day of sale by posting notices of the time, terms, and the place of sale in three public places in the county, one of which shall be at the courthouse.

We affirm and hold that notice of sale was given for the time required by statute when the number of days is computed in accordance with the formula prescribed by Section 1-3-67 Mississippi Code Annotated (1972) which states:

When process shall be required to be served or notice given any number of days, the day of serving the process or of giving the notice shall be excluded and the day of appearance included; and in all other cases when any number of days shall be prescribed, one day shall be excluded and the other included. When the last day falls on Sunday, it shall be excluded; but in other cases Sunday shall be reckoned in the computation of time. (Emphasis supplied).

No cases involving computation of time for a sheriffs sale under execution have been cited and we find none, but hold that the rationale of our cases applying Section 1-3-67 to statutes involving process applies. Section 11-7-121 Mississippi Code Annotated (1972) provides that cases in circuit court shall not be tried before the next succeeding term without the consent of parties, “except in actions in which the defendant has been personally served with process for thirty (30) days before the return day,

In Mississippi Central R. Co. v. Aultman, 173 Miss. 622, 160 So. 737 (1935) the argument was advanced that resort could not be had to Section 1-3-67 (then Section 1397 Mississippi Code of 1930) because Section 11-7-121 (the Section 575 Mississippi Code of 1930) provided that trial could not be had at the return term unless there has been service of process for thirty days before the return day. The Court rejected the argument, applied Section 1-3-67 and held that a case was triable at the return term where summons was served on July 21, 1934, returnable August 20, 1934, the first day of the next term.

We have also applied Section 1-3-67 in construing Section 13-3-11 Mississippi Code Annotated (1972) which requires the appearance of a defendant in circuit court when summons has been executed five days before the return day. In Alexander v. Killebrew, 321 So.2d 488 (Miss.1975) we held:

The appearance of a defendant upon whom a circuit court summons is served must be made in that court at the return term if the process “be executed five days before the return-day thereof.” Miss.Code Ann. § 13-3-11 (1972).
Here the requirement of section 13-3-11 was met. The requisite five days’ service was accomplished according to time computation formula provided by Mississippi Code Annotated section 1-3-67 (1972), which states: “ . . . the day of serving the process shall be excluded and the day of appearance included . . . ” In Strain v. Gayden, 197 Miss. 353, 360, 20 So.2d 697, 698 (1945), we held that process served on Wednesday, October 27, 1943, returnable to Monday, November 1, 1943, the first day of a court term was “five days” process and that a judgment thereon was not “void or even erroneous.”
It follows that the default judgment originally entered on October 23, 1973, was legally entered and became a valid final judgment when the term adjourned three days later. (321 So.2d at 490).

We hold that the rule laid down in Aultman, Alexander and Strain applies in this case. Notice was posted on November 14th and the sale was made on November 24th. When the day of posting notice is excluded and the day of sale is included, the requisite ten days notice of sale was given in accordance with the formula prescribed in Section 1-3-67 as construed in the three cases cited above.

Our conclusion is strengthened by our holding in Donald v. Commercial Bank, 132 Miss. 578, 97 So. 12 (1923). The issue in Donald was the sufficiency of notice of a foreclosure sale. Publication was made on January 12, 19 and 26 for a sale to be held on February 2. The Court’s task was to construe the notice requirements of Section 2722 Mississippi Code of 1906, which provides: “Sale of land shall be advertised for three consecutive weeks preceding such sale in a newspaper published in the county.” Argument was made that the day of publication and the day of sale must both be excluded and that twenty-one days must come between these two days. This contention was rejected by the Court, which stated:

Whether the time to be counted be weeks or days, both under the common-law and under our statutes, the first day is to be excluded and the last included. (132 Miss, at 585, 97 So. at 13).

It is argued that Section 1-3-67 does not apply to statutes prescribing days for notice of sale because of the following statement in Mississippi Central R Co. v. Aultman, supra:

Section 1397, Code 1930, is exclusively a process statute and is universal in its application, unless there is a different specific method of computing time laid down in the particular statute under consideration. That is not true of section 575. (173 Miss, at 640, 160 So. at 739).

In Aultman the Court was considering a process statute and not the statute dealing with notice required by a sheriff’s sale under execution; therefore, the quoted portion of the opinion is obiter dictum.

We did not follow the dictum in Aultman in the cases of Gulf, Mobile & Ohio R R. Co. v. Forbes, 228 Miss. 134, 87 So.2d 488 (1956) and Marlboro Shirt Co. v. Whittington, 195 So.2d 920 (Miss.1967). In these cases we applied Section 1-3-67 (then Section 705 Mississippi Code Annotated 1942) in computing the number of days within which an appeal to the Supreme Court must be taken, and in computing the number of days within which a claimant must file notice of appeal from a decision of the attorney-referee of the Workmen’s Compensation Commission.

It is also argued that Section 1-3-1 Mississippi Code Annotated (1972) applies to this case. This section states:

This chapter is applicable to every statute unless its general object, or the context of language construed, or other provisions of law indicate that a different meaning or application was intended from that required by this chapter.

We hold that Section 1-3-1 has no application because the statute prescribing the notice for sales of personalty does not indicate that a different meaning or application was intended from that required by Section 1-3-67. It is clear that Section 1-3-67 applies in all cases where days are to be computed unless a different formula is contained within the particular statute prescribing a number of days.

AFFIRMED.

INZER and SMITH, P. JJ., and ROBERTSON, BROOM, LEE and BOWLING, JJ., concur.

PATTERSON, C. J., and WALKER, J., dissent.

PATTERSON, Chief Justice,

dissenting:

I dissent with some misgivings. This is because of the general reliance of the bench and bar upon Mississippi Code Annotated section 1-3-67 (1972) for computing time, and I do not desire to confuse the issue. However, it is my opinion that the legislature has stated unambiguously the time for advertisement preceding a sheriff’s sale. I hope, probably forlornly, that the differences arising from the majority and dissenting opinions will provoke the practical solution of attorneys giving ample time for advertisement rather than grasping the last second for compliance.

Mississippi Code Annotated section 13-3-165 (1972) provides:

When sales of personalty may be made; advertising of sale. ••
Sales of personalty may be made on any day except Sunday, and shall be advertised ten days before the day of sale by posting notices of the time, terms, and place of sale in three public places in the county, one of which shall be at the courthouse. (Emphasis added.)

The emphasized portion of the statute unequivocally states the advertisement shall be for ten days before the day of sale. This explicit language, in my opinion, eliminates the inclusion of the sale day as one of the ten days of advertisement.

Ordinarily, when the last day cannot be included in the computation of time composed of days, the first day is included. The question, as I view it, is: If the day of sale by the terms of the statute cannot be included as a day of advertisement, can the first day of advertisement be included to gain the required ten days? I think it cannot because this Court has held that a day begins at midnight and ends the following midnight. Mississippi Benefit Association v. Brooks, 184 Miss. 451, 185 So. 569 (1939); and in Panneil v. Glidewell, 146 Miss. 565, 111 So. 571 (1927), we stated:

A day is that space of time which elapses between two successive midnights. . . . As a general rule there are no fractions of a day in law. (146 Miss, at 568, 111 So. at 572)

And in O’Quinn v. State, 131 Miss. 511, 95 So. 513 (1923), a criminal case, we held that an “entire day” is not merely a consecutive period of twenty-four hours, but is rather the passage of twenty-four hours beginning at one midnight and ending at the next.

Assuming, as I do, that the advertisement was not posted at the very instant November 14 arrived, but during normal business hours of that day, the first full day of advertisement — remembering that days are not to be fractured — began on November 15 which, by my count, would leave only nine days of advertisement, or if fractions of days could be indulged, only nine and a fraction days, neither in compliance with the statute.

I think the legislative intention for requiring ten days advertisement of sale was for the purpose of giving timely notice so that the property sold under distress might attract as many prospective purchasers as possible and that we should not encroach upon that time by using a general statute of computation as distinguished from a specific statute on sales. I, therefore, respectfully dissent.

WALKER, J., joins in this dissent.


author: MICHAEL SULLIVAN, Commissioner

text:
    Helen B. BLACKMON v. Edward H. BLACKMON.
    No. 49590.
    Supreme Court of Mississippi.
    Sept. 21, 1977.

      Ramsey, Bodron, Thames & Robinson, Lee Davis Thames, Vicksburg, for appellant.
    Loyacono & Field, R. Louis Field, Vicksburg, for appellee.
    Before SMITH, P. J., BROOM and LEE, JJ., and SULLIVAN, C.
   MICHAEL SULLIVAN, Commissioner

for the Court:

Appellant, Helen B. Blackmon, filed a petition for partition in the Chancery Court of Warren County, Mississippi, against her former husband, Edward H. Blackmon. The property sought to be partited was residential, and appellant had been awarded exclusive use and occupancy of the house in the decree of divorce between these same parties. The appellee resisted the partition suit, although his pleadings admit the land was not subject to partition in kind. The chancellor dismissed the bill at the cost of the appellant and with prejudice.

Appellant’s first assignment of error is that the prior decree of divorce granting the appellant exclusive use of the house did not create a property right in the appellant that would defeat her own partition action. With this proposition we must concur. The position of the appellee that Mrs. Black-mon’s right to exclusive occupancy defeated her statutory right to partition, however appealing, is without merit. These parties were tenants in common, and appellant was the tenant in possession. The partition of land in this state is governed by Mississippi Code Annotated, Section 11-21-3 (1972) which provides:

§ 11-21-3. Partition by decree of chancery court.
Partition of land held by joint tenants, tenants in common, or coparceners, having an estate in possession or a right of possession and not in reversion or remainder, whether the joint interest be in the freehold or in a term of years not less than five, may be made by decree of the chancery court of that county in which the lands or some part thereof, are situated; or, if the lands be held by devise or descent, the division may be ordered by the chancery court of the county in which the will was probated or letters of administration granted, although none of the lands be in that county.
However, any person owning an indefeasible fee simple title to an undivided interest in land may procure a partition of said land and have the interest of such person set apart in fee simple free from the claims of life or other tenants, re-maindermen or reversioners, provided the life or other tenants, and other known living persons having an interest in the lands, are made defendants if they do not join in the proceeding as complainants or petitioners.

Mrs. Blackmon, as a tenant in common before the divorce with an undivided one-half interest in the property, has the same status following the divorce. Clearly she comes within the purview of § 11-21-3.

In Mississippi it is well settled that a dissolution of a marriage by divorce does not, of itself, affect title of the respective parties to real estate owned by them. Miller v. Miller, 298 So.2d 704 (Miss.1974). It is clear that Mrs. Blackmon received no property right by virtue of the divorce decree which could defeat a partition suit. The appellee concedes that the case law in our state supports the appellant’s view but distinguishes the present case on the basis that there was no in depth examination as to the best interest of the minor children or any material change of circumstances by which the divorce decree could be modified. We concede that the appellant could have sought to partite the homestead by filing a petition to modify the decree. However, she elected not to do so and to exercise her statutory right to a separate suit to partite. In Lynch v. Lynch, 196 Miss. 276, 17 So.2d 195 (1944), this Court held that all that was necessary for a partition is that the parties be co-tenants of whatever is to be partitioned. In Barnes v. Rogers, 206 Miss. 887, 893, 41 So.2d 58, 60 (1949) it is stated:

Possession, or the right of possession, in the tenants in common gives an absolute and unconditional right to partition however inconvenient it may be to make.

We are of the opinion that appellant had the right to bring the suit for partition and that the denial of such right on the ground that the divorce decree had created a separate property right was error.

Appellant secondly contends that the divorce decree did not create a homestead right in the appellant or appellee which would defeat the partition action. Mississippi Code Annotated, Section 85-3-21 (1972) states:

§ 85-3-21. Homestead exemption— land and buildings.
Every citizen of this state, male or female, being a householder, and having a family, shall be entitled to hold exempt from seizure or sale, under execution or attachment, the land and buildings owned and occupied as a residence by him, or her, but the quantity of land shall not exceed one hundred and sixty acres, nor the value thereof, inclusive of improvements, save as hereinafter provided, the sum of fifteen thousand dollars ($15,-000.00); provided, however, that in determining this value, existing encumbrances on such land and buildings, including taxes and all other liens, shall first be deducted from the actual value of such land and buildings. But husband or wife, widower or widow over sixty years of age, who has been an exemptionist under this section, shall not be deprived of such exemption because of not having family or not occupying the homestead.

Mississippi Code Annotated, Section 27-33-3 (1972) provides, in part:

§ 27-33-3. Homestead exemptions.
To recognize and give effect to the principle of tax-free homes as a public policy in Mississippi, to encourage home building and ownership, and to give additional security to family groups, it is hereby declared that homes legally assessed on the land roll, owned and actually occupied as a home by bona fide residents of this state, who are heads of families, shall be exempt from the ad valorem taxes herein enumerated, or not in excess of five thousand dollars of the assessed value thereof, including an area of land not in excess of that specified hereinafter in this article. The exemption from taxes shall be limited .

To be qualified for homestead in Mississippi, one must be a citizen, reside on the property and have a family. There are exceptions to the rule, as mentioned in the statute, but none apply here. Prior to the divorce, Mr. Blackmon resided in the home with his family and held homestead exemption thereto. Following the divorce, he neither lived on the property nor did he have a spouse living there. There is no evidence that he has even attempted to file for homestead exemption on the property. In May v. May, 229 Miss. 97, 90 So.2d 169 (1956), this Court held that where the husband lost his right to occupy the premises, he lost his homestead right, also. Therefore, it is clear that Mr. Blackmon held no homestead exemption on the property which could be used to defeat the partition action. The record indicates that following the divorce Mrs. Blackmon filed for the exemption in her own name, and it was granted.

The divorce decree did not create the homestead right in Mrs. Blackmon because she already had a homestead right in the property. Therefore, the divorce decree created no homestead right that would prevent a partition of the property under the governing statutes and the facts in evidence in this case.

Appellant’s third proposition is that the existence of homestead rights in one co-tenant does not defeat the right of partition by the other co-tenant. Discussion of this assignment of error is closely related to Assignment No. 2. The right to partition pursuant to Mississippi Code Annotated, Section 11-21-3 (1972), makes no mention of homestead. The only existing statute which refers to both the homestead and partition is Mississippi Code Annotated, Section 91-1-23 (1972), which provides:

§ 91-1-23. Exempt property not to be partitioned in certain cases.
Where a decedent leaves a widow to whom, with others, his exempt property, real and personal, descends, the same shall not be subject to partition or sale for partition during her widowhood as long as it is occupied or used by the widow, unless she consent. Likewise, where a decedent leaves a widower to whom, with others, her exempt property, real and personal, descends, the same shall not be subject to partition or sale for partition during the period of his being a widower as long as it is occupied or used by the widower, unless he consent.

This code section is obviously inapplicable because neither appellant nor appellee is deceased. Absent any contrary authority, the sound rule is that Mr. and Mrs. Black-mon are merely unmarried tenants in common, and under the statute a partition sale should be ordered. The existence of homestead rights, if any, in appellant is irrelevant in this case, since she waived them by bringing the suit for partition sale.

The appellant also argues that she should have been allowed a solicitor’s fee to be made a charge against the property. We cannot agree. Mississippi Code Annotated, Section 11-21-31 (1972), provides, among other things:

In all cases of the partition or sale of property for division of proceeds, the court may allow a reasonable solicitor’s fee to the solicitor or the complainant, to be taxed as a common charge . . (Emphasis added).

The appellant’s contention that appellee here had no real defense to the partition action and that no controversy existed has no merit. The case law interpreting § 11-21-31 clearly directs the opposite result. In Dailey v. Houston, 246 Miss. 667, 684-5, 151 So.2d 919, 927 (1963), the Court held:

This statute was intended primarily to give a fee to the solicitor who conducts the suit without resistance. Where there is a real controversy, and it is proper for defendants to be represented by counsel of their own choosing, the fee permitted by section 975 [now Section 11-21-31], to be taxed as a common charge upon all of the interests, should not be allowed. This is especially so where, as here, a defendant is successful in part, by preserving some of his claims, through his own initiative and the efforts of his own counsel.

See also Billingsley v. Billingsley, 114 Miss. 702, 75 So. 547 (1917); Hardy v. Richards, 103 Miss. 548, 60 So. 643 (1912); Hoffman v. Smith, 61 Miss. 544 (1884).

In Brower v. Rosenbaum & Little, 125 Miss. 87, 91, 87 So. 130, 131 (1921), the Court held:

In the case at bar there was a real contest as to whether or not the complainants were the co-owners of the timber with the Browers, and whether or not they were entitled to maintain the suit. The defendants the Browers contested this title in good faith, and resisted a sale of the timber for a division of the proceeds. This being true, the court below erred in making this fee a common charge upon the entire proceeds derived from the sale of the timber, (emphasis added).

In addition, this Court has held in White v. Brown, 204 So.2d 440 (Miss.1967), that the court cannot award attorneys fees under the statute until partition in kind or sale for division of proceeds has been completed and approved by the court.

Further, applying § 11-21-31, the Court finds that the statute is not mandatory but discretionary, and the express language is “the Court may allow a reasonable solicitor’s fee to the solicitor or the complainant”. We cannot say from the record that the denial of attorneys fees to be taxed as a common charge on all of the interests and paid out of the proceeds in the case of a sale was an abuse of discretion on the part of the chancellor.

For the reasons set forth above, the petition for partition or sale should not have been dismissed, and the judgment of the court below is reversed and judgment entered here to allow partition. The cause is remanded with direction to hold the sale not inconsistent with the direction of this opinion. While we affirm the chancellor on his denial of attorneys fees, at the conclusion of the sale he may, in his discretion, consider whether such fees should be allowed.

REVERSED AND REMANDED.

PATTERSON, C. J., INZER and SMITH, P. JJ., and ROBERTSON, SUGG, WALKER, BROOM, LEE and BOWLING, JJ., concur.

      . Sitting pursuant to Chapter 430, Laws of 1976. The above opinion is adopted as the opinion of the Court.