author: PEARSON, Judge. BARKDULL, Judge,

text:
    Charles Lawrence GORDON, Jr., Appellant, v. Donna Marie GORDON, Appellee.
    No. 78-1020.
    District Court of Appeal of Florida, Third District.
    April 3, 1979.
    Alden Sanford Tarte, Miami, for appellant.
    Lawrence J. Spiegel and Peter Slavis, Hialeah, for appellee.
    Before HAVERFIELD, C. J., and PEARSON and BARKDULL, JJ.
   PEARSON, Judge.

The issue for decision on this appeal is whether the plaintiff-wife has been a resident of the State of Florida for the six month period which is requisite to jurisdiction under Section 61.021, Florida Statutes (1977). The plaintiff-wife filed a petition for dissolution of marriage in August of 1977 in which she alleged that she was a bona fide resident of the State of Florida for the required period, that the parties were married in Dade County, Florida, and that the defendant-husband’s last known “residence and/or address is 6413B Louisiana Avenue, Plattsburgh AFB, New York 12903.” The defendant-husband appeared and moved to dismiss the cause upon the ground that “The Petitioner, Donna Marie Gordon, has been a bona fide resident of Plattsburg, New York for the six month period prior to the filing of this petition for dissolution of marriage.” The trial judge reserved ruling on the defendant’s motion and after hearing the cause on the merits, granted a final judgment dissolving the marriage. This appeal is by the defendant-husband from the final judgment. The first point presented urges that the trial court did not. have jurisdiction pursuant to Section 61.021, Florida Statutes (1977). A second point claims error upon the establishment of a record pursuant to Florida Rule of Appellate Procedure 9.200(b)(3). This latter point does not present error and need not be discussed.

With regard to jurisdiction of the subject matter, the record reveals that prior to the institution of this lawsuit, Donna Marie Gordon moved to the State of Florida (approximately fourteen years ago). She was a full-time resident of Hialeah, Florida, and attended and graduated from high school there. She obtained a Florida Driver’s License and Florida Voter’s Registration card. She was married in Hialeah, Florida, and lived there over one and a half years after being married.

Subsequent to marriage, defendant Charles Lawrence Gordon enlisted in the United States Air Force and was stationed, in part, in the states of Arizona and New York.

Donna Marie Gordon was physically absent from the State of Florida for approximately two and a half years prior to the filing of the dissolution of marriage proceeding.

Donna Marie Gordon testified that it was always her intent to make a permanent home in the State of Florida, that she did not change her intent while out of the state and that she was absent in order to accompany her serviceman-husband.

She maintained a mailing address in Hialeah, Florida, at all times and some of her personal possessions, including wedding gifts, were kept in Hialeah, Florida.

The finding of the trial court upon the issue was as follows:

“. . . Donna Marie Gordon, was a resident of the State of Florida as is required by statutory law, and that she had at all times the intent to be and remain a permanent resident and citizen of Florida, and that she openly manifested such intent at all times. It was the finding of the Court that Donna Gordon left the State of Florida on a temporary basis for the sole purpose of accompanying her serviceman-husband who was assigned to duty outside the State of Florida.”

We have recently had an occasion, in Bolles v. Bolles, 364 So.2d 813 (Fla. 3d DCA 1978), to hold that a wife’s domicile generally follows that of her husband, at least during the period of marriage when they reside together; citing Frank v. Frank, 75 So.2d 282 (Fla.1954); and Minick v. Minick, 111 Fla. 469, 149 So. 483 (1933).

The wife relies upon the holdings in Sheppard v. Sheppard, 286 So.2d 37 (Fla. 1st DCA 1973); and Jeffries v. Jeffries, 133 So.2d 751 (Fla. 3d DCA 1961), for her position that she did not lose her Florida residence when she followed her husband out of the state. She admits that each of these cases concerns servicemen and not their wives, but she urges that the same rule should be applied to the wives of servicemen.

In Jeffries, this court held that the appellant-husband, a Florida resident and a career naval officer who had been on continuous active duty in various parts of the United States, would have the benefit of Section 46.12, Florida Statutes (1943), and would be deemed a resident of the state for the purposes of maintaining suit for divorce.

In Sheppard, the District Court of Appeal, First District, held that a serviceman who had established a permanent residence in Florida was not deprived of that residence by sojourns on tours of duty outside this state. The court applied Section 46.12, Florida Statutes (1943). The court held:

* * * * * *
“There is no indication that appellant has ever established a permanent residence in a state other than Florida. The record overwhelmingly establishes that appellant meets the residency requirements of F.S. § 61.021, F.S.A.”

The plaintiff-wife here is in a remarkably similar situation unless her residence followed that of her husband. There is no showing in the record that the husband is a resident of Florida or has continuously, from any prior residence in Florida, intended to maintain his residence in the State of Florida. Residence and domicile may be different in a particular ease. See Campbell v. Campbell, 57 So.2d 34 (Fla.1952); Minick v. Minick, 111 Fla. 469, 149 So. 483 (1933); and Brown v. Brown, 123 So.2d 382 (Fla. 2d DCA 1960). That distinction is not important under the facts of the instant case because there is no doubt that the plaintiff-wife was absent from the State of Florida during the critical period.

For the trial court to have had jurisdiction of the wife’s complaint, it would be necessary.to hold that the wife at all times during the marriage and while she was living with her husband out of state, maintained a residence in Florida apart from her husband. We are aware that the position of married women has changed a great deal since the formulation of some of the ideas applied in the cases cited. We do not think' that the change requires an abandonment of the idea that a wife’s residence is normally that of the husband. The family relation presupposes that the wife and mother will have a residence with the family. In the instant case, the family was in New York until the separation of the parties. We hold that for the wife to establish a residence different from that of her husband, she must do so after a break-up of the marriage relationship.

We rely upon those cases holding that the statutory requirement for residence for a specific period means actual and not constructive residence. See Campbell v. Campbell, 57 So.2d 34 (Fla.1952); and Wise v. Wise, 310 So.2d 431 (Fla. 1st DCA 1975). It is clear from the record before us that this' did not occur so far as the plaintiff here is concerned six months prior to the filing of the complaint for dissolution of marriage.

The final judgment is reversed with directions to dismiss the cause without prejudice.

Reversed.

BARKDULL, Judge,

dissenting.

I have reviewed the opinion authored by Judge Pearson and cannot concur.

I would hold that a wife of a military man is entitled to the same benefits of Section 46.12, Florida Statutes (1943) as her husband. Therefore, I would affirm.

      . “47.081 Military, naval or other service as residence. Any person in any branch of service of the United States, including military and naval service, and the husband or the wife of any such person, if he or she is living within the borders of the state, shall be prima facie a resident of the state for the purpose of maintaining any action.”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Juan RODRIGUEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1031.
    District Court of Appeal of Florida, Third District.
    April 3, 1979.

      Sugarman & Arnold, Coral Gables, for appellant.
    Jim Smith, Atty. Gen., and James H. Greason, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, J., and CHARLES CARROLL (Ret.), and EZELL, BOYCE F., Jr. (Ret.), Associate Judges.
   PER CURIAM.

Juan Rodriguez appeals from a judgment of conviction entered upon a jury verdict of guilty to the charge of aggravated battery with a deadly weapon. We reverse and remand with directions to dismiss the defective information filed against the appellant.

The trial court erred when it denied the appellant’s motion to dismiss the information where that information failed to recite the essential facts constituting the offense of aggravated battery. See Fla.R.Crim.P. 3.140(b) and 3.140(d). Ferrell v. State, 358 So.2d 843 (Fla. 3d DCA 1978) is squarely on point and is dispositive of this appeal. The information sub judice charging aggravated battery is not significantly different from that set forth in Ferrell. Accordingly, the information was defective and should have been dismissed.

We have carefully considered the appellant’s remaining points on appeal, particularly the issue regarding whether he was entitled to discharge for a speedy trial violation. We find these points to be without merit. See generally State ex rel. Hanks v. Goodman, 253 So.2d 129 (Fla.1971); Savinon v. State, 277 So.2d 58 (Fla. 3d DCA 1973); Fla.R.Crim.P. 3.191(c).

Reversed.


author: KEHOE, Judge.

text:
    BERNUTH MARINE SHIPPING, INC., Appellant, v. INTEGRATED CONTAINER SERVICE, INC., Appellee.
    Nos. 78-1137, 78-1138.
    District Court of Appeal of Florida, Third District.
    April 3, 1979.
    Richard F. Ralph, Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O’Hara and Richard A. Sherman, From-berg, Fromberg & Roth and Jeffrey Michael Cohen, Miami, for appellant.
    Reginald M. Hayden, Jr., Miami, for ap-pellee.

      Before PEARSON, HENDRY and KE-HOE, JJ.
   KEHOE, Judge.

Appellant, defendant below, brings this appeal from a final judgment entered pursuant to a jury verdict and from the orders denying its motions to vacate and for relief from the judgment. We reverse.

In this case, appellant’s attorney of record in the trial court, failed to file a pre-trial catalogue pursuant to the trial court’s order for all parties to do so. (Appellant was one of four defendants below). The order also stated that “all attorneys [were] to appear for the call of the calendar the Thursday preceding the first trial week. Failure to appear may result in . the striking of the pleadings of the Defendant and entry of a default.” On the day of this calendar call, appellant’s attorney of record couldn’t attend so he sent another attorney from his office. This attorney arrived late and, although the judge was still on the bench, spoke to a person who advised him that appellant’s case was number six for trial. At that time, the substitute attorney did not learn that appellant’s pleadings had been struck for the failure of its counsel to appear at calendar call. Later, appellant’s attorney of record called the trial judge’s office to determine if he was number six on the first or second week of the trial period. He was told that the case was to be called in the first week. Thereafter, he waited for the judge’s office to notify him that it was his turn. On Wednesday of the trial period, the plaintiff and two of the other defendants who had appeared were noticed that their case was up. That afternoon a jury was selected. On Thursday morning, these parties settled and the plaintiff proceeded with its case against appellant and the remaining defendant. The trial court directed a verdict of guilty on the question of liability and submitted the damages issue to the jury. The jury then returned a verdict against appellant in the amount of $224,000. Thereafter, appellant’s attorney of record learned through his client that the case had been tried; he then moved to vacate the verdict and judgment. The motion was denied, and a final judgment was entered by the trial court against appellant. Thereafter, appellant’s new counsel filed a motion for relief from this final judgment; this motion was also denied. From the orders denying the motions to vacate and for relief from the judgment and the final judgment, appellant appeals.

Appellant contends that (1) being late for a calendar call or failing to submit a trial catalogue does not justify proceeding to a trial and entering a judgment against it; and (2) even if some sanction was justified, the trial court erred in not giving it notice or granting a hearing on the striking of the pleadings.

There is no question about the trial court’s authority to impose some sanction against appellant’s counsel for failing to submit a pre-trial catalogue or to appear at calendar call. However, under the facts of this case, in our opinion, it was too harsh a sanction to strike appellant’s pleadings and to proceed to a jury trial without giving it notice. See, e. g., W. G. C., Inc. v. The Man Co., 360 So.2d 1152 (Fla. 3d DCA 1978); Travelers Insurance Co. v. Rodriguez, 357 So.2d 464 (Fla. 2d DCA 1978); Graber v. Gassman, 321 So.2d 82 (Fla. 3d DCA 1975); Byron Holding Corp. v. Cohen, 284 So.2d 412 (Fla. 3d DCA 1968); and Ortiz v. Nicolaides, 196 So.2d 186 (Fla. 3d DCA 1967). Accordingly, the final judgment appealed is reversed and the cause is remanded to the trial court with directions to reinstate appellant’s pleadings and allow the matter to proceed to trial. However, the trial court may impose other appropriate sanctions in its discretion.

Reversed and remanded with directions.

      . One of the other defendants also failed to file a pre-trial catalogue or appear at calendar call. His pleadings were also struck; however, he is not a party to this action.


text:
    James Thomas HINGSON and Imogene Hingson Johnson, Appellants, v. Harold LANDEN, Appellee.
    No. JJ-319.
    District Court of Appeal of Florida, First District.
    April 4, 1979.
    Rehearing Denied April 30, 1979.
    Thomas W. Brown of Brannon, Brown, Norris, Vocelle & Haley, P. A., Lake City, for appellants.
    J. Victor Africano, Live Oak, for appellee.
   PER CURIAM.

Appellants, two of the children of O. M. and Esther Mae Hingson, seek review of a final judgment quieting title in appellee to 130 acres of land. The sole issue on appeal is whether appellee acquired title by adverse possession to a 70 acre parcel of the land which had constituted homestead property of O. M. Hingson. No issue has been raised in this court concerning the remaining 60 acres of the 130 acre parcel.

O. M. Hingson originally acquired title to the 70 acre homestead ■ parcel in his name. In October 1959, O. M. Hingson, joined by his wife, Esther Mae Hingson, for no consideration, attempted to create by deed an estate by the entireties in the 70 acre parcel. At the death of O. M. Hingson, he was survived by his widow, Esther Mae, and several lineal descendants, including appellants. Subsequently, in March 1964, Esther Mae Hingson attempted to convey to appel-lee by a warranty deed a fee simple interest in a parcel of land which included the 70 acre homestead parcel. Appellee went into possession of the homestead property pursuant to the deed, farmed the property, paid taxes thereon, and subsequently mortgaged the property. In September 1977, appellee brought the present action to quiet title to this property contending title had vested in him by virtue of adverse possession under color of title. The trial court found that appellee had perfected title to the homestead property in 1973, seven years after the statute of limitations began to run against appellants in 1966. We reverse.

The parties agree that upon the death of O. M. Hingson, Esther Mae Hingson took a life estate in the 70 acre parcel of the homestead property while a vested remainder in such property accrued to appellants as lineal descendants of O. M. and Esther Mae Hingson. Further, the parties acknowledge that as a general rule, neither the statute of limitations, laches, nor estop-pel will run against a remainderman prior to the termination of the life estate. However, appellee urges, and the trial court so found, that the exception to this general rule, enunciated in Commercial Building Company v. Parslow, 93 Fla. 143, 112 So. 378 (1927), governs the present case. In Commercial Building Company v. Parslow, the Supreme Court held that:

The [general] rule may not apply where it is shown that the remain-derman had actual knowledge of the repudiation or abandonment by the life tenant of his status as such, and of the holding by him of the property under a different and adverse right, or where the life tenant, in good faith and to the knowledge of the remainderman, claims title, not as a life tenant, but through some other source, or where there has been ouster and disseisin of the life tenant or by one claiming by, through or under him, and this under claim of right or color of title followed by adverse possession for the statutory period, or when there is some special independent equity in favor of the purchaser who claims under a conveyance from the life tenant. . . . Id., 112 So. at 381.

We find the exception enunciated in Commercial Building Company v. Parslow inapplicable to the facts, sub judice.

The trial court’s application of the Par-slow exception was predicated upon his findings that:

[A]s early as 1966, both Defendants knew that Esther Mae Hingson had conveyed the entire one hundred thirty acres to the Plaintiff, Harold Landen; thereafter, both Defendants acknowledged that Plaintiff, Harold Landen, held out the one hundred thirty acres as his own, paid the taxes thereon, mortgaged, farmed, and maintained same as his own * * * Defendants [,]... in-laws of the Plaintiff [,]... were well aware of his open, notorious and exclusive possession of said property since 1966. . . .

We find that none of the facts enumerated above nor none contained in the record were necessarily inconsistent with the life estate held by appellee by virtue of the deed from the life tenant, Esther Mae Hingson. The facts do not support a finding that it was clearly brought home to the remaindermen/appellants that either Esther Mae Hingson or appellee, claiming title through Esther Mae Hingson, had repudiated or abandoned his status as a life tenant. The facts do not show actual knowledge by the remaindermen that Esther Mae Hing-son had purported to transfer to appellee a fee simple interest in the property. Since the life estate had not “fallen in” and since knowledge of the adverse claim of title was not brought home to the remaindermen, the statute of limitations did not run against the remaindermen/appellants.

Accordingly, that portion of the final judgment quieting title to the 70 acre parcel in appellee is reversed and the cause is remanded for entry of a judgment in accordance with the principles stated herein.

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


author: GRIMES, Chief Judge.

text:
    John UPLEDGER and Diane Upledger, his wife, Appellants, v. VILANOR INCORPORATED, a Florida Corporation, Victor Kingdon and Larry Williams, Appellees.
    No. 78-156.
    District Court of Appeal of Florida, Second District.
    April 4, 1979.

      Wayne J. Boyer, of Wayne J. Boyer, P. A., Clearwater, for appellants.
    N. S. Gould, of Phillips, McFarland, Gould, Wilhelm & Wagstaff, P. A., Clear-water, for appellees.
   GRIMES, Chief Judge.

This case involves the extent to which a person may rely upon a misrepresentation of fact without verifying its accuracy.

The appellants (purchasers) bought an apartment building from appellees (sellers). Later, the purchasers sued the sellers for damages, contending that the sellers had knowingly made certain false representations to them with respect to the building. The purchasers alleged that they relied upon these misrepresentations and that had the truth been known to them they would not have gone through with the purchase. The sellers obtained a summary judgment.

The purchasers’ evidence indicated that the sellers had told them that certain of the apartments rented for specific amounts when, in fact, the rentals being collected from these apartments were substantially less. The purchasers further stated that the sellers advised them that the durations of the apartment leases were longer than they turned out to be. The sellers denied these assertions, but, because this appeal stems from a summary judgment, we must assume them to be true. The purchasers admitted that they had failed to check the accuracy of the alleged misrepresentations. The court ruled against the purchasers on the authority of Potakar v. Hurtak, 82 So.2d 502 (Fla.1955), and Folz v. Beard, 332 So.2d 129 (Fla. 2d DCA 1976).

In Potakar, the amended complaint alleged that in,the course of entering into a lease of a restaurant facility the defendant/lessor falsely stated that the previous lessee had made a profit. In fact, the restaurant had lost money for several years. The plaintiff/lessee alleged that he relied upon the statement in deciding to lease the premises and that he suffered damages by virtue of the fact that the business was not profitable and had never been profitable. In affirming the dismissal of the amended complaint, the supreme court discussed— and seemed to cite with approval — the following statement from 23 Am.Jur. Fraud and Deceit § 155 (19-):

“A rule which has been approved, and which combines those elements of both the objective and subjective tests which have been stated by the courts enunciating them to be desirable, is that in measuring the right to rely upon representations, every person must use reasonable diligence for his own protection. Under any standard of conduct, and in the absence of accompanying actual deception, artifice, or misconduct, it is well agreed that where the means of knowledge are at hand and are equally available to both parties, and the subject matter is equally open to their inspection, if one of them does not avail himself of those means and opportunities, he will not be heard to say that he was deceived by the other’s misrepresentations. * * * ”

Potakar v. Hurtak, supra at 504. The court held that the amended complaint did not allege facts which met the foregoing test.

Folz v. Beard, supra, involved a suit to rescind the sale of an employment agency on the basis of fraudulent misrepresentations. In reversing the judgment of rescission because of an erroneous jury instruction, this court said:

We think the charge is ambiguous, misleading, obviously incomplete and improperly states the applicable law. It is the rule in Florida that in the absence of a fiduciary relationship, or of actionable fraud inducing the representee to forbear investigation, or of circumstances making an investigation impossible, difficult, or expensive (none of which circumstances is established here), the representee is under a duty to exercise reasonable diligence for his own protection. Thus in the absence of accompanying undiscoverable deception, artifice, or misconduct, where the means of knowledge are at hand and are equally available to both parties and the subject matter is equally open to their inspection, if one of them does not avail himself of those means and opportunities he will not be heard to say that he was deceived by the other’s misrepresentations.

Folz, 332 So.2d at 130.

While acknowledging that these decisions lend support to the sellers’ position, the purchasers refer to several other cases which appear to be equally persuasive toward the purchasers’ view. Of particular significance is Board of Public Instruction v. Everett W. Martin & Son, Inc., 97 So.2d 21 (Fla.1957). In that case a contractor misrepresented to the school board the amount of money it had paid for substituted jalousies incorporated into a construction job in order to obtain a higher payment. The school board admitted that it had made no independent investigation of the amount which the contractor had actually paid for the jalousies. While the issue on appeal involved the giving of a challenged jury instruction and the refusal to give another, the court observed that the basic question of law in the case was whether a party may defend itself from a claim founded upon a fraudulent misrepresentation of fact by showing that the deceived party should have made an independent investigation to ascertain the truth or falsity of the rep-resentor’s statements. In reversing a judgment for the contractor the court held:

We are of the opinion that in this case, it was not the duty of the Board’s architects to investigate the cost of the substituted material purchased by the contractor. .
We believe that the Board and its agents, the architects, were justified in accepting the representation of the contractor that he paid a certain sum for the substituted jalousies without having to go to the company which sold the jalousies to the contractor to determine the price actually paid by the contractor.

Board of Public Instruction v. Everett W. Martin & Son, Inc., supra at 27.

A similar principle was announced in Martin v. Paskow, 339 So.2d 266, 267 (Fla. 3d DCA 1976). In affirming the rescission of the purchase of an apartment building for fraudulent misrepresentations, the court said:

Where the record shows that positive representations are made for the purpose of inducing a plaintiff to act to his detriment, the defendant cannot complain that the plaintiff did, in fact, rely upon the representations made.

See also Alepgo Corp. v. Pozin, 114 So.2d 645 (Fla. 3d DCA 1959).

Because the two lines of authority are difficult to reconcile, it may be beneficial to consider what others have said on the subject. After first explaining that misrepresentations of opinion and of law are not actionable, 12 Williston on Contracts § 1515B (3d ed. 1970) states:

The growing trend and tendency of the courts will continue to move toward the doctrine that negligence in trusting in a misrepresentation will not excuse positive willful fraud or deprive the defrauded person of his remedy. Especially where there is a relation of natural trust and confidence, although not strictly a fiduciary relation, the failure of the defrauded party to exercise ordinary prudence or vigilance will not deprive him of redress.
And so it is where one party has peculiar or superior knowledge of the facts which enhance the reliability of his statements. Nor does the fact that the representation concerns a matter of public record exonerate the defrauder from liability-

Section 540 of the Restatement (Second) of Torts (1976) provides:

§ 540. Duty to Investigate

The recipient of a fraudulent misrepresentation of fact is justified in relying upon its truth, although he might have ascertained the falsity of the representation had he made an investigation.

Comment:

a. The rule stated in this Section applies not only when an investigation would involve an expenditure of effort and money out of proportion to the magnitude of the transaction, but also when it could be made without any considerable trouble or expense. Thus it is no defense to one who. has made a fraudulent statement about his financial position that his offer to submit his books to examination is rejected. On the other hand, if a mere cursory glance would have disclosed the falsity of the representation, its falsity is regarded as obvious under the rule stated in § 541.

37 Am.Jur.2d Fraud and Deceit § 250 (1968) states:

§ 250. — Actual or active fraud; wilful misrepresentation.
In consideration of the effect of negligence of a representee on the right to rely, the policy of the law toward actual fraud must always be considered, since, under modern judicial concepts of social relationship, the actual wrongdoing of the representor is considered to outweigh the carelessness of the representee, at least in instances of actual machination and deception. It has frequently been stated or held that the doctrine of negligence does not authorize deception in what is said or unsaid, and hence, the effect of negligence on the part of the party deceived may be tolled by the active fraud of the other party. In other words, the rule sanctioned by most of the courts is that where one party to a transaction induces the other party to enter into it by wilful misrepresentation, he cannot escape liability for his fraud by showing that such party could have investigated the representations made and would then have found that they were untrue. According to this view, negligence in trusting a representation will not excuse a positive wilful fraud, and contributory negligence is generally held not to be a defense to deliberate, active, or wilful fraud.

Obviously, each case must be decided upon its own peculiar circumstances. On the one hand, if the alleged misrepresentation of fact is more in the nature of “puffing,” is patently incredible, or is obviously false, the complaining party should not be entitled to rely upon it. On the other hand, when a specific false statement is knowingly made and reasonably relied upon, we choose to align ourselves with the growing body of authorities which holds that the representee is not precluded from recovery simply because he failed to make an independent investigation of the veracity of the statement. This position is justified by either the desire to upgrade business morality or by the pragmatic view that, as between the two, a negligent party ought to prevail over a fraudulent party. Except when one should know better, it is anomalous to penalize a person for trusting what another says. A person guilty of fraudulent misrepresentation should not be permitted to hide behind the doctrine of caveat emptor.

In the instant case, the sellers, as owners of the building, had superior knowledge of the apartment rents and the terms of the leases. The purchasers had no reason to believe that the representations might be false. Therefore, it cannot be said, as a matter of law, that the purchasers must be denied recovery for failure to ascertain from the current tenants the rent they actually paid or to examine any leases which the sellers might proffer in order to verify their duration.

We recognize that our opinion may conflict with Potakar v. Hurtak, 82 So.2d 502 (Fla.1955), yet we are in harmony with the later case of Board of Public Instruction v. Everett W. Martin & Son, Inc., 97 So.2d 21 (Fla.1957). Despite the fact that Martin quoted Potakar and did not question its reasoning, we believe that the Martin holding necessarily destroyed the precedential value of Potakar. We hereby recede from Folz v. Beard, 332 So.2d 129 (Fla. 2d DCA 1976), to the extent that anything said therein conflicts with this opinion.

REVERSED.

BOARDMAN and RYDER, JJ., concur.


author: DANAHY, Judge.

text:
    Kenneth Raymond SIMS, Appellant, v. STATE of Florida, Appellee.
    No. 79-284.
    District Court of Appeal of Florida, Second District.
    April 4, 1979.
   DANAHY, Judge.

This is an appeal from the summary denial of a Florida Rule of Criminal Procedure 3.850 motion. We have reviewed appellant’s allegations and find that two do not state grounds for relief. However, we cannot say the same thing about appellant’s remaining allegations which concern the court’s failure to award credit time. Hence we reverse.

In his motion, appellant alleged that after he pled guilty to charges of possession of narcotics paraphernalia and possession of barbiturates, the court placed him on probation for a term of five years. He further alleged that he successfully completed three and one-half years of that probation, including a one-year stay at the Florida Turning Point Ranch. Thereafter, the court revoked probation and sentenced him to two consecutive five-year prison terms without giving him credit for time spent on probation. Appellant requested that the court correct his sentence by awarding credit. This the court refused to do.

While we agree with the trial court that under Section 948.06, Florida Statutes (1977), a defendant is not entitled to credit for time spent on probation, we must also note that a court is required to award credit for any time during which a defendant is incarcerated as a condition of probation. State v. Jones, 327 So.2d 18 (Fla.1976). Hence if appellant’s allegations are true and if confinement in the Florida Turning Point Ranch amounts to incarceration, appellant is entitled to credit for the year he spent at the ranch.

Accordingly, we remand this case for an evidentiary hearing at which the trial court must test the truth of appellant’s allegations and make a factual determination as to whether appellant was incarcerated and was therefore entitled to credit time.

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

      . The failure to award credit time is a matter which may be raised by way of a Rule 3.850 motion. Wright v. State, 355 So.2d 870 (Fla. 2d DCA 1978).

      . At the least we think that a defendant is incarcerated when he is confined in a governmental institution and his liberty is circumscribed to the extent that he is not free to leave without official permission.


text:
    STATE of Florida, Appellant, v. Alan D. BOYD, Appellee.
    No. 78-1538.
    District Court of Appeal of Florida, Second District.
    April 6, 1979.
    Jim Smith, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellant.
    Allen P. Allweiss, St. Petersburg, for ap-pellee.
   PER CURIAM.

Reversed on the authority of State v. Heape, 369 So.2d 386 (Fla.2d DC A 1979).

BOARDMAN, Acting C. J., and SCHEB and OTT, JJ., concur.


author: SCHEB, Judge.

text:
    Donna Mae HOWDESHELL, Lawrence M. Howdeshell, and Howdeshell Plumbing, Inc., Appellants, v. The FIRST NATIONAL BANK OF CLEARWATER et al., Appellees.
    No. 78-1880.
    District Court of Appeal of Florida, Second District.
    April 6, 1979.

      Neil R. Covert, of Gormin, Geoghegan, Easley & Gránese, P.A., Clearwater, for appellants.
    J. Paul Raymond and Stephen 0. Cole, of McMullen, Everett, Logan, Marquardt & Cline, P.A., Clearwater, for appellee First National Bank.
   SCHEB, Judge.

Appellants challenge entry of a summary final judgment in favor of appellee bank, arguing that appellee’s failure to controvert the affirmative defenses pled by appellants precludes summary judgment. We agree.

Appellee sued to foreclose a mortgage, and appellants responded by motion to dismiss. Before appellants filed an answer, appellee moved for summary judgment. With their subsequent answer, appellants asserted the affirmative defenses of extension of time for payment, estoppel, lack of consideration, laches and unconscionability. Appellee submitted nothing further, later arguing that the defenses asserted were insufficient. The trial court agreed with appellee and granted summary judgment.

In order for a plaintiff to obtain a summary judgment when the defendant asserts affirmative defenses, the plaintiff must either disprove those defenses by evidence or establish the legal insufficiency of the defenses. Stewart v. Gore, 314 So.2d 10 (Fla.2d DCA 1975). See Johnson & Kirby, Inc. v. Citizens National Bank of Fort Lauderdale, 338 So.2d 905 (Fla.3d DCA 1976); Pompano Paint Company v. Pompano Beach Bank & Trust Company, 208 So.2d 152 (Fla.4th DCA 1968). Appellee made no attempt to disprove the defenses. Its only affidavit was submitted before the affirmative defenses were filed, and, of course, did not address those defenses. Although in some instances such defenses as pled may merely raise “paper issues”, and summary judgment may still be proper, Home Federal Saving's & Loan Association of Hollywood v. Emile, 216 So.2d 443 (Fla.1968); Reflex, N.V. v. Umet Trust, 336 So.2d 473 (Fla.3d DCA 1976), the burden is on the moving party to show lack of any genuine issue of material fact. Without any eviden-tiary submission by appellee to refute the affirmative defenses, appellants had no duty to submit any evidence in support of its defenses. Skaf’s Jewelry, Inc. v. Antwerp Import Corp., 150 So.2d 260 (Fla.2d DCA 1963). Thus we need not consider the sufficiency of appellants’ affidavits.

Since the trial court’s summary judgment was not bottomed on a factual refutation of appellants’ affirmative defenses, we must determine whether the legal insufficiency of those defenses was demonstrated. While some of appellants’ affirmative defenses were either improper defenses to foreclosure of a mortgage or were inadequately pled, we nevertheless find two of appellants’ defenses legally sufficient.

Appellants’ first affirmative defense stated:

Defendants allege that Plaintiff, through oral representation and past conduct, has agreed to extend the time of payment of the Notes and Mortgages sought to be foreclosed herein for valuable consideration.

Generally, an oral modification of a written contract is valid. Such an agreement to extend the time for payment when given for a valuable consideration may be a defense to foreclosure. American Securities Co. v. Goldsberry, 69 Fla. 104, 67 So. 862 (1915). Therefore, appellants’ first defense sufficiently raises the affirmative defense of extension of time for payment.

Appellants’ third affirmative defense alleged:

Defendants allege that the second Note and Mortgage dated August 14, 1975, sought to be foreclosed herein fail for want of consideration in that no consideration flowed either from or to the above-captioned Plaintiff or Defendants herein, and as a result thereof, said second Note and Mortgage dated August 14, 1975, are unenforceable.

Lack of consideration is a defense to a contract action and likewise to a suit to foreclose a mortgage. Gabel v. Drewry’s Ltd., U.S.A., Inc., 68 So.2d 372 (Fla.1953). We note that one early Florida case found a simple statement of lack of consideration insufficient as an affirmative defense. Abren v. Willis, 6 Fla. 359 (1855). Ahren, however, was based on outmoded pleading practices and is contrary to modern trends holding a general averment sufficient. See 61 Am.Jur.2d Pleading § 166 (1972). We find a general averment of lack of consideration to be more consistent with the general rules of pleading contained in Fla.R.Civ.P. 1.110. So, appellants’ third defense sufficiently raises the defense of lack of consideration.

As noted, appellee’s motion for summary judgment and its supporting affidavit were filed before appellants filed their answer and affirmative defenses. The trial court, in its discretion, may grant appellee leave to file a new motion for summary judgment, or to supplement its prior motion with affidavits specifically directed to appellants’ affirmative defenses.

We reverse the order granting summary judgment and remand this cause for further proceedings consistent with this opinion.

BOARDMAN, A. C. J., and OTT, J., concur.


text:
    Dawna Michelle BERLIN, Appellant, v. Jerome BERLIN, Appellee.
    Nos. 78-355, 78-356 and 78-436.
    District Court of Appeal of Florida, Third District.
    April 10, 1979.

      Horton, Perse & Ginsberg and Mallory H. Horton, Brumer, Moss, Cohen & Rodgers, Miami, for appellant.
    Cypen & Nevins and Wayne A. Cypen, Miami Beach, for appellee.
    Before PEARSON, HENDRY and HUB-BART, JJ.
   PER CURIAM.

These three consolidated appeals arise from two, separate circuit court orders, each pertaining to custody of the same children.

The marriage of the parties was dissolved by a 1974 final judgment, incorporating a separation agreement giving custody of the children (Brett, now nine years of age, and Sharon, now seven years of age) to the mother, with liberal visitation rights awarded the father. In 1977, the father filed a motion to change custody based on substantial changes in the parties’ circumstances affecting the welfare of the children. The evidence showed that the husband’s new wife and the children have a good relationship, that the father can offer a stable family atmosphere, that the mother intended to move the children to Jacksonville thereby effectively reducing the father’s visitation rights and that the mother worked, with the children being sent to day care centers. Following several hearings and extensive testimony, including that of a court-appointed psychiatrist who interviewed parents and children, the court, by order dated January 18, 1978, found it in the best interests of the children to change custody to the father. On February 8,1978, without notice to the parties, the court, on its own motion, entered a second order amending the first order to reflect that the father be given “temporary custody” until the end of the school year or until June 10, 1978, whichever should come first, in order to allow proper continuity until the mother was psychiatrically and financially able to care properly for the children.

It is apparent that the court’s order of January 18, 1978, which found it in the best interests of the children to change custody to the father, is amply supported by evidence on this record. We, therefore, affirm this order on the basis of the principle in Bargeon v. Bargeon, 153 So.2d 10 (Fla.2d DCA 1963), and Rudolph v. Rudolph, 146 So.2d 397 (Fla.3d DCA 1962).

The question presented by the husband’s appeal from the order dated February 8, 1978, is whether the trial court had jurisdiction to enter the order where the time for rehearing had passed, where no matter was before the court by way of motion and where no further hearing was held. The wife, appellee in the appeal from the February 8, 1978, order, urges that the first order (of January 18, 1978) was, in actuality, a temporary order and that the court could, at any time, change the custody provisions contained therein. It is not necessary to determine whether the order was meant to be temporary or permanent at the time it was entered inasmuch as we hold that the trial court may not change a custody provision previously entered without a motion and new evidence before it. See Scheer v. Scheer, 132 So.2d 456.(Fla.3d DCA 1961), and Morrison v. Morrison, 122 So.2d 199 (Fla. 1st DCA 1960). Therefore, the order of February 8, 1978, is reversed.

Affirmed in part; reversed in part.


text:
    Martha J. JAMESON and George Ronald Jameson, Appellants, v. Edward Lee JAMESON, II, Appellee.
    No. 78-929.
    District Court of Appeal of Florida, Third District.
    April 10, 1979.
    Pelzner, Schwedock & Finkelstein and Peter S. Schwedock, Miami, for appellants.
    Berkell & Strauss, Miami, and Wesley A. Lauer, Hallandale, for appellee.
    Before HENDRY and KEHOE, JJ., and SCHULZ, GEORGE E. (Ret.), Associate Judge.
   SCHULZ, GEORGE E. (Ret.), Associate Judge.

Defendant in the trial court, Martha Jameson, appeals a final summary judgment that held certain deeds conveying homestead property from Martha Jameson’s husband to Martha and himself were nullities.

In December of 1974, Louis Jameson conveyed his homestead to Martha and himself as tenants by the entireties; Martha did not sign this deed. At a later date, Louis Jame-son and Martha Jameson conveyed the same property back to Louis Jameson individually. Then in January of 1977 Louis Jameson again transferred the property back to Martha Jameson and Louis Jame-son; Martha Jameson did not join in the execution of this deed either.

Subsequently, Louis Jameson died and his son, Edward, filed a declaratory action, individually, seeking to have the first and third deeds declared nullities. The case came on to be heard on motions for summary judgment filed by both parties. Both parties agreed that homestead property was involved and the only question to be decided was whether the deeds unsigned by Martha Jameson were nullities.

The trial court held that the deeds were nullities and that Martha Jameson, as wife of the deceased, was entitled to a life estate and that the two sons were entitled to one-half remainder interest in the homestead property. From this judgment, Martha Jameson takes this appeal.

It appears to this court that the question to be decided is the necessity of joinder of wife in a deed executed by the husband of his solely-owned property to himself and the wife to create a tenancy by the entireties. Article 10, Section 4(c), Constitution of the State of Florida provides:

“The homestead shall not be subject to devise if the owner is survived by spouse or minor child, except the homestead may be devised to the owner’s spouse if there be no minor child. The owner of homestead real estate, joined by the spouse if married, may alienate the homestead by mortgage, sale or gift and, if married, may by deed transfer the title to an estate by the entirety with the spouse.”

Said section clearly requires joinder of the wife where there is an attempt to alienate homestead property. However, the Legislature enacted Section 689.11(1), Florida Statutes (1971), which provided as follows:

“A conveyance of real estate, including homestead, made by one spouse to the other shall convey the legal title to the grantee spouse in all cases in which it would be effectual if the parties were not married, and the grantee need not execute the conveyance. An estate by the entirety may be created by the action of the spouse holding title.”

Section 689.11(1), supra, appears' to negate the constitutional provision requiring joinder by the spouse and, as such, would be violative of the Constitution and unconstitutional. Such was the holding in the case of Foerster v. Foerster, 300 So.2d 33 (Fla. 1st DCA 1974). However, on appeal of that ruling to the Supreme Court it reversed the District Court and upheld the constitutionality of Section 689.11(1), Florida Statutes (1971) under the factual circumstances involved in the Foerster case. See: Williams v. Foerster, 335 So.2d 810 (Fla.1976). In that case, the husband attempted, without joinder by the wife, to convey title to her in a homestead held by the parties as tenants by the entirety. The Supreme Court noted a distinction between inter-spousal aliena-bility of solely-owned homestead property and inter-spousal alienability of an estate by the entireties occupied by the parties as a home. See: Denham v. Sexton, 48 So.2d 416 (Fla.1950). In that case, the court said the following:

“The title to the property was held by an estate by the entireties. As respects property so held, it becomes upon the death of one spouse the sole property of the remaining spouse to the exclusion of the heirs of the decedent, even though occupied during the lifetime of both parties as a homestead. The homestead provisions of the Constitution adopted for the benefit of [the] heirs of the head of a family to take effect upon his demise do not apply to such property and it may be disposed of by tenants by the entireties as may any other property not exclusively owned by the head of a family and occupied by him as a homestead.”

Thus, it would appear that in cases where the property is owned by the parties as tenants by the entireties, Section 689.-11(1), supra, applies and it is not necessary for the grantee spouse to join in the conveyance to effect a valid inter-spousal alienation of the homestead property.

However, in the instant case, this would not be true. Here, the husband (by a deed not joined in by the wife) attempted to alienate his solely-owned homestead by creating in the parties a tenancy by the entire-ties. Following the implied rationale of the Supreme Court in Williams v. Foerster, supra, such attempt collides with the homestead provisions of the Constitution by depriving the heirs of the husband of their constitutional right to take upon his demise. Therefore, the provisions of the Constitution requiring joinder by the spouse should be required where there is an inter-spousal alienation of solely-owned homestead property. To hold otherwise would be to defeat the tradition of the homestead law, which is namely to protect the heirs of the deceased.

Therefore the deeds in the instant case, creating the tenancy by the entirety, not having been executed in compliance with Article 10, Section 4, Constitution of the State of Florida, are a nullity, and the final summary judgment here under review be and the same is hereby affirmed.

Affirmed.


text:
    Goldwyn CHRISTENSSON and Elaine Christensson, Ms wife, Appellants, v. Robert PLOTNER, Appellee.
    Nos. 78-932, 78-955 and 79-324.
    District Court of Appeal of Florida, Third District.
    April 10, 1979.
    Ezzo, Garel & Saylor and Arthur M. Gar-el; Talburt, Kubicki & Bradley, Miami, for appellants.
    Kuvin, Klingensmith & Lewis and R. Fred Lewis, Coconut Grove, for appellee.
    Before HENDRY and KEHOE, JJ., and SCHULZ, GEORGE E. (Ret.) Associate Judge.
   KEHOE, Judge.

Appellants, plaintiffs below, bring this appeal from an adverse final summary judgment entered by the trial court, in an automobile accident case, in favor of appel-lee, defendant below, on the issue of liability and appellee’s counterclaim. We reverse for the reason that at the time the final summary judgment was entered there existed genuine issues of material facts which were not resolved by the pleadings, etc. Under these circumstances, pursuant to Florida Rule Civil Procedure 1.510, summary judgment was improperly entered. Accordingly, the final summary judgment appealed is reversed and the cause is remanded for further proceedings.

Reversed and remanded.


author: PEARSON, Judge.

text:
    Robert C. JONES and Dennis Reeser, d/b/a Southeast Shelter-Lakeland, Ltd., a Florida Limited Partnership, Appellants, v. William V. HOWLAND, Appellee.
    No. 78-948.
    District Court of Appeal of Florida, Third District.
    April 10, 1979.

      Turner, Hendrick, Guilford, Goldstein & McDonald and Bruce D. Fischman, Coral Gables, for appellants.
    Peacock & Johnson and Lawrence D. Johnson, Orlando, for appellee.
    Before HAVERFIELD, C. J., and PEARSON and HUBBART, JJ.
   PEARSON, Judge.

The plaintiffs, Robert C. Jones and Dennis Reeser, d/b/a Southeast Shelter-Lake-land, Ltd., hereafter “the limited partnership,” appeal a final judgment for the defendant which was entered following a non-jury trial. The complaint was in five counts seeking damages for breaches by the defendant-appellee Howland and another defendant, Marshall, of agreements alleged to exist between them; plaintiffs’ last count sought declaratory relief concerning a claimed dispute between the parties with regard to whether the plaintiffs were obligated to make and tender to the defendants a promissory note in the amount of $130,-000, and to pay to the defendants a $100,000 cash bonus. The final judgment appealed found for the defendant-appellee in the following language:

“This cause was tried before this Court by non-jury trial and on the evidence presented and on that portion of the Memorandum of Law, submitted by counsel for the Defendant, WILLIAM V. HOWLAND, pertaining to Assignments and the Statute of Frauds which this Court hereby adopts as the Court’s stated finding of law, it is thereupon ORDERED AND ADJUDGED that
“The Plaintiffs, ROBERT C. JONES and DENNIS I. REESER, d/b/a SOUTHEAST SHELTER-LAKELAND, LTD., a Florida limited partnership, are not entitled to damages against the Defendant, WILLIAM V. HOWLAND, and that said Defendant shall go forth without day [sic].”

The entire transaction concerned the construction of an office building and the sale thereof.

In August, 1974, defendant-appellee Howland and Thomas L. Marshall, the other defendant, were doing business as Lakeland Professional Center, a Florida general partnership, which owned real property in Lake-land, Florida, upon which an office building was to be constructed. Robert C. Jones and Dennis I. Reeser, as officers and sole shareholders of Southeast Shelter Corporation, a Florida corporation (the “corporation”), negotiated with Howland and Marshall to purchase the office building, together with related facilities and improvements.

On September 23, 1974, Lakeland Professional Center entered into a written agreement to sell the office building to the corporation. The Agreement of Purchase and Sale listed certain pre-conditions to the corporation’s obligation to close this transaction. Under these pre-conditions, Lakeland Professional Center (the seller) was to execute the following documents to the corporation (the buyer):

a. Guaranty of Lien-Free Completion

b. Break-Even Cash Flow Guaranty

c. Management and Agency Agreement

(Actually, by oral agreement, the documents listed as pre-conditions to the purchase and sale agreement were to be executed to appellant Southeast Shelter-Lake-land, Ltd., the limited partnership, which had been created by the corporation. In other words, as pointed out by the defendant-appellee, the limited partnership was not a party to the agreement and the corporation was not a party to the guaranty documents.)

There is evidence that there was a breach of the guaranty of lien-free completion and the break-even cash flow guaranty. There is also evidence that the limited partnership was also required to pay the 1976 real estate taxes in order to preserve the property. The purchase and sale agreement also specified that the purchaser should tender to Howland and Marshall a $100,000 cash bonus and execute a $130,000 non-recourse promissory note and second mortgage on the property in the event that on or before April 1, 1977, eighty-five percent of the net rentable floor space of the building was leased with an average lease no less than three years in duration and with an average base rental of at least $7.00 per square foot per annum.

The Agreement of Purchase and Sale names the corporation “or its assigns” as the buyer. Plaintiffs allege the Agreement of Purchase and Sale was orally assigned to the limited partnership by the corporation on or about the time of closing.

Economic problems in 1974 adversely affected efforts to consummate the sale of this office building. To avoid foreclosure, the limited partnership elected to take ownership of the office building and the obligations relating to it in 1976. Paragraph 7 of the Management and Agency Agreement states that the limited partnership may record the Warranty Deed given by Lakeland Professional Center to the limited partnership,

“. •. . pursuant to the Agreement of Purchase and Sale dated September 23, 1974, in the event that Manager-Agent [Lakeland Professional Center], as borrower, is in default . . . ”

However, the Agreement of Purchase and Sale makes no reference to the limited partnership and is between only Lakeland Professional Center and the corporation. Nevertheless, Lakeland Professional Center consented to the conveyance and conveyed the office building to the limited partnership on December 31, 1976.

Plaintiffs’ first point on appeal is that the trial court erred in determining the cause upon, the basis of a holding that the oral assignments were void because of the statute of frauds. This holding presents reversible error for several reasons. First, the statute of frauds was not pled as a defense in the cause. See Danese v. Holley, 159 So.2d 667 (Fla. 1st DCA 1964); and Fletcher v. Williams, 153 So.2d 759 (Fla. 1st DCA 1963). Second, it appears from the allegations of the complaint and the evidence before the court that the assignments were fully completed and executed. See McDowell v. Ritter, 153 Fla. 50, 13 So.2d 612 (1943); see also Dionne v. Columbus Milis, Inc., 311 So.2d 681 (Fla. 2d DCA 1975). Third, the defendant-appellee may not raise the statute of frauds as a defense in an effort to void a transaction to which it was not a party or in privity. v/ith any party. See Commercial Union Insurance Company of New York v. Padrick Chevrolet Company, Inc., 196 So.2d 235 (Fla. 4th DCA 1967).

For the reasons above set forth, we have determined that this cause must be returned to the trial court for retrial. In this connection, permission is granted for the filing of' an amended complaint or an amended answer if the parties should so elect.

While we need not discuss the additional points raised by the plaintiffs, we think that attention should be given, upon retrial, to the principle that if the court finds that the plaintiffs stated a good cause for declaratory judgment, the court has the duty to enter a declaration of the rights of the parties in order to afford relief from insecurity and uncertainty with regard to the rights or legal relations of the parties. See Hialeah Race Course, Inc. v. Gulfstream Park Racing Association, 210 So.2d 750 (Fla. 4th DCA 1968); and see Rosenhouse v. 1950 Spring Term Grand Jury, 56 So.2d 445 (Fla.1952), and Trafalgar Developers, Ltd. v. Morley, 305 So.2d 274 (Fla. 3d DCA 1974).

Accordingly, the final judgment is reversed and the cause is remanded with directions to allow such amendments to the pleadings as the parties may desire and to proceed thereafter in accordance with the views herein expressed.

Reversed and remanded.

      . By an order of the trial court of June 10, 1977, a Default and Final Judgment entered against defendants Howland and Marshall was set aside with regard to Howland, but remained “. . in full force and effect . . with regard to defendant Marshall.

      . The grounds referred to by the court in its final judgment as being . . Memorandum of Law, submitted by counsel for the Defendant . . . ” are that the “. . .alleged oral assignment from Southeast Shelter Corporation to Southeast Shelter-Lakeland, Ltd. to all instruments referred to in this action is a purported assignment of rights under the Purchase and Sale Agreement between Lake-land Professional Center and Southeast and Shelter Corporation, said agreement being a contract to sell land. * * * The alleged assignment was oral and proof thereof is thus barred by the State of Frauds.”

      . Defendant-appellee urges that the following language in his eighth affirmative defense should be taken as referring to the statute of frauds:
      “The Plaintiffs are estopped from claiming any rights, obligations or damages based on the interrelated documents attached to the Complaint for failure of proper and timely assignment of same.”


author: HUBBART, Judge.

text:
    TOUCHE ROSS & CO., Appellant, v. CANAVERAL INTERNATIONAL CORP., Appellee.
    No. 78-1457.
    District Court of Appeal of Florida, Third District.
    April 10, 1979.
    Walton, Lantaff, Schroeder & Carson and Miller Walton, Miami, for appellant.

      Patrick McGrotty, Miami, for appellee.
    Before PEARSON and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   HUBBART, Judge.

By this appeal, we are asked to review a trial court order denying a motion to dismiss an action based on the ground of lack of jurisdiction over the person as to the defendant Touche Ross & Co., a New York partnership, which has both Florida resident partners and out-of-state partners. We have jurisdiction to review this non-final order. Fla.R.App.P. 9.130(a)(3)(C)(i).

In our view, the defendant Touche Ross & Co. was not properly served in this cause under Section 48.061(1), Florida Statutes (1977), because the Florida resident partners of the defendant herein were served solely as individuals; they were not specifically served as co-partners of all the named members of the defendant New York partnership as required by the above statute in order to properly serve the said partnership. Speight v. Horne, 101 Fla. 101, 133 So. 574 (1931); I. Epstein & Bros. v. First National Bank of Tampa, 92 Fla. 796, 110 So. 354 (1926); Hayman v. Weil, 53 Fla. 127, 44 So. 176 (1907).

Beyond that, we see no constitutional or other legal impediment to maintaining this action against the defendant Touche Ross & Co. providing it is properly served under Section 48.061(1), Florida Statutes (1977), as the action herein clearly arises out of partnership activities performed in this state by the said defendant. We find no merit in the contentions of the defendant Touche Ross & Co. to the contrary. International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945); Heritage Corp. of South Florida v. Apartment Investments, Inc., 285 So.2d 629, 630 (Fla. 3d DCA 1973); Fidelity & Casualty Co. of New York v. Homan, 116 So. 444 (Fla. 2d DCA 1959).

The order under review is reversed and the cause remanded to the trial court without prejudice to the plaintiff Canaveral International Corp. to properly re-serve the defendant Touche Ross & Co.

Reversed and remanded.

PEARSON, J., concurs in the decision to reverse only.


text:
    Charles CORDY, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1480.
    District Court of Appeal of Florida, Third District.
    April 10, 1979.
    Bennett H. Brummer, Public Defender, and McCrary, Berkowitz, Davis & Feig and Jeffrey L. Berkowitz, Sp. Asst. Public Defender, Miami, for appellant.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before PEARSON, HENDRY and HUB-BART, JJ.
   PER CURIAM.

Appellant-defendant was found guilty by a jury of burglary of a dwelling. Appellant has appealed the judgment and sentence.

We have carefully considered the record, briefs and arguments of counsel and have concluded that no harmful error has been made to appear. Therefore, the judgment and sentence appealed are affirmed.

Affirmed.


text:
    S. Hallock duPONT, Jr., Appellant, v. COUNTY NATIONAL BANK OF NORTH MIAMI BEACH, a National Banking Corporation, Lawrence C. Porter, and Carole W. Porter, his wife, Appellees.
    No. 78-1574.
    District Court of Appeal of Florida, Third District.
    April 10, 1979.
    Fogle, Connelly & Cook and Lewis H. Fogle, Jr., Miami, for appellant.
    Mamber, Epstein & Elster and Craig D. Savage, North Miami Beach, for appellees.
    Before BARKDULL, HUBBART and SCHWARTZ, JJ.
   PER CURIAM.

On this record, the summary final judgment under review is reversed.

There was a triable issue as to whether or not the bank was the holder in due course of a note executed by the appellant, S. Hallock DuPont, Jr., as to the question of whether or not the bank took the note without any notice of a defense thereto. See: A. B. G. Investment, Inc. v. Selden, 336 So.2d 444 (Fla. 4th DCA 1976); Section 673.3-307(3), Florida Statutes (1975).

Therefore, the summary final judgment under review be and the same is reversed, and this cause is remanded to the trial court for further proceedings.

Reversed and remanded, with directions.


text:
    Kenneth A. SCHAEFER and Allied Fidelity Insurance Company, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1682.
    District Court of Appeal of Florida Third District.
    April 10, 1979.

      Frigola & DeVane, Marathon, for appellant.
    Jim Smith, Atty. Gen., for appellee.
    Before HENDRY, BARKDULL and HUBBART, JJ.
   PER CURIAM.

Appellants seek review of a money judgment entered against them upon an estreat-ed bail bond and an order denying application for remission of bond forfeiture.

The determinative point on appeal is whether appellants had proper notice to produce a defendant whose appearance they secured.

The defendant, John Beyer was arrested in Monroe County for violation of probation and incarcerated in Monroe County Jail. On July 12, 1978 Beyer and his attorney were informed in writing of a hearing to be held on July 24, 1978. On July 20, 1978 appellants caused the defendant to be released from jail upon their surety bond.

The arrest card of the Monroe County Sheriff indicated that the appearance date for Beyer was to be announced. Beyer did not advise appellants of the hearing date on the 24th of July. Beyer failed to appear for the hearing on July 24th. Whereupon the court orally entered an order of estreature. On August 31st a written order was entered.

No notice of appearance for July 24th was sent to the appellants prior to the July 24th hearing date. On July 26th appellants were informed of the oral estreature order of July 24th.

Thereafter appellants located Beyer and surrendered him to the sheriff of Monroe County. Appellants timely filed an application for remission of forfeiture with an accompanying affidavit.

The trial court denied appellants’ application. The court stated in its order:

“THIS COURT acknowledges receipt of an Application For Remission of Bond Forfeiture signed by Kenneth Schaefer although same was not noticed for hearing. Upon examination of the file and records of the case, the Court finds that oral notice of the hearing on July 24,1978 was given to Defendant and his counsel in open Court on July 12, 1978; that written notice of said hearing was forwarded to Defendant in the Monroe County Jail on July 12, 1978, as well as his attorney; and that no bondsman was involved in this case prior to July 20, 1978. This Court has previously advised petitioner’s office that official information as to Court proceedings are contained in the case files maintained by the Clerk of this Court and that any information obtained from records in the Monroe County Jail as to scheduled appearances would not be controlling. This shall serve as a re-statement of the policy of this Court that bail bondsmen shall be considered constructively noticed of duly noticed and pending, appearances scheduled of record at the time a defendant is released from jail on bond.”

Appellants contend that since they did not receive notice of the date of the defendant’s hearing the trial court erred in entering the judgment. We agree and reverse.

The law is well settled that the surety bail bondsman must receive actual notice of the required appearance of a defendant. Section 903.26, Florida Statutes; Resolute Insurance Company v. State, 269 So.2d 770 (Fla. 3d DCA 1972); Bailey v. State, 282 So.2d 32 (Fla. 1st DCA 1973); Bankers Fire and Casualty Company v. State, 303 So.2d 39 (Fla. 1st DCA 1974), and Caivano v. State, 331 So.2d 331 (Fla. 2d DCA 1976).

The judgment and order appealed are reversed.


text:
    Evadne KALIL, Appellant, v. Donald R. ZUBER et al., Appellees.
    No. 78-2053.
    District Court of Appeal of Florida, Third District.
    April 10, 1979.
    Ress, Gomez, Rosenberg, Rosenberg & Howland and Linda M. Rigot, North Miami, for appellant.
    Theobald N. Engelhardt, Jr., South Miami, for appellees.
    Before PEARSON, KEHOE and SCHWARTZ, JJ.
   PER CURIAM.

Appellant, who was the injured party in an automobile negligence case, settled with the tortfeasor. An Order of equitable distribution was entered after a hearing at which testimony was received. On this appeal, it is urged that the trial judge failed to follow the guidelines set out in Williams v. Gateway Ins. Co., 331 So.2d 301 (Fla.1976). It appears from the record that the trial judge found that the claim was settled for the full value thereof and, upon the application of the guidelines in Williams, arrived at an equitable result.

Affirmed.


author: SMITH, Acting Chief Judge.

text:
    STATE of Florida, Appellant, v. James Kenneth BENNETT, Appellee.
    No. JJ-36.
    District Court of Appeal of Florida, First District.
    April 11, 1979.

      Edwin E. Strickland, Gen. Counsel, and Enoch J. Whitney, Asst. Gen. Counsel, Dept, of Highway Safety and Motor Vehicles, Tallahassee, for appellant.
    Arthur T. Boone and Gordon H. Lee, Jacksonville, for appellee.
   SMITH, Acting Chief Judge.

The Department of Highway Safety and Motor Vehicles appeals from a circuit court judgment which by writ of certiorari set aside the Department’s five-year revocation of Bennett’s driver’s license for fifteen point-assessable traffic “convictions” within five years. Sections 322.264, .27, .31, Florida Statutes (1977). The issue is whether, in counting the number of Bennett’s “convictions for moving traffic offenses for which points may be assessed as set forth in s. 322.27,” the Department properly counted pre-1975 “convictions” entered on the Department’s record when Bennett paid several traffic fines to the county courts but did not personally appear before a judge for adjudication of guilt. The circuit court held that Bennett’s payment of fines for point-assessable traffic infractions were not equivalent to “convictions”, until January 1975, when the Supreme Court promulgated Rule 6.560, Fla.R.Traf.Ct., set out below.

Since 1972 Section 322.264, Florida Statutes (1977) has provided:

A “habitual traffic offender” is any person whose record, as maintained by the Department of Highway Safety and Motor Vehicles, shows that such person has accumulated the convictions for separate offenses described in subsections (1), (2), and (3), committed within a 5-year period:
(2) Fifteen convictions for moving traffic offenses for which points may be assessed as set forth in s. 322.27 . . .
(Ch. 72-175, Section 2, Fla.Laws).

Section 322.27(2)(d) provides “a graduated scale of points assigning relative values to convictions” of a certain character, including four points for willful and wanton reckless driving, three or four points for excessive speed, two points for improper equipment, and three points for “[a]ll other moving violations (including parking on the highway outside the limits of a municipality) .. . .”

Fifteen times between August 1973 and August 1976, Bennett was assessed points for traffic violations including improper start (3 points), speeding not more than 15 miles per hour over the limit (3 points), speeding more than 15 miles per hour over the limit (4 points), careless driving (3 points), racing on public traffic way (3 points), and reckless driving (4 points). It seems conceded by the parties, or at least not contested by either, that Bennett never appeared “in court” in the sense of standing before a judge for adjudication of his guilt; rather, Bennett sent in the prescribed fine or penalty payment. The circuit court, considering that no “conviction” for purposes of Section 322.264 and .27 could occur without entry of a judgment of conviction or some equivalent judicial act, held that Bennett was not “convicted” on the eight occasions,.before traffic rule 6.560 became effective, when Bennett paid the fines or penalties in lieu of a court appearance.

We conceive that the circuit court drew unwarranted implications from the Supreme Court’s promulgation, effective January 1, 1975, of traffic rule 6.560. The occasion for promulgation of that rule was not a sudden realization that “convictions” did not previously result from payment of a traffic fine or penalty; rather, the new rule appears to have been promulgated, simultaneously with the decriminalization of certain traffic offenses, in order to make the new civil and the prior criminal determinations of traffic infractions equivalent for purposes of counting points and other purposes served by Chapter 322. See Chapter 318, Florida Statutes (1977).

Bennett urges a distinction, for point-assessment purposes, between pre-1975 cases in which the violator admitted the infraction and paid the fine (no points) and those in which he did not admit the infraction, or was otherwise required to appear before a judge, and was found guilty by a conventional judgment of conviction (points assessed). We find nothing in Sections 322.264 and .27 authorizing that distinction, which would appear to cancel the legislative assessment of penalty points for certain violations, or to assess points as a penalty for contesting the violation in court. Both before and after traffic rule 6.560 was promulgated in January 1975, a traffic offender’s payment of the fine or penalty, whether predicated on a formal judgment of conviction or not, was sufficient predicate for entry in the Department’s records of a traffic “conviction” for purposes of assessing points and counting “[fjifteen convictions for moving traffic offenses for which points may be assessed as set forth in s. 322.27 . . . .” See Rule 6.12, Fla.R.Traf.Ct.

We are not here concerned with a factual contest over the accuracy of the Department’s records, or the regularity of the court or traffic bureau proceedings which affected Bennett, or the sufficiency of the Department’s administrative proceedings for revocation. We give the Department’s record of Bennett’s violations the effect that the parties and the circuit court gave it, and find nevertheless that Bennett within five years was “convicted” fifteen times for moving traffic offenses assessable under Section 322.27(2)(d).

The circuit court’s writ of certiorari is QUASHED and the Department’s order is REINSTATED.

ERVIN and BOOTH, JJ., concur.

      . Fla.R.Traf.Ct. 6.560; In re Transition Rule 20, 306 So.2d 489. 504 (Fla.1974):
      An admission or determination that a person has committed a traffic infraction shall constitute a conviction as that term is used in Chapter 322 of Florida Statutes.
      See also In re Transition Rule 20, etc., 306 So.2d 505, 506 (Fla.1975).

      . Although we take the record as we find it, presenting legal but no factual issues, we note that court appearance was required by Fla.R. Traf.Ct. 6.12 for certain of Bennett’s pre-1975 infractions. Rule 6.12(b)(4), (8); In re Florida Traffic Court Rules, 247 So.2d 281, 284 (Fla. 1971).

      . The Florida Traffic Court Rules in effect between 1971 and 1975 provided for a traffic violations bureau operating under the control of the court. “The function of the bureau shall be to accept appearances, waivers of trial, pleas of guilty or nolo contendere and payment of fines and costs, subject to the limitations prescribed.” Fla.R.Traf.Ct. 6.12, In re Florida Traffic Court Rules, 247 So.2d 281, 283 (Fla.1971). Provision was made for use of a form of “appearance, plea of guilty and waiver” form by which the offender acknowledges “that my signature to this plea will have the same effect as a judgment of this court and that a record of it will be sent to the Florida Department of Motor Vehicles.” Id. at 290.


text:
    Charles A. ROSE, Appellant, v. STATE of Florida, Appellee.
    No. LL-249.
    District Court of Appeal of Florida, First District.
    April 11, 1979.

      Robert A. Harper, Jr., Gainesville, for appellant.
    Jim Smith, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appellee.
   PER CURIAM.

The primary issue on this appeal is whether appellant voluntarily consented to a Hamilton County agricultural inspector’s search of closed boxes in the camper top compartment of his pickup truck. We find that he did not, and reverse the trial court’s denial of a motion to suppress evidence found in the search.

The record reveals that appellant’s truck by-passed the station early one morning in December, 1977 and was subsequently stopped by on-duty Inspector Leonard Pease. Upon being stopped, appellant identified himself as the owner of the vehicle and, in compliance with Pease’s request, opened the camper top. Pease observed two loose avocados and several large cardboard boxes which were taped shut. The record is somewhat unclear at this point, but it appears that appellant then refused Pease’s request to inspect the boxes. The truck was escorted back to the station, and Pease called his supervisor, Garth Nobles, to indicate a problem with the inspection of the boxes. Nobles arrived at the station and appellant again opened the topper door to the truck. Without further request, Nobles then reached inside one of the boxes, discovered marijuana, and called the county sheriff’s office to arrest appellant.

This court has consistently invalidated agricultural inspection searches which have taken place in circumstances indicating coercion or involuntary acquiescence. Sarga v. State, 322 So.2d 592 (Fla. 1st DCA 1975); Powell v. State, 332 So.2d 105 (Fla. 1st DCA 1976); Gonterman v. State, 358 So.2d 595 (Fla. 1st DCA 1978). In these cases, we have made it clear that a search warrant must be obtained in accordance with the statutory provisions of Section 570.15(l)(b), Florida Statutes (1977) where there are no exigent circumstances, consent is not offered voluntarily, and there is no probable cause to suspect that the vehicle contains contraband. Here, Officer Pease testified specifically that he had absolutely no cause to suspect that there was contraband in the boxes before the search.

On this record, we do not find that the state has proven a free and voluntary consent to search the boxes in appellant’s truck. While it is true that appellant was cooperative in opening the camper top to his truck, it is equally true that he had indicated his lack of consent to a further search of the closed boxes. Moreover, Nobles was aware of appellant’s resistance to searching the boxes; that was the reason he had been called into the case by Pease.

This court’s recent decision in Bagocus v. State, 359 So.2d 885 (Fla. 1st DCA 1978), is distinguishable. In that case, the agricultural inspection officers observed several taped-up bags after stopping appellant’s truck along the highway. On the way back to the station, Bagocus stopped twice and pleaded with the officers to “work something out.” At the station, the officers discovered marijuana in the bags after Ba-gocus admitted them into the truck. This court affirmed the trial court’s denial of a motion to suppress the marijuana, refusing “to extend the holdings in Sarga v. State . and Powell v. State ... to hold as a matter of law that uniformed agricultural inspection officers, carrying weapons they did not brandish in any way, have overborne the will of a lawfully stopped driver by simply asking him to permit an inspection.” Here, however, an officer who had been called into the case expressly because of appellant’s refusal to grant access to the boxes on the highway proceeded with the search at the station without asking appellant’s further permission. Further, appellant here implicated himself in no way on the return trip to the inspection station.

As this court recently noted in Miller v. State, 368 So.2d 943 (Fla. 1st DCA 1979), the agricultural inspection station statute, Section 570.15, is “ripe for legislative consideration.” In the absence of further legislative guidance, however, we believe that the warrantless search of the contents of the vehicle in the circumstances here was improper and must be invalidated. We therefore reverse the court’s denial of appellant’s suppression motion. Appellant’s other point has been considered and found to be without merit.

REVERSED.

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

BOOTH, J., dissents.


author: ERVIN, Judge.

text:
    Jacqueline Lee WELCH and Patrick Wade Welch, by their father and next friend, J. P. Welch, and their mother and next friend, Patricia Welch, and J. P. Welch, Individually, and Patricia Welch, Individually and Anthony Johnson and Sean Johnson, by and through his father and next friend, Anthony Johnson, Appellants, v. AUTO OWNERS INSURANCE COMPANY et al., Appellees.
    No. LL-315.
    District Court of Appeal of Florida, First District.
    April 11, 1979.
    Ferrin C. Campbell, Sr., Crestview, for appellants.
    John N. Boggs, of Barron, Redding, Boggs, Hughes & Fite, Lynn C. Higby and C. Richard Watson, Panama City, for appel-lee.
   ERVIN, Judge.

Jacqueline Lee Welch, aged 5 years, and her little brother, Patrick Welch, were seriously injured in a- retail clothing store in Panama City Beach, Florida, when a plate glass window in the store front exploded during an unusually heavy wind and rain storm in February, 1976. Appellees Julian and Donald Bennett owned the store and, at the time of the accident, leased it to appellees Jimmy Christo and Tom Cooley. The window was made of Vi" thick plate glass and was approximately 8V2' high and 10' wide.

Appellee Julian Bennett stated in a deposition that he had relied on the architect and the contractor to meet safety codes in design and construction of the building in 1970, and that he had approved the architect’s plans. Bennett was aware of the dangerous propensities of glass and had signed one change order to install tempered glass so that patrons would not walk through the front windows by mistake.

The architect who designed the building stated that the windows were installed in compliance with the wind-load capacity required by the Panama City Beach municipal code in 1970. The architect’s specifications called for him to conform to municipal codes and ordinances as well as the Southern Building Code. The lessees Cooley and Christo consulted with the architect concerning the plans and specifications during the construction of the building, as did the appellee-owners, the Bennetts. The architect recalled that, of the four, lessee Cooley and owner Don Bennett worked more closely with him than did the other appellees.

The plaintiffs offered the affidavit of Courtland Collier, a civil engineer and professor in the engineering department at the University of Florida, which stated that he had read the plans and specifications for the store and that “[i]n view of the size of the windows, the use of one-fourth inch plate glass is in violation of the Southern Building Code as it existed ... at the time of the plaintiffs’ injury and at the time the building was designed and constructed.” The affidavit stated further that “the use of a building in a coastal area with plate glass one-fourth inch thick in windows ... [of that] size . is an ultra-hazardous activity. . . .” A second affidavit attached copies of Ch. 27 of the Southern Standard Building Code as it existed in 1969, specifying wind load capacities required in plate glass windows.

The defendants’ motions for summary judgment were granted, the trial judge stating that neither the lessees nor the owners could or should have known of any defect in the plate glass windows and that such a defect was not discoverable upon their ordinary inspection.

The plaintiffs argue that summary judgment was error since the question of the defendants’ liability was, at the least, one of disputed fact. We agree. The duty owners and occupiers of land owe invitees is to “keep [their] property reasonably safe and protect [them] from dangers of which [they are], or should be aware.” Post v. Lunney, 261 So.2d 146, 147 (Fla.1972) (footnotes omitted) (e. s.). Comment (b) to the Restatement (Second) of Torts, § 343, states that the owner’s or the occupier’s duty of care extends to “the original construction of the premises . . . [and] also . [to] inspection to discover their actual condition and any latent defects. . . .”

Here, the plaintiffs’ affidavit stated the building was not in compliance with applicable municipal and safety codes and ordinances when it was constructed and at the time the window exploded, seriously injuring the children. The affidavit, that the windows were incapable of withstanding wind loads that could be expected in the area, is not rebutted in the record. Coastal residents possess common knowledge that glass windows will explode or shatter during high winds, which may be expected from time to time, unless precautions are taken. Testimony of the defendants and the architect who designed the building was that some or all of the defendants had inspected and approved the plans. The defendants were not required to have the knowledge of an engineer to foresee that thin plate glass in windows with an area of approximately 130 sq. ft. could be very hazardous, particularly in coastal areas which are frequently subjected to high winds.

Reversed and remanded for further proceedings consistent with this opinion.

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


author: MOORE, Judge.

text:
    HARTFORD ACCIDENT & INDEMNITY COMPANY, Appellant, v. U.S. CONCRETE PIPE COMPANY, a Florida Corporation, Dorothy Bould and Edward Simonson, Jr., as Administrator of the Estates of Edward and Alice Simonson, both Deceased and Mitchell C. Touchette, Appellees. Mitchell C. TOUCHETTE and Hartford Accident & Indemnity Company, Appellant, v. Dorothy BOULD, Edward Simonson, Jr., as Administrator of the Estates of Edward and Alice Simonson, both Deceased, and U.S. Concrete Pipe Company, a Florida Corporation, Appellees.
    Nos. 74-235, 74-236.
    District Court of Appeal of Florida, Fourth District.
    April 11, 1979.
    Rehearing Denied May 25, 1979.

      Sam Daniels, Miami, for appellant — Hartford Acc. & Indem. Co.
    James A. Smith of Wicker, Smith, Pysz-ka, Blomqvist & Davant, Miami, for appel-lee — U.S. Concrete Pipe Co.
    Michael B. Davis of Walton, Lantaff, Schroeder, Carson & Wahl, West Palm Beach, for appellant — Mitchell C. Tou-chette.
    Edward A. Perse of Horton, Perse & Ginsberg and Brumer, Moss, Cohen & Rodgers, Miami, for appellees — Dorothy Bould and Edward Simonson, Jr.
   MOORE, Judge.

This is not the first appearance of this case before this court. Since detailed discussion of the facts would serve no useful purpose suffice to say appellant, Hartford Accident and Indemnity Company, insured appellee, U.S- Concrete Pipe Company. In a tragic- accident the negligence of one of appellee’s employee-drivers resulted in two deaths. After trial final judgments for compensatory and punitive damages were entered against the driver and U.S. Concrete. This court reversed those judgments as being excessive and the Supreme Court quashed this court’s opinion, mandating the reinstatement of the judgments and directing this court to entertain the interlocutory appeals from post-judgment orders of the trial court. Those two interlocutory appeals are what we presently consider.

In the second interlocutory appeal the appellant, Touchette, contests the order of the trial court taxing costs against him. That appeal was predicated upon Tou-chette’s anticipated success in challenging the final judgments against him. His failure to prevail on that issue correspondingly determines his failure to successfully attack the order taxing costs which should be affirmed.

In the first interlocutory appeal appellant, Hartford, seeks review of an order entered by the trial court pursuant to motion of U.S. Concrete wherein the trial court entered judgment against Hartford which has the effect of requiring Hartford, as insurer, to pay a portion of the $800,000 punitive damage award entered against U.S. Concrete.

It is well settled in Florida that one may not insure against liability for punitive damages as the result of his own misconduct which gave rise to such damages. Nicholson v. American Fire & Casualty Ins. Co., 177 So.2d 52 (Fla. 2d DCA 1965); Northwestern National Casualty Co. v. McNulty, 307 F.2d 432 (5th Cir. 1962); Commercial Union Ins. Co. of New York v. Reichard, 404 F.2d 868 (5th Cir. 1968); Travelers Ins. Co. v. Wilson, 261 So.2d 545 (Fla. 4th DCA 1972). These decisions are grounded upon public policy which, in effect, states that punitive damages are imposed against a defendant as punishment to the defendant and as a deterrent to the defendant and others. As such, that public policy would be frustrated if one were allowed to shift the risk of liability for such damages to an insurance company thereby avoiding the punishment imposed.

It is equally well established that a corporate employer may be held vicariously liable for punitive damages for the acts of its agent or servant under the doctrine of “respondeat superior” and that public policy is not contravened by shifting the risk of vicarious liability for punitive damages to an insurance company. See, Winn & Lovett Grocery Co. v. Archer, 126 Fla. 308, 171 So. 214 (1936); Sterling Ins. Co. v. Hughes, 187 So.2d 898 (Fla. 3d DCA 1966); Travelers Ins. Co. v. Wilson, 261 So.2d 545 (Fla. 4th DCA 1972); Norfolk and Western Railway Co. v. Hartford Accident and Indemnity Co., 420 F.Supp. 92 (N.D.Ind.1976). Appellant acknowledges this principle in quoting from Sterling Ins. Co., supra, where the court stated:

“However, it is generally held that there is a distinction between the actual tort-feasor and one only vicariously liable and that therefore public policy is not violated by construing a liability policy to include punitive damages recovered by an injured person where the insured did not participate in or authorize the act.”

Hartford contends that it is impossible to apportion the punitive damages imposed against U.S. Concrete in the case sub judice between those for which U.S. Concrete is vicariously liable and those which are the result of U.S. Concrete’s own misconduct. Relying upon Universal Underwriters Corp. v. Reynolds, 129 So.2d 689 (Fla. 2d DCA 1961) appellant argues that the burden of apportioning the punitive damages is upon U.S. Concrete and the fact that such a task is impossible should not act to the detriment of Hartford. It is Hartford’s contention, therefore, that because U.S. Concrete failed to carry its burden of proving the apportionment U.S. Concrete thereby has failed to establish coverage for punitive damages undér the terms of Hartford’s policy. For reasons stated hereafter we find it unnecessary to determine the applicability of Reynolds, supra.

If the final judgment for punitive damages against U.S. Concrete was based solely on the concept of vicarious liability the trial court was correct in entering the judgment from which this appeal stems. On the other hand, if the judgment against U.S. Concrete was because of its own active misconduct the order of the trial court would be erroneous. Of course, if the jury imposed punitive damages on both theories we would then be confronted with a Reynolds, supra, situation.

Although we have carefully considered the pleadings and facts in this case we need only look to the court’s instructions to the jury for our decision. It is clear that the jury was instructed to the effect that the employer could be held liable for punitive damages for the acts of its employee done in the scope of his employment only if the jury found that the employer failed to exercise due and reasonable care in retaining the employee. This instruction describes active negligence for which U.S. Concrete would be liable as opposed to vicarious liability by reason of the relationship of master and servant. As to punitive damages no instruction was given on a theory of vicarious liability alone. We conclude that the first sentence of the third paragraph of the instruction in question cannot be considered a proper charge on vicarious liability of an employer for punitive damages. Alexander v. Alterman Transport Lines, Inc., 350 So.2d 1128 (Fla. 1st DCA 1977), and Sideris v. Warrington Motor Co., 181 So.2d 650 (Fla. 1st DCA 1966). The first sentence must be read in conjunction with the following sentence in order for the charge to be complete. We therefore conclude that the jury imposed punitive damages against U.S. Concrete solely due to U.S. Concrete’s active negligence in retaining the employee. Such liability cannot be shifted to an insurance carrier. See, Nicholson, supra. We hold that the entry of judgment against the appellant contravenes public policy and must be reversed.

Finding no error in the order taxing costs against the appellant, Touchette, in Case No. 74-236, the order in that case is affirmed. The order appealed from in Case No. 74-235 is reversed and that cause is remanded to the trial court for entry of an order denying the motion of U.S. Concrete Pipe Company for judgment against the appellant, Hartford Accident & Indemnity Company.

AFFIRMED as to Case No. 74-236 and REVERSED as to Case No. 74-235.

DOWNEY, C. J., and BERANEK, J., concur.

      . Touchette v. Bould, 324 So.2d 707 (Fla. 4th DCA 1976).

      . Bould v. Touchette, 349 So.2d 1181 (Fla.).

      .The trial court’s order stated, “. . . judgment is hereby granted against Hartford Accident and Indemnity Company to the maximum limits of their insurance coverage of $500,000.”

      . Regarding punitive damages the court’s instructions to the jury were as follows: “If you find that Mitchell C. Touchette, in the operation of the motor vehicle, was guilty of negligence to be of a gross and a flagrant character, evidencing reckless disregard of human life or of the safety of persons exposed to its dangerous affects, or there is that entire want of care which would raise the presumption of a conscious indifference to consequences, or which shows wantonness or reckless or grossly careless disregard of the safety and welfare of the public, or that reckless indifference to the rights of others which is equivalent to an intentional violation of them, you may in your discretion, assess punitive damages against such defendant as punishment and as a deterrent to others.
      If you find that punitive damages should be assessed against either or both defendants, you may consider the financial resources of such defendant in fixing the amount of such punitive damages. You may assess punitive damages against one defendant and not the other or against more than one in different amounts.

        Under the law of Florida, liability for punitive damages may be imposed upon an employer for the acts of his employees when those acts are of a character to warrent [sic] the imposition of such damages upon the employee, as where the employee has acted wantonly or willfully or with a reckless indifference to the rights of others. An employer may be liable in punitive damages for the acts of his employee done in the scope of his employment, if he has failed to exercise due and reasonable care in retaining him as an employee.’’ (Emphasis ours).

      . We find it unnecessary to determine whether or not this is a correct statement of the law. Since the Supreme Court of Florida has mandated the reinstatement of the judgments in the trial court this is the law of this case.


text:
    The TRAVELERS INSURANCE COMPANY, a Foreign Corporation, Appellant, v. Robert ROBERTSON and Tillie Robertson, his wife, Appellees.
    No. 78-1450.
    District Court of Appeal of Florida, Third District.
    April 10, 1979.
    High, Stack, Lazenby & Bender and Alan R. Dakan, Miami, for appellant.
    Sanford A. Freedman, Miami, for appel-lees.
    Before BARKDULL, HUBBART and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed. Moore v. Connecticut General Life Insurance Co., 277 So.2d 839, 842 (Fla.3d DCA 1973).


author: SUMMERS, Chief Justice.

text:
    STATE of Louisiana v. Patricia D. REYNOLDS. STATE of Louisiana v. Carla Louise LEE.
    Nos. 63533, 63684.
    Supreme Court of Louisiana.
    April 3, 1979.
   SUMMERS, Chief Justice.

Joint motion to recall writ of certiorari, 366 So.2d 557 and 366 So.2d 566, and to be allowed to withdraw application GRANTED.


text:
    SECURITIES MORTGAGE CO., INC. v. Andrew TRIPLETT et ux.
    No. 64076.
    Supreme Court of Louisiana.
    March 23, 1979.
   In re Wyema P. Lee applying for writ of certiorari, First Circuit Court of Appeal. Parish of East Baton Rouge. 368 So.2d 480.

Granted.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    STATE of Louisiana v. Lawrence JAMES.
    No. 64186.
    Supreme Court of Louisiana.
    March 23, 1979.
   In re Lawrence James applying for writ of certiorari and/or prohibition. Parish of Orleans. No. 265-070.

Writ granted. Denial of motion for severance set aside, and trial court ordered to reconsider its ruling in the light of State v. Slayton, 338 So.2d 694 (La.1976).

SUMMERS, C. J., dissents from the order.


text:
    STATE of Louisiana v. Ernest MORGAN.
    No. 64222.
    Supreme Court of Louisiana.
    March 30, 1979.
   In re Ernest Morgan applying for writs of certiorari. Parish of St. Charles. No. 77-206.

Writ granted. The court reporter is required to transcribe and file with the clerk those portions of the record designated by defendant or the State for purposes of a defendant’s appeal. La.R.S. 13:961. Civil Code art. 1160 (1978) Ann. La.C.Cr.P. art. 845.

SUMMERS, C. J., dissents.


text:
    STATESMAN NATIONAL LIFE INSURANCE CO. v. AMERICAN ALLIED LIFE INSURANCE COMPANY et al.
    No. 64022.
    Supreme Court of Louisiana.
    March 30, 1979.
   In re American Allied Life Insurance Company, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 3Q6 So.2d 940.

Denied.

SUMMERS, C. J., and TATE, J., would grant the writ.

BLANCHE, J., recused.


text:
    Melvina BRYANT v. NEW ORLEANS PUBLIC SERVICE INC., and ABC Insurance Company.
    No. 64156.
    Supreme Court of Louisiana.
    March 30, 1979.
   In re Melvina Bryant, applying for certio-rari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 367 So.2d 100.

Writ denied.


text:
    John KELLER et al. v. Jesse E. LeBLANC, II, et al.
    No. 64161.
    Supreme Court of Louisiana.
    March 30, 1979.
   In re John Keller, et al. applying for writ of certiorari, First Circuit Court of Appeal. Parish of East Baton Rouge. 368 So.2d 193.

Writ denied.


text:
    John WRIGHT et al. v. Howard WRIGHT et al.
    No. 64175.
    Supreme Court of Louisiana.
    March 30, 1979.
   In re John Wright, et al., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of St. Helena. 366 So.2d 1047.

Writ denied.


text:
    CITIES SERVICE COMPANY v. Shirley McNAMARA, Collector of Revenue.
    No. 64176.
    Supreme Court of Louisiana.
    March 30, 1979.
   In re Cities Service Co. applying for writ of certiorari, First Circuit Court of Appeal. Parish of East Baton Rouge. 366 So.2d 1013.

Writ denied.


text:
    Frank DOMINO v. Charles STRIPLEN et al.
    No. 64191.
    Supreme Court of Louisiana.
    March 30, 1979.
   In, re Frank Domino, applying for certio-rari, or writ of review, to the Court of Appeal, First Circuit. Parish of St. Mary. 366 So.2d 1035.

Writ denied.


text:
    Joseph A. NAVARRO et al. v. Bosit BOMMARITO et al.
    No. 64194.
    Supreme Court of Louisiana.
    March 30, 1979.
   In re Joseph A. Navarro applying for writ of certiorari, Fourth Circuit Court of Appeal. Parish of Jefferson. 367 So.2d 74.

Writ denied.

TATE and DENNIS, JJ., would grant the writ.


text:
    John TARANTO v. E. R. COOK et al.
    No. 64195.
    Supreme Court of Louisiana.
    March 30, 1979.
   In re E. R. Cook, et al. applying for writ of certiorari, prohibition or mandamus. Parish of St. Bernard. No. 18-795.

Writ denied.


text:
    Panithia Van Diver JOHNSON, Individually, etc. v. The GREATER BATON ROUGE AIRPORT DISTRICT et al.
    No. 64198.
    Supreme Court of Louisiana.
    March 30, 1979.
   In re Panithia Van Diver Johnson, Individually, etc. and USF&G Co. applying for writ of certiorari, First Circuit Court of Appeal. Parish of East Baton Rouge. 368 So.2d 206.

Writ denied.


text:
    Rickey DeCASTRO v. Roger BOYLAND, Louis Arzonico, Bernard Lumber Co., Inc., Mike Persia Chevrolet Co., Inc. and Genway Corporation.
    No. 64216.
    Supreme Court of Louisiana.
    March 30, 1979.
   In re Rickey DeCastro applying for writ of certiorari, Fourth Circuit Court of Appeal. Parish of Jefferson. 367 So.2d 83.

Writ denied.


text:
    Willington S. BEAULIEU v. DEPARTMENT OF POLICE.
    No. 64220.
    Supreme Court of Louisiana.
    March 30, 1979.
   In re Wellington S. Beaulieu applying for writ of certiorari, Fourth Circuit Court of Appeal. Parish of Orleans. 367 So.2d 32.

Writ denied.

CALOGERO, J., would grant the writ.