author: CARROLL, Associate Judge.

text:
    The CADILLAC FAIRVIEW CORPORATION, LIMITED, a corporation, Appellant, v. SWD INVESTMENTS, INC., et al., Appellees.
    Nos. 76-1030 and 76-1031.
    District Court of Appeal of Florida, Third District.
    March 15, 1977.

      Horton, Perse & Ginsberg, Miami, Broad & Cassel, and Lewis I. Horwitz, Bay Harbor Island, for appellant.
    Paul & Thomson, Miami, for appellees.
    Before HENDRY, C. J., and BARK-DULL, J., and CHARLES CARROLL (Ret.), Associate Judge.
   CARROLL, Associate Judge.

The appellant, a foreign corporation doing business in the State of Florida without having qualified to do so, filed an action in Dade County against SWD Investments Inc., a corporation “residing” in Duval County and not elsewhere, Stockton, What-ley, Davin & Company, with its principal office in Duval county and an office in Dade county, and General American Oil Company of Texas, maintaining offices in Duval and Dade counties. By its action the plaintiff sought certain relief against defendants grounded on a claimed breach of an alleged oral contract for the purchase by plaintiff of certain corporate stock.

On motions of the defendants for dismissal on the ground of improper venue, and on the ground that the plaintiff was precluded from maintaining the action by virtue of Section 607.354 Florida Statutes 1975 because not qualified to do business in Florida, the trial court dismissed the action. The plaintiff filed an interlocutory appeal and a plenary appeal, which were consolidated here.

Upon consideration of the record, briefs and argument, we hold no reversible error has been made to appear. In the circumstances relating to the defendants, the trial court’s holding of improper venue was correct, and is affirmed, Enfinger v. Baxley, 96 So.2d 538 (Fla.1957); King v. King, 188 So.2d 857 (Fla. 4th DCA 1966). Defendants’ motions to dismiss under the above cited statute, filed and brought on for ruling, when the plaintiff corporation shown to have been doing business in Florida had not qualified therefor, entitled the defendants to the order of dismissal which was entered. See 1825 Collins Ave. Corporation v. Rudnick, 67 So.2d 424, 426 (Fla. 1953).

Affirmed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    The SOCIETY FOR the WELFARE OF ANIMALS, INC., Appellant, v. David B. WALRATH, Appellee.
    No. 76-1372.
    District Court of Appeal of Florida, Third District.
    March 15, 1977.
    Rehearing Denied April 13, 1977.

      Michael A. Lipsky, Miami Beach, Robert L. Shevin, Atty. Gen., and Carol L. Reilly, Asst. Atty. Gen., Tallahassee, for appellant.
    Charles A. Hayes, Homestead, for appel-lee.
    Before PEARSON and BARKDULL, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The instant action was begun in the trial court to enjoin The Society for the Welfare of Animals, Inc., a non-profit corporation, from advertising what was alleged to be services of veterinary medicine. Upon final hearing, the trial judge entered an order which reads, in part, as follows:

* * * * * *
“It is hereby ORDERED, ADJUDGED and DECREED that the defendant, his employees, servants, agents, and members be, and they are hereby, perpetually enjoined and restrained from all objectionable advertising, including but not limited to, advertising on television, radio, and newspapers in violation of F.S. 474 and Rules implemented thereunder as applied to the practice of Veterinary medicine. It is the purpose and intent of this Order to restrain and limit all advertising by the defendant to that which may ethically be done by a Veterinarian duly licensed to practice in the State of Florida. The defendant is specifically restrained from the advertising of fees charged for services or the advertising of so called Tow cost’ fees for services.”

The Society appeals and urges error in that they are not a corporation subject to the provisions of Ch. 474 and, further, it was error for the trial court to prohibit the advertising as same constituted an infringement on its constitutional right of freedom of speech, citing Stadnik v. Shell’s City, Inc., 140 So.2d 871 (Fla.1962); Florida Board of Pharmacy v. Webb’s City, Inc., 219 So.2d 681 (Fla.1969); Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976). We disagree, and affirm.

Pursuant to § 474.031(ll)(c), Florida Statutes (1975), the services performed by the doctors of veterinary medicine employed by the Society were, in fact, the practice of veterinary medicine by the spaying ánd neutering of animals. It is conceded that a licensed doctor of veterinary medicine could not so advertise and, therefore, a corporation [even though non-profit] which employs a licensed doctor of veterinary medicine should not be permitted to advertise veterinary medical services. We find a distinction in the prohibition against advertisements of professional services, as contrasted with the advertisement of the cost of prescription drugs, the sale of which is of products prepared by others in most instances. Therefore, we find the Florida cases and the Virginia case cited by the appellant to be distinguishable.

Therefore, for the reasons above stated, the limited injunction imposed by the trial judge be and the same is hereby affirmed.

Affirmed.


author: HUBBART, Judge.

text:
    CHASE MANHATTAN BANK, N.A., et al., Appellants, v. BANCO DEL ATLANTICO, F.A., Appellees.
    No. 76-1751.
    District Court of Appeal of Florida, Third District.
    March 15, 1977.
    Rehearing Denied April 13, 1977.
    Martin P. Shachat, Miami Beach, Nat Gursten, Shutts & Bowen, Miami, for appellants.
    Norman K. Schwarz and Michael Schiff-rin, Miami Beach, for appellees.
    Before HENDRY, C. J., and PEARSON and HUBBART, JJ.
   HUBBART, Judge.

This ease is a suit to recover on certain alleged dishonored drafts drawn on a line of credit issued by a national bank. The trial court refused to quash service of process on the defendant bank. The bank takes this interlocutory appeal.

The issue presented for review is whether substituted service of process made on a national bank as a foreign corporation under Florida’s long-arm statute [Section 48.181(1), Florida Statutes (1975)] should be quashed where the complaint fails to allege any facts tending to show that (1) the national bank was doing business or conducting a business venture in Florida, and (2) the cause of action sued upon arose out of a transaction connected with or incidental to such business or business venture. We hold that substituted service of process must be quashed under such circumstances and reverse.

The plaintiff-appellee [Banco Del Atlánti-co] brought suit against the defendant-appellant [Chase Manhattan Bank] and alleged that Chase Manhattan as a national bank organized under the laws of the United States issued a letter of credit in which the plaintiff was the beneficiary and thereafter dishonored a series of drafts drawn thereon. The complaint fails to allege that Chase Manhattan committed any of these acts in Florida while doing business or conducting a business venture in Florida.

Chase Manhattan moved to quash the substituted service of process made upon it for failure to comply with Section 48.181(1), Florida Statutes (1975). Chase Manhattan filed an affidavit signed by one of its vice presidents stating that it was a national banking association chartered under the laws of the United States, that its principal office was in New York City, and that it had no offices, branches, employees or records in Florida. The plaintiff filed no affidavits or other sworn proof. The trial court denied the motion to quash.

Section 48.181(1), Florida Statutes (1975), provides for substituted service of process on a foreign corporation who carries on a business or business venture in this state for “any action or proceeding against them, or any of them, arising out of any transaction or operation connected with or incidental to the business or business venture.” Statutes of this nature are strictly construed and parties seeking to invoke them are required to bring themselves clearly within the provisions of the statute in order to render the substituted service of process effective against the defendant. Wm. E. Strasser Construction Corp. v. Linn, 97 So.2d 458 (Fla.1957); Lyster v. Round, 276 So.2d 186 (Fla. 1st DCA 1973). Among other things, it is the plaintiff’s burden to plead sufficient facts to justify the application of the statute in order to withstand a legal challenge to such service; failure to do so constitutes grounds for dismissal of the complaint or quashal of the service of process. Elmex Corp. v. Atlantic Federal Savings and Loan Assn. of Ft. Lauderdale, 325 So.2d 58 (Fla. 4th DCA 1976); Nichols v. Seabreeze Properties, Inc., 302 So.2d 139 (Fla. 3d DCA 1974); O’Connell v. Loach, 194 So.2d 700 (Fla. 2d DCA 1967); Lake Erie Chemical Co. v. Stinson, 162 So.2d 545 (Fla. 2d DCA 1964). See also James v. Kush, 157 So.2d 203 (Fla. 2d DCA 1963).

In the instant case, the plaintiff’s complaint falls woefully short of invoking Section 48.181(1), Florida' Statutes (1975), sufficient to withstand a motion to quash the substituted service of process. The complaint does not allege that the cause of action arose from a business or business venture of the defendant in Florida. It does not even allege that the cause of action arose in Florida. Indeed, plaintiff’s counsel in oral argument before the court stated that he had no knowledge where the cause of action arose. It is therefore clear that the substituted service of process on Chase Manhattan should have been quashed in this case.

Chase Manhattan further urges that the venue is improperly laid in this case under 12 U.S.C. § 94. See National Bank of North America v. Associates of Obstetrics and Female Surgery, Inc., 425 U.S. 460, 96 S.Ct. 1632, 48 L.Ed.2d 92 (1976); Exchange National Bank of Chicago v. Rotocast Plastics Products, Inc., 341 So.2d 787 (Fla. 3d DCA 1977) (Opinion filed Jan. 11, 1977). We do not pass upon this contention because the issue is not properly before us. The record does not reflect that Chase Manhattan ever made a motion to dismiss the complaint on the ground of improper venue. The issue is therefore not preserved for appellate review.

The order appealed from is reversed with directions to quash the service of process made upon Chase Manhattan Bank.

Reversed and remanded.


text:
    Natalie S. MARGOLIS, Appellant, v. Lester B. MARGOLIS, Appellee.
    No. 76-1923.
    District Court of Appeal of Florida, Third District.
    March 15, 1977.
    Sinclair, Louis, Siegel & Heath, and John L. Zavertnik, Miami, for appellant.
    George Baker Thomson, Coral Gables, for appellee.
    Before HENDRY, C. J., and BARK-DULL, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The parties to this appeal were engaged in domestic litigation in the trial court. The appellant sought an accounting for the jointly-owned property and to declare a special equity in certain other property.

Subsequent to the trial court entering an order dissolving the marriage (wherein he retained jurisdiction to determine alimony, property division, and attorney fees), the trial judge appointed commissioners to recommend a partition of the assets of the parties. This appeal ensued.

Upon the dissolution of' marriage, the jointly-held property vested, as a matter of law, as tenants in common. It was the responsibility of the trial judge to adjudicate any special equity. Therefore, we find error in the appointment of the commissioners. Harder v. Harder, 264 So.2d 476 (Fla. 3rd D.C.A.1972); Sharpe v. Sharpe, 267 So.2d 665 (Fla. 3rd D.C.A.1972); Cummings v. Cummings, 330 So.2d 134 (Fla.1976); Section 689.15, Florida Statutes (1975).

The order appointing partition commissioners, dated August 24, 1976, be and the same is hereby reversed and the matter is remanded to the trial court for further proceedings not inconsistent herewith.

Reversed and remanded, with directions.


author: GRIMES, Judge.

text:
    Houston McLAIN, Appellant, v. STATE of Florida, Appellee.
    No. 76-848.
    District Court of Appeal of Florida, Second District.
    March 16, 1977.
    Rehearing Denied April 18, 1977.
    H. Wayne Floyd, of Wilson, Wilson & O’Connell, Sarasota, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

Appellant attacks the propriety of his probation revocation.

The affidavit filed by his supervisor charged that appellant had violated conditions of his probation in a material respect by the violation of conditions

“(4) requiring aforesaid to live and remain at liberty without violation [sic] any law in that on 3/25/76 he is accused of having robbed Thomas Satterlee of $108 as evidenced by arrest on 3/29/76:
“(7) Requiring aforesaid to comply with all instructions as given by probation supervisor in that on 3/25/76 and diverse times while under supervision, the subject has frequented the Brass Rail Bar as a customer, contrary to instructions given by probation supervisor on more than one occasion, specifically reinstruct-ed regarding this restriction on 9/25/76 as evidenced by admissions to probation supervisor.”

The court concluded that appellant had violated both conditions and revoked appellant’s probation. The appellant’s main point on appeal is that the affidavit asserting the violation of condition (4) charged him with nothing more than having been accused and arrested which cannot sustain the revocation of probation.

Appellant relies primarily upon Frederick v. State, 339 So.2d 251 (Fla.4th DCA 1976), in which the affidavit of probation violation contained the following charge:

“ ‘Violation of Condition (h) which states, “Live and remain at liberty without violating any laws”, in that on 7-9-75, the aforesaid did admit to Mr. Charles L. Steen of the Florida Parole and Probation Commission, that he was arrested on 7-8-75 by the Orange County Sheriff’s Office for Breaking and Entering With Intent to Commit a Misdemeanor, he did, in fact, unlawfully gain entry to Pennington Grain and Seed Company and did, in fact, attempt to siphon gasoline from some of the company trucks.’ ”

Even though there was evidence to show that the defendant unlawfully gained entry to the seed company and attempted to siphon gasoline from the trucks, the court, in a split decision, reversed the order of revocation because there was no allegation that the defendant had committed any crime. See also Crum v. State, 286 So.2d 268 (Fla.4th DCA 1973). To the extent that Frederick may be deemed applicable, we find ourselves in agreement with Judge Mager’s dissenting opinion.

Had the evidence only shown that appellant had been arrested, his position would be well taken because the mere fact of an arrest by itself cannot support a probation revocation. Brown v. State, 338 So.2d 573 (Fla.2d DCA 1976). Here, however, there was ample evidence that appellant became acquainted with Satterlee at the Brass Rail Bar and robbed him in the parking lot outside later that evening. There is no requirement of proof of a formal conviction to revoke probation for failing to remain at liberty without violating any laws. State v. Cochran, 140 So.2d 597 (Fla.1962). At no time during the proceedings did appellant attack the sufficiency of the charging document. Even though it could be said that the affidavit did not specifically charge appellant with the commission of a crime, it did sufficiently notify him that the state would be endeavoring to prove that he robbed Thomas Satterlee. It must be remembered that revocation proceedings need not be conducted with the formality of a criminal trial. Brill v. State, 159 Fla. 682, 32 So.2d 607 (1947); Youngs v. State, 329 So.2d 328 (Fla.3d DCA 1976).

Accordingly, the order of revocation is affirmed.

HOBSON, A. C. J., and McNULTY, J., concur.

      . There was sufficient evidence to support the conclusion that condition (7) had been violated, but in view of our disposition of the case we need not decide whether the revocation could be affirmed on this ground alone if the finding of the violation of condition (4) were set aside. Cf. Tuff v. State, 338 So.2d 1335 (Fla.2d DCA 1976).


text:
    NORIN MORTGAGE CORP., a Delaware Corporation, authorized to do business in the State of Florida, Appellant, v. WASCO, INC., a Florida Corporation, Appellee.
    No. 76-1080.
    District Court of Appeal of Florida, Second District.
    March 16, 1977.
    As Modified March 24, 1977.
    Rehearing Denied April 4, 1977.

      Howard A. Setlin, of Therrel, Blaisden, Stanton, Stillman, Brown & Wood, Miami Beach, for appellant.
    Robin Gibson, of Gibson & Connor, Lake Wales, for appellee.
   GRIMES, Judge.

This is an appeal and a cross-appeal from a judgment entered in a dispute between Norin Mortgage Corp. (Norin) and Wasco, Inc. (Wasco), the contractor.

Norin entered into a loan agreement with Blount Development Company whereby No-rin agreed to loan Blount $2,120,000. Blount entered into a contract with Wasco in which Wasco agreed to build certain buildings contemplated by the construction ■loan agreement for $1,451,000. Wasco fully performed the construction required under its contract, but Blount failed to pay Wasco $147,903. Blount also defaulted in its obligations to Norin, which resulted in the foreclosure of Norin’s mortgage with Norin bidding in at the sale.

Wasco sued Norin for the balance owed to it by Blount on the theory that Wasco had incurred certain additional obligations by signing an addendum to the loan agreement in exchange for a guarantee by Norin that it would set aside funds from the Blount loan to pay Wasco for the performance of its construction contract. Since the language of the pertinent documents and the relationship of the parties are peculiar to this case, we think it unnecessary to discuss the facts in further detail. Suffice it to say, we have concluded that there is sufficient evidence in this record to support the court’s conclusion that privity existed between Wasco and Norin to the extent that Norin was obligated to pay the balance owed by Blount under the construction contract.

However, there are three minor aspects of the case in which we believe the court erred and to which we will briefly refer. First, the court held that Norin became obligated to pay Wasco on January 20, 1975, which was the date Wasco received a letter from the architect certifying substantial completion of Wasco’s work. Consequently, interest upon the contract balance was determined to run from that date. We think the earliest date upon which the interest could begin to run was March 11, 1975, which was the date Wasco submitted its final affidavit to Blount under Section 713.06(3)(d)l, Florida Statutes (1973).

In the second place, we believe the court improperly held Norin liable for $1,521.19 in damages consisting of interest on money owed by Wasco to its subcontractors together with the expense of attorneys’ fees and court costs which Wasco must indemnify its bonding company for defending suits brought by the subcontractors for monies owed by Wasco in connection with the job. That portion of the award representing interest can easily be disposed of when it is realized that this item of damage is already included as part of the interest on the contract sum being recovered from Norin. The cost of defending the subcontractor’s suits presents a closer question.

The general rule concerning recovery of expenses of litigation as consequential damages for breach of contract is stated in 5 Corbin on Contracts, § 1037 (1964), as follows:

“. . . If the plaintiff [Wasco] can show that the defendant’s [Norin’s] breach of contract has caused litigation involving the plaintiff [Wasco] in the payment of counsel fees, court costs, and the amount of a judgment, and shows further that such expenditure is reasonable in amount and could not have been avoided by him by reasonable and prudent effort, he can recover damages against the defendant [Norin] measured by the amount of these expenditures.

Corbin goes on to explain that cases to which the rule of this section is most commonly applied are actions for breach of warranty where party A sells defective goods to party B with an express or implied warranty of kind or quality with reason to know that B will resell the goods to a new purchaser with a similar warranty. When B resells the goods to party C and C sues B, B is entitled to recover as an element of damage from A the cost of defending C’s suit. We have been unable to find a case on point nor has any authority been cited to us for the proposition that because one is expecting to pay another out of money he is rightfully entitled to receive, he is then able to recover the cost of defending an action brought by his creditor from the person who should have paid him sooner. Perhaps one reason for the lack of such a precedent is explained by a caveat to the general rule which provides that in any event an expense of litigation cannot be recovered if the plaintiff (Wasco) had no defense in that litigation and knew it. Corbin, supra. Presumably, Wasco owed the money to the subcontractors and simply employed counsel to defend the actions in the hope that by the time judgments were obtained Wasco would have received its payment from Blount or Norin. Be that as it may, in the absence of precedent, we are reluctant to permit damages of this nature because we can foresee that our ruling might have the effect of promoting a multitude of commercial litigation in which one who is waiting to be paid could later claim that he is entitled to recover from his payor the cost of defending various suits of his creditors.

We also think the court erred in deducting from monies owed by Norin to Wasco the sum of $5,600 which was determined to represent the value of the one year guarantee to correct defects contained in the construction contract. The evidence upon which this figure was based came from an architect who testified as an expert witness that this was the reasonable value of the work which would customarily be required under a contract of this size. However, Wasco did do some corrective work after the issuance of the architect’s certificate. Furthermore, this suit was tried more than a year after Wasco’s work was completed, and there is no indication that Wasco was ever notified that any other corrective work was needed. Even if further corrective work had been required, the need for notifying Wasco has practical significance. Wasco explained that it had performed the bulk of the job through subcontractors and that had Wasco been notified that further corrective work was needed, it would have been in a position to obtain the performance of the corrective work by the applicable subcontractor. Finally, since Blount first breached its contract by failing to pay Wasco the balance owed for its construction work, we doubt that Blount could have thereafter forced Wasco to perform any subsequent corrective work, and for purposes of this claim, Norin would stand in the shoes of Blount. See Carr v. Stockton, 84 Fla. 69, 92 So. 814 (1922).

Except as set forth above, the judgment is affirmed, but the case is remanded for the entry of an amended judgment which will reflect the changes required by this opinion.

McNULTY, A. C. J., and SCHEB, J., concur.


author: SCHEB, Judge.

text:
    FIRST WISCONSIN NATIONAL BANK OF MILWAUKEE, Appellant, v. Armand S. DONIAN and Phyllis Donian, Appellees.
    No. 76-1420.
    District Court of Appeal of Florida, Second District.
    March 16, 1977.
    Rehearing Denied April 14, 1977.

      Garth A, Webster, Wakefield, Hewitt & Webster, Miami, for appellant.
    . M. W. Schryver, Schryver, • Hagaman & Aaron, Naples, for appellees.
   SCHEB, Judge.

On this appeal, we are called upon to determine whether the trial court acquired in personam jurisdiction over certain defendants in a mortgage foreclosure suit where they were not served with process.

Plaintiff Bank (appellant herein) sought to foreclose a mortgage where the Donians (appellees herein) were guarantors of the underlying note obligation signed by other defendants. After it unsuccessfully attempted service on the Donians, the Bank moved for summary judgment against the other defendants. Prior to the scheduled hearing, the parties involved, including Armand Donian but not his wife, Phyllis Doni-an, entered into an “Agreement for Stay of Proceedings.”

The Preambles to the agreement recited that the borrower and the Donians, as guarantors, were attempting to secure refinancing and were seeking a stay of the foreclosure action. The agreement provided for an adjustment of accrued interest, and a modification of future interest payable under the mortgage note. It also imposed a limitation on interest the Bank could obtain on any deficiency judgment. The Bank agreed to stay the foreclosure proceedings for six months with an additional three months extension under certain conditions, one of which was that if the borrower and guarantors failed to pay the principal and interest, the Bank would be entitled to a final judgment for all principal, accrued and future interest as modified, and attorneys’ fees and costs. Should a deficiency arise upon foreclosure sale, the Bank agreed to give ten days notice to the attorneys of record for the borrower and guarantors of any application of a deficiency judgment. The borrower and guarantors reserved the right to dispute the Bank’s claim to a deficiency judgment and to appeal the award of any such judgment.

Only Mr. Donian signed the stay agreement. However, he and his wife, in proper person, both signed a joint motion seeking the trial court’s approval of the agreement to stay of the foreclosure proceedings. On February 24, 1975, the trial judge approved the agreement and as requested, stayed all proceedings, noting the court had “. •. jurisdiction - over the above parties ARMAND S. DONIAN and. PHYLLIS DONI-AN, who have appeared in these proceedings in proper person . . . ” The order indicates that a copy thereof was furnished to the Donians.

Approximately a year later, the Bank sought a final judgment reciting in its motion that the defendants failed to abide by their obligations under the court approved stay agreement. By order, on February 23, 1976, the trial court concluded that it had jurisdiction over the subject matter and parties and awarded a final judgment of foreclosure in favor of the Bank. Jurisdiction to consider the question of a deficiency judgment was reserved by the court.

As a result of the final judgment, $1,650,-620.84 became due to the plaintiff Bank. The property was bid in by the plaintiff at public sale for $1,016,000. When the Bank moved for a deficiency judgment of $634,-620.84, the Donians by their counsel moved to abate the proceedings for lack of jurisdiction over their persons. The court granted that motion and on August 4,1976, abated the action against the Donians. This interlocutory appeal by the plaintiff Bank ensued. Having concluded the court had jurisdiction over the Donians, we reverse.

Jurisdiction over defendants is ordinarily acquired by service of process on them or by their voluntary appearance and submission to the court. McKelvey v. McKelvey, 323 So.2d 651 (Fla.3d DCA 1976). Since no personal or constructive service of process was ever accomplished on the Doni-ans, we must determine whether their actions in requesting the court to approve their agreement and to grant a stay of proceedings was sufficient to constitute a submission by them to the court’s jurisdiction.

Formerly, we would have focused on whether the Donians made a “general appearance” or “special appearance” in the litigation; however, this distinction has been abolished. Ward v. Gibson, 340 So.2d 481 (Fla.3d DCA 1976). The present method of raising the question of jurisdiction over the parties is by a responsive pleading or motion. Fla.R.Civ.P. 1.140(b); Greenberg v. Greenberg, 101 So.2d 608 (Fla.3d DCA 1958). Since no responsive pleading or motion has been filed, we must determine whether the Donians by their actions before the court obtained some relief or material benefit sufficient to constitute a submission by them to the court’s jurisdiction. Green v. Roth, 192 So.2d 537 (Fla.2d DCA 1966). The Donians contend they did not, and cite Paulson v. Faas, 171 So.2d 9 (Fla.3d DCA 1965), for the proposition that a stipulation merely extending time for a defendant to answer does not waive jurisdictional defenses. We do not think the Paulson principle is applicable to this case. Here, the Bank and the Donians agreed upon several items of material consequence to their interests in the pending litigation. Then they jointly requested the court to stay the proceedings on basis of those agreements which modified the rights of all parties to that litigation.

The Donians argue they received no benefit relative to the merits of the deficiency judgment which the Bank now seeks. Further, they contend any relief afforded them was the product of the agreement between the parties and did not come from the court. Finally, they point out that retaining the right to dispute the Bank’s claim to a deficiency was inconsistent to acceding to the court’s jurisdiction over them. We find no merit to these arguments. It is apparent to us that it was in the Donians’ interest to secure the adjustments which the Bank agreed to, and to have a respite of six to nine months during which the borrower and they, as guarantors, could attempt to refinance the obligation being foreclosed by the Bank. Likewise, we find no merit to their argument that they reserved the right to challenge the court’s jurisdiction over them by the language in their agreement that guarantors reserve the right at said hearing upon application for deficiency judgment to dispute the Bank’s claim to a deficiency judgment . . . ” The quoted language is as susceptible to an implicit acknowledgment of jurisdiction as it is to the position now taken by the Donians.

We think the relief sought by the Donians falls within the principle of Green v. Roth, supra, that those who participate in litigation by moving the court to grant requests materially beneficial to them, have submitted themselves to the court’s jurisdiction.

Accordingly, the judgment of the trial court is reversed and the cause remanded for further proceedings consistent with this opinion.

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


text:
    Sally Lee Schindel SMITHWICK, Appellant, v. Ollie M. SMITHWICK, Jr., Appellee.
    No. 76-267.
    District Court of Appeal of Florida, Third District.
    March 22, 1977.

      Hugh R. Papy, Key West, for appellant.
    Franklin, Ullman, Kimler & Entin and Sue Rose Samuels, North Miami Beach, for appellee.
   Before HENDRY, C. J., and HAVER-FIELD and NATHAN, JJ.

PER CURIAM.

In this action for past due alimony and support payments plaintiff, Sally Lee Smi-thwick, appeals a final judgment (1) determining that she is not entitled to a judgment for alimony past due or future, and (2) reducing the amount of future child support payments.

On April 10, 1970 plaintiff and her former husband, Ollie, executed a property settlement agreement whereby Ollie agreed to pay alimony of $500 per month and additional lump sum alimony in annual payments commencing on December 13,1970 in graduated increasing amounts; child support of $250 monthly per child until age twenty-one or completion of college, whichever occurred first; and the children’s college tuition, room, books and fees. Shortly thereafter the parties were divorced. In December 1973 Ollie ceased paying alimony and reduced the monthly support payments to $100 per child. On June 20, 1974 Sally filed a complaint praying that the court enter a judgment against Ollie for the delinquent alimony and child support payments. Ollie answered and for affirmative defenses alleged that the agreement was obtained by misrepresentation and coercion, and his income had so decreased that he was unable to comply with its terms. Following the trial of the cause, the judge entered a judgment terminating any future alimony and determining that Sally is not entitled to payment of past due alimony because of her sufficient earnings in the past. The judgment also required Ollie to pay $6,300 in child support arrearages, payable in 63 equal monthly installments and in lieu of the college education provision of the agreement to pay $125 per month per child upon each child obtaining the age of eighteen. Sally appeals.

We first considered the trial judge’s determination that Sally was not entitled to delinquent alimony and find error in this determination.

The right of a wife to payment of alimony and child support in arrears is vested and while it is within the discretion of the court to refrain from holding the husband in contempt for non-payment, the wife is entitled to enforcement of the payments by legal process and by such equitable remedies as the trial court may determine to be appropriate or necessary. Feder v. Feder, 291 So.2d 641 (Fla.3d DCA 1974); Hynes v. Hynes, 277 So.2d 557 (Fla.3d DCA 1973); Petrucci v. Petrucci, 252 So.2d 867 (Fla.3d DCA 1971). In his brief Ollie takes no issue with this statement of the law, but contends that under certain compelling or extraordinary circumstances, the trial court would be justified in refusing to enforce the payment of past due installments against a defaulting spouse. See Teta v. Teta, 297 So.2d 642, 645 (Fla.1st DCA 1974). The record does not reflect that this case falls within the above exception and we hold that the trial judge erred in failing to enter judgment in Sally’s favor for the arrearag-es in alimony.

We also find error in the trial judge’s termination of future alimony and reduction in child support.

Even though Ollie alleged certain defenses to Sally’s complaint, he did not file any pleading for modification of either alimony or child support, and a trial judge is without jurisdiction to modify child support or alimony payments where no pleading is filed directed to modification thereof. See Cortina v. Cortina, 98 So.2d 334 (Fla.1957); Taylor v. Taylor, 143 So.2d 516 (Fla.2d DCA 1962); Goff v. Goff, 151 So.2d 294 (Fla.3d DCA 1963); Lourcey v. Lourcey, 256 So.2d 25 (Fla.1st DCA 1971); Purvis v. Carver, 303 So.2d 681 (Fla.4th DCA 1974); Herbert v. Herbert, 304 So.2d 465 (Fla.4th DCA 1974).

Accordingly, those provisions of the judgment terminating alimony and reducing the child support are set aside, and the alimony and child support payments provided in the settlement agreement are reinstated without prejudice to further consideration of these matters by the trial court upon filing appropriate pleadings.

We find no error in the trial judge’s determination to allow Ollie to pay the ar-rearage in child support in monthly installments as the enforcement of payment of arrears of child support or alimony is a matter resting in the sound discretion of the court to be determined on equitable considerations, including the financial status of the parties. See Gottesman v. Gottesman, 220 So.2d 640 (Fla.3d DCA 1969).

In light of our disposition of the above points, we deem it unnecessary to dispose of the remaining points presented.

The cause is remanded to the trial court for further proceedings consistent herewith.

Reversed and remanded.


text:
    Jimmy BOSTIC and Katie Bostic, his wife, Appellants, v. Orlando R. GRAHAM and North Shore Hospital, a corporation, Appellees.
    No. 76-672.
    District Court of Appeal of Florida, Third District.
    March 22, 1977.
    Rehearing Denied April 13, 1977.

      Mueller & Hunt, Ft. Lauderdale, for appellants.
    Walton, Lantaff, Schroeder & Carson, and George W. Chesrow, Magill & Sevier and Victor H. Womack, Miami, for appel-lees.
    Before HENDRY, C. J., BARKDULL, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The appellants, who were the plaintiffs in a medical malpractice action filed June 5, 1975, against the appellee doctor and appel-lee hospital, appeal from a summary judgment entered in favor of the defendants. The plaintiff Jimmy Bostic injured his back in lifting a heavy object, while acting in the course of his employment. In the emergency room of the defendant hospital, to which he was taken approximately one half hour after the accident, he was examined by the defendant doctor, Orlando R. Graham, acting as an employee of the hospital. The negligence charged against defendant Orlando R. Graham, the doctor, was for not having taken an x-ray of the plaintiff’s back in the course of the examination. Recovery was sought against the hospital under the doctrine of respondeat superior.

On the evidence before the court on the hearing on the defendants’ motion for summary judgment, the trial court necessarily concluded, and we agree, that the defendants sustained their “burden to prove the non-existence of genuine triable issues” relating to the plaintiff’s charge of negligence, as such burden is set out in Holl v. Talcott, Fla., 191 So.2d 40 at 43, and at 47 in the opinion on petition for rehearing.

The summary judgment is affirmed.


text:
    Isadore YAGODA, Appellant, v. Ella KLEIN, f/k/a Ella Yagoda, Appellee.
    No. 76-682.
    District Court of Appeal of Florida, Third District.
    March 22, 1977.
    Michael B. Solomon, Miami Beach, for appellant.
    Turner, Shapiro & Levy, Miami, Robert M. Bader, Port Charlotte, for appellee.
    Before BARKDULL, HAVERFIELD and HUBBART, JJ.
   PER CURIAM.

Affirmed. See: Gordon v. Gordon, 59 So.2d 40 (Fla.1952); Yagoda v. Klein, 305 So.2d 29 (Fla. 3d DCA 1974); Yagoda v. Klein, 293 So.2d 734 (Fla. 3d DCA 1974).


text:
    Johnnie Mae OLDS and James Olds, her husband, Appellants, v. Guillermo DIAZ et al., Appellees.
    No. 76-706.
    District Court of Appeal of Florida, Third District.
    March 22, 1977.
    Rehearing Denied April 13, 1977.
    Goldstein & Goldstein, Miami, for appellants.
    Marlow, Shofi, Ortmayer, Smith & Span-gler, John A. O’Connor, Miami, John B. Oster, Pompano Beach, Jeanne Heyward, Miami, for appellees.
    Before BARKDULL, HAVERFIELD and HUBBART, JJ.
   PER CURIAM.

Affirmed. See: Wooten v. Collins, 327 So.2d 795 (Fla.3d DCA 1976); Sears, Roebuck & Co. v. McAfoos, 303 So.2d 336 (Fla.3d DCA 1974); Stewart v. Cook, 218 So.2d 491 (Fla.4th DCA 1969).


text:
    Esther WOLF, Appellant, v. Sam MALEVANI, Appellee.
    No. 76-1047.
    District Court of Appeal of Florida, Third District.
    March 22, 1977.
    Mamber, Gopman, Epstein & Foosaner and Craig D. Savage, North Miami Beach, for appellant.
    Moore, Kessler, Roth & Beckerman, Miami, for appellee.
    Before HAVERFIELD, NATHAN and HUBBART, JJ.
   PER CURIAM.

Esther Wolf, plaintiff in the trial court, seeks reversal of an order dismissing with prejudice her amended complaint to recover money allegedly given to the defendant, her son-in-law, towards the purchase of a condominium.

In the fall of 1974 Esther Wolf and the defendant, Sam Malevani, who at the time was married to Mrs. Wolf’s daughter, allegedly entered into an oral agreement whereby Wolf would be permitted to live with her daughter and son-in-law in a two bedroom condominium if she would contribute money towards its purchase. Wolf alleges she contributed a substantial sum of money; but prior to the purchase, her daughter died and now Malevani refuses to allow her to live in the condominium as agreed. Wolf filed a complaint and thereafter, pursuant to an agreed order of the parties, an amended complaint to recover from Malevani the monies she contributed on the theories of unjust enrichment and promissory estoppel. Malevani filed a motion to dismiss on the ground Wolf was barred from recovery by the Statute of Frauds, Section 725.01, Florida Statutes (1975). After hearing argument on this motion, the trial judge entered an order dismissing the amended complaint. We reverse.

Esther is not seeking to enforce the alleged oral agreement, but merely is asking for restitution, her remedy at law for recovery of her monetary consideration. Therefore, recovery is not barred by the Statute of Frauds. See Neal v. Gregory, 19 Fla. 356 (1882); Avery v. Marine Bank & Trust Company, 216 So.2d 251 (Fla.2d DCA 1965). It appears that the following quote from Cook v. Adams, 89 So.2d 6, 8 (Fla.1956) may be applicable to the instant cause of action:

“[3] This case is typical of many in which those of advanced years pledge their lands and belongings to others to take care of them for the balance of life and when the burden becomes onerous, the pledgee welches on the bargain.”

Reversed.


text:
    James L. DAVIS and H. K. Terry, Appellants, v. George C. DEMPSEY, Appellee.
    No. 76-1598.
    District Court of Appeal of Florida, Third District.
    March 22, 1977.

      Nicholson, Howard, Brawner & Lovett, and Harry K. Bender, Miami, for appellants.
    Clark & Livingstone, South Miami, for appellee.
    Before HENDRY, C. J., and NATHAN and HUBBART, JJ.
   HUBBART, Judge.

This case is a contract action for damages and specific performance. The trial court removed the venue of the cause from Dade County to Palm Beach County, Florida. The plaintiff appeals.

The issue presented for review is whether a complaint which alleges that a person has defaulted on payments due under a contract for the payment of money, which contract fails to expressly provide for a place where such payments were to be made, affirmatively shows that venue is lacking in the county where the contract creditor resides. If no such showing is made, a second issue is presented as to whether this result is changed if the contract debtor makes an unsworn allegation in a motion to dismiss the complaint that payments under the contract were made in another county where the contract debtor resides. We hold that under such circumstances venue is properly laid in the county where the contract creditor resides and reverse.

The plaintiffs-appellants [James L. Davis and H.' K. Terry] filed a contract action for damages and specific performance against the defendant-appellee [George C. Dempsey] in the Dade County Circuit Court. The complaint alleged that the plaintiffs were residents of Dade County and the défend-ant a resident of Palm Beach County. The plaintiffs sought damages from the defendant for non-payment of monies allegedly due and owing on a lease and sale contract involving certain land located in Martin County, Florida. The plaintiffs also sought damages for anticipatory breach of contract on all contract payments not presently due and owing. Finally, the plaintiff sought specific performance on the contract for the sale of land.

The alleged contract between the parties was attached to, and incorporated by the complaint. Under the contract, the plaintiffs agreed to sell and the defendant agreed to buy the aforesaid land in Martin County, Florida. Upon proof of good, title, the sale and purchase was to be consummated on February 10,1977. Between February 10, 1975 and February 9, 1977, the parties agreed that the plaintiff would lease the aforesaid land to the defendant for $30,000, payable in four equal semiannual installments. The contract contained no provisions as to where these payments were to be made, but the parties’ respective residences were stipulated in the agreement. One half of the lease payments were to be applied to the down payment for the sale and purchase of the aforesaid land. The parties agreed that Key Properties of Palm Beach County, Florida, would be the procuring real estate broker in this transaction.

The complaint alleges that the defendant paid the first lease installment in the amount of $7,500, but has refused upon demand to pay the next two installments which are now overdue; that the defendant has communicated to the plaintiffs his refusal to pay any future installments under the contract; and that the defendant has evinced an intent not to purchase the land as agreed under the contract.

The defendant moved to dismiss the complaint on the ground of improper venue. Specifically, the defendant alleged that all sums due under the contract were paid to Key Properties in Palm Beach County. This motion was not sworn to nor does the record reflect that the defendant submitted any sworn proof in support of this allegation. The trial court granted the motion and transferred ■ the venue of the cause to the Circuit Court for the 15th Judicial Circuit in and for Palm Beach County, Florida. A timely petition for rehearing was heard and denied.

The principles of venue law which govern this appeal are well-settled. A lawsuit may be brought in any county where the cause of action accrued and, if several causes of action are involved, in any county where any one of the causes of action arose. Sections 47.011, 47.041, Florida Statutes (1975).

An action, as in the instant case, on a contract for the payment of money, where the contract debtor has defaulted on payments thereunder, accrues in the county where payment was agreed to be made. If no place of payment has been expressly agreed upon, it will be implied that payment was to be made in the county where the contract creditor resides. The theory is that the debtor should seek the creditor to make payment under the contract unless otherwise provided or agreed. Croker v. Powell, 115 Fla. 733, 156 So. 146 (1934); Williams v. Aeroland Oil Co., 155 Fla. 114, 20 So.2d 346 (1944); Duggan v. Tomlinson, 167 So.2d 2 (Fla. 1st DCA 1964), aff’d 174 So.2d 393 (Fla.1965); M. A. Kite Co. v. Samford, 130 So.2d 99 (Fla. 1st DCA 1961); Mendez v. George Hunt, Inc., 191 So.2d 480 (Fla. 4th DCA 1966); B & F of Clearwater, Inc. v. Wesley Construction Co., 237 So.2d 790 (Fla. 2d DCA 1970); First International Realty Investment Corp. v. Cochran, 314 So.2d 214 (Fla. 3d DCA 1975).

The defendant has the burden of pleading and proving that the venue is improper in a lawsuit, assuming that the plaintiff’s complaint does not affirmatively show that the venue is lacking. This burden can only be satisfied by pleading and proving facts before the trial court which will defeat the venue as laid. Permenter v. Bank of Green Cove Springs, 136 So.2d 377 (Fla. 1st DCA 1962); Florida Forms, Inc., v. Barkett Computer Services, Inc., 311 So.2d 730 (Fla. 4th DCA 1975).

In the instant case, it is clear that the plaintiffs complaint fails to affirmatively reveal any venue defects. The complaint alleges a breach of a contract debt committed by the contract debtor wherein the parties did not expressly agree on a place of payment. Under the law, it is implied that payment was to be made in Dade County where the plaintiff-creditor resides. Venue may therefore be laid in Dade County since the cause of action accrued there when the debtor-defendant allegedly defaulted on the contract payments.

The defendant did not sustain his burden of proof to establish that the venue herein was improperly laid. He merely pled in his unsworn motion to dismiss that payments under the contract were paid to a realtor in Palm Beach County. That allegation, however, was never established by sworn proof before the trial court. Moreover, the plaintiff contends on appeal that the first and only such payment was made to the realtor in Palm Beach County as a convenience to facilitate a deduction of the real estate broker’s fee before remitting the balance to the plaintiff in Dade County. In our view, such action would not have shown an intent by the parties that all future payments be made in this manner since the real estate broker’s commission would have already been paid. We need not, however, reach this question since the entire matter was never established by sworn proof before the trial court. We only conclude that on this state of the record venue was properly laid in Dade County.

The order dismissing the plaintiff’s complaint and transferring the venue of- this cause to Palm Beach County is reversed and the cause remanded for proceedings consistent with this opinion.

Reversed and remanded.


text:
    The CITY OF SWEETWATER, Appellant, v. DADE COUNTY, Florida, a political subdivision of the State of Florida, Appellee.
    No. 76-2101.
    District Court of Appeal of Florida, Third District.
    March 22, 1977.
    John G. Fletcher, Coconut Grove, for appellant.
    Stuart L. Simon, County Atty., for appel-lee.
    Allen Cleméhts, Jr., Miami Beach, as ami-cus curiae;
    Before, HENDRY, C. J., NATHAN, J., and CHARLES CARROLL (Ret.), Associate Judge.
   CHARLES CARROLL (Ret.), Associate Judge.

In. August of 1973 the appellant City of Sweetwater, a municipality in Dade County, by ordinance enacted by the governing body of the city, annexed five acres of land lying in the county, contiguous to that city. In so doing, the city employed a method of annexation prescribed in section 171,16 Florida Statutes 1973. That general act provided that on petition of owners of property so situated in a county the governing body of the municipality by ordinance could annex such property and redefine the boundary lines of the municipality to include said property.

On September 26, 1975, the City of ’Sweetwater filed an action against Dade .County for a declaratory judgment as to the validity of such annexation. In its answer thereto Dade County admitted the action taken by the city,- and presented the contentions that, the general act under which the city made the annexation was not applicable to Dade County; that the method of annexation used was not that which was provided for by Dade County; that the latter was controlling; and that the annexation which had been made by the City of Sweetwater was invalid. With consent of the parties, the court determined the matter by judgment on the pleadings.

In a full and well reasoned opinion and judgment the trial court sustained the contentions of the defendant Dade County. In the concluding paragraphs of the judgment the court held as follows:

“1. The purported annexation by the City of Sweetwater of the five (5) acres of real property involved in this cause is hereby held invalid.
“2. The method of municipal annexation set forth in Section 5.04 of the Dade County Charter presently constitutes the exclusive method of modifying municipal boundaries in Dade County.
“3. Subsections 1(a) through (i) of the Home Rule Amendment constitute those organic areas of autonomy and authority in local affairs conferred upon Dade County by the Florida Constitution and may not be diminished and curtailed by general laws of the State enacted after 1956.”

In so holding, the trial court was eminently correct. By Article VIII, section 6(e) Florida Constitution as revised in 1968, it was provided that section 11 of Article VIII of the Florida Constitution of 1885 (the Dade County Home Rule amendment) remained in full force and effect. In the latter it was expressly stated that the Dade County Home Rule Charter adopted by the electors could provide a method for changing the boundaries of all municipal corporations whose jurisdiction lies wholly within Dade County.

The method provided by the Home Rule Charter was for changes of boundaries of a municipality (which would include an annexation) to be made by the Board of County Commissioners, and that no municipal boundaries should be altered except as thus provided for.

The matter of changing boundaries of municipalities is one of the areas of autonomy conferred on Dade County by the Home Rule Amendment, with the result that the method provided therefor by the Home Rule Charter, pursuant to authorization by the Home Rule Amendment, is effective and exclusive, notwithstanding the existence from time to time of a general state law which makes provision for some other method. Gray v. Golden, 89 So.2d 785, 791 (Fla.1956); Dade County v. Young Democratic Club of Dade County, 104 So.2d 636, 639 (Fla.1958).

Affirmed.

      . “§ 11. Dade County, home rule charter. — (1) The electors of Dade County, Florida, are granted power to adopt, revise, and amend from time to time a home rule charter of government for Dade County, Florida, under which the Board of County Commissioners shall be the governing body. This charter:
      s}s 5}! * sfs
      “(c) May change the boundaries of, merge, consolidate, and abolish and may provide a method for changing the boundaries of, merging, consolidating and abolishing from time to time all municipal corporations, * * * ”

      . § 5.04 of the Dade County Home Rule Charter, entitled “Changes in Municipal Boundaries”, provides as follows:
      “A. The planning director shall study municipal boundaries with a view to recommending their orderly adjustment, improvement, and establishment. Proposed boundary changes may be initiated by the Planning Advisory Board, the Board of County Commissioners, the governing body of a municipality, or by a petition of any person or group concerned.
      “B. The Board of County Commissioners, after obtaining the approval of the municipal governing bodies concerned, after hearing the recommendations of the Planning Advisory Board, and after a public hearing, may by ordinance effect boundary changes, unless the change involves the annexation or separation of an area of which more than 250 residents are electors, in which case an affirmative vote of a majority of those electors voting shall also be required. Upon any such boundary change any conflicting boundaries set forth in the charter of such municipality shall be considered amended.
      “C. No municipal boundary shall be altered except as provided by this Section.”


author: OTT, Judge. McNULTY, Judge,

text:
    R. G. CASSADY, Lake County Tax Assessor, et al., Appellants, v. Holt S. McKINNEY, Appellee.
    No. 76-700.
    District Court of Appeal of Florida, Second District.
    March 23, 1977.
    Richard W. Hennings and Christopher C. Ford, Ford, Cauthen & Robuck, Tavares, for appellants.
    Neal D. Huebsch, Huebsch, Bowen & Va-son, Eustis, for appellee.
   OTT, Judge.

This is an appeal from a final judgment voiding for the second time the assessment of certain agricultural lands by the tax assessor for failure to comply with Section 193.461(6), Florida Statutes, the “Green Belt Law.” The trial court’s judgment further found and set the assessment for the two tax years in question, 1971 and 1972. We affirm the trial court in its judgment that the tax assessments were illegal and void. We reverse the trial court on determining and settling the assessments of the land for the reasons hereinafter discussed.

This is the second appearance of this case before the court. See Cassady v. McKinney, 296 So.2d 94 (Fla. 2d DCA 1974). In its first appearance this court affirmed the trial court’s determination that the tax assessor had not complied with Section 193.-461(6) in that he did not consider the following two of the seven use factors mandated by the legislature:

(1) The present depreciated value of improvements thereon. (Including citrus trees)
(2) The income produced by said property-

The tax assessor was directed to reassess particularizing as to these two factors.

Upon the subsequent hearing before the trial court the evidence again was quite clear as to the failure of the tax assessor to consider these two factors although well documented by the evidence submitted both to the tax assessor and the trial court. The trial court correctly found the second assessment (identical to the first invalid assessment) illegal and void. The trial court also rejected the testimony of the taxpayer as being even less in compliance with the statute. In this we fully concur and, therefore, affirm.

There remains the question of the power or propriety of the trial court in proceeding to its own determination of the assessment value of the property and the tax owed thereon.

The tables of the tax assessor establishing the per acre average or normal value attributed to groves of a given type, age, size, condition, etc. were before the court and supported by the evidence as having been established by accepted methods and considerations.

Detailed evidence was presented concerning the actual fruit production of the groves, the husbandry practices, the expenses of the owner and the amount (gross and net) realized for each of the years from 1961 to 1971. The consistent below normal income was uncontradicted in spite of exceptionally good husbandry.

There was also ample evidence concerning the unusual condition and development of the trees over the period of years from planting up to the present (1971 and 1972) levels of maturity, condition and production—again markedly and consistently below normal.

The evidence clearly established that consideration of these two factors in arriving at the assessment of these agriculture (grove) lands would result in reducing their assessed value. The evidence clearly mandated “some” or “due” or “appropriate” consideration (adjustment from the normal) in this particular assessment. In other words the evidence clearly demonstrated substantial variation from the average or normal grove of similar type, size, age, etc., not due to the owners neglect or abuse. Some appropriate adjustment was therefore in order provided made by accepted or established methods. It is our view that evidence was totally lacking in this required particular and the trial court was thereby prevented from making its own determination, regardless of its own expertise or experience in this area.

In fixing tax assessments the trial court is required to have competent substantial evidence in the record as to the manner, extent or degree such factors bear upon the valuation. If there is competent evidence before the trial court in this regard it certainly is free to accept that which is most believable or compromise between two extremes as it deems the facts and circumstances warrant. It may thereupon make the necessary calculations or adjustments. Otherwise there could not be a ready resolution of a tax assessment where the tax assessor consistently fails or declines to consider such requirements. In the absence of such evidence the trial court cannot substitute its own independent judgment, no matter how enlightened or realistic.

In Simpson v. Merrill, 234 So.2d 350 (Fla.1970), the Supreme Court of Florida affirmed the First District Court of Appeal’s holding that the circuit court’s fixing of assessments was improper. The supreme court agreed with the First District Court of Appeal that the statutes dealing with the tax assessment of lands

L . . authorizes the circuit court to inquire into and determine the legality, equality and validity of assessments and to render decrees setting aside such assessment or any part of the same that shall appear to be contrary to law. But this provision of the law does not permit the trial judge to use his independent judgment, without competent evidence being introduced before him, in fixing assessments. He can not take the place of the assessor, although he may reduce the tax assessor’s assessment if competent evidence is introduced showing the same to be in error.’ 234 So.2d at 352. (Emphasis supplied.)

The facts of Simpson showed that the assessed valuation had risen as follows:

1964 $6,900
1965 $34,800
1966 $185,600
1967 ' $185,600

in spite of a “static” condition prevailing since the 1965 assessment. The respondent landowner put on testimony to the effect that the highest possible assessment would be $47,000. The lowest figure reached by the tax assessor’s witness was $146,500. The supreme court held that

while it is clear that the assessments for the years 1966 and 1967 are excessive, respondents have not carried the burden of presenting evidence to establish the degree of excessiveness. 234 So.2d at 352. (Emphasis supplied.)

Thus the supreme court held that the lower court could not properly find that the fair market value of the realty was $109,250 since no evidence was presented upon which a value could be arrived at between the figures given by either side.

The Simpson proposition that the circuit court must apply “competent evidence” in any reduction of illegal assessments is applicable in the instant case. We, therefore, reverse and set aside the trial court’s adjustment and determination of the assessment of the lands and remand the case for further proceedings consistent with the foregoing.

HOBSON, Acting C. J., concurs.

McNULTY, J., concurs specially.

McNULTY, Judge,

concurring specially.

I fully agree that there was a lack of competent evidence to support the specific assessments as found by the trial court. But in my view, even if there were sufficient evidence to which the trial judge could point I think he would be without authority to set the assessment himself. The tax assessor is a constitutional officer whose duty it is to assess. The courts ought not substitute their judgment for his. While it is true that Simpson v. Merrill appears, through dicta, to support a contrary view, a careful reading of that case will reveal that the court was really determining that the evidence in that case would not support an assessment in excess of a certain amount. In other words, the court set a cap beyond which, by the assessor’s own evidence, a valid assessment would not lie.

The proper rule in these cases, I think, (analogously not unlike zoning cases) ought to be that depending upon competent evidence a court may determine that a given assessment is legally excessive, and perhaps determine the amount of such excess (i. e., set a “cap”); but it should remand back to the assessor the function of actually setting the assessment taking into account other viable criteria which, in the assessor’s discretion, bear on the issue. If it is otherwise, every taxpayer feeling aggrieved would have nothing to lose if he but try to persuade a circuit judge to adopt his evaluation simply by presenting some competent evidence thereof. The circuit courts of this state may well end up doing nothing else.

I would therefore also reverse the assessment as set by the trial judge but would remand with directions that he determine the amount of excess of the assessment and return to the assessor the duty to make a specific appropriate assessment.

      .At the time of the assessment in question (1971-1972) Florida Statute § 193.461(6)' read as follows:
      The county tax assessor in assessing such lands so zoned and primarily used for agricultural purposes as described and listed shall consider no factors other than those relative to such use. The tax assessor in assessing land within this class shall take into consideration the following use factors only:
      (a) The present depreciated value of improvements thereon;
      (b) The quantity and size of the property;
      (c) The condition of said property;
      (d) The present value of said property as agricultural land;
      (e) The income produced by said property;
      (f) The character of the area or place in which said property is located; and
      (g) Such other agricultural factors as may from time to time become applicable.
      The Green Belt Law was amended in 1972. It now reads as follows:
      (6)(a) In years in which proper application for agricultural assessment "has been made and granted pursuant to this section, the assessment of land shall be based solely on its agricultural use. The [property appraiser] shall consider the following use factors only:
      1. The quantity and size of the property;
      2. The condition of said property;
      3. The present market value of said property as agricultural land;
      4. The income produced by said property;
      5. The productivity of land in its present use;
      6. The economic merchantability of the agricultural product; and
      7. Such other agricultural factors as may from time to time become applicable.
      Note that parts (a) and (f) of the prior statute were not incorporated into the new version which added new sections (5) and (6). Former parts (b), (c) and (e) correspond to new parts (1), (2) and (4). Former part (d) has been changed significantly in meaning by new part (3).

      . 234 So.2d 350 (Fla.1970).

      . See, e. g., City of Miami Beach v. Weiss, 217 So.2d 836 (Fla.1969); Burritt v. Harris, 172 So.2d 820 (Fla.1965); Wood v. Twin Lakes Mobile Homes Village, Inc., 123 So.2d 738 (Fla. 2d DCA 1960). See also 35 Fla.Jur., Zoning Laws, § 30 at pp. 729-730.


author: ERVIN, Judge.

text:
    H. Stanley OVERSTREET and University City Bank, a banking association, Appellant, v. Richard Douglas BISHOP, Appellee.
    No. BB-223.
    District Court of Appeal of Florida, First District.
    March 24, 1977.

      Herbert T. Schwartz of Schwartz & Dearing, Gainesville, for appellant.
    James S. Quincey, Gainesville, for appel-lee.
   ERVIN, Judge.

This is an appeal by defendant Overstreet from a final summary judgment entered in favor of appellee Bishop who had sought declaratory judgment of his rights under an alleged balloon mortgage. Overstreet was trustee of a 384 acre tract of land. He, along with his agents Daniel and McTeer, entered into a contract to sell the land to Bishop. The total sale price was in excess of $782,000.00. The land was encumbered by two mortgages which Bishop agreed to assume. A third mortgage and note were prepared by Bishop’s attorney, Gary Moody, providing that $13,425.14 principal plus accrued interest at the rate of 7V2% annually were to be paid at the end of each of the first four years from the date of the note, with the remaining $80,553.70, plus accrued interest, to be paid in a lump sum within five years from date of execution.

The note and mortgage were then forwarded by Moody to Overstreet’s attorney, who examined them and made the following changes by (1) increasing the interest on the note from 7V2% to 10%, (2) deleting a paragraph relieving Bishop from personal liability in the event of default, and (3) adding a provision stating that in the event a default in payments on the two prior mortgages occurred, the third mortgage would be considered in default. The note and mortgage were then prepared in final form by Overstreet’s attorney and returned to Moody. Later the closing was held in the office of the lawyer representing Over-street, at which time Mr. Overstreet was present. Several weeks afterward, Moody discovered that the mortgage was a balloon mortgage and subject to the proscriptions of Section 697.05, Florida Statutes (1975). He then reported such fact to Bishop. An action for declaratory judgment was brought by Bishop seeking a determination of his rights under the note and mortgage. Subsequently, the trial court granted summary judgment in favor of Bishop, extended the maturity date of the note and mortgage an additional five years, and ordered that the entire interest charged be forfeited.

Overstreet’s sole point on appeal contends that Bishop should be equitably estopped under the facts from asserting the statutory defect.

The elements of equitable estoppel or estoppel in pais as related to the party-estopped are:

“(1) [C]onduct which amounts to a false representation or concealment of material facts, or, at least, which is calculated to convey the impression that the facts are otherwise than and inconsistent with those which the party subsequently attempts to assert; (2) intention, or at least expectation, that such conduct shall be acted upon by the other party; and (3) knowledge, actual or constructive, of the real facts.” 12 Fla.Jur., Estoppel and Waiver, Section 30 (1957).

We agree with the trial court that Over-street did not sustain his burden to prove clearly and satisfactorily that the three elements were established. While Overstreet arguably may have presented an adequate showing as to the first two elements, he has failed to present proof of the third element, i.e., that Bishop had knowledge prior to his execution of the mortgage that the mortgage was a balloon mortgage and was therefore subject to the forfeiture provisions of Section 697.05.

It was necessary for Overstreet to show the active or acquiescing party had facts concerning the defect solely within his knowledge. Cox v. LaPota, 76 So.2d 662 (Fla.1964). As our Supreme Court stated in Price v. Stratton, 45 Fla. 535, 33 So. 644, 647 (Fla. 1903): “. . . where the parties have equal knowledge, or the same means of ascertaining the truth, there can be no estoppel.”

Both parties were represented by attorneys prior to the execution of the documents. Counsel for Overstreet made substantial changes in the initial draft prepared by Bishop’s attorney, and in fact drew the final instruments. The closing was at the office of Overstreet’s attorney. Clearly both parties to the sale had “equal knowledge or the same means of ascertaining the truth” of the documents’ terms. Additionally, the record shows that the Overstreet’s attorney had an extensive real estate practice and three times more legal experience than Moody. It is therefore not unreasonable to conclude that all parties were innocently unaware of the legal consequences of the mortgage they executed.

This case does not involve the unconscionable overreaching of a mortgagor who sought to invoke the provisions of Section 697.05 in Lupoff v. Hartog, 237 So.2d 588 (Fla. 4th DCA 1970). In Lupoff, the mortgagor, an attorney, prepared a balloon mortgage on behalf of the mortgagee, a widow who had no counsel. Following default, a foreclosure action was brought and the mortgagor sought enforcement of Section 697.05 since the required statutory legend was not placed upon the face of the mortgage. The trial court’s judgment precluding the mortgagee from entitlement to interest and attorney’s fees was reversed. The Fourth District Court of Appeal held:

“In this case in dealing with a layman, a widow, who had no counsel, the mortgagor as an attorney was charged with a high degree of care and responsibility incident to the mortgage papers he prepared or caused to be prepared for a loan for his own benefit, and it would appear unconscionable for him to exploit a condition which he created. The relationship far exceeded that of debtor and creditor when he assumed the responsibility to prepare the mortgage instruments to be utilized in the mortgage transaction in which he became the principal benefactor as mortgagor. State ex rel. The Florida Bar v. Delves, Fla.1963, 160 So.2d 114.” 237 So.2d at 589.

The distinction between the facts in Lu-poff and those in the case on review is obvious. Here the relationship was the customary arms length transaction between debtor and creditor. Had Bishop’s attorney acted on behalf of both parties, unquestionably the Lupoff decision would be controlling.

We feel it necessary to note that we find the forfeiture provisions of the statute especially harsh when applied to the circumstances involved. The mortgagor, Mr. Bishop, was an experienced man of business. He unquestionably knew the terms of the mortgage even in the absence of advice from counsel. Mr. Bishop was well informed of the payment schedule and amounts to be paid, not only by his attorney but also from the real estate agents representing him. It is inconceivable in a transaction of this magnitude that Mr. Bishop would have been any less informed had the required legend been placed upon the mortgage.

No attack is made upon the constitutionality of the statute. Indeed, the availability of such relief has been foreclosed by the Supreme Court’s opinion in Winner v. Westwood, 237 So.2d 151 (Fla.1970). We understand the legislative intent behind the statute’s enactment as stated in Winner:

“Its purpose was to regulate the practice of drafting mortgages in terms which allowed for payment of relatively small installments for a period of time of relatively short duration, at the end of this period the balance becoming due in full. This technically legal practice became the subject of abuse, particularly when applied to second and third mortgages and the like, because of use in situations where the tentative mortgagee wished to give the illusion of ‘easy payments’, while saying little about the ultimate consequences.” 237 So.2d at 152.

Still, we may only speculate whether enforcement of the statute might more often act as a snare to the unwary mortgagee than as a safeguard to the uninformed mortgagor. Nevertheless the wisdom in enacting such a statute is an argument which may only be addressed to the legislature— not to the courts.

Affirmed.

BOYER, C. J., and DURDEN, J. ROBERT, Associate Judge, concur.

      . Which provides in part and subject to certain exceptions that any mortgage in which the final payment is more than twice the amount of the periodic payment is a balloon mortgage. It further requires that it be stated on the mortgage: (1) the fact it is a balloon mortgage, and (2) the final payment duei upon maturity together with interest accrued. The failure of the mortgagee to comply with these requirements shall cause the maturity date extended by dividing the final payment by the amount due under each periodic payment and the quotient obtained is the number of periods the mortgage is extended. It is also provided that interest and attorney’s fees shall be forfeited in the event of noncompliance.


author: DREW, E. HARRIS (Retired),

text:
    Grover Cleveland TADLOCK, Appellant, v. STATE of Florida, Appellee.
    No. BB-285.
    District Court of Appeal of Florida, First District.
    March 24, 1977.
    Frank T. Cannon, Jacksonville, for appellant.
    Robert L. Shevin, Atty. Gen., Michael H. Davidson, Asst. Atty. Gen., for appellee.
   DREW, E. HARRIS (Retired),

Associate Judge.

In the information it was charged that the defendant [and others] “. . . did intentionally receive, retain, dispose of or aid in the concealment of stolen property, to-wit: one (1) lot of cigarettes, of the value of One Hundred Dollars ($100.00) or more, the property of JACKSONVILLE TRANSFER and STORAGE, INC., without the consent of the owner or person entitled to possession, knowing that it had been stolen, or under such circumstances as would induce a reasonable man to believe that the property was stolen, contrary to Section 812.031, Florida Statutes.”

The verdict of the jury found that the defendant was “Guilty of receiving stolen property as charged ”. (Emphasis supplied).

After denying post trial motions the court adjudged the defendant guilty of “Receiving stolen property”. The judgment contained no finding that the defendant had prior knowledge that the property was stolen as found by the jury. In this respect the judgment does not follow, nor is it in accordance with the verdict. The judgment is vacated and this cause is remanded to the trial court for the entry of a correct judgment. The other points argued here have been duly considered and found by us to be without merit.

Affirmed with directions for the entry of a correct judgment.

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

      . Anderson v. State, 338 So.2d 209 (Fla. 3d DCA 1976). Also see Spurlock v. State, 281 . So.2d 586 (Fla. 4th DCA 1973); Biesendorfer v. State, 227 So.2d 322 (Fla. 4th DCA 1969); and Eagle v. State, 270 So.2d 468 (Fla. 4th DCA 1972).


text:
    CITY OF JACKSONVILLE, Appellant, v. Bernardina ARNOLD, Appellee.
    No. BB-365.
    District Court of Appeal of Florida, First District.
    March 24, 1977.
    Dawson A. McQuaig, Frederick J. Simpson, Donald R. Hazouri, William Lee Allen, Jacksonville, for appellant.
    William H. Maness, Jacksonville, for ap-pellee.
   PER CURIAM.

The final judgment of the circuit court reversing the findings and order of the Duval County School Board which revoked appellant’s teaching certificate is affirmed since the Board’s order failed to recite specific findings of fact based upon the evidence adduced at the hearing. The order, without specific findings of fact, is contrary to law. See Hickey v. Wells, 91 So.2d 206 (Fla.1957) and Powell v. Board of Public Instruction of Levy County, 229 So.2d 308 (Fla. 1st DCA 1969).

AFFIRMED.

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


author: RAWLS, Acting Chief Judge.

text:
    Concetta R. SCHEIDL, Appellant, v. Julius SCHEIDL, Appellee.
    No. CC-127.
    District Court of Appeal of Florida, First District.
    March 24, 1977.
    Robert W. Tongue, Fort Walton Beach, for appellant.
    James W. Grimsley, of Smith, Grimsley, Barron & Remington, Fort Walton Beach, for appellee.
   RAWLS, Acting Chief Judge.

The aftermath of this dissolution of marriage is that the wife is of the firm opinion that she has been shortchanged by the trial court’s disposition of the material goods involved in this litigation. We agree and reverse.

The parties were married on May 24, 1967, and cohabited together as husband and wife until on or about March 10, 1975. Except for two years when she was attending college, the wife worked and deposited her income in a joint account which was spent for household and joint living expenses. Her unrebutted testimony was, “I think I’ve made over excess of $45,000.00 [during the marital venture] and it’s all gone into the marriage; that’s the way I thought it was supposed to be.” During their marriage, they built a home on land that the husband owned at. the outset which, according to the husband’s testimony, had a value of $48,000.00. In addition, he had accumulated two lots in Walton County in his name, which “I assumed that they were going to put those in joint property; I didn’t know.”

By its final decree, the trial court awarded all of the real estate to the husband along with two automobiles and other personal property. The wife was awarded a Karman Ghia automobile, one-half of a joint savings account of some $1,400.00, along with the observation that with her master’s degree her earning power is in excess of the husband’s.

The trial court abused its discretion in not awarding the wife, at the minimum, a one-half special equity in the two Walton County lots. Without the wife’s contributions to the family expenses, it is most apparent from this record that the subject lots could not have been purchased. Coupled with the foregoing contributions on the wife’s part is the husband’s candid admission that he assumed the two lots would be joint property. Brown v. Brown, 300 So.2d 719 (Fla. 1st DCA 1975).

Reversed and remanded.

SMITH and ERVIN, JJ., concur.

      . The wife also sold a house which she had owned prior to the marriage and deposited approximately $2,500.00 into the joint account.

      . The husband also testified that a $19,000.00 mortgage was outstanding and that the increase in value was mostly “in the lot itself . There’s only about a $1,300.00 equity in the house.”


author: SMITH, Judge.

text:
    Diane Jean NORRIS, Appellant, v. STATE of Florida, Appellee.
    No. DD-34.
    District Court of Appeal of Florida, First District.
    March 24, 1977.
    William B. Richbourg, Pensacola, for appellant.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for appellee.
   SMITH, Judge.

Appealing from the trial court’s order denying her Rule 3.850 motion to vacate the sentence, appellant urges she was not made aware of the mandatory three-year sentence consequent upon her plea of guilty to aggravated assault involving a firearm. We conceive that appellant’s averment that she had the impression that probation was a possibility in her case sufficiently alleges, for purposes of Fla.R. Crim.P., that she was not apprised of the significance of her plea. Fla.R.Crim.P. 3.170(j); Brown v. State, 245 So.2d 41 (Fla.1971); Garcia v. State, 228 So.2d 300 (Fla.3d DCA 1969). An evidentiary hearing is required to determine the truth of appellant’s averment. If in fact she did not understand the significance of pleading guilty to an offense involving use of a firearm, she must be afforded the opportunity to withdraw her plea of guilty. See Jenkins v. United States, 420 F.2d 433 (10th Cir. 1970).

REVERSED.

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


text:
    Vernon DAVIES, Appellant, v. STATE of Florida, Appellee.
    No. EE-33.
    District Court of Appeal of Florida, First District.
    March 24, 1977.
    Richard W. Ervin, III, Public Defender, and Theodore E. Mack, Asst. Public Defender, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

The State conceding in argument that the trial court disregarded appellant’s age of seventeen years when sentencing him to imprisonment without a presentence investigation, the sentence is vacated and the case is remanded for proceedings complying with Fla.R.Crim.P. 3.710. Andrews v. State, 309 So.2d 576 (Fla.1st DCA 1975).

REVERSED.

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


author: MILLS, Judge.

text:
    Albin C. THOMPSON, Jr., and Haidee K. Thompson, Appellants (Plaintiffs), v. NASSAU COUNTY, Florida, a governmental agency, Appellee (Defendant).
    No. BB-235.
    District Court of Appeal of Florida, First District.
    March 25, 1977.

      Daniel S. Brim, Live Oak, for appellants.
    Arthur I. Jacobs, Jacobs, Sinoff, Edwards, Alford & Burgess, Fernandina Beach, for appellee.
   MILLS, Judge.

The Thompsons appeal from an order dismissing their amended complaint with prejudice.

The amended complaint alleges that the action is brought under the authority of Article X, Section 6 of the Florida Constitution, and other applicable laws, for a mandatory injunction to require the defendant to exercise its power of eminent domain as a means of making restitution to the plaintiffs for the taking of plaintiffs’ property for a public purpose; that the plaintiffs are and were the owners of certain land adjacent to North Fletcher Avenue; that beginning in 1974 the defendant resurfaced North Fletcher Avenue and increased its elevation by a height in excess of 14 inches; that the elevation of North Fletcher Avenue has rendered a substantial portion of the plaintiffs’ property useless for residential purposes and has caused and will always cause great amounts of water from' rainstorms to flow upon plaintiffs’ property and into the buildings thereon; and that the overflow of water upon plaintiffs’ property constitutes an actual permanent invasion of plaintiffs’ property. The County moved to dismiss the amended complaint for failure to state a cause of action and the court ordered the cause “dismissed with prejudice as to any action under Article V, Section 6 of the 1968 Florida Constitution”.

The trial court erred. The allegations of the amended complaint are sufficient to demonstrate a taking of private property for a public use under Article X, Section 6 of the Florida Constitution. In Elliott v. Hernando County, 281 So.2d 395 (Fla. 2nd DCA 1973), the court held allegations similar to those in the amended complaint before us stated a cause of action. Although the County contends that Poe v. State Road Department, 127 So.2d 898 (Fla. 1st DCA 1961) supports the dismissal of the amended complaint, it does not. In Poe the flooding was characterized as temporary; here it is alleged to be permanent.

The order appealed is reversed and this case is remanded to the trial court for further áction.

BOYER, C. J., and ERVIN, J., concur.


text:
    Henry J. WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 76-1316.
    District Court of Appeal of Florida, Second District.
    March 25, 1977.

      Franklyn Louderback, St. Petersburg, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant appeals a judgment and sentence wherein the court sentenced the appellant to a term of 15 years but suspended all of the term except for one year and one day. The sentence further provided that after serving the year and a day the appellant would be placed on probation for a period of 15 years.

We hereby amend the sentence to place the appellant on probation for the remainder of the 15 years after serving the year and a day, since 15 years was the maximum sentence.

The remaining points on appeal have been given consideration and are found to be without merit.

The judgment and sentence as amended are hereby affirmed.

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


author: SMITH, Judge. MILLS, Judge,

text:
    The VALPARAISO BANK & TRUST COMPANY, as Administrator C. T. A. of the Estate of Coleman L. Kelly, Deceased, Appellant, v. Mattie M. SIMS, Appellee.
    No. AA-386.
    District Court of Appeal of Florida, First District.
    March 29, 1977.

      Johnny A. Fortune, Estergren, Fortune, Anchors & Powell, Fort Walton Beach, for appellant.
    Louis K. Rosenbloum and R. P. Warfield of Levin, Warfield, Middlebrooks, Graff, Mabie, Rosenbloum & Magie, Pensacola, for appellee.
   SMITH, Judge.

The Valparaiso Bank, administrator of the estate of Coleman L. Kelly, deceased, appeals from an order of the Okaloosa County circuit court awarding appellee Mattie (Kelly) Sims, former wife of - the decedent, $50,000 for the payment of fees for the services of her lawyer in this divorce proceeding, which antedates Florida’s no-fault marriage dissolution law. The divorce judgment was entered in June 1971, incorporating an agreement of the parties settling the money and property disputes and retaining jurisdiction “for the purpose of awarding attorneys’ fees, if any.” The parties and their counsel then became occupied with continuing disputes over the parties’ substantial properties, and so postponed resolving the fee question. Mr. Kelly died in September 1973 and the Valparaiso Bank was substituted as a party defendant in the divorce proceeding in July 1974. In November 1975, following an evidentiary hearing, the order now before us was entered. The Bank urges that an award on account of fees is improper in the circumstances and that $50,000 is excessive.

Mrs. Kelly engaged her lawyer, Richard P. Warfield, in 1968. Her divorce suit against Mr. Kelly was then pending but inactive. The agreement between Mr. Warfield and his client concerning compensation was:

“Our fee . . . will be a total of $1,500.00 plus our costs and expenses. At the trial, if the cases reaches that point, we will ask the Court to fix an attorney’s fee to be paid by Mr. Kelly, which is customary in Florida. If the Court requires this to be done and when the fee is paid by Mr. Kelly, we will reimburse you the amount you have paid on our fee; assuming, of course, that the Judge fixes a fee in excess of $1,500.00. If the Court should fix a fee less than $1,500.00, we will reimburse you whatever amount the court fixes so that the total attorney’s fee in such case will be the $1,500.00 as herein mentioned.”

Lawyer Warfield filed an amended complaint for Mrs. Kelly but permitted it to remain inactive, in accordance with her wishes at the time, and eventually dismissed the case only to refile a new complaint in December 1970. Although Mrs. Kelly “felt that she should have half of what they had accumulated since their marriage,” Mr. Warfield testified at the fee hearing that he considered she had only marginal claims to a special equity or some other right of participation in Mr. Kelly’s “rather large estate in Okaloosa County.” Most of Mr. Kelly’s wealth, estimated at $10,000,000, was held in his name alone, and Mrs. Kelly had made no appreciable contribution to its accumulation. However, an investigator employed by Mrs. Kelly obtained “evidence of some misconduct on Mr. Kelly’s part,” characterized by Mr. Warfield as “a great deal of evidence that I don’t think Mr. Kelly wanted necessarily paraded out in a courtroom.” Thus, Mr. Warfield testified, Mr. Kelly was brought to the settlement table. There was contradicting evidence that Mr. Kelly was otherwise disposed to settling money issues as he eventually did, and his lawyer testified he advised Mr. Kelly that the potential evidence was irrelevant to the money issues.

In June 1971, as a result of negotiations largely conducted by the parties themselves, they reached a general agreement for an equal division of the wealth and for Mr. Kelley’s continued trusteeship of it during his lifetime. The agreement signed June 25, 1971, which was incorporated into the final judgment on that date, contains important elements of offers and counteroffers conveyed between Mr. and Mrs. Kelly in April and May. As a result, Mrs. Kelly obtained a half interest in Mr. Kelly’s assets, which were to remain in trust until 10 years after his death. She also received monthly support and exclusive use of the home.

Mr. Warfield testified at length concerning the services he rendered, the time devoted and the results accomplished by his efforts for Mrs. Kelly. He stated that he devoted at least 103 hours to the representation and that if he handled divorce cases on the basis of hourly rates, which he didn’t and doesn’t, he would charge “between seventy-five and a hundred, probably closer to a hundred dollars an hour.” The former Mrs. Kelly also adduced expert testimony to the effect that a reasonable fee for Mr. Warfield’s services would be $60,000, taking into consideration the time devoted to the case, the responsibility undertaken, the services rendered, the ability and diligence required and the favorable results accomplished. Another lawyer witness, testifying for the appellant Bank, testified that a reasonable fee — taking into consideration all such factors except the results accomplished — would be $100 an hour or $10,000. Walter J. Smith, Esquire, lawyer for Mr. Kelly, charged $5,250, calculated at an average rate of $50 per hour, for services in the divorce suit and related controversies until Mr. Kelly’s death.

The appellant Bank first contends the chancellor had no authority to make an award of fee money because the agreed trust arrangement placed Mrs. Kelly in exact financial parity with her husband. The purpose in awarding fee money, in both divorce and no-fault dissolution proceedings, is “to ensure that both parties will have reasonably the same ability to secure competent legal counsel.” Mertz v. Mertz, 287 So.2d 691, 693 (Fla.2d DCA 1973). Compare Markland v. Markland, 155 Fla. 629, 21 So.2d 145 (1945). We agree it is ordinarily inappropriate to award fee money to one spouse, at the expense of the other, when the two have substantially equal ability to pay. That general rule ordinarily applies whether the parties’ parity in financial ability results from the dissolution litigation or pre-existed it. Ross v. Ross, 341 So.2d 833 (Fla.3d DCA 1977); Colman v. Colman, 314 So.2d 156 (Fla.4th DCA 1975); Reinhart v. Reinhart, 291 So.2d 103 (Fla.1st DCA 1974). To be distinguished are cases sustaining fee money awards when the spouses have unequal ability to pay, though each has independent means. E. g., Kleinschmidt v. Kleinschmidt, 66 So.2d 815 (Fla.1953); Wilkerson v. Wilkerson, 179 So.2d 592 (Fla.2d DCA 1965); Turney v. Turney, 149 So.2d 83 (Fla.3d DCA 1963); Arrington v. Arrington, 150 So.2d 473 (Fla.3d DCA 1963), cert. den. 155 So.2d 615 (Fla.1963).

While discretion alone cannot overcome the rule of law, other unique factors in this case weigh in favor of the chancellor’s decision to award fee money. The trust arrangement was no doubt intended, as Mr. Kelly’s lawyer testified, “to split the properties that had been acquired during the marriage down the middle,” but subsequent events alluded to in the record suggest that objective was not fully attained. Moreover, Mrs. Kelly’s ability to pay' a lawyer at the time of the divorce judgment or at the time of the fee hearing was not entirely clear, for the trust properties were not liquid assets in her hands. See Popeil v. Popeil, 21 Ill.App.3d 571, 576, 315 N.E.2d 629, 633 (1974). The chancellor also considered, not improperly, that fee money was granted divorced wives more readily in 1968 through 1971, when the legal services were rendered and the judgment was entered, than in 1975, when the fee issue came before the court. Finally, we recognize that a fee money award is payable by one spouse to the other as an indemnity for fees reasonably contracted for and incurred, not by one spouse to the other’s lawyer, either as a debt or as a penalty. See Keena v. Keena, 245 So.2d 665, 667 (Fla.1st DCA 1971); Chaachou v. Chaachou, 135 So.2d 206, 223 (Fla.1961); Smith v. Smith, 90 Fla. 824, 107 So. 257 (1925); Kolb v. Kolb, 103 Fla. 193, 137 So. 237 (1931); Hope v. Lipkin, 156 So.2d 659 (Fla.3d DCA 1963). The 1968 contract between Mrs. Kelly and her lawyer might properly be considered as limiting the amount of his compensation above $1,500 to the amount recoverable by Mrs. Kelly in fee money. On this record it appears such contractual arrangements were common in 1968, while prudent lawyers now anticipate the possibility little or no fee money will be awarded, and so contract for payment of a reasonable fee by clients having a present or prospective ability to pay. Considering all these factors, we believe the chancellor acted within the proper limits of his discretion in awarding fee money notwithstanding Mrs. Kelly’s apparent equal ability to pay.

The amount of fee money awarded is another matter. The $50,000 award to the former Mrs. Kelly would enable her to pay Mr. Warfield approximately $475 per hour for his services. Such an award goes far beyond reasonably indemnifying a financially disadvantaged spouse for lawyer’s fees, beyond enabling her to be competently represented in the litigation. Such an award so emphasizes the financial results attained for Mrs. Kelly by her lawyer’s effort that it approaches, if it does not constitute, a contingent fee — one measured exclusively or predominately by the financial results accomplished.

We recognize that Provus v. Provus, 44 So.2d 656, 657 (Fla.1950) listed “the beneficial results, if any,” as one of several familiar elements to be considered in determining a reasonable fee award, and that highly respected lawyers once considered “results accomplished should be given the great weight by the courts” because “[i]n cases where the wife is without money, the fee is necessarily contingent.” J. Carson, Florida Law of the Family, Marriage and Divorce 600 n. 10 (1950) reprinting “Attorney’s Fees in Divorce,” 4 Mia. L.Q. 22, 28 n. 9 (1949). But see Phifer v. Phifer, 124 Fla. 223, 168 So. 9 (1936). However, no such contingency in the matter of fees existed in this case, in which the custom of judicial readiness to award the wife fee money was one of the factors justifying an award despite Mrs. Kelly’s nonliability for more than $1,500. Under present law and practice— which is not altogether irrelevant, considering that Mrs. Kelly’s claim for fee money was not pressed during Mr. Kelly’s life, but was delayed more than four years — any contingency in the payment of fees is further lessened, if not eliminated entirely, by the abolition of grounds for divorce and the virtual assurance of a fee if either spouse can pay it. Moreover, contracts for contingent fees are prohibited in domestic litigation by public policy and by judicial canon. Salter v. St. Jean, 170 So.2d 94 (Fla.3d DCA 1964); Sobieski v. Maresco, 143 So.2d 62 (Fla.3d DCA 1962); Code of Professional Responsibility, Canon 2, Disciplinary Rule 2-106(C) (1970):

“A lawyer shall not . . . enter into an arrangement for, charge, or collect any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof.”

We need not directly consider in this case the extent to which “results accomplished” in terms of financial gain for the client spouse may properly influence the amount of the lawyer’s compensation by his client. That question is primarily a matter of contract and is only secondarily of public concern. Lyle v. Lyle, 167 So.2d 256 (Fla.2d DCA 1964). But that element should have little or no influence on the amount of indemnity to be paid by one spouse to another on account of the other’s obligation to pay fees. As stated above, a fee money award is not recognition that one spouse owes the other’s lawyer for his services. It is not to be exacted as a penalty, as in the case of attorney’s fees awarded upon a successful insurance policy claim. Contrast Time Ins. Co. v. Arnold, 319 So.2d 638, 640 (Fla.1st DCA 1975). A fee money award in dissolution litigation also differs from such awards in eminent domain proceedings, in which the condemnor’s obligation to pay on account of attorney’s fees arises in part from constitutional guaranties that require a practical attempt to make the landowner whole. Florida Constitution, Article 10, Section 6; Jacksonville Expr. Auth. v. Henry G. Du Pree Co., 108 So.2d 289, 292, 294 (Fla.1959). Entirely different considerations account for fee money awards in divorce and dissolution litigation. To exact fee money in an amount determined in such major part by Mrs. Kelly’s financial gain from the divorce judgment does not serve the policy on which such awards are justified. Rather it implies that Mrs. Kelly was the “big winner” of a financial contest and penalizes Mr. Kelly further for being the “big loser.” We do not consider that to have been the purpose of awarding fee money in divorce litigation, and it certainly is not the purpose in today’s dissolution proceedings.

Taking into consideration the time devoted to Mrs. Kelly’s representation by Mr. Warfield, the complexity of the issues, the nature of the responsibility undertaken, the services required, and the skill and diligence necessary, we consider that a reasonable payment to Mrs. Kelly on account of lawyer’s fees would be $15,000. See Bosem v. Bosem, 279 So.2d 863, 866 (Fla.1973); Donner v. Donner, 281 So.2d 399 (Fla.3d DCA 1972), cert. den., 287 So.2d 679 (Fla.1973); Novack v. Novack, 189 So.2d 513 (Fla.3d DCA 1966), cert. disch. 195 So.2d 199 (Fla. 1967); and Trope v. Trope, 238 So.2d 486 (Fla.3d DCA 1970).

REVERSED and REMANDED for entry of a judgment in favor of the former Mrs. Kelly, on account of fees, in the amount of $15,000.00.

ERVIN, J., concurs.

MILLS, Acting C. J., concurs in part and dissents in part.

MILLS, Judge,

concurs in part, dissents in part:

Under the facts revealed by the record presented to us in this case, I agree with the majority that the estate should pay a fee to Mrs. Sims’ attorney, but I do not agree that $15,000.00 is a reasonable fee. Under the facts of this case, a reasonable fee would be $5,150.00. This is based on the only testimony adduced that $50.00 an hour in divorce proceedings was the customary and reasonable charge made by attorneys in divorce actions in Okaloosa County at the time this action was pending.

I would reverse and remand to the trial court with directions to enter a judgment in favor of Mrs. Sims for attorney’s fees in the amount of $5,150.00.