text:
    THE FLORIDA BAR. In re Andrew C. B. BARON.
    No. 49268.
    Supreme Court of Florida.
    Feb. 3, 1977.

      Arthur R. Louv, Orlando, Bar Counsel, and David G. McGunegle, Asst. Staff Counsel, Tallahassee, for complainant.
    William B. Barnett of Carter & Barnett, Orlando, for respondent.
   PER CURIAM.

This matter is before the Court on Amended Petition for Approval of Conditional Guilty Plea and Entry of Final Order of Discipline.

The Complaint filed by The Florida Bar pursuant to Article XI of the Integration Rule of The Florida Bar alleges as follows:

“1. The Respondent, Andrew C. B. Baron, is, and at all times hereinafter mentioned was, a member of The Florida Bar, subject to the jurisdiction and disciplinary rules of the Supreme Court of Florida.
2. This Complaint is filed by The Florida Bar, by direction of its Board of Governors, and all conditions prerequisite to the filing of said Complaint, required by the Integration Rule, have been fulfilled.
3. The Respondent was retained by Mr. Joe Rand Pauline in early 1974 to represent him following his arrest on felony drug charges.
4. On May 7, 1974, Mr. Pauline was arrested again after a search of his premises revealed a quantity of illegal drugs.
5. On May 8, 1974, the Respondent, Mr. Pauline and Barbara B. Ives met in the early afternoon at a Howard Johnson’s Restaurant at Respondent’s request to discuss Mr. Pauline’s arrest.
6. At that meeting on May 8, 1974, the Respondent broached the idea to Barbara B. Ives that she could testify at Pauline’s trial she knew the drugs found on the premises of Joe Rand Pauline were placed there by Mr. William R. Porter a/k/a Ray Porter, a police undercover agent present during the May 7, 1974, arrest.
7. At that same meeting on May 8, 1974, the Respondent broached the idea to Barbara B. Ives that she could testify she had sexual relations with William R. Porter a/k/a Ray Porter, a married man, which would undermine his credibility at Pauline’s trial.
8. On May 9, 1974, the Respondent and Barbara B. Ives discussed the possibility of her testifying that the narcotics were brought onto Mr. Pauline’s premises by Mr. Porter. Respondent admitted to her it would be perjury, and indicated he was looking for a means to break the case against his client, Mr. Pauline. Respondent told Miss Ives he had not then figured out all she would have to say at trial.
9. In a subsequent conversation on May 9, 1974, Respondent and Miss Ives discussed her testifying at trial that she had engaged in sexual relations with William R. Porter a/k/a Ray Porter, and its impact on his credibility. They again discussed her testifying Porter had brought the drugs' onto Pauline’s premises. Mr. Pauline was present with Respondent during this conversation.
10. During the conversation in 9 above, Miss Ives exhibited considerable reluctance to proceed as encouraged by Respondent citing her fear of a polygraph test.
11. On May 10, 1974, Respondent advised Miss Ives he was her attorney for purposes of her impending questioning in the Pauline case.
12. On May 12, 1974, in a telephone conversation, Respondent and Miss Ives again discussed her potentially testifying about her sexual experiences with Mr. Porter. Respondent suggested she testify their encounters occurred in the back seat of Porter’s car and assured her a jury would believe her story.
13. In the same conversation on May 12, 1974, the Respondent suggested she could alternatively testify she had known Porter to be a narcotics agent for a long time if she was worried about being unable to identify physical marks on him should he challenge her testimony. Respondent also advised her the authorities could not prove she was lying.
14. In a telephone conversation on May 13, 1974, Respondent advised her to continue to see Mr. Porter pending further developments.
15. Since the first meeting on May 8, 1974, Respondent was fully aware Miss Ives had advised him she had never had sexual relations with William R. Porter a/k/a Ray Porter, nor did she know he had taken any drugs to the premises of Mr. Pauline on May 7, 1975 (sic).
16. Respondent repeatedly attempted in the foregoing conversations to induce Miss Ives to give fabricated testimony in the Pauline case to discredit the undercover agents expected testimony which was never given because Mr. Pauline pled guilty to one of several counts against him and was sentenced on August 24, 1974, in the State of Florida v. Joseph Rand Pauline, 74-1262 Ninth Judicial Circuit, Orange County.
By reason of the foregoing, Respondent has violated his Oath as an Attorney, Integration Rule 11.02(3)(a) and 11.-02(3)(b), and Disciplinary Rules 1— 102(A)(3), 1-102(A)(4), 1-102(A)(5), 7-102(A)(6), 7 — 102(A)(7) of the Code of Professional Responsibility.”

Thereafter, Respondent tendered his Conditional Guilty Plea pursuant to Article XI, Rule 11.13(6) of the Integration Rule of The Florida Bar stating in part as follows:

“Premise. Respondent contends and maintains that he did not incite a potential materia] witness to commit perjury at any time or place, including but not limited to May 8, 1974. Therefore, Respondent maintains and contends as a matter of law, that he did not violate Integration Rule 11.02(3)(a) and 11.-02(3)(b), and Disciplinary Rules 1-102(A)(3), 1 — 102(A)(4), 7-102(A)(6), 7-102(A)(7), of the Code of Professional Responsibility. Respondent contends and maintains that the matter of perjury by proffer of false statements under oath regarding the “planting of evidence” by, and illicit sexual contact with, a law enforcement officer (a) were voluntarily presented by the witness and (b) categorically and immediately rejected and disavowed by Respondent.
Nevertheless, Respondent now recognizes that his conduct and statements subsequent to May 8,1974, with respect to this witness, as a witness and as a member of the public, were not in accordance with the high ethical standards required of Respondent as an advocate on behalf of his client and as an officer of the Court for the benefit of the public. Further, Respondent recognizes that his subsequent conduct and statements to the witness tended to create in the witness’s mind a de facto attorney-client relationship at a time during, and in a situation in which, Respondent could not be engaged either as an advisor to or advocate for the witness.

Therefore, Respondent now believes that such statement and conduct in the context of time, place and situation as set forth in the Stipulated Statement of Facts attached hereto and incorporated by reference as Exhibit 1 violated: Canon 1, Ethical Considerations EC 1 — 1, 1-5, and Disciplinary Rules DR 1-102(A)(5), (6); Canon 7, Ethical Considerations EC 7 — 1, 7-18, and Disciplinary Rules DR 7— 104(A)(2).

Conditional Plea of Guilty. In consideration of the premises as stated and in exchange for the following disciplinary measures to be imposed on Respondent, Respondent tenders his plea of guilty to the following specific violations:

(A) Canon 1, EC 1-1, 1-5: DR 1-102(A)(5), (6)
(B) Canon 7, EC 7-1, 7-18: DR 7-104(A)(2).”

The Amended Petition for Approval of Conditional Guilty Plea is granted and Respondent, Andrew C. B. Baron, is hereby disciplined as follows:

1. By public reprimand to be published in the Southern Reporter based upon the facts set forth above. The publication of the Opinion shall serve as the public reprimand to Respondent.
2. Costs in the amount of Five Hundred Fifty-Seven Dollars and Ninety Cents ($557.90) are hereby taxed against Respondent.
3. Respondent shall be placed on probation for a period of six months from this date with required supervision by the named attorney for all criminal cases undertaken by respondent.
4. Respondent shall submit a paper on legal ethics to the staff counsel of The Florida Bar and the Clerk of the Supreme Court of Florida within thirty (30) days before expiration of the six-months probation, with the probation to be extended for an additional six months if the paper is not timely submitted.
5. If no paper is submitted within one year of the court’s order, respondent shall be suspended for three months and one day with notice to clients under Rule 11.10(6) required and with reinstatement predicated on either 1) proof of passage of the regular Florida bar examination subsequent to the expiration of the suspension period or 2) proof of rehabilitation in a regular reinstatement proceeding pursuant to Rule 11.11.

It is so ordered.

OVERTON, C. J., and ADKINS, BOYD, ENGLAND, SUNDBERG, HATCHETT and ROBERTS (Retired), JJ., concur.


source: Caselaw Access Project

author: PER CURIAM. DREW, Justice (Ret.),

license: Public Domain

text:
    THE FLORIDA BAR, Complainant, v. John B. MATTINGLY, Respondent.
    No. 49639.
    Supreme Court of Florida.
    Feb. 3, 1977.

      John P. McCoy, Bar Counsel, J. Lester Kaney, Asst. Bar Counsel, Daytona Beach and David G. McGunegle, Asst. Staff Counsel, Tallahassee, for complainant.
    John R. Lawson, Jr., Tampa, and John Allan Radey, of Holland & Knight, Tallahassee, for respondent.
   PER CURIAM.

John B. Mattingly, while a member of The Florida Bar and authorized to practice law in the state of Florida, was charged in an eight-count complaint with mishandling trust funds of his clients. The facts are not in dispute since Mattingly, by stipulation, admits having shortages in his client’s trust account as of December 31, 1974, of $150,953.22. In addition to this sum, Mattingly owed one of his clients $117,900.00 in July, 1974, from funds which had been placed in his trust account in 1972 and 1973. The Bar’s referee found Mat-tingly guilty of all eight counts in the complaint and recommended that he be permanently disbarred.

Mattingly does not quarrel with the referee’s findings of fact; he concedes the accuracy of the findings, admits his responsibility for the transfers, and admits that the transfers were improper. However, he insists these irregularities arose due to an unsatisfactory bookkeeping system; that he was not willfully concealing anything from his clients; that his misleading statements were due to confusion not evil intent; and that his conduct in improperly handling the trust funds was not due to any willful or evil intent to defraud anyone. We have carefully reviewed the record in the case and find that there is sufficient evidence as to each count to sustain the referee’s finding of guilt as to each count.

The only question that remains is whether permanent disbarment is a permissible discipline under the current integration rules of The Florida Bar. The current integration rule on discipline is Florida Bar Integration Rule, Article XI, Rule 11.10(4), adopted in 1972. In Re The Florida Bar, 262 So.2d 857 (Fla.1972). That rule reads as follows:

A judgment of disbarment terminates the respondent’s status as a member of the Bar. A former member who has been disbarred may only be admitted again upon full compliance with the rules and regulations governing admissions to the Bar. Except as might be otherwise provided in these rules, no application for admission may be tendered within three years after the date of disbarment.

In 1969 The Florida Bar Integration Rule 11.11 provided that, “An attorney who has been disbarred other than by permanent disbarment” could be reinstated to membership in The Florida Bar. In the revision of Rule 11.11 which took place on May 31, 1972, to become effective December 1, 1972, the drafters removed any reference to permanent disbarment. The latest pronouncement of this Court regarding the matter of permanent disbarment occurred in The Florida Bar and Rassner, 301 So.2d 451 (Fla.1974). In that case a lawyer was “permanently disbarred” in 1965. The Florida Bar v. Rassner, 172 So.2d 818 (Fla.1965). In 1972 Rassner, the “permanently disbarred” lawyer, petitioned for reinstatement a short time after Florida Integration Rule 11.11 had been revised to its present form. The notion that a lawyer could be permanently disbarred, without the possibility of reinstatement, was rejected by this Court in the second Rassner case even though Rassner’s disbarment had occurred at a time when the Integration Rules (Rule 11.11) seemed to authorize permanent disbarment.

We have considered the present rule in light of this Court’s constitutional authority regarding lawyers set forth in Article V, Section 15, Constitution of the State of Florida, and hold that the present Florida Bar Integration Rule 11.10(4) does not authorize permanent disbarment in the sense that a disbarred lawyer may never petition for reinstatement.

We take this opportunity to point out that this holding does not apply where a member of The Florida Bar charged with misconduct enters into an agreement with The Florida Bar to resign from the Bar, and promises never to petition for reinstatement, in exchange for a dismissal of the charges of misconduct. In this situation the member of the Bar will be bound by the agreement he makes with The Florida Bar.

For the foregoing reasons, John B. Mat-tingly, is disbarred and costs are assessed against him in the sum of $4,141.23.

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

ADKINS, J., concurs in result only.

DREW (Retired), J., concurs specially with an opinion with which ADKINS and BOYD, JJ., concur.

DREW, Justice (Ret.),

concurring specialty-

I concur in the foregoing decision with the following elaboration and explanation of my reasons for agreeing to the last paragraph of the decision relating to resignation.

An attorney may resign from the Bar only with the consent and approval of this Court. Where disbarment is the result of a trial on formal charges, the record in the proceedings becomes a permanent part of the official records of this Court. There are and could be instances where, after formal charges are filed, or even before an attorney may, in order to prevent a public exposure of his derelictions, offer to resign without leave to be reinstated, and the offer for one reason or another accepted, thereby cutting off a full investigation of the facts forming the basis of the charges. Such facts may not be subject to proof at a later date; witnesses may disappear or die, records may be destroyed or misplaced, and other events may occur which may make it most difficult or even impossible to support the original action by appropriate proofs. It is for these reasons I feel that a resignation voluntarily made containing a condition that the attorney shall never seek reinstatement should ordinarily be upheld. I must say, however, that I have grave reservations as to the power of this Court to bind a future Court vested with plenary power under the Constitution over admissions to the Bar.

ADKINS and BOYD, JJ., concur.


author: ENGLAND, Justice.

text:
    The DELTONA CORPORATION, Petitioner, v. William T. MAYO et al., Respondents.
    No. 49912.
    Supreme Court of Florida.
    Feb. 3, 1977.

      L. Grant Peeples and William L. Earl, of Peeples, Earl & Blank, Miami, for petitioner.
    William L. Weeks, Tallahassee, Raymond E. Vesterby and Stanley M. Danek, Tallahassee, for respondents.
    Woodie A. Liles, Public Counsel and C. Earl Henderson, Associate Public Counsel, Tallahassee, for the Citizens of the State of Florida, intervenor-respondents.
   ENGLAND, Justice.

This case is before us to review an order of the Public Service Commission denying to Deltona Utilities, a division of The Delto-na Corporation, a rate increase for the services of a water and sewerage system operating in one of Deltona’s planned communities. We have jurisdiction under Article V, Section 3(b)(3) of the Florida Constitution, and Section 367.131, Florida Statutes (1975).

The only issue brought to us for review is whether the Commission acted properly when it denied rate relief on the ground that Deltona had failed to present evidence as to the amount of its contributions in aid of construction, as a consequence of which the Commission could not establish Delto-na’s rate base or establish a fair rate of return. The alleged evidentiary deficiency is predicated on the Commission’s determination that Deltona had promised home site purchasers between 1962 and 1969, through oral representations, advertisements, and other land sales materials, that the purchase price of their properties would include water and sewer facilities. Treating these general representations as contractual commitments, the Commission concluded that some portion of the payments received by Deltona during that period must be treated for regulatory purposes as contributions in aid of construction, despite the fact that no segregation of purchase price was ever made on Deltona’s books of account or closing statements with purchasers, and notwithstanding that the Commission’s staff had reviewed and approved the accuracy of Deltona’s accounts for regulatory purposes in a previous rate proceeding concluded in mid-1975 and again for purposes of this rate proceeding. We hold that the Commission has acted improperly beyond the scope of its authority.

The controversy in this case arose when, at the public hearing on Deltona’s request for rate relief, public counsel elicited testimony from lot purchasers and introduced into evidence various advertisements, property reports, offering statements and other materials filed by Deltona with the Florida Land Sales Board pursuant to the requirements of Florida law. In varying language these witnesses and materials tended to show that water and sewer facilities were “included in the price” of the properties sold by Deltona between 1962 and 1969. Substantially identical evidence had been brought to the Commission’s attention, and rejected, in a rate case brought by Deltona and concluded on June 27,1975. The Commission there ruled that no portion of the sales proceeds should be treated as contributions in aid of construction.

As stated before, all evidence in the record shows that Deltona has never segregated any portion of the amounts received from land purchasers, and that the staff of the Commission has consistently found Del-tona’s accounts to be both accurate and in conformity with prescribed regulatory accounting procedures.

The basis for the action taken by the Commission in this case appears to be, as public counsel has urged and the Commission’s order recites, that Deltona engaged in fraudulent land sales practices and “should be held responsible for the plain meaning of its [advertisements and filings].” If Deltona has engaged in an unfair business practice or committed fraud, however, it may be a concern of other state agencies or the basis for private law suits (on which we express no opinion), but it is not a matter of statutory concern to the Public Service Commission. That agency has no authority to vindicate breaches, if any, of the land sales laws or private contracts, and it may not assume the existence of some indefinite amount of contributions in aid of construction which its own staff has found to be non-existent under accounting procedures prescribed by the Commission. While the evidence and contentions presented by public counsel raised a question of fact which the Commission could properly investigate, namely the proper amount to be excluded from Deltona’s rate base as contributions in aid of construction, the staff’s investigation uncovered no evidence that Deltona had falsified its accounts or otherwise improperly treated the proceeds of its property sales for rate-making purposes.

The Commission departed from the essential requirements of law in rejecting Delto-na’s rate request on the ground which it did. No other basis for that action is suggested. Pursuant to Sections 120.68(10) and (13)(a)(l), Florida Statutes (1975), Commission Order No. 7293 is quashed and this case is remanded with directions to grant Deltona such rate relief as is appropriate on the basis of the record developed by the Commission in its hearing in this cause.

It is so ordered.

OVERTON, C. J., and BOYD, HATCH-ETT and DREW (Retired), JJ., concur.

      . Order No. 6694 in docket No. R-73674-WS (5/28/75), reconsideration denied by Order No. 6753 (6/27/75).

      . Deltona maintained an account for contributions in aid of construction which showed a balance for purposes of this rate proceeding of $76,961.70. No part of that account is involved in this controversy.

      . Order No. 7293 in Docket No. R-750626-WS, at p. 9 (6/24/76).

      . The Commission has only those powers granted by statute expressly or by necessary implication. City of Cape Coral v. GAC Utilities, Inc., 281 So.2d 493 (Fla.1973). See Section 120.54(13), Fla.Stat. (1975). Sections 367.-081(2) and 367.121, Fla.Stat. (1975), set forth the powers of the Commission in setting water and sewer rates. These provisions do not empower the Commission to set rates so as to right any wrong which it perceives regardless of its relationship to water and sewer service. The Commission’s reliance on Miami Bridge Co. v. Railroad Comm’n, 155 Fla. 366, 20 So.2d 356 (1944), is wholly misplaced. .

      .The Commission has cited as authority for its action the decision in Killarney Water Co. v. Illinois Commerce Comm’n, 37 Ill.2d 345, 226 N.E.2d 858 (1967), and Westwood Lake, Inc. v. Metropolitan Dade County Water and Sewer Bd., 203 So.2d 363 (Fla.3d DCA 1967). These cases are distinguishable from this case in that both involve a factual setting in which company records segregated a portion of sales receipts as contributions in aid of construction. In each case the utility company later determined that it could realize greater profits by treating those funds in a different way, but the courts stepped in to prevent a reclassification.


author: PER CURIAM.

text:
    THE FLORIDA BAR, Complainant, v. William LEWIN, Respondent.
    No. 50312.
    Supreme Court of Florida.
    Feb. 3, 1977.
    Donald J. Post, Bar Counsel, Miami and John A. Weiss, Asst. Staff Counsel, Tallahassee, for complainant.
   PER CURIAM.

This is a disciplinary proceeding against Respondent William Lewin, a member of The Florida Bar. Respondent made no request for a hearing before us, nor did he file responsive pleadings. The referee made the following findings and recommendation:

“Findings by referee upon hearing:
“As to Counts I and II
“I find that respondent paid the beneficiary of the Alberti Estate $20,000.00 of a $71,918.00 estate, having lost the balance in a silver company investment. Respondent was personal representative of the Alberti Estate as well as attorney. He invested the funds above mentioned with Commonwealth Silver Exchange, Inc. without the court’s order or the consent of the beneficiary. Although there is nothing in the record to show whether or not such investment was an investment a prudent person would have made at the time it was made, nevertheless it appears his actions in failing to properly account for the funds is a violation of the Disciplinary Rules 1 — 102(A)(3), 1-102(A)(4), 9-102(A), 9 — 102(B)(3), and 9-102(B)(4) of the Code of Professional Responsibility and Rules [11.02(3)(a)] and [11.02(3)(b)] of Article XI of the Integration Rules of the Florida Bar.
“As to Counts III and IV
“I find that respondent while acting as personal representative of the estate of Rosa Marquez appropriated funds belonging to Rosita Booth, beneficiary of said estate, had her sign a receipt acknowledging that she had received the funds when she had not, and then filed such false receipt with the probate judge to obtain respondent’s discharge as personal representative. This reprehensible conduct requires discipline and is a violation of Disciplinary Rules 6-101(A)(3), 9-102(A), 9-102(B)(3) and 9-102(B)(4) of the Code of Professional Responsibility, and Rule 11.-02(4)(a) of Article XI of the Integration Rules of the Florida Bar.
“Recommendation :
“Because of the irresponsible actions of the respondent as to Counts I and II and the reprehensible conduct of respondent as to Counts III and IV, I recommend that respondent be disbarred from the practice of law in Florida and be required to pay all costs incurred in the disciplinary proceedings.”

We have examined the report of the referee as well as the record of the proceedings. We agree with the referee’s findings and accept his recommendation. Accordingly, Respondent William Lewin is disbarred from the practice of law in Florida upon the effective date of this order and shall pay the costs of these proceedings in the amount of $638.20.

It is so ordered.

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


author: BY THE COURT.

text:
    Oscar PATTERSON, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. AA-185.
    District Court of Appeal of Florida, First District.
    Dec. 14, 1976.
    Rehearing Denied March 10, 1977.
    Richard W. Ervin, III, Public Defender, David J. Busch, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., Wallace E. Allbritton, Asst. Atty. Gen., for appellee.
   BY THE COURT.

Upon considering the briefs, the record and oral argument, we find no reversible error. Therefore, the judgment is affirmed.

Although the defendant assigned as error the denial of his motion for a directed judgment of acquittal, he did not argue this assignment in his brief, therefore, abandoned it. We, therefore, have not considered the issue raised by this motion.

MILLS, Acting C. J., McCORD, J., and DRURY, ARVEL, Associate Judge, concur.


author: McCORD, Judge.

text:
    Timothy Patrick McCARTY a/k/a Timothy Patrick McCarthy, Appellant, v. STATE of Florida, Appellee.
    No. Y-235.
    District Court of Appeal of Florida, First District.
    Dec. 15, 1976.
    Rehearing Denied March 10, 1977.
    James G. Feiber, Jr., of Canto, Salter, West, Dough tie & Feiber, Gainesville, for appellant.

      Robert L. Shevin, Atty. Gen., Jeanne Dawes Schwartz, Asst. Atty. Gen., for ap-pellee.
   McCORD, Judge.

Appellant was found guilty by jury of robbery and two aggravated assaults. He appeals the judgments and sentences. The primary question on this appeal is whether or not the court erred in denying appellant’s pretrial motion for discharge based upon appellant’s contention that the time within which he could be tried had expired under Fla.R.Crim.P. 3.191(b)(3) (the speedy trial rule).

Appellant was arrested on October 31, 1968 for robbery and two counts of assault with intent to commit murder (the jury found him guilty on the latter two counts of the lesser included offenses — aggravated assault). Informations were filed on December 18, 1968, and appellant was arraigned on the next day. On March 23, 1969, appellant escaped from the Alachua County Jail and was not returned to custody until September 14, 1971. He escaped again from the Alachua County Jail on September 10, 1972, but was returned to custody three days later and was tried on these charges on October 11, 1972. The trial resulted in a mistrial, and on October 15, 1972, appellant again escaped from the Alachua County Jail and it was later learned that he was serving a sentence in Texas. On April 19, 1973, the Alachua County Sheriff’s Office filed a detainer against appellant with the Texas authorities with respect to two informations they had pending against him (He was wanted for a total of 11 charges). On June 25, 1973, the Texas authorities acknowledged receipt of the detainer as to one of the two informations. On February 23, 1974, appellant wrote his former attorney in Florida asking about the charges pending against him and stating that the only charges still remaining should be the last two escapes and the charges which had previously resulted in a mistrial — the robbery and two charges of assault with intent to commit murder. The public defender who previously represented appellant was no longer available, so the court on April 23, 1974, appointed new counsel. On May 2, 1974, staff counsel for Texas prison inmates wrote the Circuit Court of Alachua County requesting that the case on which they had acknowledged receipt of a detainer be dismissed or a speedy trial given. Circuit Judge Theron Yawn then wrote the state attorney on July 12, 1974, concerning the need to extradite appellant.

On July 30, 1974, appellant’s Florida court appointed counsel filed a demand for speedy trial on the three charges here involved. Appellant contends that this date triggered the beginning of the running of time under the speedy trial rule and the state thereafter had six months within which to bring him to trial. On September 27, 1974, appellee applied to Texas for appellant’s release to Florida. On October 20, 1974, the governors of Florida and Texas executed an executive agreement for appellant to be returned to Florida and on November 25,1974, the Texas authorities notified the Alachua County Sheriff that they would release appellant on four days’ notice. On December 5, 1974, appellant was returned to Florida and incarcerated at the Florida State Prison at Lake Butler. He was arraigned on December 9 and the trial was set for February 17,1975. On January 31, 1975, the state moved for a continuance on the ground that it was impossible to prepare such old cases for trial in such a short time (eight other cases were involved in addition to the instant three). The court granted the motion continuing the case until the March term. On March 3, 1975, appellant’s attorney filed six subpoenaes for depositions to be held on March 6 and on March 4 appellant filed a motion for discharge under the speedy trial rule contending that he was entitled to discharge since he had not been tried within six months of his July 30, 1974, demand for speedy trial. The court denied the motion in all cases except one which was an unrelated escape charge. Appellant was tried on March 19, 1975.

Fla.R.Crim.P. 3.191(b)(3) provides that a person who is imprisoned upon conviction of a crime in a penal or correctional institution outside the jurisdiction of Florida and who is charged with a crime by indictment or information issued or filed under the laws of Florida is entitled to a speedy trial upon demand filed with the court having jurisdiction and upon service on the prosecuting attorney. It further provides that after demand has been filed, such person is entitled to trial within six months commencing after the prosecuting attorney has filed a detainer or has otherwise attempted to secure the presence of the accused for trial or within a reasonable time as determined by the court if the prosecutor has not acted in response to the demand for trial. The rule further provides, however, that the court before granting a motion for discharge shall ascertain that such person has been continuously available for return to this jurisdiction for trial during such period of time. It also states that no rights shall accrue to a person if he refuses to execute every waiver, consent or release necessary to secure his return to this jurisdiction or if the custodial officials of the jurisdiction in which he is confined refuse to release him for return to this jurisdiction for trial while such refusal continues. The rule further states:

“The primary burden for bringing about a speedy trial is on the defendant; however, upon demand, the State must act affirmatively to give such person a speedy trial and must employ all reasonable means to do so.”

Here, appellant was serving a prison sentence in Texas and could only be released to Florida for trial with the consent of the State of Texas. This would necessitate his being “loaned” to Florida by Texas and then returned to Texas after his Florida trial. We do not consider that there was any unreasonable' delay by the State in efforts to procure release of appellant from Texas after he filed his motion for speedy trial, but the Alachua County Sheriff was not notified by Texas authorities that they would release appellant until November 25, 1974: Thus, appellant who was serving a Texas sentence was not made available by Texas for release to Florida until that date. This, in effect was a refusal by Texas to release appellant to Florida until such was dissipated by the notice of November 25, 1976. Thus, since under the rule no rights accrued to appellant until that time, we construe the rule as it applies to this case to mean that the six months period for appellant’s trial began to run when the Alachua County Sheriff received the notice of appellant’s availability from the Texas authorities. Appellant was tried within six months from that date.

We have considered the other contentions made by appellant in his brief and find no error in relation to them.

AFFIRMED.

MILLS, J., and DRURY, W. A., Associate Judge, concur.


author: SMITH, Judge.

text:
    SNEAD CONSTRUCTION CORPORATION, a Florida Corporation, Appellant, v. FIRST FEDERAL SAVINGS & LOAN ASSOCIATION OF ORLANDO and Daytona Beach Federal Savings & Loan Association et al., Appellees.
    No. X-545.
    District Court of Appeal of Florida, First District.
    Dec. 16, 1976.
    Rehearing Denied March 10, 1977.

      Neil A. Devaney of Welbaum, Zook, Jones & Williams, Miami, for appellant.
    David W. Hedrick of Giles, Hedrick & Robinson, Orlando, for appellees.
   SMITH, Judge.

Snead, prime contractor for three motel projects in Daytona Beach, appeals from a final summary judgment dismissing its claim against the institutions which lent the construction funds. As a result of a dispute between Snead and the owner, Snead filed mechanic’s liens, the lenders stopped disbursing the construction funds and construction halted. By this action Snead seeks alternatively (1) to have the lenders’ previously recorded mortgages subordinated to Snead’s liens because the mortgages did not specify that they secured future advances; and (2) to have the lenders’ un-disbursed construction funds declared as held in trust to pay for labor and materials supplied by Snead.

Section 697.04, F.S.1975, provides that a mortgage lien on real property shall secure repayment not only of “existing indebtedness” but also “future advances” when that purpose is “so expressed” in the mortgage. Snead argues that an agreement for periodic disbursement of loan proceeds during construction is an agreement for “future advances” and that any purpose to secure such advances by the lien of a mortgage is ineffective unless “so expressed” explicitly by the mortgage. The notes and mortgages held by the lenders here expressed the owner’s obligation in the conventional terms of a present debt.

Contractor Snead actually knew, of course, that these lenders took and recorded their mortgages before commencement of construction in order to secure loans which were to be disbursed later in stages. Snead itself was the recipient of direct disbursements from the lenders. So, Snead’s contention essentially is that the lenders acquired no lien for those disbursements because the recorded mortgages did not contain a talismanic phrase — “security for future advances” — which would have put the world on notice of what Snead knew full well. We hold that Snead, having actual knowledge of the facts, cannot complain that the constructive knowledge afforded by the recording statute was imperfect or incomplete. Cone Bros. Constr. Co. v. Moore, 141 Fla. 420, 193 So. 288 (1940).

Moreover, the lenders’ mortgages satisfy the requirements of § 697.04, F.S. 1975. To speak of a construction loan mortgage as one securing “future advances,” and therefore subject to § 697.04, blurs a distinction carefully drawn by Mr. Justice Strum in Guaranty Title & Trust Co. v. Thompson, 93 Fla. 983, 990, 113 So. 117, 120 (1927). He referred to a mortgage securing future advances as one given to secure a loan which the mortgagee has not yet made and may never make, as in Flynn-Harris-Bullard Co. v. Johnson, 90 Fla. 654, 655, 107 So. 358, 359 (1925). There, certain turpentine producers mortgaged land, turpentine and all other products and personalty “that may be on hand at the still, on the yards, in the woods and elsewhere” to secure advances which the mortgagee might make above or to renew a $16,000 debt. The Court held in Flynn-Harris-Bullard that the mortgage did not afford a prior lien for optional advances made by the mortgagee with knowledge of a laborer’s lien intervening after the mortgage was recorded. By contrast, Mr. Justice Strum pointed out in Guaranty Title and Trust, a construction loan mortgage is given to secure a contemporaneous indebtedness for the repayment of funds “temporarily retained, wholly or in part, by the mortgagee”:

“In those cases, the general rule is that such a mortgage takes priority as a lien from the date of its record, and not from the date of the disbursements by the mortgagee to the mortgagor for the full amount of the indebtedness actually and in good faith incurred under and secured by the mortgage, not exceeding, however, the maximum amount the mortgagee is obligated to loan or advance by the terms of the mortgage, and of which the recorded mortgage affords constructive notice. Such mortgage is a potential lien for the full amount the mortgagee is obligated to advance under its terms.” (Many citations omitted.) 93 Fla. at 990-991, 113 So. at 120.

Thus, whether they were spoken of as securing “future advances,” Investors Syndicate v. Henderson, 148 Fla. 696, 6 So.2d 629 (1942), or not, Franklin Savings & Loan Co. v. Fisk, 98 Fla. 683, 124 So. 42 (1929), construction loan mortgages written in terms of a present debt, but intended to secure postponed disbursements, were held effective against liens of subsequent laborers before the 1941 Legislature enacted § 697.04.

It is evident, we believe, that the 1941 legislation was not thought necessary to validate the prior lien of a mortgage given to secure repayment of a certain loan, the disbursement of which was postponed. Rather, the legislation was intended to limit the time in which future advances could be made under the security of a mortgage, § 697.04(2), and to change the law concern-iijg previously more troublesome varieties of mortgages for “future advances,” such as those under which the mortgagee has only an option, but no obligation, to make advances. Silver Waters Corp. v. Murphy, 177 So.2d 897, 900-901 (Fla.App.2d, 1965). Just as before 1941,‘it was held afterwards without aid from § 697.04 that advances upon a note and mortgage for a stated sum certain are secured by the mortgage lien:

“As to third persons the recording of the mortgage was notice that the $10,000 was already advanced or to be advanced and as between the parties, the mortgagee admits that she was bound to advance the money upon demand by the mortgagor.” Simpson v. Simpson, 123 So.2d 289, 293 (Fla.App.2d, 1960) (emphasis added).

Snead points out that the 1963 Legislature changed the operative words of § 697.-04 to provide that mortgages “may, and when so expressed therein shall, secure not only existing indebtedness, but also such future advances . . . .” (emphasis added). Ch. 63 — 212, § 3, Fla.Laws. That amendment is the key to Snead’s argument that an explicit statement is now necessary to secure future advances. But, given the virtually unchallenged utility and precedence of construction loan mortgages established over the years with and without enabling legislation, we decline to attribute to the 1963 Legislature any purpose to require that such mortgages “express” more particularly than before their purpose to secure “future advances.” The statute is satisfied if the common law would have been:

“It is not necessary that the mortgage should express on its face that it is given to secure future advances. It may be given for a specific sum, and it will then be security for a debt to that amount. This definite sum will then limit the extent of the lien. There must be some limit to the amount which the mortgage is to secure, either by express limitation or by stating generally the object of the security.” 1 Jones, Law of Mortgages of Real Property § 458 (8th ed 1928).

Snead’s case for imposing a trust on tbe undisbursed construction funds in the hands of the lenders is also unavailing. Construction is incomplete and funds are yet required for its completion. See J. G. Plumbing Serv., Inc. v. Coastal Mtg. Co., 329 So.2d 393 (Fla.App.2d, 1976). Contrast Morgen-Oswood & Assoc., Inc. v. Continental Mtg. Investors, 323 So.2d 684 (Fla.App. 4th 1976), and Fred S. Conrad Constr. Co. v. Continental Assur. Co., 215 So.2d 45 (Fla.App. 1st, 1968). The lenders here are not guilty of fraud or misrepresentation and have not gained any inequitable advantage merely by holding funds which may be necessary to complete construction.

AFFIRMED.

MILLS, Acting C. J., and DRURY, ARV-EL, Associate Judge, concur.


text:
    ARMOR ELEVATOR COMPANY, INC., Appellant, v. ELEVATOR SALES AND SERVICE, INC., Appellee. A. O. SMITH CORPORATION, Appellant, v. ELEVATOR SALES AND SERVICE, INC., Appellee.
    Nos. 75-1722, 75-1723.
    District Court of Appeal of Florida, Third District.
    Feb. 1, 1977.
    Rehearing Denied March 1, 1977.

      Steel, Hector & Davis and Dwight Sullivan, Miami, for appellants.
    McDonald & McDonald, Sinclair, Louis, Siegel & Heath, Miami, for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

We are presented with an appeal and a cross-appeal, the first of which was filed by the defendants and the second by the plaintiff. Each appeal is from a final judgment entered pursuant to a jury verdict.

Elevator Sales and Service, Inc., brought an action against Armor Elevator Co. and A. 0. Smith Corporation alleging wrongful interferences by the defendants with the business contracts of Elevator Sales and Service.. At the trial, which began on September 8, 1975, and which ended on September 23,1975, Elevator Sales and Service sought compensatory damages relating to five specific construction jobs. The jury awarded the plaintiff compensatory damages on four of these five, found that there had been no interference on the fifth, and made separate awards of punitive damages against the two corporations. The final judgment was for $133,280 in compensatory damages against both Armor and A. 0. Smith, $200,000 in punitive damages against A. O. Smith, and $50,000 in punitive damages against Armor.

A distinctive aspect of the action was that Elevator Sales and Service alleged and offered evidence that A. 0. Smith Corporation owned all the stock in Armor and so dominated, influenced and controlled Armor that Armor was the mere instrumentality of A. O. Smith. Defendants present a point which argues the proposition that if Armor was the alter ego of A. O. Smith, there cannot be separate punitive damage awards against such corporation. Defendants’ brief fails to cite a supporting assignment of error. See Fla.App. Rule 3.7(f)(4). A reading of the assignments of error does not reveal a readily applicable assignment. In addition, a reading of the record of the charge conference convinces us that defendants waived any objection to the treatment of the two corporations as separate entities for the purpose of assessing damages.

Indeed, the main thrust of defendants’ brief is that the evidence was not sufficient to support the finding that the two corporations acted together to inflict the damages found by the jury. Our review of the record in the light of the briefs and argument convinces us that the evidence was sufficient.

In its cross-appeal, the plaintiff presents a single point claiming error upon the denial of its motion for a directed verdict at the close of all the evidence on its right to damages arising out of Armor’s interference with the business relations of the plaintiff while the plaintiff was acting as exclusive distributor for Armor. “A verdict may be properly directed for a plaintiff where the proof fully establishes its claim and where there is no evidence on which a verdict for defendant may lawfully be found.” Dade County Dairies, Inc. v. Projected Planning Company, 158 So.2d 565 (Fla. 3d DCA 1963). See also Wilson v. U. S., 530 F.2d 772 (8th Cir. 1976). The rules of civil procedure do not require a trial judge to direct a verdict for the plaintiff on a single issue unless such an issue will dispose of the case and only then when no reasonable view of the evidence will support a jury verdict on that issue. See the general rule in Bourgeois v. Dade County, 99 So.2d 575 (Fla.1956). No error has been shown by the cross-appeal.

The briefs, in the main, consist of arguments on the legal effect of the evidence. We conclude that the evidence is sufficient and the case was properly submitted to the jury. Other points going to claims of procedural error are not sufficient to require reversal upon this record. The judgment is affirmed upon both appeals.

Affirmed.


text:
    Antonio E. GARCIA, Appellant, v. STATE of Florida DEPARTMENT OF TRANSPORTATION, By and Through its DIVISION OF ADMINISTRATION AND ROAD OPERATIONS, an agency of the State of Florida, Appellee.
    No. 75-1860.
    District Court of Appeal of Florida, Third District.
    Feb. 1, 1977.
    Rehearing Denied March 2, 1977.

      Antonio E. Garcia, in pro. per.
    Kenneth M. Towcimak, Hialeah, for ap-pellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Landowner seeks reversal of a judgment awarding him $12,734 in severance damages pursuant to a jury verdict in a condemnation action.

The State of Florida’s Department of Transportation filed suit to condemn 8.2 acres of a 19.2 acre parent tract owned by the appellant, Antonio Garcia, for the construction of the Homestead extension of the Florida turnpike.

On the issue of valuation, Earl Giddens, a witness for the Department, testified that there were no severance damages to the remainder of the property. Garcia then presented two appraisal witnesses who testified as to severance damages of $33,150 and $36,750 respectively. The Department on rebuttal recalled Giddens who testified, over the objection of Garcia, as to specific enhancement to the remainder of the property. The jury returned a verdict of $57,-400 for the value of the land taken and $12,734 for severance damages. Judgment was entered in accordance therewith.

Garcia primarily contends that Giddens, as appraisal witness for the Department, was required to testify to the existence of severance damages as a predicate to testifying to specific enhancement and having testified to no severance damages, his testimony as to specific enhancement was inadmis-sable. We cannot agree.

A jury in an eminent domain proceeding should receive all evidence relevant to the value of the property being taken. Musleh v. Division of Admin., State Dept. of Transp., 299 So.2d 101 (Fla. 1st DCA 1974).

Although Section 73.071(4), Florida Statutes (1975) requires that enhancement value be offset only against severance damages, if any, thus requiring that evidence as to severance damages be introduced as a predicate to the introduction of testimony concerning specific enhancement, we find no requirement in the statute that the condemning authority must be the party to introduce testimony on the issue of the existence of severance damages.

Upon Garcia’s appraisal witnesses testifying as to severance damages, we find it was then proper for the Department’s witness, Giddens, to follow with rebuttal testimony as to enhancement value which was relevant to the value of the property being taken.

Garcia also argues that when the conflicting evidence is between the occurrence of severance damages or the non-occurrence and the jury decides on the occurrence, they are bound to the range of testimony of the witnesses.

The jury generally is not bound by appellant’s testimony. See Behm v. Division of Admin., State, Dept. of Transp., 292 So.2d 437 (Fla. 4th DCA 1974). Giddens testified that there were no severance damages and the testimony as to the amount of severance damages, in effect, ranges from zero dollars to $36,750. Thus, this point of appellant must fail.

Having reviewed the remaining points "on appeal and concluding no reversible error has been made to appear, we affirm the judgment.

Affirmed.

      . “73.071 Jury trial, compensation, severance damages
      * * 5}C * *
      “(4) When the action is by the division of road operations, county, municipality, board, district, or other public body for the condemnation of a road, canal, levee or water control facility right of way, the enhancement, if any, in value of the remaining adjoining property of the defendant property owner by reason of the construction or improvement made or contemplated by the petitioner, shall be offset against the damage, if any, resulting to such remaining adjoining property of the defendant property owner by reason of the construction or improvement, but such enhancement in the value shall not be offset against the value of the property appropriated, and if such enhancement in value shall exceed the damage, if any, to the remaining adjoining property there shall be no recovery over against such property owner for such excess.”


text:
    Irma SOSNOWITZ, Appellant, v. Robert Barry SOSNOWITZ, Appellee.
    No. 76-1800.
    District Court of Appeal of Florida, Third District.
    Feb. 1, 1977.
    Rehearing Denied March 9, 1977.

      Neil Flaxman, Miami, for appellant.
    Fine & Brownstein, Miami, for appellee.
    Before HENDRY, C. J., NATHAN, J., and DREW, E. HARRIS (Ret.), Associate Judge.
   PER CURIAM.

The interlocutory appeal is by the wife from an order of the trial court denying her motion to enforce the terms of a property settlement agreement incorporated in a final judgment of dissolution of marriage entered in 1972.

The sole issue presented on this appeal is the construction of the following portion of the property settlement agreement under the heading, “Alimony to Wife”:

“Property jointly held in Connecticut consisting of two 4-family houses shall continue to be so held. The net income realized from the rentals of the property defined as the rents collected less taxes, insurance, mortgage payments including interest, and repairs, shall be divided equally on a quarterly basis subject to an annual certified audit. If at any time within three years the Husband desires to purchase the equity of the Wife, the Wife agrees to sell such equity for the total sum of $8,000.00 cash. This option to purchase the Wife’s equity by the Husband shall remain for a period of three years from date hereof.” (Emphasis added)

In 1976, the husband exercised his option and filed a certified audit reflecting the income and expenses of the property.

The husband’s audit included those items of expense enumerated in the agreement, plus professional fees, utilities and auto usage. The wife contends by motion to enforce final judgment that these additional items of expense were not included in the definition of net income according to the agreement incorporated in the final judgment because the language of that agreement limits the type of expenses to be deducted in making a determination of net income. The trial court found that the expenses enumerated in the property settlement agreement were words of description or explanation and not words of limitation, and accepted the husband’s accounting.

Generally, where a property settlement agreement has been executed prior to a dissolution of marriage, purporting to resolve the property rights of the parties, the provisions therein are to be interpreted by the courts like any other contract. Davis v. Davis, 301 So.2d 154 (Fla.3d DCA 1974). Where, as here, the terms of a property settlement agreement are unambiguous, we apply the rule that the test of the meaning and intention of the parties is the content of the written instrument itself. Azalea Park Utilities, Inc., v. Knox-Florida Development Corporation, 127 So.2d 121 (Fla.2d DCA 1961). Therefore, since we have found that the terms of this property settlement agreement are clear and unambiguous, the agreement itself is the best evidence of the specific intent of the parties at the time it was executed. We hold that by its terms, the definition of net income specified in the property settlement agreement limits the type of expenses to be deducted from the rentals to determine net income.

The order of the trial court is reversed and remanded with directions to enter an order consistent with this opinion.

Reversed and remanded with directions.


author: McCORD, Judge. RAWLS, Acting Chief Judge

text:
    Samuel Essie BARKET, Appellant, v. STATE of Florida, Appellee.
    No. Z-440.
    District Court of Appeal of Florida, First District.
    Feb. 3, 1977.
    Samuel S. Jacobson and Albert J. Datz, Datz, Jacobson & Dusek, Jacksonville, for appellant.
    Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for ap-pellee.
   McCORD, Judge.

Samuel Barket, Appellant, was found guilty by jury of receiving stolen property. He appeals the judgment and sentence contending that he was deprived of his right to proof of guilt beyond a reasonable doubt by the court having used the Florida Standard Jury Instruction in charging the jury on buying, receiving, and concealing stolen property. He states that the key question for the jury was whether or not the state had proved guilty knowledge, the state’s whole case on knowledge having been circumstantial. He argues that the Standard Jury Instruction (1) improperly states the Florida law, (2) violates due process by diluting the reasonable doubt requirement, and (3) violates due process by shifting the focus on knowledge from the defendant to a fictitious reasonable man.

The instruction in question lists three essential elements of the offense which must be proved beyond a reasonable doubt before there can be a conviction. The second of these elements of proof listed in the instruction is “that the defendant knew that it [the property described in the information] had been stolen.” After listing the three elements, the instruction states the following relative to the necessary proof.

“It is not necessary for the state to prove that the defendant knew beyond a reasonable doubt that the property had been stolen. It is sufficient if the circumstances of the transaction were so suspicious as to put a person of ordinary intelligence and caution upon inquiry and, nevertheless, the defendant did buy it, receive it or aid in concealing it.”

Appellant contends that the above quoted part of the instruction is contrary to the law of Florida and conflicts with the previous portion of the instruction which requires that the state prove beyond a reasonable doubt that the defendant knew that the property had been stolen; that it tells the members of the jury that they can convict the defendant even though they have a reasonable doubt as to his guilt.

In his reply brief appellant modifies the above contention of his original brief to some degree when he candidly states:

“It may well be that rather than eliminating reasonable doubt on knowledge, the instruction committee intended the instruction to mean only that the prosecution does not have to prove beyond a reasonable doubt that the defendant knew beyond a reasonable doubt that the property had been stolen.” •

Appellant in his reply brief has perceived the correct meaning of the instruction. It simply states the case law regarding receiving stolen property as it has been consistently applied to this crime throughout the years. In proving a defendant’s knowledge that the property was stolen, it is not the state’s burden to prove to the jury’s satisfaction beyond a reasonable doubt that the defendant knew beyond a reasonable doubt that the property was stolen. It is sufficient if the state proves beyond a reasonable doubt that the circumstances of the transaction were so suspicious as to put a person of ordinary intelligence and caution upon inquiry and, nevertheless, the defendant did buy the property, receive it, or aid in concealing it. This is exactly what the instruction says in brief and succinct terms.

Appellant’s contention that the instruction violates due process by shifting the focus of knowledge from the defendant to a person of ordinary intelligence and caution gives us more concern. All defendants may not be persons of ordinary intelligence and caution and yet, under the law as stated, such defendants would be held to the same standard as those of ordinary intelligence and caution. But when we consider the instruction from the standpoint of whether or not it correctly states the law of Florida, we must conclude that it does. It states the law as established and approved by the Supreme Court of Florida in numerous opinions over the years. Minor v. State, 55 Fla. 90, 45 So. 818 (1908); Franklin v. State, 66 Fla. 213, 63 So. 418 (1913); Winton v. State, 87 Fla. 104, 99 So. 249 (1924); Stephenson v. State, 89 Fla. 351, 104 So. 600 (1925); Hart v. State, 92 Fla. 809, 110 So. 253 (1926); Forrest v. State, 133 Fla. 310, 182 So. 849 (1938); State v. Graham, 238 So.2d 618 (Fla.1970). Justice Armstead Brown in his dissenting opinion in Forrest v. State, supra, in discussing a similar instruction given there, gave considerable support to appellant’s argument here. The majority opinion in Forrest stated that the instruction given there standing alone might warrant adverse criticism, but it did not hold the giving of the instruction to have been error; If the law, as established by the foregoing previous decisions of the Supreme Court, is to be overruled, it is that court which must overrule it. See Hoffman v. Jones, 280 So.2d 431 (Fla.1973).

We have considered the other points raised by appellant and find no error.

We do hereby determine that the foregoing decision is one which passes upon a question of great public interest as contemplated by Section 3 of Article V of the Constitution of Florida.

AFFIRMED.

MILLS, J., concurs.

RAWLS, Acting C. J., dissents.

RAWLS, Acting Chief Judge

(dissenting).

I dissent.

Appellant-defendant Barket was found guilty by jury of receiving stolen property. Barket argues, primarily, that the language of the instruction was sufficiently ambiguous on the essential element of guilty knowledge to allow the possibility of confusing the jury and thereby diluting the “reasonable doubt” requirement necessary to convict.

To be convicted of the felony of receiving stolen property, Section 811.16, Fla.Stat. (1973), requires that a defendant know “the same to have been stolen”. It is an essential element of this crime that the defendant have guilty knowledge that the property was indeed stolen.

Under existing Florida case law, it appears that the requisite guilty knowledge may be proved up by evidence showing either actual knowledge of defendant that the property was stolen, or by evidence showing that a person of ordinary intelligence and caution, when placed in defendant’s transaction, would find the surrounding circumstances so suspicious as to be put on inquiry that the property was stolen.

Assuming the constitutionality of finding constructive guilty knowledge through the use of a tort-like “ordinary man”, it is still incumbent upon the state in a criminal case to prove beyond and to the exclusion of a reasonable doubt that the defendant possessed such guilty knowledge. Not only must the state so prove, but, in a jury trial such as this, it is imperative to a finding of guilt that the state’s burden of proof be clearly and distinctly, and in unambiguous terms, conveyed to the trier of fact.

The trial court instructed the jury as follows:

“Now, it is a crime commonly called receiving stolen property for any person to buy, receive or aid in the concealment of stolen money, goods, or property, knowing the same to have been stolen.
“The essential elements of this offense which must be proved beyond a reasonable doubt before there can be a conviction in this case are: One, that the goods or property described in the information had been stolen; two, that the defendant knew that it had been stolen; and, three, with such knowledge did buy, receive or aid in the concealment of such money, goods or property.
“Now, it is not necessary for the State to proved [sic] that the defendant knew beyond a reasonable doubt that the property had been stolen. It is sufficient if the circumstances and transaction were so suspicious as to put a person of ordinary intelligence and caution upon inquiry and nevertheless the defendant did buy, receive or aid in the concealment of said property.” (emphasis supplied)

The majority claim that this standard instruction conveys to the jury the state’s burden of proof in “brief and succinct terms”. I cannot agree. The emphasized portions of the instruction quoted above seem to imply, first, that the state must prove the essential elements of the offense beyond a reasonable doubt; however, in the next breath, the instruction reads that it is not necessary for the state to prove that the defendant knew beyond a reasonable doubt that the property had been stolen. Appellant argues, and I agree, that such language is susceptible of an interpretation that would shift the burden of proof from the state to the defendant, thereby allowing the jury to convict despite any reasonable doubt they may have as to the defendant’s guilty knowledge.

In this case, since the property was admittedly stolen, the crucial question for the jury was whether the defendant possessed the requisite guilty knowledge. While it is true that the state may prove this knowledge through actual or constructive knowledge, it still must prove it to the satisfaction of the jury beyond and to the exclusion of a reasonable doubt. If the jury is given the impression that something less on the part of the state is sufficient, then the standard instruction is erroneous, and the error fatal.

I would reverse and remand for a new trial.

      . The instruction given appears on page 182 of the original “Florida Standard Jury Instructions” (Criminal) approved by the Supreme Court on May 27, 1970. The statute under which this case was prosecuted, § 811.16, Fla. Stat. (1973), has subsequently been amended and the new statute is § 812.031, Fla.Stat. (1975). The instruction on receiving or concealing stolen property has likewise been revised and now appears on page 180 of “Florida Standard Jury Instructions in Criminal Laws — Second Edition” approved by the Supreme Court on February 4, 1976; We are here concerned only with the instruction as it existed prior to its revision and the statute prior to its amendment. We point out, however, that the Legislature has written into the new statute the previous case law of Florida which is here in contention.

      .The majority opinion correctly notes the subsequent amendment of the relevant statute and its corresponding jury instruction. Though it is true we are concerned only with the instruction as it existed prior to revision, it is important to note that the substantially revised instruction clarifies both the requisite guilty knowledge required to convict and the burden of proof to be met by the state, thereby substantially reducing any inference of confusion in the minds of the jurors.

      . State v. Graham, 238 So.2d 618 (Fla.1970) and Stephenson v. State, 89 Fla. 351, 104 So. 600 (1925).

      . In the Second Edition Standard Jury Instructions (February 4, 1976) on receiving stolen property, the constructive guilty knowledge language has been incorporated in the essential elements, and the last paragraph of the first edition relating to burden of proof has been eliminated. The new instruction reads in pertinent part:
      “It is a crime for any person to intentionally receive, retain, dispose of or aid in the concealment of any stolen property of another without consent of the owner or person entitled to possession, knowing that it has been stolen, or under such circumstances as would induce a reasonable man to believe that the property was stolen.
      “The essential elements of this offense which must be proved beyond a reasonable doubt before there can be a conviction in this case are that:
      “2. The defendant knew that it had been stolen, or the circumstances were such that a reasonable man would believe that the property had been stolen. .
      The instruction relating to burden of proof is now a separate paragraph and reads:
      “The defendant has entered his plea of NOT GUILTY. The effect of this plea is to require the State to prove each material allegation of the information (indictment) beyond and to the exclusion of every reasonable doubt before the defendant may be found guilty.”

      . In Escambia County Electric Light & P. Co. v. Sutherland, 61 Fla. 167, 55 So. 83 (1911), the Supreme Court, in finding contradictory instructions to the jury, stated:
      . a charge containing contradictory propositions is universally held to be reversible error, unless the evidence is such that the jury could not have been misled. . This principle of law is based on the fundamental law of thought called ‘excluded middle’; that is, that of two contradictory or repugnant propositions one or the other must necessarily be false. There is no middle ground between such propositions and no rational way of harmonizing them. They are necessarily misleading and confusing when presented to a jury, and we are unable to say the plaintiff in error was not prejudiced by the instructions we have been considering.”

      . In State v. Bryan, 287 So.2d 73 (Fla. 1973), the Supreme Court, in reviewing a certified question from this court on the validity of a Standard Jury Instruction in Criminal Cases, stated: “The Florida Jury Instructions should be used, to such extent as may be applicable in the judgment of the trial court, but it does not follow, as the First District seems adamant in saying, that such instructions must be literally given in each and every case . . . We do not agree that ‘Any substantial deviation from use of these instructions will almost aways [sic] end in error on the part of the trial court.’ Our caveat in the general approval of these, as in other jury instructions (240 So.2d 472 (Fla. 1970)), makes express reference to the fact that the approval is only ‘generally’ of ‘the theory and technique’ involved ‘as recommended by the Committee and embodied in its proposed instructions.’ ”


author: PEARSON, Judge.

text:
    In re ESTATE of Bernard J. HERSKOWITZ, Deceased. Judith HERSKOWITZ, as claimant, Appellant, v. Marvin J. HERSKOWITZ, as Executor of the Estate of Bernard J. Herskowitz, Appellee.
    No. 75-1355.
    District Court of Appeal of Florida, Third District.
    Feb. 8, 1977.
    Rehearing Denied March 4, 1977.
    Judith Herskowitz, in pro. per.
    Noriega, Bartel, Chopp, Schatz, Levine & Shuford, Simon, Hays & Grundwerg, Miami, Smith, Mandler, Smith, Parker & Wer-ner, Miami Beach, for appellee.
    Before HENDRY, C. J., and PEARSON and HAVERFIELD, JJ.
   PEARSON, Judge.

Judith Herskowitz is the former wife of Bernard J. Herskowitz who died on August 26, 1974. Mr. Herskowitz’s estate is being probated in Dade County, Florida. Mrs. Herskowitz holds a judgment against Mr. Herskowitz for $46,500 representing an unpaid special equity in Mr. Herskowitz’s assets which had been adjudged against Mr. Herskowitz as a part of the final judgment of divorce. This appeal is from an order of the circuit court in probate which denied Mrs. Herskowitz’s motion for extension of time to commence action upon her claim. The motion was filed pursuant to Section 733.18, Florida Statutes (1973). We reverse upon a holding that the evidence presented at the hearing upon the motion established good cause for an extension of time to file suit upon the claim.

Bernard Herskowitz died leaving a will which created a trust to receive all his assets. The will appointed his brother Marvin, as trustee. Marvin Herskowitz is also the executor of Bernard’s estate. During her former husband’s lifetime, Judith received payments of alimony and child support from Bernard. She and the children were dependent upon these payments. Upon the commencement of probate, Judith requested Bernard to make payments for the support of the children. Bernard represented that there were no funds available, but promised to pay the special equity judgment if she would agree to use it for the support of the children. Judith was forced, in order to protect her rights, to move herself and the children to Dade County, Florida, from New York City. She has had a succession of attorneys, but none has worked with her for long. The probate of Bernard’s estate proceeded regularly. Notice to creditors was published and Judith filed her claim. Judith testified that her conversations with the executor and with a family friend, who was the agent of the executor, led her to believe that the claim would be paid without objection. These conversations were before the filing of the claim. Apparently, after the filing of the claim, the executor did not communicate with his former sister-in-law at all and stood on his prior statement that her claim would be paid if she would agree that the money would be used only for the benefit of the children. It should be noted that the condition attached to the executor’s agreement was illegal. The claim was valid or it was not valid. A personal representative of an estate has no right to use the payment of sums of money from the estate to accomplish personal objectives. If the claim was valid, as the executor’s offer to pay upon condition indicates, then the money belonged to Judith Herskowitz and no one else. If Judith had agreed to the condition, then the corpus of the children’s trust, of which the executor was also trustee, would have been relieved of the necessity for support for a considerable length of time. These matters appear from the record without conflict in the evidence.

The executor did file an objection to Judith’s claim. The circuit judge found that Judith was personally served with the objection to the claim. This finding was upon conflicting testimony but on this appeal, it is, of course, binding on this court. See Federated Department Stores, Inc. v. Planes,' 305 So.2d 248 (Fla. 3d DCA 1974). It was Judith’s testimony that she did not file suit on her claim within the time limit because she relied upon the previous negotiations with the executor and because she was not personally aware that an objection had been filed.

Appellee points out that the granting or refusal of an extension of time to commence action upon a claim to which objection has been properly filed is a matter within the broad judicial discretion of the judge in probate. See Williams v. Gunn, 279 So.2d 69 (Fla. 1st DCA 1973); and see In re Estate of Tanner, 288 So.2d 578 (Fla. 2d DCA 1974). This is particularly so because “good cause” is a factual matter found by the trial judge to be true. The exercise of discretion is reviewable. In reversing an order extending time to file an objection to a claim, the Supreme Court of Florida has held:

“The power vested in the county judge under the statute to extend the time provided in the statute in given cases is limited to those instances in which good cause is made to appear to the county judge. This is not an unbridled power by any means. The exercise of such power is a judicial act and involves the exercise of judicial discretion. Judicial discretion, as we pointed out in Carolina Portland Cement Co. v. Baumgartner, 99 Fla. 987, 128 So. 241, 247, ‘does not imply that a court may act, or fail to act, according to the mere whim or caprice of the presiding judge, but it means a discretion exercised within the limits of the applicable principles of law and equity, and the exercise of which, if clearly arbitrary, unreasonable, or unjust, when tested in the light of such principles, amounting to an abuse of such discretion, may be set aside on appeal.’ ” See Ellard v. Godwin, 77 So.2d 617, 619 (Fla.1955).

We hold that the uncontroverted facts .revealed by this record show good cause' to extend the time for the appellant to file suit on her claim. It is undisputed not only that the executor knew of the hardship to the children and their mother caused by his brother’s death, that he claimed that no funds were available and then conditioned any help upon a payment of the judgment, but also that he further conditioned that payment upon a requirement that the claimant was to receive no money for her own use. It is further undisputed that the parties were not dealing at arm’s length, but in a claimed atmosphere of family concern. See the discussion in the case of In re Kemp’s Estate, 177 So.2d 757 (Fla. 1st DCA 1965).

Therefore, the trial judge improperly denied the petition to extend time to file suit. We leave to the trial judge a determination of the particulars of his order upon remand and direct only that a reasonable time after the entry of that order be allowed to the petitioner for the filing of suit on her claim.

Reversed and remanded.


author: BARKDULL, Judge.

text:
    The NATIONAL UNION FIRE INSURANCE COMPANY, Appellant, v. LENOX LIQUORS, INC., Appellee.
    No. 75-1869.
    District Court of Appeal of Florida, Third District.
    Feb. 8, 1977.
    Rehearing Denied March 1, 1977.

      Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O’Hara and Richard A. Sherman, Miami, for appellant.
    Theodore M. Trushin and Michael B. Solomon, Miami Beach, for appellee.
    Before HENDRY, C. J., and BARKDULL and NATHAN, JJ.
   BARKDULL, Judge.

The National Union Fire Insurance Company issued a liability policy to Lenox Liquors, Inc., which provided coverage, in part, as follows:

* * * * * *
“The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of
a) bodily injury or
b) property damage
to which this insurance applies, caused by an occurrence, * * * ”
******

Occurrence is defined as:

“ ‘occurrence’ means an accident, including injurious exposure to conditions, which results, during the policy period, in bodily injury or property damage neither expected nor intended from the standpoint of the insured."

While the policy was in full force and effect covering a liquor store operated by Lenox, one McClendon (who was a thirteen-year old minor with the physical attributes of a much older person) and another entered the premises operated by Lenox. McClendon and his companion were possessed of a beebee gun and pellet gun, whereupon Rosen (President of Lenox Liquors, Inc.) discharged a shotgun, injuring McClendon and his companion. Subsequently, McClendon brought an action against Lenox and Rosen, charging the injury was caused by “ * * * willfully and wantonly, firing a loaded shotgun at the Plaintiff LEROY McCLENDON, * * ”, an intentional tort. Lenox, the insured, called upon National to defend; National refused. Lenox then filed -a third party complaint against National, claiming indemnification in the event it was liable to McClendon. National moved for a judgment on the pleadings, contending that the allegations of the McClendon complaint [showing intentional tort] relieved it from responsibility to defend. The trial judge granted the judgment on the pleadings, with the following reservations:

******
“* * * This judgment is without prejudice as to LENOX LIQUORS, INC. and ROBERT ROSEN to file an amended third party complaint if the Plaintiff in the main suit files a subsequent action so as to bring the allegations therein within the coverage of the subject policy.” ******

Thereafter, the matter of McClendon v. Lenox proceeded and, on the evening of the trial, the matter was settled and the following is found in the formal settlement papers:

******
“ * * * Complaint would have been tried upon the negligent conduct of the Defendants rather than upon the Plaintiffs’ claim of willful conduct of the Defendants, and this settlement has been reached upon this basis.”
******

Subsequently, after Lenox had paid the settlement claim, it instituted the instant action against National for recovery under the terms of the policy, to wit: indemnification for the settlement agreement, costs, and attorney’s fees incident to the defense of the McClendon action. Thereupon the parties stipulated to certain facts and the cause proceeded non-jury, whereupon a final judgment was rendered in favor of Le-nox in terms and figures, in part, as follows:

* * * # * *
“ * * * this Court finds as a matter of law that the Plaintiff is not barred from proceeding in the instant suit because of res judicata or estoppel by judgment based upon the Judgment of the Pleadings entered by this Court in favor of the Defendant here, and against the Plaintiff, dated August 13, 1971, in case number 71-1597; said case being styled Leroy McClendon, et al. v. Lenox Liquors, Inc., et al. This Court also finds as a matter ■of law, based upon the Court’s findings of facts set forth below, that the Plaintiff’s claim herein falls within the exception to the general rule relative to a liability insuror’s duty to defend which is usually governed by the allegations of the complaint filed against its insured. The exception to this rule states that a liability insurer is obligated to defend its insured when such insuror has, or should reasonably be expected to have, actual knowledge of facts which brings the claim within the purview of the policy provision.
“The parties hereto have filed with the Court a Stipulation of Pact which the Court has considered as evidence herein. Upon consideration, this Court hereby adopts said Stipulation of Fact as its findings of fact and, in addition, based upon said Stipulation of Fact, hereby makes additional findings of fact upon which this Final Judgment is predicated. This Court finds that on January 24, 1969, Robert Rosen, President of the Plaintiff herein, did shoot one Leroy McClendon with a shotgun, thinking that said Leroy McClendon was an armed robber threatening life and property instead of being, as alleged by McClendon in case number 71 — 1597, a minor who had come into the store as a customer only. As such, this Court finds that the action of Rosen was an ‘occurrance, which is defined in the Defendant’s policy of insurance as “an accident . . . which results ... in bodily injury . neither expected nor intended from the standpoint of the insured” ’. The Court further finds that, based upon the Stipulation of Fact, Rosen neither expected nor intended to injure an innocent customer of the Plaintiff’s liquor store, but rather only expected or intended to injure an armed robber threatening his life and the Plaintiff’s property. Herein, Rosen’s acts were an accident in that his injuring of an innocent customer was unintended and undesigned. See Gulflife Ins. Co. v. Nash, 97 So.2d 4 (Fla.1957). This Court therefore finds that McClendon’s claim in case number 71-1597 would have been within the coverage provided by the Defendant’s policy of insurance insuring the Plaintiff at said time and place. “Additionally, this Court finds that the Defendant had actual knowledge that McClendon’s claims might come within the policy coverage prior to February 8, 1971, the date on which it refused coverage to the Plaintiff.
“This Court further finds that prior to the trial of case number 71-1597, that Plaintiff here settled the claims of McClendon, et al., in good faith, for the sum of $3,750.00, and finds that he paid his attorney the sum of $2,000.00 for defending said lawsuit and additionally, was obligated and did pay the additional sum of $204.50 for various court costs and expenses involved in the defense of that suit.
“In consideration of the above findings of law and fact, and being fully advised in the premises, this Court does “ORDER and ADJUDGE that the Plaintiff, Lenox Liquors, Inc., have and recover of and from the Defendant, the National Union Fire Insurance Company, the sum of $5,955.50, representing a total of the above sums, together with interest thereon from July 20,1973, to date in the amount of $736.90, and together with a reasonable attorney’s fee for services in connection with the prosecution of this action in the amount of $2,000.00, or a total of $8,691.40 for which let execution issue.”
* * * * * *

We affirm. An insurance company’s duty to defend is greater than its duty to pay. Garden Sanctuary, Inc. v. Insurance Company of No. America, 292 So.2d 75 (Fla.2nd D.C.A.1974). The insurance company in the instant action stipulated that McClendon’s claim would have to be tried on a negligence theory; therefore, it would have been required to defend. Gunn Plumbing, Inc. v. Dania Bank, 252 So.2d 1 (Fla.1971); Aetna Life & Casualty Company v. Thorn, 315 So.2d 219 (Fla.3rd D.C.A. 1975). Counsel for the appellant relies on Capoferri v. Allstate Insurance Company, 322 So.2d 625 (Fla.3rd D.C.A.1975) for reversal. In the instant case, the insurance company stipulated that the injured party’s claim would sound in negligence; in the cited case the claim was to intentional tort. The proof would have been for intentional tort and, therefore, this was a claim without the coverage of the policy, so the cases are distinguishable.

We approve the statement by the learned judge: “As such, this Court finds that the action of Rosen was an ‘occurrence, which is defined in the Defendant’s policy of insurance as an “accident * * * which results * * * in bodily injury * * * neither expected nor intended from the standpoint of the insured” ’. Gulf Life Insurance Company v. Nash, 97 So.2d 4 (Fla. 1957); Cloud v. Shelby Mutual Insurance Company of Shelby, Ohio, 248 So.2d 217 (Fla.3rd D.C.A.1971); George v. Stone, 260 So.2d 259 (Fla.4th D.C.A.1972).

Affirmed.

      . ******
      “The parties hereto, by and through their undersigned attorneys, do hereby stipulate and agree upon the following facts for the purposes of consideration by the Court and/or inclusion in the final judgment in this cause:
      “12. On March 16, 1971, NATIONAL UNION filed it’s (sic) Answer to the Third Party Complaint which, in part, admitted that it had failed to settle the claims made by McClendon and failed to defend LENOX LIQUORS, INC., in that case, but stated that it was not obligated to pay any sums for which LENOX LIQUORS, INC., should become legally obligated to pay as damages because of bodily injury to McClen-don, because the original Complaint filed on behalf of McClendon alleged that Robert Ro-sen, as president and employee of LENOX LIQUORS, INC., assaulted the Plaintiff by maliciously, wilfully and wantonly firing a loaded shotgun at McClendon. The answer further denied coverage saying that the Complaint in essence alleged an intentional act which was not covered under the policy. NATIONAL UNION stated therein that ‘the Defendant’s conduct was not a peril insured against’ and that it had no duty to defend LENOX LIQUORS, INC. At this time NATIONAL UNION knew that McClendon would contend he was not holding up the store and that Rosen would contend he thought McClendon was holding up the store, and this is why he shot him, and one of the issues for trial would have been whether Rosen was mistaken in the belief that LENOX LIQUORS was being robbed.
      “ * * * the allegations of the Plaintiff’s Complaint would have been tried upon the negligent conduct of Rosen and LENOX LIQUORS, INC., rather than upon McClendon’s Complaint of willful conduct of the Defendants and that the settlement was reached upon that basis. * * * ” [emphasis added]
      * * * * *


text:
    Myron T. WEINER and OM Industries Inc. et al., Appellants, v. Jerome WEISBERG, d/b/a OM Shalom Trading Store, et al., Appellees.
    Nos. 76-10, 76-81.
    District Court of Appeal of Florida, Third District.
    Feb. 8, 1977.
    Rehearing Denied March 9, 1977.

      Horton, Perse & Ginsberg, Leonard Sel-kowitz, Miami, for appellants.
    Alexander S. Gordon, Miami, for appel-lees.
    Before HENDRY, C. J., and PEARSON and HAVERFIELD, JJ.
   PER CURIAM.

Plaintiffs appeal an adverse summary judgment in this action to enjoin infringement and unfair competitive use of a trade name.

In 1970 plaintiff, Myron Weiner, commenced his jewelry business in Coconut Grove, Florida under the name of OM Jewelry & Leather Shop, Inc., which corporate name was changed to OM Industries, Inc. In 1973 Weiner also organized OM Jewelry Manufacturing, Inc. Defendant, Jerome Weisberg, is an exporter/importer, manufacturer, retailer and wholesaler of jewelry, fabrics and fine handicraft and in 1974 opened a place of business within two blocks of Weiner’s shop under the name of OM Shalom Trading Store. In 1975 Myron Weiner, OM Industries, Inc. and OM Jewelry Manufacturing Co. filed a complaint against Jerome Weisberg for trade name infringement and unfair competition and prayed for injunctive relief. Plaintiffs alleged that they had consciously employed the name “OM” as a trade name, which had become generally known in South Florida and other areas of the United States; that the word “OM” was of substantial value to the plaintiffs, and large sums of money had been spent in advertising and promoting the sale of merchandise bearing the word “OM”; that Weisberg’s use of the word “OM” was detrimental to plaintiffs and causing confusion to the public. Weisberg answered denying the material allegations of the complaint. Following pretrial discovery both parties filed motions for summary judgment and the trial court granted summary judgment for Weisberg. Plaintiffs appeal. We affirm.

A generic term such as “OM” is not ordinarily susceptible of exclusive appropriation by an individual as a trade name except where by usage the term acquires a secondary or special meaning as indicating or identifying the goods or business of the user as distinguished from its common or general meaning; in such cases, the user is entitled to protection against subsequent unfair use of such terms by another. Williamson v. Answer Phone of Jacksonville, Inc., 118 So.2d 248 (Fla.1st DCA 1960). In an action to enjoin the infringement or unfair competitive use of a trade name, customer confusion is the gist of the actionable wrong and to invoke equitable relief, the plaintiff must show that there is competition. Stagg Shop of Miami, Inc. v. Moss, 120 So.2d 39 (Fla.2d DCA 1960); Tampa Wholesale Co. v. Foodtown, U.S.A., Inc., 166 So.2d 711 (Fla.2d DCA 1964). A review of the record fails to show the requisite competition and customer confusion. Myron Weiner in his deposition testified that for the most part his merchandise is different from Weisberg’s; that on several occasions his customers mistakenly went to Weisberg’s store, but were directed to his store by Weisberg and vice versa. In addition, plaintiffs have failed to present testimony of any of their customers with regards to the alleged confusion experienced with the name of the businesses. Thus, we find the trial judge was correct in granting summary judgment for Weisberg.

Affirmed.


author: HENDRY, Chief Judge.

text:
    Richard Charles ALBERGER et al., Appellants, v. Ida Gene HARVISON, Appellees.
    No. 76-29.
    District Court of Appeal of Florida, Third District.
    Feb. 8, 1977.
    Rehearing Denied March 9, 1977.

      Walton, Lantaff, Schroeder, Carson & Wahl, Miami, and Michael B. Davis, West Palm Beach, and David K. Tharp, Kneale & Starkweather, Miami, Bernard H. Butts, Jr., Hialeah, for appellants.
    Horton, Perse & Ginsberg, Brumer, Moss, Cohen & Rodgers, Miami, for appellees.
    Before HENDRY, C. J., PEARSON, J. and CHARLES CARROLL (Ret.), Associate Judge.
   HENDRY, Chief Judge.

This is an appeal from a final judgment rendered pursuant to a jury verdict in a personal injury negligence action.

On February 2, 1972, appellee, plaintiff below, was seriously injured when the automobile in which she was driving collided with a truck driven by appellant-Alberger, defendant below. The cause proceeded to trial whereupon, at its conclusion, the jury returned a verdict for appellee and against all appellants in the sum of $165,000. Timely post trial motions for judgment in accordance with motion for directed verdict; for set off; for new trial; to limit judgment of appellant-Hartford Accident & Indemnity Company; and to interview jurors were filed by appellants. Said post-trial motions were denied by the trial court without hearing, except for the motion to limit judgment, which was granted.

On November 5, 1975, a final judgment was entered in favor of appellee pursuant to the jury verdict. Subsequently, on December 8, 1975, a post trial “order granting motion to limit judgment” of appellant-Hartford in accordance with its policy limits was entered. Appellants appeal from both orders.

Appellants raise many points on appeal, the following of which deserve discussion.

At the beginning of the proceedings, the trial judge, with the consent of both parties, permitted the jurors to ask questions of the witnesses. At the close of the evidence, appellee’s counsel voiced his objection as to one of the jurors on the grounds that from the nature and manner of that juror’s questions and comments, it was apparent that said juror had shown bias and a lack of objectivity. Over strenuous objection by appellants’ counsel, an alternate jur- or was substituted.

Appellants contend that the trial judge’s action amounted to reversible error in that no inquiry was made of the juror, before his dismissal, as to whether his comments in fact amounted to a prematurely expressed, prejudicial opinion.

Notwithstanding the failure to inquire, we note that at the outset of the trial, the judge read to the jury Florida Standard Jury Instruction 1.1, which in part provides that:

“You should give careful attention to the testimony and evidence as it is received and presented for your consideration, but you should not form or express any opinion about the case until you have retired to the jury room to consider your verdict after having heard all of the evidence, the closing arguments of the attorneys and the charge of the court.
“During the trial, you must not discuss the case among yourselves or with anyone else, nor permit anyone to discuss it in your presence . . .” [Emphasis added.]

In light of the above instruction, and pursuant to the procedure set forth in Rule 1.431(e), Fla.R.Civ.P., relating to the empaneling of alternate jurors, the trial judge was of the opinion that the comments and questions made by the juror were no longer objective and unbiased. In that the trial judge held a superior advantage over this court in determining the full force and effect of said juror’s questions and comments, we cannot say that the failure to question said juror concerning his expressed views amounted to error.

Even assuming error was committed, appellants have failed to mention where said error prejudiced their cause. Considering the fact that the empanelled alternate juror had been chosen pursuant to the above quoted rule, had been present throughout the entire proceedings and had heard all of the testimony presented, we are of the opinion that any error was harmless in nature, not warranting reversal. Section 59.041, Florida Statutes (1975).

Appellants next claim as error the trial court’s denial of their post trial motions without a hearing. By way of thorough examination, we find no such mandatory language in Rule 1.530, Fla.R.Civ.P. Nevertheless, in Seaboard Coast Line Railroad Co. v. Magnuson, 288 So.2d 302 (Fla.4th DCA 1974), our sister court held that due process requires a hearing on a post trial motion for new trial after proper notice to all parties. The court, however, concluded that:

“The error [in denying a hearing on said post trial motions] was harmless in view of the fact that the motion contained no matters which had not been argued previously to the court during the course of the trial.”

Without commenting upon the correctness of the due process argument set forth in Seaboard Coast Line Railroad Co., supra, we are of the opinion, after examining the contents of the aforementioned motions, that no new matter was raised in said motions that had not already been argued before the trial judge. Therefore, even assuming the validity of the above quoted case, error, if any, was harmless.

The remaining point we shall discuss concerns an alleged error of the trial judge in allowing appellee to introduce testimony of appellee’s late husband’s income to prove her damages. Appellants contend that said testimony was irrelevant to the issue of damages in that the husband had died one year prior to the accident at issue, under completely unrelated circumstances.

Appellee, on the other hand, argues that said testimony was elicited to establish ap-pellee’s “need and capacity to earn money in the future” and was thus, relevant to the damage question.

While we are far from convinced as to the relevancy of said testimony, there is no question that appellee did suffer serious, permanent and continuing injuries. If the admission of the testimony was in effect error, appellants have failed to meet their burden in pointing out clearly, definitely and fully the prejudicial nature of said error. Strate v. Strate, 328 So.2d 29 (Fla.3d DCA 1976). There was ample proper evidence regarding appellee’s injuries to support the verdict, rendering the admission of said testimony harmless error. Brevard County v. Apel, 246 So.2d 134 (Fla.4th DCA 1971).

The other points raised by appellants have been examined and are deemed to be without merit.

We have considered the record, all points in the briefs and arguments of counsel in the light of the controlling principles of law, and have concluded that no reversible error has been demonstrated. Therefore, for the reasons stated and upon the authorities cited and discussed, the judgment appealed is affirmed.

Affirmed.

PEARSON, J., dissents.


text:
    ALLIED LEISURE INDUSTRIES, INC., Appellant, v. AMERICAN MUTUAL LIABILITY INSURANCE COMPANY, Appellee.
    No. 76-190.
    District Court of Appeal of Florida, Third District.
    Feb. 8, 1977.
    Rehearing Denied March 4, 1977.
    Myers, Kaplan, Levinson & Kenin and Peter H. Leavy, Miami, for appellant.
    Spencer & Taylor, Miami, for appellee.
    Before HAVERFIELD and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Appellant, the plaintiff below, seeks reversal of a judgment entered on a non-jury trial, whereby the court denied the plaintiff’s claim of loss under a transportation insurance policy issued by defendant.

The period of the coverage was stated in the policy to be “from the time such property leaves the factory, store, or warehouse at initial point of shipment until such property is delivered at its destination, including while in or on docks, wharfs, piers, bulkheads, depots, stations and platforms, while the property is in due course of transit in the custody of a common carrier incidental to transportation”. (Emphasis supplied)

Here the plaintiff instituted transportation of a container in which there were thirty-four amusement machines, intended for export to a purchaser in Japan. The item was carried by truck from plaintiff’s place of business in Dade County to a rail carrier, loaded on a flatcar and transported to Jacksonville. There the item was trucked to a dock in the port of Jacksonville, from which it was to have been loaded upon a vessel for further transportation to Japan. In handling the container at the dock, stevedores permitted it to fall from the truck. Upon an inspection of the merchandise made by a representative of the plaintiff, it was found that no damage to the machines had thereby resulted.

For certain reasons involving the credit status of the intended foreign purchaser, the plaintiff determined that shipment of the merchandise from Jacksonville to Japan would not be made. The plaintiff permitted the container to remain on a dock in Jacksonville for approximately two weeks, while attempting unsuccessfully to obtain another purchaser.1 Decision was then made by plaintiff to have the merchandise returned. Accordingly it was transported by truck in Jacksonville from the dock to a rail carrier and by the latter transported to Dade County. That return transportation involved not more than four days time.

Following return of the merchandise to Dade County, it was found to have been damaged by water. On the machines there was evidence of rust, mildew of upholstery, and substantial water stains which had dried out.

There was no direct evidence as to whether the damage occurred during the time the container was in transit as covered by the policy, or occurred during the above-described period while it remained on the dock in Jacksonville. By the judgment entered, the trial court as trier of the facts could, and no doubt did, conclude the damage to the property that was disclosed upon its return to Dade County was of such nature and extent that more likely it occurred during the extended period while it was on the dock in Jacksonville. During the latter period, after shipment to Japan was terminated, the property was not in transit while it remained on the dock under the control of the plaintiff, awaiting its decision and direction for resumption of transportation to some other destination, if another purchaser was obtained, or otherwise until its return was directed. See 43 Am.Jur., Insurance, Section 322.

It would be inappropriate to re-evaluate the evidence on the record and substitute our judgment for that of the trial court, if we were so inclined, and we are not. See Shaw v. Shaw, 334 So.2d 13, 17 (Fla.1976). The judgment is supported by substantial competent evidence. No reason in law has been shown to disturb the judgment of the trial court.

Affirmed.


text:
    Van BRUCE, Appellant, v. The CORAL GABLES BOARD OF REALTORS et al., Appellees.
    No. 76-301.
    District Court of Appeal of Florida, Third District.
    Feb. 8, 1977.
    Rehearing Denied March 4, 1977.
    Richard H. W. Maloy & Associates, Coral Gables, for appellant.
    Rehearing Denied March 1, 1977.
    Russo, Van Doren & Allen and James W. Whatley, Coral Gables, Shevin, Shapo & Shevin and David A. Freedman, Miami, for appellees.
    Before PEARSON, BARKDULL and HAVERFIELD, JJ.
   PER CURIAM.

Affirmed. See Knight v. H. S. Equities, Inc., 280 So.2d 456 (Fla. 4th DCA 1973). See also Carter v. State Farm Mutual Automobile Insurance Co., 224 So.2d 802 (Fla. 1st DCA 1969).