text:
    In re ESTATE of U. J. BRAGG, also known as Ulysses J. Bragg, also known as Ulysses Jackson Bragg, Deceased. William R. SUTTON, as guardian for Julian L. Bragg, incompetent, Appellant, v. Maggie Mae Nelson BRAGG, and the Estate of U. J. Bragg, also known as Ulysses J. Bragg, also known as Ulysses Jackson Bragg, Deceased, Appellees.
    No. 75-997.
    District Court of Appeal of Florida, Third District.
    May 4, 1976.
    Rehearing Denied July 6, 1976.
    Pettigrew & Bailey, Miami, for appellant.
    C. Hugo Whitehouse, Arthur E. Huttoe, Miami, for appellees.
    Before HENDRY and NATHAN, JJ., and LESTER, M. IGNATIUS, Associate Judge.
   PER CURIAM.

This is an appeal by respondent-appellant, W. R. Sutton, as guardian for Julian L. Bragg, incompetent, from an order of the probate division of the circuit court determining the petitioner, Maggie Mae Nelson Bragg, to be the sole heir of Ulysses J. Bragg. The only issue herein is whether or not the petitioner was the common law-wife of Ulysses J. Bragg, deceased.

Appellant raises two points on appeal. First, that in effect, the order determining petitioner to be the common law wife of the deceased was contrary to the weight of the evidence adduced at trial. Second, that the trial court erred in excluding from introduction into evidence, documents dated after January 1, 1968, (the date after which common law marriages could not longer be validly established) relating to the marital status of the petitioner and the deceased.

More than a score of witnesses testified as to the relationship between the petitioner and the deceased. It is admitted by petitioner and respondent that there was conflicting evidence adduced at the trial. The petitioner and respondent, by objection of respective counsel, were confined to presenting testimony concerning the period of time prior to January 1, 1968, relating to the marriage. The trial court, at the close of all of the evidence, found that:

“Witnesses testifying on behalf of petitioner were business acquaintances and close friends, having maintained close contact with petitioner and deceased prior to his death. Their testimony established that the parties commenced living together as husband and wife in the early 60’s taking trips together and registering at hotels as “Mr. and Mrs. Bragg”, and, in general, enjoying the reputation in the community as husband and wife. At social gatherings and other places wherein the witnesses were personally present deceased held the petitioner out to be his wife. From this testimony there was no doubt but that the parties enjoyed the reputation of being married beginning shortly after his divorce in August 1960 until his death in 1974. I find that the petitioner established a strong case that the common law relationship existed between the parties.
Respondent produced witnesses whose testimony was in direct conflict with the testimony given by witnesses for the petitioner. According to their testimony petitioner was not treated as a wife of the deceased nor did they enjoy the reputation of being married in the community. In addition, documentary evidence in the nature of copies of income tax returns and voter registration information indicated that on occasion deceased designated himself as being “single” during the years prior to 1968.
Considering the total evidence presented to the Court, it is the finding of this Court that the evidence presented establishing the common-law marriage relationship was strong and persuasive and the testimony offered by the respondent was not sufficient to overcome the legal presumption of the existence of the common-law marriage in this cause. I find that the petitioner was the common-law wife of the deceased and, therefore, became his widow on his death in 1974. There were no children born of this marriage. Accordingly, it is

ORDERED

(1) that petitioner, Maggie Mae Nelson Bragg, was the common-law wife of the deceased, U. J. Bragg, said relationship having been established prior to January 1, 1968, and continuing until his death on September 21, 1974, and is, therefore, the sole heir at law of the deceased; . . . ”

With regard to respondent’s first point, he argues that petitioner did not establish a marriage agreement per verba de praesenti. We apply the following rule of law to this case:

“ A common law marriage or marriage per verba de praesenti, as distinguished from a ceremonial marriage, may be proven in various ways. The best evidence of such a marriage would of course be the testimony of the contracting parties or those present when they mutually agreed to take each other as man and wife, but it may be established by what is termed habit or repute. In other words, proof of general repute and cohabitation as man and wife will support a presumption of marriage when the agreement is denied and connot be proven by the best evidence.’ LeBlanc v. Yawn, 1930, 99 Fla. 328, 126 So. 789, 790.” Carter v. Carter, Fla.App.1975, 309 So.2d 625, 628.

It is not within the province of this court to substitute its judgment for that of the trier of fact unless the record clearly reflects that the findings and conclusions by the trial court are not supported by any substantial competent evidence. L & N Grove, Inc. v. Chapman, Fla.App. 1974, 291 So.2d 217, 219. A careful review of the record discloses ample testimony to support the findings of fact and conclusions of law of the trial court, and that the petitioner met the requirement to make a prima facie showing of the existence of a common law marriage.

We now turn to respondent-appellant’s second point on appeal regarding excluding from evidence certain documents dated after January 1, 1968. Testimony in support of petitioner’s claim was properly confined to that period of time prior to January 1, 1968, as evidence after January 1, 1968, either affirming or denying the existence of the marriage could not create or dissolve the marriage. The findings of fact by the trial court reflect that the court considered documentary evidence such as income tax returns and voter registration designating Ulysses J. Bragg as being single during the years just prior to 1968. While evidence as to whether or not petitioner and deceased considered themselves to be married after January 1, 1968, may be relevant to show state of mind after that time, the exclusion of such cumulative evidence was at best, harmless error.

Affirmed.

      . § 741.211, Fla.Stat.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Claude DORSY et al., Appellants, v. MARYLAND NATIONAL BANK, a National Banking Corporation, Appellee.
    No. 76-70.
    District Court of Appeal of Florida, Third District.
    May 4, 1976.
    Rehearing Denied July 6, 1976.
    Bridges & Dorsy, Coral Gables, for appellants.
    Frank, Strelkow & Gay, Miami Beach, for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Defendants seek reversal of an order dismissing with prejudice their amended counterclaim in this action on a contract of guaranty.

On August 14, 1973, plaintiff, Maryland National Bank, extended credit to Concorde Yachts, Inc. on the basis of personal guarantees executed by the defendants. The extension of credit was secured by a first lien on all inventories, accounts and contracts receivable existing or thereafter acquired. In April 1975 plaintiff filed against the defendant guarantors the present action seeking $431,767.78, the sum for which Concorde Yachts allegedly is indebted to the plaintiff and which it has failed to pay. Defendants filed a counterclaim and an amended counterclaim for damages which in essence contended that in 1974 plaintiff took control of Concorde Yachts, Inc. (for the benefit of itself and not Concorde Yachts) leading to the financial failure of Concorde Yachts. The amended counterclaim further alleged that plaintiff seized possession of the inventories, accounts and contracts and improperly conducted a sale of the inventory resulting in a substantial loss causing insufficient funds to pay the obligations due plaintiff. Plaintiff filed a motion to dismiss the counterclaim on the ground that the guarantors by virtue of law have no actionable claim. The motion was granted and defendants appeal the order of dismissal. We reverse.

The guarantor and the creditor are parties to the contract of guaranty and consequently any rights of the guarantor as against the creditor are determined in the first instance by the terms of the guaranty contract. Beyond these rights, however, the law imposes on the creditor an obligation not to deal with the debtor or any security for the debt in such a manner as to harm the interest of the guarantor. 38 Am.Jur.2d Guaranty § 126 (1968). Reviewing defendants’ counterclaim in light of the above principle of law, we conclude it states a cause of action against the plaintiff. Accordingly, the order of dismissal is reversed and the cause remanded to the trial court for further proceedings not inconsistent herewith.

Reversed and remanded.


text:
    Gonzalo VILLA, Appellant, v. MUMAC CONSTRUCTION CORP., a Florida Corporation, et al., Appellees.
    No. 75-1732.
    District Court of Appeal of Florida, Third District.
    May 11, 1976.
    Rehearing Denied July 6, 1976.

      Nestor Morales, Miami, for appellant.
    Cushman & Cushman, Miami, Holtzman & Krause, South Miami, for appellees.
    Before PEARSON, HENDRY and HA-VERFIELD, JJ.
   PER CURIAM.

Appellant seeks review of an order of the trial court enforcing a judgment of settlement, stipulated to in open court by appellant and appellees, and denying his amended motion for a new trial or hearing.

It is appellant’s contention that the trial court erred in refusing to relieve him from the obligations assumed under the stipulations incorporated in the judgment of settlement, because, allegedly, he was induced to enter into them through fraud and misrepresentation on the part of appellees.

After a hearing on appellant’s objections to the enforcement of the judgment of settlement, the trial judge found that there was nothing to show any fraud or misrepresentation. Thereupon, the trial court entered an order enforcing the terms of the judgment of settlement and denying appellant’s amended motion for a new trial or hearing.

It is incumbent upon a party seeking to avoid the consequences of stipulations entered into in open court to show good cause why the terms of such stipulations should not be enforced. See Dunscombe v. Smith, 139 Fla. 497, 190 So. 796; and Esch v. Forster, 123 Fla. 905, 168 So. 229. Here, the trial judge found that appellant had failed to show good cause to entitle him to be relieved of the obligations under the stipulations. This finding arrives in this court with a presumption of correctness, and appellant has failed to make any error appear on appeal. See, e. g., Imperial Lumber Co. v. James Knowles, Inc., Fla.App.1972, 267 So.2d 53; Frasee v. Frasee, Fla.App.1966, 185 So.2d 484; Wrains v. Rose, Fla.App.1965, 175 So. 2d 75; and 2 Fla.Jur., Appeals §§ 313 and 316. Therefore, the judgment of settlement and order appealed are affirmed.

Affirmed.


author: RAWLS, Acting Chief Judge.

text:
    C. W. C., Jr., a child, Appellant, v. STATE of Florida, Appellee.
    No. AA-373.
    District Court of Appeal of Florida, First District.
    June 30, 1976.

      Richard W. Ervin, III, Public Defender, and Louis G. Carres, Asst. Atty. Gen., for appellant.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for ap-pellee.
   RAWLS, Acting Chief Judge.

Appellant, C. W. C., Jr., appeals from an order adjudicating him to be a delinquent child and committing him to the Division of Youth Services. In the order of commitment, the trial court found appellant to be guilty of possessing a short-barreled rifle in violation of Florida Statute 790.221 and unlawfully operating a motor vehicle in violation of his restricted driver’s license.

Appellee concedes that the adjudication of delinquency cannot be predicated on the fact that appellant unlawfully operated a motor vehicle in violation of the restrictions imposed on his restricted driver’s license, because it was a juvenile traffic offense as defined in Florida Statute 39.-01(29). Thus, we are solely concerned with the sufficiency of the evidence to prove that appellant had knowing possession of the illegal firearm in the trunk of the motor vehicle.

At trial, a police officer testified that around 8:30 p. m. he observed appellant fail to stop at a stop sign. The police officer stopped appellant, checked his driver’s license, and found that appellant had a restricted driver’s license. He then asked appellant if he could search the vehicle, and appellant gave his consent. However, at this time, appellant did not have a key to the trunk. The police officer obtained a key to the trunk of the vehicle from another person who was not an occupant of the vehicle, but had walked up after observing appellant being stopped by the police officer. Upon searching the trunk, the police officer found a short-barreled rifle underneath a “heap” of clothes in the bottom of the trunk. The defense called to the stand a Mr. Simmons, the person who gave the key to the trunk to the police officer. Mr. Simmons testified that the key did not belong to him, however, when the police officer asked for a key to the trunk, he procured the key from a third person. Mr. Simmons further stated that the short-barreled rifle belonged to a Ronnie Cash, that he saw Cash put the rifle in the trunk, and that appellant was not present when Cash put the rifle in the trunk.

No testimony was adduced that the juvenile had any knowledge that the subject firearm was in the trunk of the vehicle that he was operating. The record, without contradiction, reveals that appellant did not have in his possession a key to the trunk of the vehicle and that same was furnished to the police officer by a third person who was not an occupant of same. It is our conclusion that the evidence is insufficient to sustain the adjudication of delinquency. Sindrich v. State, 322 So.2d 589 (Fla.App. 1st, 1975).

REVERSED.

MILLS and SMITH, JJ., concur.


author: CHARLES CARROLL, Associate Judge.

text:
    Henry ORANGE, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1175.
    District Court of Appeal of Florida, Third District.
    May 11, 1976.
    Rehearing Denied July 6, 1976.
    Phillip A. Hubbart, Public Defender, and Elliott Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen., for ap-pellee.
    Before BARKDULL, C. J., PEARSON, J., and CHARLES CARROLL, (Ret.), Associate Judge.
   CHARLES CARROLL, Associate Judge.

The appellant was convicted of the crime of sale or delivery of a controlled substance in violation of § 893.13(1) (b) Fla. Stat., F.S.A., and the crime of possession of a controlled substance in violation of § 893.13(1) (e). Separate sentences of three years imprisonment were imposed for the two offenses, with provision for the sentences to be served concurrently. The defendant appealed, and contends the court erred by imposing two sentences.

Separate sentences can be imposed for crimes committed in a single transaction. Steele v. Mayo, Fla.1954, 72 So.2d 386 (grand larceny and breaking and entering with intent to commit grand larceny) ; Norwood v. Mayo, Fla.1954, 74 So.2d 370 (the forging and the uttering of a forged instrument); Slater v. State, Fla.1975, 316 So.2d 539 (murder and robbery) ; Estevez v. State, Fla.1975, 313 So.2d 692 (breaking and entering with intent to commit grand larceny, and grand larceny); Jenkins v. Wainwright, Fla.1975, 322 So. 2d 477 (separate offenses of possession of a controlled substance).

However, when a defendant is convicted of two crimes committed in a single transaction and each of the crimes is a facet of the same transaction, it has been held repeatedly that sentence should be imposed for only one of the crimes, being that of the highest offense charged.

The latter principle was applied in a number of cases involving convictions of two or more offenses in violation of the lottery law which were regarded to be facets of one transaction. See Mixon v. State, Fla.1951, 54 So.2d 190; Williams v. State, Fla. 1953, 69 So.2d 766; Wheeler v. State, Fla.1954, 72 So.2d 364; Norwood v. State, Fla.1956, 86 So.2d 427; Trihue v. State, Fla.App. 1958, 106 So.2d 630; Sharon v. State, Fla.App.1963, 156 So.2d 677; Wells v. State, Fla.App.1964, 168 So.2d 787.

The principle also has been applied repeatedly in cases similar to the instant case, where defendant has been convicted of sale of a controlled substance and also of possession of the controlled substance, as a result of a transaction where the possession of which the defendant was accused was that which was incident to the delivery of possession made simultaneously or contemporaneously with the sale. Yost v. State, Fla.App.1971, 243 So.2d 469; Easton v. State, Fla.App.1971, 250 So.2d 294; Martin v. State, Fla.App.1971, 251 So.2d 283; Torres v. State, Fla.App. 1972, 262 So.2d 458; Brown v. State, Fla.App.1972, 264 So.2d 28; Gonzales v. State, Fla.App. 1972, 268 So.2d 552; Kwasniewski v. State, Fla.App.1974, 303 So.2d 373. The lone case to the contrary in such situation is Parker v. State, Fla.App. 1970, 237 So.2d 253, decided by the First District Court of Appeal. However, in a later case, Martin v. State, supra, the First District Court of •Appeal on this point held in accordance with Yost v. State, supra, and other cases cited above dealing with the subject.

In cases decided recently by the Supreme Court (Slater, Estevez, and Jenkins), upholding convictions and sentences for separate offenses committed in one transaction the offenses did not appear to ■be, or were held not to be facets of the same transaction. It is not clear whether by those decisions it was intended to overrule Yost and the cases following Yost. We are inclined to follow Yost and the other cases, holding sale, and possession contemporaneously with the sale, are facets of the same transaction, in the absence of a definitive ruling by the Supreme Court rejecting those cases.

Lending support to this holding is the circumstance that the offenses involved here are not made crimes by separate statutes, both being provided for in subsection (1) (a) of § 893.13 Fla.Stat, F.S.A.

On the convictions for the two crimes in this case only one sentence should have been imposed. Since the sale of the controlled substance represented the higher of the crimes charged, the sentence imposed for the conviction of possession is hereby set aside. In other respects the judgment is affirmed.


text:
    Robert SWYERS, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1204.
    District Court of Appeal of Florida, Third District.
    May 18, 1976.
    Rehearing Denied July 9, 1976.

      Phillip A. Hubbart, Public Defender, and Paul Morris, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before BARKDULL, C. J., HENDRY, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The appellant Robert Preston Swyers was found guilty by a jury of involuntary sexual battery, false imprisonment and kidnapping, and of unlawful possession of a firearm while engaged in a criminal offense. He was so adjudged, and was sentenced to imprisonment for life on the first crime, for fifteen years for the second crime and for five years on the third crime, with provision for the sentences to be served concurrently.

We find that the appellant has not demonstrated reversible error, and affirm. The evidence of guilt was fulsome, if not overwhelming. The trial court did not commit error in denying the defendant’s motions for mistrial based on the statements made by the prosecutor in argument. Morris v. State, 100 Fla. 850, 130 So. 582; Gray v. State, 42 Fla. 174, 28 So. 53; Clinton v. State, 56 Fla. 57, 47 So. 389; State v. Jones, Fla.1967, 204 So.2d 515.

The trial court sustained defendant’s objection to the prosecution’s question to a doctor who examined the victim, as to whether in taking a history from the victim he believed she was not telling the truth. The question as reframed was whether the doctor found anything the victim told him in taking the history from her was not consistent. With the meaning of the initial question thus explained, no harmful error resulted, and denial of a motion for mistrial by the defendant was proper.

Appellant contends a separate sentence could not be imposed for the crime of possession of a firearm while engaged in a criminal offense, because that crime arose from the same transaction which involved the other offenses. The contention is without merit. Estevez v. State, Fla. 1975, 313 So.2d 692; Jenkins v. Wainwright, Fla.1975, 322 So.2d 477.

Affirmed.


text:
    ALLSTATE VAN LINES CORP., Petitioner, v. Imogene PALMERIO and Anthony Palmerio, Respondents.
    No. 76-431.
    District Court of Appeal of Florida, Fourth District.
    June 11, 1976.
    Rehearing Denied July 16, 1976.
    Philip S. Vova, North Miami, for petitioner.
    No appearance for respondents.
   PER CURIAM.

Allstate Van Lines Corporation seeks a writ of certiorari to review a circuit court judgment affirming a county court judgment entered in favor of Mr. and Mrs. Palmerio.

We conclude that this petition must be dismissed for two reasons. First, petitioner has not supplied this court with any record aside from the circuit court judgment of affirmance and order denying a petition for rehearing and the appellant’s brief petitioner filed below. Such a “record” is inadequate to demonstrate any error in the judgment of the circuit court.

Second, the brief petitioner filed in support of its petition in this court is substantially identical to the appellant’s brief it filed in the circuit court. It is therefore clear that petitioner is seeking to take a second appeal from the county court judgment. This it may not do. Nation v. State, 155 Fla. 858, 22 So.2d 219 (1945).

Accordingly, the petition for writ of certiorari is hereby dismissed.

MAGER, DOWNEY and ALDERMAN, JJ., concur.


text:
    Elizabeth GOLDSTEIN, Appellant, v. ABCO CONSTRUCTION COMPANY, INC., and Abe Rosin, Appellees.
    No. 75-1109.
    District Court of Appeal of Florida, Third District.
    May 11, 1976.
    Rehearing Denied July 6, 1976.
    Harvey M. Goldstein, Miami, for appellant.
    Marvin A. Schild, Homestead, for appel-lees.
    Before BARKDULL, C. J., PEARSON, J., and CHARLES CARROLL (Ret.), Associate Judge.
   CHARLES CARROLL, Associate Judge.

This appeal is by the plaintiff below from an order dismissing her amended complaint as to Abe Rosin, one of the defendants.

The appellant sued Abco Construction Company, Inc., and Abe Rosin to collect the unpaid balance on a matured promissory note for $24,000.00, made and delivered to the plaintiff by Abco. In a first count the amended complaint alleged the making and delivery of the note by Abco, of which Abe Rosin was the president; that the note was past due and unpaid, and there was due thereon $24,000.00 with interest at the rate of 10% per annum from a certain date, less $1,700.00 of interest which had been paid.

In a second count the amended complaint alleged that “After the note had matured, the defendant Abe Rosin sought and obtained from the plaintiff an oral agreement that plaintiff forego collection of the sum due and owing on the defendant Abco Construction Company’s note in exchange for the defendant, Abe Rosin’s promise to personally pay the debt in monthly installments”; that Rosin had made seven such payments totaling $1,700.-00; that subsequent to a certain date Rosin had failed to make further payments ; and that there was due from Rosin the said sum of $24,000.00 with interest, less $1,700.00 theretofore paid by him.

Rosin moved to dismiss the amended complaint as to him, on the ground that as a promise to pay the debt of another, and as an agreement not to be performed within a year, his alleged oral undertaking was unenforceable under the statute of frauds, § 725.01 Fla.Stat., F.S.A. The motion to dismiss was granted, and an order was entered dismissing the cause with prejudice as to Rosin.

The appellant concedes that a complaint can be dismissed on a motion to dismiss, based on the statute of frauds, where the applicability of the statute appears with certainty from the complaint, citing Martin v. Highway Equipment Supply Company, Fla.App.1965, 172 So.2d 246.

However, the appellant contends dismissal of the defendant Rosin was error for lack of certainty that Rosin’s oral promise was within the statute of frauds. In support thereof appellant points to the fact that the amended complaint shows Rosin’s oral promise, made after the Abco note had matured, was given in return for a promise of the payee to forbear action on the note. The appellant argues that if it should be established on proof that after maturity of the Abco note the defendant Rosin made an independent promise to pay the amount thereof for a valuable consideration (forbearance in this instance), his oral promise would be enforceable. That contention of the appellant appears to have some support in the law. See Harvey v. Bank of Center Hill, 83 Fla. 55, 90 So. 699; Bensam Corp. v. Felton, Fla.1953, 63 So.2d 278; Larnel Builders, Inc. v. United States Concrete Pipe Co., Fla.App.1960, 117 So.2d 438; Troup Brothers, Inc. v. State, Fla.App. 1961, 135 So.2d 755.

Assuming, without so deciding, that Rosin’s alleged oral promise was not unenforceable under § 725.01 Fla.Stat., F.S.A. as an oral promise to answer for the debt of another person, the amended complaint sufficiently showed that Rosin’s oral agreement was one that was not to be performed within the space of one year from the making thereof, for which reason action thereon was barred by § 725.01. While the size or amount of the installments to be paid by Rosin was not stated in the amended complaint, from the allegation that the seven monthly installments which were paid totaled $1,700.00, it was apparent the monthly installments were such that approximately eight years would be required for such payments to discharge the principal of the obligation, aside from the interest.

Accordingly, the order appealed from is affirmed.

      . In Martin the appellate court affirmed an order which dismissed a complaint declaring on an oral lease, as being unenforceable under the statute of frauds applicable thereto, § 725.01 Fla.Stat., F.S.A. In the opinion in that case the court quoted from 2 Moore’s Federal Practice, 2d Ed., § 12.08, p. 2245, including the following “ ‘But a claim should not be dismissed for insufficiency unless it appears to a certainty that the plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim’ ”.


text:
    Garland Ray MAPLES, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1326.
    District Court of Appeal of Florida, Third District.
    May 18, 1976.
    Rehearing Denied July 6, 1976.

      Haggard & Rodgers, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before BARKDULL, C. J., and HEN-DRY, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The appellant, Garland Ray Maples, who was tried together with Robert Preston Swyers before a jury, was convicted of involuntary sexual battery, with sentence of imprisonment for forty years, false imprisonment and kidnapping, with sentence of imprisonment for fifteen years and possession of a firearm while committing a criminal offense, with a sentence of five years, with provision for the sentences to be served concurrently.

The appellant contends he was exposed to double jeopardy, when later tried after the court had granted a mistrial for which the defendant had moved early in the first trial.

When the defendants moved for mistrial on the ground that certain preliminary instructions he had given to the jury were erroneous and prejudicial, the judge announced that the motion would be granted. Thereafter this appellant sought to withdraw his motion for mistrial. The other defendant did not. The judge adhered to the ruling, stating in the record that he had ruled and granted the mistrial on defendant’s motion before the attempt to withdraw the motion. Thereafter the trial was had before another jury, with no prior motion by this appellant for discharge based on a claim of double jeopardy. In the circumstances presented, we hold that appellant’s contention of double jeopardy is without merit.

No harmful error resulted from the prosecution asking a doctor-witness if he believed the history given to him by the victim when he examined her was not true, where the court sustained defendant’s objection thereto, and the question was re-framed by asking the doctor whether in his examination of the victim he found anything in the history given by her was inconsistent.

No reversible error having been made to appear, the judgment and sentences are affirmed.


text:
    KLINGSHIRN CORPORATION OF FLORIDA, INC., and Robert Chase, Appellants, v. Freddie J. TURK, Appellee.
    No. 75-1002.
    District Court of Appeal of Florida, Third District.
    May 18, 1976.
    Rehearing Denied July 6, 1976.
    Richard F. Ralph, Miami, for appellants.
    Ronald W. Vogler, Miami, for appellee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Appellants appeal from an adverse final judgment in an action for damages brought by appellee.

The record shows that appellee owned a two story houseboat which was being towed in a southerly direction down the Intra-coastal Waterway. In the vicinity of the Julia Tuttle Causeway, a motorboat owned and operated by appellants, proceeding in a northerly direction up the Intracoastal Waterway, passed near appellee’s houseboat. The wake from appellants’ boat washed against appellee’s houseboat causing it to sink. After a trial on appellee’s action for damages, the jury returned a verdict in his favor assessing damages in the amount of $40,000. On May 14, 1975, the trial court entered a final judgment incorporating the verdict. From this judgment, appellants appeal.

We have carefully examined each of the points presented on appeal by appellants and find them to be without merit. The verdict of the jury is supported by substantial competent evidence and no error by the trial court has been made to appear. See, e. g., Hartford Accident & Indemnity Co. v. Colposcope of America, Inc., Fla. App. 1975, 308 So.2d 52; Causeway Marina, Inc. v. Mandel, Fla.App. 1973, 276 So.2d 71; Brainard v. Poole, Fla.App.1968, 214 So.2d 510; Land v. Patroni, Fla.App. 1968, 214 So.2d 94; and 2 Fla.Jur., Appeals §§ 316 and 346.

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

Affirmed.


author: BOARDMAN, Judge.

text:
    Carl E. MEECE and Lillian A. Meece, his wife, Appellants, v. William S. HOGUE, Appellee.
    No. 75-943.
    District Court of Appeal of Florida, Second District.
    June 23, 1976.
    Rehearing Denied July 19, 1976.
    Julius G. Petruska, of Rowland & Petrus-ka, Orlando, for appellants.
    Eric R. Jones, of Hedman, Cossaboom & Jones, Melbourne, for appellee.
   BOARDMAN, Judge.

Appellants/defendants take this appeal from an adverse final judgment in the amount of $25,000 entered in favor of appellee/plaintiff pursuant to a jury verdict. The appellants have raised five points on appeal seeking to have this court reverse the judgment or, in the alternative, remand for a new trial.

Appellants were the owners of a parcel of real property and improvements, including a main dwelling house, a garage with a small house attached to it, and a boathouse. Appellee entered into a contract for sale and purchase of that property with appellants on April 15, 1970. Paragraph 16 of the contract, entitled TERMITE PROVISIONS, provided that:

. Seller shall furnish to buyer prior to closing a written statement of a licensed and bonded termite company showing whether there is an active live termite infestation in the improvements of said property, and the Seller shall pay all costs of the treatment required to remedy any such infestation so reported including the cost of repairing or replacing all portions of said improvements which have been damaged structurally.

Before the closing, May 7, 1970, appellee was presented with a termite control contract and service agreement that had been executed between appellants and Astro Pest Control. It provided, among other things, that a $500 charge had been paid by appellants and that Astro guaranteed its work for one year. Appellee had the option to extend the contract by an annual payment of $50.

In August and September, 1970, evidence of structural damage and live termite infestation in the main house was reported to the appellee by workmen who were remodeling the dwelling. We are concerned here with only the main house. In September, 1970, Astro, at the request of appel-lee, treated the house. In May, 1971, this suit was brought for breach of contract by failure of appellant to comply with Paragraph 16 and fraudulent misrepresentation of the condition of the property. Astro Pest Control was also joined as a defendant. In March, 1973, a second pest control company, Orkin, inspected the property and determined that at this time there was no live termite infestation. Trial commenced April 21, 1975.

At trial the Orkin inspector testified that between 25 to 35 per cent of the house as a whole and 75 per cent of the under-structure were damaged. Said inspector, a real estate appraiser and a contractor, who were called as witnesses for appellee, could not testify with certainty as to when the damage had occurred.

Appellants have raised five points on appeal. We hold that the record supports a denial of appellants’ motion for a directed verdict and that the instruction on agency was proper and correct. Although two other points may be meritorious, they were not preserved at trial and, therefore, cannot be considered by this court. See 2 Fla.Jur., Appeals, § 66; Palmer v. Thomas, Fla.App.1st, 1973, 284 So.2d 709. Only the issue of damages is treated here.

Appellants contend that the evidence introduced was insufficient to afford the jury a reasonable basis to determine the amount of damages. We agree. The ap-pellee failed to introduce proof of the extent of structural damage at a reasonable time after the discovery of termites. According to the evidence, he did not fully inspect the house until March, 1973, well after the time live termites were first discovered.

This court has held in considering similar factual circumstances that where there is uncertainty as to at which of several points in time damage occurred, there is “no yardstick” for determining how much of the damage is attributable to the acts of each party. See Reitano v. Peninsular Building Supply Co., Fla.App.2d, 262 So.2d 710. In the situation presented here, we hold that appellants are not liable for damage which resulted to the house after a reasonable time following the discovery of the termites. The appellee has the burden of proving his cause of action by showing his damages. The appellee has failed to establish by a preponderance of the evidence his damages at a reasonable time after the live termite infestation was discovered in September, 1970.

This cause is remanded to the trial court for a jury trial on the issue of damages.

REVERSED and REMANDED for new trial consistent with this opinion.

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


author: HOBSON, Acting Chief Judge.

text:
    MORTON Z. LEVINE AND ASSOCIATES, CHARTERED and Morton Z. Levine, Petitioners, v. George VAN DEREE and Susan Van Deree, husband and wife, Respondents.
    No. 75-711.
    District Court of Appeal of Florida, Second District.
    July 2, 1976.
    Charles J. Cheves, Jr. of C'heves & Hazen, Venice, for petitioners.
    Robert C. Widman of Nelson, Hesse, Cyril & Weber, Sarasota, for respondents.
    J. Michael Huey of Huey & Camper, Tallahassee, for amicus curiae, Florida Ass’n of the American Institute of Architects.
   HOBSON, Acting Chief Judge.

Respondents brought suit against petitioners on a contract for architectural services. The amended complaint contained three counts. The first count was for a breach of the contract and demanded damages. The second count alleged misrepresentation and breach of a fiduciary duty to the respondents and demanded damages. The third count was based on negligence and demanded damages. The petitioners filed a motion to dismiss all counts and a motion to compel arbitration.

The contract contained a standard arbitration clause, the essential part of which provided:

“11.1 All claims, disputes and other matters in question arising out of, or relating to, this Agreement or the breach thereof shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then obtaining unless the parties mutually agree otherwise. This agreement to arbitrate shall be specifically enforceable under the prevailing arbitration l'aw.”

The trial court entered an order dismissing count 1 and ordering respondents to submit to arbitration as to count 1. The court denied the motion to dismiss and compel as to counts 2 and 3 for the reason that they were founded on allegations sounding in tort. The petitioners brought this petition for writ of certiorari to review the denial of their motion to dismiss and compel arbitration as to counts 2 and 3.

The respondents rely mainly on two cases: Shearson, Hammill & Co. v. Vouis, Fla.App.3d 1971, 247 So.2d 733, and Klosters Rederi A/S v. Arison Shipping Company, Fla.1973, 280 So.2d 678. For the reasons set forth by our sister court in Mills v. Robert W. Gottfried, Inc., Fla.App.4th 1973, 272 So.2d 837, we respectfully decline to apply the rationale of Shearson, supra, to this case.

The facts in Klosters, supra, are in many ways distinguishable from the instant case. There, there were complicated issues, some of which involved allegations of fraud, the presence of numerous third parties, and a receiver had been appointed,' which appointment was affirmed on appeal. The Supreme Court, in Klosters, also pointed out that the party demanding arbitration had acted inconsistently with its demand, which constituted a waiver of any contractual right to arbitration. None of these facts are present in this case.

This case is more nearly in line with Watson v. Chase Chemical Corporation, Fla.App.lst 1971, 249 So.2d 53. In Watson, although the complaint alleged fraud and misrepresentation, it demanded damages and the appellate court affirmed the trial court where it dismissed the complaint because of the agreement to arbitrate set forth in the contract between the parties.

This court, in Merkle v. Rice Construction Company, Fla.App.2d 1973, 271 So.2d 220, held that a complaint to declare null and void an arbitration agreement contained in a contract entered into between the parties should be dismissed and any differences resolved through arbitration as provided in the agreement entered into between the parties.

The purpose of arbitration is to avoid litigation such as this. Therefore, the petition for writ of certiorari is granted.

BOARDMAN and GRIMES, JJ., concur.


author: DOWNEY, Judge.

text:
    Charles GRIFFIN, Appellant, v. STATE of Florida, Appellee.
    No. 75-530.
    District Court of Appeal of Florida, Fourth District.
    June 11, 1976.
    Rehearing Denied July 15, 1976.

      Richard L. Jorandby, Public Defender, and Bruce Zeidel, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Basil S. Diamond, Asst. Atty. Gen., and Harry M. Hipler, Legal Intern, West Palm Beach, for appellee.
   DOWNEY, Judge.

Appellant was convicted of possession of heroin. His sole point on appeal concerns the admission of certain testimony which could be categorized as “Williams Rule” evidence.

A police officer testified that he received information from a confidential informant that appellant was in a certain poolroom and that he had heroin in his possession. The officer went to the poolroom and placed appellant under arrest. He reached into appellant’s shirt pocket and found a cigarette package containing six packets of heroin.

On direct examination the prosecutor asked if the officer had had a conversation with appellant several days before, to which appellant objected. After a side bar conference the court overruled the objection and the officer testified he had talked to appellant several days before the arrest and he “advised [appellant] to quit selling dope.” By dope he said he meant heroin.

Our examination of the testimony persuades us that said testimony was relevant only to prove propensity. That being the case it was inadmissible. Roche v. State (Fla.App.2d 1976) 326 So.2d 448; Duncan v. State (Fla.App.2nd 1974) 291 So.2d 241.

The state contends that even if it was error to admit the officer’s offending testimony it was harmless error. Under the circumstances of this case that contention is unacceptable.

Accordingly, the judgment and sentence appealed from is reversed and this case is remanded for a new trial.

REVERSED.

MAGER and ALDERMAN, JJ., concur.


text:
    Charles CHUKES, Appellant, v. STATE of Florida, Appellee.
    No. 75-1074.
    District Court of Appeal of Florida, Fourth District.
    May 14, 1976.
    Rehearing Denied July 15, 1976.

      Jack A. Nants, Orlando, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

This case involves an application of the recidivist statute, § 775.084 F.S.1975.

The state filed an information (case CR 75-299) alleging that appellant was convicted of a felony on September 23, 1971, and that within five years thereafter he committed another felony for which he “was tried by a jury and found guilty . on the 8th day of January, 1975 in case CR 74 — 2734.” The information also alleged that imposition of an extended sentence was necessary for the protection of the public from further criminal activity by appellant.

A hearing was held at which it was made to appear that appellant had been convicted of a felony on September 23, 1971, and had served time therefor in the penitentiary. There was also proof that appellant was tried for a second alleged felony and found guilty in case CR 74-2734, and sentenced to three years. The trial court found the charge in the information in case CR 75-299 was proven, and it sentenced appellant to nine years to run concurrently with the three year sentence in CR 74-2734.

The first point on appeal is that the trial court erred in denying appellant’s motion to dismiss the information. We agree the information was defective in that it failed to allege a second felony “conviction”, i. e., it alleged the jury had returned a verdict of guilty but it did not allege that the court had entered a judgment of guilty. However, the error is harmless since it is no longer necessary to implement § 775.084 F.S. by way of an information. McShay v. State, Fla.App.4th 1975, 321 So.2d 464.

Appellant next complains that the state adduced no proof whatsoever to show that imposition of sentence under § 775.084 was necessary for the protection of the public from further criminal activity by appellant.

It is quite clear that not every subsequent felony offender must automatically be sentenced as a recidivist under § 775.-084, F.S.1975. A subsequent felony offender may be sentenced as a recidivist only if the court makes various findings in accordance with § 775.084. Such findings must be based upon some evidence. Without such evidence in the record to justify the court’s findings, a defendant’s right to appellate review would be effectively stifled. In Wright v. State, Fla.App.2d 1974, 291 So.2d 118, the court noted with approval Section 5.5 of the American Bar Association’s proposed Minimum Standards for Criminal Justice relating to Sentencing Alternatives and Procedures, which section set out special requirements of due process in sentencing one under habitual offender or recidivist statutes. We think the invocation of such statutes requires the evidence relied upon by the trial court for the enhanced sentence be produced in open court so that the defendant has an opportunity to rebut the state’s contention. See Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L. Ed.2d 326 (1967).

Finally, the provision that the sentence of nine years in case CR 75-299 run concurrently with the sentence of three years in case CR 74-2734 is erroneous. Since recidivism is not a separate substantive offense, a sentence under § 775.084 F. S.1975 is not to be imposed separately; it is to be imposed as part of the sentence in the last offense (here CR 74-2734). Washington v. Mayo, Fla.1957, 91 So.2d 621, 623; Reynolds v. Cochran, Fla.1962, 138 So.2d 500, 503; Jackson v. State, Fla. App.4th 1971, 252 So.2d 241, 243.

Accordingly, the judgment appealed from (dated May 28, 1975) is reversed and the sentence therein contained is vacated and the cause is remanded for further proceedings consistent with this opinion. If upon further hearing the court determines that appellant is to be sentenced in accordance with § 775.084 F.S.1975, it shall make findings of fact supported by the record which justify such sentence. In addition, if the court sentences appellant under § 775.084 F.S.1975, it shall vacate the present sentence in CR 74-2734 and impose a new sentence in that case, crediting appellant for time he has served under the old sentence.

Reversed and remanded with directions.

WALDEN, C. J., and SCHULZ, GEORGE E., Associate Judge, concur.


text:
    David H. KRATHEN, Appellant, v. STATE of Florida, Appellee.
    No. 75-1062.
    District Court of Appeal of Florida, Fourth District.
    May 14, 1976.
    Rehearing Denied July 15, 1976.
    Fred Haddad, Sandstrom & Hodge, Fort Lauderdale, and Arnold R. Ginsberg and Mallory H. Horton, Horton, Perse & Ginsberg, Miami, for appellant.

      Robert L. Shevin, Atty. Gen., Tallahassee, Richard Zaretsky and Arthur Joel Berger, Asst. Attys. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Upon examination of the record and after due consideration of the briefs and oral argument we find no reversible error in the trial court’s order adjudicating appellant guilty of indirect criminal contempt for violating sec. 905.27(5), F.S. Cf. Widener v. Croft, 184 So.2d 444 (Fla.App. 4th 1966); State v. Tillett, 111 So.2d 716 (Fla.App. 2d 1959). However, we are of the opinion that the imposition of sentence fails to comply with the requirements of Rule 3.840(7), FRCrP, which provides:

“(7) The Sentence; Indirect Contempt. Prior to the pronouncement of sentence, the judge shall inform the defendant of the accusation and judgment against him and inquire as to whether he has any cause to show why sentence should not be pronounced. The defendant shall be afforded the opportunity to present evidence of mitigating circumstances. The sentence shall be pronounced in open court and in the presence of the defendant.”

In particular, a reading of the judgment of contempt reflects that sentence was imposed without adherence to the above cited procedures.

Accordingly, the judgment of contempt is affirmed but that portion of the judgment imposing sentence.is vacated and set aside and the cause remanded for the purpose of conducting such other proceedings consistent herewith and for imposition of sentence, if any, in compliance with the requirements of Rule 3.840(7).

AFFIRMED, in part; REVERSED, in part.

CROSS and MAGER, JJ., and KEOUGH, LAWRENCE E., Associate Judge, concur.


text:
    Helen L. DELAFIELD and William S. Delafield, Appellants, v. In re Gregory VREELAND et al., Appellees.
    No. Z-310.
    District Court of Appeal of Florida, First District.
    June 30, 1976.
    Rehearing Denied July 21, 1976.

      Thomas B. Calhoun, Tallahassee, for appellants.
    Steven M. Goldstein, Joseph Conlin, Roger Coe, Tallahassee, and Duane N. Ivester, Jacksonville, for appellees.
   PER CURIAM.

In seeking to modify a previous order of the trial court placing custody of two dependent children in the Division of Family Services, the maternal grandparents primarily urge this court that our decisions in In Re R. J. C., 300 So.2d 54 (Fla.App.1st 1974), and Van Meter v. Murphy, 287 So.2d 740 (Fla.App.1st 1973), require a reversal and the placement of the children into their custody.

The basic predicate of the maternal grandparents is that Florida .Statute 39.-10(6) which provides:

“(6) In all cases in which one or both of the parents of a child is unable or unfit to be awarded custody and in which the child has a close relative who is fit, ready, able, and willing to be awarded such custody, the court shall award the custody of the child to such close relative and not to any foster home or agency of the state.”,

as a matter of law, supports their contention. We have carefully reviewed this record and find that a dispute of fact existed as to the fitness of these close relatives to be awarded the custody of the subject children, and that such question of fact was resolved against them by the trier.

AFFIRMED.

RAWLS, Acting C. J., and MILLs and SMITH, JJ., concur.


author: MILLS, Judge.

text:
    Donald R. CHAPMAN and Vivian D. Chapman, Appellants (Plaintiffs), v. Louise FURLOUGH et al., Appellees (Defendants).
    No. BB-60.
    District Court of Appeal of Florida, First District.
    June 23, 1976.
    Rehearing Denied July 21, 1976.

      Robert B. Kane, Tallahassee, for appellants.
    Ford L. Thompson of Thompson, Wads-worth, Messer, Turner & Rhodes, Tallahassee, and Sidney Matthew of Tobias Simon and Elizabeth duFresne, P. A., Miami, for appellee.
   MILLS, Judge.

The plaintiffs appeal from a summary final judgment entered in favor of Daniels and Furlough in a defamation suit.

The issue before us is whether the defamatory statements made by Daniels and Furlough are absolutely or qualifiedly privileged.

The plaintiffs sued Daniels, a tenured teacher and former coach of Godby High School, and Furlough, an assistant principal of Godby High School, charging that they slandered plaintiffs’ business, the Snak Shop. As defenses to the suit, Daniels and Furlough alleged that their statements were absolutely or qualifiedly privileged.

Daniels is a trouble shooter for the principal. Furlough is responsible for student discipline, attendance, and truancy. Both are responsible for investigating complaints about truant students, investigating suspected drug involvement of students, and counseling with students and their parents.

Plaintiffs’ complaint is based upon conversations between Daniels and Furlough, and the father of a student at Godby High School. The parent solicited Daniels’ assistance in searching for his son who was improperly absent from the campus and had a drug problem. After a lengthy search for the boy, Daniels suggested that he and the parent proceed to the Snak Shop to see if the boy was there.

The parent stated that the following occurred :

“As we left or were going from that male adult in the parking lot, the coach [Daniels] said — and I can’t quote how he said it — but he said, in essence, ‘would you like to see the house where most of the dope around here is sold.’ And he said ‘house’. So I had no idea what he meant. But he went down to the corner, down to Tharpe and he turned into the Snak Shop and I don’t want to quote him. He said, ‘this is the place where most of the dope is sold.’ He said, ‘here in the side yard I discovered a whole bag of — in the west side of the Snak Shop’, he said, T discovered a big bag of dope and,’ he said, ‘there is another problem area directly across in the path through the woods that leads back from that corner that the Snak Bar is on, Snak Bar and gas station is on, to the school, diagonal to the woods, and’, he said, ‘that is a great area for using and peddling dope.”

Subsequently, the parent conferred with Furlough and the parent stated that the following transpired:

“Now, as to Mrs. Furlough, I discussed with her just exactly what had happened when this coach took me over there and I made her aware of what he said. And I’m sure that in what she said, she reinforced what the coach had told me. How she said it, I couldn’t, of course, say. But there was no denial that things were different, other than what the coach had said. . . . How she said or affirmed the truth of this, I don’t know, I don’t recall at this moment. It may have been a nod, it may have been a smile, I don’t know. But there was no effort on her part to indicate that she thought differently or felt differently.”

The parent also stated that Furlough encouraged him to write a letter to the owners of the Snak Shop:

“. . . I’m not sure the word ‘will’, but her intentions were such to indicate to me that she was telling me, ‘you will write the Snak Shop owner’. And I indicated to her that I didn’t know what I should write. By phone, she started dictating and she got along there quite aways and I was scribbling on. Now what she was attempting to do, and I was buying, was the fact that this kid should no longer go into that Snak Shop. The fact that she had pulled children out of there at 9:30 in the morning was the straw that broke the camel’s back.”

The trial court granted the motions for summary judgment filed by Daniels and Furlough, finding that their statements were absolutely privileged, and if absolute privilege did not extend to them, qualified privilege did extend.

We decline to extend absolute privilege to an assistant principal and to a tenured teacher who is performing special duties for the principal. We find neither precedent nor reason to extend absolute privilege beyond its narrow limits.

Qualified privilege does extend to their communications.

“A communication, although it contains criminating matter, is privileged when made in good faith upon any subject in which the party communicating has an interest, or in reference to which he has a right or duty, if made to a person having a corresponding interest, right, or duty, and made upon an occasion to properly serve such right, interest, or duty, and in a manner and under circumstances fairly warranted by the occasion and the duty, right, or interest, and not so made as to unnecessarily or unduly injure another, or to show express malice.
“Good faith, a right, duty, or interest in a proper subject, a proper occasion, and a proper communication to those having a like right, duty, or interest, are all essential to constitute words spoken, that are actionable per se, a privileged communication, so as to make the proof by the plaintiff of express malice essential to liability. In determining whether or not a communication is privileged, the nature of the subject, the right, duty, or interest of the parties in such subject, the time, place, and circumstances of the occasion, and the manner, character, and extent of the communication, should all be considered. When all these facts and circumstances are conceded, a court may decide whether a communication is a privileged one, so as to require the plaintiff to prove express malice. . . .” Abraham v. Baldwin, 52 Fla. 151, 42 So. 591 (1906).

Parents are responsible for their children’s school attendance. Section 232.09, Florida Statutes. A principal is required to enforce attendance regulations. Section 232.19, Florida Statutes. A principal is authorized to delegate to any teacher such responsibility for the control and direction of students as he may consider desirable. Section 232.26(1), Florida Statutes. Section 231.09, Florida Statutes, defines the duties of the members of the instructional staff, which include the effects of alcohol and narcotics upon the human mind and body.

The evidence is uncontroverted that the communications by Daniels and Furlough were made in good faith, they were made with reference to matters in which Daniels and Furlough had a duty, they were made to a parent who had a corresponding interest, they were made on occasions which properly served their duty, and they were made under circumstances fairly warranted by the occasion.

Under these circumstances, plaintiffs were required to prove express malice, but did not do so. They filed no affidavits and the record is silent as to any fact which would indicate express malice. Therefore, the trial court properly entered summary judgment for Daniels and Furlough, and properly found that qualified privilege extended to them.

The judgment is affirmed.

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


author: McNULTY, Chief Judge.

text:
    BILL HEARD LEASING, INC., a Florida Corporation, Appellant, v. ROCCO ENTERPRISES, INC., a Florida Corporation, etc., et al., Appellees.
    No. 75-1085.
    District Court of Appeal of Florida, Second District.
    July 7, 1976.
    Michael A. Linsky, Tampa, for appellant.
    No appearance by appellees.
   McNULTY, Chief Judge.

We reverse a final judgment wherein the trial court refused to award contractual liquidated damages resulting from breach of a lease.

In February 1974, appellant Bill Heard Leasing, Inc., (Heard) entered into a truck lease and service agreement with appellee Rocco Enterprises, Inc., (Rocco) for the leasing of a vehicle specifically purchased, painted, and equipped for Rocco. The contract provided for weekly lease payments of a fixed amount plus a mileage charge, and Rocco’s obligations thereunder were guaranteed by appellee, John R. Rocco, Jr., personally.

By December 1974 the lease payments pursuant to the contract were over four months in arrears. In spite of repeated requests by Heard to bring the account current, the arrearages grew steadily larger. Heard notified Rocco and John R. Rocco, Jr., that it intended to exercise the termination option contained in the contract and that if payment of arrearages was not promptly remitted Heard would seek the damages specified in paragraph 21 thereof which, in addition to rental arrearages, provides that such damages were to be based on the contractually specified depreciated value of the vehicle on the date of termination, less the salvage value, plus all incidental costs. Rocco had the option to avoid these damages totally by purchasing the vehicle at the depreciated value. Rocco did not opt to purchase the vehicle at the precomputed price, nor were any rental payments made thereafter. The arrearages continued to grow and, after repeated demands, Heard finally brought this action seeking the damages provided for in paragraph 21.

At trial, the executed contract and guarantee were not contested and, after resolving some minor discrepancies, the amount of the lease payment arrearages was agreed upon. The mailing and receipt of the plaintiff’s demands for payment of ar-rearages, election to terminate the contract, and demand for purchase of the vehicle in question were all acknowledged by the defendants. Further, the plaintiff’s evidence of the reasonable salvage value of the vehicle at the time of termination was not controverted.

Although the trial judge found that Rocco had breached the contract by failing to pay the lease payments when due, he' refused to award Heard the damages as provided for in paragraph 21, apparently because he determined them to constitute a> forfeiture rather than “liquidated damages.” We disagree.

The law is clear that when the damages a party may sustain in the event of a breach of contract are not readily ascertainable, are uncertain, or are not easily susceptible of proof, a contractual provision specifying the computation of such damages assists all parties involved in determining their obligations in the event of a breach. In general, so long as a liquidated damages clause is reasonable under the circumstances, provides for a computation of damages which are by their nature uncertain, and so long as it is apparent that the parties intended the clause to provide for such damages and not merely to be a penalty against the breaching party, then it will be enforceable.

Here, only certain elements of the damages, the lease payment arrearages, are readily ascertainable. The damages resulting from the other aspect of such a breach, however, viz., the retaking, refurbishing, storing, or hopefully re-leasing of the vehicle in question, are not readily ascertainable. Additionally, the vehicle itself was a “custom” vehicle, specially prepared and equipped for Rocco, and thus obviously limited in resale or salvage value. Under the circumstances, we think the precomputed formula for ascertaining damages was reasonable; and the contracting parties clearly recognized this. It was error for the trial court not to.

In view whereof, the judgment appealed from should be, and it is hereby, reversed; and the cause is remanded for further proceedings not inconsistent herewith.

BOARDMAN and GRIMES, JJ., concur.

      . While the language of paragraph 21, read in pari materia with paragraph 22, is somewhat ambiguous with respect to the time as of which “liquidated damages” are to be computed, in order to avoid a construction allowing a penalty we construe the contract as requiring the payment of accrued rentals only up to the date upon which Heard exercised his option to terminate after default, i. e., December 1974.

      . Nee, e. g., Pembroke v. Caudill (1948), 160 Fla. 948, 37 So.2d 538.

      . See Hutchison v. Tompkins (Fla.1972), 259 So.2d 129.


text:
    ROMAN SPA, INC., a Florida Corporation, Appellant (Defendant Third-Party Plaintiff), v. Marion LUBELL, Appellee (Plaintiff), and Connors Construction Co., Appellee (Third-Party Defendant).
    No. X-179.
    District Court of Appeal of Florida, First District.
    June 24, 1976.
    Rehearing Denied July 21, 1976.
    Marion R. Shepard, of Mathews, Osborne, Ehrlich, McNatt, Gobelman & Cobb, Jacksonville, for appellant.
    David R. Lewis, of Blalock, Holbrook, Lewis, Paul & Isaac, William M. Howell, of Howell, Kirby, Montgomery, D’Aiuto & Dean, and Carle A. Felton, Jr., and Noah H. Jenerette, Jr., Jacksonville, for appellee.
   MILLS, Judge.

Roman Spa appeals from a final judgment entered in favor of Lubell following a jury trial in a negligence case, and it appeals from a final judgment entered in favor of Connors Construction Company following a jury trial in an indemnification action.

The issue which is dispositive of both appeals is whether the trial court erred in denying Spa’s motion for a directed verdict made at the close of all of the evidence in the trial of the Lubell case.

In August of 1972, Lubell was a patron of Spa, enjoying the steam room, when a portion of the ceiling fell, injuring her. The portion which fell was a part of a false ceiling which had been constructed by Conners in early 1971.

Conners had been contacted by Spa in connection with a water condensation problem in the steam room. Connors originally recommended that the ceiling be replaced, but this was rejected by Spa because it was too expensive. Connors then suggested that a slightly slanted false ceiling be built. This plan called for wooden timbers to be attached to the existing tile ceiling. Galvanized lath would then be nailed to the timbers and three coats of plaster applied to the lath. Connors discussed this plan with George Little, maintenance supervisor for Spa, who accepted the plan.

Although Little observed various stages of the construction, he was not regularly present and had no supervisory function. After the ceiling was completed, Little inspected it and found it to be a good job, completely satisfactory, and capable of accomplishing its purpose. From that point until the day of the accident, Little regularly inspected the ceiling, as he did the other ceilings and walls in the Spa, for cracks and for evidence of other damage. Little was especially careful in checking the walls and ceiling prior to the accident because there was construction going on in the adjoining building, and there was concern as to whether it would do any damage to the Spa.

Lubell sued Spa for damages alleging that Spa negligently maintained the ceiling, and that the negligent condition of the ceiling was known by it or had existed for a sufficient length of time that Spa should have known of it. Spa filed a third party complaint against Connors seeking indemnification in the event it was found liable to Lubell. Spa’s motion for a directed verdict made at the close of all of the evidence in the Lubell trial was denied. The jury resolved both suits against Spa. This appeal resulted.

“Liability for negligence in failing to maintain premises in a reasonably safe condition, or in failing to warn of existing dangers, must be predicated on the occupant’s superior knowledge or means of obtaining knowledge concerning the danger. In order to recover, a plaintiff must show either that the occupant or proprietor had actual notice of the condition or that the dangerous condition existed for such a length of time that in the exercise of ordinary care the occupant should have known of it and taken action to remedy it or guard the plaintiff from harm therefrom. No liability can attach where it is not shown that the owner or proprietor had actual or constructive notice of the dangerous condition. This is especially true where the dangerous condition is traceable to the acts of persons other than himself and his employees. . . . ” Winn-
Dixie Montgomery, Inc. v. Petterson, 291 So.2d 666 (Fla.App.1st, 1974).

When an owner accepts work from a contractor, that upon reasonable inspection would reveal a dangerous defect, he has the duty to make the work safe. Thereafter, if a third person is injured, it is the owner’s failure to perform his duty which is the proximate cause of the injury. However, the owner cannot be held liable “ . . . where the dangerous condition is one which is not discoverable by inspection”. Slavin v. Kay, 108 So.2d 462 (Fla.1959).

The issue here is whether Spa knew, or through reasonable inspection should have known, that there was a dangerous defect in the ceiling. The only basis for finding that Spa had knowledge or should have had knowledge of the defect is that: (1) Spa agreed that the ceiling should be composed of lath, wood, and plaster; and (2) Little, Spa’s maintenance man, observed various phases of the construction. There was no evidence to suggest that Little had any expertise or superior knowledge in the area of building and construction. He had nothing to do with the construction of the ceiling other than being a mere observer. He inspected the ceiling after the construction was completed and it appeared to be a good job.

There were various theories espoused to explain the collapse of the ceiling. Connors testified that he thought the collapse was due to the vibration coming from various construction jobs adjacent to the Spa. There was evidence however that no other wall or ceiling adjacent to the construction was damaged. Witnesses in the construction industry all agreed that using smooth shanked roof nails to attach the metal laths to two-by-fours was improper. Connors even testified that had he known the ceiling would be exposed to the vibration caused by adjacent construction, he would have strapped the metal laths to the two-by-fours.

Spa is charged with the knowledge of any dangerous condition which could have been discovered in the exercise of ordinary care. There is nothing in the record to indicate that Spa knew that improper nails were being used, and nothing to indicate that it should have known. Neither Spa nor its employee, Little, is in the construction business. Spa exercised reasonable and ordinary care for its customers’ safety, therefore, cannot, as a matter of law, be held liable for Lubell’s injuries.

The trial court erred in failing to grant Spa’s motion for a directed verdict at the close of all the evidence in the Lubell suit.

The judgment entered for Lubell and against Spa is reversed. In view of this ruling, it is unnecessary to consider the appeal by Spa in its indemnification action against Connors.

McCORD, Acting C. J., and SMITH, J., concur.


author: BOYER, Chief Judge.

text:
    Charles H. DENNY, III, Appellant, v. Jean K. DENNY, Appellee.
    No. X-42.
    District Court of Appeal of Florida, First District.
    June 15, 1976.
    Rehearing Denied July 21, 1976.

      Sam T. Dell, Dell, Graham, Willcox, Barber, Rappenecker, Ryals & Henderson, Gainesville, for appellant.
    Neil C. Taylor, Toole, Taylor, Moseley & Milton, Jacksonville, for appellee.
   BOYER, Chief Judge.

This appeal emanates from a bitterly litigated marriage dissolution proceeding. All of the hearings and proceedings prior to entry of final judgment were before Honorable Allen Anderson, temporarily assigned from the Sixth Circuit to the Eighth Circuit. Judge Anderson entered a final judgment dated February 7, 1974, which was filed and rendered on February 15, 1974. The final judgment contained extensive findings of fact based upon conflicting evidence adduced at a final hearing held in November of 1973.

On February 22, 1974, within the time provided by Rule 1.530 RCP, appellant-husband filed a motion for rehearing and stay order in which he alleged a substantial change in circumstances subsequent to the final hearing and prior to entry of the final judgment in addition to various matters allegedly overlooked by the trial judge. By order dated March 29, 1974, and filed April 1, 1974, the trial judge denied the motion for rehearing and stay order, directed that the case be reassigned to a judge sitting in the Eighth Judicial Circuit and declared that the motion for rehearing and stay order would be recognized by the court as a motion for modification of the final judgment.

On April 3, 1974, Judge Anderson entered another order entitled “Order Granting Petition for Modification of Final Judgment”, which order was filed April 4, 1974, by which it was ordered “That the Husband’s Motion for Rehearing and a Stay Order which the court has elected to treat as a Petition for Modification of Final Judgment is hereby granted, and this cause is reopened for the production of additional evidence as to the current financial positions of the parties for the sole purpose of determining whether or not the Final Judgment entered herein on February 15, 1974, should be modified as to the award made thereby for alimony, child support and special equity to the wife.”

No appeal was taken from any of the above mentioned orders nor from the final judgment.

On September 23, 1974, Honorable John Crews, one of the circuit judges of the Eighth Judicial Circuit, entered an order entitled “Order Modifying Final Judgment”, same having been filed on September 24, 1974. In that order the trial judge recited that “the amounts awarded to wife under the provisions of the Final Judgment of Dissolution of Marriage * * * for alimony and as special equities should remain essentially undisturbed, but the manner in which the same were ordered to be paid should be modified so as to extend the time in which such payments are required to be made * * * ”.

The notice of appeal invoking this court’s jurisdiction is from the last mentioned order modifying final judgment.

Although the final judgment became a final decision, appealable as such, upon entry of the order dated March 29, 1974, and filed April 1, 1974, denying the motion for rehearing, no appeal was taken therefrom within the time prescribed by the Florida Appellate Rules. Therefore neither the trial court nor this court has jurisdiction to review it. (See Kippy Corp. v. Colburn, Sup.Ct.Fla. 1965, 177 So.2d 193 and Shelby Mutual Insurance Company of Shelby, Ohio v. Pearson, Sup.Ct.Fla.1970, 236 So.2d 1) The trial court did, of course, have jurisdiction to entertain a motion for modification of the final judgment and since it is the order on that motion which was here timely appealed we have jurisdiction to review same. However, we are not permitted to employ the appeal from the order modifying the final judgment as a vehicle for reviewing the final judgment and denial of appellant’s motion for rehearing from whence no appeal was timely perfected. Accordingly, appellant’s assignments of error and arguments directed to the final judgment will be treated as surplusage.

Our review has been made none the easier by the manner in which appellee has addressed the points on appeal. Each point should consist of a concise statement of the point of law sought to be argued and reviewed, reciting only such facts as are necessary for a clear presentation of the point and should not be argumentative nor unduly lengthy. While the rules make provision for an appellee to present additional points for the court’s consideration, appellee should nevertheless address and respond to the points raised by the appellant. (Please see American Baseball Cap, Inc. v. Duzinski, Fla.App. 1st 1975, 308 So. 2d 639)

Appellant first urges that the final judgment erroneously awarded to appellee wife special equities in amounts equal to the wife’s financial contributions to assets acquired during the marriage and that Judge Crews erred in failing to modify such awards in the order here appealed. As already observed, we are not in a position to here review provisions of the final judgment. Although the order of modification did not alter the amount of special equities awarded to appellee by the final judgment, it did provide a less onerous method of payment. Appellee has not appealed that modification and since the change is beneficial to appellant he is in no position to do so. Accordingly, that portion of the order here appealed relating to special equities, being the subject matter of the first two points raised by appellant, is affirmed.

Appellant’s third point relates to award of alimony. The record reveals, and the trial judge specifically found, that appellee has a life income from a trust fund of approximately $5,200 per year and that she is capable of earning approximately $7,500 per year. In addition, she was awarded exclusive use and occupancy of the marital home together with the furniture, furnishings and equipment therein until the youngest child attains 18 years of age. In the meantime, appellant is ordered to pay the monthly mortgage payments on. the home together with taxes, insurance and exterior repairs. When she ceases to enjoy exclusive use and possession of the home she will be in a position to realize the value of one-half of the equity therein. Further, as already observed, appellee has been awarded special equities amounting to $151,310 upon which sum appellant is required to pay interest. Appellee therefore has a sizable estate, a substantial income and ability to earn an even greater income. Appellant, on the other hand, has total assets of $107,309 and liabilities of $73,652. In addition, he is liable to appellee for payment of $151,310 plus interest and for the mortgage payments, taxes, insurance and repairs on the marital home. Unless the attorney’s fees awarded by the final judgment and order of modification have already been paid he is still obligated to pay appellee’s attorneys the sum of $6,500. The final judgment also requires payment to appellee for support and maintenance of the five children of the parties, the sum of $200 per month per child until each child attains 18 years of age, becomes self-supporting, marries or dies. Although appellant enjoys a substantial gross annual income ($42,000) it is readily apparent that a large portion thereof is already committed. We are further mindful of income taxes and social security taxes. It is also clear that if appellant is to be expected to maintain his level of income as a corporate executive it is imperative that he maintain himself in an appropriate, but not extravagant, manner.

This Court reaffirmed the rule relative to alimony in Gordon v. Gordon, Fla.App. 1st 1966, 192 So.2d 514, wherein it said:

“As early as 1864 it was established by Chaires v. Chaires [Chaires v. Chaires, 10 Fla. 308 (1864).] that there was no need for alimony if the wife has a separate estate adequate for her comfortable support. In referring to that case Mr. Justice Roberts speaking for our Supreme Court stated: [Kahn v. Kahn, 78 So.2d 367, 368 (Fla.1955).]
“ ‘Ordinarily, however, in those days the husband was the “only hope of support’’ of an “unfortunate wife, who may have been abandoned by a dissolute husband and doomed to drag out a weary existence in married widowhood. * * *” Chaires v. Chaires, supra. And, indeed, until recent years, a divorced wife had little prospect of being able to work and earn a livelihood, and it was essential to a well-ordered society that she be appropriately maintained by her estranged husband so that she would not become a charge on the community. Times have now changed. The broad, practically unlimited opportunities for women in the business world of today are a matter of common knowledge. Thus, in an era where the opportunities for self-support by the wife are so abundant, the fact that the marriage has been brought to an end because of the fault of the husband does not necessarily entitle the wife to be forever supported by a former husband who has little, if any, more economic advantages than she has. We do not construe the marriage status, once achieved, as conferring on the former wife of a shipwrecked marriage the right to live a life of veritable ease with no effort and little incentive on her part to apply such talent as she may possess to making her own way.’ ”

Further explanation was set forth in Platt v. Platt, Fla.App. 1st 1958, 103 So.2d 253, wherein it is said:

“Alimony is designed primarily to provide sustenance such as food, clothing, habitation and other necessities for the support of a wife when living apart from her spouse either pursuant to a decree of divorce or one of separate maintenance unconnected with divorce. [Bredin v. Bredin, Fla.1956, 89 So.2d 353.] Factors to be considered in awarding alimony are the needs of the wife and child and the husband’s capacity to meet such needs. [Brown v. Brown, Fla.1956, 84 So.2d 311; Yandell v. Yandell, Fla.1949, 39 So.2d 554; Hutchinson v. Hutchinson, 102 Fla. 1123, 137 So. 5.] Income alone is not necessarily the sole test in determining ability to pay. The nature of the husband’s capital assets is a proper consideration, [Chastain v. Chastain, Fla.1954, 73 So.2d 66.] as is his earning capacity.”

Then, in Thigpen v. Thigpen, Fla.App. 1st 1973, 277 So.2d 583, after passage of the “no fault” divorce law, this Court said:

“We have carefully considered the pertinent evidence contained in the record but fail to find any reasonable basis on which the alimony award made to appel-lee can be sustained. The very heart of an alimony award is and always has been the need of the demanding spouse for support and the ability of the other spouse to respond. The new concept of the marriage relation implicit in the so-called ‘no fault’ divorce law enacted by the legislature in 1971 [Chapter 71-241, Laws of 1971; F.S., Chapter 61, F.S.A.] places both parties to the marriage on a basis of complete equality as partners sharing equal rights and obligations in the marriage relationship and sharing equal burdens in the event of dissolution. In speaking of the wife’s place in this new social order emanating from the generally accepted concept of equal rights for all regardless of sex, this court in the case of Beard v. Beard [Beard v. Beard, (Fla.App.1972) 262 So.2d 269, 272.] said:
“ 1. . .In this day and time, women are as well educated and trained in the arts, sciences, and professions as are their male counterparts. The law properly protects them in their right to independently acquire, encumber, accumulate, and alienate property at will. They now occupy a position of equal partners in the family relationship resulting from marriage, and more often than not contribute a full measure to the economic well-being of the family unit. Whether the marriage continues to exist or is severed through the device of judicial decree, the woman continues to be as fully equipped as the man to earn a living and provide for her essential needs. The fortuitous circumstance created by recitation of the marriage vows neither diminishes her capacity for self-support nor does it give her a vested right in her husband’s earnings for the remainder of her life.’
“The foregoing pronouncement conforms to the philosophy previously expressed by the Supreme Court in Kahn v. Kahn [Kahn v. Kahn, (Fla.1955) 78 So.2d 367, 368.] in which it is held:
“ ‘. . . Thus, in an era where the opportunities for self-support by the wife are so abundant, the fact that the marriage has been brought to an end because of the fault of the husband does not necessarily entitle the wife to be forever supported by a former husband who has little, if any, more economic advantages than she has. We do not construe the marriage status, once achieved, as conferring on the former wife of a ship-wrecked marriage the right to live a life of veritable ease with no effort and little incentive on her part to apply such talent as she may possess to making her own way . . . . ’ ”

It is uncontradicted that there was a substantial change in appellant’s circumstances after the final hearing before Judge Anderson. Although appellant’s financial woes may well have resulted from his own misdeeds, there is no evidence to sustain a charge that the changes were wrought for the purpose of evading his obligations of support nor to intentionally reduce the size of his estate. Indeed the recent “recession” (at least a contributing factor) is so well known that we would not be beyond our bounds were we to take judicial notice thereof.

It is clear that in fixing and awarding special equities the trial judge took notice of those factors recited by Judge Rawls of this Court in Brown v. Brown, Fla.App. 1st 1974, 300 So.2d 719, therefore the alimony award cannot be sustained on the basis of that decision.

Although there is a question in our minds as to the propriety of an award of alimony in this case at all, rehabilitative or permanent, we do not address that point. It is apparent, however, that in light of appellant’s substantially changed financial circumstances the learned trial judge erred in refusing to modify the final judgment as to the amount of alimony. The amount and type of alimony should be determined by the experienced trial judge in light of the principles above observed.

Affirmed in part and reversed in part and remanded for further proceedings consistent herewith.

In view of the comparative faculties of the parties, appellee’s application for attorney fees incident to this appeal is denied.

MILLS, J., and SWIGERT, WILLIAM T., Associate Judge, concur.


author: SMITH, Judge.

text:
    Harry Martin DODSON, Appellant, v. STATE of Florida, Appellee.
    No. Z-484.
    District Court of Appeal of Florida, First District.
    June 10, 1976.
    Rehearing Denied July 21, 1976.

      Richard W. Ervin, III, Public Defender, and Douglas C. Kearney, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appellee.
   SMITH, Judge.

There was weighty circumstantial evidence that Dodson committed arson by setting fire to the dwelling of his former wife. The latter stages of the marriage were marked by hostility. There was physical evidence that fire broke out in the unoccupied house as a result of arson. Dodson was seen by three witnesses entering the dwelling the evening before, near the hour when, according to expert testimony, the fire must have been set. Dodson falsely denied going to the house that night. Firemen found the doors of the house locked, and Dodson, his former wife and her children had the only keys. The evidence was sufficient to submit to a jury.

The substantial question on this appeal is whether Dodson’s trial was prejudiced by the admission against him of his former wife’s testimony describing an episode of marital conflict involving fire which occurred three months earlier, just before dissolution of their marriage. After a day of argument, resulting in her ignoring his conversation as they sat in the living room of their home, he tore pages out of a book she was reading and set them afire in an ashtray. When she ignored even that, he made a menacing gesture toward her nightgown with a lighted match. Dodson asserts that the admission of this evidence was error.

The trial court held that the contested evidence

“ . . . cast light upon the character of the act in the case at bar and [was] admitted ... to show motive, intent, absence of mistake, common scheme, identity or a system of general criminality so that the evidence of the prior acts directed of the Defendant toward his former wife during their marriage had a relevant and material bearing on the charge of arson of the Defendant’s former wife’s house.”

The evidence complained of was relevant in the popular sense of the word. That Dodson’s hostility toward his wife previously manifested itself in a threat of injury by fire surely encourages a suspicion that, in the absence of other more likely suspects, it was again Dodson who lit the match. It was in his character to display wrath toward her in that way; he had shown a propensity to hurt his wife by fire. To doubt a rational relationship between the prior event and the present hypothesis of guilt is to deny the jurors’ ability to make the simplest of equations: he did it before, he did it again.

But the issue is not whether the evidence was relevant in so obvious a way. Rather, it is whether the evidence was “relevant for any purpose save that of showing bad character or propensity . . . Williams v. State, 110 So.2d 654, 662 (Fla. 1959) (emphasis added). For while the law regards it pertinent that Dodson harbored antipathy, even violent hostility, toward his former wife, it recognizes, as McCormick’s treatise states,

. . . relevance is not always enough. There may remain th'e question, is its value worth what it costs? There are several counterbalancing factors which may move the court to exclude relevant circumstantial evidence if they out weigh its probative value. In order of their importance they are these. First, the danger that the facts offered may unduly arouse the jury’s emotions of prejudice, hostility or sympathy. Second, the probability that the proof and the answering evidence that it provokes may create a side-issue that will unduly distract the jury from the main issues .” C. McCormick, Law of Evidence § 1S2 at 319 (1954 ed.).

Jones’ treatise similarly states:

“ . . . [I]t is not proper to show by proof of previous bad conduct that [the accused] has a propensity for committing crime, and because he committed other crimes on previous occasions he probably committed the crime in question.
“ . . [T]he rule is recognized, not because the evidence of previous offenses is irrelevant, but for other more plausible reasons. One basic reason for the rule is that such evidence is apt to be given too much weight, rather than too little, by the jury, thus resulting in the conviction of a defendant because he is a bad man and not because of his specific guilt of the offense with which he is charged.” 1 Jones on Evidence § 4:18 at 417-18 (6th ed.1972).

See also S. Gard, Florida Evidence 137 (5th ed.1967); Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948); Hooper v. State, 115 So.2d 769 (Fla.App. 3d, 1959); Duncan v. State, 291 So.2d 241 (Fla.App. 2d, 1974).

For what purpose was this evidence relevant other than to suggest Dodson’s propensity to commit the offense charged? The evidence does not address the question of motive, which inquires into the accused’s reason for acting as charged and suggests that because he had a specific reason to commit the offense, he did so. 2 Wigmore, Evidence § 354 (3d ed.1940). Crime or misconduct may suggest a motive to kill when, for example, the accused committed a robbery, kriew that he was the object of a search and, therefore, shot a policeman to avoid capture. Patterson v. State, 157 Fla. 304, 25 So.2d 713 (1946). See also McVeigh v. State, 73 So.2d 694 (Fla. 1954). A prior offense may supply a motive for attempted bribery of an officer investigating that offense. Zalla v. State, 61 So.2d 649 (Fla. 1952). Here, however, the State makes no plausible contention that Dodson’s motive for committing arson was in any sense derived from his prior misconduct with fire.

Neither does the evidence tend to show a system or pattern of similar conduct tending to identify Dodson as the perpetrator. The house fire bore no hallmarks of previous fires known to have been set by Dodson. There was nothing in th'e nature of the fire or in the devices or substances used which proclaimed it to be the handiwork of the accused. See C. McCormick, Law of Evidence § 157 at 326-27 (1954 ed.). While proof of the accused’s responsibility for several earlier fires would tend to show a design or system of which the fire in question is presumably but another manifestation, 2 Wigmore, Evidence § 304 (3d ed.1940), a single prior dissimilar incident involving a dissimilar use of a flame do’es not suggest the existence of such a design or system.

The evidence was admissible to prove that Dodson acted intentionally, not accidentally or mistakenly, in setting fire to the house. Anticipating the hypothesis of innocence that Dodson inadvertently set the fire, the evidence suggested that he acted willfully, maliciously and in the same state of mind with which he acted not long before, when threatening his wife with fire. 1 Wharton, Criminal Evidence § 168 (13th ed.1972). As in Commonwealth v. McCarthy, 119 Mass. 354, 355 (1876),

“The [State] was not precluded from proving that the building was burnt with a willful intent, becaus'e the defendant conceded that fact before the trial began, and stated that the only question he desired to submit to the jury was whether he set the fire.”

In view of the strength of the State’s other evidence that the fire was intentionally set, there was a debatable question of whether the legitimate corroborative effect of the evidence on the issue of intent was outweighed by its improperly prejudicial tendency to suggest that Dodson had a propensity to hurt his wife by fire. The trial judge acted within sound discretion in admitting the 'evidence.

No other ground for disturbing the judgment appears. Without prejudice to any relief which Dodson may seek pursuant to Rule 3.850, R.Cr.P., based on previously undiscovered evidentiary material filed with the clerk of the circuit court September 22, 1975, Dodson’s conviction is

AFFIRMED.

MILLS, Acting C. J., and EAST-MOORE, E. L., Associate Judge, concur.


author: FULLER, RICHARD S., Associate Judge.

text:
    Ronald Alexander PARSONS, Appellant, v. STATE of Florida, Appellee.
    No. Z-26.
    District Court of Appeal of Florida, First District.
    June 10, 1976.
    Rehearing Denied July 21, 1976.
    J. Eugene Kelley, Jr., of Cotten, Shivers, Gwynn & Daniel, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., for appellee.
   FULLER, RICHARD S., Associate Judge.

This matter is appropriately before the court to review orders of the trial court which deny the defendant’s (appellant here) Motion to Suppress and Motion to Dismiss Count II of the information. A plea of nolo contendere and a subsequent adjudication of guilt were entered; the right to appeal being specifically reserved consistent with Ashby v. State, 228 So.2d 400 (2 Fla.App.1969).

The record on appeal contains a stipulation of facts upon which the learned trial judge based his “Order Denying Motion to Suppress”. The stipulated facts indicated that on December 23, 1974, the defendant and another man were visiting a trailer which was apparently being rented by David and Dale Hornblower. At about 9:00 p.m. an undercover police officer arrived at the trailer to purchase a quantity of illegal drugs from Dale Hornblower pursuant to previous arrangements. During the course of the discussions outside of the trailer, while standing a distance of three or four feet from the door and looking inside on two occasions, when the door opened, the undercover police officer saw several men inside smoking (something) and detected the odor of burning marijuana or hashish. He could not identify what the instant defendant was smoking. The discussion led to Dale Hornblower returning into the trailer and thereafter producing a quantity of “hash” at which time Dale Hornblower said he would have to go elsewhere for the pills. The undercover police officer followed Dale Hornblower’s vehicle to another location where a quantity of pills were produced and, upon signal, Dale Hornblower was arrested by other police officers standing by. No reference was made to the defendant being involved in the sale of either the hashish or the pills. Another police officer took Dale Horn-blow to jail but made no effort to contact any magistrate or obtain any arrest or search warrant.

The original undercover officer returned to the area of the Hornblower trailer and began a surveillance. The vehicles that had been parked near the trailer earlier were still there, and no conduct of a suspicious nature was noted. Additional police officers arrived to assist in the subsequent activities. Thereafter, another visitor left in his vehicle and he was immediately stopped, searched and released when no drugs were found. About fifteen minutes later, or about an hour and a half from the original contact at the trailer, the defendant and another man left the trailer in the defendant’s Volkswagen and were stopped about 150 yards away from the trailer. They were both promptly told that they were under arrest. Neither the defendant nor his guest made any suspicious moves as to attempt to hide or throw away any drugs. They were both frisked, and the police found in the defendant’s pocket a pocket knife and what is alleged to be a homemade “hash” pipe. They were then re-arrested and read their rights. At least four separate searches were made of the person of the defendant and his vehicle, and the total residual of these searches, in addition to the knife and pipe, were traces of marijuana in the glove compartment and a plastic bag containing seven pieces of hashish found on the defendant on the third search of his person.

All the police officers involved candidly conceded that they had no prior knowledge of any nature that the defendant or his companion was involved with the sale of drugs by or with Dale Hornblower.

All searches without a valid warrant are unreasonable unless established by the state to fall within one of the exception categories. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed. 2d 564 (1971). The court in its Order Denying Motion to Suppress specifically found adequate exigent circumstances to justify the warrantless search but made no determination that at the time of the arrest and searches the officers had probable cause to believe that the defendant was committing any felony. To justify a search without a warrant there must be probable cause to search plus exigent circumstances. Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970); Kersey v. State, 58 So.2d 155 (Fla.1952); and Richardson v. State, 291 So.2d 253 (1 Fla.App. 1974).

The one and one-half hours from the original suspicion that defendant was smoking “grass” (possession of less than five grams being a misdemeanor) and his being stopped, arrested and searched is too wide a time span to be considered “exigent circumstances”, particularly, in view of the fact that the officer left the area of the trailer, drove some miles distant, completed a purchase and resultant arrest, and returned to the trailer in the interval.

The trial court erred in denying defendant’s Motion to Suppress. The cause is reversed with directions that the sentence imposed be vacated and the defendant be discharged.

REVERSED.

McCORD, Acting C. J., and SMITH, J., concur.