author: HOBSON, Acting Chief Judge.

text:
    Jerome J. BORNSTEIN, Individually and as Trustee, Appellant, v. Herbert SOMERSON et al., Appellees.
    No. 75-813.
    District Court of Appeal of Florida, Second District.
    Jan. 26, 1977.
    Rehearing Denied Feb. 24, 1977.

      Robert G. Petree, Orlando, for appellant.
    Michael J. Freedman and Richard A. Hirsch of Levine, Freedman & Hirsch, Tampa, for appellees Herbert Somerson, Irving Weissman and Daniel Keidan.
    Eugene W. Harris of Peterson, Carr, Harris & Seacrest, Lakeland, for appellee B. C. Cook & Sons Enterprises, Inc.
    Robert E. Puterbaugh of Woolfolk, Myers, Curtis, Craig & Crews, Lake Wales, for appellees Robert E. and Edward H. Parker.
   HOBSON, Acting Chief Judge.

In this mortgage foreclosure proceeding plaintiff/appellant, mortgagee, appeals the final judgment holding, inter alia, that the crop of citrus fruit was constructively severed from the mortgaged realty and that the proceeds from the sale of said fruit accrued to the benefit of the defendants, mortgagor and its caretaker, less expenses deducted for maintenance of the property during receivership. In the court below two cases were consolidated and this appeal is taken from the final judgment entered in the consolidated cases following trial. We affirm.

In March of 1973 mortgagors, Somerson, Keiden, and Weissman [hereinafter Somer-son], purchased a 330-acre citrus grove from mortgagee, Bornstein, evidencing a portion of the purchase price by a purchase money mortgage and note in the amount of $3,187,500. At the time of sale all that year’s crop had been harvested by the mortgagee with the exception of some late bloom fruit which was excluded from that sale by specific reservation in the deed and in the mortgage. The mortgagee did not specifically reserve any lien or security interest on any future crops subsequent to July 1, 1973. The mortgage also provided that “ . . . the property herein described is and shall be the sole security for any and all sums due the mortgagee . and in the event of default, the mortgagee shall not be entitled to a deficiency judgment against the mortgagor . . . ” The mortgage contained a standard care-taking clause obligating the mortgagors thereunder and an habendum clause which provided,

“To have and to hold the same, together with the tenements, hereditaments and appurtenances thereto belonging, and the rents, issues and profits thereof, unto the mortgagee, in fee simple.”

Somerson thereafter employed appellee, Parker Brothers, to caretake the grove and sell, as an agent, the fruit for the 1973-74 season. The fruit was sold by Parker Brothers for Somerson for that year. Thereafter on June 18, 1974 Parker Brothers, on behalf of Somerson, negotiated and entered into an agreement with appellee B. C. Cook and Sons, Inc., a fruit buyer, to sell the 1974-75 fruit crop. The effect of this agreement is sharply disputed by the parties and forms the basis of the judgment below.

This document, designated “Purchase Agreement and Contract” provided that the seller (Somerson-Parker Brothers) “does hereby bargain, sell and transfer unto the buyer (B. C. Cook) all the fruit that meets the standards for the use agreed upon or specified in this contract at the time of picking the fruit . . ” The contract further provided, that, “Price of fruit, harvesting and delivery charges and harvesting dates shall be mutually agreed upon between the BUYER and SELLER before the fruit is harvested.” The document also contained a provision for a ten cents handling charge per box in the event the seller sold to another buyer. In the same manner failure on the part of the buyer would result in retention by the seller of any advance made by the buyer as well as the voiding of the contract. No advance was made by Cook toward the sale of the crop at execution of this document.

A supplemental contract was executed between the parties for tangerines (a variety mentioned in the June 18 agreement) on September 16, 1974 and a $5,000 deposit was paid by Cook to Parker Brothers at that time.

On October 10,1974 mortgagee Bornstein initiated the mortgage foreclosure action and a receiver was appointed by the court. The complaint sought foreclosure on the real property described in the mortgage including the citrus grove and all citrus fruit then growing. None of the 1974-75 crop had been harvested as of this date. The receiver, acting upon court authority, took control of the citrus grove and employed Polo Grove Service, Inc. to perform caretaking during the term of the receivership. The 1974-75 fruit crop was subsequently sold by the receiver for the aggregate sum of $113,868.34, with all the fruit, except the navels, going to Cook pursuant to court direction. The proceeds of this sale were vested in the receiver.

On May 12, 1975 the lower court entered its final judgment specifically finding that the agreement executed on June 18 constituted a contract for the sale of the 1974-75 fruit crop which constructively severed the fruit from the realty so as to remove the proceeds from the sale of the same from the lien of the mortgage. The court directed that the proceeds from the sale and expenses of receivership would be apportioned as follows:

(A) Caretaking expenses ($28,798.45) incurred by the receiver. That portion attributable to the harvested fruit crop and thereby benefitting the mortgagor $11,797.29. The remainder paid to Polo are attributable to the grove (mortgagee) and are to be paid by the same.
(B) Employment of fruit price estimator ($100) charged to the mortgagor.
(C) Receiver’s fee ($1,750) primarily of benefit to mortgagee to be paid by Bornstein.
(D) 1974 real estate taxes, paid by the receiver ($8,864.98), charged to mortgagee.
(E) All remaining proceeds of the sale to be paid to mortgagors and Parker Brothers.

The final judgment further provided for the sale of the property encumbered by the mortgage being foreclosed. The sale was held on May 29, 1975, and the mortgagee Bornstein bid in the property for the sum of $330,000.

This appeal presents for determination several issues of vital significance to the citrus industry in Florida. These questions may be summarized as follows:

(1) Whether an agreement which facially purports to be a contract, but lacks any price, harvesting date and harvesting and delivery charge, and was executed without any deposit being paid, can operate to constructively sever a citrus crop from the mortgage on the underlying citrus grove to the benefit of a mortgagor in a mortgage foreclosure action; and
(2) Whether a mortgage on realty, with a standard reservation of lien on “rents, issues and profits,” can defeat the operation of the doctrine of constructive severance so as to vest the proceeds of the sale of a fruit crop, sold during foreclosure proceedings, in the mortgagee as a “profit” of the realty.

For the reasons stated herein, we answer the first question in the affirmative and the second in the negative.

It is axiomatic that in Florida crops of fruit are in general parts of the realty until severed. Simmons v. Williford, 60 Fla. 359, 53 So. 452 (1910); Adams v. Adams, 158 Fla. 173, 28 So.2d 254 (1946); Peer v. Willson, 210 So.2d 495 (Fla.App.2d DCA 1968); 9A Fla.Jur., Crops § 3. However, by acts or intention of the owner, growing fruit may be constructively severed and thus converted into personalty for the purposes of mortgage or sale, even though the fruit remains on the trees. Simmons, supra; Owen v. Commissioner, 192 F.2d 1006 (5th Cir. 1951). Cf. Exchange National Bank of Tampa v. Alturas Packing Co., 269 So.2d 733 (Fla.App.2d DCA 1972). Thus a sale or mortgage of the fruit, even though under a general mortgage of the realty, effectively removes the fruit from the realty and out of reach of the mortgagee unless the latter provides otherwise. The parties agree that the sale of the tangerines, pursuant to the supplemental contract, fell within this latter category as a constructive severance. Additionally, no dispute exists as to whether Bornstein explicitly reserved any rights to future fruit crops on the mortgaged land. He did not.

Although Bornstein asserts that the agreement executed on June 18, 1974 was nothing more than an agreement to agree, we think the import and significance of this document requires that it be construed as a binding contract. It is clear that the fruit, at the time of the sale, were goods as contemplated by § 672.2-107(2), Florida Statutes (1975). It is equally recognized that a contract for the sale of goods will not fail for indefiniteness even though one or more terms are left open. Section 672.2-204(3), Florida Statutes (1975). However, the latter rule is tempered by the proviso that: 1) the parties must have intended to make a contract and 2) there exists a reasonably certain basis for giving an appropriate remedy. Section 672.2-204(3), supra. As stated in Uniform Commercial Code § 2-204, Comment 3,

“The test is not certainty as to what the parties were to do nor as to the exact amount of damages due the plaintiff. Nor is the fact that one or more terms are left to be agreed upon enough of itself to defeat an otherwise adequate agreement. Rather commercial standards on the point of ‘indefiniteness’ are intended to be applied, this Act making provision elsewhere for missing terms needed for performance, open price, remedies and the like.”

Florida courts, both prior to and after the adoption of the Uniform Commercial Code, have recognized these principles with respect to “open terms.” See, e. g. Roe v. Winter Haven Co., 104 Fla. 317, 140 So. 463 (1932); Blackhawk Heating & Plumbing Co., Inc. v. Data Lease Financial Corp., 302 So.2d 404 (Fla.1974). In Roe, supra, involving an agreement for the sale of fruit, it was held that mere inability to ascertain the quantity and price of the fruit at the time of contracting did not prevent the contract from operating as contract in prae-senti. The contract was held as passing title at the time of its execution. Similarly, our Supreme Court, in addressing the point of indefiniteness in Blackhawk Heating & Plumbing, supra, stated,

“The contract should not be held void for uncertainty unless there is no other way out. As was stated by Justice Cardozo in Heyman Cohen & Sons, Inc. v. M. Lurie Woolen Co., Inc., 232 N.Y. 112, 133 N.E. 370, 371, ‘Indefiniteness must reach the point where construction becomes futile.’ ”

This view conforms with the official comments to Section 672.2-204(3).

Even without the benefit of Section 672-2.204, supra, other sections of the Florida Uniform Commercial Code would remedy the alleged deficiencies in this contract. See, Section 672.2-305, Florida Statutes (1975) (open price term) and Section 672.2-309, Florida Statutes (1975) (absence of specific time provisions). These sections contained in Article III of our Commercial Code read in pari materia with the liberal interpretation given Section 672.2-204, supra, enable us to answer sufficiently any contention that the contract sub judice fails to specify price, harvesting dates and harvesting and delivery costs. In fact, as a complement to 672.2-204, supra, the official comment to 672.2-305, supra, provides in part,

“This section (672.2-305) applies when the price term is left open on the making of an agreement which is nevertheless intended by the parties to be a binding agreement. This Article rejects in these instances the formula that ‘an agreement to agree is unenforceable’ . . . and rejects also defeating such agreements on the ground of ‘indefiniteness’. Instead this Article recognizes the dominant intention of the parties to have the deal continue to be binding on both.” (emphasis added) Uniform Commercial Code § 2-305, Comment 1.

In construction of a written contract it is the duty of the court to place itself in the situation of the parties, and from a consideration of the surrounding circumstances, the occasion, and apparent object of the parties, to determine the meaning and intent of the language employed. St. Lucie County Bank & Trust Co. v. Aylin, 94 Fla. 528, 114 So. 438 (1927); Blackhawk Heating & Plumbing Co., Inc., supra. On appeal, unless clearly erroneous, the construction placed upon a contract by the trial judge should be affirmed. Clark v. Clark, 79 So.2d 426 (Fla.1955); Rylander v. Sears, Roebuck & Company, 302 So.2d 478 (Fla.App.3d DCA 1974). After close examination of the subject agreement, we conclude that the trial judge’s construction of this citrus “Purchase Agreement and Contract” was correct. While parts of the contract were more nearly akin to a “handling” type of agreement whereby Cook would act as the owner’s agent for the sale of fruit, the court was privileged to accept the expert testimony which characterized this type of contract in the citrus industry as a sales contract. It is obvious from the record that both Parker Brothers and B. C. Cook & Sons intended to be bound and that the price of the fruit, the picking and hauling charges, and the picking dates were to be set according to prevailing industry standards on those dates.

We are cognizant of the mortgagee Born-stein’s admonition that to uphold this citrus sales agreement as a contract, which constructively severs the fruit crop from the mortgaged realty, will jeopardize the position of all mortgages on land with citrus crops growing thereon. However, we would note that substantial evidence was adduced during these proceedings to suggest that this type of sales agreement, with one or more terms left open, is common in the citrus industry and that greater harm would be done by holding this contract void for indefiniteness. This conclusion is required in this instance in light of the modern rules of construction, statutory directives, and case law applying these principles. Cf. Exchange National Bank of Tampa, supra. Moreover, despite the mortgagee’s assertions, an adequate remedy was available to Somerson and Parker Brothers upon default by Cook.

Mortgagee Bornstein’s next contention is that despite the constructive severance, the proceeds of the sale of the citrus crop by the receiver were “rents, issues and profits” which should have been applied to satisfy the mortgage indebtedness rather than paid to the mortgagor and their caretakers, Parker Brothers. Although Born-stein correctly asserts that the significance and effect of the encumbrance or pledge of the issues and profits is not linked to the operation of the doctrine of constructive severance, he misinterprets the effect of the latter doctrine as it applies in the case sub judice. The general rule with respect to a mortgage pledging rents, issues and profits is that the mortgagee becomes entitled to receive such rents, issues and profits to be credited against his mortgage debt from the time he takes possession of the property either by consent of the owner or through the appointment of a receiver in foreclosure proceedings. See White v. Anthony Inv. Co., 119 Fla. 108, 160 So. 881 (1935) and authorities cited therein. In White the Supreme Court also posited,

“ . . . The rule appears to be that he is not only entitled to the rents which accrue after that time, but he is entitled to such rents as have accrued prior to the appointment of a receiver and after default but which have not been paid.” (emphasis supplied) 160 So. at 882.

The key consideration here is that at the time of default, some three and one-half months after execution of the fruit contract, the fruit crop, having been constructively severed, was no longer part of the mortgaged res. Therefore, the proceeds of that crop, having been sold during the term of the receivership, were personalty of the mortgagor and not a rent, issue, or profit of the mortgaged realty subject to application for reduction of the mortgage indebtedness. Cf. Bay Realty Corporation v. Becker, 157 So.2d 91 (Fla.App.3d DCA 1963). See also, 22 Fla.Jur. Mortgages § 451. Were there no constructive severance of the fruit crop by the contract of June 18, 1974, then the mortgagee would be correct in asserting that these proceeds should have been applied to reduce the mortgage indebtedness. However, the default and appointment of a receiver occurred after the severance of the crop from the mortgaged realty and the proceeds herein were properly returned to the mortgagor less monies owed to the caretaker and expenses of the receivership.

Other propositions argued have been carefully considered, but no special comment is found to be necessary with reference to same. Accordingly, the judgment is

AFFIRMED.

GRIMES and SCHEB, JJ., concur.

      . Parker Brothers instituted a separate suit for caretaking services following the filing of Born-stein’s mortgage foreclosure action. This suit, with both mortgagee and mortgagor named as defendants, was consolidated with the mortgage foreclosure action.

      . This provision reads,
      “If any portion of fruit covered by this contract should be sold to another party by the SELLER, a pro-rata share of any money advanced plus 10‡ per box service charge for checking fruit, advising the grower of quality of fruit, market conditions, etc. shall be returned to the BUYER before any fruit shall be released from this contract.”

      . Testimony in the record reveals that Parker Brothers, at the execution of this document, was offered a $20,000 to $25,000 deposit, but turned it down because they were afraid of spending it prior to the time the crop was actually harvested.

      . The effect of this contract is not disputed. Both parties stipulated to the constructive severance of the tangerines from the realty.

      . This sum excludes the $5,000 received by Parker for the supplemental contract on the tangerines.

      . The court ordered Bornstein to pay to the receiver $27,616.18 which included the receiver’s fee, ad valorem taxes for the year and the share of caretaking costs incurred by the receiver in appointing Polo Grove Service. The court also ordered the $101,971.09, representing the proceeds of $113,868.34 less the grove caretaking costs (Polo), paid to Somerson and Parker Brothers pursuant to stipulation.

      . The mortgagee could have reserved a security interest in the citrus crops to be harvested subsequent to July 1, 1973. §§ 679.9-203, 679.-9-204 Fla.Stat. (1975) provide a mechanism whereby Bornstein could have obtained a lien on the future crops as collateral for outstanding indebtedness. Properly identified, this security interest could have remained effective even after sale of crops and during foreclosure proceedings. § 679.9-203, supra.

      . Bornstein contends that several deficiencies negate the existence of a contract. Among those defects are the following:
      a. No deposit paid at the execution despite reference to advances in the agreement;
      b. Lack of mutuality in that Parker Brothers could have sold to another buyer without penalty;
      c. The 10 cent service charge contemplates the possible sale to another buyer;
      d. Testimony of at least one individual with experience in the citrus industry who stated that this type of sales arrangement was nothing more than a handling contract rather than a sales contract; and
      e. The instrument fails to specify price, harvesting dates, harvesting and delivery costs.

      . Uniform Commercial Code § 2-204, Comment 1 provides,
      “The more terms the parties leave open the less likely it is that they have intended to conclude a binding agreement, but their actions may be frequently conclusive on the matter despite the omissions.”

      . We go no further than the specific facts before us. Despite its common use, this “Purchase Agreement and Contract” could, in another factual context, be held void for indefiniteness. Thus the more terms left open the greater the likelihood of no contract being intended. Uniform Commercial Code § 2-204, Comment 1. We would suggest that the nature of the citrus industry requires many factors to be left open in sales contracts for future crops. For more extensive treatment of the construction of contracts for the sale of crops, see generally Annot., 87 A.L.R.2d 732 (1963); 21 Am.Jur.2d Crops §§ 1-88 (1965).

      . Bornstein asserts that since no cash deposit or advance was made by Cook at the time of contracting that the contract’s recitation
      “Should BUYER fail to comply with the terms and conditions herein enumerated, this contract shall become null and void and the advance made to SELLER shall be retained by said SELLER in full payment of liquidated damages.”
      is without force and effect, thereby leaving Somerson and Parker Brothers without a remedy.
      This provision clearly was intended to be the sole remedy of the seller in the event of default by Cook. However, when Parker Brothers refused to accept any deposit or advance at the time of contracting, Note 3, supra, the remedies available under the code, §§ 672.2-702-672.2-706, Florida Statutes (1975) were invoked. This conclusion conforms to the view found in § 672.2-719(2), Fla.Stat. (1976) which states,
      “(2) Where circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in this code.”
      The official comment to this subsection states in part,
      “Similarly, under subsection (2), where an apparently fair and reasonable clause because of circumstances fails in its purpose or operates to deprive either party of the substantial value of the bargain it must give way to the general remedy provisions of this Article.” Uniform Commercial Code § 2-719 Comment 1.
      Here the remedy available to Parker Brothers was inadvertently waived in its refusal of the advance or deposit offered by Cook. Since preservation of the contract, evidenced by intent of the parties to be bound, is the key factor, we hold that the contract here did afford Parker Brothers all the remedies available under the code sections enumerated above. Cf. Miller Yacht Sales, Inc. v. Scott, 311 So.2d 762 (Fla.App.4th DCA 1975). However, this result does not authorize unilateral rejection of liquidated damages provisions in contracts so that a party may invoke more liberal code remedies. Nor does it seem likely that a party to a contract having voluntarily waived or rejected an exclusive remedy could recover, upon breach, an amount in excess of the damages contemplated in the original agreement.


source: Caselaw Access Project

author: SCHWARTZ, ALAN R., Associate Judge.

license: Public Domain

text:
    REDWING CARRIERS, INC., Appellant, v. Robert E. WATSON and Yvonne G. Watson, his wife, Appellees. Robert E. WATSON and Yvonne G. Watson, his wife, Appellants, v. REDWING CARRIERS, INC., a Florida Corporation, Appellee.
    Nos. 75-1747, 75-1794.
    District Court of Appeal of Florida, Fourth District.
    Jan. 28, 1977.

      Gary H. Rushmer, of Akerman, Senter-fitt, Eidson & Wharton, Orlando, for Red-wing Carriers, Inc.
    Janis M. Halker, of Gurney, Gurney & Handley, Orlando, for Robert E. Watson and Yvonne G. Watson.
   SCHWARTZ, ALAN R., Associate Judge.

These consolidated appeals arise out of a head-on collision which occurred on December 30, 1971, on State Road 50 between a truck operated by Robert E. Watson in the course of his employment with Neway Uniform and Towel Supply of Florida, Inc. and another operated by Alvan C. Clements while he was employed by Redwing Carriers, Inc. Clements and Watson were both badly injured, and both vehicles were severely damaged. In 1972 Clements, joined by his wife, who asserted a derivative claim, sued Watson and Neway for Clements’ personal injuries. This suit was settled by Neway and Watson’s insurance carrier, Travelers Insurance Company, before trial, for $40,000; Travelers apparently also, without suit, settled Redwing’s own property damage claim for $10,310. At about the time that the Clements suit was settled in the Orange County Circuit Court, the trial court specifically granted leave for Watson and his wife to assert their claims, which were then filed in a separate suit, against Redwing for the personal injuries and damages sustained by them. The latter case— that is, the action by the Watsons against Redwing Carriers, Inc. as the sole defendant — went to a lengthy and hotly contested jury trial. At its conclusion, the jury determined that Watson had been 65% at fault in the causation of the accident and assessed his total damages at $560,000 and those of his wife at $40,000. Pinal judgment was therefore initially entered against Redwing for Mr. Watson in the amount of $196,000 and for Mrs. Watson for $14,000. After its post-trial motions had been denied, with the exception we shall shortly consider, Redw-ing appealed from the judgments against it. That appeal is before us as Case No. 75-1747.

The trial judge did grant one post-trial motion filed by Redwing. In it, Redwing asserted its entitlement to a set-off, that is to a reduction of its liability on Mr. Watson’s judgments against it, in the amounts which had been paid by Travelers to Clements for his personal injuries and to Redw-ing itself for its property damage. Assert-edly upon the ground that the defendant would have been entitled to these set-offs had the suits in question been tried together and upon the basis that Watson should not gain an advantage by having filed a separate suit, the trial court granted this motion, it would seem, in its entirety. This action has been challenged by the Watsons’ cross-appeal in Case No. 75-1794.

On Redwing’s appeal in Case No. 75-1747, we affirm the judgment below. The only point raised which deserves discussion concerns the trial judge’s action in permitting the plaintiffs “accident reconstruction expert,” Donald Wall, to give his expert opinion that the Redwing truck driver had been “able to take evasive action .” so as to avoid the accident. We think, first, that the facts contained in the hypothetical question propounded to Wall were properly based upon a version of the testimony of eye witnesses which the jury had the right to accept. Mutual Benefit Health & Accident Assn. v. Bunting, 133 Fla. 646, 183 So. 321 (1938). Hence, Redw-ing’s reliance upon such cases as Autrey v. Carroll, 240 So.2d 474 (Fla.1970), in which the hypothetical “facts” were themselves merely expert opinions, is misplaced. Nor do we agree with the familiar contention that the expert’s opinion “invaded the province of the jury.” We read Wall’s testimony as essentially concerning what physically could have been done under the circumstances, which is a permissible subject of an expert opinion such as this one, e.g., Kerr v. Caraway, 78 So.2d 571 (Fla.1955); Mathews v. Carlson, 130 So.2d 625 (3 D.C.A. Fla. 1961); Seibels, Bruce & Co. v. Giddings, 264 So.2d 103 (3 D.C.A. Fla.1972); rather than expressing a view as to whether Clements did what he should have done, which is an impermissible one. See Smaglick v. Jersey Ins. Co. of N.Y., 209 So.2d 475 (4 D.C.A. Fla.1968).

On the Watsons’ cross-appeal, we reverse the order granting Redwing’s motion for set-off. It is obvious that, no matter what the procedural situation, Redwing should not be able to claim credit as to a judgment against it (and Watson should not suffer) because of money paid in settlement by Watson and his employer’s insurance company to the defendant’s employee, Clements, for damages sustained personally by him and his wife. Nor can there be any basis for granting the defendant a double recovery for its own property damage, first in the form of cash in hand, and then as a reduction of the damages it owes Watson for his own damages. Any question concerning the impropriety of both “set-offs” has been entirely dissipated by the Supreme Court’s very recent decision, on rehearing granted, in Stuyvesant Ins. Co. v. Bournazian, 342 So.2d 471 (Fla.Sup.Ct., opinion filed, Dec. 16, 1976). The Court there emphasized that the “set-off” concept enunciated in Hoffman v. Jones, 280 So.2d 431, 439 (Fla.1973), does not affect the obligations of liability insurance carriers and indeed applies solely to cases in which identical entities are the only parties involved as plaintiff and counter-claimant. This case presents an a fortiori situation to the one involved in Bournazian, which alone requires reversal on these issues.

In accordance with these views the order granting the defendant’s motion for set-off is reversed. The judgments entered against Redwing, in accordance with the jury verdict, for Mr. Watson in the amount of $196,000, and for Mrs. Watson in the amount of $14,000 are affirmed, without prejudice to the trial court’s consideration of a motion filed before it under Rule 1.540(b).

Affirmed in part, reversed in part.

DOWNEY, J., and MORROW, RUSSELL O., Associate Judge, concur.

      . In its direct appeal, Redwing also asks us, in effect, to reconsider a ruling we made at a much earlier stage of the case. Soon after the notices of appeal had been filed, the defendant filed in this court a motion to remand the cause to the trial court, for its consideration of a motion under Fla.Rule Civ.Proc. 1.540(b) for relief from the judgment entered against Redw-ing. The basis for the proposed motion was the newly discovered claim that the person who eventually became the foreperson of the jury had made material misrepresentations in answer to questions propounded her on voir dire examination. After consideration, we denied the motion to remand, and the Supreme Court denied certiorari directed to this determination. Later, the trial court also (properly) denied, for lack of jurisdiction and because of our ruling, Redwing’s Rule 1.540(b) motion to proceed there.
      While the appeal from the judgment was pending, it was perhaps proper, as a matter of judicial economy, for us to deny the motion to remand on the theory that a Rule 1.540(b) proceeding would serve no purpose if we were to reverse the judgment on the issues before us and require a new trial anyway. Now that we have determined otherwise, that ground for denial no longer obtains. We have therefore reconsidered the merits of the proposed motion under Rule 1.540(b). Although we indicate no opinion whatsoever concerning the eventual outcome of the proceeding, we do hold that the motion states a prima facie case, see Skiles v. Ryder Truck Lines, Inc., 267 So.2d 379 (2 D.C.A. Fla.1972), and that the defendant is entitled to an evidentiary hearing on its merits before the trial judge. Accordingly, our determination of these cases is specifically without prejudice to Redwing’s filing and the trial court’s determining such a motion. Furthermore, since the defendant’s original application to us for this relief was obviously timely made, we specifically hold that the one-year time limitation applicable under Rule 1,540(b)( 1 — 3) was tolled by the filing of Redwing’s motion to remand in this court on November 5, 1975.

      . Under the trial court’s rationale, if the cases had been tried together, Clements would have been entitled to no judgment at all even though he was himself not even made a party defendant in Watson’s claim against Redwing.

      . The pendency of this motion does not of course affect the finality or enforceability of the judgment against Redwing as affirmed today. Rule 1.540(b).


author: DAUKSCH, Judge.

text:
    Maria DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 76-652.
    District Court of Appeal of Florida, Fourth District.
    Jan. 28, 1977.
    Richard L. Jorandby, Public Defender, and Richard S. Power, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee and Marsha G. Madorsky, Asst. Atty. Gen., West Palm Beach, for appellee.
   DAUKSCH, Judge.

The evidence clearly indicates the guilt of the Defendant, and the Appellant did not argue the sufficiency of the evidence in the brief. Had the evidence not been so clear to indicate that the jury was not misled into an erroneous verdict the comments of the prosecutor should have warranted a new trial or reversal. He said, “Ladies and gentlemen, we are all grownups and we know and I know you all know that sometimes people commit perjury on the witness stand. And I submit to you that it’s more often from the Defense side than it is from the State’s side.” There was no evidence in the record to support this last statement. This statement goes much deeper than mere argument and should be discouraged.

AFFIRM.

MAGER, C. J., and ALDERMAN, J., concur.


author: MILLS, Judge.

text:
    Dale ZYGADLO, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    Nos. DD-45, DD-46.
    District Court of Appeal of Florida, First District.
    Jan. 28, 1977.
    Rehearing Denied Feb. 23, 1977.
    Richard W. Ervin, III, Public Defender, and Michael M. Corin, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Charles W. Musgrove, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

A jury convicted Zygadlo of robbery, use of a firearm during the robbery, false imprisonment and grand larceny. He was sentenced to consecutive terms on each of the four crimes.

Zygadlo contends that he was denied the constitutional right to a fair trial and that he was erroneously sentenced on his conviction for use of a firearm during the robbery.

At the commencement of the trial, Zygadlo objected to leg shackles which were placed on him at the direction of the trial court. The court had the shackles put on him because he had escaped on at least one prior occasion when appearing before the court. Because of the recent escape, the court felt it necessary for maintenance of courtroom security and decorum that the shackles be applied. The shackles were not the large type. The record does not disclose whether the jurors were aware of the shackles. The record does disclose overwhelming evidence of Zygadlo’s guilt of each of the four crimes.

On the facts disclosed by the record, the trial court exercised good discretion in taking action to maintain courtroom security and decorum during the trial. There is no evidence that the jurors saw the leg shackles. There is no evidence that Zygadlo was prejudiced. There is overwhelming evidence that he was guilty of the four crimes. We affirm the finding of guilt.

The firearm which Zygadlo was charged with using in commission of robbery was the one he used in the commission of the robbery with which he was charged. The two violations were a part of the same criminal act, therefore, the five year sentence imposed under the count of the information charging him with use of a firearm is vacated. Cone v. State, 285 So.2d 12 (Fla.1973).

Affirmed in part; reversed in part.

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


author: PER CURIAM.

text:
    Guadalupe REYES, Appellant, v. STATE of Florida, Appellee.
    No. 76-991.
    District Court of Appeal of Florida, Second District.
    Jan. 28, 1977.
    Jack 0. Johnson, Public Defender, and Paul J. Martin, Asst. Public Defender, Bar-tow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed without prejudice to the appellant’s filing a petition for writ of habeas corpus pursuant to Baggett v. Wainwright, 229 So.2d 239 (Fla.1969) in this court on the grounds set forth in his Fla.R.Crim.P. 3.850 motion, wherein he alleged frustration of his direct appeal by state action.

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


text:
    MIAMI-DADE COMMUNITY COLLEGE DISTRICT BOARD OF TRUSTEES, Petitioner, v. FLORIDA PUBLIC EMPLOYEES RELATIONS COMMISSION, and Miami-Dade FHEA, Respondents.
    No. BB-116.
    District Court of Appeal of Florida, First District.
    Jan. 31, 1977.

      W. Reynolds Allen, of Hogg, Allen, Ryce & Norton, Coral Gables, for petitioner.
    R. T. Donelan, Jr., Jacksonville, Tobias Simon and Elizabeth J. duFresne, Miami, for respondents.
   MILLS, Judge.

The question presented by this petition for review is whether chairpersons at Miami-Dade Community College are managerial employees as defined in Section 447.-203(4), Florida Statutes (1976). At the time the Commission considered this issue, Section 447.203(4), Florida Statutes (1975), was in effect. This section was amended and substantially reworded by the 1976 statute which is now in effect. We must apply the statute which prevails now. Managerial employees are defined in Section 447.203(4), Florida Statutes (1976), as:

“(4) “ ‘Managerial employees’ are those employees who:
(a) 1. Formulate or assist in formulating policies which are applicable to bargaining unit employees;
2. May reasonably be required on behalf of the employer to assist in the preparation for the conduct of collective bargaining negotiations;
3. Have a role in the administration of agreements resulting from collective bargaining negotiations;
4. Have a significant role in personnel administration;
5. Have a role in employee relations;
6. Are included in the definition of administrative personnel contained in s. 228.041(10) . . . ; or
7. Have a role in the preparation and administration of budgets for any public agency or institution or subdivision thereof; and
(b) Perform jobs that are not of a routine, clerical, or ministerial nature and require the exercise of independent judgment.”

To be classified as a managerial employee, the employee must meet at least one of the seven requirements under subdivision (a) and must also meet the requirements of subdivision (b).

The Commission found from the voluminous evidence adduced at the hearing that department chairpersons: “recommend new faculty members for employment and prepare recommendations for promotions and salary raises for all departmental faculty members”; “to some extent determine the subject and number of courses to be taught by other faculty members”; “adjust grievances, evaluate faculty members, and determine the utilization of department funds for traveling”; “teach classes like other faculty members although they teach a reduced load”; and have some responsibility “for hiring the necessary support personnel such as clerical employees and student assistants”. It is clear, even from this brief recitation of some of the duties and responsibilities of chairpersons, that chairpersons “perform jobs that are not of a routine, clerical, or ministerial nature and require the exercise of independent judgment”, thus fulfilling the requirements of Section 447.203(4)(b). Since chairpersons meet the requirements of Section 447.203(4)(b), if their duties and responsibilities fall within any one of the seven categories under Section 447.203(4)(a), then they must be categorized as managerial employees. Since chairpersons clearly “have a role in employee relations”, it is unnecessary to determine whether their duties fall within any of the other six categories. It is the department chairpersons who evaluate faculty members within their department and either recommend or refuse to recommend faculty members for promotions and salary raises. The chairpersons determine which faculty members will receive the department’s traveling funds and which faculty members are assigned to teach the various courses the department has scheduled. It is also the department chairperson who is responsible for adjusting grievances within the department.

It is clear from this brief summary of some of the duties and responsibilities of chairpersons that they do “have a role in employee relations”, and therefore meet the requirements of Section 447.203(4)(a).

We therefore hold that chairpersons (and program coordinators since it was stipulated that they had the same duties and responsibilities as chairpersons) at Miami Dade Community College are managerial employees within the definition of Section 447.203(4), Florida Statutes (1976). That part of the order of the Public Employees Relations Commission holding that chairpersons and program coordinators at Miami Dade Community College are not managerial employees is reversed and this case is remanded to the Commission for the entry of an order consistent with this opinion.

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


author: HENDRY, Chief Judge.

text:
    LIBERTY MUTUAL INSURANCE COMPANY, a Massachusetts Corporation, Appellant, v. Evelyn FURMAN, Individually and as Executrix of the Estate of Daniel G. Furman, Deceased, et al., Appellees.
    Nos. 75-1959, 76-232.
    District Court of Appeal of Florida, Third District.
    Feb. 1, 1977.

      Blackwell, Walker, Gray, Powers, Flick & Hoehl and James E. Tribble, Miami, for appellant.
    Sams, Anderson, Post & Ward and R. Thomas Farrar, Miami, for appellees.
    Before HENDRY, C. J., and PEARSON and HAVERFIELD, JJ.
   HENDRY, Chief Judge.

Appellant, plaintiff in an action for declaratory relief filed in the court below and insurer of the deceased, appeals from a final money judgment entered by the lower court in favor of appellees, the defendants-counterplaintiffs below and wife and children of the deceased; and from a subsequent order assessing attorney’s fees and amending the above final judgment. By order of this court, the two appeals have been consolidated.

The deceased was the named insured under a comprehensive automobile policy issued by appellant. The policy covered three automobiles owned by the deceased and afforded him protection against uninsured motorists in the amount of $300,-000.00 per accident, per vehicle. Appellant charged the deceased separate premiums for each vehicle, said vehicles being individually classified in the policy.

In May, 1974, the deceased died as a result of a collision between the car which he was driving (and in which his wife was a passenger) and another vehicle driven by one Heller. Heller, whose negligence was the sole proximate cause of the accident, had an automobile liability policy providing maximum coverage of $10,000/$20,000. Heller’s insurer paid its .$20,000 limits to appellees.

In October, 1974, appellees filed a demand for arbitration of an $880,000.00 uninsured motorist claim against appellant for both the death of the deceased and injuries to appellee-widow. Appellant thereupon filed for declaratory judgment asserting that the uninsured motorist coverage under the policy was $300,000.00 per accident. Appellees counterclaimed for a judicial declaration that the $300,000.00 could properly be “stacked” to produce uninsured motor vehicle coverage of $900,000.00;

Following a final, hearing on all issues, the trial court determined that the limits pf $300,000.00 per accident could properly be stacked, affording appellees $900,000.00 .of coverage. Based on the amount of damages and. available coverage the court awarded appellees $560,500.00 and by subsequent order, attorney’s fees were, also awarded against appellant. This .appeal follows.

Appellant initially claims that .the lower court erred in “stacking” the individual vehicle’s $300,000.00 liability limitations. In addition, appellant contends that/the lower court erred in awarding appellee-widow $215,000.00 damages, by virtue of the decedent’s death.

By way of cross-appeal, appellees cite as error the lower court’s refusal to award damages to appellee-Malcolm, the son of the deceased, who had passed the age of eighteen years but who had not yet reached the age of twenty-one as of the time of the accident.

Firstly, appellant’s basic argument concerning the stacking issue is grounded upon the belief that Tucker v. Government Employees Insurance Co., 288 So.2d 238 (Fla.1973), is no longer viable as authority for stacking uninsured motorist coverage in the light of Section 627.727, Florida Statutes (1973), which appellant claims is significantly different from former Section 627.-0851, Florida Statutes (1969), as applied in the Tucker decision, supra.

While we note a change in Section 627.-727, Florida Statutes (1973), allowing an insured a greater choice in the amount of uninsured motorist coverage he wishes to purchase, as compared to the “mandatory” language of Section 627.0851, Florida Statutes (1969), we do not believe said change affects the Tucker rationale. In fact, in a recent decision of this court, we expressly relied upon Tucker in affirming a lower court’s declaration which held that provisions in a policy upon two automobiles against stacking of uninsured motorist coverage were ineffective. Government Employees Insurance Company v. Dammert, 335 So.2d 583 (Fla. 3d DCA 1976). Therefore, based upon the above authority, we are of the opinion that the trial judge was correct in declaring that the uninsured motor vehicle coverage afforded each automobile in the policy could properly be stacked. See State Farm Mutual Automobile Insurance Company v. Anderson, 332 So.2d 623 (Fla. 4th DCA 1976).

Appellant’s second point concerns an alleged error of the trial court in awarding the deceased’s widow $215,000.00 as damages for the economic loss suffered by decedent’s death. Appellant claims that without consideration of the diminution in value of the deceased’s family owned business, no award could properly be computed.

We note that the trial judge awarded the aforementioned amount pursuant to his findings of fact and conclusions of law. It is well-settled and we have so held that findings rendered on conflicting evidence by a trial judge comes to an appellate court clothed with a presumption of correctness, and absent a showing that they are clearly erroneous, will not be disturbed upon appeal. Hill v. Coplan Pipe & Supply Co., Inc., 296 So.2d 567 (Fla. 3d DCA 1974). In that the award was based upon competent and substantial evidence, we hold that said award was not clearly erroneous, and affirm. Courshon v. Fontainebleau Hotel Corporation, 307 So.2d 901 (Fla. 3d DCA 1975).

By cross-appeal, appellees have assigned as error that portion of the trial court’s conclusions of law and final judgment which failed to award damages for appellee-Malcolm’s loss of parental guidance and for his mental pain and suffering, arising from the death of his father, in accordance with the Florida Wrongful Death Act, Sections 768.16-768.27, Florida Statutes (1973). The trial judge determined that appellee, who had passed the age of eighteen years, was no longer a “minor” under the above sections and therefore could not recover for the aforementioned damages.

Since the filing of appellees’ cross-appeal, our Supreme Court has construed the term “minor” to mean any unmarried child under the age of eighteen years, and thus, the trial judge’s determination prohibiting recovery should be affirmed. Hanley v. Liberty Mutual Insurance Company, 334 So.2d 11 (Fla.1976).

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

Affirmed.


text:
    Paul STREB, a minor, by and through his parents and natural guardians, James Streb and Dorothy Streb, et al., Appellants, v. SEARS ROEBUCK & COMPANY, Appellee.
    No. 75-1993.
    District Court of Appeal of Florida, Third District.
    Feb. 1, 1977.
    Kates, Ress, Gomez & Rosenberg, David R. Howland, North Miami, and Susan Goldman, Miami, for appellants.
    Bradford, Williams, McKay, Kimbrell, Hamann & Jennings, Miami, and Paul A. Carlson, Miami Shores, for appellee.
    Before HENDRY, C. J., and BARKDULL and NATHAN, JJ.
   PER CURIAM.

This is an appeal by plaintiffs from an order dismissing their complaint. The complaint charged that the defendant, Sears Roebuck and Company, was liable in damages to plaintiffs for injuries suffered by the minor plaintiff when the trousers purchased from Sears by plaintiffs ignited while they were being worn by the minor.

Upon motion of the defendant, Sears, the trial court dismissed the complaint. The order stated no grounds for the dismissal. Application for leave to amend was heard and denied.

Upon consideration of the record on appeal, briefs and argument of counsel, we have concluded that the complaint did not wholly fail to state a cause of action upon which relief could be granted. Therefore, the court erred in dismissing the complaint.

Reversed and remanded for further proceedings.


text:
    Anna SALINETRO and John Salinetro, her husband, Appellants, v. Robert NYSTROM, M.D. and State Farm Mutual Automobile Insurance Company, Appellees.
    No. 76-9.
    District Court of Appeal of Florida, Third District.
    Feb. 1, 1977.

      Kneale & Starkweather, Miami, for appellants.
    Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O’Hara and Richard A. Sherman, Weinstein & Bavly, Walton, Lan-taff, Schroeder, Carson & Wahl, Miami, for appellees.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Anna Salinetro appeals an adverse final judgment entered pursuant to a directed verdict in this action for alleged medical malpractice.

Anna Salinetro sustained back injuries in an automobile accident and applied for personal injury benefits from her insurer, State Farm Mutual Automobile Insurance Company. State Farm required Anna to submit to a medical examination and on December 10 x-rays were taken by Dr. Nys-trom of her lower back and abdominal area. Although unknown to her, Anna was approximately four-six weeks pregnant at the time; however, neither Dr. Nystrom nor his receptionist or his x-ray technician inquired whether or not she was pregnant or the date of her last menstrual period. Thereafter, upon suspecting she was pregnant, on December 12 Anna visited her gynecologist, Dr. Emilio Aldereguia, who, after running some tests, confirmed her pregnancy. In January Dr. Aldereguia learned that Dr. Nystrom had taken x-rays of Anna’s pelvis and advised her to terminate her pregnancy because of possible damage to the fetus by the x-rays. Anna underwent a therapeutic abortion and the pathology report stated that the fetus was dead at the time of the abortion. Thereafter, Anna filed the instant lawsuit against Dr. Nystrom for medical malpractice. During the jury trial, Dr. Aldereguia was called as a witness for the plaintiff but the trial judge refused to allow him to testify as an expert with respect to whether or not the conduct of Dr. Nys-trom fell below the standard of medical care on the ground that Dr. Aldereguia was a specialist in obstetrics and gynecology, not radiology, and, therefore, he was not qualified to pass upon the standard of care required of Dr. Nystrom, an orthopedic specialist. After the presentation of all the evidence on Anna’s behalf, Dr. Nystrom moved for a directed verdict on the ground she failed to make a prima facie case of medical malpractice. The trial judge granted the motion and entered judgment for Dr. Nystrom.

Anna first contends that the record contains sufficient evidence to present to the jury a prima facie case of malpractice.

Liability for negligence depends on a showing that the injury suffered by plaintiff was caused by the alleged wrongful act or omission to act by the defendant. Merely to show a connection between the negligence and the injury is sufficient to establish liability. See 23 Fla.Jur. Negligence § 18 (1959).

Assuming arguendo that Dr. Nys-trom’s conduct fell below the standard of care in failing to inquire of Anna whether she was pregnant or not on the date of her last menstrual period, this omission was not the cause of her injury. Anna herself testified that even if asked about being pregnant, she would have answered in the negative. Anna further testified to the effect that being a few days late with her menstrual period was not unusual and did not indicate to her that she may have been pregnant at the time she went to Dr. Nys-trom; that six days prior thereto she had visited Dr. Aldereguia, and he had found no evidence that she was pregnant. We further note that simply because Anna was late with her menstrual period would not in and of itself mean that she was pregnant because further tests were required to ascertain whether she was pregnant. Thus, this point is without merit.

Anna secondly argues that Dr. Aldereg-uia is qualified to pass on the standard of care of other physicians in the community as to the use of x-ray diagnosis. We cannot agree.

A physician, whether he be a general practitioner or specialist, is under a duty to use ordinary skills, means and methods recognized as necessary and customarily followed in a particular type of case according to the standard of those who are qualified by training and experience to perform similar services in the community. To determine what skills, etc. are necessary and customarily followed in the community normally requires expert testimony by those physicians who perform similar services in the community. See Crovella v. Cochrane, 102 So.2d 307, 311 (Fla. 1st DCA 1958); Brown v. Swindal, 121 So.2d 38 (Fla. 1st DCA 1960); Brooks v. Serrano, 209 So.2d 279 (Fla. 4th DCA 1968).

It is undisputed that Dr. Aldereguia is a specialist in obstetrics and gynecology, but not in radiology or orthopedics and, thus, was not qualified to testify as an expert as to the standard of care required by Dr. Nystrom. It is interesting to note that Dr. Aldereguia testified that when he examined Anna on December 4, six days prior to Dr. Nystrom’s examination, he did not ask her when her last menstrual period was and does not always ask his patients this question.

Affirmed.


text:
    Charles McKINNEY, Appellant, v. DADE COUNTY, a political subdivision of the State of Florida, et al., Appellees.
    No. 76-665.
    District Court of Appeal of Florida, Third District.
    Feb. 1, 1977.
    Rehearing Denied Feb. 18, 1977.

      Brumer, Moss, Cohen & Rodgers and Burt E. Redlus, Miami, for appellant.
    Fowler, White, Burnett, Hurley, Banick & Knight and Fred R. Ober, Miami, for appellees.
    Before BARKDULL, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Plaintiff, Charles McKinney, appeals an adverse partial final summary judgment on the issue of liability with respect to his claim of malicious prosecution.

On September 5 and again on October 8, 1974 McKinney was arrested by defendant Sgt. Ruth Cox. Two sets of criminal charges were filed against him and on October 31, 1974 and April 30, 1975 the charges were dismissed for lack of prosecution. McKinney filed a suit for false arrest and malicious prosecution against Sgt. Cox, her employer, Dade County, and its liability insurer, Appalachian Insurance Company of Providence. Following pretrial discovery, defendants moved for summary judgment on the issue of liability as to McKinney’s claim of malicious prosecution. After hearing argument of counsel, the trial judge entered partial summary judgment for the defendants. McKinney appeals.

McKinney was taken into custody on October 8,1974 pursuant to a capias and information filed by the state attorney for possession and sale of heroin. When a prosecuting attorney files an information against a defendant, he conclusively determines that the evidence is adequate to establish probable cause to put the defendant on trial. See State ex rel. Hardy v. Blount, 261 So.2d 172 (Fla.1972) and cases cited therein. We, therefore, conclude the trial judge was eminently correct in entering summary judgment on the issue of liability on McKinney’s claim of malicious prosecution with respect to the October 8 arrest.

Appellees candidly admit that the record does not support the entry of summary final judgment with regards to the prosecution resulting from the September 5, 1974 arrest and we reverse that portion of the summary judgment on McKinney’s malicious prosecution claim arising out of the September 5 arrest.

Affirmed in part, reversed in part.


text:
    UPPER KEYS CITIZENS ASSOCIATION, INC., a Florida Corporation, Appellant, v. Martha WEDEL, County Commissioner, et al., Appellees.
    No. 76-680.
    District Court of Appeal of Florida, Third District.
    Feb. 1, 1977.

      Edward B. Johnson, Jr., Key West, for appellant.
    Paul E. Sawyer and Richard G. Payne, Key West, Pettigrew, Arky, Freed, Stearns, Watson & Greer, Miami, for appellees.
    Before HENDRY, C. J., and PEARSON and HAVERFIELD, JJ.
   PER CURIAM.

Appellant, plaintiff below, is a non-profit corporation, whose membership consists of citizens of the Upper Keys area of Monroe County, including residents of North Key Largo, the site of a proposed planned unit development project. Said project was to be built by appellee-Abess and was sanctioned by appellee-Board of County Commissioners, which approved the final plat and issued a development order.

After exhausting administrative remedies, appellant filed its complaint against appellees, alleging several instances in which appellee-Board of County Commissioners had acted in violation of both the Zoning Regulations of Monroe County and Florida’s “Sunshine Law,” Section 286.011, Florida Statutes (1975). In particular, appellant pointed to a closed, unrecorded and unadvertised meeting between the Monroe County Zoning Board and appellee-Abess. The alleged purpose of said meeting was to discuss plans and specifications of the proposed development. Based upon the alleged violations of the above laws, appellant sought to have the zoning variance decision of the Zoning Board of Monroe County, as upheld by the Board of County Commissioners, declared illegal and void.

By order of March 16, 1976, the lower court dismissed appellant’s complaint on the sole ground that appellant did not have standing to bring the lawsuit. Appellant appeals from that order.

The order of dismissal cited, among others, the cases of United States Steel Corporation v. Save Sand Key, Inc., 303 So.2d 9 (Fla.1974); Askew v. Hold THE Bulkhead-Save Our Bays, Inc., 269 So.2d 696 (Fla.2d D.C.A.1972) and Sarasota County Anglers Club, Inc. v. Burns, 193 So.2d 691 (Fla.1st D.C.A.1967), for the proposition that in order for a private non-profit citizens’ association (such as appellant) to have standing to sue, said corporation must (1) allege special injury that (2) differs in kind from that suffered by the general public. Absent the allegation of special injuries to its members, appellees contend that appellant has no standing to prosecute its lawsuit.

For the reasons discussed below, we view reliance upon the above principle of law as inappropriate, given the particular facts of the case sub judice and we therefore reverse the order of the lower court.

In both United States Steel, supra, and Sarasota County Anglers Club, supra, nonprofit corporations attempted to enjoin what they alleged to be public nuisances. Both courts, fearing a multiplicity of lawsuits, denied the corporations’ standing on the ground that no special injury had been alleged by the corporations, different in kind from the injury suffered by the public, generally. Likewise, in Askew, supra, a public corporation attempted to enjoin the state from building various facilities in a public wild life sanctuary. Again, the court denied the corporation standing to prosecute its lawsuit in that no special injury to its members had been alleged.

Unlike the facts in the above cases, appellant here, is not attacking the zoning variance on the ground that it would allow for the construction of an alleged public nuisance; rather, appellant is attacking the variance on the ground that it was illegally enacted, violating the procedural safeguards found in both the Monroe County zoning regulations and the “Sunshine Law.”

We have held that the “special injury” requirement has no application where a person affected seeks to challenge a zoning action on the ground that said action was illegally enacted, or conducted contrary to the provisions of a charter. Rhodes v. City of Homestead, 248 So.2d 674 (Fla.3d D.C.A. 1971). Compare Sarasota County Anglers Club, Inc., supra, discussed above, wherein the court, quoting from and adopting the language of the chancellor in his order of dismissal, held no standing for the reason, among others, that:

“ ‘There is no allegation [in the complaint] that the statute under which the Trustees and Town of Longboat Key have acted are invalid in any respect, nor is there any allegation that either of these public bodies . . . has acted in bad faith, or has in any way abused or exceeded its statutory powers . . . ’ ” Supra, at 693.

In addition, our Supreme Court, by way of certified question, has dealt with standing to attack an allegedly void zoning ordinance, and has held that any affected resident, citizen or property owner of the governmental unit in question has standing to challenge an improperly enacted, and thus void, ordinance without the necessity of showing special damages. Renard v. Dade County, 261 So.2d 832 (Fla.1972).

In that the gravamen of appellant’s complaint is the allegation that the zoning variance in question was illegally enacted, as opposed to an attack on any public nuisance resulting therefrom, we hold that no special damages need be alleged by appellant as a prerequisite for its “standing.” We are careful to emphasize, however, that standing is conferred upon appellant only for the above limited purpose of testing the validity of the enactment itself.

Because the order appealed was confined to the issue of “standing,” we are not obliged to pass judgment on the merits of appellant’s complaint. Connelly v. Merritt, 273 So.2d 7 (Fla.1st D.C.A.1973); Hankins v. Title and Trust Company, 170 So.2d 454 (Fla.1st D.C.A.1965). We therefore remand the cause to the lower court for proceedings not inconsistent with this opinion.

Reversed and remanded.


text:
    Shirley TAPLIN, Appellant, v. Sol TAPLIN, Appellee.
    No. 76-1097.
    District Court of Appeal of Florida, Third District.
    Feb. 1, 1977.

      Snyder, Young, Stern, Barrett, Tannenb-aum & Pallot and William L. Rogers and Paul R. Lipton, North Miami Beach, for appellant.
    Podhurst, Orseck & Parks and Joel D. Eaton, Miami, for appellee.
    Before HENDRY, C. J., and PEARSON and HAVERFIELD, JJ.
   PER CURIAM.

Shirley Taplin appeals an order denying her motion to dismiss the cross-petition of her former husband, Sol Taplin, seeking a reduction in alimony payments.

Shirley and Sol Taplin were divorced on May 29, 1962 and the judgment incorporated an agreement of the parties whereby Sol consented to pay $900 per month as alimony. On January 22, 1975 Shirley petitioned for an increase in alimony on the grounds that her needs were greater and Sol’s income had substantially increased. Sol answered and filed a cross-petition to reduce the amount of alimony on the ground that Shirley has had ample time to rehabilitate herself and the law of Florida allows a wife only a reasonable time for rehabilitation; that such time has long passed and she can now support herself. Shirley moved to dismiss Sol’s cross-petition for failure to set forth as sufficient grounds that there has been a substantial change in his ability to pay and/or in her needs. The chancellor denied her motion to dismiss and she perfected this interlocutory appeal.

A fundamental prerequisite to modification of alimony payments is a showing of substantial change in circumstances, including financial circumstances of one or both of the parties. Brown v. Brown, 315 So.2d 15 (Fla.3d DCA 1975). In addition, the rehabilitative thrust of the no-fault divorce law may not be retrospectively applied in the consideration of a petition for modification of alimony awarded in a decree entered prior thereto. Carmel v. Carmel, 282 So.2d 6 (Fla.3d DCA 1973); Mosher v. Mosher, 321 So.2d 450 (Fla.2nd DCA 1975). In his cross-petition for modification, Sol pled as the sole ground therefor the rehabilitative concept of the new no-fault divorce law and failed to allege the prerequisite substantial change in the circumstances of the parties. We, therefore, reverse the order of denial and remand the cause to the circuit court with directions to dismiss the cross-petition.

Reversed and remanded.


author: SCHEB, Judge.

text:
    Charles Ernest GLASS, Appellant, v. Eugenia B. (Glass) LONG, Appellee.
    No. 76-285.
    District Court of Appeal of Florida, Second District.
    Feb. 2, 1977.
    Lex Taylor of Taylor & Laurent, Lake-land, for appellant.
    C. Ray McDaniel of McDaniel & Smith, Lake Alfred, for appellee.
   SCHEB, Judge.

In a suit by appellant/plaintiff to re-establish a deed, the trial court directed a verdict in favor of the appellee/defendant. Plaintiff appeals. We reverse.

Plaintiff and defendant were formerly husband and wife. Upon dissolution of their marriage, they became tenants in common of a 30-acre tract of land which included their former homeplace. Plaintiff was awarded custody of their two sons and was granted exclusive use of the former marital premises. Defendant was granted custody of their daughter. Plaintiff filed suit against the defendant for partition of the property. Subsequently he petitioned to obtain custody of his daughter from the defendant.

Before these matters were resolved, the defendant executed a deed of her interest in the property in favor of the plaintiff. The parties agreed the deed was to be held in escrow by Attorney Gordon C. Huie. There was conflicting evidence of their agreement. Plaintiff contended he was to withdraw both his pending suit for partition and his petition to obtain custody of his daughter in exchange for his former wife’s conveyance to him of her one-half interest in the real estate. While admitting she signed the deed and placed it with Mr. Huie, defendant contended she executed and escrowed it to prevent her former husband from harassing her. She maintained, however, that she had the right to remove the deed from Mr. Huie’s possession. She did just that by regaining possession of it from Mr. Huie’s secretary. Subsequently she destroyed it in front of Mr. Huie who had been attempting to have the deed returned to bis possession. Plaintiff brought this suit to re-establish the deed.

Upon conclusion of the plaintiff’s evidence, the trial judge found that the deed was not properly witnessed. He granted a directed verdict and subsequently entered final judgment for the defendant, holding that “no deed ever existed.”

The granting of a directed verdict (Fla.R.Civ.P. 1.480), more properly called a dismissal in a nonjury action (Fla.R.Civ.P. 1.420(b)), is designed to test the sufficiency of evidence to support a judgment. Traw-ick, Florida Practice and Procedure, Section 22-13. At that posture it was incumbent on the trial judge to either disregard the conflicts in evidence, Rodi v. Florida Greyhound Lines, Inc., 62 So.2d 355 (Fla.1952), or resolve them in favor of the party moved against. Winn-Dixie Stores, Inc. v. Miller, 220 So.2d 680 (Fla. 4th DCA 1969).

While there were conflicts in the evidence, the defendant testified that she signed the deed and placed it in escrow with Mr. Huie. No one suggested the deed did not purport to convey the property in question. Moreover, there was testimony by Mr. Huie that the deed was in proper legal form. We hold the plaintiff produced sufficient evidence to establish a prima facie case to re-establish the deed. It was, therefore, error for the trial judge to grant a directed verdict holding “that no deed existed.” If, upon hearing all evidence, the court determines to re-establish the deed, other questions may surface as to the terms and legal effect of the conveyance and the escrow arrangements. Obviously, we make no opinion on these matters.

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

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


author: BOARDMAN, Chief Judge.

text:
    Gary Lee JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 76-942.
    District Court of Appeal of Florida, Second District.
    Feb. 2, 1977.
    Rehearing Denied Feb. 24, 1977.

      Jack 0. Johnson, Public Defender, and Greg A. Johnson, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Chief Judge.

Appellant had been charged with the offense of breaking and entering with intent to commit a misdemeanor, to wit: petit larceny. He filed a motion to suppress which was denied by the trial court. Appellant then entered a plea of nolo contendere reserving the question of law raised in the motion to suppress. He was sentenced to serve three years in the state prison with credit for time spent in jail awaiting trial.

Appellant subsequently filed a motion to vacate and set aside the judgment and sentence pursuant to Fla.R.Crim.P. 3.850., Appellant alleged that he had desired a jury trial but agreed to forego it upon receiving assurances that he would not be incarcerated, that this court would reverse the trial court’s order denying his motion to suppress and that he would probably be placed on probation. This timely appeal followed from the order of the trial court denying the motion.

Upon consideration of the record we conclude that appellant should be allowed to withdraw his plea of nolo contendere for it clearly appears that both the prosecutor and defense counsel did give appellant certain assurances which caused him to enter his plea and waive his right to trial by jury. In addition appellant was not asked by the court during the colloquy whether he had been promised anything if he entered a nolo contendere plea. Therefore because we cannot ascertain with certainty that the plea was voluntarily, understandingly and knowingly entered and because of the inadequacy of the colloquy between the court and appellant we

REVERSE and REMAND.

GRIMES and OTT, JJ., concur.


text:
    ROMPON PROPERTIES, INC. and Nicholas J. Rompon, Appellants, v. J. Maurice LANGELIER and Jacques A. Corbeil, Appellees.
    No. 76-1042.
    District Court of Appeal of Florida, Second District.
    Feb. 2, 1977.

      Stephen D. Hughes, Largo, for appellants.
    Charles P. Schropp of Shackleford, Farri- or, Stallings & Evans, Tampa, for appellees.
   BOARDMAN, Chief Judge.

Appellants/defendants appeal a final judgment awarding appellees/plaintiffs possession of two mobile homes and damages.

Appellants were the previous owners of a parcel of realty which appellees purchased at a sheriff’s sale. This action for unlawful detainer of the property was filed upon appellants’ refusal to comply with appellees’ demand for possession. The issue presented on appeal is whether the trial court abused its discretion by finding that the mobile homes located on the property were fixtures and thereby part of the real property.

The characterization of property as chattel or fixture is a fact question to be determined according to the testimony and other evidence presented. The trier of fact considers three factors: annexation of the property to the realty, adaptation of the property to the use of the realty and the intent of the party making the annexation. Commercial Finance Co. v. Brooksville Hotel Co., 98 Fla. 410, 123 So. 814 (1929). We hold that the findings of the trial court are supported by competent, substantial evidence, and therefore the trial court did not abuse its discretion by finding that the mobile homes were fixtures.

Appellants argue that this ruling renders them liable for payment of the purchase price of the mobile homes and deprives the holders of chattel mortgages on the homes of their security. The decision reached in this case is dispositive of the single issue presented to us, that is whether the mobile homes are fixtures. We have not considered or determined either appellants’ personal liability on the mortgages or the priority of claims made on the mobile homes by the chattel mortgagees.

AFFIRMED.

McNULTY and OTT, JJ., concur.


author: GRIMES, Judge.

text:
    STATE of Florida ex rel. Mary Dail CANUP, Relator, v. The Honorable Thomas M. LANGSTON, as Judge of the Circuit Court for the Tenth Judicial Circuit, in and for Polk County, Florida, Respondent.
    No. 77-19.
    District Court of Appeal of Florida, Second District.
    Feb. 2, 1977.
    Rehearing Denied Feb. 24, 1977.

      Jack 0. Johnson, Public Defender, Bar-tow, and Dan P. Brawley, Asst. Public Defender, Bartow, for relator.
    Allen R. Smith, Asst. State Atty., Bar-tow, for respondent.
   GRIMES, Judge.

This case involves the question of whether a delay in obtaining laboratory reports in the testing of contraband can justify an extension of the speedy trial time.

A suggestion for writ of prohibition was filed in this court seeking to prohibit relator’s pending trial below for possession of marijuana on the ground that the speedy trial time had expired. Since speedy trial violations are considered proper subjects for prohibition, a rule to show cause was issued. Turner v. Olliff, 281 So.2d 384 (Fla.1st DCA 1973).

Relator was arrested for felony possession of marijuana on June 15, 1976. An information was filed on November 18, 1976, charging her with this crime. On December 7, 1976, the state filed a motion for extension of speedy trial (mm- The motion was heard on December 13, 1976, and granted on that date. The trial was tentatively set for January 14, 1977. On December 20, 1976, relator filed her motion for discharge on the grounds that she had been denied a speedy trial pursuant to Fla. R.Crim.P. 3.191. The motion was denied the following week. This case turns upon the propriety of the extension since the 180-day speedy trial time would have otherwise expired on December 13, 1976.

The basis upon which the extension was sought was the delay in obtaining a report of the laboratory testing necessary to determine whether or not the substance allegedly found in the relator’s possession was marijuana. Shortly after the arrest, the evidence was sent to the laboratory for analysis. On July 2, 1976, the state called the laboratory to find out the results of the test but without success. Further inquiries were made on July 27, September 15, September 22, September 28 and October 7. Each time the state was advised that the laboratory was backlogged with work and that the analysis had not yet been made. On October 11, the state was orally advised that the analysis was positive, and the written report from the laboratory, was received on October 21. The relator was arraigned on December 7. Faced with the fact that the speedy trial time would run out six days later, the state filed its motion for extension. Following a hearing, the court concluded that the extension was justified and granted the motion.

Fla.R.Crim.P. 3.191(f) provides that the court may order an extension of the speedy trial time where exceptional circumstances are shown to exist. Such circumstances are defined as those which as a matter of substantial justice to the accused or the state or both require an order by the court. Exceptional circumstances specifically include:

“ . . . (iii) a showing by the State that specific evidence or testimony is not available despite diligent efforts to secure it, but will become available at a later time; provided, not more than two continuances shall be granted on this ground; . ..”

Within the limitations of the rule, the court must be accorded reasonable discretion in determining what justifies an extension of time. Here, in granting the extension the court necessarily concluded that the state had been hampered by the delay in obtaining the report of the laboratory analysis despite diligent efforts to obtain it. The record supports this conclusion.

This decision is not in conflict with our holding in Crain v. State, 302 So.2d 433 (Fla.2d DCA 1974). In that case, no motion for extension of time was filed within the 180-day speedy trial period, and the excuse of failure to obtain the laboratory report was only offered in opposition to a subsequent motion for discharge. Under these circumstances, Fla.R.Crim.P. 3.191(d)(3) mandated discharge because an extension of time had not been ordered. In addition, there was no showing of whether the state had been diligent in trying to obtain the laboratory reports. However, we hereby recede from Crain to the extent that it may imply that the failure to obtain necessary laboratory reports may never be an exceptional circumstance for an extension under the Speedy Trial Rule.

The rule to show cause is discharged, and the suggestion for writ of prohibition is denied.

BOARDMAN, C. J., and McNULTY, J., concur.


text:
    Mary E. BOGGS, Appellant, v. AETNA CASUALTY AND SURETY COMPANY, et al., Appellees.
    No. AA-140.
    District Court of Appeal of Florida, First District.
    Feb. 4, 1977.
    Gosney, Haas, Cameron & Parsons, Day-tona Beach, for appellant.
    Honorable J. 0. Eubank, of Smalbein, Eubank, Johnson, Rosier & Bussey, Dayto-na Beach, for appellees.
   PER CURIAM.

A reading of the order granting a new trial from whence this appeal emanates reveals that one of the alternative bases recited by the trial court for granting a new trial was that the verdict was contrary to the evidence as it related to percentages of negligence. Appellant has made no attempt in her briefs to demonstrate that the court’s said stated alternative ground was legally or factually erroneous. It is axiomatic that when an order of the trial court purports to be based upon several alternative grounds it will not be disturbed on appeal if one of the grounds is sufficient for the action taken even though another recited alternative ground is erroneous. Accordingly, the order here appealed is

AFFIRMED.

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


author: SMITH, Judge.

text:
    BUREAU OF COMMUNITY MEDICAL FACILITIES PLANNING OF DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, State of Florida and Community Hospital of New Port Richey, Inc., Petitioners, v. Bernard L. SAMSON and Walter P. Loebenberg, Respondents.
    No. EE-10.
    District Court of Appeal of Florida, First District.
    Feb. 4, 1977.

      Jack B. McPherson of Allgood, McPherson, Stewart & Bray, New Port Richey, and Douglas Whitney, Tallahassee, for petitioners.
    John W. Hamilton of Ware & Hamilton, and Marvin S. Grant, St. Petersburg, for respondents.
   ON MOTION TO DISMISS

SMITH, Judge.

Respondents Samson and Loebenberg applied to petitioner Bureau of Community Medical Facilities Planning for a certificate of need, pursuant to Sections 381.493 through .497, Florida Statutes (1975), for construction of a hospital facility in Pasco County. Following preliminary hearings, a favorable recommendation was made by Florida West Coast Health Planning Council, the appropriate “health systems agency.” Sections 381.493(3)(h), .494(5). The Bureau then denied certification and, under procedures unique to the Florida Health Facilities Planning Act, a hearing officer of the Division of Administrative Hearings was designated to review the matter according to Section 381.494(6)(e) and the Administrative Procedure Act, Section 120.57, Florida Statutes (1975). The hearing officer ordered that the certificate be granted. The Bureau, as the State agency having responsibility to issue certificates of need under Section 381.494(6)(a), has neither finally granted the certificate, in compliance with the hearing officer’s order, nor finally denied it, as the Bureau plainly wishes to do. The Bureau, joined by petitioner Community Hospital of New Port Richey, Inc., which opposed respondents’ application, has petitioned for judicial review of the hearing officer’s order. Section 120.68, Florida Statutes (1975).

Respondents urge judicial review is unavailable because no final agency action has yet been taken as required by Florida’s Administrative Procedure Act. Section 120.68(1), Florida Statutes (1975). No contention is made that the hearing officer’s order constituted such unusual “preliminary, procedural, or intermediate agency action” as requires an interlocutory judicial remedy.

Petitioners Bureau and Community Hospital do not deny that final agency action on a petition for need certification would ordinarily occur when the agency grants or denies the certificate. That would seem to be the plain meaning of the Administrative Procedure Act, Chapter 120. The complicating factor in this case is that the Congress has conditioned federal funding of such hospital construction on the existence of an agreement between federal administrators and State governors which, among other things, must

“. . . establish and maintain procedures pursuant to which a person proposing any such capital expenditure may appeal a recommendation by the designated agency [in Florida, the Bureau] and will be granted an opportunity for a fair hearing .. . .” 42 U.S.C. § 1320a-1(b)(3).

Federal administrators, exercising rulemak-ing power, have directed that after an adverse finding or recommendation by the State agency, the applicant shall be entitled to a hearing “in accordance with the applicable requirements of State law” before a person other than the agency, and that “[a]ny decision of a hearing officer . . . shall, to the extent that it reverses or revises the findings or recommendations of the designated planning agency, supersede the findings and recommendations of the designated planning agency . . . .” 42 C.F.R. § 100.106(c)(2), (4) (1976). The federal regulations thus place the Bureau in the position of being unable to finally deny Samson and Loebenberg a certificate of need in the face of the hearing officer’s order without offending federal standards incorporated in the governor’s agreement for hospital funding in Florida. And the Bureau is unable to grant respondents certification, in accordance with the hearing officer’s decision, without abandoning its earnestly held and contrary position, which it wishes to preserve for judicial review.

Without deciding that Section 120.63 of the Administrative Procedure Act provides a remedy for the Bureau’s quandary, we note that the Bureau does not claim that the Administration Commission has exempted it in these circumstances from taking final agency action to approve or disapprove the hearing officer’s order. Section 120.57(l)(b)(9), Florida Statutes (Supp. 1976).

Section 120.68(1) secures judicial review for “[a] party who is adversely affected by final agency action.” We have the firm view that a party cannot invoke judicial review as a matter of right until final agency action has occurred, and that no such action can occur in this case until the Bureau enters an order granting or denying the certificate of need. Should the Bureau deny the certificate, respondents as well as Florida West Coast Health Planning Council would be entitled to judicial review as parties adversely affected. Should the Bureau grant the certificate of need, petitioner Community Hospital of New Port Richey would similarly be entitled to judicial review as a party adversely affected. In neither event would the Bureau itself qualify as a party adversely affected by its own final agency action. Nevertheless, upon an appropriate petition for judicial review by an adversely affected party, the Bureau should be made a respondent. The interest of agencies in vindicating their policies and practices requires that they be joined and heard as respondents in review proceedings before the district courts of appeal.

In section 381.494(6)(e), the Health Facilities Planning Act provides, consistently with the mentioned federal legislation and rules,

“Any applicant or health systems agency aggrieved by the issuance or denial of a certificate of need shall have the right, within not more than 30 days from the day notice of the issuance or denial of such certificate is received from the bureau, to seek relief according to the provisions of the Administrative Procedure Act, chapter 120, as amended by chapter 74-310, Laws of Florida. Such hearings as may take place according to the provisions of this paragraph shall be regarded as meeting the requirements of Section 1122 of Public Law 92-603 [42 U.S.C. § 1320a-1].”

We do not consider the statute renders final agency action unnecessary as a condition precedent to judicial review under Section 120.68. Nor does the hearing officer designated to conduct the unique proceedings contemplated by Section 381.494(6)(e) — proceedings which follow and review the Bureau’s initial decision — thereby become the agency for purposes of rendering final agency action. The agency must act finally for itself and often, as in this case, choose between effectuating under protest the hearing officer’s decision, thus satisfying the governor’s agreement for federal funding, or effectuating its own contrary views on the matter in issue. However hard the choice, we cannot relieve the Bureau of the duty to act and so extend our jurisdiction to review the recommended orders of hearing officers. Sections 120.59, .68, Florida Statutes (Supp.1976).

There being no final agency action, nor any occasion for extraordinary review of intermediate agency action, the petition for certiorari is

DISMISSED.

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


author: McNULTY, Judge.

text:
    Charles LAMONTAGNE and Leo Lamontagne, Appellants, v. James W. HUNTER, as Administrator of the Estate of Robert S. Hunter, Deceased, Appellee.
    No. 76-626.
    District Court of Appeal of Florida, Second District.
    Feb. 4, 1977.
    Russell K. Peavyhouse of Peavyhouse, Giglio, Grant, Clark & Charlton, Tampa, for appellants.
    Harley S. Miller, Plant City, for appellee.
   McNULTY, Judge.

Appellants Charles and Leo Lamontagne, step-sons of the deceased testator Robert S. Hunter who divorced appellants’ mother subsequent to the execution of his will, take this appeal from an order of the circuit court declaring the will null and void so as to cut them out as contingent legatees. We reverse.

The decedent devised his entire estate to his wife. He further provided that in the event she predeceased him her sons, the appellants, were to take equal shares of his entire estate. At the instance of the decedent’s brothers, James (the appellee Administrator) and Raymond, the trial court voided the will and declared that the estate passed to them as the decedent’s heirs at law.

This case is controlled by our decision in In re Estate of Fredericks. In that case Fredericks left the residence of his estate to his wife and, in the event she predeceased him, to the Shriners Hospital for Crippled Children. As in this case, the testator and his wife were divorced but the will was left unchanged. This court followed the rationale of our Supreme Court in Iles v. Iles and held that Fredericks’ clear intent was that the Shriners Hospital was to receive the residuary estate if his wife were not available to take under the will. “The divorce”, we said, “took the wife out of the picture just as surely as would her death.” So it is here. The will controls; the divorced wife is out; and appellants take as contingent residuary legatees, the contingency in law having occurred.

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

BOARDMAN, C. J., and HOBSON, J., concur.

      . 311 So.2d 376 (Fla.2d DCA 1975).

      . 159 Fla. 493, 29 So.2d 21 (1947).

        . See n. 1, supra, p. 379; see also Steele v. Chase, 151 Ind.App. 600, 281 N.E.2d 137 (1972).


text:
    Dale McCLAIN, Appellant, v. The STATE of Florida, Appellee.
    No. 76-486.
    District Court of Appeal of Florida, Third District.
    Feb. 8, 1977.
    Bennett H. Brummer, Public Defender, and Karen M. Gottlieb, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., and BARKDULL and NATHAN, JJ.
   PER CURIAM.

Affirmed. See Estevez v. State, 313 So.2d 692 (Fla.1975). Swyers v. State, 334 So.2d 278 (Fla.3d DCA 1976).


text:
    Kermit T. SANDS, Appellant, v. STATE of Florida, Appellee.
    No. 76-668.
    District Court of Appeal of Florida, Third District.
    Feb. 8, 1977.
    John J. Quinn, Key West, for appellant.
    Robert L. Shevin, Atty. Gen., and Margarita G. Esquiroz, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., and PEARSON and BARKDULL, JJ.
   PER CURIAM.

Affirmed. Matera v. State, 218 So.2d 180 (Fla.3rd DCA 1969); Stunson v. State, 228 So.2d 294 (Fla.3rd DCA 1969); Garmise v. State, 311 So.2d 747 (Fla.3rd DCA 1975); Gibson v. State, 315 So.2d 523 (Fla.2nd DCA 1975); Everett v. State, 339 So.2d 704 (Fla.3rd DCA 1976).


text:
    E. J. FRANKEL et al., Appellants, v. CITY OF MIAMI BEACH, a Municipal Corporation, created and existing under the laws of the State of Florida, Appellee.
    Nos. 73-962, 73-963.
    District Court of Appeal of Florida, Third District.
    Feb. 9, 1977.
    Sibley, Giblin, Levenson & Ward, Miami Beach, for appellants.
    Joseph A. Wanick, City Atty., and Lee H. Schillinger, Asst. City Atty., for appellee.
    Before PEARSON and HAVERFIELD, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on June 18, 1974 (296 So.2d 605) affirming the order of the circuit court of Dade County, Florida, in the above styled cause; and

WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida by its opinion and judgment filed September 23, 1976 (340 So.2d 463) and mandate now lodged in this court, quashed this court’s judgment;

NOW, THEREFORE, It is Ordered that the mandate of this court heretofore issued in this cause on July 15, 1974 is withdrawn, the judgment of this court filed June 18, 1974 is vacated and the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court, the order of the trial court appealed herein is reversed and the cause is remanded for further proceedings consistent with the opinion and judgment of the Supreme Court of Florida. Costs allowed shall be taxed in the trial court (Rule 3.16(b), Florida Appellate Rules).


text:
    Mae Diamond GARFINKL, Appellant, v. Nathaniel GARFINKL, Appellee. Mae Diamond GARFINKL, Appellant, v. Howard N. GALBUT, Executor of the Estate of Nathaniel Garfinkl, Deceased, Appellee.
    Nos. 74-1711, 74-1749.
    District Court of Appeal of Florida, Third District.
    Feb. 9, 1977.
    Horton, Perse & Ginsberg; William W. Bailey, Miami, for appellant.
    Theodore M. Trushin and Michael B. Solomon, Galbut & Galbut, Miami Beach, for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on March 30, 1976 (330 So.2d 812) reversing the judgment of the Circuit Court of Dade County, Florida, in the above styled appeal, and

WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida by its opinion and judgment filed October 7, 1976 (340 So.2d 470) and mandate now lodged in this court quashed a portion of this court’s judgment and remanded the cause for further proceedings in accordance with the opinion and judgment of the Supreme Court of Florida,

NOW, THEREFORE, It is Ordered that the mandate of this court issued in this cause on May 12, 1976 is withdrawn, the opinion and judgment of this court filed March 30, 1976 insofar as it is in conflict with or fails to conform to the views expressed in the said opinion and judgment of the Supreme Court of Florida aforesaid is withdrawn and vacated, and the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court. The opinion and judgment of this court, except as withdrawn and vacated aforesaid, is adhered to. Costs allowed shall be taxed in the circuit court (Rule 3.16(b), Florida Appellate Rules.).


text:
    B. C. DRULINER, Appellant, v. KITCHEN DISTRIBUTORS OF FLORIDA, INC., et al., Appellees.
    No. 76-253.
    District Court of Appeal of Florida, Fourth District.
    Jan. 7, 1977.
    Rehearing Denied Feb. 22, 1977.
    Robert G. Murrell of Sam E. Murrell & Sons, Orlando, for appellant.
    Charles J. Collins, Jr. of Steed & Collins, Orlando, for appellee Kitchen Distributors of Florida, Inc.
    William G. Mitchell of Giles, Hedrick & Robinson, Orlando, for appellee Harold E. Ross Corp.
   PER CURIAM.

Affirmed upon authority of Crane Co. v. Fine, 221 So.2d 145 (Fla.1969); Bell v. Boys, Inc., 325 So.2d 28 (Fla. 4th DCA 1976); Moretrence Corporation v. Bronson & Veal Enterprises, Inc., 262 So.2d 206 (Fla. 4th DCA 1972); 1800 No. Federal Corp. v. Westinghouse Elec. Sup. Co., 224 So.2d 384 (Fla. 4th DCA 1969).

AFFIRMED.

CROSS, DOWNEY and ALDERMAN, JJ., concur.


author: PEARSON, Judge.

text:
    Franklin SOSA, Petitioner, v. The STATE of Florida, Respondent.
    No. 76-476.
    District Court of Appeal of Florida, Third District.
    Feb. 8, 1977.
    Taylor, Brion, Buker & Greene and Ar-naldo Velez, Miami, for petitioner.
    Robert L. Shevin, Atty. Gen., Richard E. Gerstein, State Atty. and Milton Robbins, Asst. State Atty., for respondent.
    Before PEARSON, BARKDULL and HAVERFIELD, JJ.
   PEARSON, Judge.

We are presented here with a petition for writ of certiorari from an individual, Franklin Sosa, who seeks review of an order of the Criminal Division of the Circuit Court, denying him, as movant therein, an order returning money which his motion alleged had been seized from him by a police officer at the time of his arrest. The record reveals that the money was seized at the time of Sosa’s arrest for allegedly trafficking in illegal drugs. Although not shown in the record, it is agreed that the seizure was suppressed by the trial court and that the money and drugs seized could not be used at a trial of the petitioner.

The petition for writ of certiorari was argued in the petitioner’s brief on the theory that the court departed from the essential requirements of law in failing to order the police officer to return the money. The respondent State defended upon the basis of cases holding that a trial court in a criminal case has no authority to order a return of property which is not in the custody of the court. See Cogen v. U. S., 278 U. S. 221, 49 S.Ct. 118, 73 L.Ed. 275 (1929); U. S. v. Hee, 219 F. 1019 (D.C.N.J.1915), and Applybe v. U. S., 32 F.2d 873 (9th Cir. 1929). At the hearing on the petition for writ of certiorari, it was agreed to by the attorneys for Sosa and the State that the trial court, in a criminal case, did not have the authority to order the return of this specific money. Petitioner urged at the hearing only that the portion of the trial court’s order finding and labeling the money seized as “contraband” should be quashed. Having heard argument thereon, having reviewed Sections 893.12(1) and .02(3) and 943.41, Florida Statutes (1975), and finding no authority therein for the trial court’s determination of this issue in that proceeding, we hereby quash that portion of the order dated February 10, 1976, reading said cash is considered by this Court to be contraband . . . ” and we deny the petition as to all other portions of the order.

It is so ordered.

      . But see §§ 893.12(2) and 943.43, Fla.Stat. (1975).