text:
    PLANAS & FRANYIE ENGINEERS, INC., Appellant, v. Jose B. PADILLA and Hortensia Padilla, his wife, Appellees.
    No. 75-1841.
    District Court of Appeal of Florida, Third District.
    Jan. 4, 1977.

      Pettigrew & Bailey, Miami, for appellant.
    Ronald S. Golub, Miami, for appellees.
    Before BARKDULL, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Defendant-appellant, Planas & Franyie Engineers, Inc., appeal as being excessive an award of $8,500 in attorney’s fees for plaintiff-appellees, Jose and Hortensia Padilla.

Planas & Franyie Engineers, Inc. caused a claim of lien to be filed against the property of Jose and Hortensia Padilla. The Padillas on May 8, 1973 filed a complaint to discharge the mechanic’s lien. Planas & Franyie answered and filed a counterclaim to foreclose the lien and a counterclaim for breach of contract. Following pretrial discovery, the Padillas on June 15, 1974 filed a motion for summary judgment on their complaint to discharge lien and on Planas & Franyie’s counterclaim to foreclose lien on the ground that the lien was not filed within 90 days of the last work completed on the project. The motion came on for hearing, at the conclusion of which the trial judge granted partial summary judgment in favor of the Padillas with respect to the claims concerning the mechanic’s lien. The cause proceeded to a non-jury trial on Planas & Franyie’s counterclaim for breach of contract and a judgment was entered for the Padillas. The Padillas moved for costs and attorney’s fees and after hearing argument of counsel, the trial judge awarded them $4,000 as a reasonable fee. Planas & Fra-nyie appealed and contended the award was excessive. This court agreed and remanded on the authority of Jackson v. Hatch, 288 So.2d 564 (Fla.2d DCA 1974) that the attorney’s fee should be awarded only with respect to the lien foreclosure aspect of the case. Planas & Franye Engineers, Inc. v. Padilla, 310 So.2d 354 (Fla.3d DCA 1975). In accordance with the mandate of this court, the trial judge conducted an additional hearing and took additional testimony concerning a reasonable attorney’s fee for that portion of the services rendered by the Padillas’ attorney with respect to the lien foreclosure. Padillas’ attorney testified that he spent 56 hours prior to the entry of summary judgment on the mechanic’s lien claim for the Padillas. Padillas’ expert opined that the value of the legal services rendered was between $4,500 and $5,000. Planas & Franyie did not present any witnesses. At the conclusion of the hearing, the trial judge awarded $3,500 as a reasonable fee.

There was no abuse of discretion as there was competent substantial evidence to support the amount of the award. Cf. In Re Estate of Lunga, 322 So.2d 560 (Fla.3d DCA 1975).

Affirmed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Judith GIBBONS and Philip Gibbons, Appellants, v. Dock SHOCKLEY et al., Appellees.
    No. 76-39.
    District Court of Appeal of Florida, Third District.
    Jan. 4, 1977.

      Gerald M. Walsh & Associates and David L. Kahn, Fort Lauderdale, for appellants.
    Fowler, White, Burnett, Hurley, Banick & Knight and Thomas Martin, Miami, for appellees.
    Before HENDRY, C. J., PEARSON, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Appellants, who were the plaintiffs in the trial court, appeal a final judgment which limited their recovery against defendant, the tortfeasor’s insurance company, to the policy limit of the policy covering the automobile involved in the injury to the plaintiffs. Plaintiffs claim that the stacking of liability coverage is permissible in the light of legal precedent. See State Farm Mutual Automobile Insurance Company v. Castaneda, 339 So.2d 679 (Fla.3d DCA 1976).

We find no case or legal reasoning which would support plaintiffs’ proposition. The United States Court of Appeals, Fifth Circuit, in a cause arising in the District Court for the Middle District of Florida, considered such a contention in Greer v. Associated Indemnity Corporation, 371 F.2d 29 (5th Cir. 1967), and arrived at the same conclusion. See also 37 A.L.R.3d 1263.

Affirmed.


text:
    Rosa Mae McKNIGHT, Appellant, v. The STATE of Florida, Appellee.
    No. 76-285.
    District Court of Appeal of Florida, Third District.
    Jan. 4, 1977.
    Rehearing Denied Jan. 26, 1977.

      Phillip A. Hubbart, Public Defender, and Paul Morris, Asst. Public Defender, and Thomas G. Murray, Legal Intern, for appel-lee.
    Robert L. Shevin, Atty. Gen., and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Rosa Mae McKnight was charged by information with manslaughter, tried by jury and found guilty of aggravated assault. The trial court adjudicated her guilty of aggravated assault and sentenced her to five years in the state penitentiary.

The facts of the case are uncontroverted. The evidence presented by the defendant herself was corroborated by the testimony of eye witnesses to the incident, and was supported by the evidence provided by other witnesses. The pertinent facts as reflected in the record and briefly stated herein, are that the defendant, Rosa Mae McKnight, had been living together with the victim, Harvey Lee Beekton, in her home for about six weeks. Beekton, whose nickname was “Tarzan,” was a large strong man with a reputation in the community for violence.

On the night in question, Beekton went to a bar where the defendant was having a drink with a woman friend. He beat the defendant with his fists on and about her head, and threw her against the door of the bar. Later that evening, the defendant returned home and found Beekton there. He threatened to seriously beat her. She told Beekton not to “come up” on her, but he continued to approach her, uttering profanities. Defendant again told Beekton not to bother her, that he had already beaten her that night and that she did not want to be beaten again. He began running toward her, she told him to stay back but he kept homing. Defendant, scared and with no place to run, removed a pistol from her pocketbook and fired at Beekton, killing him.

The first question raised by the defendant on this appeal, is whether the trial court erred in denying the defendant’s motion for judgment of acquittal at the close of all of the evidence where the evidence, as a matter of law, established that the defendant acted in self-defense, and where no evidence was presented in contravention of that theory.

As a general rule, when a defendant moves for a directed verdict of acquittal, he admits all facts in evidence adduced and every conclusion favorable to the State fairly and reasonably inferable therefrom; a motion for directed verdict of acquittal should be granted where it is apparent that no legally sufficient evidence has been submitted on which a jury could legally find a verdict of guilty. Brown v. State, 294 So.2d 128 (Fla.3rd DCA 1974); Garmise v. State, 311 So.2d 747, 749 (Fla.3rd DCA 1975). In our opinion, the court erred in failing to grant the motion for directed verdict of acquittal.

The theory of the defense at trial was that Rosa Mae McKnight acted in self-defense. In order to justify a homicide on the ground of self-defense, the situation must be such as to induce a reasonably prudent person that danger was imminent and that there was a real necessity for the taking of life. Darty v. State, 161 So.2d 864, 872-873 (Fla.2nd DCA 1964); Gil v. State, 266 So.2d 43 (Fla.3rd DCA 1972). One who seeks to excuse homicide on the ground of self-defense must show that the killing was necessary at the time and that he did all he reasonably could to avoid it. State v. Coles, 91 So.2d 200 (Fla.1956).

The uncontroverted evidence in the record of this case clearly demonstrates that defendant McKnight acted in self-defense. Therefore, we reverse the conviction and sentence.

In view of this holding, the remaining points on appeal need not be discussed.

Reversed.


text:
    Gaspar ROMERO, Appellant, v. The STATE of Florida, Appellee.
    No. 76-292.
    District Court of Appeal of Florida, Third District.
    Jan. 4, 1977.
    Ellis S. Rubin, Miami, for appellant.
    Robert L. Shevin, Atty. Gen. and Sidney M. Pertnoy, Asst. Atty. Gen., for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

The appellant Gaspar Romero was found guilty by a jury and adjudicated guilty on two counts of murder in the second degree. On this appeal, two points are presented. The first point urges that the defendant was entitled to a mistrial because the prosecution misstated the law on the defense of insanity during voir dire examination of the jury. This point does not present reversible error because the misstatement of the law was immediately corrected by the court and the curative instruction was sufficient to overcome the possibility of prejudice. Under these circumstances, the trial court did not abuse its discretion in denying the mistrial. See Mabery v. State, 303 So.2d 369 (Fla. 3d DCA 1974).

The second point urges that the court erred in finding a six-year old child competent to testify as to the facts of the murders, where the child was present at the shootings. The competency of a child to testify in a given circumstance is a matter which must be left to the discretion of the trial judge, who observes the child and is able to judge its intelligence and ability to comprehend the duty to testify truthfully. The record of the examination of the infant witness fails to show an abuse of discretion concerning the court’s determination that the child was competent to testify. See Bell v. State, 93 So.2d 575 (Fla.1957); and Fernandez v. State, 328 So.2d 508 (Fla. 3d DCA 1976).

Affirmed.


text:
    R. J. BOURNE, natural father, Appellant, v. STATE of Florida, Appellee.
    No. Z-45.
    District Court of Appeal of Florida, First District.
    Jan. 5, 1977.
    Robert G. Kerrigan of Kerrigan & Estess, Pensacola, for appellant.
    Robert L. Shevin, Atty. Gen., and Jeanne Dawes Schwartz, Asst. Atty. Gen., for ap-pellee.
   PER CURIAM.

This is an appeal from an order adjudging appellant R. J. Bourne to be in contempt of court and sentencing him for such contempt. The only basis stated in the order for holding appellant in contempt is the following:

“R. J. Bourne having been asked to leave the court and he having repeatedly refused to do so, he is found to be in contempt of court.”

We have no record of the contempt proceedings. Based upon affidavits of persons other than the circuit judge, it appears that the incident giving rise to the order occurred after a juvenile proceeding involving appellant’s son had been concluded; that the alleged contempt occurred, not in the courtroom, but in either the hall of the courthouse or the judge’s waiting room. In view of this circumstance, on September 14, 1976, we entered an order relinquishing jurisdiction to the court below for a period of thirty (30) days with directions to prepare a supplemental record pursuant to Fla.App. Rule 6.9(c) and (d). We cited in said order Carter v. State, 334 So.2d 109 (3 DCA 1976). We pointed out in said order that the record before us was insufficient for a determination of the question raised by the appeal— whether or not the court lacked jurisdiction to adjudicate appellant in contempt of court. We have had no response from said order.

The order appealed from is insufficient to show that the court below had jurisdiction to adjudge appellant in contempt of court under Fla.R.Crim.P. 3.830 dealing with direct criminal contempt or under Fla.R. Crim.P. 3.840 dealing with indirect criminal contempt or that appellant was afforded due process.

REVERSED.

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


author: HOBSON, Acting Chief Judge.

text:
    Zelma HEATH and Lawrence Heath, her husband, Appellants, v. FIRST BAPTIST CHURCH, a nonprofit Florida Corporation, and Home Insurance Company, a New York Corporation, Appellees.
    No. 76-28.
    District Court of Appeal of Florida, Second District.
    Jan. 5, 1977.

      Gardner Sharpe, Jr. of Billings, Frederick, Wooten & Honeywell, Orlando, for appellants.
    Sidney Parrish and Joe B. Weeks of Troutman, Parrish & Weeks, Winter Park, for appellees.
   HOBSON, Acting Chief Judge.

This is an appeal from a summary judgment entered in favor of the First Baptist Church and its insurance carrier, Home Insurance Corporation.

Appellants Heath filed their complaint against appellees for damages as a result of injuries sustained by Mrs. Heath in a fall at the church. It was adduced during the pendency of this action that Mrs. Heath fell when she tripped over the interior portion of the floor of the church which separated the church from the “Parrish Hall.” The difference in the floor levels between the hall and the church was some 27/s" in height. This difference in height was attributed to the recent construction of the Parrish Hall six months prior to the accident herein.

In her deposition Mrs. Heath stated that she attended church fairly regularly. She also admitted that she knew the step was there, had stumbled on it three or four times before the accident, and had seen others stumble over it. However, appellants asserted that the coloring of the two different floor levels was similar and the lighting conditions present made it difficult for users to ascertain the difference between the two floor levels.

Thereafter the appellees moved for summary judgment and the appellants filed an affidavit of a safety engineering consultant in opposition. Upon hearing on the motion the court entered an order for the appellees finding that Mrs. Heath’s knowledge of the condition was at least equal to that of the appellee church and that no duty existed on the part of the church to protect her or warn her of said condition. The court bottomed its decision on the law as applied in McNulty v. Hurley, 97 So.2d 185 (Fla.1957). We think the decision reached by the lower court was error and we reverse.

Although this case involves an ordinary slip and fall negligence action, several questions remain as to whether the appel-lees here should have been given an opportunity for a full trial. At the outset we would note that while McNulty, supra, has not been expressly overruled, the ratio deci-dendi of that case has been altered in the subsequent decisions of Post v. Lunney, 261 So.2d 146 (Fla.1972) and Wood v. Camp, 284 So.2d 691 (Fla.1973). Both Post and Wood have effectively laid to rest the “mutual benefit” test in assessing whether a person on the land of another is an invitee or something less. The effect of those cases has been the express adoption in Florida of the “invitation test” as stated in 2d Restatement of Torts, § 332. This latter standard provides a more flexible method whereby the focal point is not conveyance of an actual benefit but instead emphasis is directed to the purpose of the person occupying the owner’s land.

The lower court’s reliance on McNulty, supra, although not clear from a reading of the order, seems to focus on the lack of benefit conferred by Mrs. Heath and her corresponding status as a licensee. Such a construction was not proper. Post, supra, Wood, supra.

Further questions also arise in the context of the duty owed, if any, by the appellees and whether Mrs. Heath’s prior knowledge of the condition served to bar her from pursuing this action. In effect, appellees’ argument is twofold. First, they contend that their duty to an invitee was only to warn of a dangerous condition, and since appellant knew of the danger, that duty was satisfied. Second, they argue that by her own knowledge, and seeming lack of attentiveness, Mrs. Heath assumed the risk of the condition, obviating the defendant church’s duty to warn and thereby eliminating any question of negligence. We have recently held that assumption of risk in certain instances merges with comparative negligence and in those instances where reasonable men can differ, the fact finder is entitled to consider all facts and circumstances in order to determine the extent to which the plaintiff may be at fault. Hall v. Holton, 330 So.2d 81 (Fla.2d DCA 1976).

Aside from the question of assumption of risk, there remains the question of whether an occupier of land can ever owe a duty greater than the mere duty to warn of defects unknown to the plaintiff. If there is no such duty, then assumption of risk becomes irrelevant.

The general duty of a landowner to an invitee has been described by this court as:

“the duty to use ordinary care in keeping the premises in a reasonably safe condition, and to give timely notice of latent or concealed perils which are known or should be known to the owner, but which are not known to the plaintiff.” (emphasis supplied)

Waterman v. Graham, 228 So.2d 925 (Fla. 2d DCA 1969); see also Standard Jury Instruction 3.5(f). We think this statement of the rule suggests that in some circumstances the duty may extend beyond mere warning.

To summarize, like Holton, supra, this case presents the question of whether Mrs. Heath’s knowledge of the condition could be characterized as assumption of risk which merges with comparative negligence. Moreover, this case presents the question of whether the duty owed in this case was satisfied when the plaintiff became aware of the defect. Resolution of these issues ultimately depends upon Mrs. Heath’s status as an occupier of the appellee church’s property and the duty owed to her thereby. Since these genuine issues of material fact remain, the summary judgment entered below was improper. Holl v. Talcott, 191 So.2d 40 (Fla.1966).

REVERSED and REMANDED.

GRIMES and SCHEB, JJ., concur.

      . The Restatement states,
      “(1) An invitee is either a public invitee or a business visitor.
      (2) A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public.
      (3) A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealing with the possessor of land.”

      . In Hall v. Holton, 330 So.2d 81 (Fla.2d DCA 1976), this court recognized two distinct types of assumption of risk. We stated as to the meaning of the term,
      "In one sense (sometimes called its ‘primary’ sense), it is an alternate expression for the proposition that defendant was not negligent, i. e., either owed no duty or did not breach the duty owed. In its other sense (sometimes called ‘secondary’), assumption of risk is an affirmative defense to any established breach of duty. In its primary sense, it is accurate to say plaintiff assumed the risk whether or not he was ‘at fault,’ for the truth thereby expressed in alternate terminology is that defendant was not negligent. But in its secondary sense, i. e., as an affirmative defense to an established breach of defendant’s duty it is incorrect to say plaintiff assumed the risk whether or not he was at fault.” Hall, supra, 330 So.2d at 84, quoting Meistrich v. Casino Area Attractions, 31 N.J. 44, 155 A.2d 90 (1959).

      . In discussing this issue, Prosser writes:
      “Likewise, in the usual case, there is no obligation to protect the invitee against dangers which are known to him, or which are so obvious and apparent to him that he may reasonably be expected to discover them. Against such conditions it may normally be expected that the visitor will protect himself. It is for this reason that it is so frequently held that reasonable care requires nothing more than a warning of the danger. But this is certainly not a fixed rule, and all of the circumstances must be taken into account. In any case where the occupier, as a reasonable man, should anticipate an unreasonable risk of harm to the invitee notwithstanding his knowledge, warning, or the obvious nature of the condition, something more in the way of precautions may be required. This is true, for example, where there is reason to expect that the invitee’s attention will be distracted, as by goods on display, or that after lapse of time he may forget the existence of the condition, even though he has discovered it or been warned; or where the condition is one which would not reasonably be expected, and for some reason, such as an arm full of bundles, it may be anticipated that the visitor will not be looking for it. It is true also where the condition is one such as icy steps, which cannot be negotiated with reasonable safety even though the invitee is fully aware of it, and because the premises are held open to him for his use, it is to be expected that he will nevertheless proceed to encounter it. In all such cases the jury may be permitted to find that obviousness, warning or even knowledge is not enough.”
      W. Prosser; Law of Torts 394-95 (4th Ed. 1971).
      Likewise, in 2d Restatement of Torts, § 343A, it is said:
      “Known or obvious dangers

      (1) A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.

        (2) In determining whether the possessor should anticipate harm from a known or obvious danger, the fact that the invitee is entitled to make use of public land, or of the facilities of a public utility, is a factor of importance indicating that the harm should be anticipated.”
      Other comments on this problem may be found at the annotation at 35 A.L.R.3d 230 (1971), and 62 Am.Jur.2d, Premises Liability, §§ 72-73.


author: SCHEB, Judge.

text:
    Jarrell V. HUFFMAN et al., Appellants, v. Neal LITTLE and Lumbermens Mutual Insurance Company, a corporation, Appellees.
    No. 76-34.
    District Court of Appeal of Florida, Second District.
    Jan. 5, 1977.
    Hal P. Dekle, Tallahassee, and Rood, Hapner, Boult & Dekle, Tampa, for appellants.
    George A. McKendree of Miller & McKendree, Tampa, for appellees.
   SCHEB, Judge.

Upon motion of appellants, plaintiffs below, the trial court awarded a new trial. Thereafter, the trial judge, sua sponte, reconsidered his actions and set aside his order and reinstated the judgment in favor of defendants. Plaintiffs appeal, contending the trial judge was without jurisdiction to recall the order granting a new trial. We agree and reverse.

Plaintiffs’ young daughter was injured in an accident they claim was caused by the negligence of the defendant child bicyclist. Plaintiffs sought damages against the defendants for their daughter’s injuries. On November 7, 1975, the jury returned a verdict in favor of defendants and final judgment thereon was rendered November 19, 1975.

On timely motion of the plaintiffs, the trial court, on December 12 (filed December 15), entered an order granting plaintiffs a new trial. Subsequently, upon his own motion, the trial judge noticed counsel for the respective parties that he intended to reconsider his order granting the new trial. On January 2, 1976 (filed January 9), the trial court entered an order setting aside the order previously entered awarding the new trial.

An order granting a new trial confers a substantive right and the order is not interlocutory in nature. Hoffman v. Jackson’s Minit Markets, Inc., 313 So.2d 722 (Fla.1975). Therefore, unlike interlocutory orders it does not remain subject to modification. Cf. Sterling Drug, Inc. v. Wright, 307 So.2d 494 (Fla. 2d DCA 1975). In fact, in the absence of fraud or clerical error, once the motion for a new trial is determined it is not even subject to a motion for rehearing. State v. Burton, 314 So.2d 136 (Fla.1975); Mathis v. Butler, 128 So.2d 142 (Fla. 2d DCA 1961); DePadro v. Moore, 215 So.2d 27 (Fla. 4th DCA 1968). As to effect of motion for new trial or rehearing, see generally, Trawick's Florida Practice and Procedure, 1975, Section 26-1.

Appellant contends that this case is controlled by the provisions of Fla.R.Civ.P. 1.530, which in Subsection (d) provides:

“On Initiative of Court. Not later than ten days after entry of judgment or within the time of ruling on a timely motion for a rehearing or a new trial made by a party, the court of its own initiative may order a rehearing or a new trial for any reason for which it might have granted a rehearing or a new trial on motion of a party.”

Appellant’s position is that the time for sua sponte reconsideration of the order granting new trial is governed by the time periods of Subsection (d). However, in the present case, the court’s actions were not within ten days after entry of judgment or within the time of ruling on the timely motion for new trial. It is unnecessary to reach the question whether this subsection grants the judge a limited time period in which he may reconsider an order granting a new trial. We are unaware of any other rule which permits such a reconsideration.

Having determined that the trial court was without authority to modify its previous order granting a new trial, it is unnecessary for us to pass on the remaining points urged by plaintiffs as grounds for reversal.

Accordingly, the trial court’s order setting aside the previous order granting a new trial and reinstating the final judgment in favor of defendants is vacated and the cause is remanded to the trial court for a new trial.

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

      . In Flood v. Ware, 326 So.2d 46 (Fla.2d DCA 1976), we held that after the appeal time had passed, a judge had no authority to reverse an order by a previous judge awarding a new trial. We were not called upon to decide the question presented in the present case, whether the same judge had such authority before the appeal time had passed.


text:
    James David HARDISON, Appellant, v. STATE of Florida, Appellee.
    Nos. 76-89, 76-355.
    District Court of Appeal of Florida, Second District.
    Jan. 5, 1977.
    Rehearing Denied Jan. 27, 1977.
    Jack 0. Johnson, Public Defender, Bar-tow and Douglas A. Wallace, Asst. Public Defender, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant Hardison was found guilty by a jury of possession of a barbiturate and possession of narcotics paraphernalia. The state called a rebuttal witness whose name it had failed to list in response to appellant’s demand for discovery. Appellant made a timely objection. The court overruled the objection without making an inquiry into the circumstances. The witness then gave testimony which completely refuted a material aspect of appellant’s defense.

The trial court has the discretion to determine whether failure to comply with Fla.R.Crim.P. 3.220 would result in harm or prejudice to the defendant. However, the trial court may exercise its discretion only after it has made an adequate inquiry into the circumstances surrounding the noncompliance. Smith v. State, 319 So.2d 14 (Fla.1975); Richardson v. State, 246 So.2d 771 (Fla.1971). The trial court failed to make such an inquiry. Contrary to the state’s assertion, rebuttal witnesses are not exempt from the operation of the discovery rules. Frazier v. State, 336 So.2d 435 (Fla. 1st DCA 1976).

Since it is the trial court’s duty to determine whether the state’s noncompliance prejudiced the defendant and it failed to do so, the cause must be reversed.

Accordingly, the judgment is reversed and the cause is remanded for a new trial.

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


text:
    Mrs. John W. QUILLINAN, Appellant, v. LEE COUNTY, Florida, a political subdivision of the State of Florida, and First National Bank in Fort Myers, a banking institution, as Executor and Trustee of the Estate of Walter S. Turner, Jr., Appellees.
    No. 76-434.
    District Court of Appeal of Florida, Second District.
    Jan. 7, 1977.
    Archie M. Odom of Farr, Farr, Haymans, Moseley & Odom, Punta Gorda, for appellant.
    Stephen E. Dalton of Pavese, Shields, Garner, Haverfield & Kluttz, Fort Myers, for appellees.
   PER CURIAM.

Appellant/defendant seeks review of a summary judgment in favor of appel-lees/plaintiffs in a quiet title action. The cause of action arose out of a controversy concerning ownership of a portion of a strip of land in Lee County bounded on the southwest by the Gulf of Mexico and on the northeast by a body of water called either a bayou or a pass depending upon whose terminology is accepted. The northwestern boundary is contiguous to appellees’ property. Appellant owns the land across the water to the northeast and contends that the parcel in issue has always been part of her property. Appellees contend that they are entitled to the disputed parcel because it was formed as a part of the lateral accretion to their property.

Based upon appellees’ affidavits the court concluded that the disputed land had been formed in front of appellant’s property by the gradual southeasterly accretion to ap-pellees’ property, as a result of which a pass was left between the parcel in issue and appellant’s land. Given the fact that the land was created in this manner, the judgment would be correct under the authority of Ford v. Turner, 142 So.2d 335 (Fla.2d DCA 1962). Indeed this land would apparently represent a further southeasterly accretion to the property quieted by Mr. Turner in that case.

However appellant submitted an affidavit that the disputed land had been in existence for more than seventeen years. If this is true the land could have hardly developed as an accretion to appellees’ land since the 1958 diagram in Ford v. Turner, supra, shows the furthest point of Mr. Turner’s newly accreted land to be almost a mile to the northwest of the disputed parcel. Moreover the record reflects at least an inference that the body of water may have developed in recent years so as to intersect the property which has always been owned by appellant and her predecessors in title.

Therefore, without expressing any view as to the merits of this controversy, we hold that a material issue of fact exists concerning the ownership of the disputed parcel which cannot be resolved by summary judgment. Fla.R.Civ.P. 1.510.

REVERSED and REMANDED for further proceedings.

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


author: GRIMES, Judge.

text:
    LIFE SCIENCES, INC., Appellant, v. EMERY AIR FREIGHT CORPORATION, Appellee.
    No. 76-882.
    District Court of Appeal of Florida, Second District.
    Jan. 7, 1977.
    Martin E. Rice, Harris, Clark, Green & Piper, St. Petersburg, for appellant.
    Keith E. Rounsaville, Trenam, Simmons, Kemker, Scharf & Barkin, Tampa, for ap-pellee.
   GRIMES, Judge.

This case turns on the validity of a one year property damage claims limitation set forth in a tariff filed by an air freight forwarder with the Civil Aeronautics Board (CAB).

In October of 1971, appellant (Life Sciences) delivered frozen biological specimens to appellee (Emery) for air freight shipment to Rutgers University. En route, the specimens thawed and were destroyed. On December 8, 1971, Emery notified Life Sciences in writing that its claim for the loss was rejected. Life Sciences then filed suit alleging that Emery had negligently permitted the shipment to be destroyed. The first complaint was dismissed without prejudice when Life Sciences’ attorney failed to appear for trial. Life Sciences filed a new complaint more than one year after the date upon which Emery had notified it of the disallowance of the claim but within the period of time permitted by the pertinent Florida limitations statute if it is applicable.

The trial court granted Emery’s motion for summary judgment upon the ground that the cause of action was barred by Rule 120 of Emery’s tariff. This rule, promulgated pursuant to Section 403 of the Federal Aviation Act of 1958, 49 U.S.C. § 1373, states in part:

“A. In the case of shipments destined to points in the United States and Puer-to Rico, the Forwarder shall not be liable in any action brought to enforce a claim . . . unless such action is brought within one (1) year after the date written notice is given to the claimant that the Forwarder has disallowed the claim in whole or in part.”

The first suit was filed within the one year limitations period. Yet, when that suit was dismissed, the time during which it was pending did not toll the limitations period and cannot be deducted from the total lapsed time in determining whether the subsequent complaint was timely filed. Hamilton v. Largo Paint & Decorating, Inc., 335 So.2d 623 (Fla.2d DCA 1976).

Moreover, the provisions of Section 95.03, Florida Statutes (1971), which prohibit the contractual shortening of statutory limita-, tion periods, have no effect upon Rule 120 because the regulation of shipments of goods in interstate commerce has been preempted by federal authority. Hoagland v. Railway Express Agency, 75 So.2d 822 (Fla.1954); Atlantic Coast Line R. R. Co. v. Chase & Co., 109 Fla. 50, 146 So. 658 (1933); Scheibel v. Agwilines, Inc., 156 F.2d 636 (2d Cir. 1946); Lichten v. Eastern Airlines, Inc., 189 F.2d 939 (2d Cir. 1951). Therefore, the validity of this tariff limitation period under federal law is critical.

Life Sciences argues that Rule 120 is invalid because the inclusion of a time limitation in its tariff is not specifically authorized by 49 U.S.C. § 1373. There was originally a split of authority in the federal district courts on this subject. See Aetna Insurance Company v. Bor-Air Freight Co., Inc., 72 Misc.2d 327, 338 N.Y.S.2d 786 (Civ.Ct.1972). The conflict was apparently resolved in Herman v. Northwest Airlines, 222 F.2d 326 (2d Cir. 1955), where it was held that the provisions of the federal statute and the regulations promulgated thereunder relating to the services of the carrier were broad enough to authorize the filing of a tariff containing a shortened limitations period for the prosecution of damage claims against an airline. Although the Herman case involved a claim for personal injuries and the CAB has since made a regulation which prohibits the binding effect of any personal liability time limitation rules contained in a tariff (14 Code of Federal Regulations § 221.38(h)), no CAB ruling, decision or regulation affecting the validity of property damage time limitations in tariffs has been called to our attention. See Robert v. Pan American World Airways, 71 Misc.2d 991, 337 N.Y.S.2d 891 (Sup.Ct.1972).

An American Airlines tariff requiring claims for concealed damages to be reported within fifteen days after delivery of the shipment was upheld in Alco-Gravure Division of Publications Corporation v. American Airlines, 173 F.Supp. 752 (D.Md.1959). The court held that tariffs filed by an air carrier with the CAB are valid until they are rejected or overturned by the Board. Noting that the applicable regulation had been slightly amended since Herman, the court stated that the provision which directed the tariff to include rules relating to the value of the services to be rendered was still broad enough to permit the inclusion of a property damage claim limitations period. More recently, the court in Aetna Insurance Company v. Bor-Air Freight Co., Inc., supra, upheld the validity of a 120-day written property damage claim provision contained in the tariff filed by an air carrier with the CAB.

There have also been a number of cases in which the courts have sustained rules in air carrier tariffs which limit the amount which is recoverable for lost or damaged property. E. g., Furmanik v. Northeast Airlines, Inc., 266 So.2d 352 (Fla.3d DCA 1972); Vogelsang v. Delta Air Lines, Inc., 302 F.2d 709 (2d Cir. 1962); Randolph v. American Airlines, 103 Ohio App. 172, 144 N.E.2d 878 (1956). If an air carrier can validly limit the value of property damage claims to be filed against it, there is all the more reason to uphold a provision which merely limits the time within which a claim shall be pursued. Cf. Herman v. Northwest Airlines, supra.

The tariff filed by Emery constituted part of the contract of carriage between it and its customer, Life Sciences. This tariff “conclusively and exclusively” governed the rights and liabilities of the parties with respect to the shipment. Furmanik v. Northeast Airlines, Inc., supra; Lichten v. Eastern Airlines, Inc., supra. Therefore, Life Sciences’ new complaint was untimely filed.

AFFIRMED.

BOARDMAN, C. J., and SCHEB, J., concur.


text:
    DEPARTMENT OF REVENUE, State of Florida, and J. Ed Straughn, as Executive Director of the Department of Revenue, Appellants, v. Tyrie A. BOYER and Elizabeth G. Boyer, Appellees.
    No. CC-114.
    District Court of Appeal of Florida, First District.
    Jan. 11, 1977.
    Robert L. Shevin, Atty. Gen., and Harold F. X. Purnell, Asst. Atty. Gen., for appellants.
    Tyrie A. Boyer, in pro. per.
   PER CURIAM.

The appellees owned certain property in Marion County which, prior to and including January 1, 1975, had been used for bona fide agricultural operations. The property owners had secured the benefit of the “green belt law” [see: Section 193.461, Florida Statutes (1974)] and, pursuant to the provisions of Section 193.461(3)(b), Florida Statutes (1974), they were entitled to a continuation of this agricultural classification upon the filing of a short form application with the proper authorities. They filed such an application on March 7, 1975, relying upon the provisions of Section 193.-052(2), Florida Statutes (1974) which reads in part as follows:

***** *
“ * * * In order for land to be considered for agricultural zoning under § 193.461, an application for such zoning must be filed on or before April 1 of each year with the [property appraiser] of the county in which such land is located. * * * ft
The County officials refused to recognize the continuation of the agricultural classification because of the provisions of Section 193.461(3)(a), Florida Statutes, enacted in 1974 and effective July 1, 1974, which reads in part as follows:
******
“(3)(a) No lands shall be classified as agricultural lands unless a return is filed on or before March 1 of each year. * * ”
******

The property owners appealed to the Board of Adjustment, which declined them any relief. They thereafter instituted an action in the Circuit Court of Marion County, seeking to have their lands assessed and taxed as agricultural lands for the calendar and tax year of 1975. The action was brought against the proper County officials and the Department of Revenue was permitted to intervene as a party-defendant. Thereafter, there being no disputed issues of fact, the trial court entered a summary final judgment reading in part as follows:

$ $ * ‡ *
“All parties to this cause filed motions for summary judgment or motions which by agreement were treated as motions for summary judgment. The 20 day period provided in Rule 1.510(c) RCP was waived. Upon consideration of the pleadings together with the affidavits duly filed it appears that there is no genuine issue as to any material fact. The unre-futed facts are:
“(a) The plaintiffs are, and at all material times have been, the record title owners of two parcels of contiguous properties located in Marion County, Florida, being the real properties involved in this proceeding and described by the defendant property appraiser as follows:
‘ “22 12 19 360 ACRES. BEG SW COR OF N 3732.59 FT E 996.6 FT N 280.5 FT E 501.6 FT S 920 FT E 3782.12 FT S 305.53 12
and
‘ “22 12 19 25 ACRES S 14.19 CHS OF E 17V2 CHS OF NE Vi OF NW Vi ARREDONDO GRANT’”
“(b) Said properties were used primarily for a bona fide agricultural operation on and prior to January 1, 1975.
“(c) There are, and at all times material to this cause have been, two Florida Statutes pertaining to the filing of applications for agricultural classification of real properties: FS 193.052(2) and F.S. 193.-461(3)(a). Immediately prior to and including the calendar year 1974 both statutes required the filing of applications for agricultural classification prior to April 1 of the year for which such agricultural classification was sought. (F.S. 193.052(2), Florida Statutes 1973; F.S. 193.461(3)(a), Florida Statutes 1973)
“(d) The 1974 legislature, by Chapter 74-234, Laws of Florida, amended F.S. 193.-461(3)(a), as it appears in Florida Statutes 1975, to read:
‘ “No lands shall be classified as agricultural lands unless a return is filed on or before March 1 of each year. * * * ii f
“However, F.S. 193.052(2) was not so amended and continues to read, as found in Florida Statutes 1975:
‘ “ * * * In order for land to be considered for agricultural zoning under s. 193.461, an application for such zoning must be filed on or before April 1 of each year with the [property appraiser] of the county in which such land is located. Such application shall state that said lands on January 1 of that year were used primarily for agricultural purposes.” ’
“(e) Plaintiffs filed their application, on the form provided by the defendant property appraiser, after March 1 of 1975 but prior to April 1 of that year.
“(f) The defendant property appraiser denied plaintiffs’ application for agricultural classification or zoning on the sole ground that same was not timely filed. Plaintiffs timely petitioned the defendant Marion County Tax Board of Adjustment pursuant to the provisions of Florida Statutes 194.015-194.042 which Board denied relief.
“(g) The plaintiffs and the defendant property appraiser agreed that the values of the parcels of property herein involved for the calendar year 1975, if agricultural classification were granted, are: As to the first parcel hereinabove described, $36,510, and as to the second parcel here-inabove described, $1,750. Plaintiffs have paid the Marion County Tax Assessor the amount of the tax which they admit in good faith to be owing, to-wit: the amount of the tax owed based upon said valuations if classified as agricultural.
“Upon consideration, it is
“ORDERED AND ADJUDGED that:
“1. This Court has jurisdiction of this cause and of the parties hereto.
“2. Conflicts in taxing statutes should be resolved in favor of the taxpayer; therefore, plaintiffs’ motion for summary judgment in their favor be and it is hereby granted and the defendant, Honorable Charles H. Fleming, Property Appraiser of Marion County, Florida, is hereby directed to classify plaintiffs’ said properties as agricultural and evaluate same accordingly, for the calendar year 1975.”
******

This appeal ensued by the Department of Revenue; the other defendants did not join in this appeal, therefore they are listed as appellees pursuant to Fla.App. Rule 3.11 a.

We have reviewed the contentions as made by the appellant and find the authorities cited to be good law, but inapplicable to the facts in the instant case. The problem confronting the taxpayers in the instant matter were two statutes providing for an exemption which had conflicting dates. This conflict in the statutes was clearly recognized by the 1976 Legislature, when it enacted Chapter 76-234, Laws of Florida 1976, which straightened out this conflict. In the title to said Chapter the following is found:

* * * * * *
“ * * * amending s. 193.052(2), Florida Statutes, conforming filing date for agricultural assessment with existing language in s. 193.461, Florida Statutes. * * * 1)
******

We hold that a taxpayer should not be penalized for following the terms of an exemption statute, even though there may be another statute in conflict therewith and, therefore, we affirm the action of the trial judge here under review.

Affirmed.

MELVIN, WOODROW M., Acting Chief Associate Judge, and BARKDULL, THOMAS H., Jr., and GRIMES, STEPHEN H., Associate Judges, concur.


text:
    James D. JOHNSON, Appellant, v. The STATE of Florida, Appellee.
    No. 76-238.
    District Court of Appeal of Florida, Third District.
    Jan. 11, 1977.
    Bennett Brummer, Public Defender, and Karen M. Gottlieb, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and William M. Grodnick, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., and BARKDULL and NATHAN, JJ.
   PER CURIAM.

Affirmed. See Bernhardt v. State, 288 So.2d 490 (Fla.1974); Russ v. State, 313 So.2d 758 (Fla.1975); Evans v. State, 197 So.2d 323 (Fla.3d DCA 1967).


text:
    AIR FLORIDA SYSTEM, INC., a Foreign Corporation, Appellant, v. Gladys STAMBLER and Registrar and Transfer Company, a Foreign Corporation, Appellees.
    Nos. 76-1250, 76-1261.
    District Court of Appeal of Florida, Third District.
    Jan. 11, 1977.

      Batchelor, Brodnax, Guthrie & Primm and Michael L. Berger and Timothy J. Armstrong, Miami, for appellant.
    Storace, Hall & Hauser and William S. Bischoff, Miami, for appellees.
    Before HENDRY, C. J., and PEARSON and HAVERFIELD, JJ.
   PER CURIAM.

These causes have come on for hearing after the filing of the record on appeal and the briefs of the parties, and upon the ap-pellees having filed the following confession of error on the hearing date:

“1. That the Appellant’s position that service was never properly perfected on AIR FLORIDA SYSTEM, INC., is correct and that the Default Judgment entered by the Circuit Court was improvidently entered and should be set aside.”

The court, having considered the record and briefs, and finding that the confession is well taken, the order denying motion of appellant, Air Florida System, Inc., to vacate default and judgment is reversed and this cause remanded for further proceedings.

Reversed and remanded.


text:
    Jessie Marie Miller SUHOR, Appellant, v. Charles August SUHOR, Appellee.
    No. AA-299.
    District Court of Appeal of Florida, First District.
    Jan. 14, 1977.
    Steven M. Goldstein, Tallahassee, for appellant.
    Charles August Suhor, pro se.
   PER CURIAM.

The primary issue involved herein is whether the trial court in its final judgment of dissolution of marriage had the authority to order that the marital home of the parties be sold and that the proceeds derived therefrom be used to satisfy specific debts. In its final judgment, the trial court specifically found that inasmuch as appellee had numerous outstanding debts which he could not meet on his current earnings, the only source from which payment of the obligations could be met would be from a sale of the marital residence.

We agree with appellant that, under the circumstances of this case, the trial court acted without authority by ordering a sale of the marital home. We formerly held in Bergh v. Bergh, Fla.App. 1st 1961, 127 So.2d 481, that a trial court may not dispose of jointly owned property in the absence of special circumstances. Specifically, we held,

“In the absence of special equities, an estate by the entireties held by a husband and wife in property acquired by them during marriage is automatically converted into a tenancy in common upon the entry of a decree of divorce. As a general rule, in the absence of an agreement of the parties or appropriate pleadings praying for partition of jointly owned property upon the entry of a decree of divorce, a chancellor has no authority either to partition jointly owned property or effect what might amount to a property settlement between the parties nor dispose of property belonging to them as an incident to the divorce. After the proportionate share of each party has been fixed in jointly owned property and the marriage dissolved, it is then up to the parties themselves to determine whether their property should be partitioned or disposed of in some other manner. In the absence of special circumstances a chancellor is without authority to order that one of the parties transfer his or her property interest to the other.” (127 So.2d at page 487; footnotes deleted)

(See also O’Hara v. O’Hara, Fla.App. 1st 1976, 327 So.2d 242)

Our examination of the record has revealed none of the special circumstances as discussed in the Bergh case. Thus, although the trial court sought, for the best of reasons, to effectuate an equitable settlement, the court was without the authority to do so.

We do not find it necessary to discuss the other issues raised by appellant.

Reversed and remanded for further proceedings consistent herewith.

BOYER, C. J., McCORD, J., and MCDONALD, PARKER LEE, Associate Judge, concur.


author: SMITH, Judge.

text:
    In re ESTATE of Frank KAVCIC. Myrtle T. JONES, Appellant, v. Jean P. HENDRICKSON and Julia P. Love, Appellees.
    No. AA-439.
    District Court of Appeal of Florida, First District.
    Jan. 14, 1977.

      William L. Ross, Jr., New Smyrna Beach, for appellant.
    J. Boyd DeLoach, New Smyrna Beach, for appellees.
   SMITH, Judge.

A will contest. The testator signed his will in the presence of two witnesses, who then signed it in the presence of each other but not in the presence of the testator. For that reason probate was revoked at the instance of heirs at law, and the putative executrix and legatee appeals. The will purports to dispose of both realty and personalty. The testator died April 8, 1976, so the parties’ rights are to be determined under statutes then effective, without regard for subsequently effective amendments to the Florida Probate Code. Ch. 74-106, § 4, ch. 76-220, § 2, Laws of Florida.

Cautious practitioners are accustomed to requiring that attesting witnesses sign the will in the presence of the testator. That formality is now explicitly required by the terms of Section 732.502(1), Florida Statutes (1975), effective January 1, 1976. Florida statutes never previously imposed such a formality for wills of personalty. Not since 1933 had a statute made such an explicit requirement for wills affecting realty. The Probate Act of 1933, effective at the testator’s death in this case, provided:

“Every will, other than a nuncupative will, must be in writing and must be executed as follows:
* # * * * #
“(2) The testator, in the presence of at least two attesting witnesses present at the same time, must sign his will or cause his name to be signed as aforesaid or acknowledge his signature thereto.” Ch. 16103, § 8, Laws of Florida (1933), § 731.-07(2), Florida Statutes (1973).

Before their repeal by the 1933 Probate Act, statutes had provided since 1828:

“Every last will and testament disposing of real estate shall be signed by the testator, or by some other person in his presence, and by his expressed directions, and shall be attested and subscribed in the presence of the said testator by two or more witnesses, or else it shall be utterly void and of non-effect.” Sec. 5460, C.G.L. 1927 (emphasis added).
“All wills of personal property shall be in writing, and signed by the testator or some other person in his presence, and by his express direction.” Sec. 5462, C.G.L. 1927.

Wills satisfying formalities required of wills of personalty, but not satisfying formalities required of wills of realty, were given effect to bequeath personalty but not to devise realty. Brown v. Avery, 63 Fla. 855, 58 So. 34 (1912).

In this case, after watching the testator sign his intended will, the witnesses went to another place and, on the same day, signed the will in the presence of each other. The next day, one of them returned the will in a sealed envelope to the testator, who did not open the envelope but asked the witness to keep the will for him. The circuit court in probate held that section 731.07(2), Florida Statutes (1973), above quoted, must be read in conjunction with Section 731.03(16) and 731.071, Florida Statutes (1973), and that, taken together, the statutes in effect in April 1975 required attesting witnesses to subscribe in the presence of the testator.

Section 731.03(16), Florida Statutes (1973), was enacted in 1955 to provide:

“(16) The words ‘attesting witnesses’ and the words ‘subscribing witnesses’ as used in these statutes shall have the same meaning, and no witness shall be considered an attesting witness or a subscribing witness to a will unless he actually signs his name to such will.” Ch. 29925, Laws of Florida (1955).

The 1955 legislation confirmed the holding in In Re Watkins’ Estate, 75 So.2d 194 (Fla.1954), that a witness who watched the testator sign but then refused to sign himself was not an attesting witness within the meaning of Section 731.07(2).

Section 731.071, also relied on by the circuit court as coloring Section 731.07(2), was enacted in 1973 to provide for self-proof of wills. Chapter 73-8, Laws of Florida. It provided that a properly executed will may be made “self-proved at the time of its execution or at any subsequent date” by acknowledgment by the testator and affidavits by the witnesses, before an appropriate officer, that

“. . . the testator signed the instrument as his last will and that he signed voluntarily (or directed another to sign for him and did so voluntarily) and that each of the witnesses in the presence of the testator, at his request, and in the presence of each other signed the will as a witness and that to the best of the knowledge of each witness the testator was at that time eighteen or more years of age, of sound mind and under no constraint or undue influence.” (Emphasis added.)

No Florida precedent controls the decision in this case. The Supreme Court’s Watkins decision did not hold an attesting witness who subscribes a will must do so in the testator’s presence. Allusions to a witness subscribing or not subscribing in the testator’s presence appear in Vignes v. Weiskopf, 42 So.2d 84 (Fla.1949) and Estate of Watson, 226 So.2d 249 (Fla. 1st DCA 1969), but that fact was not significant in either case. Circuit Judge R. H. Anderson held, in In Re Leo’s Will, 12 Fla.Supp. 61 (Fla. Dade Co.Cir.Ct.1958), that a will should be probated notwithstanding that the attesting witnesses did not subscribe their names until 24 hours after its execution, during which time the testator died. Judge Anderson held:

“It will be observed that our statute (section 731.07, Florida Statutes) does not expressly declare that the attesting witnesses shall sign in the presence of the testator, or indeed that they shall sign at any particular time. For aught that appears to the contrary the will might be perfectly valid if it were attested after the testator’s death.” 12 Fla.Supp. at 63.

We need not determine, as did Judge Anderson, whether subscription by witnesses after the testator’s death comes too late to effectuate the will, for here the witnesses subscribed on the day the will was executed, and the testator held or had an opportunity to hold the completed will for several months before his death. Leo’s Will was decided before enactment of Section 731.071, Florida Statutes (1973), relied on by the circuit judge here and by appellees as imparting new significance to Section 731.07(2).

A respected authority on Florida wills discusses attestation and subscription by witnesses as though there were no difference between the Probate Act of 1933, Section 731.07(2), Florida Statutes (1973), and former Section 5460, C.G.L. 1927, which required witness subscription in the testator’s presence, but only for wills disposing of real estate. Redfearn, Wills and Administration of Estates in Florida § 7.08 (4th ed. 1968). And American Law Reports states categorically:

“Undoubtedly, to be effective the signing by the witnesses must occur in the testator’s conscious presence.” Annot., 75 A.L.R.2d 318, 325 (1961).

Several cases of other jurisdictions are cited in support of the annotator’s statement, but without exception those jurisdictions had statutes explicitly requiring attesting witnesses to subscribe the will in the presence of the testator. E. g., In Re Dow’s Estate, 181 Cal. 106, 183 P. 794 (1919); In Re Offill’s Estate, 96 Cal.App. 640, 274 P. 623 (1929); Griffith’s Executor v. Griffith, 44 Ky. (5 B. Mon.) 511 (1845); Mendell v. Dunbar, 169 Mass. 74, 47 N.E. 402 (1897); Spratt v. Spratt, 76 Mich. 384, 43 N.W. 627 (1889); Walker v. Walker, 67 Miss. 529, 7 So. 491 (1890); Tucker v. Sandidge, 85 Ya. 546, 8 S.E. 650 (1888); Chappell v. Trent, 90 Va. 849, 19 S.E. 314 (1893); McMechen v. McMechen, 17 W.Va. 683, 41 Am.Rep. 682 (1881) (semble), and see also W.Va.Code 1868, ch. 77, § 3, and 12 W.Va.Code Ann. § 41-1-3 (1966); Thornton v. Hulme, 218 Ga. 480, 128 S.E.2d 744 (1962); Nichols v. Rowan, 422 S.W.2d 21 (Tex.Civ.App.1967); and In Re Holden’s Estate, 261 Minn. 527, 113 N.W.2d 87 (1962). In none of those decisions was a statute such as Florida’s Section 731.07(2), Florida Statutes (1973), or the common law held to require subscription of wills by witnesses in the testator’s presence. Indeed, the decisions varied with the particular requirements of the statute applicable. See e. g., the Kentucky Supreme Court’s decision in Griffith’s Executor, supra, holding the Kentucky statute was satisfied when attesting witnesses subscribed in the testator’s presence although they were not present when he executed the will.

The Statute of Frauds in effect in England in 1776 required attesting witnesses to subscribe the will in the presence of the testator if the will was to effect passage of title to realty. But it remained for The Wills Act of 1837 (1 Viet. c. 26) to generally require of all wills that the testator make or acknowledge his signature “in the presence of two or more witnesses present at the same time, and such witnesses shall attest and shall subscribe the will in the presence of the testator . . . .” 3 Jar-man on Wills 2078, 2083 (8th ed. 1951). Thus, excepting only the 1828 Florida statute pertaining to wills of real estate, which was carried forward until 1933 as Section 5460, C.G.L. 1927, nothing in the common law or statutes of Florida until 1976 explicitly required attesting witnesses to subscribe in the presence of the testator. Indeed, until the Probate Act of 1933, witnesses to wills bequeathing personalty were not required at all. See Hays v. Ernst, 32 Fla. 18, 21-22, 13 So. 451, 452 (1893):

“[T]he common-law rule controlled the execution of wills concerning personal property, and, according to this, such wills, when written, required no witness to their execution.”

See also 2 Page on Law of Wills § 19.73 at 169 (Bowe-Parker rev. 1960).

Against this background we consider whether the Probate Act of 1933, Section 731.07(2), Florida Statutes (1973), of its own effect or by implication from the later-enacted Sections 731.03(16) and 731.071, required attesting witnesses to subscribe in the presence of the testator. Plainly, we think, the 1933 Probate Act did not have that purpose. To the contrary, its repeal of that formality in the execution of wills of realty, Section 5460, C.G.L. 1927, indicated a purpose to remove rather than to impose rigid formalities for the making of wills. Neither can it be assumed that the 1955 Legislature intended to add that formality to Section 731.07(2) by enacting Section 731.03(16), which merely required, as did Watkins’ Estate, that witnesses indicate their attestation by subscribing. While under Florida law a witness cannot attest to the testator’s signing unless he was “present at the same time,” the 1955 amendment did not itself require, and cannot be deemed as amending Section 731.-07(2) to require, that witness subscription take place “at the same time” as execution by the testator.

Nor did the 1973 enactment of the “self-proof of will” statute, Section 731.071, Florida Statutes (1973), inferentially amend the law prescribing formalities for the execution of wills. The self-proof statute prescribes an alternative method of proving the authenticity of a will when, following the testator’s death, it is offered into probate. Unless the tail is to wag the dog, statutes concerning methods of proving a will should not be construed as adding formalities for its execution, as to which other proof may be offered of the essential statutory elements. See Hays, supra, 32 Fla. at 24, 13 So. at 453. If we are to attribute a common misimpression to an entire legislative body, perhaps we may indulge the speculation that its members assumed, as did others, that Section 731.071 merely provided a simple method of proving adherence to formalities already required by Section 731.07(2); but the commonality of the supposed misconception does not change the facts. We may as properly assume that the 1973 Legislature, offering an easy method of proving wills at probate, intended to require more direct proof of the witnesses’ attestation, presence and signatures when they subscribed the will after leaving the testator.

We therefore hold that Section 731.-07(2), Florida Statutes (1973), unamended until after the death of the testator in this case, did not invalidate a will which was subscribed out of the testator’s presence by attesting witnesses who were present at the time of its execution. The law has now been changed to require the formality contended for by appellees. Section 732.502(1), Florida Statutes (1975). If before 1975 the legislature thought it necessary to write a precise recipe for the making of testaments, either for the protection of testators or for the convenience of courts in ascertaining the authenticity of wills, the legislature could of course have done so. But we should not by intendment create formalities unknown to the common law which are not explicitly required by legislation.

Appellees’ attack on the will included other grounds not disposed of by the trial judge. The order revoking probate will be reversed and the case remanded for further proceedings consistent with our decision.

REVERSED.

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

      . "Every will must be in writing and executed as follows:
      "(1) The testator must sign his will at the end or acknowledge his signature to It, or some other person in his presence and by his direction must subscribe the testator’s name to It. The execution or acknowledgment must be in the presence of at least two attesting witnesses who must sign in the presence of each other and In the presence of the testator" (emphasis added).

      . “The design of the Legislature, in making this requisition, evidently was, that the testator might have ocular evidence of the identity of the instrument subscribed by the witnesses; and this design has been kept in view by the Courts in fixing the signification of the word ‘presence’.” 1 Jarman, supra, at 138.

      . See Judge Anderson’s opinion in Leo’s Will, 12 Fla.Supp. at 63.


author: MILLS, Judge.

text:
    John L. PEARCE, Appellant, v. Barbara Miller PEARCE, Appellee.
    Nos. CC-398 and CC-413.
    District Court of Appeal of Florida, First District.
    Jan. 14, 1977.

      John L. Pearce, in pro. per.
    Winifred Sheridan Smallwood, Tallahassee, for appellant.
    Jean Laramore, Tallahassee, for appellee.
   MILLS, Judge.

Mr. Pearce appeals from an order denying his petition for reduction of child support and appeals from an order holding him in contempt for failure to pay child support.

Mr. Pearce has failed to clearly show that the trial court abused its discretion in refusing to modify child support. We cannot substitute our judgment for that of the trial court, therefore, the order denying reduction of child support is affirmed.

The contempt order adjudges Mr. Pearce guilty of willful contempt. It fails to make any affirmative finding that he presently has the ability to comply with the child support order and willfully refuses to do so, or that he previously had the ability to comply but divested himself of that ability through his fault or neglect designed to frustrate the intent and purpose of the order. Such is necessary. Faircloth v. Faircloth, 339 So.2d 650, opinion filed November 18, 1976, Supreme Court of Florida.

Accordingly, we remand this order to the trial court to make such affirmative finding if supported by the record or otherwise vacate the order. When this is accomplished, the Clerk is directed to forward a certified copy of the order to this Court, and it will then entertain such further action as the parties to this appeal present to it.

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


author: OTT, Judge.

text:
    Mr. and Mrs. Malcolm SMITH, Appellants, v. Hubert RUTLAND et al., Appellees.
    No. 76-920.
    District Court of Appeal of Florida, Second District.
    Jan. 14, 1977.

      Michael J. Freedman of Levine, Freedman & Hirsch, Tampa, for appellants.
    Oscar Blasingame and Stephen Chumbris of Harrison, Greene, Mann, Rowe & Stanton, St. Petersburg, for appellees.
   OTT, Judge.

Mr. and Mrs. Malcolm Smith, plaintiffs below, appeal from an order vacating a default entered against Hubert Rutland, defendant below. The granting of such relief is a matter within the sound discretion of the court. E.g., Kern v. Kern, 291 So.2d 210 (Fla. 4th DCA 1974). In this instance extensive evidence was presented to the trial court by both parties. Our examination of the record failed to disclose any abuse of discretion by the trial court.

AFFIRMED.

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


text:
    Ursula Bruck KEITH, Appellant, v. Gerald Winston KEITH, Jr., Appellee.
    No. AA-381.
    District Court of Appeal of Florida, First District.
    Jan. 19, 1977.
    Monroe E. McDonald, Sanders, McEwan, Mims & McDonald, Orlando, for appellant.
    John W. Tanner, Daytona Beach, for ap-pellee.
   PER CURIAM.

By this appeal review is sought of a Final Judgment denying reformation of a deed in an action brought by the widow of the grantee named in the deed against the deceased grantee’s son by a prior marriage. We find that under the circumstances of this case as revealed by the record the learned trial judge did not err in denying reformation.

AFFIRMED.

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


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    George A. MARRA, Appellant, v. STATE of Florida, Appellee.
    No. DD-176.
    District Court of Appeal of Florida, First District.
    Jan. 19, 1977.

      Richard W. Ervin, III, Public Defender, and Michael M. Corin, Asst. Public Defender, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., Tallahassee, for appellee.
   SMITH, Judge.

A prisoner in the State’s custody at Union Correctional Institute urges he was subjected to an unreasonable search and seizure in violation of his Fourth Amendment rights, when on a tip but without warrant or exigent circumstances correctional officers required him to open his personal locker, previously locked with a key in appellant’s possession. The locker contained 111 grams of cannabis. Appellant was convicted of its possession. We reject his contention. Although a citizen is not wholly stripped of constitutional protections when imprisoned for crime, search and surveillance necessary for security of the prison must qualify the prisoner’s reasonable expectations of privacy. This prisoner had no immunity from a good faith search for contraband conducted by correctional officers, in his presence, with or without his consent. See Lanza v. New York, 370 U.S. 139, 82 S.Ct. 1218, 8 L.Ed.2d 384 (1962) (dictum); Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). Appellant’s other point on appeal is not meritorious. State v. Lott, 286 So.2d 565 (Fla.1973), cert. denied 417 U.S. 913, 94 S.Ct. 2613, 41 L.Ed.2d 217 (1974).

Affirmed.

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


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    Clifford COUCH, Appellant, v. STATE of Florida, Appellee.
    No. 76-48.
    District Court of Appeal of Florida, Second District.
    Jan. 19, 1977.
    Jack 0. Johnson, Public Defender, and Robert H. Grizzard, II, Asst. Public Defender, Bartow, for appellant.

      Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   OTT, Judge.

Clifford Couch appeals from the revocation of his probation. Appellant was placed on probation after pleading guilty to possession of marijuana. He was subsequently charged with violating various conditions of the probation. A hearing was held on the violations.

The trial court found that appellant had violated the conditions of probation. The court revoked probation and sentenced appellant to two years.

Appellant contends that the trial court erred in revoking probation where the only evidence of violations was hearsay. After examining the record on appeal, we agree that the revocation was based solely upon hearsay evidence and must be reversed.

A probation revocation proceeding is a relatively informal proceeding and hearsay evidence may be received and considered provided some competent and legally admissible evidence is presented upon which the trial judge can base his decision. A revocation cannot be based solely on hearsay. Tuff v. State, 338 So.2d 1335 (Fla.2d DCA 1976); Brown v. State, 338 So.2d 573 (Fla.2d DCA 1976). Cf. Bernhardt v. State, 288 So.2d 490 (Fla.1974).

This reversal does not bar a second revocation hearing based upon another affidavit charging the same violations and competent evidence. See Tuff v. State, supra.

REVERSED.

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


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    Anne Lois BOROWIAK, Appellant, v. Edward Albert BOROWIAK, Appellee.
    No. 76-544.
    District Court of Appeal of Florida, Second District.
    Jan. 19, 1977.
    Ronald J. Hoffer, Hoffer & Sheffey, Zephyrhills, for appellant.
    William F. Brewton, Brewton & Council, Dade City, for appellee.
   PER CURIAM.

Anne Lois Borowiak appeals from a final judgment of dissolution of her marriage to Edward Borowiak which denied her attorney fees.

Appellee/husband petitioned for dissolution of marriage. In the petition, court approval of a previously-executed property settlement agreement was sought. The pre-dissolution agreement which had been prepared by appellee and his counsel provided for the division of various real and personal property. The agreement also provided that nothing in it would be construed to prevent institution of an action for dissolution of marriage subject to the following qualifications:

In any dissolution action, the Wife, provided the Husband is not in default under this Agreement, shall make no claim for alimony, either temporary or permanent, for support for the foster children, either temporary or permanent, or for attorney’s fees, except in accordance with the provisions of this Agreement. (Emphasis added)

A subsequent paragraph of the agreement provided:

Husband agrees to pay attorneys fees for preparation of this instrument and any subsequent dissolution.

Appellant filed an answer and counterclaim in which she sought attorney fees and disposition of certain property not included in the property agreement. She did not attack the property settlement, but, like appellee, she sought dissolution and the court’s approval of the property settlement and prayed for a reasonable attorney’s fee in accordance with the last above quoted paragraph of the property settlement agreement.

The trial court granted the petition for dissolution. In its final judgment the trial court found the property settlement agreement had been executed voluntarily after full disclosure, approved the agreement, and denied appellant attorney fees.

We reverse. Under the agreement appel-lee agreed to pay attorney fees in any subsequent dissolution. In light of the amount of property involved here it would be illogical to assume that appellant would not desire to have her interests represented by counsel during such proceedings. The trial court’s denial of attorney fees was in effect an implicit rejection of that part of the property settlement agreement and was under these circumstances an abuse of discretion. See Byrd v. Byrd, 324 So.2d 659 (Fla.2d DCA 1976). In light of the agreement, appellant’s financial need and appel-lee’s ability to pay were not relevant considerations.

Accordingly, we reverse and remand for further proceedings in accordance with this opinion.

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

      . While the total value of the real and personal property involved is not apparent from the record, the settlement agreement contained a valuation of part of the property totaling in excess of $70,000. In his brief appellee conceded that appellant would have been entitled to attorney fees had she initiated the dissolution.


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    Irwin BRENNER and Daniel Akins, Appellants, v. The STATE of Florida, Appellee.
    No. 76-1356.
    District Court of Appeal of Florida, Third District.
    Jan. 17, 1977.
    Jack R. Nageley, Miami Beach, for appellants.
    Robert L. Shevin, Atty. Gen. and Ira N. Loewy, Asst. Atty. Gen., for appellee.

      Before HENDRY, C. J., and PEARSON and HAVERFIELD, JJ.
   ON PETITION FOR REHEARING

PER CURIAM.

In their petition for rehearing defendant-appellants point out that with respect to their argument that part of the investigation was improperly conducted by the Miami police outside the city limits, most, if not all, the surveillance had taken place outside of the city in contrast to the statement in our opinion that only part of the surveillance was conducted outside the City of Miami limits. Nevertheless, the record reflects that Metro police officers searched defendants’ apartments pursuant to the warrants and effected the actual arrests. Therefore, we adhere to our original holding that the mere surveillance by the City of Miami police officers outside city limits is not sufficient grounds to invalidate the search warrants. Cf. Collins v. State, 143 So.2d 700 (Fla. 2d DCA 1962).

Petition denied.