text:
    Merdis MOORE and Nathan Moore, her husband, Appellants, v. Ralph Thomas GUNNING and Reserve Insurance Company, a foreign corporation, Appellees.
    No. 75-899.
    District Court of Appeal of Florida, Fourth District.
    March 12, 1976.
    Joel T. Daves, III, of Burdick & Daves, West Palm Beach, for appellants.

      Edna L. Caruso of Howell, Kirby, Montgomery, D’Aiuto & Dean, West Palm Beach, for appellees.
   OWEN, Judge.

The issue here is whether an out-of-court oral settlement agreement entered into between litigants in an automobile negligence case is unenforceable by virtue of the provisions of Rule 1.030(d), RCP. The trial court held that this rule did not apply to oral settlement agreements. In our judgment this was error.

Appellants, through their attorney, had made an out-of-court oral settlement of their pending personal injury litigation. Before the settlement papers were signed appellants reneged. Appellees amended their answer to include the defense of accord and satisfaction, and filed a counterclaim alleging the oral settlement agreement and seeking specific performance. On undisputed facts disclosing the oral settlement agreement and appellants’ refusal to consummate it upon tender of the agreed sum, the court denied appellants’ motion for summary judgment on the counterclaim and granted appellees’ motion for summary judgment thereon. This appeal is from that order.

The early case of National Surety Co. v. Willys-Overland, Inc., 103 Fla. 738, 138 So. 24 (1931), upheld a parol settlement agreement relying upon “the general rule” set forth in 12 C.J. 334, 335, “that, in the absence of statutory requirement, no particular form of agreement is essential to the validity of a compromise; and it need not be in writing unless so required by special statute.” (e. s.). National Surety, however, was decided prior to the adoption of any special statute or court rule comparable to our present day Rule 1.030(d) RCP, compelling stipulations to be in writing in order to be effective. See, Coe v. Diener, 159 So.2d 269, 271 (2nd DCA Fla. 1964), and the Historical Note to Rule 1.030 RCP, F.S.A., stating that subdivision (d) derived from 1936 Common Law Rule 6.

The immediate predecessor to present Rule 1.030(d) RCP was Rule 1.5(d) FRCP. The pertinent part, which we here quote, was substantially identical to present Rule 1.030(d) RCP except for the language which we have emphasized:

“Stipulations. No private agreement or consent between parties or their attorneys in respect to the proceedings in a cause shall be of any force before the court, unless the evidence thereof shall be in writing, . . . .” (e. s.).

In the case of Coe v. Diener, supra, decided while Rule 1.5 FRCP was in effect, the court held that an out-of-court oral settlement agreement was enforceable, Rule 1.5 (d) FRCP notwithstanding. The apparent rationale of the Coe decision was that a settlement agreement was not an agreement “in respect to the proceedings” in the cause. The Coe decision has been similarly explained by other writers. However, the Coe decision made no reference to an earlier case, Spencer v. Florida-Georgia Tractor Company, 114 So.2d 466 (3rd DCA Fla. 1959), which affirmed a trial court’s decision not to enforce an out-of-court parol settlement agreement, citing as one of its reasons that Rule 1.5(d) FRCP relieved the trial court from a duty to recognize any stipulation of counsel which was not reduced to writing. It would thus appear that the Spencer court, at least, felt that oral-settlement agreements were “in respect to the proceedings” in the cause and encompassed by Rule 1.5(d) FRCP.

In any event, the apparent conflict between the Coe decision and the earlier Spencer decision is not now of significance because, when Rule 1.030(d) RCP was adopted, the qualifying language, “in respect to the proceedings in a cause,” found in Rule 1.5(d) FRCP, was omitted from Rule 1.030(d) RCP. In light of the restrictive interpretation put on Rule 1.5(d) by the Coe decision, it is logical to assume that the omission of this qualifying language was deliberate in order that the rule be more broadly interpreted so as to include all private agreements or consents between parties or their attorneys. In a recent case directly on point, Alaimo v. Tirone, 297 So.2d 584 (3rd DCA Fla. 1974), Rule 1.-030(d) RCP was held to render unenforceable an out-of-court settlement agreement which had not been subscribed by the party or his attorney against whom the agreement was alleged. In another recent case, Melfi Construction, Inc. v. Coastal Theaters, Inc., 279 So.2d 341 (4th DCA Fla.1973), it was recognized that an out-of-court oral stipulation for settlement was unenforceable for failure to conform with this rule.

The out-of-court oral settlement agreement was unenforceable and the judgment entered in favor of appellees on their counterclaim is reversed and the cause remanded with directions to enter judgment on the counterclaim in favor of appellants.

to settlement agreements. The rule only has reference to permissible procedural modifications between the parties and their attorneys." (e. s.).

CROSS and MAGER, JJ., concur.

      . Rule 1.030. Attorneys.

      “(d) Stipulations. No private agreement or consent between parties or their attorneys shall be of any force unless the evidence thereof is in writing, subscribed by the party or his attorney against whom it is alleged; provided that parol agreements may be made before the court if promptly made a part of the record or incorporated in the stenographic notes of the proceedings and agreements made at depositions which are incorporated in the transcript thereof need not be signed when signing thereof is waived.”

      . See, Massey and Westen, “Civil Procedure”, 20 U.Miami L.Rev. 594, 607-8 (1966), wherein the following analysis of Rule 1.5 was made:
      “The mandate of this rule has reference only to agreements affecting judicial proceedings, and it is inapplicable to settlement agreements between the parties arising out of the cause of action on which the litigation is based. Thus, in Coe v. Diener, the district court found that there was no statute requiring a settlement agreement to be in writing and that Rule 1.5(d) was inapplicable


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    The FLORIDA NATIONAL BANK AT GAINESVILLE, Appellant, v. JOSEPH I. AND EVELYN J. LUBIN FOUNDATION, INC., a New York Corporation, Appellee.
    No. Y-530.
    District Court of Appeal of Florida, First District.
    March 19, 1976.
    Fred H. Kent, Kent, Sears, Durden & Kent, Jacksonville, for appellant.
    Henry L. Gray, Jr., Chandler, O’Neal, Avera, Gray, Lang. & Stripling, Gaines-ville, and J. Lewis Hall, Jr., Hall & Booth, Tallahassee, for appellee.
   PER CURIAM.

Presented here is the identical issue posed in the Florida National Bank at Gainesville v. Alfred and Ann Goldstein Foundation, Inc., Fla.App., 327 So.2d 110, opinion filed February 10, 1976. Upon the authority of Florida National Bank at Gainesville v. Goldstein Foundation, Inc., that portion of the summary final judgment here appealed by which attorney’s fees were fixed and awarded to appellee is reversed.

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


text:
    Robert T. JULIAN, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. AA-53.
    District Court of Appeal of Florida, First District.
    March 22, 1976.
    Richard W. Ervin, III, Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for ap-pellee.
   PER CURIAM.

Upon considering the briefs and the record, we find no reversible error.

Accordingly, the judgment of conviction and sentence are affirmed.

BOYER, C. J., and MILLS and Mc-CORD, JJ., concur.


author: HOBSON, Judge.

text:
    STATE of Florida, Appellant, v. Daniel HUBBARD, Appellee.
    No. 75-1101.
    District Court of Appeal of Florida, Second District.
    March 12, 1976.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellant.
    Jack O. Johnson, Public Defender, and Dennis P. Maloney, Asst. Public Defender, Bartow, for appellee.
   HOBSON, Judge.

This appeal is taken by the State from an order dismissing charges of sale and possession of marijuana against the appel-lee, Daniel Hubbard. Count IV, charging possession, was dismissed after the State stipulated that a prima facie case for possession did not exist. With respect to the remaining three counts, the factual basis on which the appellee moved to dismiss was provided in the depositions of three police officers. According to the depositions the appellee served as a go-between in a “controlled buy” transaction. He brought the three police officers, acting under cover, to his brother’s apartment, where each of the officers purchased a bag of marijuana from the brother. The ap-pellee also quoted the price per bag to the officers. Aside from these two acts, the appellee did not participate in the actual purchase, nor did he receive any compensation from any of the participants. The lower court reluctantly dismissed the three counts of sale solely on the basis of Dent v. State, Fla.App. 1st 1975, 301 So.2d 475, a case factually similar to the one at bar. In the Dent case, the defendant, also a go-between, received compensation from the buyer but not from the seller. The First District reversed his conviction on appeal holding that the evidence was insufficient to support a conviction of sale of drugs. However, this decision was quashed because of its inconsistency with the law in Florida pertaining to aiding and abetting. State v. Dent, Fla.1975, 322 So.2d 543. See Fla.Stat. § 776.011 (1973); State v. Roby, Fla.1971, 246 So.2d 566. The Supreme Court stated in Dent:

“Though he received no compensation from the seller, his active complicity clearly aided and abetted the commission of a criminal offense. In fact, the evidence is undisputed that the sales would not have occurred but for respondent’s arrangements.” 322 So.2d at 544.

Appellee attempts to distinguish the facts in the case at bar from those in the Dent case. He contends that since he received no compensation whatsoever, and merely introduced the police officers to his brother, his participation was de minimus. We do not agree. It is clear from the quoted language in State v. Dent, supra, that the respondent’s compensation by the buyer was not determinative of the Supreme Court’s ruling. We think that appellee’s quotation of the price and his bringing together of the buyers and the seller constitute sufficient involvement to implicate him as a principal in the commission of the offense of sale of marijuana.

Accordingly, we reverse the order of the court below as it pertains to Counts I, II, and III. The State does not contest the court’s ruling as to Count IV, having stipulated to the absence of a prima facie case. Therefore, we affirm the dismissal of Count IV.

AFFIRMED IN PART; REVERSED IN PART.

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

      . State v. Dent, Fla.1975, 322 So.2d 543, had not been published at the time the learned trial judge dismissed the counts.


text:
    Saul SILBER, Appellant (Defendant), v. UNIVERSITY CITY BANK, a Florida Banking Corporation, Appellee (Plaintiff).
    No. AA-41.
    District Court of Appeal of Florida, First District.
    March 22, 1976.
    Lynn M. LoPucki, of LoPucki & Lo-Pucki, Gainesville, for appellant.
    John F. Roscow, III, of Scruggs, Carmichael, Long, Tomlinson, Roscow, Pridgeon, Langdon & Helpling, Gainesville, for ap-pellee.
   PER CURIAM.

This appeal questions the correctness of a summary judgment rendered in favor of appellee.

An examination of the record on appeal conclusively establishes the absence of any genuine triable issue of a material fact and that appellee was entitled to judgment as a matter of law. Accordingly, the judgment appealed is affirmed.

BOYER, C. J., and MILLS and Mc-CORD, JJ., concur.


author: McNULTY, Chief Judge.

text:
    COLUMBUS MILLS, INC., Appellant, v. Raymond A. DIONNE, Appellee.
    No. 75-1160.
    District Court of Appeal of Florida, Second District.
    March 17, 1976.
    Robert G. Jacobson, of Farr, Farr, Hay-mans, Moseley & Odom, Port Charlotte, for appellant.
    Allen J. Levin, Port Charlotte, for appel-lee.
   McNULTY, Chief Judge.

The question we answer this day is whether the circuit court erred in dismissing appellant’s five counterclaims for damages on the ground that such did not meet the $2,500 jurisdictional prerequisite. Sections 26.012(2)(a) and 34.01(1), F.S.1973. We answer in the affirmative and reverse.

Although Rule 1.170(j), R.C.P., requires transfer to the circuit court in the converse situation where the counterclaim exceeds $2,500, no Florida rule nor case law speaks to the case as here where the plaintiff’s original claim exceeds the jurisdictional amount but the counterclaim is less than $2,500. The weight of authority considering the question has followed the rule that where the court has jurisdiction over the plaintiff’s claim, the defendant may assert a counterclaim for damages in a sum less than the court’s ordinary jurisdictional limit. We join that array.

In adopting the view that counterclaims should not be dismissed for failure to meet the jurisdictional amount of the circuit court, we follow the tide of modern procedural reform and the spirit of the Florida Rules of Civil Procedure in promoting judicial economy and removing hyper-technical traps.

In view whereof, the order appealed from should be, and it is hereby, reversed.

BOARDMAN and SCHEB, JJ., concur.

      . See, e. g., Collison v. Thomas (1961), 55 Cal.2d 490, 11 Cal.Rptr. 555, 360 P.2d 51; Watkins v. Cossaboom (Tex.Civ.App., 1947), 204 S.W.2d 56; 21 C.J.S. Courts § 66 (1940). Compare, however, the federal decisions under Federal Rule 13 which seem to indicate that only compulsory counterclaims may be maintained in the same action regardless of the jurisdictional amount. See 6 Wright and Miller, Federal Practice and Procedure, § 1415. These cases have been criticized, however, by responsible commentators. See, e. g., Wright and Miller, supra, § 1423, and 3 Moore, Federal Practice ¶ 13.19 [2] (2d ed. 1974).

      . Florida courts have already spoken to the other side of the coin where the plaintiff’s claim failed to satisfy the jurisdictional prerequisite of the circuit court, thus was filed in the lower court, and defendant’s counterclaim met the prerequisite. In interpreting Rule 1.170(j), R.C.P., it has been held that transfer of both the plaintiff’s original claim and defendant’s counterclaim is required whether or not the counterclaim is designated “compulsory” or “permissive” and notwithstanding that plaintiff’s original claim is without the circuit court’s jurisdiction. See Davis v. Flato (Fla.App.4th, 1968), 210 So.2d 16; State ex rel. Rosenfeld v. Boyer (Fla.App. 1st, 1962), 145 So.2d 547.


text:
    Tamara TIERNEY, a minor, By and Through her mother and next friend, Diana Tierney, and Diana Tierney, Individually, Appellants, v. Tom GOULD and Tom Gouty, partners, d/b/a Sports Buggy Enterprises, Appellees.
    No. 75-957.
    District Court of Appeal of Florida, Third District.
    March 2, 1976.
    Sams, Anderson, Alper & Post and Frank B. Pridgen, Miami, for appellants.
    Pyszka, Kessler, Adams & Solomon, Richard M. Gale, Miami, for appellees.
    Before HAVERFIELD and NATHAN, JJ., and CHARLES CARROLL (Ret), Associate Judge.
   PER CURIAM.

Affirmed on the authority of Gordon v. John Deere Company, Fla.1972, 264 So.2d 419; Barton v. Keyes Company, Fla.App. 1974, 305 So.2d 269; Hoffmann v. Three Thousand South Association, Inc., Fla. App.1975, 318 So.2d 486; and Youngblood v. Citrus Associates of New York Cotton Exchange, Inc., Fla.App.1973, 276 So.2d 505; American Baseball Cap, Inc. v. Duzinski, Fla.App. 1975, 308 So.2d 639. However, the order of dismissal is without prejudice to take further proceedings in the appropriate jurisdiction.

It is so ordered.


author: OWEN, Judge.

text:
    POMPANO BEACH HOTEL CORPORATION d/b/a the International Hotel and Motel, Appellant, v. Ruth HARKER, a widow, et al., Appellees.
    No. 75-837.
    District Court of Appeal of Florida, Fourth District.
    March 5, 1976.

      John P. Wiederhold, of Pomeroy & Betts, Fort Lauderdale, for appellant.
    Frank E. Maloney, Jr., of Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellee Charles S. McAlpine.
   OWEN, Judge.

Defendant/third-party plaintiff appeals an order dismissing with prejudice its third-party complaint against appellee— Charles S. McAlpine.

The plaintiff alleged that it was appellant’s active negligence which was the proximate cause of plaintiff’s injuries. However, appellant was at liberty to place its own characterization upon the events and to maintain a third-party claim alleging active negligence on the part of a third-party defendant and only passive negligence, if any, on its own part as the proximate cause of the plaintiff’s injuries. Central Truck Lines, Inc. v. White Motor Corporation, 316 So.2d 579 (Fla.App.3rd 1975). The third-party complaint here met that test, and appellant’s settlement with the plaintiff under a so-called “Mary Carter Agreement” would not preclude appellant from seeking indemnification by means of the third-party complaint. The order of dismissal was in error and is reversed.

While this disposition of the case renders moot the remaining two points on appeal, we have nonetheless considered them and find both to be without merit.

Reversed and remanded.

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


text:
    Harold Dale STEPHENS, Jr., Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. AA-298.
    District Court of Appeal of Florida, First District.
    March 22, 1976.
    Richard W. Ervin, III, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Andrew W. Lindsey, Asst. Atty. Gen., for ap-pellee.
   PER CURIAM.

Upon considering the briefs and the record, we find no reversible error.

Accordingly, the judgment of conviction and sentence are affirmed.

BOYER, C. J., and MILLS and Mc-CORD, JJ., concur.


text:
    William Gene SNELL, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. AA-315.
    District Court of Appeal of Florida, First District.
    March 22, 1976.
    William Gene Snell, in pro. per.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for ap-pellee.
   PER CURIAM.

Upon considering the briefs and the record, we find no reversible error.

Accordingly, the judgment of conviction and sentence are affirmed.

BOYER, C. J., and MILLS and Mc-CORD, JJ., concur.


author: MORROW, RUSSELL O., Associate Judge.

text:
    Curtis L. O’NEAL and Wilma J. O’Neal, Appellants, v. FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF ORLANDO, a corporation, Appellee.
    No. 75-1066.
    District Court of Appeal of Florida, Fourth District.
    March 5, 1976.
    John W. Bowen, of Rowland & Petrus-ka, Orlando, for appellants.
    Harlan Tuck, of Giles, Hedrick & Robinson, Orlando, for appellee.
   MORROW, RUSSELL O., Associate Judge.

This is an appeal from a summary final judgment for the appellee in a mortgage foreclosure action.

Appellants obtained a mortgage loan from the appellee for the construction of a dwelling house on their property. The construction loan agreement provided for periodic inspections by appellee and that scheduled disbursements of funds could be withheld until defective construction was corrected.

The affidavit of appellant-O’Neal stated that at or before the time he and his wife signed the Procedure and Construction Loan Agreement they were assured by one of appellee’s officers that appellee would make inspections so as to assure that the house would be constructed in a first-class and workmanlike manner and in accordance with the plans and specifications therefor.

Paragraph 14 of said Agreement provides as follows: “Approval of Workmanship and Materials — The Association has the right to disapprove defective work and material and may withhold payments until defects are corrected.”

The appellants contend there was a parol agreement and that the same should not be barred by the Parole Evidence Rule.

The record discloses that the alleged pa-rol agreement would modify said Construction Loan Agreement and place upon the appellee a burden of inspection not embraced or contemplated in the written agreement. 13 Fla.Jur., Evidence, § 383.

By this ruling the other questions raised are rendered moot.

The judgment appealed is affirmed.

OWEN and DOWNEY, JJ., concur.


text:
    COMMUNITY CABS, INC., etc., Appellant, v. JACKSONVILLE PORT AUTHORITY, Appellee.
    No. Y-464.
    District Court of Appeal of Florida, First District.
    March 4, 1976.
    Rehearing Denied April 5, 1976.
    James L. Harrison, Jacksonville, for appellant.
    Harry L. Shorstein, Gen. Counsel, and William A. Davis, Jr., Asst. Gen. Counsel, Jacksonville, for appellee.
   PER CURIAM.

Affirmed. Miami Beach Airline Service, Inc. v. Crandon, 159 Fla. 504, 32 So.2d 153 (1947); State ex rel. Burr v. Jacksonville Terminal Co., 90 Fla. 721, 106 So. 576 (1925).

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


author: GRIMES, Judge.

text:
    Felipe A. VALLS and Elias G. Elias, Appellants, v. ARNOLD INDUSTRIES, INC., et al., Appellees. PEERLESS INVESTMENT CORPORATION, Appellant, v. ARNOLD INDUSTRIES, INC., et al., Appellees.
    Nos. 75-769, 75-770.
    District Court of Appeal of Florida, Second District.
    March 3, 1976.
    Rehearings Denied April 5, 1976.

      William D. Jones, Jr., Jacksonville, for appellants.
    C. Jeffery Arnold, of Arnold, Matheny & Eagan, P. A., Orlando, for appellees.
   GRIMES, Judge.

This case involves a post-condemnation award apportionment dispute between certain fee title landowners and the owners of reserved mineral rights.

The Southwest Florida Water Management District initiated condemnation proceedings to acquire 101.70 acres of land owned by appellants, Vails and Elias, and 80.28 acres of land owned by appellant, ■Peerless Investment Corporation. The ap-pellees were joined as defendants because they owned an undivided 15ieths interest in all oil, gas and other minerals in each of the parcels, together with an easement for ingress and egress and such other rights as required for the development of the minerals. In the course of the proceedings, all parties agreed on the total value of the properties, and a jury was impaneled to return the agreed amount of the compensation awards to be paid by the condemning authority. Thereafter, the court held a hearing for the purpose of determining an apportionment of the award between appellants and appellees.

One of the appellees testified concerning the value of the mineral rights in each parcel. A real estate appraiser gave an opinion of the value of these rights predicated in large part upon ten comparable sales of mineral rights in nearby properties. Ap-pellees also presented evidence of mineral rights leases previously executed by them to an oil company for a dollar per acre per year, though at the time of the suit these leases had expired. There was no testimony of the actual presence of minerals in the land, and appellees admitted that they had never had the land explored for minerals. No one testified to what the parcels were worth as encumbered by the mineral reservations. The land was unimproved. The court ultimately entered a judgment apportioning the condemnation award as follows:

PARCEL 103
Vails and Ellas $48,430.00
Arnold Indüstries, Inc., et al. 6,570.00
PARCEL 417
Peerless Investment Corporation $28,934.00
Arnold Industries, Inc., et al. 5,185.00

The allocation to appellees was in the precise amount of the values stated by the appraiser.

It is well settled that minerals, gas and oil are distinct properties which may be conveyed separately from the surface. Copello v. Hart, Fla.App.1st, 1974, 293 So.2d 734. Where a fee in minerals is severed from the fee in the surface, it is subject to separate taxation. Dickinson v. Davis, Fla. 1969, 224 So.2d 262. Water, oil, minerals and other substances of value which lie beneath the surface are valuable property rights which cannot be divested without due process of law and the payment of just compensation. Koch v. Pinellas County, 6th Cir.Ct.1953, S Fla.Supp. 116. See 2 Nichols on Eminent Domain, § 5.78(3), Revised Third Edition.

However, appellants contend that in the absence of prospecting data or other evidence tending to show the presence of minerals in the land, appellees were not entitled to any portion of the condemnation awards. In support of this position, appellants cite Board of Com’rs of State Inst. v. Tallahassee B. & T. Co., Fla.App.1st, 1958, 100 So.2d 67, in which the court said:

“ . . . To warrant admission of testimony as to the value for purposes other than that to ivhich the land is being put, or to which its use is limited by ordinance at the time of the taking, the landowner must first show: (1) that the property is adaptable to the other use, (2) that it is reasonably probable that it will be put to the other use within the immediate future, or within- a reasonable time, (3) that the market value of the land has been enhanced by the other use for which it is adaptable.” (Emphasis added.)

Our court quoted this proposition of law with approval in Swift & Company v. Housing Authority of Plant City, Fla.App. 2d, 1958, 106 So.2d 616. In the latter case, the owner of both the surface and the min-erais was permitted to offer evidence of phosphate prospecting data as bearing upon the value of the land providing it could be shown that there was a reasonable probability that an existing ordinance against mining the property would be changed.

In essence, appellants argue that since the jury award could not have been enhanced by the value of subsurface mineral interests without evidence that there were valuable minerals under the surface, the court should have applied a similar rule in the apportionment proceedings so as to preclude appellee from a recovery for the value of their mineral rights. We cannot agree with this contention.

In Florida, the compensation for property being appropriated by eminent domain is first determined by a jury. Fla.Stat. § 73.-071 (1975). The verdict must specify the amount to be paid for each parcel, and when severance damages are sought, these amounts shall be separately stated. Fla. Stat. § 73.081 (1975). Where there are conflicting claims to the amount awarded, the court, upon appropriate motion, is authorized to determine the rights of the interested parties with respect to the amount which is awarded for each parcel. Fla. Stat. § 73.101 (1975). At this hearing, the court must consider the value of each interest in the property, but the sum of the several awards to the parties cannot exceed the total amount of the condemnation verdict.

It is well known that severed mineral rights are bought and sold in the market place, and as reflected by this record where accompanied by the right to explore and extract the minerals, they often command a substantial price. True it is that the practical effect of the court’s ruling was to diminish the amount which the appellants received for the taking of their fee interest in the properties, but they are in no position to complain. Their ownership in the property without the mineral rights was not as valuable as if they had full ownership of the surface and the minerals.

It makes no difference that without evidence of the likelihood of minerals in the property, the jury would not have been entitled to consider the speculative possibility that the property might be more valuable because of the existence of minerals. Our Constitution guarantees that no private property shall be taken except for a public purpose and “with full compensation therefor paid to each owner.” Fla.Const. art. X, § 6. Appellees lost their mineral rights by condemnation, and the testimony demonstrated that these severed rights had an ascertainable market value in spite of the fact that no one knew whether the subject parcels contained any minerals. Since there was competent substantial evidence to support the amount of the awards to ap-pellees, the judgment must be

AFFIRMED.

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


text:
    John Fullard BROWN, a/k/a Ronald F. Hickenbottom, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. Z-234.
    District Court of Appeal of Florida, First District.
    March 22, 1976.
    Richard W. Ervin, III, Public Defender, and David J. Busch, Asst. Public Defender, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., and Andrew W. Lindsey, Asst. Atty. Gen., for ap-pellee.
   PER CURIAM.

Upon considering the briefs and the record, we find no reversible error.

Accordingly, the judgment of conviction and sentence are affirmed.

BOYER, C. J., and MILLS and Mc-CORD, JJ., concur.


text:
    SUN INSURANCE OFFICE LIMITED, Appellant, v. Patsy Hearn WHITESIDE, as Executrix of the Estate of J. Harold Whiteside, Deceased, Appellee.
    No. 74-1247.
    District Court of Appeal of Florida, Second District.
    March 10, 1976.
    Rehearing Denied April 7, 1976.
    Clark R. Holmes and Timothy Prugh of Shackleford, Farrior, Stallings & Evans, Tampa, for appellant.
    Richard N. Stem of Gibbons, Tucker, McEwen, Smith, Cofer & Taub, Tampa,, for appellee.
   PER CURIAM.

Affirmed. See Continental Casualty Company v. Gold, Fla.1967, 194 So.2d 272.

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


author: FULLER, RICHARD S., Associate Judge.

text:
    John S. WILLIS and Bernice Willis, his wife, Appellants, v. Odis W. RYALS and Eleanor L. Ryals, his wife, Appellees.
    No. Z-38.
    District Court of Appeal of Florida, First District.
    March 10, 1976.
    Rehearing Denied April 6, 1976.
    Clayton J. M. Adkinson, of Thompson & Adkinson, De Funiak Springs, for appellants.
    Thomas Gerald Holley, Chipley, for ap-pellees.
   FULLER, RICHARD S., Associate Judge.

The pre-trial order specified the issues to be submitted to the trier of fact. The jury, by its verdict, determined that the boundary between appellants’ and appellees’ property was the old fence line and, in addition, awarded appellees $25.00 damages as a result of appellants’ interference therewith.

There is no basis for upsetting the jury’s findings.

The parties admit that an error exists in the property description contained in the Final Judgment. Accordingly, the cause is remanded to the trial court solely for the purpose of correcting this error in the Final Judgment. Florida Rule of Civil Procedure 1.540(a).

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


text:
    Charlotte CARUTHERS, as Administratrix of the Estate of Henry Gene Caruthers, Deceased, Petitioner, v. FIDELITY & CASUALTY COMPANY OF NEW YORK, a corporation, et al., Respondents.
    No. 75-1691.
    District Court of Appeal of Florida, Second District.
    March 19, 1976.
    J. Ron Smith and James Platt, Stanley, Durrance & Wines, Lakeland, for petitioner.
    Edward M. Waller, Jr., Fowler, White, Gillen, Boggs, Villareal & Banker, Tampa, for respondents.
    Marvin B. Woods, Lakeland, for guardian of Natural Children.
   PER CURIAM.

Petition for Writ of Certiorari denied.

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


text:
    SIEGEL TRADING COMPANY, INC., an Illinois Corporation, Appellant, v. CORAL RIDGE NATIONAL BANK, a Banking Association, organized and existing under the laws of the United States of America, Appellee.
    No. 74-812.
    District Court of Appeal of Florida, Fourth District.
    March 12, 1976.

      William H. Kilby, Fort Lauderdale, for appellant.
    Reed A. Bryan, of McCune, Hiaasen, Crum, Ferris & Gardner, Fort Lauderdale, for appellee.
   OWEN, Judge.

Appellant sued appellee-bank, alleging that the bank had converted to its own use certain checks which were the property of appellant. The answer was a general denial, and upon the issues thus made the case was tried before the court without a jury resulting in a judgment adverse to appellant.

Appellant is a commodities broker with its main office in Chicago, Illinois, and a branch office in Fort Lauderdale, Florida. It opened an account with appellee-bank, entitled “The Siegel Trading Company, Inc., Customers’ Segregated Account,” for the deposit of customers’ margin funds. Appellant provided the bank with corporate resolutions and signature cards authorizing-only three officers in Chicago to sign checks on the account.

Subsequently, and without authority from appellant, the manager of appellant’s Fort Lauderdale office, one Harold Gold-stein, opened a checking account with ap-pellee-bank entitled “Samstein, Inc., d/b/a Siegel Trading Co. of Fort Lauderdale,” the authorized signatories being Goldstein and one Ronald Samuelson. Thereafter six customers’ checks payable either to “Siegel Trading Company,” or “Siegel Trading Company, Inc.,” came into the hands of Goldstein. He endorsed four of these checks “Siegel Trading Co. of Fort Lauderdale,” one check “For Deposit Only,” and the remaining check “Traders Associates.” All were deposited in the account which he had opened under the name of “Samstein, Inc., d/b/a Siegel Trading Co. of Fort Lauder-dale,” from which account Goldstein ultimately withdrew the funds.

A’fter a non jury trial, at which only appellant offered evidence, the trial court entered judgment for the bank finding that the bank did not fail to reasonably comply with its own commercial standards in opening the Samstein account and allowing the checks to be deposited to said account, and that, therefore, the bank was exculpated by Fla.Stat. § 673.419(3) (1973). Appellant contends that the defense of payment in good faith and in accordance with reasonable commercial standards as set out in Fla.Stat. § 673.419(3) is an affirmative defense, citing Robert A. Sullivan Construction Company, Inc. v. Wilton Manors National Bank, 290 So.2d 561 (Fla.App.4th 1974) and that such affirmative defense must be set forth by the defendant in its answer or otherwise the same is waived, citing Fink v. Powsner, 108 So.2d 324 (Fla.App.3rd 1958). We agree with these contentions but remind that there is an exception (applicable here) where the issue, even though not raised by the pleadings, is tried by implied consent of the parties. See, Rule 1.190(b) RCP.

Appellant next contends that even if the defense was made an issue, it was error for the court to exculpate appellee-bank under the provisions of Fla.Stat. § 673.419(3) based only upon the court’s written findings that the bank “did not fail to reasonably comply with its own commercial standards.” Appellant’s tripartite argument in support of this point is (1) the court neglected to find that appellee acted in good faith, an essential element of this defense, (2) the court merely found that appellee-bank adhered to its own standards whereas it is the intent of the statute that the bank must act in accordance with reasonable commercial standards applicable to the banking business, and (3) the court’s finding that appellee-bank did not fail to reasonably comply with its own commercial standards fails to require that the appel-lee’s standards be reasonable, contrary to the plain language of the statute which requires compliance with “reasonable commercial standards,” not “reasonable compliance” with commercial standards. We conclude that each of appellant’s several contentions in support of this point are sound and that in order for the court to exculpate appellee under Fla.Stat. § 673.-419(3) it must find that the appellee-bank acted in good faith and in accordance with the reasonable commercial standards applicable to the banking business.

Although appellant also contends that on the evidence in the record it is clear that appellee did not act in accordance with any commercial standards, let alone reasonable commercial standards, we must disagree. While the evidence was not strong, it was certainly susceptible of an inference of conduct in accordance with reasonable commercial standards applicable to the banking business. Whether the trial court, as the trier of fact, would have made such finding we cannot say. We simply conclude that in exculpating appellee under the provisions of Fla.Stat. § 673.419(3), the trial court did not apply the proper criteria. The interests of justice will best be served by reversing the judgment and remanding the cause for a new trial.

REVERSED and REMANDED.

MAGER, J., and DIAMANTIS, GEORGE N., Associate Judge, concur.

      . “Fla.Stat. § 67S.Jfl9 Conversion of instrument; innocent representative (1) An instrument is converted when:
      (a) A drawee to whom it is delivered for acceptance refuses to return it on demand; or
      (b) Any person to whom it is delivered for payment refuses on demand either to pay or to return it; or
      (c) It is paid on a forged indorsement.

      (S) Subject to the provisions of this code concerning restrictive indorsements a representative, including a depositary or collecting bank, who has in good faith and in, accordance with the reasonable commercial standards applicable to the business of such representative dealt with an instrument or its proceeds on behalf of one who was not the true owner is not liable in conversion or otherwise to the true owner beyond the amount of any proceeds remaining in his hands.”


text:
    Robert Bruce EWELL, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. Z-356.
    District Court of Appeal of Florida, First District.
    March 22, 1976.
    Richard W. Ervin, III, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for ap-pellee.
   PER CURIAM.

TT -j , • x j Upon considering the briefs and the record, we find no reversible error.

„ Accordingly, the judgment of conviction and sentence are affirmed.

BOYER, C. J., and MILLS and Mc-CORD, JJ., concur.


text:
    Kenneth HEMMERLE and wife et al., Appellants, v. DeSOTO NATIONAL BANK OF ARCADIA, Florida, Appellee.
    No. 75-1290.
    District Court of Appeal of Florida, Second District.
    March 19, 1976.
    Nancy Little Hoffmann, Druck, Grim-mett, Norman, Weaver & Scherer, Fort Lauderdale, for appellants.
    Kenton H. Haymans and Robert G. Jacobson, Farr, Farr, Haymans, Moseley & Odom, Punta Gorda, for appellee.
   PER CURIAM.

We must affirm. The error herein, if any, was not shown clearly to have prejudiced appellants.

Affirmed.

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


author: MILLS, Judge. RAWLS, Acting Chief Judge

text:
    STATE of Florida, Appellant (State), v. Donald E. HARGIS, Jr., and Richard A. Shuler, Appellees (Defendants).
    No. X-531.
    District Court of Appeal of Florida, First District.
    March 19, 1976.

      Robert L. Shevin, Atty. Gen., Donald K. Rudser, Asst. Atty. Gen., David H. Blud-worth and John Scarola, West Palm Beach, for appellant.
    Gary R. Dunham, Asst. Public Defender, and Larry G. Turner, Goldin & Turner, Gainesville, for appellees.
    Donald E. Hargis, Jr., and Richard A. Shuler, pro se.
   MILLS, Judge.

The state appeals from an order which granted defendants’ motion to compel the state to honor an agreement not to prosecute them, and which dismissed two counts of the information which charged the defendants with crimes they contended were covered by the agreement. The sole issue before us is whether the trial court erred in granting the defendants’ motion, and in dismissing the two counts of the information.

After several contacts between an undercover narcotics agent and the defendants, the defendants offered to sell the agent one ounce of cocaine. The agent requested a sample to test the quality of the cocaine before purchase. The sample was delivered. On the following day and at the time of the purchase, the defendants were arrested and one ounce of cocaine was seized. After their arrest and after their constitutional rights were given, the agent suggested to the defendants that no charge would be made for the delivery of the sample, if they would disclose their source of cocaine. The agent had authority from the state attorney to make the agreement. The defendants identified their source. The trial court was not informed nor consulted. Although neither the agent nor the state attorney made any charges, an assigned state attorney filed an information against the defendants in which he made two charges arising out of the delivery of the sample. These charges were (1) a conspiracy to deliver cocaine, and (2) possession of cocaine. The defendants moved the trial court to compel the state to abide by its promise of immunity. The testimony adduced at the hearing on the motion indicated that the content of the agreement and the witnesses’ recollection and construction of it varied considerably. The trial court granted the motion, and as a result dismissed the two charges arising out of the agreement.

The state contends that there was no immunity agreement, that the agreement was merely not to prosecute for delivery of the sample, and that the agreement could not be pled in bar because it was not approved by the trial court. The defendants contend that there was an agreement not to prosecute, that it covered everything arising out of the delivery of the sample, and that the state should be compelled to honor an agreement made by it.

An immunity agreement, without the consent of the court, may not be pled in bar of adjudication of guilt. Ingram v. Prescott, 111 Fla. 320, 149 So. 369 (1933). The right to immunity is equitable merely, based on the pledge of faith of the public, and does not entitle a defendant to plead 'the promise of immunity as a bar. Cortes v. State, 135 Fla. 589, 185 So. 323 (1938). Under an agreement between a state attorney and a defendant, made without the consent of the court, a defendant may be placed on trial in violation of the agreement. Ingram v. Prescott, supra.

At first, it appears to be reprehensible that the state would not be compelled to honor its agreement not to prosecute the defendants. However, there are dangers in an unrestricted rule which would empower a state attorney alone to grant immunity from crime to an accused. The content of verbal agreements, such as the one before us, will provide a prolific source of litigation. The recollection of the parties will be imperfect. Misconstruction is easy. A careless word, a misconstrued statement, or a distorted expression will erupt into litigation.

In addition, such an agreement would be made undercover and in secrecy which is frowned upon by our society.

The office of state attorney is one of fine tradition. It is also one of great power. We decline to extend this power. If an extension is to be made, it should be done by the legislature.

Reversed and remanded for further appropriate proceedings.

SMITH, J., concurs.

RAWLS, Acting C. J., dissents.

RAWLS, Acting Chief Judge

(dissenting).

The oft quoted statement of Mr. Justice Holmes, viz:

“ ‘If “men must turn square corners when they deal with the Government,” it is hard to see why the Government should not be held to a like standard of rectangular rectitude when dealing with its citizens.’ ”

is most applicable in this cause.

The majority cites Ingram v. Prescott for its statement that: “An immunity agreement, without the consent of the court, may not be pled in bar of adjudication of guilt." (Emphasis supplied.) I am in accord with that conclusion; however, in my opinion it is not here applicable for two reasons: 1) there has been no adjudication of guilt, and 2) the trial court has required the state to live up to its agreement within the rationale of Ingram.

In Ingram the Supreme Court observed that from the earliest times it has been necessary, for the detection and punishment of crime, that the state may contract with a party for his exemption from prosecution with the consent of the court. The Supreme Court then observed that:

“. . . there is ample ground in the record to support the circuit judge’s evident finding that, instead of the state’s attorney having entered into any such agreement as the accused relies on for immunity, the defendant agreed to become a witness, and did become a witness solely on his own responsibility . .”

Cortes v. State is the other case cited for substantiation of the majority opinion. Cortes, the Supreme Court clearly stated:

“The right to immunity from prosecution is equitable merely, based on the pledged faith of the public, and does not entitle the accomplice to plead the promise of immunity as a bar. He is not entitled to discharge as a matter of right, but must abide by the sound discretion of the Court and prosecuting attorney.”

Again, it is emphasized the trial court exercised its sound discretion by enforcing the contract entered into by the authorized agents of the prosecuting attorney.

I would affirm the judgment appealed.

      . Daniell v. Sherrill, 48 So.2d 736 (Fla.1950), citing 48 Harvard Law Review, 1299.

      . Article Y, Section 17, and Article I, Section 15, Florida Constitution (1968), as amended.

      . Wilson v. Renfroe, 91 So.2d 857 (Fla.1956), and State v. Sokol, 208 So.2d 156 (3 Fla. App. 1968).

      . The trial court stated the following: “ . . .it boils down to this, I for' one, am going to say yes, as to holding the State to a high standard of conduct in matters of this kind. This seems to me a very delicate matter, to say the least. We have here a situation of the State’s own making and if you come into the court here with what purports to be an agreement that is so ambiguous that any doubts with respect to that ambiguity I’m going to re.solve in favor of the defendants because it’s my feeling that the State, in a situation such as this, must conduct itself on a plane as tender as Caesar’s wife. I think it’s apparent that the intention of these officers was to get the information from these people. I agree it’s not clear as to whether the information preceded the promise or vice versa, but I .don’t think that matters too much. I thipk we have a situation here that the State itself manufactured and if the defendants in response to it furnished the State with information then I am going to strictly construe it in favor of the defendants. I don’t see how we can do otherwise. I’ll stand by the ruling that I have previously announced and grant the motion with respect to Counts I and II.”

      .One of the officers testified:
      “A. They had already been advised of their rights and we were concerned and felt that from what we found inside the house that it may be possible that it was not their cocaine and it was explained to them that what they said would be off the record, that I had authority to do that by the State Attorney and that it would be held in confidence.
      “Q. As a matter of fact, you told them that even though you had Mirandized them, you could turn the Miranda off and on?
      “A. Yes.
      “Q. You could turn it off where they—
      “A. I explained to them that what they said from that point I wouldn’t testify against them in court.
      “Q. All right. What was explained tp them concerning their prosecution for any delivery or any offense arising out of the delivery of 7 October?
      “A. It was explained that what we do sometimes is flip people to get information, get cases nol prossed, or not made and that we were very concerned about the source of the cocaine and where it came from, how they got it, et cetera.
      “Q. Were they asked to identify their source?
      “A. Yes.
      “Q. Did they, in fact, identify the source pursuant to that conversation ?
      “A. Yes.”

      . I consider the trial court’s order being reviewed as constituting “the consent of the court.”

      . The record in this case amply supports the circuit judge’s finding that the contract of immunity had been entered into.

      . The courts have for many years invoked the doctrine of equitable estoppel in civil cases against the state. In Daniell v. Sherrill, supra, our Supreme Court quoted with approval from United States v. Stinson, 125 F. 907, 910 (7th Cir.), affirmed 197 U.S. 200, 25 S.Ct. 426, 49 L.Ed. 724, the following:
      “The government may not in conscience ask a court of equity to set on foot and inquiry that, under the circumstances of the case, would be an unfair or inequitable inquiry. The substantial consideration underlying the doctrine of estoppel apply to government as well as to individuals.”
      I am of the firm conviction that a citizen’s liberty is far more precious than his property and would unhesitatingly apply the civil rule in criminal proceedings if necessary to compel the state attorney (in this instance the assigned state attorney) to comply with a contract of immunity granted by his agents, especially, when viewed in the light that the state attorney has the unilateral right to prosecute or not prosecute, all without the court’s permission.


text:
    Freddie Lee YOUNG, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    Nos. Y-512, Y-527.
    District Court of Appeal of Florida, First District.
    March 22, 1976.
    Richard W. Ervin, III, Public Defender and Louis G. Carres, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Upon considering the briefs and the record, we find no reversible error.

Accordingly, the judgment of conviction and sentence are affirmed.

BOYER, C. J., and MILLS and Mc-CORD, JJ., concur.


author: SMITH, Judge,

text:
    Carlton B. GOODLETT et al., Appellants, v. LOCKE TIMBER COMPANY, Appellee.
    No. AA-57.
    District Court of Appeal of Florida, First District.
    March 19, 1976.
    T. Carlton Richardson, Washington, D. C., for appellants.
    William J. Mongoven, Chipley, for ap-pellee.
   SMITH, Judge,

The circuit court entered a default judgment quieting appellee’s title to a Washington County tract. On appeal by parties whose putative claims were thus foreclosed, we are asked to find, as in Gmaz v. King, 238 So.2d 511 (Fla.App.2nd 1970), that appellee’s counsel failed to exercise due diligence in locating and notifying appellant Goodlett by constructive service. Sec. 49.041, F.S. All appellants urge that their defaults and the subsequent judgment ought to have been opened up on the showing they made to the trial court.

This case is only plausibly similar to Gmaz. There, plaintiffs’ sworn statement recited that the residence address of Gmaz was unknown because previous attempts to mail notices to Gmaz at an address shown by public records resulted in the mail being returned marked “NO SUCH STREET”. That return advice was held sufficient to put plaintiffs on notice that the public record relied on erroneously listed Gmaz’s address, thus requiring further search which would have revealed the true address in other public records. In this case, while the notice mailed to appellant Goodlett was returned by postal authorities as “NOT DELIVERABLE AS ADDRESSED,” that fact did not necessarily require appellee to doubt that the public record relied on was inaccurate when made. We therefore will not disturb the trial court’s finding that appellee’s counsel effectuated valid constructive service of process on appellant Goodlett through ch. 49, F.S. It appears also that appellant Goodlett and his attorney received actual notice of the proceedings prior to the return date, through notice incontestably given to other defendants. See Gmaz, supra, at n. 2.

Appellants neglected to present to the trial court a factual basis for their claimed meritorious defenses. The trial court therefore acted within its discretion in declining to open up the several defaults and the subsequent final judgment. Rules 1.500(d), 1.540(b), R.C.P.; Metcalf v. Langston, 296 So.2d 81 (Fla.App. 1st 1974), cert. dism., 302 So.2d 414 (Fla. 1974).

AFFIRMED.

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


author: BOYER, Chief Judge.

text:
    Walter Livermore NORTON, Appellant, v. Edna Irene Grabiak NORTON, Appellee.
    No. W-393.
    District Court of Appeal of Florida, First District.
    March 19, 1976.

      John M. Cain, Orlando, for appellant.
    James N. Davis, Foxman, Woerner & Davis, South Daytona, for appellee.
   BOYER, Chief Judge.

Appellant raises several issues for our consideration, all pertaining to a thoroughly litigated dissolution of marriage action. According to appellant, the trial court erred in the type and amount of alimony awarded to appellee, in granting appellee one-half interest in real property solely owned by appellant, in ordering appellee to pay attorney’s fees to appellee’s attorney, and in granting custody of the parties’ three minor children to appellee.

While the testimony was conflicting on virtually every material issue, a few un-contradicted facts did emerge. The parties, married in 1957, produced three children: Brook (14), Adrienne (9), and Bruce (8). Appellant is a medical doctor specializing in internal medicine and, until 1971, did not engage in private practice but engaged in the teaching and research of medicine. His highest income before taxes as a medical school teacher was $23,000. In the latter part of 1971, the parties moved to New Smyrna Beach where appellant set up his private practice. His income substantially increased as did the number of working hours. Except for one weekend every month when appellant arranged for a doctor from the University of Florida to take care of his practice, appellant was on call seven days a week, 24 hours a day.

Appellee acquired her Bachelor of Science degree with majors in mathematics and biology in 1953. She was employed by the U.S. Government and General Electric during the period between 1953 and 1958, but has not since utilized her college degree in any type of employment. She did develop and operate a riding stable in the period between 1961 and 1967, but this venture was not exceedingly profitable. Currently, appellee has no steady source of employment, although the record indicates that appellee has dabbled in the horse-selling business and has also apparently developed a technique for wagering on race horses. She suffers from a heart murmer which, even appellant admits, precludes her from passing a pre-employment physical examination.

After an initial separation and attempted reconciliation, the parties permanently separated in January of 1973. During their separations, appellant provided appellee and the children with $1,000 per month plus additional sums for miscellaneous expenses. The parties, after selling their home in Memphis, Tennessee, and their jointly owned stock, equally divided the proceeds. Appellant utilized his share to purchase some property in New Smyrna Beach in his name solely, although appellee in her deposition claimed that the down payment on the property was paid out of the parties’ joint checking account. In the final judgment of dissolution of marriage, the trial court awarded appellee one-half interest in the real property purchased in appellant’s name.

Appellant initially asserts that the lower court’s award of $800 per month alimony for appellee is excessive. We observe that the award if generous. Were we sitting in the position of the trial judge, we would perhaps have not been so generous. However, the evidence is such that the award does not constitute an abuse of discretion, particularly in view of appel-lee’s physical condition and appellant’s favorable financial situation. We agree that appellant should not be compelled to sustain the tremendous workload which is indicated by the record. A spouse may not be required to work unusually long hours in order to earn an exorbitant income to support familial obligations. However, sub judice, the record reflects that appellant’s working conditions have changed since the entry of the final judgment of dissolution in that appellant has apparently relocated, at least temporarily, in Saudi Arabia. If appellant does return to the world of academia, and thus a lower income, a timely request to the trial court for modification of the alimony award based upon a change of circumstances may well be appropriate.

In a further assault on the alimony award, appellant argues that the trial court should have provided that the alimony be rehabilitative in nature and terminate within a relatively short period of time. We held in Ruhnau v. Ruhnau, Fla.App. 1st 1974, 299 So.2d 61, that permanent alimony may be awarded under appropriate circumstances. It appears that our Ruhnau decision has been substantially followed. We recognize that an award of permanent alimony as distinguished from rehabilitative alimony might well encourage an extension of appellee’s disability, but there has been no showing that the trial judge erred in finding that appellee does suffer from a physical disability. Nor was there a showing below that appellee is malingering, or, if her physical condition improves, that she will malinger. As we noted in Ruhnau, “permanent” does not mean “forever”. Should appellee’s physical condition improve to the point where she is capable of securing employment, application may be made to the trial court for modification of the alimony award.

As to that portion of the final judgment which purported to award to ap-pellee one-half interest in the New Smyrna Beach property solely owned by the husband, the trial court clearly erred. The husband purchased this property with monies derived from the sale of the parties’ Memphis home and jointly owned stocks plus an additional $8,000 which he borrowed from his mother. Appellee did not establish a case of special equity, nor was she entitled to the property as alimony.

Appellant contends that the trial court erred in ordering him to pay $2,000 in attorney’s fees to appellee’s attorney. Apparently, there is no issue as to the amount awarded but solely as to who should pay it. After carefully examining the record, we feel that had the trial judge required appellee to pay part or all of her attorney’s fees, he would have been justified. However, the state of the evidence is such that we cannot say that he abused his discretion in failing to do so.

Finally, appellant challenges the award of custody of the parties’ three minor children to appellee. We have previously noted the conflicts in testimony on virtually every issue in this action. The custody issue is no exception. After examining the record, we are unable to conclude that the trial court abused its discretion in awarding custody of the children to appellee. (See Dinkel v. Dinkel, Sup.Ct. Fla.1975, 322 So.2d 22)

Accordingly, the judgment below is affirmed with the exception of the trial court’s award to appellee of one-half interest in the real property solely owned by appellant.

Affirmed in part, reversed in part.

RAWLS and McCORD, JJ., concur.


text:
    Robert Edward THOMPSON, Appellant, v. Louie L. WAINWRIGHT, Appellee.
    No. X-538.
    District Court of Appeal of Florida, First District.
    March 19, 1976.
    Theorphilus J. Rose of Florida Legal Services, Inc., Prison Project, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., Tallahassee, for appellee.
   ENGLAND, ARTHUR, J., Jr., Associate Judge.

In 1967, appellant was charged by information with two counts of kidnapping and two counts of robbery. As a result of plea bargaining, the state agreed not to prosecute the kidnapping charges in exchange for appellant’s guilty plea to the two counts of robbery. Sentences were duly imposed which will tentatively expire on June 7, 1978. Appellant is presently held in custody by the Department of Offender Rehabilitation, of which appellee is the statutory head.

By this appeal from the trial court’s denial of a writ of habeas corpus, appellant seeks to prevent the Department from applying to him, when he becomes eligible for release, the supervision restrictions of Section 944.291, Florida Statutes (1973). Appellant concedes he is not presently eligible for release from incarceration, and he makes no challenge to either his conviction or sentence.

Appellant argues here that the Department has advised him of its intention to apply Section 944.291 to him at the expiration of his jail term, and that, because this statute did not become effective until after his plea and adjudication of guilt such action will violate Florida’s constitutional ban on ex post facto laws. In order to challenge the Department’s alleged proposed action, appellant further argues that the more traditional role of habeas corpus, to test an unlawful incarceration, has now been expanded and is available to encompass the form of declaratory relief which appellant here seeks.

We do not pass upon appellant’s major argument because we cannot accept his jurisdictional premise. An immediate release from incarceration is not essential to the availability of habeas corpus. The writ is not available, however, to raise hypothetical questions, and there is no genuine issue here which requires a judicial determination at this time. Whether appellee will seek to apply Section 944.291 to appellant at the time of his release is, at present, completely conjectural. We agree with the view of the Fourth District Court of Appeal, which in a comparable situation stated: “Any present attempt at judicial intervention in the administration of the sentence would be premature — particularly since the defendant is apparently not yet entitled to release with or without parole.” Baker v. State, 270 So.2d 424, 426 (4th DCA Fla.1972). If and when the Department attempts to apply Section 944.291 to the defendant, the writ will lie to decide that controversy.

The order of the circuit court denying appellant’s petition for a writ of habeas corpus is affirmed.

McCORD, Acting C. J. and LEE, THOMAS E., Associate Judge, concur.

      . Fla.Const. art. I, Section 10. Appellant’s concern is that the 1967 statute provides for supervised release at the expiration of his sentence, whereas under prior law he would be afforded an unconditional release.

      . Frizzell v. State, 238 So.2d 67 (Fla.1970). In that case, habeas corpus was available to test a sentence which Frizzell alleged had been unlawfully imposed. Here the issue involves the future administration of an admittedly lawful sentence.

      . The record before us nowhere corroborates appellant’s assertion that the Department has communicated to him an intention to apply Section 944.291 at the time of his release. We do not rely on this record deficiency, however, in holding that habeas corpus is not available to test the issue he seeks to have reviewed.

      . See Carnley v. Cochran, 123 So.2d 249 (Fla.1960).


text:
    Franklin Hodges WARNER and Hure Lee Troupe, Appellants, v. The STATE of Florida, Appellee.
    No. 75-1044.
    District Court of Appeal of Florida, Third District.
    March 17, 1976.
    Phillip A. Hubbart, Public Defender and Paul Morris, Asst., Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Ira Loewy, Asst. Atty. Gen., for appellee.
    Before BARKDULL, C. J., and HEN-DRY and HAVERFIELD, JJ.
   PER CURIAM.

Affirmed. See Pickles v. State, Fla. 1975, 313 So.2d 715; Vickers v. State, Fla.App.1974, 303 So.2d 700; Smith v. State, Fla.App.1975, 305 So.2d 868.


text:
    Stacey L. HARNISH, Appellant, v. Cecil CARBONELL and Louise Carbonell, his wife, Appellees.
    No. 75-375.
    District Court of Appeal of Florida, Third District.
    March 2, 1976.
    Edward B. Johnson, Jr., Key West, for appellant.
    Feldman & Eden, Key West, for appel-lees.
    Before PEARSON, HENDRY and NATHAN, JJ.
   PER CURIAM.

This is an appeal from a final judgment granting specific performance and damages to appellees for breach of contract in an action arising out of appellant’s failure to pay rent in accordance with the terms of a lease and his refusal to reassign and retransfer the alcoholic beverage license from the State of Florida, which appellant was to hold in trust during the pendency of the lease on the bar premises to be used as a cocktail lounge, as provided for in a trust agreement entered into by the parties.

In essence the appellant’s defenses to the action at trial were that the trust agreement was for the purpose of circumventing the laws of Florida and that the trust agreement was against public policy, therefore, void and of no effect. On the issue of damages appellant’s defense was that the appellees had failed to mitigate their damages.

The issues were tried non- jury by the Circuit Court of Monroe County and resulted in the findings and judgment in favor of the appellees.

Appellant contends that he was entitled to prevail on these defenses. We cannot agree.

The points relied upon by the appellant for reversal have been carefully considered in the light of the record, briefs and arguments of counsel, and we find no reversible error has been shown. City of Miami Beach v. Fein, Fla.App.1972, 263 So.2d 258; Heredia v. Industrial Supplies, Inc., of Florida, Fla.App.1972, 265 So.2d 709; Mesick v. Loeser, Fla.App.1975, 311 So.2d 132; Peacock v. Carver, Fla.App.1975, 315 So.2d 214. The record discloses the case was fully and fairly tried; that the judgment is supported by the evidence and that the several rulings of the trial court challenged by appellant, did not, on the record and under the law, constitute harmful error.

Affirmed.


text:
    UNITED SERVICES AUTOMOBILE ASSOCIATION, a Foreign Corporation authorized to do business in the State of Florida, Appellant, v. Esther MELLINGER, Appellee.
    No. 75-786.
    District Court of Appeal of Florida, Third District.
    March 17, 1976.
    Corlett, Merritt, Killian & Sikes and Robyn Greene, Miami, for appellant.
    Kuvin, Klingensmith & Lewis, Miami, for appellee.
    Before PEARSON and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed upon authority of Central Mutual Insurance Company v. Espina, Fla. App.1968, 208 So.2d 144; see also Columbia Casualty Co. v. Zimmerman, Fla.1952, 62 So.2d 338.


text:
    George R. WALDECK, Appellant, v. Myron MARKS, Appellee.
    No. 75-131.
    District Court of Appeal of Florida, Third District.
    Feb. 17, 1976.
    Rehearing Denied April 1, 1976.

      Bolles, Goodwin, Ryskamp & Welcher and Arthur M. Simon, Ward, Ward, Straessley & Heath, Miami, for appellant.
    Bretan & Marks, Miami, for appellee.
    Before PEARSON and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The appellant Waldeck was the defendant in the trial court. The appellee/cross-appellant Marks was the plaintiff. Both parties have appealed from a final judgment in partition in which the trial court settled the ownership and equities resulting from their partnership in the development of a tract of land.

Marks is an attorney experienced in the development of income property. Waldeck is a veterinarian. They met when Marks was employed by Waldeck in a dissolution of marriage proceeding. Waldeck owned a parcel of property on which he had an animal hospital. The land is described by the court in its judgment:

“a. The lands described in the next preceding paragraph 2 are approximately 67 feet by 300 feet, on which the improvements consist of an animal hospital on the front portion and an office building on the rear portion; said Tract B is divisible in kind into two parcels: a parcel ‘W\ fronting on South Dixie Highway, and including the animal hospital and adjacent parking facilities, and a parcel ‘M’, including the office building and its adjacent parking facilities.
“Said parcels are legally more particularly described as follows:

Parcel ‘W’:

Tract B, less the East 202 feet thereof in Block 1, TALBOTT ESTATES, Plat Book 60, Page 49; and

Parcel ‘M’:

The East 202 feet of Tract B in Block 1, TALBOTT ESTATES, Plat Book 60, Page 49.

“b. Upon the submitted reports of their respective appraisers, the parties have stipulated to the following valuations for the said Tract B and its two component parcels:

Parcel W’.$ 58,200
Parcel ‘M’ . $127,200
Tract B (Total Value) . $185,400”

Marks and Waldeck agreed to a plan for the development of Waldeck’s property. The plan was not reduced to writing but, pursuant to the plan, Waldeck conveyed a one-half interest in the property to Marks. The consideration for the conveyance was Marks’s agreement to lend his services in the development of the property. Subsequently, an office building was constructed on the vacant portion of the property (parcel M). In addition, alterations of the animal hospital were carried out (parcel W).

Disputes arose between the parties, and Marks instituted a suit for partition. Wal-deck, by answer and counterclaim, alleged fraud and overreaching by Marks. Under the supervision of the court at pretrial conference, the parties stipulated as to the issues to be tried, as follows:

“5. Parties have stipulated and agreed as to the need for partition of the subject property and therefore the Court orders that the real property and improvements as described in the pleadings shall be partitioned pursuant to the appropriate procedures provided by law; the Court shall enter its more specific orders setting the terms of the partition following final hearing in this cause of the remaining issues as set forth below.
“This action shall proceed to trial solely on the issue of distribution of the proceeds derived of the partition of the subject property. The sole remaining factual issue for trial determination is whether there is any money due from either party to the other arising out of the following:
“A. The transfer from Waldeck to Marks on March 15, 1972, of an undivided one-half interest in the subject realty.
“B. Arising out of the construction of the improvements to the property.
“C. Arising out of the partnership in the operation of the Waldeck Plaza facility (rent, maintenance, etc.)
“D. The amount of monies due from Waldeck to the Waldeck partnership (Waldeck Plaza) as and for rents in the business use of the animal hospital and the personal use of the apartment by Waldeck.
“6. The parties have agreed that any amounts due either of them under the above paragraph shall be paid or set off at time of rendition of final judgment herein, or upon completion of partition, whichever occurs later.
“7. The parties have agreed that the use of terms joint venture, partnership, or tenancy in common shall not bind either party as to legal definition or application of such terms in this case.
“8. All other claims and disputes heretofore in issue between the parties, whether by pleading or otherwise, shall be considered withdrawn and dismissed; specifically dismissed are those allegations and claims seeking rescission of the subject deed, accounting and/or claims asserting misrepresentation, fraud, slander of title, invalidity of title in either party, erroneous deed, impropriety or insufficiency in the execution of the deed.”

In an extensive final judgment and a supplemental order in partition, the court partitioned the property and settled the equities between the parties. Waldeck received the parcel upon which his animal hospital stands (parcel W). Marks received the parcel upon which the office building had been constructed (parcel M). The court found that the mortgage indebtedness should be “equitably assumed” in proportion to the appraised value of the parcels and the capital provided by the parties. Waldeck was held to owe Marks $3,346 for an excess contribution by Marks. The court reserved jurisdiction to award attorney’s fees and costs.

Waldeck’s appeal urges that the court erred in awarding fees for services by Marks as a part of his contribution to the partnership capital. The court found capital contributions to be:

“WALDECK
Lands and existing improvements.$36,000
Less rents due and owing.$ 9,000
Net contribution $27,000
MARKS
Services in financing, construction, etc. $25,000
Difference $ 2,000”

It appears that the trial judge began his adjustment of equities by assuming that at the beginning of the partnership, each party was a full one-half owner without obligation to the partnership. This assumption is not supported by the record because Marks’s consideration for his one-half interest had not been paid. It is clear that he received his one-half interest in consideration for his future services in securing the development of the jointly-held property.

No other consideration appears for the deed. Marks suggests that Wal-deck stipulated himself out of court because he agreed to the pretrial order or, at least, did not appeal from that order. We cannot accept this proposition. First, the order, by its terms, does not exclude, but rather includes, the issue of the consideration for the deed to Marks. Second, Marks is an attorney and had represented Waldeck in proceedings subsequent to the divorce. Although there is nothing inherently wrong with an attorney doing business with his client, nevertheless, all transactions between an attorney and his client are closely scrutinized by the court, and the measure of good faith which an attorney must exercise in such transactions is much higher than is required in business dealings where the parties trade at arms length. 7 Am.Jur.2d Attorneys at Law § 94 (1963). The burden is ordinarily upon the attorney to show the fairness of his dealings with his client and also his own good faith in connection therewith. When there is a claim of wrongdoing, there is a heavy burden upon the attorney to show that the transaction was not influenced by the attorney/client relationship. See generally Bolles v. O’Brien, 63 Fla. 342, 59 So. 133 (1912); Halstead v. Florence Citrus Growers’ Ass’n, 104 Fla. 21, 139 So. 132 (1932); Gerlach v. Donnelly, Fla.1957, 98 So.2d 493; and Smyrna Developers, Inc. v. Bornstein, Fla.App.1965, 177 So.2d 16.

We hold that the trial court was in error in considering the parties as joint tenants at the beginning of this litigation. The record supports no conclusion other than one showing that they were partners in the development of Waldeck’s land. As such, Marks was entitled to a capital contribution for one-half of the appraised value, or $18,000 not $25,000, of the property for his services in developing the property. The equities between the parties must be readjusted as well as any judgment for money.

The cross-appeal by Marks urges that he did not get all that was due him as a co-tenant. It is sufficient to say that these points do not present error because of what has already been written.

The final judgment of partition and the supplemental order in partition are reversed and the cause remanded for further proceedings in accordance with the views expressed herein.

Affirmed in part, reversed in part and remanded.

      . * * * sff *
      “B. That the parties hereto shall share in the payment of all sums of money which are due or shall become due by reason of the Note and Mortgage executed by the parties to SECURITY FEDERAL SAYINGS AND LOAN ASSOCIATION, and that they shall share as between themselves in the following manner: Of the principal sum due, in the amount of $85,000, Defendant WALDECK shall pay $7,000 and Plaintiff MARKS shall pay the remainder, each meeting the obligations and paying the installments upon their respective principal obligations, together with interest thereon, as they mature and become due and payable from time to time.”
      There is no assignment of error concerning the apportionment of the mortgage.


text:
    DEPARTMENT OF REVENUE of the State of Florida, Appellant, v. GENERAL DEVELOPMENT CORPORATION, a Delaware Corporation, Appellee.
    No. 74-1350.
    District Court of Appeal of Florida, Third District.
    March 23, 1976.
    Robert L. Shevin, Atty. Gen., and E. Wilson Crump, II, Asst. Atty. Gen., for appellant.
    Paul & Thomson and Susan W. Diner, Miami, for appellee.
    Before BARKDULL, C. J., and PEARSON and NATHAN, JJ.
   PER CURIAM.

Affirmed on the authority of State ex rel. Four-Fifty-Two-Thirty Corp. v. Dickinson, Fla.1975, 322 So.2d 525; Department of Revenue v. GAC Properties, Inc., Fla.App. 1975, 324 So.2d 167.


text:
    Brenda HOLMES, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1089.
    District Court of Appeal of Florida, Third District.
    March 17, 1976.
    Phillip A. Hubbart, Public Defender, Elliot H. Scherker, Asst. Public Defender and Irv Lamel, Legal Intern, for appellant.
    Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., for appel-lee.
    Before BARKDULL, C. J., PEARSON, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See Aron v. Huttoe, Fla. App.1972, 258 So.2d 272, approved by the Supreme Court of Florida at Fla.1972, 265 So.2d 699. See also Saunders v. State, Fla.App.1975, 319 So.2d 118.


text:
    Sally SIMON, Appellant, v. Charles SIMON, Appellee.
    Nos. 75-836 and 75-837.
    District Court of Appeal of Florida, Third District.
    March 23, 1976.
    Heller & Kaplan and Richard Mattaway, Miami, for appellant.
    Jack D. Burris, Miami Beach, for appel-lee.
    Before PEARSON and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed on the authority of Willey v. W. J. Hoggson Corporation, 1925, 89 Fla. 446, 105 So. 126; Simon v. Simon, Fla. App.1974, 293 So.2d 780.


author: DOWNEY, Judge.

text:
    William J. MOSS, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., a Foreign Corporation, et al., Appellees.
    No. 74-1518.
    District Court of Appeal of Florida, Fourth District.
    March 12, 1976.
    Rehearing or Clarification Denied April 6, 1976.
    Edna L. Caruso and Ronnie H. Walker, Howell, Kirby, Montgomery, D’Aiuto & Dean, Orlando, for appellant.
    Richard F. Conrad and James O. Dris-coll, Driscoll, Conrad, Langston, & Layton, P. A., Orlando, for appellees.
   DOWNEY, Judge.

Appellant’s personal injury action was set for trial September 9, 1974. On August 27, 1974, appellant’s counsel filed a motion to withdraw, and he sent appellant a copy of said motion, together with a notice of hearing, by certified mail, return receipt requested. The return receipt bears the following signature: “Willie Moss Modena Pope” and shows the date of delivery as “8-30-74”.

On August 28, 1974, appellant’s counsel sent appellant a notice by certified mail, return receipt requested, advising him that “the court continues with your case and it is presently set for trial 9-9-74. Please contact me immediately.” This return receipt also bears the signature: “Willie Moss Modena Pope”, but it shows no date of delivery.

Appellant did not attend the hearing on the motion to withdraw. The court signed an order granting the motion on September 5, 1974, and the order was filed September 6, 1974. No copy of the order was sent to appellant. On September 9, 1974, the case was called for trial and when neither appellant nor anyone on his behalf appeared, the trial court dismissed the case with prejudice.

On September 17, 1974, appellant, through new counsel, filed a motion under Rules 1.530 and 1.540, RCP, to set aside the order of dismissal, alleging “that he did not have notice that he was to appear in his own behalf to prosecute his action and, in fact, had full confidence that his cause of action was being prosecuted by the attorney who represented him in filing his claim.” Attached to the motion was an affidavit in which appellant states that he received the correspondence from his lawyer notifying him of the trial date and of counsel’s withdrawal at 1:00 p. m., on September 9, 1974, the day the case was called for trial. This appeal followed a denial of said motions.

Of course the trial judge exercises discretion in ruling on 1.540(b) RCP motions, but his exercise of discretion must rest upon facts ascertainable from the record. Imperial Industries, Inc. v. Moore Pipe & Sprinkler Co., Fla.App.1972, 261 So.2d 540. The record here shows without contradiction that appellant thought he had a lawyer handling his case and that he had no notice of the hearing on motion of counsel to withdraw or that he should be at the trial at a certain time.

We do not believe Scott v. Seabreeze Pools, Inc., Fla.App.1974, 300 So.2d 279, is authority for the action of the trial court in this case. There Mr. Scott knew the trial date; he had discussed the case fully with counsel in anticipation of the trial; he was very familiar with litigation and he knew his counsel was withdrawing shortly before trial. We affirmed the trial court’s order of dismissal with prejudice in that case because there was an adequate record to support the trial court’s exercise of discretion. The record in the present case is inadequate.

Accordingly, we reverse the order denying appellant’s motion to vacate the final order of dismissal with prejudice, with directions to reinstate the case for further proceedings.

REVERSED with directions.

MAGER, J., concurs.

OWEN, J., dissents.


author: PER CURIAM. NATHAN, Judge

text:
    J. B., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1121.
    District Court of Appeal of Florida, Third District.
    March 23, 1976.
    Phillip A. Hubbart, Public Defender, and Paul Morris, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and J. Robert Olian, Asst. Atty. Gen., for appel-lee.
    Before PEARSON and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

This appeal is by a juvenile from an adjudication of delinquency, predicated on allegations of the entering without breaking of an automobile, and theft of a battery therefrom. Reversal is sought on a contention of insufficiency of evidence to support the judgment. We have considered the record, briefs and argument and hold that the appellant’s contention of insufficiency of the evidence is without merit.

Affirmed.

NATHAN, Judge

(dissenting).

I respectfully dissent and would reverse. I am of the opinion that evidence connecting the juvenile with the alleged crime was insufficient to overcome the presumption of innocence of the child by proof of guilt beyond a reasonable doubt. State of Florida v. In Interest of V.D.B., Fla.1972, 270 So.2d 6.


text:
    Bernard James BROWN, Appellant, v. The STATE of Florida, Appellee.
    No. 75-119.
    District Court of Appeal of Florida, Third District.
    March 2, 1976.
    Rehearing Denied April 1, 1976.

      Miller & Russell, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Defendant, Bernard Brown, seeks reversal of an order denying his motion to discharge based upon denial of his right to a speedy trial pursuant to RCrP 3.191.

On May 30, 1974 Bernard Brown was arrested for first degree murder. At a hearing held on October 7, Brown’s court appointed counsel orally requested and was granted a continuance. On November 19 Brown filed a motion to dismiss his counsel on the grounds of inadequate representation and conflict. This motion was granted on November 25 and on December 2 new counsel was appointed. Defense counsel on December 13 moved for discharge on the grounds that as of November 26, 180 days had elapsed since defendant’s arrest on May 30 and defendant had not yet been brought to trial. This motion was denied. We affirm.

First, the law is well established that the right to a speedy trial is waived when a defendant’s attorney with or without the knowledge and consent of the defendant requests a continuance. McArthur v. State, Fla.App. 1974, 303 So.2d 359. Contrary to the contention of the defendant, the record in the instant case establishes that his court appointed counsel with the consent of the defendant orally requested and obtained a continuance at the hearing on October 7. Thus, we find defendant waived his right to a speedy trial within 180 days from the date of his initial incarceration on the murder charge. Cf. Eastwood v. Hall, Fla.App.1972, 258 So.2d 269.

Second, defendant having made no demand for speedy trial, his right to discharge initially must be determined under subsections (a)(1) and (e) of RCrP 3.-191, which provides that defendant must be “continuously available for trial” and contemplates that defendant is ready to proceed with his formal defense. See Rubiera v. Dade County ex rel. Benitez, Fla.1974, 305 So.2d 161. Upon the 180 day period passing on November 26, 1974, defendant was without counsel to represent him. New counsel not having been appointed until December 2, it is apparent that when defendant 11 days later (on December 13) filed the instant motion for discharge, there was inadequate opportunity for newly appointed counsel to prepare the case for trial and defendant was not ready to proceed with his formal defense. Cf. State v. Kelley, Fla.App.1975, 322 So.2d 581.

Affirmed.


text:
    Robert H. SLATKO, Appellant, v. Herbert W. VIRGIN, III and Chester E. Whittle, Jr., Appellees.
    No. 75-1050.
    District Court of Appeal of Florida, Third District.
    March 2, 1976.
    Rehearing Denied April 1, 1976.
    Sam Spector, Tallahassee, for appellant.
    Podhurst, Orseck & Parks, Miami, for appellees.
    Before PEARSON, HENDRY and NATHAN, JJ.
   PER CURIAM.

Appellant, plaintiff below, brings this interlocutory appeal to review an order of the trial court granting appellees’, defendants below, motion to strike the complaint as a sham.

On May 1, 1975, appellant brought a complaint against appellees alleging that, pursuant to the terms of a partnership agreement (articles of partnership) and a modification agreement, he was due an accounting of the partnership assets. In the complaint, appellant also sought an injunction asking that the status quo of the partnership be maintained during the pendency of the suit.

A hearing on the request for an injunction, by way of a rule to show cause, was set for noon on Friday, May 9, 1975. On the day before the hearing, appellees filed an answer, affirmative defenses, and a counterclaim. Also, on the day before the hearing, appellees filed a motion for an injunction and a motion to strike the complaint as a sham under Rule 1.150, Florida Rules of Civil Procedure, 30 F.S.A. Both of these motions were noticed for hearing less than 24 hours later.

After the hearing on May 9, 1975, the trial court on May 30, 1975, entered an order granting appellees’ motion to strike the complaint as a sham. The order contains no findings of fact or law and simply provides that appellees’ motion is granted. From the order, appellant brings this interlocutory appeal.

Appellant contends that the trial court manifestly erred, both substantively and procedurally, in striking the complaint as a sham based on the record and in ruling, as a matter of law, that the partnership dissolved upon the retirement of a partner, notwithstanding the written modification agreement to the articles of partnership entered into by the parties.

Appellees contend that appellant has shown no reversible error on appeal nor can any reversible error be shown because the transcript of the testimony at the hearing on their motion to strike is not before this court and the order on appeal was bottomed upon such testimony-

A motion to strike a pleading for sham is controlled by Rule 1.150, Florida Rules of Civil Procedure, 30 F.S.A., derived from former Rule 1.14, Florida Rules of Civil Procedure, 1954, which reads in pertinent part as follows:

“(a) Motion to Strike. If a party deems any pleading or part thereof filed by another party to be a sham, he may move to strike said pleading or part thereof before the cause is set for trial and the court shall hear said motion, taking evidence of the respective parties, and if the motion is sustained, the pleading to which the motion is directed shall be stricken. Default and summary judgment on the merits may be entered in the discretion of the court or the court may permit additional pleadings to be filed for good cause shown.”

Pursuant to this rule and its predecessor, it has been held that in order to justify the striking of a pleading for being sham or false, it must be so undoubtedly false as not to be subject to a genuine issue of fact. In other words, a pleading may be stricken as a sham only where it is shown to be palpably or inherently false. A hearing on a motion to strike is not a hearing to try the issues but to determine whether there are any genuine issues to be tried. Meadows v. Edwards, Fla.1955, 82 So.2d 733; Guaranty Life Ins. Co. of Florida v. Hall Bros. Press, 138 Fla. 176, 189 So. 243; Rhea v. Hackney, 117 Fla. 62, 157 So. 190; Sapienza v. Karland, Inc., Fla.App.1963, 154 So.2d 204, and see 25 Fla.Jur., Pleadings §§ 33 and 133.

Applying the principles stated above to the appeal sub judice, we hold that the trial court erred in granting appel-lees’ motion to strike the complaint as a sham. Our examination of the record does not reveal that the falsity of appellant’s complaint clearly and indisputably appeared or that it was a mere pretense set up in bad faith and without color of fact and, therefore, subject to the summary treatment of being stricken as a sham. However, we express no opinion as to the correct ultimate outcome of the matter.

We have considered the record, all points in the briefs and arguments of counsel in the light of the controlling principles of law, and have concluded that reversible error has been demonstrated. Therefore, for the reasons stated and upon the authorities cited, the order appealed is reversed.

Reversed.


text:
    JAMES D. O’DONNELL & CO., INC., Appellant, v. COMMUNITY NATIONAL BANK & TRUST COMPANY OF BAL HARBOR, Florida, Appellee.
    Nos. 75-662, 76-77.
    District Court of Appeal of Florida, Third District.
    March 23, 1976.
    Bruckner, Greene & Manas, Miami, for appellant.

      Therrel, Baisden, Peterson, Stanton & Stillman, Miami, for appellee.
    Before BARKDULL, C. J., and HAV-ERFIELD and NATHAN, JJ.
   PER CURIAM.

Affirmed. See: Sutton v. Crane, Fla. App.1958, 101 So.2d 823; Ramel v. Chasebrook Construction Company, Fla. App.1961, 135 So.2d 876; Prestress Erectors, Inc. v. James Talcott, Inc., Fla.App. 1968, 213 So.2d 296; § 679.317, Fla.Stat.


text:
    Guy WEESE, Appellant, v. Frances WEESE, Appellee.
    No. 75-765.
    District Court of Appeal of Florida, Third District.
    March 17, 1976.
    Guy Weese, in pro. per.
    Nachwalter, Christie & Falk and Steven Kronenberg, Miami, for appellee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Affirmed. See Reback v. Reback, Fla. App.1974, 296 So.2d 541; Schwartz v. Schwartz, Fla.App.1974, 297 So.2d 117; Lash v. Lash, Fla.App.1975, 307 So.2d 241; Escobar v. Escobar, Fla.App.1974, 300 So. 2d 702; Pollak v. Pollak, Fla.App.1973, 282 So.2d 30; Mertz v. Mertz, Fla.App.1973, 287 So.2d 691 and Ginsberg v. Ginsberg, Fla.App.1960, 122 So.2d 30.


text:
    Kent MURRAY, Appellant, v. STATE of Florida, Appellee.
    No. 74-74.
    District Court of Appeal of Florida, Fourth District.
    March 5, 1976.
    Rehearing Denied April 9, 1976.

      Nelson E. Bailey, of Bailey & Friedrich, and Edward W. Starr, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Basil S. Diamond, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

An information was filed charging appellant with manslaughter under former Section 782.07, F.S., arising out of his alleged “act, procurement or culpable negligence” in operating a motor vehicle in “such a negligent, careless and reckless manner” as to cause a collision resulting in injuries and death to another. In addition to instructing the jury on the crime of manslaughter by culpable negligence, the trial court also instructed the jury on culpable negligence under former Section 784.05, F.S., as a lesser included offense to manslaughter. The appellant contends that this was error and we agree.

Manslaughter by culpable negligence, a felony, contemplates personal injury resulting in death whereas culpable negligence, a misdemeanor, contemplates personal injury not resulting in death. Thus, the only distinguishing feature between the two statutorily defined offenses, besides punishment, is whether or not the victim died. See, for example, Kelly v. State, 281 So.2d 594 (Fla.App. 4th 1973); Mills v. Cone Brothers Contracting Company, 265 So.2d 739 (Fla.App. 2d 1972). In the instant case the act giving rise to appellant’s conviction for culpable negligence resulted in death.

In light of the foregoing it is apparent that the misdemeanor of culpable negligence (as formerly defined) was neither a necessarily included lesser offense (within the major offense of manslaughter) nor a lesser included offense by virtue of the pleadings and proof (because of the death of the victim). Brown v. State, 206 So.2d 377 (Fla.1968); Gilford v. State, 313 So.2d 729 (Fla.1975). Therefore the instruction on culpable negligence, having no basis in law and in fact, was erroneous.

Accordingly, the judgment of conviction based upon such erroneous instruction is void and set aside and the cause remanded to the trial court for such other proceedings as may be consistent herewith. Cf. Greene v. City of Gulfport, 103 So.2d 115 (Fla.1958); Johnson v. State, 226 So.2d 884 (Fla.App. 2d 1969); Causey v. State, 307 So.2d 197 (Fla.App. 2d 1975).

REVERSED AND REMANDED.

WALDEN, C. J., MAGER, J., and TURNER, W. ROGERS, Associate Judge, concur.

      . Sec. 782.07, F.S.1973, provides: “The hill-ing of a human being by the act, procurement or culpable negligence of another, in cases where such killing shall not be justifiable or excusable homicide nor murder, according to the provisions of this chapter, shall be deemed manslaughter and shall constitute a felony of the second degree, punishable as provided in § 775.082, § 775.083, or § 775.084.”

      . Sec. 784.05, F.S.1973, provides: “Whoever through culpable negligence, or a reckless disregard for the safety of others inflicts any personal injury or injuries upon another, not resulting in death, shall be guilty of a misdemeanor of the first degree, punishable as provided in § 775.082 or § 775.083.”

      . The trial court could have instructed the jury on aggrevated assault but no request therefor or objection to its omission was made by appellant. McCullers v. State, 206 So.2d 30 (Fla.App.4th 1968) ; Appell v. State, 250 So.2d 318 (Fla.App.4th 1971).

      . It is unnecessary to consider the other issues raised by the appellant in view of the conclusion reached herein.