text:
    GULFSTAR, INC., Vincent S. Lazzara and Elizabeth Lazzara, Appellants, v. BORG-WARNER ACCEPTANCE CORP., a Delaware Corporation, Appellee.
    No. 77-1696.
    District Court of Appeal of Florida, Third District.
    June 27, 1978.
    Rehearing Denied July 28, 1978.
    Arky, Freed, Stearns, Watson & Greer and Thomas A. Gribbin, Miami, for appellants.
    Smathers & Thompson and James W. Crabtree, Miami, for appellee.
    Before HAVERFIELD, C. J., BARK-DULL, J., and PARKER, J. GWYNN (Ret.), Associate Judge.
   PER CURIAM.

Gulfstar, Inc., and others (appellants) appeal a final judgment entered upon a jury verdict assessing damages of $257,323.54 for breach of a contract of guaranty.

Gulfstar is a boat manufacturer that was selling boats to Underwood Marine. Borg-Warner loaned Underwood money to pay Gulfstar, who guaranteed the repayments by Underwood to Borg-Warner. Five boats were sold by Underwood “out-of-trust” , who received the proceeds from the sales and did not pay Borg-Warner. Borg-Warner sued Gulfstar on its guaranty for these amounts.

The financing agreement contained specific previsions regarding repayment. The principal amount was due ninety days after sale or from the date of the loan, whichever was earlier. Upon a payment of 10% each time, it could twice be extended for sixty-day periods. Borg-Warner did not require compliance with these provisions but, instead, relaxed the repayment requirements. Borg-Warner contended that Gulfstar was aware of the alternatives and consented by failing to object and continuing to perform.

Borg-Warner also filed a claim for conspiracy, upon which the trial court directed a verdict for Gulfstar. After the close of the evidence, the trial court permitted Borg-Warner to amend its complaint to allege an affirmative defense of waiver, i. e., that Gulfstar waived its right to have Borg-Warner perform according to the contract. The evidence adduced in support of the conspiracy claim was utilized in support of the waiver claim (to show Gulfstar’s knowledge of the change in collection). On special verdicts, the jury found for Gulfstar on the complaint, since Borg-Warner did not require strict compliance with the contract, but found Gulfstar had waived objection to this non-performance.

The appellants contend the trial court abused its discretion in permitting the amendment to the complaint, because the issue was not tried by consent and Gulfstar had no opportunity to defend against the claim of waiver. They also contend the trial court incorrectly entered final judgment, because there was no substantial competent evidence to support the finding of waiver.

We affirm. First, the trial court did not abuse its discretion in permitting Borg-Warner to amend the complaint, because one of the issues tried was that * * * Gulfstar knew of and accepted the modifications extended to Underwood by giving them more time”. Gulfstar did not suggest actual prejudice nor request a continuance after the amendment was permitted. Raggs v. Gouse, 156 So.2d 882 (Fla. 2d DCA 1963); McSwiggan v. Edson, 186 So.2d 13 (Fla.1966); Strickland v. St. Petersburg Auto Auction, Inc., 243 So.2d 603 (Fla. 4th DCA 1971); Fla.R.Civ.P. 1.190(b). Secondly, the trial court correctly entered final judgment because there was substantial competent evidence to support the jury’s finding that Gulfstar waived objection to Borg-Warner’s failure to require strict performance of the contract, because Gulfstar knew of the readjustment in repayment terms. Davis v. Evans, 132 So.2d 476 (Fla. 1st DCA 1961); Richards v. Dodge, 150 So.2d 477 (Fla. 2d DCA 1963).

Therefore, the final judgment under review be and the same is hereby affirmed.

Affirmed.

      . Meaning Underwood sold vessels that were financed under the agreement, called a floor plan agreement.


source: Caselaw Access Project

author: RYDER, Judge.

license: Public Domain

text:
    P. J. S., a child, Appellant, v. STATE of Florida, Appellee.
    No. 77-1919.
    District Court of Appeal of Florida, Second District.
    June 28, 1978.

      Robert E. Jagger, Public Defender, Clear-water and Stuart J. Freeman, Asst. Public Defender, St. Petersburg, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Judge.

This appeal involves two questions: whether the trial court erred in granting the State’s motion to have appellant transferred to the adult division for prosecution when it allegedly did not take into account the criteria set forth in Section 39.09(2)(c), Florida Statutes (1977), and whether the court erred in proceeding with a waiver hearing without the appellant’s sole legal guardian, his mother, being present and in the absence of proper legal notice to her.

After consideration of oral argument and the record in this case, we are of the opinion that the first issue has no merit and the record fully supports the trial court in its decision to transfer appellant to the adult division of the court for prosecution.

However, the record is not that clear as to service of summons upon, or notice to, the mother.

We have been made aware that service of summons and notice to parents and guardians within the jurisdiction from which this case arises has been modified. Nonetheless, in the ease sub judice such service or notice is lacking and consequently we must reverse.

During the waiver hearing, the trial court was acutely concerned about notice to appellant’s mother. The record reveals that a clerk of the court mailed, by regular U.S. mail, a notice to appellant’s mother specifying a date, time and place for the waiver hearing. No proof of receipt of this letter was shown. However, in any event, the date of the hearing was later changed from the original date. Recognizing the change in the date of the hearing, the trial judge inquired whether or not the mother received subsequent notice. An HRS counsel- or stated in the record, and it is not clear if his testimony was under oath, that prior to the new hearing date, he had an appointment with the mother of appellant and that he delivered notice to the mother’s address. Unfortunately, the counselor’s testimony ends at that point. There is no showing he actually served the mother with the notice or, in any other manner, gave the mother notice of the re-scheduling of the hearing. Further, in an effort to settle the question of notice, the trial court inquired of appellant in regard thereto. Again, unfortunately, the record is confusing as to whether or not the mother had actual notice of the change in date of the hearing. Appellant’s testimony was vague and conflicting. At one point appellant stated he had conversations with his mother the Sunday before the hearing and she allegedly knew of the hearing, but on the other hand, appellant’s testimony also was that he had not seen his mother for approximately thirty days.

Consequently, as we find no waiver of service of process, as we find the record vague and conflicting as to service of process or actual notice, it is apparent that proof of compliance with Fla.R.Juv.P. 8.120 and Section 39.06, Florida Statutes (1977) has not been shown. Further, there is no adequate showing of actual notice to the mother regarding the hearing date. Therefore, we must reverse and remand the case to the lower court for additional proceedings consistent with this opinion.

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


author: BOARDMAN, Chief Judge.

text:
    Robert C. DEXTER, Appellant, v. STATE of Florida, Appellee.
    No. 78-144.
    District Court of Appeal of Florida, Second District.
    June 28, 1978.
    Robert C. Dexter, pro se.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Chief Judge.

Appellant/defendant Robert C. Dexter appeals the order of the trial court summarily denying his motion to vacate his plea and set aside the judgment and sentence pursuant to Rule 3.850, Florida Rules of Criminal Procedure. Summary denial of a motion under this rule can be sustained only when “the motion and the files and records in the case conclusively show that the prisoner is entitled to no relief . . .” Fla.R.Crim.P. 3.850. See Merritt v. State, 165 So.2d 245 (Fla.2d DCA 1964). We are unable to conclude from the record on appeal that appellant is entitled to “no relief” and, therefore, we reverse.

Appellant and two codefendants (not involved in these proceedings) were charged with robbery. Appellant and one codefend-ant Stanley Curtis Thompson were represented in court by the same public defender, and they entered pleas of guilty as charged. The record shows that appellant’s plea was entered upon advice of counsel. The trial court informed them of the charge, maximum sentence, and the rights they were waiving by pleading guilty; and each informed the court they had not been coerced or promised anything to induce them to plead guilty. Notwithstanding,' we point out that no factual basis for the entry of the guilty plea was made and no mention was made of any defenses either defendant may have had. On September 18, 1974 appellant and Thompson were sentenced to ten years imprisonment.

On October 22, 1974 appellant wrote a letter to the trial court seeking mitigation or reduction of his sentence in which he stated that he had gone into a 7-11 store with Thompson to buy a pack of cigarettes and that after he had made the purchase he was starting to walk out of the store when Thompson pulled out a gun and held up the store clerk; that he did not know anything about the robbery in advance or take part in it; and that he did admit that he was “guilty of being involved and not saying anything to anyone.” The trial court apparently treated the letter as a 3.850 motion and denied it.

In the motion now before the court appellant alleges that his plea of guilty was not freely and voluntarily made but was entered upon advice of his counsel; that his court-appointed attorney conferred with him only once for not more than fifteen minutes prior to the entry of his plea; that his counsel advised him to plead guilty or he would receive a life sentence because he had no defense; that counsel did not discuss the case in general with him, would not listen to his protestation of noninvolvement in the robbery, and made no independent investigation of the case; and that appellant was unaware of his rights, and counsel did not truthfully advise appellant of the consequences of his plea or -inform him of his rights. An affidavit from Thompson was appended to the motion. It corroborates the facts as stated in appellant’s October 1974 letter with the addition of a statement that Thompson split the money he obtained in the robbery with appellant and the other codefendant. The trial court denied appellant’s motion, and this appeal followed.

If appellant’s version of the facts surrounding the robbery is true, he is not guilty of the robbery, but only of acting as an accessory after the fact to the robbery. That offense is a third-degree felony and carries a maximum sentence of five years in prison. § 776.03, Fla.Stat. (1973) (current version at § 777.03, Fla.Stat. (1977)); § 775.082(4)(d), Fla.Stat. (1973) (current version at § 775.082(3)(d), Fla.Stat. (1977)). In view of the fact that the trial court failed to determine a factual basis for the acceptance of the plea, as outlined in Rule 3.170(j), Florida Rules of Criminal Procedure, appellant’s version of the facts is not refuted by the record.

Appellant states that he pled guilty out of ignorance of the law. Inasmuch as the court did not advise appellant of the possible defenses to the charge against him, and there is no indication in the record that appellant’s counsel did so, this allegation by appellant is also not refuted.

We conclude that if appellant’s allegations are true his guilty plea was not voluntarily entered, he has shown prejudice and manifest injustice, and he should be given the opportunity to withdraw his plea of guilty and stand trial if he elects to do so. Because these allegations are not refuted, appellant is entitled to an evidentiary hearing. State v. Reynolds, 238 So.2d 598 (Fla.1970).

Accordingly, the order denying appellant’s motion to vacate is reversed and the cause remanded to the trial court for proceedings consistent with this opinion.

REVERSED and REMANDED.

SCHEB and RYDER, JJ., concur.


text:
    Harold Jerome COOPER, Appellant, v. STATE of Florida, Appellee.
    No. 78-617.
    District Court of Appeal of Florida, Fourth District.
    June 28, 1978.
   ORDERED, sua sponte, the Appellant herein having failed to file an Affidavit of Insolvency for purposes of this appeal or having failed to pay the required Fifty ($50.00) and 00/100 Dollars service charge (filing fee) within Twenty (20) days after the entry of this Court’s March 23, 1978 Order, the above-styled cause, commenced by the filing of a Notice of Appeal on March 20, 1978 in Orange County Circuit Court Case No. 77-2008, is hereby dismissed. (See Williams v. State, Fla., 324 So.2d 74, 77 note 3 [1975]).


author: McCORD, Chief Judge. BOYER, Judge,

text:
    Daisy Alma GATLIN and Wallace William Gatlin, her husband, Appellants, v. ARGONAUT INSURANCE COMPANY, a corporation, St. Paul Insurance Company, a corporation, Reliance Insurance Company, a corporation, Willard R. Gatling, M.D., Ritch & Beale, Physician’s Emergency Service, P.A., a professional service corporation, formerly known as Physician’s Emergency Service, P.A., and St. Luke’s Hospital Association, a corporation, Appellees.
    No. DD-428.
    District Court of Appeal of Florida, First District.
    June 30, 1978.
    Rehearing Denied Aug. 2, 1978.
    Neal D. Evans, Jr. of Evans & Stewart, Jacksonville, for appellants.
    William M. Howell, Henry H. Graham, Jr. of Howell, Howell, Liles & Braddock, James C. Rinaman, Jr. of Marks, Gray, Conry & Gibbs, Jacksonville, Wayne D. Clance for appellees.
   McCORD, Chief Judge.

This is an appeal in a malpractice action from a final judgment entered following a directed verdict against appellants who were plaintiffs below. Appellants allege that negligent acts of appellees, in treating appellant Daisy Alma Gatlin’s injured foot have increased the severity of the injury and the pain associated with it.

Appellant, Mrs. Gatlin, was injured when she fell from a ladder. She called her family doctor, appellee Willard R. Gatling, M.D., whose office was closed at the time, but she talked with his nurse, Mrs. Blasingame, who advised her to go to the emergency room for treatment. At the emergency room of St. Luke’s Hospital Association, appellee, she was treated by Robert L. Jones, M.D., of Physician’s Emergency Service, appellee. She was subsequently treated by Dr. Gatling and thereafter by a Jacksonville orthopedist, a Dr. Pujadas. Subsequently, some 10 months after suffering the injury, Mrs. Gatlin, on advice of her attorney, and, according to her testimony, on recommendation of a friend in Tampa, was examined by Dr. Lee J. Cordrey, an orthopedic surgeon in Tampa. Dr. Cordrey’s deposition is the central issue on this appeal. He was Mrs. Gatlin’s only expert witness in support of her claim. Large portions of his testimony were stricken by the trial court. With that testimony excluded, the defendant’s motion for directed verdict made at the conclusion of the plaintiff’s case was granted.

The trial court correctly ruled that Dr. Cordrey was an examining physician rather than a treating physician and that the portions of his testimony which were based upon the history of the case as related to him by Mrs. Gatlin were not admissible. Although Mrs. Gatlin contends she went to Dr. Cordrey for treatment and that he was, therefore, a treating physician, we find no abuse of discretion by the trial court in ruling that Dr. Cordrey was not a treating physician. He only saw her on one day and only examined her. The trial court correctly sustained objections to the portions of Dr. Cordrey’s testimony which were predicated upon Mrs. Gatlin’s history as related to him by her. Marshall v. Papineau, 132 So.2d 786 (Fla. 1 DCA 1961).

We have a more serious problem, however, with the testimony of Dr. Cordrey in response to hypothetical questions asked by Mrs. Gatlin’s attorney beginning on page 19 and ending on page 35 of his deposition. With the exception of the last two pages thereof, we find that the trial court erred in striking this testimony. The last two pages dealt with Dr. Cordrey’s qualifications to testify that the standards of hospitals in the Jacksonville area are substantially the same as the standards of hospitals in the Tampa area. Such testimony was inadmissible because he was unable to testify with certainty that they were substantially the same.

The stricken testimony prior to the last two pages should have been admitted. It dealt with whether or not the ap-pellee doctors and their nurses, in their treatment of Mrs. Gatlin, failed to use reasonable and ordinary care and treatment prevailing in the community. The questions asked Dr. Cordrey, while not models of the form of questions which should be asked in this regard, were not objected to individually as they were asked (with one exception toward the end of the questioning). They were objected to at trial, and the trial court sustained them. Had they been objected to when asked, Mrs. Gatlin’s attorney would have had an opportunity to reframe them. Appellant’s attorney did periodically during the questioning tie them together with the doctor’s testimony that the care given did not meet the community standards for ordinary care, or that to meet the community standards, additional treatment should have been given. Under these circumstances, appellees waived appellant’s failure to properly frame each individual question. Fla.R.Civ.P. 1.330(d)(3)(B).

Appellants also contend that the trial court erred in striking much of the deposition cross-examination of Dr. Cordrey; that under Fla.R.Civ.P. 1.330(a) the testimony was admissible. This action at the time of the trial court’s ruling was not error because at that time the disallowed cross-examination related to direct testimony of Dr. Cordrey which had been stricken. Had this testimony been taken at trial and the direct testimony stricken there, appellees could not have cross-examined on nonexistent direct testimony. To rule otherwise would require a party to cross-examine on deposition at his peril. Here, however, as the case now stands with our ruling that a portion of Dr. Cordrey’s direct testimony was erroneously stricken, the trial court on remand should re-evaluate the cross-examination and allow such parts thereof as relate to the direct testimony which we have ruled admissible.

Appellants also contend that expert testimony was not necessary in this case in order for appellants to prevail because from the evidence presented the question of negligence may be determined by the jury from common knowledge and experience. Our ruling admitting Dr. Cordrey’s answers to the hypothetical questions of the deposition renders this issue moot.

Reversed for a new trial.

MELVIN, J., concurs.

BOYER, J., concurs in part and dissents in part.

BOYER, Judge,

concurs in part and dissents in part.

I am in complete agreement with the majority opinion except in so far as it holds that the learned trial judge correctly ruled that Dr. Cordrey was an examining physician rather than a treating physician and that the portions of his testimony which were based upon the history of the case as related to him by Mrs. Gatlin were not admissible. To that holding I respectfully dissent. As the opinion recites, Mrs. Gatlin sought the services of Dr. Cordrey on the recommendation of a friend as well as on the advise of her attorney. She testified, without contradiction, that she sought the services of Dr. Cordrey for treatment. The mere fact that the doctor concluded that she had reached maximum medical benefits as far as conservative management of her injury was concerned and was suffering with a permanent disability as a residual of her 'accident and therefore did not require her to return for further treatment, viz: The mere fact that the doctor saw his patient only one time, did not render him an examining physician rather than a treating physician.


author: PER CURIAM.

text:
    Norman Gene OSBORNE, Appellant, v. STATE of Florida, Appellee.
    No. II-476.
    District Court of Appeal of Florida, First District.
    June 30, 1978.
    Rehearing Denied July 28, 1978.
    Norman Gene Osborne, in pro per.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

On this appeal from the trial court’s denial of appellant’s Rule 3.850 motion, we have examined the record of appellant’s prior appeal, which was appropriately considered by Anders standards, and we have considered all of appellant’s contentions on this appeal. In some respects the Rule 3.850 motion is deficient because its allegations are in conclusory terms only; in other respects the motion seeks to raise matters that could and should have been raised, if meritorious, on direct appeal. The trial court correctly denied the motion without an evidentiary hearing. Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976).

AFFIRMED.

BOYER, Acting C. J., and SMITH and BOOTH, JJ., concur.


author: KEHOE, Judge.

text:
    John MEYER, Appellant, v. AETNA CASUALTY & SURETY COMPANY, Appellee.
    No. 77-457.

    District Court of Appeal of Florida, Third District.
    July 5, 1978.
    Rehearing Denied July 28, 1978.
    Walton & Garrick and Edward L. Walton, Miami, for appellant.
    Ress, Gomez, Rosenberg, Berke & How-land and Roland H. Gomez, North Miami, for appellee.
    Before PEARSON, NATHAN and KE-HOE, JJ.
   KEHOE, Judge.

Appellant, plaintiff below, -brings this appeal from an order dated February 15,1977, entered by the trial court dismissing his complaint for lack of jurisdiction. We reverse.

After reviewing the record in this cause, we are of the opinion that appellant’s complaint was improperly dismissed by the trial court for lack of jurisdiction. The complaint sought basically the reformation of a contract of insurance to reflect the intent of the parties. We believe that the trial court had jurisdiction to entertain the complaint. Art. V, § 5(b), Fla.Const. See generally Petrine v. D. Black & Sons, Inc., 338 So.2d 912 (Fla. 3d DCA 1976); Perez v. State Auto Insurance, 270 So.2d 377 (Fla. 3d DCA 1972); and Poindexter v. Equitable Life Assurance Society, 127 W.Va. 671, 34 S.E.2d 340 (1945). Accordingly, the order appealed is reversed and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.


text:
    Annie BURCH, Appellant, v. The STATE of Florida, Appellee.
    No. 77-395.
    District Court of Appeal of Florida, Third District.
    July 11, 1978.

      Bennett H. Brummer, Public Defender and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., Ronald A. Dion, Asst. Atty. Gen. and Edwin D. Davis, Legal Intern, for appellee.
    Before HENDRY, J., HELIO GOMEZ, Associate Judge, and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

By information the appellant was charged with second degree murder and of the other crime mentioned below. At trial, a jury found her guilty of the lesser degree crime of third degree murder and of the crime of unlawful display of a firearm during the commission of a felony. The court adjudged the defendant guilty. On the firearm offense, sentence was suspended. On the third degree murder conviction, the defendant was sentenced to a three year prison term to be followed by three years probation.

On appeal, the defendant presents one question which was stated in appellant’s brief as follows:

“Whether the trial court erred in excluding a defense witness’ testimony concerning a statement made by the defendant where that statement was made contemporaneously with other statements of the defendant which had been admitted into evidence by the prosecution, and where the omitted statement was highly relevant to the defendant’s theory of self-defense.”

The appellant had killed her husband, by shooting him with a hand gun. Four bullets had struck him. In the formal statement made by the defendant to the police, which was revealed in evidence, after describing how the husband had beaten and kicked her before entering their house, the statement made by the defendant included the following:

“So, I laid down and David, he stay in 55, he came down and help me and then the lady stay around the corner, I don’t know what apartment, her name is Feenie Mae, she came around and helped David carry me back in the house, and then she got the baby. The baby was still hollering, so my husband, he went in and laid the gun on the dresser and I told him, ‘I’m gonna get you Burch, cause you kicked me and stomped me and called me like I was a dog’ and he said, ‘You worse than a dog, and if it weren’t for my baby I woulda done killed you.’
“So he went back in the back room and sit on the bed and I got the gun and went to shooting him. I was standing right there between the bedroom and the bathroom and the kitchen, and he went to crawl to me and I kept on shooting and he was hollering, ‘Oh, oh, oh.’
“Then he turned around and crawled back in the bedroom and I couldn’t shoot no more cause it was empty. I carried the gun out there and just thro wed it and went to hollering. I said, T done killed him, I done killed him,’ so then everybody come running, so then Evelyn Burn or David, they called the ambulance and they came and I was still hollering.”

A witness for the defense, Finnie May Rogers, testified that following the shooting, while she was present at the scene, when the police were there talking with defendant, “She told the police that she and Burch were struggling over the gun.” The prosecutor objected on the ground that the statement was self-serving, hearsay evidence. The court sustained the objection and instructed the jury to disregard it. The State here concedes that-ruling was incorrect and that the excluded evidence was admissible. But the State contends it was harmless error because (1) in testimony at the trial, the defendant testified to the same effect, that she and her husband had struggled over the gun; (2) the defendant did not testify that the shooting was an accidental occurrence in the struggle over the gun; and (3) the evidence as to the shooting was such that if, in fact, there was at some time a struggle over the gun, the shooting did not occur in the course of such struggle.

The ruling of the trial court in that connection was incorrect. The defendant had the right to have all that she said at the time received in evidence. Bennett v. State, 96 Fla. 237, 118 So. 18, 19 (1928); Thalheim v. State, 38 Fla. 169, 20 So. 938, 947 (1896); even though self-serving, West v. State, 53 Fla. 77, 43 So. 445 (1907). However, we agree with the contention of the State that the exclusion of that testimony was harmless error. The harm in the original exclusion of such testimony was eliminated when that testimony was brought before the jury, as it was here by the defendant. Barton v. State, 72 Fla. 408, 73 So. 230 (1916); Denmark v. State, 95 Fla. 757, 116 So. 757 (1928); Branch v. State, 96 Fla. 307, 118 So. 13, 17 (1928); United States v. Ashley, 5th Cir. 1977, 555 F.2d 462. Moreover, as pointed out by the State, in the defendant’s testimony as well as in her earlier statement to the police, the defendant did not blame the shooting on a firing of the gun accidentally or otherwise in the course of a struggle over it. The gun was emptied. A full quota of shots was discharged, four of which struck the victim.

We hold that no miscarriage of justice resulted, for the reason that on consideration of the record there is an absence of reasonable possibility that the above-mentioned evidentiary ruling contributed to the conviction of the defendant. See Bennett v. State, 316 So.2d 41, 44 (Fla.1975).

Affirmed.


author: PEARSON, Judge.

text:
    BOSTON OLD COLONY INSURANCE COMPANY, a foreign corp., Appellant, v. Raul GUTIERREZ, Appellee.
    Nos. 77-508, 77-761.
    District Court of Appeal of Florida, Third District.
    July 11, 1978.

      Blackwell, Walker, Gray, Powers, Flick & Hoehl and James E. Tribble, Miami, for appellant.
    Sams, Anderson & Ward and Murray Sams, Jr., Miami, for appellee.
    Before HAVERFIELD, C. J., and PEARSON, J. and CHARLES CARROLL (Ret.), Associate Judge.
   PEARSON, Judge.

The first of these consolidated appeals is from a final judgment upon a jury verdict in an action against an insurance company by an injured plaintiff (who is not a policyholder of the insurer) for bad faith failure to settle with the plaintiff. The second is an appeal from a second judgment awarding the plaintiff attorney’s fees in the same action. The principal issue presented on the first appeal is whether the evidence supports the judgment. On the second appeal, the issue is whether attorney’s fees may be separately assessed by the court as an adjunct to the cause of action.

The evidence before the jury, viewed in the light most favorable to the verdict, is that on January 1, 1973, at approximately 6:00 p. m., Boston Old Colony’s insured, Brown, and appellee Gutierrez were involved in a head-on collision on West Fla-gler Street in Miami, Florida. At the time of the accident, Brown had an automobile liability policy with Boston Old Colony which provided liability .coverage of $10,000 per person. An unusual circumstance of the accident was that both Brown and Gutierrez claimed to have been proceeding east on Flagler Street and each claimed that the other car was headed west on Flagler Street, came over the center line and hit him head-on. There were three witnesses to the accident. All three of these witnesses gave testimony that Gutierrez was headed east on Flagler Street when Brown, who was traveling west, crossed the center line and struck Gutierrez’s automobile head-on in his lane. Brown told George Heider, a senior adjuster of Boston Old Colony, that he was proceeding east on Flagler Street when the other automobile, heading west on Flagler Street, came over the center line and hit him head-on. Three witnesses provided by Brown to his insurance company gave statements supporting Brown’s version of the accident. They lived in a trailer park two blocks west from where the accident occurred and said that Brown had been with them minutes before the accident when he drove out of the trailer park and headed east on Flagler Street. The investigating officer, after viewing the scene and interviewing the eyewitnesses, charged Brown with the accident.

Heider knew there was a question of liability despite Brown’s version of the accident, and he so noted in his file. He knew that Gutierrez’s injuries were serious and he noted in his file that Gutierrez was in South Miami Hospital in the intensive care unit. His condition was listed as critical. He also learned that Gutierrez had a fractured arm, thirteen fractured ribs, a fractured leg and was paralyzed from the waist down. Brown could not talk due to a tracheotomy. Although Boston Old Colony denied any liability to Gutierrez’s attorney on January 9th and again on February 12th, Heider had, in fact, set up a reserve of $9,500 on Brown’s policy of $10,000. Heider had full authority to settle where there was a possibility of a verdict and a judgment in excess of the $10,000 policy limits.

On January 18th, at Heider’s request, Boston Old Colony engaged a Mr. David Plummer, a trained professional accident reconstruction expert, to investigate the physical evidence and to render an opinion as to which car had been traveling east. After examining the accident site and the wrecked vehicles, a report was sent by Plummer to Heider on March 14th in which he discussed the physical evidence and gave his opinion that Brown was eastbound and Gutierrez was westbound on Flagler Street. He further concluded that Gutierrez was completely on the wrong side of the pavement at the point of impact.

Brown reported to Heider that he had employed a personal attorney, Malcolm Kneale, and was planning to make, and later did make, a claim for his own injuries. Heider determined that because of the seriousness of Gutierrez’s injuries and the conflict in liability testimony, he would offer to pay the $10,000 policy limits to settle the Gutierrez claim. Before making the offer to Gutierrez, Heider again talked with Brown. Although there was nothing in the policy that gave Brown the right to approve or disapprove the settlement, Heider consulted -with him because Heider knew that Brown was represented by personal counsel and was going to make claim for his own injuries. During the conversation, Brown adamantly opposed offering settlement to Gutierrez even though Heider had warned him of a possible excess verdict. Heider asked Brown to provide Old Colony with a hold harmless letter. The hold harmless letter was prepared by Brown’s attorney, Kneale, and was signed by Brown.

There was a conflict in the testimony between Kneale and Heider as to the circumstances leading up to the hold harmless letter. Accepting Kneale’s testimony at the trial, it is that some time before the execution of the hold harmless letter, Heider had told him that Gutierrez had no liability insurance and that Kneale and Heider had discussed an uninsured motorist claim by Brown against Boston Old Colony. According to Kneale, Heider’s position had been that Boston Old Colony would not “pay both ways;” that it would pay either the uninsured motorist claim or Gutierrez’s claim, but it would not pay both. Kneale also testified that Heider told him that Brown’s uninsured motorist claim would not receive favorable treatment unless the hold harmless letter was prepared and that he was relying on Heider to make immediate settlement under the uninsured motorist claim.

In actuality, Gutierrez had a liability insurance policy with Government Employees Insurance Company. On March 14th, Gutierrez’s attorney wrote Heider offering to settle the claim against Brown and Boston Old Colony for the policy limits. On March 22nd, Heider wrote Gutierrez’s attorney denying liability. Heider testified that he would, at that time, have paid the policy limits of $10,000 had he not obtained the hold harmless letter. On March 23rd, Heider sent Brown’s attorney a copy of Gutierrez’s attorney’s letter of March 14th offering to settle for the policy limits.

Thereafter, suit was filed by Gutierrez against Brown and Boston Old Colony. Boston Old Colony engaged an attorney, George Lanza, to defend Brown and Boston Old Colony. Attorney Lanza reported that the case was bad and recommended settlement for the policy limits. Although Lanza was not asked for his opinion on liability, he testified that if asked, he would have stated that without considering the damage factor, Gutierrez had a fifty-fifty possibility of recovery. On June 13th, Brown filed a claim against Boston Old Colony under the uninsured motorist provision of his policy. On July 11th, Heider wrote Brown’s attorney that Gutierrez did, in fact, have insurance.

Kneale’s law firm filed a counterclaim for Brown’s damages in the collision. On November 13th, Gut’errez’s attorney wrote Boston Old Colony a letter accusing it of bad faith and withdrawing the offer to settle for the policy limits. On December 27th, Brown settled his claim against Gutierrez’s insurer for $5,000. Boston Old Colony, on January 2nd, offered to settle with Gutierrez for its policy limits. The cause between Gutierrez and Brown proceeded on the merits and the jury returned a verdict for Gutierrez in the amount of $1,418,-350.16.

The present cause against Boston Old Colony was brought by Gutierrez charging bad faith in Boston Old Colony’s refusal to settle his claim. Upon the law enunciated by the Supreme Court of Florida in Auto Mutual Indemnity Co. v. Shaw, 134 Fla. 815, 184 So. 852 (1938), and applied more recently in Thompson v. Commercial Union Insurance Company of New York, 250 So.2d 259 (Fla.1971), Gutierrez was entitled to bring the action directly against the tortfeasor liability insurer for recovery of the judgment in excess of the policy limits, based upon a claim of fraud or bad faith of the insurer in the conduct or handling of the suit.

Gutierrez’s claim was fully tried before a jury. Extensive testimony was received and, except for the testimony of Brown, who was nowhere to be found, the facts set out were fully explored. The jury returned its verdict for Gutierrez in the amount of $1,418,350.16, with interest and costs. This appeal is from that judgment.

The appellant, Boston Old Colony, presents three points directed to the judgment. The first urges that Boston Old Colony should have been granted a directed verdict upon its motions because: (1) The insured, Brown, maintained at all times that he was not at fault; a position for which he had some evidence. (2) Brown’s independent counsel prosecuted and recovered on a counterclaim against Gutierrez and expressly requested that the cause not be settled. (3) After the settlement of Brown’s counterclaim against Gutierrez, Boston Old Colony offered to settle for its policy limits. Appellant’s second point urges that the courts of Florida should recede from the holding in Thompson v. Commercial Union Insurance Company of New York, cited above, as the basis for Gutierrez’s claim under Brown’s insurance policy. The third point claims error upon the court’s refusal to instruct upon the doctrine of avoidable consequences as requested by a tendered instruction based upon Boston Old Colony’s offer to settle for its policy limits prior to trial. We do not discuss the second point because we find Thompson v. Commercial Union Insurance Company of New York to be governing.

We hold that the record contains sufficient evidence to support the verdict even though Boston Old Colony had a request not to settle Gutierrez’s claim from its own policyholder. We are impressed with the testimony that the policy between Boston Old Colony and Brown left the insurance company free to exercise its own judgment as to settlement. Further, there is evidence which, if believed by the jury, could support Gutierrez’s position that Brown’s position and the hold harmless letter were procured without a full disclosure of facts known to Boston Old Colony. We realize that an insurer is ordinarily bound to act in accordance with the wishes and the best interests of its insured, see American Fidelity & Casualty Company v. Greyhound Corporation, 258 F.2d 709, 716 (5th Cir. 1958), and that it has a right to rely upon his expressed wishes concerning a settlement of his claim. In this case, where there was evidence of less than open-handed dealings with the insured, we think that the submission of the cause to the jury cannot be said to be faulty as a matter of law.

The third aspect of Boston Old Colony’s argument for error upon the denial of its motions for a directed verdict presents the question: Is an action for bad faith in refusing to settle a claim maintainable when the company has offered to settle for its policy limits prior to trial? The jury in this case was fully informed of the offer to settle just prior to trial. The same jury found bad faith in the insurance company’s dealing with its insured. The plaintiff-ap-pellee, Gutierrez, claimed as a third party beneficiary under Brown’s contract with the defendant, Boston Old Colony. The jury verdict must be interpreted as finding that the belated offer to settle, made only after bad faith had been charged and Gutierrez’s offer to settle had been withdrawn, reasonably resulted in the excess verdict. We cannot now say that if bad faith had occurred, as the jury found, that this bad faith was, as a matter of law, wiped out by the belated offer to settle. Cf. the principles of law in American Fidelity & Casualty Company v. Greyhound Corporation, 258 F.2d 709, 715-716 (5th Cir. 1958); and cf. Government Employees Insurance Company v. Grounds, 311 So.2d 164, 167 (Fla. 1st DCA 1975).

Appellant’s remaining point on its appeal from the final judgment urges that the trial court erred in failing to give a requested instruction. No attack is made by appellee upon the wording of the instruction. The question is whether it was applicable under the evidence in this case. We hold that it was not because the issue of whether the bad faith occurred prior to the withdrawal of Gutierrez’s offer to settle for the policy limits was clearly drawn. See Garrison v. Hertz Corporation, 129 So.2d 452 (Fla. 3d DCA 1961).

We turn to the second of the consolidated appeals. This appeal is from a post-trial order allowing plaintiff Gutierrez an attorney’s fee in his bad faith action. The appellee concedes that the subsequently-filed decision of the Supreme Court of Florida in Roberts v. Carter, 350 So.2d 78 (Fla.1977), is governing and the award must be reversed because there was no assignment of the insured’s claim.

Accordingly, the final judgment is affirmed and the order allowing attorney’s fees to the plaintiff Gutierrez is reversed.

      .
      “DEFENDANT’S REQUESTED INSTRUCTION NUMBER FOUR
      “A party cannot recover damages flowing from consequences which that party could reasonably have avoided. If the insured or his counsel, by a reasonable exertion or care, could have prevented damages resulting to the insured by reason of the defendant’s wrongful acts, it was his duty to do so, and so far as he or his counsel could have thus prevented the damages, the plaintiff cannot recover.”


text:
    Nathaniel HOUSTON, Appellant, v. The STATE of Florida, Appellee.
    No. 77-470.
    District Court of Appeal of Florida, Third District.
    July 11, 1978.

      Bennett H. Brummer, Public Defender and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before PEARSON, NATHAN and KE-HOE, JJ.
   KEHOE, Judge.

Appellant, defendant below, appeals a judgment of conviction entered pursuant to a jury verdict on the charges of robbery and unlawful possession of a firearm while engaged in a criminal offense. We reverse.

In his second point on appeal, appellant contends that the trial court erred in admitting into evidence certain photographs which were clearly and unmistakably police “mugshots,” in violation of his right to a fair and impartial trial.

It is conceded that the admission of the “mugshots” was error; however, appellee contends that it was harmless error.

Our review of the record in this case leads us to the conclusion that the introduction of the photographs, clearly identifiable in this case as “mugshots” and showing a date prior to the date of the crimes charged in this matter, into evidence constituted reversible error. See, e. g., United States v. Harrington, 490 F.2d 487 (2d Cir. 1973); Barnes v. United States, 124 U.S.App.D.C. 318, 365 F.2d 509 (1966); Williams v. State, 110 So.2d 654 (Fla.1959); and Mancebo v. State, 350 So.2d 1098 (Fla.3d DCA 1977). Compare State v. Rucker, 330 So.2d 470 (Fla.1976). We note, however, that if the photographs are properly cropped this objection could be alleviated.

Appellant in his first point on appeal contends that the trial court erred in refusing to instruct the jury on (1) aggravated assault and (2) simple assault, as lesser included offenses of armed robbery, where the information alleged and the evidence established the elements required to make the giving of such instructions mandatory.

Our review of the record also leads us to the conclusion that the instructions requested by appellant were within category four of the instructions outlined by the Supreme Court of Florida in Brown v. State, 206 So.2d 377 (Fla.1968) [hereinafter cited as Brown ]. Having met the test announced in Brown, it was error for the trial court not to give the requested instructions; however, because of our determination above of appellant’s second point on appeal, it is unnecessary for us to. determine whether this error was harmless or reversible. See State v. Abreau, Case no. 52,064 (Fla., opinion filed May 26, 1978) [quashing this court’s decision in Abreau v. State, 347 So.2d 819 (Fla.3d DCA 1977)].

Appellant’s third point on appeal is that the trial court erred in admitting into evidence references of collateral crimes totally irrelevant to the crimes charged where the sole probative value of these references was to demonstrate his propensity to commit criminal acts. Because of our determination above of appellant’s second point on appeal, it is also unnecessary for us to determine this point on appeal. The problem raised by this point on appeal may be appropriately dealt with by the trial judge in his discretion upon retrial of the case.

Reversed and remanded for further proceedings in accordance with this opinion.


text:
    WINSTON TOWERS 200 ASSOCIATION, INC., Appellant, v. Joseph SAVERIO, Appellee.
    No. 77-280.
    District Court of Appeal of Florida, Third District.
    July 11, 1978.
    Morton S. Braverman, North Miami Beach, for appellant.
    Williams, Salomon, Kanner, Damian, Weissler & Brooks and Vincent E. Damian, Jr., Miami, for appellee.
    Before HAVERFIELD, C. J., PEARSON, J., and CRAWFORD, GRADY L. (Ret.), Associate Judge.
   PER CURIAM.

Plaintiff condominium association appeals a final judgment for defendant unit owner in an action seeking to enjoin the keeping of a pet.

Defendant, Joseph Saverio, purchased a unit in the Winston Towers Condominium in December, 1971. He owned a female dog which was properly registered with the plaintiff, Winston Towers 200 Association, Inc. In February, 1974, the members of the association voted to amend the by-laws with respect to the ownership and replacement of pets. The amended by-law provided that all pets, including any pet acquired as a replacement of a prior pet not registered as of February 28, 1973 would not be permitted on the premises. Any unit owner violating this provision would be assessed a fine of $10 per day. In May, 1975 Mr. Saverio’s dog gave birth to two pups, one of which he decided to keep. The association informed him that since the pup could not be registered, he was not permitted under the amended by-laws to keep it and unless he removed the pup from the premises he would be fined $10 per day. Mr. Saverio refused to comply and the association brought the instant action seeking to enjoin him from keeping the pup. A hearing was held at which only the attorneys for the parties argued. After argument of counsel, the judge ruled that the by-law in question was invalid and unenforceable in that it attempted to impose a retroactive regulation. He thereupon denied the relief sought by the association and entered judgment for Mr. Saverio. We affirm.

The record .supports the trial judge’s determination that the subject amendment to the by-laws was void and unenforceable inasmuch as it was an attempt to impose a retroactive regulation. We, therefore, conclude that the judge correctly entered judgment for Mr. Saverio.

Affirmed.


author: HENDRY, Judge.

text:
    DUNCAN PROPERTIES, INC., a corporation, Appellant, v. KEY LARGO OCEAN VIEW, INC., a Florida Corporation, Appellee.
    No. 77-686.
    District Court of Appeal of Florida, Third District.
    July 11, 1978.
    Horton, Perse & Ginsberg and Mallory H. Horton, Miami, for appellant.
    McCaughey, Knaust & Evans and Barry J. McCaughey, St. Petersburg, for appellee.
    Before PEARSON and HENDRY, JJ., and CRAWFORD, GRADY, L. (Ret.) Associate Judge.
   HENDRY, Judge.

Appellant/plaintiff appeals from a final judgment rendered in favor of appel-lee/defendant. In sum, the final judgment dismissed with prejudice appellant’s complaint to foreclose a certain mortgage executed by the parties and entered judgment on appellee’s counterclaim for rescission of said mortgage.

Factually, this proceeding commenced upon appellant’s filing of an action for the foreclosure of a purchase money mortgage (secured by a promissory note in the sum of $250,000.00) on real property located in Monroe County, Florida. Appellee answered the complaint by denying any default under the note and mortgage. In addition, appellee filed affirmative defenses which, inter alia, alleged that as consideration for the payment at time of closing of some $50,000.00, appellant was to release to ap-pellee two of the fourteen acres the latter had purchased from the lien of the mortgage. It was alleged that appellant had refused to do so, and that such refusal amounted to a failure of consideration, thus relieving appellee of its obligation to pay the note. Appellee also filed a counterclaim for rescission of the note and mortgage based upon the aforementioned failure of consideration.

After discovery and pretrial conference, the cause proceeded to a non-jury trial. At its conclusion, the chancellor entered a final judgment in which the court found (1) that upon closing, appellant was to release the two acres of property from the effect of the mortgage and that said release was an essential element of the consideration from the purchase of the property; (2) that as such, the release amounted to a dependent covenant to the agreement; (3) that appel-lee had failed to make any payments on the note; and (4) that no adequate remedy existed at law to rectify the situation.

Based upon the above findings, the chancellor ordered that the mortgage foreclosure action be dismissed with prejudice and that appellee be permitted to rescind and/or cancel the note and mortgage. In addition, as a corollary to the rescission, and in an attempt to restore the parties to the status quo, the chancellor awarded appellee $64,276.90 on its counterclaim which represented the return of the $50,000.00 down payment, as well as various closing costs and expenses. Petition for rehearing was filed and subsequently denied, and this appeal follows.

While four points have been raised on appeal, we believe that the gist of appellant’s contentions can be stated as follows:

Whether the record will support appel-lee’s counterclaim for rescission and/or cancellation of the note and mortgage.

Based upon our analysis of the record, together with the applicable case law, it is our opinion that the equitable remedies of rescission and/or cancellation were not available to appellee. We explain.

Generally, in order to sustain an action for rescission, one must allege grounds amounting to fraud, misrepresentation, overreaching or undue influence. Richard Bertram & Co. v. Barrett, 155 So.2d 409 (Fla.1st DCA 1963). These allegations were absent from appellee’s counterclaim. Rather, appellee sought rescission solely upon the basis of a want or failure of consideration. Generally, without the accompaniment of one of the aforementioned grounds, want or failure of consideration will not suffice to permit a cancellation or rescission of an instrument. Rennolds v. Rennolds, 312 So.2d 538 (Fla.2d DCA 1975); 5 Fla.Jur. Cancellation, Reformation, Etc. § 26. The usual remedy for failure of consideration, standing alone, is an action at law for damages. Richard Bertram & Co. v. Barrett, supra; Rennolds v. Rennolds, supra.

Notwithstanding the above generalities, however, the chancellor found that, sub judice, the failure of consideration (failure to release the two acres of land from the mortgage lien) also amounted to a breach of a dependent covenant. When a failure of consideration also amounts to a breach of a dependent covenant to an agreement, then said failure of consideration might give rise to the remedy rescission. Street v. Suger man, 307 So.2d 883 (Fla.3d DCA 1974). The determinative factor is whether or not a full and adequate remedy at law exists. Steak House, Inc. v. Barnett, 65 So.2d 736 (Fla.1953); Street v. Sugerman, supra.

While appellant strenuously argues that the covenant in question was independent, rather than dependent, the chancellor’s findings have not been shown to be clearly erroneous. Mogee v. Haller, 222 So.2d 468 (Fla.1st DCA 1969). Rather the question of whether or not a particular covenant in a contract is dependent or independent usually is grounded upon the intent of the parties to the contract. Mease v. Warm Mineral Springs, Inc., 128 So.2d 174 (Fla.2d DCA 1961). Intent being factual in nature, we will not substitute our judgment for that of the chancellor’s. Ates v. Yellow Pine Land Co., 310 So.2d 772 (Fla.1st DCA 1975). Therefore, for the purposes of this appeal, we must recognize the covenant as dependent and determine whether or not an adequate remedy exists at law for any damages occasioned by appellee from the covenant’s breach.

Based upon our review of the record, in light of the briefs and aided by oral argument of counsel, it is our opinion that appellee possessed an adequate remedy at law for damages occasioned by appellant’s breach of the dependent covenant. The rescission or cancellation of a deed and mortgage is a harsh remedy not generally favored by the courts. Rennolds v. Rennolds, supra. In the instant case, resort to such a remedy was unnecessary as damages, if any, were ascertainable.

Accordingly, the final judgment appealed from is hereby reversed and remanded with directions to reinstate the foreclosure proceedings and permit appellee to assert a counterclaim for damages in lieu of its claim for rescission.

Reversed and remanded with directions.


author: HUBBART, Judge.

text:
    ALLSTATE INSURANCE COMPANY, Appellant, v. John ANDERSON et al., Appellee.
    No. 77-762.
    District Court of Appeal of Florida, Third District.
    July 11, 1978.

      Spencer & Taylor and W. Thomas Spencer, Miami, for appellant.
    Phyllis 0. Douglas, Miami, for appellee.
    Before PEARSON and HUBBART, JJ., and CRAWFORD, GRADY L. (Ret.), Associate Judge.
   HUBBART, Judge.

By this appeal we are asked to review the propriety of an order granting a motion to dismiss a declaratory judgment action filed in the Circuit Court for the Eleventh Judicial Circuit of Florida. We affirm the order appealed from with two modifications: (1) the dismissal herein, to the extent that it was made with prejudice, is stricken; and (2) the order declaring the rights of the parties is stricken. In our view, the complaint as presently framed fails to establish a bona fide, actual, present, practical need for a declaration of the rights of the parties under Chapter 86, Florida Statutes (1977), as interpreted in May v. Holley, 59 So.2d 636, 639 (Fla.1952).

The plaintiff Allstate Insurance Company filed this declaratory decree action seeking a declaration of rights as to (1) its duty to defend a certain tort action involving an automobile accident, and (2) the coverage of its insurance policy as to the accident which was the subject of such tort action. The complaint alleges that such tort action is presently pending in the Circuit Court for the Eleventh Judicial Circuit of Florida and has been so pending for at least one year. The complaint fails to allege, however the present status of that action. There is no allegation as to whether Allstate has refused to defend such action or has denied coverage in such action. In the absence of such allegations, the complaint fails to show that there is a bona fide, actual, present, practical need for a declaration of the rights of the parties. Accordingly, the trial court was eminently correct in dismissing this complaint but should have done so without prejudice to the plaintiff to properly amend his complaint for declaratory relief.

It is axiomatic that the trial court should not have declared the rights of the parties in its order of dismissal because the complaint failed to state a proper cause of action for any declaratory relief under Chapter 86, Florida Statutes (1977). As the complaint was subject to dismissal without prejudice, it was improper to fashion a declaratory decree herein. Cowne v. Weber, 257 So.2d 105 (Fla. 4th DCA 1972).

Affirmed as modified.


text:
    Bernard Francis DeCASTRO, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1318.
    District Court of Appeal of Florida, Third District.
    July 11, 1978.

      Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before HAVERFIELD, C. J, PEARSON, J., and CRAWFORD, GRADY L. (Ret.), Associate Judge.
   PER CURIAM.

Bernard Francis DeCastro appeals his conviction of robbery of a convenience store with the use of a firearm.

DeCastro first urges as reversible error the failure of the trial court to instruct the jury that criminal intent (the intent to permanently deprive) is an element of the offense of robbery.

The point lacks merit because this court in Bell v. State, 354 So.2d 1266 (Fla. 3d DCA 1978) held that as defined under Section 812.13, Florida Statutes (1975) robbery is a general intent offense and, therefore, specific intent is no longer a requisite element. In addition, the record reflects that defense counsel raised no objection to the instructions on robbery given by the court.

Appellant also argues that the trial court erred in refusing to have certain testimony read to the jury after it had retired and made a request therefor.

Three eyewitnesses, employees of the convenience store burglarized, testified that in addition to other characteristics they were able to identify appellant by virtue of his facial scars and/or pockmarks. After retiring to deliberate, the jury transmitted to the trial court a note in effect requesting the testimony of the three eyewitnesses given in response to defense counsel’s questions with respect to their description of the robber and his facial markings. The court informed the jury that it was not practical to read back only portions of the testimony and all of the testimony would have to be read back which would take too long. The jury deliberated further and returned a verdict of guilty.

Under Fla.R.Crim.P. 3.410, it is within the trial court’s discretion to have the court reporter read back testimony of witnesses upon request of the jury. Simmons v. State, 334 So.2d 265, 267 (Fla. 3d DCA 1976). We agree that a reading back of all the eyewitness’ testimony in the instant case was impractical, as well as having the court reporter search the entire record and have only those portions of the eyewitness’ testimony containing the description of the robber read back to the jury. There being no abuse of discretion, we find no error. See Simmons, supra, and Matire v. State, 232 So.2d 209, 211-12 (Fla. 4th DCA 1970).

Affirmed.

      . “Rule 3.410. Jury Request to Review Evidence or for Additional Instructions
      “After the jurors have retired to consider their verdict, if they request additional instructions or to have any testimony read to them they shall be conducted into the courtroom by the officer who has them in charge and the court may give them such additional instructions or may order such testimony read to them. Such instructions shall be given and such testimony read only after notice to the prosecuting attorney and to counsel for the defendant.” [Emphasis Supplied]


text:
    Alvin NORRIS, Appellant, v. The STATE of Florida, Appellee.
    No. 77-2280.
    District Court of Appeal of Florida, Third District.
    July 11, 1978.
    Bennett H. Brummer, Public Defender, and Kurt Marmar, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before HENDRY, BARKDULL and NATHAN, JJ.
   PER CURIAM.

The defendant was convicted of unlawfully displaying a firearm while committing a felony. He appeals and urges that he cannot be convicted of such a crime, when the only evidence shows that the firearm was possessed by a co-perpetrator of the crime, citing Earnest v. State, 351 So.2d 957 (Fla.1977).

We affirm. Pursuant to the terms of Section 777.011, Florida Statutes (1975), even though the defendant may only have been an abettor and aider he could be convicted as a principal in the first degree. The Earnest opinion, supra, relied on merely held that a defendant could not be given a mandatory three-year sentence for vicarious possession of a firearm under a similar situation. But, the court merely vacated the sentence and did not vacate the judgment of conviction under facts very similar to the case at bar.

Therefore, for the reasons above stated, the judgment of conviction and sentence here under review be and the same is hereby affirmed.

Affirmed.


text:
    U. S. FLOURESCENT MANUFACTURING COMPANY et al., Appellants, v. FLORIDA POWER AND LIGHT COMPANY, etc., Appellee.
    No. 77-1440.
    District Court of Appeal of Florida, Third District.
    July 11, 1978.

      Fowler, White, Burnett, Hurley, Banick & Knight and A. Blackwell Stieglitz, Miami, for appellants.
    Steel, Hector & Davis and Paul Bonavia, Miami, for appellee.
    Before HENDRY, J., HELIO GOMEZ, Associate Judge, and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Appellants/plaintiffs appeal from an adverse final judgment rendered pursuant to a directed verdict in favor of appellee/de-fendant on a claim for damages arising from a fire allegedly caused by defective power service provided by appellee power company.

After carefully reviewing the record, briefs and arguments of counsel it is our opinion that appellants failed to present any evidence from which a jury could determine that appellee was negligent or that any purported negligence on its part proximately caused the fire. See Bromer v. Florida Power & Light Company, 45 So.2d 658 (Fla. 1950); Brookshire v. Florida Bendix Co., 153 So.2d 55 (Fla. 3d DCA 1963).

Accordingly, final judgment is hereby affirmed.

Affirmed.


text:
    SANDRON CORPORATION, Appellant, v. UTICA MUTUAL INSURANCE COMPANY, Appellee.
    No. 77-2060.
    District Court of Appeal of Florida, Third District.
    July 11, 1978.

      Ligman, Martin, Shiley & McGee and Michael G. Martin, Coral Gables, for appellant.
    Ponzoli & Wasson berg and Ronald P. Ponzoli, Miami, for appellee.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   PER CURIAM.

This is an appeal by Sandron Corporation, defendant and third party plaintiff in the trial court, from a summary final judgment for the appellee, Utica Mutual Insurance Company, third party defendant in the trial court. In this appeal, Sandron Corporation does not question the propriety of the summary judgment itself, which was entered for Utica Mutual Insurance Company, in Sandron’s favor, but limited to $4,725. However, Sandron does claim that the court erred in the amount stated in the judgment, which it argues should have been for a larger amount.

This litigation arose when plaintiff Blanchard Machinery, Inc., sued Sandron alleging that Blanchard had rented an air compressor to Sandron to be used at a construction site, that the air compressor was stolen and, as a result of the failure to return the machine, that Blanchard was entitled to $18,408. Sandron had a policy of insurance in effect, which had been issued by appellee Utica Mutual Insurance Company. Sandron filed a third party complaint against Utica claiming that the loss of the air compressor was covered under the policy of insurance. Utica answered the third party complaint admitting the existence of insurance but denying that the loss was covered by the policy. Thereafter, Utica filed an offer of judgment in the amount of $4,775.10. Utica’s motion for summary judgment recited that it was liable to San-dron for a sum certain under the terms of the policy. The dispute between the parties arose from the interpretation of the following provision of the policy:

“6. This policy is extended to cover additional items of a nature similar to those covered herein, the property of the Insured, or the property of others in the care, custody, and control of the Insured, which items have been acquired subsequent to the attachment date and during the term of this policy. In consideration of this extension the Insured agrees to report such additions within thirty (30) days from the date acquired and to pay premium thereon from the date acquired at pro rata of the policy rate. It is specifically understood and agreed, however, that this policy shall cease to cover such additional items if they are not reported to the Company within the said thirty (30) day period. This Company shall not be liable under the provisions of this clause for more than the actual cash value of such property, and in no event for more than a sum equal to 25% of the amount insured, or $25,000, whichever is less.”

It is Sandron’s contention that the parties contemplated that the policy of insurance would cover subsequently-acquired property such as the stolen air compressor and that when the contractor acquired new property, it then would become insured property under the policy. It is thus claimed that the company would be liable for a sum equal to 25% of the “amount insured,” with the value of newly-acquired property included as part of that amount.

The difficulty arises from the fact that the air compressor was not reported within the thirty day period but that the loss occurred on the twenty-eighth day of that period so that the above-quoted section of the policy came into effect as a limitation of recovery.

The imposition of the appellee is that the language of the provision is clear and that newly-acquired, unscheduled property is not to be included in the term “amount insured.” Neither party has been able to furnish us with any case law where a similar provision of a policy has been interpreted. The appellee does, however, draw an analogy between the policy involved here and “reporting form” fire policies where fluctuating stock requires periodic reports to the insurance company in order to obtain maximum coverage for a related premium. We hold that this latter situation does not create an applicable analogy to our present situation.

It is clear that the interpretation of the policy was a matter of law for the trial court. Nevertheless, it is established under Florida law that an ambiguous term in an insurance policy must be construed most favorably to the insured. See Feldman v. Central National Insurance Company of Omaha, 279 So.2d 897 (Fla. 3d DCA 1973). See also the general rules governing the construction of insurance contracts in Reliance Mutual Life Insurance Company of Illinois v. Booher, 166 So.2d 222, 224 (Fla. 2d DCA 1964). We hold that the term “amount insured” as used in this policy is ambiguous and that it must be so construed.

We, therefore, reverse the summary judgment and remand the cause to the trial court with directions to enter a summary judgment for the third party plaintiff San-dron in an amount equal to 25% of the listed property, together with the value of the unlisted compressor, less the amount deductible provided in the policy.

Reversed and remanded for further proceedings in accordance with the views herein set forth.

      . The third party action between Sandron and Utica is the only portion of the cause on appeal; the main action between Blanchard and Sandron is not before this court.


text:
    REDLAND CONSTRUCTION CO., INC., a Florida Corporation, Appellant, v. BEISWENGER, HOCH & ASSOCIATES, INC., a Florida Corp., Appellee.
    No. 77-2046.
    District Court of Appeal of Florida, Third District.
    July 11, 1978.
    Raffel & Knight, Homestead, for appellant.
    Horton, Perse & Ginsberg, Miami, H. Lawrence Asher, North Miami Beach, for appellee.
    Before BARKDULL, NATHAN and HUBBART, JJ.
   PER CURIAM.

Affirmed. See Cuna Mutual Insurance Society v. Adamides, 334 So.2d 75, 76 (Fla.3d DCA 1976); Pope v. O’Brien, 213 So.2d 620, 621 (Fla. 1st DCA 1968).


text:
    Stanley J. KLINE et al., Appellants, v. PYMS SUCHMAN REAL ESTATE COMPANY et al., Appellees.
    Nos. 77-1602, 77-1662.
    District Court of Appeal of Florida, Third District.
    July 11, 1978.
    Papy, Duval, Poole & Usich and Sheridan K. Weissenborn, Coral Gables, for appellants.
    Pallot, Stern, Proby & Adkins, Goodwin, Ryskamp, Welcher & Carrier and Kenneth L. Ryskamp, Jepeway, August, Gassen & Pohlig, Miami, for appellees.
    Before PEARSON, BARKDULL and HUBBART, JJ.
   PER CURIAM.

Affirmed. See: Dade County Classroom Teachers’ Association, Inc. v. Rubin, 238 So.2d 284 (Fla.1970); State of Florida Department of Transportation v. Florida East Coast Railway Company, 275 So.2d 289 (Fla.3d DCA 1973); Airvac, Inc. v. Ranger Insurance Co., 330 So.2d 467 (Fla.1976).


text:
    Richard Allen BALL, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1132.
    District Court of Appeal of Florida, Third District.
    July 11, 1978.
    Richard Allen Ball, in pro. per.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before HENDRY, BARKDULL and HUBBART, JJ.
   PER CURIAM.

Petitioner, pursuant to Fla.R.App.P. 9.140(g), having taken this appeal from the summary denial of his motion for post conviction relief under Fla.R.Crim.P. 3.850 and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed.

Affirmed.


text:
    Alan LIVINGSTON, Appellant, v. The STATE of Florida, Appellee.
    No. 77-190.
    District Court of Appeal of Florida, Third District.
    July 11, 1978.
    Bennett H. Brummer, Public Defender and Kurt Marmar, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., for appellee.

      Before HENDRY, J., GOMEZ, HELIO, Associate Judge, and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See State v. Jones, 204 So.2d 515 (Fla.1967); Castle v. State, 305 So.2d 794 (Fla. 4th DCA 1974), affirmed at 330 So.2d 10 (Fla.1976).


text:
    Roger A. SUAREZ, Appellant, v. The STATE of Florida, Appellee.
    No. 78-753.
    District Court of Appeal of Florida, Third District.
    July 11, 1978.
    Grusmark, Jaffe & Karten, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Steven L. Bolotin, Asst. Atty. Gen., for appellee.
    Before HENDRY, NATHAN and KE-HOE, JJ.
   PER CURIAM.

Affirmed. See, e. g., Burau v. State, 353 So.2d 1183 (Fla. 3d DCA 1977); Atilus v. State, 346 So.2d 594 (Fla. 3d DCA 1977); Montalvo v. State, 323 So.2d 674 (Fla. 3d DCA 1975); Constantino v. State, 224 So.2d 331 (Fla. 3d DCA 1969); and Farrington v. State, 207 So.2d 513 (Fla. 3d DCA 1968).


text:
    Teri FERNER, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee.
    Nos. 77-872, 77-2521.
    District Court of Appeal of Florida, Third District.
    July 11, 1978.
    Horton, Perse & Ginsberg, Miami, Grover, Ciment, Weinstein & Stauber, Miami Beach, for appellant.
    Talburt, Kubicki & Bradley and Betsy E. Hartley, Miami, for appellee.
    Before PEARSON, BARKDULL and HUBBART, JJ.
   PER CURIAM.

Affirmed. Reid v. State Farm Fire and Casualty Co., 352 So.2d 1172 (Fla.1978).


text:
    G. E. W., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1618.
    District Court of Appeal of Florida, Third District.
    July 11, 1978.
    Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Steven L. Bolotin, Asst. Atty. Gen., for appellee.

      Before HENDRY, J., and HELIO GOMEZ, and CHARLES CARROLL (Ret.),.As-sociate Judges.
   PER CURIAM.

Affirmed. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); United States v. Allen, 472 F.2d 145 (5th Cir. 1973); Wilson v. Porter, 361 F.2d 412 (9th Cir. 1966), and Wigfall v. State, 323 So.2d 587 (Fla. 3d DCA 1975).


text:
    Dean HADDOX and Laura Haddox, Appellants, v. LUMBERMENS MUTUAL CASUALTY COMPANY and Renette Rousseau, Appellees.
    No. 78-6.
    District Court of Appeal of Florida, Third District.
    July 11, 1978.
    Preddy, Kutner & Hardy and Paul Freedman, Miami, for appellants.
    Bradford, Williams, McKay, Kimbrell, Hamann & Jennings, Miami, and Gail Sosby Krieger, Tallahassee, for appellees.
    Before BARKDULL, NATHAN and HUBBART, JJ.
   PER CURIAM.

Affirmed. Harfred Auto Imports, Inc. v. Yaxley, 343 So.2d 79 (Fla. 1st DCA 1977); Bickley v. Castillo, 346 So.2d 625 (Fla. 3d DCA 1977).


author: CROSS, Judge.

text:
    Joe R. KERN, Appellant, v. Ann S. KERN, Appellee.
    No. 77-249.
    District Court of Appeal of Florida, Fourth District.
    July 12, 1978.

      B. F. Paty, Jr., of Paty, Downey, Lewis, Eaton, Fick & Martin, Palm Beach, for appellant.
    Larry Klein, West Palm Beach, and Mac-Millan, Newett, Adams & Strawn, Delray Beach, for appellee. •
   CROSS, Judge.

Joseph R. Kern seeks review of an order entered subsequent to final judgment of dissolution of marriage requiring him to provide a college education for his adult child. We reverse.

On December 26, 1974, a final judgment of dissolution of marriage was entered dissolving the marriage of Joseph R. Kern and Ann S. Kern. Under that decree, the appellant was required to provide support for the couple’s minor child. On September 14, 1976 the appellee filed a motion for modification of the child support provisions seeking an order requiring the appellant to provide a college education for the couple’s child who had reached the age of majority. On January 10, 1977 the chancellor entered his order requiring appellant to pay the amount of $600 per month in child support during the time in which the couple’s adult child was attending college. A rehearing was sought, but was denied. This appeal followed.

We are called upon to decide whether a parent in a dissolution proceeding, absent an agreement, may be required to provide a college education for an adult child of the marriage under the terms of a child support decree.

Dissolution proceedings, although cognizable in equity, are creatures of statute. Perla v. Perla, 58 So.2d 689 (Fla.1952). Thus, although the chancellor presiding in a dissolution proceeding is imbued with broad discretion in the exercise of his authority, such authority is strictly delineated by the statutory rubric fashioned by the legislature. The authority of a court to award child support in dissolution proceedings is granted by Section 61.13, Florida Statutes (Supp.1977), which provides in relevant part:

“In a proceeding for dissolution of marriage, the court may at any time order either or both parents owing a duty of support to a child of the marriage to pay such support as from the circumstances of the parties and the nature of the case is equitable.”

Accordingly, the authority of a divorce court is circumscribed by the requirement that child support may only be imposed against a parent which owes a duty of support to that child.

The duty to provide support for a minor child is based upon the child’s incapacity, both natural and legal, and its consequent need of protection and care. At common law, this duty of child support was visited almost exclusively upon the father and was limited to that period when the child remained unemancipated. Today, the obligation of child support is recognized by statute to be upon both the mother and father jointly as the natural guardians of their natural and adopted children. Section 744.301, Florida Statutes (Supp.1977). The law recognizes that the duties of a natural guardian include the obligation to nurture, support, educate and protect the child.

As a general rule, the legal duty of a parent to support his children ceases at the age of majority. Winikoff v. Winikoff, 339 So.2d 262 (Fla. 3d DCA 1976); Fincham v. Levin, 155 So.2d 883 (Fla. 1st DCA 1963); Perla v. Perla, supra. Of course, one exception to the general rule imposes a continuing duty on a parent to care for an adult child suffering from physical or mental deficiencies. Perla v. Perla, supra. Annot., Parent’s Obligation to Support Adult Child, 1 A.L.R.2d 910 (1948).

Under Florida law, the disability resulting from non-age is removed for those children who are eighteen years of age or older. Section 743.07, Florida Statutes (Supp.1977). However, subsection (2) of Section 743.07 provides:

“This act shall not prohibit any court of competent jurisdiction from requiring support for a dependent person beyond the age of 18 years.”

Thus, in enacting Section 743.07, the legislature clearly did not intend that the lowering of the age of majority from twenty-one, as under former law, to eighteen would act as a bar to a court of competent jurisdiction in awarding support for a dependent child. Finn v. Finn, 312 So.2d 726 (Fla.1975). However, in a dissolution proceeding, the legislature saw fit to specify an additional requirement to that imposed by Section 61.13; namely, that the adult child in order to receive support must be dependent. Thus, when reading Section 743.07 in pari materia with Section 61.13, it is clear that before a court in a dissolution proceeding may order support for an adult child, it must find (1) that the parent owes a duty of support, and (2) that the child is dependent upon that parent for such support.

A child attending college full time in an active and sincere pursuit of an advanced education may certainly be dependent upon his parents for support. Finn v, Finn, supra. The question remains whether there exists any duty on the part of the parent to provide his children with a college education. We think not.

The question of whether a parent owes a duty to a healthy natural adult child is one over which confusion exists among the courts of this state. No such duty is imposed on a child’s natural guardian since these statutory duties are extinguished upon the child’s emancipation. Moreover, it is clear that the children of a sound, harmonious marriage have no right to require their parents, no matter the degree of wealth they enjoy, to furnish a college education. It can hardly be contended that the law places upon the divorced parent any greater obligation toward his children than he has in the absence of divorce. In fact, such an interpretation may give rise to valid constitutional infirmities in that the state would have no reasonable grounds to treat the adult children of divorced parents any differently than the adult children of married parents. While we are fully aware that in our sophisticated, technological society, advanced education is a valuable asset, our system has not as yet imposed a duty on any parent to provide a complete college education for his children. Although a parent may suffer a moral obligation to assist children in acquiring an advanced education, we find nothing in either the jurisprudence or the statutes of this state which makes such a moral obligation legally enforceable. A parent does not owe a duty to an adult child to provide a college education. With this view, a multitude of jurisdictions in these United States agree.

Furthermore, we determine that procedural irregularities exist in cases such as this which further demonstrate the incongruous results which arise when a divorce court attempts to order support for an adult child.

The instant case arose upon the mother’s motion for modification of the child support provisions of the final order of dissolution. The power and jurisdiction of a divorce court to review or modify its order relating to the maintenance of children of the marriage is limited by law to that period of time in which a parent owes a duty of support to the child, which usually terminates when the child reaches the age of majority. The award of child support, although made to the mother as the child’s natural guardian, is solely for the benefit of the child, who, because of the disability of non-age, lacks the legal status to bring suit directly against his parent for support. Under Florida law, when a child reaches eighteen years of age, this disability of nonage is removed, and if an obligation of support exists, the child may proceed in his own right in a court of competent jurisdiction to establish such obligation. See Rudnick v. Solomon, 311 So.2d 385 (Fla. 3d DCA 1975). The parent who formerly had legal custody of the child has no pecuniary interest in such litigation. Thus, once a normal child reaches majority, a parent has no standing to seek support money for that child in the courts of this state.

Likewise, in a suit brought by one parent against the other arising from dissolution proceedings, an adult child must be viewed as a stranger to the suit. Despite the grant of full equity powers to the divorce court, nothing in the statutes gives the court the authority to decide matters involving the interests of persons who are not properly before the court. We determine, therefore, that even if a duty of support for an adult child does exist, a dissolution proceeding is not the proper forum in which to establish the existence of that obligation. Perla v. Perla, supra.

In summary, we determine that a parent owes no duty of support to an adult child except in extraordinary circumstances as when the child suffers severe physical or mental incapacitation. Even should such a duty of support exist, a dissolution proceeding is not the proper forum to resolve such a dispute. Therefore, a divorce court has no jurisdiction, absent an agreement, to require a parent to furnish an adult child with support, and thus may not seek to impose an obligation upon one parent or the other to provide an adult child with a college or other advanced education.

Accordingly, the order of the trial court is reversed, and the cause remanded with directions to dismiss the petition for modification.

Reversed and remanded, with directions.

MOORE, J., and DURANT, N. JOSEPH, Jr., Associate Judge, concur.

ALDERMAN, C. J., participating only on oral argument.

      . Section 744.301(1). The mother and father jointly are natural guardians of their own children and of their adopted children during minority.

      . Section 744.361(1). It is the duty of the guardian of the person to take care of the person of the ward, to treat him humanely, and, if he is a minor, to see that he is properly educated and that he has the opportunity to learn a trade, occupation or profession.

      . See, e. g., Finn v. Finn, 312 So.2d 726 (Fla.1975); Daugherty v. Daugherty, 308 So.2d 24 (Fla.1975); Watterson v. Watterson, 353 So.2d 1185 (Fla. 1st DCA 1977); Coalla v. Coalla, 330 So.2d 802 (Fla. 2d DCA 1976); Dwyer v. Dwyer, 327 So.2d 74 (Fla. 1st DCA 1976); Kro

        gen v. Krogen, 320 So.2d 483 (Fla. 3d DCA 1975); Kowalski v. Kowalski, 315 So.2d 497 (Fla. 2d DCA 1975); Briggs v. Briggs, 312 So.2d 762 (Fla. 4th DCA 1975); White v. White, 296 So.2d 619 (Fla. 1st DCA 1974).

      . Example given, Golden v. Golden, 230 Ga. 867, 199 S.E.2d 796 (1973); Jenkins v. Jenkins, 233 Ga. 902, 214 S.E.2d 368 (1975); Krone v. Krone, 503 P.2d 359 (Colo.Ct.App. II 1972); Miller v. Miller, 459 S.W.2d 81 (Ky.Ct.App.1970); Young v. Young, 413 S.W.2d 887 (Ky.Ct.App.1967); Price v. Price, 51 Mich.App. 656, 215 N.W.2d 756 (Ct.App. 3d 1974); Genda v. Superior Ct., County of Pima, 103 Ariz. 240, 439 P.2d 811 (1968); Laws v. Laws, 432 P.2d 632 (Colo.1967); Miller v. Miller, 52 Cal.App.2d 443, 126 P.2d 357 (Cal.App.1942); Block v. Lieberman, 506 S.W.2d 485 (Mo.Ct.App.1974); Childers v. Childers, 15 Wash.App. 792, 522 P.2d 83 (1976); Jensen v. Jensen, 438 P.2d 1013 (Oregon 1968).

      . Section 744.301(1) in relevant part provides: “If the marriage between the parents is dissolved, the natural guardianship shall belong to the parent to whom the custody of the child is awarded.”

      . Nothing in this opinion should be construed as limiting the power of a court to enforce a stipulated-to agreement between the parties in a dissolution proceeding.


author: DOWNEY, Chief Judge.

text:
    Samuel K. KRAVETS, Appellant, v. STATE of Florida, Appellee.
    No. 77-806.
    District Court of Appeal of Florida, Fourth District.
    July 12, 1978.
    Richard L. Jorandby, Public Defender, and Charles D. Peters, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Chief Judge.

The appellant pleaded nolo contendere to obtaining property by worthless check in violation of Section 832.05(3), Florida Statutes (1975). He was adjudged guilty and sentenced to 75 days in jail. He complains on appeal that the trial court erred in denying his motion to dismiss inasmuch as he made the check good within 20 days of receiving written notice, that the check has not been paid, pursuant to Section 832.07, Florida Statutes (1975). The appellant argues that Section 832.07, Florida Statutes (1975), was enacted to give an individual 20 days to correct an overdraft and thereby avoid criminal prosecution.

There are no Florida cases that deal with this question. However, for reasons hereinafter set forth, we reject the appellant’s contention and affirm his conviction.

First, Section 832.05(4), Florida Statutes (1975), specifically provides that payment of a dishonored check shall not constitute a defense or ground for the dismissal of charges. This subsection makes it very clear that the criminal act is complete when the maker draws a check knowing at the time of such drawing that he does not have sufficient funds on deposit to pay the check when it is presented.

Secondly, Section 832.07, Florida Statutes (1975), is entitled “prima facie evidence of intent . . . ” and provides in pertinent part:

832.07 Prima facie evidence of intent; identity.—
“(1) INTENT.—
“(a) In any prosecution or action under this chapter, the making, drawing, uttering, or delivery of a check, draft, or order, payment of which is refused by the drawee because of lack of funds or credit, shall be prima facie evidence of intent to defraud or knowledge of insufficient funds in, or credit with, such bank, banking institution, trust company, or other depository, unless such maker or drawer, or someone for him, shall have paid the holder thereof the amount due thereon, together with a service charge not to exceed $5 or 5 percent of the face amount of the check, whichever is greater, within 20 days after receiving written notice that such check, draft, or order has not been paid to the holder thereof. Notice mailed by certified or registered mail, evidenced by return receipt, to the address printed on the check or given at the time of issuance shall be deemed sufficient and equivalent to notice having been received by the maker or drawer, whether such notice shall be returned undelivered or not. The form of such notice shall be substantially as follows:
‘You are hereby notified that a check, numbered . . ., issued by you on (date), drawn upon (name of bank), and payable to . . ., has been dishonored. Pursuant to Florida law, you have 20 days from receipt of this notice to tender payment of the full amount of such check plus a service charge of $5 or 5 percent, [of the face amount of the check], whichever is greater, the total amount due being $ . . . and . cents. Unless this amount is paid in full within the time specified above, the holder of such check may turn over the dishonored check and all other available information relating to this incident to the State Attorney for criminal prosecution.’
Any party holding a worthless check and giving notice in substantially similar form to that provided above shall be immune from civil liability for the giving of such notice and for proceeding under the forms of such notice.”

This statute merely provides that the state has proven a prima facie case by introducing the check which is dishonored due to lack of funds if the defendant has been given written notice of the dishonor of the check and has not paid the same within 20 days. Therefore, this statute deals with the burden of proof and does not provide a defense to the crime.

Several states have similar statutes creating such a statutory presumption of intent. The court in State v. Haremza, 213 Kan. 201, 515 P.2d 1217 (1973), held the statutory presumption constitutional and noted that the written notice is not a prerequisite to the prosecution of the crime of writing a worthless check. The presumption merely gives the state the choice of relying on the presumption or alternatively of specifically proving the defendant’s intent to defraud.

Additionally, the Supreme Court of Colorado in People v. Vinnola, 177 Colo. 405, 494 P.2d 826 (1972), held unconstitutional a statute that provided that it was a complete defense to a charge of passing a worthless check if payment was made within 15 days after dishonor. The court’s rationale was that this statutory defense gave a third party control over whether a passer of bad checks was convicted and that the defense caused the statute to be merely a collection device for creditors rather than a criminal statute.

Therefore, we hold that Section 832.07, Florida Statutes (1975), sets forth the elements necessary to establish prima facie intent. If the burden provisions of the statute are not satisfied, the state will have the burden of specifically proving the defendant knew he did not have sufficient funds to pay the check. Likewise, if the notice provisions were complied with and the defendant has made the check good the state will also have the burden of specifically proving the defendant knew he had insufficient funds to pay the check.

Accordingly, we hold that the trial court correctly denied defendant’s motion to dismiss; therefore, the final judgment is affirmed.

AFFIRMED.

CROSS and LETTS, JJ., concur.

      . Alley v. Paderick, 373 F.Supp. 920 (W.D.Va.1974); Tolbert v. State, 294 Ala. 738, 321 So.2d 227 (1975); Smithson v. State, 222 Tenn. 499, 438 S.W.2d 61 (1969).


text:
    In the Interest of I. D. K., a child.
    Nos. 77-1094, 77-1286 and 77-1300.
    District Court of Appeal of Florida, Fourth District.
    July 12, 1978.
    Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Benedict P. Kuehne, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

The juvenile defendant herein pled guilty to one petition and not guilty to two other petitions. The juvenile was tried on the two not guilty pleas and found guilty. A motion to withdraw the guilty plea was made and denied. Eventually, the juvenile was adjudicated guilty of all three offenses and committed to the Division of Youth Services. Although certain procedural irregularities do appear in regard to acceptance of the initial plea of guilty, we are convinced from the totality of the record that the commitment to the Division of Youth Services was entirely proper and supported by the record and the adjudications of guilt on the two contested charges. These two adjudications are also before us on appeal and they are hereby affirmed. Since we believe the result to be the same, the matter below is affirmed in its entirety.

CROSS, ANSTEAD and BERANEK, JJ., concur.


text:
    Walter J. MANLEY, Appellant, v. Jeanette MANLEY, Appellee.
    No. 77-1118.
    District Court of Appeal of Florida, Fourth District.
    July 12, 1978.
    Bruce W. Jacobus of Ferrell & Jacobus, Melbourne, for appellant.
    Edward L. Trader, Melbourne, for appel-lee.
   DOWNEY, Chief Judge.

In this dissolution of marriage proceeding, initiated by the wife, the husband did not appear though served with process.

In her complaint the wife claimed the marital domicile because she alleged her mother had given the property to her and she needed it as a place of abode. The title to said property was held by the parties as tenants by the entireties. A default was entered against the husband and at the final hearing the only proof regarding the marital domicile was the following testimony adduced from the wife:

“The house was given to us by my mother when we were married and I would like it to be returned to me.”

She was then asked:

“Q Because of that gift, you feel you have a special equity in the house?
“A Yes, I do, because my mother helped us several times to pay the payments on the house. My husband wasn’t working.”

In the final judgment the trial court found that the wife was entitled to a special equity in the marital domicile and thus it awarded her the husband’s entire interest in the home and furnishings. In addition, the judgment made a temporary order on visitation permanent. The temporary order had provided that the husband would have no visitation rights with his children until the final hearing, at which time visitation would be considered further.

Appellant raises two points on appeal: 1) the court erred in finding a special equity in the marital home and 2) the court erred in denying appellant visitation rights with his children.

The award of a special equity to the wife of the husband’s half interest in the marital home is unsupported in the record. True, the wife requested the house in her complaint and the husband did not answer. However, even in the face of a default by the defendant, a plaintiff in a marriage dissolution case must prove the allegations of the complaint and the entitlement to various property awards. 10 Fla.Jur., Dissolution of Marriage, etc., § 199. Here the only proof offered was that the wife’s mother made a gift of the marital house to both the husband and the wife and that title was taken jointly. No extended discussion is needed to demonstrate that this evidence falls far short of the quality necessary to prove a special equity. Harrison v. Harrison, 314 So.2d 812 (Fla. 3rd DCA 1975).

Accordingly, the provision of the judgment appealed from which awards appellee a special equity in the marital home is reversed and the cause is remanded with directions to reconsider the appellee’s prayer for monetary relief. Secondly, upon remand we direct the trial court to consider visitation rights for appellant and enter an appropriate order thereon. In considering those matters the trial court may take further testimony.

REVERSED AND REMANDED with directions.

DAUKSCH and MOORE, JJ., concur.


author: BERANEK, Judge.

text:
    M. Fred TOMS, Appellant, v. SENTINEL STAR COMPANY, Delaware Corporation, Appellee.
    No. 77-1123.
    District Court of Appeal of Florida, Fourth District.
    July 12, 1978.
    Peter N. Smith, Orlando, for appellant.
    Joseph E. Isaac, III, of Mateer, Harbert, Bechtel & Phalin, P. A., Orlando, for appel-lee, Sentinel Star Co.
   BERANEK, Judge.

The defendant appeals an adverse final summary judgment. Plaintiff sued on a written personal guarantee in which defendant promised to be responsible for advertising expenses incurred by a corporate principal. Defendant contends the trial court erred in failing to grant judgment on the pleadings in defendant’s favor and in striking the defendant’s affirmative defense based on the Statute of Limitations. We find error in the striking of the affirmative defense and reverse.

Since both parties agree that the guarantee is governed by a five-year Statute of Limitations, we do not decide this question. The issue litigated below was when the limitation period began to run. Defendant contends the statute began to run at the moment the guarantee was signed without regard to when the principal first defaulted. The trial court correctly rejected this contention and denied defendant’s motion for judgment on the pleadings. The limitation period began to run upon the default.

At the time of the striking of the affirmative defense, there was no indication in the record as to when the default in payment first occurred. Although RCP 1.140(b) provides for the striking of defenses for failure to “state a legal defense,” this Rule could not have been a basis for striking this defense since the starting time for computing the period was not yet established. The defense of the Statute of Limitations should have remained in the case. Depending upon the established date of default, the defense may or may not have survived the eventual motion for summary judgment. The summary judgment below is reversed. The case is remanded for further proceedings consistent with this opinion.

CROSS, MOORE and BERANEK, JJ., concur.


text:
    KENILWORTH INSURANCE COMPANY, Appellant, v. Samuel MacMILLAN, Calvin Curry, James Willy Young and Bessie Mae Foster and Elijah Davis, Doretha Rowell McMullen and American Foods Inc., Appellees.
    No. 77-1921.
    District Court of Appeal of Florida, Fourth District.
    July 12, 1978.
    Marjorie D. Gadarian of Jones, Paine & Foster, West Palm Beach, for appellant.
    Maureen L. McGill of Adams, Sullivan, Coogler, Watson & Smith, West Palm Beach, for appellee-McMullen.
   PER CURIAM.

This is an interlocutory appeal from a summary judgment on the issue of insurance coverage. The trial court found a “public or livery conveyance” exclusion to be inapplicable under stipulated and undisputed facts. After review, this court concludes that both the facts and law fully support the trial court’s finding. The vehicle in question was not used as a public or livery conveyance as this exclusion has been defined. Greyhound Rent-A-Car, Inc. v. Carbon, 327 So.2d 792 (Fla. 3d DCA 1976). The summary judgment below is, therefore, affirmed.

CROSS, MOORE and BERANEK, JJ., concur.


text:
    Thomas STANTON and Rita Stanton, his wife, Petitioners, v. COMMUNITY HOSPITAL OF SOUTH BROWARD, Dr. Richard T. Neal, Dr. David L. Berndt, Dr. Larry I. Gilderman, Berndt & Gilderman, D. O., P. A., Dr. Herbert Pardell, Dr. Alan L. Menkes, Sage Medical Assoc., Dr. Edgar B. Bolton, Dr. Allan Fields & Dr. James Lee, Respondents.
    No. 77-2506.
    District Court of Appeal of Florida, Fourth District.
    July 12, 1978.
    Linda Koenigsberg of Cohen & Kokus, Miami, for petitioners.
    A. H. Toothman of Bradford, Williams, McKay, Kimbrell, Hamann <£> Jennings, P. A., Miami, for respondents Berndt, Gilder-man and Berndt & Gilderman, D. 0., P. A.
   PER CURIAM.

Petition for Writ of Certiorari DENIED. See Stanton v. Community Hospital of South Broward et al., 359 So.2d 37, Fourth DCA Case, opinion filed May 31, 1978.

CROSS, ANSTEAD and MOORE, JJ.; concur.


text:
    Babette TRAUB and Natalie Kaplan, as Personal Representatives of the Estate of Henry Fay, Deceased, and Eleanor Madison, Individually, Petitioners, v. Mervyn PLATT, Allan Plapinger, and Wallace Plapinger, d/b/a Eastern State Properties and Reserve Insurance Company, a Foreign Insurance Corporation, Respondents.
    No. 77-2576.
    District Court of Appeal of Florida, Fourth District.
    July 12, 1978.
    Arnold R. Ginsberg of Horton, Perse & Ginsberg, Miami, and Sadow & Lynne,-P. A., North Miami, for petitioners.
    Nancy Little Hoffmann, Fort Lauderdale, for respondents.
   PER CURIAM.

Certiorari denied.

DOWNEY, C. J., and CROSS and MOORE, JJ., concur.