author: GOBBIE, EVELYN, Associate Judge.

text:
    MEMORIAL PARK, INC., a corporation, and Zurich Insurance Company, Appellants, v. Marie SPINELLI, Appellee.
    No. 76-177.
    District Court of Appeal of Florida, Second District.
    Feb. 11, 1977.
    Rehearing Denied March 18, 1977.

      Charles S. Carrere of Harrison, Greene, Mann, Rowe & Stanton, St. Petersburg, for appellants.
    William F. Blews of Blews & Everhart, and Dominic Amadio of Amadio & Wood-ruff, St. Petersburg, for appellee.
   GOBBIE, EVELYN, Associate Judge.

Appellant Cemetery, MEMORIAL PARK, INC., defendant below, appeals from a final judgment rendered against it and its insurance company in a wrongful death action brought by the decedent’s ad-ministratrix. This case involves a collision between a southbound motor vehicle, emerging from appellant’s private driveway, and a motorcycle approaching from the west on 54th Avenue North in St. Pe-tersburg. The motorcyclist was killed immediately upon impact on 54th Avenue.

Since the driver of the motor vehicle (one Mrs. Knupfer) settled with appellee for $10,000 during the trial, she is not involved in this appeal. The jury awarded appellee $210,000 and judgment was entered for $200,000. This appeal followed.

Appellant will be referred to as the Park; the driver of the motor vehicle as Mrs. Knupfer and the decedent as Mr. Spinelli.

Appellee maintained that the Park was negligent in placing a Nativity sign at the entrance of its Cemetery, known as Memorial Park. (The accident occurred just before Christmas). It was claimed that the sign obstructed Mrs. Knupfer’s line of sight between her and Mr. Spinelli, thus causing the collision. The sign invited the public to visit a Nativity scene in the Park and had an arrow pointing into the Cemetery. Its dimensions were 4' X 3', with a 4'6" post holding it up. It was located 21T1" from the side of 54th Avenue North, 17'3" from the Cemetery fence line and 10' from the side of the private driveway. The Park had inadvertently placed it on the public right-of-way.

Basically, two grounds are argued for reversal:

1. The trial court erred in admitting into evidence a copy of Section 316.-135(2), Florida Statutes, and giving Florida Standard Jury Instruction 4.11 with relation thereto.
2. The trial court erred in denying defendant’s motion for a directed verdict.

Both grounds are well taken.

Although it is unnecessary to decide upon the first ground since the trial court is reversed for failure to grant a directed verdict, this court feels that such a course may be of assistance to the Bench and Bar in the future.

In order to determine the propriety of the lower court’s action, it is necessary to consider the statute as a whole. Section 316.135, Florida Statutes, reads as follows:

“Display of unauthorized signs, signals or markings
(1) No person shall place, maintain or display upon or in view of any highway any unauthorized sign, signal, marking or device which purports to be or is an imitation of or resembles an official traffic control device or railroad sign or signal, or which attempts to direct the movement of traffic, or which hides from view or interferes with the effectiveness of any official traffic control device or any railroad sign or signal.
(2) No person shall place or maintain nor shall any public authority permit upon any highway any traffic sign or signal bearing thereon any commercial advertising.
(3) This section shall not be deemed to prohibit the erection upon private property adjacent to highways of signs giving useful directional information and of a type that cannot be mistaken for official signs.
(4)Every such prohibited sign, signal or marking is declared to be a public nuisance and the authority having jurisdiction over the highway is empowered to remove the same or cause it to be removed without notice.”

The substance of Standard Jury Instruction 4.11, which provides as follows, was read to the jury:

“Violation of a traffic regulation prescribed by (statute) (ordinance) is evidence of negligence. It is not, however, conclusive evidence of negligence. If you find that a person alleged to have been negligent violated such a traffic regulation, you may consider that fact, together with other facts and circumstances in determining whether such person was negligent.”

The lower court looked upon the sign as a “traffic sign” under the statute but all it amounted to was a sign “giving useful directional information and of a type that cannot be mistaken for official signs.” It came within the intent of (3), but for its location. Its only transgression was being on the right-of-way, giving appellee a so-called “out.”

The appellee called an expert witness to express opinions as to whether or not the subject sign would have obscured the line of visibility between the vehicle and cycle. Upon this predicate, the offending (2) was admitted, followed by the “violation of a traffic regulation” charge. Since it was not a traffic sign, (2) was inapplicable and the “violation” instruction was error. Charges to the jury must be based upon facts in proof and if not so based, it is error to give them. Baggett v. Davis, 124 Fla. 701, 169 So. 372 (1936).

Even assuming arguendo it was a traffic sign, it would still have been error since the purpose of admitting (2) was a predicate for the “obstruction of visibility” testimony. There is no causal connection between the sign bearing “commercial advertising” and the accident. The statute has no provision against signs obstructing visibility of traffic.

Appellee’s contention that this sign attempted to direct the movement of traffic is without merit. In no possible way can it be designated an “official traffic sign.” Although, technically, it was on the public right-of-way, it came under the intent of (3). To have allowed the jury to consider it as a traffic sign was extremely misleading.

As set forth in (1), the legislature wished to protect the driving public by preventing persons from tampering with official traffic control devices — from imitations, attempts to direct the movement of traffic, hiding signs from view or interfering with their effectiveness. From a reading of (1), it is obvious that the purpose of (2) was to prevent persons from putting up their own advertising signs on official traffic signs or controls, thus prohibiting private enterprise from utilizing official signs for their own private purpose but even more importantly, to prevent diverting the public’s attention from the sign or signal itself, thus creating a traffic hazard.

Comment (i), Page 28, Section 286, Restatement of Torts (Second Edition-1965), provides the following:

“A statute or ordinance may be construed as intended to give protection against a particular form of harm to a particular interest. If so, the violation of the enactment will not be negligence unless the harm which the violation causes is that from which it was the purpose of the enactment to protect the other.”

The trial court erred in determining that the Nativity sign was a “traffic sign” falling within the confines of Section 316.-135(2), Florida Statutes. Section 2 should not have been admitted into evidence and Florida Standard Jury Instruction 4.11 should not have been given.

Let us now turn to the trial court’s denial of the defendant’s Motion for Directed Verdict. It is readily agreed that it is reversible error to direct a verdict when there is some substantial evidence tending to prove the plaintiff’s case. Hill v. American Home Assurance Company, 193 So.2d 638 (Fla.2d DCA 1966). We also have no quarrel with the proposition that for the purpose of a Motion for Directed Verdict, the truth of all facts is admitted, as well as every conclusion or inference that could be drawn favorable to the adverse party. Further, if the evidence is conflicting or different conclusions or inferences could be drawn, the motion must be denied. This is basic law and these words have been said many times, many ways. However, it is still basic law that when the evidence considered in its entirety and reasonable inferences to be drawn therefrom fail to prove the plaintiff’s case, it is appropriate to direct a verdict for the defendant. Hartnett v. Fowler, 94 So.2d 724 (Fla.1957).

As previously set forth, the sign’s dimensions were 4' X 3', with the base 4'6" from the ground. It was located 21'11" from the roadway. Mrs. Knupfer said she stopped at a point where the front of her automobile was approximately 23' from the edge of the roadway before proceeding forward.

The dimensions involved are the pivotal point. Mrs. Knupfer was, as one witness put it, “quite a ways from the actual road,” when she stopped. Another witness testified, “She started to cross the road as though she saw nothing, right into the path of the motorcycle.”

Mrs. Knupfer herself testified that when she stopped, there was nothing obstructing her view. However, assuming, arguendo, the sign obscured her vision to the west when she stopped 23' from the roadway, it is undisputed that she had a clear, unobstructed view to her right, once she passed the sign. Even if the sign obstructed her vision, it did not cause the accident. In no possible way could it have done so. She said she stopped, looked to her left, then to her right, and then went straight ahead. It is significant that when asked if she looked again to her left and right, after that, she replied, “I convinced myself that nobody was coming,” and then looked straight ahead, driving toward the road, without looking again. Nothing is more obvious than had Mrs. Knupfer looked again to her right, after she passed the sign, she would have had a completely unobstructed view of the deceased approaching on his motorcycle. Had she only done so, this tragic accident would never have occurred.

If someone is negligent, then he or she must pay for the transgression. However, one cannot pluck negligence out of the air. As Justice Cardozo so aptly put it, in the landmark case of Palsgraf v. Long Island R. Co., 248 N.Y. 339, 162 N.E. 99 (1928),

“. . . the orbit of the danger as disclosed to the eye of reasonable vigilance would be the orbit of the duty.”

Again,

“. . . The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension.”

Foresight of harm lies at the foundation of the duty to use care and therefore of negligence. 57 Am.Jur.2d, Negligence, Section 58. As the court stated in Smith’s Bakery, Inc. v. Jernigan, 134 So.2d 519 (Fla.1st DCA 1961), “. . . ‘foreseeability’ is an essential element of actionable negligence.” See also this court’s opinion in Adair v. The Island Club, 225 So.2d 541 (Fla.2d DCA 1969), on the significance of foreseeability.

In order to be negligent, the Park would have to have foreseen that someone would leave without checking traffic after passing the sign (21'11" from the road). Such foreseeability is not only unrealistic but against all common sense.

This court is cognizant of the fact that whenever possible a jury verdict should be judicially honored. Therefore, when a verdict as rendered is consistent with applicable principles of law, it should be allowed to lie undisturbed. Where, as here, that verdict does not meet the required standard, it must be set aside. Accordingly, the judgment appealed is reversed with directions that it be set aside and judgment entered for the defendant.

Reversed.

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Frank KERDYK, Realtor, Appellant, v. HAMMOCK OAKS ESTATES, INC., and J & L International Corporation, Appellees.
    No. 75-1963.
    District Court of Appeal of Florida, Third District.
    Feb. 15, 1977.

      Herbert A. Warren, Miami, for appellant.
    Martin Levinson, Miami, for appellees.
    Before HENDRY, C. J., and BARKDULL and NATHAN, JJ.
   PER CURIAM.

This is an appeal from an order of the lower court which (1) set aside a final judgment entered in accordance with a jury verdict awarding appellant-plaintiff a brokerage commission; (2) granted appellees-defendants’ motion for a directed verdict and (3) entered a final judgment therefrom.

Appellant, a registered real estate broker, supplied appellees, the owners of an undeveloped parcel of real estate, with a purchaser for said real estate, pursuant to an informal discussion between the parties. Appellant understood the purchase price to be $50,000.00 gross, i. e., commission to be deducted from said amount by appellees. Upon being presented with a sales contract executed by the purchaser in the above amount, appellees stated to appellant that the price was acceptable, however, no brokerage commission would be paid from the $50,000.00 selling price.

Upon refusal of appellees to enter into said sales contract, appellant returned the deposit check to the purchaser. Three days later, appellees conveyed the property to the sister-in-law of the president of appel-lee-Hammock Oaks Estates, Inc., who, that same day conveyed the property to the aforementioned purchaser for the sum of $50,000.00.

Appellant thereupon filed suit in the lower court, seeking his brokerage fee from appellees. There was conflicting testimony presented to the jury concerning the selling price of the property. Appellees testified that the $50,000.00 selling price represented a net figure. Appellant stated that no net figure had been mentioned and that, pursuant to custom, he believed that appellee had impliedly agreed to pay him a commission for his efforts in procuring the purchaser.

At the close of all the evidence, appellees moved for a directed verdict. The court reserved ruling on said motion and submitted the case to the jury. The jury returned a verdict of $5,000.00 in favor of appellant, said amount reflecting the customary brokerage fee of 10% used for undeveloped land transactions. Appellees thereupon timely renewed their motion for directed verdict and/or in the alternative for new trial. The motion was granted and the court entered its order setting aside the final judgment for appellant and entered judgment for appellees. This appeal follows.

Appellant contends that the trial judge erred in setting aside the jury’s verdict and directing a verdict for appellees in that there was competent substantial evidence to support the jury’s decision. We agree.

A post trial motion for directed verdict should be granted only where it is clear that a jury could not have reasonably differed as to the existence of a material fact and that the movant is entitled to a judgment as a matter of law. Mathis v. Lambert, 274 So.2d 601 (Fla. 3d DCA 1973).

Appellant presented ample testimony to support his contention that an informal agreement had been reached between the parties concerning the sale of the real estate. The question of whether the selling price of the property was to be $50,000.00 net or gross was a question of fact, properly placed before the jury, and answered in appellant’s favor.

No formal agreement need exist as a prerequisite for a broker to recover a commission for services rendered in the sale of real estate. Foley-Carter Ins. Co., Inc. v. Commonwealth Life Ins. Co., 128 F.2d 718 (5th Cir. 1942). In addition, in the absence of any special agreement, when a seller places property with a broker for sale, he impliedly agrees to pay a customary commission to the broker. Blackburn v. Alachua County Broadcasting Company, 126 So.2d 303 (Fla. 1st DCA 1961).

Even if no direct employment existed, whether formal or informal, there was ample evidence from which the jury could conclude that appellant was the procuring cause of the sale of said real estate and legally entitled to compensation. National Airlines, Inc. v. Oscar E. Dooly Associates, Inc., 160 So.2d 53 (Fla. 3d DCA 1964).

Taking the facts in the light most favorable to appellant as the non-moving party, Mathis, supra, we believe that there was competent substantial evidence to support the jury’s verdict awarding appellant his brokerage commission.

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

Reversed and remanded with directions to reinstate the final judgment rendered pursuant to the jury’s verdict awarding appellant his brokerage fee.


text:
    Melvin WOLFE, Esquire, as Personal Representative of the Estate of William Barnett Kliger, Deceased, and on Behalf of Irwin and Betty Kliger, Parents of the Late William Barnett Kliger, Appellant, v. BRISTOL-MEYERS COMPANY, Appellee.
    No. 76-218.
    District Court of Appeal of Florida, Third District.
    Feb. 15, 1977.
    Rehearing Denied March 14, 1977.
    Whitman & Wolfe, Miami, for appellant.
    Pyszka, Kessler, Adams & Solomon, Richard M. Gale, Miami, for appellee.
    Before HENDRY, C. J., NATHAN, J., and DREW, E. HARRIS (Ret.), Associate Judge.
   PER CURIAM.

This appeal questions the correctness of a summary final judgment entered in favor of the defendant-appellee, in a wrongful death action arising out of an alleged breach of implied warranty of merchantability.

Upon careful consideration of the record on appeal, the briefs and arguments of counsel, we have determined that the plaintiff-appellant has conclusively established that there are material issues of fact to be determined by the trier of fact, and that defendant-appellee was not entitled to a summary judgment as a matter of law. Francis v. General Motors Corporation, 287 So.2d 146 (Fla.3d DCA 1974).

Therefore, the summary judgment is reversed and the cause is remanded for further proceedings.

Reversed and remanded.


text:
    Michael M. TOBIN and American Home Assurance Company, Appellants, v. Lester R. WITHERSPOON, Appellee.
    No. 76-310.
    District Court of Appeal of Florida, Third District.
    Feb. 15, 1977.
    Fowler, White, Burnett, Hurley, Banick & Knight and A. Blackwell Stieglitz, Miami, for appellants.-
    D’Aiuto, Dean, Anderson, Morgán, Ringers & Walker, Orlando, for appellee.
    Before PEARSON and BARKDULL, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The appellee Lester R. Witherspoon incurred certain serious injuries during the course of his- employment. He engaged the appellant Michael M. Tobin, an attorney licensed to practice law in Florida, to file a claim therefor on his behalf for workmen’s compensation benefits. The attorney failed to file such claim within the time allowed therefor by law. Based on that neglect, to recover for his consequent losses, Wither-spoon filed this malpractice action against Tobin and his insurer. On trial of the cause, a jury verdict was rendered in favor of the plaintiff in which the amount of damages awarded was $143,000.00. Judgment was entered thereon. A motion of the defendants for a new trial was denied, and they appealed.

Appellants contend the damages awarded by the verdict did not have the support of substantial competent evidence, and that some circumstances at the trial and certain improper final argument by plaintiff’s attorney amounted to prejudice to defendants for which a new trial should have been granted. Upon consideration thereof in the light of the record, briefs and argument, we find such contentions of the appellants to be without merit, and hold that no reversible error has been made to appear.

Affirmed.


author: PEARSON, Judge.

text:
    Norman M. ATKINS, Jr., et al., Appellants, v. BELLEFONTE INSURANCE COMPANY, Appellee.
    No. 76-766.
    District Court of Appeal of Florida, Third District.
    Feb. 15, 1977.
    Rehearing Denied March 11, 1977.
    High, Stack, Davis & Lazenby, Joe N. Unger, Richard M. Welsh & Associates, Thornton, Dougherty & Conroy, Miami, for appellants.
    Adams, George, Lee & Schulte, Miami, for appellee.
    Before HENDRY, C. J., and PEARSON and BARKDULL, JJ.
   PEARSON, Judge.

The plaintiff Norman M. Atkins, Jr. was injured when his automobile was struck by an automobile owned by Grant School of Miami, Inc., and operated by an employee of the School. The complaint alleges that the collision occurred when the employee was returning to the School with an escaped minor, Scott Dackerman. It is alleged that Dackerman “ . . .so carelessly conducted himself as to contribute to the accident . . . ” This is an appeal from an order dismissing one of the defendants, Bellefonte Insurance Company. The issue involved is whether the Bellefonte insurance policy which contained an exclusion that the policy did not apply “ . . .to the ownership, maintenance, operation, use, loading or unloading of any motor vehicle, trailer, watercraft or aircraft” afforded coverage or the duty to defend the suit by Atkins. We hold that the policy did not cover the automobile collision and we affirm.

The cause is before us upon the appeal of the plaintiff and a joinder in appeal by defendant, Grant School of Miami, Inc., and a second joinder in appeal by defendant Lumbermens Mutual Casualty Company. Defendant Grant School of Miami, Inc., has filed an assignment of error directed to an order which denied Grant School’s and Lumbermens’ motion to file a third party complaint against Bellefonte Insurance Company. The assignment is not argued in appellant Atkins’ brief, although the brief is signed by the parties who joined in the appeal. The assignment of error upon join-der in appeal need not be considered further. See Fla.App. Rule 3.7(i) and TriCounty Produce Distributors, Inc. v. Northeast Production Credit Association, 147 So.2d 587 (Fla.1st DCA 1962).

The plaintiff urges that the allegations of the complaint and the amended second amendment to the complaint are sufficient to show that the alleged negligence of the School in allowing the minor’s escape and in not properly handling the return of the minor to the School fell within Bellefonte’s coverage. Thereupon, it is argued that the damages from the automobile collision which followed from the escape and the improper handling of the return constitute damages that are partially covered by Bellefonte’s policy. See Garden Sanctuary, Inc. v. Insurance Company of North America, 292 So.2d 75 (Fla.2d DCA 1974); C. A. Fielland, Inc. v. Fidelity Casualty Company of New York, 297 So.2d 122 (Fla.2d DCA 1974); and Stevens v. Horne, 325 So.2d 459 (Fla.4th DCA 1975). We hold that the cited cases do not apply because the plaintiff’s damages resulted from the use of a motor vehicle. Not only was the plaintiff’s damage a primary consequence of the School’s use of the motor vehicle, but also it could not have occurred without the use of the School’s motor vehicle. The events which brought the motor vehicle to that time and place were not legal causes of the collision. Cf. National Indemnity Co. v. Corbo, 248 So.2d 238 (Fla.3d DCA 1971); and Valdes v. Smalley, 303 So.2d 342 (Fla.3d DCA 1974). The insurance contract determines the conditions and limits of coverage, see Fernandez v. United States Fidelity and Guarantee Company, 308 So.2d 49 (Fla.3d DCA 1975), unless its provisions are contrary to law. See Zipperer v. State Farm Mutual Automobile Insurance Company, 254 F.2d 853 (5th Cir. 1958).

Affirmed.


text:
    Pamela N. WHITEHEAD, a minor, by her father and next friend, Zovak Najarian, Appellant, v. CENTRAL TELEPHONE CO. OF FLORIDA, Appellee.
    No. BB-228.
    District Court of Appeal of Florida, First District.
    Feb. 16, 1977.
    Rehearing Denied March 17, 1977.
    Zovak Najarían, in pro. per.
    H. 0. Pemberton and Michael L. Granger, Keen, O’Kelley & Spitz, P.A., Tallahassee, for appellee.
   PER CURIAM.

We have carefully considered this appeal upon the briefs, record and oral argument. There was substantial competent evidence to support the jury’s verdict, and we are unauthorized to substitute a contrary view concerning the weight of the evidence. No prejudicial error has otherwise been demonstrated.

AFFIRMED.

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


author: GRIMES, Judge.

text:
    The WICKES CORPORATION, d/b/a Wickes Homes, a Delaware Corporation, Appellant, v. Ray Robert MOXLEY and Patricia B. Moxley, husband and wife, Appellees.
    No. 76-532.
    District Court of Appeal of Florida, Second District.
    Feb. 16, 1977.
    Rehearing Denied March 16, 1977.
    Stephen E. Tanner, Venice, and W. Eugene Williams, Jr., Venice, for appellant.
    Andrew J. Britton, of Korp, Wheeler & McGill, P. A., Venice, for appellees.
   GRIMES, Judge.

This appeal turns on the question of whether there is any longer a requirement under the new Constitution for a mortgage of homestead realty to be signed in the presence of two attesting witnesses.

Appellant (Wickes) is the manufacturer of mobile homes. Appellee (Moxley) was the principal in a dealership selling mobile homes manufactured by Wickes. In 1974 Moxley sold several mobile homes but failed to pay Wickes for the monies owing on these units. In an effort to straighten out the problem, Moxley and his wife signed a promissory note for the indebtedness and gave Wickes a second mortgage on their home to secure the indebtedness. The note subsequently went into default, and Wickes foreclosed.

At the trial it was developed that the mortgage, even though facially appearing to be properly attested, was not actually signed in the presence of two witnesses. The court declared the mortgage invalid on this basis but entered a summary judgment for Wickes on the note.

The record supports the court’s finding that the mortgage was not properly witnessed. Likewise, there is enough evidence that Wickes knew or should have known of this to sustain the court’s rejection of Wickes’ claim of estoppel. Cf. Cox v. La Pota, 76 So.2d 662 (Fla.1954). While the home was owned as a tenancy by the entirety, the parties agreed that it occupied the status of a homestead for purposes of the foreclosure proceedings. See Oates v. New York Life Ins. Co., 113 Fla. 678, 152 So. 671 (1934). Therefore, the effect of the absence of two attesting witnesses is squarely presented.

There is no statute in Florida specifying that a mortgage must be signed in the presence of two witnesses, and our Supreme Court has held that there is no common law requirement for a mortgage of non-homestead property to be witnessed. Teate v. Anderson, 122 Fla. 81, 164 So. 849 (1935). However, long prior to the adoption of our 1968 Constitution, a mortgage of homestead property was deemed invalid unless it was executed in the presence of two attesting witnesses. McEwen v. Sehenck, 108 Fla. 119, 146 So. 839 (1933); Hutchinson v. Stone, 79 Fla. 157, 84 So. 151 (1920). The rationale for these decisions was predicated upon a construction of Article X, Section 4 of the old Constitution which read:

“Section 4. Homestead may be alienated by husband and wife. — Nothing in this Article shall be construed to prevent the holder of a homestead from alienating his or her homestead so exempted by deed or mortgage duly executed by himself or herself, and by husband and wife, if such relation exists; nor if the holder be without children to prevent him or her from disposing of his or her homestead by will in a manner prescribed by law.”

Our Supreme Court in Hutchinson v. Stone, supra, construed this language to mean:

“A deed or mortgage, to be ‘duly executed * * * by husband and wife,’ must be executed as required by the statutes, that is, signed, sealed, and delivered by each of them, attested by two witnesses as to each signature, and as to the wife a statutory ‘acknowledgment’ is a part of the due execution of a deed or mortgage. This acknowledgment must be ‘before some officer authorized to take acknowledgment of deeds, separately and apart from her husband, that she executed the same freely and voluntarily and without compulsion, constraint, apprehension or fear of or from her husband, and the officer’s certificate shall set forth all the foregoing requirements.’ Section 2462, Gen.Stats.1906.”

The requirement of a separate acknowledgment by the wife was later dropped when the applicable statute was repealed. While statutory law required only deeds and not mortgages to be witnessed, the courts construed the words “duly executed” as contained in Article X, Section 4 to mean that a mortgage of a homestead must be executed with the same statutory formalities required of a deed. Hence, the requirement for two witnesses on a homestead mortgage was carried forward into later cases. Perry v. Beckerman, 97 So.2d 860 (Fla.1957); Hamilton v. Corcoran, 177 So.2d 64 (Fla.2d DCA 1965); Lieberman v. Burley, 100 So.2d 88 (Fla.2d DCA 1958).

The new constitutional provision on the subject is Article X, Section 4(c) which reads:

“(c) The homestead shall not be subject to devise if the owner is survived by spouse or minor child, except the homestead may be devised to the owner’s spouse if there be no minor child. The owner of homestead real estate, joined by the spouse if married, may alienate the homestead by mortgage, sale or gift and, if married, may by deed transfer the title to an estate by the entirety with the spouse. If the owner or spouse is incompetent, the method of alienation or encumbrance shall be as provided by law.”

Thus, the language of the new provision has been rephrased in the form of an authorization to alienate the homestead rather than as an exception to a restriction against alienation, and the words “duly executed” have been omitted.

Our court almost decided this question in Reliable Finance Company v. Axon, 336 So.2d 1271 (Fla.2d DCA 1976), but concluded that it was unnecessary to do so because the record did not support the conclusion that the property in issue was homestead. However, we said at that time:

“At common law, attestation of a mortgage was not necessary and no Florida statute now requires it. True it is, that prior to the [1972 amendment to] the Florida Constitution relating to homesteads, case law required two witnesses on a mortgage against a homestead for the reason that under the prior constitutional provisions a homestead could only be mortgaged by a ‘duly executed’ instrument; and the courts uniformly held that ‘duly executed ’ under these provisions meant that such a mortgage had to be executed with the formality of a deed as required by § 689.01 of our statutes which, going back to 1891, required the presence of two subscribing witnesses. The [1972 amendment to] the Constitution, viz. Art. X, § 4(c), however, omits the ‘duly executed’ requirement and simply provides: ‘The owner of homestead real estate, joined by the spouse if married, may alienate the homestead by mortgage, sale or gift. * * *’ We have serious doubts, therefore, whether the cases prior thereto which require two witnesses to the ‘duly executed’ mortgage of a homestead have continuing viability.”

We now take the step suggested in Reliable Finance Company v. Axon, supra, and hold that two witnesses are no longer required to the execution of a mortgage on homestead property. In so doing we recognize that certain recent cases which hold that an unwitnessed contract to sell homestead real estate cannot be enforced lend some support to the contention that the old rule is still viable with respect to mortgages. Koplon v. Smith, 271 So.2d 762 (Fla.1972); Carroll v. Dougherty, 302 So.2d 439 (Fla.2d DCA 1974); Shedd v. Luke, 299 So.2d 58 (Fla.1st DCA 1974); Radabaugh v. Ware, 241 So.2d 738 (Fla.4th DCA 1970). Thus, it may be argued that since an unwit-nessed contract to sell non-homestead real estate may be specifically enforced, the courts in requiring two witnesses to a contract to sell homestead realty are continuing to read Article X, Section 4 as requiring two witnesses for the validity of the instruments specified therein. However, we believe these decisions are not controlling because (1) they were not passing on the effect of the deletion of the words “duly executed” from Article X, Section 4 of the new Constitution; (2) they were dealing with contracts to sell real estate rather than mortgages and there remains on the books a statute which requires two witnesses to a deed; and (3) in the only Supreme Court case on the subject, the court simply upheld the ruling in Radabaugh v. Ware, and while not clear from the Radabaugh opinion, that mortgage appears to have been executed before the effective date of the new Constitution.

There are policy considerations on both sides of the issue. Certainly, the execution of a mortgage may lead to a forced sale upon default, and the requirement of two witnesses can have the effect of adding solemnity to the execution of a mortgage and provides the theoretical possibility of attendant advice by the witnesses upon its effect. On the other hand, there is probably less reverence for a specific parcel of land as being one’s homestead in today’s transient society, and if it be otherwise shown that the mortgage was actually signed and the consideration given, the lack of witnesses may have the practical effect of the lender being unable to get his money back. Be that as it may, we believe that the omission of the words “duly executed” in the new Constitution must be given effect to the extent that the court engrafted requirement of two witnesses on a homestead mortgage must give way. The legislature may always pass a law to reinstitute this requirement.

REVERSED.

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

      .The new language of Article X, Section 4(c) which is pertinent to our discussion was adopted as part of the 1968 Constitution which became effective on January 7, 1969. Therefore, our reference to the 1972 amendment was inadvertent because that amendment only changed other language in the subsection.

      . Dolan v. Wright, 289 So.2d 777 (Fla.4th DCA 1974).

      . § 689.01, Fla.Stat. (1975).

      . Koplon v. Smith, supra.


author: SMITH, Judge.

text:
    The TRAVELERS INDEMNITY COMPANY OF AMERICA, a Foreign Corporation, Appellant, v. William B. McINROY, Appellee.
    No. CC-267.
    District Court of Appeal of Florida, First District.
    Feb. 18, 1977.
    Rehearing Denied March 17, 1977.

      Anne C. Booth and Edgar C. Booth, of Hall & Booth, Tallahassee, for appellant.
    Roger W. Foote, Tallahassee, for appel-lee.
   SMITH, Judge.

Travelers appeals from a judgment awarding appellee Mclnroy personal injury protection benefits, with interest, payable under Travelers’ motor vehicle insurance contract and the Florida Automobile Reparations Reform Act, Section 627.730, et seq., Florida Statutes (1975). Mclnroy consumed a significant amount of alcoholic beverages, drove his insured truck into collision with another vehicle and was injured. He was convicted on his plea of no contest to driving while having a blood alcohol level of .1 percent or above, in violation of Section 316.028(3). Travelers sought to deny Mcln-roy personal injury protection benefits on the ground Section 627.736(2) authorizes insurance policies to exclude or deny such benefits

“(b) To any injured person, if such person’s conduct contributed to his injury under any of the following circumstances:
“2. Being convicted of driving while under the influence of alcohol . to the extent that his driving faculties are impaired. . . .”

The trial court ruled Mclnroy was not so convicted. We affirm.

Florida’s Uniform Traffic Control Law, Chapter 316, proscribes two distinct offenses related to driving after consuming excessive alcohol. The more serious penalties are assessed for violation of Section 316.028(1), which provides:

“(1) It is unlawful . . . for any person who is under the influence of alcoholic beverages, . . . when affected to the extent that his normal faculties are impaired, to drive or be in the actual physical control of any vehicle within this state.”

Section 316.028(3), enforced by somewhat lesser sanctions, provides:

“(3) It is unlawful . . . for any person with a blood alcohol level of 0.10 percent, or above, to drive or be in actual physical control of any vehicle within this state.”

The trial court held, and we agree, that the Automobile Reparations Reform Act excludes personal injury protection benefits, by virtue of Section 627.736(2)(b)2 first above quoted, for those who are convicted of the offense proscribed by Section 316.-028(1), but not for those who are convicted of the Section 316.028(3) offense of driving with a blood alcohol level of .1 percent or above.

The type of conviction on account of which Section 627.736 excludes no-fault benefits is described in language — driving under the influence to the extent one’s “driving faculties are impaired” — which is virtually identical to that of Section 316.-028(1) and markedly similar to Section 860.-01(1) of the criminal code, both of which were existing statutes when 627.736(2) was enacted in 1971. On the other hand, the descriptive language in the no-fault exclusion bears no similarity to that of 316.-028(3). Subsection (3) was not enacted until 1974, and so could not have been in the contemplation of 1971 legislation when enacted. See Chapter 74-384, Laws of Florida.

Travelers seeks to overcome comparisons of the statutory language and enactment dates by pointing to still other statutes which are said to reflect legislative policy ranking the conduct proscribed by subsections (1) and (3) as equally abusive of the driving privilege. E. g., Sections 322.-264(l)(b), 322.44, art. IV(l)(b); but see 322.-28(2)(a), Florida Statutes (1975). Travelers’ argument, that personal injury protection benefits should be denied those whose driving privileges are suspended or revoked for alcohol-related offenses, is properly addressed to the legislature, not to the courts.

Travelers next argues that a conviction under subsection (3) of 316.028 is tantamount to a conviction under subsection (1) because Section 322.262(2)(c) provides that proof of .1 percent or more by weight of alcohol in a person’s blood

“. . . shall be prima facie evidence that the person was under the influence of alcoholic beverages to the extent that his normal faculties were impaired.”

The inference thus supplied does not transform a conviction for violation of subsection (3) of 316.028 into a conviction for violation of subsection (1). Roberts v. State, 329 So.2d 296 (Fla.1976), is not to the contrary. Nor is it material that in this case the police citation contained in the record indicates a blood alcohol level of .2 percent, twice the measure made criminal by 316.028(3). The legislature made conviction of driving while intoxicated a ground for excluding personal injury protection benefits but did not make the fact of such driving an exclusionary ground, and did not license the trial court in this civil case to try the issue of whether Melnroy drove while under the influence of alcohol to the extent his driving faculties were impaired.

Travelers concludes with an argument that Mclnroy’s offense was equivalent to driving with impaired faculties because Section 322.281 forbade the criminal court to accept Mclnroy’s plea to the offense proscribed by subsection (3) of 316.028, driving with a blood alcohol level of .1 percent or above, unless it was equivalent in gravity to the offense proscribed by subsection (1). Section 322.281 provides:

“(2) No trial judge shall accept a plea of guilty to a lesser offense from a person charged under the provisions of this act who has been given a breath or blood test to determine blood alcohol content, the results of which show a blood alcohol content by weight of 0.20 percent or more.”

The quoted admonition is part of a statute which forbids withholding adjudication or sentence for driving while having an unlawful blood alcohol level or while under the influence of alcohol. Section 322.281(1). The offense of which Melnroy was convicted is one of the offenses which Section 322.281 seeks to preserve against mitigation by withheld adjudication or sentence or by reduction to a lesser charge. It is not one of the unfavored lesser charges, such as reckless driving, of which the statute speaks. The criminal court was empowered to accept Mclnroy’s incriminatory plea, notwithstanding that the plea was offered to the lesser of two offenses proscribed by 316.028.

We entirely agree with the trial court that:

“Had the Legislature intended to allow an exclusion in policies providing No-Fault Insurance Benefits if a person was convicted of a violation of Section 316.-028(3), (Operating a motor vehicle with blood alcohol level of 0.10% or above) it could have done so. This Court is of the opinion that it is obligated to construe the exclusions under Section 627.736 strictly. Therefore, it is the decision of this Court that a conviction of operating a motor vehicle with an unlawful blood alcohol content ... is not an authorized exclusion under Section 627.736(2)(b2), and further that the defendant improperly denied benefits under the policy of insurance issued in accordance with the Florida Automobile Reparations Reform Act.”

By cross-appeal, Melnroy urges the trial court erred in assessing an inadequate attorney’s fee. No error has been demonstrated. Mclnroy’s motion for an award of fees for the appellate services of his lawyer is granted, the amount to be assessed by the trial court.

AFFIRMED.

MILLS, Acting C. J., and ERVIN, J., concur.

      . “(1) It is unlawful for any person, while in an intoxicated condition or under the influence of intoxicating liquor ... to such extent as to deprive him of full possession of his normal faculties, to drive .... Any person convicted . . . shall be punished as provided in § 316.028.”


text:
    Ronald Stewart TICHENOR, Appellant, v. Rabun N. TICHENOR, Appellee.
    No. 76-974.
    District Court of Appeal of Florida, Second District.
    Feb. 18, 1977.
    Rehearing Denied March 18, 1977.

      Leonard Lubin, St. Petersburg, for appellant.
    Lawrence E. Lyman, St. Petersburg, for appellee.
   PER CURIAM.

In this dissolution proceeding the appellant has failed to show that the periodic alimony and child support awards were beyond the ambit of judicial discretion. However, appellant’s third point has merit and requires a modification of the judgment.

About two weeks before the parties separated, certain steel buildings were purchased for $19,000 and put in the name of the appellant. Pursuant to the rationale of Toby v. Toby, 280 So.2d 523 (Fla. 3d DCA 1973), and on the premise that the purchase money came from a joint account, the court determined that the appellee was entitled to be reimbursed for one-half the cost of the buildings. Yet, the record only shows that $3,400 of the purchase price came from joint funds. Therefore, the appellee’s equitable lien against these buildings must be reduced from $9,500 to $1,700.

The judgment is affirmed as modified herein.

McNULTY, Acting C. J., and GRIMES and OTT, JJ., concur.


text:
    Tillie W. LEE, Appellant, v. DADE COUNTY, a political subdivision of the State of Florida, Appellee.
    No. 75-689.
    District Court of Appeal of Florida, Third District.
    Feb. 22, 1977.

      Frates, Floyd, Pearson, Stewart, Proenza & Richman, Miami, for appellant.
    John E. Finney, Sam Daniels, Miami, for appellee.
    Before HENDRY, C. J., and NATHAN, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Appellant appeals from a final judgment entered pursuant to an adverse jury verdict in a negligence, personal injury action.

Plaintiff-appellant, an eighty-year old woman, suffered a broken hip while alighting from a bus operated by defendant-ap-pellee. It was appellant’s contention at trial, that the accident was proximately caused by appellee’s driver parking his bus in such a position that the exit door directly overlooked a recessed sewage drain. Appellant argued that, in so parking his vehicle in the above manner, the driver created a negligent condition, i.e., an unusually high (20 inches) final step, causing appellant to lose her balance upon disembarkment and fall, seriously injuring herself.

Appellee’s driver admitted that if he had parked the bus in such a manner, then he would have been in violation of appellee’s own safety rules, however, he denied that the drain was directly under the exit door. His testimony appeared to be corroborated by appellee’s accident investigator, whose photographs of the scene were introduced into evidence. (Curiously, no photograph was taken from a position directly head-on, so as to dispositively resolve the above issue.)

Appellant, on the other hand, introduced testimony of two eye-witnesses to the accident — the exiting passenger directly preceding appellant and the exiting passenger directly in back of appellant. Both testified that the drain was directly below the exit door. Another witness, a rescue squad worker, also testified to that same effect. It was also brought out by appellant that only a few feet further from where the bus had stopped was a safe disembarking area where a bus bench had been installed.

At the close of the trial, the jury retired, deliberated, and found for the defendant on the issue of negligence.' A final judgment was rendered in appellee’s favor and this appeal follows.

Appellant contends that the jury verdict for appellee was against the manifest weight of the evidence requiring reversal. In addition, appellant cites as error the trial judge’s failure to direct a verdict for appellant on the issue of liability and his failure to set aside the jury verdict.

Generally speaking, although the evidence may be susceptible to different inferences, a jury verdict is entitled to all reasonable inferences to be drawn from the evidence and said verdict is favored with a presumption of correctness. All-Star Insurance Corporation v. Scandia,.Inc., 321 So.2d 575 (Fla. 3d DCA 1975). As long as there was sufficient competent evidence before the jury from whence the jurors could have reached the findings of fact inherent in the verdict, an appellate court will not disturb the result. Thompson v. Jacobs, 314 So.2d 797 (Fla. 1st DCA 1975). This is true even though the court, sitting as jurors, might have reached a different conclusion. Hobeau Farm, Inc. v. Monroe Road Company, Inc., 223 So.2d 62 (Fla. 1st DCA 1969).

Resolving all conflicts in the evidence in appellee’s favor and taking all inferences fairly deducible therefrom, in the light most favorable to appellee, we must affirm the judgment based on the jury’s verdict. Prince Michael Corp. v. Zucker, 147 So.2d 332 (Fla. 3d DCA 1962); J. A. Cantor & Associates, Inc. v. Devore, 281 So.2d 245 (Fla. 3d DCA 1973).

In addition, there being contradictory evidence presented on the negligence issue, it was not error to refuse to direct a verdict for appellant on the issue of liability. Southern Bell Telephone and Telegraph Company v. Linder, 181 So.2d 697 (Fla. 3d DCA 1966).

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

Affirmed.


author: HENDRY, Chief Judge.

text:
    Louis FINE, Appellant, v. The TRAVELERS INSURANCE COMPANY, Appellee.
    No. 75-2029.
    District Court of Appeal of Florida, Third District.
    Feb. 22, 1977.
    Horton, Perse & Ginsberg, Ronald A. Alter, Miami, for appellant.
    Adams, George, Lee & Schulte and David L. Willing, Miami, for appellee.
    Before HENDRY, C. J., and BARKDULL and NATHAN, JJ.
   HENDRY, Chief Judge.

Plaintiff-insured appeals from a final judgment entered in the lower court in favor of defendant-insurer.

The final judgment provided that workmen’s compensation benefits available to plaintiff as a result of injuries sustained in a job related automobile accident were primary to any claim for personal injury protection benefits (p. i. p.) sought by plaintiff from his insurer and that workmen’s compensation received by plaintiff should be credited against p. i. p. coverage limits.

It is appellee-insurer’s contention that p. i. p. benefits are not required to be paid until the available workmen’s compensation insurance is exhausted. Once the benefits paid under said workmen’s compensation accrue to the amount of $5,000.00, the existing statutory limit for payment of p. i. p. benefits, the personal injury protection insurer is relieved from paying the claimant any additional payments pursuant to provisions in the claimant’s automobile insurance policy.

We were faced with an identical contention in the recent case of Charter Oak Fire Insurance Company v. Regalado, 339 So.2d 277 (Fla. 3d DCA 1976). We stated there that the purpose of the Automobile Reparations Reform Act was to broaden insurance coverage and that pursuant to Section 627.-78t>(4), Florida Statutes (1975), workmen’s compensation benefits received by a claimant were therefore to be credited against p. i. p. benefits paid by an insurer, and not credited against the total amount of personal injury coverage available. In so ruling, we concluded the p. i. p. benefits and workmen’s compensation benefits were concurrent and exhaustion of workmen’s compensation was not a prerequisite to receiving p. i. p. benefits.

In light of the above, the final judgment appealed is reversed and remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.


text:
    Esther C. ROSENBERG, an Individual, Appellant, v. CONTINENTAL ASSURANCE CO., and Charles O. Finley and Company, Inc., Appellees.
    No. 75-2033.
    District Court of Appeal of Florida, Third District.
    Feb. 22, 1977.
    A. Jay Cristol and Steven Mishan, Miami, for appellant.
    Kuvin, Klingensmith & Lewis, Miami, for appellees.
    Before HENDRY, C. J., and NATHAN, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

This is an appeal by the plaintiff, Esther C. Rosenberg, from a summary final judgment in favor of the defendants, Continental Assurance Company and Charles 0. Finley Company, Inc., in an action to recover benefits under a group insurance policy which allegedly insured the life of Dr. Harold Arthur Rosenberg, plaintiff’s deceased husband. Plaintiff’s complaint was based on breach of contract, declaratory relief and negligence.

Upon consideration of the record on appeal, the briefs and arguments of counsel, we have determined that the plaintiff has conclusively established that there are material issues of fact to be determined by the trier of fact, and that the defendants were not entitled to a summary judgment as a matter of law. Holl v. Talcott, 191 So.2d 40 (Fla.1966); Liberty Mutual Insurance Company v. Stuckey, 220 So.2d 421 (Fla. 4th DC A 1969); Stringfellow v. State Farm Fire and Casualty Company, 295 So.2d 686 (Fla. 2d DCA 1974).

Therefore, the summary final judgment is reversed.


text:
    GREEN’S POOL SERVICE, INC., Appellant, v. Alexander C. MacINTYRE a/k/a A. C. MacIntyre, et al., Appellees.
    No. 76-538.
    District Court of Appeal of Florida, Third District.
    Feb. 22, 1977.
    Richard H. W. Maloy & Associates and John R. Lindsey, Coral Gables, for appellant.
    Adams, George, Lee & Schulte and Dewey H. Varner, Jr., Miami, for appellees.
    Before BARKDULL, HAVERFIELD and HUBBART, JJ.
   PER CURIAM.

Affirmed. See First Atlantic National Bank v. Cobbett, 82 So.2d 870 (Fla.1955); Jovanovich v. Aero-Tech, Inc., 277 So.2d 555 (Fla.3d DCA 1973); Hill v. Coplan Pipe & Supply Co., Inc., 296 So.2d 567 (Fla.3d DCA 1974).


text:
    CENTRO BENEFICO LATINOAMERICAN, INC., d/b/a Latin American Benefit Center, Inc., Appellant, v. Merari RAMOS, Appellee.
    No. 76-2081.
    District Court of Appeal of Florida, Third District.
    Feb. 22, 1977.
    Miguel A. Suarez, Miami, for appellant.
    Robert K. Estes, Miami, for appellee.
    Before HENDRY, C. J., and PEARSON and HUBBART, JJ.
   PER CURIAM.

Affirmed upon authority of Equity Capital Company v. 601 West 26 Corp., 223 So.2d 762 (Fla.3d DCA 1969).


author: SCHEB, Judge. McNULTY, Judge,

text:
    Shirley B. QUICK, Appellant, v. STATE of Florida, Appellee.
    No. 75-893.
    District Court of Appeal of Florida, Second District.
    Feb. 23, 1977.

      Jack 0. Johnson, Public Defender, Steven H. Denman and Robert H. Grizzard, II, Asst. Public Defenders, and Charles L. Carlton, Legal Intern, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Judge.

Appellant was convicted of first degree murder for the fatal shooting of her husband, Richard Quick. She was sentenced to life imprisonment without eligibility for parole for 25 years as mandated by Section 775.082, Florida Statutes.

Appellant challenges several rulings of the trial court. In addition, she contends Section 775.082, which requires that she serve no less than 25 years before becoming eligible for parole is unconstitutional.

After hearing oral argument and carefully examining the record and briefs, we have concluded that none of the points cited by appellant rises to the magnitude of reversible error. Appellant received a fair trial. The evidence is sufficient to sustain her conviction, although the testimony reveals many factors which facially indicate some mitigating circumstances of her crime.

In our judgment there may be a question of the wisdom of a statute which provides that every person convicted of a capital felony and not executed shall serve no less than 25 years in prison before becoming eligible for parole. This question, however, is for legislative rather than judicial involvement.

Accordingly, the judgment and sentence is affirmed,

HOBSON, Acting C. J., concurs.

McNULTY, J., dissents with opinion.

McNULTY, Judge,

dissenting.

I would agree that no reversible error appears in the record of the trial and that the judgment of guilt herein should stand. But as noted, appellant urges that the mandatory minimum twenty-five year imprisonment without eligibility for parole provision of our first degree murder statute is unconstitutional as violative of the Eighth Amendment to the U. S. Constitution which proscribes cruel and unusual punishment. I think she’s right.

The facts of this case, while technically sufficient to support a verdict of guilt of premeditated murder, prima facie cry out for the further invocation of mercy and mitigation of punishment apart from sparing appellant from death. Under the statute this is impossible.

At some point in the sphere of crime and punishment the currently evolved, prevalent sensitivities of society to the severity of a prescribed punishment must be cranked in. A mandatory minimum six months to a given number of years sentence is unquestionably, under current social sensitivities, constitutionally tolerable as is, most likely, a mandatory minimum of two, three or even five year sentence without hope of parole. But in my view, a twenty-five year sentence, without hope of parole for such period and without discretion to consider and give effect to strong mitigating factors as they relate to current standards of decency, retribution and mercy, transcends constitutional tolerance under the same rationale upon which the United States Supreme Court relied in voiding a mandatory, nondiscretionary death sentence in Woodson v. North Carolina.

I would, accordingly, affirm the judgment/of guilt but would strike as void that portion of the sentence imposing a minimum twenty-five year imprisonment without eligibility for parole.

      . Sec. 782.04, Fla.Stat. (1975) as read in pari materia with Sec. 775.082(1), Fla.Stat. (1975).

      . This is a different constitutional argument than that which was rejected by our Supreme Court in Owens v. State, 316 So.2d 537 (Fla. 1975) and in Dorminey v. State, 314 So.2d 134 (Fla.1975). In both those cases the assault on the statute’s validity was predicated on the contention that the restriction on the parole powers of the executive branch of government was a void usurpation by the legislature of an executive function contrary to the doctrine of separation of powers.

      .See the plurality opinion of the United States Supreme Court in Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976).

      . Id.


author: BOARDMAN, Chief Judge.

text:
    Harry PRESTON, Appellant, v. STATE of Florida, Appellee.
    No. 76-396.
    District Court of Appeal of Florida, Second District,
    Feb. 23, 1977.
    Rehearing Denied March 18, 1977.
    Jack 0. Johnson, Public Defender, and David S. Bergdoll, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Chief Judge.

Appellant was sentenced to five years imprisonment for violation of Section 893.13 of the Florida Comprehensive Drug Abuse Prevention and Control Act.

It is the contention of appellant that the trial court committed reversible error in refusing to grant a mistrial following the testimony of state’s witness, Detective Ray Emmons of the Clearwater Police Department. The allegedly prejudicial testimony was as follows:

Q I ask you, was Harry V. Preston arrested on the date of this transaction?
A No, he was not.
Q Why was he not?
A Because at this particular point in time, we were making a series of heroin buys in the North Greenwood area. We were also involved in a major case of heroin in Largo, the City of Largo which all connected, all these people were connected, either directly or indirectly together.

The defense attorney promptly objected and moved for a mistrial on the ground that the testimony connected appellant to drug transactions other than the one for which he was being tried. The judge denied the motion. It was not necessary to and counsel for appellant did not request a cautionary instruction either before or after the motion for a mistrial was made.

Prior to Detective Emmon’s testimony other testimony of appellant’s comment to the witness to the effect that appellant was a drug wholesaler had been properly presented without objection. In consideration of all of the testimony introduced at trial we hold that Detective Em-mon’s testimony did not materially prejudice appellant’s right to a fair and impartial trial, and the motion for a mistrial was properly denied. Whether it would have been reversible error to deny a request to strike or to instruct the jury to disregard the testimony is not an issue on appeal. Moreover since the introduction of this testimony clearly did not constitute fundamental error and since no request to strike or disregard was made that question was not preserved for purposes of appeal. See Matthews v. State, 130 Fla. 53, 177 So. 321 (1937).

AFFIRMED.

HOBSON and GRIMES, JJ., concur.

      . It may be arguable that several cases decided by the Third District Court of Appeal hold that in all circumstances a predicate must be made for a motion for a mistrial by objecting to the alleged error and requesting a cautionary instruction. An improper remark is ordinarily an error which could be cured by objection and cautionary instruction. See Burkhead v. State, 206 So.2d 690 (Fla. 3d DCA 1968). It hardly bears repeating however that a mistrial is properly requested and granted where the error complained of or the aggregate of errors previously objected to is so prejudicial to a defendant’s substantial rights including his right to a fair and impartial trial that a cautionary instruction to the jury would not be sufficient. Perry v. State, 146 Fla. 187, 200 So. 525 (1941); Mabery v. State, 303 So.2d 369 (Fla. 3d DCA 1974). As correctly stated in Mabery a motion for a mistrial may also be based on a denial of a cautionary instruction or on an inadequate cautionary instruction. We do not read Panzavecchia v. State, 311 So.2d 782 (Fla. 3d DCA 1975), Ricks v. State, 242 So.2d 763 (Fla. 3d DCA 1971), or Davis v. State, 281 So.2d 551 (Fla. 3d DCA 1973) as requiring that an objection and a request for a cautionary instruction precede a motion for a mistrial.


author: MILLS, Acting Chief Judge.

text:
    J. Frank BURFORD, Jr., Petitioner, v. The FLORIDA STATE BOARD OF ARCHITECTURE, an agency of the State of Florida, Respondent.
    No. AA-452.
    District Court of Appeal of Florida, First District.
    Feb. 25, 1977.

      J. Lewis Hall, Jr., Hall & Booth, Tallahassee, Henry L. Gray, Jr., Chandler, O’Neal, Avera, Gray, Lang & Stripling, Gainesville, for petitioner.
    Selig I. Goldin, Goldin, Turner & Cates, James C. Rinaman, Jr., Jacksonville, for respondent.
   MILLS, Acting Chief Judge.

Burford seeks review of an order of The Florida State Board of Architecture (Board) denying his application for registration as an architect in Florida. Although Burford raises four issues, we must consider only one of them because it is determinative of this review. This issue is whether the Board’s finding that Burford is not entitled to registration as an architect in Florida is supported by substantial competent evidence. This case arises under Chapter 120, Florida Statutes, (1973).

Burford is a practicing architect in Birmingham, Alabama, and is a registered architect in Georgia, Mississippi, Louisiana, Tennessee, South Carolina, Virginia and Alabama. He passed the standard national architectural examination, was licensed in the State of Alabama in 1973, and received certification from the National Council of Architectural Registration ' Boards (NCARB) in 1974. On 17 May 1974, he made application to the Board pursuant to Fla.Admin.Code Rule 21B-1.04 for registration to practice architecture in the State of Florida. On 5 June 1974, he received notification from the Board that his application had been denied because “The board requires that all individuals applying must have a five-year degree in architecture, or was registered prior to 1969 under the ‘grandfather clause’.”

Burford then brought an action for declaratory judgment in the Leon County Circuit Court. On 6 June 1975, summary final judgment was entered in that case construing Section 467.08(l)(b)5, Florida Statutes (1975), and finding that the Board had not complied with the provisions of that section, “in that it has taken the position that there is no such thing as an equivalency and has not properly reviewed the plaintiff’s documentation and application for registration in light of the meaning of said statute as defined and construed herein. . . .” The court construed the provision contained in Section 467.08(l)(b)5, “training which shall be found by the board to be fully equivalent to such degree”, to mean that an applicant “shall have acquired by any combination of private study, classroom education, on the job training and/or other practical experience, proficiency which sustains the applicant’s equivalency to the degree of competency of a person who holds a degree in architecture and who would be eligible to take the examination for registration as an architect administered by the defendant." The Circuit Court ordered that the Board consider Burford’s application in accordance with Section 467.08(l)(b)5 as construed in the final judgment.

In the re-evaluation of Burford’s application for registration, the Board called upon the assistance of an educational advisory committee. Burford appeared before the committee and the Board. He submitted a substantial amount of material relating to his experience and training. He also submitted numerous letters of recommendation from both clients and professionals with whom he had worked.

On 8 September 1975, the committee made its report and recommendation on the educational background and training of Burford. The report contained only two negative findings:

1. “The candidate’s early work experience (1930-1961) was minimal as compared to training in an architect’s office where diversified experience is available.”
2. “The committee notes little or no evidence of a concern for problems of his community or his profession (beyond his AIA membership) or constructive activity on their behalf outside of his practice.”

The committee also noted that it was unclear who Burford’s mentors were other than Mr. McAuley. The committee recommended that his application be denied.

On 15 December 1975, the Board denied Burford’s application for registration and also denied his petition for reconsideration. Since the Board adopted the committee report as its own findings, the committee report serves as the only basis for the denial of the application.

The only negative evidence before the Board was the report of the educational advisory committee which was adopted by the Board. The committee considered that ten years of training and experience was needed by an applicant in order to have the equivalency of a degree in architecture. Its report notes that “sometime between 1961 and 1967, Mr. Burford began his training in the sense of working on larger scale projects with diverse functions (as against single family residential construction).” The record shows that in 1961 Burford began work on large scale projects. It was in that year that he was placed in complete charge of the Alabama correctional construction program. As a part of that program, he designed a maximum security prison which included the tag plant; a receiving center, which contained a general hospital and a tuberculosis sanitarium; and a board of corrections administration building. Thereafter Burford handled a number of large scale projects which continued up to the time of his application for registration. Since Burford’s training in the sense of working on large scale projects with diverse functions began in 1961, the committee’s requirement of ten years of experience and training has been met.

The committee report also states that “the particular persons who acted as mentors to Mr. Burford through his training process was not made clear, other than Mr. McAuley . . .” However, the record shows that Burford gave the names of three individuals who are former Auburn University School of Architecture instructors who tutored him in various architectural subjects. These same three instructors’ names were mentioned several times in various letters of recommendation written to the Board. It is difficult to understand how the educational advisory committee could have read the evidence and still stated that “the particular persons who acted as mentors to Mr. Burford through his training process was not made clear. . . ”

In addition, the committee’s report noted that “two members of the committee felt that the candidate showed a lack of professional knowledge and attitude which could be attributed to a deficiency in his training in the area of the responsibilities of the professional in the practice of architecture.” However, the report does not state how the candidate showed this lack of professional knowledge and attitude.

The report concludes by stating that: “The committee notes little or no evidence of a concern for the problems of his community or his profession (beyond his AIA membership), or constructive activity on their behalf outside of his practice.”

The record clearly refutes this finding. Burford has actively served in his church and numerous professional, social and community activities.

There is little or no support in the record for the findings and conclusions of the educational advisory committee and the Board.

, The petition for review is granted, the Board’s order of 15 December 1975 is quashed, and this case is remanded to the Board with instructions to enter an order granting Burford’s application to register as an architect in the State of Florida.

SMITH, J., and DRURY, ARVEL, Associate Judge, concur.


author: ERVIN, Judge.

text:
    DAVID MILLER DISTRIBUTING COMPANY, INC., Appellant, v. FLORIDA NATIONAL BANK AT ARLINGTON, Appellee.
    No. CC-251.
    District Court of Appeal of Florida, First District.
    Feb. 25, 1977.
    Barry S. Sinoff and C. Wayne Alford, Jacobs, Sinoff, Edwards, Alford & Burgess, Jacksonville, for appellant.
    John T. Trekell and R. Craig Hemphill, Jacksonville, for appellee.
   ERVIN, Judge.

This is an appeal from an order granting appellee Bank’s motion to dismiss. On July 31, 1975, appellant, David Miller Distributing Company, Inc., filed its complaint for damages against Bank alleging that Bank had breached its contractual duty to depositor, David Miller, by transferring depositor’s funds from its account without authorization from depositor. On December 10, 1975, the court granted the Bank’s motion to dismiss, allowing, however, appellant fifteen days in which to file an amended complaint. The allegations contained in the amended complaint were practically identical to those in the original complaint with the exception of paragraph 9(b). The Bank filed a motion to dismiss which was again granted, allowing appellant, however, ten days in which to file a second amended complaint. Apparently concluding that no amended complaint would withstand the Bank’s motions to dismiss, David Miller filed its appeal with this Court generally assigning as error the lower court’s order granting the motion to dismiss the amended complaint upon the ground that the plaintiff had changed its position from that taken in the original complaint.

We reverse. In our opinion the allegations of the original complaint, particularly paragraph 9(b), although inartfully drawn and may have been subject to a motion for more definite statement, nevertheless stated a cause of action against the Bank. The allegations of the original complaint must be considered in their totality. The Bank was charged with the negligent transfer of the depositor’s funds without any authority to do so. The complaint placed defendant on notice of violating the duty it owed to its depositor pursuant to Section 673.404, Florida Statutes (1975). Moreover, the amended complaint clearly “arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading * * * ” Fla. R.Civ.P. 1.190(c). The test as to whether an amended complaint should be allowed was well stated by the Fourth District Court of Appeal in Turner v. Trade-Mor, Inc., 252 So.2d 383, 384 (Fla. 4th DCA 1971):

“. . . whether an amendment offered by a party sets forth a ‘new cause of action’ is not whether the cause of action stated in the amended pleading is identical to that stated in the original. Rather, the test is whether the pleading as amended is based upon the same specific conduct, transaction or occurrence between the parties upon which the plaintiff tried to enforce his original claim.”

It is a well settled rule of law that if a pleading informs a defendant of the nature of the cause of action against him, then it shall be sufficient. Smith v. State, 204 So.2d 31 (Fla. 3rd DCA 1967): As this Court observed in Richards v. West, 110 So.2d 698, 701-702 (Fla. 1st DCA 1959):

“The advent of modern rules of procedure has brought with it the policy of allowing litigants to amend pleadings freely in order that causes may be tried on their merits. Granting leave to amend rests, of course, in the discretion of the trial court; but doubts should be resolved in favor of allowing amendment unless and until it appears that the privilege to amend will be abused.”

The order granting the motion to dismiss . the amended complaint is reversed with directions that it be reinstated.

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

      .Pertinent provisions of the complaint include:
      “8. Prior to April 1, 1974, plaintiff had deposited to its credit with the defendant funds amounting to more than Thirteen Thousand Dollars ($13,000.00). It was the duty of the defendant to transact business concerning said funds only when such business was authorized by the signature of C. W. Crum or David Miller, the president and secretary respectively of the plaintiff corporation.
      9. The defendant breached the aforesaid duty in the following respects:
      (a) On or about April 1, 1974, the defendant by and through its employees, agents, and officers, acting within the scope of their duties, employment and authority, negligently transferred funds in the amount of Thirteen Thousand Dollars ($13,000.00) from the plaintiffs aforesaid account with the defendant to the account of ‘Tinder Box International, Inc.’, in the Wachovia Bank and Trust Company in Charlotte, North Carolina, without any authority whatsoever from the plaintiff. A copy of the exchange slip for said transferral is attached and made a part hereof marked as Exhibit ‘C’.
      (b) The defendant, by or through its employees, agents, and officers, acting within the scope of their duties, employment and authority, negligently transferred the said funds upon a mere oral request by telephone made by one David Miller. At no time material hereto was the said transfer of said funds authorized by the signature of one of the persons designated by the plaintiff to authorize such a business transaction.
      (c)The defendant, by or through its employees, agents, and officers, acting within the scope of their duties, employment and authority, was negligent in not following and abiding by the standards and procedures of ordinary care used in the banking business in regard to authorization of business transactions involving deposit and checking accounts.
      10. As the direct and proximate result of the aforesaid negligence of the defendant, the said funds negligently transferred by said defendant to the Wachovia Bank and Trust Company were withdrawn therefrom by the said David Miller who then absconded with the said funds and whose whereabouts are presently unknown.”

      . “(b) The defendant, by or through its employees, agents, and officers, acting within ■ the scope of their duties, employment and authority, negligently transferred the said funds upon a mere oral request by telephone made by a person describing himself as said David Miller. Moreover, the defendant did not request verification from the person describing himself as David Miller so as to determine whether, in fact, the David Miller over the phone was the same person whose signature is included on the said signature card and said Corporation Account form.”

      . Which provides, with certain exceptions, that an unauthorized signature is inoperative.


text:
    Millard E. BRYAN, Appellant, v. Ruth E. BRYAN, Appellee.
    No. 76-1281.
    District Court of Appeal of Florida, Second District.
    Feb. 25, 1977.
    R. B. Crawford, Jr., Bartow, for appellant.
    L. Guerry Dobbins, Jr. of Walter W. Manley Law Offices, Lakeland, for appellee.
   PER CURIAM.

Appellant/husband takes an appeal from a final judgment dissolving his marriage and making certain awards of alimony to the wife and assessing costs against him.

After considering the record and briefs, we are of the view that appellant’s arguments are lacking in merit, with the exception of his attack on Paragraph 5 of the final judgment which assessed court costs in the amount of $288.81 against appellant.

The record before this court does not reveal any motion to tax costs or any other documentation to sustain the sum awarded as court costs by the trial court. Section 57.021, Florida Statutes (1975), requires that a duplicate of the costs bill enumerating each item of costs shall be kept on file among the original papers in the action.

Therefore, we vacate only that portion of the final judgment that ordered appellant to pay court costs. However, nothing herein shall prevent appellee from now filing an appropriate motion to tax costs in the trial court. Cf. Roberts v. Askew, 260 So.2d 492 (Fla.1972).

We grant appellee’s motion for attorney’s fees for service on this appeal, the amount of said fees to be set by the trial court.

Affirmed in part, vacated in part, and remanded for further proceedings consistent herewith.

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


text:
    San Juan YSLAS and Silvestra Yslas, Appellants, v. D. K. GUENTHER BUILDERS, INC., Appellee.
    No. 76-1476.
    District Court of Appeal of Florida, Second District.
    Feb. 25, 1977.

      Robert M. Hustead, Florida Rural Legal Services, Inc., Immokalee, for appellants.
    James L. Goetz, of Roberts, Watson, Bright & Adams, Fort Myers, for appellee.
   BOARDMAN, Chief Judge.

Appellee/plaintiff, Guenther Builders, filed a complaint on February 19, 1976, seeking to foreclose a mortgage on a parcel of real property owned by appellants/defendants, Silvestra and San Juan Yslas. On April 15, 1975, appellants, husband and wife, and appellee entered into a home improvement installment sales contract. Appellants executed a note and a mortgage on their residence to secure payment of the contract price and finance charges. Under the terms of the promissory note appellants agreed to pay appellee a total of $5,609.52 which included a finance charge of $2,309.52. Appellee alleged that appellants defaulted and declared that appellants owed $3,266.61 on the note plus interest. Appellants answered that the obligation relied on by appellee had been rescinded by the terms of 15 U.S.C. § 1635(f) and 12 C.F.R. § 226.9(h), that no contract existed upon which suit could be based, and that the security interest was void. Appellants filed a counterclaim praying that the court decree that the contract was voided by rescission, that any monies paid by them on the contract be returned, and that the court award damages, attorneys’ fees and costs. Appellants alleged appellee’s failure to disclose their right to cancel the contract and note within three days following the transaction in violation of the Truth in Lending Act, 15 U.S.C. §§ 1601-1665. The trial court granted appellee’s motion for summary judgment which was accompanied by a supporting affidavit that he had served appellant San Juan Yslas with a federal rescission form which Mr. Yslas signed. Ap-pellee stated in a memorandum of law in support of its motion that the transaction had not been rescinded pursuant to 15 U.S.C. § 1635. Appellants contend on appeal that appellee did not refute all of their affirmative defenses nor all of the allegations of their counterclaim. They contend specifically that appellant Silvestra Yslas was entitled to notice of her opportunity to rescind as an obligor which she had not received and that she had rescinded the transaction.

It is well established that on a motion for summary judgment the movant admits all facts and inferences or conclusions reasonably drawn from the evidence which are favorable to the opposing party. Where the real property affected by the transaction is held by the obligors as joint owners the right to receive notice of the right of rescission and the right to rescind applies separately to each of those obligated under the transaction. See Gerasta v. Hibernia National Bank, 411 F.Supp. 176 (E.D.La. 1976); 12 C.F.R. §§ 226.6(e), .9(f), .902. If appellants are able to prove that Mrs. Yslas did not receive the required notice and did timely exercise her right to rescind, the mortgage would be void and the parties entitled to be returned to the status quo. 15 U.S.C. § 1635(b); 12 C.F.R. § 226.9(b)(d). Furthermore if appellee did fail to comply with its obligation appellants may be entitled to damages under 15 U.S.C. § 1640. We hold that whether appellee complied with 15 U.S.C. § 1635(a) by notifying Silves-tra Yslas of her right to rescind and whether she exercised that right to rescind are material questions of fact which could not be resolved by summary judgment.

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

REVERSED and REMANDED.

GRIMES and OTT, JJ., concur.

      . Although appellants do not state in their pleadings that they own the property either as an estate by the entireties or by joint tenancy the installment sales contract appended to ap-pellee’s complaint recites that the record owners of the property are Silvestra and San Juan Yslas. Since there was no affirmative showing to the contrary we will assume for purposes of this appeal that appellants hold the property under some type of joint ownership. There is no question that both appellants were obligors under the terms of the contract.

      . The statutory scheme to effect restoration to the status quo provides that within ten days of receipt of the notice of rescission the creditor return any property of the debtor and void the security interest in the debtor’s property. The debtor is not obligated to tender any property of the creditor in the debtor’s possession until the creditor has performed his obligations. If the creditor does not perform within ten days of the notice or does not take possession of his property within ten days of the tender, ownership of the creditor’s property vests in the debtor without further obligation. See Sosa v. Fite, 498 F.2d 114 (5th Cir. 1974); Powers v. Sims & Levin Realtors, 396 F.Supp. 12 (E.D.Va. 1975); 15 U.S.C. § 1635(b). As suggested in Grandway Credit Corp. v. Brown, 295 So.2d 714 (Fla. 3d DCA 1974) and Giliis v. Fisher Hardware Co., 289 So.2d 451 (Fla. 1st DCA 1974) the underlying obligation is not voided by 15 U.S.C. § 1635 rescission unless the creditor fails to perform his statutory duties.

      . It has not been firmly established whether the ■ debtor can elect both remedies, that is to re-sema and to seek damages, or must seek one or the other. See Am.Jur.2d New Topic Service Consumer Credit Protection § 80 (1976); An-not„ 11 A.L.R.Fed. 815 (1972, Supp.1976).


text:
    Maita P. SINGER, Appellant (Respondent/Counter-petitioner), v. Robert N. SINGER, Appellee (Petitioner/Counter-respondent).
    No. AA-268.
    Court of Appeal of Florida, First District.
    Feb. 25, 1977.
    Robert M. Ervin and Carl E. Rude, Jr. of Ervin, Varn, Jacobs & Odom, Tallahassee, for appellant.
    Jim L. Dye of Dye & Thrasher, Tallahassee, for appellee.
   MILLS, Acting Chief Judge.

Mrs. Singer appeals from a final judgment in a dissolution of marriage action. The judgment dissolves the marriage, awards custody of two minor children to Mrs. Singer, awards child support, awards rehabilitative alimony, disposes of jointly owned personal property, and awards the use and occupancy of the marital home to Mrs. Singer and the two minor children for one year, subject to payment of the mortgage, maintenance, repairs, taxes and insurance by Mrs. Singer.

Although Mrs. Singer contends the trial court committed a number of errors, it is our opinion that only one of them requires our consideration. This issue is whether the trial court erred in limiting the use and occupancy of the home to one year and in providing that Mrs. Singer pay all ownership expenses during this time.

The minor children were a male and a female, ages seven and five. For the first year, Mr. Singer was required to pay support of $200.00 a month for each child. Thereafter, he was to provide $250.00 a month for each child. Mr. Singer was required to pay rehabilitative alimony of $450.00 a month for one year. The monthly mortgage payment on the home was $246.50. The annual taxes were $598.00. After dissolution of the marriage, the home was owned as a tenancy in common.

In our judgment, the trial court abused its discretion in limiting the use and occupancy of the home by Mrs. Singer and the minor children to one year and in failing to require Mr. Singer to pay one-half of the ownership expenses on the home during its use and occupancy by Mrs. Singer and the minor children.

Although the food, medical, clothing and incidental expenses of the children are adequately provided for by the monthly support money awarded, the father is also required to provide adequate shelter. This has been done for one year only. This is inadequate. For children of tender age, such as those here, the dissolution of the marriage between their parents is an unsettling experience. To require them to move from their home within one year of the traumatic dissolution of marriage can only add to the children’s feeling of insecurity and frustration. We do not have a case here where the ability of the father to provide for the needs of his children is questionable. ' To the contrary, the record discloses that the father has the ability to provide their requirements without any sacrifice on his part. The trial court should award the use and occupancy of the home to Mrs. Singer and the minor children as long as Mrs. Singer remains unmarried and until the youngest of the children reaches majority, or the children die, or they marry, or they are no longer dependent.

The marital home became a tenancy in common upon entry of the judgment dissolving the marriage. Tenants in common have a mutual obligation to pay the charges upon the property. Mintz v. Ellison, 233 So.2d 156 (Fla.3d DCA 1970). The equity of one of the parties should not be increased by any expenditures made by the other party. Maroun v. Maroun, 277 So.2d 572 (Fla.3d DCA 1973). The judgment before us violates both of these principles. The judgment should provide that payments on the mortgage, taxes, insurance, maintenance and repair shall be paid equally by the parties.

So that the parties will know, we considered the other issues raised by Mrs. Singer but did not consider them in this opinion because the record shows that either they were not properly raised by the assignments of error or Mrs. Singer failed to demonstrate error by the trial court.

The final judgment is affirmed in all respects with the exception of the award of the marital home (paragraph 5 of the judgment) which is reversed. We remand this case to the trial court for appropriate action consistent with the views set forth in this opinion.

SMITH, J., and DRURY, ARVEL, Associate Judge, concur.


author: PER CURIAM:

text:
    STATE of Louisiana v. Irene S. JOHNSON.
    No. 58733.
    Supreme Court of Louisiana.
    Feb. 4, 1977.
   PER CURIAM:

The instant case was filed with this Court as an appeal by the State of Louisiana from a judgment of the Nineteenth Judicial District Court setting aside its previous judgment which forfeited an appearance bond. While proceedings involving bond forfeitures are civil in nature, a party seeking judicial review of a lower court judgment must look to the court having appellate jurisdiction of the criminal case. Gennuso v. State, 339 So.2d 335 (La.1976); State v. Sandoz, 258 La. 297, 246 So.2d 21 (1971); State v. United Bonding Insurance Company, 244 La. 716, 154 So.2d 374 (1963); State v. Shelton, 227 La. 27, 78 So.2d 498 (1955). See Marr’s Criminal Jurisprudence, Section 298, at 447 (2nd ed. 1923). Under the Louisiana Constitution of 1974, this Court has appellate jurisdiction in criminal matters when “the defendant has been convicted of a felony or a fine exceeding $500 or imprisonment exceeding six months actually has been imposed ” or the defendant has a right of appeal or review as provided by a specific statute. La. Const., art. 5, § 5(D) and (E) (1974). As interpreted by this Court, the State only has a right of appeal to this Court in criminal cases when a law or ordinance has been declared unconstitutional. State v. James, 329 So.2d 713 (La.1976). Since this Court does not have appellate jurisdiction over the instant case, we have considered the State’s appeal as an application for supervisory writs.

On November 17, 1973, Irene S. Johnson was arrested and charged' with violating La.R.S. 14:98, driving while under the influence of alcoholic beverages. On that same day an Appearance Bond in the amount of five hundred and no/100 dollars ($500.00) was posted by Irene S. Johnson as principal and Midland Insurance Company, represented by Allied Fidelity Corporation, as surety. The obligation on the bond was that the defendant, Irene S. Johnson, would appear to answer the charges on which she was arrested. On January 16, 1974, the defendant, Irene S. Johnson, was arraigned and she pled guilty to the D.W.I. charge. Imposition of sentence was deferred until February 22, 1974. On the day set for sentencing the defendant failed to appear and a bench warrant was issued for her arrest. On July 18, 1974, the judgment of bond forfeiture was signed by Judge John S. Covington, 19th Judicial District Court. The surety then filed a motion to set aside this bond forfeiture. On August 2, 1976, Judge Covington signed an order vacating his previous judgment and setting aside the bond forfeiture. While the trial judge’s reasons for judgment do not appear in the record before this Court, statements in briefs by both the State and surety indicate that the ruling was based on his conclusion that the obligation of the surety on the appearance bond ended at the time Ms. Johnson pled guilty and did not continue to the time of sentencing.

The appearance bond involved herein states in pertinent part as follows:

Now; if said Irene S. Johnson, principal, shall well and truly appear in person in and before the Nineteenth Judicial District Court of Louisiana, in the Parish of East Baton Rouge, on the notice day of -, 19_, there to answer said charge, and there continue from day to day, and from term to term, and not depart thence without leave of Court, then this bond to be null and void, but otherwise it shall remain in full force and complete effect.

The State contends that a reading of Code of Criminal Procedure articles 311 and 330 and the comments thereto, together with the wording of the appearance bond reveals that the bond undertaking is to have effect until the disposition of the case has become final, as long as the Nineteenth Judicial District Court allows defendant to remain free on bond; that the bond obligation is to secure the appearance of defendant before the trial court whenever defendant’s presence is demanded; that when the defendant failed to appear for sentencing defendant breached her obligation under the bond; and that the original judgment of the trial court forfeiting the appearance bond was correct and should not have been set aside.

The surety, however, argues that the contractual language of the appearance bond establishes the obligation that the defendant will appear to answer the charge; that “appear to answer the charge” should be interpreted to mean to appear at the time for arraignment, any pre-trial motions and the trial, and to remain until the trial is concluded; that the surety should not be responsible for the accused to appear after conviction or guilty plea unless, a post-conviction bond was posted as provided in article 314 of the Code of Criminal Procedure; and that in the instant case since the trial judge did not specifically allow the defendant to remain free on the same bond until date of sentencing nor give the surety an opportunity to determine whether it wished to remain as surety on bond after defendant was convicted, the initial obligation of the surety had been fulfilled and the trial judge correctly set aside the judgment forfeiting the appearance bond.

Article 311 of the Code of Criminal Procedure defines “bail” as “the security given by a person to assure his appearance before the proper court whenever required." (emphasis added) Official Revision Comment (b) to this article indicates the breadth intended to be attributed to this language as follows

“The obligation of the bail undertaking should be stated in the broadest possible terms. Thus, the Texas provision that the defendant is to appear ‘to answer the accusation brought against him’ is broadened to read ‘whenever required.’ This is in conformity with Sec. 61 of the A.L.I. Code of Criminal Procedure. There may be other times, in addition to his appearance at the arraignment, when the defendant’s presence may be required.”

Article 330 of the Code of Criminal Procedure sets forth the condition of a bail undertaking as follows:

“The condition of the bail undertaking shall be that the defendant will appear at all stages of the proceedings to answer the charge before the court in which he may be prosecuted, will submit himself to the orders and process of the court, and will not leave the state without written permission of the court.”

In addition, Official Revision Comment (a) to Article 330 states as follows:

“The condition that the accused' will appear at all stages of the proceedings is broad enough to cover all preliminary steps in the proceedings, as well as cover the trial. The additional undertaking that he will submit himself to the orders and process of the court covers the appeal situation if the bond is continued after conviction, pending the appeal. Of course, the amount of the bail may be increased after conviction and pending appeal.” (emphasis added)

While the language of articles 311 and 330 are broad and appear to be applicable to the pre-trial and post-conviction situation, the language of the appearance bond itself is not so broadly worded, but rather merely states “to answer said charge.” Official revision comment (a) to La.C.Cr.P. art. 330 interprets the language “will appear at all stages of the proceedings to answer the charge before the court” to be only broad enough to cover all preliminary steps in the proceedings as well as the trial. The additional language “will submit himself to the orders and process of the court” was deemed necessary to cover the appeal situation if bond is continued after conviction. Indeed the suggested form for a bail bond issued under article 330, as set forth in Official Revision Comment (c) thereto, contains both the language “will appear at all stages of the proceedings ... to answer that charge” and the language “will at all times hold himself amenable to the orders and process of the court.” In addition, the suggested form adds the language “and, if convicted, will appear for pronouncement of the verdict and sentence.” No similar language is included in the appearance bond here at issue.

Further support for the surety’s position that its obligation terminated at the time defendant pled guilty is discerned from the fact that there are separate codal provisions on bail before conviction and bail after conviction. Article 312 of the Code of Criminal Procedure merely sets forth the general rule that “a person in custody charged with the commission of an offense is entitled to be admitted to bail before conviction” except certain persons charged with capital offenses (as set forth in C.Cr.P. art. 313). However, article 314 of the Code of Criminal Procedure provides with respect to bail after conviction that “a convicted person shall be remanded to jail to await sentence unless he is released on bail in accordance with this article.” (emphasis added)

In the instant case, after being released on bond, defendant appeared before the court, was formally arraigned and pled guilty. A sentencing date was set at that time. Since defendant was convicted of an offense in which the maximum sentence possible was imprisonment for five years or less, La.R.S. 14:98, under the provisions of article 314 of the Code of Criminal Procedure bail “shall be allowable" after conviction and before sentence. However, nothing in the minutes or in the record before this court indicates that defendant was released on the same or any bond pending imposition of sentence.

The language of the appearance bond itself is that the obligation was to ensure that the defendant appear to answer the charge. There is no indication that the surety agreed to assume any responsibility with respect to post-conviction release. We conclude, therefore, that the surety’s obligation was fulfilled when the defendant appeared and pled guilty. The judgment of the trial court setting aside its previous judgment forfeiting the appearance bond was correct.

For the reasons assigned, we have considered this appeal as an application for writs and, finding the arguments to be without merit, deny the application.

      . The suggested form in its entirety reads as follows:
      “ (defendant) having been arrested for the crime of (designate crimel and having been admitted to bail in the sum of_ dollars ($), we (I)_of (place of residence) hereby undertake that the above named _ will appear at all stages of the proceedings in the _ court to answer that charge or any related charge, and will at all times hold himself amenable to the orders and process of the court, and, if convicted, will appear for pronouncement of the verdict and sentence, and will not leave the state without written permission of the court; and that if he fails to perform any of these conditions, we (I) will pay to the State of Louisiana (City of-) (Parish of _) the sum of _ dollars (insert the amount of bail).

      . An example of language which would indicate that the surety had undertaken such an obligation is that contained in the suggested form for a bail bond under C.Cr.P. art. 330, quoted at footnote 1 supra.


text:
    Cerina WEIDENBACHER v. ST. PAUL FIRE AND MARINE INSURANCE CO. et al.
    No. 59394.
    Supreme Court of Louisiana.
    March 4, 1977.
   In re: Cerina Weidenbacher applying for writs of certiorari and review.

Writ granted.

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a writ of certiorari issue herein, directing the Honorable Adrian G. Duplantier, Judge of the Civil District, Court for the Parish of Orleans, to transmit to the Supreme Court of Louisiana, on or before the 18th day of March, 1977, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 16th day of May, 1977, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    Fanny GODWIN et al. v. EAST BATON ROUGE PARISH SCHOOL BOARD et al.
    No. 59421.
    Supreme Court of Louisiana.
    March 7, 1977.
   In re: Fanny Godwin, et al., applying for supervisory writs and stay order.

Writ denied in part and granted in part. The trial court correctly held that petitioners were not entitled to enjoin the election. Otherwise the ruling of the trial court sustaining the exception of no cause of action as to the alleged expenditure of public funds in violation of La.Const. Art. XI, Sec. 4 is reversed and the exception of no cause of action is overruled in that respect. The case is remanded to the trial court.


text:
    Jesse R. RANDALL v. RORAN CORPORATION et al.
    No. 59246.
    Supreme Court of Louisiana.
    March 9, 1977.
   In re: Dr. Thomas B. Flynn, applying for remedial writs.

Granted. The denial of this writ application by the Court of Appeal on the ground that it was without jurisdiction was error. The case is remanded to the Court of Appeal for consideration of the application. La.Const. Art. V. § 10(A); Moity v. Mahfouz, 242 La. 625, 137 So.2d 514 (1961); 38 Tulane Law Review 429 (1964).