text:
    HARBOUR VILLAGE AT SAGA BAY, INC., (Harbour Village), a Delaware Corporation, et al., Appellants, v. Charles A. DAHM, etc., Appellees.
    No. 78-726.
    District Court of Appeal of Florida, Third District.
    Feb. 27, 1979.

      Storace, Hail & Hauser and Richard, F, O’Brien, III, Miami, for appellants.
    Arky, Freed, Stearns, Watson & Greer and Eugene E. Stearns, Miami,, frii- appel-lees.
    Before HENDRY, BARKDULL and SCHWARTZ, JJ.
   HENDRY, Judge.

This appeal arises out of a mortgage foreclosure suit filed in July of 1977'. by State . Mutual Investors against Saga; Development Corporation. Appellant, Harbour Village at Saga Bay, Inc. (hereinafter referred to as Harbour Village) was included as a defendant, predicated upon its June 1973 contract of sale with Saga Development Corporation (which was recorded in memorandum form, among the public records of Dade County). The contract pertained to the sale of 12.7 acres of the real property, which totalled over 1,500 acres.

In October of 1977 the lower court entered final judgment in the amount of $25,-308,926.66. Saga Development Corporation did not oppose foreclosure and the final judgment of mortgage foreclosure was entered in favor of State Mutual Investors and against Saga Development Corporation at that time. However, appellant contested State Mutual Investors’ right to foreclose that portion of the real property which was the subject matter of the contract of sale between appellant and the mortgagor, Saga Bay Development Corporation. The trial court ruled against appellant and entered final summary judgment for State Mutual Investors, based on the pleadings, interrogatories, depositions, affidavits and prior orders of the court. Appeal has been taken from that order.

The points raised by the appellant revolve around the questions of whether the aforementioned contract of sale of the 12.7 acres created a right to a claim of lien against the subject real property by Harbour Village and if so, whether the purported rights were improperly terminated by the trial court’s order of final judgment of foreclosure and order of sale.

In our review of the extensive record in the cause, we necessarily examined the precise wording of the provisions contained in the contract of sale, which recite in pertinent part:

“DEPOSIT. Simultaneously with the execution of this Agreement, Buyer shall deliver to Seller an irrevocable Letter of Credit in the sum of $51,450.00, which shall be held in escrow in an interest bearing account by Seller or an escrow agent approved by Seller. Said deposit shall constitute security for the payment by Buyer of the purchase price for each and all of the platted building sites covered by this Agreement ... In the event of default in the performance of the terms and conditions of this Agreement by Buyer, Seller shall have the right to convert said Letter of Credit to cash, or if a cash deposit is made, to retain the entire amount of the deposit as consideration for the execution of this Agreement and as agreed and liquidated damages, in accordance with the default provisions set forth hereinafter.
“DEFAULT BY BUYER. The time of payment shall be of the essense, and in the event of any default in payment of any part of the total purchase price as and when it becomes due, or in the performance of any other obligations assumed by the Buyer in this Agreement, and if the default shall continue for a period of fifteen (15) days after written notice by Seller to Buyer, then the Seller may rescind or cancel this Agreement, and retain all sums of money paid or deposited by the Buyer as consideration for the execution of this Agreement and as agreed and liquidated damages or in full settlement of all damages, and this Agreement shall become null and void.
“DEFAULT BY SELLER. If the Seller fails to perform any of the provisions of this Agreement, all the sums of money paid by the Buyer to the Seller shall be refunded to the Buyer on demand, and the Seller shall be released from all liability hereunder; or the Buyer at its option shall have the right of specific performance.
“EXISTING AGREEMENT AND MORTGAGE. This Agreement is executed subject and subordinate to that certain mortgage and loan agreement made and executed by Saga Development Corporation to the Trustees of State Mutual Investors encumbering the subject property and other property, which mortgage lien will be released or subordinated at the closing as to each and all of the subject lands purchased by the Buyer, in accordance with the terms of this Agreement.”

The lower court’s order granting the ap-pellee summary judgment states, in part, that the Harbour Village Contract expressly provided that damages would be limited in the event of a breach by Saga Development Corporation to specific performance or return of the purchase deposit; that specific performance was impossible under the circumstances; that the purchase deposit was solely within the possession and control of Harbour Village; that Harbour Village did not have any right to any claim against the real estate arising from the contract of sale; that the recorded contract constituted a mere cloud on title, which would be properly removed by foreclosure; that there were no genuine issues of fact remaining; and that the various defenses raised by Harbour Village were without merit. The court based its decision upon contract principles as enunciated in 92 C.J.S. Vendor & Purchaser § 591 and Hanley v. Gables Trust, 147 Fla. 746, 3 So.2d 725 (1941), wherein the Supreme Court limited the purchaser’s recovery for vendor’s breach of contract to sell real estate to that expressly fixed by the contract.

We affirm the circuit court order determining that no lien was created. Since a lien is a charge on property for the payment or discharge of a debt or duty, Marshall v. C. S. Young Construction Co., 94 Fla. 11, 113 So. 565 (1927); Case v. Texas Co., 115 Fla. 668, 156 So. 137 (1934), it stands to reason that where there is no longer a debt or duty owing, no lien can be claimed.

This court has reviewed the other points on appeal and finds them to be without merit. As there have been no genuine issues of material fact left unresolved by the trial court, the summary final judgment in favor of State Mutual Investors was correct.

Affirmed.


source: Caselaw Access Project

author: KEHOE, Judge.

license: Public Domain

text:
    Robert SHUPACK, Appellant, v. ALLSTATE INSURANCE COMPANY, a Foreign Corporation for Profit, Appellee.
    No. 78-806.
    District Court of Appeal of Florida, Third District.
    Feb. 27, 1979.
    Harold M. Braxton, Miami, for appellant.
    Adams & Ward and Amy Shield Levine, Miami, for appellee.
    Before PEARSON, KEHOE and SCHWARTZ, JJ.
   KEHOE, Judge.

Appellant, plaintiff below, brings this appeal from an adverse final summary judgment entered on his claim for punitive damages arising out of appellee’s, defendant below, bad faith failure to pay personal injury protection (PIP) benefits. We affirm.

Appellant, after being injured in an automobile accident, filed a PIP claim with ap-pellee for the medical expenses incurred. After paying $2000 on the claim, appellee stopped making payments although appellant’s expenses were greater than the $5000 maximum under the policy. Thereafter, appellant filed suit for breach of the insurance contract. Appellee answered setting out, among other things the affirmative defense that appellant’s conduct had contributed to the injuries and, therefore, relieved appellee of its obligations under the policy. Appellant then amended his complaint to reflect a tort claim for bad faith failure to pay, claiming that appellee had arbitrarily stopped payment even though it had actual knowledge of the remaining expenses. Appellee moved to strike the tort claim, and its motion was denied. Appellant, during this time, obtained a partial final summary judgment on his breach of contract claim and appellee satisfied this judgment. Subsequently, appellee filed an answer to the amended complaint, generally denying the allegations, but not reasserting its affirmative defense. Appellee then moved for and obtained an order granting summary judgment. Thereafter, after an attempted appeal of this order, the trial court entered a final summary judgment in favor of appellee on appellant’s tort claim. From this judgment, appellant appeals.

Appellant contends: (1) that the pleadings before the trial court at the time when it entered the judgment appealed created question of material fact about appellee’s bad faith arbitrary refusal to pay; and (2) that appellee’s conduct coupled with appellant’s requests for payment constituted bad faith, as contemplated by Section 627.736, Florida Statutes (1977), which entitled him to punitive damages in tort.

In our opinion, the trial court properly entered its final summary judgment in favor of appellee because, under the facts of this case, appellant had no cause of action for punitive damages against appellee for its alleged bad faith refusal to pay. Under these circumstances, the parties were more in the nature of a debtor-creditor or adversary relationship than in a fiduciary relationship. See Baxter v. Royal Indemnity, 285 So.2d 652 (Fla. 1975). Section 627.736, among other things provides for interest and attorney’s fees for an insurance company’s failure to pay, but, in our opinion, it does not create a cause of action for punitive damages. Accordingly, the trial court properly entered summary judgment in favor of appellee. Affirmed.


author: HAVERFIELD, Chief Judge.

text:
    AETNA CASUALTY & SURETY COMPANY et al., Appellants, v. FLORIDA POWER & LIGHT COMPANY, a Florida Corporation, Appellee.
    Nos. 78-820, 78-252.
    District Court of Appeal of Florida, Third District.
    Feb. 27, 1979.
    George J. Baya, Miami, for appellants.
    Kelly, Black, Black, Wright & Earle, Daniels & Hicks and Mark Hicks, Miami, for appellee.
    Before HAVERFIELD, C. J., PEARSON, J., and CHARLES CARROLL (Ret.), Associate Judge.
   HAVERFIELD, Chief Judge.

Defendant insurors appeal (1) a' final judgment entered pursuant to a jury verdict awarding insured Florida Power Light Company $156,523, and (2) an order taxing costs of $13,498 and attorney’s fees of $55,000 in an action to recover under policies of fire and extended coverage.

Defendants, Aetna Casualty & Surety Company and 27 other insurance companies, issued fire and extended coverage insurance upon all of the property of plaintiff-appel-lee, Florida Power & Light Company, for a three-year period commencing September 1, 1969. The policies contained the identical “Inherent Explosion Clause” as follows:

* * * * * - * . . . ,
“1. . . . this policy is extended to insure against direct loss by. explosions occurring on the described premises .
“2. Loss by explosion . . . shall include direct loss to electrical equipment or devices caused by any artificial electrical disturbance immediately preceding and causing an explosion insured against hereunder ...
“The following are not explosion within the intent or meaning of these provisions: (a) Electric arcing in the absence of other direct damage by explosion . . . ' : • (e) Rupture, bursting or operating of pressure relief devices in the absence of other evidence of direct damage by explosion.”
* * * * * ' ■ • * '

On September 17, 1969 one of Florida Power & Light’s generating units in its Port Everglades Plant was severely damaged. Florida Power & Light claimed that the damage and resulting loss of $277,311.89 was caused by an explosion and made claim upon the defendant insurors for payment under their respective policies. After a two-year investigation and negotiations, the defendant insurors denied coverage on the grounds that there was no explosion and the damage was caused by electrical arcing' without an ensuing fire. Thereupon, Florida Power & Light filed the instant cause of ■ action seeking to recover for the damages sustained. The defendant insurors denied coverage and the cause was tried before a jury which returned a verdict in favor of Florida Power & Light. Final judgment was entered in accordance with the verdict (less the $115,000 already recovered from the settlement with the other insurors) and an order was entered taxing a total of $68,498 in costs and attorney’s fees against the defendant insurors.

Defendant insurors basically are contending in this appeal that the trial court erred in entering final judgment for Florida Power & Light as the evidence established that all damage was caused by electrical arcing without an ensuing fire and there was no explosion; therefore, the loss was due to sudden accidental breakdown which is not covered under the subject policies. We cannot agree.

After a review of the record we find that the testimony was conflicting as to whether an explosion occurred which caused the damage to the generating plant. It then became the province of the jury to resolve the conflicts on the issue of fact arising from the testimony. See Republic Nat. Life Ins. Co. v. Valdes, 348 So.2d 566 (Fla. 3d DCA 1977). There being competent substantial evidence to support the finding of an explosion by the jury, this court must affirm the judgment entered pursuant thereto. Southeastern General Corporation v. Gorff, 186 So.2d 273 (Fla. 2d DCA 1966) and 3 Fla.Jur.2d Appellate Review §§ 345, 346 (1978).

Defendant insurors also contend the awards of $55,000 as an attorney’s fee and $11,624.76 for costs (i. e. to compensate Florida Power & Light’s expert witness) were excessive.

With respect to the attorney’s fee, the amount of the award was well within the range of expert testimony and, therefore, we find no abuse of discretion. See Posner v. Posner, 315 So.2d 175 (Fla.1975); In Re Estate of Lunga, 322 So.2d 560 (Fla. 3d DCA 1975).

We also find no abuse of discretion in the $11,624.76 awarded to Florida Power & Light to compensate its expert witness in that Section 90.231(2), Florida Statutes (1977) provides that costs may be taxed for expert witness fees and for the cost of preparing exhibits by the witness. See Conboy v. City of Naples, 230 So.2d 476 (Fla. 2d DCA 1970). In addition, we note that defendant insurors made no objection to the introduction of the invoices of Florida Power & Light’s expert witness.

We also considered the remaining points on appeal and find no reversible error has been made to appear.

Affirmed.

      . Florida Power & Light settled With several insurors (not parties to this suit) for $115,000.


author: PER CURIAM.

text:
    TRAVELERS INSURANCE COMPANY, Appellant, v. Willie EVERETT and Gene Flinn, Appellees.
    No. 78-985.
    District Court of Appeal of Florida, Third District.
    Feb. 27, 1979.
    Joseph A. McGowan, Miami, for appellant.
    Wicker, Smith, Blomquist, Davant, McMath, Tutan & O’Hara and Richard A. Sherman, Miami, for appellees.
    Before BARKDULL, HUBBART and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed. Dade County v. Michigan Mutual Liability Co., 130 So.2d 111 (Fla. 3d DCA 1961); Dickerson v. Orange State Oil Co., 123 So.2d 562 (Fla. 2d DCA 1960); §§ 440.39(2), (3)(a), (b), Fla.Stat. (1977).


text:
    Jimmie Lee CRUMMIE, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1086.
    District Court of Appeal of Florida, Third District.
    Feb. 27, 1979.
    Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and James H. Greason, Asst. Atty. Gen., for appellee.

      Before HAVERFIELD, C. J., and PEARSON and BARKDULL, JJ.
   PER CURIAM.

Defendant, Jimmie Lee Crummie, appeals his conviction for possession of heroin and cocaine based upon a plea of nolo conten-dere tendered after the trial court denied his motion to suppress on the ground of unlawful detention. The pertinent facts are as follows:

Officer Estrada of the Miami Police Department was on routine patrol when at approximately 1:30 A.M. he observed the defendant, Jimmie Crummie, with, two ,other black males on mopeds traveling northbound on S.W. 17th Avenue. Since numerous robberies and burglaries had been committed in the neighborhood by three black males described as riding mopeds, Officer Estrada continued to observe Crummie apd his companions during which time he saw them run a red light. Thereupon, he followed and stopped them. Officer Estrada proceeded to run a routine check on Crum-mie and his companions and then, observed a shiny object on Crummie’s left leg. Concerned for his safety, Officer Estrada began to pat down Crummie, and the contraband (cocaine and heroin) was discovered on his person.

The trial judge denied the motion to suppress because Officer Estrada testified at the suppression hearing that he stopped Crummie and his companions because of the reports of recent robberies and burglaries committed by three young black .males on mopeds.

As at the suppression hearing, defendant. Crummie argues that the above ground was' insufficient to support a reasonable suspicion that he was engaged in criminal activi-: ty and to permit an investigatory stop. •

We need not determine this issue of the existence of a reasonable suspicion because Officer Estrada observed Crummie and his-companions run a red light and, therefore, . pursuant to Section 901.15(5), Florida Statutes (1977) he lawfully stopped them. See also Sections 316.001 et seq. Florida Statutes (1977). Any other intentions of Officer Estrada toward Crummie and his companions would not invalidate the lawful investigatory stop as a result of the traffic violation.

Affirmed.


author: KEHOE, Judge. SCHWARTZ, Judge

text:
    Aide VEGA and Raul Vega, Appellants, v. Joseph MAHFUZ and Phoenix Insurance Company, Appellees.
    No. 78-1201.
    District Court of Appeal of Florida, Third District.
    Feb. 27, 1979.

      Harold M. Braxton, Miami, for appellants.
    High, Stack, Lazenby & Bender and Alan R. Dakan, Miami, for appellees.
    Before PEARSON, KEHOE and SCHWARTZ, JJ.
   KEHOE, Judge.

Appellants, plaintiffs below, bring this appeal from a final judgment entered pursuant to a jury verdict in a personal injury action. We reverse.

Appellants brought this action for personal injuries sustained by the wife and medical bills incurred by the husband for her. The matter proceeded to a jury trial after which, among other things, the jury was instructed that, if it found the wife had incurred reasonable and necessary medical expenses in excess of $1000, the husband should receive damages for those expenses. After concluding its instructions, the trial court presented the jury with a special interrogatory form which first required the jury to answer the question of whether the wife sustained medical expenses in excess of $1000. If its answer was yes, which it was, the jury was instructed to set out the total amount of damages sustained by each of the appellants. After deliberation, the jury returned a verdict which awarded appellants a total of $1542.00, but the entire amount was placed next to the wife’s name, with no amount shown by the husband’s name. The jury after further instruction by the trial court placed a “0” by the husband’s name, thereby rendering a verdict for the wife in the sum of $1542.00 and a verdict for the husband in the sum of zero dollars. Pursuant to the verdict, the trial court entered a final judgment in favor of appellant wife in the sum of $1542.00. Thereafter, appellants moved for a new trial on the specific ground that the verdict was against the manifest weight of the evidence and the law. This motion was denied and this appeal followed.

Appellants’ sole point on appeal is that where the jury in a personal injury action is properly instructed that the medical expenses incurred by the wife is an element of the husband’s damages and the jury returns a verdict awarding the wife a sum of money, but nothing to the husband, it is error not to grant a new trial for both plaintiffs.

In the instant case it is clear from the record that the jury’s verdict was inconsistent with the trial court’s instructions to it. First the jury was instructed to find if the wife had incurred medical expenses in excess of $1000; then, if the jury found that she had, it was instructed that those were damages of the husband. However, after finding the requisite amount of medical expenses, the jury awarded the husband nothing, but instead awarded the wife $1542.00. This verdict was clearly inconsistent with the jury’s instructions. Accordingly, in our opinion, it was reversible error for the trial court not to have granted appellants’ motion for a new trial. See, e. g., Roth v. Calvert Fire Insurance Co., 119 So.2d 49 (Fla.1960); Coppola v. Ballard, 314 So.2d 6 (Fla. 4th DCA 1975); and Fejer v. Whitehall Laboratories, Inc., 182 So.2d 438 (Fla. 3d DCA 1966). Compare Webber v. Jordan, 366 So.2d 51 (Fla. 2d DCA 1978). We note that it is not the form of the verdict which is being attacked here, but rather its inconsistency. Therefore, the final judgment appealed is reversed and the cause is remanded for a retrial on the issue of damages in regard to both appellants.

Reversed and remanded with instructions.

SCHWARTZ, Judge

(dissenting)

I respectfully dissent on two grounds. The plaintiffs failed to raise their present contention before the lower court when the husband’s verdict form had initially, be.én left blank by the jury; they did not object to the request by the trial judge that the jury “put a figure for Raul Vega, one way or the other . . . ”, a request which certainly implied that the jury could properly return a zero verdict for the husband; finally, they asserted no objection, when, in response to that request, the jury did place a “0” in the husband’s space. I believe, therefore, that the plaintiffs waived their right to complain of the concededly inconsistent verdicts which were finally returned. Savoca v. Sherry Frontenac Hotel Operating Co., Inc., 346 So.2d 1207 (Fla. 3d DCA 1977); State, Department of Transportation v. Denmark, 366 So.2d 476 (Fla. 4th DCA 1979); Wiggs and Maale Construction Co. v. Harris, 348 So.2d 914 (Fla. 1st DCA 1977); Lindquist v. Covert, 279 So.2d 44 (Fla. 4th DCA 1973).

In addition, the record before us is not sufficient to demonstrate that the appellants were really harmed by the form of the verdicts. If only because of the odd amount of the wife’s verdict, which was probably related to a particular bill, it seems very likely, as clearly appeared in Webber v. Jordan, 366 So.2d 51 (Fla. 2d DCA 1978), that the jury simply awarded the medical expenses to the wife, instead- of the husband. If this were so, as in Webber; the inconsistent verdicts would present no harmful error. The record on appeal, however, does not contain the bills themselves or even indicate their total amount. Thus we have no way of knowing that this did not occur. Under these circumstances, I would hold that the appellants have failed to meet their burden of establishing the existence of prejudicial error below.

I would affirm.

      . Moreover, I think that, on the facts of this ■ case, only the husband’s claim, and' not the wife’s as well, should be retried. Loftin v. Anderson, 66 So.2d 470 (Fla. 1953); Webber v. Jordan, supra; Fejer v. Whitehall Laboratories, 182 So.2d 438 (Fla. 3d DCA 1966); compare Noll v. Byorick, 108 So.2d 67 (Fla. 3d DCA 1959); Coppola v. Ballard, 314 So.2d 6 (Fla. 4th DCA 1975).


text:
    The STATE of Florida, Appellant, v. James Richard BISBEE, Appellee.
    No. 78-1218.
    District Court of Appeal of Florida, Third District.
    Feb. 27, 1979.
    Janet Reno, State’s Atty., and Stephen V. Rosin, Asst. State’s Atty., for appellant.
    Flynn, Rubio & Tarkoff, Nachwalter, Christie & Falk and Jay M. Levy, Miami, for appellee.

      Before HAVERFIELD, C. J., PEARSON, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The State appeals from an order suppressing certain evidence as having been obtained from an illegal search. The State did not contest the defendant’s claim of illegality of the search. The several grounds upon which the State seeks reversal of the order to suppress have been considered in the light of the record, briefs and argument, and are held to be without merit. The procedural rulings of the court, of which the State complains, were matters within the discretion of the court. The conclusion of the trial court that the suppressed evidence was fruit of the poisonous tree, consequent upon an illegal search, had the support of competent substantial evidence. The independent evidence source doctrine asserted by the appellant as ground for reversal, is not applicable on the facts of this case.

The order appealed from is affirmed.


author: SCHWARTZ, Judge.

text:
    Sheldon GOODNER and Naomi Goodner, his wife, Appellants, v. Melvin SHAPIRO and Ruth Shapiro, his wife, Appellees.
    No. 78-1280.
    District Court of Appeal of Florida, Third District.
    Feb. 27, 1979.
    Jeffrey M. Feuer, Miami, for appellants.
    Ronald L. Fried, Miami, for appellees.
    Before HUBBART, KEHOE and SCHWARTZ, JJ.
   SCHWARTZ, Judge.

After the return, on March 16, 1978, of the mandate of this court in Shapiro v. Goodner, 356 So.2d 392 (Fla. 3d DCA 1978), which affirmed a final judgment for the defendants rendered on December 10, 1976, the trial court entered the orders now under review. In those orders, dated May 23, 1978 and June 19, 1978, the circuit court purported to rule, in the plaintiffs’ favor, upon the rights of the parties with respect to the deposit receipt agreement which formed the subject matter of the action itself and thus of the final judgment we affirmed. Since these orders were entered after the issuance of our mandate of af-firmance and without our consent, it -follows that they were rendered without jurisdiction, and are therefore deemed to be nullities. E. g., Modine Manufacturing Co. v. ABC Radiator, Inc., 367 So.2d 232 (Fla. 3d DCA 1979); 3 Fla.Jur.2d, Appellate Review, § 408 (1978). Accordingly, the “final order” of May 23, 1978, and the “order on defendants’ motion for rehearing,” dated June 19, 1978, are

Reversed.

      . In large measure, these orders were, in turn, based on an earlier order of November 15, 1977, in which the trial judge sought to interpret the effect of the final judgment. Since that order was entered, also without leave of. this court, while the appeal taken by the plaintiffs was pending before us, it was therefore likewise void as one entered without jurisdiction. E. g., Stack v. Okaloosa County, 347 So.2d 145 (Fla. 1st DCA 1977).


text:
    Richard J. FLAHERTY, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1361.
    District Court of Appeal of Florida, Third District.
    Feb. 27, 1979.
    Emilio De La Cal, Miami, for appellant.
    Jim Smith, Atty. Gen., and Susan C. Minor, Asst. Atty. Gen., Miami, for appellee.
    Before PEARSON, HENDRY and SCHWARTZ, JJ.
   PER CURIAM.

The appellant was adjudged guilty of carrying a concealed firearm upon his plea of nolo contendere. He specifically reserved the right to appeal a motion to dismiss, which set forth the following facts:

“COMES NOW the Defendant RICHARD JAMES FLAHERTY, by and through the undersigned attorney, and pursuant to Fla.R.Cr.Pr. 3.190, moves this Court for an order dismissing the Information heretofore filed, and in support hereof alleges.
“1. That on or about November 20, 1975, the Defendant was accepted into this Court’s Pre Trial Intervention Program.
“2. That this Defendant met all of the requirements of the Pre Trial Intervention Program, thus being entitled to a dismissal of the charges.
“3. That this Defendant has received a Notice of Successful Completion from the program’s Director and is entitled to a dismissal of the charges.
“4. That the State is estopped from prosecuting this case.”

A traverse was not filed by the State of Florida.

The record reveals that a court-approved agreement was entered at a previous appearance of the same cause. The agreement is as follows:

“In order to participate in the Pretrial Intervention Program, I do hereby freely and voluntarily waive my right to a speedy trial. I understand that if I violate the rules of the Pretrial Intervention Program, which have been explained to me and which I have agreed to, that my case will be returned to court for prosecution. I also understand that the State Attorney has the legal right to reopen my case for a total period of two years from the date of my arrest and I have been told that, even in the event I successfully complete the Program if I am convicted of a felony after I complete the Program, but before the two years have elapsed, the State would have the legal right to recharge me with the crime for which I entered the Program.”

The question presented is whether the appellant is entitled to discharge because of his having completed his bargain with the State of Florida. See Williams v. State, 341 So.2d 214 (Fla. 2d DCA 1976); Butler v. State, 228 So.2d 421 (Fla. 4th DCA 1969); State v. Davis, 188 So.2d 24 (Fla. 2d DCA 1966).

The appellant was arrested November 19, 1975, upon the charge of which he is now convicted. The testimony of the officer in charge of the pretrial intervention program shows that he entered the program in January, 1976, but that because of a failure to communicate, he did not complete the program at that time. Based upon appellant’s failure to complete the program, a new information was filed against him upon the charge for which he was arrested in 1975. This information was filed August 17, 1977. Appellant was arrested pursuant to the filing of the information on November 23, 1977. Sometime after the filing of the information, the appellant contacted the director of the pretrial intervention program and was granted an appeal from the determination that he had not satisfactorily completed the program. He was thereupon reinstated and completed the program in January, 1978.

At the hearing on the motion to dismiss, the trial court found that because there had been a period in which the appellant was out of the program, there was a tolling of the period of time and that because of this failure on his part, the appellant’s motion to dismiss was an “inequitable defense.” There is the additional factor that the appellant has now been charged with an additional crime but no conviction for that crime appears in this record.

We hold that the cited cases are applicable and that the trial court erred in denying appellant’s motion to dismiss the information in that he has complied with both of the conditions set forth in the court-approved agreement in that (1) he has completed the pretrial intervention program and (2) he has not been convicted of a felony during the two-year period from the date of his initial arrest. Therefore, the trial court erred in its determination that the breach of the rules of the pretrial intervention program was sufficient to abrogate the agreement even though appellant was reinstated and successfully completed the program. Accordingly, the judgment and sentence are reversed and the cause is remanded with directions to dismiss the information.

Reversed and remanded.


author:
HUBBART, Judge.
      SCHWARTZ, Judge

text:
    John A. WASZKOWSKI, Appellant, v. Sherry WASZKOWSKI, Appellee.
    No. 78-1704.
    District Court of Appeal of Florida, Third District.
    Feb. 27, 1979.
    A, John Goshgarian and Howard J. Hoch-man, Miami, for appellant.
    Ronald S. Lieberman and Kenneth Of-gang, Miami, for appellee.
    Before BARKDULL, HUBBART and SCHWARTZ, JJ.
   HUBBART, Judge.

By this interlocutory appeal under Fla.R. App.P. 9.130(a)(4) (1978), we are asked to review the propriety of a post-judgment order approving a general master’s report on a motion to modify child custody filed by the wife Sherry Waszkowski in a marriage dissolution action. We affirm the order under review except that portion which approves a child support award of $25 a week to be paid by the husband John Waszkowski as recommended in the general master’s report. The child support award as contained in the order under review is reversed.

The law is clear that a general master may not go beyond the matters referred to him for determination by the trial court, and that if a general master reports as to a matter which was not referred to him by the trial court, his report so far as it relates to that matter is a nullity. Burns v. Burns, 153 Fla. 73, 13 So.2d 599 (1943); White v. Walker, 5 Fla. 478, 486 (1854); Koenig v. Watsco, Inc., 261 So.2d 851, 854 (Fla. 3d DCA 1972). In the instant case, the general master exceeded the scope of his authority when he took testimony and determined the issue of child support herein. The trial court had previously referred the issues of child custody and visitation to the general master for determination based on the wife’s post-judgment motion to modify child custody. The wife did not request child support in her motion to modify and the trial court did not refer that issue to the general master for determination. As such, the general master’s report relating to child support was a nullity and should not have been approved on that issue by the trial court. In all other respects, the general master’s report was properly approved by the trial court.

Affirmed in part; reversed in part.

SCHWARTZ, Judge

(concurring in part, dissenting in part).

I fully agree with the court’s reversal of the award of child support. However, I would also reverse that portion of the order on interlocutory appeal which eliminated a requirement that the child remain in Dade County, which had been incorporated into an earlier award of custody to the mother. The effect of the modification, for which the mother moved only two days after the prior order had been entered, was to permit the child to be taken to Texas with the mother and her new husband, and thus to end, as a practical matter, the father’s liberal visitation rights which he had been granted and which he had faithfully exercised. See Scheiner v. Scheiner, 336 So.2d 406, 408 (Fla. 3d DCA 1976), cert. denied, 342 So.2d 1103 (Fla.1977). In my view, the record contains no evidence whatever of a substantial change of circumstances adversely affecting the welfare of the child which is required to warrant a modification of the arrangements provided in an existing award of child custody. Frye v. Frye, 205 So.2d 310 (Fla. 4th DCA 1967); Ritsi v. Ritsi, 160 So.2d 159 (Fla. 3d DCA 1964), cert. denied, 166 So.2d 591 (Fla.1964). I think therefore that, as in such cases as Jacobs v. Ross, 304 So.2d 542 (Fla. 3d DCA 1974); Sharp v. Hixon, 293 So.2d 113 (Fla. 2d DCA 1974); and McManus v. McManus, 238 So.2d 473 (Fla. 2d DCA 1970), the modification should not be permitted to stand.


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    David Lee EPPS, Appellant, v. The STATE of Florida, Appellee.
    No. 79-79.
    District Court of Appeal of Florida, Third District.
    Feb. 27, 1979.
    David Lee Epps, in pro per.
    Jim Smith, Atty. Gen., for appellee.
    Before HENDRY, HUBBART and SCHWARTZ, JJ.
   PER CURIAM.

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


author: GRIMES, Chief Judge.

text:
    Oliver LOWE et al., Appellants, v. LEE COUNTY ELECTRIC COOPERATIVE, INC., Appellee.
    No. 78-1009.
    District Court of Appeal of Florida, Second District.
    Feb. 28, 1979.

      John M. Hathaway, of Hathaway & Polk, Punta Gorda, for appellants.
    J. Tom Smoot, Jr., of Smoot & Whigham, Fort Myers, for appellee.
   GRIMES, Chief Judge.

This is an appeal from a judgment setting aside certain Charlotte County tax assessments upon the tangible personal property of appellee Lee County Electric Cooperative, Inc.

Appellee (cooperative) is a member-owned electric utility doing business in four contiguous southwest Florida counties, including Charlotte County. The property appraiser assessed the cooperative’s tangible personal property within Charlotte County for 1975 at $367,030. The cooperative brought suit challenging this assessment but suffered a directed verdict at the conclusion of its case. On appeal, this court held that the cooperative had carried its burden of establishing the prima facie invalidity of the assessment and remanded for further proceedings. Lee County Electric Cooperative, Inc. v. Lowe, 344 So.2d 308 (Fla. 2d DCA 1977). In the meantime, the property appraiser assessed the cooperative’s property in 1976 at $302,980 and in 1977 at $312,000. The cooperative’s suits attacking both of these assessments were consolidated with the remanded proceeding involving the 1975 assessment, and the cases were tried together.

In the final judgment, the court made the following findings:

1. The opinion and mandate of the Second District Court of Appeals held that the Plaintiff presented a prima facie case at the first trial for the invalidity of the 1975 assessment and the Defendant Property Appraiser has failed to show that the assessment was a valid assessment. The application ex post facto of the unit method following the initial and invalid assessment for the tax year 1975 fails to overcome the presumption of invalidity.
2. As for the years 1976 and 1977, this Court finds the application of the unit approach to value, though valid in a proper case, was improperly applied to the cases before this Court for two reasons, viz. (a) that six different factors were used in assessing the tangible personal property of the Florida Power & Light Company in Charlotte County while only two were used for the assessment of the same property of Plaintiff, and (b) for the further reason that there was no assurance that property appraisers in other counties in which the Plaintiff operated might not weight factors differently or apply different factors which could result in an assessment of more than 100% value in all of such counties.
3. This Court finds that the Plaintiff has produced expert testimony showing the just value of its tangible personal property in Charlotte County for the tax year 1975 as $45,000.00; for the tax year 1976 as $67,000.00; and for the tax year 1977 as $62,000.00.

The assessments of the cooperative’s tangible personal property in excess of the figures recited in paragraph 3 were ordered stricken.

We affirm the final judgment insofar as it pertains to the 1975 assessment, but we reverse that portion holding the 1976 and 1977 assessments invalid.

The contentions with respect to the 1975 assessment can be disposed of quickly. The reason this court reversed the directed verdict in the original 1975 suit and held that the cooperative had made a prima facie showing of invalidity was because the property appraiser, rather than making an appraisal of his own, had simply established the assessment by reference to some information supplied to him by the Department of Revenue. When the case was retried, the property appraiser submitted the testimony of an expert whose valuation of the cooperative’s property for 1975 approximated the 1975 assessment. There is, however, no substantial contention that the 1975 assessment was determined on any basis other than that outlined in our original opinion. Thus, we believe the court could properly conclude that the new appraisal could not retroactively breathe life into an originally defective assessment.

Before considering the 1976 and 1977 assessments, we think it advisable to review the legal principles applicable to the contest of a tax assessment. In Powell v. Kelly, 223 So.2d 305, 307-08 (Fla.1969), our supreme court said:

The fixing of a valuation on property by a tax assessor for the purpose of taxation is an administrative act involving the exercise of administrative discretion, and the Court will not in general control that discretion unless it is illegally or fraudulently exercised or exerted in such manner or under such circumstances as will amount in law to a fraud. A situation might be presented for judicial interference where specific assessment is so obviously and flagrantly excessive as to impute clearly to the assessor an intention to discriminate arbitrarily against the taxpayer; or where there appears prejudicial or material error in matter of law, independent of the exercise of a discretion as to value. But mere excessive valuation, resulting solely from inadvertence or mistaken judgment, and unaffected by any element of illegality in matter of law, or intentional or other abuse of authority, or fraud, express or implied, will not suffice as a ground of equitable jurisdiction. City of Tampa v. Palmer, 89 Fla. 514, 105 So. 115.
While the assessor is accorded a range of discretion in determining valuations for the purpose of taxation when the officer proceeds in accordance with and substantially complies with the requirement of law designated to ascertain such values, yet, if the steps required to be taken in making valuations are not in fact and in good faith actually taken, and the valuations are shown to be essentially unjust or unequal abstractly or relatively, the assessment is invalid. Graham v. City of West Tampa, 71 Fla. 605, 71 So. 926 (1916); Coombes v. City of Coral Gables, 124 Fla. 374, 168 So. 524 (1936). See 23 F.L.P., Taxation, § 238. The prima facie correctness of the assessments, to be overcome, must be affirmatively assailed by appropriate and sufficient allegations and proofs, to the exclusion of every reasonable hypothesis of legal assessment.

The issue with respect to the 1976 and 1977 assessments is whether the “unit” method of appraisal used by the property appraiser was a proper method-of appraising the cooperative’s property. If it was, then the assessments must stand even if the trial judge or this court thinks some other method would have been better. On the other hand, if the unit method was not an acceptable method for assessing the cooperative’s property, then the assessments must fall, because whatever discretion the property appraiser exercised was employed on the wrong premise.

In essence, the unit method of appraisal consisted of first determining the value of all of the cooperative’s tangible personal property through the use of the well-reeog-nized appraising concepts of (1) cost less depreciation, (2) capitalization of income, and (3) market value (though all concerned agreed that market value was 'irrelevant because there was no ready market for the cooperative’s property). Then, the property appraiser allocated a portion of the resulting figure to Charlotte County by a formula which took into consideration the proportionate mileage of line and the number of customers within the county as compared to the entire system. The property appraiser maintained that the unit method of assessing the value of a utility company’s tangible personal property was the fairest method because most of the property comprising a utility system has no value other than as part of a whole system.

The unit method of valuation is not new; it was approved by the United States Supreme Court with respect to the valuation of railroads in 1875. State Railroad Tax Cases, 92 U.S. 575, 23 L.Ed. 663 (1875). The contention that a tax assessor cannot use property values outside of his jurisdiction as the basis to obtain the value of property' within his jurisdiction was rejected in Cleveland, C. C. & St. L. R. Co. v. Backus, 154 U.S. 439, 444, 14 S.Ct. 1122, 1123, 38 L.Ed. 1041, 1045 (1893), where the court-said:

This is no denial of the mathematical proposition that the whole is equal to the sum of all its parts, because there is a value created by and resulting from the combined operation of all its parts as one continuous line. This is something which does not exist, and cannot exist, until the combination is formed.

The unit method has also received court sanction as an appropriate way to assess the value of telephone company property. Southern California Telephone Co. v. County of Los Angeles, 45 Cal.App.2d 111, 113 P.2d 773 (3d Dist.1941). The court below did not reject the unit method of appraisal, as such, but only held that it was inappropriate to the facts at hand. We must, therefore, analyze the reasons for the court’s conclusion.

First, the court said that the property appraiser used six different factors in assessing the tangible personal property of Florida Power & Light Company (FP&L) but only two in assessing the tangible personal property of the cooperative. On its face, this appears to fall short of the showing required to obtain tax relief upon the contention that other property is obtaining preferred tax treatment. See Deltona Corporation v. Bailey, 336 So.2d 1163 (Fla. 1976). But in any event, the fallacy in the court’s reasoning lies in the assumption that because both companies deal in electricity they have the same kind of operation. As a matter of fact, the two companies differ substantially. FP&L manufactures and sells electricity, whereas the cooperative simply purchases electricity and distributes it to its customers. One of the factors used to assess the FP&L system, for example, was power plant output. Any valuation of the FP&L system would necessarily include an appraisal of its power plants, but, because none of the FP&L plants were located in Charlotte County, the use of the power plant factor in the assessment equation effectively reduced the allocation of value to Charlotte County. Using the same factor to assess the cooperative would have been senseless because, even though the cooperative, like FP&L, has no power plant in Charlotte County, the cooperative has no power plants at all. Therefore, the added value of a power plant never went into the valuation of the cooperative’s entire system. The fact that the property appraiser employed some additional criteria in assessing FP&L’s property did not warrant setting aside the cooperative’s tax assessment.

The trial court’s second reason for rejecting the unit method was the lack of assurance that property appraisers in the other counties where the cooperative operated might not also use the unit method and adopt different factors in their allocations, making the sum of all assessments in the several counties greater than 100% of the property’s value. Admittedly, in many situations where the unit method of appraisal is used there is some type of state equalization board which is in a position to make certain that the court’s fear does not materialize. E. g., Lee v. Atlantic Coast Line R. Co., 145 Fla. 618, 200 So. 71 (1941). In the enactment of Section 193.052(6), Florida Statutes (1977), the legislature may have contemplated that the Department of Revenue would perform this function. Yet, the failure of the Department of Revenue to promulgate regulations cannot obviate the tax appraiser’s duty to establish the just value of all property within his county. The evidence reflects that as a practical matter the unit method was the most feasible means to arrive at just value. One of the experts testified that the unit method was generally accepted in most jurisdictions throughout the country as the best way to assess public utilities. Even the cooperative’s expert witness used the unit method to determine value under the cost less depreciation approach because the cooperative did not maintain cost records applicable only to Charlotte County properties. Under the circumstances, we believe that the assessment should not have been invalidated upon the speculative possibility that the cooperative’s entire system might be valued at more than 100%. Certainly there was no evidence that this had occurred or that it was likely to occur.

We hold that the unit method of valuation employed by the property appraiser was a valid method with which to assess the cooperative’s tangible personal property. The fact that there may have been other methods, and that the trial court may have favored the method used by the cooperative’s expert, is irrelevant. This is not a case where the finder of fact is at liberty to accept the opinion of one expert over another. Here, the assessment must stand if it was arrived at through substantial compliance with the requirements of law for ascertaining just value.

The judgment is affirmed with respect to the 1975 assessment. The judgment is reversed to the extent that the tax assessor’s 1976 and 1977 assessments are reinstated.

SCHEB and RYDER, JJ., concur.


text:
    Sheldon CONNELL, Appellant, v. STATE of Florida, Appellee.
    No. 78-1369.
    District Court of Appeal of Florida, Second District.
    Feb. 28, 1979.
    Jack O. Johnson, Public Defender, Bar-tow, and Karal B. Rushing, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm the revocation of appellant’s probation, but remand with direction to strike the finding of violation of the condi-

tion requiring a payment of a fee for supervision. Coxon v. State, 365 So.2d 1067 (Fla. 2d DCA 1979).

The trial court is also directed to correct the judgment and sentence to conform to that pronounced, and to include therein the exact credit for time which appellant spent in jail prior to the commencement of serving the sentence. Smith v. State, 310 So.2d 770 (Fla. 2d DCA 1975). . -

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


text:
    DRUM SERVICE COMPANY OF FLORIDA, INC., Appellant, v. STATE of Florida, DEPARTMENT OF COMMERCE, DIVISION OF EMPLOYMENT SECURITY, Appellee.
    No. JJ-242.
    District Court of Appeal of Florida, First District.
    March 2, 1979.
    Peter A. Knocke, of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tallahassee, for appellant.
    Alex D. Littlefield, Jr., Tallahassee, for appellee. . . .
   PER CURIAM.

We review the appeal perfected by Drum Service Company of Florida, Inc., from an order of the Florida Department of Commerce, Division of Employment Security, which order denied appellant’s request for review and redetermination of its unemployment compensation contribution status..

The Court has carefully considered the briefs, the record and oral argument. The appellant has failed to demonstrate the invalidity of the order entered by the Department of Commerce. Accordingly, the order hereby AFFIRMED,

MELVIN, Acting C. J., BOOTH, J., and VANN, HAROLD R., Associate Judge, concur.


author: BOOTH, Judge.

text:
    Lee Hiram MARTIN, Appellant, v. STATE of Florida, Appellee.
    No. LL-242.
    District Court of Appeal of Florida, First District.
    March 2, 1979.

      Michael J. Minerva, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Miguel A. Olivella, Jr., Asst. Atty. Gen., for appellee.
   BOOTH, Judge.

The primary issue presented on this appeal is whether a pistol is a “firearm” within the meaning of section 790.001(6), Florida Statutes (1977). Applying established principles of statutory construction, we conclude that it is and affirm.

Appellant argues that the technical definition of “firearm” given in Chapter 790 does not include a pistol because section 790.001(6) defines firearm as “any weapon . which will . . . expel a projectile by the action of an explosive,” and yet section 790.001(5)(a) excludes “[sjhotgun shells, cartridges, or ammunition for firearms” from the definition of “explosive.” Thus, according to appellant, a pistol, because it expels a projectile by the action of firearm ammunition, is not a “firearm” within the meaning of the statute. We reject this interpretation.

Undoubtedly penal statutes must be strictly construed. However, they must not be construed so strictly as to emasculate the statute and defeat the obvious intention of the legislature. State v. Hooten, 122 So.2d 336 (Fla.2nd DCA 1960); Associated Dry Goods Corp. v. Dept, of Revenue, 335 So.2d 832 (Fla.lst DCA 1976). The Supreme Court of Florida recently reiterated in Griffis v. State, 356 So.2d 297 (Fla.1978), that a statute should be construed so as to give effect to the evident legislative intent, “regardless of whether such construction varies from the statute’s literal meaning.” It is fundamental that a statute should not be construed to bring about an unreasonable or absurd result. Sharon v. State, 156 So.2d 677 (Fla.3d DCA 1963); State v. Ba-bun, 233 So.2d 171 (Fla.3d DCA 1970). Adoption of appellant’s position would lead to an absurd result here in that it would exclude pistols, shotguns, rifles, and any other commonly considered firearms from the statutory offenses involving firearms. We cannot presume that the legislature intended to enact such purposeless, useless legislation. Sharer v. Hotel Corp. of America, 144 So.2d 813 (Fla.1962); Carlile v. Game and Fresh Water Fish Commission, 354 So.2d 362 (Fla.1977).

Section 710.001, Florida Statutes (1977) states that the definitions given in that section are to apply to the words used in the chapter, “except where the context otherwise requires.” Reading the various provisions of the Chapter in context, we conclude that the exclusions from the definitions of “explosive” given in section 790.-001(5)(a)-(d) do not apply to the term “explosive” as used in the definition of “firearm” given in section 790.001(6). The legislature by its subsequent enactment of Chapter 78-200, Laws of Florida, has expressly codified this construction.

Appellant’s other point being without merit, the judgment and sentence are AFFIRMED.

McCORD, C. J., and MELVIN, J., concur.


text:
    John Leon NATKIE, Appellant, v. STATE of Florida, Appellee.
    No. LL-307.
    District Court of Appeal of Florida, First District.
    March 2, 1979.
    Joseph Jordan of Bailey & Jordan, P. A., West Palm Beach, for appellant.
    No appearance for appellee.
   PER CURIAM.

John Leon Natkie appeals from the denial of a motion to vacate a judgment and sentence under Rule 3.850, Fla.R.Crim.P. Natkie was charged with robbery and in the course of a robbery, carrying a firearm or other deadly weapon, to wit: a pistol. In the plea and sentencing proceedings, the information was read, Natkie pleaded guilty as charged, the maximum sentence of life imprisonment was explained and understood, the factual basis showed that a firearm was used in the course of the robbery, and the plea negotiation provided for a 20-year term in state prison. Other felony charges were dropped. However, at sentencing the trial judge verbally adjudicated Natkie guilty of robbery and the written judgment and sentence showed the crime as “robbery.” Since it affirmatively appears from the record, however, that the trial court simply inadvertently failed to expressly adjudicate Natkie guilty of the crime charged by reciting the words “and in the course of a robbery, carrying a firearm or other deadly weapon, to wit: a pistol” following the word “robbery,” we, therefore, order the cause remanded for the sole purpose of entry of a proper judgment; and upon such judgment being entered, the judgment will stand affirmed. The defendant need not be present for this purpose.

McCORD, C. J., and MELVIN and BOOTH, JJ., concur.