author: BOYER, Judge.

text:
    G & B OF JACKSONVILLE, INC., d/b/a Out Of Sight, Petitioner, v. STATE of Florida, DEPARTMENT OF BUSINESS REGULATION, DIVISION OF BEVERAGE, Respondent.
    No. DD-443.
    District Court of Appeal of Florida, First District.
    Aug. 17, 1978.
    Rehearing Denied Oct. 6, 1978.

      Harry Katz, Jr. of Katz & Katz, Jacksonville, for petitioner.
    Charles F. Tunnicliff, Dennis E. LaRosa and Charles T. Collett, Tallahassee, for respondent.
   BOYER, Judge.

By petition for review pursuant to Chapter 120, Florida Statutes, the Administrative Procedure Act, and F.S. 561.29(7), G & B of Jacksonville, Inc. doing business as Out Of Sight, hereinafter referred to as petitioner, seeks review of an order of the Director of the State of Florida Department of Business Regulation, Division of Beverage, hereinafter referred to as respondent, by which order civil penalties were assessed against petitioner.

F.S. 561.29 provides, inter alia, that the Division of Alcoholic Beverages and Tobacco is given full power and authority to revoke or suspend the license of any person holding a license under the beverage law when it is determined or found by the Division upon sufficient cause that a licensee or his or its agents, officers, servants or employees, on the licensed premises, or elsewhere while in the scope of employment, has violated any of the laws of the State of Florida or of the United States. Provision is also made for imposition of civil penalties against a licensee for any violation of the Beverage Law, or any rule issued pursuant thereto, “not to exceed $1,000.00 for violations arising out of a single transaction.”

F.S. 561.29(3) further provides:

“ * * * If a hearing is required, the licensee shall be entitled to produce witnesses and be represented by counsel. Hearings may be conducted by a person designated by the division. The hearing officer shall make findings of fact and may make recommendations for disposition of the case based on such findings of fact. Upon receipt of the finding of fact made by the person designated as hearing officer, the division may enter its decision thereon.”

F.S. 796.07, entitled “Prohibiting prostitution, etc.; evidence; penalties; definitions.” provides, in so far as is here material, as follows:

“(1) As used in this section, unless the context clearly requires otherwise: .
“(a) The term ‘prostitution’ shall be construed to include the giving or receiving of the body for sexual intercourse for hire, and shall also be construed to include the giving or receiving of body for licentious sexual intercourse without hire. “(b) The term ‘lewdness’ shall be construed to include any indecent or obscene act.
“(e) The term ‘assignation’ shall be construed to include the making of any appointment or engagement for prostitution or lewdness or any act in furtherance of such appointment or engagement.
* * * * * *
“(3) It shall further be unlawful in the state:
“(a) To offer to commit, or to commit, or to engage in, prostitution, lewdness, or assignation.
“(b) To solicit, induce, entice, or procure another to commit prostitution, lewdness, or assignation with himself or herself.
“(c) To reside in, enter, or remain in, any place, structure, or building, or to enter or remain in any conveyance, for the purpose of prostitution, lewdness, or assignation.
* *

F.S. 800.03 proscribes exposure of sexual organs. It provides, in material part:

“It shall be unlawful for any person to expose or exhibit his sexual organs in any public place or on the private premises of another, or so near thereto as to be seen from such private premises, in a vulgar or indecent manner, or so to expose or exhibit his person in such place, or to go or be naked in such place. * * * ”

The Division of Beverage charged petitioner with three offenses:

“(1) That, on or about April 16, 1975, an agent, servant or employee of the Respondent, [G & B of Jacksonville, Inc.] Sarah Jane Smith, did unlawfully commit or engage in lewdness in violation of Section 796.07(3)(a), Florida Statutes, by dancing in a topless state for Detective H. R. Hall and, while dancing, pulling down her bikini panties and exposing her vagina and pubic area and by continually rubbing her vagina, buttocks and legs on Hall’s legs while dancing.
“(2) That, on or about April 16, 1975, an agent, servant or employee of the Respondent, [G & B of Jacksonville, Inc.] Sarah Jane Smith, did unlawfully expose or exhibit her sexual organs in violation of Section 800.03, Florida Statutes.
“(3) That, on or about April 16, 1975, an agent, servant or employee of the Respondent, [G & B of Jacksonville, Inc.] Doris Pesnell Edwards, did unlawfully commit or engage in lewdness, in violation of Section 796.07(3)(a), Florida Statutes, by continually rubbing her vagina and buttocks on the legs of H. R. Hall while dancing for Hall in a topless state.”

A hearing was conducted before a hearing officer at which hearing Detective Hall testified that Ms. Smith and Ms. Edwards did in fact commit the charged offenses. Ms. Smith denied exposing her vagina and pubic hair, testifying that she wore a G-string underneath a white bathing suit thereby rendering such exposure impossible. Ms. Edwards also denied the alleged acts. The hearing officer rendered a recommended order containing findings of fact and conclusions of law in which he found that the offenses were committed but that the violations attributed to Ms. Smith arose out of a single transaction. He accordingly recommended that a civil, penalty be assessed against petitioner in the amount of $1,000.00 for the violations committed by Ms. Smith and that an additional civil penalty of $1,000.00 be assessed as a result of the violation committed by Ms. Edwards.

The recommended order was entered on May 3, 1976. On September 27, 1976 the Director entered an order adopting the findings of fact and conclusions of law contained in the recommended order of the hearing officer but, without discussing the “single transaction” provision of F.S. 561.-29(4) or of the recommended order, assessed a civil penalty of $1,000.00 for each of the three offenses.

We will address the six points raised by the petitioner in the order presented.

In doing so, we pause to observe that our task would have been made much easier had respondent’s attorney, in the preparation of respondent’s brief, followed the rules applicable to appellate practice by addressing the points raised by petitioner in the same order as presented in petitioner’s brief. The reasons for such rules and the affect on the court of ignoring them is fully set out in the court’s opinion in American Baseball Cap v. Duzinski, 308 So.2d 639 (Fla. 1st DCA 1975) and therefore will not be repeated here.

Petitioner first urges that F.S. 796.-07 is unconstitutional as embracing multiple subjects not expressed in the title, contrary to Article III, Section 6 of the Constitution of the State of Florida which requires that every law shall embrace but one subject and matter properly connected therewith which subject shall be briefly expressed in the title. Respondent properly points out, however, that the subject statute was originally enacted as Chapter 21664, Laws of Florida, 1943, wherein its full title was set forth as follows:

“AN ACT defining and prohibiting lewdness, assignation and prostitution, making it unlawful to engage in, solicit, procure for, aid or abet, lewdness, assignation or prostitution, providing for the admission in evidence of certain testimony in trials hereunder, and providing penalties for the violation of the provisions of this Act.”

We find the constitutional attack to be without merit. (See Bell v. State, 289 So.2d 388 (Fla.1973) and Chesebrough v. State, 255 So.2d 675 (Fla.1971)).

Petitioner next urges that respondent impermissibly increased the recommended penalty without a review of the complete record in violation of F.S. 120.-57(1)(b)(9). Although we find petitioner’s point to be well taken we find no necessity for reversal nor remand but, instead, in accordance with F.S. 120.68(9)(a) we modify the penalty imposed by respondent and reduce same to that recommended by the hearing officer, viz: A total of $2,000.00.

By its third point, petitioner, citing F.S. 120.57(1)(b)(7); F.S. 120.57(1)(b)(8) and F.S. 120.57(1)(b)(9) urges that upon petitioner having filed exceptions to the findings of fact made by the hearing officer, the Director could not meaningfully consider the exceptions and determine whether the findings of fact were based upon competent substantial evidence and thereby enter an order adopting the findings of fact without first reviewing the entire record. To hold that an agency, petitioner argues, may enter a final order adopting the findings of fact of a hearing officer, when those findings have been challenged, without first reviewing the complete record reduces the final order to a useless act. That argument is not without logic. However, to so hold would ignore the plain language of the cited statute. It is clear from a reading of F.S. 120.57(1)(b)(9) that the legislature intended that a complete review of the entire record be required of the agency only in those instances wherein the agency in its final order rejects or modifies the findings of fact in the recommended order and when, by agency order, the recommended penalty is increased.

Petitioner next challenges the subject order on the basis of timeliness, citing F.S. 120.59 which requires that: “The final order in a proceeding which affects substantial interests shall be in writing or stated in the record * * * and it shall be rendered within 90 days * * * after a recommended order is submitted to the agency and mailed to all parties, if the hearing is conducted by a hearing officer * * * The statute further provides that the 90-day period may be waived or extended with the consent of all parties. The record before us establishes no waiver nor consent and obviously the challenged order was not rendered within 90 days after the recommended order was submitted to the agency and mailed to the parties. The violation being clear, our task is to determine its effect. To embark upon a discussion of whether the 90-day period is “directory” or “mandatory” is to beg the question. It is apparent that the legislature intended adherence to the 90-day provision. But what is the consequence of violation and upon whom does it fall? It hardly seems appropriate to interpret the rule differently depending upon whether the parties are an agency and a private citizen or whether conflicting interests of multiple private parties are involved. For example, what would be the consequences of a violation of the 90-day rule were the Public Employees Relations Commission to enter an untimely order in a dispute between an employer and a labor union?

Our sister court of the Third District in Financial Marketing Group, Inc. v. State, Department of Banking and Finance, Division of Securities, 352 So.2d 524 (Fla. 3rd DCA 1977) addressed the problem but failed to resolve it, saying:

“As to the first alleged error, we agree that the language of the statute is mandatory and the respondent should have rendered its final order within 90 days after the recommended order was submitted by the hearings examiner. The statute does not provide a penalty for violation of this section, and the petitioners urge that the penalty should be that the licenses, as required by the petitioners, should issue. We certainly agree that the State agencies should follow mandates of the Legislature. We further observe that the regulatory agencies should not frustrate a citizen’s attempt to secure a license to pursue a vocation or profession by inaction. If there were no other basis to reverse the agency’s action under review, we might adopt the penalty suggested by the petitioners and require the issuance of the licenses because of the failure of the respondent to follow the mandatory provisions of Section 120.-59, Florida Statutes. * * * (352 So.2d at page 525)

Considering a similar time limitation for the holding of public service commission hearings and entry of commission order concerning justness and reasonableness of proposed rate changes, this court in Lomelo v. Mayo, 204 So.2d 550 (Fla. 1st DCA 1967), held that the statutory period was designed to further the orderly conduct of the commission’s business and to fix what the legislature considered to be a reasonable time within which to act, the commission being accountable in mandamus for any substantial delay beyond the provided period.

In Cross Key Waterways v. Askew, 351 So.2d 1062 (Fla. 1st DCA 1977), we held that the failure to file a rule within the 45-day statutory period did not render it invalid, reciting that the tardiness was not “a material error in procedure”. (See F.S. 120.68(8)).

While agreeing with our sister court of the Third District in Financial Marketing Group, Inc. v. State, Department of Banking and Finance, Division of Securities, supra, that the 90-day period prescribed by the subject statute is mandatory, we conclude that the effect of its violation should be measured by the provisions of F.S. 120.68(8) and that the consequences of a time violation will depend upon whether the fairness of the proceedings or the correctness of the action taken is found to have been impaired. There may well be instances, as suggested in the last cited opinion, in which a violation of the 90-day period by an agency may justify reversal of the agency action. However, sub judice, a careful examination of the entire record reveals that neither the fairness of the proceedings nor the correctness of the action taken have been impaired by the delay. We do not, therefore, reverse on that ground.

By its fifth point, petitioner argues that the penalties were excessive as a result of the hearing officer, and later the Director, failing to “view this case alone, and on its merit, without regard to other separate and independent cases against petitioner which he heard simultaneously”.

The charges made against petitioner in this case were three of a total of eighteen charges made against five different licensed locations, all owned by petitioner. The cases made against each of the licensed premises were heard by the same hearing officer consecutively on the same day. Finding petitioner guilty on fourteen charges, the hearing officer recommended fines totalling $11,000.00, plus license suspensions totalling 90 days at three of the five locations. The Director affirmed the orders of the hearing officer in every respect except that the penalty impositions were reduced to $8,350.00 and license suspensions to a total of 30 days, viz: Ten days each for three locations. In the case sub judice the hearing officer recommended two $1,000.00 fines which the agency increased to $3,000.00, as already mentioned. The size of the penalties, the maximum allowed by F.S. 561.29(4), together with statements made by the hearing officer in several of his recommended orders, indicate, petitioner argues, that the hearing officer became prejudiced and failed to consider the issues in each case independently.

Confining ourselves, as we must, to the case now under consideration, we conclude that although a lesser penalty could have been justified, particularly in view of the contradictory nature of the evidence adduced, they were nevertheless within the bounds set by the statute and may not, therefore, be disturbed by us. (See Carlton v. Div. of Occupations, etc., 354 So.2d 77 (Fla. 1st DCA 1977).

Finally, petitioner urges that the challenged order is not supported by competent substantial evidence. Having found that F.S. 796.07 is constitutional, we find no difficulty in affirming the challenged order as to violation of the proscription in that statute against lewdness. We therefore hold that the record reveals substantial competent evidence to sustain the first and third charges hereinabove quoted. However the second charge, as already noted, alleged that Ms. Smith “did unlawfully expose or exhibit her sexual organs in violation of Section 800.03, Florida Statutes”. We find no evidence in the record to sustain that charge. No esoteric discussion is required in order to define or describe “sexual organs”, nor the location thereof on the human anatomy. Suffice to say, that exposure of the pubic hair or buttocks or legs (or all three) do not constitute exposure of the sexual organ. Neither is it necessary that Ms. Smith have exposed her sexual organ in order to have lewdly rubbed her vagina on Detective Hall’s leg. There is an obvious distinction, as apparently recognized by re-spondent, between the conduct proscribed by F.S. 796.07 and that proscribed by F.S. 800.03.

Discussing the latter statute (F.S. 800.03) and emphasizing its area of proscription, the Supreme Court of Florida in Hoffman v. Carson, 250 So.2d 891 (Fla.1971), said:

“ * * * Rather, it [F.S. 800.03] is directed at the exposure of sexual organs and nudity, * * *
‡ ‡ % ‡ ‡
“But our holding here is not meant to suggest that nudity or exposure in all circumstances would not be violative of this statute. * * * ” (emphasis the courts: 250 So.2d at pages 893 and 894)

The Hoffman decision involved a “go-go dancer” who was arrested for violating F.S. 800.03 by going totally nude and exposing her sex organs in the course of her performances. Such are not the facts revealed by the record sub judice.

We conclude therefore that the challenged order must be reversed in so far as it determined petitioner to have been guilty of the second offense charged. However, inasmuch as that offense arose out of the same transaction as did the first offense and we have already held that respondent improperly imposed separate penalties for each offense arising out of the same transaction, our reversal here as to the second offense charged has no effect on the amount of penalties validly imposed.

We accordingly affirm in part and reverse in part and reduce the total penalties imposed incident to this case to the sum of $2,000.00.

IT IS SO ORDERED.

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

      . We will further discuss the propriety of the penalty under our treatment of a subsequent point, post.

      . As recited in footnote (1), supra, we here treat this particular point: The penalty will be further discussed under the final point presented, post.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    G & B OF JACKSONVILLE, INC., d/b/a the Harem, Petitioner, v. STATE of Florida, DEPARTMENT OF BUSINESS REGULATION, DIVISION OF BEVERAGE, Respondent.
    No. DD-444.
    District Court of Appeal of Florida, First District.
    Aug. 17, 1978.
    Rehearing Denied Oct. 6, 1978.
    Harry Katz, Jr. of Katz & Katz, Jacksonville, for petitioner.
    Charles F. Tunnicliff, Dennis E. LaRosa, Tallahassee, for respondent.
   PER CURIAM.

This is a companion case, though involving a different establishment and different individuals, to G & B of Jacksonville, Inc., d/b/a Out Of Sight v. State of Florida, Department of Business Regulation, Division of Beverage, Case No. DD—443, Opinion filed August 17, 1978. All of the points involved in this case, except the point relating to sufficiency of the evidence, are identical to points presented in, and resolved by, said companion case. As to sufficiency of the evidence, a review of the record reveals it to have been conflicting and contradictory. Under those circumstances it was the prerogative of the hearing officer, in the first instance, to resolve the conflicts and make findings of fact. He did. Those findings were adopted by the agency. We may not reweigh the evidence nor substitute our opinions for those of the hearing officer and agency on conflicting testimony. The record reveals substantial competent evidence, apparently believed by the hearing officer, to support his findings. They will not be disturbed by us.

AFFIRMED.

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


text:
    G & B OF JACKSONVILLE, INC., d/b/a Silver Dollar Bar & Package Store, Petitioner, v. STATE of Florida, DEPARTMENT OF BUSINESS REGULATION, DIVISION OF BEVERAGE, Respondent.
    No. DD-445.
    District Court of Appeal of Florida, First District.
    Aug. 17, 1978.
    Rehearing Denied Oct. 6, 1978.
    Harry Katz, Jr. of Katz & Katz, Jacksonville, for petitioner.
    Charles F. Tunnicliff, Dennis E. LaRosa, Tallahassee, for respondent.
   PER CURIAM.

This is a companion case, though involving a different establishment and different individuals, to G & B of Jacksonville, Inc., d/b/a Out Of Sight v. State of Florida, Department of Business Regulation, Division of Beverage, Case No. DD-443, Opinion filed August 17, 1978. All of the points involved in this case, except the point relating to sufficiency of the evidence, are identical to points presented in, and resolved by, said companion case. As to sufficiency of the evidence, a review of the record reveals it to have been conflicting and contradictory. Under those circumstances it was the prerogative of the hearing officer, in the first instance, to resolve the conflicts and make findings of fact. He did. Those findings were adopted by the agency. We may not reweigh the evidence nor substitute our opinions for those of the hearing officer and agency on conflicting testimony. The record reveals substantial competent evidence, apparently believed by the hearing officer, to support his findings. They will not be disturbed by us.

AFFIRMED.

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


text:
    G & B OF JACKSONVILLE, INC., d/b/a Four Winds, Petitioner, v. STATE of Florida, DEPARTMENT OF BUSINESS REGULATION, DIVISION OF BEVERAGE, Respondent.
    No. DD-446.
    District Court of Appeal of Florida, First District.
    Aug. 21, 1978.
    Rehearing Denied Oct. 10, 1978.
    Harry Katz of Katz & Katz, Jacksonville, for petitioner.
    Charles F. Tunnicliff, Charles T. Collett, Dennis E. LaRosa, Tallahassee, for respondent.
   PER CURIAM.

This is a companion case, though involving a different establishment and different individuals, to G & B of Jacksonville, Inc., d/b/a Out of Sight v. State of Florida, Department of Business Regulation, Division of Beverage, Case No. DD-443, Opinion filed August 17, 1978. All of the points involved in this case, except the point relating to sufficiency of the evidence, are identical to points presented in, and resolved by, said companion case. As to sufficiency of the evidence, a review of the record reveals it to have been conflicting and contradictory. Under those circumstances it was the prerogative of the hearing officer, in the first instance, to resolve the conflicts and make findings of fact. He did. Those findings were adopted by the agency. We may not reweigh the evidence nor substitute our opinions for those of the hearing officer and agency on conflicting testimony. The record reveals substantial competent evidence, apparently believed by the hearing officer, to support his findings. They will not be disturbed by us.

AFFIRMED.

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


author: BOYER, Judge. McCORD, Chief Judge,

text:
    G & B OF JACKSONVILLE, INC., d/b/a the Climax, Petitioner, v. STATE of Florida, DEPARTMENT OF BUSINESS REGULATION, DIVISION OF BEVERAGE, Respondent.
    No. DD-447.
    District Court of Appeal of Florida, First District.
    Aug. 30, 1978.
    Rehearing Denied Oct. 20, 1978.
    Harry Katz of Katz & Katz, Jacksonville, for petitioner.
    Charles Tunnicliff, Charles T. Collett, Dennis E. LaRosa, Tallahassee, for respondent.
   BOYER, Judge.

By petition for review pursuant to Chapter 120, Florida Statutes, the Administrative Procedure Act, and F.S. 561.29(7), G & B of Jacksonville, Inc. d/b/a The Climax, hereinafter referred to as petitioner, seeks review of an order of the director of the State of Florida Department of Business Regulation, Division of Beverage, hereinafter referred to as respondent, by which order a civil penalty in the amount of $500.00 was assessed against petitioner.

The respondent charged petitioner with the following offense:

“(1) On or about the 5th day of June, 1975, investigation revealed that on your licensed premises, you, your agent, servant or employee did unlawfully employ a person under the age of 18 years, one Teri Armstrong Beard, age 16 years, in violation of 562.13, Florida State Statutes.”

A hearing was conducted before a hearing officer at which Ms. Beard testified that she worked at The Climax for a few months and that she was 16 at the time. Ms. Beard filled out an application for the job which states that she was 19 years old, divorced, and had been employed previously as a cocktail waitress and bartendress in a beer tavern. When she was interviewed for the job, Ms. Beard gave her age at 19, however, the interviewer (the manager at The Climax) did not ask for any proof of Ms. Beard’s age. Eugene 0. Barnard, the president and stockholder of the licensee testified that he reviewed Ms. Beard’s application prior to employing her. He testified that he verified Ms. Beard’s application by calling her mother, who confirmed that Ms. Beard was 19. He further testified that he called Ms. Beard’s former employer in Oklahoma to determine whether or not Ms. Beard was paid the salary which she listed on her application. Although Ms. Beard testified that she had a restricted driver’s license at the time she was employed by petitioner, Barnard testified that he asked her about a driver’s license subsequent to her employment and she told him she didn’t have a driver’s license. The record indicates Ms. Beard did not drive while she was employed by petitioner and was given a ride to and from work.

The hearing officer concluded that petitioner violated F.S. 562.13 and recommended that a civil penalty in the amount of $500.00 be assessed against the petitioner. The respondent entered its order adopting the recommended order and assessing a civil penalty against the petitioner in the recommended amount.

We agree with petitioner that the evidence is insufficient to support the assessment of the civil penalty. This case is distinguishable from the case of R & R Lounge, Inc. v. Wynne, 286 So.2d 13 (Fla. 1st DCA 1973) cited by the hearing officer in his conclusions of law. Sub judice there were no warning flags sufficient to create a serious question as to Ms. Beard’s correct age. Here, petitioner did all that was reasonable under the circumstances. Ms. Beard said she was 19 years of age. The licensee’s unrebutted testimony reveals that he called Ms. Beard’s mother and she confirmed that Ms. Beard was 19 years of age. Further, the employment application reveals Ms. Beard to have been 19 and divorced. Divorce implies marriage and marriage implies adulthood. In short, we cannot say that petitioner failed to exercise the degree of diligence imposed upon it to determine the correct age of Ms. Beard before entering into an employment contract with her. Having reversed the respondent’s order on the grounds that there is insufficient evidence to support the charge, we deem it unnecessary to discuss the other points raised by petitioner.

Accordingly, the respondent’s order is vacated.

MELVIN, J., concurs.

McCORD, C. J., dissents.

McCORD, Chief Judge,

dissenting.

There is competent substantial evidence in the record that Ms. Beard, at the time of her employment by petitioner, had a driver’s license but was not required or requested by petitioner to produce it or other identification to verify her stated age. I would affirm.


author:
HENDRY, Judge.
      CARROLL (Ret.), Associate Judge

text:
    John GIBSON, Appellant, v. AVIS RENT-A-CAR SYSTEM, INC., and Frank Arata, Jr., Appellees.
    No. 77-1150.
    District Court of Appeal of Florida, Third District.
    Aug. 22, 1978.
    Rehearing Denied Oct. 18, 1978.

      Richard Baron, Miami, for appellant.
    Robert L. Dubé, Richard M. Gale, Miami, for appellees.
    Before HENDRY, J., GOMEZ, HELIO, Associate Judge, and CHARLES CARROLL (Ret.), Associate Judge.
   HENDRY, Judge.

Appellant/plaintiff appeals from a directed verdict rendered in favor of appel-lees/defendants in an action for personal injuries stemming from an automobile accident. We affirm.

Appellee stopped his automobile in a traffic lane on Interstate 95 in Dade County. There was testimony to the effect that ap-pellee was intoxicated at the time. A second vehicle driven by a Mr. Curtis stopped short behind appellee, avoiding contact with appellee’s vehicle. Curtis alighted from his auto and began directing traffic around the two vehicles. Shortly thereafter, appellant approached the scene and, viewing the situation, applied his brakes. Appellant’s auto came to a halt short of the Curtis vehicle. Almost simultaneously, a fourth vehicle driven by co-defendant McNealy struck appellant’s auto, pushing it into the Curtis vehicle. Appellant’s vehicle was severely damaged (totaled) and he sustained injuries permanent in nature.

Subsequent to the filing of a personal injury lawsuit against appellee, McNealy and their respective insurers, the case proceeded to jury trial. At the close of appellant’s case, both defendants and their insurers moved for a directed verdict. Appel-lees’ motion was granted while McNealy and his insured’s motion was denied. The trial judge based the directed verdict upon the theory that the fourth car driven by McNealy represented an efficient intervening cause insulating the negligent appellee from liability. We agree with the trial judge’s reasoning.

At trial, co-defendant McNealy testified that he saw the stopped vehicles approximately two hundred yards ahead. Though the nighttime conditions were not ideal for visibility, it is apparent that had McNealy been driving cautiously, maintaining the proper distance between his vehicle and appellant’s vehicle and watching the road ahead, no accident would have occurred. McNealy had more than enough time to avoid an accident (as other automobiles had done) by changing lanes and his negligence on the road amounted to an efficient intervening cause relieving appellees of liability. Nuno v. Balz, 255 So.2d 714 (Fla. 3d DCA 1971); Pass v. Friedman, 140 So.2d 883 (Fla. 3d DCA 1962); compare Railway Express Agency, Inc. v. Garland, 269 So.2d 708 (Fla. 1st DCA 1972), wherein the original tortfeasor’s act actually produced the second act of negligence.

Accordingly, the final judgment entered in accordance with the directed verdict is affirmed.

Affirmed.

CARROLL (Ret.), Associate Judge

(concurring in part and dissenting in part).

I concur in the affirmance of the denial of motion for directed verdict as to the defendant McNealy, but respectfully dissent from the affirmance of the grant of directed verdict as to the defendant Arata.

If defendant Arata (in the first car) was negligent, and he was so regarded by the trial court and this court, he is liable for the ultimate injury and loss of the plaintiff (in the third car) resulting from the latter being rear-ended by McNealy (in the fourth car), even though McNealy also was negligent. Arata’s negligent stop on the expressway created a situation in which it was reasonably foreseeable that his car or a car which was required to stop behind him would be struck from the rear.

This court, applying the doctrine of last clear chance, has concluded that on the evidence the number four driver had a last clear chance to avoid the rear-end collision, and that thereby the negligence of the number one driver is wholly to be eliminated.

Giving regard to the rule of comparative negligence [Hoffman v. Jones, 280 So.2d 431 (Fla. 1973)], two questions arise. The first is whether the doctrine of last clear chance survives. In my view it does, since it is a basis for determining proximate cause. The second is as to the effect thereof on liability of two negligent defendants where one has a last clear chance. Referring here to the driver of the first car as defendant A, and the driver of the fourth car as defendant B, if A’s negligence created the dangerous situation and B then negligently ran into the stopped cars, would the fact that the circumstances confronting B were such that he could and should have avoided collision operate to absolve A of his negligence, or operate only to tilt the scales of negligence heavily against B, in the determination of the comparative degrees or percentages of their negligence, for purposes of contribution between them, leaving the plaintiff entitled to recover against both A and B. See Lincenberg v. Issen, 318 So.2d 386, 393-394 (Fla. 1975).

Whether the negligence of one or the other of said defendants was the sole proximate cause of the plaintiff’s injury and loss, or whether the negligence of each combined to constitute proximate cause was a question for determination by the jury.

In my view, it was error to grant a directed verdict in favor of the defendant Arata.


author: MeLANE, RALPH M., Associate Judge. BOYER, Judge,

text:
    Svend O. HANSEN, a/k/a S. O. Hansen, Appellant, v. FIVE POINTS GUARANTY BANK, a Florida Banking Corporation, and American Arlington Bank, a Florida Banking Corporation, Appellees.
    No. GG-291.
    District Court of Appeal of Florida, First District.
    Aug. 24, 1978.
    As Corrected On Denial of Rehearing Oct. 18, 1978.

      John B. Culp, Jr., Jacksonville, for appellant.
    Cecilia A. Bryant of Bryant, Franson, Miller, Olive, Bryant & Ryan, Edward McCarthy, Hugh A. Richeson, Jr., Willard E. Parsons, Terrance E. Schmidt and Edwin W. Held, Jr., Jacksonville, for appellees.
   MeLANE, RALPH M., Associate Judge.

This appeal is from an amended final judgment of foreclosure on real property. The court adjudged that the claim of appel-lee American Arlington Bank was superior and prior to the appellant Svend O. Hansen, a/k/a S. O. Hansen. Neither of the parties to the appeal question that the mortgage of Five Points Guaranty Bank, plaintiff below, was a superior claim and prior lien upon the real estate. It is the second and third order of priority concerning us on appeal.

The documents affecting the respective claims of the appellant and appellee will be examined and considered in point of time of execution and recording.

First, after execution of the mortgage to Five Points Guaranty Bank, was a note and security agreement on January 26, 1973, to appellee, American Arlington Bank, in the sum of $27,130.40 by Regency Tire & Battery Co., a corporation. The corporate name of the debtor was thereafter changed to Sun Tire, Inc. In addition, the corporation entered into a written agreement with the Arlington Bank not to encumber or transfer the same real estate described in the mortgage to Five Points Guaranty Bank, foreclosed in this proceeding. The agreement not to encumber or transfer was duly recorded.

Second, on May 14, 1973, Sun Tire, Inc. gave a written option to appellant Svend 0. Hansen, to purchase the same real estate covered by the Five Points Bank’s mortgage and the agreement not to encumber or transfer property given Arlington Bank. The option was duly recorded.

Third, on November 12, 1974, Sun Tire, Inc. executed a note and security agreement in favor of Arlington Bank to liquidate certain loans by the bank. Additionally, R. W. Grace and Dorothy C. Grace, his wife, as individuals, executed a real estate mortgage to Arlington Bank on the same property mentioned above. However, in the body of the instrument Sun Tire, Inc. was designated “mortgagors”. The mortgage was duly recorded.

Fourth, on June 25, 1975, Sun Tire, Inc., grantor, executed and delivered a warranty deed to appellant, Hansen, as grantee to the property described in the option to purchase. The deed was recorded.

The basic points before us are:

(1) Whether the first agreement and covenant not to transfer real estate to appellee, Arlington Bank, dated January 26, 1973, was an equitable mortgage or lien.

(2) If not, did the second security note to Arlington Bank together with an improperly executed mortgage on real estate, subsequent to the Hansen option, create an equitable mortgage superior to appellant, Hansen’s, earlier option to purchase and later warranty deed conveying title to him.

The first point is one of first impression in Florida. The appellee places reliance upon Coast Bank v. Minderhout, 61 Cal.2d 311, 38 Cal.Rptr. 505, 392 P.2d 265 (1965) where the California Supreme Court had a similar situation before it. It held that the agreement not to transfer or encumber created a security interest resulting in an equitable mortgage.

It appears from careful consideration of the opinion the court noted that the instrument creating the debt described it “For use with Property Improvement Loan”. Too, the pleadings admitted that the parties intended to create a security interest in the property. Coast, on the facts, presents a distinction from the case before us. We have only the face of the instrument to examine and reach a conclusion. The transaction by way of a bank loan does not in itself create a security interest in property. An equitable lien results “ * * only when the intention to offer the land as security for the debt is clearly apparent.” Fisher v. Safe Harbor Realty Co. (S.Ct.Del.) 38 Del.Ch. 297, 150 A.2d 617. We are further impressed with the Delaware opinion observing that the negative covenant not to encumber was not “an unequivocal manifestation to secure a debt by a lien on land.” (P. 620)

Accordingly, we hold that the bare language of the instrument held by Arlington Bank does not sufficiently indicate an intention to make the real property security for the debt.

We next give attention to the relationship and priority of the appellant’s option to purchase real estate and the later mortgage to appellee, Arlington Bank, covering the property.

The record indicates that the title to the real estate was at the time of the two transactions mentioned in Sun Tire, Inc., a corporation.

It is the position of the appellant, Hansen, that his option to purchase the property created an interest in the land. Further, as a recorded instrument the option was binding on subsequent creditors, including Arlington Bank. Also, the later mortgage to Arlington was invalid because of improper execution.

We have reviewed the Florida cases cited in the briefs. State Road Dept. v. Tampa Bay Theaters, Inc., (Fla.App.2d), 208 So.2d 485 (1968); Denco, Inc. v. Belk (Fla.) 97 So.2d 261 (1957); Fla. Yacht Club v. Renfroe, 67 Fla. 154, 64 So. 742 (1914); Welch v. Gray Moss Bondholders Corp., 128 Fla. 722, 175 So. 529 (1937), all involve an option where there was an existing possessory interest as an incident to option. Each holds that the option in question was an interest in the land.

In Mathews v. Kingsley, (Fla.App.2d) 100 So.2d 445 (1958), the Second District, distinguishing between an option and a contract of sale, held that the former gives no equitable interest in the real estate until the option to purchase is exercised by the op-tionee. The authority for its conclusion is Wolfle v. Daugherty, 103 Fla. 432, 137 So. 717. The Third District Court of Appeal in Feemster v. Schurkman, (Fla.App.3rd), 291 So.2d 622, held that an option to create a mortgage created a valid interest and is an encumbrance upon real estate where recorded prior to another mortgage. It was in “equity and good conscience” superior in time and right although there was no debt in existence.

No Florida case has been called to our attention which holds that a naked option to purchase land standing alone creates an equitable interest in the real estate.

As indicated herein, after the Hansen option was executed and recorded the Arlington Bank received a second security note and a mortgage upon the real estate described in Hansen’s option to purchase. The corporation, Sun Tire, Inc., is recited as “mortgagors” in the body of the instrument. However, the mortgage was executed and acknowledged by R. W. Grace and Dorothy C. Grace, his wife, as individuals. Immediately below the individual acknowledgment of Grace and wife appears a form of corporate acknowledgment with state and county blank. In the body of the acknowledgment, R. W. Grace and Dorothy C. Grace acknowledge execution as President and Secretary of Sun Tire, Inc. of the instrument and as its act and deed. There is no corporate seal affixed.

Appellant argues that the mortgage lacking proper execution by Sun Tire, Inc. is invalid and his earlier option and deed subsequent to the corporate mortgage should prevail. In so arguing he recognizes that while the improperly executed mortgage may have created an equitable lien or mortgage, Arlington Bank was on notice of Hansen’s previously recorded option to purchase and thus is bound by what appears of record. Appellant concludes that the bank’s interest under the defective mortgage is inferior to Hansen’s interest both under the option and subsequent deed from Sun Tire, Inc.

Pursuing the argument we examine the recorded option, the notice of which is charged to appellee, Arlington Bank.

Had the bank examined the record it would have discovered that the real property described in the option is the same appearing in its later mortgage. Further, that the optionee had twenty years within which to exercise his option. That the purchase price was $10,000.00. That the option was subject to the mortgage held by Five Points Bank, the plaintiff below. That the “optionor * * agreed neither to sell, encumber, mortgage or hypothecate in any manner * * ” the property “ * * without the prior written consent of the optionee”. Charged with notice of the contents of the valid option to purchase, the bank procured a mortgage executed without the formalities required of a corporate mortgagor.

Without saying that the Hansen option to purchase real estate created an interest in land, we hold that it was a valid encumbrance upon the real estate, the notice and terms of which were chargeable to appellee, Arlington Bank at the time its mortgage was executed. The option to purchase followed by its exercise by Hansen put legal title to the property in Hansen subject only to the mortgage of appellee, Five Points Guaranty Bank. The interest and claim of appellant, Hansen, is superior to that of appellee, Arlington Bank.

The judgment of the trial court is reversed with directions to give priority to appellant, Hansen, over appellee, American Arlington Bank in the distribution of sums remaining after the judgment and costs of Five Points Guaranty Bank.

Reversed.

McCORD, C. J., concurs.

BOYER, J., concurs specially.

BOYER, Judge,

concurring specially.

I am in complete agreement with the foregoing opinion authored by Judge McLane. However, I would go even further and would hold that one acquiring a fee interest or security interest in real property with knowledge, actual or constructive, (by virtue of proper recordation) of an existing option in favor of another acquires such interest subject and subordinate to the option. It makes no difference, in my view, whether or not an option is construed as creating an interest in the land. A validly drafted and executed option is clearly an encumbrance on the land described therein and subsequent purchasers or lien holders who acquire a fee interest or lien interest in the land with knowledge, actual or constructive, of the option ought to be, and in my view are, bound thereby and subordinate thereto.


text:
    BARRETT, DAFFIN & FIGG, ARCHITECTS-PLANNERS-ENGINEERS, INC., and Charles H. Carlan, Appellants, v. Dwight E. McCORMICK et al., Appellees.
    No. GG-163.
    District Court of Appeal of Florida, First District.
    Aug. 25, 1978.
    Rehearing Denied Oct. 24, 1978.
    Robert P. Gaines of Beggs & Lane, Pensacola, for appellants.
    Joe J. Harrell of Harrell, Wiltshire, Stone & Swearingen, Pensacola, for appellees.
   PER CURIAM.

This is an appeal by two of several defendants from a final judgment in an action at law tried before the court without a jury.

Appellant Carian is a registered professional civil engineer employed by Barrett, Daffin & Figg, Architects-Planners-Engineers, Inc. L. J. Groves, III, was a principal in D-J Builders and a friend of Carian. Dwight E. McCormick and others as trustees of McCormick Mortgage Investors of Florida purchased four loans from Commonwealth Corporation in the spring of 1974. Among those loans was one made to D-J Builders for the construction of an office building. At the time of the purchase of the loan a disbursement had already been made by Commonwealth Corporation. McCormick reimbursed Commonwealth for that disbursement. In due course Commonwealth Corporation filed a petition for reorganization in bankruptcy. Prior to the filing of that petition several other disbursements were made by Commonwealth, each of which was reimbursed by McCormick. After the filing of the petition for reorganization McCormick made disbursements directly to D-J Builders. McCormick testified that for each disbursement, both before and after the petition in bankruptcy, McCormick was furnished a certificate that appeared to carry the signature of Carian as well as the signature of Groves. Prior to the petition in bankruptcy, the certificates had also borne the signature of one who appeared to be an inspector employed by Commonwealth. The certificates were admitted into evidence as McCormick’s exhibits subject to the understanding that there was no concession on the part of Carian nor Barrett, Daffin & Figg as to the authenticity of the signatures. McCormick testified that his company relied on the certificates in making payments. Carian denied that he issued any certificates for this particular project, but did admit that he was a graduate civil engineer employed by Barrett, Daffin & Figg and that he had delivered certificates signed in blank to D-J Builders. He further admitted that Groves was the principal in D-J Builders. In response to a question as to whether he knew that the certificates which he signed in blank would be used by Groves for possibly obtaining funds and that the company would rely on the certificates before disbursing funds, Carian answered: “On the engineering projects, yes, sir”. Except for one certificate, which Car-ian designated a forgery, he did not deny that the subject certificates bore his signature with the designation “P.E.” following it. Carian admitted, and the evidence revealed, that Barrett, Daffin & Figg had performed some services in connection with the subject project but those services related only to surveying. Groves testified that Carian had signed some certificates in blank and had left them with his company. He could not remember whether or not Carian was to do the inspection work. Upon it being discovered that the office building was not being completed in accordance with the draw requests and inspection certificates foreclosure proceedings were instituted. McCormick was the high bidder at the foreclosure sale. During the non-jury trial giving rise to this appeal McCormick testified that the trust sustained a loss of $75,630.31. Judgment was entered against D-J Builders and Groves for that amount and against Carian and Barrett, Daffin & Figg for $49,080.31, which figure represents the total damages less the disbursement made on the certificate which Carian testified was a forgery.

Carian and Barrett, Daffin & Figg appeal, urging lack of privity and foreseeability.

The trial judge apparently found, and the evidence clearly reveals, that when Carian, the original wrongdoer, and employee of Barrett, Daffin & Figg, delivered in blank executed certificates of inspection to Groves, the principal of D-J Builders, he knew or should have known that the same would be used for evidence of the scope of work completed upon which a lender, viz: McCormick, would rely in making payment.

That appellants’ points on appeal are without merit is demonstrated by Banfield v. Addington, 104 Fla. 661, 140 So. 893 (1932); A. R. Moyer, Inc. v. Graham, 285 So.2d 397 (Fla.1973); Nicholas v. Miami Burglar Alarm Co., Inc., 339 So.2d 175 (Fla.1976) and Vining v. Avis Rent-A-Car Systems, Inc., 354 So.2d 54 (Fla.1977).

AFFIRMED.

MeCORD, C. J., BOYER, J., and MASON, ERNEST E., Associate Judge, concur.


author: SMITH, Acting Chief Judge.

text:
    SOUTHEASTERN ASSOCIATES, INC., Appellant, v. FIRST GEORGIA BANK, Appellee.
    No. II-381.
    District Court of Appeal of Florida, First District.
    Aug. 25, 1978.
    Rehearing Denied Oct. 20, 1978.
    Larry L. Bryan, Jacksonville Beach, for appellant.
    George L. Hudspeth of Mahoney, Hadlow & Adams, Jacksonville, for appellee.
   SMITH, Acting Chief Judge.

An appeal from a money judgment entered on a promissory note. The appellant corporation asserts that the trial court erred in declining to permit its sole stockholder, a layman, to act as attorney for the corporation and to conduct its defense. The court did not err. A corporation is not a person entitled to conduct its own defense, nor may it nominate a nonlawyer to do so. Nicholson Supply Co. v. First Federal Savings & Loan Ass’n, 184 So.2d 438 (Fla. 2d DCA 1966); Angelini v. Mobile Home Village, Inc., 310 So.2d 776 (Fla. 1st DCA 1975).

AFFIRMED.

MELVIN and BOOTH, JJ., concur.


text:
    FIRST NATIONAL BANK OF MIRAMAR, Petitioner, v. Gerald A. LEWIS, as Comptroller and as Head of the Department of Banking and Finance of the State of Florida, and Barnett Bank of Hollywood In Miramar, Florida, appearing in proper person as Barnett Bank of Broward County, Respondents.
    No. II-479.
    District Court of Appeal of Florida, First District.
    Sept. 1, 1978.
    Rehearing Denied Oct. 24, 1978.
    Joseph C. Jacobs & Robert J. Angerer of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, Warren W. Koffler, Washington, D.C., for petitioner.
    S. Craig Kiser and Franklyn J. Wollett, Tallahassee, Bruce A. Weihe of Houston, Cooper & Easthope, Fort Lauderdale, for respondents.
   PER CURIAM.

Petitioner brings for review the final agency action of the Comptroller of the State of Florida in granting the application of the Barnett Bank of Hollywood to open a branch bank in the City of Miramar.

Upon considering the briefs, the record and oral argument, we find no reversible error in this case. See McDonald v. Dept. of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977), and Fraser v. Lewis, 360 So.2d 1116 (Fla. 1st DCA 1978). Accordingly, the Petition for Review is DENIED.

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


text:
    Solomon SCHWARTZ, as Personal Representative of Sara Schwartz, and Solomon Schwartz, Individually, Appellant, v. AMERICAN HOME ASSURANCE COMPANY, a Foreign Corporation and Vincent Grande, Appellees.
    No. 75-701.
    District Court of Appeal of Florida, Third District.
    Sept. 1, 1978.
    Before HAVERFIELD, C. J., KEHOE, J., and CHARLES CARROLL (Ret.), Associate Judge.
   ORDER ON MANDATE

PER CURIAM.

Whereas, the judgment of this court was entered on May 11, 1976 (334 So.2d 268) affirming the summary final judgment of the circuit court of Dade County, in the above styled cause, and

Whereas, on review of this court’s judgment, by certiorari, the Supreme Court of Florida by its opinion and judgment filed May 4, 1978, 360 So.2d 383, and mandate now lodged in this court, quashed this court’s judgment;

Now, Therefore, It is Ordered that the mandate of this court heretofore issued in this cause on July 6, 1976 is withdrawn, the judgment of this court filed May 11,1976 is vacated and the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court, the summary final judgment of the trial court appealed herein is reversed and the cause is remanded for further proceedings not inconsistent with the opinion and judgment of the Supreme Court of Florida. Costs allowed shall be taxed in the trial court (Rule 3.16(b), Florida Appellate Rules).


author: MELVIN, Judge.

text:
    Diane S. MacMURRAY, Appellant, v. BOARD OF REGENTS, Appellee.
    No. II-150.
    District Court of Appeal of Florida, First District.
    Sept. 7, 1978.
    Rehearing Denied Oct. 24, 1978.
    Russell Troutman of Troutman, Parrish & Weeks, Winter Park, for appellant.
    Joe C. Willcox of Dell, Graham, Willcox, Barber, Ryals & Henderson, Gainesville, for appellee.
   MELVIN, Judge.

Appellant-plaintiff appeals from a final judgment entered in her claim against ap-pellee-defendant, Board of Regents. The appellant will hereafter be referred to as the plaintiff and the appellee will hereafter be referred to as the Shands Teaching Hospital.

Diane S. MacMurray’s complaint filed May 25, 1976, alleged in substance that she was a patient in the hospital for the purpose of having x-rays and tomograms taken July 31, 1973. It was alleged that the Shands Teaching Hospital interpreted such x-rays on July 31, 1973, and tomograms on August 7, 1973, as being normal when, in fact, the same indicated the presence of an abnormal condition in the plaintiff’s body. It was further alleged that as a legal cause and direct result of the negligence of the hospital in misinterpreting the positive indications on the x-rays and tomographs of the existence of Hodgkin’s Disease, a proper diagnosis of such disease was delay for four months and treatment for such disease was delayed for six months. It was alleged that the plaintiff experienced physical and mental pain and suffering and sustained travel and medical expenses which otherwise would not have been sustained, and that she further suffered a reduction in her ultimate chances of recovery by reason of the delay in diagnosis and treatment. After the pleadings were settled, the Shands Teaching Hospital admitted misreading Mrs. Mac-Murray’s x-rays and tomographs, and that such action on its part constituted actionable negligence.

The only question before the trial court and the question here considered is whether or not the complaint of Diane S. MacMur-ray was barred by the applicable Statute of Limitations, Section 95.11(4)(b). If her action was not brought within two years after she discovered or through the use of reasonable care should have discovered the incident (negligent interpretation of x-rays) which is the subject matter of the litigation, she cannot prevail.

The final judgment contains the following:

“2. From the undisputed facts disclosed by this record, there is no genuine issue as to any of the following facts:
a. The injury complained of was the failure of physicians at Shands Teaching Hospital to diagnose Plaintiff's Hodgkins Disease which was clearly evidence from certain chest x-rays and tomograms incorrectly interpreted as normal in August 1973.
b. Following her discharge from Shands in August 1973, Plaintiff was hospitalized at Orange Memorial Hospital in Orlando, Florida, where chest x-rays then made led to a prompt diagnosis of Hodg-kins Disease which was known to Plaintiff in December 1973.
c. For the purpose of having the Shands x-rays and tomograms available for comparison with the Orange Memorial x-rays with respect to a lesion in the left chest, not directly related to the discovery and diagnosis of Hodgkins Disease, Plaintiff, through her husband, who is a physician, acquired possession of the Shands x-rays and tomograms in November 1973, and she retained either continuous possession or control of them thereafter until they were returned to Shands in January 1977 during discovery proceedings in the medical mediation proceeding.
d. The Shands x-rays and tomograms made in August 1973 were the subject of a disagreement between physicians at Shands with respect to whether they revealed abnormalities; and although the radiology report then made indicated that the x-rays and tomograms were normal, they were in fact abnormal. The radiologist in charge has admitted there was an error in interpretation of those films, and the Defendant has admitted that such error constitutes actionable negligence.
e. The Shands x-rays and tomograms made in August 1973 reveal abnormalities which, if correctly interpreted, then would have led to a diagnosis of Hodg-kins Disease earlier than December 1973, The abnormalities were not made specifically known to Plaintiff until the films were examined on her behalf in January 1976 by two physicians to whom the abnormalities were readily apparent.
3. The Court is of the opinion that since the injury complained of became known to Plaintiff in December 1973, although she did not then have knowledge of the negligence of the Shands physicians, she had possession and control of the Shands x-rays and tomograms from and after November 1973 which through the exercise of reasonable care provided her the means for discovery of the negligence as now alleged in the pleadings by Plaintiff and admitted by Defendant.
4. There being neither allegation made nor facts appearing which suggest fraud, concealment or intentional misrepresentation on the part of Shands physicians, and having failed to commence this action within two years after discovery of the injury complained of, Plaintiff’s action is barred by the applicable limitation period as provided by Section 95.11(6), Florida Statutes, 1971.” (Emphasis added)

Thus, it is crystal clear that: 1) The physicians at Shands Teaching Hospital negligently interpreted x-rays and tomo-grams as being normal; 2) if properly interpreted, the presence of Hodgkins Disease would have been known; 3) plaintiff was hospitalized at Orange Memorial Hospital where chest x-rays led to a prompt diagnosis of the existence of Hodgkins Disease, and that such condition was known to the plaintiff in December, 1973; and 4) in November, 1973, the plaintiff, through her husband, acquired possession and control over the Shands x-rays and tomograms, and retained them from November, 1973 until January, 1977, when the same were returned to the defendant.

While it is true that the abnormalities appearing in the 1973 Shands x-rays and tomograms were not made specifically known to the plaintiff until such films were examined by her medical experts in January, 1976, she had in her possession, or under her control, the films and records whereby an earlier and timely examination would have made available the information to her, and thus enable her to present her claim against defendant well within the time prescribed.

In Nardone v. Reynolds, 333 So.2d 25, at p. 40 (Fla.1976), the Supreme Court of Florida held that: “. . . Mere ignorance of the easily discoverable facts which constitute the cause of action will not postpone the operation of the statute of limitations as to the party plaintiffs. . . . ”

The final judgment appealed from is AFFIRMED.

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


author: PER CURIAM. MILLS, Judge,

text:
    Frederick Lawrence SNYDER, Appellant, v. STATE of Florida, Appellee.
    No. II-307.
    District Court of Appeal of Florida, First District.
    Sept. 8, 1978.
    Rehearing Denied Oct. 24, 1978.

      Selig I. Goldin, of Goldin & Cates, Gaines-ville, for appellant.
    Robert L. Shevin, Atty. Gen., and Michael H. Davidson, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellant, convicted below of a violation of probation, contests the sufficiency of the evidence to support that finding. We believe the state’s proof was sufficient and affirm.

The facts reveal that appellant was arrested for possession of controlled substances during a probationary period after an off-duty policeman observed that a Mercedes automobile he was driving was weaving from lane to lane on a Jacksonville highway. Appellant was pulled over and discovered to be drinking a bottle of beer. One officer administered a field test for intoxication, which appellant passed. Meanwhile, however, another policeman, checking the license plates and inspection stickers on the car, noticed a purse or saddlebag on the passenger side of the front seat of the vehicle. This officer stated that he saw a cellophane bag which appeared to contain marijuana sticking out one or two inches from the saddlebag. He searched the bag, discovered marijuana, and arrested appellant. Other controlled substances were subsequently discovered in the bag.

Appellant’s story at the probation violation hearing was that he had been interested in purchasing the automobile in question and had arranged on the day of his arrest to pick up the vehicle for a test drive from a Jacksonville dealership. The vehicle was apparently owned privately but had been delivered to the dealership to facilitate its sale. Appellant stated that he had picked the car up that afternoon, driven it home, washed it off with a hose because it was dusty, taken a nap, and had then left his home to return the car to its owner when he was pulled over by the police officers. He stated that he had seen the saddlebag on the front seat but had not looked into it. He denied that a cellophane bag was sticking out of the bag.

We believe there is ample support for the revocation of appellant’s probation. Appellant admitted in his testimony that he had had the exclusive possession of the vehicle containing the bag of marijuana for approximately six hours at the time of his arrest. With that evidence, it is doubtful that the “constructive possession” doctrine enunciated by this court in Frank v. State, 199 So.2d 117 (Fla. 1st D.C.A. 1967) was applicable to this case. Even if constructive possession analysis is used, there is evidence supporting an inference of guilty knowledge here. The arresting officer testified on rebuttal that appellant “told me I couldn’t have seen it because it was zipped up in his bag and I had illegally searched his bag” at the time of his arrest. Frank, supra, allows an inference that the accused had knowledge of the drugs’ presence if there is evidence of an incriminating statement. Moreover, there is abundant case law establishing that proof sufficient to support a criminal conviction is not required to support a judge’s discretionary order revoking probation. See e. g., Bernhardt v. State, 288 So.2d 490, 501 (Fla.1974); Russ v. State, 313 So.2d 758, 760 (Fla.1975). Cf. Croteau v. State, 334 So.2d 577 (Fla.1976).

The order revoking probation is affirmed.

McCORD, C. J., and ERVIN, J., concur.

MILLS, J., dissents.

MILLS, Judge,

dissenting:

I dissent. The state’s entire case against appellant here consisted of the testimony of the off-duty police officer who had initially observed the Mercedes, the two officers who had arrested appellant, and a correctional officer who had checked appellant in at the county jail on the night of the arrest but who could not recall whether the controlled substances attributed to appellant were found in the saddlebag or on appellant’s person. There was no evidence linking appellant with the bag or any item in it, nor was there any indication that the officers smelled marijuana in the car or discovered any paraphernalia or remains of marijuana jn the car before or after appellant’s arrest. Appellant’s story was supported by the testimony of two of the car dealership’s employees who stated that they had observed the saddlebag in the automobile while it was parked at the dealership before appellant had picked it up.

On this record, I believe the state failed to prove that appellant knowingly possessed marijuana or other controlled substances and thereby violated the terms of his probation. The uncontroverted facts establish that appellant did not own the car in which the substances were found and that the bag containing the substances had been in the car before it came into appellant’s brief possession. No connection between appellant and the bag was ever proved. Furthermore, even if the marijuana was in “plain view”, there was no evidence that appellant saw it or could have recognized it as an illegal substance. The evidence was insufficient to prove the offense, and I would reverse the order revoking probation.


text:
    Louis NOVA, Appellant, v. The STATE of Florida, Appellee.
    No. 76-959.
    District Court of Appeal of Florida, Third District.
    Sept. 8, 1978.
    Bernard S. Yedlin, Miami, for appellant.
    Robert L. Shevin, Atty. Gen. and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before PEARSON, HENDRY and BARKDULL, JJ.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on May 17, 1977 (346 So.2d 1214) reversing the judgment of the circuit court of Dade County, Florida, in the above styled cause; and

WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida by its opinion and judgment filed July 27, 1978 (361 So.2d 411) and mandate now lodged in this court, quashed this ,court’s judgment and remanded the cause for reinstatement of this trial court’s judgment,

NOW, THEREFORE, It is Ordered that the mandate of this court heretofore issued on June 20, 1977 is withdrawn, the judgment of this court filed May 17, 1977 is vacated, the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court, the judgment of the trial court appealed from is reinstated and affirmed. Costs allowed shall be taxed in the trial court (Rule 3.16, Florida Appellate Rules.)


author: BOOTH, Judge.

text:
    Nancy S. HOSFORD, Appellant, v. John William HOSFORD, Jr., Appellee.
    No. II-294.
    District Court of Appeal of Florida, First District.
    Sept. 12, 1978.
    Rehearing Denied Oct. 18, 1978.

      Rivers Buford, Jr., Tallahassee, for appellant.
    William C. Owen, of McClure, Wigginton, Campbell & Owen, P. A., Tallahassee, for appellee.
   BOOTH, Judge.

This cause is before us on appeal from the order of the Circuit Court, Leon County, modifying the alimony awarded appellant. This is the third reduction in alimony since the original award at the time the parties were divorced in 1971. The order sought to be reviewed, dated October 13, 1977, is based on evidence of change in the husband’s financial condition considered by the court in ordering the second reduction of alimony on August 9,1976. Although there has been no material change since the prior modification, the latest order requires a further reduction.

Appellant correctly states that modification can only be based on changed conditions occurring since the prior award. Florida Statute § 61.14. Once the court has found sufficient change in circumstances to require modification and thereupon enters an order, the facts and circumstances supporting that modification may not be revisited by the court as a basis for further modification. Steinau v. Steinau, 343 So.2d 631, 632 (Fla. 4th DCA 1977).

Appellant also contends that the trial court should have considered her motion for attorney fees for services performed in the trial court. We agree.

Accordingly, the order of October 13, 1977, is VACATED and the cause REMANDED with directions that the prior modification by order dated August 9,1976, remains in effect unless and until modified.

MELVIN, J., concurs.

SMITH, Acting C. J., dissents.


text:
    William GOLDBERG and Elizabeth Ann Goldberg, his wife, Appellants, v. CONTEXT INDUSTRIES, INC., etc., et al., Appellees.
    No. 77-1053.
    District Court of Appeal of Florida, Third District.
    Sept. 12, 1978.
    Rehearing Denied Oct. 18, 1978.

      Philip M. Gerson, Miami, for appellants.
    Wicker, Smith, Blomqvist, Davant, MeMath, Tutan & O’Hara and Richard A. Sherman, Miami, for appellees.
    Before HENDRY and BARKDULL, JJ., and PARKER, J. GWYNN (Ret.), Associate Judge.
   PER CURIAM.

This is an appeal by appellants/plaintiffs from an adverse summary final judgment entered in an action for personal injuries sustained by appellant, William Goldberg in a slip and fall accident at the place of his employment.

The action was brought against: (1) Context Industries, Inc., the lessee of the premises; (2) Armer E. White and Harold D. White, tenants in common owners of the premises; (3) Bobby L. Johns, the general contractor for construction at the premises; and (4) Tropical Landscape Co., the landscape contractors for the premises.

All defendants moved for a summary judgment. The motion was granted in favor of Context Industries, Inc. on the ground that appellants’ claims were barred because William Goldberg had accepted workman’s compensation benefits from Context Realty, Inc., a wholly owned subsidiary of Context Industries, Inc. The motion was denied as to the other defendants.

The point on appeal is whether the parent corporation of a wholly owned subsidiary which appears as a joint insured with the subsidiary corporation on a policy of workmen’s compensation insurance is the “employer” of an injured employee of the subsidiary corporation so as to bar an independent tort action against the parent corporation after the employee has collected workman’s compensation from the subsidiary corporation.

The trial court ruled that the action against the parent corporation was barred because workman’s compensation had been collected by appellant Goldberg from the subsidiary corporation, Context Realty, Inc. After a careful examination of the record on appeal, we have concluded that summary judgment was properly entered in favor of appellee, Context Industries, Inc.

Accordingly, the final summary judgment appealed from is hereby affirmed.

Affirmed.


text:
    Marian A. TINSLEY, f/k/a, Marian A. Bonner, Appellant, v. Norman O. BONNER, Individually and as Personal Representative of the Estate of Esther N. Bonner, Deceased, Appellee.
    No. 77-2323.
    District Court of Appeal of Florida, Third District.
    Sept. 12, 1978.
    Rehearing Denied Oct. 20, 1978.

      Kravitz, Dudley & Duckworth and Everett H. Dudley, Jr., Hialeah, for appellant.
    Fink & Syna and Richard K. Fink, Miami, for appellee.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   PER CURIAM.

The marriage between these parties was dissolved by final judgment dated May 20, 1977. Each party has appealed some portion of the financial provisions of that judgment. The former wife, Marian A. Tinsley (formerly Marian A. Bonner), urges that the trial court committed reversible error in (1) ordering her to convey to the husband her interest in the former marital residence, and (2) denying her an interest in a joint savings account and certain securities. The former-husband, Norman A. Bonner, urges that the trial erred (1) in finding him responsible for repayment to his mother’s estate of certain money withdrawn by the wife from the joint savings account and (2) in assessing the wife’s attorney’s fees and costs against him.

The husband and wife held in their joint names money which belonged to the husband’s mother, Esther N. Bonner. The mother was made a party to the proceeding. She is now dead and the husband appears in these proceedings as the personal representative of her estate.

The proceedings were complicated and extensively tried. The judgment provided:

“(1) The marriage ... is hereby dissolved ...
“(2) MARIAN A. BONNER and NORMAN 0. BONNER be and they are hereby ordered forthwith to transfer title and possession to ESTHER N. BONNER the certificates evidencing a $5,000.00 Long Island Lighting Company Bond # XRV17113 and a $5,000.00 New Orleans Public Service Bond # RV0641, together with their interests in the $5,000.00 Central Hudson Gas and Electric Bond # R-2448.
“(3) MARIAN A. BONNER be and she is hereby entitled to retain sole title and possession to the $1,000.00 Corporate Investment Trust Fund Bond # 2 GF997 dated March 7, 1974.
if(4) ******
“(5) Any claims of MARIAN A. BONNER and NORMAN O. BONNER to Dade Federal Savings and Loan Association Account # 8868-0 be and the same are hereby denied and are the sole property of ESTHER N. BONNER.
“(6) Any claims of MARIAN A. BONNER to Dade Federal Savings and Loan Association Certificate of Deposit No. 97-5-002395-3 be and the same are hereby denied and she is ordered forthwith to remove any impediments to the exercise of sole control over said Certificate of Deposit by NORMAN O. BONNER.
(i(7) ******
“(8) Any claims of MARIAN A. BONNER and NORMAN O. BONNER against each other in reference to any activities in their joint checking account at Dixie National Bank maintained during the marriage be and the same are hereby denied.
“(9) MARIAN A. BONNER be and she is hereby ordered forthwith to execute in favor of NORMAN O. BONNER a QuitClaim Deed conveying all of her right, title and interest in and to the improved residential, real property located at 8765 S.W. 149th Terrace, Miami, Dade County, Florida, and NORMAN O. BONNER be and he is hereby ordered to execute in favor of MARIAN A. BONNER a QuitClaim Deed conveying to her all of his right, title and interest in and to improved, residential, real property located at 14000 S.W. 90th Court, Dade County, Florida.
“(10) * * sk * * *
“(11) * * * * * *
“(12) * sk sk sk # ?k
“(13) * sk sk sk sk *
“(14) * sk sk sk sk *
“(15) * sk sk * sk *
“(16) * sk sk sk sk sk

The trial judge’s finding with regard to the marital residence is as follows:

“13. Prior to the marriage, the HUSBAND was the record title holder with his former wife, NELL B. BONNER, of that certain property legally described as follows:
Lot 5, Block 4, of LAUREL HILL PARK, according to the Plat thereof, recorded in PB 77, at page 7 of the Public Records of Dade County, Florida, geographically described as 8765 S.W. 149th Terrace, Miami, Dade County, Florida.
Subsequent to the marriage between the parties hereto, the former wife, NELL B. BONNER, delivered a quit-claim deed to NORMAN 0. BONNER, conveying all of her interest in the above described real estate to him. Thereafter the HUSBAND transferred title by means of warranty deed to NORMAN 0. BONNER and MARIAN A. BONNER, his wife, as tenants by the entireties.
“Prior to the marriage, and at the time of the hearing, the WIFE owned a single family residence, titled in the name of MARIAN A. TINSLEY and geographically described as 14000 S.W. 90th Court, Miami, Dade County, Florida.
“The Court finds that the transfer by the HUSBAND to the Wife of the said property owned by him was made in consideration of an agreement between the parties wherein the HUSBAND agreed to place his said property in the joint names of the parties and the WIFE agreed to place her said property in the joint names of the parties which she did not do. The Court therefore finds that each party is entitled to the sole title and possession of their respective improved residential real property without any claim of the other and that neither party has proven any special equity in the other’s said described real property.”

The wife maintains that provision “(9)” of the judgment, above-quoted, is not sustainable upon the court’s finding. She relies upon the principles that a gift will be presumed and that the trial court’s authority to change the title to property is limited to awarding lump sum alimony, partitioning, finding a special equity or dividing the property according to an agreement of the parties. See Owen v. Owen, 284 So.2d 384 (Fla.1973); Niemann v. Niemann, 294 So.2d 415 (Fla. 4th DCA 1974); and Benson v. Benson, 102 So.2d 748 (Fla. 3d DCA 1958). We hold that error has not been shown, because the trial judge did, in fact, find a special equity in the husband so that a fair distribution of the joint assets of the parties could be obtained only by a restoration of the titles to the state they were in before the marriage. We find that the court acted here upon an equitable basis. See Beaty v. Beaty, 177 So.2d 54, 57 (Fla. 2d DCA 1965). The issue of the title to the real properties of the parties was submitted to the court by the pleadings and was fully tried. The wife may not, at this late date, claim an inability of the court to do what she asked it to do. See Walton v. Walton, 290 So.2d 110 (Fla. 3d DCA 1974).

The finding of the trial judge concerning the savings account and the securities purchased with the proceeds of the account is as follows:

“8. That funds of ESTHER N. BONNER, who shall hereinafter be referred to as ‘THE MOTHER’, approximating $76,000.00 were transferred on her behalf by the HUSBAND to the savings account at Dade Federal Savings and Loan Association of Miami; in addition, funds belonging to THE MOTHER and being represented by pension payments, social security benefits, interest and dividends in the sum of approximately $10,000.00 were also deposited to said account; these funds were used for the purchase of certain securities which are described as follows: . . .”

Based upon this finding, the trial judge concluded that the mother was the equitable owner of the securities and that any remaining balance in that particular savings account was also the property of the mother. The wife contends that she should have received one-half of the securities and the account because the deposit of the mother’s funds in the account constituted a gift to the wife, as the account was in her name jointly with the husband. We think that the trial court’s judgment is amply supported by the record because a gift from the husband cannot be presumed when the funds were not the husband’s to give. The mother was alive and needful of her own money. The mother was a party to this suit and her rights were entitled to the protection of the court.

The husband’s points on cross-appeal fail to present error. The court’s finding that some of the money in the trust account for the mother was withdrawn by the wife and used for living expenses does not, of itself, entitle the husband to recover these funds. He had made the account available to his wife by placing the mother’s money in the joint account. If some of the money was misapplied, he must bear the result, as between himself and his mother’s estate. It is not incumbent upon the trial court to trace the responsibility for expenditures for living expenses during a marriage. Cf. Burns v. Burns, 174 So.2d 432, 434-435 (Fla. 2d DCA 1965). Also cf. the discussion in Firestone v. Firestone, 263 So.2d 223, 227-228 (Fla. 1972).

The order for attorney’s fees is supported by the record. See Ginsberg v. Ginsberg, 127 So.2d 137 (Fla. 3d DCA 1961).

Affirmed.


text:
    John A. PATNIK, Jr., Appellant, v. Roberta A. PATNIK, Appellee.
    No. 77-2397.
    District Court of Appeal of Florida, Third District.
    Sept. 12, 1978.
    Rehearing Denied Oct. 18, 1978.
    John E. Bassett, North Miami, for appellant.
    Gus Efthimiou, Jr., Miami, for appellee.
    Before HENDRY, HUBBART and KE-HOE, JJ.
   PER CURIAM.

Appellant/respondent/husband challenges the proprietary of various financial and property provisions contained in a “final judgment of dissolution of marriage” and an “order on motion for rehearing and modification” which, inter alia, dissolved his twenty year marriage from appellee/peti-tioner/wife; awarded appellee custody of the couple’s two minor children; provided for the payment, by appellant, of child support; awarded appellee permanent alimony and exclusive possession of the marital domicile; and required that appellant pay taxes and make mortgage payments on the home.

We have carefully reviewed the record and have determined that there was competent, substantial evidence to support the chancellor’s rulings. Accordingly, no abuse of discretion having been shown, the “final judgment of dissolution of marriage” and “order on motion for rehearing and modification” are hereby affirmed. Herzog v. Herzog, 346 So.2d 56 (Fla. 1977); Shaw v. Shaw, 334 So.2d 13 (Fla. 1976).

Affirmed.


author: ERVIN, Judge.

text:
    INDEPENDENT FIRE INSURANCE COMPANY, Appellant, v. Ioma BUTLER, Appellee.
    No. EE-48.
    District Court of Appeal of Florida, First District.
    Sept. 13, 1978.
    G. Miles Davis of Beggs & Lane, Pensacola, for appellant.
    James E. Hertz, Charles L. Cetti of Cetti & McGraw, Pensacola, for appellee.
   ERVIN, Judge.

Independent Fire Insurance Company (appellant here) appeals a summary final judgment entered in favor of loma Butler (appellee here).

This dispute involves the proceeds of a fire insurance policy issued to Alma and Elvin Williamson on a dwelling located in Pensacola. Alma Williamson died in July, 1975. The dwelling was left to her three children, loma Butler being one of them. An endorsement on the policy made loma Butler the named insured. After Alma’s death, Mr. Williamson continued to live in the dwelling until December 1975. Ble applied to have the electricity shut off on December 2, 1975, and it was actually shutoff on December 4, 1975. Mr. Williamson testified during his deposition on July 14, 1976, that he did not spend the night in the house after the electricity was discontinued and continued to move belongings and furniture from the house during the daylight hours until December 28, 1975. The house burned oh February 9, 1976, at which time there were still a few of Mr. Williamson’s belongings in the house.

The policy provision in question reads as follows:

Conditions suspending or restricting insurance. Unless otherwise provided in writing added hereto this Company shall not be liable for loss occurring:
(b) While a described building, whether intended for occupancy by owner or tenant, is vacant or unoccupied beyond a period of sixty consecutive days;

loma Butler filed suit to collect the insurance proceeds which amounted to $8,000.00. The insurance company resisted, relying upon the above mentioned provision in the policy which eliminated its liability under the policy when the dwelling “is vacant or unoccupied beyond the period of sixty consecutive days.” Both parties moved for summary judgment. In its final judgment, the trial court awarded loma Butler the entire amount due under the policy ($8,000.00), attorney’s fees in the amount of $2,000.00, and costs.

The insurance company raises as error the trial court’s order denying its motion for summary judgment and granting loma Butler’s motion for summary judgment. We disagree that the trial court erred in denying the company’s motion for summary judgment, but believe the cause should be remanded for trial.

Although there are no Florida decisions directly on point, the Fourth District Court of Appeal examined a fire insurance policy provision containing the same language as the provision here in question in Hehemann v. Michigan Miller’s Mutual Insurance Company, 240 So.2d 851 (Fla. 4th DCA 1970). We find the Hehemann decision helpful in its definitions of the terms “vacancy” and “occupancy”. The court stated:

The term “vacancy” as used in the policy applies to inanimate objects, whereas “Occupancy” refers to animate objects. 33 (sic) Am.Jur.2d Insurance § 947. With the exception of the drapes, the dwelling was devoid of every item of furniture and furnishings for a period of more than thirty days prior to the fire. We have no difficulty in determining that as a matter of law, the drapes notwithstanding, the house was vacant within the definition of that term as used in the policy. We think the trial court cogently stated the status of the property in this respect when he posed the rhetorical question, “How vacant can you get?” 240 So.2d at 854.

We note that the facts in this case do not support a finding that the dwelling was “vacant” as a matter of law since Mr. Williamson testified that nearly all of his furniture was left in the house when he quit sleeping there and it took him five or six trips to remove the furniture or until December 28, 1975 (well within the sixty day period) before he finished moving his belongings. In fact, there were still a few remaining items of furniture in the house when it burned down.

The only question for our consideration is whether the facts support a finding that the dwelling was “unoccupied” for a period of more than sixty consecutive days.

The term “occupied” refers to a dwelling which is in actual use by human beings who are living in it as a place of habitation, and a dwelling is “unoccupied” when it has ceased to be a customary place of habitation or abode, and no one is living or residing in it. Generally, the mere fact that furniture or goods are stored or left in a dwelling is not of itself sufficient to prevent the building from being considered unoccupied. Moreover, it is not essential that someone sleep in a dwelling in order to render it occupied. Rather, occupancy is largely a matter of intent. It does not of necessity involve a continuous bodily presence upon the insured premises. Courts construing the words “occupied” and “unoccupied” will look to the nature and character of the building, the purposes for which it is designed, and the uses contemplated by the parties as expressed in the insurance contract. 43 Am.Jur.2d Insurance § 947-949, pages 896 through 899.

Whether Mr. Williamson intended for the dwelling to remain his home after December 4, 1975, is, on the record of this case, a question of fact which can only be resolved by the trier of facts. Upon facts strikingly similar to these the St. Louis Court of Appeals in Graves v. M. F. A. Mutual Insurance Co., 446 S.W.2d 154 (Mo.App.1969), so concluded: There, the policy excluded coverage in the event the house were vacant or unoccupied for 10 days prior to a fire. The plaintiffs had moved out of the insured house, which they owned, two months before the fire and had had the electricity and the phone disconnected. They returned to the house from time to time to mow the lawn and dust the furniture they had left inside. The court stated:

[T]he policy only required that the premises be not unoccupied for a period of more than ten days, without in anywise undertaking to specify the character of the occupancy, other than that it might be by either the owner or his tenant. The proof is clear that the tenant was in charge of the premises even up to the time of the fire, and that he was continually exercising all the prerogatives which went along with his right to occupy the house. Whether he was inside of it every day does not appear, but he was at least in control of it. Under these circumstances, we think it was for the trier of the facts, to say whether the building described in the policy became unoccupied and remained so for ten days before the occurrence of the loss .

Id. at 157-58.

In this case Mr. Williamson testified on deposition, contrary to a prior written statement given to the insurance company, that he occupied the house until December 28, by returning at regular intervals for the purpose of removing personal items from the house. His written statement, however, reflected that his occupancy ceased on December 10, 1975. It is therefore necessary for the trier of facts to resolve the question of Mr. Williamson’s intent. This question cannot be answered by summary judgment.

Reversed and remanded for further proceedings consistent with this opinion.

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

      . A written statement given to the insurance company by Williamson on March 30, 1976, contradicted his deposition testimony by stating he left the house on December 10, 1975, or 61 days prior to the fire.


author: DANAHY, Judge.

text:
    COAST FEDERAL SAVINGS AND LOAN ASSOCIATION, a United States Corporation, Appellant, v. Guion T. DeLOACH, Appellee.
    No. 77-1424.
    District Court of Appeal of Florida, Second District.
    Sept. 13, 1978.
    Rehearing Denied Oct. 19, 1978.

      Johnson S. Savary and Andrew Shaw, of Kirk, Pinkerton, McClelland, Savary & Carr, Sarasota, for appellant.
    Arthur V. Woodward, Marco Island, for appellee.
   DANAHY, Judge.

In this suit to recover accelerated rent due under a lease agreement, the lessor (Coast Federal) appeals from the final judgment entered by the trial judge, and the lessee (DeLoach) cross-appeals. We find merit in the position of Coast Federal.

DeLoach rented office space from Coast Federal for a period of three years pursuant to a lease agreement entered into by the parties in August of 1974. Rent was payable monthly. The agreement contained a standard acceleration clause giving Coast Federal the right to declare all remaining rent immediately due and payable in the event of a default by DeLoach in the payment of any monthly installment.

In February 1976, DeLoach vacated the leased premises and ceased paying rent. Coast Federal brought this suit to recover all remaining rent due for the balance of the lease term, in the amount of $12,600, pursuant to the acceleration clause. De-Loach interposed three affirmative defenses: first, that Coast Federal accepted a surrender of the leasehold, by agreement and by retaking possession of the leased premises, thus terminating any further liability on the part of DeLoach; second, that Coast Federal’s demand for additional rent was barred on grounds of waiver and estop-pel; and third, that Coast Federal constructively evicted DeLoach. After a nonjury trial on the issues raised by the pleadings, the trial judge entered a final judgment reciting the following:

Plaintiff, Coast Federal Savings and Loan Association, has proved by the greater weight of the evidence that the defendant, Guión T. DeLoach, breached the written lease agreement, plaintiff’s exhibit I, dated August 22, 1974; I find also that the plaintiff did not use reasonable methods to mitigate his [sic] damages. So, I find for the plaintiff in the sum of $12,600, which I reduce by 80% to $2,520, for which sum I grant judgment to the plaintiff in this case.

The final judgment awarded Coast Federal the sum of $2,520 plus attorneys’ fees in the amount of $750.

Coast Federal is quite correct in its argument that a lessor has no duty to mitigate damages upon breach by a lessee of the terms of a lease agreement. It is well established in Florida that, upon breach by a lessee, a lessor has the choice of three alternative courses of action. The lessor may treat the lease as terminated and retake possession for his own account, thus terminating any further liability on the part of the lessee; or the lessor may retake possession of the premises for the account of the lessee, holding the lessee liable for the difference between rental stipulated to be paid under the lease agreement and what, in good faith, the lessor is able to recover from a reletting; or the lessor may stand by and do nothing, holding the lessee liable for the rent due as it matures, which means all remaining rent due if there is an acceleration clause and the lessor chooses to exercise the right to accelerate. Williams v. Aeroland Oil Co., 155 Fla. 114, 20 So.2d 346 (1944); Jimmy Hall’s Morningside, Inc. v. Blackburn & Peck Enter., Inc., 235 So.2d 344 (Fla.2d DCA 1970).

Obviously, the trial judge was of the opinion that Coast Federal did not choose the first option, as DeLoach contended, and we find no error in that regard. Coast Federal argues that it chose the third alternative and that the trial judge erred in finding that Coast Federal pursued the second. But we do not know whether the trial judge found that the second choice was in fact made or whether he ruled that the second choice was required.

Either of the first two choices excludes the third. By retaking possession either for his own account or for the account of the lessee, a lessor loses the right to recover the full amount of remaining rental due on the basis of an acceleration clause. The two positions are inconsistent. Geiger Mutual Agency, Inc. v. Wright, 233 So.2d 444 (Fla. 4th DCA 1970); Jimmy Hall’s Morningside, Inc. v. Blackburn & Peck Enter., Inc., supra. If the lessor retakes possession for the account of the lessee, two results follow. First, the lessor acquires a duty to exercise good faith in attempting to relet the premises, and second, any rentals received by the lessor as a result of the reletting must be deducted from the balance of rent due from the lessee. Kanter v. Safron, 99 So.2d 706 (Fla. 1958); Jimmy Hall’s Morningside, Inc. v. Blackburn & Peck Enter., Inc., supra.

If, therefore, the final judgment in this case reflected a ruling by the trial judge that Coast Federal had a duty to retake possession of the leased premises and exercise good faith to relet for the account of DeLoach,. it was in error. Coast Federal had no such duty. But the crucial issue in this case was whether Coast Federal did in fact retake possession of the leased premises. The final judgment may, therefore, reflect a finding by the trial judge that Coast Federal retook possession for the account of DeLoach, thus incurring the duty to use good faith in reletting, and failed to perform that duty.

To permit an appropriate disposition of this case, we temporarily relinquish jurisdiction to the trial judge with instructions that he record his finding on the question whether Coast Federal retook possession of the leased premises for the account of De-Loach and submit that written finding to us within thirty days of the date hereof.

By his cross-appeal, DeLoach argues that Coast Federal failed to prove its case and that the trial judge erred in failing to rule for DeLoach on the issues raised by his affirmative defenses. We find no merit in DeLoach’s position.

Finally, on the question of attorneys’ fees, we hold that there was no abuse of discretion on the part of the trial judge in the award made.

Remanded in accordance with this opinion.

HOBSON, Acting C. J., and BOARD-MAN, J., concur.


author: KEHOE, Judge.

text:
    Edith R. PEREZ et al., Appellants, v. Ran M. COHEN et al., Appellees.
    Nos. 77-350, 77-351.
    District Court of Appeal of Florida, Third District.
    Sept. 19, 1978.
    Rehearing Denied Oct. 20, 1978.
    Magill, Sevier & Reid and Victor H. Womack, Miami, for appellants.
    John Carruthers, II, Jeanne Heyward, Miami, for appellees.
    Before HENDRY, HUBBART and KE-HOE, JJ.
   KEHOE, Judge.

Appellants, plaintiffs below, bring these consolidated appeals from orders dismissing their complaints for failure to prosecute and orders denying their motions to set aside the orders of default. We affirm.

It is undisputed by the parties that there was no record activity in the respective causes for a one year period. However, appellants contend that, pursuant to Florida Rule Civil Procedure 1.420(e), there was action “otherwise” in the causes, by their participating in another appeal related to these causes, which precluded the trial court from properly dismissing their complaints for failure to prosecute. We hold, as the trial court found, that this other activity was insufficient to avoid the imposition of the sanctions order by the trial court. Fla.R.Civ.P. 1.420(e). Accordingly, the orders appealed are affirmed.

Affirmed.


text:
    Robert RUBINSTEIN d/b/a Robert Rubinstein Interiors, Inc., Appellant, v. Murray MESTER, Appellee.
    No. 77-585.
    District Court of Appeal of Florida, Third District.
    Sept. 19, 1978.
    Rehearing Denied Oct. 20, 1978.
    Sidney B. Shapiro and Mitchell M. Goldman, Miami, for appellant.
    Horton, Perse & Ginsberg, Barry L. Gar-ber, Miami, for appellee.
    Before HENDRY and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   KEHOE, Judge.

Appellant, defendant below, brings this appeal from a final judgment entered by the trial court on March 2, 1977, after a non-jury trial, in favor of appellee, plaintiff below. We reverse.

In March of 1975, appellee entered into a contract with appellant for his services as an interior decorator and designer. Under the terms of the contract, appellee made an initial payment to appellant of $16,500. Thereafter, the record reflects that appellee became dissatisfied with appellant’s estimate of the number of rolls of wallpaper and the labor charges to hang the paper necessary to complete that portion of the contract. Based upon appellee’s dissatisfaction with appellant’s performance, appellee, by a letter dated June 26, 1975, unilaterally terminated the contract. Thereafter, ap-pellee filed a complaint for damages seeking damages in the amount of $16,500. After a non-jury trial, the trial court entered a final judgment in favor of appellee in the amount of $13,500, and awarded appellant the sum of $3,000 for services rendered under the contract. From this final judgment, appellant brings the instant appeal.

We have carefully reviewed the record and, after considering the evidence in a light most favorable to appellee, have concluded that the evidence was insufficient to sustain the findings of the trial court that appellant breached the contract in question and that appellee was entitled to damages. See, e. g., Commercial Bank of Kendall v. Costley, 324 So.2d 182 (Fla. 3d DCA 1975); Apeco Marina, Inc. v. St. Paul Fire & Marine Insurance Co., 301 So.2d 136 (Fla. 3d DCA 1974); Manchester Insurance & Indemnity Co. v. Novack, 284 So.2d 433 (Fla. 3d DCA 1973); and Heath v. First National Bank of Milton, 213 So.2d 883 (Fla. 1st DCA 1968). The total overestimation and overcharge, if any, under the contract was so insignificant as to not justify a rescission or revocation of the contract. Further, we note that appellee, subsequent to approving the estimates made by appellant under the contract, attempted to base his complaint upon an alleged discrepancy which amounted, at most, to less than 1.4% of the entire contract price.

However, in our opinion, the record does clearly show that appellee breached his contract with appellant; therefore, the' trial court should have granted judgment in favor. of appellant pursuant to his counterclaim set forth in his answer and counterclaim. Accordingly, the final judgment appealed is reversed and the cause is remanded to the trial court for the purpose of ascertaining damages under the contract, consistent with this opinion.

Reversed and remanded with directions.


text:
    Delio PEREZ et al., Appellants, v. Betty GILL et al., Appellees.
    Nos. 77-656, 77-1006.
    District Court of Appeal of Florida, Third District.
    Sept. 19, 1978.
    Rehearing Denied Oct. 20, 1978.
    Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O’Hara and Richard A. Sherman, Miami, for appellants.
    Horton, Perse & Ginsberg, George P. Tel-epas, Miami, for appellees.
    Before HENDRY and KEHOE, JJ., and PIERCE, WILLIAM C. (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See Bould v. Touchette, 349 So.2d 1181 (Fla.1977); Egidi Industrial Park Corp. v. Wide Open Spaces, Inc., 335 So.2d 870 (Fla. 3d DCA 1976); Fernandez v. Arocha, 308 So.2d 45 (Fla. 3d DCA 1975); Talcott v. Holl, 224 So.2d 420 (Fla. 3d DCA 1969); and Wilkinson v. Grover, 181 So.2d 591 (Fla. 3d DCA 1966).