author: PER CURIAM. PER CURIAM.

text:
    Karen Garelick BELL, as Personal Representative of the Estate of Ronald B. Garelick, Deceased, Appellant, v. Elaine E. HARRIS, as Personal Representative of the Estate of Forrest J. Harris, Jr., Deceased, Appellee.
    No. JJ-271.
    District Court of Appeal of Florida, First District.
    Sept. 1, 1978.
    On Rehearing Feb. 1, 1979.
    C. Harris Dittmar, of Bedell, Bedell, Ditt-mar & Zehmer, Jacksonville, for appellant.
    Walter L. Robison, of Zisser, Robison & Spohrer, Jacksonville, for appellee.
   PER CURIAM.

By this appeal appellant, as personal representative of the estate of Ronald B. Garelick, seeks review of an order of the Circuit Judge in a probate proceeding extending the time within which a claimant could “bring an independent action on her asserted claim against this estate.” The order was one of several entered in the probate proceeding. However, the notice of appeal specifically designated the order of which review was sought as being rendered on March 1, 1978, further reciting:

“The nature of the order is a final order extending the time for Elaine E. Harris, as personal representative of the estate of Forrest J. Harris, Jr., deceased, to bring an independent action on the claim which she had filed in the estate of Ronald B. Garelick.”

Said order provides as follows:

“ORDER GRANTING EXTENSION OF TIME TO BRING INDEPENDENT ACTION
“This cause was heard, after due notice, upon the motion filed by Elaine E. Harris, as Personal Representative of the Estate of Forrest J. Harris, deceased, for the entry of an order extending her time to file an independent action upon her claim which was filed herein on December 5, 1977 and which was objected to by the personal representative of this Estate on January 5, 1978. After hearing argument of respective counsel, examining the legal authorities presented by them and examining the file in this cause the Court finds that movant’s claim against this Estate was filed on December 5, 1977; that objection thereto was filed by the personal representative of this estate on January 5, 1978; that on January 27, 1978 and within the 30-day period allowed by Florida Statute 733.705(3) for the filing of an independent action upon her claim the movant filed in this probate file a pleading styled in this cause and entitled “Wrongful Death Complaint” and served a copy thereof upon the attorney for this Estate by United States Mail, but had no summons issued and did not cause said pleading and summons issued thereon to be served upon the personal representative of this Estate as provided by law for service of summons in independent actions at law; and that said pleading entitled “Wrongful Death Complaint” is consonant with the said Statement of Claim filed by the movant on December 5,1977, but is not an “independent action” as provided for in Florida Statute, 733.795(3) [733.705(3)].
“This Court, in the exercise of its discretion in this probate proceeding, has the authority to extend the time for filing an independent action after objection to a claim is filed for good cause shown [Florida Statute 733.705(3)] and to do so for good cause shown even after the time has expired under Florida Statute 733.705(3) for the filing of an independent action [In Re Estate of Sale (Fla.1969) 227 So.2d 199; In Re Estate of Verdier (Fla.[App.] 1973) 281 So.2d 543; In Re Estate of Pridgeon (Fla. 1st DCA 1977) 349 So.2d 741.]
“This Court finds that good cause has been shown for the granting of the extension of time requested by the movant in that: (1) the movant inadvertently but timely filed in this cause her “Wrongful Death Complaint” rather than filing and serving the same as an independent action; (2) the personal representative of this Estate has not been surprised by the movant’s assertation of a claim against this Estate for the “Wrongful Death” of movant’s decedent under Florida Statute 768.18 since the original Statement of Claim filed by movant on December 5, 1977 asserted such a claim and since the inadvertently filed “Wrongful Death Complaint” filed in this case on January 27, 1978 also asserted such a claim; and (3) since this Court is of the opinion (as apparently was the trial Court in In Re Estate of Pridgeon, supra) that confusion still exists resulting from the adoption of Article V of The Florida Constitution, effective January 1, 1973, which placed dual jurisdiction in the Circuit Courts over both probate proceedings and general civil actions. Accordingly, it is
“ORDERED AND ADJUDGED that said motion be and the same is hereby granted and Elaine E. Harris, as Personal Representative of the Estate of Forrest J. Harris, deceased, is hereby granted an extension of seven (7) days from the date of this Order within which time to bring an independent action on her asserted claim against this Estate.”

Appellant ably argues in her brief issues apparently relating to other proceedings in the same case below. However, our review must be confined to the points relating to the order appealed. As to those points we find that by the above quoted order, which is the order appealed, the learned trial judge did not improperly exercise his broad discretion.

AFFIRMED.

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

ON PETITION FOR REHEARING

PER CURIAM.

Appellant has timely filed a Petition for Rehearing, urging that by our above opinion by which we affirmed the order of the judge sitting in probate extending the time within which appellee could bring an independent action on her claim asserted against the estate without reaching the other issues argued in appellant’s briefs we have, in effect, affirmed an implicit holding of the trial court denying appellant’s attack upon the sufficiency of the claimant’s Statement of Claim.

Upon reconsideration we concede that we did indeed, in rendering our prior opinion herein, overlook the effect of appellant’s notice of appeal. We affirmed the probate court’s “Order Granting Extension of Time To Bring Independent Action” but we decline to review the issue presented by appellant challenging the legal sufficiency of the Statement of Claim which the claimant filed in the probate court below. The order appealed was the final order in a probate case which had the effect of terminating all judicial labor in the probate court in regard to the matters involved in that order. (See Smoak v. Graham, 167 So.2d 559 (Fla.1964)) On appeal from a final order of the probate court all prior actions of the probate court are subject to appellate review. Rule 9.110(h), Florida Rules of Appellate Procedure, defines the scope of review in appeals from final orders and provides:

“The court may review any ruling or matter occurring prior to the filing of the notice [of appeal]. Multiple final orders may be reviewed by a single notice, if the notice is timely filed as to each such order.”

Assignments of error have been abolished. (Rule 9.040(e), Florida Rules of Appellate Procedure)

An examination of the record reveals that the personal representative’s contention that the claimant’s Statement of Claim was legally insufficient was the subject of two hearings before the probate court. Nevertheless, although the personal representative did all within her power to secure a ruling on the sufficiency of the claim, the probate court nevertheless terminated its judicial labor without ruling on the personal representative’s objection. The personal representative’s objection to the sufficiency of the Statement of Claim can be raised only in the probate court. (See In Re Estate of Gay, 294 So.2d 668 (Fla. 4th DCA 1974)) The personal representative may not collaterally attack the sufficiency of the claimant’s Statement of Claim in the trial court which will hear the independent action. (In Re Estate of Gay, supra)

However, although we conclude that the learned trial judge sitting in probate erred in failing to rule upon the personal representative’s objection to the claimant’s statement of claim, we are of the view that it is inappropriate for us to render a decision as to the legal sufficiency of the claim until such time as the probate court has rendered an order thereon for our review.

Accordingly, while yet adhering to our affirmance of the order of the probate court extending the time within which to bring an independent action, we nevertheless reverse the court’s failure to rule upon the objection to the sufficiency of the claim. We therefore remand with directions that the appropriate judge sitting in probate rule upon appellant’s objections to the sufficiency of the claimant’s Statement of Claim.

We grant appellant’s Petiton for Rehearing and remand for further proceedings consistent herewith.

IT IS SO ORDERED.

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Jose Eduardo DIAZ, Appellant, v. The STATE of Florida, Appellee.
    No. 77-127.
    District Court of Appeal of Florida, Third District.
    Dec. 12, 1978.
    Jose Eduardo Diaz, in pro. per.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before PEARSON, HENDRY and BARKDULL, JJ.
   PER CURIAM.

This court, proceeding in the manner outlined and recommended by the Supreme Court of the United States in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), having deferred ruling on a motion of the public defender to withdraw as counsel for the indigent defendant-appellant, and having furnished appellant with a copy of the public defender’s memorandum brief, and having allowed the appellant a reasonable specified time within which to raise any points that he chose in support of this appeal, and the appellant having filed his response thereto, on consideration thereof upon full examination of the proceedings we conclude that the appeal is wholly frivolous. Whereupon, the public defender’s said motion to withdraw is granted, and the order or judgment appealed is hereby affirmed.


text:
    Evelyn SCOTT, Appellant, v. The STATE of Florida, Appellee.
    No. 78-536.
    District Court of Appeal of Florida, Third District.
    Dec. 12, 1978.
    Evelyn Scott, in pro. per.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before HUBBART, KEHOE and SCHWARTZ, JJ.
   PER CURIAM.

This court, proceeding in the manner outlined and recommended by the Supreme Court of the United States in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), having deferred ruling on a motion of the public defender to withdraw as counsel for the indigent defendant-appellant, and having furnished appellant with a copy of the public defender’s memorandum brief, and having allowed the appellant a reasonable specified time within which to raise any points that he chose in support of this appeal, and the appellant having failed to respond thereto, on consideration thereof upon full examination of the proceedings we conclude that the appeal is wholly frivolous. Whereupon, the public defender’s said motion to withdraw is granted, and the order or judgment appealed is hereby affirmed.


author: OTT, Judge.

text:
    Raymond H. HODGES, as Personal Representative of the Estate of Charles Albert Giramaire, Deceased, Appellant, v. Rachael B. SURRATT, Samuel Walter Surratt, Jr., and Flagship Bank of Zephyrhills, Appellees.
    No. 77-1745.
    District Court of Appeal of Florida, Second District.
    Dec. 13, 1978.
    Rehearing Denied Jan. 26, 1979.

      Jerry A. DeVane of DeVane & Allen, Lakeland, for appellant.
    H. Clyde Hobby of McClain & Hobby, Dade City, for appellees Surratts.
    Tom Ross of Sumner, Tyner, Williams, McKnight & Ross, Dade City, for appellee Flagship Bank of Zephyrhills.
   OTT, Judge.

The personal representative of the Estate of Charles A. Giramaire brought an action against Mr. and Mrs. Surratt jointly for fraud, undue influence, conversion and imposition of a constructive trust. The action was brought against Mrs. Surratt individually for breach of fiduciary duty and to void or set aside the various transfers of real and personal property that resulted therefrom. In due course, the case came on for trial by jury. At the conclusion of the plaintiff’s case, the lower court granted Mr. Surratt’s motion for directed verdict and ultimately entered a final judgment in his behalf. The case against Mrs. Surratt was submitted to the jury and resulted in the return of the following special verdict:

(1) Do you find from the greater weight of the evidence that the Defendant, Rachael B. Surratt, exerted undue influence on [Giramaire] in order to obtain the signature of [Giramaire] on the Bank Account Signature Card? — Yes.
(2) Do you find from the greater weight of the evidence that the only purpose for which [Giramaire] signed the Bank Account Signature Card was to permit the Defendant, [Mrs. Surratt] to pay the bills of [Giramaire]? — Yes.
(3) If you have answered yes to either (1) or (2) above, do you find from the greater weight of the evidence that any of such acts of [Mrs. Surratt] caused any damage to the plaintiff? — Yes.

The jury also awarded $25,000 damages against Mrs. Surratt.

The lower court ultimately entered judgment for Mrs. Surratt notwithstanding the above verdict.

We reverse and set aside the judgment of the lower court in favor of Mr. Surratt and Mrs. Surratt. We reinstate the jury verdict against Mrs. Surratt. In addition, we reverse the directed verdict entered in favor of Mr. Surratt. We find no error in the summary judgment entered before trial in favor of Flagship Bank of Zephyrhills.

The facts of the case are as follows. Mr. and Mrs. Surratt, appellees, were neighbors of Mr. Giramaire. According to their testimony, Mr. Giramaire executed a will in 1971 that was prepared by Mrs. Surratt and executed on May 31, 1971 at a time when Giramaire’s wife was still alive. A copy of this will was received into evidence. Paragraph 6 of the 1971 will provided:

In the event my wife, Vivian Gertrude Giramaire, [predeceases] me, then I hereby give, devise and bequeath to Rachael Britts Surratt and Samuel Walter Sur-ratt, Jr. all my estate, whether real, personal or mixed, wheresoever located, of which I may die seized or possessed . . .

Rachael Surratt was appointed as executrix of this 1971 will in the event Mrs. Giramaire was unable to serve for any reason. After Mrs. Giramaire’s death, Mr. Giramaire consulted an attorney (appellant/Hodges) and a new will was prepared and executed on May 19, 1972. The 1972 will expressly revoked all prior wills. Mr. and Mrs. Surratt were not mentioned in this will and had no knowledge thereof until after Mr. Gira-maire was hospitalized. Under the 1972 will the residue of the estate was left to the Bank of Pasco County, in trust, for the sight conservation work and other assistance to the blind by the Lions Club of Zephyrhills, Florida. In the 1972 will Hodges was appointed to be executor with a bank trust department named to be executor if Hodges could not serve.

Giramaire became ill and was taken to the hospital by another neighbor — Mr. Sbraccia — on November 19, 1975. At Mr. Giramaire’s instance Mr. Sbraccia evaded the inquiry of the Surratts that evening as to the whereabouts of Mr. Giramaire. Upon learning that the Surratts had entered Mr. Giramaire’s home Mr. Sbraccia decided to tell them of his hospitalization and did not want to be further involved. Once the Surratts learned of Giramaire’s hospitalization they began to visit him with great frequency. Mr. Surratt testified that he was “there every day” and stated that his wife was at the hospital practically all of the time — even more than he was.

On the day Mr. Sbraccia took Giramaire to the hospital he was given various personal effects, i. e., some papers, a billfold, checkbook and keys to the house and car. Giramaire requested that Sbraccia deliver all these items to his attorney, appellant/Hodges. Later, Sbraccia sought to return the items to Giramaire and extricate himself from further involvement due to his long-standing acquaintance with the Sur-ratts. Mr. Giramaire tearfully prevailed on Mr. Sbraccia to deliver everything to his attorney, Mr. Hodges.

On the Saturday following Giramaire’s hospitalization Mrs. Surratt called Hodges. Hodges was not at home. He eventually returned her call that evening. According to Hodges “[s]he told me that Mr. Gira-maire was — first of all she wanted to know if I had made a will for him — told me he was in the hospital and not expected to live.” Hodges promised to go to his office the next day (Sunday) and check on it. He did so, but could not find the will. He called Mrs. Surratt to tell her this. On Monday he found a copy of the will. He called Mrs. Surratt and told her that he had found a copy.

Mrs. Surratt’s testimony on this point was — at the very best — forgetful. The following colloquy occurred:

Q. Did you also tell Mr. Hodges at this point that you understood he had prepared a will for [Giramaire]?
A. I told him I understood that he [Gira-maire] had been to him to seek advice. I don’t remember what I said about a will or what.

Counsel then referred to Mrs. Surratt’s pri- or deposition testimony as follows:

Q. On page 11, line 23 [of the deposition] do you remember the following question and your answer—
Q. And did you further tell him that Mr. Hodges had prepared a will for Mr. Giramaire.
A. I said I understood he had.
A. I probably did say that.

Sbraccia testified that Giramaire had asked him to go into his house and clean out the refrigerator. When Sbraccia did so, he found the refrigerator to have been already cleaned out. Mrs. Surratt testified that it was she who went into Giramaire’s house and cleaned out his refrigerator. Although Mrs. Surratt testified that she did not find a copy of the 1972 will in Giramaire’s house until after Giramaire’s death, the record points strongly to a contrary conclusion. In further cross-examination of Mrs. Surratt, counsel once again made reference to her deposition:

Q. On page 13, line 21 — do you recall the following question and answer—
Q. And in this conversation . with Mr. Raymond Hodges at the time Mr. Giramaire was hospitalized, did you also tell Mr. Hodges that you believed he had prepared the will because you had a copy ?
and your answer—
A. Correct. [Emphasis supplied.]

Mr. Surratt’s testimony on this point is also informative:

Q. [Y]ou say that this [the 1972 will] was found by Mrs. Surratt in the house, is that correct?
A. Yes, sir.
Q. And at what time was this?
A. I couldn’t tell you the time.
Q. Was it during the period of time that Mr. Giramaire was in the hospital?
A. I presume it was but I couldn’t tell you the time.

Mrs. Surratt testified that she could not remember whether or not she read the 1972 will when she found it. She testified that “I could not say whether ... I read it or not.” She also testified that “I couldn’t swear that I did or didn’t [read it].” In addition, Mr. Surratt stated that he “seen [sic] it looked at it but . haven’t ever read it.”

The Surratts claimed an oral agreement was made with Giramaire on November 28, 1975 by which they were to receive all of his property in return for looking after him for the remainder of his life.

On the 'next day — November 29 — Gira-maire signed two documents. The first document was a power of attorney. This document was totally handwritten on one lined sheet of stenographic pad paper and read as follows:

I hereby appoint Rachael B. Surratt with my power of attorney to act [with] full power [and] authority.

This document was notarized and the notary acknowledgment was typed. However, it is quite clear from the record that the document was notarized out of Giramaire’s presence. Moreover, the nurse who witnessed the execution of the document specifically testified that the notary was not present for the execution of the document.

The second document executed on November 29 was a bank signature card. This was an authorization by the depositor for adding Mrs. Surratt as an additional authorized signatory to the account.

Both of these documents were witnessed by Dr. Brownlee and Nurse Parsons. Their testimony was quite clear that the power of attorney and bank signature card were executed at the same time and were given or signed only for the purpose of allowing Mrs. Surratt to pay current bills and handle the affairs of Giramaire while he was in the hospital — not for the purpose of turning over all assets to the Surratts. As stated by Nurse Parsons:

Q. How did you come about to sign the power of attorney?
A. . Mrs. Surratt asked .
if we would just witness her signature so she could pay his current bills while he was in the hospital and he wouldn’t have to worry about his lights and water and so forth [being] shut off. [Emphasis supplied.]

Nurse Parsons also stated that:

Mrs. Surratt wanted to take care of his current affairs to relieve him of the responsibility and the worry while he was in the hospital.

On December 2, Mrs. Surratt utilized the power of attorney to convey to Mr. Surratt all of Giramaire’s real and personal property — the only exception being the bank account for which she had secured the bank signature card. This account she appropriated to herself. The conveyances to her husband were by a warranty deed (the consideration was marked as “gift”) and a certificate of transfer of ownership, all of which were drawn and executed by Mrs. Surratt “with Power of Attorney for Charles A. Giramaire.”

On December 1, Mrs. Surratt attempted to use the power of attorney to gain entry into Giramaire’s safe deposit box. The bank denied entry into the safe deposit box based only on the power of attorney. On December 5, Mrs. Surratt gained entry into the safe deposit box by presenting an “appointment of co-owner” form. This form did not bear the normal signature of Gira-maire but was executed by him with an “X”. The only witness to this execution was Mr. Surratt.

On December 9, Giramaire died. He left no living relatives.

The jury found that Mrs. Surratt exerted undue influence on Giramaire in order to obtain his signature on the bank account signature card and that the only purpose of the execution of both documents was for Mrs. Surratt to pay his current bills.

In its judgment non obstante vere-dicto the lower court found that “there was no evidence adduced at trial that is legally sufficient to support a verdict for the Plaintiff.” In any case such as this the jury has the right to ignore the uncorroborated testimony of the surviving interested parties. The record is completely devoid — outside the testimony of the Surratts — of any evidence, oral or written, to support the Sur-ratt claim. To the contrary, all of the remaining evidence strongly supports the jury verdict.

The movant for judgment notwithstanding the verdict “admits all material facts as attested by his adversary” and “all inferences of fact favorable to the adversary that reasonably might be drawn from the evidence as a whole.” Deese v. Whitebelt Dairy Farms, Inc., 160 So.2d 543, 545 (Fla.2d DCA 1964).

The granting of judgment notwithstanding the verdict indicates that one side of the case is essentially devoid of probative evidence. Deese, supra. In the instant case, there exist ample inferences of fact and probative evidence to support the jury verdict.

The record as a whole casts serious doubt on the propriety of Mrs. Surratt’s actions during Giramaire’s last days. It is clear that the jury could well conclude — as it did — that she violated her fiduciary duty as his attorney in fact. As hereafter pointed out we question whether the oral testimony of the Surratts, standing alone, is sufficient as a matter of law to supply the power to give away the assets of the decedent Gira-maire under the general power of attorney. In addition, Mrs. Surratt’s testimony was placed in substantial doubt in at least two instances: (1) with reference to whether she had a copy of the will when she called Hodges; and (2) with reference to whether she mentioned the will to Hodges in her telephone call to him. Moreover, her testimony that she did not find the will until after Giramaire’s death was hardly credible in the light of her actions and her husband’s testimony. Finally, it is difficult to accept her testimony that she did not remember whether or not she had read the 1972 will upon finding it. It hardly seems likely that a beneficiary of a 1971 will — who during the declining days of the testator finds a 1972 will — would not read it immediately or at least clearly recall that she refrained from doing so. The point is: Why would Mrs. Surratt call Hodges and ask about a will unless she had found the 1972 will; had she not found it, she would have assumed that the 1971 will was still in effect and she and her husband were home free.

Another of the dubious activities engaged in by the Surratts concerns Giramaire’s Airstream Trailer. Mrs. Surratt submitted the title to the Division of Motor Vehicles on December 19, 1975 — 10 days after Gira-maire’s death — for transfer to Mr. Surratt. She maintained that Giramaire gave it as a gift to her husband in 1971 — some four years before. An incongruity exists in that the trailer remained on rented land (upon which Giramaire paid rent) from 1971 thru the time of Giramaire’s death. Moreover, after Giramaire’s death Mrs. Surratt wrote to the owner of the land upon which the trailer rested and told him that the Surratts had purchased the trailer. When questioned about this at trial, Mrs. Surratt maintained that this was simpler than stating that the trailer had been a gift.

Another aspect of the record supporting the jury verdict is found in the testimony of Dr. Brownlee and Nurse Parsons with reference to the purpose involved in the execution of the power of attorney and the bank account signature card. Their testimony is clear that the purpose of the execution of the documents was for the sole purpose of allowing Mrs. Surratt to pay Giramaire’s bills for the short run — not to turn over all Giramaire’s assets to the Surratts.

It is very difficult to believe that Gira-maire intended for the Surratts to get all his property. He expressly excluded them from his 1972 will. In addition, his instructions and cautions to Sbraccia suggest his strong desire that Hodges (not the Surratts) be contacted with regard to his illness and be placed in possession of his home, car, checkbook and personal papers. Thus, the record is devoid of any evidence that Gira-maire’s clear donative intent was to give the Surratts all his property — except from the testimony of the Surratts themselves. The jury certainly was free to disregard or seriously discount their testimony — as it seems clear they did.

Mr. and Mrs. Surratt strongly argue that they separately and individually entered into agreements with Giramaire. However, this contention is belied by Mrs. Surratt’s own testimony. She stated:

Q. Did — were you, in fact, to receive any benefits under [the November 29th agreement]?
A. Yes, sir, his checking account.
Q. And is it true that both you and your husband . . . had joint obligations
under that agreement?
A. Yes, sir. [Emphasis supplied.]

It would exalt form over substance to separate Mr. and Mrs. Surratt in this affair. Not only is there Mrs. Surratt’s above admission, but there are other indications in the record that they were acting in concert to systematically strip Giramaire of his assets. Obviously, Mrs. Surratt’s use of the power of attorney to convey almost all of Giramaire’s property to her husband indicates a jointness of action and purpose.

Aside from the evidentiary support for the jury’s verdict as discussed above we think the power of attorney is fatally defective.

The term “power of attorney” has taken on a distinctive meaning in legal parlance and refers to an instrument authorizing another to act as one’s agent or attorney in fact (as distinguished from an attorney at law). Estate of Rolater, 542 P.2d 219, 223 (Okl.App.1975) citing Black’s Law Dictionary 1334 (Rev. 4th Ed. 1968).

The Fourth District Court of Appeal in Johnson v. Fraccacreta, 348 So.2d 570 (Fla.4th DCA 1977) faced the question of whether a general power of attorney can authorize an agent to make a gift of the principal’s property. Our sister court stated that it had found no Florida case law directly on point. The court quoted the general rule announced in other jurisdictions:

“ ‘A general power of attorney authorizing an agent to sell and convey property, even though it authorizes him to sell for such price and on such terms as to him shall seem proper, implies a sale for the benefit of the principal, and does not authorize the agent to make a gift of the property, or to convey or transfer it without a present consideration inuring to the principal.’ ”

348 So.2d at 572 citing 73 A.L.R. 884 (1931).

In Fraccacreta the facts were as follows. Camella Fraccacreta executed a power of attorney appointing her daughter, Delores, as her attorney in fact. Delores then conveyed real property owned by Camella to Camella and her husband Paolo as tenants by the entirety. The court held that this was a “gift to Paolo of a portion of Carmella’s property by virtue of the creation of an estate by entireties with the right of surviv-orship.” 348 So.2d at 572. The court held:

The court must look to the language of the instrument, as with any other contract, in order to ascertain its object and purpose. The language of the agreement must be construed in such a manner so as to carry out the intent of the principal. We find no language in the subject power of attorney which expressly or impliedly indicates an intention to authorize a gift of the principal’s property. An agent has no power to make a gift of his principal’s property unless that power is expressly conferred upon the agent by the instrument or unless such power arises as a necessary implication from the powers which are expressly conferred. Nor are we presented with any competent substantial evidence of those circumstances surrounding the execution of the power of attorney that might be utilized as an aid in the construction of the language contained in the instrument. [Emphasis supplied.]

348 So.2d at 572.

In Rolater the court stated the same principle in the following language:

In exercising granted powers, the attorney is bound to act for the benefit of his principal avoiding where possible that which is detrimental unless expressly authorized.

542 P.2d at 223. The facts were as follows. Jennie Rolater — then about 95 years old— executed a general power of attorney in favor of her nephew. The nephew conveyed bank stock to her brother (the nephew’s father). The court held that there was no evidence that Jennie Rolater ever intended to give any of the bank stock to anyone except testamentarily. The court noted that there was a strong suggestion that she did not intend to give any of the bank stock to her brother.

In the landmark case of Brown v. Laird, 134 Or. 150, 291 P. 352, 353 (1930) the facts were as follows. At a time when Mr. Mitchell was very ill and, in the words of the court, “practically non compos mentis”, his wife became his attorney in fact. In the words of the court “it required but little effort for Mrs. Mitchell to control the transaction involved in regard to the power of attorney . . . ” Mrs. Mitchell then executed a deed to her daughter (by a prior marriage) as a gift. This had the effect of disinheriting Mr. Mitchell’s natural daughter, who was a beneficiary under the will. The court held that donative intent was lacking. The court stated that a power of attorney to sell was not the same as a power to make a gift. This wrongful use of the power of attorney constituted in the words of the court a “legal fraud.” This decision goes on to hold that where an agent exceeds his authority under such a power of attorney even a bona fide purchaser is not protected.

It is unnecessary for us to decide whether we would go so far as the Oregon court as Mr. Surratt is clearly not a bona fide purchaser for value and in good faith. We simply hold that under the circumstances of this case Mrs. Surratt’s transfers of property as gifts to her husband and the appropriation to her own use of the funds in the checking account were in violation of her fiduciary capacity in the absence of clear language to that effect in the document itself.

This court does not know why the special verdict forms propounded below omitted reference to the power of attorney. In any event, we hold that Mrs. Surratt — as agent for the deceased — exceeded her authority in conveying the majority of his property to her husband. The purported transfers of assets to Mr. Surratt under the power of attorney are void and are set aside for the reasons set forth above.

The jury verdict against Mrs. Surratt is reinstated and the trial court is directed to enter judgment against Mrs. Surratt in accord therewith.

The directed verdict and judgment for Mr. Surratt are set aside and the case remanded for further proceedings as to Mr. Surratt, consistent herewith.

We affirm the summary judgment for Flagship Bank of Zephyrhills.

BOARDMAN, Acting C. J., and RYDER, J., concur.


author: BOARDMAN, Judge.

text:
    STATE of Florida, Appellant, v. David F. SPEARMAN, Appellee.
    No. 78-520.
    District Court of Appeal of Florida, Second District.
    Dec. 13, 1978.
    Rehearing Denied Jan. 26, 1979.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellant.
    Edward D. Foreman, St. Petersburg, for appellee.
   BOARDMAN, Judge.

Appellee/defendant David F. Spearman was charged by information with burglary. He filed a motion to dismiss pursuant to Rule 3.190(c)(4) of the Florida Rules of Criminal Procedure. The relevant, undisputed facts are as follows. Appellee knocked on the front door of the residence of Sam Dunson. Dunson opened the door, and appellee struck Dunson in the forehead. Appellee’s hand and arm entered the residence when he struck Dunson.

After a hearing the trial court found that there were no disputed material facts; that there was sufficient evidence from which the jury could find that appellee went to Dunson’s residence with the intent to commit an assault, and that there was an entry into the enclosed structure by appellee’s hand and arm. The trial judge then found appellee’s actions could be construed to be a burglary with intent to commit an assault. Nonetheless, the court concluded that the legislature did not intend this to be a burglary and granted the motion to dismiss.

Section 810.02(1), Florida Statutes (1977), provides: “ ‘Burglary’ means entering or remaining in a structure or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter or remain.” A structure is defined in Section 810.011(1) as “any building of any kind, either temporary or permanent, which has a roof over it, together with the curtilage thereof.”

It is well established that the unqualified use of the word “enter” in a burglary statute does not confine its applicability to intrusion of the whole body but includes insertion of any part of the body or of an instrument designed to effect the contemplated crime. State v. Whitaker, 275 S.W.2d 316 (Mo.1955); Commonwealth v. Myers, 223 Pa.Super. 75, 297 A.2d 151 (1972); Foster v. State, 220 So.2d 406 (Fla.3d DCA 1969); 13 Am.Jur.2d Burglary § 10 (1964). The legislature is presumed to recognize the meaning of the terms it employs. Furthermore, appellee’s entire body intruded into the curtilage of Dunson’s residence.

In view of the plain language of the statute, it cannot be said that the undisputed facts do not establish a prima facie case of guilt.

REVERSED and REMANDED for proceedings consistent with this opinion.

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


author: PER CURIAM. LETTS, Judge,

text:
    Alphonso PERRY, Appellant, v. STATE of Florida, Appellee.
    No. 77-1032.
    District Court of Appeal of Florida, Fourth District.
    Dec. 13, 1978.
    Rehearing Denied Feb. 7, 1979.
    Richard L. Jorandby, Public Defender, and Marc E. Kirk, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Benedict P. Kuehne, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED.

BERANEK, J., and SCHWARTZ, ALAN R., Associate Judge, concur.

LETTS, J., dissents, with opinion.

LETTS, Judge,

dissenting:

I dissent.

We would all be naive to suppose that the maze of standard criminal jury instructions required in each case are clear and in this case they were more confusing than usual. So much so that I and my colleagues spent more than a little time sorting them out. What then can we expect of a lay jury?

In the case at bar which resulted in a second degree murder conviction, the jury was initially instructed, as per the standard jury instructions, that the killing of a human being in the heat of passion, by use of a dangerous weapon, is manslaughter. Upon the jury retiring, the state successfully argued to the trial judge that an amended instruction should be given as same had been decided upon in the charge conference. The reinstruction then given said:

However, as I instructed you previously, the law reduces the killing of a person in the heat of passion from first-degree murder to a lower grade of murder or manslaughter out of a recognition of the frailty of human nature of the temporary suspension or overthrow of the reason or judgment of a defendant by the sudden access of passion and because in such a case there is an absence of malice. (Emphasis supplied.)

It is clear to us all that homicide in the heat of passion with a dangerous weapon, is not a lower grade of murder because in such event the crime is no greater than manslaughter.

It is the State’s view and the majority agrees, that because all of the homicides were elsewhere properly defined, including the second degree murder requirement of a depraved mind, the jury instructions “as a whole” were adequate. For myself, I do not believe they were, because at the actual charging of the jury, the judge first read the Florida Standard Jury Instruction which omits any reference to “a lower grade of murder.” As he read on, the judge realized his believed mistake and then reread the instructions including the lower grade of murder language. The error multiplied as it was then discovered that the jury had also been given the incorrect written instruction. A new one was then substituted. The jury obviously was confused by all of this because they came back and asked for reinstruction whereupon the lower grade of murder language was again given for the fourth time.

The end result here was guilty of second degree murder, which I submit was quite possibly arrived at because of the erroneous instruction quoted above.

This cause should be sent back for a new trial.

      . See § 782.03.

      . See § 782.03 and § 782.07, Fla.Stat. (1977) and Fla.Std. Jury Instr. (Crim.) Excusable Homicide, 67. Nevertheless, it is hard to fault the trial judge for agreeing to this instruction, for the transcript reveals that the court believed it proper under a decision of this very court in Smith v. State, 314 So.2d 226 (Fla. 4th DCA 1975). However, a careful rereading of the Smith case convinces me that a “crime of passion” position ... is not applicable here” (Smith, supra, 232).


author: SCHEB, Judge.

text:
    Joseph GREENE, Appellant, v. Patsy J. FLEWELLING et al., Appellees.
    No. 78-78.
    District Court of Appeal of Florida, Second District.
    Dec. 15, 1978.
    Rehearing Denied Jan. 29, 1979.

      Thomas F. Icard, Jr. and Thomas J. Roehn of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, for appellant.
    Lynn H. Groseclose and Kingswood Sprott, Jr. of Sprott & Groseclose, Lake-land, for appellees.
   SCHEB, Judge.

Appellant Greene obtained a favorable jury verdict for damages in an action arising out of an automobile accident. The trial court set aside the jury verdict on the grounds that it was not supported by competent, substantial evidence. This appeal by Greene ensued. We affirm.

On October 24, 1976, a car driven by appellee Patsy Flewelling collided with a Volkswagen bus driven by appellant Greene. A passenger in Greene’s bus sued the Flewellings, who in turn filed a third-party complaint against Greene. Greene then filed a third-party counterclaim against the Flewellings seeking to recover for his personal injuries.

Greene's passenger settled with the Fle-wellings, and the cause went to trial on the Flewellings’ claim against Greene and Greene’s counterclaim against them. The jury found Mrs, Flewelling 100% negligent, and awarded Greene $20,600. Upon motion by the Flewellings the court set aside the jury’s verdict and entered judgment in favor of Greene for $550, the stipulated amount of his property damage.

On this appeal Greene argues that the trial court erred in overturning the jury’s verdict. He also contends that the trial judge erred in refusing to give a jury instruction concerning a “serious, nonperman-ent injury.” Since both of these contentions depend to a large extent upon the evidence presented at trial, it is necessary that we review the testimony in some detail.

To support his claim Greene presented his own testimony, that of his wife, and the deposition of a physician who had examined him. First to testify was . Greene’s wife. She said that her husband had been released from the hospital several hours after the accident, but that he was in considerable pain from various bruises and lacerations for about a month. She said she first discovered that her husband could not smell several days after the accident when she came home and detected a pungent odor of gas in the house. Mrs. Greene asked her husband if he could smell anything and he said he could not. She then checked the stove and found the pilot light was out and that it was emitting gas. Alarmed, she presented a number of household substances to her husband and asked him if he could smell them. He said he could not. Mrs. Greene further testified that her husband subsequently informed her that he could not taste either. She noted that his condition had not improved as of the time of trial, slightly over a year after the accident.

The deposition of Dr. DeWeese, a neurosurgeon, was next introduced into evidence. The doctor said that Greene had been referred to him about a month after the accident because of his claimed loss of smell. He said that Greene had told him he could smell before the accident, but could not afterwards. Dr. DeWeese asked Greene to smell various pungent substances around his office, but Greene reported that he could not smell any of them. The doctor explained that when a person loses his sense of smell it usually means the olfactory nerves have been damaged in some manner; yet, in his opinion Greene had not sustained the type of injury that would damage the olfactory nerves. Dr. DeWeese said he had no way of predicting when or if Greene would regain the ability to smell and taste, and concluded that Greene suffered from “a subjective complaint that can’t be corroborated with objective findings.”

Greene testified that he could not recall anything about the accident itself, or how he received his injuries. He said he remembered very little until two days after the accident, at which time he recalled being in pain from rib, neck, head, and back injuries. He said he had never had any trouble with his senses of smell and taste before the accident. He corroborated the incident his wife had related about his not being able to smell gas from the stove, and referred to various other instances when he had not been able to smell or taste.

At the conclusion of the evidence the Flewellings moved for a directed verdict. The trial judge, while expressing considerable doubt as to whether the evidence was sufficient to sustain Greene’s personal injury claim, reserved his ruling on the motion. See Fla.R.Civ.P. 1.480(b).

The jury was then instructed that it could return damages in favor of Greene for his personal injuries if: (1) Mrs. Flewelling was found to be negligent; (2) Greene sustained a “permanent loss of bodily function”; and (3) Mrs. Flewelling’s negligence was the legal cause of Greene’s personal injuries. The jury answered all three of these questions affirmatively and awarded Greene $20,600 in damages.

The Flewellings then moved to have the jury’s verdict set aside and to have judgment entered in accordance with their previous motion for a directed verdict. As mentioned previously the court granted their motion, stating in its order that Greene had produced “no competent medical evidence” to prove that his loss of taste and smell was caused by the accident or that the loss of these senses was permanent.

The rules governing a posttrial motion for judgment in accordance with a previous motion for directed verdict are the same as those governing a motion for a directed verdict at the close of the evidence. Hendricks v. Dailey, 208 So.2d 101 (Fla.1968); Hall v. Ricardo, 331 So.2d 375 (Fla. 3d DCA 1976). A trial court is authorized to grant such a motion only if there is no evidence or reasonable inferences to support the nonmoving party’s position. Stirling v. Sapp, 229 So.2d 850 (Fla.1969); Brown v. Walker, 306 So.2d 209 (Fla. 1st DCA 1975); see H. I. Resorts, Inc. v. Touchton, 337 So.2d 854 (Fla. 2d DCA 1976).

One of the bases upon which the trial court set aside the jury’s verdict was that it perceived that there was no evidence of proximate or legal causation. Since we feel this issue is dispositive of the case, we proceed to it first.

It is rudimentary that a claimant must plead and prove that the negligent act of the person against whom he seeks a recovery was the cause of his injuries. Salinetro v. Nystrom, 341 So.2d 1059 (Fla. 3d DCA 1977); McWhorter v. Curby, 113 So.2d 566 (Fla. 2d DCA 1959); W. Prosser, The Law of Torts 236 (4th ed. 1971). Since Greene relied upon his loss of smell and taste to meet the nofault thresholds, it was incumbent upon him to prove that Mrs. Flewelling’s negligence was the legal or proximate cause of his loss of these senses. See § 627.737(2), Fla.Stat. (Supp.1976).

Greene first contends the trial court erred in holding that it was necessary for him to produce “competent medical evidence” of legal causation, because there is no legal requirement that medical evidence be produced on this issue. The general rule seems to be that it is necessary to demonstrate legal causation by expert testimony where this issue is beyond the common knowledge of laymen. W. Prosser, The Law of Torts 241 (4th ed. 1971); see, e. g., Biedenharn Candy Co. v. Moore, 184 Miss. 721, 186 So. 628 (1939); Parris v. Johnson, 3 Wash.App. 853, 479 P.2d 91 (1970). However, several recent Florida cases seem to indicate that expert testimony is not necessary to establish legal causation, even in instances where this issue is beyond the common knowledge of laymen. Hernandez v. Clinica Pasteur, Inc., 293 So.2d 747 (Fla. 3d DCA 1974); Alton Box Board Co. v. Pantya, 236 So.2d 452 (Fla. 1st DCA 1970). But even these cases do not obviate the claimant’s burden of demonstrating legal causation by some competent evidence in order for him to recover for his injuries.

The trial court gave the following jury instruction on legal causation patterned on Fla.Std.Jury Instr. (Civ.) 5.1(a):

Negligence is a legal cause of loss, injury or damage if it directly and in natural and continuous sequence produces or contributes substantially to producing such loss, injury or damage so that it can reasonably be said that, but for the negligence, the loss, injury or damage would not have occurred.

The standard jury instruction, of course, reflects the law of Florida on this subject. Sardell v. Malanio, 202 So.2d 746 (Fla.1967); Broome v. Budget Rent-A-Car of Jax, Inc., 182 So.2d 26 (Fla. 1st DCA 1966); 23 Fla. Jur. Negligence §§ 26, 29 (1959). Viewing the evidence presented by Greene in light of the above standard we are compelled to agree with the trial court that Greene did not carry his burden of demonstrating that Mrs. Flewelling’s negligence was the legal cause of his loss of smell and taste.

Greene offered no explanation of how his injuries affected his ability to smell or taste — he merely stated that he possessed these senses before the accident but did not shortly thereafter. Both Mrs. Greene and Dr. DeWeese verified that Greene had indeed said he could not smell shortly after the accident. The only other evidence going to the issue of causation was the following testimony from Dr. DeWeese:

Well, this is a very interesting case. This man [Greene] was in a car accident in which he sustained minor trauma to his head. When I say minor trauma, he was knocked unconscious; he was not comatose; he did not have any spinal fluid, rhinorrhea, and his complaint afterwards is loss of smell. Well, to have a complaint of loss of smell implies the olfactory nerves have been transected or sheared in the trauma. This, without any other signs, say, of rhinorrhea, contusion or fracture of the base of the skull or severe facial fracture or any other coincident or corroborating injury, is unlikely.
I can never remember a patient that transected the olfactory nerve or both olfactory nerves, which is what his complaint implies, that didn’t have a severe injury to the brain or to the skull. I took the liberty to rule out a tumor. He didn’t have it. So I really can’t say on medical probability that he’s transected his olfactory nerves. In fact, based on medical probability, I’d say he did not transect his olfactory nerves.

This testimony certainly does not support Greene’s claim that he lost his ability to smell and taste as a result of the accident. In fact, the doctor’s testimony militates against this conclusion. But even disregarding the doctor’s testimony, Greene’s evidence of causation boiled down to simply this: he could smell and taste before the accident, but could not shortly thereafter. We find that this evidence at best raises a mere possibility of legal causation, and nothing more. It has long been held that a possibility of causation is not sufficient to allow a claimant to recover. As said by Dean Prosser:

On the issue of the fact of causation, as on other issues essential to his cause of action for negligence, the plaintiff, in general, has the burden of proof. He must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a substantial factor in bringing about the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant. (Emphasis added, footnotes omitted.)

W. Prosser, The Law of Torts 241 (4th ed. 1971). This is the law of Florida also. Tampa Electric Co. v. Jones, 138 Fla. 746, 190 So. 26 (1939); Bryant v. Jax Liquors, Inc., 352 So.2d 542 (Fla. 1st DCA 1977); Wirt v. Fontainbleau Hotel Corp., 306 So.2d 547 (Fla. 3d DCA 1974).

Though legal causation must be judged on a case-by-case basis, two cases serve to illustrate the concept involved here. In Depfer v. Walker, 125 Fla. 189, 169 So. 660 (1936) the supreme court held that a plaintiff who merely showed that she sustained abdominal injuries in an automobile accident did not carry her burden of showing that her subsequent nervous condition and deafness were caused by the defendant’s negligence. In Rutherford v. Modern Bakery, 310 S.W.2d 274 (Ky.App.1958) the court held that plaintiff’s evidence that he had become violently ill shortly after eating two pies from the defendant bakery was not sufficient to show that the bakery’s negligence caused his injury. See also Eckley v. Seese, 382 Pa. 425, 115 A.2d 227 (1955); Kramer Service, Inc. v. Wilkins, 184 Miss. 483, 186 So. 625 (1939). In the instant case, as in Rutherford and Walker, the only evidence of legal causation was the proximity of Greene’s loss of smell and taste to the accident. This is not enough — there must be some substantive link between the negligent act and the injury.

Greene also argues that the second basis upon which the trial court overturned the jury’s verdict, i. e., that Greene did not adequately demonstrate by medical evidence that his loss of bodily function was permanent, was error. Since we have held that the court’s first basis for overturning the verdict, i. e., that Greene did not prove legal causation, was correct, it is not necessary that we address this point. For the same reason, it is unnecessary that we address Greene’s further argument that the court erred in refusing to give a jury instruction on a “serious, nonpermanent injury” as described in § 627.737(2)(e).

Accordingly, the order of the trial court setting aside the jury’s verdict and entering a judgment in favor of Greene for only his property damage is affirmed.

GRIMES, C. J., and DANAHY, J., concur.

      . In order for Greene to maintain his tort suit for personal injuries, § 627.737, Fla.Stat. (Supp. 1976) required him to prove at least one of the following:
      (a) Loss of a body member.
      (b) Permanent loss of a bodily function.
      (c) Permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement.
      (d) Significant permanent scarring or disfigurement.
      (e) A serious, nonpermanent injury which has a material degree of bearing on the injured person’s ability to resume his normal activity and lifestyle during all or substantially all of the 90-day period after the occurrence of the injury, and the effects of which are medically or scientifically demonstrable at the end of such period.
      (f)Death.
      The trial court gave an instruction on “permanent loss of bodily function” as described in subsection (b), but refused to give an instruction on a “serious, nonpermanent injury” as described in subsection (e).

      . The doctor testified that Greene had not mentioned anything to him about his loss of taste until the day of the deposition, only a week before trial.

      . The standard jury instruction on this subject refers to “legal causation” rather than “proximate causation” because this latter term is often misunderstood by juries. Fla.Std.Jury Instr. (Civ.) 5.1 (comment 1); see also W. Prosser, The Law of Torts 236 (4th ed. 1971).


author: HENDRY, Judge.

text:
    Jose Miguel CAMPOS, Appellant, v. The STATE of Florida, Appellee.
    No. 77-437.
    District Court of Appeal of Florida, Third District.
    Dec. 19, 1978.
    Rehearing Denied Feb. 12, 1979.
    Bennett H. Brummer, Public Defender and Karen M. Gottlieb, Asst. Public Defender, for appellant.

      Robert L. Shevin, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., and Sharon Langer, Legal Intern, for appellee.
    Before PEARSON, HENDRY and BARKDULL, JJ.
   HENDRY, Judge.

Appellant/defendant, Jose Miguel Campos, was charged by information with the second degree murder of Jose Perez. A jury returned a verdict of guilty to the crime charged and appellant was sentenced to life imprisonment in the state penitentiary-

He now appeals his conviction and sentence raising the following issue:

“Whether the trial court erred in excluding two defense witnesses whose testimony was essential to the defendant’s defense of self-defense, thereby violating the defendant’s right to present a defense, as guaranteed by the sixth and fourteenth amendments to the Constitution of the United States Article I, §§ 9 and 16 of the Constitution of the State of Florida.”

After a careful review of the record, we believe the trial court did so err, and accordingly, we reverse appellant’s conviction and sentence.

Sub judice, appellant was charged with second degree murder. Appellant’s defense to the charge was that the shooting had been done in self-defense. It appears from the record that the deceased, Jose Perez, had repeatedly threatened appellant’s common-law-wife, Irma Palma, and had on two occasions, sexually assaulted her. Perez had told Ms. Palma that his “real problem” was not with her, but with appellant and “tell Miguel to be careful.” Palma had told appellant about the deceased’s acts and threats.

On the night of the alleged murder, one Pedro Enriquez was walking behind appellant on Southwest 8th Avenue and 2nd Street in the City of Miami. When appellant got to the corner of the street, Enri-quez saw the deceased’s car opposite appellant. The deceased then allegedly exited his vehicle, shouted various obscenities at appellant, and threatened to kill him. Enri-quez stated that he saw something in the driver’s hand, but was unable to discern whether the driver held a knife, gun, or stick. Enriquez further stated that he saw appellant run from the area with the deceased chasing him in his auto against the flow of traffic on the street, which was limited to one-way traffic.

Approximately one hour after Enriquez witnessed the ábove, Perez was found dead in his vehicle with four gunshot wounds. There were no witnesses to the shooting, however, within two hours after the discovery of the body, appellant voluntarily appeared at police headquarters and gave a statement to a detective. In that statement, appellant claimed that he was in fear of his life by virtue of various threats made by the deceased to appellant’s wife and directly to him. He further claimed that on several occasions, he had called the police but that no action had been taken on his complaints.

Appellant then told the detective that on the day in question, Perez had chased him in his auto and had threatened his life. Appellant, however, had made it safely to his house, but shortly thereafter, left his home to make a telephone call, as he had no phone in his house. Appellant stated that because of the deceased’s threats and his fear of the deceased, he took his gun with him when he left to make the call.

Appellant further stated that as he was returning to his home, after making the call, he noticed a car parked next to him. The deceased was in the car and called out to appellant, “Now you’re not going to get away, you son of a bitch.” The deceased then allegedly reached toward his waist. At that point, appellant took his gun from the box in which he had carried it and, according to his testimony, fired a warning shot in the air. The deceased then attempted to exit from his car and appellant, allegedly in fear of his life, then fired a number of fatal shots directly at Perez.

During the course of the trial, defense counsel attempted to present Roberto Garcia, the Columbian Counselor General, as a character witness for appellant. It was proffered to the court that Garcia personally knew appellant’s reputation in the community for peacefulness. The trial judge, however, refused to permit Garcia to testify

The court next excluded one Marta Morales from testifying for the defense. It was proffered to the court that Mrs. Morales would have testified that she had seen a man fitting Perez’s description attack appellant’s wife with a pair of scissors and had told appellant of the incident prior to the slaying of Perez. The court ruled that the testimony proffered was, however, irrelevant, as Morales could not identify the attacker by name.

It would appear that, based upon the exclusion of the above two witnesses, the trial judge significantly precluded the presentation of appellant’s self-defense theory. Roberto Garcia would have testified that appellant had a reputation in the community for peacefulness, while Marta Morales would have confirmed the reasonableness of appellant’s apprehension of Perez.

While the identification problem in Morales’s testimony may not have raised such testimony past the level of circumstantial evidence of Perez’s assault upon Ms. Palma, the purpose of such testimony was not to prove that Perez had actually attacked and raped Palma. Rather, the purpose of the testimony was to corroborate the story that Ms. Palma had previously told appellant, i. e., that Perez had threatened both Palma and appellant, and assaulted Palma while brandishing a pair of scissors. Thus, this testimony would have further served to establish before the jury appellant’s apprehensive state of mind when he was allegedly confronted with the deceased, and the fact that Ms. Morales could not identify the perpetrator by name (though she could have described the attacker) should not have precluded her from testifying.

The law is well settled that when the appropriate predicate is met, by the showing of an overt act by the deceased at or about the time of the slaying which reasonably indicates a need for action by the defendant in self-defense, evidence of the specific violent acts of the deceased is admissible, when offered in support of a defense of self defense, for the limited purpose of illustrating the defendant’s state of mind at the time of the incident. Rolle v. State, 314 So.2d 167 (Fla. 3d DCA 1975); Williams v. State, 252 So.2d 243 (Fla. 4th DCA 1971). Sub judice, the defense had showed overt acts on the part of the deceased at or near the time of the slaying, i. e. chasing appellant by car, threatening appellant’s life, allegedly reaching for a weapon, and therefore, the Morales testimony should have been permitted as an indication of appellant’s state of mind and it was error to exclude same.

As for Roberto Garcia, it is our view that the exclusion of his testimony was likewise error. An accused is entitled to introduce evidence of his good character and reputation in the community, where that evidence refers to traits involved in the offense with which the defendant is charged. Norman v. State, 156 So.2d 186 (Fla. 3d DCA 1963). Garcia’s testimony would have been that appellant enjoyed the reputation in the community for non-violence. One’s lack of propensity toward violence is certainly relevant to the trail of violence inherent in a second degree murder charge. Norman v. State, supra, and see Seabrook v. State, 348 So.2d 663 (Fla. 2d DCA 1977).

In conclusion, it is our opinion that the trial court’s exclusion of these two defense witnesses deprived the defendant of relevant and material testimony in support of his defense, and thus, amounts to reversible error warranting a new trial.

Reversed and remanded for a new trial.


text:
    GENERAL AMERICAN LIFE INSURANCE CO., Appellant, v. W. I. STINSON, Jr., Appellee.
    No. II-238.
    District Court of Appeal of Florida, First District.
    Dec. 28, 1978.
    Rehearing Denied Feb. 19, 1979.
    William R. Ptomey, Jr., of Fisher, Bell, Hahn, Winn & Rubel, P. A., Pensacola, for appellant.
    George Ralph Miller of Andrews & Miller, Defuniak Springs, for appellee.
   PER CURIAM.

General American contends the trial court erred in finding that appellee’s decedent was covered under one of its group life policies at the time of her death. Its primary contention is that the decedent, Mrs. Stinson, was not covered at her death because she no longer met one of the eligibility requirements for coverage, i. e. she no longer worked 30 hours per week in the business insured by the policy, Fisher Hardware Company. Appellee argues that Mrs. Stinson worked no more or less in the business at the time of her death than she did when the policy was issued, that appellant’s agents were aware of Mrs. Stinson’s status from the inception of the policy, and therefore, that appellant had waived any objection to her eligibility. After a thorough review of the rather obscure record presented on the issue, we find support for appel-lee’s position and affirm.

The record reveals that Mary Harris, an agent for the company which had previously insured the business, contacted General American about insuring Fisher Hardware after her company dropped its coverage. General American sent an agent to DeFun-iak Springs to write the coverage and a conversation took place between its agent, Mary Harris, and appellee, the President of the company. Mary Harris’ deposition testimony about the conversation was as follows:

We were discussing, [whether Mrs. Stinson was eligible] . . . and I sat there until I found out he [the agent] thought he could cover them, the eligibility requirements, and although she was a stockholder and didn’t spend all of her time in the thirty hours a week, which is usually required in the office actually doing work in the store he agreed that she was active. I told him that she . . was considered an employee at that time and she was considered eligible at that time.
Q. Yes ma’am. You understood then at the time that the policy was secured, her capacity as an employee of the store. A. That’s right. He called me and asked me, he called me telephone and said, ‘What do you think about the mother’ and I said — the representative said that he could cover her, that she was eligible and that’s the last I had to do with it.”

We believe this testimony supplies adequate proof that appellant’s agent, as well as Mary Harris, the apparent agent, had sufficient notice of Mrs. Stinson’s status as an employee of Fisher Hardware before it issued the policy to support the result reached by the trial court here. The judgment is therefore AFFIRMED.

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


text:
    Thomas M. SCOTT, Appellant, v. SEARS, VAIL AND WILLIAMS, P.A., a Florida Corporation, Appellee.
    No. KK-127.
    District Court of Appeal of Florida, First District.
    Dec. 28, 1978.
    Rehearing Denied Feb. 19, 1979.
    William A. Bald, of Pajcic, Pajcic & Dale, Jacksonville, for appellant.
    Robert A. Skeels, of Commander & Leg-ler, P.A., Jacksonville, for appellee.
   PER CURIAM.

Appeal from a summary judgment in a breach of contract action and cross-appeal for the taxing of costs for a deposition.

Thomas M. Scott contends that the trial court improperly granted summary judgment on the ground that the action was barred by the statute of limitations for specific performance because his complaint also prayed for damages and there was a material issue of fact as to when the contract was breached. As to the first point, the agreement between Scott and the other members of the professional, association included the following provision:

The parties hereby declare and agree that it is impossible to measure in money the damages which will accrue to a party hereto ... by reason of a failure by any party to perform any of the obligations under this agreement. Therefore, if any party hereto . . . shall institute any action or proceeding to enforce the provisions hereof, any person (including Company) against whom such an action or proceeding is brought hereby waives the claim or defense therein that such party . . . has an adequate remedy at law. .

It is, we believe, inconsistent for Scott to now contend that a. court or jury could properly measure his damages when he himself incorporated into his complaint his agreement that damages could not be measured. Further, we believe the record clearly shows that the breach occurred when the president of the association informed Scott that Scott would get nothing and there was no genuine issue of material fact. We, therefore, affirm the summary judgment.

On cross-appeal, Sears, Vail and Williams, P.A., contends that the refusal of the trial court to tax costs for the deposition which was relied upon by the court was error. We agree and reverse on this point. We remand for the trial court to determine the amount of costs for the deposition.

AFFIRMED in part; REVERSED in part.

ERVIN, Acting C. J., MELVIN, J., and MASON, ERNEST E., Associate Judge, concur.


text:
    Cleveland BROWN, Appellant, v. STATE of Florida, Appellee.
    No. KK-205.
    District Court of Appeal of Florida, First District.
    Dec. 28, 1978.
    Rehearing Denied Feb. 19, 1979.
    Michael J. Minerva, Public Defender; and Carl S. McGinnes, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., for appel-lee.
   PER CURIAM.

Brown appeals his conviction for petit larceny under Section 812.014(2)(c), Florida Statutes (1977) under which his crime was punishable as a third degree felony because of two prior petit larceny convictions. Brown argues that the reading of the information containing references to the prior convictions and the proof of these convictions offered at trial, constituted fundamental error and that, therefore, although objection was not made in the trial court the appellate court should reverse. We disagree.

In State v. Harris, 356 So.2d 315 (Fla.1978) the Supreme Court, in considering the constitutionality of Section 812.021(3), ruled the statute constitutional but inferred that it would be constitutional error to follow the procedure previously approved in Nichols v. State, 231 So.2d 526 (Fla.2d DCA 1970), which was the same procedure followed sub judice. However, in Clark v. State, 363 So.2d 331 (Fla.1978), the Supreme Court stated:

“[E]ven constitutional errors, other than those constituting fundamental error, are waived unless timely raised in the trial court. Sanford v. Rubin, 237 So.2d 134 (Fla.1970). ‘Fundamental error’, which can be considered on appeal without objection in the lower court, is error which goes to the foundation of the case or goes to the merits of the cause of action. An improper comment on defendant’s exercise of his right to remain silent is constitutional error, but it is not fundamental error. Cf. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976).”

We find that the error below, not preserved for review, is no more serious than a comment on silence. Clark, supra. Therefore, we decline to hold that fundamental error occurred because of the procedure utilized. The evidence was sufficient to sustain the conviction for the third petit larceny.

AFFIRMED.

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


text:
    BAY MANAGEMENT, INC., a Florida Corporation, Appellant, v. BEAU MONDE, INC., a condominium, a nonprofit Florida Corporation, Appellee.
    No. 77-1706.
    District Court of Appeal of Florida, Second District.
    Dec. 29, 1978.
    Rehearing Denied Jan. 29, 1979.

      William S. Jonassen, Indian Rocks Beach, for appellant.
    William F. Casler, St. Petersburg Beach, for appellee.
   SCHEB, Judge.

Appellant Bay Management challenges a declaratory judgment requiring it to perform certain maintenance services under the terms of a condominium maintenance agreement and a recreational and garage lease between it and appellee Beau Monde. We affirm in part and reverse in part.

After Beau Monde was organized as a condominium in 1972, the developer, on behalf of Beau Monde, entered into a 25-year maintenance agreement and a 99-year recreational and garage lease with Bay Management. In October 1976 the developer turned over control of the condominium association to the unit owners. Thereafter, in an attempt to clearly define its responsibilities, Bay Management delivered two lists of services to the Beau Monde Condominium Association. In the first, it itemized its acknowledged maintenance responsibilities. In the second, it identified certain maintenance services as the sole financial responsibility of the Association.

Beau Monde, unsatisfied with Bay Management’s disclaimers in the second list, petitioned the circuit court for a declaratory judgment as to Bay Management’s obligations in respect to the services disclaimed.

The trial court determined that the two agreements imposed the obligation on Bay Management to perform the following disputed services:

A. Driveway and Guest Parking:
1. Repaint individual space bumpers and numbers as needed.
2. Repaint lines and traffic markings as needed.
3. Repaint fixture poles as needed.
4. Repair and maintain Beau Monde sign.
B. Grounds:
1. Replace and/or add shrubbery as needed.
2. Install wooden edging throughout grounds as needed.
3. Lay sod as needed.
F. Atrium:
1. Repaint atrium pool as needed.
2. Repair and replace fountain pumps.
3. Repair and maintain fountain.
G. Recreation Room:
2. Provide soft goods for restrooms and shower facilities.
H. Lobby:
1. Repair and rehabilitate front mat.
2. Repair and maintain electronic lock mechanism.
3. Repair building intercom and security system including repair to individual units within apartments.
4. Repair TV surveillance camera.
5. Update building indexes.
I. Corridors:
1. Repaint any wall sections according to need.
2. Replace any damaged carpet.
3. Repair and replace all fire extinguishers.
4. Perform pest control service.
5. Rehabilitate all elevator lobbies.
6. Paint sections of stairwells needing attention.
7. Clean, disinfect, repair and rehabilitate both trash chutes, trash rooms and all trash doors (18).
8. Pick up newspapers left on each floor (20 stops).
9. Repaint storage rooms and laundry facilities as needed.
J. Building Equipment:
1. Maintain and repair fire pumps.
2. Maintain building antenna and amplifier system and wiring of same.
3. Maintain fire alarm system.
K. Miscellaneous Services:
1. Provide weekend cleaning of major public areas.
3. Provide for pest control.
4. Provide and replace all signs throughout the project.
5. Termite bonds.

In construing a contract the court must consider the objects to be accomplished, and to this end should place itself in the position of the parties when the contract was entered into. Florida Power Corp. v. City of Tallahassee, 154 Fla. 638, 18 So.2d 671 (1944). A corollary to this is that the court should arrive at an interpretation consistent with reason, probability, and the practical aspect of the transaction between the parties. Blackshear Manufacturing Co. v. Fralick, 88 Fla. 589, 102 So. 753 (1925). While the trial court attempted to adhere to these principles in the instant case, it erred in going further and holding that Bay Management was required to perform certain of the maintenance tasks simply because the agreements did not specifically exclude these tasks from its responsibility. In effect, the court held that Bay Management was required to perform all maintenance services unless the agreements specifically said it would not perform these services. When a contract is clear and unambiguous, as the agreements were in this case, the court cannot give it any meaning beyond that expressed. Hamilton Construction Co. v. Board of Public Instruction, 65 So.2d 729 (Fla.1953).

We now turn to a review of the agreements themselves to determine if the maintenance tasks in question were the obligation of Bay Management. Article VI of the recreational and garage lease (under which Bay Management was lessor) contained the following provision:

MAINTENANCE OF PREMISES: Lessor has the obligation to maintain the leased premises in good order, condition and repair. Lessee has no obligation whatever to maintain the leased premises or any of the improvements thereon. Lessee agrees to permit no waste, damage or injury to said premises. At the expiration of the Lease created hereunder, Lessee shall surrender the premises in good condition, reasonable wear and tear excepted. Lessee agrees that the building, the electrical system, water systems, fixtures, equipment and all items of personalty within and upon the leased premises, shall be under the control of the Lessor or its agents, and that all operation, upkeep, repairs and replacement of such items shall be done by and at Lessor’s expense. Lessor further agrees that it shall provide, at its expense, any and all utility services required or necessary in the operation of the demised premises. The Lessee shall not change the design, color, materials, or appearance of the improvements now or hereafter placed upon the demised premises, any of the furniture, furnishings, fixtures, machinery or equipment contained therein, without the Lessor’s prior written approval.

Under this provision Bay Management undertook a comprehensive responsibility for the maintenance of the recreation and garage areas. On the assumption that the parking area referred to is within the confines of the leased premises, we conclude that Bay Management was responsible for repainting the individual space bdmpers (A-l) and the fixture poles for the driveway and guest parking area (A-3).

The maintenance agreement was much less comprehensive, requiring only specifically enumerated services. It provided that Bay Management would:

3. [M]aintain, service and repair as to ordinary wear and tear caused by usage and the elements, all public walkways and roadways used for ingress and egress to the condominium property.
5. [P]rovide, maintain and care for the lawn and shrubbery service and all on-site walkways on the condominium property; however, the Maintenance Contractor shall not be responsible for any damages caused by any act of God, which shall include, but not be limited to, wind, flooding, hurricane, frost or freezing, etc.
6. [Pjrovide service and maintain lighting for the exterior of the condominium building, including the lighting of the hallways and other portions of the common elements.
8. [B]e responsible for complete maintenance of elevators and roofs.
9. [B]e responsible for the complete maintenance of the Lobby Area of the Condominium Parcel together with the maintenance of all furniture and equipment in said Lobby Area.
10. [B]e responsible for ordinary wear and tear of seawalls and shall be responsible for the replacement of or repair of seawalls for any said damage caused by any act of God, which shall include but not be limited to wind, flooding, hurricane, and extraordinary tides.
12. [K]eep the exterior of said condominium building painted and shall furnish the necessary repairs to preserve the exterior appearance of said building against ordinary wear and tear. However, the Maintenance Contractor shall not be responsible for the washing of windows or replacement of same, and shall not be responsible for the maintenance of screens that enclose screen porches. The Maintenance Contractor further agrees to keep the condominium building and the areas included in the common elements, which shall include the parking area therein, “broom swept” and neat and presentable in appearance at all times.
17. [MJaintain, service and repair the water and sewer main lines and all connections therewith that lien within the easements of the above described property-

We think paragraph 3 is sufficiently broad to require Bay Management to repaint the lines and traffic markings as needed (A-2). And while we conclude that paragraph 5 requires that Bay Management replace shrubbery (B-l) and lay sod (B-3), both as needed, we do not think this provision requires it to make new additions as opposed to replacements. Nor would it require Bay Management to assume responsibility for any shrubbery or grass damaged or destroyed by an act of God.

Paragraph 9, we think, is sufficiently comprehensive to require Bay Management to perform lobby maintenance as specified in H. However, maintenance responsibility for the intercom and security system (H-3) does not extend to the repair of individual units within apartments. Further, we conclude that the requirement to update building indexes (H-5) is validly imposed upon Bay Management insofar as any displayed directory, but this would not require maintenance of office files used for business purposes.

We conclude that paragraph 12 of the maintenance agreement requires Bay Management to pick up excess newspapers from the various floors (1-8). Paragraph 9 dictates maintenance of the main elevator lobby only if appurtenant to the main lobby (1-5). No requirement is imposed that Bay Management maintain elevator lobbies generally, since its obligation is only derived from its duty to maintain the main lobby.

In our opinion paragraph 12 of the maintenance agreement does require Bay Management to maintain the exterior of the Beau Monde sign (A-4); however, Bay Management would not be required to maintain any internal mechanism of the sign. As to other signs at the condominium (K-4), Bay Management is required to repair and replace only those signs that were on the exterior of the building at the inception of the agreement in 1972.

Finally, we think the trial judge could have fairly concluded that paragraph 17 of the maintenance agreement was sufficiently broad to impose responsibility on Bay Management for repairing and replacing fountain pumps (F-2), and to repair and maintain the fountain (F-3).

We think the trial court erred in imposing responsibility on Bay Management to perform the remaining disputed items of maintenance. Our careful review indicates that Bay Management did not undertake the responsibility as to items B-2 (wooden edging); F-l (repaint atrium pool); G-2 (soft goods for bathrooms and showers); I (corridors, except as mentioned in respect to 1-5 and 1-8); and the items listed in J (building equipment) and K (miscellaneous, except as to K-4).

One final observation: At trial various documents were introduced and counsel presented detailed arguments as to the construction the court should place upon thé agreements. Counsel then orally stipulated that the disclaimed services had been previously performed by Bay Management, though no testimony was, taken on this or any other issue. Counsel for Beau Monde argues here, as he did before the trial court, that Bay Management’s previous course of conduct defined its legal responsibilities under the agreements. He correctly points out that where a contract fails to defind with certainty the duties of the parties, and the parties by their conduct have placed a reasonable construction on it, that such construction should be adopted by the court. Blackhawk Heating & Plumbing Co. v. Data Lease Financial Corp., 302 So.2d 404 (Fla.1974) (quoting Shouse v. Doane, 39 Fla. 95, 21 So. 807 [1897]). Counsel for Bay Management responds that its expanded services in the past were provided pursuant to a contract with the developer during the promotional and sales period. Thus, Bay Management contends such conduct was not interpretive of the agreements now before us. As noted previously the agreements in question clearly defined Bay Management’s maintenance responsibilities. Since no evidence was offered concerning the circumstances under which the disclaimed services were performed, we must reject Beau Monde’s argument that the trial judge’s conclusions be sustained in their entirety based on past performance by Bay Management.

The trial court’s judgment is affirmed, subject to the qualifications mentioned above, as to items A, B-l, B-3, F-2, F-3, H, 1-5, 1-8, and K-4. The judgment is reversed as to items B-2, F-l, G-2, 1-1 through -4,1-6, 1-7, 1-9, J, K-l, K-3, and K-5.

GRIMES, C. J., and OTT, J., concur.

      . For convenient reference we have numbered the specific items listed under A, B, F, G, H, I, J and K. As the court ruled favorably to Bay Management on certain other items and no cross-appeal was taken, those items are omitted from the list.

      . Determining whether the recreational and garage lease or the maintenance agreement applies to specific maintenance services has, in some instances, posed a problem to this court. From the condominium documents introduced into evidence it is not completely clear whether the driveway and guest parking area are within the confines of the more comprehensive recreational and garage lease. If they are not within the confines of the lease, then there would be no authority under the maintenance agreement to require Bay Management to perform the services itemized in A-l and A-3.

      . In fairness, while the trial court noted in the declaratory judgment that past performance by Bay Management was supportive of its decision, the court went on to say, “[E]ven absent said previous course of conduct of the parties, the Court would have been compelled to have arrived at the same conclusion as set forth above.”


text:
    Eleanor C. KILMARK, Appellant, v. Robert M. KILMARK, Appellee.
    No. 78-843.
    District Court of Appeal of Florida, Second District.
    Dec. 29, 1978.
    Rehearing Denied Jan. 26, 1979.
    Christopher C. Ferguson, of Law Offices of Robert F. Nunez, St. Petersburg, for appellant.
    Wayne 0. Smith, of Wallace & Smith, St. Petersburg, for appellee.
   BOARDMAN, Judge.

In February, 1965, appellee Robert M. Kilmark sued appellant Eleanor C. Kilmark for divorce. Before final hearing the parties entered into a written agreement. The agreement was entitled “PROPERTY SETTLEMENT AGREEMENT.” The pertinent provisions of the agreement provided:

WHEREAS, the Husband desires to make provisions for the maintenance and support of the Wife. .
2. Alimony and Support: The Husband, in full settlement and discharge of all obligations present and future to súp-port the wife and as and for alimony, separate maintenance and child support and in lieu of dower of the wife against the husband or his estate, agrees as follows:
(a) To pay to the wife as alimony the sum of Two Hundred Ninety and 59/ioo Dollars ($290.59) per month to be paid as of the entry of a final decree of divorce in the above styled cause and monthly thereafter on the date of said decree of divorce and to be increased as hereinafter provided, said alimony to continue so long as the wife shall live and remain unmarried and the home is sold as hereinafter set forth, whichever event first occurs.
3. Property Rights: . . . The husband does hereby agree to pay to the wife the sum of Three Hundred Thirty-four and 41/ioo Dollars ($334.41) per month on the first of November, 1965 and thereafter on the 1st of each and every succeeding month until such time as the house be sold and upon the sale of said home the husband does hereby agree to increase the alimony payments to the wife by the sum of Three Hundred Thirty-four and 41/ioo Dollars ($334.41) per month, or a total of Six Hundred Twenty-five Dollars ($625.00) per month as and for alimony, said payments to continue as hereinabove provided.
12. Divorce: ... in the event a final decree shall be entered in the divorce action now pending in the Circuit Court of the Sixth Judicial Circuit of the State of Florida in and for Pinellas County, chancery # 77,002, this agreement or a copy of same may be produced in evidence by either party to said cause and the Court requested to approve and make same a part of such decree.

The final decree of divorce entered on October 22, 1965, provided in pertinent part:

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the Agreement entered into by and between the parties hereto, introduced into evidence as Cross-Plaintiff’s Exhibit No. 1, be, and the same is hereby ratified, approved, and adopted by the Court and attached hereto and made a part hereof as if copied herein verba per verba.
THE JURISDICTION OF THIS CAUSE is hereby retained for the entry of such further orders with reference to the care, custody, and support of the said children as the Court may consider proper, and for the enforcement of the execu-tory provisions of the Property Settlement Agreement.

Appellee subsequently sought' reduction of the alimony payments by modification of the final judgment. Appellant attacked the attempted modification by asserting numerous deficiencies in the petition including the allegation that the alimony provisions of the agreement were nonmodifiable and therefore the court lacked jurisdiction to modify. On November 2,1966, the Honorable Clyde M. Kissinger entered an order which (1) found that the alimony provisions of the final decree were nonmodifiable; (2) dismissed the petition for modification of alimony; (3) granted appellee’s oral motion to amend the child support; and (4) reduced the child support payments.

On June 20,1967, appellee filed a verified motion requesting that the trial court set aside Judge Kissinger’s order and permit a reduction of alimony. This motion was brought pursuant to Rule 1.540 of the Florida Rules of Civil Procedure within one year of entry of Judge Kissinger’s order and alleged mistake, inadvertence, and oppression as grounds. Appellee reasserted in this motion that the agreement was one to pay alimony.

[The] “Property Settlement Agreement” is, in fact, an embodiment of severable agreements as to settlement of property rights and claims, alimony and child support, each with independent consideration. ...

On October 20,1967, the parties, each represented by counsel, filed a joint stipulation and Rule 1.540 motion to correct and modify the order of November 2. The motion provided in pertinent part:

Plaintiff Robert M. Kilmark and Defendant Eleanor C. Kilmark jointly move the Court to enter its order adjudicating and affirming the matters herein stipulated, correcting and modifying the prior order of this Court entered the 2nd day of November, 1966 and modifying the Final Decree of Divorce entered in this cause the 22nd day of October, 1965. In support thereof, both parties do stipulate that:
1. The order of this Court entered November 2, 1966, insofar as it grants Defendant’s Motion to Dismiss Plaintiff’s Petition for Modification for Alimony finding and adjudicating that “the agreement between the parties was a valid, binding property settlement agreement not subject to modification under the provisions of Florida Statutes 65.15”, appears to have been founded upon mistake and misconception of law and fact, is in error, and has resulted in hardship to both parties. Notwithstanding any misconception in construction or effect of the settlement agreement of these parties embodied in the said Final Decree, it has at all times been their intention and purpose that alimony, child support and property settlement provisions thereof should remain severable, that all provisions thereof be deemed merged into Final Decree of Divorce, as that decree so recited, and that the said agreement should in no way impair relief under Chapter 65.15, Florida Statutes, or in any way impair the jurisdiction and the power of this Court to modigy (sic) and enforce alimony and child support allowances. The said order should be corrected accordingly, and the parties relieved from the cited consequences thereof, under provision of Rule 1.540, Florida Rules of Civil Procedure.

The Honorable C. Richard Leavengood entered an order on November 7, 1967, vacating the order of November 2 and reducing the alimony payments. Pertinent portions of the November 7 order provided:

1. The order of this Court entered November 2, 1966, insofar as it grants defendant’s motion to dismiss plaintiff’s petition for modification of alimony and adjudicating that “the agreement between the parties was a valid, binding property settlement agreement not subject to modification under the provisions of Florida Statute 65.15” be, and it is hereby vacated and set aside and the said motion be deemed to be denied in all respects.
2. It is the judgment of this Court that the settlement agreement of the parties embodied in the Final Decree of Divorce entered October 22, 1965, although entitled “property settlement” embodies severable considerations of periodic alimony and child support allowances in addition to considerations of settlement of property rights between the parties; that alimony provisions thereof are subject to modification by authority of Chapter 65.-15, Florida Statutes; and that said agreement was merged in and became a part of the Final Decree of Divorce, and is enforceable as any other executory judgment or decree of this Court.
4. Periodic alimony payments, heretofore required of plaintiff to be made to defendant, are hereby reduced from $625.00 per month to $350.00 per month, and plaintiff is hereby ordered and directed to pay to defendant the sum of $350.00 per month, commencing with the month of November, 1967, the first installment being payable on or before the tenth day of November, 1967, and continuing on or before a like day of each and every month thereafter for so long as defendant shall live and remain unmarried, or until earlier further order of this Court affecting same.

Appellee made alimony payments of $350.00 per month to appellant until March of 1976. He has made no payment since that date. Appellant filed a motion for contempt for nonpayment of alimony and for attorney’s fees. Appellee contended that the November 7 order was void for lack of jurisdiction and in accordance with the November 2 order the final decree was unenforceable by contempt. On April 14, 1978, the Honorable Elizabeth A. Kovache-vich denied the motion finding that Judge Kissinger’s order of November 2 “fixed” the legal status of the agreement as being an overall property settlement agreement which is unenforceable by contempt rather than an agreement to pay alimony, that such order is the law of the case, and that Judge Leavengood’s order is a nullity since jurisdiction cannot be conferred upon a court by agreement of the parties. This appeal is from Judge Kovachevich’s order.

As to the validity of the November 7 order only subject-matter jurisdictional defects may be raised at this point in time. 19 FlaJur. Judgments and Decrees § 234 (1958). If the court were without jurisdiction, the order is void. We hold that the November 7 order is not void.

“[Jurisdiction of the subject-matter of an action is a power to adjudge concerning the general question involved therein, and is not dependent upon the state of facts which may appear in a particular case or the ultimate existence of a good cause of action in the plaintiff therein. Want of jurisdiction of the subject-matter is to be distinguished from an erroneous exercise of jurisdiction.”

Aldrich v. Aldrich, 163 So.2d 276, 281-82 (Fla.1964), quoting Quigley v. Cremin, 94 Fla. 104, 109, 113 So. 892, 894 (1927). In the proceedings before Judge Leavengood the court had subject-matter jurisdiction to entertain the joint motion for modification since it had the power to modify and had the power to timely vacate and set aside Judge Kissinger’s order pursuant to Rule 1.540. Furthermore, at this point in time appellee is estopped to question the validity of Judge Leavengood’s order since he actively sought the modification and benefit-ted from it by virtue of the reduction in payments. 46 Am.Jur.2d Judgments § 51 (1969). Accordingly, it is Judge Leaven-good’s order not Judge Kissinger’s order which controls disposition of proceedings subsequent to entry of it.

Since it has been found that the final decree of dissolution includes an alimony provision, that provision as modified by the November 7 order is enforceable by contempt.

REVERSED and REMANDED for further proceedings consistent with this opinion.

GRIMES, C. J., and DANAHY, J., concur.


text:
    Larry WILSON et al., Appellants, v. MASSACHUSETTS INDEMNITY AND LIFE INSURANCE COMPANY, a Massachusetts Corporation, Appellee.
    No. 78-351.
    District Court of Appeal of Florida, Third District.
    Jan. 2, 1979.
    Aaron H. Barken, Coral Gables, for appellants.
    Kelly, Black, Black, Wright & Earle and William G. Earle, Miami, for appellee.
    . Before PEARSON, BARKDULL and HUBBART, JJ.
   PER CURIAM.

Affirmed. See: Capelouto v. Orkin Exterminating Co. of Florida, 183 So.2d 532 (Fla.1966); Uni-Chem Corp. of Florida, Inc. v. Maret, 338 So.2d 885 (Fla. 3d DCA 1976); § 542.12(2), Fla.Stat. (1977).