text:
    Eduardo UTRILLA, a minor, by and through his father and next best friend, Alfredo Utrilla and Alfredo Utrilla, Individually, Appellants, v. The SCHOOL BOARD OF DADE COUNTY, Florida, and Admiral Insurance Company, a foreign corporation, Appellees.
    No. 78-403.
    District Court of Appeal of Florida, Third District.
    Feb. 20, 1979.
    Rehearing Denied March 27, 1979.
    Schwietzer & Kosdan and Brian W. Paris-er, Miami, for appellants.
    Knight, Peters, Pickle, Niemoeller & Flynn; Jeanne Heyward, Miami, for appel-lees.
    Before HAVERFIELD, C. J. and PEARSON and HENDRY, JJ.
   PER CURIAM.

Affirmed. See Rist v. Florida Power & Light Company, 254 So.2d 540 (Fla.1971); Bucher v. Dade County, 354 So.2d 89 (Fla.3d DCA 1978).


source: Caselaw Access Project

author: PEARSON, Judge.

license: Public Domain

text:
    STRESSCON INTERNATIONAL, INC., a Florida Corporation, Appellant, v. RALPH MERRITT DEVELOPMENT CORPORATION, Leo Martin and Gloria Martin, Appellees.
    No. 78-532.
    District Court of Appeal of Florida, Third District.
    Feb. 20, 1979.
    Rehearing Denied March 26, 1979.

      Friedman, Britton, Cohen, Kaufman, Zin-kow, Benson & Schantz and William H. Benson, Miami, for appellant.
    Ainslee R. Ferdie, Coral Gables, Todd, Rosinek & Blake, Miami, for appellees.
    Before PEARSON, KEHOE and SCHWARTZ, JJ.
   PEARSON, Judge.

The issue presented by this appeal is whether the trial court’s action of dismissing a cause with prejudice after plaintiff’s failure to elect between two counts of his complaint was an abuse of discretion. We hold that under the peculiar circumstances of this case, the dismissal with prejudice was an abuse of discretion.

It should first be made clear that a trial judge may properly dismiss a cause with prejudice for failure of a plaintiff to comply timely with an order of the court. See Clifford Ragsdale, Inc. v. Morganti, Inc., 356 So.2d 1321 (Fla. 4th DCA 1978). The circumstances of this case, which call into question the exercise of discretion by the trial court, are that the order requiring election within a stated time was susceptible to a misunderstanding by the plaintiff.

The court entered an order requiring the plaintiff to elect in writing within twenty days between count one and count two of his complaint. The plaintiff sought review of the order by interlocutory appeal. The trial court granted an order which postponed the plaintiff’s duty to elect “until after the appeal of that Order has been concluded.” This court affirmed without opinion. The plaintiff sought review of this court’s decision by petition for writ of cer-tiorari in the Supreme Court of Florida. The petition was denied. The plaintiff filed a motion for rehearing in the Supreme Court. Finally, the plaintiff filed his notice of election twenty-eight days after the denial of his motion by the Supreme Court.

We hold that in the absence of an order of the trial court requiring election within a stated time from the receipt of the court’s mandate, the order requiring election was susceptible to misinterpretation. In the absence of notice to the plaintiff that his election must be filed at a definite time or suffer dismissal, it was an abuse of discretion to impose the drastic sanction of dismissal with prejudice. Cf. Edwards v. City of Fort Walton Beach, 271 So.2d 136 (Fla.1972), and Espinosa v. Racki, 324 So.2d 105 (Fla. 3d DCA 1975).

Thereupon, the order striking notice of election and dismissing the cause is reversed, the order awarding attorney’s fees is reversed and the cause is remanded for further proceedings in accordance with the views herein expressed.

Reversed and remanded.

      . This opinion does not turn on tne question of the propriety of the appellate proceedings.


author: PER CURIAM.

text:
    The LOWELL DUNN COMPANY, a Florida Corporation, et al., Appellants, v. SIGNAL ENGINEERING CO. of Florida, Appellee.
    No. 78-935.
    District Court of Appeal of Florida, Third District.
    Feb. 20, 1979.
    Rehearing Denied March 26, 1979.
    Friedman, Britton, Cohen, Kaufman, Zin-kow, Benson & Schantz and William H. Benson, Miami, for appellants.
    Wildt, Quesada, Brock & Skinner and A. August Quesada, Jr., Jacksonville, for ap-pellee.
    Before BARKDULL, HUBBART and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed. See: Kidd v. City of Jacksonville, 97 Fla. 297, 120 So. 556 (1929); Winchester v. Florida Electric Supply, Inc., 161 So.2d 668 (Fla.2d 1964); Reflex N.V. v. UMET Trust, 336 So.2d 473 (Fla.3d DCA 1976); United States v. Western Electric Co., 337 F.2d 568 (9th Cir. 1964); United States v. F.D. Rich Co., Inc., 473 F.2d 720 (9th Cir. 1973).


author: HUBBART, Judge.

text:
    Sally A. WEINSCHEL, Appellant, v. Bruno O. WEINSCHEL, Appellee.
    No. 78-1228.
    District Court of Appeal of Florida, Third District.
    Feb. 20, 1979.
    Rehearing Denied March 30, 1979.
    Smathers & Thompson and Keith E. Hope, Miami, for appellant.

      Koeppel, Stark & Newmark and Robert L. Koeppel, Miami, for appellee.
    Before BARKDULL and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   HUBBART, Judge.

This is an action for marriage dissolution and a counterclaim by the wife for separate maintenance brought in the Circuit Court for the Eleventh Judicial Circuit of Florida. The trial court dismissed both actions. The wife appeals the dismissal of the counterclaim.

The central issue presented for review is whether it is essential to an action for separate maintenance under Section 61.09, Florida Statutes (1977), that (a) the marital domicile of the parties be in Florida, and (b) the parties be separated due to the fault of the party against whom the suit is brought. We hold that neither of the above is an essential prerequisite to an action for separate maintenance under Section 61.09, Florida Statutes (1977), and reverse.

The facts pertaining to the above issue are as follows. The husband Bruno 0. Weinschel filed a petition for dissolution of marriage against his wife Sally A. Wein-schel in the Circuit Court for the Eleventh Judicial Circuit of Florida. He alleged in his petition that the marriage of the parties was irretrievably broken and prayed that the court dissolve the marriage, award the husband custody of the parties’ two minor children, and partition the parties’ jointly held real property. The wife filed an answer alleging that the marriage was not irretrievably broken and that the husband lacked the jurisdictional requirement of six months residency in Florida to bring the instant action. In addition, the wife filed a counterclaim for separate maintenance in which she sought alimony as well as custody and support of the parties’ two minor children unconnected with a marriage dissolution. The trial court took testimony as to the husband’s alleged Florida residency and thereafter dismissed the petition for marriage dissolution on the ground that the husband was a resident of Maryland and had not met the six month Florida residency requirement. § 61.021, Fla.Stat. (1977). No appeal was taken from this dismissal.

The trial court also took extensive testimony as to its jurisdiction to entertain the wife’s counterclaim. The trial court thereafter entered a written order in which it determined that (a) the marital domicile of the parties was in Maryland, and (b) the wife without good and sufficient cause had abandoned the husband in Maryland and took up an independent residence at Key Biscayne, Florida. Based on these findings, the trial court dismissed the wife’s separate maintenance action without reaching the merits thereof. The wife appeals.

It is the established law of this state that Florida courts have jurisdiction to entertain a separate maintenance action under Section 61.09, Florida Statutes (1977), for alimony and child support unconnected with marriage dissolution brought by a nonresident of Florida who is temporarily in this state. Residency in Florida by either party to the proceeding is not required in order to bring such a separate maintenance action. A contrary rule would make public charges out of non-resident spouses and children in this state when the respective providing spouse refuses to support them. .For purposes of a separate maintenance action, it is therefore irrelevant where the parties permanently reside or where there marital domicile is located. Tinsley v. Tinsley, 125 So.2d 553 (Fla.1960); Martin v. Martin, 128 So.2d 386 (Fla.1961); Schwenk v. Schwenk, 159 Fla. 694, 32 So.2d 734 (1947); Kiplinger v. Kiplinger, 147 Fla. 243, 2 So.2d 870 (1941); State ex rel. Ferre v. Kehoe, 179 So.2d 403 (Fla. 3d DCA 1965).

Moreover, it is clear that there are no fault prerequisites to an award of alimony or child support apart from marriage dissolution in a separate maintenance action brought under Section 61.09, Florida Statutes (1977). The above statute provides as follows:

“If a person having the ability to contribute to the maintenance of his or her spouse and support of his or her minor children fails to do so, the spouse who is not receiving support or who has custody of the children may petition the court for alimony and for support for minor children without petitioning for dissolution of marriage, and the court shall enter such order as it deems just and proper.” § 61.09, Fla.Stat. (1977).

As such, it is not essential to an action under this statute that the parties be separated due to the fault of the party against whom the suit is brought. This represents a departure from heretofore prevailing Florida law on the subject. Compare § 61.09 Fla.Stat. (1969).

In the instant case, the trial court committed reversible error in dismissing the wife’s counterclaim for separate maintenance based on findings that the parties’ marital domicile was in Maryland and that the wife had abandoned the husband in Maryland to come to Florida. Neither finding precludes the wife from bringing this action nor divests the trial court of jurisdiction to entertain the action. Regardless of who caused the unhappy separation of the parties in this case, the fact remains that the wife and children herein could become public charges in Florida unless the husband is required to support them. While Florida courts cannot disturb the parties’ marriage herein, it can require the husband to adequately support his wife and children while they remain in this state. The order under review is reversed and the cause remanded to the trial court for further proceedings.

Reversed and remanded.


text:
    Sally A. WEINSCHEL, Appellant, v. Bruno O. WEINSCHEL, Appellee.
    No. 78-1981.
    District Court of Appeal of Florida, Third District.
    Feb. 27, 1979.
    Rehearing Denied March 26, 1979.

      Smathers & Thompson and Cromwell A. Anderson, Miami, for appellant.
    Koeppel, Stark & Newmark and Robert L. Koeppel, Miami, for appellee.
    Before PEARSON and HUBBART, JJ„ and CHARLES CARROLL (Ret.) Associate Judge.
   PEARSON, Judge.

The husband, who is the appellee here, filed a complaint for dissolution of marriage. The wife filed a counterclaim for relief unconnected with dissolution. Upon the wife’s motion, the court dismissed the husband’s complaint upon the ground that the husband had not shown residency for the jurisdictional period. In the same order, the trial judge dismissed the wife’s counterclaim.

After entry of the final judgment, the wife filed a motion for assessment of costs and for attorney’s fees. Upon the motion of the husband, the wife’s motion for costs and attorney’s fees was stricken. The trial court relied upon Church v. Church, 338 So.2d 544 (Fla. 3d DCA 1976); and Frumkes v. Frumkes, 328 So.2d 34 (Fla. 3d DCA 1976). In further pursuit of attorney’s fees, the wife filed a motion pursuant to Florida Rule of Civil Procedure 1.540, asking that the court amend its final judgment to reserve jurisdiction for the award of attorney’s fees. The motion was denied.

It is our view that the trial court erred in striking the appellant wife’s motion for costs. Certainly, if entitled to costs, the wife could apply for the same after judgment of dismissal. See Florida Rule of Civil Procedure 1.420(d).

The trial court denied the wife’s motion for relief pursuant to Florida Rule of Civil Procedure 1.540 because the wife had already filed her appeal from the final judgment. The motion was grounded upon mistake because the court had, by a written order entered prior to the judgment, reserved ruling on the issue of attorney’s fees until after final hearing. The trial court correctly denied the motion because it did not have jurisdiction of the cause after the filing of a notice of appeal. See Burke v. Burke, 336 So.2d 1237 (Fla. 4th DCA 1976). Nevertheless, the trial court is not deprived of the opportunity to correct the mistake and to rule on the merits of the wife’s motion. The motion may be refiled upon the filing of this court’s mandate in appeal no. 78-1228, which is the wife’s appeal from the judgment dismissing her counterclaim. We do not imply that the wife is entitled to costs and attorney’s fees, but simply that the trial court may proceed upon the motions.

Affirmed in part, reversed in part and remanded with directions.


author: PER CURIAM. LETTS, Judge,

text:
    M & M DEVELOPMENT COMPANY, Appellant, v. David M. MEADOWS, etc., et al., Appellees.
    No. 77-1886.
    District Court of Appeal of Florida, Fourth District.
    Feb. 21, 1979.
    Eli H. Subin of Subin, Rosenbluth & Moran, P. A., Orlando, for appellant.
    John M. Robertson of Robertson, Williams, Duane & Lewis, P. A., Orlando, for appellees.
   PER CURIAM.

Affirmed.

ANSTEAD and DAUKSCH, JJ., concur.

LETTS, J., concurring specially with opinion.

LETTS, Judge,

concurring specially:

This case concerns a stockholders agreement which unequivocally provided that no stockholder could sell his stock to a third party without giving the right of first refusal to the other existing stockholders. The particular provision read:

7. (a) If a partner has received a bona fide offer from a third party to purchase his interest in the said partnership, and if he desires to accept said offer, he shall cause said offer to be reduced to writing and delivered to the general partner, together with written notice thereof to at least two (2) limited partners other than himself. The other partners in any proportion determined by them, then, within thirty (30) days after delivery of notice of said offer, may purchase said interest at the price of said offer and may further select the more favorable of the terms of payment of said bona fide offer or the terms of payment under this agreement as set forth below.

Notwithstanding the foregoing provision, the right of a first refusal in this case was given orally and never reduced to writing. The remaining stockholders did not exercise the orally extended option so the stock was transferred to a third party. Nevertheless, the original stockholders now seek to so exercise claiming that notice of the offer should have been in writing.

I agree it should have been, but note a further provision in the same agreement as follows:

7. Subject to the terms of this agreement, any partner may sell, transfer, assign, pledge, encumber or otherwise hypothecate his interest except that any person obtaining any interest thereby shall be in the status of prospective purchaser and subject to the options hereinabove granted to the other partners in this paragraph 7.

Based on the foregoing it would be my conclusion that the result here is governed by the quotation immediately preceding. Such being so, the appellant must secure equitable redress, (which it did in part in its original suit) in order to achieve its goal. We need no citation to support the concept that he who seeks equity must do it. In the case at bar, the trier of fact found that the right of first refusal had been orally communicated to, and ignored by, the appellants. Thus while the mode of communication did not conform to the written requirements of the agreement it can nevertheless be considered by the chancellor where equitable relief is sought. See Wagner v. Bonucelli, 239 So.2d 619 (Fla. 4th DCA 1970).


text:
    Robert H. MATTHEWS, as Guardian of Dale Harler, Appellant, v. GSP CORPORATION, etc., et al., Appellees.
    Nos. JJ-267 to JJ-269.
    District Court of Appeal of Florida, First District.
    Feb. 23, 1979.
    Rehearing Denied April 4, 1979.
    Thorwald J. Husfeld, of Landis, Graham, French, Husfeld, Sherman & Ford, DeLand, and Karl 0. Koepke, of Whitaker, Koepke & Associates, Orlando, for appellant.
    Alfred A. Green, Jr., Daytona Beach, W. Thomas Lovett, Orlando, C. Anthony Scho-der, Jr., of Smith, Schoder & Wallace, Day-tona Beach, Victor E. Raymos, Jacksonville, Robert K. Rouse, Jr., of Smalbein, Eubank, Johnson, Rosier & Bussey, Daytona Beach, and Donald L. Gattis, Jr., Orlando, for ap-pellees.
   MITCHELL, HENRY CLAY, Jr., Associate Judge.

Appellant-Plaintiff appeals final judgments rendered after the trial court entered directed verdicts for Appellees-GSP Corporation, American Universal of Florida, Inc., and Weatherford AAI, Inc., and American Aero, Inc.

Dale Harler was injured when he fell from a scaffold which was suspended at the eighth floor level of a condominium under construction. The Appellant, Plaintiff below, is Dale Harler’s guardian. The fall occurred when a cable at one end of the scaffold broke causing Harler to fall to the ground. The Appellant filed a complaint against several defendants for negligence and/or products liability. The defendants below included all of the Appellees and the owner of the scaffold and cables involved in the accident. At the conclusion of the trial, the trial court entered directed verdicts for all of the Appellees except the owner of the scaffold and cables.

The primary issue for appeal is whether the trial court erred in ordering a directed verdict for the defendants. We affirm.

AMERICAN UNIVERSAL (The seller of the original cable). First, the Appellant-Plaintiff failed to prove that the. cable which broke was sold by the Appellee, American Universal. The cable had been replaced at least two times before the accident by the owner of the scaffold. There was simply no competent evidence which demonstrated that American Universal sold the cable involved in the accident. Also, the Appellant has failed to present any competent evidence that the cable which broke was defective at the time that it left the hands of the alleged seller of the cable and that the cable broke because of the defect. In addition, we find that the trial court did not err in failing to introducé a brochure concerning general sales information about products sold by American Universal. The brochure does not contain the standards or specifications with regard to the type of cable that should be used with the scaffold involved in the accident.

WEATHERFORD AAI, INC. and AMERICAN AERO, INC. (Alleged manufacturer of the cable). Appellant failed to present evidence showing the identity of the manufacturer of the cable which broke. The Appellant further failed to present any evidence from which a fact finder could have properly concluded that the cable was defective when it left the hands of any manufacturer or supplier.

GSP CORPORATION (The alleged owner of the construction site). As to the owner of the construction site, the Appellant has failed to present sufficient evidence to show that the Appellee-owner actively participated in the construction to the extent that he directly influenced the manner in which the work was performed. See Conklin v. Cohen, 287 So.2d 56 (Fla.1973).

Therefore, for the reasons above stated, the judgments appealed are hereby AFFIRMED.

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


author: MILLS, Acting Chief Judge.

text:
    Robert I. HORNE and S. C. Henderson & Sons, Inc., a corporation, Appellants, v. Donald L. SMITH and Richard G. Moffett, Jr., Appellees.
    No. KK-56.
    District Court of Appeal of Florida, First District.
    Feb. 26, 1979.
    Rehearing Denied March 28, 1979.

      S. Gordon Blalock, of Blalock, Holbrook & Akel, Jacksonville, for appellants.
    William H. Jeter, Jr., of Adams & Adams, Steven A. Werber, of Corrigan, Werber & Moore, Barry L. Zisser, Jacksonville, for appellees.
   MILLS, Acting Chief Judge.

Appellants (plaintiffs) brought suit against appellees (defendants) to foreclose a second mortgage on motel property. After the foreclosure sale, at which plaintiffs bid in the property, there was a deficiency. Plaintiffs then brought suit against the defendants seeking the deficiency due on the second mortgage note together with other sums plaintiffs contended defendants were obligated to pay because of their assumption of the first mortgage and ground lease on the property. After a nonjury trial, final judgment was entered for plaintiffs on the deficiency for $7,135 and against the plaintiffs for the other sums sought. This appeal followed.

The issues before us are:

1. Did the trial court err in reducing the amount of the deficiency which plaintiffs were seeking by giving defendants credit in an amount equal to the difference between the market value of the property and the balance due on the first mortgage at the time of foreclosure of the second mortgage? Yes, and we reverse.

2. Did the trial court err in finding that defendants were not liable for the taxes, first mortgage payments and ground lease payments paid by plaintiffs after foreclosure of the second mortgage and after plaintiffs reacquired the property at the foreclosure sale? No, and we affirm.

A motel was built on leased land. It was originally sold by plaintiffs or their predecessors in title approximately 15 years ago. Plaintiffs reacquired title to the property through foreclosure. Thereafter, plaintiffs executed a new first mortgage to Peninsular Life Insurance Company in the amount of $150,000. One month later plaintiffs sold the motel to defendants and conveyed by quitclaim deed. The deed provided that defendants assume and pay the Peninsular first mortgage and assigned all of plaintiffs’ right, title and interest in the ground lease to defendants. As a portion of the purchase price, defendants gave plaintiffs a second mortgage. Both the first and second mortgages required that taxes be paid to prevent default.

Defendants failed to pay the first mortgage, the second mortgage, the taxes and the ground lease payments. Following these defaults, plaintiffs instituted foreclosure proceedings on the second mortgage and alleged each of the defaults in that complaint. Final judgment was entered in that case on 10 December 1975 in the amount of $35,135. Plaintiffs bid the property in at the foreclosure sale with a bid of $18,000, leaving a deficiency of $17,135 under the final judgment. No deficiency judgment was ever entered in the foreclosure case.

After reacquiring title on 22 December 1975, plaintiffs paid $30,789 under the first mortgage, $16,495.29 for taxes for the years 1973-1976, and $22,930.38 under the ground lease for the years 1975-1977.

While the law is clear that the entry of a deficiency is left to the sound judicial discretion of the court, this discretion has to be exercised within the limits of the proof and evidence and should not be arbitrary. Galloway v. Musgrave, 154 So.2d 846 (Fla.2d DCA 1963).

The trial court found that after plaintiffs foreclosed on their second mortgage there remained a deficiency of $17,-135. The trial court did not award the plaintiffs the full $17,135, however, but gave defendants $10,000 credit on this figure by finding that the market value of the property at the time of the foreclosure sale was $155,245.46 and deducted the first mortgage of $145,245.46 from this figure. Apparently, the reasoning of the court was that plaintiffs acquired a $155,245.46 piece of property on which there was only owed $145,245.46 and thereby got a $10,000 accretion on the sale. This reasoning is not supported by the evidence, is fallacious and overlooks the fact that plaintiffs had $35,-135 invested in the property and had to pay $18,000 of this sum for the privilege of acquiring the property at the foreclosure sale. In addition, plaintiffs had to pay large sums of money and penalties after acquiring the property because of defendants’ prior default. The court erred. Plaintiffs, on the basis of the proof and evidence adduced at the trial, were entitled to a deficiency of $17,135.

Plaintiffs are precluded from recovering from defendants ground lease payments and taxes allegedly due under the second mortgage by the doctrine of res ad-judicata. Gordon v. Gordon, 59 So.2d 40 (Fla.1952).

None of the payments made by plaintiffs were made until after plaintiffs foreclosed the second mortgage and reacquired title to the property. The defaults on these payments by defendants formed the basis for the plaintiffs’ complaint to foreclose the second mortgage and were simply not proven by plaintiffs or made a part of their final judgment foreclosing the second mortgage. Plaintiffs may not now be heard to litigate matters which should have been raised in the prior foreclosure action.

Plaintiffs argue that even if their rights under the second mortgage have been determined and are subject to the doctrine of res adjudicata, the obligation of defendants to pay the taxes under the first mortgage continues to exist as does the obligation to make ground lease payments. However, plaintiffs by bidding in at the foreclosure sale, reacquired title to the mortgaged property prior to making the complained of payments. As a result, plaintiffs may not recover any payment they made to relieve their own property from a lien subject to which they took title. When plaintiffs repurchased the property at the foreclosure sale, plaintiffs acquired title subject to the first mortgage. A purchaser at a mortgage foreclosure sale is presumed to have made allowances for prior liens in making his bid. In Miller v. Slav-ros, 174 So.2d 48 (Fla.3d DCA 1965), the court held:

“Amounts paid by the holder of a second mortgage to protect his security are properly included in a decree foreclosing the second mortgage. . . . Payments in reduction of an indebtedness on a prior mortgage, made by foreclosure purchaser after decree and foreclosure sale, are not recoverable from the mortgagor.”

The same law applies in connection with property taxes and with payments due under the ground lease.

In a case similar to the case before us, the Supreme Court of Iowa ruled that a grantee of mortgaged land who assumes the first mortgage cannot be held liable to his grantor in a personal action for the amount paid by the grantor to discharge the first mortgage after the grantor had reacquired title to the land by foreclosure of a second mortgage. The court stated that:

“The rule of law is well settled in most of our states that, where the grantee of land either assumes a mortgage, or takes subject thereto, the mortgaged land becomes primarily liable for the payment of the debt. In such a case the grantee, who buys subject to the mortgage, or who assumes the same, has a right to subject the mortgaged land to the payment of the debt. In such a case the original mortgagor may not ignore the mortgage and sue the grantee in a mere personal action.” McCrum v. Rubbert, 219 Iowa 454, 257 N.W. 766, 97 A.L.R. 1073 (1934).

We agree with the trial court’s statement in its final judgment:

“The effect of Plaintiffs’ position is that they can own and operate the motel, receive and pocket any income and profits and, yet, look to Defendants for payment of the first mortgage, ground lease and taxes encumbering their property without ever applying the security (property) to the payment thereof. Such a result appears to be contrary to the law and certainly defies reason and logic.”

The final judgment appealed is reversed in part and affirmed in part.

SMITH, J., and MITCHELL, HENRY CLAY, Associate Judge, concur.


author: KEHOE, Judge. SCHWARTZ, Judge

text:
    Theodore LEE, Appellant, v. The STATE of Florida, Appellee.
    No. 77-720.
    District Court of Appeal of Florida, Third District.
    Feb. 27, 1979.
    Rehearing Denied March 30, 1979.
    Bennett H. Brummer, Public Defender and Karen M. Gottlieb, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Joel D. Rosen-blatt, Asst. Atty. Gen., for appellee.
    Before BARKDULL, KEHOE and SCHWARTZ, JJ.
   KEHOE, Judge.

Appellant, defendant below, brings this appeal from his judgment of conviction and sentences for resisting an officer without violence and disorderly conduct. Appellant was sentenced to one year imprisonment and a concurrent sixty day sentence of imprisonment, respectively. We affirm in part and reverse in part.

On January 3, 1977, an information was filed charging appellant with three counts of battery upon a law enforcement officer, resisting an officer with violence to his person, disorderly conduct and battery. Appellant pleaded not guilty and a jury trial was held. At the close of appellee’s case, the prosecution below, the trial court granted appellant’s motion for judgment of acquittal as to the battery count. The jury returned verdicts of acquittal as to each of the battery upon a law enforcement officer charges and two verdicts of guilty were returned: one as to the lesser included offense of resisting an officer without violence and the other to the charge of disorderly conduct. Appellant was adjudicated and sentenced as set forth above. From his judgment of conviction and sentences, he appeals.

There is no point on appeal related to the disorderly conduct conviction and sentence; therefore, they are affirmed. However, in regard to appellant’s conviction, under Section 843.02, Florida Statutes (1977), for resisting an officer without violence, we find error which does require reversal.

Appellant’s defense to this latter and lesser included charge was that he was not lawfully arrested by the police and that he did not use violence to resist arrest. The record shows that the evidence adduced by appellant at trial as well as the arguments made by his defense counsel supported and advanced this theory of defense. What the record does not show, however, is that appellee fulfilled its burden under Section 843.02 to show the legality of the arrest which appellant was convicted of resisting without violence. Under Section 843.02 it is apparent that the proof of the legality of an arrest is an essential element to be shown by the prosecution. Here the record is devoid of any proof of the legality of the arrest which appellant resisted without violence. Without such proof, appellee failed to establish one of the essential elements of the crime for which appellant was convicted. Accordingly, his judgment of conviction and sentence for resisting an arrest without violence should be reversed. See Lowery v. State, 356 So.2d 1325 (Fla. 4th DCA 1978); and Adlington v. State, 350 So.2d 1148 (Fla.3d DCA 1977).

We also note that appellant has a common law right to resist an unlawful arrest without the use of violence. See, e. g., Marshall v. State, 354 So.2d 107 (Fla.2d DCA 1978); and Adlington v. State, 350 So.2d 1148 (Fla.3d DCA 1977).

For the reasons set forth above, appellant’s conviction and sentence for disorderly conduct are affirmed; and his conviction and sentence for resisting an officer without violence are reversed, and the cause is remanded to the trial court with directions to discharge appellant as to this latter offense.

Affirmed in part, reversed in part, and remanded with directions.

SCHWARTZ, Judge

(specially concurring).

The record in this case contains a great deal of evidence that the defendant resisted arrest with violence, as he was charged. As to this crime, the illegality of the arrest is no defense. Section 776.051, Florida Statutes (1977); K. G. v. State, 338 So.2d 72 (Fla.3d DCA 1976). The defendant below successfully requested, however, that the court instruct the jury on what he deemed the lesser included offense of resisting arrest without violence under Section 843.02, Florida Statutes (1977). A legal arrest is indispensable to demonstrate a violation of this statute, e. g., Morley v. State, 362 So.2d 1013 (Fla. 1st DCA 1978); Lowery v. State, 356 So.2d 1325 (Fla. 4th DCA 1978), and, as Judge Kehoe’s opinion correctly states, there was no evidence at the trial below' that the arrest Lee was accused of resisting was in fact anything but an unlawful one.

Notwithstanding all of this, if the sufficiency of the evidence were the only issue on appeal, or if there were no other error, I would affirm the judgment below. This is‘ so because there is no basis in the record for concluding that the jury did not properly exercise its right to “pardon” the defendant for the more serious crime — even though he had committed it — by finding him guilty of the lesser, included offense — even if he did not commit it, and even if there is no evidence that he did. I adhere to the view I expressed, writing for the Fourth District in Silvestri v. State, 332 So.2d 351, 353-354 (Fla. 4th DCA 1976), aff'd, 340 So.2d 928 (Fla.1976); that, under the law established by the supreme court, a jury

“. . . obviously has the power — to grant the defendant a ‘pardon’ for the more serious offense by convicting him only of a lesser one, even one which does not exist as a matter of fact. Bailey v. State, Fla.1969, 224 So.2d 296; Gilford v. State, Fla.1975, 313 So.2d 729, 735 (dissenting opinion). This conclusion requires, in turn, the holding that the jury cannot be faulted — and a defendant (who in this case did not object to the instruction on attempts) [] cannot be heard to complain — when the jury exercises its power to pardon him or her through the conviction of a crime which he or she undoubtedly did not commit.”
“. . . we are required conclusively to presume — and we could not even receive jurors’ affidavits to the contrary, State v. Smith, 183 So.2d 34 (Fla.App.2d 1966), and cases cited; Smith v. State, 330 So.2d 59 (Fla.App. 1st, opinion filed April 13,1976) — that the jury acted properly as to matters which necessarily inhered in its verdicts. Since the granting of a ‘pardon’ was within the jury’s proper function, we must assume, even though we may suspect otherwise, that that’s what it did.”

I believe, in other words — and in this belief I disagree with the holding of the First District in Morley v. State, supra, and with the thrust of Judge Kehoe’s opinion in this case — that the sufficiency of the evidence to sustain a finding of guilt on a lesser included crime cannot be considered when the evidence is sufficient to convict for the greater one. See also, e. g., Jimenez v. State, 158 Fla. 719, 30 So.2d 292 (1947); Brown v. State, 31 Fla. 207, 12 So. 640 (1893); Coppolino v. State, 223 So.2d 68, 74-75 (Fla.2d DCA 1968) (specially concurring opinion), cert. denied, 399 U.S. 927, 90 S.Ct. 2242, 26 L.Ed.2d 794 (1970).

I therefore find it necessary to reach the defendant’s alternative point on appeal. It claims error in the trial court’s denial of his requested jury instruction on the provisions of Section 901.15, Florida Statutes (1977), which outlines the circumstances under which an arrest may lawfully be made without a warrant, as was the purported arrest involved here. In my opinion, this point has merit. Lee’s defense in this case, which was an absolute one to the charge of resisting without violence, Morley v. State, supra; Adlington v. State, 350 So.2d 1148 (Fla.3d DCA 1977), was that he had peacefully resisted an illegal arrest. It was therefore essential that the jury be told whether, under the law of Florida, the arrest in question at the trial was lawful or not. The trial court’s denial of the requested instruction on this issue was thus a prej-udicially erroneous failure to charge on a theory of defense supported by an acceptable view of the evidence. Laythe v. State, 330 So.2d 113 (Fla.3d DCA 1976), cert. denied, 339 So.2d 1172 (Fla.1976); Williams v. State, 356 So.2d 46 (Fla.2d DCA 1978).

In the ordinary case, such a finding of error in the jury charges would result in a new trial at which correct instructions would be given. But this is not an ordinary case. Here, the jury has acquitted the defendant of resisting arrest with violence, see Troupe v. Rowe, 283 So.2d 857, 860 (Fla.1973). And there is no evidence that he is guilty of the only charge which could be retried, resisting without violence, simply because, as all agree, there is no evidence that the arrest in question was lawful. A retrial would therefore inevitably result in a directed judgment of acquittal. Not even the extreme illogicalities sometimes demanded by the law of lesser included offenses, see Silvestri v. State, supra, at 332 So.2d 355, require that we engage in any such useless charade.

For these reasons, I concur in the conclusion that the defendant should be discharged as to the charge of resisting arrest without violence.

      . We note that, although in the instant case appellant was charged under § 843.01, Fla.Stat. (1977), with resisting an arrest with violence, he requested a jury instruction on the offense of resisting an arrest without violence under § 843.02, Fla.Stat. (1977). It is this latter offense for which he was convicted (including the disorderly conduct charge). The appropriateness of § 843.02 as a lesser included offense under § 843.01 has not been raised in this appeal; however, we further note that, pursuant to the criteria articulated in Brown v. State, 206 So.2d 377 (Fla.1968), the information herein alleged all of the essential elements of § 843.02 (allegata) thereby falling within category four of Brown; however, for the reasons set forth herein, the requisite probata was not present.

      . Although the issue is not before us, I believe, contrary to Judge Kehoe’s view as expressed in the footnote to his opinion, that resisting arrest without violence under § 843.02, is a necessarily lesser included offense of the charge of resisting with violence under § 843.01. As such, it falls within category (3) of the situations outlined in Brown v. State, 206 So.2d 377 (Fla.1968).

      . In the case at bar, the defendant affirmatively requested an instruction and verdict form on the lesser included offense of which he was found guilty.

      . While, as we have seen, the jury may have “pardoned” Lee, it may also have concluded that he simply did not use violence in resisting the officer. The defendant was therefore entitled to have the jury instructed as to the law applicable to such a determination.

      . This case differs from Silvestri, in which trial error was held to require a new trial on the lesser included offense of attempted possession of cocaine, even though the only evidence was that the defendant had committed either the completed crime or none at all. In that case, the state could prove each required element of the lesser included crime of attempt, by proving that the defendant was guilty of the completed crime. In this case, under the applicable law, the state could not prove the defendant guilty of the only offense with which he is now charged.


author: HAVERFIELD, Chief Judge.

text:
    Michael E. JONES, Appellant, v. CITY OF HIALEAH, etc., et al., Appellees.
    No. 77-2153.
    District Court of Appeal of Florida, Third District.
    Feb. 27, 1979.
    Rehearing Denied March 27, 1979.

      Pertnoy & Greenberg, Hirschhorn & Freeman and Joel Hirschhorn, Miami, for appellant.
    Fowler, White, Burnett, Hurley, Banick & Knight and Fred R. Ober, Miami, for appellees.
    Before HAVERFIELD, C. J., and HEN-DRY and HUBBART, JJ.
   HAVERFIELD, Chief Judge.

This is an appeal from a directed verdict in favor of defendants City of Hialeah and police officers Berry and Frost in this action to recover damages for personal injuries resulting from gun shot wounds inflicted by a confidential informant for the City’s police department. The salient facts are as follows:

Hugo Cosenza was a paid confidential informant of the Police Department of the City of Hialeah and was paid various amounts dependent upon the results of each individual case. On the day of the incident giving rise to the instant litigation, the Hialeah police had requested Cosenza to arrange a drug buy from Michael Jones, appellant herein. William Brown, an undercover Hialeah policeman, met with Jones, Cosenza and several other persons at Cosenza’s apartment during which time officer Frost and other Hialeah police officers were waiting outside to assist in making the arrest upon consummation of the illegal sale. However, the illicit sale was not effected and Brown along with Frost and the other officers withdrew from the area. Later that same evening officer Brown upon receiving word from Cosenza that Jones was still willing to make a sale, returned to Cosenza’s apartment. Again no sale was made and Brown departed. Shortly thereafter Cosenza and Jones got into an altercation in the parking lot of Cosenza’s apartment building and Cosenza shot Jones five times. Jones filed the instant suit for damages for assault and battery, and negligence as a result of the shooting. In addition to Cosenza, Jones joined the City of Hialeah and officers Berry and Frost as party-defendants and alleged that these defendants, as employers of Cosenza, were liable under the doctrine of “respondent superior”. The cause was tried by jury and after Jones had presented all the evidence on his behalf, the court granted the City’s and officers Berry and Frost’s motion for directed verdict. The jury returned a $150,000 verdict against Cosenza and this appeal ensued.

Jones basically contends that the court erred in directing a verdict for the City and officers Berry and Frost because Cosenza was acting as their agent at the time of the shooting and, therefore, they are liable for his tortious conduct. Jones additionally argues that these defendants were negligent in hiring Cosenza because of his past criminal record.

On appeal from an order granting a motion for directed verdict made after all the evidence has been presented on behalf of the plaintiff, this court must consider all the evidence in a light most favorable to the plaintiff, the non-moving party, and then determine whether there is no evidence upon which the jury could lawfully have found a verdict for the plaintiff. Myers v. Atlantic Coast Line Railroad Company, 112 So.2d 263 (Fla.1959); 3 Florida Jur.2d Appellate Review § 305 (1978) and cases cited therein.

With this principle in mind, we initially must review the evidence to determine whether an agency relationship existed between Cosenza and the City of Hialeah. The factor which distinguishes a principal agent relationship from the independent contractor relationship is the required control and direction by the principal over the conduct of the agent. City of Boca Raton v. Mattef, 91 So.2d 644 (Fla.1956).

Although Cosenza was a volunteer and not an employee of the City of Hialeah in the conventional sense, once his services were accepted the evidence presented reflects the requisite control and direction by the Hialeah police over his conduct. When a confidential informant such as Cosenza is involved in a drug deal, an officer is in charge and the informant is under the officer’s direction. The Hialeah police prescribed the manner in which the work was to be executed and the methods and details by which Cosenza was to accomplish the results. Thus, we find an agency relationship existed for that period of time during which Cosenza engaged in activities relating to his particular assignment which was given to him by the Hialeah police.

We next must determine the vicarious liability of the City, if any, for the intentional torts committed by Cosenza.

In City of Miami v. Simpson, 172 So.2d 435 (Fla.1965), the Supreme Court held that municipalities in Florida are liable for the intentional torts of their agents to the same extent as private corporations. However, this liability of the principal for the torts of its agents is limited to those tortious acts committed while the agent was acting within the scope of his employment. Stinson v. Prevatt, 84 Fla. 416, 94 So. 656 (1922). There is no liability where the agent has stepped aside from his employment to commit a tort which the principal neither directed in fact, nor could be supposed, from the nature of his employment, to have authorized or expected the agent to do. Dieas v. Associates Loan Company, 99 So.2d 279, 281 (Fla.1957). In other words, the master’s liability does not arise when the wrongful act is committed by the agent to accomplish his own purpose and not to serve the interests of the principal. City of Miami v. Simpson, supra. Reviewing the facts of the instant case in light of the above principles of law, we find that the shooting (assault and battery) by Cosen-za was done outside the scope of his employment as a confidential informant to accomplish his own purposes and not to serve the City’s interest which was to effect an illegal drug sale.

We further conclude that at the time of the shooting, Cosenza’s special assignment had terminated in that after two unsuccessful attempts at a drug purchase, the operation was called off and all police officers had withdrawn from the area. Only subsequently did Cosenza and Jones get into an argument which resulted in the shooting, at which time there was no longer an agency relationship between the City and Cosenza. Thus, as a matter of law, the City and the defendant officers were not liable and the trial judge was correct in directing a verdict in their favor. Cf. City of Green Cove Springs v. Donaldson, 348 F.2d 197 (5th Cir. 1965).

Turning to the contention that the City was negligent in accepting Cosenza’s assistance, we have determined that there is no merit therein. First, the City made a background check of Cosenza with the New York City Police with whom he had previously cooperated. Second, Cosenza had successfully worked as an informant on several assignments with the City’s police. Last, a confidential informant is frequently of doubtful character and is usually an individual who has a prior criminal record and has engaged in criminal activity; therefore, he is in a position to put undercover policemen in contact with known drug dealers or other such criminal types.

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

For the reasons stated, the directed verdicts in favor of the City of Hialeah and officers Berry and Frost are affirmed.

Affirmed.

      . Who were responsible for recruiting confidential informants.


author: HENDRY, Judge.

text:
    Gerald D. McALICE, Appellant, v. Ralph KIRSCH and Marion Andersen, Trustees, Appellees.
    No. 78-651.
    District Court of Appeal of Florida, Third District.
    Feb. 27, 1979.
    Rehearing Denied March 30, 1979.

      Gelb & Spatz and Carl A. Spatz, Miami, for appellant.
    Harry A. Payton, Miami, David Slachter, South Miami, for appellees.
    Before HENDRY and KEHOE, JJ., and EZELL, BOYCE F., Jr., (Ret.) Associate Judge.
   HENDRY, Judge.

This is an appeal taken by the defendant in a mortgage foreclosure action seeking review of the trial court’s order denying his motion for relief from entry of default final judgment. The plaintiffs/appel-lees/cross-appellants, Kirsch and Andersen, seek review of the trial court’s determination of the amount of their attorney’s fees.

The dispositive question of this appeal is whether the attempted constructive service upon appellant was perfected so as to give the trial court jurisdiction. Appellant urges the constructive service upon him under Chapter 49, Florida Statutes did not conform to the statutory requirements in that (a) appellant had received defective notice of the proceeding because it was addressed to another defendant, not a party to this appeal, and it was accompanied by a copy of the original complaint rather than a copy of the amended complaint — the former did not name appellant McAlice as a defendant, the latter did name him as a defendant, and (b) there was lack of “diligent search and inquiry” to justify constructive service by publication rather than personal service of process.

After appellant failed to timely respond, the appellees secured entry of default; within ten days, and prior to entry of final judgment, McAlice moved to vacate the default on the basis of defective service of process, lack of diligent search and inquiry and existence of meritorious defense. After hearing, the court reserved ruling on the motion pending an evidentiary hearing on whether there had been “diligent search and inquiry” as to McAlice’s residence address. At the time of evidentiary hearing, the trial court confined the evidence to the issue of whether constructive service had been effected in compliance with the statute. The court denied the motion and entered a default final judgment of mortgage foreclosure. Thereafter, McAlice timely filed a motion under rule 1.540 for relief from entry of default final judgment and the court denied the motion.

It is a fundamental principle of law that the constructive service statute is strictly construed against a plaintiff who seeks to obtain service of process under it. GMAZ v. King, 238 So.2d 511 (Fla. 2d DCA 1970); Callaghan v. Callaghan, 337 So.2d 986 (Fla. 4th DCA 1976); Mayo v. Mayo, 344 So.2d 933 (Fla. 2d DCA 1977). As stated in GMAZ, supra, at 514, quoting from the holdings in McDaniel v. McElvy, 91 Fla. 770, 108 So. 820, 831 (1926) and Klinger v. Milton Holding Company, 136 Fla. 50, 67-68, 186 So. 526, 534 (1938):

“ ‘When a complainant resorts to constructive service, he should make an honest and conscientious effort, reasonably appropriate to the circumstances, to acquire the information necessary to fully comply with the controlling statutes, to the end that the defendant, if it be reasonably possible, may be accorded notice of the suit.’ [The] full test of this principle is whether the complainant reasonably employed knowledge at his command in making the appropriate effort spoken of. Where personal service of process cannot be had, then service of process by publication may be had upon the filing of an affidavit on plaintiff’s behalf stating the residence of the person to be served as particularly as is known after ‘diligent search and inquiry.’ In addition to the publication required . . . notice of the suit must be mailed to such address as ‘diligent search and inquiry’ may cause to be discovered. We note, parenthetically, the strict compliance with these statutory procedures, at the peril of rendering the proceedings void, is rudimentary.”

Appellees, while they acknowledge certain defects in the service, maintain that the appellant is estopped to question the jurisdiction of the court in an action if he invokes the jurisdiction of that court in a subsequent action involving the same subject matter. Shurden v. Thomas, 134 So.2d 876 (Fla. 1st DCA 1961). In the instant case, McAlice did, in fact, file a quiet title action on the same real property; the suit was filed three days after Kirsch and Andersen had filed the affidavits to secure constructive service by publication upon appellant in the foreclosure action, and over two months subsequent to appellees’ institution of foreclosure suit.

The appellate court in Shurden affirmed the trial court order and held that Shurden could not assert insufficiency of service of process as a ground for dismissal of the suit filed by appellee, Thomas, while on the same day filing a suit involving the same parties and subject matter, thereby attempting to invoke the jurisdiction of the same court she was claiming lacked jurisdiction over her person within the context of the suit filed by Thomas. The court stated at 878, 879:

“The conduct and actions of [the defendant] are subject to the doctrine of waiver and estoppel ... To hold that a race by the parties in litigation as to who can first run to the clerk’s office and file a case involving the same subject matter and the same parties, or to hold that whomever the sheriff might happen to serve first, shall irrevocably control the status of the parties, would create chaotic conditions throughout the judicial system. We hold that [the defendant] waived the service of process and is estopped from asserting lack of jurisdiction by the trial court over her person.”

The proposition espoused in Shurden is unsound when applied to the facts of the instant cause since the rationale of the Shurden holding was related to a motion to dismiss the first suit, and the underlying tactical reason for the motion having been filed was the designation of which party was to be “plaintiff” and which to be “defendant” in an automobile collision negligence case. By the Shurden court’s holding the parties were still allowed to proceed with the cause with further pleadings, discovery, and motions — all theoretically to lead to trial.

A grave injustice would result in the instant case if McAlice, by the act of filing his quiet title action, were to be considered to have waived proper service of process and thereby be estopped from asserting lack of jurisdiction by the court in the foreclosure action. The inapplicability of the Shurden holding is increasingly apparent when one takes note that the appellees argue that the filing of the quiet title action estops McAlice from questioning the jurisdiction of the court which entered the default against him while they simultaneously take the position in their answer to the quiet title action that the entry of the default against McAlice in the mortgage foreclosure action is res judicata and thus prevents further proceedings in the quiet title action.

Furthermore, and contrary to appel-lees’ contention, the record does not conclusively show that McAlice was on notice that he was required to file a response in the foreclosure action, as it must be stressed that the notice and the complaint mailed to him to a post office box were patently inappropriate to make him aware that he was a named defendant in the cause; the record also fails to show that diligent search and inquiry was effectuated by the appel-lees in regard to McAlice’s residence address.

In general, default judgments are not favored by the courts, and a court’s discretion should be liberally exercised and all reasonable doubt resolved in favor of granting applications for relief so as to permit a determination of the controversy upon the merits. Imperial Industries, Inc. v. Moore Pipe & Sprinkler Co., 261 So.2d 540 (Fla. 3d DCA 1972). The purpose of a judgment by default is to speed the cause and prevent the defendant from impeding the plaintiff in the prosecution of his claim; defaults are not intended to furnish advantage to the plaintiff so that defense may be defeated or judgment reached without the difficulty that arises from contest by 'defendant. Hamilton v. Bogorad, Klein, Schulwolf, Masciovecchio, Inc., 275 So.2d 41 (Fla. 3d DCA 1973); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Publisher’s Vending Service, Inc., 296 So.2d 570 (Fla. 3d DCA 1974); Country Clubs of Sarasota, Ltd. v. Zaun Equipment, Inc., 350 So.2d 539 (Fla. 1st DCA 1977). If original service of process is so defective as to amount to no notice, judgment based thereon must be deemed void. Craven v. J. M. Fields, Inc., 226 So.2d 407 (Fla. 4th DCA 1969). The order appealed is reversed and the cross-appeal as to appellees’ attorney’s fees need not be considered at this time.

Reversed and remanded with directions to vacate the default judgment and to permit the appellant to serve and file a responsive pleading in the foreclosure action.


text:
    Luis Manuel VERA-NUNEZ, Raul-Faustino Vera-Nunez, Manuel Ravelo Marchante, Appellants, v. The STATE of Florida, Appellee.
    No. 78-822.
    District Court of Appeal of Florida, Third District.
    Feb. 27, 1979.
    Rehearing Denied March 30, 1979.
    Carlos B. Fernandez, Miami, for appellants.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before HUBBART, KEHOE and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed. State v. Forbes, 353 So.2d 638 (Fla. 3d DCA 1977); Dixon v. State, 343 So.2d 1345 (Fla. 2d DCA 1977); Whisnant v. State, 315 So.2d 495 (Fla. 4th DCA 1975); Russell v. State, 266 So.2d 92 (Fla. 3d DCA 1972).


author: SCHWARTZ, Judge.

text:
    PLACET, INC., a Minnesota Corporation, Raymond J. Esser and Richard I. Jensen, Appellants, v. Jon ASHTON, Appellee.
    No. 78-974.
    District Court of Appeal of Florida, Third District.
    Feb. 27, 1979.
    Rehearing Denied March 30, 1979.

      Kenneth B. Sherouse, Jr., Miami, for appellants.
    Gelb & Spatz and Carl A. Spatz, Miami, for appellee.
    Before BARKDULL, HUBBART and SCHWARTZ, JJ.
   SCHWARTZ, Judge.

Placet, Inc., Raymond J. Esser, and Richard I. Jensen appeal from a final money judgment entered against them and in favor of Jon Ashton, after a three day non-jury trial. Ashton cross-appeals as against Placet, Inc. alone. We find no error on the main appeal, but reverse as to the cross-appeal.

The trial judge entered extensive findings of fact and conclusions of law which ably describe both the legal and factual issues involved below and the court’s resolution of those issues:

“1. In 1961 JON ASHTON commenced the business of designing and manufacturing architectural planters and accessories, doing business individually under the trade name “PLACET”. Said business was incorporated in the State of Minnesota in 1965 and eventually after one or more name changes became known as PLACET, INC., a Minnesota corporation. From 1965 until 1973 PLACET, INC., engaged in business in the State of Minnesota with its principal place of business located in the City of Minneapolis. Its principal business was the manufacture of planters, accessories, and furniture made out of plastic materials. In 1973 PLACET, INC., a Minnesota corporation, moved its entire operation to the City of Princeton in Dade County, Florida.
sf: * * * * *
3. During the year 1974 ASHTON commenced discussions with an agent of RICHARD I. JENSEN and RAYMOND J. ES-SER concerning the purchase of the stock of PLACET, INC., a Minnesota corporation, by ESSER and JENSEN . . .
******
5.In early March of 1975 a telephone conversation took place between ESSER and JENSEN and ASHTON at which time ESSER and JENSEN offered to purchase all of the stock of PLACET, INC., a Minnesota corporation, for $100,000.00, payable $10,000.00 down with the balance in monthly installments of $1,200.00. In addition, ASHTON would be employed by the corporation for seven (7) years under a written employment contract. ASHTON accepted the offer and he was advised by ESSER and JENSEN to come to Minneapolis, Minnesota to close the deal. ASHTON was further told by ESSER and JENSEN that he did not need an attorney inasmuch as ESSER had a brother who was a lawyer and who would prepare the papers without cost. ASHTON was told by ESSER and JENSEN that they would have papers drawn and ready when he got to Minneapolis according to the oral agreement. ASH-TON did not consult an attorney.

6. ASHTON arrived in Minnesota on March 13, 1975 and went to the apartment of ESSER and JENSEN to close the sale. All instruments incident to the closing were prepared by ESSER and JENSEN, and they were as follows:

(a) An Employment Agreement between PLACET, INC., a Minnesota corporation, and JON ASHTON wherein and whereby ASHTON was employed for the seven year period from April 1, 1975 through March 31, 1982, with ASHTON to receive thereunder a draw of $3,000.00 per month against 5% of the net sales sold by the corporation.
(b) A “Hold Harmless and Indemnity” Agreement running from JON ASHTON to RAYMOND J. ESSER and RICHARD I. JENSEN wherein and whereby ASH-TON agreed to hold ESSER and JENSEN harmless from liability from any undisclosed taxes or other liabilities.
(c) An “Expense Agreement” which as drawn provided for payment to ASHTON of $1,200.00 per month for expenses. In paragraph 2 of the “Expense Agreement” RAYMOND J. ESSER and RICHARD I. JENSEN are referred to as the buyers of PLACET, INC.

7. ASHTON was told that ESSER and JENSEN wanted to pay for the stock purchase in the form of expenses to be paid under the “Expense Agreement”; ASH-TON had no objection. The “Expense Agreement” was changed by ESSER by interlineation to read that ASHTON would receive “Four Thousand Dollars ($4,000.00) per month for the first three (3) months and 73Vs months at $1,200.00 per month for a total of $100,000.00.” The Court finds that said $100,000.00 to be paid under said Expense Agreement was intended to evidence payment for ASHTON’S stock and was not intended to be true “expenses”. The Court further finds that said $100,-000.00 obligation was intended to be unconditional and not dependent upon whether or not ASHTON was an employee of the corporation in the future.

8. The papers were signed that day and copies given to ASHTON. In addition, that same “day ASHTON paid DONALD SCHNOBRICK, the owner of 11% of the PLACET, INC. stock, $11,000.00 in order tó free up the stock. At the closing on March 13, 1975, ASHTON demanded that ESSER and JENSEN execute a Promissory Note evidencing the $100,000.00 obligation for his stock. They promised to give him one, and a Note signed by ESSER and JENSEN and PLACET, INC. was subsequently delivered to ASHTON. The Court finds that it was the agreement of the parties and ASHTON was led to believe by ESSER and JENSEN that he was, in fact, selling his stock in PLACET, INC., a Minnesota corporation, for the sum of $100,000.00 and that said $100,000.00 payment was unconditional and would be paid in installments of $4,000.00 for three (3) months and then $1,200.00 for 73V3 months and that said obligation would be evidenced by an unconditional Promissory Note. In fact, the Promissory Note, as drafted by ESSER and JENSEN, referred to the Employment Agreement and Expense Agreement, and the Expense Agreement provided that it would be in full force and effect for the period of time contained in the Employment Agreement. The Court finds that the said “Expense Agreement” and Promissory Note as drafted by ESSER and JENSEN were ambiguous and that the true intention of the parties was that ASH-TON would be paid $100,000.00 for the stock in the installments set forth in the “Expense Agreement” and that in the event of default, ASHTON could sue for the unpaid balance.

9. The Court finds that ESSER and JENSEN represented to ASHTON that they would draft the closing papers in accordance with the parties’ oral agreement for sale and during the closing meeting in ESSER and JENSEN’s apartment in Minnesota, they represented to ASHTON that the papers were so drawn. The Court finds that the legal nuances in the note and “Expense Agreement” which tied the note and Expense Agreement to the Employment Agreement were beyond the comprehension of anyone not trained in the law. The Court finds that the parties did not as maintained by ESSER and JENSEN agree that ASHTON was selling his stock to ES-SER and JENSEN for $1.00. The evidence is clear and convincing that either the note and Expense Agreement did not reflect the true intent and agreement of the parties in respect to making the payment of the $100,-000.00 dependent upon ASHTON’s continued employment or in the alternative, if ESSER and JENSEN intended in drawing the closing papers that the payment of the $100,000.00 to ASHTON be dependent upon his continued employment, then their actions were clearly fraudulent as to ASH-TON.

11. ESSER and JENSEN took over as sole stockholders of PLACET, INC., a Minnesota corporation, doing business in Princeton, Florida on April 1, 1975, and ASHTON commenced his duties under the Employment Agreement and he continued under said Employment Agreement until approximately September 8, 1975 at which time ASHTON was fired. The Court finds that PLACET, INC., a Minnesota corporation, failed to sustain the burden of proving that PLACET, INC. was justified in terminating the employment of JON ASHTON under the terms and provisions of the Employment Agreement entered into between the parties.

12. At the time of ASHTON’s discharge on or about September 8, 1975, two $4,000.00 payments for April and May of 1975 had been made on the $100,000.00 Promissory Note with no further payments being made thereon and that ASHTON had been paid draws against commissions in the sum of $3,000.00 for the months of April, May and June of 1975 and none for any time thereafter. The Court finds that there is due and owing to ASHTON under the Promissory Note and “Expense Agreement” the principle sum of $92,000.00, plus interest from June 1, 1975. In addition, under the Employment Agreement ASH-TON would have been entitled to 5% of the net sales of the corporation from April 1, 1975 to date of trial, less $9,000.00 paid to ASHTON for draws against commissions; however, no evidence of the amount of net sales was presented at trial.

if: * * * * *

CONCLUSIONS OF LAW

1. That the Promissory Note dated March 17, 1975 must be read together with the “Expense Agreement” dated March 13, 1975 and said instruments evidence the agreement and obligation of RAYMOND J. ESSER and RICHARD I. JENSEN and PLACET, INC., a Minnesota corporation, to pay the sum of $100,000.00 to JON ASH-TON for the sale of his stock to ESSER and JENSEN.

2. That RAYMOND J. ESSER and RICHARD I. JENSEN are individually liable under the Promissory Note dated March 17, 1975. ESSER and JENSEN failed to rebut the presumption of liability from the manner of signature appearing on said Note. There being no evidence presented on the issue of attorney’s fees, the claim for such fees must be denied. Lyle v. Lyle, 167 So.2d 256 (Fla.2d DCA 1964), cert. denied, 172 So.2d 601 (Fla.1964).

3. That although grounds exist for the reformation of said Promissory Note and “Expense Agreement” so as to make the payments of the $100,000.00 independent of ASHTON’s continued employment by PLA-CET, INC., the Court finds that reformation of said Note and agreement for this purpose is unnecessary by virtue of the fact that ASHTON’s Employment Agreement was wrongfully and unjustifiably terminated by PLACET, INC. Because of said wrongful discharge, the. Note and Employment Agreement are fully enforceable as they read.

4. The Court does, however, conclude that the Note and “Expense Agreement” under the evidence should be reformed so as to provide for acceleration of the debt upon default.

IT IS THEREUPON:

ORDERED AND ADJUDGED AS FOLLOWS:

1. That Judgment be, and the same is, hereby entered in favor of JON ASHTON and against PLACET, INC., RAYMOND J. ESSER, and RICHARD J. JENSEN on Plaintiffs’ Complaint.

2. That the Promissory Note dated March 17, 1975 and the “Expense Agreement” dated March 13, 1975 be, and they are, hereby reformed so as to provide for acceleration in the event of default.

3. That Final Judgment be, and the same is, hereby entered in favor of JON ASHTON and against PLACET, INC., a Minnesota corporation, RAYMOND J. ES-SER, and RICHARD I. JENSEN, jointly and severally, for the sum of $92,000.00 plus interest at 6 percent per annum from June 1, 1975 to date in the sum of $14,720.00, for which let execution issue.”

The first point raised on the “main appeal” is presented only by Esser and Jensen as individuals. It claims error in the trial court’s determination that they are personally liable on the “promissory note” in question and, contrariwise, that they did not execute the note merely as representatives of the corporation. The document was signed in the following manner:

“Placet, Inc. — Ray Esser
Richard Jensen.”

The parties agree that Section 673.3-403, Florida Statutes (1975) is applicable. It provides:

“(2) An authorized representative who signs his own name to an instrument:
* * * * * *
(b) Except as otherwise established between the immediate parties, is personally obligated if the instrument names the person represented but does not show that the representative signed in a representative capacity . . . ”

Nor is it disputed that, under this provision, and since the action was between the immediate parties to the agreement, parol evidence as to the capacity in which Esser and Johnson signed the instrument was properly admitted at the trial. E.g., Havatampa Corp. v. Walton Drug Co., Inc., 354 So.2d 1235 (Fla.2d DCA 1978), and eases cited. The individual appellants argue, however, that their own testimony that they executed the “note” only as representatives of Placet Inc. established that that was the case as a matter of law. We find no merit in this contention. The record contains ample testimony, much of it summarized in the final judgment itself, which supports the conclusion that the parties understood and agreed that Esser and Johnson were to be individually liable. We therefore cannot interfere with the trial court’s resolution of this disputed issue below. E.g., Strawgate v. Turner, 339 So.2d 1112 (Fla.1976).

We reach the same conclusion in rejecting the appellants’ second point, which contends that the trial judge erroneously concluded that the parties were “unconditionally” liable to pay Ashton $100,000.00 for his stock. It is again apparent that the trial court’s determination to this effect was well-supported by a view of the evidence concerning the relationships between the parties and the various documents they executed, in the light of all the surrounding circumstances, which the court had a right to accept. Popwell v. Abel, 226 So.2d 418 (Fla.4th DCA 1969); Royal American Realty, Inc. v. Bank of Palm Beach & Trust Co., 215 So.2d 336 (Fla.4th DCA 1968); Hurwitz v. C. G. J. Corp., 168 So.2d 84 (Fla.3d DCA 1964); 7 Fla. Jur., Contracts, §§ 78-80.

The appellants’ final point, and Ashton’s only one on the cross-appeal, both concern the employment agreement to which the corporation, Placet, Inc. and Ash-ton were the only parties. The agreement was for a seven year term from April 1, 1975 to March 31, 1982. It contained the following termination clause:

“7. TERMINATION: If the employee shall fail to perform or shall unlawfully perform his duties as salesman, or any other duties for the employer or shall fail to attend to his regular duties for a period of 30 days exclusive of the time away from his duties by reason of vacation, illness, disability, or leave with permission of the employer, then the employer may, at its option, terminate the employee and he shall no longer be entitled to the compensation as set forth in Paragraph 2 of the agreement . . . ”

The appellants claim that they may not be held liable for a breach of this agreement since they acted in “good faith” in firing Ashton. Once more, we cannot accept this contention. Unlike the situations presented in the eases cited by the appellants, e.g., Paddock v. Bay Concrete Industries, Inc., 154 So.2d 313 (Fla.2d DCA 1963), in which an employee was required to perform in a manner “satisfactory” to his employer, Ash-ton could be properly terminated under the agreement in question only if he had breached its provisions. Haiman v. Gundersheimer, 130 Fla. 109, 177 So. 199 (1937). Since the record, again, fully supports the factual finding that Ashton had not done so and was therefore wrongfully discharged, the trial judge’s conclusion to this effect cannot be disturbed.

Despite this conclusion, the trial court denied Ashton any recovery against Placet, Inc. for breach of the employment agreement itself. We think that his challenge to this ruling on cross-appeal is well taken. Under the agreement, Ashton was to receive

“. . .a salary of 5 percent of the net sales sold by the corporation, said employee to have a drawing account of Three Thousand ($3,000.00) Dollars per month against the 5 percent commission . .”

The basis of the lower court’s ruling denying Ashton compensation was that he had not demonstrated the amount of the corporation’s “net sales” so as to compute the five percent salary to which he was entitled. While this is true, the contract provision for a $3,000 monthly drawing account against the five percent is nevertheless enforceable. We adopt the majority view that such a provision constitutes, in effect, a guaranty that the amount of the drawing account will be paid whether the percentage commission is earned or not. Gifford v. Waters, 67 N.Y. 80 (1876); cases collected in Annot., Liability of Employer for Agreed Advances, 95 A.L.R.2d 504, 505-510, 513-514 (1964). Since the court has held that Placet’s firing of Ashton was in violation of its employment agreement and since it constituted an anticipatory breach of the entire agreement, it follows that Ashton is entitled to recover from Placet, Inc., the discounted value of $3,000 per month due from the date of his discharge on September 8, 1975 until the end of the contract term, March 31, 1982. Hazen v. Cobb, 96 Fla. 151, 117 So. 853 (1928). The final judgment, which is otherwise affirmed, is reversed only to this extent, and the cause is remanded with directions to enter an additional judgment against Placet, Inc. alone for this amount.

Affirmed in part, reversed in part and remanded.

      . And therefore that they should not be held under the “note” into which the terms of the employment agreement were incorporated both by the terms of the document itself and under the ruling of the trial judge.

      . We find no error in the court’s refusal to bifurcate the trial so as to give Ashton a further opportunity to present such proof.


text:
    Chester Allen PALMER, Appellant, v. The STATE of Florida, Appellee.
    No. 78-2315.
    District Court of Appeal of Florida, Third District.
    Feb. 27, 1979.
    Rehearing Denied March 26, 1979.
    Chester Allen Palmer, in pro per.
    Jim Smith, Atty. Gen., for appellee.
    Before PEARSON, HENDRY and BARKDULL, JJ.
   PER CURIAM.

Petitioner, pursuant to Florida Rule of Appellate Procedure 9.140(g), having taken this appeal from the summary denial of his motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850, and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed.

Affirmed.


author: OTT, Acting Chief Judge.

text:
    Donald Ray POWELL, Appellant, v. STATE of Florida, Appellee.
    No. 78-1654.
    District Court of Appeal of Florida, Second District.
    March 2, 1979.
    Jack O. Johnson, Public Defender, and Michael E. Raiden, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert L. Landry, Asst. Atty. Gen., Tampa, for appellee.
   OTT, Acting Chief Judge.

Appellant’s probation supervisor filed an affidavit charging appellant with violating his probation by his conviction for operating a motor vehicle without a valid driver’s license, by committing battery on his wife, and by being in an inebriated condition. At the hearing on the affidavit appellant admitted the conviction. The trial court struck the intoxication charge, and the state offered no evidence on the battery charge. The trial court announced that appellant had violated probation by driving without a license and revoked the probation. The written order, however, found appellant guilty of all three violations. We affirm the revocation, but we remand the case for correction of the revocation order.

Since at the hearing, the court only found that appellant violated one of the conditions, it should now remove any reference to the other two violations. Appellant need not be present for this purpose.

RYDER and DANAHY, JJ., concur.


author: PER CURIAM. ERVIN, Judge,

text:
    WHITE ADVERTISING INTERNATIONAL, Appellant, v. STATE of Florida, DEPARTMENT OF TRANSPORTATION, Appellee.
    No. II-90.
    District Court of Appeal of Florida, First District.
    March 6, 1979.
    William D. Rowland, Winter Park, for appellant.
    Margaret-Ray Kemper, Alan E. DeSerio, H. Reynolds Sampson and Philip S. Bennett, Tallahassee, for appellee.
   PER CURIAM.

This cause is REVERSED and REMANDED for further proceedings consistent with this Court’s opinion in Walker v. State Department of Transportation, 366 So.2d 96, 1979.

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

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

ERVIN, Judge,

concurring in part and dissenting in part.

On January 21, 1977, White applied to DOT for renewal of its sign permit and tendered delinquent fees for the years 1972-76. While the application was pending, on January 26, 1977, the Department adopted emergency rule 14ER77-09(3), giving notice to signowners throughout the state that it would no longer accept past due permit fees for advertising signs ille-gaily maintained without permits (now made permanent by rule 14-10.04(3), Fla. Admin.Code, effective April 21, 1977). On March 21, 1977, DOT sent White by certified mail a form notice advising that unless it complied with the provisions of Chapter 479 within 30 days from receipt of the notice, or in the alternative, it requested a § 120.57 hearing within 15 days from receipt, White would be required to show cause why its license should not be revoked. On April 5,1977, DOT responded to White’s request for renewal of its permit by declining the application and stating it would request a § 120.57 hearing. A hearing was held on April 27, and a recommended order entered reciting that White’s sign had on it a permit tag dated 1971, that no application was made to renew the annual permit to display the sign until January, 1977, and that White had contended the sign should be permitted since DOT in the past had followed an unwritten rule allowing the renewal of permits upon tender of delinquent fees. The hearing examiner’s order concluded that the failure of DOT to exercise its enforcement powers did not give White the right to violate the outdoor advertising requirements of the law and recommended the sign be removed. The recommendation was approved by DOT.

I agree with the majority that the Department should accept payment of the fees due and issue a current permit. I think, as stated by the concurring and dissenting opinion in Walker v. State of Florida, Department of Transportation, 366 So.2d 96, at p. 101 (Fla. 1st DCA, 1979), the controlling issue is whether the Department gave White notice and reasonable opportunity to renew sign permits on its existing sign. The only written notice which the record shows was forwarded to White was that dated March 21, 1977, after White’s permit had expired. The Department, and the hearing examiner, apparently interpreted the notice as allowing White only the right to a § 120.57 hearing to show cause why the sign should not be removed. The record does not show that the notice required by § 479.07(3), Fla.Stat. (1975), was ever forwarded to White during the years 1972-76. I concur with the majority solely on the ground it does not appear from the record that White was provided notice by DOT 60 days before expiration of its sign permit that it had 60 days from receipt of the notice in which to pay the fee.

I dissent, however, from that portion of the opinion which relies upon the majority’s decision in Walker, holding that the Department may not, by formally adopted rule, change its prior questionable policy, never subjected to rulemaking, of accepting delinquent permit fees from signowners. The emergency rule was not in effect when White first submitted its fees and it is doubtful whether, from the language employed in the rule, it was intended to have retroactive application. The effect of the majority’s opinion goes beyond deciding questions of notice or retroactivity since, as stated in the Walker dissent, it freezes the agency’s action to “cases now before the court, and others yet unborn, regardless of whether the . . . notice sent those signowners was effective in the circumstances of those particular cases.” Walker v. State, Dept. of Transportation, supra, at 102.

The majority’s decision, prohibiting the agency’s right to adopt rules amending or abrogating prior policies or practices is, to say the least, an innovative approach to rulemaking, which has historically been considered an administrative — not a judicial— function. After the enactment of the 1974 APA, I had assumed that an agency had the power to amend or abrogate its prior policy by rulemaking. No attack was made by White on the constitutionality of any provision of Ch. 479, nor was any argument advanced that the rule was an invalid delegation of legislative authority, for which § 120.56 provides a remedy. The only argument White ever raised was that the deviation was invalid simply because it conflicted with DOT’s former policy of accepting fees which were tardily proffered. Surely the agency’s change of a prior practice by formal adoption of a rule cures that type of faceless, “invisible policy-making”, condemned in Straughn v. O’Riordan, 338 So.2d 832, 834 n. 3 (Fla.1976), which had not been exposed to the strictures of rulemaking. Under the circumstances, I fail to see any impediment to an agency changing its prior policy.

More importantly, even had there been no formal rule establishing a change in Department policy, I think, and absent any question of notice, the Department’s later amended action would be justified. The APA does not in express terms invalidate actions effectuating policy statements of general applicability if they are not legitimated by rulemaking. Does it necessarily follow that all such statements which meet the APA definition of rule — but were not formally adopted — are invalid? For the reasons stated infra, I suggest it does not.

In the past, when an attack was made on agency action as invalid due to the agency’s failure to comply with § 120.54, our approach quite often was to classify and, if the classification fell within § 120.52(14)’s definition, to invalidate. Our approach in other cases was not to void the action taken if the incipient or emerging policy supporting the action was sufficiently explained for judicial review by final order. In my opinion the above methods of judicial review are unsatisfactory because, by focusing attention upon the classification, they suggest that once the classification is determined, the judicial inquiry is ended. Therefore if the agency action attacked is, for example, one of general applicability not regularly adopted as a rule, it is for that sole reason invalidated. The classification of the action or statement as either rule or order is simply not the determinative factor for measuring its validity. Often the statement may involve elements of both adjudication and rulemaking. While classifying the action may be an intermediate step leading to the ultimate determination, the judicial inquiry should not cease if it is decided that the action, as classified, violates a specific provision of the APA. Once a violation is found, the next step is to decide whether the infraction is so material as to require judicial intervention. This additional inquiry is answered by the provisions of § 120.68, particularly 120.68(8), which sets out the standards for judicial review of all agency action. Thus the effect of a violation, caused by agency action, will depend upon whether the fairness of the proceeding or the correctness of the action is found to be impaired.

Other provisions of § 120.68, requiring remand or reversal, should be measured by and read in pari materia with § 120.68(8). When we measure the effect of DOT’s action, urged by White to be invalid, by the provisions of § 120.68, we find that the subsection most applicable is (12)(b), requiring remand if the exercise of discretion by the agency is “[ijnconsistent with . a prior agency practice.” Reading further, however, we find that remand is mandated only “if deviation therefrom is not explained by the agency; . . .” A § 120.57 hearing was provided White and an order complying with § 120.59 was regularly entered following the hearing. The hearing provided by § 120.57 “serves the public interest by providing a forum to expose, inform and challenge agency policy and discretion.” State ex rel. Dept. of General Serv. v. Willis, 344 So.2d 580, 591 (Fla. 1st DCA 1977). It provides a mechanism both for rule challenges and for more varied complaints concerning agency action, including those against whom the agency has instituted adjudicatory proceedings, those whose substantial interests are threatened by agency causes or by agency action which is proceeding arbitrarily or otherwise. Id. While 120.54 proceedings are helpful in fostering a dialogue between the agency and the public as to the wisdom of the proposed action, it is questionable whether the dialogue in such proceedings has the same intensity as that provided by § 120.57 to identifiable parties.

When a party’s substantial interests are protected by a 120.57 hearing, and the agency’s action is sufficiently explained for judicial review, I see little justification for a party’s complaint that the action was not first subjected to rulemaking. The party should instead be prepared to show on appeal how the action was impaired by either material error in procedure or a failure to follow prescribed procedure. If, for example, the non-adopted rule was outside the range of statutory delegation, it would have no more validity than a regularly adopted rule lacking the same authorization.

There are many reasons why an agency which knows its policy should wisely cast it in rules — not the least of which is that if rules are not regularly adopted, the agency may be required to defend its policy decisions in each case. State, Dept. of Admin., etc., Person, v. Harvey, supra note 3. Whether or not rulemaking has taken place, the court, when reviewing an attack on an agency’s action, should be aware of the policy supporting the action taken. If the discretionary action is clearly within the range of statutory delegation, the need for agency exposition is lessened, and I think the form of the statement is unimportant to a determination of validity. Here the agency explained, and the recommended order clearly stated, that DOT’s former practice was in violation of Ch. 479’s requirement that all outdoor advertising signs be removed which failed to display current permit tags. The order concluded by stating the failure of DOT to exercise its enforcement powers did not give White the right to violate the clear, unambiguous requirements of the law. The order, in my opinion, sufficiently explained the deviation for judicial review. Section 120.68(12)(b). Absent the fact of defective notice, I fail to find any impairment in the fairness of the proceedings or the correctness of the action taken by the agency’s departure from its prior incorrect practice, and would otherwise affirm the order requiring removal of the sign.

      . Which provided that on or before November 1 of each year, DOT shall send to each permit-tee a notice of fees due on all permits. The permittee was given 60 days from receipt of notice to pay the fees due. Section 479.07(3) was amended by Ch. 78-138, effective June, 1978, and now requires the permittee be given two notices.

      . A rule — like a statute — does not have prospective effect only. The test applied by the United States Supreme Court as to whether a retroactive change in an agency’s practice should be sustained was to balance the effect of the change “against the mischief of producing a result which is contrary to a statutory design or to legal and equitable principles.” SEC v. Chenery Corp., 332 U.S. 194, 203, 67 S.Ct. 1575, 1580, 91 L.Ed. 1995, 2003 (1947). Professor Davis considers the Chenery decision sound since “[i]t is retroactive change in settled law, not retroactive clarification of uncertain law, that may be unfair, and the law or policy that the SEC was changing or developing was highly uncertain, not settled.” 2 K. Davis, Administrative Law Treatise 544 (1958).

      .Cases which have invalidated agency statements because they were not regularly adopted include Price Wise Buying Group v. Nuzum, 343 So.2d 115 (Fla. 1st DCA 1977) (statement was a rule which expressly repealed the agency’s declaratory statement); State, Dept. of Administration v. Stevens, 344 So.2d 290 (Fla. 1st DCA 1977) (agency guidelines for laying off employees were rules because they attempted to create certain rights and adversely affect others); State, Dept. of Admin., etc., Person, v. Harvey, 356 So.2d 323 (Fla. 1st DCA 1977) (minimum training and experience requirements were unpublished rules). Other agency actions were validated because their functions were not rules: Mitchell v. School Bd. of Leon Cty., 347 So.2d 805 (Fla. 1st DCA 1977) (staff reorganization plan which terminated a continuing contract position); Hill v. School Bd. of Leon County, 351 So.2d 732 (Fla. 1st DCA 1977) (discontinuation of practice which afforded county paid transportation on dangerous routes to school children); State, Dept. of Com., etc. v. Matthews Corp., 358 So.2d 256 (Fla. 1st DCA 1978) (wage rate determinations which applied only to a specific contract at a specific location).

      . Cf. McDonald v. Dept. of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977); General Dev’pt Corp. v. Division of State, 353 So.2d 1199 (Fla. 1st DCA 1977); Fraser v. Lewis, 360 So.2d 1116 (Fla. 1st DCA 1978).

      . Professor Davis’ solution to deciding whether such borderline activities should be validated is “to avoid classifying them — to skip the label-ling and to proceed directly to the problem at hand. Thus, if the problem is to determine appropriate procedure for a particular activity, the practical procedural needs may be studied without calling the activity either rulemaking or something else; . . . 1 K. Davis, supra note 2 at 286.

      . This standard was first intimated in Mitchell v. School Bd. of Leon Cty., supra note 3, where we stated that the agency’s failure to file a proposed rule with DOAH at least 21 days before its intended action (then required by § 120.54(3), Fla.Stat. (Supp.1974), since repealed) “did not impair the ‘fairness of the proceedings or the correctness of the action.’ ” Id. at 807. (Footnotes omitted.) We have also applied § 120.68(8)’s standard when reviewing violations of § 120.59(l)(b), requiring that final orders be rendered in writing within 90 days after the recommended order is submitted to the agency for approval, G. & B. of Jacksonville, Inc. v. Dept. of Business Reg., 362 So.2d 951 (Fla. 1st DCA 1978), and when determining whether to assess fees against an agency, as permitted by § 120.57(l)(b)9, and in favor of the prevailing party. Jess Parrish Memorial Hospital v. PERC, 364 So.2d 777 (Fla. 1st DCA 1978).

      . An article by Cohen and Rabin, Broker-Dealer Selling Practice Standards: The Importance of Administrative Adjudication in Their Development, 29 L. and Contemp.Prob. 691, 714 (1964), favors “the flexibility afforded by the case method because of the discretion it offers in terms of application of the principle announced in a particular case and the opportunity for further refinement or modification in later cases.” And, while a formal rule is evaluated “in terms of the maximum possible scope of its language . . ., a statement in an adjudicatory opinion is evaluated against the specific factual context. Id. at 716-17.

      . There is authority placing the decision on whether to proceed “by general rule or by individual, ad hoc litigation ... [as lying] primarily in the informed discretion of the administrative agency.” SEC v. Chenery Corp., supra note 2, 332 U.S. at 203, 67 S.Ct. at 1580, 91 L.Ed. at 2002.


text:
    Joe CARTER, Appellant, v. STATE of Florida, Appellee.
    No. LL-159.
    District Court of Appeal of Florida, First District.
    March 6, 1979.
    Joe Carter, in pro per.
    Jim Smith, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellee.
   PER CURIAM.

An information charged Carter with two counts of aggravated assault and one count of criminal mischief. Pursuant to plea negotiations, Carter entered a plea of guilty to one count of aggravated assault, and the remaining charges were nolle prosequied. In accordance with the plea negotiations, the prosecutor recommended that Carter be placed on probation. The court accepted Carter’s plea after advising him that the recommendation for probation was not binding upon the court. After reviewing a pre-sentence investigation report, the court sentenced Carter to a five year term for aggravated assault. Subsequently, Carter filed a motion to vacate the sentence, Fla.R. Cr.P. 3.850, alleging that the trial court did not honor the negotiated plea agreement by sentencing Carter to five years imprisonment. Further, Carter alleged that he had been sentenced without aid of counsel and that he had not been advised that a plea of guilty waived his right to a jury trial. The trial court, after reviewing the record of the proceedings, found that the records conclusively showed that Carter was entitled to no relief. On Carter’s appeal, we found that the court’s order lacked attached copies “of that portion of the files and records which conclusively [show] that the prisoner is entitled to no relief . . . Fla.R. Cr.P. 3.850. After having received the state’s response and the supplemented record, we have determined that the transcripts reveal that Carter’s plea was freely and voluntarily made with the assistance of counsel and with the clear understanding that the recommendation by the state for probation was not binding upon the court. Accordingly, the order denying appellant’s 3.850 motion without evidentiary hearing is affirmed.

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