text:
    Sonya GOLDEN, Appellant, v. Gary GOLDEN, Appellee.
    No. 77-2081.
    District Court of Appeal of Florida, Third District.
    March 7, 1978.
    Rehearing Denied April 21, 1978.
    Joseph Teichman, Hollywood, for appellant.
    Fields & Garfield, Fort Lauderdale, for appellee.
    Before PEARSON, NATHAN and HUB-BART, JJ.
   PEARSON, Judge.

This interlocutory appeal is by the former wife in a dissolution of marriage proceeding. She appeals a post-judgment order denying her motion for enforcement of the final judgment of dissolution by requiring the former husband to pay tuition expenses of a minor child. The trial judge dismissed the motion by an order which stated the grounds to be: . that this court lacks jurisdiction to consider the Petition for Tuition Expenses of the Respondent, Sonya Golden, and the petition is hereby dismissed.”

The determinative question presented on this appeal is whether the trial court correctly held that it did not have jurisdiction to consider the petition. The following facts of the case are considered salient to this holding: A final judgment of dissolution of marriage was entered on June 21, 1973. Included in the final judgment was a provision on the support and education of the minor son:

“2. The parties dictated a stipulation agreement into the record during the trial of this cause which was held in Dade County, Florida, on June 21st, 1973. That the Stipulation was approved by the Court and by reference, the same is fully incorporated in this Final Judgment. The Court will set out the salient features of the parties’ agreement, which is now the Order of the Court, viz-a-viz: ******
“(E-l) The Petitioner will provide, if financially able, his son, Douglas, with the funds necessary to attend college for four years (if Douglas so desires). Tuition, room, board and all necessary and reasonable expenses shall be borne by the Petitioner for this purpose.”

It is apparent that a trial court has jurisdiction to enforce a formal agreement between the parties with respect to the maintenance of children when that agreement is made a part of the final judgment. See Zakoor v. Zakoor, 240 So.2d 193 (Fla. 4th DCA 1970).

Appellee husband proposes that jurisdiction does not rest because the petition was improperly drawn in that it was necessary for appellant, as a petitioner for tuition expenses for her son, to allege that appellee was financially able to provide said tuition expenses. Owca v. Zemzicki, 137 So.2d 876 (Fla. 2d DCA 1962); and Fla.R. Civ.P. 1.190(b). It is true that the obligation for support and tuition expenses is contingent upon a finding by the court that appellee is financially capable. But that determination can only be made after the taking of evidence. The appellee must be presumed capable until a change of circumstances is shown.

We conclude that appellee’s objections are premature and are such as could be made after the presentation of evidence. The court has jurisdiction to proceed to hear the petition, and the petition must be granted or denied according to the evidence presented.

Reversed and remanded with directions.


source: Caselaw Access Project

author:
PER CURIAM.
      ANSTEAD, Judge,

license: Public Domain

text:
    WHITEHALL SOUTH ASSOCIATION, INC., a Florida Corporation not for profit, in its own behalf and on behalf of its members; and Joseph Castiello and Jean Castiello, his wife, Individually and on behalf of all others similarly situated, Appellants, v. RADICE REALTY & CONSTRUCTION CORP., a Pennsylvania Corporation, et al., Appellees.
    No. 76-2610.
    District Court of Appeal of Florida, Fourth District.
    March 7, 1978.
    Rehearing Denied April 11, 1978.
    Stephen Lipton and Deborah Bovarnick of Becker, Poliakoff & Sachs, P. A., Miami Beach, for appellants.
    M. A. Galbraith, Jr., and Cormac C. Cona-han, Boca Raton, for appellees City of Boca Raton and Frank Burther.
   PER CURIAM.

AFFIRMED.

DAUKSCH, J., and CRAWFORD, GRADY L., Associate Judge, concur.

ANSTEAD, J., concurs specially, with opinion.

ANSTEAD, Judge,

concurring specially:

The trial court dismissed a suit brought by condominium apartment owners against the City of Boca Raton and its building inspector. The suit was for damages for alleged defects in the condominium structure and sought to impose liability on the city and its employee on the basis of alleged negligent inspections by the building inspector which failed to detect the defects claimed.

The trial court dismissed the action on the authority of Modlin v. City of Miami Beach, 201 So.2d 70 (Fla.1967). I think the trial court was correct. In Modlin the Supreme Court held that a municipality was not liable for the negligence of its building inspector, because the building inspector himself owed no duty to any particular person (other than his employer, perhaps); but rather owed a duty to the public generally, the breach of which would not give rise to a private action in tort.

      . This action predates the enactment of Section 768.28, Florida Statutes (1975) regarding the waiver of sovereign immunity in tort actions.


author: HUBBART, Judge.

text:
    RAYAN CORPORATION, INC., a Florida Corporation, Appellant, v. BOARD OF COUNTY COMMISSIONERS OF DADE COUNTY, a political subdivision of the State of Florida, and Joseph B. Reisman, Trustee and Fairland, Inc., Appellees.
    No. 76-1689.
    District Court of Appeal of Florida, Third District.
    March 14, 1978.
    Rehearing Denied April 21, 1978.
    Gilbride & Heller, Miami, for appellant.
    Stuart Simon, County Atty. and Stanley Price, Asst. County Atty., Sy Chadroff, Miami, and Charles L. Curtis, Tallahassee, for appellees.
    Before PEARSON, NATHAN and HUB-BART, JJ.
   HUBBART, Judge.

The controlling issue raised by this appeal is whether a person owning a liquor business has standing to legally challenge a zoning decision which adversely affects his business by permitting the establishment of a nearby competitive liquor business. We hold that a person so affected has the requisite standing to legally challenge such a zoning decision.

The facts are undisputed. The appellant Rayan Corporation, Inc., owns the Cutler Ridge Liquor Store located at 20101 South Dixie Highway in Dade County, Florida. The appellees Joseph B. Reisman and Fair-land, Inc., own property approximately 550-600 feet away. The appellees sought a zoning variance on their property so that they could build a “Big Daddy’s” package liquor store and lounge thereon. Admittedly, the variance if granted would adversely affect the appellant’s liquor business.

The Dade County Zoning Appeals Board denied the appellees’ application for a zoning variance. On appeal, the Board of County Commissioners of Dade County reversed this decision and by resolution granted the requested zoning variance. The ap-pellees now concede that the Board’s decision herein was not fairly debatable because no showing of a zoning hardship was ever made. Dade County v. Frank N’ Bun Operating Co., 169 So.2d 875 (Fla. 3d DCA 1964). The Circuit Court for the Eleventh Judicial Circuit of Florida denied the appellant’s petition for a writ of certiorari from the Board’s decision. This appeal follows.

The law is clear that a person has standing to legally challenge a zoning decision if he has “a legally recognizable interest which is or will be affected by the action of the zoning authority in question.” Renard v. Dade County, 261 So.2d 832, 837 (Fla.1972). The owner of a liquor business, which is or would be affected by a zoning decision permitting the establishment of a nearby competing liquor store, has a legally recognized interest sufficient to confer upon the said owner requisite standing to legally challenge the action of the zoning authority in question. ABC Liquors, Inc., v. Skaggs-Albertson’s, 349 So.2d 657 (Fla. 4th DCA 1977). This established law is in accord with the well-settled rule that a liquor licensee has standing to legally challenge the grant of a liquor license to a business competitor solely on the basis of adverse economic competition. Keating v. State, 173 So.2d 673, 675-676 (Fla.1965). To the extent that Skaggs-Albertson’s Properties, Inc. v. Michels Belleair Bluffs Pharmacy, Inc., 332 So.2d 113, 116 (Fla. 2d DCA 1976) cert. den. 346 So.2d 537 (Fla.1977), states a contrary rule, we decline to follow it.

The appellant is the owner of a liquor store whose business is or will be adversely affected by the zoning variance granted by the Dade County Board of County Commissioners and, accordingly, has the requisite standing to challenge the zoning decision herein. And the zoning variance itself is conceded by all parties to be invalid. In all fairness to the trial court, this concession did not come until oral argument before this court.

The decision of the circuit court below is, therefore, reversed with directions to grant the appellant’s petition for a writ of certio-rari and quash the zoning resolution in question passed by the Board of County Commissioners of Dade County.

Reversed.


author: KEHOE, Judge.

text:
    Sheldon B. BOGEN and Gloria Bogen, his wife, Appellants, v. Louis FLORIO and Angela Florio, his wife, Appellees.
    Nos. 77-1745 and 77-2090.
    District Court of Appeal of Florida, Third District.
    March 14, 1978.
    Rehearing Denied April 17, 1978.
    Sheldon B. Bogen, in pro. per.
    George Clark Smith, Miami, for appellees.
    Before HAVERFIELD, C. J., and HUB-BART and KEHOE, JJ.
   KEHOE, Judge.

We have carefully reviewed each of the points raised by appellants in their briefs in these consolidated appeals (no oral argument was requested). This review was made in the light of the applicable law as to each contention. The results of this review have led us to the conclusion that no reversible error has been demonstrated. Therefore, because appellants have failed to clearly show any such error, the actions of the trial court appealed are affirmed. See, e. g., Egidi Industrial Park Corp. v. Wide Open Spaces, Inc., 335 So.2d 870 (Fla. 3d DCA 1976); Castellanos v. Hialeah-Miami Springs First State Bank, 330 So.2d 100 (Fla. 3d DCA 1976); Strata v. Strate, 328 So.2d 29 (Fla. 3d DCA 1976); and Fernandez v. Arocha, 308 So.2d 45 (Fla. 3d DCA 1975). See generally 2 Fla. Jur. Appeals §§ 314 and 316 (Cum.Supp. 1978).

Affirmed.


author: PER CURIAM.

text:
    Nancy F. McCUE, Appellant, v. CITY OF NORTH MIAMI, a Florida Municipal Corporation, Appellee.
    No. 77-2512.
    District Court of Appeal of Florida, Third District.
    March 14, 1978.
    Rehearing Denied April 17, 1978.
    Martin D. Kahn, North Miami, for appellant.
    Willard K. Splittstoesser, Acting City Atty. and John H. Lipinski, Asst. City Atty., for appellee.
    Before HAVERFIELD, C. J., and PEARSON, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed upon authority of McCue v. City of North Miami, 348 So.2d 968 (Fla.3d DCA 1977).


author: DANAHY, Judge.

text:
    Verden J. PRATT et al., Appellants, v. Arthur DURKOP, etc., et al., Appellees.
    No. 77-763.
    District Court of Appeal of Florida, Second District.
    March 15, 1978.
    Rehearing Denied April 19, 1978.

      Verden J. Pratt, in pro per.
    Mark Hicks of Blackwell, Walker, Gray, Powers, Flick & Hoehl, Miami, for appel-lees The Gillette Co.
   DANAHY, Judge.

Appellants were plaintiffs below in this action for wrongful death. They appeal an order of the trial judge dismissing their amended complaint with prejudice.

Plaintiffs/appellants filed their first complaint on January 26, 1976, the last day of the two-year limitations period prescribed by Section 95.11(4)(d), Florida Statutes (1975), applying to actions for wrongful death. The record does not reveal the reason, but it is clear that no summons was issued with respect to that complaint.

Plaintiffs/appellants filed an amended complaint on January 25, 1977. Summons was issued the next day and service of summons was made on defendant/appellee The Gillette Company on February 1, 1977. Gillette raised the defense of the statute of limitations, contending that the timely filing of the original complaint did not toll the running of the statute of limitations because summons with respect to that complaint was not issued “forthwith” as required by Fla.R.Civ.P. 1.070(a). The trial judge agreed and dismissed the cause with prejudice. We reverse.

Our decision is based on what we perceive to be the proper interpretation of Fla.R. Civ.P. 1.050 and 1.070(a) when read in conjunction with Section 95.11(4)(d), Florida Statutes (1975). Rule 1.050 provides:

Every action of a civil nature shall be deemed commenced when the complaint or petition is filed except that ancillary proceedings shall be deemed commenced when the writ is issued or the pleading setting forth the claim of the party initiating the action is filed. (Emphasis added).

Rule 1.070(a) provides as follows:

Upon the commencement of the action summons or other process authorized by law shall be issued forthwith by the clerk or judge under his signature and the seal of the court and delivered for service without praecipe. (Emphasis added).

Section 95.11 provides, in subparagraph (4)(d), as follows:

Limitations other than for the recovery of real property.
Actions other than for recovery of real property shall be commenced as follows:
(4) Within two years
(d) an action for wrongful death. (Emphasis added).

As to when an action is commenced for purposes of our statute of limitations, we have found only one expression by the Supreme Court of Florida. In Klosenski v. Flaherty, 116 So.2d 767 (Fla.1960), a presumably valid service of summons on the defendant was made, but the return of service was lost. In the context of that factual situation, the supreme court made the following observation:

It should be noted that, since the repeal of Section 95.01, Fla.Stat., by Chapter 29737, Laws of Florida, Acts of 1955, F.S.A., the provisions of Rule 1.2 [now Rule 1.050], Fla.Rules Civ.Proc., are controlling, so that the statute of limitations is tolled by the filing of the complaint in a civil action.

In McArthur v. St. Louis-San Francisco Railway Company, 306 So.2d 575 (Fla. 1st DCA 1975), cert. denied, 316 So.2d 293 (Fla.1975), the District Court of Appeal, First District, had occasion to consider the question now before us. In that case, the complaint was filed within the applicable limitations period, but service of process was .not made until two weeks later, after the limitations period expired. The court held that the commencement of the action by the filing of the complaint met the requirements of Section 95.11. The court made it clear that the action was not barred simply because service of process took place after the expiration of the limitations period. As to the “forthwith” command of Rule 1.070(a), the court held that the requirement of prompt issuance of the summons without praecipe applies to the clerk or judge and not to the plaintiff. We agree.

In the case before us, there was a twelve-month delay in issuance and service of summons. The question is whether that long a delay should cause us to reach a result different from that in McArthur, supra, where there was only a two-week delay. We think not.

We find persuasive a decision of the United States Court of Appeals for the Eighth Circuit in Moore Co. of Sikeston, Mo. v. Sid Richardson Carbon & Gas Co., 347 F.2d 921 (8th Cir. 1965), cert. denied, 383 U.S. 925, 86 S.Ct. 927, 15 L.Ed.2d 845 (1966), which considered a twenty-month delay in service of process. The action there was a federal antitrust action and a federal statute of limitations applied. The court was called upon to construe two federal rules of civil procedure which are the counterparts of Fla.R.Civ.P. 1.050 and 1.070(a). They are:

Rule 3. Commencement of action. A civil action is commenced by filing a complaint with the court.
Rule 4. Process. (a) Summons: Issuance. Upon the filing of the complaint the clerk shall forthwith issue a summons and deliver it for service to the marshal or to a person specially appointed to serve it. Upon request of the plaintiff separate or additional summons shall issue against any defendants.

The issue before the court was whether the filing of the complaint, without more, was a commencement of the action sufficient to toll the statute of limitations or whether, as defendant contended, in addition to the filing of the complaint, reasonable diligence in obtaining service of process was required.

In its decision for the plaintiff, the court of appeals specifically held that the “forthwith” requirement of Federal Rule 4(a) places a duty on the clerk to issue summons forthwith and to deliver it for service. The court went on to say that the mere filing of a complaint stops the running of the federal statute of limitations and that the only diligence required by the federal rules is in the filing of the complaint.

Based on these authorities, we hold that the requirement of the Florida statute of limitations is met when an action is commenced within the applicable limitations period, and that, under our rules of civil procedure, an action is commenced by the filing of a complaint.

We realize that, while the rule does not so provide, it is normal practice for attorneys to prepare summons or other process, obtain its issuance by the clerk, and deliver it for service; the clerk does not, as a rule, initiate the procedure for issuance of the process nor does he deliver it for service. Thus delay, if any, will usually be attributable to plaintiff’s counsel. Nevertheless, we believe that the “forthwith” requirement of Rule 1.070(a) clearly applies to public officials (the clerk or judge), not to plaintiffs.

Urging a different result, Gillette argues that not to require due diligence on the part of a plaintiff in service of summons would produce a situation in which plaintiffs, after the timely commencement of their actions, fail to obtain service of process and merely file pleadings annually to avoid dismissal for failure to prosecute, while in the meantime, defendants are unaware of the actions, witnesses disappear, and evidence grows cold. We believe that, in addition to the authority of the court to dismiss for failure of plaintiff to prosecute, the desire of plaintiffs generally to prosecute their cases and preserve evidence can be relied upon to prevent such a result. In any event, we cannot judicially engraft upon a rule of civil procedure a condition setting a time limitation for issuance and service of process, whether a fixed time or a requirement of due diligence. We simply hold that no such time limitation can be found in our present rules.

This case is reversed and remanded with instructions to reinstate plaintiffs/appellants’ amended complaint.

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

      . Whether dismissal under Fla.R.Civ.P. 1.420(e) could thus be avoided seems doubtful.

      . A time limitation was once proposed for Federal Rule 3 (commencement of action), but rejected. See Messenger v. United States, 231 F.2d 328 (2d Cir. 1956).


author: RYDER, Judge.

text:
    AMERICAN EMPLOYERS INSURANCE COMPANY (now Commercial Union Insurance Company) and Construction Sales and Rental Equipment, Inc., Appellants, v. Eugene Harrison YEOMANS, Sentry Indemnity Company, Allstate Insurance Company, Howard Stafford, etc., David James Barnes and William Hill, Appellees.
    No. 77-652.
    District Court of Appeal of Florida, Second District.
    March 17, 1978.
    As Modified On Denial of Rehearing April 26, 1978.

      James E. Tribble of Blackwell, Walker, Gray, Powers, Flick & Hoehl, Miami, for appellants.
    Samuel V. Johnson of Johnson & Mock-ler, Fort Myers, for appellee Eugene Harrison Yeomans.
    Gerald W. Pierce of Henderson, Franklin, Starnes & Holt, Fort Myers, for appellee Sentry Indemnity Co.
    Douglas P. Lawless of Dart, Dickinson, O’Riorden, Gibbons & Quale, P. A., Sarasota, for appellee Allstate Ins. Co.
    Wagner, Cunningham, Vaughan & Genders, Tampa, and Robert Orseck of Pod-hurst, Orseck & Parks, P. A., Miami, for appellees Stafford, Barnes and Hill.
   RYDER, Judge.

This is an appeal from a final judgment on cross-claims determining insurance coverage between various carriers. Several complex questions of insurance law are presented. We affirm in part and reverse-in part.

On March 7, 1972, Pamela Stafford, a minor, David James Barnes and William Hill [plaintiffs] were riding in an automobile which collided with the rear part of an empty eighteen foot, flat deck, three-axle trailer being towed by a two-ton, six-wheel, flatbed International truck (27 feet in length). The trailer was attached to the truck with a pintle hook and safety chains.

The truck was owned and driven by Eugene Harrison Yeomans [Yeomans]. The trailer was owned by Construction Sales and Rental Equipment, Inc. [Construction]. Construction is in the business of renting construction vehicles and trailers.

During the six months prior to the accident, Yeomans had periodically used the trailer for a day or two at a time in his business of clearing land. The record reveals there had been some discussion about Yeomans purchasing the trailer from Construction. Yeomans did not pay Construction each time he used the trailer but as he “got the chance.” The payments were credited to the purchase price. The trailer was also available for rental by others at a rate of $15.00 a day.

Yeomans was not engaged in any business purpose at the time of the collision, but rather as a favor to a friend who was in the business of laying sod, Yeomans had delivered some free sod to a little league baseball field and was returning home when the accident occurred.

Plaintiffs, thereafter, filed negligence actions [consolidated below] naming as defendants Yeomans; Sentry Indemnity Company [Sentry], Yeomans’ liability insurer under a policy describing the truck that he was driving at the time of the accident; Allstate Insurance Company [Allstate], Yeomans’ insurer under a policy listing two of his vehicles other than the truck involved in the accident; Construction; and American Employers Insurance Company [American], the insurer of Construction under a policy listing various vehicles including the trailer involved in the accident.

American, Allstate and Sentry answered and pleaded their respective policies did not provide coverage to Yeomans for the accident. Also, each insurer and Construction filed cross-claims for indemnity against the other insurers and Yeomans. Substantial discovery was had. The defendants/cross-claimants stipulated that the trial court would determine the issues of insurance coverage on the basis of legal memoranda. The trial court approved this stipulation by order dated July 26, 1976, and each defendant filed memoranda with the court.

On March 18,1977 the trial court entered final judgment on the cross-claims, making no express findings of fact, but adjudging that American’s policy provided coverage to Yeomans for the accident; further, that neither Allstate’s policy nor Sentry’s policy provided coverage to Yeomans for the accident; and that the cross-claims between Allstate and Sentry were moot because coverage was not afforded for the accident under either policy.

Thus, judgment was rendered in favor of both Allstate and Sentry on their cross-claims against American and Construction. Judgment was also entered in favor of Allstate, Sentry and Yeomans on American’s and Construction’s cross-claims against them. The court also entered judgment in favor of Sentry on its cross-claim against Yeomans.

American and Construction timely filed a notice of appeal to review the final judgment on cross-claims and assigned as error the trial court’s adjudication that the policy between American and Construction afforded coverage to Yeomans for this accident and, additionally, the adjudication that neither the policy between Yeomans and Allstate nor the policy between Yeomans and Sentry afforded coverage to Yeomans for this accident.

We have thoroughly reviewed the extensive record and the briefs in this complex matter, and we reverse the trial court’s adjudication that American’s policy provided coverage to Yeomans for the accident and affirm the trial court’s adjudication that neither Allstate nor Sentry’s policy provided coverage to Yeomans for the accident for the reasons hereinafter expressed.

THE AMERICAN POLICY

As noted above, the trial court determined that the American policy afforded coverage to Yeomans for this accident. When the accident occurred, Yeomans was driving his truck and towing a trailer owned by Construction. American is the liability insurance carrier of Construction pursuant to a policy which describes numerous vehicles including the trailer involved herein.

Appellee/defendant Yeomans argues that he is a person insured under the American policy by virtue of the policy provision that states:

II. PERSONS INSURED
H: sfc sfc * * sji
(c) any other person while using an insured automobile with the permission of the named insured, . . .

Yeomans further notes that the American policy definition of “automobile” includes a “trailer” and, thus, the trial court was correct in deciding that the American policy afforded coverage to him.

With this contention, we cannot agree. Yeomans’ argument is correct only insofar as it posits that Yeomans was a “person insured” pursuant to the above-quoted omnibus clause of the American policy. The fatal flaw of this argument and, indeed, the final judgment regarding American and Yeomans lies in the fact that the very section of the American policy [“Persons Insured”] relied upon by Yeomans goes on to provide an exclusion from coverage with respect to the specific type of use and occurrence at issue herein. The American policy further states:

II. PERSONS INSURED
* * * * * *
None of the following is an insured: * * * * * *
(iv) any person or organization, other than the named insured, with respect to:
(2) a trailer while used with any motor vehicle owned or hired by such person or organization and not covered by like insurance in the company.

Appellants American and Construction strongly argue that the facts of this case fit squarely within said exclusion and reiterate that the named insured of the American policy is, of course, Construction; the trailer is indeed described in the American policy; and the vehicle towing the trailer at the time of the accident was owned by Yeo-mans and was not covered by any insurance with American.

In our view, appellants’ argument is well taken, and the exclusion applies to the instant facts. The applicability of the exclusion may be more clearly illustrated by inserting the name of the person seeking coverage, Yeomans, in the exclusionary provision. If this is done, the exclusion reads:

None of the following is an insured:
* * * * sfs *
(iv) Yeomans . . . with respect to:
He sfc sfc * sfc sf:
(2) a trailer while used with any motor vehicle owned ... by Yeomans and not covered by like insurance in the company.

In this regard, this court’s decision in Liberty Mutual Insurance Company v. Sentry Insurance Company, 288 So.2d 556 (Fla. 2d DCA 1974), involving similar facts and policy provisions, is controlling in favor of appellants herein. There, Fashion-Craft owned a trailer. Hardware issued a liability policy to Fashion-Craft which specifically covered the trailer. Ryder owned a tractor which it leased to Fashion-Craft. A Liberty liability policy, naming Ryder and Fashion-Craft as insureds, listed the tractor. While one Hibbs was driving the tractor and towing the trailer, an accident ensued with plaintiffs therein. This court construed an exclusion in the Hardware policy that is identical in its material respects with the American policy exclusion now under consideration. We held that the Hardware policy did not afford coverage to Fashion-Craft for the accident because the trailer was being used with a tractor hired by Fashion-Craft which was not insured by Hardware. Thus, the exclusion was effective as to Fashion-Craft. See the discussion in this court’s opinion in Liberty Mutual, supra, 288 So.2d at 558.

In light of the foregoing, the trial court erred in that portion of the final judgment on cross-claims adjudging that the policy between American and Construction afforded coverage to Yeomans for this accident and, further, by rendering judgment accordingly on behalf of Allstate on its cross-claim against American, on behalf of Sentry on its cross-claim against American and Construction, and on behalf of Allstate, Sentry and Yeomans on the cross-claim of American and Construction against them. In these respects, we reverse.

THE ALLSTATE AND SENTRY POLICIES

For the reasons hereinafter expressed, we affirm the final judgment on cross-claims with respect to its adjudication that neither the Allstate nor the Sentry policy afforded coverage to Yeomans for this accident and entry of judgment on the various cross-claims accordingly.

It will be recalled that Yeomans was the named insured in the Allstate policy listing two of his automobiles, other than his truck which he was driving at the time of this accident. The terms of the Allstate liability policy provide bodily injury and property damage coverage for the insured, Yeomans, arising out of the use “of the owned automobile or a non-owned automobile.” Further, the policy states, “ ‘Non-owned automobile’ means an automobile, including a trailer, not owned by the named insured . ” and then provides that “ ‘trailer’ means a trailer designed for use with a private passenger automobile, if not being used for business or commercial purposes with other than a private passenger, farm or utility automobile.”

The trial court determined that no coverage was afforded to Yeomans by the Allstate policy, and we think this was correct. The judge made no express findings of fact or law, preliminary to his ultimate determination of no coverage, but we think that the record fully supports an implicit finding that the trailer involved herein [see the first portion of this opinion for its description] was not designed for use with a private passenger automobile. Therefore, it does not come within the Allstate policy definition of “trailer” and is not a “non-owned automobile” for which liability coverage is afforded.

In this regard, it is our view that the policy term “ ‘designed for use with a private passenger automobile’ ” is not synonymous with “ ‘capable of being drawn and towed’ by a private passenger automobile” because such a construction would render the policy term meaningless. “[OJbviously something which cannot be drawn or towed will never become involved in an accident, at least one between moving vehicles. . On the other hand, ‘designed for use with’ seems to us to connote an object planned with a particular use in mind and so manufactured as to serve that use with reasonable efficiency and safety.” Liberty Mutual Insurance Company v. Allied Mutual Insurance Company, 442 F.2d 1151, 1153 (10th Cir. 1971). See also Amco Insurance Company v. Chesley, 95 Idaho 161, 504 P.2d 1210 (1972).

Turning now to the Sentry policy, it will be recalled that Yeomans was the named insured of the liability policy which described his International truck, which he was driving at the time of this accident. The trial court determined that no coverage by Sentry existed for this accident, and we share that view.

The Sentry policy declares, “Each of the following is an insured under this insurance to the extent set forth below: (1) the named insured.” However, the same section of the policy goes on to provide:

None of the following is an insured: £ ‡ $ ‡ * *
(iv) any person or organization, with respect to:
(1) a motor vehicle while used with any trailer owned or hired by such person or organization and not covered by like insurance in the company (except a trailer designed for use with a private passenger automobile and not being used for business purposes with another type motor vehicle)

The record discloses that the trailer owned by Construction was “hired” by Yeo-mans. Although the record is somewhat unclear as to the exact nature of the agreement between Construction and Yeomans, apparently an oral lease-purchase arrangement, the record reveals that there was monetary consideration for Yeomans’ use of the trailer and not a mere gratuitous loan thereof. Since there was a monetary consideration, Yeomans “hired” the trailer and this requirement of the exclusion is met. See Boyington v. American Liberty Insurance Company, 284 Ala. 581, 226 So.2d 640 (1969).

Further, the trailer in question was not covered by like insurance in Sentry. Therefore, the exclusion applies. The exception to the exclusion would not apply because, consistent with the above discussion concerning the Allstate policy, we believe that the trial court made an implicit finding that the trailer involved herein was not designed for use with a private passenger automobile. The record fully supports this finding.

Further, we note that the Sentry policy — unlike the Allstate policy — contains a definition of the term “private passenger automobile”, stating that “ ‘private passenger automobile’ means a four-wheel private passenger or station wagon-type automobile and any automobile the purpose of use of which is stated in the declaration as pleasure and business use.” Yeomans’ International truck, described in the Sentry policy, does not fall within this definition of private passenger automobile because it has six wheels [two on the front axle and four on the rear axle], rather than four wheels; nor is the purpose of use of this truck stated in the declaration of the Sentry policy as pleasure and business use. Thus, the trial court correctly determined that the Sentry policy afforded Yeomans no coverage for this particular accident.

In summary, we conclude that no liability insurance coverage was afforded to Yeo-mans for this accident by the American, Allstate, and Sentry policies. Therefore, we reverse the trial court’s determination that American did cover Yeomans for this accident and affirm the trial court’s determination that Allstate and Sentry did not cover the accident for the reasons stated above.

Affirmed in part; reversed in part.

BOARDMAN, C. J., and GRIMES, J., concur.

      . Pamela’s father, Howard Stafford, sued individually and as next friend and natural guardian.

      . No brief was filed herein by appellees/plain-tiffs. Plaintiffs did file a pleading adopting certain portions of the briefs filed by the active appellees, so as to argue that each of the policies provided coverage to Yeomans for this accident.

      . At this juncture, we would point out that we went on to hold in Liberty Mutual, supra, that the driver, Hibbs, was not excluded from coverage under the Hardware policy because the tractor was neither owned nor hired by him. Of course, such is not the case here. As previously stated, Yeomans was both the owner and driver of the truck towing the trailer owned by Construction and insured by American. Thus, as stated above in the body of this opinion, Yeomans is clearly within the exclusion.

      . We note that Yeomans had added a “mobile equipment amendment” to his Sentry policy, but the trailer in question was not “mobile equipment” within the policy definition of that term and thus was not covered thereunder. No further discussion of this point is necessary.


text:
    The TRAVELERS INSURANCE COMPANY and the Travelers Indemnity Company, Appellants, v. Donald ALLEN, Individually, as surviving spouse, and as administrator of the Estate of Elizabeth Allen, Deceased, Appellee.
    No. 76-2052.
    District Court of Appeal of Florida, Third District.
    March 21, 1978.
    Rehearing Denied April 17, 1978.
    Joe N. Unger, Adams, George, Schulte & Ward, Miami, for appellants.
    Podhurst, Orseck & Parks, Preddy, Kut-ner & Hardy, Miami, for appellee.
    Before HAVERFIELD, C. J., and HUB-BART and KEHOE, JJ.
   HUBBART, Judge.

This is an action to confirm an arbitration award made pursuant to the uninsured motorist provisions of an automobile liability insurance policy. The court confirmed the award and the defendant insurance company appeals.

The issue presented for review is whether an insurance company may raise as a defense in an action to confirm an arbitration award entered against it that the total award exceeds the company’s applicable insurance policy limits if the company has failed to file a motion to vacate, modify, or correct the award on such grounds within ninety (90) days as required by Sections 682.13, 682.14, Florida Statutes (1975). We hold that the insurance company under such circumstances is precluded from raising such a defense and affirm the confirmation of the arbitration award herein.

The relevant facts in this cause are undisputed. On August 17, 1971, the plaintiff Donald Allen was operating a motor vehicle in which his wife was a passenger when he was involved in an accident with an uninsured motorist in Hollywood, Florida. As a result of the accident, the plaintiff was injured and his wife died. At the time of the accident, the plaintiff held an automobile liability insurance policy with Travelers Indemnity Co. which contained uninsured motorist coverage.

On March 17, 1972, the plaintiff individually and as the surviving spouse and administrator of his wife’s estate made a demand for arbitration with the American Arbitration Association on both his individual and derivative claims pursuant to the uninsured motorist provisions of his insurance policy with Travelers. After some negotiations and dealings between the parties which the plaintiff now claims constitute misconduct and negligence by Travelers, the parties apparently settled the derivative wrongful death claim, but later fell into a dispute about the applicable policy limits which has apparently yet to be resolved.

On August 28,1973, the matter proceeded to arbitration on the plaintiff’s individual claim. The plaintiff demanded $250,000 urging that he legally had claims against Travelers in that amount arising out of various aspects of Traveler’s alleged conduct touching upon their policy obligations. The arbitrators took testimony and made a written award in the amount of $125,000 for the plaintiff, with one of the three arbitrators dissenting.

On September 18, 1973, the arbitration award was mailed to and thereafter received by Travelers. Travelers refused to pay the arbitration award contending that they were only liable to pay $10,000 which they at that time contended were the applicable policy limits. They have since changed their position and now contend that the applicable policy limits are $20,000. At no time did Travelers file a motion to vacate, modify or correct the arbitration award pursuant to Sections 682.13, 682.14, Florida Statutes (1975).

On January 18, 1974, the plaintiff filed a complaint against Travelers in the Circuit Court for the Eleventh Judicial Circuit of Florida. Various causes of action sounding in tort and contract were alleged. In count V the plaintiff prayed that the $125,000 arbitration award against Travelers be confirmed pursuant to Section 682.12, Florida Statutes (1975). Travelers filed an answer and attacked the arbitration award as a nullity. The matter ultimately was heard non-jury by the circuit court solely as to count V of the complaint. A final judgment was thereafter entered confirming the arbitration award for the plaintiff in the amount of $125,000. This appeal follows.

The law is well-settled that a court must confirm an arbitration award upon application of any party to the award unless within ninety (90) days after receipt of the arbitration award a party thereto has filed a motion with the court to vacate, modify or correct the award. This ninety (90) day limit is subject to one exception: if a motion to vacate the award is based on corruption, fraud, or other undue means, the motion must be filed within ninety (90) days after such grounds are known or should have been known to the injured party. If an appropriate motion to vacate, modify or correct the award is not filed within the applicable time periods, the court has no alternative but to confirm the arbitration award. Carter v. State Farm Mutual Automobile Insurance Co., 224 So.2d 802 (Fla.1st DCA 1969); §§ 682.12, 682.13, 682.14, Fla. Stat. (1975). See: Component Systems, Inc. v. Murray Enterprises of Minnesota, Inc., 300 Minn. 21, 217 N.W.2d 514 (1974).

In the instant case, Travelers refused to pay the arbitration award herein and failed to file a motion to vacate, modify or correct the award upon the grounds which they now resist the enforcement of such award. No contention is raised that the award was based on corruption, fraud or undue means. Upon an action to confirm the arbitration award instituted some 112 days after the award was mailed to Travelers, the trial court had no alternative but to confirm the award.

Travelers contends that the arbitration award was outside the jurisdiction of the arbitrators to make because it exceeds the applicable policy limits which Travelers now contends is $20,000. In our view, Travelers has waived that objection by failing to file a timely motion to vacate the award on the basis that the arbitrators exceeded their powers. See: § 682.13(l)(c), Fla.Stat. (1975). Travelers may not raise this defense for the first time in an action to confirm the arbitration award herein.

The judgment appealed from is affirmed.


text:
    Conrad W. RAFIELD, Jr., Appellant, v. Douglas Neal BENHAM, Christine Bollong and Hans Jurgens Bollong d/b/a Christine’s House of Flowers, Teleflora Leasing, a division of Teleflora Delivery Service, Inc., and Lease Plan, Inc. and Hartford Accident and Indemnity Company, Appellees.
    No. 77-211.
    District Court of Appeal of Florida, Third District.
    March 21, 1978.
    Rehearings Denied April 21, 27, 1978.
    Bradford, Williams, McKay, Kimbrell, Hamann & Jennings and W. Sam Holland, Miami, for appellant.
    Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O’Hara and Richard A. Sherman, Miami, for appellees.
    Before HAVERFIELD, C. J., and NATHAN and HUBBART, JJ.
   PER CURIAM.

Affirmed. See Castaldo v. Singapore, J. F., Inc., 258 So.2d 499 (Fla. 3d DCA 1972) and cases cited therein.


text:
    Robert A. RAUTBORD and Robert L. Blum, Appellants, v. INDUSTRIAL AVENUE REALTIES, LTD., a corporation of the Province of Ontario, Canada, Appellee.
    No. 77-460.
    District Court of Appeal of Florida, Third District.
    March 21, 1978.
    Rehearing Denied April 21, 1978.
    Horton, Perse & Ginsberg, Starr W. Horton, Miami, for appellants.
    Cohen & Angel, North Miami, and Lawrence H. Rogovin, North Miami Beach, for appellee.
    Before HENDRY, NATHAN and KE-HOE, JJ.
   PER CURIAM.

Appellants/defendants appeal a summary final judgment entered in favor of appel-lee/plaintiff, which construed the obligations of the parties under a security agreement and two promissory notes. We reverse.

The two notes, which we identify as note number one and number two, were made in connection with a transaction involving the purchase and sale of certain real property, to-wit: Belle Plaza Apartments, and were in the amounts of $1,800,000 and $400,000, respectively. The issue involved in the litigation in the trial court was whether or not promissory note number two could be prepaid without the necessity of prior full satisfaction of note number one.

It was appellee’s view that under the terms of the notes, it could prepay the $400,000 and receive a discount in the amount of $250,000 without having to first pay the $1,800,000 note. In accordance with this view, appellee tendered payment in the amount of $150,000 to appellants. The tender was, however, refused and an action for declaratory judgment was thereafter instituted by appellee. The complaint sought a judicial determination of the various provisions of the security agreement and notes favorable to appellee’s contention. Appellants subsequently answered the complaint and interposed a counterclaim.

A pretrial conference was held by the court in preparation for a non-jury trial. The court, after discussing the issues with counsel for the parties and upon consideration of the various pleadings and exhibits, on its own motion, dismissed appellants’ counterclaim and granted a summary final judgment in favor of appellee on its complaint for declaratory judgment. In so ruling, the court held that appellee was entitled to discount the $400,000 second note without the necessity of prepayment in full of note number one, in the principal amount of $1,800,000. It is from the summary final judgment that appellants have appealed.

It is appellants’ contention that the pleadings, depositions, admissions and exhibits demonstrate that there are issues of fact yet to be decided precluding the entrance of summary judgment. In addition, appellants contend that the court erred in dismissing appellants’ counterclaim. We find merit in these contentions.

There was conflicting testimony before the court as to the meaning of the provision relating to the discount in the note and security agreement. Appellee was evidently in some doubt as to its rights under the notes and security agreement when it brought action for declaratory judgment. Appellants’ answer and counterclaim put in issue the material allegations of the complaint.

On appeal from a summary final judgment, the appellant is entitled to have the record viewed in a light most favorable to him with every reasonable inference of fact and intendment of testimony being indulged in his favor and against the movant for summary judgment. Robinson v. City of Miami, 177 So.2d 718 (Fla. 3d DCA 1965); Westinghouse Electric Supply Company v. Midway Shopping Mall, Inc., 277 So.2d 809 (Fla. 3d DCA 1973). The burden is thereupon placed upon the movant to conclusively show the non-existence of genuine issues of material fact. Brandeis v. Felcher, 211 So.2d 606 (Fla. 3d DCA 1968).

We have carefully considered the record on appeal and have concluded that there were material issues of fact to be determined and that appellee was not entitled to a summary judgment. In addition, appellee was not entitled to a dismissal of appellants’ counterclaim. Therefore, for the reasons stated, the summary final judgment is reversed and the cause remanded for further consideration of the issues raised in the complaint and counterclaim.

Reversed and remanded for further proceedings.


text:
    TRAVEL IS FUN, INC., Petitioner, v. William J. HARTNETT and Keystone Press of Miami, Inc., Respondents.
    No. 77-2381.
    District Court of Appeal of Florida, Third District.
    March 21, 1978.
    Rehearing Denied April 21, 1978.
    Timothy H. Kenney, Miami, for petitioner.
    Ritter & Ritter, Coral Gables, for respondents.
    Before HENDRY, HUBBART and KE-HOE, JJ.
   PER CURIAM.

By this petition for a writ of certiorari, the petitioner Travel Is Fun, Inc. seeks review of an order of the Circuit Court for the Eleventh Judicial Circuit of Florida affirming in its appellate capacity an order of the County Court of Dade County, Florida. Said county court order set aside two final summary judgments entered in favor of the petitioner and against the respondents William J. Hartnett and Keystone Press of Miami, Inc. in two consolidated county court actions. In our view, the county court had no jurisdiction to enter the order setting aside these final judgments because the said order was entered upon a motion filed by the respondents which cannot be construed as (1) a timely petition for rehearing under Fla.R.Civ.P. 1.530(a), (b), Fla.R.Sum.P. 7.020, or (2) a proper motion to vacate judgment under Fla.R.Sum.P. 7.190(b). As such, the circuit court departed from the essential requirements of law in affirming this order on appeal. Shelby Mutual Insurance Co. v. Pearson, 236 So.2d 1 (Fla.1970); Nahoom v. Nahoom, 341 So.2d 257 (Fla. 3d DCA 1977); Fiber Crete Homes, Inc. v. Division of Administration, 315 So.2d 492 (Fla. 4th DCA 1975); Investment Corp. of South Florida v. Florida Thoroughbred Breeders Ass’n, 256 So.2d 227 (Fla. 3d DCA 1972); In re Trust of Aston, 245 So.2d 674 (Fla. 4th DCA 1971).

The petition for writ of certiorari is granted, the order under review quashed, and the cause remanded with directions to reverse the county court order originally appealed from and to reinstate the final summary judgments entered herein.


author: PER CURIAM. BOYER, Judge,

text:
    William Clifford FIELDBINDER and Pacific Employers Insurance Company, Appellants, v. George O’Brien HILL and Dorothy Mae Hill, his wife, Appellees.
    No. FF-384.
    District Court of Appeal of Florida, First District.
    March 22, 1978.
    Rehearing Denied April 20, 1978.
    R. Dennis Comfort and Jack A. Langdon of Jones & Langdon, Gainesville, for appellants.
    Peter F. Laird, Gainesville, for appellees.
   PER CURIAM.

Upon considering the briefs, the record and oral argument, we find no reversible error.

Accordingly, the order appealed is affirmed.

McCORD, C. J., and MILLS, J., concur.

BOYER, J., concurs specially.

BOYER, Judge,

concurring specially.

Appellants, who were defendants in the trial court, seek reversal of an order of the trial judge granting a motion for new trial on the basis that the jury’s verdict amounted to only approximately two-thirds of the plaintiff’s claim for medical expenses and that the evidence was uncontradicted that the medical expenses were caused by the subject accident. I agree that our decision in Straker v. Lynch, 335 So.2d 356 (Fla. 1st DCA 1976) requires affirmance and that appellants’ reliance upon Perenic v. Castelli, 353 So.2d 1190 (Fla. 4th DCA, 1977) is misplaced, because of the distinguishing facts there that the evidence on damages was conflicting.

However, the arguments of counsel both in their briefs and on oral argdment lead me to believe that confusion exists, which should be cleared up, regarding the standards to be applied in the review of orders on motions for new trial following a jury verdict. The standards differ, depending upon whether appellate review is sought of an order of the trial court granting a new trial or whether the appellate court is asked on appeal to reverse an order of the trial court denying a motion for new trial.

We commence with the presumption that the actions of trial courts are presumed correct. That principle of law is so well settled as to require no citation of authority.

When a motion for new trial is made it is directed to the sound, broad discretion of the trial court. If he concludes that the jury verdict is contrary to the manifest weight of the evidence then it is his duty to grant a new trial. Inasmuch as the motion for new trial is directed to the exercise of a broad sound discretion vested in the trial judge, his order granting a new trial will not be disturbed in the absence of a clear showing that his discretion has been abused. (Cloud v. Fallis, 110 So.2d 669 (Fla.1959) and cases therein cited)

On the other hand, when this court is asked to reverse an order of the trial court denying a motion for new trial, viz: When an appellate court is asked to itself order a new trial, it is necessary for the appellate court to review the record, not for the purpose of applying the manifest weight of the evidence standard which is the prerogative of the trial judge, but rather to determine from the record whether a jury of reasonable people could have returned the verdict. (Griffis v. Hill, 230 So.2d 143 (Fla.1969) reh. den. 1970)

As stated by the Supreme Court in the last cited case:

“The test to be applied [by an appellate court] in determining the adequacy of a verdict is whether a jury of reasonable men [or women] could have returned that verdict. This test is simply stated but may be difficult to apply in a particular case. We are aware of the difficulties and frustrations courts experience in the search for the mythical jury of reasonable men. The appellate court must be ever alert against the temptation to substitute its ‘verdict’ for that of the jury. On the other hand, we must not refuse to act to relieve the injustice of either a grossly inadequate or excess verdict.” (230 So.2d at page 145: Bracketed words added)

In other words, as I conceive the holdings of the Supreme Court, a trial judge, in considering a motion for new trial following a jury verdict, applies the “manifest weight of the evidence” standard. An appellate court, on the other hand, applies the test as to whether a jury of reasonable persons could have returned the verdict. In each instance an appellate court must commence with the presumption that the order entered by the trial court is correct. (Cloud v. Fallis, supra)

I therefore concur in affirmance sub judi-ce.


text:
    Reuben W. CARLTON, Mrs. Margaret Carlton, Wayne Carlton, Mrs. Margaret Talbot, and Ru-Mar, Inc., a Florida Corporation, Appellants, v. The FLORIDA CITRUS COMMISSION, an Administrative agency of the State of Florida, and the Indian River Citrus League, a non-profit grower owned and grower controlled citrus fruit cooperative association in the State of Florida, Appellees.
    No. 76-1424.
    District Court of Appeal of Florida, Fourth District.
    March 28, 1978.
    Charles H. Damsel, Jr. and-Marjorie D. Gadarian of Jones, Paine & Foster, P.A., West Palm Beach, for appellants.
    Harry 0. Thomas and Robert P. Murray of Holland & Knight, Tampa, and Monterey Campbell of Dunlap, Coward & Blakeman, Bartow, for appellees.
   PER CURIAM.

In the trial court, the appellants, Reuben W. Carlton, Mrs. Margaret Carlton, Wayne Carlton, Mrs. Margaret Talbot, and Ru-Mar, Inc., sought to enjoin the appellee, The Florida Citrus Commission, from enforcing its regulations which prohibit the appellants from marketing their citrus fruit as “Indian River” fruit. The appellants sought the injunction on grounds similar to those successfully asserted by the grove owner in Florida Citrus Commission v. Owens, 239 So.2d 840 (Fla. 4th DCA 1969). However, the trial court, as the trier of facts, found that appellants did not meet the requirements for injunctive relief set out in Florida Citrus Commission v. Owens, supra, and denied appellants’ petition. We believe there is an adequate basis in the record to support the findings of the trial court. Accordingly, the final judgment is affirmed.

DOWNEY and ANSTEAD, JJ„ and DAKAN, STEPHEN LEE, Associate Judge, concur.


author: LETTS, Judge.

text:
    Chester KIMBROUGH, Appellant, v. STATE of Florida, Appellee.
    No. 76-1511.
    District Court of Appeal of Florida, Fourth District.
    March 28, 1978.
    Richard L. Jorandby, Public Defender, Larry S. Weaver, Asst. Public Defender, and Joseph R. Atterbury, Asst. Public Defender, West Palm Beach, for appellant.

      Robert L. Shevin, Atty. Gen., Tallahassee, Anthony J. Golden, and Charles A. Stampers, Asst. Attys. Gen., West Palm Beach, for appellee.
   LETTS, Judge.

The appellant was charged in Count I with attempted first degree murder with a firearm under Fla.Stat. 777.04(1), 777.-04(4)(a) and 782.04(l)(a). He was convicted of attempted murder in the second degree and assigns as error, the trial court’s refusal to also instruct the jury on the offenses of aggravated assault, assault, aggravated battery, battery and culpable negligence, which he contends were lesser included offenses of attempted murder. We agree in part and reverse.

In Brown v. State, 206 So.2d 377 (Fla.1968), category four of the listed lesser included offenses includes those which may or may not be included in the offense charged, depending on the accusatory pleading and the evidence. (Court’s emphasis at 381). The trial court must therefore first examine the information to determine whether it alleges all of the elements of a lesser included offense. Doing that here, we find that the statutory definitions of aggravated assault, § 784.021, and simple assault, § 784.011, can be found in Count I. Count I alleges that the defendant attempted to unlawfully kill a human being and did shoot him with a firearm. This shooting surely constitutes a threat to do violence to another with the apparent ability to do so by an act which would create a well founded fear in the victim of imminent violence. Continuing with the Brown analysis, it next must be determined whether the evidence supports the allegation of the lesser included offense. The appellee argues that because (as shown by the transcript) the victim never saw the gun before he was shot, he was not placed in fear of imminent violence. This ignores the fact that five other shots were fired at the victim. We believe that the fear the victim was certainly placed in, between the first shot which hit him and the subsequent four or five shots, satisfies the statutory requirement of well founded fear.

Referring once more to the Brown analysis, simple battery, and aggravated battery, jury charges were also erroneously omitted. Again examining Count I, the charge of attempted murder by shooting, includes either § 784.03(l)(a) or § 784.03(l)(b) and § 784.045. The victim was struck by the bullet which caused him bodily harm. Once again, going to the transcript, overwhelming evidence establishes the actual and intentional striking by a bullet sufficient to satisfy § 784.03 and § 784.045.

We do, however, agree with the trial court’s refusal to give the culpable negligence charge. In light of the Florida Standard Jury Instruction 2.06 Criminal Cases, and Fla.Stat. § 784.05, the intentional shooting of a pistol at another person does not seem compatible with the definition of culpable negligence which denotes actions of a gross and flagrant nature without actual intent to cause death or great bodily injury.

It is our conclusion that the refusal of the trial court to instruct the jury on all the other four lesser included offenses requested, constituted prejudicial error. To omit such instructions, in effect, removes important evidentiary matter from the proper province of the jury. Lomax v. State, 345 So.2d 719 (Fla.1977).

There is a second unusual facet of this case. Notwithstanding the error in failing to instruct on aggravated battery in Count I, the appellant had been separately charged by a second count with an aggravated battery. He was found guilty of this charge also, although only sentenced under the attempted murder finding of guilt under Count I.

At first blush it might appear that since the defendant did, in fact, by way of Count II, have the jury instructed on aggravated battery, that he cannot complain that these instructions were omitted in the initial count. However, such reasoning ignores the fact that he was convicted of both, which we perceive to be erroneous and we also agree with the appellant’s second contention that the trial court erred in instructing the jury that appellant could be found guilty of both Count I and II.

Examining aggravated battery, in relation to attempted murder, under the light of Brown, supra, category four, we have already decided above that the aggravated battery was a lesser included offense. Cases have held in a situation like this, where we have a lesser included offense, that the two crimes merge together, although we have no citation to one specifically involving attempted murder and aggravated battery. For example, in Hernandez v. State, 278 So.2d 307 (Fla.2d DCA 1973), the judgment and sentence for assault and commission of a felony with a firearm, were vacated and set aside where the defendant was also convicted of robbery. Similarly, it was held in Taylor v. State, 330 So.2d 44 (Fla. 1st DCA 1976), that the trial court erred in adjudicating defendant guilty of two lesser included offenses of grand larceny which were part of higher robbery offenses for which defendant was also convicted. See also Sloan v. State, 323 So.2d 278 (Fla.2d DCA 1975) (assault merged into robbery).

In Heisterman v. State, 327 So.2d 839 (Fla.3d DCA 1976), the defendant committed only one criminal act in shooting into the occupied dwelling and the court, holding that only the assault with intent to commit murder would be upheld, reversed the conviction for shooting into the dwelling. In Yost v. State, 243 So.2d 469 (Fla.3d DCA 1971), the court states:

“In Florida, where an information contains more than one count, but each is a facet or phase of the same transaction, only one sentence may be imposed; and the sentence which should be imposed is for the highest offense charged.” Id. at 471.

See also Fla.Stat. § 775.021.

Here appellant was only sentenced under Count I, thus complying with the Yost line of cases. However, the Hernandez, Taylor, Sloan, and Heisterman cases, with which we agree, indicate that the judgment of guilt on the aggravated battery in Count II is erroneous because the aggravated battery was a lesser included offense of attempted murder. Accordingly, it is herewith vacated and set aside.

REVERSED AS TO BOTH COUNTS AND REMANDED FOR FURTHER PROCEEDINGS IN ACCORDANCE HEREWITH.

ANSTEAD, J., and TIMOTHY P. POUL-TON, Associate Judge, concur.


text:
    Fred ROEHNER, Soll Roehner, Melvin T. Goldberger, Dean Moses and Earl Worsham d/b/a Regency Highland Associates, Appellants, v. ATLANTIC COAST DEVELOPMENT CORPORATION, Appellee.
    No. 77-717.
    District Court of Appeal of Florida, Fourth District.
    March 28, 1978.

      Dana C. Ferrell of Byrd & Ferrell, P. A., Fort Lauderdale, and Baskin, Schwartz, Brown &' Libenson, Boca Raton, for appellants.
    No appearance for appellee.
   LETTS, Judge.

This is an appeal from a denial of a motion to dismiss a complaint to enforce an equitable lien, said complaint filed in excess of one year after the last furnishing of labor, services or material.

We reverse upon the authority of § 95.-ll(5)(b) (Fla.Stat.1975) which unequivocally requires such a suit to be filed within one year after the last furnishing of labor, services or material for the improvement of real property.

We are aware that a defense based on the statute of limitations is normally a matter of affirmative defense, but here it is inescapably clear from the face of the complaint that the suit was filed beyond the statutory period. Poulos v. Vordermeier, 327 So.2d 245 (Fla. 4th DCA 1976).

REVERSED with direction to dismiss the action with prejudice.

DOWNEY and MOORE, JJ., concur.


author: DOWNEY, Judge.

text:
    Rommie L. LOUDD, Appellant, v. STATE of Florida, Appellee.
    No. 77-1722.
    District Court of Appeal of Florida, Fourth District.
    March 28, 1978.
    Ellis S. Rubin of Ellis Rubin Law Office, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Glenn H. Mitchell, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

Appellant was charged in the Circuit Court of Orange County with having committed a felony on February 24, 1975, and he was adjudicated' guilty on December 23, 1975. Subsequently, appellant was adjudicated guilty of a felony in the United States District Court in Massachusetts. That felony was committed on February 4, 1975.

Appellant applied to the Circuit Court of Orange County for bail pending the appeal of his December 23, 1975, conviction. The trial court felt it had no discretion to grant bail in view of Section 903.132(1), Florida Statutes (1976), and Fla.R.Crim.P. 3.691(a). Appellant now seeks review of that order.

Section 903.132(1) provides:

“(1) No person may be admitted to bail upon appeal from a conviction of a felony unless the defendant establishes that the appeal is taken in good faith, on grounds fairly debatable, and not frivolous. However, in no case shall bail be granted if such person has previously been convicted of a felony, the commission of which occurred prior to the commission of the subsequent felony, and such person’s civil rights have not been restored or if other felony charges are pending against him and probable cause has been found that the person has committed the felony or felonies at the time the request for bail is made.”

The pertinent part of the rule is to the same effect.

Both the statute and the rule provide that if a defendant applying for bail pending appeal has been convicted of a felony prior to such petition for bail and that felony was committed prior to the felony the conviction of which he is appealing, he shall be denied bail.

The facts in the case at bar are that appellant at the time he applied for bail pending appeal on July 1, 1977, had previously been convicted of a felony in Federal Court in Massachusetts and that felony was committed prior to the felony the conviction of which appellant is presently appealing. Accordingly the trial court correctly denied appellant’s petition for bail because both the statute and the rule specifically provide that bail shall not be granted in this fact situation.

The order appealed from is affirmed.

ANSTEAD and LETTS, JJ., concur.


text:
    Robert A. SHUPACK, Appellant, v. ALLSTATE INSURANCE COMPANY, a Foreign Corporation for profit, Appellee.
    No. 77-407.
    District Court of Appeal of Florida, Third District.
    March 28, 1978.
    Harold M. Braxton, Miami, for appellant.
    Adams, George, Schulte & Ward and Amy Shield Levine, Miami, for appellee.

      Before HENDRY, NATHAN and KE-HOE, JJ.
   KEHOE, Judge.

Appellant, plaintiff below, appeals from an order, in an action at law, granting appellee’s motion for summary judgment. The decretal portion of the trial court’s order reads:

“Ordered and adjudged that the motion for summary judgment be, and the same is hereby granted.”

This order is merely authorization for a final judgment. It does not constitute a final judgment, nor is it an order from which an interlocutory appeal could properly lie. See Harris v. Mosteller, 253 So.2d 275 (Fla. 2d DCA 1971); Arnold v. Brady, 178 So.2d 732 (Fla. 2d DCA 1965); Lyden v. DePiera, 147 So.2d 573 (Fla. 3d DCA 1962); Stone v. Buckley, 119 So.2d 298 (Fla. 2d DCA 1960); Chastain v. Embry, 118 So.2d 33 (Fla. 2d DCA 1960); Elliott v. Lazar, 104 So.2d 618 (Fla. 2d DCA 1958); and Renard v. Kirkeby Hotels, 99 So.2d 719 (Fla. 3d DCA 1958).

We recognize our authority to treat the appeal before the court as a petition for certiorari; however, we decline to do so and dismiss the appeal sua sponte.

Appeal dismissed.


text:
    Fred KRUTEL, Stephen D. Taylor, Service Plumbing Company, Inc., and A J A Plumbing Company, Inc., Appellants, v. Irwin STOLBERG, Appellee.
    No. 77-510.
    District Court of Appeal of Florida, Third District.
    March 28, 1978.

      Adams, George, Schulte & Ward, Miami, for appellants.
    Arky, Freed, Stearns, Watson & Greer and Alison Miller, Miami, for appellee.
    Before HAVERFIELD, C. J., and PEARSON, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Defendants appeal from a judgment in favor of the plaintiff for recission of a contract purchase of stock representing a one-third interest in certain business. The complaint, as amended, was in five counts. The first count sought damages for breach of contract. Count II claimed damages for fraud. Count III sought recission on equitable grounds. Counts IV and V sought recission, and recovery from defendants of the sums paid by the plaintiff, under Chapter 517, Florida Statutes (1975), for alleged violation of provisions against sale of unregistered stock (§ 517.07) and for sale of stock by fraud (§ 517.301). Prior to trial plaintiff abandoned the first two counts.

The court did not grant equitable recission as sought in Count III, but granted judgment as sought by the plaintiff on alleged sale in violation of provisions of said Chapter 517.

The facts are sufficiently set out in the judgment, which contained findings of fact and conclusions of law, as follows:

“1. SERVICE PLUMBING COMPANY, INC., (Service Plumbing) is a corporation organized and existing under the laws of the State of Florida, with its. principal place of business in Miami Beach, Dade County, Florida.
“2. Prior to April 30, 1974, Defendants, FRED KRUTEL (Krutel) and STEPHEN D. TAYLOR (Taylor), were the sole shareholders of Service Plumbing.
“3. Early in 1974, Defendant Taylor met with Plaintiff, IRWIN STOLBERG (Stol-berg) with a view to offering Stolberg the opportunity to purchase a stock interest in Service Plumbing.
“a) Early May, 1974, Plaintiff Stol-berg, and Defendants Krutel, Taylor and Service Plumbing executed an Agreement, Addendum to the Agreement and Memorandum Agreement (the Agreements), all effective as of April, 1974.
“b) Pursuant to the foregoing Agreements, Defendants Krutel, Taylor and Service Plumbing sold and delivered the shares of stock of Service Plumbing called for therein and required to be issued or transferred at the time of the execution of the Agreements, consisting of one and two-thirds shares of stock each from Krutel and Taylor and five shares from the treasury stock of Service Plumbing, and at the time of the execution of the Agreements, Stolberg paid Twenty-five Thousand Dollars ($25,000) to Krutel, Twenty-five Thousand Dollars ($25,000) to Taylor and Fifty-Thousand Dollars ($50,000) to Service Plumbing.
“c) In the aforesaid Agreements the Defendants warranted that financial statements attached to the Agreements dated February 28, 1974 (the Financial Statement) were true and correct and reflected all the assets and liabilities of the corporation.
“4. Contrary to the Agreements, the aforesaid Financial Statements were materially incorrect and contained substantial departures from the true assets and liabilities of Service Plumbing, including the concealing by the Defendant, Krutel, of a $14,500 payment to Service Plumbing from Arkin Construction Company in 1973, and its diversion to his personal account without notation in the records of the company of billing for or receipt of the payment, and the subsequent use of the proceeds of the payment in part to reduce on the books of the company Kru-tel’s indebtedness to the company. Such departures violated Section 517.301 Florida Statutes.
“5. Upon the execution of the Agreements, Plaintiff, Stolberg, became Secretary/Treasurer of the company and originally was one of three signatories authorized to sign checks for the company. Later it was decided that he would sign all checks. He also conferred from time to time on business decisions with Taylor and Krutel. However, his participation under the facts of the case was not to the substantial extent necessary to make available to the Defendants the doctrine of estoppel. Further, the Defendants did not prove the four essential elements to the estoppel defense, namely:
“(1) That the party to be estopped must know the facts;
“(2) that he must intend that his conduct be acted on or must so act that the party asserting the estoppel has a right to believe it is so intended;
“(3) that the latter party must be ignorant of the true facts; and
“(4) that he must rely on the former’s conduct to his injury. See State ex rel. Watson v. Gray, 48 So.2d 84 (Fla.1950); 12 Fla.Jr. Estoppel and Waiver, § 25 and § 30; Hecht v. Upham, 430 F.2d 1202 (9th Cir. 1970).
“6. At the time of the execution of the Agreements, Defendants, Service Plumbing and its agents, stockholders and officers, Krutel and Taylor acting within the course and scope of their authority, represented to Plaintiff, Stolberg, the financial condition of Service Plumbing to be as set forth in the Financial Statements dated February 28, 1974. Said Defendants, Krutel and Taylor thus directly participated in the sale and became jointly and severally liable with Service Plumbing Company to the Plaintiff purchaser under Section 517.21 Florida Statutes. The Plaintiff has tendered the securities sold by Defendants Krutel, Taylor and Service Plumbing, and has elected the remedy of rescission under Section 517.21, Florida Statutes, and the Court finds that the Plaintiff is entitled to invoke such remedy under the facts. The Court finds that the Plaintiff made the following total investment, received the following total benefits, which the Court finds should be set-off from such investment resulting in the amount of $87,175.63, to which Plaintiff is entitled to have returned, plus interest from May 9th, 1974:
Salary received by Stolberg from Service Plumbing $18,200.00
Other benefits received by Plaintiff, including: Loans 2,077.39
Petty Cash 501.50
Car payments 1.045.48
TOTAL BENEFITS (Set-off) 821.824.37
TOTAL INVESTMENT LESS BENEFITS RECEIVED - DIFFERENCE TO WHICH PLAINTIFF IS ENTITLED 887.175.63
“7. The Court finds that pursuant to Section 517.21, Florida Statutes, the Plaintiff is entitled to attorney’s fees in the sum of Fifteen Thousand Dollars ($15,000).”

Based on the foregoing findings and conclusions of law, the court granted the plaintiff judgment against the defendants for the amounts thus found to be recoverable by plaintiff.

We hold the court correctly applied the governing law. We find need to add thereto only by discussion of certain contentions presented by appellants with respect thereto.

Appellants contend that involvement of the plaintiff in the management of the corporate business operated to bar him from the relief he sought under Chapter 517, citing as authority therefor Popper v. Havana Publications, Inc., 122 So.2d 247 (Fla. 3d DCA 1960) and Krasney v. Richter, 211 So.2d 612 (Fla. 3d DCA 1968). We hold the trial court was correct in concluding that the participation of the plaintiff in the business “was not to the substantial extent necessary to render available to the defendants the doctrine of estoppel”. Here the participation of the plaintiff was substantially less than that which appeared in Popper and there was held to operate as estop-pel. Nor do we find merit in the contention of the appellants that plaintiff’s claim to rescind was delayed to such extent as to bar exercise of the remedy. Appellants cited Bardwell v. Albertson, 120 Fla. 106, 162 So. 321 (1935) and Rood Company, Inc. v. Board of Public Instruction of Dade County, 102 So.2d 139 (Fla.1958) in support of that contention. The trial court concluded, and we agree, that the plaintiff had not so acted as to preclude seeking rescission. The initial discovery (undisclosed personal loan of approximately $9,000.00 made just prior to preparation of financial statement) was passed off as an inadvertent omission from the financial statement, and plaintiff was given requisite credit therefor. A second undisclosed item which surfaced, of approximately $14,500.00, likewise received certain remedial treatment. However, as noted by the trial court, the financial statement submitted to and relied on by plaintiff was “substantially incorrect and contained substantial departures from the true assets and liabilities”. There were additional items that came to light seriatim subsequently. The plaintiff delayed action to obtain an audit to verify the true financial situation. His delay was not unreasonable, and under the circumstances did not amount to acceptance of fraud fully disclosed, or to remaining silent and continuing to treat the property as his own notwithstanding the fraud, such as to bar recovery under the authorities cited. When the totality of the misrepresentations became known and verified, the plaintiff took action without further delay.

We find to be without merit the contention of the defendant-appellant, Stephen B. Taylor, that he should not have been included in the judgment because he was shown to have been unaware of the above-mentioned second misrepresentation involving $14,500.00. That was only one of the numerous incorrect items in the represented assets and liabilities. As a party participating in the sale which is challenged to have been made in violation of provisions of Chapter 517, Florida Statutes (1975), Taylor was included in the liability by the terms of Section 517.21(1) thereof.

No reversible error having been shown, the judgment is affirmed.


text:
    Marvin I. WIENER and Sidney M. Bodzin, as Trustees, and Phil Perry and Phil Perry, Inc., Appellants, v. Hazel BROWN et al., Appellees.
    No. 77-527.
    District Court of Appeal of Florida, Third District.
    March 28, 1978.

      Myers, Kaplan, Levinson, Kenin & Richards and Thomas R. Spencer, Jr., Bartel, Levine & Shuford, Miami, for appellants.
    Dixon, Dixon, Lane, Mitchell & Harris, Miami, and C. Robert Murray, Jr., Coral Gables, for appellees.
    Before NATHAN and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   CHARLES CARROLL (Ret.), Associate Judge.

Defendants below appeal from an order granting partial summary judgment in favor of the plaintiffs, and denying defendants’ motion for summary judgment.

The determinative question is whether the interests of the several persons who purchased a parcel of unimproved real estate which is being held for resale constituted sales to them of securities in violation of Chapter 517, Florida Statutes (1975). For the reasons set out below we hold they did not, and reverse.

In 1973 Phil Perry, Inc., a licensed real estate broker, interested 25 persons in the purchase of a certain tract of unimproved real estate from the owner thereof. Said persons purchased the property, taking title in the name of two trustees, Marvin I. Wiener and Hazel Brown, who held under a trust agreement signed by the purchasers. Subsequently Hazel Brown resigned as trustee and was succeeded by Sidney M. Bodzin. The price for which the property was purchased was $1,000,000.00, to which the several purchasers contributed in accordance with their proportionate interests, for the down payment, and became obligated for the mortgage payments, taxes and any other necessary expenses. The broker received no commission but was accorded a 4.77% interest by the beneficiaries.

The property thus acquired was to be held for resale, hopefully at a profit. No development or improvements were made thereon, and no business was conducted thereon. There was no plan or expectation to receive profits from the efforts of any other persons, or from any source other than by favorable resale. The control of the property was in the beneficiaries. The trustees were authorized to negotiate for resale opportunities, but the trustees were required to notify the beneficial owners of any proposed resale, and no such sale would be made unless authorized by the beneficiaries. The precise provision relating thereto being that no proposed sale would be made if objected to by one-third or more of the beneficiaries. The trust agreement additionally provided for the trustees to collect the amounts when due from the beneficiaries for required payments of mortgage principal and interest, and taxes, assessments or other expenses. There was a provision that upon default by a beneficial owner in payment of such items due from him the other beneficiaries would be charged ratably therefor and the interest of the defaulting beneficiary would be forfeited. It was provided that the trust would continue until the “assets have been liquidated and distributed” which, in this instance, would be until the property was resold and the proceeds distributed.

The property was purchased in May of 1973. In April of 1975, nine of the beneficial owners, apparently having become disenchanted with their investments when the expected sale for profit had not occurred in that interval, filed an action against the then trustees and certain of the other beneficial owners, seeking recission of their purchases, and to enjoin the trustees from taking action consequent to their failure to make deferred payments. The basis of the action was a charge by plaintiffs that acquisition of their ownership interests represented sales to them of securities in violation of the Sale of Securities Act, Chapter 517, Florida Statutes (1975). The definition of “Security” as set out in the Act includes “beneficial interest in title to property”. Section 517.02(1).

In the pleadings, as on this appeal, the parties took opposite views as to the legal effect of the transaction. Plaintiffs contended their beneficial interests were securities, subject to control or regulatory provisions of said Chapter 517. The defendants-appellants contended the beneficial interests were not subject to Chapter 517, because their interests represented purchase of real estate held only for resale, and that the real estate transaction was not an enterprise in which profits were to come solely from the efforts of others.

Plaintiffs moved for an order for the Florida Division of Security to “intervene as amicus curiae”. Such an order was entered, over defendants’ objection. The “in-tervenor” filed no pleadings and took no part in the proceedings, other than by the writing of a letter by the Division Director to the judge, which became a part of the record. Therein, the Director informed the court it was his opinion that “a ‘security’ as that term is found in Chapter 517, F.S., is present in this matter”. In support of that expressed opinion, the director’s letter quoted from the definition of security as set out in the statute and stated he believed that in this matter it could be found there were five types of securities, in addition to beneficial interest in title to the property.

By his letter it is indicated the Director felt the interests in title to real estate held by these parties were securities subject to regulation under the Act simply because of the fact that they fell within the definition of security, overlooking the point that it is the substance of the transaction and not its shadow that determines whether or not the transaction is within the grasp of the statute. Opposed to plaintiffs’ motion for summary judgment and in support of their motion, the defendants presented a lengthy affidavit of a law school professor. After relating the facts of the transaction and discussing the terms of the trust agreement as it related to control of the property by the beneficial owners and the limited and ministerial duties of the trustees, that affi-ant expressed the opinion that “the beneficial interests in the trust are not ‘securities’ as the term is defined in Chapter 517 of the Florida Statutes” and that “the regulations, recission, anti-fraud and other provisions of the Florida securities law are inapplicable to this matter”. As basis for that opinion, the affiant stated that Federal and State courts have held repeatedly that “the substance of a transaction rather than its form should govern the determination of whether a ‘security’ is involved”. It was noted that the intention of the parties was to purchase certain real estate, and that the fact they did so by taking title in the name of trustees instead of taking title in the names of all of the purchasers was to simplify the purchase and subsequent sale thereof. The opinion thus expressed was supported by the citation of numerous authorities.

In addition to those contrary opinions supplied to the court there were certain discovery depositions. However, the basic facts before the court were few. Principal among them were that what was involved was a real estate transaction, whereby a number of persons together purchased certain unimproved land from a third party owner thereof; that they took title in the name of trustees; that the property was acquired and held with expectation of deriving profit from the subsequent sale thereof by the beneficial owners, who had the sole control of the resale thereof; and that the transaction was not an investment of money in a common enterprise in which profits were to come from the efforts of persons other than themselves. As such, the interests acquired by the beneficial owners did not represent sales to them of “securities” in violation of said Chapter 517.

At the outset of discussion of the legal effect of such transaction, it is noted that the remedial section of the statute (517.21) provides that every sale made in violation of Chapter 517 shall be voidable at the election of the purchaser and that the person making the sale (and agents of the seller personally participating or aiding in making the sale) shall be liable to the purchaser for the amount paid by him, with interest, reasonable attorney fees and costs, upon tender of return of the “security” involved. In this instance the property was purchased from a third party. The action that was filed was not to rescind that purchase nor was it for recovery against the seller. This action was brought by certain of the purchasers against others of the beneficial interest owners, including the broker, and against the trustees, none of whom were the sellers and none of whom were persons against whom recission could be claimed.

However, even if this action had been brought against the seller from whom the plaintiffs purchased the real estate, the bare fact that by taking title in the name of trustees their purchase of the property had resulted in their acquiring beneficial interests in the real estate, which term is within the definition of “security” in Chapter 517, would not ipso facto support a conclusion that the interest represented a “security” within the meaning and intent of the Act, or had amounted to sales to them in violation of the Act.

The test is not whether the interest of the owners is of a kind or character within the definition of “security” in the statute. The form should be disregarded for the substance, and the emphasis should be on economic reality. In application thereof one controlling test that is approved is that a transaction will not be held to be within the Act if not within its spirit and intention. A transaction is not such when it is not an investment of money in a common enterprise in which profits are to come from the efforts of others, and when there is not reasonable expectation of profits of a common enterprise to be derived from the entrepreneurial or managerial efforts of others. See: Securities & Exchange Commission v. W. J. Howey Company, 328 U.S. 293, 300, 66 S.Ct. 1100, 90 L.Ed. 1244 (1945); United Housing Foundation, Inc. v. Forman, 421 U.S. 837, 95 S.Ct. 2051, 44 L.Ed.2d 621 (1975); Grenader v. Spitz, 537 F.2d 612 (2nd Cir. 1976); Willmont v. Tellone, 137 So.2d 610 (Fla.2d DCA 1962); Lapidus v. Rever, 174 So.2d 459 (Fla.3d DCA 1965).

In our opinion the substance of this transaction, when measured against the tests established in law, is such that it is not under or subject to the provisions of Chapter 517, Florida Statutes (1975). It was error for the court to hold the contrary and on that basis to grant partial summary judgment in favor of the plaintiffs, and to deny summary judgment to the defendants.

For the reasons stated the order granting partial summary judgment to the plaintiffs is reversed. Since all relief sought was predicated on the plaintiffs’ assumption that their beneficial interests represented sales to them in violation of Chapter 517, Florida Statutes (1975), which we hold was incorrect, this cause is remanded to the circuit court with direction to enter summary judgment in favor of the defendants.

It is so ordered.

      . The order appealed from was as follows:
      “THIS CAUSE having come before the Court on Plaintiffs’ Motion for Summary Judgment and Defendants’ Cross Motion for Summary Judgment, and the Court having reviewed the pleadings and heard argument of counsel, it is,
      “ORDERED AND ADJUDGED that Defendants’ Cross Motion for Summary Judgment is denied, and Plaintiffs’ Motion for Summary Judgment is granted, and the Court has determined as a matter of law that the subject ‘beneficial interests’ are securities, pursuant to Chapter 517 of the Florida Statutes.”

      . Application for such injunctive relief was heard and denied.

      . The Director’s letter stated:
      “I believe that, at least, the following types of securities can be found in this matter:
      “(1). Evidence of indebtedness;
      “(2). Certificate of interest or participation;
      “(3). Certificate of interest in a profit-sharing agreement;
      “(4). Investment contract;
      “(5). Beneficial interest in title to property, profits, or earnings;
      “(6). Interest in or under a profit-sharing or participation agreement or scheme.”


text:
    BUCKLEY TOWERS CONDOMINIUM, INC., a non-profit Florida Condominium Corporation, on behalf of itself and its membership, Appellant, v. Herbert BUCHWALD, Arlene Buchwald and Joseph Walan, Individually, jointly and severally, Appellees.
    No. 77-910.
    District Court of Appeal of Florida, Third District.
    March 28, 1978.
    Rehearing Denied April 21, 1978.

      Joseph S. Paglino, Miami, for appellant.
    Steel, Hector & Davis, Miami, for appel-lees.
    Before HENDRY, HUBBART and KE-HOE, JJ.
   PER CURIAM.

The plaintiff Buckley Towers Condominium, Inc., appeals a final order dismissing its action for declaratory decree and other relief before the Circuit Court for the Eleventh Judicial Circuit of Florida. The plaintiff sought to enforce its right of first refusal upon the sale of the defendant Herbert Buchwald’s interest as lessor on a ninety-nine year recreational lease with the plaintiff pursuant to Section 711.63(7)(b), (c), Florida Statutes (1975). The lease itself permits the lessor defendant Herbert Buchwald to freely assign and encumber his interest under the lease; there is no provision in the lease giving the plaintiff the right of first refusal upon a sale of the lessor’s leasehold interest. The defendants Arlene Buchwald and Joseph Walan were joined as party defendants because they allegedly participated with the defendant Herbert Buchwald in the sale of the leasehold interest herein without first giving the plaintiff a right of first refusal on the sale.

Based on well-settled principles of statutory construction and constitutional law, we hold that Section 711.63(7)(b), (c), Florida Statutes (1975) is inapplicable to the lease herein because the said lease was entered into prior to the effective date of the statute and said statute cannot be retroactively applied to alter or vary the terms of such a lease. Walker & LaBerge, Inc. v. Halligan, 344 So.2d 239, 241 (Fla.1977); Avila South Condominium Ass’n. v. Kappa Corp., 347 So.2d 599 (Fla.1976); Fleeman v. Case, 342 So.2d 815 (Fla.1976); Point East One Condominium Corp. v. Point East Developers, Inc., 348 So.2d 32 (Fla.3d DCA 1977); Plaza del Prado Condominium Ass’n. v. Del Prado Management Co., 298 So.2d 544 (Fla.3d DCA 1974). Accordingly, the trial court properly dismissed the plaintiff’s complaint herein.

Affirmed.

      . “If any portion of the common elements or common areas or any other property serving the unit owners of a condominium or cooperative is subject to a lease and the rent under the lease is payable by the association or by the unit owners, or if a developer leases a unit for a term of more than 5 years or sells a unit subject to a lease with a remaining term of more than 5 years, the terms of the lease shall comply with the following requirements: * * *
      [7](b) In the event the lessor wishes to sell his interest and shall have received a bona fide offer to purchase same, such lessor shall notify the association and each unit owner with an executed copy of such offer and the terms thereof. For a period to extend until 90 days following receipt of the offer by the association, the association shall have the option to purchase the interest on the terms and conditions set forth in the offer. Said option shall be exercised, if at all, by notice in writing given to the lessor within said period. If the association does not exercise the option herein granted, the lessor shall have the right, for a period of 60 days after receipt of the notice not to exercise the option, within which to complete the transaction described in the offer to purchase named therein. If for any reason such transaction is not concluded and notice of such fact given to the association within said 60 days, the offer shall be deemed to have been abandoned, and the provisions of this subsection shall be reimposed on the interest in question.
      (c) The options shall be exercised upon approval by owners of 75 percent of the units served by the leased property.”


text:
    Glen B. COLE, Appellant, v. STATE of Florida, Appellee.
    No. 77-856.
    District Court of Appeal of Florida, Second District.
    March 29, 1978.
    Rehearing Denied April 19, 1978.

      Jack 0. Johnson, Public Defender and Paul C. Helm, Asst. Public Defender, Bar-tow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Judge.

Appellant was charged with handling and fondling Juanita Quatman, a female child under the age of fourteen, in a lewd and lascivious manner on July 21, 1976. A second information charged appellant with two counts of the same crime upon one Anita Ruiz on the same date. A third information charged appellant with battery upon Georgia Wells also on the same date.

Appellant was tried before a jury on all four charges. During the trial, Juanita Quatman was unable to identify appellant in court as the man who allegedly fondled her. No other witness at trial saw appellant commit this act upon Quatman. At the close of the State’s case, appellant’s motion for a judgment of acquittal was granted on the basis that there was no identification evidence linking appellant to the offense committed upon Quatman.

Appellant testified in his own defense. During the cross-examination of appellant the prosecutor asked appellant if he had any feelings of ill will toward Quatman, and whether he knew of any ill will feelings she might have towards him. Appellant’s counsel objected to these questions, arguing that such questioning was improper in light of the judgment of acquittal which had been granted at the close of the State’s case. However, the trial judge agreed with the prosecutor’s argument that all testimony elicited from Quatman and any actions regarding her were still admissible.

During his summation, the prosecutor argued:

He confirms that none of the girls — at least in his mind — has any reason to fabricate these stories, all three of them, and indicated that he has no logical reason why these girls would lie and fabricate all these things. And the reason is clear: It’s because they didn’t fabricate anything. It happened. It happened to all three of them.
* * * * * *
. The Sheriff’s Office was called because these girls told their mothers what the defendant had done to them, and it wasn’t one girl: It was three girls.

Thus, the prosecutor’s remarks to “these girls”, “all three of them” and “It was three girls” were made with reference to Quat-man as well as the other two girls.

Appellant contends the trial judge committed reversible error by permitting the State in its cross-examination of appellant and during its closing argument to make references, over objection, to a crime for which a motion for a judgment of acquittal had been previously granted in favor of appellant. We agree and reverse.

The State argues the evidence relating to Quatman is admissible under the “Williams Rule” since that testimony tended to prove criminal intent and a common modus oper-andi of appellant, from which the jury could find appellant was the perpetrator of all the crimes. Williams v. State, 110 So.2d 654 (Fla.1959). We do not find this argument persuasive. The testimony and argument relating to Quatman, in fact, violates the “Williams Rule.” A necessary predicate for permitting such testimony is a showing that the accused perpetrated the acts sought to be introduced under the rule. Williams v. State, supra. In this case, lack of identification testimony linking appellant with the offense committed upon Quatman was the very reason the judgment of acquittal was granted. Therefore, after judgment of acquittal had been entered in the Quatman case, any further reference to that crime under the “Williams Rule” would be prohibited and, as allowed by the trial judge to occur before the jury, is reversible error. See Brown v. State, 128 Fla. 762, 175 So. 515 (1937), opinion clarified, 130 Fla. 479, 178 So. 153 (1938).

This error cannot be said to have not prejudiced appellant in his defense against the charges involving Anita Ruiz and Georgia Wells, thus a new trial for appellant on all three charges involving Wells and Ruiz is required and so ordered.

In view of the foregoing, we do not pass upon the other point raised by appellant.

Reversed and remanded for proceedings consistent with this opinion.

OTT, A. C. J., and DANAHY, J., concur.