author: HATCHETT, Justice.

text:
    Blannie Mae SPEARS, Appellant, v. STATE of Florida, Appellee.
    No. 48776.
    Supreme Court of Florida.
    Sept. 23, 1976.

      Ronald A. Mowrey, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appel-lee.
   HATCHETT, Justice.

This appeal is taken from a judgment of conviction entered in the County Court of Wakulla County. The prosecution began with a complaint accusing appellant of a violation of Section 847.05, Florida Statutes (1975), which provides:

Any person who shall publicly use or utter any indecent or obscene language shall be guilty of a misdemeanor .

By a motion to dismiss the information (sic), appellant challenged the constitutionality of Section 847.05, Florida Statutes (1975), on First, Fifth and Fourteenth Amendment grounds. In denying this motion and subsequently adjudicating appellant guilty, the trial court rejected a constitutional challenge to the validity of a state statute. Accordingly, we have jurisdiction. Wooten v. State, 332 So.2d 15 (Fla., 1976); Allen v. State, 326 So.2d 419 (Fla. 1975) (reh. den. 1976); Kelly v. State, 323 So.2d 565 (Fla. 1975); Baker v. State, 323 So.2d 556 (Fla. 1975); Singletary v. State, 322 So.2d 551 (Fla. 1975); Hurley v. State, 322 So.2d 506 (Fla. 1975).

This is not the first time Section 847.05 has been challenged in this Court as an unconstitutional, abridgement of the freedom of speech, guaranteed by the First and Fourteenth Amendments to the United States Constitution. The appellant in Jones v. State, 293 So.2d 33 (Fla. 1974), contended that his conviction for possession of marijuana should be reversed because the marijuana, introduced in evidence against him, was seized incident to an arrest for violation of Section 847.05, Florida Statutes (1975). The statute was constitutionally defective, he argued, so his arrest was unlawful and could not justify the authorities’ warrantless search of his person. Jones appealed this Court’s affirmance of his conviction to the United States Supreme Court, where the appeal was dismissed “for want of a properly presented federal question.” Jones v. Florida, 419 U.S. 1081, 95 S.Ct. 671, 42 L.Ed.2d 676 (1974). Three justices dissented, voting to reach the question of the statute’s validity, and expressing the view that “Section 847.05 ... is facially unconstitutional.” Id.

In upholding Jones’ conviction, we declined to explicate the language of the statute, taking the view that the “words of the statute . . . [suffice to] convey . a warning of that conduct prohibited by the statute.” 293 So.2d at 34. Dissenting in Jones v. State, supra, Mr. Justice Ervin emphasized that the Court placed no limiting construction on Section 847.05, Florida Statutes (1975):

The statute relates only to spoken words which are intrinsically “indecent or obscene.” In the majority opinion the language in the statute is not narrowed to “fighting words” or to any clear or present danger of harm to others . .. It does not bother to specifically limit or define or describe “indecent or obscene language” publicly used or uttered in the context of recognized constitutional limitations. . . . There is nothing in Section 847.05 restricting obscene language to words relating to sexual acts of a prurient nature.
Falling back on the crutch of the common law and saying that “any outrage of decency which was injurious to public acceptance” is a crime, is an inconclusive abstract generalization without legal significance. ... At 34.

Because of ex post facto considerations, the Jones Court’s construction of Section 847.-05, Florida Statutes (1975), must be our starting point in the present case. “[T]he ‘test’ of what constitutes obscenity . is that which prevailed under the applicable statute as amplified by authoritative construction published at the time of the offense.” Rhodes v. State, 283 So.2d 351, 355 (Fla. 1973) (emphasis supplied; footnote omitted). Cf. Shuttlesworth v. Birmingham, 382 U.S. 87, 86 S.Ct. 211, 15 L.Ed.2d 176 (1965).

Recent developments, including the subsequent history of Jones v. State, supra, militate in favor of reconsideration of the constitutionality of Section 847.05, as authoritatively interpreted in the Jones case. Section 847.011, Florida Statutes (1975), another statute in the same chapter as the statute under which appellant was convicted, embodies a definition of obscenity more explicit than the “indecent or obscene” standard at issue here. Section 847.-011 formerly proscribed possession of, and certain conduct in connection with, “obscene, lewd, lascivious, filthy, indecent, immoral, sadistic or masochistic” materials. When Section 847.011 was adjudged deficient in the trial court, the state appealed. In an extended opinion, this Court excised the word “immoral” from Section 847.011 and pronounced all constitutional maladies remedied. State v. Reese, 222 So.2d 732 (Fla. 1969). Apparently inspired by the decision in State v. Reese, supra, the legislature reenacted Section 847.011, omitting the word “immoral”, and giving the statute its present day form. As presently worded, Section 847.011 was upheld by this Court in a line of cases culminating with Bucolo v. State, 303 So.2d 329 (Fla. 1974). Last year our decision in Bucolo was summarily reversed by the United States Supreme Court. Bucolo v. Florida, 421 U.S. 927, 95 S.Ct. 1651, 44 L.Ed.2d 84 (1975). On reexamination of Section 847.05, Florida Statutes (1975), and reconsideration of the question of its constitutionality, we conclude that the statute is unconstitutional on its face, because it is overbroad at best. See Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971).

Special rules of decision apply in cases where a statute makes speech punishable as a crime. “Because First Amendment freedoms need breathing room to survive, government may regulate in the area only with narrow specificity.” NAACP v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 338, 9 L.Ed.2d 405, 418 (1963). When a statute “punishes only spoken words[,] [i]t can . withstand . . . attack upon its facial constitutionality only if . it is not susceptible of application to speech, although vulgar or offensive, that is protected by the First and Fourteenth Amendments.” Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972) (emphasis supplied); Hess v. Indiana, 414 U.S. 105, 94 S.Ct. 326, 38 L.Ed.2d 303 (1973); Rosenfeld v. New Jersey, 408 U.S. 901, 92 S.Ct. 2479, 33 L.Ed.2d 321 (1972); Coates v. City of Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971); Terminiello v. Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131 (1949). Statutes regulating speech must “punish only unprotected speech and not be susceptible of application to protected expression.” Gooding v. Wilson, 405 U.S. at 522, 92 S.Ct. at 1106, 31 L.Ed.2d at 414. Where a legislative enactment “is susceptible of application to protected speech, . [i]t is constitutionally overbroad and therefore is facially invalid.” Lewis v. New Orleans, 415 U.S. 130, 134, 94 S.Ct. 970, 972, 39 L.Ed.2d 214, 220 (1974). Consistently with the United States Supreme Court’s decisions, nobody can be punished under a statute purporting to outlaw spoken words, if the statute would be unconstitutional as applied to anybody. “This result is deemed justified since the otherwise continued existence of the statute in unnarrowed form would tend to suppress constitutionally protected rights.” Coates v. City of Cincinnati, 402 U.S. at 620, 91 S.Ct. at 1691, 29 L.Ed.2d at 221.

When the United States Supreme Court overturned convictions of persons found guilty of saying “ ‘you god damn m. f. police,’ ” Lewis v. New Orleans, 415 U.S. at 132 n. 1, 94 S.Ct. at 972 n. 1, 39 L.Ed.2d at 218 n. 1, and “ ‘You son of a bitch, I’ll choke you to death.’ ” Gooding v. Wilson, 405 U.S. at 519 n. 1, 92 S.Ct. at 1105 n. 1, 31 L.Ed.2d at 412 n. 1, and “ ‘We’ll take the fucking street later.’ ” Hess v. Indiana, 414 U.S. at 107, 94 S.Ct. at 328, 38 L.Ed.2d at 306, it did so not out of any solicitude for intemperance, but because the law under which the convictions were obtained was drawn in such a way that law abiding citizens could also have been convicted under it, simply for exercising their constitutionally guaranteed right to free speech. Likewise our principal concern here is preservation of freedom of speech for all citizens. Overbroad statutes create the danger that a citizen will be punished as a criminal for exercising his right of free speech. If this possibility were the only evil of overbroad statutes, it might suffice to review convictions on a case by case basis. But the mere existence of statutes and ordinances purporting to criminalize protected expression operates as a deterrent to the exercise of the rights of free expression, and deters most effectively the prudent, the cautious and the circumspect, the very persons whose advice we seem generally to be most in need of.

In the present case, the standard “indecent or obscene” does not meet constitutional requirements, because it does not succeed in articulating a boundary between expression which is protected and expression which is not. Like Cohen v. California, supra (Cohen was in a courthouse “wearing a jacket bearing the words ‘Fuck the Draft’ ” 403 U.S. at 16, 91 S.Ct. at 1784, 29 L.Ed.2d at 289), this is “not ... an obscenity case.” 403 U.S. at 20, 91 S.Ct. at 1785, 29 L.Ed.2d at 291. Writing for a six member majority, Mr. Justice Harlan said in Cohen:

Whatever else may be necessary to give rise to the States’ broader power to prohibit obscene expression, such expression must be, in some significant way, erotic. Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). It cannot plausibly be maintained that this vulgar allusion to the Selective Service System would conjure up such psychic stimulation in anyone likely to be confronted with Cohen’s crudely defaced jacket. 403 U.S. at 20, 91 S.Ct. at 1785, 29 L.Ed.2d at 291.

It is equally implausible that the epithets hurled in the present case appealed to the hearers’ prurient interest, yet those epithets are aptly characterized as “indecent.” If-appellant abused a particular person with these vulgarities, intending to incite him to violence, her profanity might have been punished as fighting words under a carefully drawn statute. See Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed.2d 1031 (1942). The conviction under review cannot stand, however, because of the indiscriminate reach of Section 847.05, Florida Statutes (1975).

The judgment is reversed with directions that appellant be discharged.

OVERTON, C. J., and ADKINS, BOYD, ENGLAND and SUNDBERG, JJ., concur.

ROBERTS, J., dissents.

      . In response to the Court’s request for a written judgment, the clerk of the circuit court has furnished us a document styled Commitment To Serve Sentence which recites that Blannie Mae Spears has been adjudicated guilty of “the offense of profanity.” No separate written judgment is in the record on appeal, however.

      . The complaint alleges that “on the 26 day of October, A.D. 1975, in Wakulla County, Florida . . . Blannie Mae Spears did . . . publicly use or utter indecent or obscene language, to wit: SON OF A BITCH, BASTARD M.F. ETC, [sic] contrary to section 847.05, FLORIDA STATUTES.”

      . Rhodes v. State, 283 So.2d 351 (Fla. 1973); State v. Papp, 298 So.2d 374 (Fla. 1974); State ex rel. Gerstein v. Walrick Theatre Corp., 298 So.2d 406 (Fla. 1974). Subsequent to Bucolo, in Fontana v. State, 316 So.2d 543 (Fla. 1975), we altered our construction of Section 847.011, Florida Statutes (1975) in light of Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973).

      . On receipt of the mandate issued in Bucolo v. Florida, supra, we “remanded to the trial court for further proceedings in which the standards established in Miller v. California can be applied.” Bucolo v. State, 316 So.2d 551 (Fla. 1975) (footnote omitted). Bucolo and code-fendants then applied to the United States Supreme Court for writ of mandamus, arguing that this Court’s disposition on remand “serve[d] to deprive them of the exoneration to which [the United States Supreme] Court’s reversal . . . entitle[d] them.” Bucolo v. Adkins, 424 U.S. 641, 96 S.Ct. 1086, 1087, 47 L.Ed.2d 301, 304 (1976). In accepting this contention, the Court left no doubt that its unanimous decision in Bucolo v. Florida, supra, rested on the ground that this Court had erroneously upheld a conviction for constitutionally protected activity, which fell within the purview of Section 847.011, Florida Statutes (1975).

      . We do not reach the related question of vagueness because we decide the statute is bad for overbreadth. In general, a statute must be “sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties.” Connally v. Gen’l Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322, 328 (1926). This requirement assumes particular importance when speech is regulated. See Hynes v. Mayor and Council of the Borough of Oradell, - U.S. -, 96 S.Ct. 1755, 48 L.Ed.2d 243 (1976); Ashton v. Kentucky, 384 U.S. 195, 86 S.Ct. 1407, 16 L.Ed.2d 469 (1966); Winters v. New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840 (1948).


source: Caselaw Access Project

author: CROSS, Judge. PER CURIAM.

license: Public Domain

text:
    Erick S. MOORE, a minor, by and through his natural father and legal guardian, Jack H. Moore, and Jack H. Moore, Individually, Appellants, v. ST. CLOUD UTILITIES, an agency, board or commission of the City of St. Cloud, Florida, a Municipal Corporation, et al., Appellees.
    No. 74-412.
    District Court of Appeal of Florida, Fourth District.
    Jan. 9, 1976.
    Rehearing Denied Feb. 6, 1976.
    Arnold R. Ginsberg, Horton Perse & Ginsberg, Miami, and Nance & Cacciatore, Melbourne, for appellants.
    Joe B. Weeks, Gurney Gurney & Han-dley, and Calvin J. Faucett, Orlando, for appellee-St. Cloud Utilities.
    Monroe E. McDonald, Sanders McEwan Mims & McDonald, Orlando, for appel-lees-Cassel, Miller and Pennsylvania Nat. Mut. Cas. Ins. Co.
   CROSS, Judge.

Appellant-plaintiffs, Erick S. Moore, a minor, by and through his natural father and legal guardian Jack H. Moore, and Jack H. Moore individually, appeal a final judgment apportioning among various tort-feasors liability for damages resulting to the plaintiffs when the minor plaintiff came into contact with a downed live electrical power line. We reverse.

On March 27, 1970, appellee-defendant, James M. Miller, was driving a pickup truck owned by appellee-defendant, Arthur L. Cassel doing business as Cassel’s Garage, along U.S. 192 in Osceola County, Florida. Approximately eight miles east of Ashton, Florida, Miller lost control of the truck, ran off the side of the road and collided with an electrical power pole erected and maintained by appellee-defend-ant, St. Cloud Utilities. The collision caused the pole to snap and fall in the direction of the road. The three electrical power lines borne by the pole were not severed, but were brought in close proximity with the road as a result of the pole’s fall.

Shortly after the collision, appellee-de-fendant, David Milliron came upon the scene of the accident in his automobile. Appellant-plaintiff, Erick S. Moore, age 14, was riding as a passenger in the Milli-ron automobile. Milliron stopped, got out of his automobile and walked to the edge of the road closest to Miller and the pickup truck to inquire if he could be of assistance. Erick accompanied Milliron in this effort. It was decided that Milliron should position his automobile in such a manner as to allow the automobile’s headlights to illuminate the accident scene. While Milli-ron was so positioning his automobile, Erick, who was still standing by the edge of the road, inadvertently came into contact with one of the downed live electrical power lines. As a result, Erick sustained serious injuries.

Thereafter, plaintiffs, Erick S. Moore, a minor by and through his natural father and legal guardian Jack H. Moore, and Jack H. Moore individually, filed suit against St. Cloud Utilities, an' agency, board or commission of the City of St. Cloud, Florida, a municipal corporation, Home Insurance Company, St. Cloud Utilities’ public liability insurer, Miller, Cassel d/b/a Cassel’s Garage, Pennsylvania National Mutual Casualty Insurance Company, Cassel’s automobile liability insurer, Milliron, Nationwide Fire Insurance Company, Milliron’s automobile liability insurer, and Lumberman’s Mutual Insurance Company, Milliron’s homeowners insurer. A motion for a summary judgment filed by Nationwide was granted by the trial court as the negligence allegedly attributable to Milliron was not covered by Nationwide’s liability insurance policy. Immediately prior to trial the plaintiffs announced a $25,000 settlement with Milliron and Lumberman’s Mutual, and said parties defendant were dismissed from the suit.

The cause came on for trial. At the conclusion of the trial, the court submitted to the jury a special verdict form requiring the jury to determine the amount of damages sustained by Erick and by Erick’s father as a result of the accident, and also to determine if and to what extent negligence of Erick, Miller, Milliron and St. Cloud Utilities was the legal cause of Erick’s injuries. The jury, in returning its verdict, found that Erick sustained $450,000 damages, and that Erick’s father sustained $2U,U00 damages. In addition, the jury found that Erick, Miller, Milliron and St. Cloud Utilities were negligent, and their negligence was the legal cause of the injuries suttered by Erick in the following percentages: Erick 20% ; Miller 20%; Milliron 35%; and St. Cloud Utilities 25%. Thereafter the trial court entered final judgment apportioning liability for damages sustained by Erick and Erick’s father according to the jury’s determination of fault. Miller and Cassel d/b/a Cassel’s Garage, were adjudged liable for 20% of the respective plaintiffs’ damages, i. e., to Erick for $90,000 and to Erick’s father for $4,000. St. Cloud Utilities was adjudged liable for 25% of the respective plaintiffs’ damages, i. e., to Erick for $112,500, and to Erick’s father for $5,000. It is from this final judgment that plaintiffs appeal.

On appeal plaintiffs contend that the trial court erred in entering final judgment apportioning, as described above, liability for damages sustained by the plaintiffs.

In Hoffman v. Jones, 280 So.2d 431 (Fla.1973), the Florida Supreme Court adopted the doctrine of comparative negligence. According to the doctrine of comparative negligence, if a plaintiff and several defendants are all at fault in causing the plaintiff damages, the plaintiff may recover but the amount of his recovery may be only such proportion of the entire damages plaintiff sustained as the several defendants’ negligence bears to the combined-negligence of both the plaintiff and the several defendants.

The doctrine of comparative negligence as defined above does not alter the rule that each of the several defendants will be jointly and severally liable for all damages recoverable by the plaintiff. Lincenberg v. Issen, 318 So.2d 386, (Fla., opinion filed July 30, 1975). If one of the several defendants is required to pay more than his pro rata share of the common liability, his remedy is in the nature of contribution. See Section 768.31, Florida Statutes.

We now direct our attention to the instant case. The jury in its special verdict found that as a result of the accident Erick sustained $450,000 damages and Erick’s father sustained $20,000 damages. The Jury in its special verdict also found that in causing Erick’s injuries, Erick was 20% at fault, while Miller was 20% at fault, Milliron was 35% at fault, and St. Cloud Utilities was 25% at fault. The trial court then entered final judgment adjudging Miller liable for $90,000 to Erick and $4,000 to Erick’s father (20% of the damages sustained by each plaintiff), and St. Cloud Utilities for $112,500 to Erick and $5,000 to Erick’s father (25% of the damages sustained by each plaintiff). It was error for the trial court to so apportion the liability of Miller and St. Cloud Utilities. The trial court was required to enter final judgment adjudging Miller and St. Cloud Utilities jointly and severally liable for all damages recoverable by each of the plaintiffs, i. e., $360,000 damages recoverable by Erick and $16,000 damages recoverable by Erick’s father.

We have considered the cross-assignments of error raised on appeal by appel-lees and find them to be without merit.

Accordingly, the final judgment is reversed and the cause remanded to the trial court for entry of a judgment consistent with the views herein expressed.

Reversed and remanded, with directions.

OWEN and DOWNEY, JJ., concur.

ON PETITION FOR REHEARING

PER CURIAM.

The several appellees have filed petitions for rehearing which assert (1) that the court failed to consider the issues raised by the cross-assignments of error relating to the law of proximate cause, (2) that the court failed to determine whether the jury verdict against Miller was based upon negligence arising out of Miller’s operation of the Cassel vehicle (in which event automobile liability insurance coverage on the vehicle would be applicable), or whether the jury verdict against Miller was based upon his conduct after alighting from the motor vehicle (in which event automobile liability insurance coverage would not apply), and (3) that the court’s opinion is ambiguous as to whether upon remand the judgment is to be entered against Cassel as well as Miller and St. Cloud Utilities.

We respond to these matters seriatim: (1) We considered the issues raised by the cross-assignments of error relating to the law of proximate cause, and concluded that as to the alleged negligence of Miller in the operation of the Cassel vehicle and the alleged negligence of St. Cloud Utilities in the maintenance of its power distribution system, a jury question was presented as to whether either was a proximate cause of the plaintiff’s injuries. (2) As to making a determination as to the theory upon which the jury found Miller liable, we saw no way that such could be made from the record since the case went to the jury on both theories. (3) The opinion filed January 9, 1976 is ambiguous as to Cassel’s liability and is modified to require that the judgment to be entered upon remand is to be against Arthur L. Cassel d/b/a Cassel’s Garage jointly and severally with the other defendants as stated in the prior opinion.

The petitions for rehearing are otherwise denied.

CROSS, OWEN and DOWNEY, JJ„ concur.

      . This liability was joint and several with Pennsylvania National to the extent of $10,000, the policy limits of the liability insurance policy between Pennsylvania National and Cassel.

      . This liability was joint and several with Home Insurance to the extent of $100,000, the policy limits of the public liability insurance policy between Home Insurance and St. Cloud Utilities.

      . $450,000 damages sustained, less the amount of damages attributable to Erick’s negligence, $90,000.

      . $20,000 damages sustained, less the amount of damages attributable to Erick’s negligence, $4,000.

      . Final judgment shall reflect a credit for the amount which Milliron has already paid .pursuant to sec. 768.31(5) (a), F.S.1975.


author: PER CURIAM.

text:
    Mark George NELSON, Appellant, v. STATE of Florida, Appellee.
    No. 73-1318.
    District Court of Appeal of Florida, Fourth District.
    Feb. 27, 1976.
    Michael T. Mallon, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie Bernard, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Upon a review of the record on appeal and after due consideration of the briefs and oral argument we are of the opinion that no reversible error has been clearly demonstrated. Accordingly, the judgment appealed from is affirmed.

WALDEN, C. J., MAGER, J., and TURNER, W. ROGERS, Associate Judge, concur.

Certiorari denied, Fla., 337 So.2d 809.


text:
    PALM BEACH COUNTY, a political subdivision of the State of Florida, Petitioner, v. William Lamar ROSE, Judge, Circuit Court, Fifteenth Judicial Circuit, Respondent.
    No. 76-395.
    District Court of Appeal of Florida, Fourth District.
    March 1, 1976.
    R. William Rutter, Jr., Palm Beach County Atty., West Palm Beach, for petitioner.
   PER CURIAM.

On Friday, February 27, 1976, petition for certiorari was filed seeking to review an order entered by the Circuit Court of the Fifteenth Judicial Circuit in and for Palm Beach County, Florida, in the case of State of Florida v. Simpson, No. 75-2553-CF. The petition was accompanied by motion to stay execution of said order which motion was granted on Friday, February 27, 1976.

Upon further examination we find that the order sought to be reviewed was entered after the venue of the cause was changed from Palm Beach County to Duval County. Therefore, application for review and any supplementary relief properly belongs in the District Court of Appeal, First District. University Federal Savings & L. Ass’n v. Lightbourn, 201 So.2d 568 (Fla.App. 4th 1967).

Inasmuch as this court lacks jurisdiction to take any action, it follows that the order of this court granting petitioner’s motion to stay execution was improvidently entered and is vacated and set aside.

In light of the foregoing the petition for certiorari and motion to stay shall be transferred by separate order to the District Court of Appeal, First District, after five days’ notice due to the parties as provided by Rule 2.1a(5)(d), F.A.R.

CROSS, MAGER and DOWNEY, JJ., concur.


author: DRIVER, B. J., Associate Judge. DRIVER, B. J., Associate Judge.

text:
    Eugene J. CALLAGHAN, Appellant, v. Blanche D. CALLAGHAN, Appellee.
    No. 75-362.
    District Court of Appeal of Florida, Fourth District.
    March 26, 1976.
    Appellant’s Petition for Rehearing Granted, Appellee’s Petition for Rehearing Denied June 4, 1976.

      Mark Hicks, of Blackwell, Walker, Gray, Powers, Flick & Hoehl, Miami, for appellant.
    R. Harris Turner, of Turner & Shapiro, Miami, for appellee.
   DRIVER, B. J., Associate Judge.

Appellant, Eugene J. Callaghan, was respondent in the trial court in an action for dissolution of marriage brought by his wife, Blanche D. Callaghan. He appeals a post-judgment order denying in part his Motion to Vacate and Set Aside Final Judgment dissolving the marriage.

The parties will be referred to as they appeared in the trial court.

Petitioner-wife filed an action to dissolve the marriage between the parties. Service of process by publication was attempted in accordance with Fla.Stat. § 49.011 (1973). Respondent did not appear in the cause and default judgment was entered against him. A trial on the merits was had before Judge Weissing, who after taking testimony, entered judgment dissolving the marriage and awarding petitioner custody of the minor child of the parties. Immediately after receiving a copy of .the Final Judgment, respondent filed his Motion to Vacate Final Judgment, Set Aside Default and for Leave to File Answer and Counterpetition. It is denial of this motion that he appeals. The Motion to Vacate assigned as grounds therefor two primary errors: first, that petitioner-wife at the time of the filing of the petition had not been a resident of the State of Florida for the immediately preceding six months; and secondly, that the requirements of Fla. Stat. § 49.011, necessary to perfect service of process by publication had not been complied with and that consequently the court never acquired jurisdiction of the respondent.

We agree that there was no valid service of process as required by Fla.Stat. §§ 49.-011, 49.031, 49.041 (1973). Therefore, we do not deem it appropriate to pass upon the factual issues touching upon the residency of petitioner, but upon remand this issue should be resolved by the trial court.

The husband’s Motion to Vacate the Final Judgment was supported in every particular by his sworn affidavit. The Motion to Vacate was called up before Circuit Judge Wehle, an assigned visiting judge, and not before Judge Weissing, the original trial judge.

The motion and affidavits alleged that petitioner had falsely misstated respondent’s mailing address.

Fla.Stat. § 49.031 requires, as a condition precedent to service of process by publication under Chapter 49, the filing of a sworn statement. The matters which must be sworn to are delineated by Fla.Stat. § 49.-041, which provides:

“The sworn statement of the plaintiff, his agent or attorney, for service of process by publication against a natural person, shall show:
(1) That diligent search and inquiry have been made to discover the name and residence of such person, and that the same is set forth in said sworn statement as particularly as is known to af-fiant.” (e. s.)

Petitioner purported to comply with the statute by alleging in her sworn complaint the following:

“Respondent’s address is: Othello Lane, Muphaign, Nairobi, Kenya, P. O. Box 46971, Nairobi, Kenya.” (e. s.)

The husband’s motion and affidavit recited that his correct address was P. O. Box 20047, Nairobi, Kenya, which fact was well known to petitioner-wife, notwithstanding which she caused the Notice of Suit to be mailed to another address which was the business address of the wife. The Notice of Suit was eventually relayed on to the husband; however, he did not receive the Notice of Suit until one week after receiving a copy of the Final Judgment _which he seeks to vacate.

The order denying the Motion to Vacate recites that four factors were considered in ruling on the motion. These were:

(a) The available record
(b) The affidavit of respondent
(c) Questions directed to the wife’s counsel
(d) The fact that the wife had remarried prior to the hearing on the Motion to Vacate.

The wife did not traverse the Motion to Vacate, nor file opposing affidavits or appear at the hearing on the motion for the reason that she had remarried immediately after the Final Judgment and was someplace in the Middle East with her new husband.

The order denying the motion contained findings of fact, conclusions, and rulings of law. We hold that the factors relied upon by the trial court will not support the rulings. Patently, “questioning of counsel” is not proof and had no probative value to oppose the affidavits of the husband. It is equally patent that the remarriage of the wife had no probative value on the issue of defective service. The “available record” considered by the trial judge consisted merely of the pleadings. Notice of Suit, the purported service, the Final Judgment and the motion itself. The trial on the merits had not been reported and there was no record of the testimony. This left as the only viable factor the sworn statements of the husband in support of his motion.

While the order denied the Motion to Vacate Final Judgment, it did modify the provisions awarding custody of the child to the mother on the grounds that the court had not acquired jurisdiction over the child.

Judge Wehle apparently ruled orally on the motion at the conclusion of the hearing, but after his announced findings of fact, conclusions and rulings of law were reduced to writing, the order was actually signed by Judge Minnet. It is not necessary for us to pass upon the validity of the purported order in view of the other grounds upon which we reverse, but it is appropriate to point out that an order or judgment whose effect is dependent upon findings of fact and conclusions to be drawn from these facts should be signed by the judge before whom the facts are adduced and by whom the findings are made.

Averting now to the merits of the Motion to Vacate, we find that the sworn statement alleging the last known address of a defendant is not tantamount to nor the equivalent of a statement as to defendant’s residence as required by Fla.Stat. §§ 49.031 and 49.041. Alleging “address” instead of “residence” in the sworn statement does not meet the requirement of Chapter 49 and vitiates service attempted under the statute. The words “address” and “residence” are not synonymous within the meaning of Chapter 49. Minick v. Minick, 111 Fla. 469, 149 So. 483 (1933); Wilmott v. Wilmott, 119 So.2d 54 (1st DCA Fla.App.1960).

The constructive service statute is strictly construed against a plaintiff who seeks service of process under it. McGee v. McGee, 156 Fla. 346, 22 So.2d 788 (1945); Canzoniera, v. Canzoniera, 305 So.2d 801 (4th DCA Fla.App.1975); Wilmott v. Wilmott, supra. Service of process in this cause was never perfected upon the respondent, consequently the trial court never acquired jurisdiction over him. Final Judgment entered against respondent below is void and it was error not to grant the Motion to Vacate.

The purported service is afflicted with other infirmities. Even if the errors pointed out above were not present, flaws in the attempted service of process by publication would require reversal. The Notice of Suit was not sent to the husband’s correct mailing address. It was, instead, sent to the address of the wife’s former employer, even though the correct address was known to the wife since she had left the husband only approximately ten days prior to the filing of the suit. This court, together with our sister courts, has consistently adhered to the principle that in seeking to effect service of process by publication a plaintiff must demonstrate good faith efforts to comply with the statute.

“Further, the court should satisfy itself of the bona fides of the plaintiff in attempting to make constructive service. Minick v. Minick, 111 Fla. 469, 149 So. 483 (1933); McDaniel v. McElvy, supra; [91 Fla. 770, 108 So. 820] Green v. Nashner, supra; [216 So.2d 492] Larsen v. Larsen, 180 So.2d 393 (1st DCA Fla. 1965). . . . the test is whether the complainant reasonably employed the knowledge at his command, made diligent inquiry, and exerted an honest and conscientious effort appropriate to the circumstance to "acquire the information necessary to enable him to effect personal service on the defendant.” Canzoniera v. Canzoniera, supra, at 803.

The attempted service in this case did not comply with the precepts of the just cited authorities and was, therefore, void as to respondent.

The respondent-husband is entitled to his day in court. His Motion to Vacate Default and Final Judgment and for Leave to File Answer and Counterpetition should be granted upon remand, appellant having submitted himself to the jurisdiction of the court by his Motion for Leave to File Answer and Counterpetition.

Appellee has placed primary reliance for an affirmance on the contention that appellant did not submit to this court a “complete record.” We have not overlooked this contention, but find it without merit.

REVERSED and REMANDED for further proceedings consistent herewith.

OWEN and DOWNEY, JJ., concur.

ON PETITIONS FOR REHEARING

DRIVER, B. J., Associate Judge.

The petition of Blanche D. Callaghan, appellee, for rehearing is denied.

The petition of Eugene J. Callaghan, appellant, for rehearing is granted.

The right of a defendant to incorporate an objection to jurisdiction over his person may be joined with a request for other relief without waiving his objections to jurisdiction over his person. Green v. Roth, 192 So.2d 537 (Fla.App.2nd 1966).

Accordingly, the following language is withdrawn from the opinion rendered in this cause on March 26, 1976:

“The respondent-husband is entitled to his day in court. His Motion to Vacate Default and Final Judgment and for Leave to File Answer 'and Counterpetition should be granted upon remand, appellant having submitted himself to the jurisdiction of the court by his Motion for Leave to File Answer and Counter-petition.”

We adhere to that opinion in all other respects.

WALDEN, C. J, and DOWNEY, J.,. concur.


author: PER CURIAM. MAGER, Judge

text:
    CAMBER CORPORATION, Appellant, v. M. S. INDUSTRIES INTERNATIONAL, INC., etc., et al., Appellees.
    No. 75-1352.
    District Court of Appeal of Florida, Fourth District.
    April 2, 1976.
    Rehearing Denied July 2, 1976.
    Joel T. Daves, III, of Burdick & Daves, West Palm Beach, for appellant.
    Ben L. Bryan, Jr., of Bryan, Koblegard & Brown, Fort Pierce, for appellee.
   PER CURIAM.

AFFIRMED.

WALDEN, C. J., MAGER, J., and RUD-NICK, VAUGHN, J., Associate Judge, concur.

PER CURIAM.

ON REHEARING

Petition for rehearing denied.

WALDEN, C. J., and RUDNICK, VAUGHN, J., Associate Judge, concur.

MAGER, J., dissents.

MAGER, Judge

(dissenting):

Although the granting of a petition for rehearing is the exception rather than the rule, it seems to me that the instant petition specifies matters which this court may have overlooked in rendering its decision to affirm. The litigation below sought to establish priorities among creditors of the defunct corporation, M. S. Industries International, Inc. The trial court upheld the claim of Carlton, appellee, in the proceeds of a certain lease between Camber Corporation, appellant, and M. S. Industries International, Inc. With all due respect to the learned trial judge and the majority of this court, I am of the opinion that the record supports the claim of Camber. In particular, there is sufficient evidence to reflect that Camber held an assignment of certain lease rights, which assignment entitled Camber, rather than Carlton, to a superior interest in the proceeds of the lease.

Accordingly, I would grant rehearing and reverse.


text:
    In the Interest of S. H. L., a child.
    No. 75-1387.
    District Court of Appeal of Florida, Fourth District.
    April 9, 1976.
    Kirk N. Kirkconnell, Muller & Kirkcon-nell, P. A., Winter Park, for appellant-S. H. L., a Child.
    Robert L. Shevin, Atty. Gen., Tallahassee, by Basil S. Diamond, Asst. Atty. Gen., and Harry M. Hipler, Legal Intern, West Palm Beach, for appellee-State of Florida.
   PER CURIAM.

Appellant seeks review of the trial court’s order that withheld adjudication and placed appellant on probation under certain specified conditions.

Our review of the record demonstrates that the trial judge found appellant to be in need of supervision and thus the disposition made was within the court’s authority as provided by § 39.10 F.S.1973, and Rule 8.110 FRJP.

Appellant also complains of the trial court’s action in placing appellant in detention for a period of approximately one week without a written order as required by Rule 8.0S0 FRJP. The court’s failure to follow that rule was error. However, as appellant conceded in oral argument, that error cannot be rectified now and we record it only for the purpose of direction to the trial court.

Having found no reversible error, we affirm the order appealed from.

CROSS and DOWNEY, JJ., and FO-GLE, HARRY W., Associate Judge, concur.


text:
    John C. HICKEY, Sr., as Administrator of the Estate of John C. Hickey, Jr., Deceased, Appellant, v. John DOUGHERTY and Providence Washington Insurance Co., an Insurance Corporation, Appellees.
    No. 76-204.
    District Court of Appeal of Florida, Fourth District.
    April 30, 1976.
    G. Bruce Hill, of Adams, Best & Sears, Orlando, for appellant.
    Edna L. Caruso, of Howell, Kirby, Montgomery, D’Aiuto & Dean, West Palm Beach, for appellees.
   PER CURIAM.

Affirmed. Henley v. Liberty Mutual Insurance Company, 323 So.2d 301 (Fla.App.3d 1975).

CROSS, OWEN and MAGER, JJ., concur.

Affirmed, Fla., 338 So.2d 1072.


text:
    John C. HICKEY, Sr., as Administrator of the Estate of John C. Hickey, Jr., Deceased, Appellant, v. John DOUGHERTY and Providence Washington Insurance Co., an Insurance Corporation, Appellees.
    No. 76-204.
    District Court of Appeal of Florida, Fourth District.
    May 20, 1976.
    G. Bruce Hill, of Adams, Best & Sears, Orlando, for appellant.
    Edna L. Caruso, of Howell, Kirby, Montgomery, D’Aiuto & Dean, West Palm Beach, for appellees.
   ORDERED that appellant’s May 10, 1976 Petition for Rehearing is hereby denied, and further,

ORDERED that the following question passed upon in this court’s opinion filed April 30, 1976, is certified to the Supreme Court of Florida as a question of great public interest, to wit:

“Whether § 1[.01](14) or § 743.07, Florida Statutes, purport to and/or expressly or impliedly repeal or amend the provisions of §§ 768.16-768.27, Florida Statutes, so as to change the definition of the word ‘minor’ contained in the latter statutes to mean ‘any unmarried child under the age of twenty-one years of age.’ ”


text:
    T & I LEASING, INC. and Canal Insurance Co., Appellants, v. Laura Dawn POMIANOWSKI, Appellee.
    No. 75-1944.
    District Court of Appeal of Florida, Fourth District.
    May 28, 1976.
    Chester E. Whittle, Jr., of Virgin & Whittle, Miami, for appellants.
    Fred J. Berman of Simons & Schlesinger, Hollywood, for appellee.
   PER CURIAM.

Appellant-defendants, T & I Leasing, Inc. and Canal Insurance Company, take an interlocutory appeal from a trial court order denying T & I Leasing’s motion to set aside default in an action seeking damages for personal injuries sustained by ap-pellee as a result of alleged negligence in the operation of an automobile.

Upon review of the record on appeal and after consideration of briefs and oral argument of counsel for the respective parties, we determine that the trial court abused its discretion in declining to set aside the default entered against T & I Leasing, Inc. so as to permit determination of the controversy on the merits.

Accordingly, the order herein appealed is reversed and the cause remanded for further proceedings consistent with the views herein expressed.

CROSS and MAGER, JJ., and TROW-BRIDGE, C. PFEIFFER, Associate Judge, concur.


text:
    F. Malcolm CUNNINGHAM, Appellant, v. STATE of Florida, Appellee.
    No. 75-1122.
    District Court of Appeal of Florida, Fourth District.
    June 18, 1976.

      Jesse J. McCrary, Jr., of McCrary, Ber-kowitz & Davis, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

This appeal brings up for review a judgment of conviction of indirect criminal contempt entered in proceedings filed under RCrP Rule 3.840.

We have examined the briefs and record and heard argument of counsel. The evidence was conflicting. However, there is competent substantial evidence to support the judgment of conviction. In such a situation, we should not substitute our judgment for that of the trial judge, who heard the testimony of and saw the demeanor of the witnesses and the appellant, on a question of fact. 2 Fla.Jur., Appeals, Sections 346 and 347, pages 721-730, and authorities cited.

The other points raised on appeal have been considered and found to be without merit.

Accordingly, the judgment appealed from is affirmed.

CROSS and MAGER, JJ., and SMITH, D. C., Associate Judge, concur.


text:
    Peter BELL, Appellant, v. STATE of Florida, Appellee.
    No. 75-1699.
    District Court of Appeal of Florida, Fourth District.
    June 25, 1976.
    Richard L. Jorandby, Public Defender, and Mitchell J. Beers, Asst. Public Defender, West Palm Beach, for appellant.
    No appearance for appellee.
   PER CURIAM.

This matter came before the court upon appellant’s motion for new trial due to inability to reconstruct trial transcript. The trial judge has filed a certificate stating that the court reporter’s notes of the trial have been lost or destroyed and are not available. The trial court has determined that it is impossible because of lapse of time to reconstruct the evidence in this case.

ORDERED and ADJUDGED that the final judgment of conviction and sentence here under review be and the same is hereby set aside, and the appellant is remanded to the trial court for the purpose of being accorded a new trial. Jackson v. State, 308 So.2d 600 (Fla.App.3rd, 1975).

WALDEN, C. J., ALDERMAN, J., and DAKAN, STEPHEN LEE, Associate Judge, concur.


text:
    Joe LEVIN and Dorothy Levin d/b/a Creative Tile Design Co., Appellants, v. Albert S. KHOURI and Mary Khouri, his wife, d/b/a Continental Plaza, Appellees.
    No. 75-2087.
    District Court of Appeal of Florida, Fourth District.
    July 2, 1976.
    Morton Abrams, of Sitomer & Abrams, Fort Lauderdale, for appellants.
    Donald H. Norman, of Ross, Norman & Cory, Fort Lauderdale, for appellees.
   PER CURIAM.

AFFIRMED.

WALDEN, C. J., and ALDERMAN, J., concur.

MAGER, J., dissents, with opinion.

MAGER, Judge

(dissenting):

In my opinion a genuine issue of material fact exists with respect to the proposition of whether the consent of the lessor (appel-lees) to a proposed use (and assignment) of the leased premises was unreasonably withheld. It appears to me that the language contained in the lease was, as a matter of law, sufficiently broad so as to permit the lessee (appellants) to make such other uses of the leased premises as might be consented to by the lessor. Hence the issue of material fact concerning whether such consent was unreasonably withheld. I would therefore reverse to permit a trial on the merits.


text:
    STANDARD CONSTRUCTION OF FLORIDA, INC., and Cotton States Mutual Insurance Company, Appellants, v. PRICE & WEEKS PLASTERING, INC., Appellee.
    Nos. 75-1733, 75-1792.
    District Court of Appeal of Florida, Fourth District.
    July 9, 1976.
    Eli H. Subin, of Subin, Shams, Rosen-bluth & Moran, Orlando, for appellants.
    J. Stuart Smith, Orlando, for appellee.
   PER CURIAM.

Affirmed upon authority of Continental Cas. Co. v. Krauss Air Conditioning, Inc., 184 So.2d 485 (Fla.App.2nd, 1966).

MAGER, C. J., ALDERMAN, J., and DURANT, N. JOSEPH, Jr., Associate Judge, concur.


author: LEE, THOMAS E., Associate Judge.

text:
    Larry KERSEY and Primitivo Rios, Appellants, v. CITY OF RIVIERA BEACH, a Florida Municipal Corporation, Appellee.
    No. 75-965.
    District Court of Appeal of Florida, Fourth District.
    July 9, 1976.

      Robert V. Romani, of Farish & Farish, West Palm Beach, for appellants.
    Allen V. Everard and Nicholas P. Well-man, Riviera Beach, for appellee.
   LEE, THOMAS E., Associate Judge.

This appeal is before us on appellants (plaintiffs below) challenging the trial court’s ruling, in a non-jury trial, favoring the appellee (defendant-City) in employing them at a pay rate of Patrolman rather than as Identification Officers in the police echelon of appellee. Appellants principal contention is the trial court erred in admitting the documentary and oral testimony in the case to support an affirmative defense not previously pleaded by appellee or changing the applicable law of the case following the presentation of all the evidence.

Factually, the City of Riviera Beach, Florida, Department of Police, desired to restructure its Identification Department for the purpose of having a more sophisticated bureau to collect, classify and identify physical evidence, finger prints and technical photographic works. To staff the bureau, a table of echelon was to be established consisting of Captain, Lieutenant, Sergeant and Identification Officer. Their salary, under a new enabling ordinance, was to be similar to that of their counterparts in the long-established police department.

In furtherance of this plan appellants Larry Kersey and Primitivo Rios (both seasoned identification officers from another city) were hired as Identification Officers on January 17, 1972 and February 7, 1972, respectively, at a starting salary of $158.46 per week. However, at this time, City Ordinance Number 883 was in effect which provided for the starting salary of an Identification Officer to be $178.31. It had 'been explained to appellants that their salary would come from the Department of Police as there was no provision in the current budget for their salary. On April 5, 1972, enabling legislation, City Ordinance Number 902 was passed to provide for the Department of Police expansion and the payment of salaries for additional personnel employed to staff the identification bureau. Checking through their personnel records, appellants discovered that they should have been employed by appellee at the higher weekly salary and after demand for the increased compensation under Ordinance Number 883 suit was instituted by them resulting in judgment for appellee. This appeal followed.

The first point raised by appellants is:

Whether the trial court erroneously permitted testimony regarding appellee’s budgetary restrictions when reliance on said budget was never set forth as affirmative defense by the appellee and was therefore totally irrelevant and immaterial to the applicable law of the case.

Rule 1.110(D) FRCP states that a party shall set forth affirmatively . . . estoppel . . . illegality . . and any other matter constituting an avoidance or affirmative defense. Accordingly it has long been held in Florida that affirmative defenses must be pleaded or they are considered waived. Con-Dev of Vero Beach, Inc. v. Casano, Fla.App., 272 So.2d 203 (1972); Wise v. Quina, Fla.App., 174 So.2d 590 (1965); Bradford Builders, Inc. v. Dept. of Water and Sewers, Fla.App., 142 So.2d 137 (1961). Specifically, estoppel must be affirmatively pleaded or it is waived, see Davis v. Evans, Fla.App., 132 So.2d 476 (1961). The principal defense raised by appellee was a budgetary estoppel argument; however, this defense was not affirmatively pleaded in the record. Even if the budget argument relied upon by appellee was not an estoppel, it would still be in the nature of a defense in justification and excuse, which also must be affirmatively pleaded or it is waived. The record reveals that the trial court expressly recognized the deficiency in appellees’ answer (transcript 36 and 278). In fact, the trial judge stated in the record:

. “I agree with him at this point that this case has not been properly pled and if you are going to set up a different type of employment that should have been done by affirmative defense . . .”

The record further reveals that the court stated:

“Gentlemen, this has been a difficult case for the Court to hear. Part of the problem has been due to the inartfulness or the problems created by the pleadings and the City’s response was far from adequate to the complaint that was filed

While there is an exception to the rule that affirmative defenses must be pleaded or they are waived, i. e. if they can be proven by the pleadings or the proof, such an exception presupposes ac-quiesence by opposing counsel. In this case sub judice appellants expressly objected to the introduction of budgetary estoppel as a defense. The record further reveals that while it may be argued that appellees should be allowed to amend their answer so that it conforms with the evidence (the allegata et probata) the city did not move to amend their answer in the lower court. Furthermore, the court may grant leave to amend over the objection of counsel only if the objecting party fails to satisfy the court that admission of the evidence will prejudice his case. FRCP 1.190(b). Finally, in the instant case the record further reveals that the court took cognizance of, and gave considerable weight to the budgetary estoppel argument.

It is abundantly clear in the record, the ruling was erroneous in that appellant demonstrated that they had timely objected to the budgetary argument and such ruling prejudiced their case. See Hart Properties, Inc. v. Slack, Fla.App., 145 So.2d 285. Also McArthur v. Cook, Fla., 99 So.2d 565.

For the reasons above stated, appellants first point is dispositive of this appeal and the additional points on appeal have not been considered. The final judgment accordingly is reversed and the cause remanded to the trial court for a new trial on the issue of the amount of compensation, if any, to he awarded to the appellants.

REVERSED.

WALDEN, C. J., and DOWNEY, J., concur.


author: SCHULZ, GEORGE E., Associate Judge. PER CURIAM.

text:
    Edna C. EVANS, Appellant, v. Henry H. EVANS, Appellee.
    Nos. 75-720, 75-997.
    District Court of Appeal of Florida, Fourth District.
    July 9, 1976.
    Rehearing granted and opinion amended, Aug. 31, 1976.

      John M. Cain, Orlando, for appellant.
    Tanya M. Plaut, Orlando, for appellee.
   SCHULZ, GEORGE E., Associate Judge.

This is an appeal by the wife and cross appeal by the husband from a final judgment of dissolution of marriage ending the parties’ twenty-three year marriage. The dispute is mainly over the division of assets owned by the parties during the marriage. Wife, 51 years of age, is a school teacher, earning $9,500 annually. Husband, aged 52, earns about $270 weekly. There were four children of the marriage; only one is still a minor.

The following are the assets in dispute: the original marital home of the parties, held jointly, was sold in 1973 for $22,530; an existing mortgage on the property in the amount of $4,605 had been paid off previously by the husband from his stock income. The husband’s stock investments helped supplement the family income when the stocks appreciated; hence $18,000 of the approximately $22,000 realized from the sale of the marital home was invested in stocks. The wife denies she consented to the stock venture, but wanted to use the money as a down payment on another home.

Later, a new marital home was purchased by the parties. The down payment of $20,000 was borrowed from the wife’s family and a note for this loan was signed only by the wife. At the time of final judgment, the parties still held title to the property with a value of $53,500 and an existing mortgage of $32,326.

The other property in dispute was an apartment house built by the parties together with the husband’s parents. In 1970 this property was sold for an approximate $30,000 cash down payment and a $184,600 note and mortgage made payable jointly to the parties involved in this suit and to the husband’s mother, his father being deceased by this time.

The husband purchased additional stock from cash he received from the apartments and at time of trial owned stock, in his name only, amounting to $29,000, but with a $16,000 pledge against it.

The foregoing sums up the major assets held by these parties during their marriage.

The learned trial judge in his final judgment dissolving the marriage provided as follows:

1. That custody of the minor child be awarded to the wife and that the husband pay child support of $75 weekly.

2. That the $20,000 down payment on the new marital home was a loan and not a gift to the wife and that therefore she had established a special equity in that amount in the home; that the wife be awarded as lump sum alimony the balance of the equity in the new marital home; that the wife additionally be awarded lump sum alimony of $5,000 in satisfaction of her interest in the former marital home; and, lastly, that she be awarded a 1967 Mercedes automobile.

3. That the husband had established a special equity in the wife’s interest in the mortgage held on the apartment house, plus a special equity in the stock, and that a Fiat automobile was his sole property.

4. That each party pay his or her own attorney fees and costs.

The court did not retain jurisdiction.

It is the feeling of this court that to establish special equities the burden is on the party so claiming to prove his or her entitlement by more than just a greater weight of the evidence. In this case the submitted proofs and facts fall way short of the necessary burden required to establish a special equity by either party. By eliminating the special equities, the parties become, by operation of law, Fla.Stat. § 689.15(1973), tenants in common of the marital home (the husband, however, being chargeable for one-half of the $20,000 loan) and the mortgage receivable on the apartment property (each to receive one half of the mortgage payments made from the date of the final judgment).

We will not disturb the other provisions of the final judgment, including the lump sum alimony of $5,000 to the wife, since this represents closely her interest in the stock held in the name of the husband. In view of this court’s holding on the issue of special equities, which lessens the financial interests of the husband, the trial court may desire to review and modify the amount of child support payments.

The only other matter in this case we feel constrained to discuss is the trial court’s failure to reserve jurisdiction. The wife appears to be able to support herself and the minor child at the present time by teaching school and with the help of child support payments. In a few years, however, the minor child will be emancipated, and the wife will be in her middle or late fifties, a time when health can be a problem, and her ability to compete in the job market will not be the best. For this reason, the trial court should have reserved jurisdiction to consider future alimony for the wife. See, Melton v. Melton, 251 So.2d 705 (Fla.App.1st 1971).

We further think that the wife should have possession of the marital home as long as she has custody of the minor child, subject to her paying taxes, insurance, and upkeep on the home while in possession, with entitlement to credit when the home is sold or partitioned.

We thus conclude that it was error for the trial court to establish special equities for either party, and further error not to reserve jurisdiction to consider future alimony for the wife.

For the foregoing reasons, the trial court is directed, on remand, to modify the final judgment consistent with this opinion and, as so modified, the amended final judgment is affirmed.

Reversed in part; affirmed in part.

WALDEN, C. J., and DOWNEY, J., concur.

ON PETITION FOR REHEARING

PER CURIAM.

The parties have jointly petitioned for clarification and/or rehearing, pointing out that our opinion fails to designate who is to make the mortgage payments on the marital home which is in the possession of the appellant.

It was our intention to provide that the appellant should make the mortgage payments while she has possession pursuant to the final judgment, and that upon sale or partition she will be entitled to credit for those payments which she has made.

Accordingly, the petition for clarification and/or rehearing is granted and our opinion published July 9, 1976, is amended to that extent only.

WALDEN and DOWNEY, JJ., and SCHULZ, GEORGE E., Associate Judge, concur.


text:
    Onkar Singh NARULA, Appellant, v. ORANGE MOTORS OF MIAMI, INCORPORATED, Appellee.
    No. 76-83.
    District Court of Appeal of Florida, Third District.
    Aug. 3, 1976.
    Rehearing Denied Sept. 10, 1976.
    I. R. Mayers, Miami, for appellant.
    Fine & Brownstein, John A. Murray, Miami, for appellee.
    Before HENDRY and NATHAN, JJ., and SACK, MARTIN, Associate Judge.
   PER CURIAM.

Plaintiff, Onkar Singh Narula, appeals an order transferring this cause to the county court for lack of jurisdiction over the subject matter.

Plaintiff filed a complaint in the Dade County circuit court, alleging that he brought his car in to the defendant, Orange Motors of Miami, Incorporated, for repairs, and while the car was on Orange Motor’s premises, the keys were stolen. Orange Motors replaced the stolen keys with a hideaway ignition key which they found under the hood of the car, but failed to so advise the plaintiff when he picked up his car. Subsequently, the automobile was stolen from the plaintiff’s residence. In the complaint the plaintiff sought compensatory damages for the loss of the automobile valued at $6,800, rental car payments of $271.44, loss of personal articles in the car of approximately $50, plus punitive damages.

It is undisputed that the plaintiff’s insurance company paid him the full $6,800 for the loss of' his car, and that upon payment, the plaintiff transferred title to his automobile to the insurance carrier. The insurance company also paid the rental car bill of $271.44. This left the $50 claim for personal property and the claim for punitive damages. On motion of the defendant, the circuit judge entered an order transferring the cause to the county court because having been paid once for the loss of the car, the plaintiff’s recoverable damages were not within the circuit court’s jurisdiction which is in excess of $2,500. We reverse.

In Titus v. Emmco Insurance Company, Fla.App.1959, 109 So.2d 781, where the insured had been paid for a particular loss under his policy of insurance, by his own insurer, he nevertheless brought suit in his own name against the third party tort fea-sor to recover his damages, including those damages already paid by his own insurer. . . [H]ad there been no insurance, we would not expect to find a plaintiff accepting with alacrity a ruling which totally prevented any recovery from the wrongdoer.” Titus v. Emmco Insurance Company, supra, at 782. In the opinion, this court pointed out, however, that there is a fiduciary relationship between the insured and his insurer, to whom he owes an accounting under the subrogation clause of his insurance policy. As stated in De Cespedes v. Prudence Mutual Casualty Company of Chicago, Illinois, Fla.App.1966, 193 So.2d 224, 227, quoting 16 Couch, Cyclopedia of Insurance Law, § 61.18 (2nd Ed. 1964),

“ ‘. . . a wrongdoer who is legally responsible for the harm should not receive the windfall of being absolved from liability because the insured had the foresight to obtain, and had paid the expense of procuring, insurance for his protection

Reversed.


author: PEARSON, Judge.

text:
    George Edward WALKER, Sr., Individually, and as Administrator of the Estate of George Edward Walker, Jr., Appellant, v. The CITY OF MIAMI, a Municipal Corporation of the State of Florida, et al., Appellees.
    Nos. 75-1208, 75-1207.
    District Court of Appeal of Florida, Third District.
    Sept. 14, 1976.

      Podhurst, Orseck & Parks, Arthur Lee Willner, Susan Goldman, Miami, for appellant.
    Wicker, Smith, Blomqvist, Davant, McMath, Tutan, O’Hara and Richard A. Sherman, Fowler, White, Burnett, Hurley, Banick & Knight, Miami, for appellees.
    Before PEARSON, HENDRY and HAV-ERFIELD, JJ.
   PEARSON, Judge.

The appellant, George Edward Walker, Sr., has brought two actions arising out of the death of his son, one in his individual capacity and the other as administrator of the Estate of George Edward Walker, Jr., pursuant to Fla.Stat. §§ 768.03 and 46.021 (1971). The causes were consolidated for trial and the separate appeals have been consolidated in this court. In addition, for trial purposes, the trial court consolidated with the Walker cases the case of Norman E. Lyon, whose son was killed in the same accident. These appeals now before us are from the final judgments in the Walker actions.

The appellant received from the jury verdicts of $100,000.00 in damages in the wrongful death action and $15,000.00 in the survival action. Appellant’s motion for a new trial was grounded upon a claimed inadequacy of the amount of the verdicts and, as basis therefor, the motion cited alleged errors in the court’s ruling upon the pleadings as well as rulings on evidence and argument during trial. We have reviewed each of the assigned errors in light of their possible effect upon the claimed inadequacy of the verdict and find that the trial judge did not abuse his discretion in denying the motion for a new trial. See Alicot v. Dade County, Fla.App.1961, 132 So.2d 302.

Appellant urges error in the consolidation for trial of the Walker and the Lyon cases. The ruling of the trial court in consolidating these actions for trial is expressly provided for by RCP 1.270. At the time of the ruling, the negligence issues were identical. There was no distinctive or different claim for damages which, upon the face of the pleadings, made consolidation for trial inconvenient or prejudicial to the claims of plaintiff Walker. After the order of consolidation for trial and immediately prior to trial, the defendants admitted liability. If, at that time, it appeared to plaintiff Walker that some prejudice attached to him in the proof of his damages, relief should have been sought pursuant to subsection (b) of the rule expressly providing for an order for separate trial of any claim where the court determined that a separate trial would be in the furtherance of convenience or would avoid prejudice. The convenience of the joint trial where the trial was long and expensive is apparent. The motion claiming prejudice was made after the trial. The error assigned upon the order consolidating the causes for trial is not well-taken.

The record does not reveal prejudice during trial due to consolidation that can be said to have contributed to the claimed inadequate verdicts. The appellant points to claims of greater suffering by this father; however, the amount of the verdict rests with the jury and will not be set aside as being inadequate unless the inadequacy clearly appears or the record reveals prejudice or sympathy as a basis for the verdict. See West v. Food Fair Stores, Fla.App.1974, 305 So.2d 280. We recognize that a joinder of two plaintiffs for the trial of their separate damages would not ordinarily be made where the separate damages were the only issues to be tried. In the present case, where no mention of separate trials was made on the damage issues until after trial and the record of the trial does not reveal any substantial prejudice because of the joint trial, we hold that it was not error to deny the motion for new trial upon the ground of the claimed error of the joinder. See the rule in Ridarsick v. Amirkanian, Fla.App.1962, 147 So.2d 580; and Morin v. Halpern, Fla.App.1962, 139 So.2d 495, 2 A.L.R.3d 439.

A second claimed error in the court’s rulings upon the pleadings is that the court erred in striking the plaintiff’s claim for punitive damages. Punitive damages against the City of Miami were stricken on the basis of cases holding that punitive damages are not allowable against a municipality. Fischer v. City of Miami, Fla. 1965, 172 So.2d 455; and Modlin v. Washington Avenue Food Center, Fla.App.1965, 178 So.2d 596. The order striking the claim for punitive damages against Wagner Electric Company was entered after pretrial conference. Plaintiff did not develop any theory of the evidence through discovery or during trial that would bring this case within the rule requiring wantonness or reckless indifference and disregard. See Ingraham v. Pettit, Fla.App.1974, 303 So.2d 703; Tuel v. Hertz Corporation, Fla.App.1974, 296 So.2d 597.

As to the conduct of the trial, the appellant urges error in the court’s exclusion of photographs of the deceased child taken at the morgue. He argues that the photographs were relevant to the amount of his mental suffering and the evidence did show that he viewed his son’s body at the morgue. The trial court, in its discretion, admitted into evidence two photographs showing the accident scene and the body of the minor son. In addition, the father was allowed to describe the scene and the condition of the body at the time that he viewed his son’s body at the morgue. Because the photographs were cumulative and added nothing on any disputed issue, we hold that an abuse of discretion is not shown. See Driscoll v. Morris, Fla.App.1959, 114 So.2d 314.

A second point directed to the conduct of the trial urges error upon defense counsel’s argument to the jury. Plaintiff’s counsel, in closing argument, urged a liberal verdict because of the value of human life and referred to the earning capacity of certain persons in professional sports. In response, counsel for the defendants referred to the amounts paid under the workmen’s compensation law and an average insurance contract. Both arguments were outside the scope of the evidence. But, in view of the latitude allowed in argument and the court’s instruction that such arguments were not evidence, we do not think that reversible error is shown. See Metropolitan Dade County v. Dillon, Fla.App. 1974, 305 So.2d 36; Lovell v. Henry, Fla.App.1968, 212 So.2d 67; and H. I. Holding Company v. Dade County, Fla.App.1961, 129 So.2d 693.

Appellant’s remaining points have been examined and found not to present reversible error; accordingly, this appeal from the denial of a new trial upon the basis of a claimed inadequate verdict is hereby affirmed.

Affirmed.

      . Under the circumstances of this case, these statutes have been superseded by Fla.Stat. § 768.16 et seq.

      . See RCP 1.450.


text:
    Hubert BROWN and Betty Brown, Appellants, v. Christopher R. PIESER and American Service Mutual Insurance Company, Appellees.
    No. 75-1227.
    District Court of Appeal of Florida, Third District.
    Sept. 14, 1976.
    Wayne, Genden & Bach, Miami, for appellant.
    Adams, George, Wood, Lee & Schulte and David L. Willing, Miami, for appellees.
    Before BARKDULL, C. J., and HENDRY and NATHAN, JJ.
   PER CURIAM.

Affirmed. H. I. Holding Company v. Dade County, 129 So.2d 693 (Fla. 3d DCA 1961); Carson v. Iacona, 281 So.2d 226 (Fla. 3d DCA 1973); Heymann v. Fusco, 132 So.2d 216 (Fla. 3d DCA 1961); White v. Bacon, 166 So.2d 678 (Fla. 3d DCA 1964); Clark v. Yellow Cab Co. of Miami, 195 So.2d 39 (Fla. 3d DCA 1967).


author: SACK, MARTIN, Associate Judge.

text:
    Allan H. APPLESTEIN, Appellant, v. KNIGHT NEWSPAPERS, INC., an Ohio Corporation, licensed and doing business in the State of Florida, Appellee.
    No. 75-1291.
    District Court of Appeal of Florida, Third District.
    Sept. 14, 1976.
    Vandroff, Mandell & Freshman, Miami, for appellant.
    Paul & Thomson, Miami, Jerry B. Katzen, South Miami, for appellee.

      Before PEARSON and NATHAN, JJ., and SACK, MARTIN, Associate Judge.
   SACK, MARTIN, Associate Judge.

By this appeal, we are called upon to review the following final summary judgment entered by the trial court:

* * * * * *
“1. Defendant asserts that, as a matter of law, Plaintiff is a ‘public figure’ as defined in Butts v. Curtis Pub. Co., 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967) and Gertz v. Welch, 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974) and, as such, Plaintiff must show by clear and convincing evidence that the matters complained of in the Complaint were published with ‘actual malice’ as defined in New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) and its progeny. The Court finds that this contention of Defendant need not be passed upon, since the Court has determined that Defendant’s Motion must be granted even if Plaintiff is not a ‘public figure.’
“2. (a) Plaintiff has alleged that the following passage in the article published by Defendant on May 25, 1972 is false and defamatory:
‘For Applestein, 40,130 Casuarina Concourse, Coral Gables, Florida, Thursday’s adventure was not his first effort to aid authorities.
‘Three months ago he was accused of stopping an off duty Miami policeman he claimed was speeding and while representing himself as Criminal Court Judge Paul Baker, “arresting” the motorcyclist.
‘More than a year ago, Applestein was charged with attempting to arrest a summons-serving Metro deputy at gunpoint. Charges were not pressed in either case.’
There is no genuine issue of material fact that each statement in the foregoing passage is true in all material respects. In particular the truth thereof is shown by the records of the Coral Gables Police Department filed in support of Defendant’s Motion for Summary Judgment and the affidavit of Edward W. Abboud.
(b) Plaintiff has alleged that the following statement in the article published by the Defendant on May 28,1972 is false and defamatory:
‘Another time Applestein was charged — but never convicted — with attempting to “arrest” a Metro deputy at gunpoint.’
There is no genuine issue of material fact that such statement is true in all material respects. In particular the truth thereof is shown by the deposition of Plaintiff and the records of the Coral Gables Police Department filed in support of Defendant’s Motion for Summary Judgment.
(c) Plaintiff has alleged that the following statement in the article published by the Defendant on June 9, 1972 is false and defamatory:
‘Applestein once was accused of stopping a speeder and identifying himself as Criminal Court Judge Paul Baker. The charge was later dropped.’
There is no genuine issue of material fact that such statement is true in all material respects. In particular the truth thereof is shown by the records of the Coral Gables Police Department and the affidavit of Officer Edward W. Abboud filed in support of Defendant’s Motion for Summary Judgment.
(d) Plaintiff has alleged that the following passage in the article published by the Defendant on June 15, 1972 is false and defamatory:
‘Judge Dunn’s office said the Judge suspended the jail sentence pending “future good behavior” by Applestein.’ ‘In a June 9 article reporting the conviction of Applestein for impersonating a police officer, The Herald reported Applestein had once been charged with impersonating Criminal Court Judge Paul Baker.’
There is no genuine issue of material fact that each each statement in the foregoing passage is true in all material respects. In particular the truth thereof is shown by the affidavit of Susan Burnside filed in support of Defendant’s Motion for Summary Judgment.
“3. The four statements were contained in articles published by Defendant as a part of its regular coverage of law enforcement activities and judicial proceedings and were published for the purpose of informing the public.
“CONCLUSIONS OF LAW
“1. Under Gertz v. Welch, supra, assuming that Plaintiff is not a ‘public figure’, Plaintiff is required to show the material statements alleged in the Complaint to be defamatory in the four articles published by Defendant were false.
“2. There is no genuine issue as to the truth of the material statements alleged in the Complaint to be defamatory.
“3. There is no genuine issue as to any material fact and Defendant is entitled to a summary judgment as a matter of law. “ORDER
“1. Final Summary Judgment is hereby entered in favor of Defendant and against Plaintiff and this action is dismissed with prejudice.
“2. Defendant shall recover of Plaintiff its costs in this action.”
$ # * if: 9|e sfe

Having heard argument herein and considering all points raised on appeal, we find the trial judge was eminently correct and the final summary judgment appealed is hereby affirmed.

Affirmed.


text:
    Irwin BRENNER and Daniel Akins, Appellants, v. STATE of Florida, Appellee.
    No. 75-1356.
    District Court of Appeal of Florida, Third District.
    Sept. 14, 1976.

      Lurie & Capuano, Miami, and Jack R. Nageley, Miami Beach, for appellants.
    Robert L. Shevin, Atty. Gen., and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before PEARSON, HENDRY and HAV-ERFIELD, JJ.
   PER CURIAM.

Defendants, Irwin Brenner and Daniel Akins, appeal their judgments of conviction and sentences for (1) aiding or assisting in conducting a lottery, and (2) possession of lottery paraphernalia. The relevant facts giving rise to this appeal are as follows:

On December 3, 1974 the City of Miami police began an investigation into illegal gambling operations and defendants along with six other persons were placed under surveillance. Upon concluding the investigation, the police prepared warrants to search the homes and automobiles of the eight suspects and on February 24, 1975 submitted these warrants along with 12 lengthy affidavits to Judge Weaver who issued the search warrants. As a result, defendants were arrested and charged with (1) aiding in conducting a lottery, (2) possession of lottery tickets, and (3) possession of lottery paraphernalia. Defendants pled not guilty and moved to quash the search warrants and suppress the evidence seized. When their motion was denied, they entered into plea negotiations. In exchange for the court’s acceptance of their pleas of nolo contendere, the State abandoned count 2 of the information and the court adjudicated defendants guilty on counts 1 and 3. As to count 1, defendants were sentenced to five years imprisonment (with three years being withheld) and at the completion of two years, to be placed on probation. As a special condition of probation defendants agreed to pay their proportional share of the investigative cost incurred by the police. Sentencing as to count 3 was stayed and withheld. This appeal followed.

Defendants first contend that the court erred in denying their motion to quash the search warrants and suppress the evidence because (1) the issuing judge failed to make an independent determination of probable cause as there was no showing that he examined each of the affidavits separately, and (2) part of the investigation was carried on outside the limits of the City of Miami. We cannot agree.

First, there is a presumption that officials properly perform their required duties. Purdy v. Mulkey, 228 So.2d 132 (Fla.3d DCA 1969); Jones v. State, 296 So.2d 519 (Fla.3d DCA 1974). The search warrants Judge Weaver signed clearly state that he found probable cause for their issuance. All the affidavits being identical and containing sufficient facts to justify a finding of probable cause, defendants have failed to overcome the presumption of the proper performance. Second, a trial court’s ruling on a motion to suppress comes to this court with a presumption of correctness and in testing the accuracy of the trial court’s conclusion, we should interpret the evidence and all reasonable inferences and deductions capable therefrom in a light most favorable to sustain these conclusions. Cameron v. State, 112 So.2d 864 (Fla. 1st DCA 1959); Rodriguez v. State, 189 So.2d 656 (Fla.3d DCA 1966); Wigfall v. State, 323 So.2d 587 (Fla.3d DCA 1975). Guided by this principle of law, we find no error on the part of the trial judge in denying the motion to suppress.

As to the argument that part of the investigation was improperly conducted by the Miami police outside the City of Miami limits, only part of their surveillance took place outside the city limits, and no actions against the defendants was taken outside the jurisdiction of the City of Miami. Therefore, the search «warrants would not be invalid. Cf. Collins v. State, 143 So.2d 700 (Fla.2d DCA 1962).

Defendants next urge as reversible error the assessing of costs against them based upon the City of Miami’s cost of the investigation.

The record clearly demonstrates that defendants entered into plea negotiations and freely agreed to pay their prorata share of the cost of the investigation as a condition of probation. Having consented to this arrangement, defendants will not be permitted to renege on their agreement.

In addition, Section 948.03, Florida Statutes is sufficiently broad to allow for the imposition of intermittent imprisonment and payment of a fine as conditions of probation. State v. Williams, 237 So.2d 69 (Fla.2d DCA 1970); Brown v. State, 302 So.2d 430 (Fla. 4th DCA 1974); Gryca v. State, 315 So.2d 221 (Fla. 1st DCA 1975). We find the assessment against the defendants of their prorata share of the investigative costs as constitutionally permissible and enforceable in that defendants do not argue that they are insolvent. See Gryca, supra, at 223. Thus, this contention of defendants must fail.

Defendants third and final point that their sentences as to count 1 takes away their rights and the prerogative of the probation board to decrease the two year incarceration is without merit. See Section 948.01(4), Florida Statutes.

Judgments and sentences affirmed.


text:
    C. I. P. STUDIOS, LIMITED, Appellant, v. SPA HEALTH CLUB, INC., Appellee.
    No. 75-1596.
    District Court of Appeal of Florida, Third District.
    Sept. 14, 1976.

      Myers, Kaplan, Levinson & Kenin and Peter H. Leavy, Miami, for appellant.
    Henry L. Kaye, Hollywood, for appellee.
    Before BARKDULL, C. J., and HENDRY and NATHAN, JJ.
   PER CURIAM.

This is an appeal by the plaintiff, C.I.P. Studios, Limited, from a final judgment in favor of the defendant, Spa Health Club, Inc., allowing the defendant a set-off from the plaintiff’s judgment.

This action stems from a contract whereby the plaintiff was to print 150,000 advertising brochures for the defendant, Spa Health Club, for a specified sum. The defendant furnished the plaintiff printer with the written information and with a photograph of a statue on the defendant’s premises, to be used in the brochure. The defendant made one payment in advance, but when the plaintiff delivered the merchandise, the postdated checks given to the plaintiff by the defendant were dishonored, and the defendant refused to pay the balance due. The plaintiff filed suit for the remaining $8,496 due on the contract. The defendant answered and by affirmative defense stated that it was entitled to a set-off of the purchase price because the merchandise delivered was not useable and not in accordance with the order and because the plaintiff delivered all 150,000 brochures at once, even though it was to deliver only 50,000 at a time.

As requested by the defendant, the brochure contained a photograph of the statue in front of defendant’s place of business (depicting a woman and a man holding a globe of the world above his right shoulder). The defendant was prevented from using the brochures due to a trademark infringement involving the globe of the world held by the statue. The cause was heard non-jury, resulting in a final judgment in favor of the plaintiff for the total unpaid purchase price of the brochures with interest, allowing the defendant a set-off of the cost of removing the globe from the brochures. The defendant contends it was entitled to the set-off because the plaintiff printer had a duty to recognize that there was a trademark infringement making the brochure unuseable unless the globe were removed.

The questions on appeal are whether the trial court erred in awarding the defendant a set-off, whether the printer should have known of the trademark infringement, and whether an oral agreement not to deliver all 150,000 brochures at once, is valid and binding. The record reflects that the defendant’s entitlement to a set-off was neither proved nor supported by competent substantial evidence. The defendant failed to prove by expert testimony or otherwise, that it is the printer’s responsibility to recognize a trademark infringement. As to the question of delivery of the brochures, the very terms of the written contract between the parties contradict defendant’s claim of an oral contract changing the terms for delivery. Accordingly, we uphold the judgment in favor of the plaintiff, and reverse that portion of the judgment allowing the defendant a set-off.

The remaining points on appeal are without merit and will not be discussed.

Affirmed in part and reversed in part.


text:
    Kenneth N. KRISCHER, Appellant, v. Iris R. KRISCHER, Appellee.
    No. 75-1655.
    District Court of Appeal of Florida, Third District.
    Sept. 14, 1976.
    Marks, Keith, Mack & Lewis, Miami, for appellant.
    Sandler & Sandler, Miami, for appellee.
    Before HENDRY and HAVERFIELD, JJ., and LESTER, M. IGNATIUS, Associate Judge.
   PER CURIAM.

Respondent-appellant, Kenneth Krischer, seeks reversal of an order modifying final judgment of divorce by increasing the amount of child support from $225 ($75 per child) per month to $350.

On January 27, 1969 Kenneth and Iris Krischer were divorced and pursuant to the final judgment Kenneth was ordered to pay $225 monthly as child support and $150 monthly as alimony. After several disputes over the amount of these payments, the parties on March 28, 1973 entered into a stipulation whereby Iris agreed to forbear from asking for modification of alimony or child support until Kenneth completed medical school in July 1975. However, in January 1975 Iris filed a petition for modification which was denied without prejudice until July. In July Iris filed the same petition which was noticed for hearing on September 11. Kenneth answered and requested the petition be denied, and custody of the children be awarded to him. On August 28 Iris filed motions for more definite statement (directed to the matter of child custody) and for temporary. counsel fees. These motions were also scheduled for hearing on September 11. On that date, over Kenneth’s objection on the grounds of improper notice, the chancellor heard the petition for modification. Without reading the depositions of the parties, the chancellor entered the appealed modification order based upon Iris’ unsworn financial affidavit. Kenneth objected on the grounds the financial affidavit was inaccurate and incomplete.

Kenneth first contends the chancellor erred in hearing the modification petition on September 11 when Iris subsequently filed motions for more definite statement and temporary attorney’s fees also noticed for hearing on the same date. The record reflects that the hearing on the modification petition for September 11 was properly noticed and served upon Kenneth. The chancellor being thoroughly familiar with the history of the case and fully aware of the financial condition of the parties, we conclude this point is lacking merit. Cf. Hagen v. Hagen, 308 So.2d 41 (Fla. 3d DCA 1975).

Kenneth secondly argues that the chancellor erred in modifying the amount of child support in that he considered Iris’ five month old and incomplete financial affidavit and did not permit Kenneth to testify as to his financial inability to pay the increased support.

There being sufficient competent evidence to support the modification order of the chancellor and this court not having the prerogative to substitute its judgment for that of the chancellor through re-evaluation of the evidence contained in the record on appeal, we find no abuse of discretion on the part of the chancellor. See Shaw v. Shaw, 334 So.2d 13 (Fla.1976).

Affirmed.


text:
    C. J. KETTLES, d/b/a Kettles Landscaping & Sod, Appellant, v. CHARTER MORTGAGE COMPANY et al., Appellees.
    No. 75-1721.
    District Court of Appeal of Florida, Third District.
    Sept. 14, 1976.

      Williams, Salomon, Kanner & Damian, Miami, and Alan H. Lubitz, Coral Gables, for appellant.
    Smith, Hulsey, Schwalbe & Nichols and James H. Post, Jacksonville, for appellees.
    Before PEARSON, HENDRY and HAV-ERFIELD, JJ.
   PEARSON, Judge.

The controlling question on this appeal is whether the plaintiff lienor, who is the appellant here, perfected a blanket lien, pursuant to Fla.Stat. § 713.09(f), upon several, separate lots. The question presented here by the plaintiff is from a summary final judgment for defendants, the mortgage holders on the several lots. The appeal does not turn on the priority of the liens but rather upon the question of whether the plaintiff, in fact, has liens on the lots. In addition, appellant does not contend that there is a genuine issue of material fact requiring a trial, but urges instead that the proofs, in the form of depositions and affidavits before the trial court, were sufficient to establish the applicability of the blanket lien provision of the mechanic’s lien law.

The trial court had before it uncontro-verted facts to show that the plaintiff is a supplier of landscaping materials and services. He agreed with a builder to a price per yard for sod and per shrub for orna-mentals to .be supplied for an undesignated number of lots being constructed upon by the builder. These lots were acquired by the builder and built upon in groups of a few lots at a time. The plaintiff presumed that the arrangement would continue as long as his work was satisfactory. The defendants placed permanent mortgages on the homes as they were completed.

At the time the appellant filed his claim of lien, he was faced with a choice: He could file claims of lien on each of the approximately forty lots for which he was not paid for the services performed and the materials supplied or he could file a claim of lien on all the properties on which he contracted to provide his materials and services and for which he had not been paid. It was felt that the latter alternative found support in the Florida Mechanics’ Lien Law and would allow Kettles to avoid the almost inevitable probability of losing his priority on certain lots and blocks which he completed more than ninety days prior to the filing of his claim of lien.

The trial judge held that the claim of lien was not valid because plaintiff had no “same direct contract” with the builder and, therefore, did not come within the protections afforded by Fla.Stat. § 713.09. This holding is strongly supported by the reasoning of the court in Leedy v. First Federal Savings & Loan Association of Cocoa, Fla.App.1962, 142 So.2d 99.

The mechanic’s lien statute is to be interpreted favorably to the lienor in order to achieve the beneficial purpose of the statute which is the protection of those entitled to receive the fruits of their labor. Crane Co. v. Fine, Fla.1969, 221 So.2d 145; Art Berman Concrete, Inc. v. Sey Construction Corp., Fla.App.1971, 247 So.2d 791. However, we must not lose site of the fact that the imposition of a lien may force a third party to pay for services that he did not contract for and that he presumed paid. Therefore, the lien law must be strictly construed to give non-contracting parties an opportunity to know at a definite time that the property is not subject to a lien. See Sheffield-Briggs Steel Products v. Ace Concrete Service Co., Fla.1953, 63 So.2d 924; Trushin v. Brown, Fla.App.1961, 132 So.2d 357.

We hold that no error has been made to appear upon the trial judge’s holding that plaintiff’s arrangement with the builder did not constitute a “same direct contract” as required by the statute for a blanket-type lien. Plaintiff’s argument that his arrangement was a “requirement contract” (see Fla.Stat. § 672.306) is unavailing in that the provisions of this section are not met by the arrangement shown. To hold that any future services in an indefinite amount and duration constitute a “same direct contract” would destroy the orderly use of the mechanic’s lien laws.

Affirmed.

      . “713.09 When single claim of lien sufficient.—
      “(1) A lienor shall be required to record only one claim of lien covering his entire demand against such real property where the amount demanded is for labor or services or materials furnished for more than one improvement on a single lot, parcel, or tract of land, or for a single improvement on contiguous or adjacent lots, parcels, or tracts of land, or for more than one improvement to be operated as a single plant but located on separate lots, parcels, or tracts of land, or for more than one improvement to be operated as separate units on separate lots, parcels or tracts of land but improved in one continuous building operation, such as, but not limited to, a housing or multiple unit dwelling project, or a multiple separate unit development, and made or to be made in each case under the same direct contract. The claim of lien shall then be applicable to such lots, parcels or tracts of land and the improvements thereon included-therein but not previously released in writing, and proof of delivery of materials at the order of the purchaser to any of such lots, parcels or tracts of land shall be prima facie sufficient to support a lien on any or all of such lots, parcels or tracts of land so improved.”


author: SCHEB, Judge.

text:
    Richard P. IRVING, Appellant, v. STATE of Florida, Appellee.
    No. 75-716.
    District Court of Appeal of Florida, Second District.
    Sept. 15, 1976.
    Rehearing Denied Oct. 27, 1976.

      Jack 0. Johnson, Public Defender, Robert H. Grizzard, II, Asst. Public Defender, and Thomas A. Pobjecky, Research Asst., Bar-tow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Judge.

On this appeal we discuss the requirement under RCrP 3.510 for a trial judge to instruct a jury on “attempts” and “lesser included offenses.”

Appellant Irving was charged by information with two counts of aggravated assault and one count of carrying a concealed weapon, arising out of an incident which occurred at the Tarpon Bar in St. Peters-burg on November 24, 1974. He was tried by jury, found guilty of one count of aggravated assault and of carrying a concealed weapon and was placed on probation for five years. On appeal, he contends the trial court erred in failing to instruct the jury on attempt to commit the assault, on improper exhibition of a dangerous weapon as a lesser included offense to that charge, and on attempt to carry a concealed weapon. We reverse.

RCrP 3.510 provides:

Upon an indictment or information upon which the defendant is to be tried for any offense the jurors may convict the defendant of an attempt to commit such offense if such attempt is an offense, or may convict him of any offense which is necessarily included in the offense charged. The court shall charge the jury in this regard.

Appellant requested an instruction on both “attempt to commit an aggravated assault” and “attempt to carry a concealed weapon” but his requests were denied by the trial court.

While there may have been doubt as to whether there is such a crime as attempted aggravated assault, State v. White, Fla.1975, 324 So.2d 630, seems to have resolved this question in Florida. In White the Supreme Court stated:

“The State argues for a definition of assault which does not include victim awareness, on the ground that ‘bushwhackers’ and ‘backstabbers’ would escape punishment if they were unsuccessful in their attempt to inflict injury. The legislature did not intend to allow such acts to go unpunished, however. The general ‘attempt’ statute will reach those situations.” State v. White, supra, at 631.

There was sufficient evidence to support the charge of aggravated assault and the State now agrees the trial judge should have instructed on “attempt to commit aggravated assault.” See Ward v. State, Fla.App.4th 1973, 287 So.2d 138. Yet, the State argues the trial court’s failure to have done so is not reversible error, since mere violation of a rule of criminal procedure does not mandate a reversal absent a resulting prejudice to the defendant. Cf., Richardson v. State, Fla.1971, 246 So.2d 771. Moreover, the State argues that since the evidence did support the conviction for aggravated assault and did not legally support the crime of “attempt,” that an instruction on attempt was not required. Concluding, as we have, that there can be an attempt to commit an aggravated assault, the requirement for an instruction on attempt became mandatory. This is a Category (2) situation as described in Brown v. State, Fla.1968, 206 So.2d 377. And, under Brown, supra, whether the evidence did or did not support an attempt is irrelevant. See Lightfoot v. State, Fla.App.2d 1976, 331 So.2d 388, where this court reversed the trial court for failing to give a defendant’s requested charge on attempted sale of heroin, notwithstanding the fact that the evidence clearly reflected that any sales of heroin by the defendant were fully consummated.

By the same logic, the trial court erred in failing to instruct on attempt to carry a concealed weapon. We reject the State’s position that there is no such crime as an attempt to carry a concealed weapon. This is also a Category (2) offense under Brown and the instruction is mandatory. Since the instruction on attempts were requested by the appellant, the trial court’s failure to give them constitutes reversible error. See Lightfoot v. State, supra.

The requirement for the trial judge to instruct on the lesser included offense of “improper exhibition of a dangerous weapon” is also mandated under Brown. Category (4) under Brown comprehends offenses which may or may not be included in the offense charged, depending upon (a) the accusatorial pleading, and (b) the evidence at trial. The necessity to instruct under Category (4) requires that the trial judge must first determine if the information alleges the elements of the lesser offense, albeit such lesser offense is not such an essential ingredient of such offense alleged. If such accusation is present, then the judge must determine whether the evidence supports the allegation of the lesser included offense. Here, the appellant’s conviction of aggravated assault was based on a count in the information which charged him with pointing a deadly weapon, to wit a pellet gun, at the operator of the bar in St. Pe-tersburg where the incident occurred. The evidence showed that such gun was exhibited by appellant at the bar in a careless and dangerous manner. While there was a question of whether the pellet gun was a “deadly weapon,” in any event, it was a “dangerous weapon.” Appellant requested the trial court to instruct that the offense of “improper exhibition of a dangerous weapon,” was, under the circumstances of this case, a lesser included offense in the crime of aggravated assault. In failing to do so, the court committed reversible error.

Accordingly, this cause is reversed and a new trial ordered on both counts of which the appellant was convicted.

McNULTY, C. J., and BOARDMAN, J., concur.

      . The crime of aggravated assault is a felony of third degree, F.S. § 784.04 (1973) (now F.S. § 784.021). But, where the offense attempted is a felony of the third degree, such an attempt is punishable as a misdemeanor of the first degree, F.S. § 776.04(3) (1973) (now F.S. § 777.-04(4)(d)). Hence, the substantial advantage to the defendant is evident.

      . The crime of carrying a concealed weapon is a first degree misdemeanor, F.S. § 790.01(1). Under F.S. § 776.04, the general attempt statute, if the offense attempted is a misdemeanor of the first or second degree, the person convicted shall be guilty of a misdemeanor of the second degree punishable as provided in F.S. § 775.082 or § 775.083. Again, the advantage of the requested instruction to the defendant is manifest.

      . Fla.Stat. § 790.10 provides:
      If any person having or carrying any dirk, sword, sword cane, firearm, or other weapon shall in the presence of one or more persons, exhibit the same in a rude, careless, angry, or threatening manner, not in necessary self-defense, the person so offending shall be guilty of a misdemeanor of the first degree, punishable as provided in § 775.082 or § 775.083.