author: PER CURIAM.

text:
    The Florida Bar. In re Steven K. URGO.
    No. 50358.
    Supreme Court of Florida.
    March 3, 1977.
    James P. Hollaway, Asst. Staff Counsel, Tallahassee, for The Florida Bar, complainant.
   PER CURIAM.

This matter is before the Court on Petition for Approval of Conditional Guilty Plea and Entry of Final Order of Discipline.

The Conditional Guilty Plea for Consent Judgment filed by Respondent pursuant to Article XI, Rule 11.13(6) of the Integration Rule of The Florida Bar reads in part as follows:

“COMES NOW, the undersigned respondent and files this conditional guilty plea to the grievance committee report filed herein.
“The grievance committee found this case to be highly unusual. Respondent and a friend had conspired to set a trap, baited with a fake' sale of marijuana, for the alleged purpose of obtaining the return of $200 that a state undercover informant had allegedly stolen from respondent’s wife and his friend’s ex-wife “Furthermore, the grievance committee found that Respondent pled guilty (sic) to the charge of conspiracy to commit a felony, to wit: grand larceny (respondent pled nollo contendere to the charge). Upon recommendation of the Florida Parole and Probation Commission, Circuit Court Judge Stephen L. Dakan withheld adjudication of guilt and placed Respondent on probation for one year.”

The Petition for Approval of Conditional Guilty Plea is granted, the filing of this opinion to constitute the public reprimand.

Costs now amounting to One Hundred Fifty-Nine Dollars and Ten Cents ($159.10) are hereby taxed against Respondent, said sum to be paid within thirty days from this date, any future costs to be repaid to The Florida Bar.

It is so ordered.

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


source: Caselaw Access Project

author: LETTS, Judge.

license: Public Domain

text:
    Dale BAKER and Alvin Craycraft, Appellants, v. STATE of Florida et al., Appellees.
    No. 76-941.
    District Court of Appeal of Florida, Fourth District.
    March 4, 1977.
    Rehearing Denied April 7, 1977.
    Joe M. Mitchell, Jr., Melbourne, for appellants.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony J. Golden, Asst. Atty. Gen., West Palm Beach, for appellees.
   LETTS, Judge.

This is an appeal from an order denying the return of certain evidence, to wit: Five thousand five hundred forty ($5,540.00) dollars in cash, stolen from the appellants and used as evidence by the State to secure the conviction of the thieves who stole it.

We are unable to agree with the order of the trial judge, and his order is hereby reversed.

The facts in this case are best set forth in the trial judge’s order, as follows:

The petitioners .... came from Ohio to Florida for the purpose of buying ten thousand dollars’ worth of marijuana. They met the (thieves), who promised to sell the petitioners a large quantity of marijuana. After many weird preliminaries where both sides expressed concern about being “ripped-off” .... the parties met on a lonely road at night in west Cocoa, arriving in two separate vehicles to consummate their illegal transaction. The (thieves) had theretofore hidden in the nearby woods three plastic trashbags filled with sticks and weeds and trash. The money was placed on the seat in the (thieves’) car . . . . It was a bizarre scene. The (thieves) would leave supposed samples of the marijuana on the road for the petitioners to test and would show them the filled trashbags but would permit no close inspection; after much of this silly jockeying around, the circumstances finally got right for the defendants and they jumped into their car and sped away with the money while the petitioners, thinking they had only been shorted on weight, threw the trashbags in their car and attempted, unsuccessfully, to follow the defendants; when the petitioners finally inspected their purchase, they knew what had happened. After a conference, they decided against the slogan, “the next time you need help, call a hippie”, and that they needed the help of the police. Being justifiably embarrassed by the true facts, the petitioners decided that in order to secure the assistance of the police it was going to be necessary to concoct a story about their having been robbed of their money by some unknown robbers, whom they would describe as the three (thieves); this was done, and it worked, and the police thereafter arrested the (thieves) while in a taxi headed toward a nearby airport, and charged them with robbery; the $5,540.00 now in the custody of the court was found partly in paper bags abandoned under the taxi and partly on the (thieves); by the time the (thieves) case came on for trial, the true circumstances had become known to the State, and during trial the State abandoned their theory of robbery and the (thieves) entered a plea of guilty to grand larceny; the petitioners now want the court to return to them the recovered portion of their purchase money.

In the petition for the return of the money, filed by the appellants, in the trial court, it is argued that the only authority which would permit the State of Florida to retain the evidence would be by a statutory forfeiture, such as was discussed in the case of Waterloo Distilling Corporation et al. v. United State (In re Various Items of Personal Property), 282 U.S. 577, 51 S.Ct. 282, 75 L.Ed. 558 (1931). Pursuant thereto, the appellants further argued that the only statutory forfeiture provision contained in any statute in the State of Florida is set forth in Chapters 943.42 and 943.43, as follows:

943.42 Unlawful to transport, conceal, or possess contraband articles; use of vessel, motor vehicle, or aircraft. It is unlawful:
(1) To transport, carry, or convey any contraband article in, upon, or by means of any vessel, motor vehicle, or aircraft.
(2) To conceal or possess any contraband article in or upon any vessel, motor vehicle, or aircraft.
(3) To use any vessel, motor vehicle, or aircraft to facilitate the -transportation, carriage, conveyance, concealment, receipt, possession, purchase, sale, barter, exchange, or giving away of any contraband article.
943.43 Forfeiture of vessel, motor vehicle, or aircraft; exceptions. Any vessel, motor vehicle, or aircraft which had been or is being used in violation of any provision of s. 943.42 or in, upon, or by means of which, any violation of said section has taken or is taking place shall be seized and may be forfeited. No vessel, motor vehicle, or aircraft used by any person as a common carrier in the transaction of business as a common carrier nor any other vessel, motor vehicle, or aircraft shall be forfeited under the provisions of ss. 943.41-943.44 unless the owner or person legally in charge of such vessel, motor vehicle, or aircraft was at the time of the alleged illegal act a consenting party or privy thereto. No vessel, motor vehicle, or aircraft shall be forfeited under the provisions of ss. 943.41-943.44 by reason of any act or omission established by the owner thereof to have been committed or omitted by any person other than such owner while such vessel, motor vehicle, or aircraft was unlawfully in the possession of a person who acquired possession thereof in violation of the criminal laws of this state or any political subdivision thereof, any other state, or the United States.

We must agree with the appellants that this statute is not applicable in the instant case. Quite apart from the fact that, in the case now before us, we are dealing with trash rather than contraband, this forfeiture provision is exclusively limited to any vessel, motor vehicle or aircraft, and makes no provision for the forfeiture of money or currency used in violation of Chapter 893 of the Florida Statutes,- relating to drug abuse prevention and control. It is also clear that the Florida Supreme Court has consistently refused to permit forfeitures absent statutory authority, and. has construed any such authority strictly. City of Miami v. Miller, 148 Fla. 349, 4 So.2d 369 (1941); Boyle v. State, 47 So.2d 693 (Fla.1950).

On appeal, the State argued that even if this be so, the power of the Court should never be invoked to allow violators of the law to obtain “the fruits of their outlawry,” and for this proposition, cited Hofferman v. Simmons, 290 N.Y. 449, 49 N.E.2d 523 (1943); however, in that case, the money seized was the fruit of gambling, and was not the lawful property of the claimants. On this very question of gambling, the Florida Supreme Court held in City of Miami v. Miller, 148 Fla. 349, 4 So.2d 369 (1941), that not even gaming money could be forfeited, unless the authority to do so was supplied by the legislature. This, of course, has been accomplished in Section 849.12 of the Florida Statutes (1975).

The State further argued that the appellants had no right to petition the trial court for the return of the money, as they did, and should have followed the requirements set forth in Section 116.21, Florida Statutes (1975). We find no merit to this argument, in that the record does not reflect that the authorities ever followed the procedure set forth under said statute, invo-cable solely at the discretion of the sheriff and clerk of the court involved.

In the order denying the return of the money, the trial judge asked the rhetorical question:

Has law and society so advanced .... that those who completely disregard the law can make a mockery of it and use the court to accomplish their ends? Can a right arise from one’s own wrong?

The judge went on to concede the problem before him was novel and that he could cite no authority for his decision. Nonetheless, he entered the order, denying the return of the money, on the basis that “Everybody knows it jist (sic) ain’t right”, and in so holding, declared his confidence that this appellate court could provide the vehicle, with citations, to uphold him.

Unfortunately, we cannot find them, and are forced to agree with the appellants’ conclusion that the judge’s action . jist (sic) ain’t legal.” The appellants were never convicted, nor were they even charged with, the commission of any crime, nor was there any indication that the money did not rightfully belong to them, or that actual contraband was involved. Accordingly, in the absence of statutory authority to the contrary, we must reverse the trial judge’s ruling and direct that the money in question be returned.

In effect, under the present state law, the courts and police authorities are being used as collection agencies, at the taxpayers’ cost, to assist in the return .of money to those who attempt to use it for criminal activity. The legislature should address itself to such a clearly undesirable assist.

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

      . Subparagraphs (1) and (2) of said Statute read as follows:
      116.21 Unclaimed bond money; limitation. (1) The sheriffs and clerks of the courts of the various counties of the state are hereby authorized at their discretion on or before September 25 of each and every year hereafter to pay into the fine and forfeiture fund of their respective counties any or all unclaimed bond and evidence moneys in their hands or custody by virtue of their office as sheriff or clerk, which unclaimed bond and evidence money came into their hands in cases which have been finally disposed of or bonds es-treated and no information filed, or defendant bound over and no information filed, or in which no case has been made, prior to January 1 of the preceding year and for which moneys claim has not been made. (2) The sheriffs and clerks of the various courts of the respective counties may, during the month of July of each year, hereafter make and compile a list of any or all unclaimed bond and evidence moneys which came into their hands as provided in subsection (1) above. Such compilation shall list in addition to the name of the defendant, the names of such bondsmen, if known, and shall specify the respective amounts of such unclaimed bonds or evidence moneys. Such list or compilation shall be published one time during the month of July in a newspaper of general circulation in the county served by such sheriff or clerk and said notice shall specify that unless such bond moneys or evidence moneys are claimed on or before September 1 after such publication that same shall be declared forfeited to such county. Proof of such publication shall be made by the publisher of such newspaper and shall be filed and recorded in the minutes of the county commissioners of such county.


author: BOARDMAN, Chief Judge. BOARDMAN, Chief Judge.

text:
    Stephen ZANATHY and Reta Zanathy, Appellants, v. BEACH HARBOR CLUB ASSOCIATION, INC., Appellee.
    No. 76-769.
    District Court of Appeal of Florida, Second District.
    Jan. 21, 1977.
    Rehearing Denied March 16, 1977.

      Lawrence J. Robinson, Steven J. Chase of Drymon, Robinson & Clark, Sarasota, for appellants.
    Robert C. Widman of Nelson, Hesse, Cyril & Weber, Sarasota, for appellee.
   BOARDMAN, Chief Judge.

Appellants/defendants, Stephen and Reta Zanathy, filed this timely appeal from a final judgment in favor of appellee/plain-tiff, Beach Harbor Club Association, Inc.

Appellee brought suit for foreclosure of a lien and damages and for injunctive relief. Appellee alleged that appellants had not paid assessments due on units C-304, F^403 and E-312 of a condominium development and that the declaration of the condominium provided that appellee shall hold a lien on each unit for unpaid assessments against that unit. Reta and Stephen Zanathy jointly owned units C-304 and F-403, and Stephen Zanathy owned unit E-312 as trustee. Appellants answered the complaint admitting portions of the allegations, stating that they were without sufficient information to form a belief as to other allegations, and denying that the assessments claimed were owed. They also denied that maintenance assessments were made against unit E-312 from March through November, 1973, and asserted that the condominium declaration prohibited the commencement of foreclosure action more than two years after the •date the unpaid assessment was made. Appellants counterclaimed for monies advanced to appellee and for rent, damages for trespass and injunctive relief in regard to appellants’ two carports. Appellee moved to strike appellants’ pleadings based on the failure of Stephen Zanathy to submit to oral deposition. The trial judge granted the motion subject to any right appellants might have to a set-off.

Following trial the court awarded appel-lee $4,534.04 for assessments due on C-304 and F-403, attorneys’ fees and court costs and an equitable lien on those units. Public sale of the property was ordered if the judgment were not satisfied within 10 days. The court directed appellants to remove their personal property from the storage rooms in Building F and other common elements of the condominium other than that authorized by the rules and regulations of the condominium association and to provide appellee access to the second floor storage room in Building F. The judge declined to rule on appellee’s claim on unit E-312 and stated that “[a]ll matters undis-posed of by this judgment in this action are transferred and consolidated with . . ” cases concerning related issues pending before Honorable Judge Evelyn Gobbie of the Circuit Court for the Twelfth Judicial Circuit.

The trial court is authorized to impose sanctions against a party to litigation who fails to obey a court order or to appear for deposition. Fla.R.Civ.P. 1.380(b), (d). We do not believe that under the facts and testimony presented to the trial judge it was an abuse of discretion to strike the pleadings as to Stephen Zanathy. Nonetheless we submit that it was error to strike the pleadings as to Reta Zanathy because she did not defy any court order and appellee did not attempt to take her deposition. The noncompliance of Stephen Zanathy is not chargeable to his co-party. Leatherby Ins. Co. v. Jones, 332 So.2d 139 (Fla. 3d DCA 1976).

It is not necessary in this case to remand for trial on the answer or defenses which were improperly stricken since Reta Zana-thy was not prevented in fact from asserting any matter relative to her interests which she had sought to raise by the pleadings. The affirmative defenses did not pertain to the storage rooms, and except for an averment that the assessments were not owed the defenses did not pertain to the units she owned jointly with her husband. Although Reta Zanathy had a right to raise the defense that the assessments claimed on her units were not owed, a review of the transcript of the proceedings reveals that this defense was given full consideration at the time of trial. Appellants conceded at trial that there were outstanding assessments against units C-304 and F-403 in the amount established by appellee. Appellants’ counsel stated that the power of ap-pellee to make assessments had been ruled on and disposed of by the court as a matter of law at some time earlier in the progress of this suit. The court’s error in striking the pleading was harmless since it is clear that the ruling on Reta Zanathy’s liability on the assessments was not affected by that error.

It is necessary however to provide an opportunity for Reta Zanathy to litigate the issues raised by the counterclaims that did affect her interests which she was prevented from pursuing. The trial court preserved two of appellants’ claims, that is for monies advanced and rent due on the carports, to be raised as a potential set-off. In addition Reta Zanathy will be allowed to litigate the remaining two claims, that is for damages for trespass and injunctive relief regarding the carports, at the time the set-off is considered. Until these counterclaims are disposed of execution of the money judgment awarded by the trial court is stayed. See Davar Corp. v. Tropic Land Improvement Corp., 330 So.2d 482 (Fla. 4th DCA 1976.

Accordingly the “matters undisposed of” transferred to Judge Gobbie by the final judgment include appellee’s claim for a lien and assessments on unit E-312 and for attorneys’ fees and the issues raised in the counterclaims referred to above.

REVERSED in part, AFFIRMED in part, and REMANDED for further proceedings consistent with this opinion.

SCHEB, J„ and DANAHY, PAUL W., Jr., Associate Judge, concur.

ON PETITION FOR REHEARING AND CLARIFICATION AND PETITION FOR REHEARING

BOARDMAN, Chief Judge.

Upon consideration of the petition for rehearing and clarification filed by appellants and reply filed by appellee, and petition for rehearing filed by appellee and reply filed by appellants, we add the following to our original opinion to avoid any misunderstanding regarding the disposition of this appeal.

The trial court’s award of attorneys’ fees relative to Units C-304 and F-403 is affirmed. The “matters undisposed of” transferred to Judge Gobbie by the final judgment of the trial court include attorneys’ fees for the litigation of appellee’s claim for a lien and assessments on Unit E-312. In all other respects we adhere to our original opinion and both petitions are denied.

SCHEB, J., and DANAHY, PAUL W., Jr., Associate Judge, concur.

      . This action was commenced June 27, 1975. The earliest assessments claimed by appellee against units C-304 and F-403 were due in October, 1974, within the two-year limit. The oarlipctf assessment claimed against unit E-312 was due in March, 1973. At trial appellee voluntarily withdrew its claims to assessments on unit E-312 for March, April and May, 1973, in effect admitting and conforming to one of appellants’ defenses. .

      . “To allow a plaintiff to recover judgment and have execution while a defendant’s counterclaim remains undisposed of might well result in the plaintiff recovering on its claim without the ability to respond should the defendant recover on its counterclaim.” Davar Corp., supra, at 483. This observation is particularly appropriate to a condominium development involved in lengthy and complex litigation.


author: PER CURIAM. DAUKSCH, Judge

text:
    Freddie L. WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 75-2256.
    District Court of Appeal of Florida, Fourth District.
    Feb. 4, 1977.
    Rehearing Denied March 25, 1977.

      Richard L. Jorandby, Public Defender, and Mitchell J. Beers, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Marsha G. Madorsky, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed.

CROSS and ALDERMAN, JJ., concur.

DAUKSCH, J., concurring specially, with opinion.

DAUKSCH, Judge

(concurring specially).

It should be noted that Appellant failed to provide a transcript of the hearing, if any, in the trial court and further he failed to request the trial clerk to either send the transcript or certify its non-existence. Therefore, we have no choice but to affirm.


text:
    Sherman BREWER, Appellant, v. STATE of Florida, Appellee.
    No. 76-637.
    District Court of Appeal of Florida, Fourth District.
    Feb. 4, 1977.
    Rehearing Denied March 25, 1977.
    Richard L. Jorandby, Public Defender, and Richard S. Power, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant was adjudged guilty of shooting into an occupied dwelling and was sentenced to seven years’ imprisonment. In imposing the sentence the trial court invoked Section 775.087(2), Florida Statutes, thereby making appellant ineligible for parole until he had served a minimum term of imprisonment of three years. The sole point on appeal is whether the judge erred in imposing a mandatory three year minimum imprisonment under § 775.087.

The seven year sentence imposed by the trial court is not excessive in that the maximum sentence for this offense, under Section 790.19, Florida Statutes, is fifteen years. However the offense for which appellant was convicted is not one of the enumerated offenses under § 775.087(2) for which the possession of a “firearm” during the commission thereof, requires a mandatory minimum three years’ imprisonment before the defendant is eligible for parole. Since appellant was not convicted of one of the crimes set forth in § 775.087(2), he may not be sentenced under this statute.

Accordingly appellant’s conviction is affirmed and the case is remanded with instructions that the trial court enter an appropriate order striking from appellant’s sentence the words “Mandatory Minimum 3 Yr. Sentence, F.S. 775.087(2).”

CROSS, ALDERMAN and LETTS, JJ., concur.


author: PER CURIAM. DOWNEY, Judge,

text:
    STATE of Florida, Appellant, v. Katie Mae BROWN, Appellee.
    No. 75-1931.
    District Court of Appeal of Florida, Fourth District.
    Feb. 11, 1977.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie Bernard, Asst. Atty. Gen., West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender, and James R. Merola, Special Asst. Public Defender, West Palm Beach, for appellee.
   ON PETITION FOR REHEARING

PER CURIAM.

Petition for rehearing is granted.

The opinion published September 17,1976 is withdrawn and the order of the trial court granting appellee a new trial is affirmed. See Fulton v. State, 335 So.2d 280 (Fla.1976).

AFFIRMED.

MAGER, C. J., and CROSS, J., concur.

DOWNEY, J., dissents, with opinion.

DOWNEY, Judge,

dissenting:

A majority of this Court has decided that appellee’s petition for rehearing should be granted and has withdrawn the Court’s opinion filed September 17, 1976, which reversed an order granting appellee a new trial. Since I deem the reasons for disagreeing with my colleagues worth recording, I have set forth in this dissent the opinion of September 17, 1976, virtually as it was originally filed.

The State of Florida has perfected this appeal to review an order of the trial court granting appellee a new trial.

Appellee was charged with first degree murder, but the jury found her guilty of manslaughter. During the course of the trial the prosecutor interrogated a defense witness as follows:

“Q. Mr. Pugh, we have met before, haven’t we?
“A. I don’t know. Maybe we have.
“Q. Didn’t we meet before when I convicted your son of murder?”

Thereupon appellee moved for a mistrial. The court denied the motion for mistrial, but it instructed the jury that the question was improper and that they were to disregard it. After the jury returned their verdict appellee moved for a new trial. The court granted appellee’s motion upon the sole ground that the state’s interrogation of Mr. Pugh required a new trial upon authority of Smith v. State, 194 So.2d 310 (Fla. 1st DCA 1967). In pertinent part that order stated:

“At the trial, this Court denied a defense motion for mistrial and instead strongly cautioned the jury to disregard the question. Although this Court believes that the defendant BROWN herein had a fair trial and was not prejudiced by the question, the Smith case is entirely on point and requires reversal. The District Court therein ruled on almost identical facts that ‘the jurors could not be expected to forget and disregard this inadmissible evidence in making their decision.’ The District Court found, as a matter of law, that a new trial was required. Since this Court (as well as the prosecution) is bound by the Rule of Law established in Smith v. State, supra, the defense motion for a new trial is hereby granted. The new trial is granted despite this Court’s belief that the jury herein was in fact able to disregard the evidence in accord with the Court’s instructions. The defendant’s motion for a new trial is granted on the stated ground alone. The motion is denied as to all other grounds asserted.”

In my judgment the state had a right to interrogate the witness as to his bias or prejudice against the state as a result of the prior experience between this prosecutor and the witness’ son. This could have been done successfully with a little more finesse than that used here, but I am not prepared to say the question as propounded was objectionable. The cases relied on by the appellee as prohibiting this line of questioning for impeachment purposes are all distinguishable. Thus, I do not believe the trial court should have sustained the objection.

But in any event, even if the question was objectionable, I believe the trial court abused his discretion in granting a new trial because he expressly found that the appel-lee received a fair trial and that the question was not prejudicial. What more could appellee ask for? This is a classical case for the application of the harmless error rule— if error it be.

I am cognizant of the wide discretion afforded a trial judge in granting a new trial. But, as the Supreme Court stated in Warner v. Goding, 91 Fla. 260, 107 So. 406, 408 (1926):

“A new trial is not a matter of right in this state, but is addressed to the sound legal discretion of the trial court, and should .be granted only when substantial rights have been so violated as to make it reasonably clear that a fair trial was not had.”

Here the court found appellee received a fair trial. It is also the rule that, if no substantial rights of the defendant have been violated, granting a new trial is an abuse of discretion. McAllister Hotel, Inc. v. Porte, 123 So.2d 339, 344 (Fla.1960). Here the court found the jury was able to disregard the evidence appellee complained of. Hence, no substantial right of the ap-pellee was prejudiced; under Fla.R.Crim.P. Rule 3.600(b), no new trial was authorized.

The trial judge felt compelled to grant the new trial because of the ruling in Smith v. State, supra. Once again I would disagree and suggest that Smith is distinguishable on several grounds. First of all, the appellate court found the evidence in Smith insufficient to support a verdict of guilty while the evidence in the case at bar adequately supports the verdict. Secondly, as far as one can tell there was no express finding by the trial judge in Smith that the defendant had received a fair trial and that the question was not prejudicial. Thirdly, the question propounded in Smith was clearly objectionable. The prosecutor there was attempting to impeach the witness simply by showing that his son had previously been convicted of a crime. The prosecutor involved in the present case also was the prosecutor in the case involving the son of a witness. This factor could very well be a basis for extreme bias on the part of the witness against this prosecutor. Thus, I do not believe Smith controls this case.

Accordingly, I would reverse the order granting appellee a new trial and remand the cause with directions to reinstate the verdict and enter judgment and sentence thereon. I, therefore, dissent from the opinion affirming the order under review.

      . Apparently the prosecutor in this case had been the prosecutor in a case in which the witness’ son was convicted of murder.


author: ANSTEAD, Judge.

text:
    Edith STEINAU, Appellant, v. Leslie STEINAU, Jr., Appellee.
    No. 75-2155.
    District Court of Appeal of Florida, Fourth District.
    Feb. 11, 1977.
    Rehearing Denied March 25, 1977.
    Ronald Sales of Sales & Christiansen, Palm Beach, for appellant.
    Sidney M. Dubbin, West Palm Beach, for appellee.
   ANSTEAD, Judge.

This is an appeal from an order modifying the terms of a New York decree for alimony. The parties were divorced in New York and the wife awarded alimony of $200.00 weekly on November 18, 1970. Thereafter the husband petitioned for modification and based upon the parties’ stipulation on that petition the court reduced the alimony to $125.00 weekly by an order of June 19, 1972. After the wife initiated proceedings in Florida against the husband to recover arrearages in alimony the husband filed a counter-claim for modification seeking to modify the order of June 19, 1972. Upon trial, the trial court granted the husband’s petition and ordered the termination of alimony payments retroactive to the date of the filing of the husband’s counterclaim. The wife now appeals asserting that the trial court erred in terminating alimony and in making the termination retroactive.

The trial court has broad discretion in matters of this nature and ordinarily his rulings will not be disturbed. Nixon v. Nixon, 200 So.2d 263 (Fla.3d DCA 1967). However, we conclude under the circumstances of this case that the trial court abused his discretion in completely terminating alimony payments to the wife.

Essentially the husband sought modification in the trial court on the same grounds as he sought modification in New York in 1972. A careful examination of the record reveals that the only material change in circumstances shown during the course of the trial was an increase in the wife’s earnings by the amount of $140.00 monthly. While this may justify some modification it is far from sufficient to justify a complete termination of alimony. A petition for modification does not authorize the trial court to retry the issue of alimony. The issue before the trial court is whether there has been such a substantial change in circumstances since the time of the previous decree to merit modification and if so what modification is warranted by the changed circumstances.

We find no error in the trial court’s order making a modification retroactive to the time of the filing of the husband’s counterclaim.

Accordingly, the trial court’s order is hereby vacated and this cause is remanded for further proceedings consistent herewith.

ALDERMAN and LETTS, JJ., concur.


author: GREEN, OLIVER L., Jr., Associate Judge.

text:
    Ricky W. HOLMES et al., Appellants, v. STATE of Florida, Appellee.
    No. 76-78.
    District Court of Appeal of Florida, Fourth District.
    Feb. 11, 1977.
    Rehearing Denied April 7, 1977.

      Richard L. Jorandby, Public Defender, and Frank B. Kessler, Chief, Appellate Division, West Palm Beach, for appellants.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony C. Musto, Asst. Atty. Gen., West Palm Beach, for appellee.
   GREEN, OLIVER L., Jr., Associate Judge.

The three Appellants were each found guilty of Breaking and Entering with Intent to Commit a Misdemeanor and have appealed upon an alleged insufficiency of evidence to support the verdict and upon alleged excessive sentences. We affirm the Judgment, but find the sentences to be excessive.

Each of the Appellants was sentenced to combined terms of imprisonment and probation in excess of the five years which was the maximum penalty then permitted for the crime of Breaking and Entering with Intent to Commit a Misdemean- or. Section 775.082(3)(d), Florida Statutes (1975).

The Appellants Ricky W. Holmes and Edgar Allen Holmes were each sentenced to three years’ incarceration of which one and one-half years was suspended, and the period of incarceration was to be followed by four years’ probation. The probationary period for each is thereby excessive by the period of six months.

The Appellant Helen Ann Small Holmes was sentenced to five years’ incarceration, of which two years was suspended, and the period of incarceration was to be followed by four years’ probation. Her probationary sentence was thereby excessive by two years.

It is now uniformly held that although a trial judge is permitted to enter a split sentence, the combined period cannot exceed the maximum period of time provided for that particular crime. Moore v. State, 324 So.2d 690 (Fla. 1st DCA 1976); Watts v. State, 328 So.2d 223 (Fla.2d DCA 1976); Magnin v. State, 334 So.2d 638 (Fla.2d DCA 1976). Also see State v. Jones, 327 So.2d 18 (Fla.1976).

For the foregoing reasons we modify the sentences appealed from in the following ways: (a) the probationary periods of sentences of Ricky Holmes and Edgar Holmes are each reduced by six months; (b) the probationary period of the sentence of Helen Holmes is reduced by two years.

The judgments and sentences are hereby affirmed, as modified.

DOWNEY and DAUKSCH, JJ., concur.


author: HENDRY, Chief Judge.

text:
    DIXIE FARMS, INC., Appellant, v. The HERTZ CORPORATION, Appellee.
    No. 75-756.
    District Court of Appeal of Florida, Third District.
    Feb. 15, 1977.
    Rehearing Denied March 31, 1977.

      Richard A. Kanner, Miami, for appellant.
    Knight, Peters, Hoeveler, Pickle, Niem-oeller & Flynn and Joseph W. Downs, III, Miami, for appellee.
    Before HENDRY, C. J., and BARKDULL and NATHAN, JJ. ' '
   HENDRY, Chief Judge.

This is an interlocutory appeal originating from an order of the lower court dismissing count I of appellant’s amended complaint for declaratory relief on the basis of collateral estoppel and/or estoppel by judgment.

Appellant entered into a truck lease agreement with appellee, whereby appellee was to provide automobile liability insurance covering appellant, its agents and employees from any liability arising out of “the ownership, maintenance, use or operation of the vehicles furnished” appellant by appellee.

Thereafter, both parties were made defendants in a lawsuit arising out of an automobile accident in which the plaintiff alleged that an employee of appellant negligently and carelessly parked a truck, owned by appellee and leased to appellant, in such a manner as to impede the safe flow of traffic and obscure an intersectional stop sign. As a result of said act, plaintiff alleged that he collided with another automobile in the intersection and incurred serious injuries.

Appellee provided an attorney who represented both appellee and appellant during the trial. At the trial’s conclusion, the jury returned a verdict of negligence against appellant, but exonerated appellee of any liability. A final judgment was thereupon entered in accordance with the verdict.

Soon after, appellee, by letter, informed appellant as follows:

“As you know a verdict in the above case was rendered against Dixie Farms, Inc. and not against The Hertz Corporation. “Implicit in the jury so finding was the fact that the accident did not arise out of the negligent use of the vehicle.
“If it arose out of the negligent use of the vehicle then a verdict would have been rendered against The Hertz Corporation.
“Since the accident did not arise out of the negligent use of the vehicle it is not covered under the contract with The Hertz Corporation.”

Appellant then filed its complaint for a declaratory judgment, seeking its rights on the coverage question pursuant to the lease agreement. After the original complaint was dismissed, appellant filed a two count amended complaint. Count I sought the above declaratory relief, while count II sought damages based upon both appellee’s failure to timely notify appellant, before trial, that the insurance provided for in the agreement might not apply under the facts of the above accident and appellee’s failure to inform appellant that representation during the trial by appellee’s attorney might involve a possible conflict of interest.

The amended complaint was attacked via a motion to dismiss based upon the grounds that the prior final judgment in the negligence action had the effect of determining that the accident did not result from the ownership, maintenance or operation of the leased vehicle, thus precluding coverage under the agreement. Dismissal was granted as to count I of appellant’s amended complaint and this interlocutory appeal follows.

Appellee contends that the jury’s verdict, exonerating appellee of liability, by necessity dealt with the construction of the lease agreement. Therefore, appellee argues that appellant’s declaratory complaint must be barred by either estoppel by judgment or collateral estoppel.

We cannot agree with appellee’s contention. The doctrine of estoppel by judgment, or collateral estoppel, operates to prevent relitigation of issues actually adjudicated between the parties in a former action and its operation is limited to matters distinctly put in issue, litigated and determined in the former action. Diplomat Electric, Inc. v. Westinghouse Electric Supply Company, 430 F.2d 38 (5th Cir. 1970); Seaboard Coast Line Railroad Company v. Industrial Contracting Company, Inc., 260 So.2d 860 (Fla. 4th DCA 1972).

The record on appeal is devoid of any substantial competent evidence supporting the proposition that the jury actually construed the agreement in relieving ap-pellee of liability. In addition, the general rule that contract construction and interpretation, absent factual disputes, is properly considered by the court, as a matter of law, and not a jury, bolsters appellant’s contention that the issue had not been dealt with by the jury during the trial. O’Brien v. Elder, 250 F.2d 275 (5th Cir. 1957); Smith v. State Farm Mutual Automobile Insurance Company, 231 So.2d 193 (Fla.1970), conformed to 232 So.2d 421 (Fla. 3d DCA 1970).

In any event, we hold that appellee has failed to meet its necessary burden in proving that the coverage issue was actually litigated and therefore barred by the above doctrines from relitigation. Stone v. Stone, 111 So.2d 486 (Fla. 3d DCA 1959). We therefore reverse the order of the lower court dismissing count I of appellant’s complaint and remand the cause with instructions to reinstate said count I.

Another question, appearing to be of first impression, has arisen by virtue of appellant’s motion for attorneys’ fees on appeal, pursuant to Sections 627.736(8) and 627.428, Florida; Statutes (1975). The question is whether or not attorney’s fees can be properly awarded to an insured and against a self-insurer upon the rendition of a judgment or decree in the insured’s favor, concerning an issue of coverage.

We believe that in accordance with Section 627.733(3)(b), Florida Statutes (1975), a self-insurer who qualifies under Section 324.171, Florida Statutes (1975), is subject to all the rights and obligations of an insurer under the “Florida Automobile Reparations Reform Act,” Sections 627.730-627.741, Florida Statutes (1975). In that one of the obligations under the above Act is the payment of attorneys’ fees by an insurer to a successful insured, upon the unsuccessful contestation of a coverage question by an insurer, we hold that a self-insurer stands in no different position than any other insurer, and therefore, the taxation of reasonable attorneys’ fees are proper.

However, in the case sub judice, we note that as yet, no judgment or decree has been entered in favor of appellant. Therefore, any award of attorneys’ fees on appeal is expressly conditioned upon appellant’s ultimate success in the lower court. Hart v. Bankers Fire and Casualty Insurance Company, 320 So.2d 485 (Fla. 4th DCA 1975); Dawson v. Blue Cross Association, 293 So.2d 90 (Fla. 1st DCA 1974). Should appellant prevail on the coverage question, and nothing expressed in this opinion should be taken as commenting upon the merits of appellant’s claim, then reasonable attorneys’ fees on appeal would be in order, said fees to be assessed in the lower court.

Reversed and remanded for further proceedings not inconsistent with this opinion.


author: DOWNEY, Judge.

text:
    Robert GREEN, Individually, and Green Crane Service, Inc., a Florida Corporation, Appellants, v. John H. ADAMS et al., Appellees.
    No. 75-775.
    District Court of Appeal of Florida, Fourth District.
    Feb. 18, 1977.
    Rehearing Denied April 7, 1977.

      Robert J. Stinnett of Stinnett, Surfus & Martin, Sarasota, for appellants.
    Dell & Smith, P. A., and Marjorie D. Gadarian of Jones, Paine & Foster, P. A., West Palm Beach, for appellees.
   DOWNEY, Judge.

The main point on appeal as stated by appellants is:

Where an amended complaint is filed after the statute of limitations has run which merely corrects a mistake in the middle initial of a party’s name, the amendment relates back to the time of filing of the original complaint.

In our opinion we need not reach that point because the entry of a summary judgment in this cause was not appropriate; but if it were, leave to amend should have been granted.

On December 12, 1973, appellants filed their complaint for negligence against John R. Adams and the appellee insurance companies. On December 28, 1973, before any process was issued or responsive pleadings filed, appellants filed their amended complaint against John H. Adams and the ap-pellee insurance companies. Both complaints were identical except for the middle initial of the individual defendant.

The thrust of both complaints was that appellants had employed Adams as a lawyer to incorporate Green’s business and to issue certain classes of stock to Green and one Strout; that Adams had negligently issued the stock in the wrong names, and on December 24, 1969, he negligently allowed Strout to remove the corporate records and stock certificates from Adams’ office. Appellants allege they were injured as a result of the negligent act.

After the Clerk of the Circuit Court issued process on October 18, 1974, appellees filed an answer denying the material allegations of the complaint and affirmatively alleging the statute of limitations. On November 26, 1974, appellees filed a motion for summary judgment, attaching to the motion the affidavit of appellee Adams stating, in essence, that he had been available for service of process in Palm Beach County since he was originally employed by appellants as alleged in their amended complaint.

The court heard the motion for summary judgment upon the plaintiffs’ amended complaint, defendants’ answer, and Adams’ affidavit. Some weeks after the hearing, but before the summary judgment under review was entered, appellants filed a motion for leave to file an affidavit and attached to said motion an affidavit of appellant Robert Green. Among other things, the affidavit stated that neither Green nor any other officer of Green Crane Service, Inc., had knowledge of the effects of the negligent delivery that occurred December 24, 1969, “until on or about January 15, 1970.”

In Florida it is clear that the statute of limitations on a cause of action for a lawyer’s negligence begins to run when the client has notice or knowledge of the negligent act. Downing v. Vaine, 228 So.2d 622 (Fla. 1st DCA 1969), approved in Edwards v. Ford, 279 So.2d 851 (Fla.1973). Nothing in the pleadings or proof before the trial judge at the time the motion for summary judgment was heard reflects the required knowledge by the appellants which would trigger the running of the statute of limitations. The burden of proof was on appel-lees as the movants to show conclusively that there was no genuine issue of fact that the statute of limitations had expired before the filing of the amended complaint against appellees on December 28, 1969. See, e. g., Visingardi v. Tirone, 193 So.2d 601 (Fla.1967). This they failed to do. And appellants’ tardy attempt to demonstrate that there was a genuine issue of fact by showing the statute of limitations had not run was unnecessary. Until appellees by competent proof conclusively showed when the statute of limitations commenced to run and that it had in fact expired appellants had no obligation to come forward, with any proof. Therefore, summary judgment should not have been entered.

But even if the appellees had made such a showing, when the trial court learned from appellants, via the tardy affidavit, that appellants reasonably might have a cause of action which was not barred by the statute of limitations, the court should have granted appellees’ motion for summary judgment with leave to appellants to file an amended complaint clearly setting forth the facts which would show a viable cause of action. See Hart Properties, Inc. v. Slack, 159 So.2d 236 (Fla.1963) and other cases cited at 30 Fla.Jur., Summary Judgment, § 30.

Accordingly, the summary judgment appealed from is reversed and the cause is remanded for further proceedings.

REVERSED AND REMANDED with directions.

MAGER, C. J., and TEDDER, GEORGE ,W., Jr., Associate Judge, concur.

      . This consideration of the affidavit is not to be confused with treating it as an attempt to demonstrate the existence of a genuine issue of fact which would preclude entry of a summary judgment.


author: SCHWARTZ, ALAN R., Associate Judge.

text:
    Angelo Louis TAMBURRO, Appellant, v. STATE of Florida, Appellee.
    No. 75-2166.
    District Court of Appeal of Florida, Fourth District.
    Feb. 18, 1977.
    Rehearing Denied April 7, 1977.
    Richard L. Jorandby, Public Defender, and Frank B. Kessler, Asst. Public Defender, and Tatjana Ostapoff and Larry Weaver, Legal Interns, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Marsha G. Madorsky and Anthony J. Golden, Asst. Attys. Gen., West Palm Beach, for appellee.
   SCHWARTZ, ALAN R., Associate Judge.

Distinguishing Brown v. State, 313 So.2d 52 (Fla. 4th DCA 1975) and Brown v. State, 330 So.2d 861 (Fla. 4th DCA 1976) on their facts, we hold that the totality of the circumstances presented to the arresting police officer, including the “spacy” condition of the defendant after he was stopped for a traffic violation, the odor of marijuana, and the apparent “roach” which was seen in plain view in his car, was such as to create probable cause to believe that the defendant had committed the offense of possession of cannabis. Clark v. State, 322 So.2d 635 (Fla. 3rd DCA 1975); State v. Daniel, 319 So.2d 582 (Fla. 4th DCA 1975); State v. Flores, 305 So.2d 292 (Fla. 2d DCA 1974); Lavazzoli v. State, 281 So.2d 519 (Fla. 3rd DCA 1973). Hence, both the defendant’s arrest and the subsequent search of his vehicle were valid. The trial court therefore properly denied the motion to suppress the sawed-off shot gun which was secured as a result of that search.

We likewise find no merit in the contention that the appellant’s nolo plea was improperly accepted by the trial court. Stovall v. State, 252 So.2d 376 (Fla. 4th DCA 1971).

Affirmed.

DAUKSCH and LETTS, JJ., concur.


author: DAUKSCH, Judge.

text:
    Jacqueline K. BURNHAM, Appellant, v. Robert L. BURNHAM, Appellee.
    No. 76-455.
    District Court of Appeal of Florida, Fourth District.
    Feb. 18, 1977.
    Rehearing Denied April 7, 1977.
    Larry Klein, West Palm Beach, for appellant.
    Douglas C. Zahm of Wood, Cobb, Murphy & Craig, West Palm Beach, for appellee.
   DAUKSCH, Judge.

This is an appeal from a Final Judgment in a dissolution case. The parties were married to each other in 1959 and lived together as husband and wife until the end of 1972. During the marriage the husband gave a brooch to the wife and caused to be titled in her name an out-of-state warehouse. The marital home of the parties was in the wife’s name solely as' well. The trial court awarded the husband a special equity in the brooch and some Puerto Rican bonds which the wife purchased from the proceeds of the sale of the foreign warehouse. The trial court refused to award to the husband a special equity in the former marital home. The wife appealed the Judgment awarding the special equity to the husband in the brooch and the bonds. The husband appealed the Judgment denying him a special equity in the proceeds of the marital home. We find merit in the wife’s contention and cannot find merit in the contention of the husband. Therefore we affirm in part and reverse in part.

As to the emerald brooch the husband said that he gave the jewelry to his wife with the understanding that it was not to be worn but secreted and kept until it appreciated in value. He said it w;as an investment made by him and not a gift to her. This brooch was purchased some 13 or 14 years prior to the separation of the parties and was worn by the wife as any other piece of jewelry a lady wears and there is insufficient evidence in the record to overcome the presumption that this brooch was a gift from the husband to the wife.

When the husband and his partner purchased a warehouse in Connecticut they put the title to the warehouse in the names of their respective wives. The Appellee says he put it in the Appellant’s name to make it more convenient to him in case his prior wife or some creditor might want to attach his property. While we do not find that the husband had the property placed in his wife’s name in order to defraud creditors we do find that again the evidence is insufficient on the part of the husband to overcome the presumption of a gift from the husband to the wife. This is further strengthened by the evidence that the husband made no claim against the proceeds of the sale of the warehouse or the municipal bonds which were purchased from those proceeds until this dissolution action was begun. The sale was in 1971 and the Petition for Dissolution was filed in 1974.

The rule which was applicable at the time this matter was tried was that the burden was upon the husband to overcome the presumption of a gift by conclusive evidence. Schoenrock v. Schoenrock, 202 So.2d 571 (Fla.2d DCA 1967).

As we said above the husband cross-appealed for a special equity in the wife’s interest in the marital home. The evidence indicates that the house was originally in joint names then placed in the wife’s name only because the husband wanted to avoid the consequences of the Connecticut attachment law'and for estate planning purposes. The husband again failed to overcome the presumption that he made a gift to the wife when he titled the home in her name. Therefore that Judgment of the trial court must be affirmed just as surely as Judgment in regard to the brooch and bonds must be reversed. The ruling in Ball v. Ball, 335 So.2d 5 (Fla.1976) is not applicable here because the petition was filed prior to that decision.

REVERSED IN PART, AFFIRMED IN PART.

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


text:
    BUDGET LANDSCAPE NURSERY, INC., Appellant, v. McMILLIN INVESTORS NEW YORK CORP., a New York Corporation, and Sam Joyce, as associate of Indian River County and Individually, Appellees.
    No. 76-1614.
    District Court of Appeal of Florida, Fourth District.
    Feb. 18, 1977.
    Rehearing Denied March 25, 1977.

      T. M. Barlow, Jr., of the Law Offices of Palmer W. Collins, Melbourne, for appellant.
    Charles M. Harris of the Law Offices of Crofton Holland Starling Harris & Severs, Titusville, for appellee-McMillin Investors New York Corp.
   PER CURIAM.

Upon consideration of the record and briefs of the respective parties, we determine that the Circuit Court of Indian River County was without jurisdiction to restrain by injunction an execution sale of certain personal property levied upon pursuant to a writ of execution issued out of the Circuit Court of Brevard County as jurisdiction had first attached in the Circuit Court of Brevard County. Adams v. Burns, 126 Fla. 685, 172 So. 75 (1936); Fla.R.Civ.P. 1.550(b).

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

Reversed and remanded.

MAGER, C. J., and CROSS, J., concur.

DOWNEY, J., concurs specially, with opinion.

DOWNEY, Judge,

concurring specially.

I agree with the majority opinion that jurisdiction in this case was in the Circuit Court of Brevard County, the court from which the execution in question issued.

The appropriate method for appellee to protect any interest it might have in the property on which the execution was levied is provided for by statute. Section 56.16, Florida Statutes (1976), provides that a third party claimant (such as appellee) to property levied on may obtain possession of the property by filing an affidavit that the property belongs to him and by posting a bond in favor of the judgment creditor. Thereafter, pursuant to Section 56.17, Florida Statutes (1976), the officer delivers the property to the claimant, desists from proceeding under the execution, and returns the execution to the court from which it issued with the affidavit and bond. Section 56.18, Florida Statutes (1976), provides that as soon as possible after the return, a trial shall be held on the issue of ownership obviously in the court from which the execution emanated. 13 Fla.Jur., Execution, § 97. Accordingly, it appears to me that, rather than seeking an injunction in the Circuit Court of Indian River County, the appellee should have followed the statutory remedy set forth in Chapter 56, Florida Statutes (1976).

I therefore concur in the decision to reverse the order appealed from.


author: NATHAN, Judge.

text:
    SECURITY INSURANCE COMPANY, a Foreign Corporation, Appellant, v. Marion HOWGATE and State Farm Mutual Automobile Insurance Company, a Foreign Corporation, Appellees.
    Nos. 76-231, 76-279.
    District Court of Appeal of Florida, Third District.
    Feb. 22, 1977.
    Rehearing Denied March 28, 1977.

      Pyszka, Kessler, Adams & Solomon, Richard M. Gale, for appellant.
    Brumer, Moss, Cohen & Rodgers and Burt E. Redlus, Talburt, Kubicki & Bradley and Dan Draper, Jr., Miami, for appellees.
    Before HENDRY, C. J., NATHAN, J., and DREW, E. HARRIS (Ret.), Associate Judge.
   NATHAN, Judge.

In this action for declaratory relief, defendant Security Insurance Company takes these consolidated appeals from an adverse order granting summary judgment, and an order awarding attorneys fees. We are here concerned with the question of recovery of no-fault personal injury protection benefits by a non-resident passenger from the liability carrier of a resident owner when the non-resident passenger had a current automobile insurance policy (providing similar benefits) covering her own vehicle in a state which has no-fault personal injury protection benefits.

The plaintiff, Howgate, appellee herein, filed a complaint for declaratory relief in Dade County Circuit Court, naming as defendants, Security Insurance Company and State Farm Insurance Company. The complaint alleged that Security is a liability and no-fault personal injury protection insurance carrier for Judith Barrett; that State Farm is a liability and personal injury protection insurance carrier for Howgate, a resident of Texas who procured insurance in Texas for her automobile which is owned and operated there; that Howgate was injured in Dade County while riding as a passenger in the automobile owned and operated by Barrett; that Howgate sought payment of medical and other personal injury protection expenses from both Security and State Farm, but that neither assumes legal responsibility; that Howgate wants a judgment naming the policy and carrier which must provide insurance coverage.

When the cause was at issue, Howgate moved for summary judgment. The trial court granted summary judgment, and ruled that plaintiff be awarded coverage for personal injury protection benefits by both defendants; primary coverage by Security and excess by State Farm. Attorneys fees were awarded to plaintiff against Security.

On appeal, Security contends that the trial court erred in holding it liable for primary coverage where plaintiff was the owner of an automobile in Texas insured under a policy issued by State Farm which contains a provision for “personal injury protection” coverage; and where the “Exclusions” portion of Security’s personal injury protection endorsement provides that, “This insurance does not apply .

[t]o any person . . . who is entitled to personal injury protection benefits from the owner of a motor vehicle which is not an insured motor vehicle under this insurance . . . ”

Security relies on this court’s decision in Martiniez v. Old Security Casualty Insur ance Company, 327 So.2d 786 (Fla. 3d DCA 1976), which involved an injured passenger claiming no-fault personal injury protection benefits under the driver-owner’s insurance policy, and held that the passenger was not entitled to personal injury protection benefits under the driver-owner’s policy, but was entitled to such coverage under the policy covering the passenger’s own car, which was not involved in the accident. Martinez is distinguishable on its facts, however, because unlike the plaintiff in the instant case, plaintiff Martinez was the owner of a vehicle subject to the Florida Automobile Reparations Reform (no-fault) Act. As provided in Section 627.736(4)(d),

“The insurer of the owner of a motor vehicle shall pay personal injury protection benefits for . [accidental bodily injury sustained in this state by any other person while occupying the owner’s motor vehicle . . . provided the injured person is not himself:
(a) The owner of a motor vehicle with respect to which security is required under §§ 627.730-627.741 . . . ” (emphasis added)

In addition, Section 627.736(4), states that

“Benefits due from an insurer under §§ 627.730-627.741 shall be primary

We find that Howgate is not the owner of a motor vehicle with respect to which security is required under the Florida no-fault law, and therefore Security Insurance Company has primary coverage under its policy. The orders granting summary final judgment and awarding attorneys fees are affirmed.

Affirmed.


text:
    Ben BOTWINICK, Appellant, v. The STATE of Florida, Appellee.
    No. 76-751.
    District Court of Appeal of Florida, Third District.
    Feb. 22, 1977.
    Rehearing Denied April 1, 1977.

      Joseph Mincberg, Sky E. Smith, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., and HAVER-FIELD and NATHAN, JJ.
   PER CURIAM.

Defendant, Ben Botwinick, appeals his conviction for involuntary sexual battery, attempted murder, aggravated battery, burglary and petit larceny.

Botwinick first urges as reversible error the denial of his motion for mistrial on the ground that the prosecutor improperly commented upon his failure to testify violating his right against self-incrimination.

This complained of comment was made during defense counsel’s cross-examination of the victim:

“Q. You were able to see his double chin at the time of the assault. Is that right?
“A. Yes.
“MR. ROSENBLATT: With the Court’s permission, I would like for the Defendant to rise.
“MR. GRAVES: Well, Judge, if he calls him as a witness—
“MR. ROSENBLATT: I just want the defendant to go along the jury box.
“THE COURT: Yes, he can walk in front of the jury box.
“MR. GRAVES: Judge, I have a motion to make with reference to this.
“Q. [By Mr. Rosenblatt] Do you see a double chin on Mr. Botwinick here today?
“A. Not right now.
“MR. ROSENBLATT: I have no further questions.
“MR. GRAVES: May I cross examine the defendant, Your Honor! [Emphasis Supplied]
“THE COURT: No. sir.”

We find that to assert that the prosecutor’s request to the trial judge to cross-examine the defendant was construed by the jury as a comment on the accused’s failure to testify is nothing more than pure speculation or conjecture upon which reversible error cannot be predicated. See Sullivan v. State, 303 So.2d 632, 635 (Fla. 1974). In addition, we note that defense counsel requested a curative instruction and such an instruction on the right of a defendant not to testify was properly given by the judge to the jury. Thus, we find no abuse of discretion on the part of the trial judge in not declaring a mistrial based upon this comment. See Mabery v. State, 303 So.2d 369 (Fla.3d DCA 1974).

For his second point on appeal Botwinick contends that he was denied a fair trial by the prosecutor’s reference to the defendant’s violent character before he put his character in issue.

This alleged error occurred during the examination by the prosecutor of Detective Diaz, the lead investigator," when he was asked:

“Q. [By Mr. Graves]: Did you find anything in that truck that indicated or that was of probative value in relation to this Defendant having a violent character?”

Defense counsel immediately objected and the trial judge sustained the objection. In light of the fact that the objection was sustained and, therefore, no evidence as to Botwinick’s character was ever adduced, we remain unconvinced that he was so prejudiced by this question as to be denied a fair trial. See James v. State, 334 So.2d 83 (Fla.3d DCA 1976).

Affirmed.


text:
    Morris ANTICOUNI, Appellant, v. DADE COUNTY, a political subdivision of the State of Florida, Appellee.
    No. 76-110.
    District Court of Appeal of Florida, Third District.
    March 1, 1977.
    Rehearing Denied April 1, 1977.
    Harold A. Turtletaub, Miami, for appellant.
    Stuart L. Simon, County Atty. and James G. Roth and James K. Kracht, Asst. County Attys., for appellee.
    Before HENDRY, C. J., and PEARSON and HAVERFIELD, JJ.
   PER CURIAM.

Affirmed. See Modlin v. City of Miami Beach, 201 So.2d 70 (Fla.1967).


text:
    The KEYES COMPANY, a Florida Corporation, Appellant, v. The EXECUTIVE CENTER, INC., a Florida Corporation and Oscar E. Dooly Associates, Inc., a Florida Corporation, Appellees.
    No. 76-358.
    District Court of Appeal of Florida, Third District.
    March 1, 1977.
    Rehearing Denied April 1, 1977.
    Sager & Burns and Joseph Pardo, Miami, for appellant.
    Morton M. Beigel, Blackwell, Walker, Gray, Powers, Flick & Hoehl, and J. Frost Walker, III, Miami, for appellees.
    Before HAVERFIELD and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The Keyes Company seeks reversal of an adverse summary final judgment in its action to recover damages against Oscar E. Dooly Associates, Inc. for business interference.

The Keyes Company entered into a special written sales service agreement with the defendant, The Executive Center, whereby Keyes was granted exclusive right to sell the Center’s property for a period of one year commencing on July 11, 1972. In the event of sale, Keyes was to receive a 7V2% commission. Oscar E. Dooly Associates was notified of this exclusive listing contract as a subscribing broker to The Keyes’ special sales service listing. In November 1972 Executive Center, orally and in writing, notified Keyes that it was taking the property off the market, and the exclusive listing contract between them was terminated. In December 1972 at the request of Ryder System, Inc., Dolly sent Ryder a brochure describing the subject property and on January 9, 1973 Executive Center and Ryder entered into an agreement for the sale of the property. The transaction was consummated on April 6 and Dooly received a 6% real estate commission. Thereafter, Keyes sued Executive Center for a real estate commission and Oscar E. Dolly Associates for damages based on wrongful interference with the exclusive listing contract to sell the Center’s property. In the alternative, Keyes alleged that pursuant to the terms of its special sales service listing to which Dooly subscribed, Dooly had agreed to pay Keyes 40% of any commission received from the sale of listed property which Dooly had procured. After pretrial discovery Dooly moved for and was granted summary final judgment. We affirm.

With respect to Keyes action for business interference, that issue, has already been determined adversely to Keyes in a prior appeal. See Keyes Company v. Executive Center, Inc., 311 So.2d 734 (Fla.3d DCA 1975).

Turning to Keyes alternative claim for 40% of the commission received by Dooly, it is undisputed that in November 1972 the exclusive listing contract for the sale of the subject property had been cancelled by The Executive Center prior to the time negotiations were entered into with Ryder Systems and the sale consummated. Therefore, this property was not a “listed” property at the time the sale was consummated and Dooly was not obligated to pay Keyes a portion of its commission. Keyes reliance on Megdell v. Wieder, 327 So.2d 781 (Fla.3d DCA 1976) involving rights between cooperating and subscribing brokers is misplaced. In that case there was a contract between the broker and the seller in existence at the time of the sale.

Affirmed.


text:
    Neil A. FINN, Appellant, v. SCHNEIDER-RICHTER & ASSOCIATES P. A., a Florida Corporation, and Paul A. Gioia, Appellees.
    No. 76-443.
    District Court of Appeal of Florida, Third District.
    March 1, 1977.
    Rehearing Denied April 1, 1977.

      Adams, George, Lee & Schulte and David L. Willing, Miami, for appellant.
    Walton & Garrick, Miami, for appellees.
    Before HENDRY, C. J., and PEARSON and HUBBART, JJ.
   PER CURIAM.

The defendant appeals a final judgment of foreclosure of a mechanic’s lien filed by the plaintiff Schneider-Richter & Associates, P.A., upon an architect’s lien. The plaintiffs have cross-assigned error alleging error in the amount of the judgment.

The single point presented on the appeal by the defendant is as follows:

“In a mechanic’s lien foreclosure suit may the lienor by his own oral testimony prove his compliance with the requirement of Florida Statute 713.08(5) that a claim of lien must be recorded no later than 90 days after the final furnishing of services, when the lienor’s documentary evidence contains no record of work done within the 90 day period and when the lienor’s documentary evidence shows that all charges by the lienor were billed to the owner more than 90 days before the lienor filed his claim of lien?”

This point does not present error because the trier of fact is the sole judge of the credibility and weight of the evidence. See Equitable Life Assurance Society of the United States v. Boraks, 276 So.2d 246 (Fla. 3d DCA 1973); and Benedict v. Dade County Realty, Inc., 274 So.2d 553 (Fla. 3d DCA 1973).

The point on cross-appeal also fails to present reversible error in that plaintiff’s claim for a lien for a second set of plans for a different building, which was not constructed, depends upon proof of agency of a contractor who authorized the preparation of the second set of plans. The court’s finding that no such agency existed was based upon conflicting testimony and, therefore, will not be reversed in this court. See Cook v. Cook, 305 So.2d 12 (Fla. 1st DCA 1974); and State v. Thomas, 212 So.2d 910 (Fla. 1st DCA 1968).

Affirmed.


text:
    Emiliana RUE, Appellant, v. Robert T. RUE, Appellee.
    No. 76-944.
    District Court of Appeal of Florida, Third District.
    March 1, 1977.
    Rehearing Denied April 1, 1977.
    Gino P. Negretti, Miami, for appellant.
    Goldfarb & Deutsch, Miami, for appellee.
    Before HAVERFIELD, NATHAN and HUBBART, JJ.
   PER CURIAM.

Affirmed. See Ross v. Ross, 321 So.2d 443 (Fla. 3d DCA 1975); McKennon v. McKennon, 312 So.2d 804 (Fla. 1st DCA 1975); Unger v. Unger, 306 So.2d 540 (Fla. 3d DCA 1975).


text:
    William S. MARSHALL et al., Appellants, v. Dr. James D. UPSON, Appellee.
    No. 76-1452.
    District Court of Appeal of Florida, Third District.
    March 1, 1977.
    Rehearing Denied April 1, 1977.
    Marshall & Stiles, Miami, for appellants.
    Zipkin & Pécora, Miami, for appellee.
    Before HAVERFIELD, NATHAN and HUBBART, JJ.
   PER CURIAM.

Appellants, William S. Marshall, Nelson C. Keshen and W. H. Stiles, d/b/a Marshall, Keshen & Stiles, take this interlocutory appeal from an order of the trial court changing venue to Volusia County, pursuant to a motion by defendant-appellee, Dr. James D. Upson.

Appellants filed a verified complaint for attorney’s fees, alleging that they were licensed Florida attorneys practicing in Dade County and that appellee was a resident of Volusia County; that appellee came to appellants’ offices in Dade County and there agreed to hire appellants to perform legal services in Dade County, for which appellee would pay to appellants at their offices a reasonable fee and related out-of-pocket expenses; that legal services were performed for appellee for which appellants have not been paid as agreed. Appellee filed an unverified motion to dismiss, alleging that the complaint was not brought in the county in which the defendant resides or where the cause of action accrued. The trial court heard oral argument and entered the order' herein appealed.

The uncontroverted facts as alleged in the verified complaint — that the cause of action accrued and the attorney’s fees were to be paid in Dade County — support venue in Dade County. Equilease Corp. v. Clifford, 251 So.2d 40 (Fla.3d D.C.A.1971); Ryder Leasing, Inc. v. Jorge, 168 So.2d 548 (Fla.3d D.C.A.1964). In light of these verified allegations, appellee had the burden of establishing the absence of venue by specific averments, which the record reflects appellee did not do. Florida Forms, Inc. v. Barkett Computer Services, Inc., 311 So.2d 730 (Fla.4th D.C.A.1975); Permenter v. Bank of Green Cove Springs, 136 So.2d 377 (Fla.1st D.C.A.1962).

Therefore, the order here under review is reversed with directions to proceed with the cause.

Reversed.

      . The applicability of the doctrine of forum non conveniens, Section 47.122, Fla.Stat. (1975), was not reflected in the proceedings revealed by the record on appeal.


author: HUBBART, Judge.

text:
    HARTFORD FIRE INSURANCE CO. and St. Paul Fire and Marine Insurance Co., Appellants, v. Donald SPREEN et al., Appellees.
    Nos. 76-1708 to 76-1711.
    District Court of Appeal of Florida, Third District.
    March 1, 1977.
    Rehearing Denied April 1, 1977.
    Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O’Hara and Richard A. Sherman, Carey, Dwyer, Cole, Selwood & Bernard and Steven R. Berger, Miami, for appellants.
    Noriega, Bartel, Chopp, Schatz, Levine & Shuford, Bradford, Williams, McKay, Kimb-rell, Hamann & Jennings and W. Sam Holland, Miami, for appellees.
    Before HAVERFIELD and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   HUBBART, Judge.

This is a cross claim by an insured against his insurance carriers under certain insurance policies for payment of damages on an assault and battery complaint filed against the insured. Summary judgments were entered in favor of the insured and the carriers appeal. The issues presented for review are concerned with whether there is coverage under such policies for an assault and battery claim.

William King and his wife Edna were guests at a party one evening at a private home in Marathon, Florida. Donald Spreen and his wife were also guests at the party. Donald Spreen was dancing with another female guest at the party when William King approached him. King said to Spreen, “That’s all right, Don. Keep dancing with Esther. You are doing real fine. I will go make love to your wife.”

With that, Spreen stopped dancing, walked six to nine paces to where King was standing, and took a swing with his right fist at King. Spreen struck King in the area of his left eye causing a blow-out fracture of the orbital floor of the eye. King has since had two sensitive eye operations and claims loss of vision and related problems from- the sunken eye.

By deposition and affidavit, Donald Spreen states that he intended to strike King in the face, but not to damage King’s face or eye. He further states that he was reacting to what he regarded to be a crude and vulgar remark about his wife.

William and Edna King sued Donald Spreen and his three insurance carriers, Hartford Fire Insurance Co. [“Hartford”], St. Paul Fire and Marine Insurance Co. [“St. Paul”] and Fireman’s Fund Insurance Co. [“Fireman’s Fund”]. The complaint stated a cause of action for assault and battery and negligence. Spreen answered the complaint and filed a cross claim against his insurance carriers claiming coverage under the liability policies for the incident alleged in the complaint. Hartford and St. Paul answered the cross claim denying coverage on the assault and battery claim. Fireman’s Fund, although initially denying coverage, has since admitted coverage for the incident under its policy.

Donald Spreen moved for summary judgment on his cross claims against Hartford and St. Paul based on the above facts established in deposition and affidavit. William King and his wife joined in this motion. The trial court entered summary judgment against Hartford on the coverage issue for any judgment rendered in the main action up to the limits of coverage under the policy, and against St. Paul for any judgment in excess of the policy limits of Hartford. Hartford and St. Paul appeal.

I.

The Hartford policy in this case is a homeowner’s liability policy which covers the insured’s legal obligation to pay damages for bodily injury and property damage caused by an “occurrence.” The policy defines “occurrence” as an “accident;” it also excludes from coverage “bodily injury and property damage which is either expected or intended from the standpoint of the insured . . ..”

As to this policy, the issue presented for review is whether bodily injury inflicted by the insured in an assault and battery is covered by a homeowner’s liability policy which insures against damages caused by an “accident” and which specifically excludes damages which are “either expected or intended from the standpoint of the insured.” We conclude that the assault and battery incident herein is not covered by the Hartford policy and reverse.

The Florida courts in a line of cases have consistently held that insurance policies covering liability for an “accident” apply to any bodily injury or property damage inflicted by the insured on a third party where the insured does not intend to cause any harm to the third party; this result obtains even though damages are caused by the insured’s intentional acts and were reasonably foreseeable by the insured. Insurance coverage has accordingly been found under such policies where an insured unintentionally shoots himself while playing “Russian Roulette”, Gulf Life Insurance Co. v. Nash, 97 So.2d 4 (Fla.1957); or unintentionally shoots himself while attempting to disarm a person in a fight in which the insured is the aggressor, Harvey v. St. Paul Western Insurance Cos., 166 So.2d 822 (Fla.3d D.C.A.1964); or unintentionally shoots a bystander during a family quarrel, Grange Mutual Casualty Co. v. Thomas, 301 So.2d 158 (Fla.2d D.C.A.1974); or unintentionally hits a person in a crowd of people with a car while slowly driving into the edge of the crowd intending to disperse them, Phoenix Ins. Co. v. Helton, 298 So.2d 177 (Fla.1st D.C.A.1974), or unintentionally injures a person in a car while intentionally pushing the car which was blocking a driveway, Cloud v. Shelby Mutual Insurance Co., 248 So.2d 217 (Fla.3d D.C.A.1971). Running through all of these cases is an act of negligence by the insured, sometimes gross or even culpable negligence. But never has coverage been found under such policies where the insured’s act was deliberately designed to cause harm to the injured party-

Indeed the law is well-settled that there can be no coverage under an insurance policy which insures against an “accident” where “the [insured’s] wrongful act complained of is intentionally directed specifically toward the person injured by such act ..” Grange Mutual Casualty Co. v. Thomas, 301 So.2d 158, 159 (Fla.2d D.C.A. 1974). “Early on it became the overwhelming consensus in those cases that since such a policy was in essence an indemnification contract public policy mandated that an intentional tort was not an ‘accident’ within the coverage for the reason that one ought not to be permitted to indemnify himself against his intentional [torts].” Leatherby Insurance Co. v. Willoughby, 315 So.2d 553 (Fla.2d D.C.A.1975). Accordingly, an assault and battery committed by the insured has been held to be an intentional tort which is not covered by insurance policies which insure against an “accident.” Consolidated Mutual Insurance Co. v. Ivy Liquors, Inc. 185 So.2d 187 (Fla.3d D.C.A. 1966). See also State Farm & Casualty Co. v. Saurazas, 334 So.2d 180 (Fla.4th D.C.A. 1976); Capoferri v. Allstate Insurance Co., 322 So.2d 625 (Fla.3d D.C.A.1975); Buchwald v. Hartford Accident and Indemnity Co., 319 So.2d 164 (Fla.3d D.C.A.1975).

In the instant case, the insured Donald Spreen committed an assault and battery upon William King. He reacted to deliberately hit King for a crude and insulting remark about his wife. In no sense, can this assault and battery be considered an “accident” which is covered under the Hartford policy.

The appellees argue that while Spreen intended to hit King he did so on the spur of the moment, did not foresee the extent of King’s injuries, and therefore did not intend them. The argument is unpersuasive. It is a subtle method of introducing the tort rule of reasonable foreseeability into insurance contract cases through the back door. Such a notion has been repeatedly rejected by the Florida courts. Gulf Life Insurance Co. v. Nash, 97 So.2d 4 (Fla.1957); Grange Mutual Casualty Co. v. Thomas, 301 So.2d 158 (Fla.2d D.C.A.1974); Phoenix Ins. Co. v. Helton, 298 So.2d 177 (Fla.1st D.C.A.1974); Cloud v. Shelby Mutual Insurance Co., 248 So.2d 217 (Fla.3d D.C.A.1971); Harvey v. St. Paul Western Insurance Cos., 166 So.2d 822 (Fla.3d D.C.A. 1964). The fact that Spreen did not foresee the extent of King’s injuries when he swung at King can no more provide coverage under the Hartford policy than can coverage be denied by the fact that Spreen should have foreseen such injury. Foreseeability is irrelevant to the coverage issue. The sole issue is whether Spreen intended to inflict any harm on King. This he clearly intended to do and the fact that he did not foresee or intend the extent of the harm inflicted does not convert the admitted assault and battery into an accident. Clark v. Allstate Insurance Co., 22 Ariz. App. 601, 529 P.2d 1195 (1975); Terito v. McAndrew, 246 So.2d 235 (La.App.1971).

We are further supported in our conclusion by the specific exclusion from coverage under the Hartford policy for any damages “which are either expected or intended from a standpoint of the insured.” “The courts have generally held that injury or damage is ‘caused intentionally’ within the meaning of an ‘intentional injury exclusion clause’ if the insured has acted with the specific intent to cause harm to a third party . . ..” Cloud v. Shelby Mutual Insurance Co., 248 So.2d 217, 218 (Fla.3d D.C.A.1971). Spreen clearly acted to cause harm to King which thereby defeats coverage under the intentional injury exclusion clause.

We therefore hold that an injury caused by the insured in an intentional assault and battery is not covered under the Hartford homeowner’s liability policy which provides coverage for damages caused by an “accident” and excludes from coverage damages “which are either expected or intended from the standpoint of the insured.”

II.

The St. Paul policy is a personal catastrophe insurance policy which covers the insured’s legal obligation to pay damages for “personal injuries.” “Personal injuries” are defined as including but not limited to “bodily injury” as well as a number of intentional torts which do not include assault and battery.

As to this policy, the issue presented for review is whether bodily injury inflicted by the insured in an assault and battery is covered by a personal catastrophe policy which insures against “personal injuries,” or “bodily injury” but does not specifically mention the tort of assault and battery. We conclude that the assault and battery in the instant ease is covered by the St. Paul policy and affirm.

Unlike Hartford, the St. Paul policy is not limited to coverage for damages arising from an “accident.” It broadly covers damages which the insured is liable to pay on account of “personal injuries,” or “bodily injury.” There is no limitation in the coverage section of the policy which refers to an “accident.” Nor is there a specific exclusion in the policy for damages which are intentionally caused by the insured.

The law is well-settled that “[a] contract of insurance, prepared and phrased by the insurer is to be construed liberally in favor of the insured and strictly against the insurer, where the meaning of the language is doubtful, uncertain or ambiguous.” Moore v. Connecticut Life Insurance Co., 277 So.2d 839, 842 (Fla.3d D.C.A.1973). In view of this canon of construction, we think the coverage of the St. Paul policy for “personal injuries” defined inter alia as a “bodily injury” is broad enough to cover damages caused by an intentional assault and battery.

St. Paul relies on a definition clause in the policy which defines “occurrence” as an “accident” resulting in damages “neither expected or intended from standpoint of the insured.” The term “occurrence,” however, does not appear in the coverage section of the St. Paul policy nor in any exclusion clause which is applicable here and cannot be relied upon to defeat coverage.

We, therefore, hold that an injury caused by the insured in an intentional assault and battery is covered under the St. Paul personal catastrophe policy which provides coverage for damages legally incurred by the insured on account of “personal injuries” or “bodily injury.”

III.

The summary judgment entered by the trial court against the appellant St. Paul Fire and Marine Insurance Co. is affirmed. The summary judgment entered by the trial court against the appellant Hartford Fire Insurance Co. is reversed and the cause remanded for proceedings consistent with this opinion.

Affirmed in part; reversed in part.


text:
    Tangela SMITH, a minor, by her mother and next friend Delores Walker and Delores Walker, Individually, Appellants, v. METROPOLITAN DADE COUNTY, a Municipal Corporation, Appellee.
    No. 76-115.
    District Court of Appeal of Florida, Third District.
    March 1, 1977.
    Rehearing Denied March 31, 1977.
    Kuvin, Klingensmith & Lewis, Coconut Grove, Gaine & Game, Miami, for appellants.
    Stuart L. Simon, County Atty., and James G. Roth and James K. Kracht, Asst. County Attys., for appellee.
    Before HENDRY, C. J., and PEARSON and HAYERFIELD, JJ.
   PER CURIAM.

Plaintiffs appeal from a summary final judgment in favor of defendant, Dade County, in this personal injury action.

Prior to the date of the subject accident, the County removed a traffic control device located on the Northwest side of 22 Avenue just South of 69 Lane. However, the County failed to remove the base of the device and on October 14, 1974, while walking along the sidewalk, Tangela Smith sustained injury when the metal base penetrated her leg. Tangela Smith, a minor, by her mother Delores Walker and Delores Walker, individually filed suit against the County to recover damages. Subsequently, the County filed a motion for summary judgment along with an affidavit of Lucian C. Cantin, its insurance division manager, who stated that the County has no insurance covering this type of claim. After hearing argument, the trial judge granted the motion and entered summary judgment for the County. We affirm.

Dade County, a political subdivision of the State of Florida, enjoys governmental immunity from suit unless it waives such immunity by the acquisition of insurance. Kaulakis v. Boyd, 138 So.2d 505 (Fla.1962); Arnold v. Shumpert, 217 So.2d 116 (Fla.1968); Brandeis v. Dade County, 226 So.2d 873 (Fla. 3d DCA 1969); Schmauss v. Snoll, 245 So.2d 112 (Fla. 3d DCA 1971). It affirmatively appears from the record that there is no insurance coverage as plaintiffs’ complaint as well as Can-tin’s affidavit so states.

Affirmed.

      . It is to be noted that the waiver of immunity statute, § 768.28, Fla.Stat. (1973) became effective on January 1, 1975 [§ 768.30, Fla.Stat. (1973)] and, thus, is not applicable to the instant case.


text:
    Roy RENDER and Sarah Render, his wife, Appellants, v. The CITY OF SUNRISE, a Municipal Corporation, et al., Appellees.
    Nos. 76-70, 76-1797.
    District Court of Appeal of Florida, Fourth District.
    March 4, 1977.
    Rehearing Denied April 7, 1977.
    Edward A. Perse of Horton, Perse & Ginsberg and P. J. Carroll & Associates, Miami, for appellants.
    Larry Klein, West Palm Beach and Earle Lee Butler, Fort Lauderdale, for appellee City of Sunrise.
   PER CURIAM.

Affirmed on the authority of Gordon v. City of West Palm Beach, 321 So.2d 78 (Fla. 4th D.C.A.1975); City of Tampa v. Davis, 226 So.2d 450 (Fla. 2d D.C.A.1969); and Modlin v. City of Miami Beach, 201 So.2d 70 (Fla.1967).

AFFIRMED.

MAGER, C. J., and ALDERMAN and DAUKSCH, JJ., concur.


text:
    Marcia BUCKINGHAM and Marie Buckingham, Individually and as mother and next friend of Marcia Buckingham, Appellants, v. ATLAS AIRCRAFT CORPORATION, Appellee.
    No. 76-1633.
    District Court of Appeal of Florida, Fourth District.
    March 4, 1977.
    Rehearing Denied April 7, 1977.
    James D. Little and William Bruce Harper, Jr. of Frates, Floyd, Pearson, Stewart, Richman & Greer, P. A., Miami, for appellants.
    Michael B. Davis of Walton, Lantaff, Schroeder & Carson, West Palm Beach, for appellee.
   LETTS, Judge.

This is an interlocutory appeal from an order of the trial court granting a motion to quash service of process and dismissing the cause of action against the appellee (Atlas Aircraft Corporation). The service of process quashed, was effected, under the Florida “Long Arm” Statute, Chapter 48.181, upon the said Atlas Aircraft Corporation, a nonresident corporation, based in Colorado and engaged as a dealer, in the regular selling of aircraft to customers.

We are unable to agree with the order of the trial judge quashing service and dismissing the cause of action.

The appellant, Marcia Buckingham, was injured in an air crash in Alabama, while aboard a light plane owned by the appellee, Atlas Aircraft Corporation (Atlas), which plane was being “ferried” by Atlas to its dealership premises in Colorado. The record reveals that most of the stockholders, officers, directors and president of Atlas hold similar stock and officer positions in another Colorado corporation, Aviation Sales, Inc., which latter corporation would repeatedly buy Piper aircraft, wholesale, with all of the paperwork prepared and sent back and forth between Colorado and the administrative offices of Piper in Pennsylvania. Thereafter, said Aviation Sales, Inc. would transfer title to the aircraft, often still located in Florida, from itself as a wholesaler, to the appellee, Atlas, as a dealer, again by paperwork completed exclusively in Colorado. It should be noted that Aviation Sales, Inc. was not restricted to selling planes to Atlas, but also sold planes in several states to other dealers. Pursuant to the above modus operandi, planes were, on various occasions, delivered, f. o. b. Vero Beach, Florida, to Atlas, and an independent contractor procured to “ferry” the planes from Vero Beach to Colorado. Accordingly, the “ferrying” of planes to Colorado was repeatedly done in the normal course of the appellee’s business as an incident thereto. The record also reveals that the president of the two corporations, named above, while under deposition, was frequently unable to recall many of the specifics of which corporation did what, or where, or when, it did so. Suffice it to say that the record shows that the foregoing recited chronology of events undeniably took place and constituted a repeated course of business conduct, which, at all events, occurred in exactly the manner related above, on the occasion of the plane crash which took the life of the pilot, and injured the appellant.

In an affidavit supplied to the Court, Atlas declared that none of its agents, servants, brokers, jobbers, wholesalers, distributors, or any other persons conducting business for it, ever did business in Florida from a time prior to the accident, giving rise to the lawsuit, up until the time of its subsequent dissolution. The mutual president also testified to frequent trips to Florida, by himself, and other officers and employees of Atlas, for meetings with Piper personnel to discuss sales, instruction techniques, and occasionally, even to fly new planes back to Colorado; however, the mutual president uniformedly insisted that, from before the time of the accident and all times thereafter, all such officers and employees, notwithstanding their dual corporate roles, always came to Florida wearing only their Aviation Sales, Inc. hats, and never on behalf of the appellee, Atlas, even although they regularly worked, or acted, for the latter in Colorado. There is nothing in the record to controvert this testimony as to the nature of the Florida visits, except as referred to herein from the deposition, affidavit and answers to the interrogatories, included in the record.

Atlas took title to the aircraft in which the tragedy occurred, from Aviation Sales, Inc. on November 15th, 1972, and received delivery of it on November 17th, 1972, f. o. b. at Vero Beach, Florida, where a pilot, procured for the purpose, commenced his ill fated trip. The very same pilot had, according to dual president’s affidavit satisfactorily completed one prior ferrying trip for Atlas . . from Florida to Colorado, only two weeks before. Moreover, in answers to interrogatories made a part of the record, Atlas conceded that it had acquired many planes from Florida, as follows:

The defendant has indirectly purchased many Piper Aircraft, some of which were manufactured in Florida . . . purchased for the purpose of re-selling aircraft to customers in Colorado.

Further, in answer to yet another interrogatory, Atlas said:

Personnel of the defendant have, from time to time attended dealer meetings held by Piper Aircraft in Florida. On some occasions, employees have picked up aircraft, from the Florida plant of Piper, which had been purchased from Aviation Sales, Inc., which had, in turn, purchased the aircraft from Piper.

In addition, the deposition of the dual president reveals that, on more than one occasion, customers of Atlas had, themselves, come to Florida accompanied by Atlas personnel, to pick up a Piper plane which Atlas had sold to said customers.

Appellee’s brief is insistent that Atlas did no business whatever in Florida, and that if any was done, it was by the related, but separate, corporation, Aviation Sales, Inc.; however, without the necessity of examining the Siamese twin-like relationship between these two corporations, (both had the identically same, stockholders, the dual president and one other), we cannot agree. In the landmark case of Youngblood v. Citrus Associates of New York Cotton Exchange, Inc., 276 So.2d 505, 509 (Fla. 4th DCA 1973), Judge Cross set forth the requirements to be satisfied in order to permit the application of Florida’s “Long Arm” Statute, noting that “. . . the burden of proof to sustain the validity of service of process is upon the person who seeks to invoke the jurisdiction of the court.” We believe the appellant has successfully carried this burden in the case now before us. Atlas, itself, was in the regular commercial business of selling Piper aircraft manufactured in Florida, received title to many of same in this State, took delivery, f. o. b. Vero Beach, procured pilots to fly them (the aircraft) to Colorado, and even on occasion brought customers to Florida to pick up aircraft sold by Atlas to said customers. Perhaps no single one of all of the foregoing actions, or events, would suffice to subject Atlas to the jurisdiction of the Florida courts, but the combination of them existing here, oft times repeated, irresistibly establishes a pattern of “doing business” in this State. In the case of C.I., Inc. v. Travel Internationale, Ltd., 236 So.2d 441 (Fla.1970), where a similar question was presented, the Supreme Court affirmed the ruling of the Third District Court of Appeals, noting that evidence that, the defendant nonresident corporation, leased a plane, repaired it and hired a pilot to fly it, all of these events taking place in Florida, was adequate to support a finding of engaging in a business venture within the state. Moreover, in the case of Fourth Dimension Interiors, Inc. v. Decorator Services, Ltd., 256 So.2d 571 (Fla. 3rd DCA 1972), the court held that the nonresident corporation was doing business in Florida because it was the actual purchaser of the merchandise to be shipped out of state.

As was said in the case of Flying Saucers, Inc. v. Moody, 421 F.2d 884 at 887 (5th Cir. 1970), “Causes of this kind . . . must be decided on the facts peculiar to each case as it arises.” In the instant case, we conclude from the foregoing recitation of facts and circumstances, that Atlas was engaged in a business venture in Florida under Chapter 48.181, and that the proceeding here being reviewed arose out of a transaction and an operation connected with and incidental to said business venture.

CROSS and ANSTEAD, JJ., concur.