author: OTT, Judge.

text:
    AUTO-OWNERS INSURANCE COMPANY, Appellant, v. Joyce Irene EDDINGER, formerly Joyce Irene Chafin, Appellee.
    No. 78-285.
    District Court of Appeal of Florida, Second District.
    Jan. 5, 1979.
    John W. Berry, Sarasota, for appellant.
    É. David Tyner of Sumner, Tyner, Williams, McKnight & Ross, Dade City, for appellee.
   OTT, Judge.

The question presented is whether the fraudulent act of a named co-insured voids the policy protection to an innocent co-insured. We answer the question in the negative and affirm.

Mr. Chafin and his wife, Joyce Irene Chafin, (now known as Joyce Irene Eddinger) were married in 1973. The then husband and wife secured a standard homeowner’s insurance policy with appellant for their jointly owned home. The Chafins were divorced in 1974. Ownership of the home continued in their joint names as tenants in common. The original policy was thereafter renewed to insure their continuing interests as such co-owners. In 1976 a fire totally destroyed the insured premises.

The insurance company denied Mr. Chaf-in’s claim on the ground that he had committed fraud and was responsible for the fire. Mr. Chafin brought an action for damages under the insurance policy. Mrs. Eddinger intervened as a party defendant and then asserted a cross-claim against the insurance company. It was stipulated that she was innocent of any fraud involving the fire.

The lower court entered summary judgment for Mrs. Eddinger on her cross-claim from which appellant brings this appeal.

Appellant contends that Mr. Chafin’s fraudulent act voided any protection for Mrs. Eddinger. Appellant points to the following policy provision:

[The] entire policy shall be void if, whether before or after a loss, the insured has willfully concealed or misrepresented any material fact or circumstances concerning this insurance or the subject thereof, or the interest of the insured therein, or in case of any fraud or false swearing by the insured relating thereto.

Appellant argues that it is clear from the language of the entire policy that the insurance company intended to insure Mr. Chaf-in and any named insured jointly. In no case, argues the appellant, was the insurance severable so as to provide separate, insurance of the respective interests of two or more joint owners and co-insureds.

We disagree. In construing the insurance policy, the question whether the coverage was joint or several must be construed in favor of the appellee since there is no clear indication to the contrary. The above policy language is capable of more than one possible interpretation. In such case the interpretation should be given which provides coverage to the insured. See, Feldman v. Central National Insurance Company of Omaha, 279 So.2d 897 (Fla.3d DCA 1973).

There is no Florida case law directly on point. However, we are persuaded by those cases from other jurisdictions to the effect that the fraud of a co-insured does not void the coverage of the innocent co-insured. In Howell v. Ohio Casualty Insurance Company, 130 N.J.Sup. 350, 327 A.2d 240 (N.J.App.1974) the court held that the fraud of the co-insured husband did not void the policy as to the co-insured wife. The' court stated:

The significant factor is that the responsibility or liability for the fraud — here, the arson — is several and separate rather than joint, and the husband’s fraud cannot be attributed or imputed to the wife who is not implicated therein.

327 A.2d at 242. See Mercantile Trust Co. v. New York Underwriters Insurance Co., 376 F.2d 502 (7th Cir. 1967); Hoyt v. New Hampshire Fire Insurance Co., 92 N.H. 242, 29 A.2d 121 (1942).

The summary judgment for the appellee is affirmed.

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Florida, Appellant, v. Karen N. BARKER, Appellee.
    No. 78-1353.
    District Court of Appeal of Florida, Second District.
    Jan. 5, 1979.
    Jim Smith, Atty. Gen., Tallahassee, and Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appellant.
    Gerard J. O’Brien, Jr., St. Petersburg, for appellee.
   PER CURIAM.

Reversed. See State v. Allen, 362 So.2d 10 (Fla.1978).

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


author: GRIMES, Chief Judge.

text:
    Mae ROBERTS, Petitioner, v. Patricia JARDINE, Respondent.
    No. 78-1707.
    District Court of Appeal of Florida, Second District.
    Jan. 5, 1979.

      W. Donald Cox, of Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., Tampa, for petitioner.
    E. Clinch Kavanaugh, III, of Smythe & Kavanaugh, Bradenton, for respondent.
   GRIMES, Chief Judge.

Petitioner seeks a writ of certiorari to reverse an interlocutory orden compelling her former attorney to answer questions on deposition. She contends that the order violates her attorney-client privilege. We agree. We grant the petition and issue the writ.

This is the second certiorari petition which the discovery stage of the litigation between respondent and petitioner has spawned. See Roberts v. Jardine, 358 So.2d 588 (Fla. 2d DCA 1978). As noted in our first opinion, this controversy revolves around respondent’s claim that petitioner made a tape recording of a certain telephone conversation between the parties without respondent’s knowledge. William J. Terry, petitioner’s attorney in a previous action, played this recording during a deposition of respondent in that action. After learning of the existence of the recording, respondent filed a complaint seeking damages from petitioner. She based her action on Section 934.10, Florida Statutes (1977), which authorizes damages for the wrongful interception of oral communications.

Subsequently, respondent took the deposition of attorney Terry at which time counsel for respondent asked Mr. Terry the following questions:

1) How did you acquire this tape?
2) How did you know it was made in March of 1976?
3) Was it made at your request?
4) Are you aware that this tape was going to be made prior to it being made?
5) Did Mae Roberts make the tape?
6) Do you know how the tape was made?
7) Do you know where the tape was made?

Petitioner’s present counsel objected to each of the questions on the grounds that the answers thereto would violate petitioner’s attorney-client privilege and instructed Terry not to answer. Respondent filed a motion to compel Mr. Terry to answer the questions, and the trial court granted the motion.

In requiring Terry to answer the questions without regard to the attorney-client privilege, the court departed from the essential requirements of the law. The attorney-client privilege is recognized in Florida and exists to protect and keep secret the communications which a client makes to his or her attorney. Anderson v. State, 297 So.2d 871 (Fla. 2d DCA 1974). Petitioner is entitled to prevent Mr. Terry from giving any answers which would violate that privilege.

We note, however, that respondent may still be able to require Mr. Terry to answer questions concerning the tape recording. Any consultations between client and attorney concerning the planning of a crime are not privileged and may be the subject of discovery. Leithauser v. Harrison, 168 So.2d 95 (Fla. 2d DCA 1964). Thus, since Section 934.03, Florida Statutes (1977), makes the interception and disclosure of wire or oral communications illegal, any communications between petitioner and her attorney in planning the taping of the phone conversation would be discoverable. With respect to the procedure to be followed in attempting to meet the burden of overcoming the attorney-client privilege, see Leithauser v. Harrison, supra; I.T.T. v. United Telephone Co., 60 F.R.D. 177 (M.D.F.1973); McCormick on Evidence, Section 95 (2d ed. 1972).

We hereby quash the order compelling Mr. Terry to answer the enumerated questions.

BOARDMAN and SCHEB, JJ., concur.


author: BOYER, Acting Chief Judge.

text:
    The ESTATE of Essie C. HARPER by Glenda H. Jackson, Personal Representative, and Glenda H. Jackson, Shelby Mitchell, Donna Earwood, Bobby Ray Harper, Edward E. Harper and Randy D. Harper, Appellants, v. ORLANDO FUNERAL HOME, INC., d/b/a Bray-Altman Funeral Home, Orange State Casket Company, Inc., the Lumbermens Mutual Insurance Company and National Union Fire Insurance Company of Pittsburgh, Pennsylvania, Appellees.
    No. GG-60.
    District Court of Appeal of Florida, First District.
    Jan. 9, 1979.
    Rehearing Denied Jan. 31, 1979.

      Wilmer H. Mitchell, of Mitchell & Ober-hausen, Pensacola, for appellants.
    J. Robert Hughes, of Barron, Redding, Boggs & Hughes, Panama City, and William L. Lee, Jr., of Shell, Fleming, Davis & Menge, Pensacola, for appellees.
   BOYER, Acting Chief Judge.

We here review a Final Judgment of the learned trial judge finally dismissing a complaint.

The plaintiffs are the children of Essie C. Harper deceased and plaintiff Glenda H. Jackson is also the duly appointed personal representative of the decedent’s estate. Suit was filed by plaintiffs against the defendants because the casket manufactured by Orange State Casket Company and sold by Orlando Funeral Home to plaintiffs to be used incident to the burial of Essie C. Harper commenced falling apart as the body was being carried from the hearse to the grave. The complaint alleges that by supreme effort the pallbearers and the staff of the funeral directory were able to transport the casket and the body to the grave even though the bottom of the casket had come completely loose and was sagging downward several inches. Plaintiffs sought damages under Count I for tortious interference with rights involving a dead human body; under Count II for intentional infliction of emotional distress; under Count III for breach of an implied warranty of merchantability; under Count IV for breach of an implied warranty of fitness; under Count'V in strict liability; and under Count VI for punitive damages. The trial court without opinion dismissed the amended complaint for failure to state a cause of action upon which relief could be granted and thereafter entered the final judgment here appealed.

Plaintiffs maintain that the foresee-ably sickening consequences of a casket falling apart should be compensable in civilized societies. On the other hand, defendants contend that damages for mental pain and suffering are not recoverable absent physical impact unless plaintiffs fall within the narrow exception to the impact doctrine by alleging conduct exceeding all bounds reasonably tolerated by society such as to imply malice or the entire want of care or great indifference, which they have not and cannot do.

Because the “impact doctrine” is still the law in this state we reluctantly agree with defendants as to recovery for mental pain and suffering, being of the view, however, that the doctrine should be re-examined.

Other state courts have recognized that the reasons given to support the impact rule are no longer viable. For example, in rejecting the impact requirement in cases where negligent infliction of emotional distress has “resulted in serious physical manifestations”, the Colorado Supreme Court has stated:

“Traditionally, a number of rationales have been offered in support of the impact rule. It has been argued that emotional damages are simply too speculative, and the possibility of fraudulent claims too high, to permit naked claims of emotional distress. In recent years, however, the medical profession has made tremendous advances in diagnosing and evaluating emotional and mental injuries. While psychiatry and psychology may not be exact sciences, they can now provide sufficiently reliable information concerning causation and treatment of psychic injuries, to provide a jury with an intelligent basis for evaluating a particular claim. In this light, we are confident that juries are capable of assessing whether a claim is concocted and fictitious or, in fact, real.” (Towns v. Anderson, 579 P.2d 1163, 1164 (Colo.1978)).

The defendant Orlando Funeral Home contracted with the plaintiffs to provide a casket suitably designed and constructed for the burial of the deceased person the size and weight of Essie C. Harper. It was reasonably foreseeable by both Orlando Funeral Home and Orange State Casket Company that because of the inadequate and defective construction of the coffin for the purposes intended that the casket would not hold plaintiffs’ mother; that the casket would fall apart while plaintiffs’ mother was in it; and that this might happen before plaintiffs’ mother was buried and while plaintiffs and friends were watching. For their conduct the defendants should be required to answer for the injury resulting to plaintiffs’ feelings as well as to their purse, provided that the injury be the natural and direct consequence of the acts complained of. (cf. Wadsworth v. Western Union Telegraph Company, 86 Tenn. 695, 8 S.W. 574 (Tenn.1888).)

Holding, as we must, that defendants are not liable in this case for the wrong and injury done to the feelings and emotions of the plaintiffs disregards the rights of plaintiffs to contract for a suitable burial for their mother and necessarily disregards the rule that every wrong must be remedied by appropriate damages. If society and the courts continue to refuse an adequate remedy at law for plaintiffs such as these, they will be encouraged to resort to self help, perhaps even violence. In our view that is not a desirable result. Nevertheless, it is not the prerogative of this court to challenge the established statutory or decisional law of the State. (Hoffman v. Jones, 280 So.2d 431 (Fla.1973).)

However, while agreeing with the defendants that under existing law damages may not be recovered by plaintiffs under the facts of this case for mental pain and suffering, we are of the view that Counts I, III and IV should not have been dismissed. Count I contains a recitation that “the personal representative sues for the estate or in the alternative for the individual plaintiffs for these damages [mental pain and suffering] and for any damages due the estate because of the occurrence aforesaid including the refund of amounts paid to the defendant * * * toward the funeral bill.” Count III constitutes an action for implied warranty of merchantability and Count IV, an implied warranty of fitness. Under those counts a cause of action is stated sufficient to be afforded an opportunity to adduce appropriate proof of at least the sums paid for the defective casket and any other damages, other than mental pain and suffering, related thereto. (See F.S. 672.314; F.S. 672.315; F.S. 672.714 and F.S. 672.715).

Affirmed in part and reversed in part, and remanded for further proceedings consistent herewith.

ERVIN and MILLS, JJ., concur.


author: DOWNEY, Chief Judge.

text:
    L. C. JUDD & CO., INC., Appellant, v. JOSEPH C. MACKEY AND COMPANY and Sonnenblick-Goldman Realty Corp., Appellees.
    No. 76-2733.
    District Court of Appeal of Florida, Fourth District.
    Jan. 10, 1979.
    ' Charles R. Morgan, of Morgan, Carratt & O’Connor, Fort Lauderdale, for appellant.
    Myles J. Tralins and John R. Farrell, Miami, for appellee Sonnenblick-Goldman Realty Corp.
   DOWNEY, Chief Judge.

Appellant seeks reversal of a final judgment awarding appellee $35,434.36 as its share of a brokerage commission.

It appears that Mobile Townes of Ft. Lauderdale, Inc. (hereinafter denominated Mobile) owned certain real estate in Bro-ward County which it contracted to sell to Oscar J. Mannen. After Mannen defaulted the contract was modified so as to extend the time for Mannen to perform. However, the modification also allowed Mobile to sell the property to a third party at any time before Mannen exercised his option to purchase.

In an effort to sell his option Mannen listed his contract with Joseph C. Mackey & Company (Mackey) and agreed to pay as a commission that part of the sales price which exceeded $8000 per acre if Mackey consummated a sale. Mackey’s commercial sales manager, Robert Monfort, contacted others, including Larry Leidheiser, a salesman with appellee, Sonnenblick-Goldman Realty Corp. Monfort informed Leidheiser of the location and size of the property, the price and terms of payment, the name of the “seller”, and the fact that the seller held a contract to purchase which was the property interest being sold. Leidheiser was informed the commission was $500 per acre, to be divided equally between Mackey and appellee. Monfort did not inform Leid-heiser the commission would be paid only if sales price exceeded $8000 per acre or that the commission would be earned only if the sale were consummated.

Armed with this information Leidheiser contacted Lottie Lindsay, a saleswoman with appellant, L. C. Judd & Co., Inc., and enlisted her assistance in finding a buyer. Leidheiser advised Lindsay that appellee had a listing on the 556 acres of property. However, he did not tell Lindsay that ap-pellee’s listing was only to sell a contract to buy said property, or that the sale had to go through Mackey or that the usual commission agreement did not apply. In fact, Lindsay was under the impression that ap-pellee had an exclusive right to sell the property. Thus, Lindsay and appellant did not know prior to the sale by Mobile to Nage, Inc., that Mackey had a listing on the property or had any connection with the property; neither did they know prior to that sale that Mannen had entered into a contract to purchase the property from Mobile, nor that Mannen had any interest in or connection with the property.

Shortly after her meeting with Leidheiser and being of the impression that appellee held an exclusive right to sell the property Lindsay registered with appellee that she had a prospect for the property. She also sent a copy of that letter to Mobile whose name and address she had obtained from the County tax rolls. In due course, Mobile responded to the letter of registration and advised Lindsay that its property was being offered for sale but for a different price and terms than she had quoted. Upon receipt of the Mobile letter Lindsay called Leidheiser but their testimony differs somewhat on the content of their conversation. Leidheiser testified that he told Lindsay he could not account for the discrepancy in the information which he had furnished her and that furnished by Mobile. He told her she should work through him and not with Mobile. When Leidheiser either could not or would not explain the discrepancy between his terms and those quoted Lindsay by Mobile, the owner, and told her they could not work with the Mobile terms, Lindsay advised Leidheiser she was going to try to sell the property for the owner on his terms. Lindsay testified that Leidheiser said: “You go your way and I’ll go mine. We will call it quits.” Thereafter, Judd received a listing agreement from Mobile. Pursuant to that listing agreement Judd eventually sold the property to Nage, Inc. through Ward, another broker. The commission on the sale amounted to $369,000, which Ward and appellant had agreed to divide equally. This suit arose after appellant refused to split its share of the commission with appellee. The jury returned a verdict of $65,000 for appellee and the trial court ordered a remittitur of $29,565.64 which appellee accepted. Thus, judgment was entered for $35,434.36. We find this judgment must be reversed.

Appellee’s Second Amended Complaint alleges that Leidheiser approached appellant through Lindsay and advised her of the availability of the property for sale upon the express understanding that if appellant was thereafter involved in the sale of the property one-half of the commission would be payable to appellee who, in turn, would share the commission with Mackey. However, the proof showed that Leidheiser left Lindsay with the impression that appellee had a listing on the property from the owner for $8500 per acre, upon certain terms, and that if Lindsay could sell the property they would split the commission. Lindsay immediately determined from the tax rolls that the property was in the name of Mobile. Hence, in registering a prospect she notified Mobile as well as appellee and soon learned that Mobile owned the property and wanted to sell it, but not on the terms which Lindsay had mentioned in her letter (which terms she had gotten from Leidheiser). Apparently, Lindsay also learned that appellees so-called listing was for the sale of a contract to purchase and was, in fact, not a listing from the property owner but merely an open invitation from another broker (Mackey) to help them sell Mannen’s contract.

As we view this record no contract obligation arose between appellant and appel-lee as a result of the communication between Leidheiser and Lindsay except that, if appellant had procured a sale of Man-nen’s contract, appellee would have participated in the commission. Contrary to the allegation of appellee’s Second Amended Complaint there was no agreement to share a commission if appellant sold the property for the owner, Mobile, because Leidheiser did not have a listing from the owner although he led Lindsay to believe such was the case; of course appellee’s “listing” to sell Mannen’s contract was never mentioned to Lindsay. Had Leidheiser told Lindsay the true facts about appellee’s “listing” Lindsay may have agreed to restrict her activity to selling Mannen’s contract or she may have refused to become involved at all with appellee. In any event, appellee had no relationship with Mobile, nor did Mack-ey. Appellant’s relationship with Mobile arose in good faith when Lindsay found out Leidheiser had given her figures and terms to sell a piece of property which the owner disavowed. At that point when Leidheiser refused to divulge his source or any other information Lindsay terminated any relationship with Leidheiser and made no further effort to sell the Mannen contract. The record is devoid of any evidence of fraud, double dealing or breach of any fiduciary relationship or contract between appellant and appellee. Thus, there is no basis in law for appellee to claim a right to participate in a commission which it did not earn either as the selling broker or as one who indirectly procured the sale.

Accordingly, we find no support in the record for the jury’s findings and the ensuing judgment. Therefore, the judgment appealed from is reversed and the cause is remanded with directions to enter judgment for the appellant.

DAUKSCH and MOORE, JJ., concur.

      . The ultimate purchaser giving rise to the commission which is the subject of this litigation.


author: LETTS, Judge.

text:
    GENERAL MOTORS ACCEPTANCE CORPORATION, a New York Corporation authorized to do business in the State of Florida, Appellant, v. TOM NORTON MOTOR CO. et al., Appellee.
    No. 77-776.
    District Court of Appeal of Florida, Fourth District.
    Jan. 10, 1979.

      Joel T. Daves, III, of Burdick & Daves and James Nemec, West Palm Beach, for appellant.
    Gary L. Vonhof of Johnson, Ackerman & Bakst, P. A., West Palm Beach, for appel-lee.
   LETTS, Judge.

In this case the trial court held that a tax warrant issued for unpaid Florida sales taxes took precedence over a previous chattel mortgage and security interest perfected and recorded, before the sales taxes ever became due, under the Uniform Commercial Code. We reverse.

Without belaboring the facts, in 1971 General Motors Acceptance Corporation properly filed and recorded a U.C.C. Financing Statement and later a chattel mortgage on the personal property of the Tom Norton Motor Co. Thereafter, in 1974, sales taxes remained unpaid and a warrant thereon was issued, followed by a Sheriff’s Sale and a decision by the lower court that the State Department of Revenue’s lien was superior to General Motors Acceptance Corporation’s notwithstanding the fact that the latter’s lien was established long before. This conclusion was based on the following:

This superiority is established by the Statutes of the State of Florida beginning with § 197.056(1) which states: All taxes imposed pursuant to the constitution and laws of this state shall be a first lien, superior to all other liens, on any property against which the taxes have been assessed. .

This was error because, although we concede that Chapter 197 does not specifically say so, we hold that it is obviously intended to apply to ad valorem taxes on real and personal property and not to sales taxes which latter are covered by Section 212.15. This latter section states in pertinent part:

(3) All taxes collected under this chapter shall be remitted to the department. The department is empowered, and it shall be its duty, when any tax becomes delinquent or is otherwise in jeopardy under this chapter, to issue a warrant for the full amount of the tax due or estimated to be due, with the interest, penalties and cost of collection, directed to all and singular the sheriffs of the state, and mail the warrant to the clerk of the circuit court of the county where any property of the taxpayer is located. UPON RECEIPT OF THE WARRANT, THE CLERK OF THE CIRCUIT COURT SHALL RECORD IT, AND THEREUPON THE AMOUNT OF THE WARRANT SHALL BECOME A LIEN ON ANY REAL OR PERSONAL PROPERTY OF THE TAXPAYER IN THE SAME MANNER AS A RECORDED JUDGMENT, (emphasis supplied).

It is clear from the words emphasized above that no lien attaches for sales taxes until the warrant is recorded. This very court has so stated. See Jacobs v. Kirk, 223 So.2d 795 (Fla. 4th DCA 1969). Accordingly, General Motors Acceptance Corporation has a superior lien.

The appellee relies on Coin Machine Acceptance Corporation v. Morgenstern, 232 So.2d 423 (Fla. 3d DCA 1970), however, that case involved ád valorem taxes and is therefore inapplicable in this instance.

REVERSED AND REMANDED WITH INSTRUCTIONS TO VACATE FINAL JUDGMENT AND PROCEED IN ACCORDANCE HEREWITH.

DOWNEY, C. J., and MOORE, J., concur.


author: BERANEK, Judge.

text:
    In the Interest of K. M., a child, Petitioner, v. Honorable Joseph BAKER, Circuit Court Judge, Ninth Judicial Circuit, Respondent.
    No. 78-1996.
    District Court of Appeal of Florida, Fourth District.
    Jan. 10, 1979.
    John P. Thurman, Asst. Public Defender, Orlando, for petitioner.
    Michael K. Saunders, Asst. State’s Atty., and Raymond T. Dvorak, Intern, Orlando, for respondent.
   BERANEK, Judge.

Petitioner, a juvenile, was charged with theft by violating § 812.014 Fla.Stat. Petitioner has filed a suggestion for writ of prohibition whereby she contests the trial court’s denial of her motion for discharge made pursuant to Rule 8.180 (Speedy Trial) of the Rules of Juvenile Procedure. This Rule provides as follows:

“(a) Every case in which a petition has been filed alleging a child to be delinquent, ungovernable or dependent shall be brought to an adjudicatory hearing without demand within ninety (90) days of the earliest of the following dates:
“(1) The date the complaint is filed with the intake officer as provided by statute.
“(2) The date the child was taken into custody.
“(3) The date the petition was filed.
“(b) If the adjudicatory hearing is not begun within ninety (90) days or an extension thereof as hereinafter provided the petition shall be dismissed with prejudice.
“(c) The court may extend the period of time established by this order on motion of any party, after hearing, on a finding that the interest of justice will be served by such extension. The order will recite the reasons for such extension. The general congestion of the court’s docket, lack of diligent preparation, or failure to obtain available witnesses, or other avoidable or foreseeable delays shall not constitute grounds for such extension.”

The last day for a trial under the ninety-day limitation was August 17, 1978. By order of August 1, 1978, the trial court extended this time by a period of 11 days. This order by the trial court was to the effect that the juvenile was scheduled for trial during the week of August 7, 1978. The order further stated that the alleged victim of the theft and the State’s chief witness resided within the State of Florida and was currently available for service of process. The order went on to state that on the Friday of the trial week in question the victim was subpoenaed to testify in another court in the same circuit but on the Monday following this scheduled court appearance the alleged victim was planning on leaving the State of Florida on a personal vacation from which she would not return for a period of approximately two weeks. There was a further finding that the defendant had in no way contributed to any delay in bringing the cause to hearing.

On the basis of these findings, a motion for extension of speedy trial filed by the State was granted. An order of continuance was entered. A motion for discharge under the speedy trial rule was filed by the juvenile defendant and denied. We reverse.

Inspection of the order wherein the State’s motion for extension of time was granted shows, on its face, that the State’s main witness was available and indeed was scheduled to be testifying in the same circuit on the Friday of the week in which petitioner was scheduled to be tried. The State argues that the witness was unavailable and relies upon State v. Wolfe, 271 So.2d 203 (Fla. 4th DCA 1972), and State ex rel. Fort v. Driver, 270 So.2d 38 (Fla. 2d DCA 1972). The Wolfe case held the unavailability of a key witness due to injuries alleged to have been committed by the accused was an exceptional circumstance so as to warrant an extension of time. Obviously, this case has no application here. The Fort decision relied upon diligent but unsuccessful efforts on the part of the State to secure testimony of a witness who had voluntarily removed herself from the State due to fear of the accused. In the instant situation the order in question does not demonstrate unavailability and does not make any finding concerning the State’s diligence in securing the presence of the witness. In fact, the order seems to indicate on its face that the witness was available.

The trial courts of this State have discretion in determining availability and due diligence in questions of speedy trial. However, in this case we cannot overlook the clear wording of the Rule to the effect that failure to obtain available witnesses shall not constitute grounds for extension. There is absolutely nothing contained in the order under attack showing unavailability except for a personal vacation during a period of time in which defendant was not set for trial. We are not allowed to assume that other reasons existed in view of the clear dictates of Rule 8.180 requiring recitation of the reasons for an extension.

Under the circumstances, the trial court erred in failing to grant the motion for discharge and in granting the motion for an extension of time.

The orders below are vacated and the writ of prohibition is made absolute. The case is remanded with directions to discharge the defendant.

LETTS and MOORE, JJ., concur.


author: PER CURIAM. GRIMES, Chief Judge,

text:
    Daniel R. CURBELO, Individually and d/b/a Independent Forms Consultants, William W. Vickery, Individually and d/b/a Independent Computer Systems and Supplies, and Charles Behar, Individually and d/b/a Independent Business Forms and Supplies, Appellants, v. UARCO, INCORPORATED, Appellee.
    No. 78-273.
    District Court of Appeal of Florida, Second District.
    Jan. 10, 1979.
    Ollie Ben Butler, Jr., Tampa, for appellants.
    Donald A. Gifford and George K. Rahdert of Shackleford, Farrior, Stallings & Evans, Tampa, for appellee.
   PER CURIAM.

Affirmed.

HOBSON and OTT, JJ., concur.

GRIMES, C. J., concurs in part, dissents in part with opinion.

GRIMES, Chief Judge,

concurring in part, dissenting in part.

I concur that the court properly entered an order permanently enjoining the appellants, Curbelo and Behar, from selling products competitive with any product of the appellee within prescribed territories for a period of one year pursuant to Section 542.-12(2), Florida Statutes (1977). However, the appellant, Vickery, denied signing the salesman’s agreement which contained the provisions of the covenant not to compete. No one testified that Vickery signed, and there was evidence presented that the signature on the agreement was a forgery. The court seemed to have found as much because the injunction against Vickery was predicated upon a theory of ratification by virtue of his having later signed a territorial rider which refers to the original salesman’s agreement.

Vickery testified that he understood that he was subject to a salesman’s agreement, but he denied knowing the specific provisions thereof. No one said that Vickery was aware that the salesman’s agreement contained a covenant not to compete. I cannot see how signing a territorial rider which consisted of nothing more than customer lists and which did not contain any of the provisions of the salesman’s agreement or purport to incorporate them therein can be a basis to restrain Vickery’s right to work. There was insufficient evidence of a knowing ratification. Cf. Chemical Corn Exchange Bank & Trust Co. v. Frankel, 111 So.2d 99 (Fla.3rd DCA 1959).

I would reverse the order with respect to Vickery.


author: RYDER, Judge.

text:
    STATE of Florida, Appellant, v. James A. WILLIAMS, Appellee.
    No. 78-1082.
    District Court of Appeal of Florida, Second District.
    Jan. 10, 1979.

      Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellant.
    Jack 0. Johnson, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Bartow, for appellee.
   RYDER, Judge.

On the evening of January 28, 1978, Officer John C. Nelson of the Gulfport Police Department responded to a complaint of a robbery at the “Cheshire Cat”, a nightclub and liquor store located within the City of Gulfport, Florida.

A witness at the store gave Officer Nelson a license plate number and a description of a vehicle used in the crime. Nelson ascertained that the tag was registered to appellee Williams and learned his residential address was but a few blocks away in neighboring St. Petersburg, Florida. Nelson then drove the witness to the address, where they observed, parked on the street, a vehicle which matched the earlier given description and which the witness identified as being the car used in the robbery. Nelson radioed for a St. Petersburg policeman, and an Officer Dailey of the St. Petersburg Police Department soon responded.

At this point, appellee Williams spontaneously exited the residence, entered the suspect vehicle, activated its engine, and began to depart. Officer Dailey stopped the vehicle.

With the acquiescence of Dailey, Nelson gave Williams the required Miranda warnings, informed him that his vehicle had been used in a robbery and questioned him about his whereabouts that evening. Williams denied involvement in the robbery. At this juncture, another Gulfport police unit arrived with still another witness to the robbery. This witness identified Williams as the man who had driven the car after the robbery. Nelson arrested Williams, seized the vehicle and had it transported to the Gulfport police impound lot. Thereafter, Nelson inventoried it and found contraband.

Williams moved to suppress the evidence contending the seizure of the car was made while Nelson was outside his jurisdiction. The trial court granted the motion. We reverse.

Despite the fact that Nelson was, indeed, outside of his jurisdiction, not truly in “hot pursuit”, and therefore had no authority to act as a peace officer, he could nevertheless still act as a citizen as is the right of us all. Although a citizen does have the authority to seize evidence of a crime, State v. Crum, 323 So.2d 673 (Fla. 3d DCA 1975), nonetheless, a police officer cannot justify a seizure made outside his jurisdiction as the action of a private citizen if he is acting under the color of his office and thereby gains access to evidence not available to a private citizen. Collins v. State, 143 So.2d 700 (Fla. 2d DCA 1962), cert. den., 148 So.2d 280 (Fla.1962). Nelson, however, did not act under the color of his office to put himself in a position to gain access or other favored position through which to observe the robbery automobile. Appellee Williams’ vehicle was undeniably openly parked on a public street within the view of every passerby.

Thus, it would be a non sequitur to say that Nelson had less authority than other citizens to seize evidence of a felony situated in open view merely because he was dressed in the uniform of a neighboring police department in this megalopolis also known as Pinellas County.

The courts of other jurisdictions have consistently admitted evidence seized in similar situations, State v. Harp, 13 Wash.App. 239, 534 P.2d 842 (1975); People v. Lacey, 30 Cal.App.3d 170, 105 Cal.Rptr. 72 (1973); State v. Keeny, 431 S.W.2d 95 (Mo.1968); Nash v. State, 207 So.2d 104 (Miss.1968). So should we.

The trial court’s order granting Williams’ motion to suppress is therefore reversed and the case remanded for further proceedings consistent herewith.

REVERSED and REMANDED.

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


text:
    STATE of Florida, Appellant, v. Olen Eugene GRAY, Appellee.
    No. 78-1396.
    District Court of Appeal of Florida, Second District.
    Jan. 10, 1979.
    Robert L. Shevin, Atty. Gen., Tallahassee and C. Marie King, Asst. Atty. Gen., Tampa, for appellant.
    Jack 0. Johnson, Public Defender and P. Douglas Brinkmeyer, Asst. Public Defender, Bartow, for appellee.
   RYDER, Judge.

Olen Eugene Gray was charged with grand theft. He filed a motion to suppress evidence claiming unlawful stop and arrest. After hearing, the motion was granted and the State appeals.

The record before us reveals that on February 18, 1978, at about 8:00 p. m., Glades County Deputy Sheriff Tommy Herne observed a pickup truck towing an empty flat-bed trailer along a road flanked by farms. The rig was traveling at an unusually slow rate of speed. Herne also noticed that one taillight and the tag light was out. The trailer also had no clearance lights which are required. Suspecting something was amiss, Deputy Herne watched through binoculars while the rig made a U-turn, changed directions, and traveled further about a mile. Thereafter, the rig made still another U-turn, and headed back towards the Deputy. This time it stopped before reaching Herne’s position. The rig then stood motionless in the traveling lane of the road for some time. Herne testified he could not see any activity occurring in and about the rig during the period it was motionless as his vision was impaired by the glare of the headlights. Herne was aware of several recent thefts of farming equipment in the area and the unusual activity of the rig reinforced his belief that criminal activity was afoot. As Herne started his car to drive towards the truck, the rig moved in the direction of the Deputy, passing him by. Herne then observed two occupants in the truck cab and that there was a tractor on the previously empty flat-bed trailer.

At that juncture, Herne radioed for a backup unit, turned on his beacon light, pursued and stopped the combine. As soon as the rig came to a stop, the passenger leapt from the truck, ran into an adjoining farm field and disappeared. The driver of the rig, Mr. Gray, was apprehended and arrested by Herne for illegal operating equipment. Herne then gave Gray Miranda warnings. Herne inquired of Gray as to the identity of the passenger who fled. Gray indicated the man was a mere hitchhiker. Strangely and immediately thereafter, however, and without prompting, Gray volunteered information to Herne that the license plate on the trailer was stolen.

The truck, trailer and tractor were then towed to the Glades County Sheriff’s Office whereupon the authorities learned that not only the tag, but the tractor and the trailer were also stolen. In fact, they ascertained the tractor had been situated, prior to its theft, in a field next to the position of the truck where it had tarried so long in the road prior to Herne’s intervention. Later latent investigation disclosed that a fence separating that particular field and the road on which the truck and trailer were stopped had been run over. It is also important to note that the trailer had ramps on it which could be let down for loading purposes.

The point was made that no traffic charges were filed against Gray. No one doubts, however, they could have been validly made. But one muses, why “load up” a suspect with a multitude of charges when one could legally charge one with a more major crime?

The trial judge’s order does not reveal his reasoning for suppressing the use of the truck, tractor, trailer and photographs of these exhibits not previously mentioned as evidence against Gray during his trial.

It would have been improper for Herne to use the missing taillight, tag light or the lack of clearance lights as a pretext to stop the truck and investigate a bare suspicion of illegal activity. Mullins v. State, 366 So.2d 1162 (Fla.1978); Byrd v. State, 80 So.2d 694 (Fla.1955). However, the above facts indicate that Herne first merely observed the vehicle. Gray’s subsequent peculiar driving activity and the sudden appearance of a tractor where none had been a few minutes before, were enough to elevate “intuition” into a well-founded suspicion of criminal conduct which did justify a stop of the truck. State v. Bastardo, 347 So.2d 463 (Fla. 2d DCA 1977); State v. Payton, 344 So.2d 648 (Fla. 2d DCA 1977). No police officer worth his salt would have allowed Gray to have gone sine die under the circumstances. Consequently, Herne’s stop of the truck was proper as was the impounding of the rig in view of the flight of the passenger and Gray’s admission that the trailer tag was stolen.

The trial judge’s order granting Gray’s motion to suppress is, therefore, reversed and the cause remanded for further proceedings consistent with this opinion.

REVERSED and REMANDED.

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


text:
    Woodrow PAYTON, Appellant, v. STATE of Florida, Appellee.
    No. 78-1740.
    District Court of Appeal of Florida, Second District.
    Jan. 10, 1979.
    Jack 0. Johnson, Public Defender, Bar-tow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed. See State v. Jones, 327 So.2d 18 (Fla.1976).

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


author: McCORD, Chief Judge.

text:
    Hydia TROUPE, Appellant, v. John EVANS, M. D., Charles Cooksey, M. D., and the University Hospital Building, Inc., a Florida Corporation, d/b/a Memorial Hospital of Jacksonville, Appellees.
    Nos. II-415, II-417.
    District Court of Appeal of Florida, First District.
    Jan. 11, 1979.
    As Corrected on Denial of Rehearings Feb. 1, 1979.

      Sams, Gerstein & Ward, P. A., Greene & Cooper, P. A., Marc Cooper and Sharon L. Wolfe, Miami, for appellant.
    John R. Saalfield of Marks, Gray, Conroy & Gibbs, Roland E. Williams, Jr., and William M. Howell of Howell, Howell, Liles & Braddock, Jacksonville, for appellees.
   McCORD, Chief Judge.

Appellant, Hydia Troupe, appeals the trial court’s summary judgment in favor of appellee Memorial Hospital of Jacksonville and the trial court’s order of dismissal with prejudice of appellant’s complaint as to the other appellees/defendants. The two appeals have been consolidated for review by this Court. We reverse as to both.

Appellant began this suit for damages alleging negligence on the part of appellees, John Evans, M.D., Charles Cooksey, M.D., and Memorial Hospital of Jacksonville. Appellant also alleged liability of the hospital under the doctrine of res ipsa loquitur. Pri- or to trial, the trial court granted Memorial Hospital’s motion for summary judgment.

The facts show that appellant entered the hospital to undergo surgery on her hand, and while there, she had additional surgery on a perianal fistula. She testified in her deposition that she did not have any back problems prior to her fistula surgery. Before her operation, Dr. Evans, the anesthesiologist, administered a spinal anesthesia. Appellant declared that at the time she experienced excruciating pain and thereafter suffered partial paralysis (which has since disappeared) and intense pains in her legs, with the pain still existing in one leg such that she cannot walk on it and cannot work. The surgeon, Dr. Cooksey, and hospital personnel were in the operating room, along with Dr. Evans at the time.

On the day of trial, appellant’s attorney requested a continuance, stating that appellant’s only expert witness was unavailable for trial. The attorney represented to the court that the expert witness, one Dr. Green from New Jersey, had been notified of the trial date a month in advance and the day before trial, appellant’s attorney called Dr. Green to assure that he would be present at trial. However, at that time, Dr. Green told the attorney that his secretary had erroneously diaried the trial for the following week and that he could not attend the trial the next day because he had appointments scheduled which could not be cancelled. Appellant’s attorney informed the trial court that the expert witness was essential to appellant’s case and that he had done everything possible to assure the expert’s presence. The trial court denied the continuance and ordered the parties to proceed to trial. Appellant maintained that she could not proceed without her expert witness. Therefore, the trial court entered an order of dismissal pursuant to Fla.R. Civ.P. 1.420(b).

On appeal, appellant argues that the trial court erred in granting summary judgment for the hospital since there was a factual question concerning the negligence of the hospital’s employees in light of the applicability of the doctrine of res ipsa lo-quitur. In her complaint, appellant had alleged that her spinal disk was ruptured while she was in the exclusive control of the hospital’s employees. She asserts that the doctrine of res ipsa loquitur applies where (1) the plaintiff is in the defendant’s exclusive control, and (2) the injury would not have occurred in the absence of negligence, citing Goodyear Tire & Rubber Co. v. Hughes Supply, Inc., 358 So.2d 1339 (Fla.1978). Appellant submits that a reasonable person could conclude that a patient would not suffer a herniated disk while in an operating room for treatment unrelated to the injury in the absence of negligence.

In West Coast Hospital Ass’n. v. Webb, 52 So.2d 803 (Fla.1951), an unconscious patient suffered numerous burns while in the hospital. The court there held that when a patient is in the exclusive control of a hospital and receives injuries unrelated to his treatment which do not normally occur in the absence of negligence, the doctrine of res ipsa loquitur is applicable, and the issue of the hospital’s negligence should be submitted to the jury. The hospital argues that the doctrine of res ipsa loquitur does not apply here because appellant was under the control of the anesthesiologist and operating surgeon also at the time of her injury and, therefore, she was not in the exclusive control of the hospital when her injury occurred.

In Davis v. Sobik’s Sandwich Shops, Inc., 351 So.2d 17 (Fla.1977), the court found that under the circumstances of that case, at least one of the three defendants sued by plaintiff must be liable for plaintiff’s injuries. The court held there that the trial court properly directed a verdict on the issue of liability against all the defendants and properly instructed the jury to assess the plaintiff’s damages and determine which defendant or defendants were negligent. The facts sub judice present a comparable situation. If appellant can prove at trial that her injuries did occur in the operating room, then someone in the operating room was negligent. A jury must determine when the negligence occurred. If it occurred when the hospital was in control, then res ipsa loquitur applies. Thus, summary judgment for the hospital was improper in this case.

Appellant, by her second point on appeal asserts that the trial court erred in denying appellant’s motion for continuance and in dismissing appellant’s complaint when, through no fault of appellant, she was unable to begin trial because her only expert witness could not attend. We agree. Although a trial court has the authority, under Fla.R.Civ.P. 1.420(b), to dismiss a case for failure to comply with orders of the court, courts of Florida have recognized that such a sanction should be limited to willful disregard of court orders. See Goldring v. Escapa, 338 So.2d 871 (Fla. 3 DCA 1976), in which the court ruled that the trial judge abused his discretion in refusing to allow an expert witness to testify because of failure of the party submitting the witness to comply with a court order when the record did not reveal that failure to comply was deliberate. In Kuhlman v. Travelers Indem. Co., 344 So.2d 941 (Fla. 3 DCA 1977), counsel failed to appear at the scheduled time for trial, and the trial court dismissed the action. The Third District Court reversed, finding that a misunderstanding of counsel, rather than neglect on his part, caused the dismissal of the case, and the trial court abused its discretion in failing to reinstate the cause. In the instant case, appellant’s inability to comply with the court’s order to proceed with trial was apparently beyond her control and did not amount to willful or deliberate disobedience to the court’s order. Therefore, we conclude that the trial court erred in dismissing appellant’s complaint pursuant to. Fla.R.Civ.P. 1.420(b).

On the basis of the foregoing, this cause is reversed and remanded for proceedings not inconsistent herewith.

Petition for rehearing, if filed, shall be filed within 10 days from the date hereof.

BOYER and MILLS, JJ., concur.


author: SCHEB, Judge.

text:
    Willie Earl MARTIN, Appellant, v. STATE of Florida, Appellee.
    No. 78-814.
    District Court of Appeal of Florida, Second District.
    Jan. 12, 1979.

      Robert H. Carlton, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie King, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Judge.

Appellant Martin entered a negotiated plea of nolo contendere to involuntary sexual battery, and on May 2, 1977, was placed on probation for ten years. One of the conditions of his probation was that he pay $10 per month toward the cost of his supervision.

In February 1978 appellant’s probation supervisor filed an affidavit alleging appellant to be $41 in arrears. At the revocation hearing no testimony was presented by the state or appellant. Appellant’s counsel frankly acknowledged his client’s failure to make the ordered payments. Counsel represented to the court, however, that his client had lost his job, obtained a new job, and suffered a month’s lapse in pay. Counsel than asked the court to allow appellant to bring his payments to date. Upon interrogation by the court appellant admitted that he was “guilty” whereupon the trial judge revoked appellant’s probation and sentenced him to serve a life term in prison.

Appellant was required both by § 945.30, Fla.Stat. (1977) and the terms of his probation to contribute toward the cost of his supervision. Where the court finds that a probationer has the ability to make such payments but fails to do so, his probation may be revoked. Coxon v. State, 365 So.2d 1067 (Fla. 2d DCA 1979); Jones v. State, 360 So.2d 1158 (Fla. 1st DCA 1978).

Given the aforementioned representation by appellant’s counsel we are in doubt whether the effect of appellant’s admission that he was “guilty” was an admission that he wilfully failed to make the required payments toward cost of his supervision, or whether it was merely his acknowledgment that the payments were not made. Since no testimony was taken and no finding made on this aspect, we think justice requires that the trial court make a determination as to whether appellant’s failure to contribute toward his cost of supervision was wilful or whether it resulted from his financial inability to make those payments.

Accordingly, we reverse the order of revocation and remand this cause to the trial court for further proceedings consistent with this opinion.

BOARDMAN, Acting C. J., and DAN-AHY, J., concur.


text:
    STATE of Florida, Appellant, v. James L. SPONHEIM, agent for Allied Fidelity Insurance Company and Allied Fidelity Insurance Company, Appellee.
    No. 78-1025.
    District Court of Appeal of Florida, Second District.
    Jan. 12, 1979.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Eula T. Mason, Asst. Atty. Gen., Tampa, for appellant.
    E. Summers Sheffey, Dade City, for ap-pellee.
   PER CURIAM.

This is an appeal by the state from an order of the trial court remitting the forfeiture of a bail bond. After full consideration of the record and briefs we are convinced that the state’s contention has merit. We reverse.

After the defendant, for whom appellee James L. Sponheim was acting as surety, failed to appear in court as required, the court entered an order forfeiting a $2500 bail bond. Subsequently, on March 15, 1977, the court entered judgment on the forfeiture and the clerk of the court served a copy of the judgment by mail on appellee the next day. Appellee satisfied the judgment on June 3 of that year.

On April 25,1978, appellee filed an application for remission of forfeiture which alleged that law enforcement officials had been able to apprehend the defendant through information supplied to them by appellee. Subsequently, on May Í7, the court entered an order granting the remission of forfeiture.

As the state correctly points out, Section 903.27(2), Florida Statutes (1977), is applicable here and provides that once a surety has notice of the entry of judgment on a forfeiture it may within forty-five days file a petition to set aside the judgment. If it does not do so within this time period, the court is without jurisdiction to set aside judgment and remit the forfeiture. Resolute Insurance Co. v. State, 289 So.2d 456 (Fla.3d DCA 1974). Clearly more than forty-five days elapsed between the entry of the judgment in March 1977 and the filing of the motion for remission in April 1978.

Accordingly, we reverse the order of the trial court and remand the case with instructions that the court reinstate the judgment against appellee.

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


text:
    Richard Lynn CHEWNING, Appellant, v. STATE of Florida, Appellee.
    No. JJ-3.
    District Court of Appeal of Florida, First District.
    Jan. 15, 1979.
    Jon D. Caminez, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., George R. Georgieff and Raymond L. Marky, Asst. Attys. Gen., for appellee.
   McCORD, Chief Judge.

Appellant appeals his conviction of conspiracy to possess in excess of 100 pounds of cannabis. Appellant pled nolo contendere to the charge, reserving his right to appeal the trial court’s denials of his motion for discharge on speedy trial grounds and his motion to suppress wiretap evidence. We reverse.

Appellant was originally arrested on June 23,1977, and charged with various counts of conspiracy to possess and distribute more than 100 pounds of cannabis. Those charges were subsequently dropped and on November 16, 1977, appellant, along with Neil Ryder and Chuck Mitchell, was charged with possession of more than 100 pounds of marijuana and conspiracy to possess and distribute more than 100 pounds of marijuana. Appellant and appellee, the state, entered into a stipulation in which the state agreed to nol pros all charges against appellant except one, which read:

“COUNT III And Harry Morrison as State Attorney for the County of Leon State of Florida further information makes that in the County and State aforesaid RICHARD LYNN CHEWN-ING, NEIL PHILLIP RYDER AND CHARLES B. MITCHELL on the 3rd, 5th, 11th and 13th days of March 1977 by means of telephonic communications conspire one with the others to commit a felony, to-wit: possession of in excess of 100 lbs. of Cannabis contrary to Sections 893.13(l)(a) 2 and 777.04, Florida Statutes.”

The stipulation declared that only two issues were left for the court to determine: (1) whether the wiretap which led to the apprehension of appellant should be suppressed and (2) whether or not appellant engaged in a conspiracy with Mitchell and Ryder to possess more than 100 pounds of cannabis. The stipulation declared that if the conspiracy were found to be for less than 100 pounds, the state agreed that the case should be dismissed for failure of the state to grant appellant a speedy trial since he was not brought to trial within 90 days of the date on which he was taken into custody. The stipulation further declared that if the trial court determined that appellant did engage in a conspiracy for 100 pounds or more, appellant would have the right to plead nolo contendere and appeal the trial court’s ruling.

The evidence shows that appellant conspired with Ryder to consummate a deal involving approximately 50 pounds of marijuana and that on another date, appellant conspired with Mitchell to consummate a deal involving approximately 50 to 60 pounds of marijuana. The trial court determined that appellant engaged in a conspiracy for possession of 100 pounds or more of cannabis and consequently, the trial court denied appellant’s motion for discharge for failure to grant speedy trial. The trial court also denied appellant’s motion to suppress evidence, a point which appellant has also raised on this appeal. Pursuant to the stipulation, appellant pled nolo contendere to conspiracy to possess more than 100 pounds of cannabis and subsequently brought this appeal.

It is not necessary for this Court to resolve the disputed facts, as the trial court did, regarding the relationship between appellant, Ryder and Mitchell for the purpose of determining whether or not the amounts involved in the two deals may be aggregated so that appellant properly could be charged with conspiracy to possess more than 100 pounds total. According to the stipulation, the only charge remaining against appellant was Count III of the information, which charges conspiracy to merely possess more than 100 pounds of cannabis. § 893.13(l)(e), Florida Statutes, classifies simple possession of more than 100 pounds of cannabis as a third degree felony. According to § 777.04(4)(d), Florida Statutes (1977), it is a misdemeanor of the first degree to conspire to commit an offense classified as a felony of the third degree. See Aylin v. State, 362 So.2d 435 (Fla. 1 DCA 1978). As in Aylin, since the only remaining charge against the appellant sub judice is simple possession of more than 100 pounds of cannabis in that the charge under § 893.13(1)(a)2 lacks any allegations of intent to sell, manufacture, or deliver, the information charged only a misdemeanor, and the state was obliged to bring appellant to trial within 90 days but it failed to do so. Therefore, appellant’s motion for discharge should have been, and now must be, granted.

The judgment is REVERSED and appellant is discharged.

Petition for rehearing, if filed, shall be filed within 10 days from the date hereof.

BOYER and MILLS, JJ., concur.

      . After oral argument in this cause, appellant filed a notice of additional authority citing Aylin v. State, serving a copy of the notice upon appellee.


text:
    STATE of Florida, Appellant, v. William Scott SCHRADER, Appellee.
    No. KK-288.
    District Court of Appeal of Florida, First District.
    Jan. 16, 1979.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for appellant.
    Edwin H. Duff, III of Judge & Warren, Daytona Beach, for appellee.
   PER CURIAM.

Upon reviewing the record in this cause, we conclude the facts are controlled by those in Ennist v. Baden, 158 Fla. 141, 28 So.2d 160 (1946). The lower court’s order granting the petition for writ of habeas corpus is therefore

AFFIRMED.

ERVIN, Acting C. J., and MELVIN and BOOTH, JJ., concur.


author: BOYER, Acting Chief Judge. SMITH, Judge,

text:
    ABC LIQUORS, INC., a Florida Corporation, Appellant, v. CITY OF OCALA, a Florida Municipal Corporation, Appellee.
    No. II-195.
    District Court of Appeal of Florida, First District.
    Jan. 16, 1979.
    Theodore L. Tripp, Jr. and Tobias Simon, Miami, for appellant.

      Seymour H. Rowland, Jr., Ocala, for ap-pellee.
   BOYER, Acting Chief Judge.

Appellant, plaintiff in the trial court, appeals a final judgment upholding the validity of an ordinance of the City of Ocala relating to the locations in that City of establishments for dispensation of alcoholic beverages.

The appellant, ABC Liquors, Inc., (hereinafter ABC) is a duly authorized licensed vendor of alcoholic beverages, whose license permits the retail sale of alcoholic beverages both for consumption on the premises as well as package sales for consumption off the premises.

Pursuant to general law, the City of Oca-la, has the power to adopt, and has adopted, a comprehensive zoning ordinance through which it controls the location of various types of commercial enterprise within the geographical confines of the municipality. Pursuant to that comprehensive zoning scheme, the City has created “community business” or “B-2” zones which:

is intended primarily to meet the shopping and limited service needs of several neighborhoods or a substantial territory. Retail stores are intended to include convenience, fashion and durable goods.

The zoning code establishes those types of business which are permitted to operate in a B — 2 zone. Among the permitted business activities are, inter alia, the retail sale of beer, ale, wine, and liquor, both for consumption on and off the premises. ABC did not contend before the trial court, and does not contend here, that those zoning laws are either unreasonable or violative of any rights guaranteed to ABC by the laws or Constitution of this State, or the United States. However, the City has gone beyond those general zoning powers in controlling the location from which the retail sale of alcoholic beverages may be consummated. It is that additional regulatory system which gave rise to the litigation in the court below, and which is challenged by this appeal.

Since 1934, the City had, by ordinance, specifically identified certain limited areas wherein retail sales of alcoholic beverages could be conducted. When that regulatory scheme was amended in 1976, establishments engaged in retail sale of alcoholic beverages were “grandfathered in” at their existing locations, and were permitted to maintain their operations under conditions analogous to “non-conforming uses.” The enactment of City of Ocala Ordinances 933 and 1040 did away with the geographical areas within which the retail sale of intoxicating liquors was permitted and, subsequent to their enactment, no retail vendor of alcoholic beverages was permitted to operate anywhere within the City of Ocala, notwithstanding the land use zoning of the particular location in question, unless and until the retail sale of alcoholic beverages at such specific location was authorized by a special ordinance duly enacted by the City.

Pursuant to the above mentioned regulatory scheme the City has, in effect, completely prohibited new licensees from engaging in the retail sale of alcoholic beverages without first obtaining the express permission of the City Council through a duly enacted ordinance. Although those vendors already in business are “grandfathered in” in their present location, § 3 of Ordinance 933 provides:

“any such existing vendor is prohibited from enlarging [his] business or moving to another location within the area involved or from transferring said business, and no new license for the sale of alcoholic liquors, wines or beers, shall be issued for any location in the area involved if an existing licensed business is discontinued.”

Thus, if a non-“grandfathered” vendor of alcoholic beverages wishes to engage in business even though he is duly licensed by the State, he must first obtain the consent of the Mayor and the City Council through the enactment of an ordinance. No standards exist to guide either the applicant or the Mayor and the City Council in determining which locations will be approved and which will be rejected.

ABC sought to locate one of its licenses on property zoned under the City’s land use plan for operation of such an establishment. A proposed ordinance was prepared and introduced before the City Council. The location selected by ABC was approved and adopted by a 3 to 2 vote of the members of the City Commission on February 2, 1977. However, on February 16, 1977, the Mayor of the City of Ocala vetoed the ordinance and, on March 1, 1977, the remaining members of the City Commission failed to override that veto. Therefore, proposed Ordinance 969 failed to pass, and ABC was prohibited from operating its business at the location selected by it.

The parties stipulated that “but for the application of Section 4.1 and 4.2 of the Code of the City of Ocala, there would be no governmental prohibition or restriction against the sale of alcoholic beverages for consumption on or off the premises at the location contemplated by” ABC.

A complaint was filed in the Circuit Court for Marion County, Florida, asserting that the additional restrictions imposed by the City on ABC, over and above the normal zoning requirements, were void and of no effect on the following grounds:

A. That there were no standards or criteria for securing the passage of these additional ordinances, and that the necessary approval is therefore subject to the whim, caprice and unbridled discretion of the members of the City Commission and the Mayor.

B. That the action of the City in denying ABC the ability to sell alcoholic beverages, pursuant to a license duly issued by the State, and in a location specifically zoned for such sales, was beyond the municipal power of the City.

G. That the regulatory scheme, and the City’s actions thereunder, denied ABC’s Constitutional right to Due Process and Equal Protection of the Law.

A pre-trial conference was held and, by pre-trial order, the court recognized that there were no genuine issues of fact and that the controversy should be resolved as a matter of law. The parties entered a pretrial stipulation of facts and submitted written memoranda of law to the trial court. Following consideration of their written memoranda, the trial court entered its order dated November 29, 1977, in which it granted a “judgment on the pleadings and on the facts” against ABC, with prejudice, thereby upholding the validity of the challenged ordinance.

This appeal ensued.

ABC presents and argues two points in its briefs. However, our disposition of the case on the second point renders it unnecessary for us to consider the first.

The dispensation of alcoholic bevT erages is a highly regulated industry. Nevertheless the constitutional guaranty of equality before the law assures that every citizen, whether natural or corporate, be treated equally. To assure that right, regulations must be standard and criteria reasonably certain. An applicant for approval of a location must be in a position to determine the requirements and must be afforded an opportunity to comply with them. The requirements must be of uniform application. Once the requirements are met the governing body may not refuse the application. Any standards, criteria or requirements which are subject to whimsical or capricious application or unbridled discretion will not meet the test of constitutionality.

This court, in City of Jacksonville v. Goodbread, 331 So.2d 350 (Fla. 1st DCA 1976) held invalid ordinances of the City of Jacksonville which divided the City into different zones and then established differing distance requirements for the location of liquor licenses in the several zones. We there said:

“ * * * Here the Code establishes three different and unequal distance limitations within the City of Jacksonville upon the location of a liquor license within the single uniform zoning classification of Commercial Intensive. We hold that said classification is arbitrary and discriminatory and, therefore, void, [citation omitted] While it is not the function of the court to rezone property or to usurp the legislative powers of government, it is the court’s function to determine at which point zoning restrictions become arbitrary, [citation omitted]” (331 So.2d at page 352)

In Broward County v. Narco Realty, Inc., 359 So.2d 509 (Fla. 4th DCA 1978), our Sister Court of the Fourth District considered a case wherein Narco Realty had complied with all of the legal requirements for platting certain land but the County Commission refused to approve the subdivision plat, contending that notwithstanding Narco’s compliance with the platting requirements the Commission yet had discretion to approve or refuse approval of the plat. The appellate court there affirmed a peremptory writ of mandamus issued by the trial court commanding the Commission to approve the subdivision plat, saying:

“All persons similarly situated should be able to obtain plat approval upon meeting uniform standards. Otherwise, the official approval of a plat application would depend upon the whim or caprice of the public body involved. * * *” (359 So.2d at page 510)

The Supreme Court of Florida stated in Eskind v. City of Vero Beach, 159 So.2d 209 (Fla.1963):

‘The employment of the police power will not be upheld when its exercise imposes an unreasonable restriction on private business on the pretense of promoting the community interests, [citations omitted] Neither a state nor a city can arbitrarily interfere in private businesses or impose unreasonable and unnecessary restrictions upon them, under the guise of protecting the public, [citations omitted] . We have the view that the subject ordinance is nothing less than an attempted exercise of the police power to restrict competition between favored and unfavored segments of the same business activity. If expanded to other fields, such an exercise of power could be destructive to the competitive, free enterprise system, [citations omitted]” (159 So.2d at page 212)

The record before us clearly reveals that there are absolutely no standards nor guides by which the governing body of the City of Ocala may determine whether or not an ordinance will be passed creating an exception to the ordinance challenged sub judice, and thereby permitting the location of an establishment for the dispensation of alcoholic beverages. Whether or not such an ordinance will be passed, viz.; whether or not the establishment will be permitted, is not therefore controlled by any definable process but is purely at the discretion of the Mayor and the City Council. The governing body as well as the applicant is completely without standards for the determination as to who will and who will not be allowed to enter the field of alcoholic beverage sales.

In North Bay Village v. Blackwell, 88 So.2d 524 (Fla.1956), a case involving a building ordinance, the Supreme Court took the occasion, while reviewing a municipal ordinance, “to state the position of the court unequivocally on the problem at hand”.

“With reference to the problem before us, there now seems to be little doubt that a zoning ordinance must prescribe definite standards for the guidance and control of the building inspector, the zoning officials and indeed the municipal counsel, when by the ordinance it reserves to itself various administrative zoning powers. An ordinance whereby the city council delegates to itself the arbitrary and unfettered authority to decide where and how a particular structure shall be built or where located without at the same time setting up reasonable standards which would be applicable alike to all property owners similarly conditioned, cannot be permitted to stand as a valid municipal enactment.” (88 So.2d at page 526)

Nor is it necessary that the record reveal that the governing body or its members have in fact acted capriciously or arbitrarily. It is the opportunity, not the fact itself, which will render an ordinance vulnerable. In Drexel v. The City of Miami Beach, 64 So.2d 317 (Fla.1953), the Court was confronted with an ordinance which, like the ordinance here challenged, provided that certain businesses (in that case multiple level parking garages), would not be allowed “except upon ‘approval and permit by the City Council . . . after a public hearing at which due consideration shall be given to the effect upon traffic of the proposed use . . . ’ Although the ordinance ■ challenged in that case had more standards built into it than the City’s ordinance, sub judice, those standards were not sufficient to save the ordinance from constitutional challenge. While the testimony in the trial court was somewhat limited with regard to the consideration given by the council by “effect upon traffic of the proposed use," the Court stated that:

“But we do not propose to base our decision of the constitutional question on the transaction reflected in the meager minutes or, for that matter, on the narrow allegations of fact that formed a channel for the testimony introduced before the chancellor. The right of the appellants should be determined, and the infringement upon them gauged, by the language of the ordinance itself, which we have already quoted.
“We think a city council may not deprive a person of his property by declining a permit to erect upon it a certain type of garage where the only restriction on the use of the police power is that it shall not be exercised before ‘due consideration’ is given by someone, presumably the councilmen, to the effect of the building upon traffic. Both the quoted words, as well as their synonyms, could be construed to allow all manner of latitude in the grant of a permit in one case and the denial of a permit in a similar one, and would give every opportunity for the exercise of the power with partiality. Such laxness and inexactness in a delegation of the power is not sanctioned by the courts.
“We hasten to add that there is nothing in this record to indicate that any favoritism has been exhibited by the members of the City Council of Miami Beach, or insinuation, or innuendo even, that such was the case. But that is not the point. An ordinance restricting the lawful use of property should ‘not admit the exercise, or of an opportunity for the exercise, of any arbitrary discrimination by the municipal authorities between citizens . .’ who would comply with the regulations. [Emphasis in original] [citations omitted] “The present ordinance could easily become such an instrument of discrimination by a majority of the councilmen giving what each might think ‘due consideration’ to traffic problems and thereafter denying a permit in one instance while granting a permit in a less meritorious case, though acting conscientiously in both. This would be possible because no uniform rules or regulations are defined to remove the sphere of action from the influences of whim or caprice, [citations omitted]
‡ sfc sf: * *
“In the present ordinance there is found no guide whatever to aid the councilmen in deciding what permits should, and what permits should not, be granted. Reading the ordinance in a light most favorable to the city’s position, each councilman was accorded the privilege of deciding in his own mind whether he had duly considered the traffic problem and when a majority of councilmanic minds concluded that such consideration had been duly given and that the proposed building would complicate traffic conditions, the composite thought would ripen into a power that would take away property. This, in our opinion, would be doing so in violation of the guaranties of the State and the United States Constitutions.” (64 So.2d at pages 318-319)

The City of Ocala by virtue of the here challenged ordinance has chosen to permit, on a case by case basis, the City Council and Mayor to decide when and where a retail vendor of alcoholic beverages, duly licensed by the state, may open and operate his establishment. The Planning and Zoning Department of the City has considered all relevant zoning criteria and allowed alcoholic beverage vendors to operate in any “B-2” or “community business” zone. The approval of the Council and Mayor, required in addition to the proper zoning, is granted or denied on a case by case basis without any standards or criteria to guide either the applicants or the City officials. Such a regulatory scheme does not comport with constitutional standards.

We have not overlooked the opinion of the Supreme Court of Florida rendered in Permenter v. Younan. However, the holding of that case is distinguishable and therefore not dispositive sub judice. In the Permenter case, although the challenged ordinance related to the issuance and transfer of licenses, the facts of that case involved renewal. The ordinance vested discretion in the Municipal Inspector to refuse issuance or transfer when “in his judgment, the issuance or transfer * * * would be contrary to public policy or the welfare of the community”. Therefore, though vague, the ordinance did provide for some standards. Further, the facts recited in the opinion reveal that the licensees there did not meet those standards in that they were not of good moral character and had been guilty of various violations of law and misconduct. Such are not the stipulated facts sub judice.

The Permenter case is also distinguished in that there the applicable ordinance, while vesting discretion in the Municipal Inspector, provided for a right to appeal his denial to the License Committee of the City Council. That that provision was considered material by the court is revealed by the holding of the majority in which the following language was employed:

“No decision of the Municipal Inspector under the provisions of the ordinances involved here is a finality. The applicant for license has the right to establish his personal fitness to the inspector; if rejected, he has the right to appeal to the License Committee of the Council, and there to be heard. Even then, if such License Committee refuses to override the action of the Municipal Inspector, because of arbitrary discrimination, the applicant may institute mandamus action to compel issuance or renewal of license. “Mandamus not only lies to compel issuance of a liquor license or permit where such issuance is mandatory or merely ministerial, but also where the licensing authority has abused its discretion or acted arbitrarily. 48 C.J.S., Intoxicating Liquors, § 160, page 262.
“Thus, an applicant for license under the particular provisions of the ordinances here involved has the opportunity to have his day in court.” (31 So.2d at page 390).

No such procedure is provided for in the subject ordinance of the City of Ocala.

Neither may the City find solace in this Court’s opinion in Central Florida Distributing Company v. Jackson, 324 So.2d 143 (Fla. 1st DCA 1976). There the relevant issue was whether the challenged administrative rule was authorized by the applicable statute. Although the author of that opinion cited Permenter v. Younan, supra, as authority for a recital that where the business engaged in is a privilege rather than a right it is not essential that “a specific prescribed standard be expressly stated in the legislation, the author also stated and held that:

“ * * * The plain and specific language of Section 561.42 clearly provides sufficient standards for the adoption of Rule 7A-4.18.”

Thus it appears from a careful analysis of both the Central Florida Distributing Company case and the Permenter case that in neither did the Courts condone the total absence of any standards or procedures for the guidance or control of discretion.

Pursuant to Rule 9.330(a), Florida Rules of Appellate Procedure, the time for filing any motion for rehearing or for clarification of this decision, if any, by any party, shall be filed within eight days from date hereof.

The final judgment here appealed is reversed and we remand for further proceedings not inconsistent with this opinion.

BOOTH, J., concurs.

SMITH, J., dissents.

SMITH, Judge,

dissenting:

The ordinances of the council of the City of Ocala reserve to the council the power to approve or disapprove the establishment of new locations for the sale of alcoholic beverages in areas which are generally designated for such establishments by conventional zoning ordinances. I consider that the council’s power so to regulate liquor businesses, absent arbitrary and discriminatory prohibitions in fact, was established by Permenter v. Younan, 159 Fla. 226, 31 So.2d 387 (1947), and that this court properly adhered to that rule in Central Florida Distributing Co. v. Jackson, 324 So.2d 143, 145 (Fla. 1st DCA 1975):

Here, where the business engaged in is a privilege, rather than a right, it is not essential that a specific prescribed standard be expressly stated in the legislation. Permenter v. Younan, 159 Fla. 226, 31 So.2d 387 (1947).

The majority opinion would appear to be contrary to these decisions. I therefore dissent.

      . This cause was decided in the court below on a pre-trial stipulation entered into between the parties, since there are no issues of material fact. The factual basis for the controversy between ABC and the City is drawn from that pre-trial stipulation.

      . § 22-11, Ocala City Code.

      . Enacted September 21, 1976.

      . Enacted October 4, 1977.

      . Certain operations not germane to the present controversy are excepted from this regulatory scheme. Hotels, motels, private clubs, and similar operations are exempted in such fashion.

      . Ordinance Number 969.

      . It is stipulated that the location in question meets all zoning requirements for, and zoning regulations of the City.

      . Nor are we here concerned with any issue as to fitness or conduct of the licensee, as was the situation in Permenter v. Younan, 31 So.2d 387 (Fla.1947).

      . The order here appealed.

      . In its amended complaint ABC prayed “that the ordinances of the Defendant which form Section 4.1 and 4.2 of the Code of Ordinances of the City of Ocala, Florida, be declared void, null and of no effect and that the Defendant * * * be required to permit the Plaintiff to sell and dispense alcoholic beverages pursuant to its license at the locality [described in the complaint].”

      . I. WHETHER MUNICIPALITIES HAVE GREATER AUTHORITY TO CONTROL THE LOCATION OF ALCOHOLIC BEVERAGE VENDORS THAN THE GENERAL ZONING POWER UNDER WHICH MUNICIPALITIES CONTROL THE LOCATION OF ALL LAWFUL BUSINESSES.
      II. WHETHER THE CHALLENGED ZONING ORDINANCE, BY WHICH THE CITY COUNCIL MAY ALLOW OR PROHIBIT A LAWFUL BUSINESS FROM OPERATING IN THE CITY OF OCALA, WITHOUT PROVIDING ANY STANDARDS OR GUIDELINES FOR THE EXERCISE FOR THIS UNBRIDLED DISCRETION, IS VOID ON ITS FACE.

      . Constitutional equality applies with equal vigor to privileges as well as rights. Indeed, under our constitution all persons have a “right” to equal treatment by the government and its subdivisions and agencies.

      . Cited and mentioned in Footnote 8, supra.

      . F.S. 561.42.

      . Emphasis added.

      . 324 So.2d at page 145. Emphasis added.

      . In this opinion we have referred to a Final Judgment and the objéct of this appeal was obviously intended as such. However, we note that the instrument, while haying all of the requisites of a Final Judgment, is entitled simply “Order” and the notice of appeal recites that the appeal is taken “to review the order of the circuit court of Marion County bearing date November 29, 1977”.


author: SCHWARTZ, Judge.

text:
    DALCAMP, INC., Appellant, v. FIRST NATIONAL BANK OF HIALEAH, etc., et al., Appellees.
    No. 77-2561.
    District Court of Appeal of Florida, Third District.
    Jan. 16, 1979.
    Adams & Ward and Robert C. Ward, Miami, for appellant.
    Podhurst, Orseck & Parks and Joel D. Eaton, Miami, for appellees.
    Before HENDRY, BARKDULL and SCHWARTZ, JJ.
   SCHWARTZ, Judge.

After our reversal of a summary judgment rendered for the plaintiff-mortgagee against both defendants in Furlong v. First National Bank of Hialeah, 329 So.2d 406 (Fla. 3d DCA 1976), cert. denied, 341 So.2d 291 (Fla.1976), and further discovery had been developed below, the plaintiff-bank again moved for summary judgment as against the defendant Dalcamp with respect only to the counterclaim for specific performance and damages which had been asserted by Dalcamp against it. The basis of the counterclaim was the allegation that the bank had affirmatively and fraudulently misrepresented to Dalcamp that it would grant releases from its own mortgage lien on the property in question upon payments made by Dalcamp to Furlong under the agreement between those two parties and then had failed to grant those releases. The trial judge granted the summary judgment sought as to the counterclaim, and Dalcamp appealed.

We are convinced that the bank successfully met its burden to establish conclusively that there was no genuine issue of material fact as to the claim of fraud or misrepresentation as alleged in the counterclaim as drafted. The summary judgment was therefore correctly entered. The record below, however, demonstrates that Dalcamp may well be able properly to claim both specific performance and damages upon another theory, that is, the wrongful failure of the bank to issue releases from its own mortgage, notwithstanding its actual knowledge of the superiority of the Furlong-Dalcamp agreement and of its release provisions. Accordingly, the judgment below is affirmed with directions that, upon remand, Dalcamp may file such amended counterclaim as it may be advised. Gold Coast Crane Service, Inc. v. Watier, 257 So.2d 249 (Fla.1971); Hart Properties, Inc. v. Slack, 159 So.2d 236 (Fla.1963); Forte v. Tripp & Skrip, 339 So.2d 698 (Fla. 3d DCA 1976); Sorrells v. Mullins, 303 So.2d 385 (Fla. 3d DCA 1974).

Affirmed with directions.

      . The basic outline of the unbelievably complex factual and legal situation presented in this case is set forth in that opinion.

      . We of course issue no prediction as to the sufficiency of any such amended pleading. We merely think that Dalcamp should be given another try at establishing its alleged cause of action for specific performance and damages.


author: BARKDULL, Judge.

text:
    Martin COHEN, as Executor of the Estate of Louis Cohen, Deceased, Appellant, v. Jean LANSBURGH and Leonard Lansburgh, as Co-Personal Representatives of the Estate of Morris Lansburgh, Deceased, Jean Lansburgh, Bernard Fuller, Erwin J. Fried, Ivar Blacker, Alan J. Cohen, Jerry Wittels, Joel Cohen, Roslyn Zerlin, Hillard Halpryn, Sam Cohen, and Bennett M. Lifter, as Trustee, Appellees.
    No. 78-165.
    District Court of Appeal of Florida, Third District.
    Jan. 16, 1979.

      Forrest, Ruffner, Traum & Hagen and Max Hagen, Miami, for appellant.
    Fuller, Feingold, Weil & Scheer and B. C. Fuller, Miami Beach, for appellees.
    Before PEARSON, BARKDULL and KEHOE, JJ. •
   BARKDULL, Judge.

In 1966, various people entered into a joint venture agreement to operate the Eden Roc Hotel, located in Miami Beach, Florida [Louis Cohen was one of the joint venturers]. They were the lessees of a long term ground lease on the hotel. The agreement provided, by its terms, that it would be effective until December 31, 1976. It also provided that the joint venturers would be responsible for their pro rata share of any expenses of operation. It further provided that if any partner or joint venturer did not come up with his share, a charging lien could be imposed on said share which would include costs and attorney fees.

In 1973, the joint venturers sold their interest in the lease and took back a purchase money note secured by a mortgage. Subsequently, their purchaser and the mortgagor on the purchase money mortgage filed a voluntary petition in bankruptcy. On the same day, the joint venturers sought to foreclose the purchase money mortgage in the State courts. A Trustee in Bankruptcy took possession of the property and subsequently the joint venturers, hereinafter referred to as the Lansburgh Group, entered into an agreement with the Trustee which provided, among other things, that they would advance $400,000.00 to pay off obligations against the hotel which would be represented by a trustee’s certificate and be payable only out of the operation of the hotel; that the Lansburgh Group would advance other monies as needed in the operation of the hotel, arid that the agreement would continue until such time as the bankruptcy court terminated same. Pursuant to the agreement and the trustee’s order, the Lansburgh Group retook possession of the hotel and commenced to operate it.

There was a dispute as to the validity of the mortgage lien held by the Lansburgh Group at all times material hereto. After the Lansburgh Group took possession of the hotel, they operated it in accordance with the terms of their original joint venture operating agreement dated in 1966. The parties were unable to sell the hotel because of the pending bankruptcy matter. The time cane and went when the original operating agreement expired, and the parties continued to operate in accordance with the terms expressed therein and no one, at any time, has applied to the Federal Bankruptcy Referee to terminate the management arrangement in accordance with the Trustee’s order.

Louis Cohen, while alive, contributed his pro rata share of the expenses necessary to continue the operation of the hotel. After his death, the operating partners called upon his estate to pay his proportionate share of certain expenses, which was declined. Suit was instituted to collect the principal amount owed as his share of the expenses, sought a charging lien against his interest to secure payment of said amount, and attorney’s fees. The matter came on for hearing and the court recognized that the original operating agreement had terminated by its terms and/or the death of Louis Cohen. However, the court recognized that a partnership or joint venture may be continued after its termination date for the purpose of winding up its affairs and disposing of its assets. In this connection, see: Price v. Hicks, 14 Fla. 565 (1974); Jacksonville, Mayport, Pablo Railway & Navigation Company, a corporation v. Warriner, 35 Fla. 197, 16 So. 898 (1895); Ex Parte Amos, 94 Fla. 1023, 114 So. 760: Section 620.705, Florida Statutes (1975); 24 FlaJur., Partnership, §§ 116, 121, 146 and 147. He found that the Cohen Estate owed $38,400.00 as its proportionate share of the operating expenses, granted a charging lien against the Cohen interest, and awarded attorney’s fees.

This appeal ensued, contending, first, that the parties were not making bona fide attempts to wind up the affairs of the partnership or joint venture and, therefore, the Cohen Estate should not have been liable for a proportionate share of the continuing operating expenses. Secondly, there was no authority to enter an award of attorney’s fees, the agreement between the parties having expired by its terms.

We affirm. There is ample evidence to support the finding of the trial judge that the Lansburgh Group was making bona fide attempts to dispose of the hotel, but they were frustrated because of the current bankruptcy proceeding and the still-questioned validity of their mortgage. Therefore, we affirm this finding of the trial judge. Roberts v. Southern Farm Bureau Casualty Insurance Company, 215 So.2d 59 (Fla.1st DCA 1968); Shaw v. Shaw, 334 So.2d 13 (Fla.1976); Jones v. Jones, 338 So.2d 60 (Fla.3d DCA 1976).

The attorney fees presents a more difficult problem. However, an examination of the record indicates that the Lans-burgh Group, which included Louis Cohen, was authorized to take over the Eden Roc Hotel pursuant to a trustee’s order, which is still in effect. By their actions, the parties operated during Louis Cohen’s lifetime in accordance with the terms of the joint venture agreement, which was impliedly recognized by the Federal Bankruptcy Referee when he permitted the Lansburgh Group to return to possession of the hotel. As aforesaid, he made this order effective until terminated by court order, which to date has not been done, and we hold the trial judge was correct in considering that the parties either actively or constructively had continued the operation of the hotel in accordance with the terms of their original 1966 agreement. We further note, from general authorities, that upon a winding up of a partnership or joint venture the obligations, responsibilities and rights as between the parties (as reflected in their original agreement) will continue until a final disposition of all the assets. A participant is entitled to receive any monies earned or received in accordance with his pro rata interest, as reflected in the original agreement, and likewise being responsible to the joint venture or partnership in accordance with the original terms and conditions. Kartage v. Interocean, S. A., 167 So.2d 76 (Fla.3d DCA 1964); Biers v. Sammons, 242 So.2d 158 (Fla.3d DCA 1970); Section 620.67, Florida Statutes (1975); 24 Fla.Jur., Partnership, § 152.

The appellant has also contended that the amount of attorney’s fees is unreasonable, which we find to be completely without merit.

Therefore, the final judgment under review be and the same is hereby affirmed.

Affirmed.

      . As a co-tenant of the lessees’ interest in the balance of the long term lease, the Cohen interest would have had an obligation to pay a pro rata share of the costs to protect the property without any agreement. Meckler v. Weiss, 80 So.2d 608 (Fla.1955); Berkan v. Brown, 242 So.2d 207 (Fla.3d DCA 1970); Section 620.-645(2), Florida Statutes (1975).