author: CROSS, Judge. MAGER, Chief Judge,

text:
    John L. HERMAN, Appellant, v. STATE of Florida, Appellee. James C. CAUSEY, Appellant, v. STATE of Florida, Appellee.
    Nos. 75-863 and 75-864.
    District Court of Appeal of Florida, Fourth District.
    Jan. 7, 1977.

      Richard L. Jorandby, Public Defender, and Paul M. Herman, Asst. Public Defender, West Palm Beach, for appellants.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard P. Zaretsky, Asst. Atty. Gen., West Palm Beach, for appellee.
   CROSS, Judge.

Appellants-defendants, John L. Herman and James C. Causey, appeal a judgment of guilty and sentence for attempted breaking and entering of an automobile, possession of burglary tools and petit larceny. We reverse.

Appellants-defendants were charged by information with breaking and entering of an automobile, possession of burglary tools and petit larceny, to which they filed written pleas of not guilty. Appellants were tried together by jury. The jury found appellants guilty of all three charges. Appellants filed a motion for new trial, which was denied. The trial court entered judgments accordingly and sentenced appellants to terms of five years imprisonment for each count to run concurrently. It is from these judgments and sentences that appellants appeal.

During the trial of the cause, appellant James C. Causey took the stand in his own behalf. Upon cross examination appellant was asked had he ever been convicted of a crime. Appellant then asked the prosecutor what he was calling a crime. The prosecutor responded by asking appellant had he ever been convicted of stealing an automobile or breaking into an automobile, which appellant denied. The prosecutor further questioned appellant about committing crimes on specific dates in specific places. During this inquiry, the prosecutor elicited testimony that appellant had been convicted of using a car without permission in 1957,' transporting a stolen automobile in 1962, and a robbery in 1968. Objection to the prosecutor’s line of questioning raised by defense counsel was overruled by the trial court.

The sole point on appeal is whether the trial court erred in allowing the prosecutor to question Appellant-Causey on cross examination regarding the nature and occasion of specific prior alleged crimes.

The law is well settled that when a defendant testifies in his own behalf he may be asked if he has ever been convicted of a crime. Section 90.08, Florida Statutes 1975. If he admits such conviction, he may be asked how many times he has been convicted. If he denies the conviction, the opposing party may produce the record of conviction. In either event, the inquiry must stop at that point. The matter may not be pursued to the point of naming the crime. Whitehead v. State, 279 So.2d 99 (Fla.2d DCA 1973); Morton v. State, 205 So.2d 662 (Fla.2d DCA 1968); Mead v. State, 86 So.2d 773 (Fla.1956).

In the instant case, after appellant responded to the prosecutor’s question of whether he had been convicted of a crime by not appearing to know the meaning of a crime, the trial judge allowed the prosecutor to follow a procedure outside the rules and ask appellant if he had been convicted of particular crimes. Appellant denied the conviction and the prosecutor asked further improper questions as to a specific time and place. Even after appellant’s attempt to clarify his denial to earlier questions by confessing to using a car without permission, the prosecutor was not justified in pursuing the interrogation without supplying the court with documentation of appellant’s past convictions. Such an improper inquiry into specific crimes committed by a witness is so harmful as to be reversible error.

Accordingly, the judgments and sentences appealed herein are reversed, and the cause is remanded for a new trial.

Reversed and remanded.

DOWNEY, J., concurs.

MAGER, C. J., concurs specially.

MAGER, Chief Judge,

concurring specially:

The conclusion reached here is consistent with this court’s recent opinion in Irvin v. State, 324 So.2d 684 (Fla. 4th DCA 1976).


source: Caselaw Access Project

author: PER CURIAM. MAGER, Chief Judge

license: Public Domain

text:
    Reginald C. KENDRY et ux., et al., Appellants, v. DIVISION OF ADMINISTRATION, STATE of Florida DEPARTMENT OF TRANSPORTATION, Appellees.
    No. 75-1982.
    District Court of Appeal of Florida, Fourth District.
    Jan. 7, 1977.
    Rehearing Denied Feb. 22, 1977.
    Gary S. Brooks, of Williams, Salomon, Kanner & Damian, Miami, for appellants.
    Geoffrey B. Dobson, Gen. Counsel, and Jay P. Hendrickson, Tallahassee, for appel-lee.
   PER CURIAM.

AFFIRMED.

CROSS and ALDERMAN, JJ., concur.

MAGER, C. J., dissents, with opinion.

MAGER, Chief Judge

(dissenting):

The record reflects, in my opinion, appellants-landowners’ entitlement to seek severance damages for the remainder of the real property taken by the State as a result of the State’s violation of certain easement restrictions. In this regard the order of the trial court does not comport with this court’s holding in Kendry v. State Road Department, 213 So.2d 23 (Fla. 4th DCA 1968), and the rationale expressed in City of Tampa v. Texas Company, 107 So.2d 216 (Fla. 2d DCA 1958). See also Division of Admin., Dept. of Tr. v. Hillsboro Ass’n, Inc., 286 So.2d 578 (Fla. 4th DCA 1973), and Section 73.071(3), Florida Statutes. Accordingly, I would reverse and remand the case for a trial on the issue of damages.


author: ALDERMAN, Judge.

text:
    BROWARD NATIONAL BANK OF FORT LAUDERDALE, Appellant, v. Sam BETHEL, Appellee.
    No. 76-50.
    District Court of Appeal of Florida, Fourth District.
    Jan. 7, 1977.
    Rehearing Denied Feb. 22, 1977.

      Harry S. Raleigh, Jr., and Paul Lucas of McCune, Hiaasen, Crum, Ferris & Gardner, Fort Lauderdale, for appellant.
    Karen Kugell and Philip S. Anderson of Anderson & Anderson, Fort Lauderdale, for appellee.
   ALDERMAN, Judge.

The determinative issue in this appeal is whether Sam Bethel’s claim for damages against Broward National Bank of Fort Lauderdale is barred by the Statute of Frauds. His claim is based upon an alleged negligent misrepresentation by the Bank. Trial was held and the jury returned a verdict in favor of Mr. Bethel, assessing his damages at $2,200.00.

Mr. Bethel in his complaint alleged that pursuant to an oral agreement with the Bank, he took possession of and improved certain land for the purpose of opening a restaurant with the assurance that the land would be available to him for three years. This assurance, he contends, was a material misrepresentation because after he had expended various sums of money to improve the land, but before he was actually able to open his restaurant, he was advised by the Bank that, notwithstanding any prior agreements, he must now vacate the premises. The alleged negligence on the part of the Bank was that it failed to properly conduct its business in a manner which comports with the standards of reputable banking businesses.

We need not reach the question of whether the complaint stated a cause of action because in this case any cause of action is clearly barred by the Statute of Frauds. Mr. Bethel contends that he is suing to recover damages for negligent misrepresentation, but in reality he is seeking indirectly to recover damages predicated upon the breach of an oral lease of land for a period in excess of one year. This he may not do. Canell v. Arcola Housing Corp., 65 So.2d 849 (Fla.1953); Ostman v. Lawn, 305 So.2d 871 (Fla.3d DCA 1974); but see Connelly v. Merritt, 273 So.2d 7 (Fla. 1st DCA 1973).

REVERSED and REMANDED with instructions that the final judgment in favor of Sam Bethel be vacated and that final judgment be entered in favor of Broward National Bank of Fort Lauderdale.

MAGER, C. J., and STETTIN, HERBERT, Associate Judge, concur.


author: DOWNEY, Judge.

text:
    TRAVELERS INSURANCE COMPANY, Appellant, v. Daisey Q. BRYSON and Salvatore DeLuca, Appellees. Daisey Q. BRYSON, Petitioner, v. TRAVELERS INSURANCE COMPANY, Respondent.
    Nos. 76-788 and 76-1362.
    District Court of Appeal of Florida, Fourth District.
    Jan. 7, 1977.

      William R. Scherer, Druck, Grimmett, Norman, Weaver & Scherer, Fort Lauder-dale, for appellant-Travelers Ins. Co., and as respondent.
    James P. O’Flarity, Law Offices of James P. O’Flarity, Fort Lauderdale, for appellee-Daisey Q. Bryson, and as petitioner.
   DOWNEY, Judge.

We have for review an interlocutory appeal (Case No. 76-788) from an order denying a motion to vacate a default consolidated with a petition for writ of certiorari (Case No. 76-1362) to review an order denying a motion to strike certain requests for discovery.

On January 7, 1976, Bryson filed suit against Travelers Insurance Company and Salvatore DeLuca for personal injuries arising out of an automobile accident. The parties stipulated to a ten day extension for the filing of a responsive pleading so that Travelers could further investigate the claim. On February 20, 1976, counsel for Travelers filed a motion for a 45 day extension of time to respond to Bryson’s complaint. On February 25, 1976, Bryson filed a motion for default and noticed same for hearing on March 5, 1976. On March 5, 1976, Travelers filed an answer but did not attend the hearing on Bryson’s motion for default because the date had not been properly noted on the calendar of Travelers’ counsel. The court entered a default on March 5th. On March 8th Travelers filed a motion to vacate the default which was denied on March 29th. The interlocutory appeal involves the order denying the motion to vacate.

Had counsel for Travelers properly calendared the hearing date on Bryson’s motion to enter a default, he would have been in a position to advise the court at the hearing that Travelers’ answer had been filed or was being filed, since the answer was filed on the same day the hearing was held. So we are really concerned with whether counsel’s failure to appear at the hearing was a mistake, excusable neglect or inadvertence.

Under the circumstances of this case, we feel the trial judge abused his discretion in not vacating the default. The answer was filed on the date the default hearing was held. Counsel’s absence from the hearing was a mistake, or inadvertent or excusable neglect. English v. Hecht, 189 So.2d 366 (Fla. 3d DCA 1966).

The purpose of Rule 1.500, Fla.R.Civ.P., is to speed the cause along and prevent dilatory tactics. North Shore Hospital, Inc. v. Barber, 143 So.2d 849 (Fla.1962). As we said in Clark v. Roberto’s, Inc., 320 So.2d 870 (Fla. 4th DCA 1975):

“It has long been the policy of the courts in this state to liberally set aside defaults for failure of a defendant to plead so as to allow a determination of the controversy on the merits when the defendant demonstrates that his neglect was excusable and that he has a meritorious defense.”

The period of time which elapsed from filing of suit to default was not an extended period, and the end to be accomplished by the rule would therefore not be frustrated or defeated in this case by vacating the default. Accordingly, the order denying the motion to vacate is reversed.

The Petition for Writ of Certiorari seeks to review an order in which the trial court refused to prevent Travelers from effecting certain discovery after the default had been entered. Since the effect of our decision in the interlocutory appeal will be to reinstate the issue of liability, the question involved on the Petition for Writ of Certiorari is moot.

The order appealed from in Case No. 76-788 is reversed and the Petition for Writ of Certiorari in Case No. 76-1362 is dismissed as moot.

CROSS and ALDERMAN, JJ., concur.


text:
    GAME & FRESH WATER FISH COMMISSION of the State of Florida, Appellant, v. Patrick L. CARLILE et al., Appellees.
    No. 76-1679.
    District Court of Appeal of Florida, Fourth District.
    Jan. 7, 1977.

      Michael B. Davis, Walton, Lantaff, Schroeder & Carson, West Palm Beach, for appellant.
    F. Kendall Slinkman, Farish & Farish, West Palm Beach, for appellee-Patrick L. Carlile.
   DOWNEY, Judge.

This interlocutory appeal involves the propriety of an order denying a motion for change of venue filed by the Game & Fresh Water Fish Commission, a state agency.

Patrick L. Carlile filed a tort action in Palm Beach County against the Commission and others for damages after a hunting accident that occurred in a wildlife management area in Palm Beach County controlled by the Commission. The Commission filed a motion to transfer the cause to Leon County, where its headquarters are located. Relying upon State, Department of Transportation v. Chothen, 328 So.2d 574 (Fla. 3d DCA 1976), cert, denied September 21,1976, the trial court denied the motion. For the reasons which follow we agree with the dissenting opinion of Judge Pearson in the Chothen case and thus reverse the order under review.

For many years the general rules concerning the venue of actions against state agencies have been those set forth at 34 Fla.Jur., § 27:

“It is the policy of the state to require that its officials and boards be sued in the county of their official residence, unless this privilege is waived, as it may be. In general, then, actions against state boards and officers must be instituted in Leon County, where their official residence is established, at least where the officer or agency does not perform acts throughout the state. Under exceptional circumstances, a complainant may be entitled to sue a public official or board in a county other than that of his or its official residence. One recognized exception to the rule exists where an unlawful invasion of a lawful right secured to the plaintiff by the constitution or laws of the jurisdiction is directly threatened in the county where the suit is instituted. Parties seeking relief from alleged threats to their personal and property rights by the operation of unconstitutional acts of an agency of the state may bring suit in the county where the alleged wrongs are threatened or are alleged to have been committed. But in the absence of waiver on the part of a state agency of its right, and in the absence of action bringing it within the exceptions to the rule, an action brought against a state agency in a county other than that of its official residence is subject to dismissal. (Footnotes omitted.)

A sound policy reason supporting the general rules is pointed out in Smith v. Williams, 160 Fla. 580, 35 So.2d 844, 847 (1948):

“. . . in order to promote orderly, efficient, and economical government, controversies involving the proper interpretation to be given rules and regulations promulgated by state agencies ought to be concentrated at the seat of state government where such state agencies are located, where such rules and regulations are promulgated, and where such suits can be defended at a minimum expenditure of effort and public funds. Such concentration of litigation manifestly makes for uniformity of interpretation of rules and regulations promulgated by such state instrumentalities and prevents conflicting judicial rulings in different jurisdictions resulting in decrees binding only in the counties where rendered and serving only to protect parties to the suits from the operation only of unlawful acts shown to have been actually committed within such particular jurisdictions.”

Another reason supporting the general rules is that it is important that officers of governmental agencies remain at their posts and discharge their public duties rather than go “ ‘hither and thither over the different parts of the state to attend to litigation’.” Amelia Island Mosquito Control Dist. v. Tyson, 150 So.2d 246 (Fla. 1st DCA 1963), (a tort case against a state agency.)

In 1973 the legislature passed Chapter 73-313, Laws of Florida (codified as Section 768.28, Florida Statutes) in order to authorize limited tort claims against the state. Among other things, the act provided that:

“The state and its agencies and subdivisions shall be liable for tort claims in the same manner and to the same extent as a private individual under like circumstances . . . .”

The Chothen majority held that the foregoing provision allows the general venue statutes set forth in Chapter 47, Florida Statutes (1975), to apply to tort cases filed against state agencies. However, we do not consider that the above quoted portion of the statute which modified the doctrine of sovereign immunity is sufficiently broad to eliminate the long standing venue rules pertaining to state agencies, in view of the reasons underlying those rules and in the absence of any specific statutory change.

In addition we think the attempt of the Chothen majority to distinguish State v. Negrin, 306 So.2d 606 (Fla. 1st DCA 1975), is unavailing. The Negrin opinion clearly followed the general venue rules quoted above and clearly held that the proper venue of the case, a tort action, was not Ala-chua County (where it was filed), nor Palm Beach County (where the cause of action accrued and to which the trial court had transferred it), but, rather, was Leon County (where the defendant agency had its headquarters).

Finally, the Chothen case also found comfort in Department of Revenue v. First Federal Savings & Loan Ass’n. of Ft. Myers, citing Judge McNulty’s colorful phraseology regarding the “initial sword-wielder.” Suffice it to say we feel the point made in that case by referring to the “initial sword-wielder” was as inapplicable in Chothen as it is here. That phrase was used to designate agency action which was threatened or imminent in the county where suit was filed — where the agency is the prime mover. In the case at bar the agency (Game & Fresh Water Fish Commission) is charged with negligent non-fea-sance. Thus, Carlile is the prime mover in the premises against the agency and venue lies in the county of the agency’s headquarters.

Accordingly, in our opinion the proper venue of this case is Leon County. We therefore reverse the order appealed from and remand the cause with directions to transfer the case to Leon County.

CROSS and ALDERMAN, JJ., concur.


author: HOBSON, Judge.

text:
    Charles F. PORTER, Appellant v. STATE of Florida, Appellee.
    No. 75-1493.
    District Court of Appeal of Florida, Second District.
    Jan. 7, 1977.
    Rehearing Denied Feb. 24, 1977.

      David A. Demers of the Law Offices of Robert W. Pope, St. Petersburg, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   HOBSON, Judge.

Appellant was convicted of entering without breaking a dwelling house with intent to commit a felony. His appeal is premised on the assertion that the trial judge erred in instructing the jury on the offense charged and the lesser included offenses as they relate to an intent to commit a felony. We agree, but for the reasons stated herein, the sentence is affirmed.

At the trial a victim of the theft, Mrs. Lynch, testified as to the value of a certain set of china which had been stolen. Her testimony was that she had received the china some five years previously and subsequently, while shopping in a department store, had priced the items and found them being sold for approximately $450. She further stated that she had no expertise in the value of used china and did not know what the value would be presently. Following this colloquy the state was permitted to ask Mrs. Lynch what she would be willing to pay for a set of china exactly like that that was stolen. The court, after timely objection by defense counsel, stated “She’s already testified it cost four hundred fifty bucks, it was worth that, as a gift.”

Here the appellant was charged with breaking and entering a dwelling with intent to commit a felony. He was convicted of the lesser included offense of entering without breaking a dwelling with intent to commit a felony, to wit, grand larceny. The question for our consideration is whether it was prejudicial error to instruct the jury as to the lesser included offense of entering without breaking a dwelling with intent to commit a felony where the testimony as to market value of the items stolen, necessary to establish the independent felonious intent, was directed to their initial or replacement cost and not market value at the time of the theft.

The state must prove intent to commit a felony, and in the absence of other evidence or circumstances bearing on the defendant’s intent, the best evidence of that intent is what he did steal. Platt v. State, 291 So.2d 96 (Fla. 2d DCA 1974). Cases in Florida hold that the standard of value in assessing the $100 threshold, which defines grand larceny, is market value at the time of the theft. Lambert v. State, 111 So.2d 68 (Fla. 1st DCA 1959); Beasley v. State, 305 So.2d 285 (Fla. 3d DCA 1974); Platt v. State, supra. In Pickles v. State, 313 So.2d 715 (Fla.1975) it was further recognized, “ . . that, while market value at the time of theft is the applicable test, purchase price and ‘other circumstances’ can be sufficient evidence of market value in the appropriate case.” This latter standard, enunciated by this court in Platt, supra, and approved in Pickles, supra, constitutes a more flexible measuring stick by which the value of stolen articles may be shown to exceed the $100 limit under the grand larceny statute.

Review of the evidence in the case sub judice reveals that testimony of Mrs. Lynch was directed entirely to the price of the china some five years prior to its theft. This was the only testimony as to the value of the stolen property. Our courts have held similar testimony as to market value inadequate in almost identical situations. See Todd v. State, 187 So.2d 908 (Fla. 3d DCA 1966) (cost two years earlier inadmissible); Gamble v. State, 210 So.2d 238 (Fla. 2d DCA 1968) (original cost irrelevant); Beasley, supra (cost one year prior to theft not relevant). Cf. Negron v. State, 306 So.2d 104 (Fla.1974). Moreover, unlike the situation in Platt, supra, the totality of the evidence here does not establish the value of the articles stolen to be well in excess of $100.

In view of these authorities it was error for the trial court to have instructed the jury on entering without breaking a dwelling house to commit a felony since no felonious intent was shown. Yet, the jury was properly instructed as to the lesser offense of entering without breaking a dwelling house to commit a misdemeanor. Therefore, the state’s proof only established that the appellant committed petit larceny. However, since the statutes in effect at the time of this offense made no distinction in the penalty imposed for entering without breaking with intent to commit a felony or a misdemeanor, then the sentence entered below is

AFFIRMED.

BOARDMAN, C. J., and SCHEB, J., concur.

      . The trial judge instructed the jury that there are lesser included offenses for the crime of breaking and entering with intent to commit a felony when it stated:
      One is breaking and entering a dwelling house with intent to commit a misdemeanor. That carries a possible maximum sentence of five years. The next one is entering without breaking a dwelling with intent to commit a felony. That carries a possible maximum of five years. And the third one is trespass, which carries a possible maximum sentence of sixty days.
      The trial judge also instructed the jury in part as follows,
      If it is proven that the defendant did unlawfully enter the dwelling of the Lynches with the intent to commit the crime charged in the information, but it is not proved that the entry was accomplished by a breaking, the defendant should be found guilty of entering without breaking with intent to commit a felony.
      If it is proven that the defendant did unlawfully break and enter the building described in the information, or entered without breaking, but not proven that the defendant did so with the intent to commit the felony charged in the information, but it is proved that such breaking and entering was with the intent to commit a misdemeanor, included within the felony which is charged, then the defendant should be found guilty of breaking and entering a building of another with intent to commit a misdemeanor.

      . The state here does not rely on any other evidence to prove intent aside from the value of the goods actually taken.

      . Mrs. Lynch testified that aside from the china, other items taken were dishes, pots, pans, silverware, electric mixer, lamp, window fan, digital clock, and a television. Certainly the cumulative value of all these items may well have exceeded the statutory limit necessary to establish grand larceny. However, Mrs. Lynch testified that she had no knowledge as to the value of these items at the time of their theft. Without more we cannot say on appeal that these used items met the statutory requirement. The language in Beasley v. State, 305 So.2d 285 (Fla. 3d DCA 1974) is particularly persuasive. There the Third District Court stated in part,
      It is true that the owner may testify concerning the market value of his property at the time of theft. See Platt v. State, supra. But, the owner’s testimony in the instant case does not qualify as competent proof of market value. The testimony demonstrates that the owner could not establish the present market value of the stereo when stolen.
      While the state is correct that the intent to commit grand larceny may be proven by circumstantial evidence, we think that the actual market value of an item which is stolen usually may be easily proven by direct testimony.
      For example, it may be possible without great difficulty or undue expense to the state simply to produce expert testimony from a witness who is familiar with the market value of a used stereo similar to the one involved in this case.
      It is our conclusion, therefore, that the state never proved value in the trial sub judi-ce, and its proof established only that appellant committed petit larceny. 305 So.2d at 286-287.

      . See §§ 810.03 and 810.05, Fla.Stat. (1973).


author: BARKDULL, Judge.

text:
    Johann Georg ENGEL, Petitioner, v. STATE of Florida, DEPARTMENT OF TRANSPORTATION, and Career Service Commission, State Personnel Director, Respondents.
    No. 76-1530.
    District Court of Appeal of Florida, Third District.
    Jan. 11, 1977.
    Bruckner, Greene & Manas and Averill G. Marcus, Miami, for petitioner.
    Robert L. Shevin, Atty. Gen., and Betty Steffens, Asst. Atty. Gen., George L. Waas, Tallahassee, for respondents.
    Before HENDRY, C. J., and BARKDULL and NATHAN, JJ.
   BARKDULL, Judge.

Petitioner seeks review of an order of the Career Service Commission, denying the petitioner’s request for a hearing.

The petitioner is a resident of North Miami, Florida. For about six years, he was employed by the Department of Transportation as a security guard in its North Miami Maintenance Yards, at 1655 N.E. 205th Terrace. During the period of his employment, the petitioner (by his own admission) filed numerous grievance petitions questioning the practice of the Department and his superior. On November 18, 1975, the petitioner was notified that he was being transferred to the Fort Lauderdale Maintenance Yards, at 5548 N.W. 9th Avenue, some 38 miles away. The reason for such transfer was his continuous dissatisfaction with his supervisors and their decisions. The petitioner, not having an automobile, felt that the transfer amounted to a constructive discharge because to use public transportation each way would be an intolerable burden. As a result, he did not report. He was then discharged for having abandoned his position for three consecutive days of unexplained absence. Thereupon, the petitioner submitted a timely appeal form to the Career Service Commission, requesting a hearing on the impropriety of the transfer. The hearing was denied, and the petitioner filed the instant petition for writ of certiorari.

The petitioner contends it was error to deny him a hearing on the propriety of the transfer when, pursuant to Personnel Rule 22A-10.05A, F.A.C., a career employee is entitled to appeal a transfer. By denying him a hearing, the petitioner was deprived of his constitutional right to due process; he was entitled to have a determination of the propriety of his transfer and whether or not he was constructively discharged. We agree. Cf. Wilson v. Pest Control Commission of Florida, 199 So.2d 777 (Fla. 4th D.C.A.1967); Larson v. Florida Real Estate Commission, 227 So.2d 886 (Fla. 4th D.C.A. 1969); Canney v. Board of Public Instruction of Alachua County, 278 So.2d 260 (Fla.1973).

We return the matter to the State Personnel Director and Career Service Commission with directions to accord the petitioner a hearing, as he requested by his appeal.

      . * * * * * *
      “The letter you received dated November 13, 1975 in regard to your transfer to Ft. Lauder-dale Maintenance effective November 21, 1975 did not have the appeal form enclosed.
      “Enclosed now is the form and a copy of said letter with the schedule.
      “As you know, as a Carreer (sic) Service employee with permanent status, you have the right to appeal the transfer to the Career Service Commission within 20 days from receipt of this notice.”
      * * * * * *

      . ******
      “You have been considered to have abandoned your position with the Florida Department of Transportation effective November 21, 1975 due to your unexplained absence on November 22, 25 and 26, 1975.
      “You are hereby advised of your right to petition the State Personnel Director for a review of the facts. The decision of the State Personnel Director will be final and binding on all parties. Your petition should be submitted within 20 days from the receipt of this letter to the following address:
      “State Personnel Director
      Division of Personne-
      Carlton Building
      Tallahassee, Florida 32304”


author: PER CURIAM.

text:
    Annette MILLER, Appellant, v. William J. SMITH et al., Appellees.
    No. 75-1920.
    District Court of Appeal of Florida, Fourth District.
    Jan. 14, 1977.
    Michael B. Swindle, Orlando, for appellant.
    Charles M. McCarty, Orlando, for appel-lees.
   PER CURIAM.

Upon review of the briefs, record on appeal and oral argument, and in light of the recent decision of the Supreme Court of Florida in Moore Meats, Inc. v. Strawn, in & for Seminole Cty., 313 So.2d 660 (Fla.1975), we are of the opinion that the order granting defendants’ motion for judgment on the pleadings should be vacated and set aside.

A review of the judgment below reflects that it was predicated primarily upon plaintiff’s failure to file, within 20 days, (see Rule 1.140(a), Fla.R.Civ.P.) a reply to affirmative defenses raised by the defendants. According to the holding in Moore, it is only when “new matter” is sought to be asserted to avoid the affirmative defense that a reply is required; otherwise, the mere assertion of affirmative defenses does not require a responsive pleading for such affirmative defenses to be taken as denied.

In light of the circumstance that the pleadings reveal that there are issues of fact to be resolved and in light of the principles pertaining to the disposition of a motion for judgment on the pleadings, the appealed order was erroneous. Williams v. Howard, 329 So.2d 277 (Fla.1976); Wittington Condominium Apts., Inc. v. Braemar Corp., 313 So.2d 463 (Fla. 4th DCA 1975).

It is unnecessary for us to consider the other contentions raised by the plaintiff nor should our disposition herein be construed as passing upon the merits of any summary disposition. The final order granting motion for judgment on the pleadings is vacated and set aside and the cause remanded for further proceedings consistent herewith.

MAGER, C. J., CROSS, J., and JOANOS, JAMES E., Associate Judge, concur.


text:
    Lloyd CADY and Bettie Cady, his wife, Petitioners, v. Nancy Lee LAWS, also known as Nancy Lee Moste, et al., Respondents.
    No. 76-584.
    District Court of Appeal of Florida, Fourth District.
    Jan. 14, 1977.

      Silver S. Squarcia, Miami, for petitioners.
    Barbara K. Evans, Smalbein, Eubank, Johnson, Rosier & Bussey, Cocoa, for respondent-Strauss.
   DOWNEY, Judge.

This is a petition for writ of certiorari filed by Lloyd and Bettie Cady to review an order of the trial court dated March 4,1976, requiring that all future depositions in the cause be held in Brevard County, the forum of this mortgage foreclosure action.

The briefs filed by counsel are of little assistance to the court in resolving the issue between the parties. In any event, it appears that Cadys’ counsel noticed opposing counsel that the depositions of various parties would be taken in Dade County on six different dates. Two days before the first deposition was scheduled counsel for one of said parties gave Cadys’ counsel oral notice that application would be made the next day for an order preventing the taking of one of said depositions in Dade County. Cadys’ counsel was unable to attend so he notified the judge to whom the case had been assigned that he could not attend because of the short notice and another commitment. The matter was heard by another judge and the order sought to be reviewed was entered in due course.

The Cadys contend here that 1) the notice was inadequate; 2) the case was not assigned to the judge who entered the order; and 3) the judge abused his discretion in refusing to allow the deposition of Dade County residents to be taken in Dade County.

The litigation in the trial court seeks foreclosure of a mortgage. Therefore a petition for writ of certiorari is not the proper vehicle to review that order. However, we shall treat this petition as in interlocutory appeal. Schonfeld v. Barrich Telephone Answering Service, Inc., 320 So.2d 30 (Fla. 3d DCA 1975).

We have reviewed the entire record furnished us and find the only reversible error to be the breadth of the order being reviewed. The court had the discretion to determine that under the circumstances of this case the deposition of the particular parties should be taken in Bre-vard County, the forum of the suit. However, for various reasons it may be more appropriate to take the depositions of other witnesses or parties in other counties or outside the state. We think those questions should be dealt with as they arise and not by a blanket prohibition restricting all future depositions to Brevard County.

The fact that the order was signed by the alternate of the judge in whose division the case was pending, or whether it had been signed by any other judge of the circuit, is of no consequence.

Finally, the notice of hearing was short, but the record does not demonstrate that it was not justifiably so. We would suggest that many of the complaints expressed by the Cadys could be obviated by the exercise of a modicum professional courtesy between counsel.

Accordingly, the order appealed from is affirmed in all respects except as to that portion thereof which pertains to all future depositions. We hereby modify the order under review by deleting therefrom the words “All future depositions, including” (set forth in the third line of the second paragraph of the order), and we affirm the order as modified.

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


text:
    The STATE of Florida, Appellant, v. Denis Lincoln Gordon SCHLOSS, Appellee.
    No. 76-808.
    District Court of Appeal of Florida, Third District.
    Jan. 18, 1977.
    Richard E. Gerstein, State Atty. and Kurt L. Marmar, Asst. State Atty., for appellant.
    Phillip A. Hubbart, Public Defender and Beth C. Weitzner, Asst. Public Defender, for appellee.
    Before HENDRY, C. J., and PEARSON and HAVERFIELD, JJ.
   PER CURIAM.

The defendant was charged by the State of Florida in an information with the offenses of possession of cannabis and importation of cannabis into the State of Florida.

This interlocutory appeal is by the state from an order of the Circuit Court of Dade County granting the defendant’s motion to suppress evidence (cannabis) seized as a result of a customs search made of defendant’s baggage upon his entry into the United States from a foreign country. The court’s order was entered upon its determination that the customs officials had no probable cause to believe the defendant was carrying contraband.

The state contends that the trial judge erred in applying the standard of “probable cause” to this routine customs search. We find merit in the state’s contention and reverse.

Customs officials derive their authority to search the luggage of persons entering the United States from foreign countries from the provisions of Title 19 U.S.C. § 482 (1970). Under that section, a reasonable suspicion alone is sufficient to authorize a customs search. United States v. Diamond, 471 F.2d 771 (9th Cir. 1973); Shorter v. United States, 469 F.2d 61 (9th Cir. 1972); United States v. Weil, 432 F.2d 1320 (9th Cir. 1970), cert. denied 401 U.S. 947, 91 S.Ct. 933, 28 L.Ed.2d 230 (1971); United States v. Hill, 430 F.2d 129 (5th Cir. 1970).

Reversed.


author: SMITH, Judge.

text:
    CAPITAL CITY FIRST NATIONAL BANK, a National Banking Corporation, Appellant, v. LEWIS STATE BANK, a Florida Banking Corporation, Appellee.
    No. BB-87.
    District Court of Appeal of Florida, First District.
    Jan. 19, 1977.
    Rehearing Denied Feb. 22, 1977.

      C. Gary Williams, of Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, for appellant.
    John D. Buchanan, Jr., of Henry & Buchanan, P. A., Tallahassee, and Charles W. Pittman, of MacFarlane, Ferguson, Allison & Kelly, Tampa, for appellee.
   SMITH, Judge.

Between June 19 and 25,1974, two checks drawn by the distressed Commonwealth Corporation on uncollected funds were, as one witness put it, “floating around Tallahassee looking for a home.” Both checks, totaling $150,000, were drawn by Commonwealth to the order of Commonwealth on its account at Florida State Bank of Tallahassee. Commonwealth deposited the first check, for $10,000, in its account at appellant Capital City First National Bank on June 19, and received credit which Commonwealth immediately used. The second check, for $140,000, was similarly deposited at Capital City the next day, June 20. Florida State, the payor bank, dishonored the two cheeks and gave notice of dishonor following an intervening weekend, on June 24 and 25. Between their deposit and subsequent dishonor, the cheeks were handled by appellee Lewis State Bank, which accepted Florida State’s dishonor of the checks, rescinded its prior charges to Florida State’s account at Lewis, and sued Capital City, the depositary bank which refused to recognize Florida State’s dishonor of the checks.

The issue is whether the loss properly falls on Capital City, as held by the circuit court, or on Lewis. Resolution of that issue is controlled by whether Florida State timely dishonored the checks before midnight of the banking day following “presentment” to Florida State. That determination in turn depends on whether delivery of the checks to Lewis and Lewis’ handling of them in its proof and transit department on June 20 and 21 was in effect presentment to Florida State, commencing the period for payment or dishonor and rendering tardy Florida State’s notices of dishonor on June 24 and 25. The trial court held that presentment to Florida State did not occur when Lewis received the checks and that Lewis’ handling of the checks in its proof and transit department on June 20 and 21 was only as an “intermediary collecting bank,” not as Florida State’s agent to receive presentment. Capital City appeals from the adverse judgment on the principal matter in issue and Lewis cross-assigns error in the trial court’s refusal to award interest.

Some of the pertinent statutes are § 673.-504, F.S.1973, “How presentment made”:

“(1) Presentment is a demand for acceptance or payment made upon the . payor by or on behalf of the holder.
“(2) Presentment may be made:
(a) By mail, in which event the time of presentment is determined by the time of receipt of the mail; or
(b) Through a clearing house; or
(c) At the place of acceptance or payment specified in the instrument
“(3) [Presentment] may be made:
(b) To any person who has authority to make or refuse the acceptance or payment.”

Sec. 673.506, F.S.1973, “Time allowed for acceptance or payment”:

“(1) Acceptance may be deferred without dishonor until the close of the next business day following presentment. . . "

See. 673.508(2), F.S.1973, “Notice of dishon- or”:

“Any necessary notice [of dishonor] must be given by a bank before its midnight deadline [the next banking day, § 674.104(h)] . .

Sec. 674.107, F.S.1973, “Time of receipt of items”:

“(1) For the purpose of allowing time to process items, prove balances and make the necessary entries on its books to determine its position for the day, a bank may fix an afternoon hour of two p. m. or later as a cut-off hour for the handling of money and items and the making of entries on its books.
“(2) Any item . . . received on any day after a cut-off hour so fixed or after the close of the banking day may be treated as being received at the opening of the next banking day.”

Sec. 674.202(2), F.S.1973, “Responsibility for collection; when action seasonable”:

“A collecting bank taking proper action before its midnight deadline [the next banking day, § 674.104(h)] following receipt of an item . . . acts seasonably . .

Sec. 674.204, F.S.1973 “Methods of sending and presenting; sending direct to payor bank”:

“(2) A collecting bank may send:
(a) Any item direct to the payor bank;
“(3) Presentment may be made by a presenting bank at a place where the payor bank has requested that presentment be made.”

The odyssey of the second or $140,000 check deposited to Commonwealth’s account at Capital on June 20 was at every stage a banking day later, but otherwise identical to, that of the first or $10,000 check deposited Wednesday, June 19. The issues in the case may conveniently be discussed in terms of the first check. As the depositary bank, Capital had initial control of the manner of presentment of that check to the payor bank, Florida State. Capital might have physically delivered the check for presentment over the counter at Florida State; it might have mailed the check to Florida State for presentment; or it might have included the check in the sack of other checks delivered the night of June 19 to the Federal Reserve Bank of Jacksonville, which would have granted Capital City provisional credit on the morning of June 20 and made presentment to Florida State that morning. If by either of those methods Capital City had forwarded the check for ultimate presentment, and presentment had occurred on Thursday, June 20, Florida State’s deadline to dishonor the check would have been midnight of the following day, Friday, June 21, and the check would by law then be deemed finally paid and not subject to dishonor by Florida State on the following banking day, Monday, June 24. Capital City did not so route the check, but sent it the morning of Thursday, June 20, together with other checks held on Tallahassee banks, for handling in the local clearinghouse which Tallahassee banks employ to exchange and provisionally credit items requiring presentment in Tallahassee.

The heart of Capital City’s position in this case is the assertion, well documented in this record, that a depositary bank which holds and has granted a depositor credit for a check drawn on another bank has as its primary purpose speedy presentment for payment by the payor. But, the record likewise demonstrates, that purpose may be overridden in favor of a slower method when distance or collection expense are substantial factors. It would not do to mail a check directly for presentment to a New York bank payor, for example, because the mails would delay use of the funds by the depositary bank, which may obtain them provisionally by negotiating the check to a nearby intermediary collecting bank. While a check thus negotiated goes its slower way to New York, the bank of deposit may enjoy use of the provisional credit granted by the collecting bank. The bank of deposit might hasten both provisional and final credit by dispatching an airborne courier to New York with the check, but collection costs would soar.

To serve common objectives of obtaining speedy provisional and final credit, at low collection cost, Tallahassee banks before 1928 instituted a clearing arrangement for locally destined checks. It replaced check-bearing couriers criss-crossing the town bent on presentment and obviated unsporting delays accomplished by banks which paid their local obligations with checks on accounts at distant banks. Four Tallahassee banks thenceforth adhered to a local clearinghouse arrangement whereby each day, at sites rotating among the participants, representatives of the four would meet, provisionally exchange and balance their mutual obligations, and give or receive net payments.

In time a solution was found for the cumbersome assembly of representatives of a growing number of participant banks and for delays in obtaining provisional credit caused by settling daily clearings with checks which themselves required collection. In 1968 the bank which is now Barnett Bank of Tallahassee undertook, for a fee, to collect accumulated checks from banks twice daily, to prepare a settlement sheet and to communicate to each participant bank the amount of its net provisional credit or obligation. Acting as the clearinghouse, Barnett Bank of Tallahassee by telephone caused provisional charges and credits to be made in the accounts of participating banks at Barnett Bank of Jacksonville. That was done following the morning clearing — we are not here concerned with the afternoon clearing — by noon or 12:30 each day. The clearinghouse then delivered the checks in batches to appropriate payor banks.

The recent advent of sophisticated computerized banking services both simplified and, as this case testifies, complicated the Tallahassee clearinghouse arrangement. The computer’s speed and economy in sorting items, proving balances, identifying individual accounts and posting charges and credits made it desirable for all Tallahassee banks with which we are concerned to engage computer services; but, while Capital City and Lewis among others invested in the hardware and human skills necessary for computerized banking, others, including the relatively new Florida State Bank, did not. Those that did sold their computer services to those that didn’t. Thus, Lewis sold services to Florida State, and undertook by contract with Florida State to receive and process Florida State checks, including checks endorsed and forwarded for collection by the Federal Reserve Bank of Jacksonville, checks presented over the counter at Florida State and checks delivered through the Tallahassee clearinghouse by other local banks for presentment to Florida State. Florida State furnished Lewis records of its customer accounts and Lewis assimilated them in its computer system.

To gain rapid computer access to Florida State checks processed through the local clearinghouse, Florida State through Lewis directed Barnett, manager of the Tallahassee clearinghouse, to deliver Florida State checks to Lewis and to regard them as drawn on Lewis for purposes of calculating provisional charges and credits in daily settlements among participant banks. Lewis made a similar request for Gulf National Bank checks. Thus, Lewis received from the morning clearing not only its own checks but also those drawn on Florida State or Gulf National. By similar arrangements not directly pertinent here, Capital City received from the morning clearing checks drawn on Industrial National Bank, Capital City Second National Bank and City National Bank, as well as its own.

The morning of June 20, the day after Commonwealth deposited its ill-fated check on Florida State with Capital City, Capital City readied that check and approximately 250 others drawn on Lewis, Florida State and Gulf National for pickup by the clearinghouse courier. They were batched together, without differentiation among the three payor banks, under a machine tape showing the dollar total of the batch. Other batches, destined for clearing to other participant banks, were similarly prepared. The clearinghouse courier made his morning rounds, Barnett prepared the usual settlement sheet account for all items processed in batches that morning, the courier delivered copies of the settlement sheet and the appropriate batches of checks to the participant banks or those banks designated by other banks to receive their checks, and Barnett Bank of Jacksonville adjusted accounts to effectuate net provisional settlements.

Thus, between noon and 12:30 on Thursday, June 20, the Commonwealth check was delivered in an undifferentiated batch, with other batches from clearing, to Lewis. Lewis received them not at its downtown banking house but rather at the Lewis State Bank Data Processing Center, 13 blocks away. That building housed Lewis’ computer hardware and operators and, insofar as here pertinent, two separate departments whose heads reported through different channels in Lewis’ hierarchy: the proof and transit department and the data processing department. The relevant function of proof and transit was to receive and sign for incoming deliveries both from local clearings and from the Federal Reserve Bank of Jacksonville; to sort the batches into groups of checks drawn on Lewis, Florida State and Gulf National; to prove the dollar amount of items received against the machine tape totals claimed by local originating banks and carried forward in aggregate on Barnett’s settlement sheet; to provisionally charge against accounts maintained at Lewis by Florida State and Gulf National the dollar total of checks drawn against them — thus recouping for Lewis the provisional charges made against its Jacksonville account for Florida State and Gulf National checks cleared to Lewis; to microfilm the checks; to endorse them with Lewis’ stamp; and to deliver them to the data processing department.

The essential function of the data processing department, housed in the same building as proof and transit, was to receive checks from proof and transit; to post charges to customer accounts of Florida State, Gulf National and Lewis; and to make ready for pickup by Florida State and Gulf National, in early morning of the next banking day, the checks drawn on those banks, with appropriate records of their handling by Lewis.

Lewis’ proof and transit department sorted the checks received by it from the morning clearing of June 20, proved the totals, otherwise normally processed nearly all the checks drawn on Florida State and delivered them before 2:00 p. m. to data processing. But the Commonwealth check on Florida State was not among those delivered because its routing numbers had been improperly encoded on the face of the check, through no fault of Capital City, and the computer sorter employed by proof and transit could not identify the check as being drawn on Florida State. The check therefore missed the routine delivery to data processing and required individual handling by proof and transit which was not complete by 2:00 on June 20.

Although Capital City invariably completed on the day of receipt all processing of checks cleared to it for Industrial National, Capital City Second and City National, other arrangements had been made between Lewis and Florida State. Florida State ended its banking day at 2:00 p. m. and was accustomed to adjusting its reserves each day in reliance on notification at 2:00 p. m. of the amount of the gross provisional charge made to Florida State’s account at Lewis by Lewis’ proof and transit department. In 1973, Florida State had been embarrassed in the daily adjustment of its reserves by Lewis’ addition of slower moving charges to Florida State’s account after the 2:00 p. m. notification. Florida State had therefore requested that charges processed after the 2:00 p. m. notification be “held over and charged to our account the following business day.” Lewis agreed, but did not notify Capital City or other Tallahassee depositary banks whose final payment of Florida State checks sent through the clearinghouse were to be so delayed.

The Commonwealth check deposited at Capital City on June 19 and cleared to Lewis on June 20 was ready for delivery by Lewis’ proof and transit department to Lewis’ data processing department after 2:00 p. m. on June 20, and was held over for delivery with Florida State checks to be received and processed before 2:00 p. m. the next day. On June 21, Lewis’ proof and transit charged Florida State for the check; and data processing received the check and posted a charge to the Florida State record of Commonwealth’s account. The check was physically delivered by Lewis to Florida State early Monday, June 24.

On Monday morning, Florida State’s president, who on Friday afternoon had placed “hold orders” on all six Commonwealth checking accounts and had dispatched a messenger to notify Lewis’ data processing department, dishonored the Commonwealth check and notified both Capital City and Lewis that the check was being returned. In a telephone conversation with Capital City’s president, Florida State’s president verbally acquiesced in or agreed to Capital City’s assertion that the Commonwealth check had been presented to Florida State for payment on Thursday, June 20, not on Friday, June 21, and that Florida State’s refusal of the check on Monday, June 24, was a day late. Although that verbal exchange produced an admission by Florida State of the untimeliness of its dishonor, it was not regarded by the trial court as estopping Florida State, not a party to this action, or Lewis. Capital City took no action in reliance on the verbal concession by Florida State.

Capital City refused to accept back the Commonwealth cheek from Florida State and refused to reverse the tentative settlement in favor of Capital City which had been made on account of that check in the clearings on June 20. Although the Tallahassee banking custom was one of “direct return” of dishonored items to the bank of deposit, Florida State returned the check to Lewis, which accepted it as timely dishonored and credited the amount of it back to Florida State’s account at Lewis.

As stated above, the second Commonwealth check in the amount of $140,000 was identically treated: it was deposited by Commonwealth to its Capital City account on June 20; sent by Capital City to the clearinghouse on the morning of June 21 and cleared to Lewis around noon on that day; rejected by the computer sorter operated by Lewis’ proof and transit department because the routing numbers on its face did not correctly identify the payor bank; held over by proof and transit at 2:00 p. m. on June 21 for delivery on the next banking day, June 24, to Lewis’ data processing department; posted by data processing to Commonwealth’s Florida State account on the 24th; physically delivered to Florida State on the morning of the 25th; and dishonored by Florida State on the 25th.

The central issue in Lewis’ claim is whether, as to each check — again, we will speak only of the first — Florida State timely dishonored it. Granting Florida State until midnight of the banking day following presentment to give notice of dishonor, §§ 673.506, .508(2), F.S.1973, supra, the question becomes whether presentment was made to Florida State on Thursday, June 20, when the check was processed by Lewis’ proof and transit department, or on Friday, June 21, when it was processed by Lewis’ data processing department. Lewis concedes for purposes of argument that presentment was made to Florida State at Lewis’ data processing department on Friday, June 21. Capital City contends that presentment to Florida State was accomplished by the check’s delivery to Lewis from clearing on Thursday, June 20, or by its handling by Lewis’ proof and transit on that date; or, alternatively, that Lewis defaulted in a duty to make speedy presentment of the check within Lewis’ own building on June 21, or defaulted in a duty to advise Capital City the 2:00 p. m. deadline on charges by Lewis to Florida State would delay presentment. The issue was narrowed in pretrial conferences to one question: was Lewis an “intermediary collecting bank” in its relationship to Capital City and Florida State, so that delivery of the check to Lewis from clearings on June 20 imposed only the obligation to present the check the following day, § 674.202(2), F.S. 1973, supra; or was Lewis, by reason of authority received and exercised under its data processing contract with Florida State, Florida State’s agent to receive presentment, in which case Florida State through Lewis received presentment on Thursday, June 20, and had only until midnight Friday to dishonor?

The trial court found, as a matter of mixed law and fact, that Lewis “was performing the functions of an intermediary collecting bank with respect to the two checks sued upon,” and consequently that presentment did not occur when Lewis received and processed the checks in its proof and transit department. Thus, the trial court held Florida State’s notices of dishon- or were timely and that Lewis is entitled to recover the amount of the checks from Capital City. The trial court refused to award Lewis interest on the debt on grounds Lewis’ complaint demanded interest at “the average daily Federal funds rate” but Lewis introduced no evidence identifying that rate. The court ruled that Lewis, having failed to prove the special interest rate it alleged the parties contracted for, was not entitled to interest at the statutory legal rate of six percent. Sec. 55.03, F.S.1973.

At the end of the trial, in which witnesses repeatedly emphasized the bankers’ desire to obtain provisional and final credit for items in transit as quickly and directly as possible, the trial judge adjourned to consider his decision and instructed counsel, who had offered to send a copy of any controlling precedent that might be discovered:

“THE COURT: I would dearly love for you to send me a case. And don’t send it by any slow method. Send it by the fastest most direct method.”

At the conclusion of two hours’ oral argument of this appeal, we shared that yearning.

It is appropriate to recognize that the trial court was obliged, as are we, to decide this case without the influence of arguments that might naturally have been advanced by the payor bank, had it become embroiled in the litigation. In resolving this private controversy between Lewis and Capital City, it is not for us to dwell unduly on Lewis’ possible reasons for reversing, with such alacrity, its charges to Florida State. But recognizing that our decision may be regarded as precedent for the resolution of other bankers’ disputes, or for adjustment of their affairs by contract, we cannot entirely ignore the potential arguments, as we are able to discern them, of the payor bank. One such argument suggests a reason for Florida State’s absence from this litigation — a reason more significant than Lewis’ presumed desire not to offend its substantial depositor and data processing customer — and brings into sharp focus Lewis’ basic premise that presentment could not occur until Florida State or Lewis, acting for Florida State, possessed at the same time and place both the check and sufficient information, not available at its proof and transit department, to decide to pay or not.

Florida State’s notice of dishonor was effective against Lewis on Monday morning, June 24, regardless of whether presentment is considered to have occurred on Friday, June 21, when the Commonwealth check was posted to Commonwealth’s account at Florida State on Lewis’ data processing records, or on Monday, June 24, when the check was first delivered to Florida State. In either event, Florida State acted to dishonor the check before its midnight deadline on the banking day following presentment. But, had Florida State not been removed from the controversy by Lewis, Florida State surely might have contended at least alternatively that it could not receive presentment until it received the check itself, so to verify the signature and complete the statutory “process of posting” which Florida State was entitled to accomplish as an element of final payment. Secs. 674.213(l)(c), .109, F.S.1973.

Such an argument, though entirely plausible under the Code, was more than Florida State needed to prevail against Lewis; but if made, that argument could seriously jeopardize Lewis’ case against Capital City. For it would show Lewis as a collecting bank — Lewis’ own characterization of itself — which received the check June 20 but did not perform its statutory duty to present or send the check for presentment “before its midnight deadline following receipt of an item,” i. e., by midnight June 21. Secs. 674.202, .204, F.S.1973. Hence, Lewis “concedes,” for purposes of this case, that presentment to Florida State occurred in the Lewis State Bank Data Processing Center on June 21, when data processing posted a charge to Commonwealth’s account. That was before any officer of Florida State had seen the check or knew of it.

A thread of ambiguity therefore runs through the testimony and through Lewis’ basic premise that presentment could not occur at proof and transit, but only at data processing, where sufficient information existed for a decision to pay or not. Lewis’ manager of data processing, where presentment “concededly” occurred, testified:

“Q. Now at your Department do you make any determination to pay or not to pay?
“A. We do not.
“Q. Who makes that determination?
“A. Florida State Bank.”

But Florida State’s president described his understanding of presentment and response this way:

“I understand they would come in a mixed batch; that is, with other checks that Lewis State Bank was performing a similar function on, and would be separated, provisional settlement would be made against Florida State Bank[’s] account with Lewis State Bank, they would be microfilmed, and then they would be presented for payment to the Lewis State Bank Data Processing Center.”
“So when they go to Data Processing and are presented for payment, then we make a determination of whether we will pay, return, or what we’ll do ” (emphasis added).

Florida State’s president did not explain how, at Lewis’ data processing department, “we,” meaning Florida State, “make a determination of whether we will pay, return, or what we’ll do.”

Lewis’ position is therefore quite discreet: (1) Lewis denies that presentment to Florida State occurred on June 20 in Lewis’ proof and transit department; (2) Lewis does not deny that presentment occurred on June 21 in its data processing department; and (3) Lewis does not deny, because the matter is not here in issue, that presentment occurred on June 24 when the check was physically sent to Florida State.

The controversy cannot properly be resolved by forcing the facts into syllogisms that beg the main question of whether Lewis’ proof and transit department was the “place” or “person” designated by Florida State to receive presentment of its checks. Section 673.504(3)(b), .204(3), F.S. 1973. It is unavailing for Capital City to urge presentment at Lewis’ proof and transit department must have occurred June 20, since no prudent depositary bank would knowingly choose a collection method which delayed presentment until June 21 in preference to collection through Federal Reserve Bank of Jacksonville, which would have made presentment June 20. As depositary bank and the original collecting bank, Capital City was obliged by the law of self-interest, but by no other law or practice, to select the most appropriate collection method. It was obliged to know, for example, that Florida State could lawfully fix 2:00 p. m. “as a cut-off hour for the handling of money and items and the making of entries on its books,” § 674.107(1), F.S.1973, and that Florida State had done so. Capital City was obliged to inform itself of potential delays in alternative collection processes available, and to choose wisely-

Nor is the question entirely answered by Lewis’ reasoning that, since it was an “intermediary” and “collecting” bank in the statutory sense of any bank handling an item for collection except the depositary or the payor bank, § 674.105(3), (4), F.S.1973, its proof and transit department could not also be the place or person designated by Florida State for receipt of presentment. Sections 673.504 (3)(b), .204(3), F.S.1973. In the latter section, the Uniform Commercial Code specifically recognizes that computerized banking may make it appropriate for a payor to designate a computer center as the place of presentment. See Comment 4 to § 4-204, U.C.C., 19B.F.S.A. § 674.4-204 at 379 (1966). If a nonbank commercial data processing center is designated by the payor bank as the place of presentment, presentment there is effective notwithstanding that the intake department performs the sorting, proving, microfilming, and notification functions here performed by Lewis’ proof and transit department. Similarly, if a bank operates a data processing service for other payor banks within or without its banking house, designation of the data processing bank as the place of presentment is not made ineffective by the simple fact the bank “handles” the item for collection and is, therefore, a “collecting bank.” Section 674.105(4), F.S.1973. We accept as true the trial court’s finding that Lewis was an “intermediary collecting bank,” but we do not draw the legal implication urged by Lewis, that it (more precisely, its proof and transit department) was thereby disqualified as the place for presentment. With that erroneous implication falls Lewis’ argument that, since proof and transit gave Capital City provisional credit, made a provisional charge against and so notified Florida State, and microfilmed and endorsed the Commonwealth checks, it could not be the place for presentment.

Neither can we accept Lewis’ argument that the personnel of its proof and transit department had no more authority than the guard at the door “to make or refuse the acceptance or payment,” § 673.-504(3)(b), F.S.1973, and therefore cannot have been the persons or place designated for presentment. Section 673.504(2)(a), F.S. 1973, also makes presentment by mail effective at “the time of receipt of the mail,” and it matters not that the person who receives and opens the mail is a clerk ignorant of information essential to the decision to pay or refuse. Moreover, Lewis’ argument that presentment cannot be made except to one having both information and authority to pay or dishonor proves too much. For the previously-quoted testimony of both Lewis’ manager of data processing and Florida State’s president proved, if nothing else, that only Florida State had authority to pay or refuse. Thus by Lewis’ reasoning presentment would be delayed, in the face of Lewis’ “concession” and its expert testimony, until the Commonwealth check reached Florida State on Monday, June 24. When § 673.504(3)(b) speaks of presentment “to any person” with authority to pay or refuse, it speaks not only of individuals but also of organizations, and the term “organization” does not differentiate between departments of a single corporate entity. Sec. 671.201(28), (30), F.S.1973.

This case combines significant circumstances — presentment through a clearinghouse and a payor bank’s use of offsite computer processing — which were separately considered in Geibe v. Chicago Lake State Bank, 160 Minn. 89, 199 N.W. 514 (1924) and Farmers and Merchants Bank of Long Beach v. Bank of America, 20 Cal.App.3d 939, 98 Cal.Rptr. 381 (1971). In Geibe, under Negotiable Instruments Law provisions similar to those of the Commercial Code now applicable in Florida, the Minnesota Supreme Court held that the payor bank is entitled to presentment at its banking house; but that, if the payor bank designates a local clearinghouse member to receive its checks from clearings, presentment “at and through” the clearinghouse is presentment to the payor bank. In Farmers and Merchants Bank, the California court held presentment of a check to the Harbor-Orangewood branch of Bank of America — a bank separate from Bank of America under California law — occurred when a messenger delivered the check for processing for Harbor-Orangewood at Bank of America’s Montebello computer center, located apart from the involved banking houses. Because it was unnecessary to the decision, the court assumed without deciding the trial court correctly ruled presentment had not previously occurred at Bank of America’s separate Southwest Erma computer center, where the check was first taken in a batch for sorting. The court found the Montebello computer center performed functions antecedent to final payment or dishonor which previously were manually performed on presentment by employees at the payor’s banking house. Consequently — to use the characterization by Lewis’ expert witness of similar functions in Lewis’ data processing department — the Montebello computer center received presentment because it began the process of determining whether to pay or dishonor Harbor-Orangewood’s check.

In the circumstances of this case, the Commonwealth check delivered by the Tallahassee clearinghouse to Lewis State Bank Data Processing Center on June 20 was thereby presented to Florida State for payment. Presentment was not there delayed by the need for sorting the check from mixed batches of checks drawn on Florida State, Lewis and Gulf National. Put another way, we reject as a matter of law the distinction urged by Lewis between its proof and transit and data processing departments at the processing center. Three considerations lead us to this result:

First, the data processing contract between Florida State and Lewis contemplated Florida State would deliver its checks and other “input data” to Lewis at Lewis’ “banking house,” without distinguishing between Lewis’ separate buildings or between separate departments within the same building. Although the contract did not employ the term “presentment,” it was pursuant to that contract that Lewis concedes and the evidence shows presentment did occur when the check began final processing for payment or dishonor. The contract required Florida State to deliver input items, including checks, in orderly batches. That requirement was not fulfilled, for Florida State’s checks were not segregated from those of Lewis and Gulf National by Capital City, which was not requested to do so, nor by the clearinghouse or Florida State. Sorting was therefore necessary at Lewis’ processing center, and Lewis by contract retained the option of providing such extra services to make Florida State’s items “machine processable” at extra expense to Florida State. The necessity for sorting— at Lewis’ choice, done in its proof and transit rather than its data processing department — did not modify or divide the contract’s singular purpose: the performance by Lewis, for a fee, of functions which in law constitute presentment of Florida State’s checks.

Second, though we need not decide whether presentment occurs at the receiving and sorting facility of an agent for presentment which must forward items to its remote data processing center for presentment functions, as in Farmers and Merchants Bank, we cannot accept Lewis’ distinction between separate departments within its single computer center. Granting that a payor bank may reserve entirely to itself the selection of a place for presentment other than its banking house, § 674.-204(3), F.S.1973, Florida State’s contract for data processing services and its vicarious participation in the clearinghouse arrangement constituted designation of Lewis State Bank as the place for presentment of Florida State checks processed through the clearinghouse. It explicitly designated “Lewis State Bank Data Processing Center” as the place for presentment of checks in process of collection through Federal Reserve Bank of Jacksonville. In neither its Federal Reserve contract nor its instructions to the clearinghouse did Florida State specify presentment to Lewis’ data processing department, as contrasted with its proof and transit department.

And third, Lewis’ attempted distinction between its departments at the center would cancel the Code’s provision for presentment “[t]hrough a clearinghouse,” § 673.504(2)(b), F.S.1973, and the consistent purpose of the Tallahassee clearinghouse since before 1928. Though not a signatory to the clearinghouse agreement, Florida State elected to participate through Lewis and so became privy to it. Geibe, supra, 160 Minn. at 94, 199 N.W. at 516. Presentment was the immediate, not the remote, object of that arrangement. In earlier days, when Tallahassee bankers met and exchanged checks across a table, that was considered presentment; when later they designated Barnett Bank of Tallahassee to receive, provisionally settle and deliver checks to payor banks, proper delivery of checks was considered presentment; and now, when the clearinghouse has been asked by nonsignatory banks to provisionally settle their checks and deliver them for processing to participant banks having computer capacity, that delivery too is presentment. If Lewis’ arrangements with multiple payor banks make sorting necessary by depositary banks, by the clearinghouse, or by Lewis at the place for presentment, that is a matter for the banks to regulate by custom or agreement; but delivery of Florida State’s checks to Lewis is nevertheless presentment at the place designated by Florida State.

We therefore hold as a matter of law that delivery of the first Commonwealth check by the clearinghouse to Lewis on June 20 constituted presentment to Florida State; that delivery of the second Commonwealth check on June 21 likewise constituted presentment; and that, regardless of the number or complexity of steps taken by Lewis to make Florida State’s checks machine processable for the decision to pay or dishonor, Florida State was obliged by §§ 674.212(2), 674.213 and 674.301, F.S.1973, to dishonor the checks before midnight of the banking day following presentment or be held “accountable for the amount of the item.” Section 674.213(l)(d), F.S.1973. Florida State having failed to dishonor the Commonwealth checks within the time allowed after presentment, its attempt thereafter to dishonor was ineffective as to Capital City, which therefore is not liable to Lewis.

The case will be remanded for entry of judgment for Capital City.

REVERSED.

MILLS, Acting C. J., and MELVIN, WOODROW M., Associate Judge, concur.

      . Sec. 674.212(2), F.S. 1973, in relevant part states: “Within the time and manner prescribed . ., an intermediary or payor bank, as the case may be, may return an unpaid item directly to the depositary bank and may send for collection a draft on the depositary bank and obtain reimbursement.”

      . Part of Lewis’ demonstration that its proof and transit department acted separately .from data processing as a collecting bank was its expert’s opinion that proof and transit “granted” Capital City provisional credit and “proved” the sum of the items against the sum claimed in the machine tapes and settlement sheet. But Lewis “granted” Capital City provisional credit only by its standing order to Barnett Bank of Jacksonville to honor instructions by the clearinghouse, Barnett Bank of Tallahassee, for provisional settlements of the items cleared. There is evidence Lewis’ proof and transit department “proved” the balances on the settlement sheet sent by the clearinghouse, but no evidence that proof and transit, acting separately or as an integral Lewis department, had anything to do with “granting” Capital City provisional credit for the checks cleared to Lewis.

      . Lewis’ banking expert acknowledged that presentment may be designated to occur, and may occur, somewhere other than the place where both the necessary information and the ultimate authority to pay coalesce. He testified: “And then they [proof and transit] had to forward the items to someone who had the information and authority to begin the process of making a determination of whether or not an item should be paid or returned. And I believe that . . . data processing basically begins that process” (emphasis added). Presumably the witness adverted to circumstances in which the computer had nearly all the information and all but the ultimate authority to return a check drawn on a nonexistent, closed or overdrawn account, or to pay an apparently regular check drawn on an account shown by computer information to be adequate. This record does not inform us whether Lewis’ computer could inform any one at data processing on June 21 that the Commonwealth check was drawn on “uncollected funds.”

      . “When, by arrangement with a member bank, an outside bank gains admission to the clearing house, the member bank becomes its agent, and its rights and liabilities should be determined by applying the principles of the law of agency.”


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

text:
    Ronald McGRIFF, Appellant, v. STATE of Florida, Appellee.
    No. 75-830.
    District Court of Appeal of Florida, Fourth District.
    Jan. 21, 1977.
    Richard L. Jorandby, Public Defender, and Craig S. Barnard, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony J. Golden, Asst. Atty. Gen., West Palm Beach, for appellee.
   GREEN, OLIVER L., Jr., Associate Judge.

The Appellant, Ronald McGriff, was charged, tried, convicted, and sentenced for the crime of manslaughter under Section 782.07, Florida Statutes (1973). The trial judge denied the Appellant’s Motion for Judgment of Acquittal and Motion for New Trial. We reverse the Order denying the Motion for Judgment of Acquittal.

The Appellant, members of his family, and friends were standing near a mailbox in front of the Appellant’s house after dark on August 25, 1974. The alleged victim in this case, Lemon V. Joe, had been drinking to excess for some time prior to the incident which occurred at that time and place. He drove his car towards the location where the Appellant was standing and in doing so almost struck the Appellant’s brother. The Appellant asked Lemon Joe why he drove up in that manner. Lemon Joe replied, “Because you all need to be dead.”

Lemon Joe got out of his car in a hurried manner with his hand concealed behind his back. He was known to carry a handgun at times. The Appellant thereupon drew a revolver from his pants and told Lemon Joe to stay back. Lemon Joe continued to advance toward the Appellant. The Appellant fired a shot into the ground as a warning. Lemon Joe then grabbed for the gun and in the ensuing scuffle the gun was caused to discharge, resulting in a fatal wound to Lemon Joe.

The Appellant then picked up Lemon Joe and placed him in an automobile. He instructed his brother to take Lemon Joe to the hospital. The Appellant thereafter turned himself in to the Sheriff and gave a full statement reciting the aforementioned occurrences.

The State does not dispute the above facts except as to the actual manner in which the gun was caused to be discharged. In any event, the State concedes the gun discharged by accident. There is no evidence of aggressive behavior on the part of the Appellant. There is ample evidence that the encounter was caused by the deceased, Lemon V. Joe. The Appellant was not on trial for conduct unrelated to that alleged in the information.

The question to be resolved is whether the evidence, viewed in a light most favorable to the State, constitutes a violation of Section 782.07, Florida Statutes (1973). There are many cases holding that ordinary negligence is insufficient to support a conviction for manslaughter. The offense of manslaughter under Section 782.07, Florida Statutes (1973) must be founded upon culpable negligence. It has been held that the degree of culpable negligence

“ . . . required to sustain a manslaughter charge must be of ‘a gross and flagrant character, evincing reckless disregard of human life or of the safety of persons exposed to its dangerous effects; or that entire want of care which would raise the presumption of indifference to consequences; or such wantonness or recklessness or grossly careless disregard of the safety and welfare of the public, or that reckless indifference to the rights of others, which is equivalent to an intentional violation of them.’ ”

Preston v. State, 56 So.2d 543, 544 (Fla.1952).

There does not appear to be any evidence in this case which supports a conclusion that the Appellant evidenced a reckless disregard for the life of Lemon V. Joe, equivalent to an intentional violation of his rights. To the contrary, the Appellant took steps to avoid an ultimate encounter and rendered aid to the victim immediately after the unfortunate fatal injury. Additionally, the conduct of the Appellant in surrendering himself and volunteering such information as is supportive of the aforementioned facts lends credence to the contention that he was not functioning under the impairment of a “depraved mind.” In summary, the facts simply do not support a finding of guilt under Section 782.07, Florida Statutes (1973).

Appellant’s Motion for Judgment of Acquittal should have been granted. We have reviewed the Appellant’s remaining Point but find it unnecessary to rule thereon.

It is therefore ordered and adjudged that the judgment and sentence in the above cause be reversed.

REVERSED.

DOWNEY and DAUKSCH, JJ., concur.


text:
    Odis McCALL, Appellant, v. STATE of Florida, Appellee.
    No. 75-1770.
    District Court of Appeal of Florida, Fourth District.
    Jan. 21, 1977.
    Richard L. Jorandby, Public Defender, Paul M. Herman and Craig S. Barnard, Asst. Public Defenders, and James Green, Legal Intern, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Marsha G. Madorsky, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant contends, and the state concedes, that appellant’s conviction and sentence on Count III of attempted uttering of a forged instrument is void as there is no such crime. King v. State, Fla., 339 So.2d 172, opinion issued October 7, 1976.

Accordingly, the judgment and sentence on County III of the Information are vacated and as so modified the judgment and sentence appealed from are affirmed.

AFFIRMED AS MODIFIED.

DOWNEY and DAUKSCH, JJ., and GREEN, OLIVER L., Jr., Associate Judge, concur.


text:
    Paul M. AMEND, Appellant, v. Marilyn A. AMEND, Appellee.
    No. 76-199.
    District Court of Appeal of Florida, Fourth District.
    Jan. 21, 1977.

      Mallory H. Horton of Horton, Perse & Ginsberg, Miami, for appellant.
    William C. Sprott, West Palm Beach, for appellee.
   GREEN, OLIVER L., Jr., Associate Judge.

The Appellant husband contends the Court below was without jurisdiction to grant the Appellee wife financial relief in the form of a property award and alimony. We agree. The Appellant also contends the question of an award to Appellee’s attorney should be reevaluated in light of the inappropriate order awarding the wife personal financial relief. We agree.

The parties, previously married, were divorced on February 19, 1974 in the state of New York. The Findings and Judgment entered there recite sufficient allegations to warrant a conclusion that the New York Court had jurisdiction to determine issues of financial relief to the Appellee personally as well as for the minor children of the parties. The New York Judgment neglected to pass upon either of these subjects even to the extent of retaining jurisdiction.

The Appellee thereafter filed, in the case below, a Petition for Support for herself and the children, attaching the aforementioned New York Findings and Judgment. The Appellant unsuccessfully moved to dismiss the Petition. It was correctly held below that the Petition was sufficient for the purpose of an award for the support of the children. Unfortunately, the Court subsequently entered an award also allowing the Appellee alimony and certain sums for the purchase of an automobile. The Appellee was also awarded a sum of money for the services of her attorney in securing this relief.

The law of Florida does not allow a divorced wife to seek personal financial relief based solely upon the marriage relationship unless she has not previously had the legal opportunity to litigate this issue or the opportunity to thus litigate was suspended by an Order appropriately retaining jurisdiction. Frohock v. Frohock, 117 Fla. 603, 158 So. 106, 107 (1934); Comcowich v. Comcowich, 237 So.2d 66 (Fla. 3d DCA 1970); DuVernoy v. DuVernoy, 202 So.2d 620 (Fla. 1st DCA 1967); Dings v. Dings, 161 So.2d 227 (Fla. 3d DCA 1964); Morrison v. Morrison, 122 So.2d 199 (Fla. 1st DCA 1960); Weiss v. Weiss, 118 So.2d 833 (Fla. 3d DCA 1960).

The award of fees to the Appellee’s attorney was based, in part, upon his efforts to secure financial relief directly to the Appel-lee. This is implicit in the testimony of the expert called to evaluate the efforts of the Appellee’s attorney.

We therefore reverse paragraph four of the Final Judgment for Petition for Support wherein the Appellee was awarded the sum of One Thousand ($1,000.00) Dollars towards the purchase of an automobile. We also reverse paragraph six of said Final Judgment for Petition for Support awarding Appellee permanent alimony.

We direct that the trial Judge below reevaluate the award to Appellee’s attorney, as provided for in paragraph five in said Final Judgment for Petition for Support, in light of our opinion.

We are mindful that the Court below may well have taken into consideration the award being made directly to Appellee in computing the sum awarded as support for the children. We therefore hold that the Court below may reevaluate the award for support of the children, and may also consider the transportation needs of the Appel-lee, as the same shall relate to the maintenance of said children. The Final Judgment for Petition for Support is affirmed, in part, and reversed, in part.

AFFIRMED, in part; REVERSED, in part.

DOWNEY and DAUKSCH, JJ., concur.


text:
    Winston MARSON, Appellant, v. William COMISKY, Appellee.
    No. 76-325.
    District Court of Appeal of Florida, Fourth District.
    Jan. 21, 1977.
    Walter J. Migoski, Miami, for appellant.
    No appearance for appellee.
   DURANT, Jr., N. JOSEPH, Associate Judge.

This involves an action brought in the trial court by plaintiff-appellee to enforce a mechanic’s lien. After taking the plaintiff’s deposition, appellant-defendant filed a motion for summary judgment which was denied. This appeal ensued.

The defendant raises two points for reversal, both of which are meritorious. The first point is that the mechanic’s lien claim was defective because it was asserted against the defendant by the plaintiff in his individual capacity, but, at his deposition, the plaintiff testified that the labor, services and materials were not supplied by him in his individual capacity but by a corporation owned by the plaintiff and his wife. By thus failing to comply with the provisions of Section 713.06(2)(a), Florida Statutes, of the Mechanic’s Lien Law, the plaintiff’s lien is void. As was stated in the case of Babe’s Plumbing, Inc. v. Maier, 194 So.2d 666 (Fla. 2d DCA 1967), in referring to the Mechanic’s Lien Law:

“ . . . strict compliance with the statute is an indispensable prerequisite to either an owner, contractor or subcontractor seeking affirmative relief . . ”

The defendant’s second point involves the failure of the complaint to name the defendant’s wife as a defendant. It is undisputed that the claim of lien filed by the plaintiff alleged that the real property improved with materials allegedly furnished by him was owned by the defendant and his wife. In this instance, the actual owners of the property are each indispensable parties to the cause of action to enforce the claim of lien and both should have been joined in the suit. The failure to name the defendant’s wife as a co-defendant rendered the complaint defective. See McGuire v. Consolidated Electrical Supply, Inc., 329 So.2d 411 (Fla. 4th DCA 1976).

For the foregoing reasons, the order appealed from is reversed with directions to enter a summary judgment for the defendant.

REVERSED AND REMANDED.

DOWNEY and ALDERMAN, JJ., concur.


text:
    QUADOMAIN CONDOMINIUM ASSOCIATION, INC., Appellant, v. Nathan POMERANTZ et al., Appellees.
    No. 76-830.
    District Court of Appeal of Florida, Fourth District.
    Jan. 21, 1977.
    Rehearing Denied Feb. 22, 1977.
    Barry A. Mandelkorn, of Ruden, Barnett, McClosky, Schuster & Schmerer, Fort Lauderdale, for appellant.
    Patricia S. Levey, of Chonin & Levey, Miami, for appellees-Pomerantz.
   DOWNEY, Judge.

This is an interlocutory appeal from an order granting appellees a temporary injunction without bond.

Appellees sued to enjoin appellants from terminating a Management Agreement between the appellant condominium association and a management firm that supervised and managed the common elements at the expense of the association. Appellees’ Purchase Contract had guaranteed that the appellees’ share of the common expense would not increase more than 5% in any one year until the termination of the Management Agreement. Appellees’ complaint alleged that appellants terminated the Management Agreement, and that the termination would result in the elimination of the 5% annual limitation on the increase in common expenses. The complaint further alleged that the termination of the agreement is detrimental to the apartment unit owners and beneficial only to appellant.

After notice and a hearing the trial court entered an order temporarily enjoining appellant from filing- a lien on appellees’ apartment as long as appellees paid their share of the common expenses “pursuant to the five percent (5%) provision in page one of their contract. . . . ” Said order also restrained appellant from filing a lien against appellees’ property for any increased amount claimed due by appellant to meet its budgetary needs.

Our study of the briefs and record convinces us that the temporary injunction was improvidently entered. First, an injunction does not lie to prohibit an act which has already been committed. The complaint under review (or petition as it is styled) alleged that the act sought to be prohibited had already taken place, Wilkinson v. Woodward, 105 Fla. 376, 141 So. 313 (1932).

Next, and perhaps most importantly, neither the complaint nor the evidence adduced in support thereof demonstrated facts tending to show any irreparable harm. The complaint simply alleged that “petitioners will suffer immediate and irreparable harm if the Respondents and/or either of them are permitted to terminate the Management Agreement.” The cases are legion which hold that such a general allegation of irreparable harm is insufficient and that a complaint must allege facts tending to show irreparable harm. See cases cited at 17 Fla.Jur., Injunctions, § 21.

Appellant’s second point that it was error to grant the temporary injunction without a bond becomes moot in view of our conclusion that the temporary injunction should not have been granted. However, in passing we note that there is no authority for a trial court to enter a temporary injunction without a bond under the circumstances of this case. Fla.R.Civ.P. 1.610(b); Hoffman v. White, 235 So.2d 43 (Fla.4th DCA1970); McGovern v. Amira, 328 So.2d 862 (Fla.4th DCA1976).

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

REVERSED AND REMANDED.

MAGER, C. J., and DAUKSCH, JAMES C., Jr., J., concur.


text:
    Eugene WILSON, Appellant, v. STATE of Florida, Appellee.
    No. 75-1661.
    District Court of Appeal of Florida, Fourth District.
    Jan. 21, 1977.
    Richard L. Jorandby, Public Defender, and Craig S. Barnard, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony J. Golden, Asst. Atty. Gen., West Palm Beach, for appellee.
   ON PETITION FOR REHEARING

PER CURIAM.

Our opinion in this case filed December 17, 1976, is vacated and withdrawn. The judgments and sentences for first degree murder and for robbery are both affirmed. State v. Adams, 335 So.2d 801 (Fla.1976); State v. Johnson, 336 So.2d 1131 (Fla.1976).

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