author: SMITH, Judge. COX, JOHN S., Associate Judge

text:
    George R. SMITH et al., Appellants, v. Honorable Reubin O’D. ASKEW, etc. et al., Appellees.
    No. Z-260.
    District Court of Appeal of Florida, First District.
    June 30, 1976.
    Harry Lewis Michaels of Michaels & Patterson, Tallahassee; David C. Hollo-man and Treadwell & Treadwell, Arcadia, for appellants.
    James G. Mahorner, Tallahassee, Robert L. Shevin, Atty. Gen., and Donna Stinson, Asst. Atty. Gen., for appellees.
    D. Stephen Kahn, Tallahassee, for amicus curiae.
   SMITH, Judge.

Appellants, DeSoto County citizens aggrieved by the Governor’s determination to convert part of the G. Pierce Wood Memorial Hospital in Arcadia into a correctional facility, assert that the legislature reserved that power to itself and that the circuit court erred in holding otherwise.

Section 14 of the Correctional Organization Act, ch. 75-49, Fla.Laws, which was passed in the waning days of the 1975 Legislature and became effective July 1, 1975, amended § 945.025, F.S.1973, to read in part:

“(3) There shall be other correctional facilities . . . provided that no adult correctional facility shall be established by changing the use and purpose of any mental health facility or mental health institution under the jurisdiction of any state agency or department without authorization in the general appropriation act or other approval by the legislature. Any facility, the purpose and use of which was changed subsequent to January 1, 1975, shall be returned to its original use and purpose by July 1, 1977; provided, however, that the conversion of the G. Pierce Wood Memorial Hospital located at Arcadia, DeSoto County, into a correctional facility may be completed and continued only after a demonstration that it would be less costly and that substantial economic benefit would accrue to the state when compared with other viable alternatives to the conversion of said facility. . . .”

At the instance of the Secretaries of the Department of Health and Rehabilitative Services and of the Division of Corrections, Governor Askew determined on July 14, 1975, that the partial conversion of the hospital was the least costly means at hand to accommodate critical increases in Florida’s prison population and that substantial economic benefits would accrue to the State by that action.

The circuit court, finding that Governor Askew’s determination was based on an appropriate demonstration of the pertinent facts, construed the Act as contemplating an executive rather than a legislative determination of the facts, and so declined to enjoin construction of the correctional facility. We affirm. Absent a clearer statutory mandate, we will not suppose that the expiring 1975 Legislature intended to stay all remedies for an urgent public need until it reassembled in 1976. Had that been the legislative purpose, the quoted proviso, which excepts the G. Pierce Wood facility from the general effect of the Act, need not have been enacted.

AFFIRMED.

BOYER, C. J., concurs.

COX, JOHN S., Associate Judge, dissents.

COX, JOHN S., Associate Judge

(dissenting).

I am compelled to dissent. Section 945.-025, Florida Statutes, as amended (with such amendment effective July 1, 1975) clearly states in its pertinent parts:

“ * * * no adult correctional facility shall be established by changing the use and purpose of any mental health facility or mental health institution * * * without authorization in the general appropriation act or other approval by the legislature * * * provided, however, that the conversion of the G. Pierce Wood Memorial Hospital located at Arcadia, DeSoto County, into a correctional facility may be completed and continued only after a demonstration that it would be less costly and that substantial economic benefit would accrue to the state when compared with other viable alternatives to the conversion of said facility * * * ”, (Emphasis supplied)

To me, this statute clearly says that the “demonstration” referred to in the latter portion of the statute with reference to the G. Pierce Wood Memorial Hospital must be made to the legislature and that the legislature alone is authorized via general appropriation act or “other approval” to pass upon the propriety of converting such facility to a correctional facility.

The majority opinion holds that the “demonstration” specified by statute can be made apparently on an informal and ex parte basis to the executive branch of government and specifically to the Governor of the State of Florida. I find no basis in the statute for such conclusion.

It seems in my humble judgment that the executive branch of the government has invaded the province of the legislative branch and that the majority opinion of the Court in this case puts the judiciary in the position of also invading that legislative province.

I would reverse with directions that the injunction which was vacated by the trial court be reinstated and continued in full force and effect.


source: Caselaw Access Project

author: PER CURIAM. SMITH, Judge

license: Public Domain

text:
    Jimmy Milton SMITH, Appellant, v. STATE of Florida, Appellee.
    No. X-398.
    District Court of Appeal of Florida, First District.
    July 6, 1976.
    Rehearing Denied Aug. 9, 1976.
    Richard W. Ervin, III, Public Defender, and David J. Busch, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Andrew W. Lindsey, Asst. Atty. Gen., for ap-pellee.
   PER CURIAM.

On January 6, 1976, this court rendered its opinion which relinquished jurisdiction to the trial court “with directions that it direct the court reporter to forthwith transcribe the [trial] proceedings.”

By an instrument entitled “Response to Order of Appellate Court”, the trial court has advised “that it is impossible to furnish such a transcript as evidenced by the affidavit of the court reporter, which is attached to this response.” The referenced affidavit explains the circumstances in which a deputy court reporter, who is now living in another state and is employed in a non-court capacity, destroyed her shorthand notes of the trial.

This indigent appellant having been denied a full appellate review of trial counsel’s assignments of error set out in our prior opinion, the judgment of conviction is reversed with directions that a new trial be granted.

REVERSED.

RAWLS, Acting C. J., and MILLS, J., concur.

SMITH, J., specially concurs.

SMITH, Judge

(concurring):

I concur in the result and in the court’s opinion because it does not appear from the record of this case, tried in October 1974, that the events at trial from which appellant’s contentions arise can be evidenced to us in any way equivalent to a stenographer’s transcript. See Draper v. Washington, 372 U.S. 487, 495, 88 S.Ct. 774, 9 L.Ed.2d 899 (1963).

      . Smith v. State, 325 So.2d 426 (1 Fla.App. 1976).


author: PER CURIAM. ALDERMAN, Judge.

text:
    Vincent COLADONATO, Appellant, v. STATE of Florida, Appellee.
    No. 75-674.
    District Court of Appeal of Florida, Fourth District.
    July 9, 1976.
    Rehearing Denied Aug. 5, 1976.
    Philip G. Butler, Jr., of Foley, Colton & Butler, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie Bernard, Asst. Atty. Gen., and Marsha G. Madorsky, Legal Intern, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed.

CROSS and MAGER, JJ., concur.

ALDERMAN, J., dissents, with opinion.

ALDERMAN, Judge.

I respectfully dissent.

Appellant appeals from his conviction of grand larceny, alleging as error the trial court’s deniál of his motion to suppress tangible evidence. The sole issue raised is the legality of appellant’s initial stop and detention.

The record reflects that the arresting officer first saw the appellant driving a rented U-Haul Van with out-of-state plates at about 7:30 p. m. in the business district of Boca Raton. He saw the same vehicle again a few minutes later and considered stopping it simply because “it was an unusual vehicle to be in the area at that time of night.” The officer was called away on other matters but upon returning to the area saw the vehicle once more and this time, stopped it. Because he was worried about his safety, the officer looked through the back window of the van and discovered expensive stereo equipment which turned out to be stolen.

While it is well established that a police officer may stop a vehicle to question its occupants on less than probable cause, e. g., Gustafson v. State, 243 So.2d 615 (Fla.App.4th, 1971), rev. on other grounds 258 So.2d 1 (Fla.1972), aff. 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973); Wilson v. Porter, 361 F.2d 412 (9th Cir. 1966), it is equally well recognized that he may not do so arbitrarily or on a bare suspicion that the occupants are violating the law. Kersey v. State, 58 So.2d 155 (Fla.1952); Gustafson v. State, supra; State v. Ebert, 251 So.2d 38 (Fla.App.2nd, 1971); Wilson v. Porter, supra; see, Fla.Stat. § 901.-151(2) (1975).

I cannot agree that the arresting officer’s opinion that the vehicle was an unusual one to be seen in the area gave rise to tjie necessary “founded suspicion” in this case. I believe the facts of this case bring it more in line with those cases that have invalidated detentions, see, e. g., Bailey v. State, 319 So.2d 22 (Fla.1975); Thomas v. State, 297 So.2d 850 (Fla.App. 4th, 1974); State v. Rheiner, 297 So.2d 130 (Fla.App.2nd, 1974); Richardson v. State, 291 So.2d 253 (Fla.App.1st, 1974), than with those that have upheld them, see, e. g., Gustafson v. State, supra; State v. Ebert, supra; State v. Padilla, 235 So.2d 309 (Fla.App.3rd, 1970); Carpenter v. Sigler, 419 F.2d 169 (8th Cir. 1969); and Wilson v. Porter, supra.

For these reasons, I would reverse the decision below.


author: PER CURIAM. WALDEN, Chief Judge

text:
    Jack DORSON et al., Appellants, v. BANK OF PALM BEACH AND TRUST COMPANY, as Executor of the Estate of Daniel A. Udell, Deceased, et al., Appellees. BANK OF PALM BEACH AND TRUST COMPANY, as Executor of the Estate of Daniel A. Udell, Deceased, et al., Appellants, v. Jack DORSON et al., Appellees.
    Nos. 75-724 and 75-800.
    District Court of Appeal of Florida, Fourth District.
    April 30, 1976.
    Rehearing Denied Aug. 10, 1976.
    Sam D. Phillips, Jr., Phillips & Babbit, West Palm Beach, for appellants/appel-lees Jack Dorson and Mary Dorson, and others.
    David F. Crow, Walton, Lantaff, Schroeder, Carsom & Wahl, West Palm Beach, for appellants/appellees Bank of Palm Beach and Trust Co., etc., and others.
   PER CURIAM.

AFFIRMED.

OWEN and DOWNEY, JJ., concur.

WALDEN, C. J., dissents in part; concurs in part; with opinion.

WALDEN, Chief Judge

(dissenting as to plenary appeal No. 75-724; concurring as to interlocutory appeal No. 75-800):

Addressing the plenary appeal brought by plaintiffs, money damages were sought for breach of a written contract. The contract gave plaintiffs a first right of refusal to purchase certain land. Indisputably, defendants did not accord such right to plaintiffs. Regardless, judgment was entered in the trial court for defendants on the critical basis “ * * * that plaintiffs are estopped to assert their claim for damages under the contract sued upon. The property upon which plaintiffs claim an option has been sold twice by defendants without objection from plaintiffs.” (Emphasis supplied.) I would reverse and remand with instructions to enter judgment for plaintiffs and award them such damages as the evidence shows them to be entitled.

In broad outline, defendants owned 340 acres of land, including a unique parcel consisting of 5.144 acres. For consideration, defendants gave plaintiffs a written first right of refusal to purchase the S.144 acres at the identical price and upon the same terms and conditions as might be offered by a third party purchaser.

Thereafter, there were two conveyances of the major parcel. First, an undivided one-half interest in the 340 acres was conveyed to Mr. Susik in consideration of Su-sik’s promise to help develop the tract, a promise that was not kept. Second, the 340 acres were conveyed to Mr. Muroff for the sum of $2,500,000. Plaintiffs had knowledge of these conveyances and made no objection.

Defendants never gave nor attempted to give or otherwise recognized their obligation to give the plaintiffs their first right of refusal as concerns the 5.144 acre parcel as was contracted. More specifically, there was never a segregation or breakdown as to this parcel so as to assign it a specific purchase price with specific terms. In other words, the price and terms with reference to the two sales were always as to the bulk parcel of 340 acres.

Plaintiffs, being aggrieved by these events, brought the instant suit.

Ignoring the formalities of the appellate points presented, the dispositive issue is whether, as a matter of fact and law, the first right of refusal here involved ripened into an option. If it became an option, then the trial court was correct and the judgment should be affirmed. If it remained a first right of refusal then the judgment must be reversed. If it was an option, then the burden would be on plaintiffs to take affirmative action to exercise it in due season. If it was a first right of refusal then the burden would be on defendants to convey the terms of the third party offer to plaintiffs as to the 5.144 acre parcel, so that they might accept or refuse as they might decide.

The distinction between these two kinds of contract is a very real and important one. It is recognized in Thompson on Real Property, Vol. 8A (1963 Replacement) § 4441, p. 246:

“An option should be distinguished from a ‘first call’. One who has an option has a right to buy the property while one who has a ‘first call’ merely has the privilege of first refusal if the owner desires to sell.”

See also Corbin on Contracts, Vol. 1A (1963 Edition) § 261. In the case of a first right of refusal it is the duty of the landowner to make a specific tender of a specific offer of a prospective third party purchaser to the person owning the first right of refusal, Blair v. Kingsley, 128 So. 2d 889 (2d DCA Fla.1961); and a landowner can not avoid, evade or destroy his obligation under a first right of refusal by selling a larger tract which includes the land contracted under the first right of refusal (as was done here). Guaclides v. Kruse, 67 N.J.Super. 348, 170 A.2d 488 (1961). See also Annot., 170 A.L.R. 1068 (1947).

And now we come to the point where I feel the trial court erred. A first right of refusal may ripen into an option when the landowner conveys to the person owning the first right of refusal the terms of an offer made by a third party purchaser. Then the transaction takes on the coloring of an option and the burden of accepting or rejecting the terms of the third party offer shifts to the person owning the first right of refusal. Coastal Bay Golf Club, Inc. v. Holbein, 231 So.2d 854 (3rd DCA Fla. 1970). Since the trial court denominated the transaction as an “option,” I would hazard that the trial court reasoned that, when plaintiffs learned of the sales to Susik and Muroff, the contract changed from a first right of refusal into an option which would require plaintiffs to accept or reject. But this rationale is fallacious in my judgment because plaintiffs never contracted nor had any interest in the bulk 340 acres. Because they were never given, directly or indirectly, the price and terms of the 5.144 acre parcel, I feel that the contract strictly remained that of a first right of refusal — not an option. Thus, plaintiffs had no duty to do anything upon learning of the Susik-Muroff sales because they involved 340 acres — not 5.144.

As to estoppel, it is my opinion that such did not arise merely because plaintiffs learned of the two sales. This opinion is based upon the principles announced in Ennis v. Warm Mineral Springs, Inc., 203 So.2d 514 (2d DCA Fla.1967):

“The rule is well stated in 31 C.J.S. Estoppel § 87, beginning on page 485:
‘Mere silence of itself will not raise an estoppel. To make the silence of a party operate as an estoppel the circumstances must have been such as to render it his duty to speak, and there must also have been an opportunity to speak.
‘It is essential that the one claimed to be estopped should have had knowledge of the facts, and that the adverse party should have been ignorant of the truth, and have been misled into doing that which he would not have done but for such silence. Silence will not support an estoppel unless the person claiming an estoppel justifiably relied on the silence to his prejudice, and such conduct in reliance must be intended or reasonably anticipated by the one who remained silent.
‘One cannot claim an estoppel based on silence where he had actual knowl edge of the facts or the means of acquiring knowledge. One may not fail to avail himself of readily accessible sources of information and rely on the silence of another who has been guilty of no act calculated to induce the party claiming ignorance to refrain from investigating.’ (Emphasis supplied).”

See also Thomas v. Dickinson, 158 Fla. 819, 30 So.2d 382 (1947).

I am at a loss to understand how the character of the agreement changed — how the burden of accepting or rejecting the sale fell upon plaintiffs — how they are deemed estopped from claiming breach or damages when the defendants clearly breached their contract and when the only terms of a prospective sale to a third party involved 340 acres — not 5.144 acres as plaintiffs contracted. Just what were they supposed to do? Purchase 340 acres? Inveigh to defendants about the fact that defendants were breaching their contract? It will be a new day in contract law if a plaintiff is estopped from complaint because he learns that defendant is about to breach his contract and fails to fuss about it or warn defendant not to breach. Defendants legally knew what they were supposed to do and simply didn’t do it. I think they should answer in damages.

For these reasons I respectfully dissent as to the majority decision to affirm on the merits as to the plenary appeal, No. 75-724. I would reverse and remand with instructions to enter judgment for plaintiffs and award damages according to the proofs.

As to the interlocutory appeal, No. 75-800, I would affirm.

      . There are several party plaintiffs and several party defendants. Sinee it will be neither necessary nor helpful as concerns this opinion to delineate the individual interests of such parties, they will be simply referred to in gross as either plaintiffs or defendants.


author: MAGER, Judge. TROWBRIDGE, C. PFEIFFER, Asso- ciate Judge

text:
    Edward F. GORDON, Appellant, v. Jeri Lee GORDON, Appellee. Edwin F. GORDON, Appellant, v. Jeri Lee GORDON, Appellee.
    Nos. 75-683, 75-684.
    District Court of Appeal of Florida, Fourth District.
    May 21, 1976.
    Rehearing Denied Aug. 10, 1976.

      Bruno L. Di Giulian of Di Giulian, Spel-lacy, Bernstein, Lyons & Sanders, Fort Lauderdale, for appellant.
    Stuart & Walker, Fort Lauderdale, and Larry Klein, West Palm Beach, for appel-lee.
   MAGER, Judge.

Upon examination of the briefs and record on appeal and upon due consideration of the oral argument we are of the opinion that the award of “periodic” alimony in the sum of $1,000 per week for a period of 521 weeks was, under the totality of the circumstances of this case, an abuse of discretion.

It should be recognized that the new concept of the marriage relation as reflected by the so called “no-fault” divorce law and illustrated by rehabilitative alimony have not completely abrogated the time-honored concept of periodic alimony. Brown v. Brown, 300 So.2d 719 (Fla.App. 1st 1974); Herbert v. Herbert, 304 So.2d 465 (Fla.App.4th 1974); see also Collins v. Collins, 323 So.2d 583 (Fla.App.3d 1975). But, regardless of nomenclature or semantics, any award must be based upon traditional considerations of. need and ability. Collins v. Collins, supra.

In determining the nature and amount of the award due consideration must be given “the value of the parties’ estates, the parties’ earning ability, age, health, station in life, duration of marriage, conduct of the parties, prior marriages, and relative responsibilities as to other dependents who have claims on the husband for sustenance or education.” See Gordon v. Gordon, 192 So.2d 514 (Fla.App.1st 1966). See also McRee v. McRee, 267 So.2d 21 (Fla.App.4th 1972). In considering some of the factors bearing upon the needs of the wife such as the relatively short duration of the marriage (sixteen months), the age of the wife (thirty-three years), her good health and employment capabilities, we find inadequate support for an alimony award of $521,000 either under the “new” or “old” concepts; moreover, the standard of living established by the parties during the (brief) marriage does not serve to bolster such an award.

The husband’s ability to pay (as reflected by an estimated net worth of $13,000,000) is unassailable; likewise irrefutable are the needs of the wife, cf. footnote 1. But there is not necessarily an ordained equality between these two factors, 1. e. the enormity of the ability to pay does not dictate a corresponding need to receive an amount commensurate with such ability to pay. Other factors, some of which have been previously mentioned, cannot be overlooked and must be taken into consideration in ascertaining a spouse’s needs. See Cummings v. Cummings, 330 So.2d 134 (Fla. opinion filed March 31, 1976).

We are not unmindful of the difficult task that often befalls the trial court in its endeavor to effectively correlate the respective spouses’ needs and abilities. There are no exactitudes by which the need or ability factors can be precisely gauged because the marital circumstance in and of itself is wrought with variables and imprecision. From our evaluation of the appellate record we would respectfully observe that under the particular facts and circumstances of this case there was an abuse of discretion in the amount of the alimony award.

We find no abuse of discretion in the other awards made by the trial court, except that the provision making child support payments binding upon the estate of the husband is improper and should be deleted. See Ulbrich v. Ulbrich, 317 So.2d 460 (Fla.App.4th 1975). Accordingly, the cause is remanded for reconsideration of the propriety of the award of alimony in accordance with the views expressed herein and for such other proceedings as are consistent herewith.

Inasmuch as- the amount of the alimony award is to be remanded to the trial court it is unnecessary to resolve the issue of whether the alimony award was intended to be periodic or lump sum. It would seem helpful during the trial court’s further consideration to clarify the exact nature of the alimony award inasmuch as the liability for periodic alimony terminates upon death unless the obligation is assumed as one payable out of the estate after death, see Bunn v. Bunn, 311 So.2d 387 (Fla.App.4th 1975); Ulbrich v. Ulbrich, supra; cf. Spears v. Spears, 148 So. 2d 564 (Fla.App.1st 1963), whereas a lump sum award becomes fixed under the final decree of dissolution the liability for which would not terminate upon death of the husband. See Keller v. Belcher, 256 So.2d 561 (Fla.App.3d 1972); see also Horne v. Horne, 289 So.2d 39 (Fla.App.2d 1974).

AFFIRMED, in part; REVERSED, in part, with directions.

CROSS, J., concurs.

TROWBRIDGE, C. PFEIFFER, Associate Judge, concurs in part, dissents in part.

TROWBRIDGE, C. PFEIFFER, Asso-

ciate Judge

(concurring in part, dissenting in part).

I concur that the award of alimony in this case was so gross as to constitute an abuse of judicial discretion that is properly reversed on appeal. Regardless of the husband’s acknowledged ability to pay, the evidence fails utterly to support the wife’s claimed need for so much money. Such a judgment makes a mockery of both the “no-fault” dissolution law and of justice for male divorcees in general.

My concern that leads to a separate opinion is the basic principle of law set forth in King v. King, 271 So.2d 159, at page 160 (Fla.App.1st 1973) :

“It is well-settled that matters of alimony, child support and other monetary considerations lie within the sound judicial discretion of the trial judge, based upon the evidence presented before him and due consideration of the needs of the recipients and the extent of the obli-gor’s ability to meet these needs. Such awards will not be disturbed by the appellate courts unless they represent an abuse of judicial discretion or are patently erroneous on the record. The appellant carries the responsibility of clearly demonstrating such error.” (Emphasis added)

The Supreme Court recently reemphasized this problem in Crain & Crouse, Inc. v. Palm Bay Towers Corp., 326 So.2d 182 (1976), where it reversed a District Court for reweighing the evidence and substituting its judgment for that of the trial court.

Our action here today, however, is based upon both an absence of evidence to support the award as well as an appellate determination that judicial discretion below has been abused.

In all fairness to the trial judge, I do not think the case should be remanded for reconsideration without giving the judge below some guidelines as to what we would affirm. It can be presumed that he was aware of the general law which we cite and believed that his award of alimony comported with it. In my opinion an award of periodic rehabilitative alimony substantially equivalent to that in the temporary support order of September 26, 1974, would be supported by the evidence and within judicial discretion.

I would also reverse the award of $35,000.00 attorneys fees for the simple reason that it was in part based upon the excessive results her attorney achieved in the trial court but which we reverse here today.

      . The final judgment reflects an award of $750 per month for the minor child born' during the marriage; a direction to deliver to the wife title to a 1973 Cadillac automobile in possession of the wife; and a direction to the husband to relinquish any interest in a 14-piece set of matched luggage all of which matters are not disputed by the parties in this appeal.

      . As the Supreme Court aptly observed in Kahn v. Kahn, 78 So.2d 367, 368 (Fla.1955) : “We do not construe the marriage status, once achieved, as conferring on the former wife of a ship-wrecked marriage the right to live a life of veritable ease with no effort and little incentive on her part to apply such talent as she may possess to making her own way. . . . ”

      . In particular, we find no error in the additional child support award requiring the husband to pay all medical, dental and orthodontic expenses incurred until the minor reaches his majority or is otherwise emanici-pated; nor do we find error in the award of attorney’s fees,


author: SMITH, Judge. BOYER, Chief Judge

text:
    Hinson BOYD, Appellant, v. Mabel LANE, Appellee.
    No. X-50.
    District Court of Appeal of Florida, First District.
    June 16, 1976.
    Rehearing Denied Aug. 11, 1976.
    D. Chanslor Howell, of Howell & Deas, Jacksonville, for appellant.

      Albín C. Thompson, Jr., and Joseph M. Ripley, Jr., Fernandina Beach, for appellee.
   SMITH, Judge.

After a trial without a jury, the circuit court found that appellee Lane and those whose prior possession of the disputed land inured to her benefit had satisfied all requisites for the acquisition of title by adverse possession without color of title. Lane was thus found to have acquired title prior to June 5, 1939, when payment of taxes became an essential element of such claims. Ch. 19S24, § 1, Fla.Laws 1939; as amended, § 95.18(1), F.S.1975. The case is governed by § 4656, C.G.L.1927. Defendant Boyd appeals from the judgment, asserting that the land claimed adversely was not sufficiently identified by the evidence and that the adversity of Lane’s claim was not proved. There was substantial competent evidence supporting Lane’s claim and the trial court’s finding that she and those with whom she was in privity actually occupied and claimed adversely the triangular parcel in question, and that it was substantially enclosed by fences built first of rails and then of wire. Irrespective of any irregularities in the description of the property by Lane’s complaint or in the survey map offered in evidence, the fence line which bound the property for five decades was ascertainable at the time of trial. There was no error in preparing an accurate description of the property from the then known or ascertainable boundary markers on the ground.

AFFIRMED.

RAWLS, J., concurs.

BOYER, C. J., dissents.

BOYER, Chief Judge

(dissenting).

I respectfully dissent.

From a final judgment determining that appellee (plaintiff in the trial court) had established title by adverse possession to a triangular parcel of property in Nassau County, Florida, this appeal was taken.

Government Lot 1 and Government Lot 2 are adjacent to one another and both are located in Section 32, Township 1 South, Range 23 East, in Nassau County, Florida. Lot 1 is in the northeasterly corner of said Section 32. It is bounded on the west by the easterly boundary of Lot 2. However, Lot 2 is much larger than, and has a longer north-sound boundary than, Lot 1. Lot 1 is owned by appellee Mabel Lane. Although the record is not clear as to how much of Lot 2 is owned by appellant Hin-son Boyd or David Hunt, it is apparent that they, or one of them, claim to be the record owners of the easterly portion thereof, being the only part material to this controversy.

The plaintiff’s Third Amended Complaint alleged plaintiff to be in actual possession of a portion of Lot 2, described by metes and bounds (but not by monuments) and further alleged that such possession has ripened into ownership by reason of adverse possession. In order to sustain the Third Amended Complaint as stating a cause of action the trial judge ruled (the plaintiff acquiescing) that inasmuch as plaintiff claimed no record title and had not paid the requisite taxes on the subject property prior to delinquency, it was necessary that the plaintiff’s possession have ripened into title prior to June 5, 1939, the effective date of F.S. 95.18 and F.S. 95.19.

It is readily apparent that in order for adverse possession without color of title to ripen into title under the applicable statutes the evidence must establish (1) actual continued occupation (2) for seven years (3) of premises (4) under a claim of title exclusive of any other right. Further, the premises actually occupied, and no other, is deemed to have been held adversely.

The law applicable to acquisition of title by adverse possession is thoroughly discussed in this Court’s opinion in Orange Blossom Hills, Inc. v. Kearsley, Fla.App. 1st 1974, 299 So.2d 75, and no useful purpose will be served by repetition here. Also often stated are the principles of law requiring that a presumption of correctness be accorded the actions of a trial judge, particularly when sitting as a trier of the facts, and recognizing his exclusive prerogative to weigh the evidence and judge the credibility of witnesses. The findings of a trial judge may not be disturbed on appeal if supported in the record by any credible evidence. However, a trial judge, like a jury, is prohibited from speculation and conjecture and his findings must have some basis in the record.

Appellant first urges that the evidence does not sustain the finding that appellee went into possession prior to June 5, 1932. (Seven years prior to the effective date of F.S. 95.18 and F.S. 95.19) Although the evidence is conflicting and contradictory a review of the record reveals sufficient evidence, which the trial judge apparently believed, to sustain such a finding.

The record does not, however, reveal that the plaintiff’s possession was in fact adverse. On the contrary, the plaintiff herself testified that although she and her husband (now deceased) when into possession of Lot 1 and the property in dispute (which was apparently thought and considered to be a part of Lot 1) in 1931 or 1932 they went into possession pursuant to a “bargain” to purchase the property from relatives of plaintiff’s husband and it wasn’t until 1939 that such agreement was consummated and a deed executed. In the meantime the plaintiff and her husband were claiming as tenants in common with his several siblings and not adversely to them and there is no evidence that those siblings were claiming the subject property adversely to the record owner.

Finally, the evidence is deficient in describing “the premises so actually occupied”. As above mentioned, the property claimed by the plaintiff is specifically described in her Third Amended Complaint by a metes and bounds description containing no monument references. Although a map of a survey prepared by a registered land surveyor was introduced into evidence which revealed a triangular parcel of property in Government Lot 2 adjacent to Government Lot 1, the surveyor, called as a witness by plaintiff, testified that there were discrepancies between the legal description contained in the Third Amended Complaint and that of the triangular parcel as revealed by the survey, and none of the witnesses who testified could definitely establish any of the corners or lines appearing on the survey as being the boundaries of the property claimed to have been adversely possessed by the plaintiff. I am not unmindful that numerous lay witnesses, including the plaintiff herself, attempted to identify the boundaries of the plaintiff’s allegedly claimed property as having been established by an old rail fence which burned in 1931 and was thereafter partially replaced by a wire fence. However, none of those witnesses could state with any degree of accuracy the location of the rail fence or the wire fence which replaced it in relation to either the survey in evidence or the description contained in the Third Amended Complaint. I do not contend that a precise survey description reduced to degrees, minutes and seconds is a necessary requisite to establishing boundaries for the purpose of adverse possession, nor do I urge testimony of lay witnesses to be insufficient for such purposes. However, the evidence, whether adduced from layman or expert, must establish ascertainable boundaries by reference to either a metes and bounds legal description or ascertainable objects, monuments or boundaries so that the extent of the claimed property may be determined. Notwithstanding the recitation in the majority opinion that “the fence line which bound the property for five decades was ascertainable at the time of trial” a reading of the entire record in this case reveals no such evidence. Not one single witness identified the property bounded by the fence as being the property described in the Third Amended Complaint nor as the property ultimately described in the final judgment here appealed. The record reveals that appellee claimed a triangular parcel of property somewhere which at one time had been bounded by a rail fence a portion of which rail fence was replaced by a wire fence after the rail fence burned: But there is no evidence identifying such triangular parcel of property as being that awarded to appellee by the able and learned trial judge.

I would reverse.

      . Subsection one provided: “Where it shall appear that there has been an actual continued occupation for seven years of premises under a claim of title exclusive of any other right, but not founded upon a written instrument, or a judgment or decree, the premises so actually occupied, and no other, shall be deemed to have been held adversely.” Subsection two provided in part that “land shall be deemed to have been possessed and occupied . . . [w]here it has been protected by substantial enclosure.

      . The identity of the record title owner is neither alleged nor proved. The Third Amended Complaint names David Hunt and Hinson Boyd as defendants and alleges that Boyd “claims and asserts an interest therein adverse to the Plaintiff.” There is no further mention of Hunt. The Record-on-Appeal contains no answer by Hunt, but the Answer of Boyd recites “This Defendant admits that he claims title to a portion of the land that the Plaintiff attempts to describe in * * * said Third Amended Complaint, * * The briefs, too, are silent on the point. However, upon being asked by her attorney: “This piece of property, as I understand, is in dispute between you and Mr. Hunt and Mr. Boyd?” The plaintiff responded “Tes sir.” The Notice of Appeal, though the style contains the name David Hunt, purports to be by Hinson Boyd only.

      .Prior to June 5, 1939, the governing law applicable to adverse possession without color of title was Section 1722, Chapter 26, General Statutes, 1906, which provided in material part as follows:

        “Adverse possession without color of title.— 1. To be Land in Actual Occupation Only.— Where it shall appear that there has been an actual continued occupation for seven years of premises under a claim of title exclusive of any other right, but not founded upon a written instrument or a judgment or decree, the premises so actually occupied, and no other, shall be deemed to have been held adversely.”
      Paragraph 2 defined the “Occupation and Possession Required” as being:
      “2. Definition of Occupation and Possession Required. — For the purpose of constituting an adverse possession by a person claiming title or decree, land shall be deemed to have been possessed and occupied in the following cases only: 1. Where it has been protected by a substantial enclosure ; or, 2, where it has been usually cultivated or improved.”

      . Snedaker v. Snedaker, Fla.App.1st 1976, 327 So.2d 72.

      . The deed did not describe the subject property and was not recorded until March of 1940.

      . Section 1722, Chapter 26, General Statutes, supra. See also Okeechobee Co. for the use and benefit of Highsmith v. Norton, 145 Fla. 417, 199 So. 319; J. C. Vereen & Sons v. Houser, 123 Fla. 641, 167 So. 45 and Orange Blossom Hills, Inc. v. Kearsley, supra.


author: MILLS, Judge. BOYER, Chief Judge

text:
    David K. MacCULLEY et al., Appellants (Defendants), v. FIDELITY FEDERAL SAVINGS AND LOAN ASSOCIATION OF OCALA and Century Federal Savings and Loan Association of Ormond Beach, Appellees (Plaintiffs).
    No. Y-197.
    District Court of Appeal of Florida, First District.
    July 15, 1976.
    Rehearing Denied Aug. 11, 1976.

      C. Ray Greene, Jr., of Greene, Greene, Smith & Davenport, Jacksonville, for appellants.
    Young J. Simmons of Green, Simmons & Green, Ocala, for appellees.
   MILLS, Judge.

This is an appeal from a final judgment assessing a deficiency against the defendants under a guarantee agreement in a mortgage foreclosure action.

The defendants contend that the agreement is ambiguous; that all ambiguities should be resolved against the plaintiffs who prepared the agreement; that parol evidence is admissible to explain the ambiguous terms; that the court entered a deficiency in an amount in excess of the limitations set forth in the agreement; and that the court erred in entering a deficiency against them because possession of the mortgaged premises was delivered to plaintiffs prior to the filing of the foreclosure action.

On 13 April 1973, plaintiffs issued a commitment to lend Elm Investments, Inc., $1,040,000.00 to construct a motel. Paragraph 13(d) of the commitment letter provided :

“In addition, if the Borrower is a Corporation, the Association shall require the personal endorsement of the Promissory Note by all principals of the borrowing Corporation and their spouses at the time of the loan closing.”

As a result of negotiations between the parties, the following paragraph was substituted for paragraph 13(d):

“You will be required to pay the premium for insuring the mortgage loan with AMI Commercial Insurance Company, this loan commitment being specifically contingent upon your obtaining insurance with AMI or other insurance company acceptable to the Association insuring at least the top twenty per cent (20%) of the amount of the loan, and further, that the principals (David K. MacCulley, A1 H. Edwards and Izaac L. Levy) shall personally guarantee the next 10% of the loan on a guarantee form prepared by the Association.”

In August the loan was closed and construction was commenced. Elm executed the note and mortgage, and the defendants executed the guarantee agreement. The pertinent parts of the agreement provide:

“1. Guarantors are principals of Elm and this guarantee is made pursuant to paragraph one of Exhibit “B” of commitment issued by Lenders to Elm dated April 13,1973.
“2. Elm has received the commitment for insurance mentioned in said paragraph from American Mortgage Insur-anee Company, P.O. Box 27387, Raleigh, North Carolina.
“3. The Guarantors do hereby unconditionally guarantee payment, in the event of default by Elm, of the next 10% of said loan not insured by the American Mortgage Insurance commitment, it being understood that said commitment insures the top 20% of the $1,040,000.00 loan by Lenders to Elm; Guarantors further agree to pay all interest, costs, expenses and reasonable attorneys’ fees if necessary to enforce the terms of this guarantee agreement.
“4. Within the limitations expressed in the preceding paragraph, it is the intention of this agreement to make the Guarantors personally liable, not as a surety nor as an endorser, but as a party, directly and primarily liable and Guarantors agree that in event of default by Elm Lenders may immediately and directly pursue any remedy against Guarantors they may have under the laws of the State of Florida.
“5. This guarantee shall continue in full force and effect from the date hereof until the principal balance under said loan shall be reduced to $728,000.00.”

At the closing of the loan, the first year’s premium on the insurance was deducted. However, the policy was never issued because Elm failed and refused to furnish the motel for operation which was a requirement for the issuance of the policy.

On 24 May 1974, Elm surrendered possession of the mortgaged premises to plaintiffs. On 17 June, plaintiffs commenced foreclosure proceedings against Elm as mortgagor, and the defendants as guarantors. As defenses, defendants alleged that the agreement was invalid because the insurance policy was never issued, and that plaintiffs abandoned any other remedy by repossessing the mortgaged premises.

Final judgment of foreclosure was entered for plaintiffs. Plaintiffs were the sole bidders at the sale with a bid of $700,000.00.

There were no objections to the sale and a certificate of sale was issued vesting title in plaintiffs.

Plaintiffs then moved the court for assessment of a deficiency judgment against the defendants. The court assessed a deficiency judgment against the defendants and that led to this appeal.

The agreement is not ambiguous. The loss commitment provided that if the borrower (Elm) was a corporation (it was), all principals of the corporation (defendants) and their spouses must personally endorse the note at the loan closing. Pursuant to negotiations, and in order to relieve the defendants and their spouses from this obligation, it was agreed that Elm would obtain insurance to insure the payment of the top twenty percent of the loan, and in the event of a default by Elm, the defendants unconditionally guaranteed payment of the next ten percent of the loan. It was further agreed that the guarantee was to continue in force until the loan was reduced to $728,000.00. Defendants pose the question, “What is meant by these terms?” They mean just what they say. It is clear that the top twenty percent of the loan, which was $1,040,000.00 is $208,000.00, and that the next ten percent of the loan is $104,000.00. This is borne out by the provision that the guarantee was to continue until the loan was reduced to $728,000.00. If the $208,000.00 and $104,000.00 payments had been made, the loan would have been reduced to $728,000.-00. Elm defaulted and did not make the $208,000.00 payment. Nor did it insure this payment as agreed. Because of the defaults of Elm, the defendants, as guarantors, became responsible under the agreement. There being no ambiguous terms in the agreement, parol evidence was not admissible.

The final judgment of foreclosure provided that Elm owed plaintiffs the sum of $1,147,538.87, which included $1,038,461.29 principal, $71,106.62 interest as of 9 December 1974, $7,970.96 costs, and $30,000.00 attorneys’ fees. At the foreclosure sale, the property sold for $700,000.00. Sale costs amounted to $2,891.00. Plaintiffs moved the court to assess a deficiency of $345,128.96 against the defendants which was thirty percent of the judgment of $1,147,538.87 plus costs of $2,891.00. By its judgment, the court found the deficiency to be $345,128.96.

Defendants contend that under paragraph 5 of the agreement they owe no deficiency, because after deducting the $700,000.00 sale price from the amount of the foreclosure judgment, the guarantee is no longer effective, because the principal amount of the loan would be under $728,000.00. In the alternative, defendants contend that under paragraph 3 of the agreement the deficiency entered against them should be no more than ten percent of $1,040,000.00 or $104,000.00, or no more than ten percent of $832,000.00 (sum remaining after deducting twenty percent from principal amount of loan) or $83,200.00.

The contention that the court erred in entering a deficiency is without merit. The defendants never reduced the principal balance of the loan to $728,000.00. The principal balance of the loan was not reduced until the property was sold at the foreclosure sale.

We agree, however, that under paragraph 3 of the agreement, the deficiency entered against defendants should-be no more than 10% of $1,040,000.00 plus interest, costs, expenses and reasonable attorney’s fees necessary to enforce the terms of the agreement. The terms of paragraph 3 are crystal clear. Elm Corporation was responsible for obtaining insurance for the top 20% of the amount of the loan while defendants, as guarantors, obligated themselves for the next 10%. Paragraph 3 of the guaranty agreement closely tracks the language found in substituted paragraph 13(d) of the loan commitment letter. Had the parties contemplated that defendants be personally liable for the top 30% of the loan, they could have expressly so provided. Therefore, the trial court erred in assessing a deficiency against defendants which totaled 30% of the judgment plus costs. The deficiency should be reduced, according to the terms of paragraph 3 of the guaranty agreement.

Finally, although Elm returned the mortgaged premises to plaintiffs after its default, and prior to the filing of the foreclosure action, this did not preclude the entry of the deficiency judgment. Not only was this a voluntary act by Elm, but the defendants, principals of Elm, should not be permitted to take advantage of the wrongs committed by Elm.

Affirmed in part; reversed in part, with directions.

SACK, MARTIN, Associate Judge, concurs.

BOYER, C. J., dissents.

BOYER, Chief Judge

(dissenting).

The record clearly reflects that all parties were sophisticated in business affairs. It is also clear that the lending banks intended, to make the loan which gave rise to the mortgage here involved to the corporation (Elm) and not to the individuals. All obligations, liabilities and responsibilities, except those created by the personal guaranty, are those of the corporations involved. The individuals (being the individual appellants in this case) have no responsibilities, liabilities nor obligations except those specifically provided in the personal guaranty. Indeed, appellees do not contend nor argue otherwise. The individuals did not, in their individual capacities, agree nor undertake to obtain mortgage insurance insuring the payment of any portion of Elm’s indebtedness to appellees. Only Elm agreed to procure such insurance and its default in that regard in no manner altered the obligations of the individuals. The sole obligation of the individuals was a conditional guaranty to pay 10% of Elm’s indebtedness to appellees. Even that obligation was limited by the terms of the written guaranty. The “corporate veil” was not pierced. There was no attempt to pierce it. The corporation is a distinct entity apart and separate from its principals. I therefore concur that the maximum amount for which the individual appellants could have been held responsible, under any circumstances, was 10% of the corporate obligation to appellees.

However, as above noted, the individuals’ obligation to pay any amount was limited by the last paragraph of the written guaranty agreement. That paragraph provides as follows:

“This guarantee shall continue in full force and effect from the date hereof until the principal balance under said loan shall be reduced to $728,000.”

It will be noted that the above quoted paragraph does not require that the principal balance be reduced by appellants, nor is there any requirement that it be reduced in any particular manner.

The final judgment of foreclosure found the total amount of the indebtedness owed to appellees to be in the sum of $1,147,538.-87. Pursuant to that final judgment the mortgaged property was sold to the highest and best bidder for the sum of $700,000. It makes no difference that the appellees were the highest and best bidders and therefore the purchasers at the foreclosure sale. As a result of the foreclosure the amount owed on the loan was reduced to something in excess of $300,000, which sum is substantially under the $728,000 recited in the above quoted provision in the written guaranty agreement. It was after the foreclosure sale and after the application of the proceeds from the foreclosure sale that the deficiency judgment giving rise to the appeal sub judice was entered. At that time, as above observed, the balance of Elm’s obligation to appellees “the principal balance under said loan” had been reduced to a sum substantially less than $728,000.

The record reveals that the written instrument was the work product of appel-lees. Had it been appellees’ intention to release the individuals from any obligation pursuant to the guaranty agreement only after appellees had been paid a sum sufficient to reduce the obligation to $728,000 it would have been a simple matter to have so stated. The agreement makes no mention of payment. Appellees now urge however that such was the intention of the parties. If such be true then clearly the written agreement is ambiguous and parol evidence should have been admitted to explain the intention of the parties. Appel-lees are impaled on the horns of a dilemma. If the written guaranty means what it says then the individual appellants’ obligations thereunder ceased when the balance was reduced to a figure below $728,000. If the agreement does not mean what it says and if such was not the intention of the parties, then parol evidence should have been admitted in an attempt to explain the patent ambiguity. In my view, the guaranty is ambiguous. An ambiguous writing is one which is subject to different interpretations by two disinterested and reasonable persons. Judge Mills and I are both disinterested and are both reasonable. We interpret the instrument differently. A fortiori it is ambiguous.

Regardless upon which horn of the dilemma appellee seeks to repose, in my view reversal is required.


author: PER CURIAM. WALDEN, Judge

text:
    Ida NICHOLSON, Appellant, v. Lorne NICHOLSON, Appellee.
    No. 75-2105.
    District Court of Appeal of Florida, Fourth District.
    July 23, 1976.
    Peter N. Hanna, Fort Lauderdale, for appellant.
    William M. Cobb of Sullivan, Cobb & Petersen, Vero Beach, for appellee.
   PER CURIAM.

Affirmed.

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

WALDEN, J., dissents with opinion.

WALDEN, Judge

(dissenting):

In my opinion the wife-appellant is entitled to special equity substantially larger than was awarded to her. On this account the trial court abused its discretion and should be reversed.


author: BOARDMAN, Acting Chief Judge.

text:
    CITY OF ST. PETERSBURG, a Municipal Corporation, and Political Subdivision of the State of Florida, Appellant, v. James R. NORRIS et al., Appellees.
    No. 75-1751.
    District Court of Appeal of Florida, Second District.
    June 30, 1976.
    Rehearing Denied July 23, 1976.
    Carl R. Linn, City Atty., St. Petersburg, for appellant.
    Michael H. Gora, of Wolff, Gora & Panza, Fort Lauderdale, for appellees.
   BOARDMAN, Acting Chief Judge.

In this interlocutory appeal, appellant/defendant asserts that the trial court erred in denying its motion for summary judgment. We agree and reverse.

The appellees/plaintiffs, on behalf of themselves . and fellow police officers, claimed to be entitled to overtime wages for the years 1968 through 1972. Appellees filed an amended complaint against the appellant city seeking declaratory relief including money damages and an accounting: Appellees alleged that beginning May 6, 1968, hourly employees of the city, such as sanitation workers, were paid time and one-half for all hours in excess of 40 per week while other city employees, including the appellees who were paid on a biweekly basis, received either compensatory time off or regular rate of pay for their overtime work. Stating that the sanitation workers and police officers had been grouped in similar job classifications under the civil service regulations dating back to 1937, ap-pellees contended that the city’s differential in pay rate between its police and sanitation'workers was, therefore, discriminatory and constituted an arbitrary, capricious and unreasonable classification. The appellant city denied all material allegations in the appellees’ amended complaint and filed affirmative defenses of statute of limitations, estoppel and laches. In view of the merit we find in the appellant city’s asserted defense of laches, we do not reach the discrimination issue.

We mention that we are well aware of the law established in prior cases that on a motion for summary judgment the burden is on the moving party to show absence of any genuine issue as to any material fact, and that all doubts and inferences must be resolved against the movant. See Holl v. Talcott, Fla.1966, 191 So.2d 40; Booth v. Mary Carter Paint Co., Fla.App.2d, 1966, 182 So.2d 292. We believe that the appellant has met its required burden of proof. In the pretrial conference order, the judge determined that:

5. The parties stipulated the following facts: Authenticity of documents attached to Complaint (Request for Admission). That this trial is to determine liability of City for overtime, if found, accounting may be stipulated or trial held on amount of wages.
******
18. Other aids to expedite case: Trial on liability alone since accounting is near impossibility and should not be done until liability, if any, is determined and appeal, if any is determined.

Upon review of the record, including the briefs, pleadings, affidavits, exhibits, stipulations and oral arguments of counsel, we hold that this case in its present posture is a proper one for final disposition on grounds of laches. After a careful consideration of all the forms of evidence, we believe that reasonable men would not draw conflicting inferences of fact as to the severe impact and financial dilemma that would result to the city treasury and, as a consequence, to the taxpayers of the city, should appellant be required to pay overtime compensation for periods prior to the fiscal year when the claims were asserted. See Baskin v. Griffith, Fla.App.1st, 1961, 127 So.2d 467. The city must appropriate sums annually for prospective financial needs of the municipality and at that time must adopt the revenue measures necessary to fund those requirements. Although we thoroughly recognize that the issue presented here is one of great economic importance to a group of highly dedicated public servants, the prejudice caused to the City of St. Petersburg by the delay in bringing this suit is overwhelming and cannot be regarded as insignificant. See Van Meter v. Kelsey, Fla.1956, 91 So.2d 327; Reed v. Fain, Fla.App.2d, 1960, 122 So.2d 322.

Additionally, the law is well established that the statute of limitations may be used as a guide in considering whether lach-es bars a cause of action in equity. See, e. g., H. K. L. Realty Corporation v. Kirtley, Fla.1954, 74 So.2d 876. The applicable statute here, Fla.Stat. § 95.11(7)(b), (1973), states that:

. [a]ctions other than those for the recovery of real property can only be commenced as follows:
******
(7) Within one year. ******
(b) Suits for the recovery of wages, overtime, or damages and penalties accruing under laws respecting the payment of wages and overtime.

Appellees, who did not assert their claim until six years after the first contested pay period in 1968 and almost one and one-half years after the last in 1972, have failed to point to any equitable considerations to justify that delay. Appellees delayed in asserting their rights and, under the particular circumstances of this case, prejudice would result to the appellant if appellees were granted the prayed for relief. Therefore, this action is barred by laches.

REVERSED and REMANDED with directions to the trial court to enter a final summary judgment in favor of the appellant, City of St. Petersburg.

GRIMES and SCHEB, JJ., concur.

      . We are aware that the present statute now •allows such action to be filed within two years.


author: SCHEB, Judge.

text:
    LAKE WALES PUBLISHING COMPANY, INC., Appellant, v. FLORIDA VISITOR, INC., et al., Appellees.
    No. 75-1733.
    District Court of Appeal of Florida, Second District.
    July 14, 1976.
    Ira A. Serebrin, Lakeland, for appellant.
    Ted A. Lasseigne, Haines City, for appel-lees.
   SCHEB, Judge.

This case concerns a contract entered into by the plaintiff/appellant in 1971 to compile, edit and publish certain pamphlets and other printed materials for the defendants/appellees. The issue is whether the contract was subject to the three-year statute of limitations governing unwritten contracts (F.S. § 95.11(5)(e) (1973)), or the four-year statute under the Uniform Commercial Code (F.S. § 672.2-725 (1973)), effectively transferred to Fla.Stat. § 95.11(3)(k) (1975) as of January 1, 1975.

Appellant filed suit on January 15, 1975. The trial court dismissed the appellant’s second amended complaint with prejudice on grounds that its action was barred by the three-year statute of limitations in Fla. Stat. § 95.11(5)(e) (1973). This appeal ensued. We reverse.

If the 1971 contract was for the sale of “goods,” then appellant which filed suit on January 15, 1975, was entitled to the benefit of the four-year U.C.C. statute effectively continued by § 95.11(3Xk) (1975), since the U.C.C. limitation period generally prevails over that contained in a general statute of limitations. See Official Comment to U.C.C. § 2-725.

We focus then on whether the printed materials which appellant allegedly furnished to appellee were “goods” under the U.C.C., Fla.Stat. § 672.2-105(1), which defines “goods” as:

“. . . all things (including specially manufactured goods) which are movable at the time of identification to the contract for sale other than the money in which the price is to be paid, investment securities (chapter 678) and things in action.”

The specific point has not been passed on by the Florida courts; however, the Official Comment to U.C.C. § 2-105 states that the definition of goods is based upon the concept of their movability. The items allegedly furnished by the appellant were specially produced or manufactured and were movable. Moreover, any services rendered were of necessity directed to production of the items.

While there is a paucity of cases construing the definition of “goods” under the U.C.C., the instant case is somewhat analogous to the situation in Carpel v. Saget Studios, Inc., E.D.Pa.1971, 326 F.Supp. 1331. There, an action for breach of contract was filed against a photographer for his failure to take pictures of the plaintiff’s wedding. In determining the correct measure of damages, the court held that the contract breached by the defendant was one for the sale of “goods.”

We conclude that production of printed pamphlets and related materials are goods within the meaning of U.C.C. and that appellant’s action was therefore governed by the four-year statute of limitations.

Accordingly, the order of the trial court is reversed and the cause remanded for further proceedings consistent with this opinion.

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

      . The 1975 statute made a four-year limitations period applicable to all contracts, and Fla.Stat. § 672.2-725'was repealed as superfluous.


author: PER CURIAM. BOARDMAN, Judge

text:
    Lawrence LEWIS, Appellant, v. STATE of Florida, Appellee.
    Nos. 74-1451 to 74-1453, 75-1181 to 75-1183.
    District Court of Appeal of Florida, Second District.
    July 16, 1976.

      Franklyn Wollett for Crockett Farnell of Nixon & Farnell, Clearwater, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant was charged in four separate informations with (1) assault with intent to commit murder in the first degree on Michael Childs; (2) aggravated assault on James Waterman; (3) aggravated assault on Vicki Byrge; (4) aggravated assault on Dale St. Amant. The four cases were consolidated for jury trial. Appellant was convicted of aggravated assault on Childs and assault and battery on Byrge and St. Am-ant. He was acquitted of the charge against Waterman. This timely appeal followed.

The offenses arose out of one incident occurring on July 9, 1974, at Room 128 of the Holiday Inn in Madeira Beach, Florida. In the room that evening were the four victims and several other persons. The group was sitting around drinking a few beers when appellant and Robert Somers entered the room. Appellant was armed, and several persons testified that he fired two shots at Childs. Byrge, St. Amant and Waterman were all injured by the ricochet of flying debris from the firing of appellant’s weapon.

On behalf of the defense, Robert Somers testified that there had been bad blood between Childs and the appellant. He said that Childs had asked him to arrange for appellant to come to Room 128 so that they could patch things up. Appellant finally agreed to go, but he took a gun with him to protect himself. Somers said that as soon as they entered the room Childs advanced toward the appellant with a gun threatening to get him. He said that it looked as though appellant was going to shake hands with Childs when one of the other occupants of the room grabbed the appellant, and the next thing he knew a shot was fired. The other occupants of the room denied that Childs had a gun. Appellant did not testify.

The main thrust of appellant’s case was that he was only defending himself from Childs rather than being the aggressor. «To support his theory of self-defense, the appellant sought to introduce evidence of pri- or threats and acts of violence by Childs against him which would tend to prove the reasonableness of his apprehension and fear of Childs at the time of the incident. However, the court refused to permit certain witnesses to testify concerning the threats Childs had allegedly made against appellant which were communicated to the appellant prior to the night of the shooting.

Thus, the testimony of Barbara Barrows, a cocktail waitress at the Holiday Inn, was rejected as being too remote following a proffer in the absence of the jury. Ms. Barrows said that on the night of May 29, 1974, she heard Childs calling the appellant names and saying that he was going to get him. Then, Childs handed her a gun and told her to keep it for him. When he returned for the gun, he told her not to say anything about it. At one point while Childs was making threats against the appellant, Ms. Barrows said to him, “Come on, Mike, why don’t you go home?” She said that Mike responded, “You think I am kidding? In a little while you are going to find out I’m not kidding.” Shortly thereafter, the appellant’s automobile was burned. Later that night, Ms. Barrows saw the appellant at a diner having breakfast and told him about Childs’ threats. At about this time, Childs came to the diner and he and the appellant became engaged in a fight.

According to her proffer, Christine La-Tour said that she had worked at the Holiday Inn during the daytime shift on May 29, 1974. About 5:00 p. m. she testified that she overheard Childs make the following statement over the telephone: “Thank you for doing this favor for me. I owe you. I will get in touch with you later.” He then hung up and turned around to her and commented, “Well, after tonight you won’t have to worry about Larry anymore again.” When she asked him what he meant, he said, “He is all taken care of, he won’t be around after tonight.” Shortly thereafter, she telephoned appellant and told him of this conversation. Appellant’s (Larry’s) car was burned that evening.

In Williams v. State, Fla.App.4th, 1971, 252 So.2d 243, the court carefully reviewed prior cases involving the admissibility of specific acts of violence by the deceased which are known to the defendant in connection with a plea of self-defense. The court held:

“On the basis of the foregoing authority, we conclude that where a proper predicate is laid by the showing of some overt act by the deceased at or about the time of the slaying that reasonably indicated a need for action by the defendant in self-defense, evidence of prior specific acts of violence by the deceased known to the defendant at the time of the slaying may be admitted for the limited purpose of proving the reasonableness of the defendant’s apprehension at the time of the slaying. . . . ”

In an earlier decision, our court held that the defendant should have been permitted to testify of a threat made to her by the murder victim a month before the shooting where there was some evidence of a hostile demonstration on the part of the victim just prior to the shooting which would tend to show that the defendant was in imminent danger. Parrish v. State, Fla.App.2d, 1959, 113 So.2d 860. Later, we gave Williams our stamp of approval in holding that evidence of the victim’s specific prior acts of violence if known to the defendant at the time of the offense may be admitted not to demonstrate the probability that the victim was, in fact, the aggressor, but rather to show the reasonableness of the defendant’s alleged apprehension of the victim. Henry v. State, Fla.App.2d, 1974, 290 So.2d 73.

In the instant case, Somers’ testimony concerning an overt act by Childs directed toward the appellant immediately prior to the shooting provided the predicate necessary for the admissibility of this evidence. The threats were communicated to the appellant, and we cannot see how the six weeks interval between May 29 and July 9 could make Childs’ conduct too remote. Moreover, unlike many of the cases involving this question, the victim, Childs, actually testified on behalf of the state. Therefore, the proffered evidence also tended to impeach Childs’ credibility by showing bias on his part. We hold that the court erred in refusing to admit the proffered testimony of Barrows and LaTour. Once this testimony was introduced, the opinion of the Madeira Beach Fire Chief that the burning of the appellant’s car was arson would have been relevant and should also have been admitted.

We further believe that the court unduly restricted the cross-examination of Childs, the state’s chief witness. The court refused to permit appellant’s counsel to ask Childs about any threats made by him against the appellant prior to the night of the shooting and refused to allow him to be examined concerning the alleged burning of the appellant’s car. Even if such testimony was not admissible on the issue of self-defense because at this point in the trial Som-ers had not yet testified to an overt act on the part of Childs immediately prior to the shooting, appellant’s counsel should have been permitted to attempt to demonstrate the bias and hostility of Childs against the appellant. In Vaughn v. State, 1906, 52 Fla. 122, 41 So. 881, our Supreme Court held that it was error to refuse to permit the state’s leading witness to be asked upon cross-examination whether he had previously threatened to kill the defendant, and the court said:

“. . . The defendant had the right on his cross-examination to show the animus of this witness towards him, and the witness’ threats, if any were made, bore directly upon the question of his animus towards the defendant, and thereby affected the witness’ credibility. . . . ”

S. Gard, Florida Evidence (5th ed. 1967) states the proposition as follows:

“RULE 465. Cross-Examination to Show Interest, Bias, and Prejudice
It is relevant and proper on cross-examination to inquire into the motives, bias, prejudice, or interest of the witness as affecting his credibility, and the matters inquired about in this connection may be extrinsic to the subject matter of the direct examination.”

See 62 A.L.R.2d 610 at page 661.

Had Childs denied the burning of appellant’s automobile, the proffered testimony of Gerald Tirano that Childs had admitted to him that he had paid $500 to have appellant’s car burned would have then been admissible to impeach Childs even though Tirano did not inform the appellant of this admission.

The final point which must be considered bears on the appellant’s efforts to show that subsequent to the shooting Childs allegedly told Somers that he would have the charges dropped against the appellant in exchange for a large sum of money. Childs admitted that the conversation took place but denied that he was the offering party. Appellant then attempted to introduce a tape recording of the conversation into evidence to impeach the testimony of Childs.

Appellant’s investigator, Abe Narnia, had wired Somers prior to the conversation and recorded the conversation on the tape. However, the conversation took place inside a bar while Narnia was outside. Therefore, Narnia never saw Childs. Consequently, Narnia could only assume that the “Mike” referred to by Somers in the conversation was, in fact, Childs. After listening to the tape, the court refused to allow it to be admitted for several reasons. First, the court felt that it was inadmissible because Narnia could not identify Childs’ voice except through Somers. The court also felt that the tape had no probative value because it was subject to being construed favorably to the versions of both parties to the conversation. Finally, the court observed that appellant’s counsel had failed to properly produce the tape for examination by the state prior to the trial pursuant to RCP 3.220.

In Gomien v. State, Fla.App.3d, 1965, 172 So.2d 511, the court held that a sound recording is admissible into evidence providing a satisfactory degree of authenticity has been achieved. The court set out four requirements in laying a proper predicate for the admission of the tape, to wit: (1) the operation of the recording device; (2) the method of operating it; (3) the accuracy of the recordings; and (4) the identity of the parties speaking. The court held that the person who was wired and consented to the recording of the conversation could testify as to the identity of the other party so as to satisfy the fourth predicate requirement concerning the identities of the parties speaking. Thus, the fact that Namia could not identify Childs’ voice was not fatal because Somers said that he was talking to Childs. Moreover, Childs admitted that a conversation took place but simply gave a different version of it. Under these circumstances, the taped recording of the conversation should have been admitted. The fact that the recorded conversation was susceptible of more than one interpretation would not preclude its admissibility because it would be up to the members of the jury to place their own interpretation on what was said. There could have hardly been stronger evidence of the conversation than the recording of what was actually said.

In spite of the foregoing, we cannot say that the court erred in refusing to admit the tape for the failure of appellant’s counsel to comply with the requirements of discovery. Upon inquiry concerning possible prejudice, the court might have allowed the introduction of the tape in spite of the discovery violation. See Richardson v. State, Fla.1971, 246 So.2d 771. However, the court did not do so and chose to view the rules violation as an additional ground for refusing to admit the tape. Admitting, then, that the court properly denied the admissibility of the tape, the appellant should have been permitted to introduce the testimony of investigator Namia with respect to what was said. Namia testified that in the course of making the recording, he actually heard the conversation coming through the receiver. Just as with respect to the tape, the problem of Childs’ identity was resolved by Somers’ testimony. Therefore, the testimony of Namia concerning what was said would have been admissible in the same manner as if he had actually been in the presence of the parties and listened to them talking. We do not suggest that Narnia’s testimony should have been admitted if the tape had been allowed into evidence, but once the tape was out of the picture, the jury should have been permitted to hear Narnia’s version of the Childs-Somers conversation.

The other points raised by appellant are without merit. However, the cumulative effect of the errors discussed above was more than enough to taint the verdicts. The defense of self-defense was applicable to all three convictions because according to appellant’s theory he would not have fired any shots if he had not had to defend himself against Childs. See Vaughn v. State, supra. Therefore, the judgments are reversed, and the cases are remanded for a new trial.

McNULTY, C. J., and GRIMES, J., concur.

BOARDMAN, J., dissents with opinion.

BOARDMAN, Judge

(dissenting).

I agree with the majority that the main thrust of appellant’s defense is that he was not the aggressor, but rather was defending himself from an expected attack. However, I have grave doubts that the force exhibited by the appellant and the violence inflicted upon Childs and the other victims on the evening of July 9, 1974, was either justified or warranted; notwithstanding the majority opinion that the proffered testimony of several defense witnesses regarding prior threats by Childs and the introduction of a tape recording regarding an offer by Childs not to testify were admissible.

The state adduced testimony of six witnesses who testified that Childs was clothed in a bathing suit, unarmed and sitting on the floor between twin beds in the motel room. Under these circumstances, Childs cannot be described as an aggressor. In my view, the trial court’s ruling that the evidence excluded was either too remote in time or that the threats had never been communicated to appellant was correct— the evidence should not have been admitted.

The evidence before the jury was sufficient to sustain the conviction. I would, therefore, affirm.


author: McNULTY, Chief Judge.

text:
    LAKE REGION PARADISE ISLAND, INC., Appellant, v. Harold GRAVISS, Appellee.
    No. 75-1070.
    District Court of Appeal of Florida, Second District.
    July 16, 1976.
    Gordon & Maney, Tampa, and Summerlin & Connor, Winter Haven, for appellant.
    Mel R. Martinez of Billings, Frederick, Wooten & Honeywell, Orlando, for appellee.
   McNULTY, Chief Judge.

Defendant/appellant Lake Region appeals an order granting appellee’s motion for a new trial on the issue of damages only. We affirm but for reasons other than those assigned by the trial judge.

Plaintiff/appellee Graviss entered into an employment contract with appellant to manage the mobile home park owned by appellant. In addition to other terms of employment, the contract provided that as of a certain date in the future, and at a price computable from an expressed formula, Graviss could purchase ten percent interest in the mobile home park. Appellant refused to convey the ten percent interest when called upon and this action ensued.

Graviss alleged the default on the part of Lake Region and Lake Region defended on the grounds that the employment contract was indeed breached by Graviss. The jury found for Graviss on the issue of liability and assessed certain damages which Graviss contended below, and contends here, were too low for the reason that the jury patently misconstrued the evidence and the instructions of the court. The trial judge agreed and the order appealed from was entered.

No assault is made here on the jury’s verdict with respect to liability, so we are only concerned with the matter of damages. At trial, it was apparent that a critical question was going to be whether the claimed damages were to be computed as of the date of the breach or as of the date of trial. Accordingly, the defendant Lake Region presented witness Irwin, an expert appraiser, who testified as to the “net equity value” of ten percent of its stock (i. e., ten percent of the value of the trailer park) as of the date of the breach. On cross-examination, Graviss brought out from the expert the “net equity value” of the stock as of the date of trial. “Net equity value” was defined by the expert as:

“. . .an economic term that is really the measure of difference between what something is worth and what it costs. So net equity value . . . is a concept where you find what an item would be worth, market value, deduct the cost of creating that item or acquiring that item, and net equity value is what is left. You might think of it as your profit. .. . ”

The trial judge ultimately charged the jury that the measure of damages should computed as of the date of trial; and it is patent from a colloquy between the foreman of the jury and the court, which occurred during the jury’s deliberations when they returned to the courtroom for additional instructions, and from the verdict itself, that the jury relied entirely on the testimony of Lake Region’s expert Irwin. In awarding the new trial on the issue of damages the trial court was of the view that the jury undercomputed the amount of damages in that, in the light of the expert’s testimony as to “net equity value,” they must have deducted the cost of acquisition of the subject stock twice.

In any case, the amount actually found by the jury was far in excess of the amount testified to by the expert as having been the “net equity value” of the subject stock on the date of the breach. So, since we think the trial court fatally erred in charging the jury that the critical computation date was as of the time of trial rather than as of the date of the breach, we must affirm the granting of a new trial on the issue of damages but for this latter reason.

While there are exceptions, damages for breach of contract are generally to be measured as of the date of the breach, with interest to the date of trial. Under such a rule, fluctuations in value of the matter or thing contracted for after breach do not affect the recovery allowed, the object of the rule being to place the plaintiff in the same position he would have been in had the contract been performed on the date fixed therein for performance. It isn’t unfair to deny audience to a plaintiff who would, if the property increased in value, claim entitlement to the better position now, the time of trial, on the grounds that that’s where he’d be had the vendor performed then, the time of the breach. Whether he would not have “sold off” is too speculative and self-serving to be a viable criterion; and, certainly, if the property decreased in value, he’d be claiming damages as of the time of the breach. The rule is sound, fair and practical. Exceptions to it are not applicable under the facts here.

We comment, now, on the question of what course should be followed when we find ourselves in the unusual posture of agreeing that there should be a new trial on damages but disagreeing with the reasons given by the court below for having the new trial. Former § 59.07(4), Fla.Stat., provided that no grounds other than those specified by the trial judge could be argued upon an appeal from an order granting a new trial. Even though this statute was repealed in 1971, our sister court in Osteen v. Seaboard Coast Line Railroad Company concluded that the underlying reasons for the prohibition still existed, and that therefore appellate review of an order granting a new trial should continue to be confined to the ground on which the order was based.

Giving full vent to this view, we would have to affirm the trial court, because the jury most likely did undercompute the damages, although under the wrong instruction on the law, and we would have to await an appeal from a final judgment entered on a new jury verdict, again, presumably, predicated on an erroneous instruction. At this point we would be back where we started.

Under the peculiar circumstances of this case, and in light of the fact that the statute has been repealed, we believe we are justified in broadening our scope of review to the extent necessary to affirm the order granting the new trial on damages because of the legal necessity of having such a new trial, even though the trial judge’s reasoning was different than ours.

In view whereof, the order appealed from granting a new trial should be, and it is hereby, affirmed for the reasons expressed herein,

BOARDMAN and GRIMES, JJ., concur,

        . See Robinson v. Hyer (1895), 35 Fla. 544, 17 So. 745. See also 22 Am.Jur.2d, Damages § 52 at p. 81.

      . Cf. Maw v. Fay (1924), 248 Mass. 426, 143 N.E. 315, 31 A.L.R. 1176.

      . See Robinson v. Hyer, n. 1, supra.

      . See, e. g., James Wood Trading Establishment v. Coe (S.D.N.Y.1961), 191 F.Supp. 330 rev’d on other grounds, 297 F.2d 651; and Mekrut v. Gould (1959), Sup., 188 N.Y.S.2d 6.

      . (Fla.App.1st, 1973), 283 So.2d 379.


text:
    Donald L. MYRICK and Betty L. Myrick, Appellants, v. SECOND NATIONAL BANK OF CLEARWATER, Appellee.
    No. 76-627.
    District Court of Appeal of Florida, Second District.
    July 16, 1976.

      Harold S. Wilson, Clearwater, for appellants.
    Emil G. Pratesi of Richards, Nodine, Gil-key, Fite, Meyer & Thompson, Clearwater, for appellee.
   SCHEB, Judge.

In this interlocutory appeal, appellants/defendants Donald L. Myrick and Betty L. Myrick, challenge the trial court’s denial of their motion to set aside a levy and cancel the notice of sale of their partnership interest in Port Richey Shopping Village. They contend their rights in the partnership and its property are not subject to levy under Fla.Stat. § 56.061, and can only be reached by the appellee/plaintiff judgment creditor through a charging order under Fla.Stat. § 620.695. We agree and reverse.

Plaintiff Second National Bank of Clear-water sued the defendants in two counts. Count I was an action on four unpaid promissory notes and sought damages from Donald L. Myrick. In Count II, the plaintiff Bank sought damages against Betty L. Myrick as guarantor on those notes. After default the trial court entered a final judgment, as amended on December 4,1975, for $81,348.24 against the defendants. While an appeal from that judgment was underway, the plaintiff instructed the sheriff to levy on the defendants’ interest in the partnership known as Port Richey Shopping Village, a joint venture. On April 19,1976, the trial court denied the Myricks’ motion to set aside the levy and cancel the notice of sale, holding:

“. . . that a partnership interest is property as defined in Florida Statute 56.061, that is subject to levy and sale under execution and that Lott v. Padgett, [153 Fla. 308,] 14 So.2d 669 has not been superseded by the Uniform Partnership Act, and ... is controlling . .”

This appeal ensued.

We think the trial judge’s reliance upon Lott v. Padgett was error. Lott, decided by our Supreme Court in 1943, correctly stated the common law that a debt- or’s interest in a partnership was susceptible to being seized by legal process; however, this doctrine was superseded by adoption of the Uniform Partnership Act (U.P.A.) in 1973. Fla.Stat. § 620.56, et seq. The U.P.A. changed the common law nature of a partnership interest. Under Fla. Stat. § 620.685, a party’s interest in the partnership is personal property; i. e., his share of the profits and all surplus. And § 620.575(3) provides that the new Act shall be interpreted and construed as to make uniform the law of those states which have enacted it; therefore, the maxim of statutory construction that statutes in derogation of the common law are to be strictly construed is inapplicable.

Section 620.695(1) of the act provides:

On application to a court having jurisdiction by any judgment creditor of a partner, the court may charge the interest of the debtor partner with payment of the unsatisfied amount of the judgment with interest, and may then or later appoint a receiver of his share of the profits and of any other money due or to become due to him from the partnership, and make all other orders to take the actions that the debtor partner might have made or that the circumstances of the case may require.

Plaintiff argues that § 620.695 merely furnishes a creditor with an additional remedy and that while specific partnership property may be exempted from execution under a claim against the partnership under § 620.68, that nevertheless the U.P.A. does not limit the rights of creditors with respect to a partner’s interest in the partnership.

The point is one of first impression in Florida since Florida’s adoption of the U.P.A. Section 620.695 is adopted from Section 28 of the Act and it has been held that its purpose is to protect non-debtor partners. Evans v. El Dorado Improvement Co., 1975, 46 Cal.App.3d 84, 119 Cal.Rptr. 889. The distinction for which plaintiff argues appears inconsistent with the language of Section 28 as to the proper method for a judgment creditor to reach the interest of a partner in the partnership. While “foreclosure” of the partnership interest is contemplated under the Act, see Fla.Stat. § 620.695(2), we do not think this provision justifies an immediate levy and sale. Rather, the charging order is the essential first step, and all further proceedings must occur under the supervision of the court, which may take all appropriate actions, including the appointment of a receiver if necessary, to protect the interests of the various parties. The reason for prohibiting a levy on partnership assets for debts of individual partners is to prevent disruption of the partnership business and the consequent injustice to other partners, Evans, supra. These same considerations weigh against immediate levy and sale of a partner’s share in the partnership when less disruptive measures may afford the same and perhaps even a greater level of protection to a judgment creditor.

California and New York have rejected the contention made by plaintiff here, that a levy on a partner’s interest in the partnership is permissible under the Act. Baum v. Baum, 1959, 51 Cal.2d 610, 335 P.2d 481; Sherwood v. Jackson, 1932, 121 Cal.App. 354, 8 P.2d 943; Weisinger v. Rae, N.Y.Sup. Ct.1959, 19 Misc.2d 341, 188 N.Y.S.2d 10. Other cases decided under the U.P.A. state that a charging order is the proper procedure to reach the partnership interest. Riegler v. Riegler, 1967, 243 Ark. 113, 419 S.W.2d 311; Buckman v. Goldblatt, 1974, 39 Ohio App.2d 1, 314 N.E.2d 188. We have not been cited and our own research has not developed any cases holding to the contrary. See also 60 Am.Jur.2d, Partnership, § 348.

Accordingly, the order denying the defendant’s motion to set aside levy and cancel notice of sale is vacated and the cause is remanded to the trial court for further proceedings consistent with this opinion.

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


author: PER CURIAM.

text:
    Michael David ASKARY, Appellant, v. The STATE of Florida, Appellee.
    No. 73-831.
    District Court of Appeal of Florida, Third District.
    July 16, 1976.
    Carr & Emory, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Stephen V. Rosin, Asst. Atty. Gen., for appel-lee.
    Before HENDRY and HAVERFIELD, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, , the judgment of this court was entered on March 26, 1974 (294 So.2d 33) affirming as modified the judgment and sentence of the Circuit Court for Dade County, Florida, in the above styled cause; and

WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida, by its opinion and judgment filed April 7, 1976 (330 So.2d 458) and mandate now lodged in this court reversed the portion of this court’s judgment striking the imposition of probation by the trial court and remanded the cause with directions;

NOW, THEREFORE, It is Ordered that the mandate of this court heretofore issued in this cause on May 20, 1974 is withdrawn, the portion of this court’s opinion which modified the judgment and sentence is vacated, the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court and the judgment and sentence appealed herein is affirmed in all respects. Costs allowed shall be taxed in the trial court (Rule 3.16 b, F.A.R.).


text:
    CARNER BANK OF MIAMI BEACH, a Florida Banking Corporation, Appellant, v. R. G. WOLFF & COMPANY, INC., a Florida Corporation, Appellee.
    No. 74-1745.
    District Court of Appeal of Florida, Third District.
    July 16, 1976.
    Cypen & Nevins, Miami Beach, for appellant.
    Preddy, Haddad, Kutner, Hardy & Josephs, Miami, for appellee.
    Before BARKDULL, C. J., and NATHAN, J., and CHARLES CARROLL (Ret.), Associate Judge.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on March 25, 1975 (312 So.2d 555) affirming the order of the Circuit Court for Dade County, Florida, in the above styled cause; and

WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida, by its opinion and judgment filed March 17, 1976 (329 So.2d 298) and mandate now lodged in this court, vacated this court’s judgment and remanded the cause with directions;

NOW, THEREFORE, It is Ordered that the mandate of this court entered in this cause on May 12, 1975 is withdrawn, the judgment of this court filed March 25,1975 is vacated, the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court and the order of the trial court dated October 21, 1974 is reinstated. Costs allowed shall be taxed in the trial court (Rule 3.16, subd. b, F.A.R.).


author: BOYER, Chief Judge.

text:
    Austin L. WILLIAMSON, Appellant, v. Velta Joann WILLIAMSON, Appellee.
    No. AA-40.
    District Court of Appeal of Florida, First District.
    July 19, 1976.

      Mary B. Steddom of O’Neill & Bishop, Ocala, for appellant.
    W. F. Blowers of Blowers, Walkup, Berk & Tucci, Ocala, for appellee.
   BOYER, Chief Judge.

By the final judgment here appealed, the marriage of the parties was dissolved, and the husband, appellant here, was ordered to pay $1,500 rehabilitative alimony at the rate of $100 per month plus $250 in attorney’s fees. The trial judge subsequently entered an order by which the husband’s petition for rehearing was denied and the wife’s motion for contempt was granted. The husband was sentenced to six months in the county jail, unless he paid the arrear-age which totalled $200. On appeal, the husband challenges inter alia, the award of attorney’s fees to the wife and the order of contempt.

Appellant’s primary attack on the award of attorney’s fees is based upon the failure of the wife to accompany her application for attorney’s fees with an affidavit specifying her financial circumstances as required by Rule 1.611(a), RCP. Although the language of the rule is mandatory, there are no provisions for sanctions, automatic or otherwise, within the confines of the rule itself in the event of failure to file a financial affidavit. The record on appeal reveals that appellant made no objection to the failure of his wife to file a financial affidavit either before or during the hearing on her petition for dissolution. Such failure is raised for the first time on this appeal.

In the absence of a proper objection lodged with the trial court, we are of the view that the mere failure to file a financial affidavit as required by Rule 1.611(a), RCP, does not necessitate reversal of an award of attorney’s fees where there is otherwise sufficient evidence in the record to sustain the award. Our holding is buttressed by the general rule that issues not raised in the trial court will not be considered on appeal. (2 Fla.Jur. 401, “Appeals”, Section 66 and Florida Livestock Bd. v. Highgrade Food Products, Fla.App. 1st 1962, 141 So.2d 6). Having examined the record on appeal, particularly the evidence relating to the financial condition of the parties, we find that there is sufficient evidence contained therein to sustain the trial court’s award of attorney’s fees.

As to the contempt order entered against him, the husband argues that the trial court erred in entering the order without taking any testimony in support thereof and in refusing to hear the husband’s testimony in defense. Both of the husband’s objections to the order of the trial court adjudging him to be in contempt emanate from a hearing held on the wife’s motion for contempt. Apparently, however, the contempt hearing was not reported. Therefore, this Court is unable to determine whether the trial court did or did not take testimony in support of the motion for contempt or whether the trial court refused to hear the husband’s testimony. As has been noted on numerous occasions, “ * * * When no transcript of the proceedings pertaining to the issues upon which the appellant seeks review is present in the record, the appellate court must assume that the trial court ruled correctly. * * * ” Hall v. Bass, Fla.App. 4th 1975, 309 So.2d 251.

We have considered the remainder of the points raised by the husband on appeal and have found them to be without merit. Finally, the wife has filed a motion for attorney’s fees incident to appeal. Said motion is denied.

AFFIRMED.

McCORD and MILLS, JJ., concur.


text:
    Larry GRIFFIN, a/k/a Larry Gene Griffin, Appellant, v. STATE of Florida, Appellee.
    No. 75-341.
    District Court of Appeal of Florida, Second District.
    July 21, 1976.
    James A. Gardner, Public Defender, Sarasota, and William A. Dooley, Asst. Public Defender, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant was indicted for second-degree murder and charged by information with robbery and auto theft. After trial the jury found the appellant guilty of manslaughter, robbery and auto theft. In this timely appeal appellant contends that the verdicts of manslaughter and robbery are inconsistent with one another, and therefore the sentence for robbery must be set aside and vacated.

This precise issue was recently resolved adversely to appellant’s contention by the Supreme Court of Florida in McCloud v. State, Fla.1976, 335 So.2d 257. The supreme court in the cited case recognized that the guilty verdicts for manslaughter and robbery were inconsistent, nevertheless the convictions were affirmed.

The second point on appeal is without merit.

AFFIRMED.

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