author: PER CURIAM. HENDRY, Chief Judge

text:
    AMERICAN HOME ASSURANCE COMPANY, Appellant, v. KELLER INDUSTRIES, INC., Appellee.
    No. 76-84.
    District Court of Appeal of Florida, Third District.
    June 21, 1977.
    Rehearing Denied July 29, 1977.

      Corlett, Merritt, Killian & Sikes, Greene & Cooper and Robyn Greene, Miami, for appellant.
    Pyszka, Kessler, Adams & Solomon, Richard M. Gale, Miami, for appellee.
    Before HENDRY, C. J„ PEARSON, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

This appeal is by the defendant American Home Assurance Company, from an order awarding $78,500.00 as a reasonable fee for the services of plaintiff’s attorneys in the action, and entering judgment thereon against the defendant insurance company. The appellant contends the fee allowed was excessive. We do not rule on that contention because we hold the trial court was without jurisdiction to award plaintiff’s attorneys’ fees and order the payment thereof in this action in which no judgment on the merits was entered against the defendant insurer and in favor of the insured.

What occurred in this instance, as shown in more detail below, was that some time after the action was filed, and while the case was pending on the defendant insurer’s motion to dismiss the complaint as amended and with no answer having been filed, the defendant insurer informed plaintiff’s attorney it was liable for the plaintiff’s claims, and about a month later the attorney for the plaintiff and attorneys for the insurer agreed upon and consummated an out-of-court settlement in the amount of $145,694.12, on the basis of which payment was accepted for the plaintiff by the plaintiff’s attorney who informed defendant’s attorneys by letter that thereby the defendant insurer was released from the claims. No recovery judgment was entered in the cause. Thereafter the application for plaintiff’s attorney’s fee was made, and was granted by the order appealed from.

The complaint, filed December 10, 1974, alleged issuance of the policy, described as an umbrella liability policy extending excess insurance “becoming effective upon exhaustion of underlying primary comprehensive, general liability insurance”; that during the year September, 1970, to September, 1971, “a number of losses occurred” for which the underlying primary limit was exhausted; that the defendant had refused to “undertake the defense and/or indemnification of the plaintiff for said losses”. The complaint did not list the claims, or losses which formed the basis therefor, and the sum or the amounts claimed were not shown. In addition to the defendant insurer, the latter’s local agent was joined as a defendant, and certain relief was sought against that party in a second count. We omit further reference thereto because later the plaintiff voluntarily dismissed that defendant. Against the insurer, the complaint prayed (1) for judgment to be rendered in favor of the plaintiff for the costs and payments it had made incident to disposition of the claims against it which created the losses; (2) judgment to require the insurer to assume responsibility for all claims made against the insured up to the policy limits; and (3) for reasonable plaintiff’s attorney’s fee. Plaintiff filed a demand for a jury trial.

Motions of the defendants to dismiss were granted, with leave to amend. A copy of the policy sued upon had not been attached to the complaint. An amended complaint was filed to which a copy of the policy was attached. As to the insurer, the allegations of the amended complaint were the same as the allegations in the first complaint except for addition of an allegation that the primary liability insurer had fulfilled its obligations.

The defendant insurer moved to dismiss the amended complaint. That motion was not ruled upon. No answer was filed by the defendant insurer. As stated above, the other defendant was voluntarily dismissed, after the amended complaint was filed.

On September 12,1975, nine months after the action was filed, an affidavit of the plaintiff’s attorney was filed. Therein he stated that the action had been commenced because of denial of coverage by the insurer; that on April 11, 1975, Mr. Cameron of the home office of the insurer had called plaintiff’s attorney “to discuss the disposition of the litigation”, and in that conversation Mr. Cameron “stated that upon reviewing the file he acknowledged that his company was in error in denying the coverage; that he now in behalf of the company admitted liability and responsibility in the case”, and that he instructed affiant to “compile the information with respect to the disbursements and exposures” and to deliver such computation together with the claim files to the insurer’s local counsel; that such information and the files were furnished to defendant’s local counsel, and certain correspondence with said counsel ensued; and that although there had been numerous requests, payment had not been made. The affidavit did not list the several losses or the claims which they prompted, or contain any evidence to establish the amounts due thereon respectively.

On the day that affidavit was filed, plaintiff filed a motion, stating it was based on said affidavit, for entry of a judgment against the defendant insurer for a $153,-194.12, plus interest and costs, and for judgment requiring payment of “all other outstanding obligations incurred or to be incurred”, and for plaintiff’s attorney’s fee.

That motion for judgment was not pressed, and no such judgment was entered. Instead, as recited above, the out-of-court settlement was made and consummated a month later, which was in compensation for the amounts due to the plaintiff under the policy for excess coverage on plaintiff’s losses, and for the expenses plaintiff had incurred in handling the claims which resulted in such losses as a result of the defendant’s denial of coverage.

Thereafter, on October 31, 1975, a second affidavit of the attorney for the plaintiff was filed, which related the attorney’s participation in the proceedings such as above described, and referred to his services in having attempted to obtain payment of the claims during a period of six months prior to the time the action was filed, for all of which it was stated in the affidavit that the plaintiff’s attorney “and/or his firm had expended approximately 250 hours”. Affidavits of other attorneys as to a reasonable fee for plaintiff’s attorney were filed. The affidavit presented on behalf of the plaintiff suggested $100,000.00. The one presented on behalf of the defendant suggested $10,000.00. Thereupon, with no judgment having been entered in the case, the court entered the fee allowance order from which this appeal was taken.

At the time the appeal was argued, this court requested that briefs be filed by the attorneys for the parties on the question of the jurisdiction or authority of the trial court to make such an award of an attorney’s fee in the absence of the entry in the case of a judgment on the merits against the insurer and in favor of the insured, in view of the wording of the applicable enabling statute (herein quoted in footnote # 1).

The supplemental brief filed on behalf of the appellant on this question cited cases holding such fee allowances were to be made only when and as provided for by the statute. American National Insurance Co. v. de Cardenas, 181 So.2d 359 (Fla. 3d DCA 1965); Segelstrom v. Blue Shield of Florida, Inc., 233 So.2d 645 (Fla. 2d DCA 1970); Daleo v. Bert & Bette Bayfront 66 Marine, 273 So.2d 113 (Fla. 3d DCA 1973); Midwest Mutual Insurance Company v. San tiesteban, 287 So.2d 665 (Fla.1974); Dawston v. Blue Cross Associates, 293 So.2d 90 (Fla. 1st DCA 1974). See also, Southern American Fire Ins. Co. v. All Ways Reliable Maintenance, Inc., 251 So.2d 11 (Fla. 4th DCA 1971); Morris v. Conn. General Life Ins. Co., 346 So.2d 589 (Fla. 3d DCA 1977); Continental Casualty Co. v. Giller Concrete Co., 116 F.2d 431, 433 (5th Cir. 1941); American Fidelity & Casualty Co. v. Greyhound Corp., 258 F.2d 709, 717 (5th Cir. 1958). With the exception noted below, the courts have held that such a fee allowance and order for its payment by an insurer is not to be made in the absence of entry of a judgment in the action against the insurer and in favor of the insured, or when the action was filed prematurely or where there was no necessity for the filing of the action.

In an action on an insurance policy, the jurisdiction of the trial court to require the insurer to pay a reasonable attorney’s fee of the opposing insured or beneficiary, exists only as created and provided for by the statute. Such a fee award made pursuant to the statute is recognized as a penalty provision, in the use and exercise of which the statute is to be strictly construed. In American National Insurance Co. v. de Cardenas, supra, 181 So.2d at 361 the court said:

“ * * * The authority to assess an attorney’s fee exists solely by virtue of section 627.0127, Florida Statutes, F.S.A., and since the section is in the nature of a penalty, it should be strictly construed. Main v. Benjamin Foster Co., 141 Fla. 91, 192 So. 602, 126 A.L.R. 1434 (1939); American Fidelity & Casualty Co. v. Greyhound Corp., 258 F.2d 709 (5th Cir. 1958). Therefore, the chancellor had no authority to award an attorney’s fee when it affirmatively appeared that the conditions upon which the authority depended did not exist.”

Also, in American Bankers Insurance Co. of Fla. v. Benson, 254 So.2d 851, 853 (Fla. 3d DCA 1971) this court said:

“This statute must be strictly construed, and in this case no judgment was rendered against the insurer, American Bankers, which permits the recovery of attorneys’ fees.”

On examining the statute, it appears to be clear that in an action between an insurer and insured or beneficiary under a policy of insurance, the jurisdiction of the court to award attorney’s fees to the latter, to be paid by the former, is dependent and consequent upon the existence of the conditions imposed by the statute. The condition which is paramount in the statute is the entry of a judgment on the merits against the insurer and in favor of the insured or beneficiary. In addition to the express language that such a fee award is to be made, “Upon the rendition of a judgment”, etc., there is the provision that it is to be made as a fee or compensation for the insured’s or beneficiary’s attorney prosecuting the suit in which the recovery is had. Further, in this connection, consideration must be given to the fact that the statute was amended some years ago to make it applicable also to judgments of appellate courts, by which it is provided that in the event of an appeal in which the insured or beneficiary prevails the appellate court shall make such a fee award. Finally, in its last paragraph the statute directs that where a fee is so awarded it “shall be included in the judgment or decree rendered in the case”. Those signposts of legislative intent all point the same way, and the cumulative effect of their directive force compels the conclusion that recovery and entry of judgment in the action are conditions precedent to the making of such a fee award.

The supplemental brief of the appellee cited the sole decision which upheld such a fee allowance made in a case in which no judgment was entered. That is the case of Cincinnati Insurance Company v. Palmer, 297 So.2d 96 (Fla. 4th DCA 1974). In that case, brought by an insured against an insurer to recover for a fire loss under a fire insurance policy, three months after the action was filed the defendant insurer voluntarily paid the loss claim. The payment did not include any amount for plaintiff’s attorney’s fee. On application of the plaintiff, the court entered an order making such a fee award, to be paid by the insurer. On appeal by the latter the order was approved, but because it appeared to include allowance for services of plaintiff’s attorney after the time of the payment (in seeking the fee), the fee order or judgment was reversed and the cause was remanded with direction to enter an order for payment by the insurer of a reasonable fee for the services performed by the insured’s attorney in the action prior to the date upon which the defendant paid the claim.

In Palmer, the award of plaintiff’s attorney’s fee, made in the absence of entry of a judgment of the kind specified in the statute, was upheld by the appellate court on the theory that it would not be reasonable or just that the insurer could avoid its liability for payment of the plaintiff’s attorney’s fee by the simple expedient of paying the amount due under the policy prior to the entry of any judgment. The court further expressed the view that by virtue of the statute liability to pay such a fee became a part of the insurance contract, which could be sued for separately in the action in the absence of judgment on the merits, when the insurance claim was voluntarily paid by the insurer.

In the instant case there is no need to stretch the statute to that extent. This was not a case where the defendant insurer interrupted the plaintiff’s progress toward a judgment by the device of voluntarily paying the insurance claim. Instead of prosecuting its action to recovery, the plaintiff permitted its case to lie dormant for months after which, through affirmative action of its attorney, it negotiated for and obtained the payment of its claims by an out-of-court settlement. By making such payment out-of-court at the solicitation of the plaintiff and pursuant to such a settlement, the defendant insurer cannot be said to have done so as a device to avoid payment of the plaintiff’s attorney’s fee. Here, in order to place itself in position to obtain such a fee from the court as provided for by the statute, where the insurer would not add such a fee to the amount it was willing to agree to pay in settlement, the plaintiff using the defendant’s admission of liability, together with submission of proof of the amounts due, could have obtained a summary judgment on the merits, even though no answer had been filed.

The filing of an action on a policy, or the pendency of such an action, does not furnish basis for a fee award. What does is the entry of judgment against the insurer and in favor of the insured or beneficiary, in an action on the policy. We hold that in the circumstances of this case, the court was without jurisdiction, under the statute or otherwise, to enter the fee order appealed from. The error incurred thereby was fundamental in that it went to the heart of the right of recovery. Sanford v. Rubin, 237 So.2d 134, 137 (Fla.1970). The rule that questions not presented to and ruled upon by the trial court are not reviewable on appeal is subject to the exception that an appellate court may consider and rule upon a constitutional or fundamental error when first raised, or revealed on the record on appeal. Love v. Hannah, 72 So.2d 39, 43 (Fla.1934); Ewing v. Dupee, 104 So.2d 672 (Fla. 2d DCA 1958); Florio v. State ex rel. Epperson, 119 So.2d 305, 309 (Fla. 2d DCA 1960); In re: Kionka’s Estate, 121 So.2d 644, 647 (Fla.1960). Moreover, authority is granted to the appellate court to take note of jurisdictional or fundamental error apparent on the record by Fla.App.Rule 3:7(i), in which it is provided: * * * “the Court in the interest of justice, may notice jurisdictional or fundamental error apparent in the record-on-appeal, whether or not it has been argued in the briefs or made the subject of an assignment of error, or of an objection or exception in the court below”.

When a trial court, in the progress of a case, proceeds on a matter for which, under the circumstances of the case, the court is without jurisdiction or which is in excess of its jurisdiction, the failure of a party to object thereto does not operate to confer or create jurisdiction where it does not exist.

For the reasons stated, the fee order or judgment appealed from is reversed.

HENDRY, Chief Judge

(dissenting).

I respectfully dissent from the opinion of the majority. The complaint filed by appel-lee sought both proceeds due under the policy of insurance and reasonable attorney’s fees. While the proceeds were paid by appellant after the complaint was filed, the parties proceeded to final hearing on the question of reasonable attorney’s fees. After reviewing the entire file and listening to expert testimony, the trial judge entered a final judgment, awarding appellee $78,-500.00 as reasonable attorney’s fees. Said final judgment was the order which was appealed.

In Cincinnati Insurance Company v. Palmer, 297 So.2d 96 (Fla. 4th DCA 1974), the court was faced with a similar factual situation as found sub judice. In that case, suit was filed seeking the proceeds of an insurance policy. Payment of the proceeds was made by the insurer after suit was filed. The lawsuit proceeded to final hearing on the issue of reasonable attorney’s fees whereby final judgment was entered, awarding the insured his fees. On appeal, the insurer contended, inter alia, that pursuant to Section 627.428, Florida Statutes (1975), the award of attorney’s fees was inappropriate as no final judgment or decree had been entered on the proceeds question. Rejecting that contention, the court stated that;

. . it is neither reasonable nor just that an insurer can avoid liability for statutory attorney’s fees by the simple expedient of paying the insurance proceeds to the insured or the beneficiary at some point after suit is filed but before final judgment is entered, thereby making unnecessary the entry of a judgment . We think the statute must be construed to authorize the award of an attorney’s fee to an insured or beneficiary under a policy or contract of insurance who brings suit against the insurer after the loss is payable even though technically no judgment for the loss claimed is thereafter entered favorable to the insured or beneficiary due to the insurer voluntarily paying the loss before such judgment can be rendered. After all such voluntary payment by the insurer is the equivalent of a confession of judgment against it.” supra at 99.

The above case is both consistent with law and public policy. As has often been stated, the purpose of Section 627.428, Florida Statutes (1975), is to discourage the contesting of insurance coverage by insurers and to reimburse successful policy holders when they are compelled to sue to enforce their policies. Salter v. National Indemnity Co., 160 So.2d 147 (Fla. 1st DCA 1964).

In addition, the “judgment or decree” requirement of the aforementioned statute was satisfied sub judice, as it was in the Cincinnati Insurance Company case, supra. Section 627.428 is, in effect, part of every insurance policy issued in this state. Old Republic Insurance Company v. Monsees, 188 So.2d 893 (Fla. 4th DCA 1966). As stated in Orlando Candy Co. v. New Hampshire Fire Ins. Co. of Manchester, 51 F.2d 392 (S.D.Fla.1931):

“The statute in effect becomes a part of the contract, because the parties contract subject to the terms of the statute. The liability imposed by the statute upon the insurer is in effect an incident of the insurer’s wrongful refusal to pay, not a mere procedural incident to the entry of the judgment.” supra at 393.

See also Pendas v. Equitable Life Assur. Soc. of United States, 129 Fla. 253, 176 So. 104, 112 A.L.R. 1051 (1937).

Upon suit being filed, the relief sought was therefore both policy proceeds and attorney’s fees, and so long as the insurer failed to voluntarily pay any part of the relief sought, it continued to contest the policy. Cincinnati Insurance Company, supra. Thus, even though the policy proceeds were subsequently tendered to appellee, the full claim had not been satisfied as attorney’s fees remained to be paid. Once the final judgment rendering reasonable attorney’s fees was entered, then the claim under the policy was satisfied, as was the aforementioned “judgment or decree” requirement of Section 627.428.

Accordingly, for the foregoing reasons, I am of the opinion that an award of attorney’s fees was proper sub judice, as a final judgment on the claim was rendered in favor of appellee-insured, and I would hear the appeal on the merits.

Assuming arguendo, that the majority’s position is correct, then there would seem to be no reason why this court could not remand the ease to the trial court for the entrance of a final judgment on the merits of the complaint. The entrance of a final judgment would then satisfy the majority’s interpretation of Section 627.428 and enable appellee to receive reasonable attorney’s fees.

      . § 627.428 Fla.Stat. (1975) provides as follows:
      “(1) Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of an insured or the named beneficiary under a policy or contract executed by the insurer, the trial court, or in the event of an appeal in which the insured or beneficiary prevails, the appellate court shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured’s or beneficiary’s attorney prosecuting the suit in which the recovery is had.
      “(2) As to suits based on claims arising under life insurance policies or annuity contracts, no such attorney fee shall be allowed if such suit was commenced prior to expiration of sixty days after proof of the claim was duly filed with the insurer.
      “(3) Where so awarded, compensation or fees of the attorney shall be included in the judgment or decree rendered in the case.”

      . The statute, § 627.428 Fla.Stat. (1975), was repealed, effective July 1, 1982, by Ch. 76-168, § 3(3)(ff) Laws of Florida 1976.

      . Morris v. Connecticut General Life Insurance Company, 346 So.2d 589 (Fla. 3d DCA 1977) recently decided by this court is not inconsistent with our decision in the instant case. In Morris there was a dispute created by uncertainty as to the beneficiary or beneficiaries entitled to the proceeds of a life insurance policy. After an action was filed on the policy the insurer consented to pay the plaintiffs, and the parties entered into a written stipulation for the trial court to determine the propriety of an award of plaintiff’s attorney’s fee and the amount thereof (with no judgment on the merits entered in the case). On consideration of the fee application the trial court held the insurer had not wrongfully withheld the proceeds and had stood ready and willing to pay prior to the action, for which reasons the court held there had been an absence of necessity to file the action, and denied the fee application. This court affirmed the denial of the fee on that ground. Thereby necessity to test it on the ground of absence of judgment was precluded.

      . Fla.R.Civ.P. 1.510(a); Olin’s, Inc. v. Avis Rental Car System of Florida, 102 So.2d 159, 163 (Fla. 3d DCA 1958), quashed on other grounds (Fla., 104 So.2d 508); Wallens v. Lichtenstein, 159 So.2d 912 (Fla. 3d DCA 1964); Coast Cities Coaches, Inc. v. Dade County, 178 So.2d 703 (Fla.1965).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Patty Jo HAGY, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1059.
    District Court of Appeal of Florida, Third District.
    June 21, 1977.

      Bennett H. Brummer, Public Defender and Kurt Marmar, Asst. Public Defender, • for appellant.
    Robert L. Shevin, Atty. Gen., and Linda Collins Hertz, Asst. Atty. Gen., for appellee.
    Before PEARSON, BARKDULL and NATHAN, JJ.
   PER CURIAM.

The appellant was charged with larceny of cash. The proof disclosed that she had' stolen checks which were negotiated through her account. This appeal ensued.

The appellant urges a variance between the allegations of the information and the proof. We find no merit to the argument. First, no such objection was made before or during the trial. Fla.App. Rule 6.7(g). There was no judicial act to which an assignment of error could be made. See: Rice v. State, 243 So.2d 226 (Fla. 4th D.C.A.1971); Fla.App. Rule 3.5(c). If a question of variance is not raised at trial, it will not be subject to review on appeal. Sharp v. State, 328 So.2d 503 (Fla. 3rd D.C.A.1976). Further, it has been held that one charged with embezzling the sum of $5,000.00 lawful United States currency was subject to conviction, when the proof demonstrated that the embezzlement was a check for said amount. See: Brown v. State, 92 Fla. 538, 109 So. 438 (1926). It has also been held that embezzlement and larceny should be pleaded with the same particularity. See: Grant v. State, 35 Fla. 581, 17 So. 225 (1895).

Therefore, for the reasons above stated [first, that it does not appear that there was a departure in the proof from the charge and, second, even if so no error was preserved] the conviction under review be and the same is hereby affirmed.

Affirmed.


author: PEARSON, Judge.

text:
    Beda C. SUPPLE, Appellant, v. John Michael SUPPLE, Appellee.
    No. 76-1149.
    District Court of Appeal of Florida, Third District.
    June 21, 1977.
    Horton, Perse & Ginsberg and Mallory H. Horton, Armando Maraio, Miami, for appellant.

      Sylvester P. Adair, Homestead, for appel-lee.
    Before HENDRY, C. J., and PEARSON and HUBBART, JJ.
   PEARSON, Judge.

This is an appeal from a final judgment where a mother sought to cancel a deed she had given to her son. The court found: “That the Defendant did agree to provide for the support of the Plaintiff during her lifetime as a part of the consideration for such conveyance . . . ” However, the trial court denied the prayer for rescission and instead entered a judgment that the son should pay a specified amount to his mother each month as support. Each party is dissatisfied; the mother has appealed and the son has cross-appealed. We reverse and remand for the entry of a judgment upon the issues presented by the pleadings.

We agree entirely with the trial judge’s finding: “That this cause involved the unfortunate situation where ill feelings have arisen between mother and son due to a strained relationship between the Plaintiff-mother and her daughter-in-law.” We add that this is one of those personal relationship difficulties which the legal process cannot solve for the parties and that, therefore, the courts must follow the law provided rather than to impose a solution that wisdom seems to suggest.

The mother’s complaint sought a rescission of the conveyance of a piece of business property upon which the son is conducting an appliance sale and repair business. She did not seek a judgment for support and no amendment of the pleadings was requested. The son defended upon the theory that the property was a part of a business in which he, the mother and the deceased father had worked as partners. The title to the real property was held as an estate by the entirety by the mother and the deceased father. The extent of the son’s contribution, if any, to the purchase or maintenance of the real property is not found by the court.

The circuit court judgment is to some extent conflicting in that: (1) It finds an agreement to support is “a part . consideration” for the conveyance but fails to find any other consideration and we are at a loss to find evidence of any other consideration in the record. (2) It denies the relief prayed for but finds that the equities are with the plaintiff and grants relief which neither party sought. In Bear v. Standard Acc. Ins. Co., 124 Fla. 9,168 So. 18, 23 (1936), the Supreme Court of Florida had before it a chancery decree in which the chancellor had not decided the issue presented by the pleadings. In reversing for further proceedings, the court held:

“Where the rulings and decree of a chancellor indicate that a final decree was probably arrived at, in substantial part, upon considerations and issues not properly a part of the controversy required to be decided, the final decree will be reversed without prejudice, and the cause remanded for a reconsideration by the chancellor in the light of the applicable law as determined by the opinion of the Supreme Court oh its consideration of the appeal wherein such reversal without prejudice is ordered; the costs being taxed in equal proportions against appellants and appellees.”
* * * * * *

We will reverse the judgment and remand the cause to the trial judge for him to determine whether there has been a failure of consideration for the conveyance and for a determination of the interest, if any, of the son in the real property.

Thereupon, the final judgment appealed is reversed without prejudice and the cause remanded to the trial court to take further testimony should he deem it necessary and to enter a final judgment based upon the issues presented by the complaint and answer.

Reversed for appropriate proceedings in conformity with this opinion.

      . The trial court’s findings of fact are as follows:
      “1. That this cause involved the unfortunate situation where ill feelings have arisen between mother and son due to a strained relationship between the Plaintiff-mother and her daughter-in-law.
      “2. That on the 28th day of July, 1972, the mother (Plaintiff herein) conveyed title to the real property, which constitutes the subject matter of this litigation, to her son (Defendant herein) through her attorney, Sylvester P. Adair.
      “3. That the Plaintiffs attorney prepared the instruments of conveyance pursuant to instructions received from the Plaintiff and, as a result thereof, said property was conveyed to the Plaintiff and the Defendant as joint tenants.
      “4. That there was fair and proper consideration for such conveyance.
      “5. That the Defendant did agree to provide for the support of the Plaintiff during her lifetime as a part of the consideration for such conveyance and has done so since the date of said conveyance, but perhaps not to the extent contemplated by the Plaintiff nor to a proper degree.” * * *


text:
    Frank ELMORE, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1293.
    District Court of Appeal of Florida, Third. District.
    June 21, 1977.
    Bennett H. Brummer, Public Defender, and Paul Morris and Thomas G. Murray, Asst. Public Defenders, for appellant.
    Robert L. Shevin, Atty. Gen., and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., and PEARSON and BARKDULL, JJ.
   PER CURIAM.

The appellant was found guilty by a jury of robbery and sentenced by the court to life imprisonment. On this appeal, there is no challenge to the judgment of guilty but defendant urges that the sentence should be reversed because of the court’s denial of his motion for continuance prior to sentencing. Defendant moved for a continuance for “. . . additional time to present mitigating circumstances to the court. I am not prepared to do so at this time.” Upon denial of the continuance, the court noted that the defendant was a previously convicted felon and, upon being advised that there was no legal cause why sentence should not be pronounced, sentenced the defendant to life imprisonment.

We find no error inasmuch as Fla.R. Crim.P. 3.720 does not require a continuance but requires an opportunity to be heard. The granting of a continuance during the trial of a case and certainly upon sentencing is within the sound judicial discretion of the trial court. See Douglas v. State, 216 So.2d 82 (Fla.3d DCA 1968).

Affirmed.


text:
    Esteban VENTURA, Appellant, v. Serafina Freyre VENTURA and Rosario Ventura, Appellees.
    No. 76-2016.
    District Court of Appeal of Florida, Third District.
    June 21, 1977.
    Rehearing Denied July 27, 1977.
    Vogler & Postman and Ronald W. Vogler, Miami, for appellant.
    Alan S. Rosenthal, Miami, and Gerald E. Fine, North Miami Beach, for appellee.
    Before HENDRY, C. J., and PEARSON and HUBBART, JJ.
   PER CURIAM.

We are asked to reverse an award of lump sum alimony, permanent alimony and attorney’s fees to the wife upon the ground that these awards were an abuse of discretion. Our review of the record in the light of the briefs and the oral argument shows that these awards are within the discretion of the trial judge as set forth in Shaw v. Shaw, 334 So.2d 13 (Fla.1976); and Herzog v. Herzog, 346 So.2d 56 (Fla.1977).

Affirmed.


text:
    L. Gibbens WARREN, Appellant, v. Jerome Godfrey WARREN, Appellee.
    Nos. 77-364 and 76-1618.
    District Court of Appeal of Florida, Third District.
    June 21, 1977.
    Rehearing Denied July 20, 1977.
    Edward C. Vining, Jr., Miami, for appellant.
    Joseph P. Averill, Miami, for appellee.
    Before HENDRY, C. J., and NATHAN and HUBBART, JJ.
   PER CURIAM.

Affirmed. Lauderdale v. Lauderdale, 96 So.2d 663 (Fla.3d DCA 1957); Olsen v. Olsen, 195 So.2d 864 (Fla.3d DCA 1967); Shaw v. Shaw, 334 So.2d 13; Ball v. Ball, 335 So.2d 5 (Fla.1976). Compare Tiffany v. Tiffany, 305 So.2d 798 (Fla.4th DCA 1975).


author: BARKDULL, Judge.

text:
    STATE of Florida ex rel. Irwin BRENNER, Relator, v. The Honorable Ira L. DUBITSKY, as Judge of the Circuit Court, Criminal Division, in and for Dade County, Florida, Respondent.
    No. 77-506.
    District Court of Appeal of Florida, Third District.
    June 21, 1977.
    Rehearing Denied July 27, 1977.

      Albert J. Krieger, Miami, for relator.
    Richard E. Gerstein, State Atty., and Paul Rashkind, Asst. State Atty., for respondent.
    Before BARKDULL, HAVERFIELD and HUBBART, JJ.
   BARKDULL, Judge.

The relator was charged with certain crimes and pleaded nolo contendere, in order to preserve a question relating to a motion to suppress. He was adjudicated guilty and sentenced to a five-year term, the first two years to be served in prison and the last three he was to be on probation.

The matter was appealed to this court. A supersedeas bond was set and the sentence was stayed pending the appeal. The action of the trial judge was affirmed. See: Brenner v. State, 337 So.2d 1007 (Fla. 3rd D.C.A. 1976); petition for rehearing denied 341 So.2d 287 (Fla. 3rd D.C.A. 1977). Thereafter, within the fifteen-day period provided for in Fla.App.Rule 4.5c(6), the appellant in the cited case filed a petition for certiorari to the Supreme Court of Florida to review this court’s decision which, as of this date, is still pending on the jurisdictional question.

Prior to the filing of the petition in the Supreme Court, an affidavit of alleged probation violation was filed against Irwin Brenner and was set for hearing before Circuit Judge Ira L. Dubitsky subsequent to the filing of the aforementioned petition for certiorari to the Supreme Court of Florida. Upon this happening, Brenner (as relator) filed the instant proceeding seeking to prohibit a hearing on alleged violation of probation because of the appeal in this court and the pending certiorari in the Supreme Court, which continued the superse-deas stay. We issued the rule nisi and, following return and argument thereon, we conclude that the relator is entitled to have the rule made absolute. See: Bateh v. State, 101 So.2d 869 (Fla. 1st D.C.A. 1958), wherein the following is found:

* * * * * *
“ * * * This was error for the reason that the defendant filed his notice of appeal and posted a supersedeas bond on December 18,1956. Under § 924.14, F.S., F.S.A., ‘The execution of a sentence * * is stayed upon the taking of the appeal and the defendant may be released on bail * * * ’ (Emphasis supplied.) Thus, the execution of sentence must be deemed stayed for the period during which the defendant enjoys bail pending appeal.”

The respondent’s reliance on Martin v. State, 243 So.2d 189 (Fla. 4th D.C.A. 1971) is misplaced. In the cited case the defendant had commenced serving his sentence; in the sentence has been stayed by the appellate and certiorari proceedings and the posting of a supersedeas bond.

In light of the above pronouncement, it is assumed we will not have to issue the rule absolute; that the respondent will abide by the opinion and decision of this court. However, this will not preclude the respondent from entertaining any motion to revoke the supersedeas that was accorded Brenner in the original appellate proceeding.


text:
    Palmer Johnson YACHTS, a Wisconsin Corporation, Appellant, v. RAY RICHARD, INC., d/b/a Gulfstream Yacht Brokers, a Florida Corporation, Appellee.
    No. 77-517.
    District Court of Appeal of Florida, Third District.
    June 21, 1977.
    Rehearing Denied July 18, 1977.
    Hall & Swann and Richard H. M. Swann, Coral Gables, for appellant.
    Mahoney, Hadlow & Adams and Donald W. Wallis, Jacksonville, for appellee.
    Before HENDRY, C. J., and PEARSON and HUBBART, JJ.
   PEARSON, Judge.

This interlocutory appeal is by the defendant Palmer Johnson Yachts, a Wisconsin corporation, from an order denying its Motion to Quash Service of Process. The plaintiff states that service of process upon the Wisconsin corporation was attempted by the plaintiff pursuant to Sections 48.181 and 48.193, Florida Statutes (1975). We reverse upon a holding that the complaint and the evidentiary matters before the court at the time of the denial of defendant’s motion are not sufficient to establish that the defendant was amenable to service under the statutes and that the record submitted does not show compliance with the statutes.

A party’s amenability to the jurisdiction of the court may be reached by a motion to quash for insufficiency of process or insufficiency of service of process. Elmex Corporation v. Atlantic Federal Savings & Loan Ass’n., 325 So.2d 58, 61 (Fla. 4th DCA 1976). The motion to quash filed by the defendant set forth two grounds: (1) “The complaint served on defendant in Wisconsin fails to allege facts as required to subject it to the jurisdiction of this court . ” (2) . . defendant is not subject to the jurisdiction of this court . ’ . . ” An extensive affidavit of an officer of the defendant corporation denied contact with the State of Florida and, in particular, doing business with the plaintiff in this state.

Defendant’s first ground is clearly supported by the record. The complaint simply states: “Defendant PALMER-JOHNSON, is a Wisconsin corporation doing business in the State of Florida.” Thereafter, plaintiff seeks recovery upon an oral contract to pay the commission for the sale of a yacht. It was alleged that the yacht was ultimately sold in Wisconsin to a purchaser produced by the plaintiff.

In the definitive opinion of Elmex Corporation v. Atlantic Federal Savings & Loan Ass’n., 325 So.2d 58, 61 (Fla. 4th DCA 1976), that court pointed out that “It is plaintiff’s burden to ‘plead’ (present) facts which clearly justify as a matter of law the applicability of the substituted service statutes in order to meet a challenge to such service.” See also Chase Manhattan Bank v. Banco Del Atlantico, 343 So.2d 936 (Fla. 3d DCA 1977). Further, it is necessary that the jurisdictional basis for service upon a non-resident defendant be alleged in the complaint. See Joyce Bros. Storage & Van Company v. Piechalak, 343 So.2d 97 (Fla. 3d DCA 1977); and Lopez v. La Fuente, 343 So.2d 930 (Fla. 3d DCA 1977). The motion to quash service of process should have been granted upon ground (1).

We note also that the record does not contain an affidavit of the officer who made service in Wisconsin. This affidavit is a jurisdictional requisite for substituted service pursuant to Section 48.193(2), Florida Statutes (1975). See Section 48.194, Florida Statutes (1975).

The order appealed is reversed with directions to grant the motion to quash.

Reversed.

      . The briefs of the parties indicate that an evi-dentiary hearing was had but the court’s order does not mention a hearing other than argument of counsel. No record of an evidentiary hearing is included in the record submitted.


author: MILLS, Judge.

text:
    Alphonsia CANTY, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. EE-337.
    District Court of Appeal of Florida, First District.
    June 22, 1977.

      Michael J. Minerva, Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., Charles F. McClamma and Michael H. Davidson, Asst. Attys. Gen., for appellee.
   MILLS, Judge.

Canty was charged by indictment with robbery while carrying a deadly weapon, a knife. He pled guilty as charged. He was informed and understood that he could be sentenced up to life imprisonment. A factual situation was elicited that supported the charge and the plea. Canty acknowledged his guilt. The trial court found Canty guilty of the charge of robbery while armed with a knife as alleged in the indictment. The court imposed a 99-year sentence. The written judgment and sentence state in part, “having entered a plea of guilty to the crime of robbery,” Canty is adjudged guilty and sentenced to 99 years imprisonment.

Canty contends that the factual situation elicited by the Court does not support the charge. The record reflects to the contrary.

Canty further contends that neither the Court’s finding of guilt after the guilty plea nor the written judgment and sentence clearly states that he was guilty of robbery while armed with a deadly weapon. The record reflects to the contrary as to the first contention. The record supports the last contention but it is only necessary that the judgment and sentence be amended to add after the word “robbery”, the words “while carrying a deadly weapon, to wit: a knife.” Tadlock v. State, 343 So.2d 961 (Fla. 1st DCA 1977).

Affirmed with directions for the entry of a correct judgment.

BOYER, C. J., and McCORD, J., concur.


author: McCORD, Acting Chief Judge.

text:
    Albert BAVERO, Appellant, v. STATE of Florida, Appellee.
    No. CC-379.
    District Court of Appeal of Florida, First District.
    June 23, 1977.
    John Henninger, St. Petersburg, for appellant.
    Robert L. Shevin, Atty. Gen., Raymond L. Marky, Asst. Atty. Gen., for appellee.
   McCORD, Acting Chief Judge.

This is an appeal from the judgment and sentence of appellant for the crime of escape. During a pretrial proceeding, the assistant state attorney made an oral motion in limine requesting the trial court to require a proffer of the testimony of appellant and his witnesses concerning the admissibility of testimony on the issue of intent and the propriety of instructing the jury on such issue. After hearing the required proffer, the court ruled that the testimony was, as a matter of law, an insufficient defense and could not be presented to the jury. Appellant then withdrew his previously entered plea of not guilty and entered a plea of nolo contendere reserving his right to appeal the ruling of the trial court. A summary of the proffered testimony of appellant and witnesses presented by him is as follows:

Appellant was first incarcerated in May of 1974 at the Avon Park Correctional Institution and was classified Medical Grade 3 for work purposes while there. The prison system has four such classifications. Classification 3 limits a person to light work in an institution where a medical facility is available 24 hours a day. Appellant was paroled from the Avon Park Institution but in June, 1975, he was again incarcerated, this time at Lake Butler, Florida, where he was examined by prison doctors and was classified Medical Grade 1. Classification 1 is given if á person is physically fit to do any type of manual labor. It would be dangerous for a person in Classification 3 to be incarcerated in a road prison doing manual labor.

Appellant has been a life-long asthmatic. His original classification as Medical Grade 3 at Avon Park Correctional Institution was due to his asthmatic condition. After arriving at Lake Butler in June, 1975, and being classified as Medical Grade 1, appellant was transferred to the Gainesville Road Camp No. 38, a hard labor work camp. After arriving there appellant began expressing physical difficulties in meeting his daily work assignments due to his asthmatic condition. Upon stating one morning that he had asthma and did not feel like working, he was put in “the box” for punishment and upon being released two and one-half hours later was told he would work like anyone else or be put in the box and forgotten.

Appellant was furnished a spray mist inhaler by the prison doctor and the directions that came with it stated that he should not use it in excess of six times a day; that abuse of the inhaler could cause cardiac arrest. In order for appellant to fulfill the daily work assignments at the road camp he was forced to use the inhaler two to four times per hour because unless he did, his ability to breathe would be severely impaired and he felt that he would suffocate. He thus found himself on the horns of a dilemma in that if he took too much of the medication he faced the possible consequence of cardiac arrest, while if he avoided the medication, he faced the possibility of suffocation.

Appellant received several appointments with the road camp doctor who advised him to see the classification officer concerning appellant’s contention that he was misclassified as Medical Grade 1 instead of Medical Grade 3. Appellant thereafter sought a conference with the classification officer on two occasions but was never afforded the opportunity to see him although the classification officer visited the camp two times during appellant’s incarceration. In addition, in an attempt to bring his plight to the attention of Secretary Louie Wainwright, head of the Department of Offender Rehabilitation, appellant wrote a letter complaining of his asthmatic problem.

Believing that his health would be severely impaired should he stay at the road camp, appellant left the confinement of the camp on October 7, 1976. He was captured 10 or 11 hours later in the City of Gaines-ville. At the time of his arrest, he stated that he was attempting to bring his problems to the attention of the federal authorities in Jacksonville, Florida. During his proffered testimony, the following questions were asked of appellant to which he gave the following answers:

“Q. I am going to ask you again: Wasn’t it your intention for a period of time, no matter how long or how short, when you left Gainesville Road Camp No. 38 to be out of the control of the Florida Division of Corrections?
A. I never even thought of that, to be honest with you. The only thing I thought of was to get some kind of help. It wasn’t a matter of escaping or getting out of anyone’s control, it was more to get in someone else’s control, you know, where I could be helped.
Q. In someone else’s control. Was that someone else the Florida Division of Corrections to whom you had been committed or some other authority?
A. Well, yes, the Florida Division of Corrections maybe at a major institution, such as UCI where I am being confined now.”

Appellant further testified that he has since been reclassified Medical Grade 3 at the Union Correctional Institution where he does no manual labor but has a work assignment to prepare vegetables to be cooked which does not affect his asthma.

The foregoing proffered testimony should have been allowed to go to the jury on the question of whether or not appellant’s physical act of leaving custody was with the intent to avoid lawful confinement. In Helton v. State, 311 So.2d 381 (Fla. 1 DCA 1975), we held that there are two elements to the crime of escape: the physical act of leaving, or not being in, custody coupled with the intent to avoid lawful confinement. There, in discussing the question of whether or not lack of such intent should be recognized as a defense to a charge of escape, we said:

“Our conclusion is buttressed by the line of cases which have recognized the ‘narrow but time-honored defense of necessity available to a prisoner whose escape has been motivated by sufficiently perilous circumstances . . . ’ 16 Cr.L. Rptr. 2375. In California, where intent has been held not to be an element of escape, a Court of Appeal has held that two women prisoners would be allowed to claim necessity as a defense to the crime of escape where the proffered evidence showed that the two women had been threatened by a group of lesbian inmates who told them they were to perform lesbian acts. (People v. Lovercamp, 43 Cal. App.3d 823, 118 Cal.Rptr. 110, opinion filed December 11, 1974) A Michigan Court of Appeal has also held that necessity may, under severely limited circumstances, constitute a valid defense to escape. (People v. Harmon, 53 Mich.App. 482, 220 N.W.2d 212 (1974)) These cases implicitly recognize that a prisoner should not be punished for escape where he or she does not leave confinement with the intent of eluding lawful authority.”

In Lewis v. State, 318 So.2d 529 (Fla. 2 DCA 1975), the trial court had ruled as a matter of law that appellant’s alleged defense to an escape charge was insufficient. There appellant contended that another inmate had made sexual advances toward him and threatened him with sexual battery; that he had complained to prison authorities, but they did not believe his fears and ordered his return to the other inmate’s cell; that in fear appellant attempted to escape for the purpose of reporting the matter to Circuit Judge Williams and to avoid a possible sexual assault and battery. Another prisoner who left with him succeeded in fully escaping, but appellant climbed a radio antenna on the roof of the jail where he was later discovered. There the District Court of Appeal, Second District, said:

“In the recent case of Helton v. State our sister court in the First District explored the question of intent as being an element of the crime of escape. The court reviewed the conflicting cases throughout the country and sided with the slight numerical minority view that justice and fairness require intent as an essential element of escape. Its conclusion was buttressed by the line of cases which have recognized the ‘narrow but time honored defense of necessity available to a prisoner whose escape has been motivated by sufficiently perilous circumstances.’ That court held, therefore, that there are two elements to the crime of escape; the physical act of leaving custody coupled with the intent to avoid lawful confinement. We agree.
Here, appellant denied a wilful intent to escape, pointing to his having failed to flee completely with his fellow ‘escapee.’ He contended in his motion to quash that he was forced to leave confinement to avoid a sexual assault at the hands of Bobby Lane. He further contended that he was merely trying to reach Circuit Judge Williams to report the matter since the detention officers at the jail disbelieved his fears. If true, we think this could have been a valid defense insofar as it might establish a lack of wilful intent to avoid lawful confinement or at least create a reasonable doubt that there was one.”

We agree with our sister court’s analysis of our opinion in Helton and its application of the law to the circumstances in the case before it. The circumstances in Lewis in relation to intent and those in the case sub judice are closely parallel. In Lewis, if the jury believed the evidence presented by the defendant, it could find that he left confinement because of necessity rather than through a willful intent to avoid lawful confinement. The same is true in the case sub judice.

In a somewhat parallel situation, the Supreme Court, in Hall v. State, 136 Fla. 644, 187 So. 392 (1939), had before it for review a perjury conviction in which one of the defenses was coercion. The Supreme Court recognized that compulsion or coercion could be of such a nature as to induce a well-grounded apprehension of death or serious bodily harm if the defendant did not testify falsely. It pointed out, however, that the danger must be “real, imminent, and impending danger; or that under all the circumstances shown in evidence the defendant had reasonable grounds to believe that such danger was real, imminent and impending, and did so believe at the time she was testifying, and gave such false testimony because of such belief.” Following this line of reasoning, we hold in the case sub judice that the proffered testimony should go to the jury and if the jury finds (or has a reasonable doubt that) under all the circumstances shown in the evidence presented by both appellant and the state, that appellant had reasonable grounds to believe that there was a real, imminent and impending danger to him of death or serious bodily harm if he did not leave the place from which he was confined and that he left because of such danger rather than with the intent to elude lawful authority, the jury should find him not guilty of the crime of escape.

Reversed and remanded for further proceedings consistent herewith.

DREW, E. HARRIS and MASON, ERNEST E., (Ret.) Associate Judges, concur.


text:
    Wiley Rufus WARD and Colon Ward, Appellants, v. STATE of Florida, Appellee.
    No. CC-386.
    District Court of Appeal of Florida, First District.
    June 23, 1977.

      W. Fred Turner, Lynn Haven, for appellants.
    Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for ap-pellee.
   PER CURIAM.

Appellants were tried by jury for the crime of buying, receiving and/or concealing stolen property and were convicted. They appeal the judgment and sentence contending the court erred in denying the motion for judgment of acquittal made at the end of the state’s case and at the end of all of the evidence and that the evidence was insufficient to sustain the verdict. We have considered the record, the briefs, and the oral argument of counsel and find no error as to the case against Wiley Rufus Ward and that the evidence is sufficient to sustain the verdict as to him.

As to appellant Colon Ward, however, we find the motion for acquittal should have been granted. The only evidence presented to support the verdict as to him was that Wiley brought the stolen truck to Colon’s place to work on it and Wiley had painted his (Wiley’s name) on both doors of the truck. A witness had seen Colon stooping over the truck or standing near it, and he appeared to be working in and around it. There was no evidence indicating that Colon knew or should have known the truck was stolen.

The judgment and sentence of Wiley Rufus Ward is affirmed, and the judgment and sentence as to Colon Ward is reversed with directions that he be discharged.

McCORD, Acting C. J., DREW, E. HARRIS and MASON, ERNEST E., (Ret.) Associate Judges, concur.


author: JOPLING, WALLACE M., Associate Judge.

text:
    In re ESTATE OF Ruth L. JOHNSON, Deceased.
    No. BB-118.
    District Court of Appeal of Florida, First District.
    June 24, 1977.

      Charles E. Booth, Daytona Beach, for appellant.
    Charles R. Burnett of Wells & Burnett, Daytona Beach, Duffett, Barry, Seps & Ak-ers, Ormond Beach, and Isham W. Adams, Daytona Beach, for appellee.
   JOPLING, WALLACE M., Associate Judge.

This appeal presents this Court with the agonizing confrontation between the literal application of an apparently inflexible statute, Section 731.07(5) Florida Statutes (1973), with every conception of common sense, justice and equity. We hold the latter should prevail under the facts and circumstances of this particular case as hereinafter set forth and under the saving clause of Section 731.07(5) Florida Statutes (1973).

Ruth L. Johnson died testate on February 8, 1973, leaving an estate in excess of $2,500,000.00. Her will, the construction of a portion of which is the subject of this appeal, was executed on January 17, 1973. The testatrix had executed a very similar will in 1968 and subsequent codicils all of which were revoked by her last testamentary instrument. Subject will was executed at the home of the decedent in the presence of the attorney who drafted it, the son of the decedent, a nurse and the appellant who was the uneducated black household servant of Mrs. Johnson, and had been in her employ for 28 years. The latter two individuals were the only subscribing witnesses to the will. Vera Mae Morris appeals the order of the lower court which voided the bequest of $10,000.00 to her because she was one of the subscribing witnesses.

The probated will contained the following bequest:

“. . . THIRD: I give, devise and bequeath to my faithful servant and maid, VERA MAE MORRIS, of Daytona Beach, Florida, the sum of Ten Thousand ($10,000.00) Dollars, to be hers absolutely, if she shall survive me and be in my employ at the time of my death. It is my intention that if the said VERA MAE MORRIS shall predecease me or shall not be in my employ at the time of my death, this bequest shall lapse and become part of the residue of my estate.”

The earlier will which was used by the attorney in drafting the final instrument contained the identical bequest to Vera Mae Morris.

The legatee, Vera Mae Morris, was summoned from her household duties by the son of the testatrix to serve as a subscribing witness. She was not aware of the effect of her action nor was the attorney cognizant that she was a beneficiary under the will he had prepared. After the testatrix’ death, Vera Mae Morris executed proof of the will and subsequently made inquiries of the attorney who prepared it as to when she would receive her legacy. She was informed that payment could not be made to her until the estate tax return had been accepted by the Internal Revenue Service.

Section 731.07(5) Florida Statutes (1973), which was in effect on the date the will was executed provided:

. . All devises and bequests to subscribing witnesses are void unless there are at least two other disinterested subscribing witnesses to the will. If a subscribing witness would be entitled to a share of the estate of the testator in case the will were not established, he shall take such proportion of the devise or bequest made to him in the will as does not exceed the share of the estate which would be distributed to him if the will were not established.”

Said disqualifying statute was eliminated in the Florida Probate Code which became effective January 1, 1976. Section 732.-504(2) Florida Statutes (1975).

In adopting an avoidance of hardship position in this cause we take into consideration the following:

(1) The plain intention of the testatrix as expressed in both the 1968 and 1973 wills was to insure that her faithful servant, Vera Mae Morris, was provided for in her will. The intention of the testator is the polestar in the construction of his will. 35 Fla.Jur., Wills, Section 264; Lawyer v. Munro, 118 So.2d 654 (Fla. 1st. DCA 1960); Pancoast v. Pancoast, 97 So.2d 875 (Fla. 2nd. DCA 1957). Here the intention that appellant should receive a modest bequest from decedent’s ample estate clearly is manifest from the earlier will, the subject will and the testimony of French Davis, the attorney who prepared the latter instrument.

(2) The relationship of the testatrix and Vera Mae Morris was such as to negative any reasonable inference of improper influence by this uneducated black servant upon her mistress. Vera Mae had served as a maid and cook for Mrs. Johnson for over 28 years and naturally responded to the “command” to witness the will without question or dissent. An obvious purpose of the enactment of Section 731.07(5) Florida Statutes (1973), was to prevent fraud or undue influence by a witness to a will to thwart the intention of the testatrix. Here the strict application of the provisions of the now abolished disqualification of witness would serve to defeat the very purpose for which it was enacted, i. e., the promulgation of the intention of the testatrix. This cannot be permitted under the circumstances of the case sub judice.

Furthermore, in considering the ultimate disposition of the bequest to appellant, we conclude that it comes within the following language of the savings clause of Section 731.07(5) Florida Statutes (1973): “. . . If a subscribing witness would

be entitled to any share of the estate of the testator in case the will were not established, he shall take such proportion of the devise or bequest made to him in the will as does not exceed the share of the estate which would be distributed to him if the will were not established.” (Emphasis added)

Clearly if the 1973 will “were not established”, Vera Mae Morris would receive the identical bequest provided in the 1968 will. She gained nothing by the 1973 will that she was not entitled to under the earlier will. In so holding, we are not unmindful of the wording in In Re Lubbe Estate, 142 So.2d 130 at page 133 (Fla. 2d. DCA 1962), which construes the language of the saving clause to salvage bequests to interested witnesses “only to the extent that such witnesses could take by intestacy”. We respectfully disagree with the reasoning of the 2nd District Court in relating the words “distributed to him” to the word “distribu-tee” and restricting the meaning of “dis-tributee” to a person entitled to the personal estate of one who has died intestate. “Distribution” is made under the terms of a will as well as under the law of descent and distribution. Since the Lubbe decision the legislature has defined “distributee” as “a person who has received estate property from a personal representative other than as a creditor or purchaser”. Section 731.-201(10) Florida Statutes (1975). Such definition is broad enough to include a legatee under a previous valid will. We hold that such limited construction enunciated in the Lubbe decision is not applicable to the instant appeal for the reason just stated and due to the overwhelming equities in favor of the legatee as previously set forth and because of the clearly expressed intent of the testatrix that appellant be compensated for her 28 years of faithful service.

Therefore, we reverse and direct that the bequest to appellant be reinstated.

As to appellant’s claim for interest on the bequest to her from the date of death of testatrix, we find that said bequest was a general legacy to be paid out of the general funds of the estate, and therefore, no interest is allowable. Redfearn Wills and Administration of Estates in Florida, 4th Ed., Sections 12.07 and 12.11.

We find no basis for the allowance of appellant’s claim for attorneys fees from the estate to her attorney for his services in the lower court or on appeal and the claim therefor is denied.

BOYER, C. J., and MILLS, J., concur.


text:
    FEDERAL INSURANCE COMPANY, Appellant, v. UNIGARD MUTUAL INSURANCE COMPANY, Appellee.
    No. 76-1353.
    District Court of Appeal of Florida, Fourth District.
    June 24, 1977.
    Frank E. Maloney, Jr., Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellant.
    Steven R. Berger, Carey, Dwyer, Cole, Selwood & Bernard, Miami, for appellee.
   PER CURIAM.

We find that the trial court erred in failing to make provision for any recovery by the appellant, Federal Insurance Company, for future compensation benefits to be paid the injured employee. See Ramar-Dooley Construction Co. v. Norris, 341 So.2d 546 (Fla.2d DCA 1977). Accordingly, that portion of the order on equitable distribution is hereby reversed and remanded to the trial court with directions that a hearing be conducted in accordance herewith. In all other respects the order is affirmed.

ALDERMAN, ANSTEAD and DAUKSCH, JJ., concur.


text:
    EASTERN SHORES WHITE HOUSE ASSOCIATION, INC., Appellant, v. Milton F. STEINHARDT and Gladys Goldman, as Trustee, Appellees.
    No. 76-976.
    District Court of Appeal of Florida, Third District.
    June 28, 1977.
    Rehearing Denied July 27, 1977.
    Joseph S. Paglino, Miami, for appellant.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and Mark Hicks, Miami, for appel-lees.
    Before HENDRY, C. J., and PEARSON and HUBBART, JJ.
   PER CURIAM.

Affirmed. See Fleeman v. Case, 342 So.2d 815 (Fla.1976); and Yamaha Parts Distributors, Inc. v. Ehrman, 316 So.2d 557 (Fla.1975).


author: PER CURIAM. HUBBART, Judge

text:
    David Samuel BRADLEY, Appellant, v. Judith Anne BRADLEY, Appellee.
    Nos. 76-1147 and 76-1164.
    District Court of Appeal of Florida, Third District.
    June 28, 1977.
    Rehearing Denied July 20, 1977.
    Greene & Cooper and Robyn Greene, Miami, for appellant.
    Judith Anne Bradley, in pro. per.
    Before HENDRY, C. J., and PEARSON and HUBBART, JJ.
   PER CURIAM.

Appellant takes these consolidated appeals from an order denying his petition for modification and from an order denying his petition for rehearing.

A final judgment dissolving the marriage of the parties was entered by the trial court on September 9, 1975. The final judgment awarded custody of the couple’s two minor children to appellee, and required appellant to pay $850.00 a month as alimony and $300.00 a month as child support.

On February 17,1976, appellant, who had remarried shortly after the dissolution, filed a sworn petition for modification, alleging that his income had substantially diminished as of January 1,1976. This petition was denied, as was a subsequent petition for rehearing on the merits of the modification. From the denial of both the petition for modification and the petition for rehearing, these consolidated appeals follow.

We are quite cognizant of the fact, as was the chancellor, that appellant’s income has substantially decreased. We are also keenly aware of appellant’s contention that his current monthly gross income will almost entirely become exhausted by alimony and support payments. Nevertheless, after carefully reviewing the record, briefs and arguments of counsel, in the light of the controlling principles of law, we are of the opinion that the orders appealed from must be affirmed.

We note that in rendering her decision, the chancellor took into consideration appel-lee’s physical and mental condition (which prohibited her from taking employment), the needs of both appellee and the minor children and the fact that appellant is both young and healthy with capabilities of much higher earnings. In addition, it would appear from the record that the chancellor was aware of some of appellant’s business misfortunes at the time of the final judgment of dissolution, which was not appealed by appellant.

It is the function of the trial court to evaluate and weigh the testimony and evidence and once done, it is not the function of the appellate court to re-evaluate or substitute its judgment for that of the trial court, subject to the appellate court’s right to reject inherently incredible and improbable testimony or evidence. Shaw v. Shaw, 334 So.2d 13 (Fla.1976). Accordingly, the orders appealed from are hereby affirmed.

Affirmed.

HUBBART, Judge

(concurring).

I concur in the court’s affirmance in this case solely on the ground that the record fails to establish as a matter of law that the husband-appellant’s income has been substantially reduced since the date of the final decree sufficient to require a modification in the alimony and/or child support awards made in the final decree. The trial judge herein found that the husband had not sustained his burden of proof on this issue and I cannot say that the court abused its discretion in this respect. Fleischer v. Fleischer, 149 Fla. 621, 6 So.2d 836 (1942); Fowler v. Fowler, 112 So.2d 411 (Fla. 1st DCA 1959).

The record upon which the appellant relies for reversal is far from clear, but the evidence adduced at the hearing on the petition for modification appears to indicate that there has been a change in the contractual relationship between the husband and his employer insurance company, which change the husband anticipates will result in a significant reduction in his insurance sales commissions. The record, however, is confusing as to whether the anticipated reduction has actually occurred. Moreover, the record fails to establish that the reduction, if any, is reasonably expected to remain so for the foreseeable future.

If in a future petition for modification, the husband can prove a substantial reduction in his income since the final decree, which reduction can reasonably be expected to remain so for the foreseeable future, the trial court would be obligated to reduce the alimony and/or child support awards herein under Section 61.14(1), Florida Statutes (1975), even though there has been no change in the position or reduction in the financial needs of the wife and minor children. Vilas v. Vilas, 153 Fla. 102, 13 So.2d 807 (1943); Denny v. Denny, 334 So.2d 300 (Fla. 1st DCA 1976);. Gamse v. Gamse, 291 So.2d 620 (Fla. 3d DCA 1974). Since the husband has failed to make the requisite showing to be entitled to a modification of the alimony and/or child support awards in the instant case, I am compelled to concur in the court’s affirmance herein.


text:
    In re ESTATE of Harry FREEDMAN, Deceased. Patricia FREEDMAN, Appellant, v. Judith KRAMER and Roberta Miller, personal representative of the Estate of Harry Freedman, Deceased, Appellees.
    No. 76-1362.
    District Court of Appeal of Florida, Third District.
    June 28, 1977.

      Horton, Perse & Ginsberg and Mallory H. Horton, Dunn & Johnson, Miami, for appellant.
    George J. Talianoff, Miami Beach, for appellees.
    Before HENDRY, C. J., and BARKDULL and NATHAN, JJ.
   PER CURIAM.

Patricia Freedman appeals from an order determining construction of a marital trust. Article Second of the decedent’s Last Will and Testament provided, among other things, as follows:

“If Valerie shall survive me and shall be my wife at the time of my death, I direct that there shall be set apart for her benefits so much, if any, of my estate as shall be required, when added to (1) the sum of $50,000.00 and (2) the value of all items in my taxable gross estate that shall have passed to her otherwise and under this Will and shall qualify for the marital deduction allowable in determining the Federal Estate Tax on my gross estate, to equal in value the maximum marital deduction allowable in determining the Federal Estate Tax on my gross estate. In setting apart such portion of my estate for the benefit of Valerie, there shall not be included therein any property, or the proceeds of any property, which would not qualify for such marital deduction and all values used in computation shall be those finally determined in the Federal Estate Tax proceedings. * * * ”

The trial court ordered that the marital Trust established in Article Second of the Last Will and Testament of Harry Freedman for the benefit of his wife, Valerie K. Freedman, to be a fractional bequest [as opposed to a specific bequest] and, therefore, entitled the wife to the benefit of any increase or appreciation in assets occurring during administration.

According to New York law, the marital deduction trust in the Will should be construed as fractional. Matter of Palitz, 27 N.Y.2d 540, 313 N.Y.S.2d 118, 261 N.E.2d 261 (1970); R. Covey, The Marital Deduction And The Use of Formula Provisions, (Supp.1976), pp. 90-94.

Affirmed.

      . The marital deduction provisions in the Will were interpreted in accordance with New York law, as the Will of the decedent required.


author: HENDRY, Chief Judge. CARROLL, Associate Judge

text:
    The STATE of Florida, Petitioner, v. June INMAN, Respondent.
    No. 76-2013.
    District Court of Appeal of Florida, Third District.
    June 28, 1977.

      Richard E. Gerstein, State’s Atty., and John P. Durant, Asst. State’s Atty., for petitioner.
    Papy, Levy, Carruthers & Poole and Charles C. Papy, Jr. and Sheridan K. Wein-stein, Coral Gables, for respondent.
    Before HENDRY, C. J., NATHAN, J., and CHARLES CARROLL (Ret.), Associate Judge.
   HENDRY, Chief Judge.

Petitioner, State of Florida, appellee below, brings this petition for writ of certiora-ri to review an order of the circuit court, sitting in its appellate capacity, which reversed the conviction of respondent, appellant below, for careless driving, pursuant to Section 316.030, Florida Statutes (1975).

Respondent was charged with careless driving for failure to yield the right of way, causing an accident. At trial in county court, the arresting officer was permitted to read the contents of the accident report into evidence. The report itself, was then admitted into evidence, over objection by respondent’s counsel that said report was based upon hearsay testimony. No other evidence or testimony was presented to the court, nevertheless, respondent was adjudicated guilty as charged and fined.

On appeal, the circuit court reversed respondent’s conviction and certiorari follows.

Petitioner contends that an accident report may be admitted into evidence at trial, to support a conviction for careless driving. Petitioner argues that the apparent conflict between Fla.R.Traf.Ct. 6.460, allowing for the admittance of accident reports into evidence, and Section 316.066(4), Florida Statutes (1975), which in pertinent part provides that “. . . No such report (accident) shall be used as evidence in any trial, civil or criminal, arising out of an accident . ” is resolved in light of the decriminalization of traffic violations. Petitioner states that pursuant to Chapter 318, Florida Statutes (1975), violations are now termed “infractions” and are neither civil or criminal in nature. Therefore, petitioner concludes, accident reports are admissible in a hearing based upon a traffic offense such as careless driving and in reversing respondent’s conviction and holding otherwise, the circuit court departed from the essential requirements of law.

Respondent, on the other hand, states that Section 316.066(4), Florida Statutes (1975), being substantive law, abrogates and is superior to a procedural rule, such as Fla.R.Traf.Ct. 6.460. In addition, respondent argues that the penalties involved in traffic violations are sufficiently serious so as to classify “infractions” as being criminal in nature, thus precluding the introduction of an accident report into evidence based upon Section 316.066(4).

The question, then, raised by the parties is whether Section 316.066(4), Florida Statutes (1975), as substantive law, abrogates Fla.R.Traf.Ct. 6.460, which is procedural in nature, so as to preclude the introduction of an accident report into evidence in a hearing based upon a traffic violation.

Upon consideration of the facts of this case, we are of the opinion that an answer to the above posed question need not be reached for a proper determination on the merits. In reviewing the record of the proceedings in the county court, we note that an adjudication of guilt was based solely upon the testimony of the arresting officer utilizing information found in the accident report. The information found in the report was based upon statements made by witnesses to the accident, including the other party involved, plus ex post facto observations of the officer. No other evidence was introduced at trial nor did any witness (or the other party to the accident), whose statements formed the basis of the report, testify in court. .

In light of the above, we are of the opinion that petitioner failed to present a prima facie case against respondent for careless driving. As mentioned above, the report was based substantially upon the out of court statements of witnesses to the accident. Said statements amounted to hearsay, not lending themselves to the safeguards of cross-examination, and as such, were incapable by themselves, to prove that respondent did in fact commit the traffic violation. United States v. Hicks, 420 F.2d 814 (5th Cir. 1970); Yates v. Bair Transport, Inc., 249 F.Supp. 681 (S.D.N.Y.1965); Smith v. Frisch’s Big Boy, Inc., 208 So.2d 310 (Fla.2d DCA 1968); Annotation, 69 A.L. R.2d 1148.

Petition for certiorari is therefore denied, and the order of the circuit court reversing respondent’s conviction for careless driving is affirmed.

Affirmed.

CARROLL, Associate Judge

(dissenting).

I respectfully dissent, and would grant certiorari.

At the initial hearing, when faced with evidence sufficient to establish commission of the traffic infraction for which she was cited and thereby charged, consisting of the report of the accident and the testimony of the investigating officer from his report, the defendant gambled (successfully as it turned out) on ultimately “beating the rap” by presenting no evidence and relying on objection to admission of the report and contending a determination of commission of the infraction could not be made on such evidence alone, without further testimony. The hearing officer or judge who heard the matter made a determination of commission of the infraction, and the defendant appealed.

The circuit court, on hearing the appeal reversed the determination, holding that Fla.R.Traf.Ct. 6.460, which provides that admissible evidence shall include but not be limited to accident reports at such hearings, was invalid “as contrary to F.S. § 316.-066(4)”, and ordered that the defendant be discharged. The circuit court’s reversal was not based on any holding as to the sufficiency of the evidence portrayed by the report.

On the State’s petition for review thereof by certiorari, this court, in denying certiora-ri, did not rule on the correctness or incorrectness of the ground upon which the circuit court reversed, but upheld the circuit court on the ground that the evidence supplied by the report, which showed commission of the violation, together with the investigating officer’s testimony which was no more than was revealed by the report, was not capable of establishing a prima facie case, concluding the information in the report involved hearsay, being based on statements to the investigating officer by witnesses to the accident. The report shows on its face that there were no witnesses to the accident other than the two drivers.

But if there had been witnesses, the physical evidence was such that the investigating officer could have made the said report showing commission of the infraction, aside from information of any witnesses, except for statements of the parties as to their speed, and the statement which appeared to have been made by the other party that he tried to stop. Even as to the latter, there was physical evidence from the tire marks and positions of the cars after the accident from which the officer could have so concluded.

The citation issued to the defendant checked the boxes reading “careless driving” and “violation of right of way” and added “from stop sign” and “accident”. The report of the investigating officer included an intersection chart on which were indicated the directions of travel, the location of the point of impact, the places of contact of the cars and the positions at which the cars came to rest after the collision. Thereby it was shown that the accident occurred in the intersection of University Drive with Riviera Drive in Coral Gables; that the other car was proceeding east on University Drive, a through street; that the defendant’s car was proceeding north on Riviera Drive, on which traffic entering the intersection there was controlled by a stop sign; that the collision occurred in the intersection in the lane in which the other car was traveling, with the right front of the other car coming into contact with the forward part of the left side of the defendant’s car; that behind the other car there were certain tire marks and that the position of the other car, after the accident, was in its driving lane, angled slightly to the left, and that it had remained at the point of impact; that the defendant’s car, after impact, had proceeded across the intersection and had come to rest just beyond the intersection on the right side curb. Those positions of the cars, with the determinable point of impact, were sufficient to prompt the report that the defendant’s car had pulled out into the intersection into the path of the other vehicle which was approaching the intersection on the through street.

In the Rules of Practice and Procedure for Traffic Courts promulgated by the Supreme Court, Rule 6.460 provides as follows:

“The Rules of evidence applicable in all hearings of traffic infractions shall be the same as in civil cases and shall be liberally construed by the official hearing the case. Evidence admissible shall include but not be limited to accident reports”.

Section 316.066 Fla.Stat. (1975) by subsection (1) requires written reports of accidents resulting in bodily injury or death of a person or total damage to property to an apparent extent of $100 or more. Subsection (4) thereof, among other things, provides that no such report “shall be used as evidence in any trial, civil or criminal, arising out of an accident” (with an exception noted there).

First, regarding the effect of the apparent conflict in the statute and the rule, there is no conflict in the cases of traffic infraction hearings not involving an accident, or in those which involve accidents that are not of the kind for which the statute required a written report. In addition, there is no conflict in any case because the use of such reports as evidence which the statute precludes is in the trial of civil or criminal actions arising out of the accident. The hearing in this case was not a criminal action, nor was it a civil action arising out of the accident. The above quoted rule so recognizes, where it states that in all hearings on traffic infractions, the rules of evidence applicable “shall be the same as in civil cases”.

Moreover, if the rule and the statutory provision relating to use of a report as evidence were in conflict, the rule would prevail. See Section 25.371 Fla.Stat. (1975); School Board of Broward County v. Surette, 281 So.2d 481, 483 (Fla.1973); Bernhardt v. State, 288 So.2d 490, 496-497 (Fla.1974); Johnson v. State, 308 So.2d 127, 129 (Fla. 4th DCA, 1975). Both the rule and the above mentioned statutory provision announce a rule of practice and procedure, rather than one of substantive law. They do not create or confer rights or obligations to be enforced by litigation, but deal with the manner of the handling of litigation, and as such are rules of practice or procedure. See Benyard v. Wainwright, 322 So.2d 473, 475 (Fla.1975); In Re: Clarification of Florida Rules of Practice and Procedure, 281 So.2d 204 (Fla.1973); In Re: Florida Rules of Criminal Procedure, 272 So.2d 65 (Fla.1973); Heberle v. P.R.O. Liquidating Co., 186 So.2d 280 (Fla. 1st DCA, 1966).

That brings up consideration of the legal and evidentiary effect which shall be given to an accident report which is filed in evidence in a hearing on a traffic infraction. The circuit court held the report could not be used as evidence in the case. Here the majority treats the report as being admissible as evidence on the traffic infraction hearing, but holds that the evidence which the report supplies, though otherwise suffi-dent, is not capable of showing a prima facie case (because it is based on an after the fact investigation and involves hearsay) unless in addition thereto there is evidence in the form of testimony of a party or parties or witnesses if any. With that view I am unable to agree.

The fact that the rule contained a provision that the evidence admissible should not be limited to the accident report, should not be construed to mean that the evidence supplied by the accident report, if sufficient to make a prima facie case, would not be so considered unless other evidence also was produced. To so interpret the rule, would result in defeating the main and underlying purpose of Chapter 318 Fla.Stat. (1975) relating to Disposition of Traffic Infractions. In Section 318.12 thereof it was stated that the legislative intent in adopting the chapter was to decriminalize certain traffic violations, “thereby facilitating the implementation of a more uniform and expeditious system for the disposition of traffic infractions”.

In my opinion certiorari should have been granted, quashing the judgment of reversal entered by the circuit court, vacating the order for discharge, and reinstating the determination of commission of the traffic infraction.


author: OTT, Judge.

text:
    Lewis Russell LAUCK, Appellant, v. James MAISSEN, Appellee.
    No. 76-761.
    District Court of Appeal of Florida, Second District.
    June 29, 1977.
    Johnson S. Savary of Kirk, Pinkerton, Sparrow, McClelland & Savary, P.A., Sarasota, for appellant.
    C. Eugene Jones of Ginsburg & Byrd, P.A., Sarasota, for appellee.
   OTT, Judge.

This case and Maissen v. Maissen, 347 So.2d 798 (Fla.2d DCA 1977) (Case No. 76-1397, Opinion filed June 29, 1977) were filed on the same date, were tried by the same judge and treated together for certain purposes and then consolidated for appellate consideration. While the two cases arise out of a common set of facts and circumstances they each involve different parties and present different legal problems.

In this case the pleadings, as amended, the depositions and other evidence presented two fundamental issues to the lower court involving:

1.) Rescission of appellant’s deed of real property as to the interest of the ap-pellee.
2.) An accounting of cattle, equipment, bank accounts and other personal property.

Both of the parties moved for summary judgment in due course and the trial court granted the motion of the appellee. The effect of the final summary judgment was a complete disposition of the case on both points. The language, however, was limited to a denial of rescission of the deed to the real property. Neither the evidence presented to the trial court, its findings nor its judgment dealt with or purported to determine the rights of appellee and appellant as to the ownership of the other property or an accounting of the same as between them. The judgment specified that it was in no way to be interpreted as affecting the property rights of the appellee and his wife (daughter of the appellant) in their suit for dissolution of marriage.

We affirm the trial court insofar as its final judgment denies rescission of the appellant’s deed to the appellee but must reverse as to the summary judgment being a final disposition of the cause. The issues as to the rights of the parties to cattle, equipment, bank accounts and other property or accountings remain controverted and unresolved. The case must, therefore, remain open for such further proceedings as might be appropriate to their proper determination.

The appellant had occupied a top executive position with Sears Roebuck for a number of years. His responsibilities encompassed company operations in the continental United States, Puerto Rico and several South American countries. He, his wife and only child (a daughter) were in Venezuela sometime in the year 1955. There the daughter met the appellee, Maissen, and they were married about one year later.

Maissen was a Swiss national of Venezuelan citizenship and an employee of Pan American Airways in that country. He carried on various independent business activities in Venezuela involving land and currency speculation both individually and through a corporation. All property, bank accounts and other assets in Venezuela were and still remain in his name only. The appellee’s wife did not work during the marriage and had turned over to him a $10,000 cash gift from her mother and father at about the time they were building a home on a portion of the appellee’s land in Venezuela.

In the early 1960’s the appellant purchased 373 acres of raw and undeveloped land in Sarasota County, Florida. Shortly before his retirement the appellant commenced to develop the acreage into improved ranch land. Following retirement he and his wife moved to Sarasota in 1967 and the appellant devoted full time to the development and operation of a Charoláis cattle ranch, pioneering in the relatively new concept of breeding through artificial insemination.

The appellee had taken cattle husbandry courses from time to time and was generally interested in cattle raising but had never been personally involved in a cattle operation.

Inconclusive discussions occurred between the appellant and the appellee relative to appellee moving to Sarasota and joining the appellant in the ranch operation and development.

In 1969, the appellant and his wife deeded an undivided 45 percent interest in the ranch real estate to their daughter. She was not given or ever considered to have any interest in the ranch income or its cattle, equipment, bank accounts or other assets by virtue of this deed.

On April 28, 1971, appellant’s grandson was born to the Maissens. Appellant’s wife died in July of 1971. He spent Christmas of 1971 in Venezuela with the Maissens. At that time he made a gift, by two written instruments, of 10 specifically described Charoláis cattle to his daughter and 10 to the appellee.

By this time the appellant was anxious to get out of the active operation of the ranch but did not desire to sell out as he felt it was a good investment and was now moving into a profitable operation. Thus, he pressed the appellee for a definite decision as to whether he would move to Sarasota and take over full management of the cattle ranch. The appellee agreed to do so as quickly as his affairs in Venezuela could be put in order. Appellant offered the appel-lee all of the profits realized from the ranch operation and personally guaranteed that this would not be less than $1,000 per month for the first year. There were discussions on the breeding process and other aspects of the ranch operation but no express requirements or commitments were made in that regard. There was no promise, request or even discussion of any transfer of the appellant’s remaining 55 percent interest in the land nor of the transfer of ownership of any of the other ranch assets.

The appellant’s daughter received substantial cash, jewelry and stocks — totaling approximately $60,000-$70,000 — from her mother’s estate during 1972 and 1973 which remained her individual property.

In 1972 appellee and/or his wife made one or more trips to the United States to look for suitable housing and attend to other matters preliminary to the move. They were settled in Sarasota by March of 1973.

In January, 1973, the appellant discussed with his daughter the advisability of ultimately titling the ranch in both her and her husband and/or appellant’s grandson. The daughter agreed but assumed the appellant referred to their future inheritance.

In February, 1973, the appellant made and recorded a deed of the remaining undivided 55 percent interest in the ranch land to the Maissens as husband and wife, thereby creating a tenancy by the entirety. The appellee and his wife were unaware of any intention of appellant to convey the land to them nor were they aware of the execution and recording of this deed until its delivery to them a few months later. The deed contained no condition on its face and there was no written or oral understanding, agreement, commitment or obligation requiring the conveyance or conditioning its transfer. No description or even general reference was made to cattle, cash, equipment or any other property in the deed. The appellant left the ranch in the hands of another man pending arrival of the Mais-sens in March, left on a vacation trip before they arrived and did not return until April or May.

The deed was physically handed to the appellee and his wife sometime in June or July of 1973. Appellee and his wife were surprised and overwhelmed. In the ensuing discussion there was again no mention made of any condition for the transfer of the land nor was there any mention of the transfer of ownership of any other property-

The appellant thereafter took no further part in the operation or management of the ranch. He began to travel extensively and ultimately remarried.

Marital differences developed between the appellee and appellant’s daughter. Due to changing economics and other factors the ranch failed to prove as profitable as originally anticipated. The appellee began to make frequent returns to Venezuela, on some occasions for six weeks or more. Ap-pellee also transferred substantial sums of money from a joint account with his wife for use in his Venezuelan ventures and became more involved apart from the ranch. He maintained separate bank accounts in Europe, Venezuela, Miami and Sarasota.

This suit and the daughter’s petition for dissolution of marriage were filed on May 8, 1975.

The testimony of the appellant and his daughter utterly fails to suggest anything other than a voluntary and unconditional gift. Neither fraud, mistake nor any other basis for rescission of the deed of the real property has been demonstrated. See, e. g., Langley v. Irons Land & Development Co., 94 Fla. 1010, 114 So. 769 (1927); International Realty Associates v. McAdoo, 87 Fla. 1, 99 So. 117 (1924). The summary judgment is therefore affirmed on this point.

The pleadings, as supplemented by the depositions, at least create a material issue as to a gift to the appellee of any of the cattle (other than those given in 1971), equipment and other property. It would even appear doubtful that there is sufficient competent evidence to support appel-lee’s claim that such a gift was intended. In any case, the summary judgment is reversed on this point and the cause is remanded for further proceedings including a complete accounting between the parties as their interests are made to appear.

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