author: HENDRY, Judge.

text:
    CENTURY 21 ADMIRAL’S PORT, INC., Appellant, v. Daniel NOVAK and Ruth Novak, his wife, Appellees.
    No. 75-1752.
    District Court of Appeal of Florida, Third District.
    Nov. 16, 1976.
    Frates, Floyd, Pearson, Stewart, Proenza & Richman and James D. Little and Celeste Hardee, Miami, for appellant.

      Herman Grayson, Miami Beach, and Frank M. Brezina, Miami, for appellees.
    Before BARKDULL, C. J., and HENDRY and NATHAN, JJ.
   HENDRY, Judge.

Appellant was the defendant below and appellees were the plaintiffs.

Appellant appeals a final judgment entered by the trial court on September 29, 1975, granting appellees’ motion for summary final judgment as to Count I of their complaint and denying appellant’s motion for summary judgment.

On December 17, 1973, appellees entered into an agreement to purchase a condominium unit from appellant. Paragraph six (6) of the purchase agreement provided that the “Seller estimates that the unit will be ready for title closing by the end of summer, 1974.”

Paragraph seven (7) of said purchase agreement provided that:

“In the event title does not close by the end of the period inserted in Paragraph 6 plus ninety days, Buyer shall have the right to rescind the transaction and procure the return of all payments made under this Agreement . . . Delays caused by acts of God, acts of governmental authorities, floods, hurricanes, strikes, labor conditions beyond Seller’s control, unavailability of materials, manpower or utilities, or any other causes not within Seller’s control shall be added to the ninety days referred to in the preceding sentence . . . ”

Due to various delays including strikes, material shortages and unavailability of utility service, there was no closing in the summer of 1974. On December 26, 1974, appellees demanded a return of their deposit money which had been given appellant at the time of the execution of the purchase agreement. Appellants, however, did not return said deposit to appellees.

Soon after, on January 13,1975, appellees were given notice that a closing would be held on January 30, 1975, however, that same day, appellees filed their two count complaint. Count I of appellees’ complaint alleged breach of contract by appellants in that the unit was not completed as scheduled. Count II of said complaint claimed that appellant’s refusal to refund the deposit was tantamount to a conversion of appel-lees’ money.

After appellant filed his answer, raising affirmative defenses, appellee filed his reply. Both sides then moved for summary judgment. Appellants filed supporting affidavits, while appellees relied upon appellant’s answers to interrogatories and admissions directed to appellees’ exhibits.

The trial court entered a final summary judgment for appellees on September 29, 1975. Appellants moved for a rehearing on November 4, 1975, which was denied. This appeal follows.

Appellant’s basic contention is that the trial court erred in granting appellees’ motion for final summary judgment in that there remained for determination, genuine issues of material fact left unresolved by the trial court.

To support its contention, appellant refers to an affidavit of a general contractor, which basically states that all delays encountered by appellant in attempting to complete the project were beyond appellant’s control. As such, the failure of appellants to timely close was excusable, as per paragraph seven (7) of the purchase agreement.

Appellees, however, contend that appellant had knowledge of those very same delays mentioned in the contractor’s affidavit and in fact reassured appellees that said delays would not effect the scheduled closing date. In support of that contention, appellees point to various exhibits, in the form of newspaper advertisements and promotional letters, which were introduced at trial. These exhibits, which were in fact mailed to appellees by appellant to reassure them of a timely completion date, stated that the delays planning other developments in the community would not affect the progress of appellant’s project and completion would be as scheduled. As such, appellees claim that the delays were not a factor in the failure of appellant to close as scheduled and therefore, the closing date was not extended by events beyond appellant’s control and the delay was not excusable.

In light of the above allegations, plus others we need not mention, we must hold that there remained genuine issues of material fact left unresolved by the trial court. As such, it was error to grant appellees’ motion for summary judgment as to Count I of their complaint.

To cite authority for the above proposition would serve no real purpose as it is an elementary principle of law that a summary judgment cannot be granted when there remains genuine issues of material fact left unresolved; however, for purposes of reference see Fla.R.Civ.P. 1.510, Summary Judgment, 31 Fla.Stat.Ann. 48 (1967) and cases cited thereunder.

In light of our decision, we need not discuss appellant’s other points raised in its brief.

We have considered the record, all points in the briefs and arguments of counsel in the light of the controlling principles of law, and have concluded that reversible error has been demonstrated. Therefore, for the reasons stated and upon the authority cited, the judgment appealed from is reversed and remanded to the trial court for further proceedings not inconsistent with this opinion.

Reversed and remanded.


source: Caselaw Access Project

author: NATHAN, Judge.

license: Public Domain

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a Foreign Corporation, Appellant, v. Marta Elena CASTANEDA, Appellee.
    No. 75-1767.
    District Court of Appeal of Florida, Third District.
    Nov. 16, 1976.
    Rehearing Denied Dec. 15, 1976.
    Walton, Lantaff, Schroeder, Carson & Wahl and George W. Chesrow, Miami, for appellant.
    Luis Stabinski, Miami, Greene & Cooper, for appellee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   NATHAN, Judge.

This is an appeal by State Farm Mutual Insurance Company, defendant in the trial court, from a summary judgment in favor of the plaintiff, Maria Castaneda, in an action to determine personal injury protection (PIP) benefits under the provisions of the Florida Automobile Reparations (no-fault insurance) Act and also medical payments under the terms of the insurance policies issued by defendant.

The principal issue on appeal is the validity of the exclusionary provision of the no-fault insurance act which authorizes an insurer to limit coverage for PIP benefits for injuries sustained by an insured while occupying another motor vehicle which is owned by the named insured but not covered under the policy.

The facts are not in dispute. Plaintiff, a resident of the same household as her father, was injured in an accident involving a Pontiac automobile, owned by her father, in which she was a passenger. At the time of the accident, the Pontiac as well as three other automobiles owned by the Plaintiff’s father were insured by State Farm, each under a separate policy. Separate premiums were paid for each. The policies provided identical PIP benefits of five thousand dollars, as required by the no-fault insurance act. The insurance policy covering the vehicle in which Plaintiff was a passenger and the policies on two of the other cars also provided medical payment coverage of one thousand dollars. This coverage is exclusive of any PIP benefits.

As a result of the accident, Plaintiff suffered medical expenses in excess of $23,000. State Farm paid Plaintiff $5,000 in PIP benefits and $1,000 in medical payments under the provisions of the policy covering the Pontiac. Plaintiff demanded an additional $5,000 in PIP benefits under each of the three other automobile policies, a total of $15,000, and an additional $1,000 under the medical payment provisions which were contained in two of the other policies, totaling $2,000.

The issues presented here as to PIP benefits have not been determined by other decisions. From the undisputed facts as presented, the trial court found that State Farm owed the Plaintiff a total amount of $20,000 in PIP benefits ($5,000 for each automobile) and medical payments coverage of $3,000 ($1,000 for each of three vehicles).

Florida Statutes § 627.736(2)(a) provides in pertinent part:

“Required personal injury protection benefits; exclusions; priority
******
(2) Authorized exclusions. — Any insurer may exclude benefits:
“(a) For injury sustained by the named insured and relatives residing in the same household while occupying another motor vehicle owned by the named insured and not insured under the policy . . . .”

The State Farm insurance policies covering the four cars each contained the following provisions:

“EXCLUSIONS
THIS INSURANCE DOES NOT APPLY:
(a) TO THE NAMED INSURED OR ANY RELATIVE WHILE OCCUPYING A MOTOR VEHICLE OF WHICH THE NAMED INSURED IS THE OWNER AND WHICH IS NOT AN INSURED MOTOR VEHICLE UNDER THIS INSURANCE . .

Under the clear terms of the policies, the Plaintiff was not covered for PIP benefits under the separate insurance policies covering the three automobiles owned by the father in which Plaintiff was not a passenger at the time of the accident.

Plaintiff urges that she is entitled to “stack” the PIP benefits which were payable under each insurance policy. In so doing Plaintiff relies on the public policy rationale of Mullis v. State Farm Mutual Ins. Co., 252 So.2d 229 (Fla.1971). In Muilis, two policies had been issued; one covered two automobiles owned by the insured. The court in that case held that the insurer could not exclude Uninsured Motorist Coverage for instances where the insured occupied another motor vehicle which he owned, but which was not an insured motor vehicle under the policy. This authority is not persuasive, since the Uninsured Motorist provision of the Florida Statutes does not contain any authorized exclusions, whereas certain express exclusions are contained within the sections pertaining to PIP benefits, as noted above. Moreover, the PIP benefits exclusion which was authorized by the Florida legislature and included in the State Farm policy is clear, unambiguous and specific. As such, it requires no construction or interpretation. Oren v. General Accident Fire and Life Assur. Corp., 175 So.2d 581 (Fla.3d DCA 1965). Thus, the exclusionary provisions in the State Farm policies relating to PIP benefits are valid and binding on the Plaintiff.

Three of the policies in question provide medical payments coverage to:

“[T]he first person named in the declarations, and, while residents of his household, his spouse and any relatives of either who sustains bodily injury, caused by accident (1) while occupying the owned motor vehicle.”

The “owned motor vehicle” is defined as the vehicle which is described in the policy declarations. The Plaintiff urges that where three policies were issued on different automobiles to the same insured by the same insurer and all provided medical payments coverage, the policies must be read and construed with reference to each other, and coverage should therefore be “stacked.” We agree, on the authority of Tucker v. Government Employees Ins. Co., 288 So.2d 238 (Fla.1973), Dyer v. Nationwide Mutual Fire Ins. Co., 276 So.2d 6 (Fla.1973), and Government Employees Ins. Co. v. Sweet, 186 So.2d 95 (Fla.4th DCA 1966). The mere fact that separate policies were issued to the insured Plaintiff’s father, rather than a combination policy as in the Dyer and Sweet cases, supra, is not determinative as to whether coverage should be “stacked” in this instance. As was noted in both Dyer and Sweet, medical payments insurance is a non-fault type of insurance, to the extent that it is not dependent upon the car in use at the time of the accident. It is not attributable to a specific automobile. Each of the three policies with medical payments provisions in the case before us provide for coverage of family members who are struck by a highway vehicle while not occupying another automobile. In such a situation, as was similarly noted in Sweet, it would be impossible to determine which of the three policies afforded coverage. We are of the opinion that all three policies must therefore be interpreted as providing medical payments coverage in the instant action.

Affirmed in part and reversed in part.

      . § 627.727, Fla.Stat. (Supp.1973).


author: PER CURIAM.

text:
    E. Richard MILLS, Jr., Appellant, v. Martha B. MILLS, Appellee.
    No. BB-169.
    District Court of Appeal of Florida, First District.
    Nov. 17, 1976.

      Herbert T. Schwartz of Schwartz & Dearing, Gainesville, for appellant.
    Lynn James Hinson of Turnbull, Abner & Daniels, Winter Park, for appellee.
   PER CURIAM.

This is an appeal from a judgment on the pleadings entered against the appellant/husband on his petition for modification.

In 1971 the parties entered into a “Separation and Property Settlement Agreement.” Shortly thereafter, they were divorced, and the agreement was approved and confirmed in the final judgment of dissolution. Among the provisions of the agreement were the requirements for the payment of funds into a trust in order to pay the premiums on the husband’s life insurance policies of which the wife was the beneficiary and for the payment of substantial alimony to the wife through the trustee.

Four years later, the husband filed a petition for modification of final judgment in the same proceeding alleging that he had recently discovered facts which if known at the time of the execution of the settlement agreement and the entry of the judgment of dissolution would have precluded his agreement or acquiescence to the entry of the court’s order. The petition stated in pertinent part:

“3. The property settlement agreement was entered into by Petitioner in the belief that the Wife (hereafter referred to as Respondent) suffered from a debilitating cardiac condition which would impair her ability to maintain herself. Terms of said agreement pertaining to payment of alimony and the creation of a trust were predicated upon the same belief.
“4. Your Petitioner is now aware of recently discovered medical evidence which would obviate Respondent’s need to be totally maintained and supported by alimony from Petitioner. Further, the basis upon which the aforesaid trust was established (paragraph 3 of the property settlement agreement) no longer is viable. Requirements of medical support thought to be necessary for reason of Respondent’s cardiac condition are not, nor were they ever obliged by facts.
“5. Such facts, recently learned by the Petitioner, were not discoverable or extant at the time of this Court’s Final Judgment.
“6. The needs of the Respondent for alimony have thus decreased since entry of the Final Judgment and, the ability of Petitioner to pay alimony sums specified in the property settlement agreement has decreased.”

The petition concluded with a prayer for the court to modify the alimony payments and to dissolve the trust in favor of a provision for the direct payment of alimony to the wife. The wife filed a response admitting that she had a heart condition when the settlement agreement was executed but denying the other pertinent provisions of the petition. Thereafter, the court entered an order granting the wife’s motion for judgment on the pleadings.

The function of a motion for judgment on the pleadings is to raise questions of law arising out of the pleadings. Wagner v. Wagner, 196 So.2d 453 (Fla. 4th DCA 1967). In considering a motion for judgment on the pleadings, all well-pleaded material allegations of the opposing party’s pleadings are taken to be true and all allegations of the moving party which have been denied are taken as false. Miller v. Eatmon, 177 So.2d 523 (Fla. 1st DCA 1965). Since conclusions of law are not deemed admitted, such a judgment may be granted if on the facts as admitted the moving party is clearly entitled to a judgment. Miller v. Eatmon, supra. On the basis of the admitted facts in these pleadings, the wife was entitled to a judgment on the pleadings.

The husband contends that he is entitled to seek a modification of the alimony payments under Section 61.14, Florida Statutes (1975), yet it is obvious from a study of the Separation and Property Settlement Agreement that this instrument was more than “an agreement for payments for, or instead of support, maintenance or alimony” which is subject to modification under that statute. The agreement contained provisions whereby the wife gave up her interest in certain joint bank accounts and savings accounts and gave to the husband the right to sell the parties’ home and retain the proceeds. The parties also released each other from all claims that they might have against one another. Where a separation agreement contains provisions whereby one party surrenders valuable property interests and at the same time is to receive periodic payments specified as alimony, such agreements are not subject to modification. Salomon v. Salomon, 196 So.2d 111 (Fla.1967); Fort v. Fort, 90 So.2d 313 (Fla.1956); Gilbert v. Gilbert, 312 So.2d 511 (Fla. 3d DCA 1975).

If the husband’s petition were construed to be a motion for relief from judgment under Fla.R.Civ.P. 1.540, the result would be the same. This rule does provide that the court may relieve a party from a final judgment by reason of mistake, but it goes on to specify that a motion predicated upon mistake must be made within one year after the judgment is entered.

Even if it could be argued that this is simply a suit for reformation of a contract which is couched in terms of a petition for modification because the contract was confirmed in the final judgment, the petition does not state a cause of action for reformation. The allegations of the petition simply state that the husband entered into the settlement agreement upon the mistaken belief that his wife had a debilitating cardiac condition. There are no allegations that his wife was under such a mistaken view or that this was why she entered into the agreement. Unilateral ntistake is not a ground for reformation. Continental Casualty Co. v. City of Ocala, 99 Fla. 851, 127 So. 894 (Fla.1930); Fidelity Phenix Fire Ins. Co. v. Hilliard, 65 Fla. 443, 62 So. 585 (Fla.1913).

Finally, the husband seems to have misconstrued his remedy. He asserts reformation whereby the alimony and trust provisions of the agreement would be stricken and in lieu thereof asks the court to set reasonable alimony based upon the wife’s present needs and his financial circumstances. Yet, the theory of reformation on grounds of mistake is to reform an agreement to reflect what the parties would have agreed to had there been no mistake. There must have been a definite prior agreement to which the instrument can be made to conform. Langley v. Irons Land & Development Co., 94 Fla. 1010, 114 So. 769 (Fla.1927). Assuming, for the sake of argument, that there was a mutual mistake concerning the wife’s heart condition, there is no way that the court could rewrite the agreement for the parties to set forth the amount of alimony which would have been agreed upon had the true facts been known. Cf. Camichos v. Diana Stores Corporation, 157 Fla. 349, 25 So.2d 864 (1946). The husband does not request a rescission of the entire settlement agreement, and even if he did, his petition would not support a claim for rescission because there is no indication that the parties could be returned to the status quo and he has not made an offer to do so. See Smith v. Chopman, 135 So.2d 438 (Fla. 2d DCA 1961).

AFFIRMED.

BARKDULL, THOMAS H., Jr., Acting C. J., and GRIMES, STEPHEN H. and MELVIN, WOODROW M., Associate Judges, concur.


author: SMITH, Judge.

text:
    ZUCKERMAN-VERNON CORP., Petitioner, v. STATE of Florida, DEPARTMENT OF REVENUE, Respondent.
    No. BB-492.
    District Court of Appeal of Florida, First District.
    Nov. 17, 1976.
    Rehearings Denied Dec. 16, 1976.
    Burton Young, North Miami Beach, and William L. Rogers, Miami, of Snyder, Young, Stern, Barrett & Tannenbaum, P. A., North Miami Beach, for petitioner.
    Robert L. Shevin, Atty. Gen., and Harold P. X. Purnell, Asst. Atty. Gen., for respondent.
   SMITH, Judge.

Zuckerman-Vernon Corp. has petitioned for review of the Department’s assessment of documentary stamp taxes in the amount of $55,649.70 and a penalty in the same amount for petitioner’s failure to affix documentary stamps to a deed from Bayshore 21, Inc., to petitioner and its joint venturer, Marvin Glick. Secs. 120.68, 201.02, P.S. 1975. Petitioner insists that the conveyance from Bayshore to the joint venturers on August 27, 1973, was but part of the same transaction in which Bayshore acquired the property August 23, 1973, as trustee for the joint venturers. Documentary stamps in the appropriate amount were affixed to the earlier deed.

Petitioner urges that the joint venturers provided Bayshore all the cash required for its acquisition of the property, personally guaranteed Bayshore’s mortgage notes and intended that Bayshore should hold only a paper title for the brief period necessary to arrange Bayshore’s financing on the strength of the guarantors’ credit. The joint venture agreement dated August 23, to which Bayshore was not a party, recited that Bayshore “has taken title” as trustee. The hearing officer noted that interest rates at the time were higher than those which could lawfully be contracted for by an individual.

The hearing officer found as facts that Bayshore contracted to buy in its corporate name, not as trustee or in another representative capacity, placed $500,000.00 earnest money in escrow when executing the purchase and sale agreement, and took title in its own name, not as trustee. The hearing officer found it was Bayshore’s funds, borrowed or otherwise, which made the purchase possible and found no evidence of an express trust relationship between Bay-shore and the joint venturers. She further found no evidence that Glick provided Bay-shore with cash to secure the purchase and sale agreement or, if he did, that he did so as petitioner’s joint venturer rather than as Bayshore’s principal.

To overcome these findings, petitioner relies on the retrospective recitation in the joint venture agreement, on joint venture records showing receipts and disbursements on and after August 23 and on unsworn statements made by counsel interpreting the mute documents. The transaction was color ably like that involved in River Park Joint Venture, 315076 v. Dickinson, 303 So.2d 654 (Fla.App. 1st, 1974), cert. den. 315 So.2d 195 (Fla.1975), and Department of Revenue v. Bel-Aire Village, Ltd., 334 So.2d 610 (Fla.App. 1st, 1976), cert. pending (Fla.1976), but it would be entirely inappropriate for us on this record to characterize the interest acquired by Bayshore on August 23 as the “bare legal title” of a trustee. River Park, 303 So.2d at 655. The principal evidence on which petitioner relies to overcome the hearing officer’s findings is nothing more than unsworn argument by counsel who, though perhaps in a position to testify, did not. Our duty is not to substitute our judgment concerning the weight of the evidence on disputed findings, but only to set aside agency action if it is not supported by competent substantial evidence in the record. Sec. 120.68(10), F.S.1975. Petitioner has not demonstrated error. We will therefore deny the prayer of the petition to review and quash the assessment of the documentary stamp tax.

The assessment of a $55,649.70 penalty is, however, another matter. The State adds gratuitous insult to injury by insisting that this stamp tax be paid not once, not twice, but three times. Though petitioner’s proof failed, it took a substantial position and advanced it in good faith with significant supporting evidence. The question was fairly debatable. If the amount of the penalty assessed pursuant to § 201.17(2), F.S., is a matter generally within the discretion of the Department, the record contains no evidence that the Department exercised informed discretion before acting to assess a $55,649.70 penalty.

On this record, we find such a penalty unconscionable. Therefore, in the exercise of our equitable powers, we will permit assessment of a penalty in a lesser and reasonable amount necessary for protection of the State’s interest. Dominion Land & Title Corp. v. Department of Revenue, 320 So.2d 815, 818 (Fla.1975). A penalty of no more than $5,000 is appropriate.

The petition for review will be granted in part and the Department’s order modified to provide for a penalty of $5,000, instead of $55,649.70.

GRANTED IN PART, DENIED IN PART.

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


text:
    Howard HOOL and Irene Hool, Individually and Jointly, Appellants, v. BVA CREDIT CORPORATION, Appellee.
    No. 76-116.
    District Court of Appeal of Florida, Second District.
    Nov. 17, 1976.
    Rehearing Denied Dec. 16, 1976.
    W. K. Zewadski of Zewadski & Smith, St. Petersburg, for appellants.
    Larry E. Solomon of Law Offices of Samuel Hyman, Tampa, for appellee.
   PER CURIAM.

The summary judgment entered herein by the trial court in favor of appellee is affirmed. However damages for future lease payments which would have accrued after the date of the entry of said judgment should be reduced to present worth. See Latour Auto Sales, Inc. v. Stromberg-Carlson Leasing Corp., 335 So.2d 600 (Fla.D.C. A.3d 1976).

AFFIRMED but REMANDED for re-computation of the amount of damages.

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


author: PER CURIAM. MILLS, J.,

text:
    Thomas R. FLINCHUM, Appellant, v. STATE of Florida, Appellee.
    No. Z-474.
    District Court of Appeal of Florida, First District.
    Nov. 19, 1976.
    Rehearing Denied Dec. 22, 1976.
    Joe C. Miller, II, of Miller, Perry & Miller, Palatka, Dan R. Warren of Judge & Warren, Daytona Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Carolyn M. Snurkowski, Asst. Atty. Gen., for appellee.
   PER CURIAM.

AFFIRMED.

BOYER, C. J., and SMITH, J., concur.

MILLS, J., dissents.

MILLS, J.,

dissents:

I dissent. In my judgment, the remarks made by the trial court during the examination of witnesses for the defendant were prejudicial and as a result the defendant was denied a fair trial.

I would reverse and remand for a new trial.


text:
    Willie G. DIXON, Appellant, v. STATE of Florida, Appellee.
    Nos. 75-912, 75-913, 75-914.
    District Court of Appeal of Florida, Second District.
    Nov. 19, 1976.
    Jack 0. Johnson, Public Defender, and Thomas A. Pobjecky, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Dixon appeals from judgments and sentences for breaking and entering with intent to commit a felony, to wit: grand larceny, buying, receiving and concealing stolen property, and possession of heroin which were entered following revocation of probation. The sentences were fifteen years for the breaking and entering, five years for possession of heroin (to be served consecutively), and three years for receiving stolen goods (to be served concurrently).

Only one point merits discussion, that relating to whether appellant received full credit for jail time. The record on appeal includes a letter from the warden of the Hillsborough County Jail indicating that appellant was incarcerated from April 25, 1978 to August 6, 1973, early on in his current troubles with the law, for possession of stolen property, possession of heroin and carrying a concealed weapon. If appellant had been actually incarcerated for these charges, and the possession and breaking and entering charges are the same ones appealed here, he is entitled to credit if he has not already received it. He is not entitled to duplicate credit, however; and the record on appeal does not reflect whether or not he has already received credit for the jail time served from April 25 to August 6.

The orders revoking probation are therefore affirmed but this cause is remanded with directions to the trial court to determine whether appellant is entitled to credit for his incarceration from April 25 to August 6,1973. If he is entitled to credit, it is unnecessary that appellant be resentenced. The trial court may enter an order correcting appellant’s jail time credit and appellant need not be returned to the court for this purpose.

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

      . See Miller v. State, 297 So.2d 36 (Fla. 1st DCA 1974). While appellant was incarcerated prior to the amendment of Section 921.161(1), Florida Statutes, making credit mandatory, he was entitled to credit since he was sentenced after the amendment became effective. Nash v. State, 313 So.2d 118 (Fla. 2d DCA 1975).


author: HOBSON, Acting Chief Judge. SCHEB, Judge

text:
    BEACH RESORTS INTERNATIONAL, INC., Appellant, v. CLARMAC MARINE CONSTRUCTION COMPANY, Appellee.
    No. 75-1381.
    District Court of Appeal of Florida, Second District.
    Nov. 19, 1976.
    Adrian S. Bacon, Bacon & Hanley, St. Petersburg, for appellant.
    William C. Ballard, Baynard, Lang & Ballard, St. Petersburg, for appellee.
   HOBSON, Acting Chief Judge.

This is an appeal from a final judgment entered in favor of the plaintiff/appellee in a proceeding initiated as an action to foreclose a statutory mechanic’s lien. Beach Resorts, defendant and appellant herein, specifically assails that portion of the final judgment awarding the plaintiff, Clarmac, attorney fees pursuant to the mechanic’s lien statute, Section 713.29, Florida Statutes (1975). We agree and reverse.

In January 1974, Clarmac, the contractor, had completed a ramp and overpass built under a direct contract with the property owner, Beach Resorts. The contract included the American Institute of Architects’ general conditions which incorporated an arbitration clause. A dispute arose when Beach Resorts refused to pay the contract balance of $16,046.10, claiming defective performance. Clarmac filed a claim of lien against Beach Resorts and Beach Resorts transferred the lien to security deposit with the clerk of the court. Clarmac filed its action against Beach Resorts to foreclose its lien transferred to security. Beach Resorts answered, and raised as an affirmative defense the mandatory requirement in the contract for arbitration. Beach Resorts also counterclaimed for $50,000 for various damages arising out of Clarmac’s performance of the contract.

Beach Resorts also filed an application for order directing parties to proceed with arbitration. The trial court did not enter an order on the application, but Clarmac voluntarily proceeded to arbitration and in its demand claimed $16,046.10 plus interest. The arbitration was held and the arbitrator awarded Clarmac the sum of $10,682.60, with the parties bearing the administrative fees and expenses equally. Later the arbitrator ordered Clarmac to pay Beach Resorts $242.50 for that portion of the fees previously advanced by Beach Resorts to the Arbitration Association.

On February 5, 1975, Clarmac filed a motion for award of attorney fees and for entry of judgment upon arbitration award and at the same time noticed the motion for hearing before the court on March 3, 1975. In support of its motion, Clarmac submitted the affidavit of an attorney, John C. Dew, who stated that in his opinion a reasonable fee for all work done by Clarmac’s attorney, including the arbitration proceedings, would be $3,500. At the hearing on March 3 Beach Resorts delivered a cashier’s check to Clarmac in the amount of the award, and filed a notice of payment of arbitrator’s award and motion whereby the court was notified that Beach Resorts had paid the award in full and the court was requested to declare the claim of lien void and deny Clarmac’s motion for attorney fees. Clar-mac refused to accept the tendered check as payment in full of all Beach Resort’s obligations and the court took the matter under advisement, requesting memorandums on the subject.

On March 18, Clarmac accepted the check. On August 26, 1975, the court entered its judgment, including therein the full amount of the arbitration award, and an award of attorney fees in the amount of $2,250 and costs to Clarmac. Thereafter Clarmac filed a partial satisfaction of judgment, recognizing payment of the full amount of the arbitrator’s award.

The sole issue for our determination is whether the trial court erred in awarding Clarmac attorney fees in its final judgment confirming the award of the arbitrator. Resolution of this close question necessarily requires an analysis of the Florida Arbitration Code, Sections 682.01 et seq., Florida Statutes (1975) as it relates to the operation of Florida Mechanic’s Lien Law, Sections 713.01-713.36, Florida Statutes (1975).

It is clear that the proceedings below were initiated pursuant to the mechanic’s lien statute. It is equally apparent that subsequently the parties proceeded to arbitration as required by the contract between them. The fruit of those arbitration proceedings was an award substantially less than that claimed in the lien action initiated by Clarmac. Such arbitration agreements are generally favored by the courts and every reasonable presumption is indulged to uphold the proceedings resulting in an award. Blood v. Shine, 2 Fla. 127 (1848); Knight v. H. S. Equities, Inc., 280 So.2d 456 (Fla. 4th DC A 1973). Nevertheless, procedures do exist for confirming, vacating, or modifying arbitrator’s awards. See Sections 682.12, 682.13, and 682.14, Florida Statutes (1975). Provision is also made for the costs of these subsequent court proceedings. Section 682.15, Florida Statutes (1975).

The general rule in Florida is that attorney fees associated with arbitration proceedings are recoverable only by statute or by specific agreement. Codomo v. Emanuel, 91 So.2d 653 (Fla.1956); Tassinari v. Loyer, 189 So.2d 651 (Fla. 2d DCA 1966); Hartford Accident and Indemnity Co. v. Holton, 190 So.2d 801 (Fla. 1st DCA 1966). In Tassinari we recognized that no statutory authority exists allowing attorney fees in arbitration proceedings. The relevant portion of the Arbitration Code, Section 682.11, Florida Statutes (1975) specifically provides,

“Unless otherwise provided in the agreement or provision for arbitration, the arbitrators’ and umpire’s expenses and fees, together with other expenses, not including counsel fees, incurred in the conduct of the arbitration, shall be paid as provided for in the award.” (emphasis supplied)

In the case sub judice there was no award of attorney fees by the arbitrator nor was there any special agreement between the parties for payment of the same. Therefore, the remaining question is whether some other statute can be invoked to warrant the awarding of attorney fees attributable to the arbitration herein.

Section 713.29 of the Mechanic’s Lien Law provides,

“In any action brought to enforce a lien under part I of this chapter, the prevailing party shall be entitled to recover a reasonable fee for the services of his attorney, to be determined by the court, which shall be taxed as part of his costs.”

Clarmac asserts that this section authorizes the recovery of attorney fees in this situation. We disagree. Resolution of any conflict between the Arbitration Code, which prohibits attorney fees, and the Mechanic’s Lien law, which specifically allows such costs, is determined by the nature of the recovery. Emery v. International Glass & Mfg., Inc., 249 So.2d 496 (Fla. 2d DCA 1971). In Emery, involving the construction of Section 713.29, we stated,

“ . . . [A] claimant is not entitled to attorneys’ fees under the section before us, notwithstanding that he ultimately prevails in the case, unless the mode and substance of his recovery is as expressly provided for within the lien law itself.” 249 So.2d at 500.

We think it was error for the trial judge to declare a lien in favor of Clarmac since the nature of the recovery was pursuant to the arbitration clause and not the mechanic’s lien statute. This conclusion is necessary for several reasons. First, the parties were bound by a general arbitration clause, the purpose and effect of which was to resolve, outside of the court, any disputes arising from the contract. Second, the award rendered by the arbitrator disposed of all issues involving contractual differences between the parties. Thus, absent refusal of the defendant to comply with the award, there were no remaining issues arising out of the contract for the trial court to act upon. The sole point left in dispute was Clarmac’s motion for attorney fees.

A third and more critical reason for conclusion that Clarmac’s recovery was governed by the Arbitration Code, and not the Mechanic’s Lien Law, is the interpretation given the relationship of these two statutes in Mills v. Robert W. Gottfried, Inc., 272 So.2d 837 (Fla. 4th DCA 1973). The Fourth District Court of Appeal stated,

“ . . The order for arbitration should stay the judicial proceedings pending a determination . . . Once the arbitration is completed, the trial court may on motion of either party dissolve the stay order and proceed to confirm, vacate, or modify the award in accordance with Sections 682.12-682.14, F.S. 1971, F.S.A., and to enter a judgment in accordance with Section 682.15, F.S.1971, F.S.A. Contemporaneously therewith, the court may adjudicate the right of the plaintiff to a mechanic’s lien for the purpose of enforcing such judgment as plaintiff may obtain.” 272 So.2d at 838-839.

The plain meaning of this language is that the mechanic’s lien statute, in cases initiated as lien foreclosures but submitted to mandatory arbitration, is not operative unless the judgment entered confirming, vacating or modifying the arbitration award must be enforced in favor of the plaintiff. This view is strengthened further by the statement in Mills that, “ . . . [T]he plaintiff still retains the amount ultimately determined to be due by means of a mechanic’s lien, if plaintiff is otherwise entitled to such a lien.” (emphasis supplied)

Here there was no recalcitrance on the part of Beach Resorts to submit payment of the arbitration award to Clarmac. For that reason no enforcement was needed and the application of a mechanic’s lien was unnecessary. Mills, supra. In fact, Clarmac accepted payment in the amount of the award, specifically reserving its claim to attorney fees. Payment of the arbitration award and acceptance of the same constituted settlement of the real controversy between the parties. Therefore, the mode and substance of Clarmac’s recovery was defined by the Arbitration Code and not the Mechanic’s Lien Law. Emery, supra.

This construction should not be deemed as an attempt to oust the trial court of its jurisdiction over the lien foreclosure. Instead, the operation of both the Arbitration Code and the Mechanic’s Lien Law is interdependent and compatible. There was no reason to impose a mechanic’s lien, as Beach Resorts was at all times ready and willing to comply with the decision of the arbitrator and the order of the trial judge in confirming the same. In the absence of a refusal to abide by the trial court’s judgment, it was error to impose a mechanic’s lien and award of attorney fees attributable to the arbitration previously conducted.

A question remains as to whether any costs, excluding attorney fees, should have been awarded pursuant to Section 682.15 of the Arbitration Code. On remand the trial court should determine what, if any, costs were incurred by Clarmac in seeking confirmation of this arbitration award and the proceedings subsequent thereto.

REVERSED and REMANDED for further proceedings consistent with this opinion.

BOARDMAN, J., concurs.

SCHEB, J., dissents with opinion.

SCHEB, Judge

(dissenting).

The majority concludes that Clarmac was entitled to enforce its claim of lien through foreclosure proceedings. I agree. I think Clarmac was therefore entitled to an award of attorney’s fees under Section 713.29, Florida Statutes, since it prevailed in that proceeding, notwithstanding that it was proper to have the amount of its entitlement determined through arbitration. Unlike Emery, supra, the trial court found that claimant Clarmac had entitlement to a lien. Therefore, I respectfully dissent.

      . The arbitration clause provides,
      Sec. 39—Arbitration
      Any controversy or claim arising out of or relating to this Contract, or the breach thereof which cannot be resolved by mutual agreement, shall be settled by arbitration in accordance with the Rules of the American Arbitration Association, and judgment upon the award rendered by the Arbitrator(s) may be entered in any Court having jurisdiction thereof.

      . This motion, entitled “Motion for Award of Attorneys Fees and for Entry of Judgment upon Arbitration Award,” must be considered in part an application for confirmation of the arbitrator’s award pursuant to § 682.12, Fla. Stat. (1975). However, that portion of the motion seeking attorneys’ fees cannot be considered an application for confirmation since attorney fees are not recoverable. § 682.11, Fla.Stat. (1975). Nor can the request be construed as an application for vacating, modifying, or correcting the award as per §§ 682.13 and 682.14, Fla.Stat. (1975) since these two statutes do not list as grounds for vacation or modification recovery of attorney fees incurred in arbitration. It should be noted, however, that costs associated with the application for either confirmation, vacation and/or modification and the proceedings subsequent thereto may be awarded by the court. § 682.15, Fla. Stat. 1975.

      . The trial court’s final judgment imposing a lien in the specific amount of the arbitrator’s award must be construed as a confirmation of the arbitrator’s award. This construction follows from Clarmac’s motion or application for entry of judgment upon the arbitration award. Had Beach Resorts failed to pay the full amount of the arbitrator’s award prior to this judgment or failed to comply with the judgment rendered, then a mechanic’s lien could have been imposed to enforce the arbitrator’s award as finalized by the trial court’s judgment. Mills v. Robert Gottfried, Inc., 272 So.2d 837 (Fla. 4th DCA 1973).

      . See note 2, supra.


text:
    Scott Daniel PHIPPS, Appellant, v. STATE of Florida, Appellee.
    No. 76-330.
    District Court of Appeal of Florida, Second District.
    Nov. 19, 1976.
    Jack 0. Johnson, Public Defender, and Jon J. Hall, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant was adjudicated guilty of robbery, conspiracy, and possession of a firearm in the commission of a felony. He received sentences of twenty-five years on the robbery, five years on the conspiracy, and five years on the possession of a firearm in the commission of a felony count.

On authority of Cone v. State, 285 So.2d 12 (Fla.1973), we reverse the imposition of a sentence on the firearm count and remand with directions that the sentence below be amended by eliminating therefrom that part imposing a sentence of five years on this count. In all other respects the judgments and sentences are affirmed.

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


author: SCHEB, Judge.

text:
    Clyde Cecil DOTSON, Appellant, v. STATE of Florida, Appellee.
    No. 76-508.
    District Court of Appeal of Florida, Second District.
    Nov. 19, 1976.

      Jack 0. Johnson, Public Defender, Robert H. Grizzard, II, Asst. Public Defender, and John Robert Howes, Legal Intern, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Judge.

On August 25, 1972, appellant was charged by a three count information with (1) robbery in violation of Section 813.011, Florida Statutes (1971), (2) carrying a concealed firearm in violation of Section 790.-01(2), Florida Statutes (1971), and (3) possession of a firearm by a convicted felon in violation of Section 790.23, Florida Statutes (1971).

Appellant pled guilty as charged. The trial court adjudicated him guilty and sentenced him to a term of nine years and six months on each count with sentences to run concurrently.

Appellant filed a motion to vacate pursuant to Fla.R.Crim.P. 3.850, contending that the sentence imposed for carrying a concealed firearm should be vacated since that charge was a facet of a single transaction. The trial court denied the motion. We reverse on authority of Young v. State, 330 So.2d 235 (Fla.2d DCA 1976). The sentence on the charge of carrying a concealed firearm is therefore vacated; the remainder of the sentence is affirmed.

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

      . Appellant also contends that the sentence imposed for carrying a concealed firearm exceeded the statutory maximum. We agree as the crime was a felony of the third degree punishable by a maximum of five years under § 775.-082(2)(c), F.S. (1971).

      . Appellee argues that the single transaction rule has been laid to rest by Chapter 76-66, Laws of Florida (1976). Since this law became effective after appellant’s sentencing, we do not reach this argument.


text:
    STATE of Florida, Appellant, v. Charlotte GAMBLE, as legal guardian of Cynthia Gamble, a minor, Appellee.
    No. 76-573.
    District Court of Appeal of Florida, Second District.
    Nov. 19, 1976.
    Rehearing Denied Dec. 16, 1976.

      Robert L. Shevin, Atty. Gen., Tallahassee, C. Marie King, Asst. Atty. Gen., Tampa, for appellant.
    Ted L. Wells, Tampa, for appellee.
   PER CURIAM.

The state appeals from a final order issuing a peremptory writ of mandamus. We reverse.

Appellee Charlotte Gamble, acting as legal guardian of Cynthia Gamble, filed a motion in the Juvenile and Domestic Relations Division of the Circuit Court for an order allowing inspection of court records and records of the Division of Family Services. The court allowed inspection of the court file by appellee’s counsel but denied the motion as to the other records on the grounds it lacked jurisdiction over the records of the Division of Family Services. Appellee then petitioned for writ of mandamus.

In the petition she alleged that state agencies had refused to make available records that would enable her counsel to obtain information on injuries suffered by Cynthia while she was in custody of the court and the Division of Family Services. It was alleged that Sections 39.12(3) and 828.041(7), Florida Statutes (1973), required disclosure of the records to her counsel and allowed the Department of Health and Rehabilitative Services no discretion to deny access to the records. An alternative writ of mandamus issued.

The state filed a motion to quash the alternative writ and filed a return. Following a hearing the trial court found appellee was entitled to the issuance of a peremptory writ of mandamus; whereupon, a peremptory writ was issued ordering that the appellant produce all records pertaining to the placement and care of Cynthia Gamble and any injuries received by her while she was in the custody of the courts and the Department of Health and Rehabilitative Services. This appeal ensued.

We are regretfully compelled to say that while there may be other avenues open to appellee to secure the subject matter of the contents of the records, mandamus is not the appropriate remedy. A writ of mandamus is used to enforce a clear legal right to the performance of clear legal duty rather than to establish such a right. Fasenmyer v. Wainwright, 230 So.2d 129 (Fla.1969); State ex rel. Smith v. City of Margate, 155 So.2d 165 (Fla. 2d DCA 1963).

In her petition, appellee failed to establish the existence of a clear legal duty on behalf of appellant to disclose the records to her. She relied on two statutes: Sections 39.12(3) and 828.041(7), Florida Statutes (1973). Section 39.12(3) requires the disclosure of juvenile court records to the child involved, his parents or guardians, and their attorneys. These records were apparently already ordered disclosed by the Juvenile Court’s order. Section 828.041(7), Florida Statutes (1973), provided for disclosure to certain other persons of reports of child abuse recorded pursuant to subsection (4) of that section, but it did not provide for disclosure of the reports to the abused child’s guardian or counsel. In view of appellee’s failure to demonstrate the existence of a clear legal duty imposed by statute upon appellant, mandamus will not lie against appellant.

Accordingly, the writ of mandamus is quashed.

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

      . See Heath v. Becktell, 327 So.2d 3 (Fla.1976).

      . The section was amended and renumbered Section 827.07(7), Fla.Stat. (1975).

      .Now Section 827.07(4), Fla.Stat. (1975).


author: BOARDMAN, Acting Chief Judge.

text:
    G. B., a child, Appellant, v. STATE of Florida, Appellee.
    No. 76-817.
    District Court of Appeal of Florida, Second District.
    Nov. 19, 1976.
    Jack 0. Johnson, Public Defender, Bar-tow, and Douglas A. Wallace, Asst. Public Defender, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Acting Chief Judge.

Appellant, a minor, was stopped by a police officer and cited for not wearing a protective face shield on his helmet while driving a motorcycle. He was also charged with resisting an officer without violence in violation of Section 843.02, Florida Statutes. While appearing before the municipal court on the traffic violation appellant was held in contempt of court and sentenced to ten days in detention. Appellant was taken into custody immediately. His car which was legally parked along side of the street outside of municipal court was impounded and its contents inventoried. The inventory revealed a quantity of marijuana which gave rise to a charge of felony possession of marijuana in violation of Section 893.13, Florida Statutes. Appellant moved to suppress the marijuana on the ground that it was seized pursuant to an unlawful im-poundment and inventory search. After a hearing the trial court denied the motion. Appellant entered a plea of nolo contendere to possession of marijuana reserving his right to appeal.

An inventory is a search within the Fourth Amendment prohibition against unreasonable searches and seizures. State v. Jenkins, 319 So.2d 91 at 93 (Fla. 4th DCA 1975); Gagnon v. State, 212 So.2d 337 (Fla.3d DCA 1968). Whether an inventory search is reasonable depends upon the totality of the circumstances. Weed v. Wainwright, 325 So.2d 44 (Fla. 4th DCA 1975); Godbee v. State, 224 So.2d 441 at 443 (Fla.2d DCA 1969). When appellant challenged the impoundment and inventory search of his vehicle the state was required to show that the vehicle was illegally parked or was in some other way a traffic nuisance or that there were other factors which made it necessary for the vehicle to be taken into custody. See Altman v. State, 335 So.2d 626 at 629 (Fla.2d DCA 1976); Chuze v. State, 330 So.2d 166 at 168 (Fla. 4th DCA 1976); Benton v. State, 329 So.2d 385 at 388 (Fla. 1st DCA 1976); In re 1972 Porsche 2 Dr., 307 So.2d 451 (Fla.3d DCA 1975). In this case appellant’s car was parked along the side of a street outside of the municipal court. At the hearing on the motion to suppress appellant’s counsel stated that appellant’s car was legally parked when it was impounded. The state did not refute or contradict this statement. Having failed to do so it failed to show a necessity for the impoundment or subsequent search. The order denying the motion to suppress is reversed.

REVERSED and REMANDED.

GRIMES and SCHEB, JJ., concur.

      . Appellant was found guilty of resisting an officer. Pursuant to the disposition of the two charges appellant was placed on probation. The probation order appears to be applicable to both charges. In light of our holding as to the motion to suppress we remand to the trial court for resentencing on the charge of resisting an officer without violence.


text:
    Raul CRESPO, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1250.
    District Court of Appeal of Florida, Third District.
    Nov. 23, 1976.
    Rehearing Denied Dec. 21, 1976.
    Anthony Dieguez, Hialeah, for appellant.

      Robert L. Shevin, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen., for appel-lee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Defendant, Crespo, appeals from a summary denial of his motion to vacate sentence pursuant to Rule 3.850, Fla.R.Crim.P., on the grounds that (1) his pleas of nolo contendere and guilty were invalid and (2) he was denied effective assistance of counsel.

The defendant pled nolo contendere to nine informations, all charging him with uttering worthless checks. He was adjudicated guilty and sentenced to five years on the first conviction, five years on the next three convictions, each to run consecutively, and five years on each of the remaining seven convictions, each sentence to run consecutively.

Examination of the entire record conclusively establishes that the defendant’s pleas were voluntarily, knowingly and intelligently entered by him, thus precluding relief or an evidentiary hearing under Fla.R.Crim.P. 3.850. State v. Weeks, 166 So.2d 892 (Fla.1964): Whitlow v. State, 256 So.2d 48 (Fla.2d DCA 1971).

Defendant’s remaining point urges that he be granted relief because of the alleged incompetence of his privately retained counsel. This argument is not a ground for post-judgment relief. See Dickenson v. State, 261 So.2d 561 (Fla.3d DCA 1972), and cases cited thereunder.

Affirmed.


text:
    Michael FORTE and Oak Grove Gardens, Inc., etc., Appellants, v. TRIPP & SKRIP et al., Appellees.
    Nos. 75-1693, 75-1964.
    District Court of Appeal of Florida, Third District.
    Nov. 23, 1976.

      Storace, Hall & Hauser, Miami, for appellants.
    Knight, Peters, Hoeveler, Pickle, Nie-moeller & Flynn, Paige & Catlin, Sam Daniels, Miami, for appellees.
    Before BARKDULL, C. J., and HENDRY and NATHAN, JJ.
   PER CURIAM.

The appellants were plaintiffs in the trial court. They brought an action for damages against the appellees as defendants, alleging a fraud and a misrepresentation as to certain applicable zoning regulations pertaining to a particular piece of property. The defendants counterclaim to recover the balance of the architectural fees due them for services performed.

Subsequent to numerous depositions and affidavits and an earlier motion for summary judgment, resulting in a favorable ruling for one of the original defendants, the trial court entered a summary judgment in favor of the defendants on the original cause of action and in favor of the architects on their counterclaim. This appeal ensued.

The appellants contend that so much of the record as they brought up here demonstrates a genuine issue of a material fact as to whether or not an actual misrepresentation was committed by the architects. The record on appeal reveals the following:

In 1971, the appellants (Forte and Oak Grove Gardens, Inc.) purchased the Pflueger Tract, based upon the alleged representation by the appellees that the County zoning had been resolved. The zoning regulation of Metropolitan Dade County as to off-street parking had been changed prior to the date of sale. As a result, the project proposed to be built on the land by the appellees had to comply with a higher off-street parking requirement. It is alleged that the appellees failed to inform the appellants of the higher off-street parking requirements. There was testimony by the appellee, Skrip, that the County had approved the project under the prior zoning requirement as opposed to the higher off-street parking requirement. In 1972, after the plans for the project were submitted for building approval, the appellee (Skrip) testified that the County would not go along with the parking requirements which, he contended, had been previously agreed upon. As a result, the appellants were required to comply with the additional parking requirements and eliminate the fourth building of the project until the parking issue could be resolved. During resolution of the problem, the County denied that it ever approved the old parking requirements on the property. Notwithstanding the ap-pellees’ representation, the problem was resolved by way of court order by obtaining a building permit. Appellants, as a result of the alleged misrepresentation, were delayed in excess of one year from completing the project and, thereupon, filed this action.

The appellees contend that there can be no reversal in this case because the entire record was not brought into this court, citing Butler v. Metropolitan Dade County, 298 So.2d 552 (Fla. 3rd DCA 1974); Fernandez v. Arocha, 308 So.2d 45 (Fla. 3rd DCA 1975). We agree that normally a summary judgment will not be reversed when the entire record is not brought before the appellate court. However, in this case, the appellants did bring sufficient record to show a genuine issue as to whether or not (1) they were in fact architects working on behalf of the appellants at the crucial time in this matter, and (2) whether or not, during the time the architects were allegedly employed by the appellants, they did in fact make either actionable representations or were in fact negligent in the performance of their professional duties. Graulich v. Fredric H. Berlowe & Associates, Inc., 338 So.2d 1109 (Fla. 3rd DCA 1976).

The appellees respond to this by-pointing out that in the original pleadings in this matter the plaintiffs denominated the architects as agents of the previous owners of the property. We concede that the pleadings in this cause before us are not a model of clarity. However, it is apparent from the depositions, affidavits, and other documents in this file that there is a genuine issue of fact as to whose agents these architects were and at what particular time. The appellees say we cannot look beyond the issues presented in the pleadings; with this we disagree. See the recent opinion of this court found in Sorrells v. Mullins, 303 So.2d 385 (Fla. 3rd DCA 1974) which, in effect, holds that even though we may sustain the entry of a summary judgment on the record as presented to us, because of the way the pleadings may have been framed initially we may affirm same without prejudice to the matter being returned to the trial court to permit amendments to state a cause of action or defense, as may be revealed in the depositions and affidavits which are before the court on the appellate record. This decision seems to be consistent with the modern trend of authorities that a party should not be deprived of his full day in court by summary proceedings, if the record indicates that he has a bona fide potential cause of action or defense. See: Roberts v. Braynon, 90 So.2d 623 (Fla.1956); Hart Properties, Inc. v. Slack, 159 So.2d 236 (Fla.1963); Gold Coast Crane Service, Inc. v. Watier, 257 So.2d 249 (Fla.1971).

Therefore, the summary judgments here under review be and they are affirmed, with directions. Upon this matter being returned to the trial court, the plaintiffs may file such amendments to their pleadings as they may be advised.

Affirmed, with directions.

HENDRY, J., participated in decision, but not in oral argument.


text:
    In re ESTATE of Mayer WEINSTEIN, Deceased. Herbert T. WEINSTEIN, Appellant, v. Gabrielle NASH, Appellee.
    No. 75-1832.
    District Court of Appeal of Florida, Third District.
    Nov. 23, 1976.
    Rehearing Denied Dec. 21, 1976.

      Horton, Perse & Ginsberg, Miami, for appellant.
    Louis Vernell, Miami, for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Herbert Weinstein, executor of the estate of Mayer Weinstein, deceased, appeals an order awarding attorney’s fees to the counsel of Gabrielle Nash, an unsuccessful proponent in a will contest.

Gabrielle Nash was the sole beneficiary under a will executed by Mayer Weinstein on May 29, 1973. She typed the will and was present at its execution. Upon Mr. Weinstein’s death, she presented the will for probate. A will of May 24, 1973 in favor of Mr. Weinstein’s children and grandchildren was also presented. A will contest ensued and an order was entered denying Ms. Nash’s petition for probate of the May 29 will. She appealed and this court affirmed without opinion. While the appeal was pending, Ms. Nash filed a motion for attorney’s fees pursuant to Section 733.106, Florida Statutes (1975) and Fla. R.P. & G.P. 5.090. The probate judge, after a hearing, awarded $6,500 to Ms. Nash’s counsel chargeable to Mr. Weinstein’s estate based upon the following findings:

* * * * * *
“The record in this proceeding revealed that the decedent died with at least three known wills as follows:
“May 29,1973 in favor of GABRIELLE NASH;
“May 24, 1973 in favor of his natural children and grandchildren;
“Will approximately 7 months earlier in which he substantially disinherited his children in favor of other legatees.
“The Petitioner, GABRIELLE NASH, initially opposed the Will of May 24,1973. However, the issue that was ultimately tried upon which an Order was entered on February 5, 1975 was the probate of the May 29,1973 Will. Prior to his death and on April 23, 1973, the decedent executed a land sale contract with respect to certain of his real property to GABRIELLE NASH. It is to be observed that this land sale contract was five weeks prior to the execution of a will in favor of GABRIELLE NASH. The mental capacity of the decedent to make and execute the said contract became the subject matter of a suit for specific performance in the guardianship proceeding involving MAYER WEINSTEIN (73-4144). The undersigned’s predecessor in this Division, the Honorable George E. Schulz decreed specific performance in favor of GABRIELLE NASH and against the Estate. Consequent upon favorable ruling of mental capacity of the decedent some five weeks prior to the execution of the Will in favor of GABRIELLE NASH, and in light of previous wills by which he had substantially disinherited his children and later by which he devised his estate substantially to the children, GABRIELLE NASH and her attorneys were justified in believing that the decedent had the mental capacity to make and execute the Last Will and Testament of May 29,1973. At least it cannot be said as a matter of law that they were not justified in so offering the Will of May 29, 1973 in light of the previous wills and previous ruling of Judge Schulz . .

The executor of the estate appeals and contends that charging the estate with attorney’s fees was a gross abuse of discretion because the petition for probate of the May 29 will was denied based upon undue influence, fraud and bad faith. We cannot agree.

First, there was no finding of undue influence, fraud or bad faith in the order denying Ms. Nash’s petition for probate of the will. Second, the probate judge in his order awarding attorney’s fees, determined that as a matter of law Ms. Nash was justified in offering the May 29 will. There being substantial evidence to support this determination, we find no abuse of discretion. See Watts v. Newport, 151 Fla. 209, 9 So.2d 417 (1942); In re Estate of Whitehead, 287 So.2d 9 (Fla.1973).

Affirmed.

      . In re Estate of Weinstein, 328 So.2d 33 (Fla.3d DCA 1976).


text:
    JARUAGUA ENTERPRISES, INC., Appellant, v. DOM, INC., a Florida non-profit Corporation, Appellee. JARUAGUA ENTERPRISES, INC., Appellant, v. MIRACLE INVESTMENT CORP., Appellee.
    Nos. 75-1947 and 75-1957.
    District Court of Appeal of Florida, Third District.
    Nov. 23, 1976.
    Rehearings Denied Dec. 15, 30, 1976.
    Noriega, Bartel, Chopp, Schatz, Levine & Shuford, Miami, for appellant.

      Joseph M. Fitzgerald, Miami, Ainslee R. Ferdie, Coral Gables, for appellees.
    Before PEARSON, HENDRY and NATHAN, JJ.
   PER CURIAM.

In this mortgage foreclosure action, plaintiff, Dom, Inc., was the first purchase money mortgagee; defendant, cross-plaintiff, Miracle Investment Corp., was the purchaser of the property from Dom and the original first mortgagor in the first purchase money mortgage; and Jaruagua Enterprises, Inc., defendant, cross-defendant, is the subsequent purchaser of the property and second mortgagor with Miracle. Jar-uagua takes an appeal from an order awarding attorneys fees to the plaintiff, Dom, Inc., and an interlocutory appeal from an order denying its motion to strike and dismiss as a sham the amended cross-claim of defendant, Miracle Investment Corp. The appeal and the interlocutory appeal are consolidated herein.

The record reflects that on July 6, 1973, Dom sold property to Miracle and took back a purchase money first mortgage. On January 17, 1974, Miracle conveyed the property to Jaruagua by a warranty deed, which was subject to an additional purchase money mortgage. The additional purchase money mortgage was a second mortgage which Miracle took back on the sale of the property to Jaruagua and which contained unique bonus clause provisions designed to survive any release of lien of the mortgage. On July 10, 1974, Miracle gave Jaruagua a satisfaction of mortgage which purported to satisfy the second mortgage, but which did not constitute a release of the bonus clauses. Subsequently, a complaint was filed by Dom to foreclose the first mortgage. Miracle answered admitting that it was in default, and filed a cross-claim against Jaruagua seeking a vendor’s lien in the property to the extent of monies due Miracle by Jaruagua. The satisfaction of mortgage, the terms of which provided that Miracle was released from all “in rem claims against the property” was attached to the cross-claim.

Jaruagua filed a motion to dismiss the cross-claim which the trial court granted on the grounds that the attached satisfaction of mortgage released Jaruagua from “in rem” claims. Thereafter, Miracle filed an amended cross-claim against Jaruagua seeking a lien against the property but failed to attach the satisfaction of mortgage. Jaruagua filed a motion to dismiss and to strike the amended cross-claim on the grounds that it was a sham. The trial judge denied the motion. Dom then filed a motion for summary judgment in the foreclosure action, but the matter was settled by Jaruagua paying the full amount due from Miracle. Attorneys fees were awarded to Dom in the amount of $12,500.00, against Jaruagua, and this appeal and interlocutory appeal ensued.

On appeal from the order awarding attorneys fees to the plaintiff, Dom, Inc., Jaruagua raises two points. The first is that it was error to hold Jaruagua liable for attorneys fees assessable under the terms of the note and mortgage in default, when Jaruagua did not assume the mortgage, but merely took title subject to it. It is clear from the record that the entitlement of Dom to an award of attorneys fees against Jaruagua was not objected to or questioned by Jaruagua in the trial court. A matter raised for the first time on appeal and not originally raised in the trial court is not well taken. United Services Automobile Association v. Porras, 214 So.2d 749 (Fla. 3rd DCA 1968), and cases cited therein. Therefore, no reversible error is shown on this point.

The second point is that the amount of attorneys fees awarded was excessive. The record reflects that the attorneys fees allowed by the trial court were well within the range of the testimony presented by the expert witnesses of both parties, relating to reasonable fees for the legal services performed. While the court was not bound by such testimony, we cannot fault the court for following it. Accord: City of Miami Beach v. Liflans Corporation, 259 So.2d 515 (Fla. 3rd DCA 1972). We find that Jaruag-ua has not shown that the amount of fees allowed were such as to constitute an abuse of discretion by the trial judge.

In the interlocutory appeal, Jar-uagua contends that the trial court erred in denying its motion to strike the amended cross-claim of defendant Miracle as a sham. We find this point to be without merit. The law governing a motion to strike a pleading as a sham is set out in this court’s recent decision in the case of Slatko v. Virgin, 328 So.2d 499 (Fla. 3rd DCA 1976). The opinion states that in order to justify the striking of a pleading as a sham or false, it must be so undoubtedly false as not to be subject to a genuine issue of fact; a pleading may be stricken as a sham only where it is shown to be palpably or inherently false. In this case, the record fails to demonstrate that the cross-claim was clearly false or that it was a mere pretense set up in bad faith and without color of fact. Accordingly, we hold that the trial court did not err in denying Jaruagua’s motion to strike as a sham.

Affirmed.


text:
    Samuel EVERETT, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1975.
    District Court of Appeal of Florida, Third District.
    Nov. 23, 1976.
    Rehearing Denied Dec. 21, 1976.

      Phillip A. Hubbart, Public Defender, and Gerald Kogan, Sp. Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., and Gary S. Rackear, Legal Intern, for appellee.
    Before HENDRY and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   HENDRY, Judge.

Appellant was the defendant below and appellee was the prosecution.

Appellant appeals a final judgment of conviction and sentence adjudicating him guilty of the unlawful sale of cannabis in violation of Section 893.13, Florida Statutes (1975) and conspiracy to deliver cannabis in violation of Section 833.04, Florida Statutes (1973).

Appellant was charged in a three count information with the crimes of unlawful sale of cannabis, unlawful possession of cannabis and conspiracy to deliver cannabis. Appellant waived trial by jury and plead not guilty. The trial was subsequently held oh November 20,1975, whereupon appellant was found guilty of the crimes of unlawful sale of cannabis and conspiracy to deliver cannabis. Appellant’s motion for judgment of acquittal, made at the conclusion of ap-pellee’s case, was granted as to Count II, possession of cannabis, but was denied as to Count I, sale of cannabis and Count III, conspiracy to deliver cannabis.

Appellant filed a motion for new trial which was denied by the trial court and was sentenced to eighteen months in prison for. each count, sentences to run concurrently. This appeal follows.

Appellant assigns as error the trial court’s denial of appellant’s motion for judgment of acquittal as to Counts I and III and the trial court’s denial of appellant’s motion for new trial. In addition, appellant assigns as error the trial court’s admittance of the testimony of the arresting officer as to an incriminating statement he heard an alleged co-conspirator make to appellant during the commission of the crime.

Appellant’s first contention is that the evidence was insufficient to support a verdict of guilty for Counts I and III and therefore, it was error to deny appellant’s motion for a new trial.

Appellee is quick to point out, however, that appellant’s motion for a new trial was filed on December 8, 1975. Appellant was adjudicated guilty of Counts I and III on November 20, 1975. Therefore, the elapsed time between the court’s adjudication and the filing of appellant’s motion was eighteen days.

Florida R.Crim.P. 3.590(a), which deals with the time within which one can file a motion for new trial, provides, among other things, that:

(a) A motion for a new trial or in arrest of judgment, or both, may be made within four days, or such greater time as the court may allow, not to exceed fifteen days, after the rendition of the verdict or the finding of the court.

Fla.R.Crim.P. 3.590(a), 34 Fla.Stat.Ann. 200 (1975). Appellee argues that the untimely filing of appellant’s motion for new trial forecloses us from examining the sufficiency of the evidence as a whole. Based upon our decision in Castillo v. State, 308 So.2d 619 (Fla. 3d DCA 1975), we must agree. See also Martin v. State, 262 So.2d 720 (Fla. 2d DCA 1972).

The fact that appellant filed an untimely motion for new trial does not, however, prevent us from the examination of any of the evidence Mancini v. State, 273 So.2d 371 (Fla.1973). Although we cannot examine the total weight of the evidence to determine if said evidence was sufficient to support the trial court’s adjudication of guilt, by reviewing the trial court’s refusal to grant appellant’s motions for judgment of acquittal, we can at least determine whether or not appellee presented a prima facie case against appellant. Mancini, supra.

In reviewing a denial of a motion for judgment of acquittal, we are bound to follow a more limited standard than we utilize in reviewing a denial of a motion for new trial. Castillo, supra. In reviewing a denial of a motion for judgment of acquittal, all facts introduced into evidence are admitted by the defendant and every inference favorable to the prosecution must be drawn from that evidence. Codie v. State, 313 So.2d 754 (Fla.1975). Unless there is an absence of legally sufficient evidence in which to base a guilty verdict, the motion must be denied. Garmise v. State, 311 So.2d 747 (Fla. 3d DCA 1975).

With the above stringent test in mind, we have carefully examined the record and find an absence of any substantial competent evidence to support the trial court’s adjudication.

The only bona fide evidence tending to link appellant to the sale of any marijuana comes from the testimony of the arresting officer who overheard the alleged co-conspirator state to appellant, “I just sold this guy three hits and an ounce of grass, I need change.” Appellant objected to the admissibility of the statement, claiming that it was hearsay and did not fall within the co-conspirator exception to the hearsay rule. Appellant argued that before the statement of the alleged co-conspirator could be used against him, appellee would have to present independent evidence of the conspiracy. The trial court, agreeing with appellant, nevertheless admitted the testimony, upon the provision that appellee could later prove the existence of the conspiracy by independent evidence.

The law is quite clear that before the co-conspirator exception to the hearsay rule may be invoked, there must be independent evidence of the existence of a conspiracy and of the objecting party’s participation in said conspiracy. Damon v. State, 289 So.2d 720 (Fla.1973). Even though a trial court may admit a co-conspirator’s incriminating testimony into evidence before proof of a conspiracy is furnished, it must be conditioned on the prosecutor subsequently furnishing independent, adequate evidence of the conspiracy. Honchell v. State, 257 So.2d 889 (Fla.1971).

After examining the record, we can not find where appellee ever presented any independent evidence to prove the existence of a conspiracy. As such, we believe the trial court erred in admitting the officer’s testimony as evidence linking appellant to either the sale of cannabis and/or the conspiracy to deliver cannabis.

Absent this statement from the record, we cannot find any competent evidence from which we can draw reasonable inferences connecting appellant with either of the above mentioned crimes and therefore, we feel that appellee did not present a prima facie ease against appellant. Accordingly, appellant’s motion for judgment of acquittal as to Counts I and III should have been granted.

We have carefully considered the record, all points in the briefs and arguments of counsel in the light of the controlling principles of law, and have concluded that reversible error has been demonstrated. Therefore, for the reasons stated and upon the authorities cited and discussed, the judgment and sentence appealed from is reversed.

Reversed.


text:
    WORKMAN ELECTRONIC PRODUCTS, INC., Appellant, v. RECREATIONAL ELECTRONICS, INC., Appellee.
    No. 76-543.
    District Court of Appeal of Florida, Second District.
    Nov. 24, 1976.
    David M. Mitchell, Harkavy, Moxley & Mitchell, Sarasota, for appellant.
    Ward E. Dahlgren, Dart, Dickinson, O’Riorden, Gibbons & Quale, P.A., Sarasota, for appellee.
   PER CURIAM.

In support of its counterclaim, appellee introduced several invoices for goods which it had shipped to appellant. For convenience, appellee’s vice president, through whom these invoices had been introduced, was asked to give their total. He testified that the invoices totalled $7,212.00, and judgment for the appellee was entered in that amount. Actually, the figure given by this witness was in error, because the invoices total $6,959.75. Accordingly, the judgment must be reduced to that amount.

Otherwise, the judgment is

AFFIRMED.

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


author: BOYER, Chief Judge.

text:
    J. E. MORTON and William E. Morton, Appellants, v. Samy Farouk RIFAI and Maunira Rifai, Appellees.
    No. BB-352.
    District Court of Appeal of Florida, First District.
    Dec. 1, 1976.

      Jon D. White of Fisher, Bell & White, Pensacola, for appellants.
    William K. Jennings, Fort Walton Beach, for appellees.
   BOYER, Chief Judge.

In 1974 appellees Rifai sold to appellants Morton a parcel of real estate. In addition to a cash payment, the purchasers assumed an existing mortgage in favor of a federal savings and loan association and executed a promissory note for the balance of the purchase price, secured by a second mortgage encumbering the property. Thereafter, experiencing financial difficulties, the Mor-tons reconveyed the property to the Rifáis but there was no agreement as to the intended affect of the reconveyance. The Rifáis thereafter conveyed the property to a third' party in return for an assumption of the obligation of the first mortgage in favor of the federal savings and loan association and sued the Mortons for the balance owed on their note. Judgment was entered for the Rifáis and this appeal followed.

Appellants urge that when the property was reconveyed to appellees a merger was effected. Appellees respond that since they are not seeking to foreclose the mortgage it is immaterial whether or not there was a merger, urging that a merger does not affect the indebtedness on account of the note. Appellees are correct. Normally, there is no implication from the taking of collateral security for the payment of a debt that the creditor must look to it only or primarily for the payment of the debt. (22 Fla.Jur., “Mortgages”, § 291) In Florida, a creditor holding a note secured by a mortgage may ignore his security and bring an action on the note. (Florida National Bank and Trust Co. v. Brown, Sup.Ct. Fla.1950, 47 So.2d 748) Thus, when the Mortons reconveyed the property to the Ri-fáis, there may have been a merger insofar as the second mortgage was concerned, but the promissory note, constituting a separate and distinct agreement, was unaffected by the reconveyance.

Nor do the facts of this case reveal an accord and satisfaction. The requisites of an accord and satisfaction are a new agreement which is intended by the parties to substitute for a former agreement. (State Road Department v. Houdaille Industries, Inc., Fla.App. 1st 1970, 237 So.2d 270, 274) The uncontradicted evidence in this case reveals that although appellants apparently were of the view that a voluntary reconveyance of the property would cancel the indebtedness it is clear that there was no agreement to that effect and no meeting of the minds. In fact, appellant J. E. Morton admitted that he merely assumed that if he reconveyed the property to appel-lees, the promissory note would be forgotten, and that appellees never made any commitment to accept the deed as full satisfaction of the debt.

Finally, appellants urge that appel-lees should not be permitted to recover what appellants term a “deficiency judgment”, claiming that the property was resold by appellees without notice to appellants, citing Turk v. St. Petersburg Bank & Trust Co., Fla.App.2nd 1973, 281 So.2d 534. Our examination of the record reveals that the lack of notice issue was raised for the first time on appeal and may not therefore be properly considered by us.

AFFIRMED.

McCORD and MILLS, JJ., concur.


text:
    STATE of Florida DEPARTMENT OF TRANSPORTATION, Appellant, v. LEECON, INC., and Craggs and Phelan Construction Company, as Joint Venturers, Appellees.
    No. CC-160.
    District Court of Appeal of Florida, First District.
    Dec. 1, 1976.
    Geoffrey B. Dobson, Gen. Counsel, Pensacola, Ralph Armstead and Larry K. White, Tallahassee, for appellant.
    D. Frank Winkles and John I. Van Voris of Shackleford, Farrior, Stallings & Evans, Tampa, for appellees.
   SMITH, Judge.

The Department of Transportation, pursuant to Rule 4.2, F.A.R., presents this interlocutory appeal from a partial summary judgment on liability entered against it by the trial court. The court thereby held the Department liable to Leecon for the latter’s additional expenses incurred as a result of breach of the Department’s warranty, in specifications under which Leecon contracted to build a highway segment, that a particular quantity of muck suitable for dressing the shoulders and slopes of the highway was available where designated in the right-of-way. Much of that material contained roots and was unsuitable.

The trial court correctly ruled that there is no genuine issue of material fact concerning the Department’s liability and that the Department’s defense of accord and satisfaction fails as a matter of law. After the inadequacy of the muck deposits was discovered in the course of construction, the parties entered into a “supplemental agreement” permitting utilization of topsoil or muck for dressing and reducing the total quantity. No change was made in the compensation per square yard to be paid Leecon for material in place. We agree that the supplemental agreement was not an accord and satisfaction of the Department’s liability for breach of the warranty in its specifications. State Road Dept. v. Houdaille Ind., Inc., 237 So.2d 270 (Fla.App. 1st, 1970).

While we have some concern whether the Department’s warranty survived execution of the supplemental agreement and whether the risk of the unavailability thereafter of suitable muck and topsoil should fall entirely on the Department, those issues pertain to Leecon’s damages, not to the Department’s liability, and they are more appropriately determined by the trial court upon consideration of all the facts.

Interlocutory appeal dismissed.

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


author: PER CURIAM. RAWLS, Judge

text:
    In re the GUARDIANSHIP OF Robert R. PAUNACK.
    No. DD-132.
    District Court of Appeal of Florida, First District.
    Dec. 1, 1976.
    Joseph C. Rubel of Metzger, Viviano, Winn & Rubel, Pensacola, for appellant.
    Donald H. Partington of Clark, Parting-ton, Hart & Hart, Pensacola, for appellee.
   PER CURIAM.

AFFIRMED.

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

RAWLS, J., specially concurs.

RAWLS, Judge

(specially concurring).

The basic issues involved in this case are to a great extent analogous to those considered by this court in In Re Guardianship of Swain, 199 So.2d 736 (1 Fla.App.1967), wherein I expressed my views in the dissent in that cause. The somewhat forgotten doctrine of stare decisis compels me to yield my views to those of the majority in this cause.


text:
    Johnny Wayne STEWART, Appellant v. STATE of Florida, Appellee.
    Nos. 75-510, 75-1416.
    District Court of Appeal of Florida, Second District.
    Dec. 1, 1976.
    Jack 0. Johnson, Public Defender, Bar-tow, and Thomas W. Garrard, Special Asst. Public Defender, Lake Wales, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Stewart appeals the denial of his motion for a new trial.

Appellant was tried for and convicted of rape. In a motion for new trial, appellant’s attorney alleged that one week after his conviction appellant informed him that under another name he had previously been found legally insane and had been hospitalized as a mental patient. The newly discovered evidence consisted of testimony by a court-appointed psychologist and psychiatrist that appellant was insane. The motion also alleged that due diligence had been exercised by the defense to determine the possibility of psychiatric defense. Appellant also moved for a postponement of sentencing and a mental examination by court-appointed experts.

A hearing was held on the motion. It was agreed (barring later evidence to the contrary) that appellant was the same individual who had been charged with robbery under the name Johnny Triplett. Documents showed that Triplett had been charged with robbery but had been adjudicated insane prior to trial and committed. Subsequently, Triplett was certified as competent by hospital authorities and returned for trial. However, once again he was examined by court-appointed doctors, adjudicated insane, and committed. This last adjudication occurred slightly over two years before this offense.

A court-appointed psychologist and a court-appointed psychiatrist agreed that appellant was currently incapable of assisting his attorney in his defense. They also concurred that appellant was probably insane at the time of the offense. The psychiatrist testified that appellant had confided that he did not reveal his prior commitment because he believed he could “beat the rap.” The psychiatrist also testified that appellant’s grandiose belief he could escape conviction could have been a product of his psychosis.

The court denied the motion for a new trial. However, appellant was adjudicated insane so as to preclude sentencing. It was ordered that he be committed until found competent for sentencing. Subsequently, appellant was returned for sentencing. Another hearing was held and psychiatric testimony was received which indicated appellant was presently competent. A 30-year sentence for rape was imposed. This appeal followed.

Rule 3.600 Fla.R.Crim.P. requires the granting of a new trial when new and material evidence has been discovered which could not have been discovered with reasonable diligence and which if introduced at trial would probably have changed the result. The evidence that appellant had previously been judicially determined to be incompetent to stand trial would have been sufficient to require granting a new trial if it were “newly discovered.” Defense counsel exercised due diligence in attempting to determine whether there was the basis for an insanity defense. Obviously the evidence here was not “newly discovered” in that appellant was aware he had previously been adjudicated under another name. However, testimony at the hearing on the motion for a new trial indicated that appellant was then incompetent to assist counsel and may not have divulged his previous commitment due to his mental condition. In other words, appellant may not have told his attorney he was incompetent because he was indeed incompetent.

The determinative question is whether or not appellant was competent at the time of his trial. If not, he is entitled to a new trial. Accordingly, the cause is temporarily remanded to the trial court with directions that a full-scale hearing on the allegation of insanity at the time of trial be held. Both sides should have the opportunity to present expert testimony on the question and the opportunity to cross-examine the witnesses of the opposing party. The trial court shall enter appropriate orders to allow examination of appellant by expert witnesses.

If the court determines the defendant was insane at the time of the trial, it should vacate the judgment and sentence, and give appellant an opportunity to replead and schedule a new trial. If upon such hearing the trial court determines that the defendant was sane at the time of trial, the court is ordered to forthwith transmit the entire record of the case, including a copy of the trial judge’s order finding defendant sane, back to this court.

Accordingly, the cause is remanded for further proceedings not inconsistent with this opinion.

HOBSON, A. C. J., and GRIMES and SCHEB, JJ., concur.

      . Cf. Luster v. State, 262 So.2d 910 (Fla.3d DCA 1972).

      . The dilemma is reminiscent of that of Joseph Heller’s fictional bomber pilot Orr in the novel Catch-22. The flight surgeon conceded that Orr had to be crazy to fly more than the quota of combat missions without protest but regulations provided that no one could be grounded unless he requested it. However, if Orr sought to be grounded he would not be because anyone who made such a request was obviously sane since a concern for one’s own safety in the face of real and immediate danger is the product of a rational mind. ,

      . Cf. Fowler v. State, 255 So.2d 513 (Fla.1971).


text:
    Rex A. KING et al., Appellants, v. PINELLAS CENTRAL BANK & TRUST COMPANY, a Banking Institution, as Trustee for Holiday Club, Appellee.
    No. 75-623.
    District Court of Appeal of Florida, Second District.
    Dec. 1, 1976.
    Harry M. Hobbs, Tampa, for appellants.
    Tom R. Moore and Drucilla Bell of Moore, McDaniel & Tsonas, Clearwater, for appel-lee.
   HOBSON, Acting Chief Judge.

Appellants bring this appeal to review a final judgment dismissing without stating grounds therefor their second amended complaint, hereinafter referred to as complaint, seeking a declaratory judgment. The grounds asserted in appellee’s motion to dismiss were three-fold, the main one being that all antagonistic and adverse interests were not alleged to be before the court. The other two grounds for dismissal have been reviewed and we find sufficient allegations in the complaint to overcome those grounds. Therefore, we must assume that the trial court dismissed the complaint on appellee’s first ground.

Appellants are some of the land owners and beneficiaries under a certain trust agreement entered into on April 30,1963, as amended on February 16,1968. Appellee is the trustee of the trust.

Appellee maintains that appellants must bring all of the antagonistic and adverse interests before the court and that since all of the beneficiaries of the trust are not before the court the complaint was properly dismissed. Appellee relies heavily on May v. Holley, Fla.1952, 59 So.2d 636. Appellee is correct in its interpretation of May, supra. However, it has overlooked § 86.041, Fla.Stat.1975, which states:

“Any person interested as or through [a] . trustee ... in the administration of a trust, . . . may have a declaration of rights or equitable or legal relations in respect thereto:
“. . . To direct the trustee to refrain from doing any particular act in his fiduciary capacity; .
“. . . To determine any question arising in the administration of the . trust, . . . .”

This statute is specific that any person, such as the appellants herein, may bring a suit for declaratory judgment to have his rights declared under the trust and to direct the trustee to refrain from doing any particular act in his fiduciary capacity. The trustee is presumed to protect the rights of all of the beneficiaries of a trust and, therefore, we hold that all antagonistic and adverse interests were before the court through the trustee.

In May v. Holley the complaint sought a declaratory judgment under F.S.A. §§ 87.01 and 87.02, now §§ 86.011 and 86.021, Fla. Stat.1975, which statutes granted the circuit courts jurisdiction to declare rights, status and other equitable or legal issues and did not involve the rights of any person interested through a trustee under § 86.041, Fla.Stat.1975, formerly F.S.A. § 87.04.

The complaint alleged that appellee was the trustee under the 1963 trust and that the appellants are owners of property which is subject to the trust. It is further alleged that prior to May 12, 1973 the trustee had assessed unimproved lots at $40 per lot per year and that on said date the assessment was raised to $120 per lot per year. It is also alleged that the amended trust agreement provides that the trustee shall apportion expenses necessary to fulfill the purpose of the trust by levying and collecting on each lot a charge not to exceed $120 per lot per year. It further alleges that the amended trust agreement states that:

“Owners of lots designated as unimproved, and their employees, heirs, assigns, grantees, or designees of any kind, may not use, for any reason, the public facilities maintained by the Trustee, other than the streets leading by the shortest route to their lots, it being understood and agreed that a lesser charge is levied and collected on unimproved lots because the owners of such lots do not need and will not use the aforesaid public facilities.”

It also alleges that all lots, whether improved or unimproved, were assessed at $120 per lot per year and that appellants are in doubt as to the trustee’s right under the trust and the amendment thereto to assess all lots at $120. Copies of both the original trust agreement of April 30, 1963 and the amendment thereto of February 16, 1968 are attached to the complaint. The appellants request the trial court to construe the trust and determine the rights of the parties thereto.

We hold that the complaint is sufficient and states a cause for relief under the declaratory judgment statute.

The complaint contains a second count which re-alleges all the above allegations, plus additional ones which in effect state that it is unjust and unlawful under the terms of the trust to assess the unimproved lots the same as the improved lots in that the owners of the unimproved lots are prohibited from the use of the public facilities maintained by the trustee other than the use of the streets leading by the shortest route to their lots. In this count the appellants ask the court to restrain the trustee from imposing the new assessment on the unimproved lots.

Section 86.011, Fla.Stat.1975, provides: “. . . Any person seeking a declaratory judgment may also demand additional, alternative, coercive, subsequent or supplemental relief in the same action.”

Although the complaint could have been couched in one count instead of two, we find no error.

For the foregoing reasons the final judgment dismissing appellants’ second amended complaint is REVERSED and the cause REMANDED.

STOKES, ROBERT G., Associate Judge, concurs.

SCHEB, J., concurs in part and dissents in part.

SCHEB, Judge

(concurring in part and dissenting in part).

I concur that the second amended complaint filed by appellants/plaintiffs does state grounds for declaratory relief under the trust agreement, the essentials of which are recited in the majority opinion. Sections 87.01 and 87.02, Florida Statutes (now Sections 86.011 and 86.021, Florida Statutes 1975). These statutes, however, do not obviate the requirement that all persons who have or reasonably may have an actual, present, adverse and antagonistic interest in the subject matter must be before the court by proper process or class representation. May v. Holley, 59 So.2d 636 (Fla.1952); Miller v. Miller, 151 So.2d 869 (Fla.2d DCA 1963).

It seems patent to me that this controversy is pregnant with antagonistic interests. From the allegations, it appears the trustee is in the position of making determinations which will, affect two different classes of property owners; i. e., owners of improved and unimproved lots. Among other things, plaintiffs are contending there should be a distinction between the amounts of assessments against the improved and unimproved lots since the trust agreement recites that “a lesser charge is levied and collected on unimproved lots because the owners of such lots do not need and will not use the aforesaid public facilities.”

Accordingly, I dissent from that part of the majority opinion which holds:

“The trustee is presumed to protect the rights of all beneficiaries of a trust. Therefore, we hold that all antagonistic and adverse interests were before the court through the trustee.”

While in many cases the trustee may be in the position to properly protect the rights of all beneficiaries of a trust, cf., Rule 1.210 of Fla.R.Civ.P., the case now before us does not appear to be one of these instances.

Since the plaintiffs’ second amended complaint does state a cause of action, it is my opinion the trial judge should have afforded the plaintiffs an opportunity to bring in “by proper process or class representation” the other antagonistic interests.