author: TYSON, Presiding Judge.

text:
    Ronald Spencer YOUNG, alias v. STATE.
    8 Div. 924.
    Court of Criminal Appeals of Alabama.
    July 26, 1977.
    Travis W. Hardwick, Decatur, for appellant.
    William J. Baxley, Atty. Gen., and James 5. Ward, Asst. Atty. Gen., for the State.
   TYSON, Presiding Judge.

The appellant was tried and convicted under the following one count indictment (omitting formal parts):

“The Grand Jury of said County charge that before the finding of this indictment Ronald Spencer Young, alias Ron Young, alias Roy Young, alias Spencer Young, whose name is to the Grand Jury otherwise unknown, did unlawfully on to-wit: April 21, 1975, at or near Hartselle, Alabama, obtain or attempt to obtain a quantity of Dilaudid, by fraud, deceit, misrepresentation or subterfuge, or by the concealment of material fact, or by giving a false address, to-wit: Route 2, Lacey’s Springs, Alabama, against the peace and dignity of the State of Alabama.”

Appellant filed a timely demurrer to this indictment alleging in substance that:

(1) The indictment fails to state an offense under the law of the State of Alabama;
(2) The indictment fails to inform the defendant of the nature of the offense of which he is charged;
(3)The indictment fails to apprise the defendant of the specific offense of which he is called upon to defend.

The trial court overruled the demurrer, and issue was joined on the plea of not guilty. We find error.

I

Title 15, §§ 247, 248, 249, Code of Alabama, 1940, authorizes alternative or disjunctive averments in criminal pleadings in three instances:

(1) “When the offense may be committed by different means, or with different intents, such means or intents may be alleged in the same count in the alternative.” (§ 247)
(2) “When an act is criminal, if producing different results, such results may be charged in the same count in the alternative.” (§ 248)
(3). “Where offenses are of the same character, and subject to the same punishment, the defendant may be charged with the commission of either in the same count in the alternative.” (§ 249)

Where, however, two or more offenses are charged in the same count dis-junctively, “each separate alternative charge must contain a substantive offense under the law, charged with that degree of certainty which our statute [Title 15, § 232, Code of Alabama, 1940] requires, namely, ‘in ordinary and concise language, without prolixity or repetition, in such a manner as to enable a person of common understanding to know what is intended, and with that degree of certainty which will enable the court, on conviction, to pronounce the proper judgment.’ ” Noble v. State, 59 Ala. 73, 78 [Emphasis Supplied]; See Mastoras v. State, 28 Ala.App. 123, 180 So. 113; Lipscomb v. State, 34 Ala.App. 421, 41 So.2d 440.

The instant indictment, in one count, contains twelve alternative charges against the appellant, anyone of which if proven would have sustained his conviction. The indictment substantially tracks the language of Title 22, § 258(47), Code of Alabama, 1940, except the offenses of possessing, selling, giving away, and furnishing a controlled substance were omitted, as were the offenses of obtaining or attempting to obtain a controlled substance by using a false name, or by forging or altering a prescription or written order. To illustrate the scope of this indictment, we list the charges it lodges against the appellant, for we must examine the indictment under the rules of common law as if it contained twelve counts. Hornsby v. State, 94 Ala. 55,10 So. 522; See Gayden v. State, 38 Ala.App. 39, 80 So.2d 495, aff’d, 262 Ala. 468, 80 So.2d 501:

(1) That on April 21, 1975, at or near Hartselle, Alabama, the appellant did unlawfully obtain Dilaudid by fraud;
(2) That on April 21, 1975, at or near Hartselle, Alabama, the appellant did unlawfully attempt to obtain Dilaudid by fraud;
(3) That on April 21, 1975, at or near Hartselle, Alabama, the appellant did unlawfully obtain Dilaudid by deceit;
(4) That on April 21, 1975, at or near Hartselle, Alabama, the appellant did unlawfully attempt to obtain Dilaudid by deceit;
(5) That on April 21, 1975, at or near Hartselle, Alabama, the appellant did unlawfully obtain Dilaudid by misrepresentation;
(6) That on April 21, 1975, at or near Hartselle, Alabama, the appellant did unlawfully attempt to obtain Dilaudid by misrepresentation;
(7) That on April 21, 1975, at or near Hartselle, Alabama, the appellant did unlawfully obtain Dilaudid by subterfuge;
(8) That on April 21, 1975, at or near Hartselle, Alabama, the appellant did unlawfully attempt to obtain Dilaudid by subterfuge;
(9) That on April 21, 1975, at or near Hartselle, Alabama, the appellant did unlawfully obtain Dilaudid by the concealment of a material fact;
(10) That on April 21, 1975, at or near Hartselle, Alabama, the appellant did unlawfully attempt to obtain Dilaudid by the concealment of a material fact;
(11) That on April 21, 1975, at or near Hartselle, Alabama, the appellant did unlawfully obtain Dilaudid by use of a false address: Route 2, Lacey’s Springs, Alabama;
(12) That on April 21, 1975, at or near Hartselle, Alabama, the appellant did unlawfully attempt to obtain Dilaudid by use of a false address: Route 2, Lacey’s Springs, Alabama; *

Under the authority of Gayden v. State, supra, we are of the opinion that alternative charges 1 through 10 above are deficient, for they do not define the offenses intended to be charged with that precision which our law requires. Where an accused is charged with unlawfully obtaining (or attempting to obtain) a drug by fraud, or deceit, or misrepresentation, etc., the facts (time, place, and circumstances) which constitute the alleged crimes must be set out with reasonable particularity.

Justice Simpson, the author of the Supreme Court’s majority opinion in Gayden, supra, noted the following:

“It is but to repeat the axiomatic that due process requires that no person shall be deprived of life, liberty or property without a fair hearing, but one cannot have a fair hearing unless notified of the charges to be defended against. ‘Fraud,’ ‘misrepresentation’ and ‘concealment of a material fact’ and the other crimes charged are vague terms and no civil pleading could stand the test of apt demurrer if a complaint merely averred ‘plaintiff claims of defendant $100 for that defendant did take such amount of money from plaintiff by “fraud” or by “misrepresentation” or by “concealment of a material fact” or etc.’ Certainly property cannot be of a higher value or entitled to greater protection in the eyes of the law than liberty.” [See Rule 9(b), A.R.C.P., (1977)]

We need not comment on the sufficiency of averments numbers 11 and 12 listed above, because the count, being bad in part, is bad in the whole. Horton v. State, 53 Ala. 488; Griffin v. State, 22 Ala.App. 369, 115 So. 769.

We must be ever mindful that the right of an accused to demand the nature and cause of the accusation is one of the cornerstones of our Bill of Rights; that he fully and intelligently understand the charge against him, so that he may adequately prepare his defense, is the first requirement of due process. Gayden v. State, supra; Bergen v. United States, 8 Cir., 145 F.2d 181.

The appellant’s demurrer should have been sustained, and, for the error in failing to do so, the judgment is reversed and the caused is remanded.

REVERSED AND REMANDED.

All the Judges concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In re THE FLORIDA BAR. In re RULES OF MEDICAL MEDIATION PROCEDURE.
    No. 51216.
    Supreme Court of Florida.
    July 14, 1977.
    Edward J. Atkins, Miami, President and Russell Troutman, Orlando, President-elect, for The Florida Bar, and Theodore Babbitt, West Palm Beach, Chairman and Robert P. Gaines, Pensacola, for Civil Procedure Rules Committee, petitioner.
    Hugh MacMillan, West Palm Beach, Chairman for Civil Justice Section, Circuit Judges Conference.
    John E. Thrasher, Daytona Beach, for Florida Medical Association, Inc.
    Robert Orseck of Podhurst, Orseck & Parks, Miami, for The Academy of Florida Trial Lawyers.
   PER CURIAM.

Annexed to this Order are the Rules of Medical Mediation Procedure which are hereby adopted by this Court. The annexed Rules shall govern all proceedings within their scope after 12:01 a. m., September 1, 1977, and of said time and date Transition Rule 21, adopted July 81, 1975 (816 So.2d 88), shall be of no further force and effect except as to medical liability mediation claims pending on that date.

All conflicting rules and statutes are hereby superseded as of the effective date of these Rules, and any statute not superseded shall remain in effect as a rule promulgated by the Supreme Court.

It is so ordered.

OVERTON, C. J., and ADKINS, BOYD, ENGLAND, SUNDBERG and HATCH-ETT, JJ., concur.

FLORIDA RULES OF MEDICAL MEDIATION PROCEDURE

Rule 20.010. SCOPE AND TITLE. These rules apply to all proceedings before medical liability mediation panels pursuant to § 768.44, Florida Statutes (Supp.1976). They shall be construed to secure the just, speedy and inexpensive determination of every claim contemplated by § 768.44, Florida Statutes (Supp.1976). They shall be cited as the Florida Rules of Medical Mediation Procedure, abbreviated Fla.R.Med.P.

Rule 20.020. APPLICABILITY OF FLORIDA RULES OF CIVIL PROCEDURE. All of the Florida Rules of Civil Procedure that are not directly in conflict with these rules or the provisions of § 768,44, Florida Statutes (Supp.1976), shall be applicable to medical liability mediation proceedings.

Rule 20.080. DEFINITIONS, (a) “Court” and “judicial referee” are synonymous and mean the judicial referee defined in § 768.-44(2), Florida Statutes (Supp.1976). For the purpose of these proceedings the judicial referee is construed to be a judicial officer, and his participation shall not be construed to be a violation of Canon 5E, Code of Judicial Conduct.

(b) “Clerk” and “clerk of circuit court” are synonymous and mean either the clerk of the circuit court or his deputy.

(e) "Panel” means the judicial referee, licensed physician and attorney chosen under the provisions of § 768.44(2), Florida Statutes (Supp.1976), to hear the claim. Rule 20.040. ATTORNEYS, (a) Every pleading and other paper of a party represented by an attorney shall be signed by at least one attorney of record in his individual name whose address and telephone number (including area code) shall be stated and who shall be duly licensed to practice law in Florida. He may be required by order of court to vouch for his authority to represent and to give the address of such party. Except when otherwise specifically provided by these rules or an applicable statute, pleadings as such need not be verified or accompanied by affidavit. The signature of an attorney shall constitute a certificate by him that he has read the pleading or other paper; that to the best of his knowledge, information and belief there is good ground to support it and that it is not interposed for delay. If a pleading is not signed or is signed with intent to defeat the purpose of this rule, it may be stricken and the action may proceed as though the pleading or other paper had not been served.

(b)A party who has no attorney but represents himself shall sign his pleading or other paper and state his address and telephone number (including area code).

Rule 20.050. FORM OF PLEADINGS. All pleadings, notices, motions and other papers to be filed with the clerk shall bear the name of the county, a designation that it is a medical liability mediation claim, the style of the claim, a designation of the judicial referee, and the claim number assigned.

Rule 20.060. FORM OF CLAIM, (a) Every claim shall contain a short and plain statement of the ultimate facts describing the act or acts of alleged malpractice of which the claimant complains. A claim may contain more than one instance of alleged malpractice, and, in the event of multiple alleged instances, they may be stated cumulatively or in the alternative.

(b) Every claim shall include a designation of the medical specialty involved in the alleged malpractice. Claims may be filed on forms substantially similar to Form 20.-904 of these rules.

Rule 20.070. WHEN ACTION COMMENCED. Every action shall be deemed commenced when the claim is filed with the clerk.

Rule 20.080. PROCESS, (a) Upon commencement of the action summons shall be issued and delivered forthwith by the clerk for service without praecipe. Service of process shall be initiated and effected as provided by law.

(b) In addition to the service of process described above, the claimant shall mail forthwith a copy of the claim to each defendant and to the administrative board licensing each professional. The mailing required in this subparagraph (b) shall not be construed to constitute the service of process required by subparagraph (a) of this rule.

Rule 20.090. ANSWERS, SUBSEQUENT PLEADINGS AND MOTIONS, (a) Each defendant shall file and serve an answer to the claim within 20 days of the date of service.

(b) The answer may contain the medical specialty requested by the defendant.

(c) There shall be no other pleadings or motions filed in answer to the claim.

(d) Third party practice, cross-claims and counterclaims are not allowed.

(e) Motions directed to the sufficiency of the claim, for more definite statement and for failure to attach documents or exhibits are not allowed.

(f) Motions for summary judgment, judgment on the pleadings and directed verdict are not allowed.

(g) If a defendant files an answer, that defendant cannot contend in any subsequent civil action that the mediation panel did not have jurisdiction over his person.

Rule 20.100. AMENDED AND SUPPLEMENTAL PLEADINGS, (a) A party may amend his claim or answer only upon order of the judicial referee.

(b) Any amendment to the claim or answer allowed shall relate back to the date of the filing of the original claim or answer and will not increase the time allowable pursuant to these rules and § 768.44, Florida Statutes (Supp.1976), in determining the date of the termination of the panel’s jurisdiction.

Rule 20.110. SERVICE OF PLEADINGS AND PAPERS, (a) Every pleading and paper subsequent to the initial claim shall be served on each party pursuant to the provisions of Rule 1.080, Florida Rules of Civil Procedure. The clerk shall furnish to each party a copy of any paper received from one not a party.

(b) The clerk shall serve notice of all matters set by the clerk or the judicial referee on each party. The clerk shall be responsible for service of all orders and all final determinations. The clerk shall be responsible for notifying panel members of hearings at which the panel is required to be present.

Rule 20.120. PARTIES, (a) Only those persons who would be entitled to damages because of injury or death of one person resulting from the alleged malpractice shall be joined as claimants in a single claim. Any medical physician, osteopathic physician, podiatrist, hospital or health maintenance organization against whom the claimant wishes to assert a claim may be joined as a defendant. A claimant may file as many separate claims against separate defendants as he wishes. In the event that more than one medical specialty is involved in the claim and the parties are unable to agree upon the specialty of the physician member of the hearing panel, the judicial referee shall make the determination of the type of physician to serve as a member of the panel. He may choose a medical specialist or a general practitioner. A medical specialist need not be of the same specialty as any of the defendants.

(b)One or more claims may be consolidated for hearing in the sound discretion of the judicial referees involved. In the event that claims are consolidated for hearing before panels consisting of two or more judicial referees, the senior judicial referee shall preside at the hearing.

Rule 20.130. INFORMATION ON PANEL MEMBERS, (a) The clerk shall submit to those physicians and attorneys on the list from whom the panel is to be chosen, at the time those names are submitted to the parties, a standard questionnaire to obtain information on their education, professional background and experience as well as their possible connection with the parties to the claim on forms substantially similar to Form 20.902 and 20,903 of these rules.

(b) The judicial referee may, upon application by a party, authorize the submission of additional written questions to the clerk for transmission to the panel members. Such question shall be directed to determination of the impartiality of panel members. Application to the judicial referee for the propounding of additional questions must be made within 10 days of the mailing by the clerk to the parties of the names of the panel members.

(c) Answers to questions must be returned to the clerk within 10 days of mailing. The clerk shall transmit copies of the answers to all parties.

(d) After selection of the panelists, the judicial referee and either party may question the physician and attorney to determine if either of them has a state of mind regarding the subject matter at issue, the case at hand, or any parties directly or indirectly involved in said case that will prevent him from acting with impartiality. Upon a determination by the judicial referee that either panelist cannot act with complete impartiality, the judicial referee shall remove said panelist.

Rule 20.140. DISCOVERY, (a) All provisions of the Florida Rules of Civil Procedure relating to discovery shall be applicable to proceedings under the provisions of § 768.44, Florida Statutes (Supp.1976), subject to the following modifications: cross questions provided for in Rule 1.320 shall be served within 10 days; objections to interrogatories served pursuant to Rule 1.340 shall be served within 10 days; answers to interrogatories propounded pursuant to Rule 1.340 shall be served within 20 days; a response to a request for production pursuant to Rule 1.350 shall be served within 10 days; and a response to a request for admission pursuant to Rule 1.370 shall be served within 20 days.

(b) Upon reasonable notice to other parties, a party may apply for an order compelling discovery. If a party fails to comply with such an order, the judicial referee may order that the matters regarding which questions were asked or any other designated facts shall be taken to be established for the purposes of the proceedings in accordance with the claim of the party obtaining the order or may refuse to allow the disobedient party to support or oppose designated claims or defenses or may prohibit him from introducing designated matters in evidence at the hearing. The provisions of Florida Rules of Civil Procedure, Rule 1.380 shall not apply to proceedings under these rules.

Rule 20.150. NOTICE TO PANEL AND ACCEPTANCE. A notice shall be sent by the clerk to the five attorneys and five physicians chosen as prospective panel members pursuant to § 768.44(2)(g), Florida Statutes (Supp.1976), of their selection in substantially the same form as Form 20.905 of these rules.

Rule 20.160. TIME, (a) In computing any period of time prescribed or allowed by these rules, by order of court or by any applicable statute, the day of the act from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included unless it is a Saturday, Sunday or legal holiday, in which event the period shall run until the end of the next day which is neither a Saturday, Sunday or legal holiday. When the period of time prescribed or allowed is less than seven days, intermediate Saturdays, Sundays and legal holidays shall not be included in the computation.

(b) In all cases in which an act is required or allowed to be performed, unless otherwise stated in the applicable statute or these rules the time within such act shall be accomplished is 10 days.

(c) A copy of any written motion allowed under § 768.44, Florida Statutes (Supp. 1976), and these rules, and a copy of the notice of hearing thereon shall be served a reasonable time before the time specified for the hearing.

(d) When a party has the right or is required to do some act or take some proceeding within a prescribed period after the service of the notice or other paper upon him and the notice or paper is served upon him by mail, three days shall be added to the prescribed period.

(e) The clerk shall set a final hearing on the claim before the panel. The hearing is to be held within 120 days from the date the claim is filed. Upon a showing of good cause prior to the expiration of the 120 days from the date the claim was filed, the judicial referee, by written order, may extend the time for commencing the hearing. In any event, the hearing shall be begun no later than six months from the date of the filing of the claim.

Rule 20.170. CONDUCT OF HEARING. The judicial referee shall preside over hearings and shall conduct them in such a manner as to best ascertain the rights of the parties. The judicial referee shall rule on all matters of law and the admissibility of evidence. Strict adherence to the rules of evidence shall not be required. The judicial referee in his discretion may allow panel members to propound questions to witnesses. The judicial referee shall not unreasonably restrict the time to be used by any party in the presentation of his respective case to the panel.

Rule 20.180. COURT REPORTER. Proceedings shall be reported on the request of any party, who shall be responsible for payment of the fee of the court reporter. The amount of the court reporter’s fee shall be determined pursuant to Rule 1.035, Florida Rules of Civil Procedure.

Rule 20.190. TERMINATION. The clerk shall send to all parties a notice of termination of the proceedings when any of the following events has occurred:

(a) A defendant has not filed an answer within 20 days of the date of service;
(b) A hearing has not been held within 120 days from the date of the filing of the claim and no extension order has been entered by the judicial referee;
(c) An extension order has been entered by the judicial referee but the hearing has not been commenced within six months from the date of the filing of the claim; or
(d) The final hearing has not been concluded within 10 months from the date the claim is filed.

Termination for any of the foregoing reasons terminates the jurisdiction of the panel. Such termination is final and cannot be extended, modified or reinstated by the panel, the judicial referee or by agreement of the parties. A termination for one of the foregoing reasons is automatic, and the clerk’s act or failure to act is ministerial only.

Rule 20.200. DECISION OF PANEL. Within 30 days after the completion of the hearing, the panel shall file its written decision with the clerk of the court, who shall thereupon mail copies to all parties.

Rule 20.210. DUTIES OF CLERK, (a) The clerk shall maintain the list of physicians and list of qualified attorneys prescribed by § 768.44(2)(a, b and c), Florida Statutes (Supp.1976).

(b) When a claim is filed, the clerk shall assign a judicial referee by a “blind” system established by the chief judge of the circuit. The clerk shall promptly notify the judicial referee of his appointment.

(c) If the parties file designations of different medical specialists, the clerk shall immediately set a hearing before the judicial referee for a determination as to the type of specialist who should serve on the hearing panel.

(d) Promptly upon the determination of the speciality of medical practice involved, the clerk shall mail to the parties and the panel members the names of the five attorneys and five physicians who are to be members of the hearing panel list. The clerk shall notify the panel members that they have 10 days within which to disqualify themselves. If a challenge for cause is filed by a party, the clerk shall immediately set a hearing before the judicial referee and notify the parties of the time set for the hearing.

(e) If there are disqualifications, or challenges for cause are allowed, the clerk shall appoint such additional panel members as may be required, repeating the process of allowing disqualifications and challenges for cause. When a panel of five physicians and five attorneys has been selected, the clerk shall schedule a conference with the parties for the purpose of selecting the physician member and attorney member of the hearing panel. If the parties do not agree on one attorney and one physician to serve on the hearing panel, each side shall then in turn strike a name from the attorneys’ list and from the physicians’ list separately until one attorney and one physician remain, who shall serve on the hearing panel.

(f) The clerk, with the advice and cooperation of the parties and the members of the panel, shall fix a date, time and place for a hearing before the panel.

(g) Pursuant to the provisions of Rule 20.190 of these rules, the clerk shall send notice of termination to the parties.

(h) Upon the filing of the panel’s written decision with the clerk, he shall thereupon mail copies to all parties.

Rule 20.900 Forms

(a) The following forms are sufficient for the matters that.are covered by them. So long as the substance is expressed without prolixity, the forms, may be varied to meet the facts of a particular case.

(b) Captions, except for the designation of the paper, are omitted from the forms. A general form of caption is the first form.


author: ALDERMAN, Judge.

text:
    John A. BENSON et al., Appellants, v. CHALFONTE DEVELOPMENT CORPORATION et al., Appellees.
    No. 75-2048.
    District Court of Appeal of Florida, Fourth District.
    Dec. 24, 1976.
    Rehearing Denied Aug. 22, 1977.
    Larry A. Klein and Cone, Owen, Wagner, Nugent, Johnson & McKoewn, West Palm Beach, and Stuart, Walker & Jenne, Fort Lauderdale, for appellants.
    Davis W. Duke, Jr., of McCune, Hiaasen, Crum, Ferris & Gardner, Fort Lauderdale, for appellees.
   ALDERMAN, Judge.

This is an appeal from a final judgment of the Circuit Court of Palm Beach County. Appellants each sued appellee for damages arising out of an alleged breach of contract by appellee. The cases were consolidated. There was a trial but the jury was unable to reach a verdict. The consolidated actions were again set for trial. However, prior to commencement of jury selection, the trial court, after reviewing the agreement sued upon by appellants, announced its intention to grant judgment for appellee due to the fact that it had determined as a matter of law that the agreement was unenforceable. In view of the trial court’s announcement appellants waived their right to present additional evidence but preserved their right on this appeal to rely upon the existing record, including the transcript of the previous trial.

The record on appeal reflects that appel-lee executed and delivered to each appellant a written agreement entitled "Receipt for Deposit.” Each agreement acknowledged receipt of $1,000.00 towards the purchase price of a particular condominium unit (a unit number was inserted into each contract). Each agreement also stated that the deposit was to assure the purchaser the first option to purchase the designated apartment for a specified purchase price (a specified amount was written in). The purchaser was to be furnished a purchase contract when the model apartments were completed (approximately July-September 1978). The purchaser was then to have fourteen days from the date of being furnished the contract in which to examine, sign and return it to the seller. If purchaser elected not to accept the contract his deposit was to be returned to him plus interest at the current prevailing passbook rate in the bank of deposit (the funds were to be deposited in appellee’s trust account). The agreement gave an anticipated completion schedule and provided that if this schedule could not be met for any unforeseen reason, or if the project could not be started in accordance with the terms stated, then both parties would be relieved of all obligation.

In June of 1978 appellee sent letters to appellants advising that the project was generally on schedule but stating that the overall cost of the project was going to be more than appellee had previously estimated and therefore appellee was raising the prices of the apartment about 16%. Appellants refused to accept the increase in price and filed suit seeking damages for breach of contract.

The trial court in its order found as a matter of law that the apeement in question on its face was not enforceable for the following reasons:

"1. In as much as plaintiffs, under the terms of the Receipt for Deposit, could at any time and at their option receive back from defendants the full amounts deposited by plaintiffs together with interest thereon, the plaintiffs have not paid irrevocably an amount subject to forfeiture for the alleged option and therefore, there is no consideration for the option and the promise of the defendant.
“2. The Receipt for Deposit form does not contain sufficient definity of the essentials and details of an agreement between the parties and, in essence, fails to contain sufficient details of the option plaintiffs allegedly could exercise.
“3. The final paragraph of the Receipt for Deposit renders the alleged agreement or contract illusory.”

I

We acknowledge that an option contract or agreement to be enforceable must be supported by some consideration. Without consideration an “option” is nothing more than an offer which may be withdrawn at any time before acceptance. Donahue v. Davis, 68 So.2d 163 (Fla.1953). The first question then is whether, as a matter of law, from the terms of the agreement alone, the court below correctly concluded that there was no consideration. In support of the trial court’s conclusion, ap-pellee cites a number of cases from other jurisdictions which hold that where the amount deposited for an option is returnable, there is no consideration and the option is not enforceable. Aspinwall v. Ryan, 190 Or. 530, 226 P.2d 814 (1951); Friendly v. Elwert, 57 Or. 599, 112 P. 1085 (1911); Ford v. McGregor, 314 Ky. 116, 234 S.W.2d 493 (1950); Country Club Oil Co. v. Lee, 239 Minn. 148, 58 N.W.2d 247 (1953). We recognize the existence of a contrary view, but we believe that the law of Florida on this point was correctly expressed by Judge Rawls in King v. Hall, 306 So.2d 171 (Fla. 1st DCA 1975).

In King v. Hall there was an option agreement, one term of which provided:

“Seller shall give Buyer a fifteen (15) day no penalty option to purchase from the date of this instrument during which time the Buyer may decline to purchase the property and have the $3,000.00 reimbursed.”

Within the 15 day period the buyer notified the seller that he was exercising the option; the seller, however, decided not to honor the contract. The trial court entered a summary judgment in favor of the seller on the ground the agreement was an option without consideration because the $3,000.00 had to be returned at the request of the buyer. The First District reversed, holding that there was sufficient consideration even though the option money was returnable, stating at page 173:

“While buyer’s $3,000.00 deposit could have been drawn down within the fifteen days granted by the option, it did constitute sufficient consideration to support the agreement as it was a detriment or inconvenience to buyer to post it. It was done to show good faith and buyer was deprived of the use of the money during the period it was posted. It does not matter that the burden to the buyer was small or that the benefit to sellers was small. As stated by the Supreme Court in Tampa Northern R. Co. v. City of Tampa, 104 Fla. 481,140 So. 311, 313, 141 So. 298 (1932):
‘A contract may be supported by any act of the plaintiff from which the defendant derives a benefit, or it may be supported by any labor, detriment, or inconvenience, however small, sustained by the plaintiff, if such act as performed or inconvenience suffered is by the consent express or implied of defendant.’ [Emphasis supplied.]”

The fact that the deposits in the present case were to be placed in the appel-lee’s trust account to earn interest at the current prevailing passbook rate in the bank of deposit, with the accumulated interest to be returned to appellants in the event their deposits were returned, does not necessarily mean that appellee did not derive a benefit, or that the appellants did not sustain a detriment or inconvenience. Although, under the terms of the option, appellants were to receive any accumulated interest if their deposits were returned, a jury might find that appellants suffered some detriment and inconvenience in that they were deprived of the free and unrestricted use of their money during the period it was on deposit. A jury in this case might also conclude that appellee derived a benefit as a result of being able to use the option agreements obtained from appellants as promotional vehicles in its sales campaign to induce others to purchase. We cannot say as a matter of law that there was not some consideration, however small, to support the option agreements which are the subject of this appeal. Based upon the record before us, we conclude that there was a sufficient factual basis to submit this issue to the jury.

II

The second reason for dismissal stated by the trial court in its judgment was that the documents in question did not contain sufficient “definity” of the essentials and details of an agreement. It may well be that the agreements are not sufficiently definite to be susceptible of specific performance. However, even though an agreement may be too indefinite in its terms for specific enforcement, it may be certain enough to constitute a valid contract for breach of which damages may be recovered. Langlois v. Oriole Land & Development Corp., 283 So.2d 143 (Fla. 4th DC A 1973); Lasseter v. Dauer, 211 So.2d 584 (Fla. 3d DCA 1968); See also 17 Am. Jur.2d, Contracts § 76, at page 417.

The options in question were for particular apartments in Chalfonte Condominium. The exact dollar amount of the purchase price was spelled out in each agreement and estimated completion dates were given. In the event of a new trial in this case, we do not know if appellants would be able to establish by competent proof the existence of a valid contract, as well as a breach thereof by appellee with resulting damages to appellants. However, the agreements which are the subject of this appeal are not, as a matter of law, in this action for damages, fatally defective because of a lack of certainty. Langlois v. Oriole Land & Development Corp., supra.

Ill

Thirdly, the trial court was of the opinion that the final paragraph of the document rendered the agreement illusory. We respectfully disagree. The final paragraph by its own terms is applicable only “In the event that this schedule cannot be met for any unforeseen reason, or that the project cannot be started as anticipated in accordance with the terms stated above. .” All parties concede that there were disputed factual issues as to whether the project was started as anticipated or was on schedule. If the jury resolved these disputed factual issues against appellee the paragraph in question would not be applicable. As a matter of law, this portion of the option agreement does not render the option agreement illusory.

We conclude that the trial court erred in holding as a matter of law that the document entitled “Receipt for Deposit,” was not a valid contract for breach of which damages may be recovered.

REVERSED and REMANDED for trial.

DOWNEY, J., and DURANT, JOSEPH N., Jr., Associate Judge, concur.

      . The full text of the "Receipt for Deposit” is as fellows;
      CARDINAL CONSTRUCTION CORPORATION BOCA RATON CHALFONTE RECEIPT FOR DEPOSIT
      Receipt Is hereby acknowledged of a deposit in the amount of $_toward the purchase price of condominium unit no. _ in the CHALFONTE Condominium to be constructed at 500 South Ocean Boulevard, Boca Raton, Florida.
      This deposit is being placed with the Seller for purposes of assuring the Purchaser the first option to purchase the above designated apartment for a total purchase price of $_ The Purchaser will be furnished a Purchase Contract when the model apartments have been completed (approximately July-September 1973). The Purchaser shall have 14 days from the date of being furnished said contract within which to exam same, sign and return to the Seller.
      In the event the Purchaser elects not to accept the Purchase Contract, all funds deposited pursuant to terms of this receipt shall be refunded immediately to the Purchaser, and both parties shall be relieved of all obligations hereunder.
      The deposit herein will be placed in the Developer’s trust account and will earn interest at the current prevailing passbook rate in the bank of deposit.
      The anticipated schedule is as follows;
      Construction of Tower I to be started in May of 1973, with completion in August of 1974, Construction of Tower II to start approximately September, 1973, with a completion date of December, 1974.
      In the event that this schedule cannot be met for any unforeseen reason, or that the project cannot be started as anticipated in accordance with the terms stated above, then prior to the Purchase Contract and upon return of the deposit herein, together with accumulated interest, both parties shall be relieved of all obligations hereunder.
      Witness our hands and seals this_day of -, 19_
      Please make your check payable to CHAL-FONTE trust account.


text:
    Gerald B. FALOVITCH, Appellant, v. GUNN AND GUNN CONSTRUCTION COMPANY, Appellee.
    No. 75-1606.
    District Court of Appeal of Florida, Third District.
    March 1, 1977.
    As Amended on Denial of Rehearing May 4, 1977.

      See also, Fla.App., 343 So.2d 70.
    Michael H. Weisser, North Miami Beach, Miller & Russell, Miami, for appellant.
    Levine, Reckson & Reed, Miami, for ap-pellee.
    Before BARKDULL, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

This is an appeal by Gerald B. Falovitch, defendant in the trial court, from an adverse final judgment foreclosing a mechanic’s lien. The sole issue in this appeal is whether the court erred in entering a final judgment foreclosing the mechanic’s lien where the plaintiff, Gunn and Gunn Construction Company, failed to allege that it had furnished the defendant with a contractor’s affidavit at least five days before instituting suit, as required by Section 713.-06(3)(d)(l), Florida Statutes.

The plaintiff’s complaint did not allege nor does the record reflect that the affidavit was served prior to the institution of suit or at any time thereafter. No motion was made to amend the complaint to so state. Defendant Falovitch moved to dismiss the complaint on the ground that it did not state a cause of action. The trial court denied the motion. At a later date and prior to trial, defendant filed another motion to dismiss on the ground that the plaintiff had failed to comply with Section 713.-06(3)(d)(l), Florida Statutes, as a prerequisite to the institution of suit. This motion was also denied.

Section 713.06(3)(d)(l) provides that as a prerequisite the institution of any suit to enforce a lien under Chapter 713, the contractor must execute and deliver to the owner at least five days before instituting suit an affidavit stating that all lienors have been paid in full, or showing the names of all lienors not yet paid in full, and the amounts due. Further, the contractor can have no lien or right of action against the owner under the direct contract while in default by reason of not having given the owner such affidavit. The cases hold that strict compliance with the Mechanic’s Lien Law is an indispensable prerequisite to seeking affirmative relief thereunder. Partin v. Konsler Steel Company, 336 So.2d 684 (Fla. 4th DCA 1976), and cases cited therein. Where the plaintiff fails to serve the affidavit as required by statute as a prerequisite to the institution of suit, and a motion to dismiss is filed, it is incumbent upon the trial court to dismiss the claim for foreclosure of the mechanic’s lien. See Oppenheim v. Newport Systems Development Corp., 348 So.2d 328 (Fla.3d DCA 1977), opinion filed January 4, 1977; Mardan Kitchen Cabinets, Inc. v. Bruns, 312 So.2d 769 (Fla.3d DCA 1975); Potts v. Orlando Building Service, Inc., 206 So.2d 221 (Fla. 4th DCA 1968); Oper v. Russell, 197 So.2d 13 (Fla.3d DCA 1967).

Section 713.29, Florida Statutes, provides that the prevailing party in an action to enforce a mechanic’s lien is entitled to recover a reasonable fee for the services of his attorney. As was held in Dominguez v. Benach, 277 So.2d 567 (Fla.3d DCA 1973) and the Mardan Kitchen Cabinets case, supra, a party who successfully resists a claim to enforce a mechanic’s lien is the prevailing party, and that party is therefore entitled to reasonable attorney’s fees.

Accordingly, we reverse and remand to the trial court with directions to vacate the final judgment foreclosing the mechanic’s lien and to award a reasonable attorney’s fee to defendant Falovitch as the prevailing party in the claim to enforce the mechanic’s lien.

Reversed and remanded with directions.


author: PER CURIAM. DAUKSCH, Judge,

text:
    Charles Edward ADAMS, Appellant, v. STATE of Florida, Appellee.
    No. 76-169.
    District Court of Appeal of Florida, Fourth District.
    May 20, 1977.
    Rehearing Denied July 15, 1977.
    Sheldon Yavitz, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Marsha G. Madorsky, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed.

CROSS and LETTS, JJ., concur.

DAUKSCH, J., dissents, with opinion.

DAUKSCH, Judge,

dissenting:

I respectfully dissent.

Defendants Charles Adams, the Appellant herein, and Wanda Brown were arrested on April 9,1975 and charged by information on April 15, 1975 with one count of breaking and entering to commit a felony, to wit: grand larceny, and one count of grand larceny.

On April 23, 1975 co-Defendant Brown’s attorney filed an appearance as counsel of record for both Defendants. At the same time, the attorney waived the Defendants’ arraignments scheduled for April 25, 1975, entered not guilty pleas, requested a jury trial and demanded discovery, all on behalf of both Defendants. In addition, the attorney executed a waiver of Appellant’s right to a speedy trial. The waiver was dated April 23, 1975 and was signed only by the attorney.

On October 9, 1975 Appellant filed a Motion for Discharge on the grounds that the written waiver of speedy trial was a nullity in that it was filed without Appellant’s knowledge or consent, either express or implied, and that, in fact, Appellant never retained his eo-Defendant’s attorney as his own counsel. It is undisputed that the 180 day period within which a defendant who has made no demand for speedy trial must be brought to trial expired on October 6, 1975.

On October 14, 1975 a hearing was held on Appellant’s Motion for Discharge. Appellant was represented at the hearing by an attorney he retained in September, 1975. The first attorney, the one who executed the speedy trial waiver, testified that he never met, spoke with or entered into any contract of employment with Appellant. Furthermore, this first attorney did not advise Appellant that the waiver had been entered. The attorney further testified that he was retained by co-Defendant Brown, who requested that he also represent Appellant:

“A. Wanda Brown came to me shortly after she was arrested within a few days and engaged me to represent her . . . and asked me to represent Adams [Appellant], And in what she said to me, the exact words, I can’t recall, led me to believe that she had authority to engage me for Adams. However, I have never talked to this man. I have never had any communication from him. I have written him at least once and I have — and I asked Wanda to find Charlie, and as we refer to him, but I never talked to him. I filed this waiver of speedy trial after having a discussion with Wanda about the waivers and signed the waiver myself and filed an appearance for Adams. That’s about what happened.
Q. But at the time that you signed this Waiver of Speedy Trial on behalf of Charles Adams, you had no discussion with him, as to the fact that you would be his attorney?
A. That’s right. There is no question about that.”

Appellant testified at the hearing that he did not know the attorney, had not spoken with him or retained his services, nor had he given anyone the authority to retain the attorney on his behalf.

The trial court denied the Motion to Discharge and the case proceeded to trial on October 15,1975. Appellant was adjudicated guilty on both counts.

Rule 3.191(d)(2), Fla.R.Crim.P., provides that a waiver of speedy trial may be made by an accused or by someone acting on his behalf. The rule does not require that the accused be present when the waiver is made or even that the waiver be personally executed by the accused. State ex rel. Gutierrez v. Baker, 276 So.2d 470 (Fla.1973).

The Defendant’s attorney may enter the waiver on his behalf and the Defendant will be bound by the acts of his attorney within the scope of the latter’s authority. Id. Thus, a valid waiver of speedy trial executed by a defendant’s attorney presupposes the existence of an attorney/client relationship.

However, where an attorney has not met or conferred with the accused, entered into a contract of employment express or implied with him or someone authorized to represent the accused, no attorney/client relationship has been established. See Colonial Press of Miami, Inc. v. Sanders, 264 So.2d 92 (Fla.3d DCA 1972).

A review of the record on appeal convinces me that there was insufficient evidence to establish the existence of an attorney/client relationship. Therefore, the first attorney was without authority, either express or implied, to act on Appellant’s behalf. The attempted waiver of speedy trial was a nullity and Appellant’s Motion for Discharge should have been granted since he was not brought to trial within the 180 day period required by Rule 3.191(a)(1), Fla. R.Crim.P.

I would reverse.


author: PER CURIAM. ANSTEAD, Judge, DAUKSCH, Judge,

text:
    Catherine M. PINDER, Appellant, v. Kenneth B. PINDER, Appellee.
    No. 76-1001.
    District Court of Appeal of Florida, Fourth District.
    May 20, 1977.
    Rehearing Denied July 15, 1977.
    Daniel L. Ginsberg, of Ginsberg & Goldman, North Miami Beach, for appellant.
    Ross Rosenberg, of Blitstein & Molans, Miami, for appellee.
   PER CURIAM.

Affirmed.

CROSS, J., concurs.

ANSTEAD, J., concurs specially.

DAUKSCH, J., dissents, with opinion.

ANSTEAD, Judge,

concurring specially:

The trial court’s order with respect to temporary support should be affirmed on the authority of Burton v. Burton, 216 So.2d 480 (Fla. 4th DCA 1968).

DAUKSCH, Judge,

dissenting:

I respectfully dissent.

It appears the trial court entered an Order reducing the husband’s obligation to pay support where the only pleading upon which the court based this Order was the wife’s Motion for Contempt for non-payment of support. Goff v. Goff, 151 So.2d 294 (Fla. 3d DCA 1963); Cortina v. Cortina, 98 So.2d 334 (Fla.1957).


author: HENDRY, Chief Judge.

text:
    Juan PEREZ, as Administrator of the Estate of Johnny Perez, a minor, Deceased, Petitioner, v. Maria OTERO and United States Fidelity & Guaranty Company, Respondents. UNITED STATES FIDELITY & GUARANTY COMPANY, Appellant, v. Juan PEREZ, as Administrator of the Estate of Johnny Perez, a minor, Deceased, Appellee.
    Nos. 76-735, 76-795, 76-814 and 76-815.
    District Court of Appeal of Florida, Third District.
    June 14, 1977.
    Rehearing Denied Aug. 24, 1977.

      Horton, Perse & Ginsberg and Edward A. Perse, Ratiner & Glinn, Miami, for Juan Perez.
    Carey, Dwyer, Austin, Cole & Selwood and Steven R. Berger, Miami, for Maria Otero.
    Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O’Hara and Richard A. Sherman, Miami, for United States Fidelity.
    Before HENDRY, C. J., PEARSON, J., and CHARLES CARROLL (Ret.), Associate Judge.
   HENDRY, Chief Judge.

United States Fidelity & Guaranty Company (U. S. F. & G.), defendant below, takes this consolidated appeal from orders granting a partial summary judgment on the issue of liability rendered in favor of Juan Perez, as administrator of the estate of Johnny Perez, deceased, plaintiff below.

Consolidated with the above are appeals taken by Perez, in his aforementioned capacity as administrator, from an order striking with prejudice count III of his complaint, which sought punitive damages from Maria Otero, defendant below and U. S. F. & G.’s insured.

The well publicized facts surrounding this case concern the shooting death of young Johnny Perez by Maria Otero, on April 9, 1975. The incident, from which Otero was found guilty of second degree murder, occurred while Johnny was frolicking in and about Otero’s swimming pool, without her permission.

Juan Perez, as administrator of the estate of his deceased son, and on behalf of himself and his wife Eva, as parents, filed suit against Otero and her insurer, U. S. F. & G. The case proceeded, hampered by Otero’s subsequent disappearance while out on bond. Both Perez and U. S. F. & G. moved for summary judgment on the coverage issue, the latter relying upon a provision in its homeowners policy, issued' to Otero, which excludes intentional acts from the ambit of coverage. Perez, alleging negligence in his complaint, relied upon testimony taken from Otero’s criminal trial wherein she stated that the shooting of Johnny was not an intentional act, but was rather an accident, caused by an inadvertent discharge of her gun, which she had allegedly brandished to frighten the youth.

On March 25, 1976, at the hearing on the Perez and U. S. F. & G. motions for summary judgment, the trial judge announced his intention to deny U. S. F. & G.’s motion and grant Perez’s motion, rendering summary judgment on the coverage issue in favor of Perez. At that point, Otero’s personal counsel made an ore tenus motion to strike from the complaint the count III allegations relating to punitive damages. Counsel argued that having prevailed on the “intentional tort” aspect of the coverage question against U. S. F. & G., Perez could not continue to pursue a punitive damage claim against Otero, individually. The court thereupon announced that Otero’s motion to strike was granted. On April 14, 1976, in accordance with its earlier ruling, the trial court entered an “amended order striking punitive damage claim with prejudice.”

The partial summary judgment is appealed by U. S. F. & G., while Perez has appealed the order striking punitive damages. In our discretion, we shall properly treat the latter as a petition for certiorari. See Radio Communications Corporation v. Oki Electronics of America, Inc., 277 So.2d 289 (Fla. 4th DCA 1973).

After carefully reviewing the record, briefs and arguments of counsel, we find genuine issues of material fact left unresolved by the proceedings below which preclude the entrance of summary judgment. Hix v. Sirkis, 190 So.2d 207 (Fla. 3d DCA 1966).

Among the issues yet to be determined is whether Otero’s act in shooting Johnny Perez was intentional or negligent and whether Otero’s subsequent disappearance has so prejudiced U. S. F. & G. so as to preclude its effective defense of the case. See Ramos v. Northwestern Mutual Insurance Company, 336 So.2d 71 (Fla.1976).

As for the order striking the claim for punitive damages, we note that the trial judge entered said order based upon his determination that Otero’s act amounted only to negligence. Apparently the trial judge was of the view that a negligent tortious act would not support a claim for punitive damages. In light of our reversal of the partial summary judgment rendered on the coverage issue, we are of the opinion the aforementioned order striking the claim for punitive damages was prematurely entered. Therefore we do not pass upon the merits of the order striking punitive damages. We believe that the trial judge departed from the essential requirements of law and we therefore grant certiorari and quash said order. Pic v. Hoyt Development Co., Inc., 309 So.2d 586 (Fla.2d DCA 1975).

In conclusion, the partial summary judgment rendered in case numbers 76-814 and 76-815 is reversed and the cause is remanded for further proceedings. The order striking the punitive damage claim reviewed in case numbers 76-735 and 76-795 is quashed.

Reversed and remanded for further proceedings not inconsistent herewith.

      . Otero’s whereabouts has, to this day, remained a mystery.


author: PEARSON, Judge.

text:
    REPUBLIC NATIONAL LIFE INSURANCE COMPANY, Appellant, v. Maria VALDES, Appellee.
    Nos. 76-838, 76-966.
    District Court of Appeal of Florida, Third District.
    June 14, 1977.
    Rehearing Denied Aug. 24, 1977.

      Dixon, Dixon, Lane & Mitchell and Dennis L. Webb, Miami, for appellant.
    Lawrence J. Spiegel and Richard E. Do-herty, Hialeah, for appellee.
    Before PEARSON and BARKDULL, JJ. and CHARLES CARROLL (Ret.), Associate Judge.
   PEARSON, Judge.

These appeals are from a final judgment and a subsequent judgment for attorney’s fees. Both appeals are by the defendant Republic National Insurance Company. The plaintiff, Maria Valdes, is the beneficiary of a policy providing for an additional payment upon the accidental death of the insured. The company paid the death benefit but denied liability for the accidental death. Mrs. Valdes brought this action to recover the accidental death benefits. The cause was tried before a jury and the plaintiff received a verdict. Judgment was entered, attorney’s fees were assessed against the insurance company and these appeals followed.

Five points are presented on appeal. The first urges that the trial court should have entered a directed verdict for the defendant at the close of all the evidence because it appeared without issue that Mr. Valdes’ death was not accidental or that liability was precluded because of an exclusion in the policy which provided that there could be no recovery where the death was caused by the intentional act of another during an altercation in which the insured was the aggressor. The second point claims error in a jury instruction; the third claims error upon the denial of a motion for mistrial because of a comment of plaintiff’s attorney in his opening statement; the fourth urges that the trial judge erred in failing to issue a guiding instruction regarding note-taking by the jurors; and the fifth claims that the attorney’s fee allowed was excessive.

Defendant’s first point has two aspects. The first is based upon the insuring clause which is as follows:

“When accidental bodily injury which was caused directly and independently of all other causes by external, violent, and accidental means occurs ... to the insured ... the company will pay in addition to any other benefit provided by the Policy: . . .”

It is urged that the evidence taken as a whole refutes plaintiff’s allegation that the death was accidental. It is argued that because the deceased’s son, Julio Valdes, Jr., admitted upon cross-examination that he intended to shoot his father, therefore, the death could not be accidental.

The facts, viewed in the light most favorable to the jury’s verdict, show that Julio Valdes, Sr., died on June 15, 1975, as a result of a gun shot inflicted upon him by his son Julio Valdes, Jr. The incident occurred at a place away from the home. The wife Maria Valdes was driving her car when it developed mechanical trouble. Mrs. Valdes called a friend of the family who was a mechanic and also called her son Julio Valdes, Jr., to come and pick her up in his car so that she could continue her journey. Shortly after the arrival of the mechanic, Nestor Morino, Sr., and his two sons, Julio Valdes, Sr., arrived in his own car. He was under the influence of intoxicants and was abusive to his wife and son. Af-terwards, Valdes, Sr., announced that he was taking his wife home and his son protested that she should not go with Valdes, Sr., but rather with him, Valdes, Jr. An altercation without physical violence developed until the time that the son went to his car and returned with a heavy automatic pistol, which he initially concealed from his father but subsequently drew with his right hand, although Julio Valdes, Jr., was left-handed.

Julio Valdes, Jr., testified on direct examination that the gun went off when his mother “jumped on top of me.” However, upon cross-examination by defendant’s attorney, the son testified that he had intended to shoot his father. The plaintiff mother testified that the gun went off when she grabbed Julio’s hand. The testimony of two other eye witnesses was consistent with the mother’s explanation of what happened.

The question thus presented is whether recovery is barred by the admission of the son that he had intended to shoot his father. The plaintiff presented all of the available witnesses to the shooting. The result was a conflict between the son’s testimony on cross-examination and the other testimony, which would allow the jury to find that the shooting was accidental. Under the modern rule, a plaintiff is not irrevocably bound by testimony of his own witness. See the discussion in P. & N. Investment Corporation v. Rea, 153 So.2d 865 (Fla.2d DCA 1963); and cf. 53 A.L.R.2d 1229. The jury has the right to resolve conflicts on issues of fact arising from the testimony of several of the plaintiff’s witnesses. Cf. the rule in Atlantic Coast Line R. Co. v. Webb, 112 Fla. 449, 150 So. 741, 747 (1933). The testimony as a whole is susceptible to a finding by a jury of reasonable men that when Julio Valdes, Jr., went to get his gun, he intended to shoot his father, if necessary, to protect his mother, but that he did not intend to kill his father, and that, thereafter, upon confronting his father with a gun, the gup was accidentally discharged by the action of his mother in attempting to seize the gun. In determining whether there is sufficient evidence to overcome a motion for directed verdict, all facts and reasonable inferences therefrom must be taken as true. See Gravette v. Turner, 77 Fla. 311, 81 So. 476 (1919); and Mellet v. Henry, 108 So.2d 69 (Fla.3d DCA 1959). A reviewing court must resolve all conflicts in the evidence and inferences therefrom in favor of the jury verdict. See Motes v. Crosby, 65 So.2d 478 (Fla.1953); and J. A. Cantor & Associates, Inc., v. Devore, 281 So.2d 245 (Fla.3d DCA 1973). Further, a jury is the sole judge of the facts where the evidence is conflicting. See Watson v. Gallagher, 96 So.2d 472 (Fla.3d DCA 1957); and Crews v. Warren, 157 So.2d 553 (Fla.lst DCA 1963). We conclude, therefore, that the evidence was sufficient to withstand defendant’s motion for directed verdict upon the issue of whether the death was accidental. This is especially true in view of the fact that the judge properly instructed the jury that

“. . .1 charge you that if you find Mr. Valdes, Jr. intended the act which caused Mr. Valdes, Sr.’s death, although he may not have intended his death, the recovery by Mrs. Valdes ... is precluded by the policy of insurance . . ”

The second aspect of the point claiming error upon the failure to direct a verdict for the defendant is defendant’s claim that the evidence clearly shows without issue that the deceased was the aggressor and that, therefore, recovery is barred under the following exclusion in the policy:

“The company shall not be liable hereunder for any loss caused by or contributed to by: (a) . . . the intentional act of another during an altercation in which the insured was the aggressor; , . . ”

The defendant urges that proof that the deceased was under the influence of intoxicants and that he was loud and aggressive together with his abusive words to his wife and son made him the aggressor in the altercation which followed. A review of all the evidence convinces us that a jury of reasonable men could find that inasmuch as no physical violence occurred until the son went to his car and returned with a pistol that, at that time, the son became the aggressor. We, therefore, conclude that no error has been shown upon the trial court’s refusal to direct a verdict under the above-quoted exclusion of the policy.

Appellant’s second point claims error upon an instruction that where one dies as a result of a gun shot wound, the presumption arises that the man was killed by accidental means. This instruction is properly given only in cases where there is no direct evidence of the shooting. Nevertheless, any possibility of error was eliminated by the fact that the trial court immediately followed the statement with an instruction that the presumption disappears upon an introduction of any evidence which tends to overcome it. There was clearly evidence in this case to overcome the presumption of an accident and the issue before the jury was clearly presented from the outset of the case. We find this to be harmless error. See Florida Power & Light Company v. McCollum, 140 So.2d 569 (Fla.1962).

Appellant’s third point claims error upon a statement made by plaintiff’s attorney in his opening address to the jury that plaintiff’s son, who had shot the insured, had been charged with manslaughter and had pled “no contest.” Appellant argues that such a reference violates the rule that a defendant’s conviction or acquittal is not admissible in a civil suit. See Eggers v. Phillips Hardware Company, 88 So.2d 507 (Fla.1956). The reason for this rule is the obvious difference in the objects, procedures and results in civil and criminal proceedings. In this case, we find no reversible error inasmuch as the conviction of manslaughter was not an exoneration of the son and could not have unduly influenced the jury especially in view of the court’s instruction that the statements of counsel must not be accepted as evidence.

The fourth point presented claims error by the court in not instructing the jury not to take notes. The record fails to support appellant’s allegation either that the note-taking occurred or that the court observed or had his attention called to the taking of notes by the jury. We, therefore, find no error and expressly point out that our attention has not been called to a case in this state holding that such an occurrence constitutes reversible error.

Appellant’s last point urges that the attorney’s fee allowed by the court pursuant to Section 627.428, Florida Statutes (1975), was so excessive as to be an abuse of discretion. The record shows that the trial court held an evidentiary hearing; however, the record bears no transcript of that hearing. The appellee’s attorneys moved for an attorney’s fee of $11,000 and were awarded $8,640. The amount of the judgment was $12,000. In this respect, we would point out that factors other than the amount of the final judgment may be considered in determining the amount of an attorney’s fee. See Penn-Florida Hotels Corporation v. Atlantic National Bank of Jacksonville, 126 Fla. 344, 170 So. 877, 880 (1936). We note that despite the appellant’s arguments that this case did not involve issues novel in nature or a trial of long duration or witnesses of such expertise that counsel would have to make special preparation for the purpose of questioning, nonetheless, we find that this case was couched in an unusual factual setting presenting a novel application of the law to the issues involved. Therefore, in this light, we cannot say that the trial court abused its discretion. See Robertson v. Robertson, 106 So.2d 590 (Fla.2d DCA 1958).

Affirmed.

      . “Q. You pulled the gun out with your right hand?
      A. Yes.
      Q. What were you going to do?
      A. Just hold it back since I am left-handed, you know, keep the peace. But it didn’t work out that way.
      Q. Where was the gun aimed?
      A. It was down all the time.
      Q. Down by his feet?
      A. Yes, but when he got close, I just from back here, I had it towards my side and I moved it over like this to scare him like, but my mom jumped on top of me and it went off. Q. Did you intend to kill your father that night?
      A. No.”

      . “BY MR. LANE [defendant’s counsel]:
      A. Mr. Valdes, did you ever tell anybody that you intended to shoot your father that night, drop him on the ground so he couldn’t move?
      A. That’s correct.
      Q. Huh?
      A. That’s correct.
      Q. You intended to shoot him?
      A. Not to kill him. No, to shoot him.
      Q. With a .357 Magnum, correct?
      A. That is correct.
      Q. Loaded with hollow point bullets?
      A. Loaded with bullets.
      Q. And you had another box of bullets in your car, didn’t you?
      A. Yes, I think so.”

      .“Q. Before the gun went off, did your husband see that gun or do you think he did?
      A. No.
      Q. Was it visible?
      A. No.
      Q. Now, you testified that your boy pulled the gun out of his pants and then—

        A. Yes.
      Q. —what did you do when you saw the gun?
      A. When I saw — when I saw Julio, I was grabbing Julio to don’t fight with the father, because the father coming to get me to get home. I feel the gun and Julio and when Julio saw me close to him to stealing the gun, Julio pulled the gun. And then when I grabbed Julio’s hand, then went the gun got off. That’s how my husband coming today."

      . “Now, there is a presumption in law that a man killed by being shot has met his death by accidental means. However — and you should know that a presumption is a conclusion, that is it is something deduced from the facts which expressly directs one to make from the particular fact or facts found or otherwise established in the trial. However, any presumption disappears upon the introduction of evidence which tends to overcome the presumed fact.”


author: MAGER, Chief Judge. ANSTEAD, Judge,

text:
    William A. JOHNSON, as Administrator Ad Litem for the Estate of Carmella Fraccacreta, Appellant, v. Delores FRACCACRETA, Paolo Fraccacreta, a/k/a Paul Fraccacreta, Neal Watson, Frank Fraccacreta, and Louise Watt, jointly and severally, Appellees.
    No. 76-754.
    District Court of Appeal of Florida, Fourth District.
    June 17, 1977.
    As Corrected On Rehearing Aug. 12, 1977.

      Johnson, Ackerman & Bakst, P. A., and Larry Klein, West Palm Beach, for appellant.
    Guy C. Hill, West Palm Beach, for appel-lee, Delores Fraccacreta.
   MAGER, Chief Judge.

This appeal is concerned with the validity of a conveyance made pursuant to a power of attorney.

The administrator ad litem of the Estate of Camella Fraccacreta, appellant, contends that the power of attorney issued by the decedent appointing her daughter Delores, appellee, as attorney in fact, did not authorize a conveyance by Delores of Carmella’s property to Camella and Paolo, husband of the decedent. Appellant contends that the conveyance constituted a gift of the subject property contrary to the general powers contained in the power of attorney.

The salient facts reflect that decedent owned the subject real property during her lifetime and executed a power of attorney appointing Delores as her attorney in fact. The power of attorney gave Delores the power to:

“Bargain, sell, release, convey and mortgage lands . . . upon such terms and conditions, and under such covenants, as she shall think fit and also for me and in my name as my act and deed to sign, sell, execute and deliver and acknowledge such deeds . . .”.

As attorney in fact, Delores executed a warranty deed conveying Carmella’s property to Paolo and Carmella, husband and wife, as tenants by the entireties. Carmella died several months after the execution of the power of attorney and the conveyance.

The appellant contends that a general power of attorney does not authorize the agent to make a gift of the principal’s property. Although it appears that there is no Florida case law directly on point, the general rule announced in other jurisdictions is set forth in 73 A.L.R. 884:

“A general power of attorney authorizing an agent to sell and convey property, even though it authorizes him to sell for such price and on such terms as to him shall seem proper, implies a sale for the benefit of the principal, and does not authorize the agent to make a gift of the property, or to convey or transfer it without a present consideration inuring to the principal.” (Emphasis added).

See also Miyuki Okihara v. Clark, 71 S.Ct. 319 (D.Haw.1947); Fujino v. Clark, 71 F.Supp. 1 (D.Haw.1947), aff’d. 172 F.2d 384, 9 Cir., cert. den. 337 U.S. 937, 69 S.Ct. 1512, 93 L.Ed. 1743; Manna v. Pirozzi, 44 N.J.Super. 227, 130 A.2d 55 (1957); Shields v. Shields, 200 Cal.App.2d 99, 19 Cal.Rptr. 129 (1962); Bertelsen v. Bertelsen, 49 Cal. App.2d 479, 122 P.2d 130 (1942); Thompson v. Thompson, 190 Ga. 264, 9 S.E.2d 80 (1940).

The fact that some of the aforementioned cases are concerned with conveyance to a party other than the principal does not in our opinion alter the application of the rule to the instant situation. The subject property was owned by Carmella at the time the power of attorney and deed were executed, so that the conveyance by Delores to Carmella and Paolo was a gift to Paolo of a portion of Carmella’s property by virtue of the creation of an estate by entireties with the right of survivorship. In Shields, supra, the California Fourth District Court of Appeal stated:

“A power of attorney conferring authority to sell, exchange, transfer or convey real property for the benefit of the principal does not authorize a conveyance as a gift or without a substantial consideration (citations omitted); and a conveyance without the scope of the power conferred is void.” (citations omitted). 19 Cal.Rptr. 130-131.

Although appellee contends that the conveyance by Delores to Carmella and Paolo was not a gift but, rather, an estate planning device to avoid probate and its attendant costs so that Carmella did, in fact, receive consideration, we are referred nowhere in the record to any evidence in support of such contention.

The court must look to the language of the instrument, as with any other contract, in order to ascertain its object and purpose. The language of the agreement must be construed in such a manner so as to carry out the intent of the principal. We find no language in the subject power of attorney which expressly or impliedly indicates an intention to authorize a gift of the principal’s property. An agent has no power to make a gift of his principal’s property unless that power is expressly conferred upon the agent by the instrument or unless such power arises as a necessary implication from the powers which are expressly conferred. Nor are we presented with any competent substantial evidence of those circumstances surrounding the execution of the power of attorney that might be utilized as an aid in the construction of the language contained in the instrument. See 2A C.J.S. Agency § 151, pp. 772-3.

For the reasons set forth in the foregoing opinion we are persuaded that the entry of the summary final judgment appealed from was error. We further feel that the appellee failed to demonstrate the lack of a genuine issue of material fact in the trial court. This failure necessitates a remand for further proceedings relative to any existing issues of material fact.

Accordingly, the summary final judgment appealed from is reversed and the cause is remanded for further proceedings consistent with our opinion as clarified.

GRANTED.

DOWNEY, J., concurs.

ANSTEAD, J., specially concurs, with opinion.

ANSTEAD, Judge,

specially concurring:

I agree that the summary judgment should be reversed and the cause proceed on the merits. There is clearly an issue as to whether the conveyance was an unauthorized gift, and hence void, or was an authorized conveyance, done pursuant to the intent and direction of Camella.

      . The record reflects that the deed was recorded and thereafter Paolo conveyed the property to Delores for no stated consideration and that Delores subsequently sold the property. The grantees ultimately conveyed the property back to Delores where it remains at the present time.


author: McCORD, Judge.

text:
    J. D. WINGARD and Aetna Casualty & Surety Co., Appellants, v. Thomas V. McDONALD and Eunice R. McDonald, Appellees.
    No. CC-16.
    District Court of Appeal of Florida, First District.
    June 24, 1977.
    Rehearing Denied Aug. 22, 1977.
    Robert P. Gaines of Beggs & Lane, Pensacola, for appellants.
    Robert J. Mayes of Levin, Warfield, Mid-dlebrooks, Graff, Mabie, Rosenbloum & Ma-gie, Pensacola, for appellees.
   McCORD, Judge.

This case was previously before this court on appeal from a summary judgment entered in favor of J. D. Wingard, appellant on this present appeal. See McDonald v. Wingard, 309 So.2d 192 (Fla. 1 DCA 1975). There we reversed the summary judgment and remanded the cause for further proceedings. An amended complaint was filed joining Mrs. Mattie Davis and Aetna Casualty & Surety Company (Wingard’s insurer) as additional parties defendant. The case was then tried and resulted in a jury verdict in favor of appellees, Thomas V. McDonald and Eunice R. McDonald and against all defendants. Appellants Win-gard and Aetna appeal the final judgment against them. At the close of the evidence in the trial below, appellants moved for a directed verdict, and the motion was denied. Such was error as the evidence does not support a verdict against appellants. We therefore reverse.

Appellee was injured when he slipped and fell on the painted concrete front porch of Mrs. Davis, she being in sole possession of the premises under a verbal lease from appellant Wingard, the owner. McDonald was a salesman who called upon customers in their homes and Mrs. Davis was one of his customers. On the day of appellee’s injury it was raining and when he stepped on the porch he took several steps to the door, knocked, stepped back, and slipped and fell. The porch was an ordinary concrete porch that had been painted and the only foreign material on it was rainwater. McDonald had been to the dwelling on several previous occasions but had never previously been there when it had been raining. The house had previously been purchased by Wingard, was renovated by him and then rented to Mrs. Davis. She had full control and possession of the premises during the lease and Wingard agreed to make any necessary repairs. Before renting to Mrs. Davis, among other renovations, Win-gard had employed a painter with 25 years experience who painted the concrete front porch. He was not familiar with the details of how the painter did the work, but told him to use a good type of paint.

The house was rented to Mrs. Davis in September, 1972. The only request for repairs made by her between the time she moved in and April 7, 1973, the date McDonald fell, was with regard to the kitchen sink which was repaired. She also requested a new hot water heater which was provided. She had made no request for any repairs to the porch and had not complained nor called Wingard’s attention to any slippery condition of the porch. Our ruling reversing the previous summary judgment was predicated upon a purported affidavit of Mrs. Davis which was then before the court on the motion for summary judgment. That affidavit was to the effect that Mrs. Davis had previously warned Wingard of the alleged dangerous condition of the porch floor. At trial, however, the affidavit was repudiated by Mrs. Davis and was properly not admitted into evidence against Wingard. Also at trial, both Mrs. Davis and Wingard testified that there had been no such warning or notice of any alleged dangerous condition of the porch floor and no one testified that a warning or notice had been given.

Our decision is governed by the opinion of the Supreme Court in Brooks v. Peters, 157 Fla. 141, 25 So.2d 205 (1946). There the Supreme Court said:

“Where the landlord surrenders possession and control of the leased premises to the tenant, in the absence of fraud or concealment, the tenant assumes the risk as to the condition of the premises, including the heating, lighting apparatus, plumbing, water pipes, sewers, etc. In other words, the rule of caveat emptor applies, hence the landlord is not liable for any personal injuries or sickness of tenants, although attributable to the defects in the fixtures. See Mansell v. Hands, 235 Mass. 253, 126 N.E. 391, 13 A.L.R. 835, and annotations; Gobrecht v. Beckwith, 82 N.H. 415, 135 A. 20, 52 A.L.R. 858, and annotations.” (Emphasis supplied.)

Under the circumstances of the case sub judice where the landlord had surrendered the entire possession and control of the demised premises to the tenant and no fraud or concealment by the landlord was shown, the landlord was not liable for injury either to the tenant or a person on the premises in the right of the tenant.

Reversed and remanded with directions to vacate the final judgment as to appellants and enter final judgment in their favor.

MILLS, J., concurs.

BOYER, C. J., dissents.