text:
    STATE of Florida, Appellant, v. Katrina Dorothy KIRK, Appellee.
    No. JJ-167.
    District Court of Appeal of Florida, First District.
    Aug. 11, 1978.
    Rehearing Denied Sept. 20, 1978.
    Robert L. Shevin, Atty. Gen., and Michael H. Davidson, Asst. Atty. Gen., for appellant.
    James B. Gibson, Public Defender, Seventh Circuit, and Brynn Newton, Asst. Public Defender, for appellee.
   PER CURIAM.

The state seeks review of the order dismissing an information which was entered on the basis that a retrial of the defendant (appellee) would violate double jeopardy. We reverse.

Defendant was brought to trial on February 14, 1978, for aggravated assaults upon Cynthia Thomas, David Mack, and Anthony Rivers and for the use of a firearm while committing or attempting to commit a felony. During presentation of its case, the state elicited numerous responses concerning collateral offenses which were possibly violative of the rule enunciated in Williams v. State, 110 So.2d 654 (Fla.1959). The court sustained several of the defendant’s objections to these inquiries. During cross-examination of a defense witness, the state again attempted to elicit testimony concerning collateral offenses. In questioning this witness, the state also utilized perhaps inappropriate language. After the court sustained the defendant’s objection to this testimony, the defendant moved for a mistrial since the jury had already been exposed to irrelevant prejudicial testimony. The court granted the motion on that basis and for the possible misconduct on the part of the prosecutor.

The defendant subsequently moved to dismiss the information, claiming that a second prosecution would violate her constitutional right not to be placed twice in jeopardy guaranteed by Amendments V and XIV, United States Constitution, and Article I, Section 9, Florida Constitution. The trial court granted the motion to dismiss finding that the defendant was deprived her right to a fair trial through prosecutorial misconduct.

Florida courts have indicated that the defense of double jeopardy is not available to a defendant where a mistrial has been granted with his consent, approval or upon his motion. E. g. State ex rel. Larkins v. Lewis, 54 So.2d 199 (Fla.1951); McLendon v. State, 74 So.2d 656 (Fla.1954); Reyes v. Kelly, 204 So.2d 534 (Fla. 2 DCA 1967). However, the United States Supreme Court has recognized that where a defendant’s mistrial motion has been necessitated by judicial or prosecutorial overreaching, rather than judicial or prosecutorial error, the double jeopardy protections may bar repros-ecution. United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971) (plurality opinion); United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976); United States v. Scott, 437 U.S. -, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978). Accord e. g., United States v. Crouch, 566 F.2d 1311 (5th Cir. 1978); United States v. Kennedy, 548 F.2d 608 (5th Cir. 1977); United States v. Wilson, 534 F.2d 76 (6th Cir. 1976); United States v. Kessler, 530 F.2d 1246 (5th Cir. 1976); United States v. Beasley, 479 F.2d 1124 (5th Cir. 1973), cert. denied 414 U.S. 924, 94 S.Ct. 252, 38 L.Ed.2d 158, reh. denied, 414 U.S. 1052, 94 S.Ct. 557, 38 L.Ed.2d 340 (1973); United States v. Broderick, 425 F.Supp. 93 (S.D.Fla.1977). As noted in United States v. Dinitz, supra, 424 U.S. at 611, 96 S.Ct. at 1081:

“The Double Jeopardy Clause does protect a defendant against governmental actions intended to provoke mistrial requests and thereby to subject defendants to the substantial burdens imposed by multiple prosecutions. It bars retrials where ‘bad-faith conduct by judge or prosecutor,’ United States v. Jorn, supra, 400 U.S. at 485, 91 S.Ct. 547, 27 L.Ed.2d 543, threatens the ‘[hjarassment of an accused by successive prosecutions or declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict’ the defendant. Downum v. United States, 372 U.S. at 736, 83 S.Ct. 1033, 10 L.Ed.2d 100. See Gori v. United States, 367 U.S. at 369, 81 S.Ct. 1523, 6 L.Ed.2d 901; United States v. Jorn, supra, at 489, 91 S.Ct. 547, 27 L.Ed.2d 543 (Stewart, J., dissenting); c. f. Wade v. Hunter, 336 U.S. at 692, 69 S.Ct. 834, 93 L.Ed. 974.”

The law is clear that if a mistrial is ordered on a defendant’s motion upon facts revealing overreaching by the judge or prosecutor, reprosecution is barred by the double jeopardy clause. Our inquiry herein must be, therefore, to determine whether the prosecutor’s conduct was such as to constitute “prosecutorial overreaching.” “Prosecutorial overreaching” has been defined as “ ‘gross negligence or intentional misconduct,’ [which causes] aggravated circumstances to develop which ‘seriously prejudice a defendant causing him to reasonably conclude that a continuation of the tainted proceedings would result in a conviction’ [cites omitted].” United States v. Kessler, supra, at 1256.

An examination of the totality of the circumstances prior to the declaration of the mistrial in the case below does not reveal “gross negligence” or “intentional misconduct” on the part of the prosecutor. Although it appears that the prosecutor’s continuous inquiries into collateral offenses may have been the product of poor judgment, we do not believe this conduct constituted such prosecutorial overreaching so as to bar reprosecution. This conduct did not constitute intentional misconduct or gross negligence particularly since the prosecutor had not been specifically advised to avoid inquiry into these matters and since the admissibility of these matters was perhaps debatable. The inappropriate use of the word “damned” by the prosecutor does not constitute intentional misconduct since it appears to have been inadvertent.

Accordingly, the order dismissing the information is reversed and the cause is remanded for such further proceedings as are appropriate.

McCORD, C. J., and MILLS and ERVIN, JJ., concur.

      . It is not clear from United States v. Dinitz, supra, whether gross negligence by the judge or prosecutor constitutes “overreaching.” The United States Court of Appeals for the Fifth Circuit has repeatedly held that “overreaching” consisting of gross negligence as well as intentional misconduct bars retrial after a defendant’s mistrial motion is granted. United States

        v. Crouch, supra; United States v. Kessler, supra; United States v. Beasley, supra. We will assume for the purposes of this case that overreaching includes gross negligence, although we need not expressly adopt this view.


source: Caselaw Access Project

author: BOOTH, Judge.

license: Public Domain

text:
    The STATE of Florida, Appellant, v. In the Interest of C. B. K., a child, Appellee.
    No. HH-300.
    District Court of Appeal of Florida, First District.
    Aug. 14, 1978.
    Robert L. Shevin, Atty. Gen., and Charles W. Musgrove, Asst. Atty. Gen., for appellant.
    Michael J. Minerva, Public Defender, for appellee.
   BOOTH, Judge.

This cause is before us on appeal from the judgment of the Circuit Court, Duval County, dismissing the petition against a juvenile charging delinquency based on operating a motor vehicle on a highway of the State of Florida without a valid license, contrary to Florida Statute § 322.03(1).

The question here is whether a juvenile who operates a motor vehicle without a valid driver’s license can be prosecuted under (1) Florida Statute § 322.03(1), a misdemeanor triable in the Circuit Court, Juvenile Division, or (2) Florida Statutes § 316.-625(2) (a traffic offense triable in the County Court, Traffic Division, unless jurisdiction is waived). The State contends that it has the option to prosecute under either statute, and in this case elected to prosecute under § 322.03(1).

The trial court ruled that it was without jurisdiction to entertain the petition or to adjudicate the child delinquent on the charge, holding:

“This Court finds that Section 39.02, Florida Statutes, (1975) grants to the Circuit Court as pertains to juveniles original jurisdiction of procedures in which a child is alleged to be dependent or delinquent and jurisdiction in cases involving juvenile traffic offenses only if the Court having jurisdiction over traffic offenses waives jurisdiction to the Juvenile Court. The Court further finds that there was no relinquishment of jurisdiction from the County Court to the Circuit Court in the case sub judice.
******
The Court having considered the aforesaid [Florida Statutes §§ 39.01(25); 39.02; 316.625, 316.045 (renumbered 316.630); 322.16; 322.39] and in addition thereto having considered the District Court Of Appeal, First District, Case #AA-373, in the case of C. W. G., Jr. v. State Of Florida, 334 So.2d 275, wherein, among other matters, it is provided as follows:
‘Operation of a motor vehicle in violation of restrictions imposed on juvenile’s restricted license was a juvenile traffic offense and, hence, would not support adjudication of delinquency. West’s F.S.A. § 39.01(29).’
The Court having considered the aforesaid and finding that the District Court considered a restriction imposed on a juvenile’s restricted license was a juvenile traffic offense and would not support adjudication of delinquency, this Court finds that the failure to have a driver’s license by a juvenile would be in the same category and, upon consideration thereof, it is therefore
ORDERED AND ADJUDGED:
That the above-entitled cause be and the same is hereby dismissed.”

The operation of a motor vehicle without a license is proscribed under both Chapter 316 as a traffic offense and Chapter 322 as a misdemeanor. In the case of a juvenile, however, the Legislature has indicated its intent to place jurisdiction in the traffic court as to all traffic offenses involving juveniles other than those enumerated in Florida Statute § 39.01(25), which provides as follows:

“ ‘Juvenile traffic offense’ means a violation by a child of a state law or local ordinance governing the use of a motor vehicle as set out in chapter 316 or ordinances supplemental thereto with the following exceptions defined therein:
(a) Fleeing or attempting to elude a police officer;
(b) Leaving the scene of an accident involving death or personal injuries; or
(c) Driving while under the influence of alcoholic beverages, narcotic drugs, barbiturates, or other stimulants.
The offenses listed in paragraphs (a), (b), and (c) shall be considered acts of delinquency.”

The offense charged in this case, driving without valid license, is not one of those enumerated in the above-quoted statute, and therefore is a “juvenile traffic offense” which does not constitute an act of delinquency. Such an offense is triable in the traffic court unless jurisdiction is waived, which was not done in this case. Florida Statute §§ 39.01(10), 39.02(1).

In reaching this decision, we are not unmindful of the limitation of Florida Statute § 39.01(25), supra, to offenses under Chapter 316. In the case of the juvenile, however, we hold that the status of the offense of driving without a license is determined by the inclusion of that offense in Chapter 316. This is in keeping with the legislative intent with respect to juvenile traffic offenders and allows determination by the county judge, sitting as the traffic court, rather than prosecuting officials, as to whether the violation be treated as a juvenile traffic offense or, on waiver of jurisdiction to Circuit Court, a potential act of delinquency.

Accordingly, the judgment below is AFFIRMED.

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

      . § 322.03(1): “No person, except those hereinafter expressly exempted, shall drive any motor vehicle upon a highway in this state unless such person has a valid license as an operator or chauffeur under the provisions of this chapter . . . ”

      . § 316.625(2): “No person shall drive a motor vehicle upon the streets or highways of this state unless such person has a valid operator’s license issued by this state or such operator’s or chauffeur’s license as is required of the person under the laws of the state.”


author: PER CURIAM.

text:
    Edward Eugene CARTER, Petitioner, v. Tullis EASTERLING, as Sheriff of Bay County, Florida, and William G. Guy, as Sheriff of Calhoun County, Florida, Respondents.
    No. JJ-310.
    District Court of Appeal of Florida, First District.
    Aug. 14, 1978.
    Frank A. Baker and Bill A. Corbin, Blountstown, for petitioner.
    Robert L. Shevin, Atty. Gen., Robert B. Staats, Panama City, for respondents.
   PER CURIAM.

Petitioner filed a petition for writ of ha-beas corpus seeking release from incarceration ordered by a circuit judge for contempt. The case arises out of a domestic relations matter. Petitioner’s former wife, Frances N. Carter, was allowed to file a brief and appear amicus curiae.

We have considered the record and heard oral argument of counsel. The facts are very similar to those recited by the Supreme Court of Florida in Pugliese v. Pug- liese, 347 So.2d 422, (Fla.1977). Here, as there, it is difficult if not impossible to determine whether petitioner was incarcerated for civil contempt or criminal contempt. If a civil proceeding, the order of incarceration is insufficient in that it made no provision for petitioner to purge himself of contempt. If the proceeding was in the nature of criminal contempt then the record reveals a failure to comply with the applicable rules and principles announced in Pugliese v. Pugliese, supra.

Accordingly, the petition for writ of ha-beas corpus is granted. Petitioner shall be discharged under the order of incarceration hereinabove mentioned.

The action here taken is, however, without prejudice to further proceedings under the guidelines of Pugliese v. Pugliese, supra, and authorities therein cited.

IT IS SO ORDERED.

MeCORD, C. J., and BOYER and MELVIN, JJ., concur.


author: BOYER, Judge.

text:
    Harry BASSETT, Appellant, v. TALQUIN ELECTRIC COOPERATIVE, INC., a corporation organized and existing under the laws of the State of Florida, and Nationwide Insurance Company, a Foreign Corporation authorized to do business in the State of Florida, Appellees.
    No. KK-92.
    District Court of Appeal of Florida, First District.
    Aug. 14, 1978.
    Rehearing Denied Sept. 19, 1978.

      Jack A. Harnett, of Johnson, Harnett & Curry, Quincy, for appellant.
    Edgar C. Booth, of Hall & Booth; Marion D. Lamb, Jr.; Willie D. Lines, Tallahassee, for appellee.
   BOYER, Judge.

The sole issue on this appeal relates to venue. Appellee/Talquin Electric Cooperative, Inc. (Talquin), one of the defendants in the trial court, is a Florida corporation having a place of business in Leon County, Florida. Nationwide Insurance Company is a foreign corporation authorized to do business in the State of Florida and is one of the defendants in the trial court. It did not, however, participate in the pleadings nor proceedings giving rise to this controversy nor has it participated in this appeal.

Appellant/Bassett, plaintiff in the trial court, filed his complaint in Leon County seeking damages, both compensatory and punitive, for an alleged tort allegedly committed by Talquin. Although the complaint contains a total of nineteen paragraphs, numbered paragraph ten is representative of the tort alleged. For brevity we quote that paragraph only:

“Notwithstanding the fact that Defendant, Talquin Electric Cooperative, Inc., knew or should have known that the product, Amdon, contained a highly active chemical Compound or combination of chemical compounds that can remain in the soil for as many as five (5) growing seasons, and more, and that various small amounts can injure sensitive crops such as those which were grown by the Plaintiff, said Defendant, Talquin Electric Cooperative, Inc., during the fall of 1976 at such times and in such amounts as is known by the Defendant, Talquin Electric Cooperative, Inc., did distribute, broadcast and apply a chemical compound or combination of chemical compounds known as Amdon and/or other herbicide over, upon, underneath and along its power lines, and across and around the Plaintiff’s, Harry Bassett, farm along irrigation ditches, upon and in direct proximity to the crops which he was growing, and down, into and near irrigation ponds and along the area in which the natural flow of surface water would drain into irrigation ponds upon the Plaintiff’s property and upon adjoining property into irrigation ponds in complete disregard to the Plaintiff, his property, crops and the damage which said product would cause.”

Talquin filed a motion to abate or transfer to Gadsden County, the location of the Bassett farm, which motion the trial court granted. It is the order granting that motion which is the subject of this appeal.

Florida Statute 47.051 provides that actions against domestic corporations shall be brought only in the county where such corporation has, or usually keeps, an office for transaction of its customary business, where the cause of action accrued, or where the property in litigation is located. Generally speaking, it is the prerogative of the plaintiff to select the venue and so long as that selection is one of the alternatives provided by the statute the plaintiff’s selection will not be disturbed. (Perry Building Systems, Inc. v. Hayes & Bates, Inc., 361 So.2d 443, (Fla. 1st DCA 1978), and authorities therein cited.) The burden is upon the party challenging venue, in order to successfully do so, to demonstrate impropriety of the plaintiff’s selection. (Perry Building Systems, Inc. v. Hayes & Bates, Inc., supra, and authorities therein cited) Since Tal-quin is a domestic corporation and has an office for transaction of its customary business in Leon County it necessarily follows that unless some other law prevails venue was properly selected by the plaintiff in Leon County.

Talquin first urges that notwithstanding F.S. 47.051 the plaintiff’s alleged cause is a “local action” as distinguished from a “transitory action” and that it may therefore be maintained only in Gadsden County, citing as authority Lakeland Ideal Farm & Drainage Dist. v. Mitchell, 97 Fla. 890, 122 So. 516 (1929), and City of St. Petersburg v. Earle, 109 So.2d 388 (Fla. 2nd DCA 1959). We will consider those authorities in reverse order.

Although the author of the City of St. Petersburg case recognized the often confused distinction between venue and jurisdiction (see Ringling Bros. etc. v. State of Florida, etc., 295 So.2d 314 (Fla. 1st DCA 1974) cert. den. 303 So.2d 644, and cases therein cited.) and spoke of the common law rule regarding local and transitory actions, the real issue in that case related to the propriety of maintaining an action against a municipality in a county (venue) other than that of its location. (See Ringling Bros. etc. v. State of Florida, etc., supra.) Talquin being a domestic corporation rather than a municipal corporation, the holding in that case has no application sub judice.

Neither is the Lakeland Ideal Farm case here controlling. Without addressing the present viability of the rationale of that case in view of the changes in the applicable statutes over the past forty-nine years, the abolition of the distinction between law and equity and the extension of circuit court jurisdiction beyond county lines, we find that a careful analysis of that case reveals that its reasoning is more supportive of that here urged by appellant than appellee. The author of that opinion rationalized that if the issue involved is necessarily and chiefly a question of title to land then it is a local action and may be maintained only in the jurisdiction wherein the land is situated. On the other hand, the author noted, that actions for removing logs from land or sand and gravel severed therefrom, though incidentally made to involve the question of title, are transitory and need not be maintained in the county of the location of the land. Further, in the Lake-land Ideal Farm case, the plaintiff was complaining of past, present and continuing trespass due to water being back up onto the complainant’s lands and prayed for an injunction to have said water removed and to prevent such backing up of the water in the future. In contrast, in the action sub judice, the complainant is seeking money damages primarily for alleged damages to his crops. Title, if involved at all, is only an incidental issue. The complaint is primarily for payment of money. The judgment sought, if obtained, will not involve any interest in the land and will not operate directly upon it. This case is, therefore, more analogous to McMullen v. McMullen, 122 So.2d 626 (Fla. 2nd DCA 1960) wherein our sister court of the Second District held that an action by vendors of real property for specific performance of the vendees agreement to purchase was not required to be maintained where the property was located.

Appellee’s second basis for sustaining the order transferring venue from Leon County to Gasden County is the asserted applicability of F.S. 47.122 which provides that for the convenience of the parties or witnesses or in the interest of justice, any court of record may transfer any civil action to any other court of record in which it might have been brought. The issue thus presented is analogous, except that no public body is involved, to that considered in Ringling Bros. etc. v. State of Florida, etc., supra.

While recognizing the discretion reposed in a trial judge in matters involving venue (see McMichael v. Harris, 127 Fla. 861, 174 So. 323 (1937)) and the authority granted by the last cited statute to transfer a case to another venue in which it might have been brought “for the convenience of the parties or witnesses or in the interest of justice” we nevertheless note that the only allegation in Talquin’s motion to abate or transfer which could possibly be construed as an attempt to invoke F.S. 47.122 is the recitation that: “All of the witnesses, including the plaintiff in this action, reside in Quincy, Gadsden County, Florida * * ”. No other basis for invoking that statute is recited in the order of transfer although the learned trial judge did recite that the plaintiff asserted that a portion of his witnesses reside in Leon County and are employed by the Department of Agriculture and that other witnesses reside outside of the State of Florida and will be traveling for trial and/or hearing by airplane to the City of Tallahassee in Leon County. “Following, those recitations the trial judge further stated: “and for purposes of this order the court assumes that the plaintiff would be able to prove that fact * * Further, a court is entitled to take judicial notice of that which everyone knows which is, in this instance, that Gadsden County is adjacent to Leon County and that only a short distance separates the county seats (and courthouses) of said counties and that said county seats are connected by several highways, one of which is a multi-lane “superhighway”.

Finding, as we do, that no sound basis appears in the record, or even in the briefs, for the application of F.S. 47.122 either on the basis of convenience of the parties or witnesses or in the interest of justice, we necessarily conclude that the aid of that statute was improvidently invoked.

The order here appealed, transferring the subject action from the circuit court in and for Leon County, Florida to Gadsden County, Florida is

REVERSED.

McCORD, C. J., and MILLS, J., concur.


text:
    Maurilia ALVAREZ, Appellant, v. JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY, Appellee.
    No. 77-2463.
    District Court of Appeal of Florida, Third District.
    Aug. 15, 1978.
    Stabinski, Funt, Levine & Vega and Manuel Vega, Jr., Miami, for appellant.
    Kurtz & Cooper and Robert E. Kurtz, Miami, for appellee.
    Before PEARSON, BARKDULL and KEHOE, JJ.
   PER CURIAM.

The single arguable issue presented on this appeal from a summary final judgment for the John Hancock Mutual Life Insurance Company is the argument of the appellant (an insured employee under a group insurance policy between the employer and the insurer, John Hancock) that a group insurance policy may not be amended to decrease benefits without notification to insured employees. We think this position is not well taken in view of the reasoning of the Supreme Court of Florida in Kimbal v. Travelers Insurance Company, 151 Fla. 786, 10 So.2d 728 (1942). We hold that in the absence of an allegation of fraud or misrepresentation, the contract between the insurance company and the employer for the benefit of the employees may be altered by negotiations between the insurance company and the employer. Under such circumstances, the law does not require a notification by the insurance company to the employees. See 68 A.L.R.2d 249 at 266 (1959), citing cases from several jurisdictions, including Kimbal v. Travelers Insurance Company, supra. We make no holding with regard to the duty of the employer to notify the employee of a change in the policy, as that issue is not involved in this case.

Affirmed.

      . “ . . . the question [arises concerning] whether the employer may cancel or modify the master group policy without knowledge of or notice to the insured employee or his beneficiary.
      “In a number of cases the view has been expressed, mostly in the form of dicta, that an employer may, before liability has attached as to an insured employee, validly cancel or modify a master group policy without notice to such employee unless the policy or an applicable statute provides otherwise.”


author: DAUKSCH, Judge.

text:
    Willie Mae ANDERSON, Appellant, v. STATE of Florida, Appellee.
    No. 76-2402.
    District Court of Appeal of Florida, Fourth District.
    Aug. 16, 1978.
    Rehearing Denied Sept. 20, 1978.
    Richard L. Jorandby, Public Defender, and Charles D. Peters, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Harry M. Hipler and Kenneth Spillias, Asst. Attys. Gen., West Palm Beach, for appellee.
   DAUKSCH, Judge.

Appellant was indicted for murder in the First Degree and convicted of murder in the Second Degree after a jury trial. As tenuous as it might have been the appellant had a defense of justifiable homicide to present to the jury. She testified as to her acting in self defense, which, if sufficiently established, can permit the jury to acquit under the definition of justifiable homicide. After she testified the court ruled she could not present her witnesses as to the violent character and reputation of the deceased and she would not be permitted to have the jury charged on the law of justifiable homicide. It is noted, however, the court did charge the jury on justifiable homicide. It was error for the trial judge to on the one hand disallow the appellant from presenting her witnesses’ testimony about the character and propensities of the deceased and then charge the jury that it may consider evidence of the character of the deceased. The error was not the giving of the charge but the disallowing of the testimony. The judgment and sentence are reversed and the matter remanded for new trial. Palm v. State, 135 Fla. 258, 184 So. 881 (1938); Garner v. State, 28 Fla. 113, 9 So. 835 (1891); Banks v. State, 351 So.2d 1071 (Fla. 4th DCA 1977); Coker v. State, 212 So.2d 648 (Fla. 1 DCA 1968); Cole v. State, 193 So.2d 47 (Fla. 1 DCA 1966).

REVERSED AND REMANDED.

LETTS, J., and BLACK, SUSAN H., Associate Judge, concur.

      . It is further noted neither the appellant’s nor the appellee’s brief indicate appellate counsel were aware of this fact. One of the principal errors alleged was the failure to give that instruction.


text:
    CITY OF HOLLYWOOD, Appellant, v. Richard FIELDING, Edward Campbell, Mary K. Bradford, David Sapin, Neil Vaughn, Donald T. Perdue, Guy Roper, Jr., and Dominick Villani, as members of the Civil Service Board of the City of Hollywood, Appellees.
    Nos. 76-2689, 77-346.
    District Court of Appeal of Florida, Fourth District.
    Aug. 16, 1978.
    J. T. Frankenberger, City Atty., and Charles L. Hauck, Asst. City Atty., Hollywood, for appellant.
    Stephen F. Bacen of Hunter, Atkinson & Golden, P. A., Hollywood, for appellee Richard Fielding.
   DAUKSCH, Judge.

Before us is an appeal from a Writ of Mandamus.

The Civil Service Act of the City of Hollywood sets out the procedure an employee, the City and the Civil Service Board must follow when a discharged employee wants to appeal to the Board for his reinstatement. One of the requirements of the Act is that the Board “shall hear the appeal within thirty (30) days” from the filing of the appeal. Because the Board, for various reasons, was unable to obtain a quorum to hear Mr. Fielding’s appeal within the requisite thirty days the appeal was finally scheduled to be heard beyond the thirty day period. Mr. Fielding sued the City and sought the Writ of Mandamus to require the City to reinstate him with back pay and other benefits. The court issued the writ and required, inter alia, the reinstatement of Mr. Fielding to his former employment.

In the Civil Service Act there is no provision for a remedy for the Board’s refusal or failure to hold a hearing. The Civil Service Board is comprised of members not answerable to the City administration and the City has no control over its operation concerning appeals hearings. The City is a party to an appeal hearing just as the aggrieved employee is a party. To order the reinstatement of Mr. Fielding is the wrong remedy. The proper remedy is an order to the Civil Service Board to hold a hearing and issue its findings and decision as required by the Civil Service Act and the Civil Service Rules. If the Board fails to act then the court may use its inherent power to force compliance or punish if the noncompliance is deemed wilful.

The Writ of Mandamus is quashed and this matter is remanded for further proceedings not inconsistent herewith.

DOWNEY, C. J., and MOORE, J., concur.

      . Ch. 65-1689, Special Acts, Laws of Fla.


text:
    U. S. HOME CORPORATION, Appellant, v. Catherine A. GRANGER, as Administratrix cum testamento annexo of the Estate of Robert J. Granger, Deceased, Appellee.
    No. 77-699.
    District Court of Appeal of Florida, Fourth District.
    Aug. 16, 1978.
    Rehearing Denied Sept. 29, 1978.
    Ted R. Manry, III, and Claude H. Tison, Jr., of MacFarlane, Ferguson, Allison & Kelly, Tampa, for appellant.
    Crary, Buchanan & Meginnis and Howard R. Hirsch, Miami Beach, for appellee.
   PER CURIAM.

Although the evidence in support of the claim of the appellee was not substantial, we believe it was sufficient to preclude this Court from setting aside the verdict of the jury and the judgment of the trial court. Accordingly, the final judgment is affirmed.

AFFIRMED.

ANSTEAD, MOORE and BERANEK, JJ., concur.


author: MOORE, Judge.

text:
    The AETNA CASUALTY & SURETY COMPANY, Appellant, v. Kenneth Erwin FULTON, Appellee.
    No. 77-923.
    District Court of Appeal of Florida, Fourth District.
    Aug. 16, 1978.
    Rehearing Denied Sept. 25, 1978.
    Edna L. Caruso of Montgomery, Lytal, Reiter, Denney & Searcy, West Palm Beach, for appellant.
    Larry Klein and Cone, Owen, Wagner, Nugent, Johnson & McKeown, West Palm Beach, for appellee.
   MOORE, Judge.

This is an appeal from a final declaratory judgment in which the trial court held that the plaintiff-appellee’s “personal and professional excess indemnity policy” (commonly referred to as an umbrella policy) provided appellee with $5,000,000 of uninsured motorist coverage.

Appellee, a doctor, has a “family automobile policy” which covered three family automobiles and provided $300,000 in uninsured motorist benefits. The clinical laboratory of which appellee was a member carried professional liability insurance with the appellant, Aetna Casualty and Surety Co. As a condition to writing the professional liability insurance, Aetna required each of the members of the clinical laboratory to carry a $5,000,000 umbrella policy to insure against personal liability. This policy was obtained for the appellee by the administrator of the clinical laboratory and provided appellee with $5,000,000 of excess personal liability insurance and $25,000 excess uninsured motorist insurance.

Under Section 627.727, Florida Statutes (1975), an automobile liability insurance policy must have provided uninsured motorist insurance in an amount not less than the limits of the liability insurance purchased by the insured for bodily injury, unless the insured selected lower limits. Appellee successfully contended at the trial level that because he had not selected a lower limit he was statutorily entitled to uninsured motorist coverage in the amount identical to the liability coverage, to wit: $5,000,000. We agree with the trial court’s decision.

Appellant presents two distinct arguments. First, it contends that Section 627.727 applies only to automobile liability insurance policies and the “personal and professional excess indemnity policy” is not an automobile liability insurance policy. This contention has no merit.

By the terms of the umbrella policy, ap-pellee was covered up to $5,000,000 for liability arising out of the ownership, maintenance, operation, use, loading or unloading of any automobile or recreational vehicle when his liability exceeded that covered by his “family automobile policy.” Although the umbrella policy provided personal injury liability coverage for liability incurred in other ways, it nevertheless provided automobile liability insurance. The definitional section of the umbrella policy makes it apparent that the policy was concerned largely with liability arising out of the use of automobiles. The policy itself provided uninsured motorists coverage in the amount of $25,000 for each accident and required underlying, minimum primary limits of automobile liability coverage. We, therefore, hold that this was a policy providing automobile liability insurance activating the requirements of Section 627.727, Florida Statutes (1975). See, Aetna Casualty and Surety Co. v. Green, 327 So.2d 65 (Fla.1st DCA 1976).

Appellant next contends that appel-lee “selected” the lower limit of $25,000 uninsured motorist coverage because appel-lee specifically contracted for this amount. It is undisputed that appellee was never offered a higher amount and that appellant would not have written the policy for a higher amount even if it had been requested. How can it be said that an insured “selected” a lower limit when the transaction was a “take it or leave it” proposition? As Judge Smith stated in American Motorists Ins. Co. v. Weingarten, 355 So.2d 821 (Fla.lst DCA 1978):

“. . .an informed rejection of additional uninsured motorist coverage could not, without extrinsic evidence, be implied from the insured’s signature on an application for uninsured motorist coverage to lower limits.”

We find sound reasoning in the opinion of our sister court. See also Lumbermen’s Mutual Cas. Co. v. Beaver, 355 So.2d 441 (Fla.4th DCA 1978).

The trial court was eminently correct in entering a final declaratory judgment in favor of appellee and is AFFIRMED.

CROSS and BERANEK, JJ., concur.

      . It is interesting to note the policy did not provide professional liability coverage.


text:
    Donald LUNDY, Appellant, v. STATE of Florida, Appellee.
    No. 77-1381.
    District Court of Appeal of Florida, Fourth District.
    Aug. 16, 1978.
    Richard L. Jorandby, Public Defender, and Harvey R. Schneider, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and John D. Cecilian, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. See Skelton v. State, 349 So.2d 193 (Fla. 3d DCA 1977) and Allen v. State, 317 So.2d 87 (Fla. 1st DCA 1975).

DOWNEY, C. J., and ANSTEAD and DAUKSCH, JJ„ concur.


text:
    A. C. TYNER, Petitioner, v. FLORIDA DEPARTMENT OF COMMERCE, DIVISION OF EMPLOYMENT SECURITY, and Safety Cab Company, Inc., Respondents.
    No. 77-1438.
    District Court of Appeal of Florida, Fourth District.
    Aug. 16, 1978.
    A. C. Tyner, Orlando, pro se.
   MOORE, Judge.

We treat this case as a petition for writ of certiorari to review an order of June 14, 1977 of the Industrial Relations Commission affirming the appeals referee’s decision that the claimant (petitioner herein) voluntarily left his employment without good cause attributable to the employer. Having reviewed the entire record in this cause we find that the decisions of the appeals referee and the Industrial Relations Commission are supported by substantial, competent evidence consistent with the essential requirements of law. We, therefore, deny the petition for writ of certiorari.

DOWNEY, C. J., and BERANEK, J., concur.


author: CROSS, Judge.

text:
    COSMOPOLITAN HEALTH SPA, INC., Appellant, v. HEALTH INDUSTRIES, INC., a Utah Corporation, and Harold E. Johnson, Appellees.
    No. 78-302.
    District Court of Appeal of Florida, Fourth District.
    Aug. 16, 1978.
    Rehearing Denied Sept. 29, 1978.
    James M. Spoonhour, of Lowndes, Peir-sol, Drosdick & Doster, Orlando, for appellant.
    James E. Foster, of Fishback, Davis, Dominick & Simonet, Orlando, for appellee-Health Industries, Inc.
   CROSS, Judge.

Cosmopolitan Health Spa, Inc., seeks through interlocutory appeal review of an order denying its motion to dismiss for lack of personal jurisdiction in a garnishment action. We reverse.

On June 7, 1977 Health Industries, a Utah corporation, filed its motion for writ of garnishment requesting that a writ be issued against Cosmopolitan Health Spa, Inc. [hereinafter Cosmopolitan], a North Carolina corporation, based on a judgment which Health Industries had earlier obtained against Harold E. Johnson, the principal defendant. It is all but conceded that Cosmopolitan neither does business nor has corporate agents within the State of Florida. In its Amended Motion for Writ of Garnishment, Health Industries alleged:

“4. Plaintiff alleges on information and belief that the Garnishee, COSMOPOLITAN HEALTH SPA, INC., a non-resident foreign corporation, is presently indebted to HAROLD E. JOHNSON, by reason of COSMOPOLITAN’ HEALTH SPA INC.’s entering into a contract, or contracts with HAROLD E. JOHNSON which contract, or contracts, require acts to be performed in the State of Florida and, or in the alternative, which contract, or contracts, require payment to be made in the State of Florida.
“5. And, or in the alternative, Plaintiff alleges on information and belief that Garnishee, COSMOPOLITAN HEALTH SPA, INC., is presently indebted to David Dewey Johnson.
“6. Defendant, HAROLD E. JOHNSON, has transferred a certain promissory note, a copy being attached hereto and marked Exhibit “1” and incorporated by reference herein, to David Dewey Johnson. The aforesaid transfer was made for no consideration, or for a nominal consideration, and was made with the intent to delay, hinder and defraud the Plaintiff herein. Said transfer constitutes a fraudulent conveyance with respect to Plaintiff.”

The Writ issued and was personally served on Cosmopolitan in Charlotte, North Carolina. Cosmopolitan, appearing specially, then filed its motion to dismiss for lack of personal jurisdiction, or alternatively, to quash service of process. After amendments to both the motion for Writ of Garnishment and the Motion to Dismiss, the trial court entered its order denying Cosmopolitan’s motion to dismiss. This interlocutory appeal then followed.

In order to allow the assertion of in personam jurisdiction over a defendant outside the territorial reach of the courts of this state, a burden is imposed on the plaintiff to plead sufficient material facts to establish a basis for the exercise of such jurisdiction. If such jurisdiction over the person of the defendant is properly challenged by affidavit, the plaintiff must sustain its assertions by affidavit or other proof and may not rely on a mere reiteration of the allegations contained in the complaint. Georgia Savings and Loan Service Corp. v. Delwood Estates, Inc., 315 So.2d 237 (Fla. 1st DCA 1975). See also Dublin Company v. Peninsular Supply Co., 309 So.2d 207 (Fla. 4th DCA 1975).

In order to sustain in personam jurisdiction over Cosmopolitan, appellee relies on Section 48.193(l)(g), Florida Statutes, which provides:

“(1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits that person and, if he is a natural person, his personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of the following:
“(g) Breaches a contract in this state by failing to perform acts required by the contract to be performed in this state." (Emphasis added)

The above provision, as with other provisions of Florida’s long arm statute, must be strictly construed in order to guarantee compliance with due process requirements. Dublin v. Peninsular Supply Co., supra. The caselaw interpreting Section 48.-193(l)(g), Fla.Stat., although scant, is sufficient to support the view that before in personam jurisdiction may attach over a defendant, proper allegations must be pled to show that the defendant failed to perform an act or acts whose performance was to be in Florida and that such breach formed the basis for the cause of action for which relief is sought by the plaintiff. See First National Bank of Kissimmee v. Dunham, 342 So.2d 1021 (Fla. 4th DCA 1977); Madax International Corp. v. Delcher Intercontinental Moving Services, Inc., 342 So.2d 1082 (Fla. 2d DCA 1977); Lewis v. Cues, Inc., 338 So.2d 241 (Fla. 4th DCA 1976); Feldman v. Southeast Bank of Dadeland, 323 So.2d 628 (Fla. 3d DCA 1976); Georgia Savings and Loan Service Corp. v. Delwood Estates, Inc., supra.

In the instant case appellee’s allegations contained in its motion for writ of garnishment are insufficient to sustain the exercise of in personam jurisdiction. Although the existence of a contract whose terms require payment to be made in Florida between Cosmopolitan and Mr. Johnson, the defendant in the principal action, has been properly alleged, the mere existence of a contractual obligation to be performed in Florida, without more, will not support the exercise of in personam jurisdiction. Ap-pellee has failed to show that its cause of action against Cosmopolitan arises directly from a breach of such contract performable in Florida. Thus, the error of the trial court in denying the motion to dismiss.

We do not determine now whether Cosmopolitan may be amenable to the jurisdiction of the courts of Florida under alternative theories of jurisdiction. See Harris and Company Advertising, Inc. v. Republic of Cuba, 127 So.2d 687 (Fla. 3d DCA 1961). Nor do we address the issue of whether appellee’s allegations would support the exercise of an alternative theory of jurisdiction. See Chaachou v. Kulhanjian, 104 So.2d 23 (Fla.1958); Alabama Hotel Co. v. J. L. Mott Iron Works, 86 Fla. 608, 98 So. 825 (1924). We only determine that appel-lee’s motion for writ of garnishment contains insufficient allegations to support the exercise of in personam jurisdiction over Cosmopolitan.

Accordingly, we reverse the trial court’s order denying Cosmopolitan’s motion to dismiss, and remand with directions to enter an order dismissing the amended motion for Writ of Garnishment, without prejudice.

Reversed and remanded, with directions.

DOWNEY, C. J., and MOORE, J., concur.


author: HOBSON, Judge.

text:
    PARK SHORE, a partnership, Appellant, v. Clifford S. MIRACLE, etc., et al., Appellees.
    No. 76-1839.
    District Court of Appeal of Florida, Second District.
    Aug. 16, 1978.

      G. Hunter Gibbons of Dart, Dickinson, O’Riorden, Gibbons & Quale, Sarasota, for appellant.
    B. Clarke Nichols of Vega, Brown & Nichols, Naples, for appellees.
   HOBSON, Judge.

Appellant appeals a final judgment entered on a jury verdict in favor of the appellees in this personal injury action. Appellant contends that it was entitled to a directed verdict in that there was not sufficient evidence to submit the case to the jury.

Appellees’ complaint charged that appellant was guilty of: 1) negligence in the construction and design of the driveway upon which minor appellee was injured; 2) failure to warn of the dangerous condition; and 3) placing a sign which in effect confused those entering the driveway.

The defendant/appellant, Park Shore, on April 26, 1974, was the owner and possessor of certain land situated in Collier County. Park Shore had constructed a condominium on this property known as Surfs Edge and had under construction another condominium known as Gulf Side. In order to travel from the public street to the condominiums it was necessary that vehicles traverse a circular drive located in front of the Surfs Edge. The private roadway around the traffic circle was 24 feet wide and was of black-top construction. There was shrubbery planted in the island formed by the traffic circle. On the day of the accident there was no painted center stripe on the pavement. There was more than adequate space on the roadway for two motor vehicles. At the entrance there was a small sign with an arrow pointing to the right with the word “Models” printed thereon. There was no other traffic control device on the premises on the date of the accident.

On this date, the minor plaintiff, Clifford S. Miracle, was 12 years of age. He and his family had been residents of Surfs Edge for approximately two months. The minor plaintiff’s father, C. S. Miracle, had given his son a Kawasaki 150 trail motorcycle which was unlicensed and unregistered. On the afternoon of the accident, the minor plaintiff left the parking lot on the north side of Surfs Edge and traveled down the middle of the street around the traffic circle to the right, or counter-clockwise. As he proceeded around the circle to the right, Lance Edward Ciernes, a paperhanger, thinking it was two-way, had entered the driveway from the street and was proceeding to the left, or in a clockwise direction around the same circle, enroute to hang wallpaper on the wall of an apartment in the condominium. The time was approximately 3:30 P. M.; the weather was good. Mr. Ciernes had not been drinking and there was nothing mechanically wrong with the station wagon that he was driving. As Ciernes was getting ready to turn into the parking lot to his left the motorcycle ran into him. Ciernes was in the middle of the road at the time of impact and either was stopped or almost stopped. The motorcycle struck the car on the right front fender between the door and the wheel. The force of the impact was such that the minor plaintiff went over the top of the car. The minor plaintiff thought the driveway was one-way and he was going the right way. The other residents thought it was one-way. The minor plaintiff looked down at his speedometer which read 22 m. p. h. and when he looked up at the Ciernes’ vehicle appeared around the corner and the impact. occurred.

A civil engineer with vast experience and eminent qualifications in the field of traffic control testified at the trial. This expert explained to the jury the features of the roadway herein involved which would lead a motorist to believe that the traffic flowed in one direction, and the features which would lead a motorist to believe that the traffic flowed in both directions. He also explained to the jury the features of the roadway which greatly limited visibility and made maneuvering difficult. The absence of traffic flow indicators was, at best, confusing and therefore dangerous. This expert outlined for the jury the types of indicators and their placement which he considered necessary to ensure the safety of persons traveling on this roadway. It was his opinion that if one driver believed the traffic flow to be one-way and another driver believed the traffic flow to be two-way, then the danger of collision was “great, very great.”

This expert testimony, together with the testimony that the minor plaintiff thought the roadway to be one-way and the driver Ciernes thought the roadway to be two-way is competent substantial evidence to sustain the final judgment.

Appellant’s remaining points have been carefully considered and found to be without merit. Accordingly, the final judgment of the court below is

AFFIRMED.

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

      . We note that appellant’s counsel elicited testimony from appellant’s principal that the roadway was designed for two-way traffic flow, but now it has been marked for one-way traffic flow.


author: HOBSON, Judge. GRIMES, Chief Judge,

text:
    Carl James FERRARA, by his parents and next friends, Carl Lamar Ferrara and Sherry Ferrara, and Carl Lamar Ferrara and Sherry Ferrara, on their own behalf, Petitioners, v. The HENDRY COUNTY SCHOOL BOARD, Respondent.
    No. 77-1819.
    District Court of Appeal of Florida, Second District.
    Aug. 16, 1978.

      Bruce S. Rogow, Nova University Center for the Study of Law, Fort Lauderdale, and Terry De Meo, Staff Counsel, American Civil Liberties Union Foundation of Florida, South Miami, for petitioners.
    Owen L. Luckey, Jr. of Luckey & Harrell, LaBelle, for respondent.
   HOBSON, Judge.

This is a petition for certiorari to review the final order of the Hendry County School Board suspending the petitioner, Carl James Ferrara, from the Tenth Grade of Clewiston High School for the balance of the school year 1977-78.

A panel consisting of students, parents and teachers recommended to the school board a dress code which included “students are to be clean shaven.” The school board adopted the dress code.

On September 21, 1977, the petitioner was suspended by the principal of Clewiston High School because he refused to shave the hair growing on his lip, which was clearly visible at a distance of at least 40 feet. The petitioners sought relief from this suspension in the United States District Court for the Southern District of Florida alleging violations of their federal constitutional rights. A hearing was held in the Federal District Court at which time testimony was taken on behalf of both the petitioners and the respondent. The District Court denied injunctive relief and an interlocutory appeal was taken to the Fifth Circuit Court of Appeals. After the Fifth Circuit denied an injunction pending appeal, the petitioners voluntarily dismissed all proceedings in the federal courts.

The Hendry County School Board held an expulsion hearing on November 1,1977. At this hearing it was stipulated that the testimony before the United States District Court would be used as the evidentiary basis for the school board’s decision. On the same day the school board suspended the petitioner for the balance of the school year and it is this final order which we have before us for review.

The question before us is strictly a matter of law. Petitioner claims that the Florida and Federal constitutions protect him from state intrusion into his personal and familial rights to privacy. Petitioner relies mainly upon Conyers v. Glenn, 243 So.2d 204 (Fla.2d DCA 1971) in which this court held that unless the school board can show some overriding necessity, the decision as to whether or not the minor student cuts his hair rests with his parents. This holding was based on Florida Constitution, Article I, § 9, and the United States Constitutional Amendment XIV, commonly known as due process.

In Conyers the minor was suspended from high school without a hearing for failure to cut his hair. He sought a temporary injunction in the circuit court and asked the court to order a hearing before the school board on his contention that the regulation violated his constitutional rights. The trial court granted a temporary injunction permitting him to remain in school pending the final decision in his case. The trial court entered an order in which it found that he was not entitled to due process, the school board was not obligated to grant a hearing, and dismissed the complaint.

On that appeal to this court the primary question was whether or not he was entitled through due process to a hearing before the school board. In addition to holding that the student was entitled to a hearing, this court went further and held he would be denied his constitutional rights unless the school board could show some overriding necessity that would give the school board a reasonable basis on which to suspend him from school if he failed to cut his hair.

This court based its decision primarily on Tinker v. Des Moines Community School Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). We now feel that our court misconstrued the Tinker case when it stated that Tinker was decided under the Fourteenth Amendment. A careful reading of Tinker shows that it was based on the First Amendment protection of free speech. In Tinker the United States Supreme Court stated:

The problem posed by the present case does not relate to regulation of the length of skirts or the type of clothing, to hair style, or deportment. ... It does not concern aggressive, disruptive action or even group demonstrations. Our problem involves direct, primary First Amendment rights akin to “pure speech.”

The Conyers case was decided prior to Karr v. Schmidt, 460 F.2d 609 (U.S. Court of Appeals 5th Cir. 1972). In Karr, a boy attempted to enroll for his junior year in high school but was not permitted to do so because he was in violation of a school board regulation limiting the length of male students’ hair. The court there distinguished Tinker, as we do here, by noting that the language in Tinker quoted above indicates “that the right to style one’s hair as one pleases in the public schools does not inherit the protection of the First Amendment.” We do not perceive any distinction between the right to style one’s hair and the right to grow a mustache.

With respect to individual or familial rights to privacy, this court in Conyers referred to Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), and stated:

But the one clear consequence of Gris-wold is that some showing of overriding public necessity is a necessary predicate to state action interfering with the freedom of the individual.

Yet the court in Karr analyzed Griswold in the following manner:

A second basis frequently asserted for such a constitutional right is found in an expansive reading of the Supreme Court’s holding in Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). In that case, the court invalidated a Connecticut statute forbidding the use of contraceptives on the ground that it unjustifiably infringed the right of marital privacy. It is argued that from this holding may be generalized a pervasive constitutionally protected zone of personal privacy which may be infringed only for compelling reasons. See e.g. Bishop v. Colaw, 8 Cir. 1971, 450 F.2d 1069.
In our view, such a reading of Gris-wold is unwarranted. We think Griswold rested somewhat narrowly on the unacceptable intrusion in the privacy of the home which would have been required to enforce the Connecticut statute. In contrast, a regulation restricting the length of hair restricts privacy not at all. Hair is, of course, worn for all the world to see. We do not think Griswold stands for any general “right to go public as one pleases.”

As to substantive due process, we are in accord with the following holding in Karr:

C. Substantive Due Process.— Rather than relying narrowly on Gris-wold, it may be argued more generally that the right to wear hair at any length inheres in the “liberty” assurance of the Due Process Clause of the Fourteenth Amendment. There is little doubt that the Due Process Clause has occasionally been relied upon in recent years as the source of substantive constitutional rights even where the rights were not specifically enumerated in the Bill of Rights. The right of marital privacy announced in Griswold is but one example of this recent emergence of substantive due process in the area of individual liberties. Other examples are the constitutional right to travel to foreign countries and the right to travel interstate. It is axiomatic, however, that federal courts should recognize such substantive constitutional rights only where “fundamental” individual liberties are at stake.
We think it plain that individual liberties may be ranked in a spectrum of importance. At one end of the spectrum are the great liberties such as speech, religion, and association specifically guaranteed in the Bill of Rights. Of equal importance are liberties such as the right of marital privacy that are so fundamental that, even in the absence of a positive command from the Constitution, they may be restricted only for compelling state interests. At the other end of the spectrum are the lesser liberties that may be invaded by the state subject only to the same minimum test of rationality that applies to all state action. See, e.g., Ferguson v. Skrupa, 372 U.S. 726, 83 S.Ct. 1028, 10 L.Ed.2d 93 (1963).
The question before this court is where on the spectrum lies the asserted right of a high school student to wear hair in school at the length that suits him. It is our firm belief that this asserted freedom does not rise to the level of fundamental significance which would warrant our recognition of such a substantive constitutional right. We are influenced in this decision by numerous factors. First, the interference with liberty is a temporary and relatively inconsequential one. The regulation in question does, after all, leave these students a rather wide range of personal choice in their dress and grooming. We do not have here “a nation bent on turning out robots . . . insistpng] that every male have a crew cut and every female wear pigtails.” Secondly, we feel compelled to recognize and give weight to the very strong policy considerations in favor of giving local school boards the widest possible latitude in the management of school affairs. School administrators must daily make innumerable decisions which restrict student liberty. The briefs in this case afford an interesting sampling of the kinds of restrictions which have been held valid in the Texas state courts. Examples are regulations requiring students to park automobiles in a designated parking lot and not move them until a designated hour; forbidding students from leaving school grounds during recess and noon hour; prohibiting membership in high school fraternities and sororities; forbidding students from taking lunch except from the school cafeteria. Each of these regulations imposes restrictions on student liberty at least as substantial as the regulation here in question. It would require little imagination to formulate an equally plausible due process attack on the validity of each restriction. Does it follow that school officials should be called into federal court and given the burden of demonstrating “factually” that these restrictions serve “compelling” interests and that no “alternatives less restrictive of liberty” are available? We think not.

In conclusion, we hold that regulations such as involved here that do not affect fundamental freedoms are subject to a much less rigorous standard of judicial review than is applicable when such fundamental rights are at stake. In cases such as this, the standard of review is whether the regulation is reasonably intended to accomplish a constitutionally permissible objective. The burden is upon a petitioner to establish that the regulation is wholly arbitrary' and not upon the school board to establish the rationality of it.

In this case the record establishes that the school board’s regulation meets the test of rationality and was properly applied.

We hereby recede from anything said in Conyers contrary to the views expressed herein.

The petition for certiorari is denied.

GRIMES, C. J., concurs specially.

OTT, J., concurs.

GRIMES, Chief Judge,

specially concurring.

Had I been on the Hendry County School Board I doubt if I would have voted to prohibit a high school student from growing a mustache. But the Hendry County School Board saw fit to do so, and the question here is whether the petitioner was thereby denied a right of constitutional magnitude. I am persuaded that ordinarily matters such as these must be left in the hands of the officials who have been duly charged with the operation of our schools. So long as a particular regulation is not “wholly arbitrary,” it should be upheld even though it may have the effect of impinging in some small degree upon an individual’s freedom to do as he pleases.

Our courts must always be available to resolve the many serious controversies which cannot be avoided in today’s complex society. Yet, our judicial system already staggers under a case load which threatens to make ready access to the courts more a myth than a reality. If the courts become embroiled in passing on the constitutionality of every conceivable public school regulation, there is a real possibility that persons with serious and legitimate grievances may never be able to get in the courthouse door.


text:
    Fredrick L. WEINBERG, Appellant, v. EAST LAKE WOODLANDS, LTD., Florida Limited Partnership, Appellee.
    No. 78-381.
    District Court of Appeal of Florida, Second District.
    Aug. 16, 1978.
    Peter T. Roman of Dunbar, Dunbar & Roman, New Port Richey, for appellant.
    H. Rex Owen of Owen & McCrory, St. Petersburg, and William J. Deas of Howell & Deas, Jacksonville, for appellee.
   PER CURIAM.

Appellant contends the trial court erred in dismissing his complaint for failure to state a cause of action. We agree.

Appellant filed a complaint seeking damages and an injunction against what he claimed was the wrongful termination of his membership in appellee’s country club. He alleged that upon payment of a fee he was accepted as a member of the club and that he had conducted himself in accordance with all of its rules and regulations. He further alleged that the club had terminated his membership contrary to those rules and regulations and that it failed to provide him with notice and a hearing concerning its proposed expulsion of him. Subsequently, on motion of appellee, the trial court dismissed appellant’s complaint with prejudice. In so doing, the trial judge observed that he did not think that the controversy between appellant and appellee was a proper one for resolution through the judicial process.

While courts have often been wary of entering into disputes between private social clubs and their members, it has long been the rule in Florida that a person has a right to notice and a hearing when a club proposes to cancel his membership. Moreover, the cancellation must comport with the applicable by-laws or regulations of the club. LaGorce Country Club v. Cerami, 74 So.2d 95 (Fla.1954); State ex rel. Barfield v. Florida Yacht Club, 106 So.2d 207 (Fla. 1st DCA 1958). In. view of these rules, we think that appellant’s complaint stated a cause of action. Of course, we do not reach the merits of appellant’s contention.

In view of our decision we need not discuss the other point which appellant has raised. We vacate the trial court’s order dismissing appellant’s complaint and remand the case for further proceedings consistent with this opinion.

GRIMES, C. J., and SCHEB and RYDER, JJ., concur.

      . Appellee, East Lake Woodlands, LTD is a Florida Limited Partnership. It owns and operates the East Lake Woodlands Golf and Country Club.


text:
    Mary MATTHEWS, a/k/a Mary Melvin, Petitioner, v. Stefan M. STEIN, P. A., Respondent.
    No. 78-970.
    District Court of Appeal of Florida, Second District.
    Aug. 16, 1978.
    Frederick M. Lucarelli, Temple Terrace, for petitioner.
    Stefan M. Stein of Law Offices of Stein & Frijouf, Tampa, for respondent.
   PER CURIAM.

By petition for writ of common law cer-tiorari petitioner Mary Matthews seeks review of a judgment of the circuit court sitting in its appellate capacity reversing an order of the Hillsborough County Court. After reviewing the record we hold that the circuit court departed from the essential requirements of law and, therefore, the writ is granted.

Respondent Stefan M. Stein filed a complaint in the county court against petitioner seeking damages. Judgment was entered in favor of petitioner. Respondent subsequently appealed to the circuit court contending that the county court erred in denying his motion to consolidate this case with another case! A thorough search of the record fails to show that a written motion to consolidate was filed in the county court, and more significantly we have not found that an order was entered ruling on the merits of the motion.

Respondent did file an affidavit signed by him with the circuit court in which he averred that a motion to consolidate was orally made to the court and orally denied. On the strength of this affidavit the circuit court entered an order reversing the decision of the county court and directing that the two cases be consolidated and that the parties be afforded a new trial. Petitioner filed this petition for writ of certiorari in this court stating that the circuit court did not have jurisdiction to review the order denying the motion to consolidate for the reason that the order had never been rendered. We agree. This court has held in prior cases in which this question was presented that an order is not rendered until it “has been reduced to writing, signed and made a matter of record” as required by Florida Appellate Rule 1.8. Florida Citrus Commission v. Griffin, 249 So.2d 42 (Fla. 2d DCA 1971); Egantoff v. Herring, 177 So.2d 260 (Fla. 2d DCA 1965).

The petition for writ of certiorari is granted, and the judgment of the circuit court is quashed, and the case is remanded for further proceedings consistent with this opinion.

BOARDMAN, Acting C. J., and RYDER and DANAHY, JJ., concur.

      . See also the new Rule 9.020(g), Florida Rules of Appellate Procedure, which defines rendition as “the filing of a signed, written order with the clerk of the lower tribunal.”


author: SMITH, Acting Chief Judge.

text:
    Wayne Edward WHEELER, Appellant, v. STATE of Florida, Appellee.
    No. GG-420.
    District Court of Appeal of Florida, First District.
    Aug. 17, 1978.
    Rehearing Denied Sept. 27, 1978.

      David LaCroix, Sp. Public Defender, Gainesville, for appellant.
    Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., Tallahassee, for appellee.
   SMITH, Acting Chief Judge.

An appeal from a judgment and life sentence for first degree murder. There was abundant evidence that the elderly female victim was raped, then strangled to death. Appellant’s fingerprints and bloody palm print were found on the wall of her apartment. He made a tape-recorded confession to officers after receiving Miranda warnings. Appellant presents several points.

The inadvertent references by witnesses to the prior “trial” and, on one occasion, to the Supreme Court’s order for a new trial, Wheeler v. State, 344 So.2d 244 (Fla.1977), were not equivalent to references to a prior judgment of guilt. Contrast Lawson v. State, 304 So.2d 522 (Fla. 3d DCA 1974). Appellant made no request during trial for curative instructions, although the court did so charge the jury when submitting the case.

No prejudicial error appears in the trial court’s denial of appellant’s challenge for cause of a prospective juror whom appellant later struck peremptorily. The prospective juror simply stated that she had great respect for police officers and that it would be difficult for her to believe that a police officer had testified untruthfully. That feeling did not disqualify the prospective juror. Moreover, little depended on the uncorroborated testimony and credibility of police officers, and any error in refusing to excuse the juror was harmless. Finally, appellant has not demonstrated that, as a result of his exhaustion of peremptory challenges, a juror served who would have otherwise been stricken by appellant. See Rollins v. State, 148 So.2d 274, 275-76 (Fla.1963).

The trial court did not err in charging the jury that a killing perpetrated in the course of a rape is first degree murder. It is true, as appellant points out, that at the time of the offense there was no statute defining and proscribing “rape” as such. The 1974 Legislature had replaced the substantive offense of rape with that of sexual battery in various degrees. Chapter 74— 121, Laws of Florida; Section 794.011, Florida Statutes (1977). Not until 1975, after appellant’s offense but before his trial, did the legislature amend the murder statute, Section 782.04, to delete the obsolete term “rape” and substitute “sexual battery”. Appellant argues that the state could not prove rape, as that offense no longer existed, and that the homicide statute did not make first degree murder of a killing in the perpetration of sexual battery. We reject this argument. The homicide statute defines as first degree murder a killing with premeditation or its equivalent, namely, a killing during a violent felony from which premeditation to murder is presumed. In the latter case, premeditation to murder “is deemed proven by evidence of the accused’s felonious conduct.” Ables v. State, 338 So.2d 1095, 1097 (Fla. 1st DCA 1976), cert. denied, 346 So.2d 1247 (Fla. 1977). In its jury charge, the trial court properly described conduct which would have been “rape” prior to Chapter 74-121 and which, at the time of the offense, constituted “sexual battery” by force or violence. Irrespective of the technical name by which such conduct was then known and condemned by statute, premeditation is presumed by law if appellant killed his victim in the course of such conduct, and the result is first degree murder.

Appellant further contends that the M’Naghten rule of insanity, concerning which the trial court charged the jury, violates the equal protection clause of the Fourteenth Amendment of the United States Constitution. While it does not appear that the Supreme Court expressly decided this issue on Wheeler’s previous appeal, we find no basis for Wheeler’s assertion that this test of criminal responsibility unconstitutionally discriminates among similarly situated persons.

AFFIRMED.

ERVIN and BOOTH, JJ., concur.


text:
    STATE of Florida, Appellant, v. John H. HARLEY, Appellee.
    No. 77-2010.
    District Court of Appeal of Florida, Second District.
    Aug. 18, 1978.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellant.
    Jack O. Johnson, Public Defender, P. Douglas Brinkmeyer, Asst. Public Defender, and Daphne W. Boswell, Legal Intern, Bartow, for appellee.
   PER CURIAM.

Section 810.02, Florida Statutes (1977), defines burglary as “entering or remaining in a structure or a conveyance with the intent to commit an offense therein . .” This case presents the question whether the state may charge a defendant with burglary of a conveyance when the offense referred to in the statute is the unauthorized temporary use of the same conveyance. The answer to that question is yes. State v. Dalby, 361 So.2d 215, No. 77-1563 (Fla. 2d DCA, 1978). We realize that Dalby dealt with grand larceny instead of unauthorized temporary use, but we do not think that difference affects the applicability of Dalby to the present case.

Accordingly, we reverse the trial court’s order dismissing the information charging appellee with burglary and remand the case for further proceedings.

BOARDMAN, Acting C. J., and RYDER and DANAHY, JJ., concur.


author: BOYER, Acting Chief Judge.

text:
    Raymond PARRA, Appellant, v. Halleen F. PARRA, Appellee.
    No. GG-372.
    District Court of Appeal of Florida, First District.
    Aug. 22, 1978.
    Rehearing Denied Oct. 10, 1978.

      Britt Whitaker, Tampa, for appellant.
    John D. Hooker and E. C. Watkins, Jr., Tampa, for appellee.
   BOYER, Acting Chief Judge.

Appellant seeks review of an order of the trial court requiring him to execute and deliver to his former wife, appellee, a deed conveying to her an undivided one-half interest in certain lands located in the State of North Carolina. We reverse.

The record reveals that in 1972 appellant filed a petition for dissolution of marriage in the Circuit Court of Marion County praying, inter alia, that the court make an equitable division of certain real property owned by the parties in Silver Spring Shores in Marion County. The wife, appellee here, filed an answer and an amended answer in which she alleged, inter alia, “that in addition to the home located at Silver Spring Shores, Marion County, Florida, the wife had a special equity in 73.94 acres of real property containing a cabin in the State of North Carolina, which she asks the court for an equitable division”. The trial court thereafter entered a final judgment dissolving the marriage but reserving jurisdiction to settle property rights. Finally, in November of 1972 the court entered an order awarding to the wife various lump sum alimony, rehabilitative alimony, costs, attorney’s fees and “one-half interest of whatever interest the petitioner, Raymond Parra might have in property located in Qualla Township, Jackson County, North Carolina.” The court retained jurisdiction only with reference to rehabilitative alimony and a requirement of a physical examination of the wife by a medical doctor of her choosing. The order did not require conveyance by Mr. Parra, nor did it prescribe a time for performance. (See Fla.R. Civ.P. 1.570) Neither did the evidence, the final judgment nor the order reveal any legal description of the property. Although, at the time of the order, the court had jurisdiction of the parties it did not have jurisdiction of the property. (See 8 Fla.Jur., Courts, § 95) Having failed to require a conveyance or prescribe a time for performance there was no requirement under the order or the law that Mr. Parra do anything other than pay the alimony, attorney’s fees and costs.

Four years later, long after the judge who had signed the order ceased to be a circuit judge, Mrs. Parra filed a petition entitled “Petition for Clarification and Enforcement of Final Judgment”. In that petition she alleged entry of a final judgment “for division of property” (notwithstanding that the final judgment did not in fact require any division of property); that Mrs. Parra “was awarded one-half interest of whatever interest the petitioner, Raymond Parra, might have had in property located in Qualla Township, Jackson County, North Carolina”; that Mr. Parra “owned in fee simple 73.87 acres of real property in the County of Jackson, Qualla Township, State of North Carolina, on November 22, 1972 (the date that the above mentioned order was entered); that Mrs. Parra “is uncertain as to what legal title she might have in the property located in Qualla Township, Jackson County, North Carolina” and that Mrs. Parra prayed the court to take jurisdiction and to “clarify and enforce the terms of the final judgment of dissolution of marriage by ordering the petitioner, Raymond Parra, to convey by quit claim deed to the respondent an undivided one-half interest in the property that the petitioner owned in Qualla Township, Jackson County, North Carolina on November 22, 1972 * * * ” Again, the petition failed to allege the legal description of any property in North Carolina and failed to allege any facts, or even conclusions, for “clarifying” either the final judgment or the order entered four years earlier. Mr. Parra thereupon filed an answer to the petition for clarification calling to the court’s attention that the petition “wholly fails to state a factual basis upon which to invoke the declaratory jurisdiction of this honorable court in that same fails to allege the existence of a justiciable issue” and attached thereto copies of three quit claim deeds revealing that in 1968, long before the commencement of the dissolution proceeding and even longer before the entry of the final judgment and subsequent order, the property in North Carolina had been conveyed to other persons, viz: to Mr. Par-ra’s children and their spouses. The evidence reveals that that conveyance was upon the condition that in the event of a default of the annual payments due on the outstanding mortgage or in the event of dissolution proceedings involving the marriage of any of the children, they were to reconvey their respective interests to Mr. Parra and that in 1972, prior to the entry of the final judgment and order in this case, a default in the payment of the mortgage occurred. In 1973, one of Mr. Parra’s children was divorced whereupon the property was reconveyed to Mr. Parra.

On the foregoing state of the evidence and record, a successor circuit judge, in the absence of any proceeding or evidence to determine the intention and purpose of the circuit judge who entered the order sought to be clarified (See Boynton v. Canal Authority, 311 So.2d 412, (Fla. 1st DCA 1975)) entered the order here appealed ordering for the first time Mr. Parra to execute and deliver to his former wife a quit claim deed and describing for the first time a parcel of property in the County of Jackson, Qualla Township, State of North Carolina.

It is clear, as already stated, that the circuit judge who entered the final judgment and order at the time of the dissolution of marriage had no jurisdiction of the North Carolina property and that although he had jurisdiction of the parties he made no order directing any action by Mr. Parra with relation to the subject property. It is equally clear that at the time the order was entered Mr. Parra had no interest in the North Carolina property and there was no attempt whatsoever to prove any interest retained by him nor to prove that the conveyance to his children and their spouses was fraudulent or otherwise invalid.

The subsequent “petition for clarification and enforcement of final judgment” was inadequate and there was a total failure to comply with the law relative to construction of ambiguous judgments or orders as laid down in prior decisions of this and other courts. Further, the record reveals no evidence to sustain the order of the successor judge which is here appealed.

Our reversal sub judice should not be interpreted as a holding that a circuit judge, having jurisdiction of a cause of action and parties, is powerless to enforce remedies involving lands beyond the jurisdiction of the court. Certainly the contrary is true. However, in order to do so the court’s jurisdiction must be exercised over the parties as distinguished from the land. (See 12 Fla.Jur., Equity § 71 and authorities therein cited) In this case, as already noted, the original circuit judge made no attempt to exercise his coercive power to compel performance of any act relative to the property in North Carolina. Indeed, it would have been impossible for him to have done so since the record did not even reveal a description of the property.

Four years elapsed after the entry of the final judgment and order by the former judge and prior to the filing of the “Petition for Clarification and Enforcement of Final Judgment”. In the meantime, the time for appeal had expired and the Final Judgment and subsequent order became final. The successor judge, still laboring with an inadequate record, was further hampered by the failure of the appellee (upon whom the burden rested) to initiate any proceeding or adduce any evidence to determine the intention and purpose of the original circuit judge whose order she sought to have clarified. (See, for example, Boynton v. Canal Authority, supra)

Both the procedure and evidence having been deficient, we hold that the learned trial judge erred when entering the order here appealed.

SMITH, J., and BLACK, SUSAN H., Associate Judge, concur.


author: MILLS, Judge.

text:
    Saul COHEN et al., Appellants, v. Fred T. LUNSFORD et al., Appellees.
    Nos. II-318, II-386.
    District Court of Appeal of Florida, First District.
    Aug. 22, 1978.
    Rehearing Denied Oct. 10, 1978.
    William M. Barr of Raymond, Wilson, Conway, Barr & Burrows, Daytona Beach, for appellants.
    Jim H. Carter, Fort Lauderdale, S. LaRue Williams, Daytona Beach, for appellees.
   MILLS, Judge.

These consolidated interlocutory appeals are from orders denying appellants’ (owners’) motions for summary judgment in suits by appellee (subcontractor) to foreclose mechanic’s liens on owners’ two oceanfront motels.

Owners contend the trial court erred because the general contractor on the two projects furnished statutory payment bonds to owners under Section 713.23, Florida Statutes (1975), which exempted them from liability to subcontractor under Section 713.02(6), Florida Statutes (1975). Subcontractor contends the trial court properly denied the motions because the bonds provided they did not become effective until payment by the owners to the general contractor under the contract and there were no allegations or proof that the payments were made.

The printed statutory payment bonds contain the following typewritten provision at the top of the bonds:

“The Surety shall not be liable under this Bond to the Obligees [owners and lender], or either of them, unless the said obligees, or either of them, shall make payments to the Principal [general contractor] strictly in accordance with the terms of said Contract as to payments and shall perform all the other obligations to be performed under said Contract at the time and in the manner therein set forth.”

The contract between the general contractor and the subcontractor conditioned payment to the subcontractor on the owner’s payment to the general contractor.

In Hawaiian Inn of Daytona Beach v. Dunn, 342 So.2d 131 (Fla. 1st DCA 1977), a case involving the same construction projects and the same bonds as in this case, we held the bonds were statutory bonds, they exempt the owner from liability, and the exemption was permanent, not transitory-

In Guin & Hunt, Inc. v. Hughes Supply, Inc., 335 So.2d 842 (Fla. 4th DCA 1976), a judgment for the supplier against the general contractor and surety on the payment bond was affirmed despite a condition in the payment bond almost identical to the condition in the payment bonds in these cases. The court concluded that the condition may affect the surety’s liability to the owner but it does not affect the surety’s liability to the lienor.

A reading of the condition in the payment bonds here clearly shows that its only effect is to limit the surety’s liability to the obligees (owners and lender). The condition does not limit the rights of the subcontractor. If it did, the limitation would be invalid and would be disregarded as sur-plusage. Guin & Hunt, Inc., supra.

Subcontractor attempts to distinguish the Guin & Hunt, Inc. case from these cases on the basis that the subcontract in Guin & Hunt, Inc. did not condition payment to the subcontractor on the owner’s payment to the general contractor, whereas in these cases the contract between the subcontractor and general contractor contains such a condition. This is not a valid distinction. The restriction of the subcontractor’s rights against the general contractor does not increase the subcontractor’s rights against the owner. The subcontractor cannot unilaterally alter or eliminate the owner’s statutory exemption by inserting a provision in the contract between him and the general contractor.

Owners further contend they were entitled to summary judgments on the subcontractor’s claims of equitable lien and to prevent unjust enrichment. We agree.

Subcontractor was afforded an adequate remedy at law and the record reflects no special equities in the subcontractor. As stated in Crane Co. v. Fine, 221 So.2d 145 (Fla.1969):

“Ordinarily, the only right or interest that such a materialman has in the funds payable under the direct contract by the owner — and, in the circumstances specified in the statute, in the property improved by his materials — arises out of the provisions of the Mechanic’s Lien Law, . and, in the absence of special or peculiar equities, his failure to perfect his statutory right thereunder leaves him only his remedies at law. We emphasize that this opinion is not to be interpreted as holding that a materialman is entitled to seek an equitable lien merely because his materials are incorporated in the improvement.”

In Charter Development Corp. v. Eversole, 342 So.2d 143 (Fla. 1st DCA 1977), we held that the trial court improperly granted an equitable lien on the ground of unjust enrichment where the record in the case did not show any special or peculiar equities in appellee’s favor, but merely showed that appellee’s work and materials were incorporated in the improvement.

The subcontractor must preserve his claim, if any, against the surety and its statutory payment bond.

We reverse the orders appealed and remand to the trial court with instructions to enter summary judgments for appellants (owners).

BOYER, Acting C. J., and ERVIN, J., concur.


text:
    William C. RITTER, Appellant, v. Amy Anne RITTER, Appellee.
    No. 77-1103.
    District Court of Appeal of Florida, Third District.
    Aug. 22, 1978.

      Rollins, Peeples & Meadows and Barbara L. Suhar, South Miami, for appellant.
    Guy B. Bailey, Jr., Miami, for appellee.
    Before PEARSON, BARKDULL and KEHOE, JJ.
   PER CURIAM.

The husband appeals a final judgment of dissolution of marriage. Two points are presented. The first claims an inequitable distribution of the joint assets. The second urges error upon the award of attorney’s fees to the wife.

A division of the joint assets was sought by both parties. The record shows that the wife furnished all of the assets and living expenses of the marriage. The husband’s sole contribution was the management of these assets. Under these circumstances, we hold that the award made has not been shown to be so inequitable as to constitute an abuse of discretion. See Hegel v. Hegel, 248 So.2d 212 (Fla.3d DCA 1971).

The second point does present reversible error. See Ross v. Ross, 341 So.2d 833 (Fla.3d DCA 1977); and Mertz v. Mertz, 287 So.2d 691 (Fla.2d DCA 1973). Where, as here, the usable assets and income of the wife, as shown by the record, far exceed those of the husband, the basis for an award of attorney’s fees to the wife does not exist. Cf. Markland v. Markland, 155 Fla. 629, 21 So.2d 145 (1945).

Accordingly, the judgment is affirmed, except for that portion of the judgment which determines that the wife is entitled to an award of attorney’s fees. That portion of the judgment is stricken and the judgment, as amended, is affirmed.

Judgment amended and affirmed.


text:
    CITY OF ISLANDIA, etc., et al., Appellants, v. METROPOLITAN DADE COUNTY, etc., Appellee.
    No. 77-1253.
    District Court of Appeal of Florida, Third District.
    Aug. 22, 1978.

      Smith, Mandler, Smith, Werner & Jacob-witz and Jeffrey A. Sarrow, Miami Beach, for appellants.
    Horton, Perse & Ginsberg, William C. Martin, Miami, for appellee.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   PER CURIAM.

The City of Islandia, a political subdivision of the State of Florida, brings this appeal from a final judgment and an amended final judgment entered upon a complaint for interpleader brought by Metropolitan Dade County. The appellees are the owners of tracts of land in the undeveloped political subdivision. In its complaint, Metropolitan Dade County alleged that it was a “stakeholder” of trust funds and that the City of Islandia and the owners were each demanding payment to them of the trust funds.

This litigation was commenced on November 7, 1975, upon the filing by Dade County of its complaint for interpleader. The complaint sought to require the named defendants, among them the City of Islan-dia and the appellee class members to litigate between themselves to determine their respective rights to the joint City of Islan-dia-Dade County Trust Fund account as created by that certain Joint Agreement dated September, 1962, between Dade County and the City of Islandia.

Subsequently, the City of Islandia and many named defendants, including William C. Martin, filed answers and/or responses to the complaint for interpleader. The answer by Martin filed on his own behalf and as representative of and for Elliot M. Park and Judson S. Sayre and Aled Corporation, and all other persons similarly situated, contained certain class action allegations and sought permission to proceed in defense of the action as class members of a class action. After Islandia’s Motion for Determination of Class Action Allegations, the court entered an order allowing Martin to proceed as lead defendant in the class.

After discovery, on November 15, 1976, the City of Islandia filed its Motion for Summary Judgment accompanied by a Notice of Hearing scheduling the hearing for December 6, 1976.

On December 2, 1976, defendant class members filed their Cross-Motion for Summary Judgment, together with various affidavits in support thereof. The class members’ Cross-Motion for Summary Judgment was noticed for hearing on December 6, 1976. Immediately upon receipt of the class members’ Cross-Motion and supporting affidavits, the City of Islandia moved to strike the supporting affidavits as untimely. This motion was preceded by one day by the filing of Islandia’s Motion to Strike Claims of Certain Class Members.

Thereafter, the court entered an order denying Islandia’s Motion to Strike Affidavits and Motion to Strike Claims of Certain Class Members, and entered Final Judgment in favor of the defendant class members. The Final Judgment was amended on June 6, 1977. This appeal ensued.

In September, 1962, Dade County and the City of Islandia entered into a Joint Agreement which established a policy governing the purchase of submerged lands within the City of Islandia and within the official bulkhead line. The Joint Agreement further provided in relevant part as follows:

“1. That with respect to the sale and purchase of any submerged lands lying between the approved bulkhead line and any island or islands within the boundaries of the City of Islandia, the City and the County agree that as a condition precedent for the approval by the County and the City of any proposed sale of any submerged lands, the applicant must either submit for the approval of the City and the County detailed development plans showing the proposed use and development of such lands and the portions thereof to be reserved or allocated for public use, such as road rights of way, parks, beaches, recreational areas, school sites, or other public facilities, in order that the needs of the public in respect to such lands may reasonably conform and implement the private ownership and use to the fullest extent possible, subject to final approval of the Trustees of the Internal Improvement Fund; or in lieu of submission of such development plans, the applicant may, at his option, provided such application to purchase does not conflict with any development plans for said property by the County or the City, agree to pay into a trust fund to be jointly administered by the City of Islandia and Dade County an amount equal to fourteen (14%) percent of the purchase price of said submerged lands as set by the Trustees of the Internal Improvement Fund of the State of Florida, said trust fund to be expended only for the acquisition and maintenance of lands within the City of Islandia for public purposes, as approved jointly by the City, and Dade County.
“2. That all said trust funds shall.be deposited in a joint City-County Trust Fund in a bank in the City of Miami to be mutually agreed upon by the parties hereto. Such trust funds shall be administered jointly by the City and the County, and shall be expended only for the acquisition and maintenance of lands within the City of Islandia for public purposes, as approved jointly by the City and the County.”

Members of the class, rather than submit development plans, chose to pay the additional 14% of the purchase price of the submerged lands to be purchased. These additional monies were segregated in the subject joint trust fund. In consideration of the receipt of the additional 14% of the purchase price, Islandia and Dade County executed a Receipt and Recommendation by which they urged the Trustees of the Internal Improvement Fund of the State of Florida to approve each individual applicant’s request to purchase the submerged lands.

All such purchases were eventually approved by the Trustees of the Internal Improvement Fund.

In 1968, the United States Congress authorized the establishment of the Biscayne National Monument, at which time the United States Government began acquiring real estate holdings of the defendant class members. By January 1, 1976, all class members except Stanley C. Meyers, Continental Equities, Inc., George Stamos and Evelyn Stamos, and Stars, Inc., had sold all of their property in the City of Islandia to the federal government.

Appellant City’s answer to the complaint of interpleader alleged that it sought the trust funds to employ a land use planning expert to develop a master land use plan for the City of Islandia. Appellant maintains that this is a public use in connection with “the acquisition and maintenance of lands within the City of Islandia for public purposes.” Appellee urges that such a use is not contemplated by the trust and that, therefore, the City has not demonstrated a right to the funds.

Our review of the record convinces us that the summary final judgment was improperly entered. If we were to proceed, as the parties have proceeded here, upon the theory that the trial court was called upon to determine which party had the better claim to the trust fund, we would hold that there are genuine issues of material fact as to whether the City’s proposed use is within the terms of the trust agreement and whether the land owners were illegally required without consideration to deposit the monies which make up the trust fund.

We find that a more fundamental issue arises from the complaint for inter-pleader and the answer filed; that is, has the trust created been properly terminated? When a trust fund has been legally created, it may not be terminated at the pleasure of the trustee. See Clement v. Charlotte Hospital Association, Inc., 137 So.2d 615 (Fla. 2d DCA 1962). It is true that if the purposes for which the trust was created have been accomplished or have been so frustrated that the trust serves no lawful purpose, the trustee may petition for the dissolution of the trust. See the rule in Clement v. Charlotte Hospital Association, Inc., supra; and see Featherston v. Tompkins, 339 So.2d 306 (Fla. 3d DCA 1976).

The complaint of Metropolitan Dade County may be interpreted as a petition to dissolve the trust. But the record is devoid of any proof and finding of the court that the trust is no longer in lawful existence. It is entirely possible upon the pleadings in this case that neither the appellant nor the appellee is entitled to the trust funds.

Also, the complaint, through its prayer, is a complaint for interpleader. We question very seriously whether this is a proper vehicle for the County to pursue. In this regard, we would point to the discussion in 76 Am.Jur.2d Trusts § 568 (1975), where it is stated:

* * * * * *
“In a proper case, interpleader is available to a trustee, but there are many factors distinctive to the situation where an interpleader is filed by a trustee which may preclude relief. One of the primary reasons precluding a trustee from obtaining relief of this kind is that he is not in the particular case considered to be a mere disinterested stakeholder, as required by the general rules of interpleader. One of the conditions generally necessary in order to entitle a person to maintain a strict bill of interpleader as distinguished from a bill in the nature of interpleader is that the stakeholder must be impartial, entirely indifferent to conflicting claims, having and asserting in himself no interest in the subject matter in the controversy.”

The summary final judgment is reversed. Upon remand, the court is directed to make findings after trial of the cause concerning (1) the legality of the trust, and (2) whether the trust should be dissolved, and then to proceed to a determination of the respective rights of the parties, if the court finds that the trust must be dissolved.

Reversed and remanded with directions.


text:
    UNITED STATES FIDELITY AND GUARANTY COMPANY, a Maryland Corporation, Appellant, v. Vivian HARRIS, as personal representative of the Estate of Stanley Harris, Appellee.
    No. 77-1280.
    District Court of Appeal of Florida, Third District.
    Aug. 22, 1978.
    Rehearing Denied Sept. 20, 1978.
    Knight, Peters, Pickle, Niemoeller & Flynn, Jeanne Heyward, Miami, for appellant.
    Horton, Perse & Ginsberg and Edward A. Perse, Cohen & Kokus, Miami, for appellee.

      Before HAVERFIELD, C. J., and BARK-DULL and HUBBART, JJ.
   PER CURIAM.

Affirmed. Tucker v. Government Employees Insurance Co., 288 So.2d 238 (Fla. 1973); Wade v. Clower, 94 Fla. 817, 114 So. 548 (1927); Hartford Fire Insurance Co. v. Spreen, 343 So.2d 649, 652 (Fla. 3d DCA 1977); State Farm Mutual Automobile Insurance Co. v. Anderson, 332 So.2d 623 (Fla. 4th DCA 1976); Moore v. Connecticut General Life Insurance Co., 277 So.2d 839, 842 (Fla. 3d DCA 1973); Sellers v. Government Employees Insurance Co., 214 So.2d 879 (Fla. 1st DCA 1968). Cf. Marks v. Travelers Indemnity Co., 339 So.2d 1123 (Fla. 3d DCA 1976); Travelers Insurance Co. v. Pac, 337 So.2d 397 (Fla. 2d DCA 1976).