author: ERVIN, Judge.

text:
    CITY OF PUNTA GORDA, Florida, Petitioner, v. PUBLIC EMPLOYEES RELATIONS COMMISSION and District Council # 66, International Brotherhood of Painters and Allied Trades, Respondents.
    No. GG-193.
    District Court of Appeal of Florida, First District.
    April 25, 1978.
    Rehearing Denied May 23, 1978.

      Harrison C. Thompson, Jr., Thomas M. Gonzalez of Shackleford, Farrior, Stallings & Evans, Tampa, for petitioner.
    William E. Powers, and Bruce A. Lein-back, Tallahassee, for respondents.
   ERVIN, Judge.

The City petitions for review from a PERC order validating a union election held among city employees. We uphold the agency action.

In September, 1976, the City and District Council 66, International Brotherhood of Painters and Allied Trades, entered into a Certification upon Consent Election Agreement. The agreement provided that a secret ballot election would be held on October 8,1976, between the hours of 7:00 a. m. and 8:30 a. m. and 3:00 p. m. and 5:00 p. m. Ninety city employees were considered eligible to vote. Eighty-seven voted, 44 voting for the union and 43 against. As provided by PERC Rule 8H-3.28, the City filed objections before the Chairman of PERC. The objections were: (1) The hours of voting were too limited; (2) inflammatory statements made by the union business agent, Ed Prata, exceeded permissible bounds of pre-election campaigning; (3) a challenge was made by Prata to the City’s finance director to a debate before the employees, knowing the legal proscription against employer surveillance prevented management from attending; (4) the bargaining unit contained three employees who should have been excluded as confidential employees; (5) thirteen supervisors should have been excluded.

An investigation of the objections was conducted, resulting in the Chairman’s report dismissing all the objections filed by the City. The report made detailed findings of fact and conclusions of law. After the City’s request for the review, the Commission issued orders affirming the Chairman’s report and certifying District Council 66 as the exclusive bargaining agent for those persons described in the consent election agreement.

The City first argues the Commission failed to provide a hearing as required by Chapter 120 of the Administrative Procedure Act. We agree that a ruling upon a proper party’s objections to an election is one “in which the substantial interests of a party are determined by an agency” so that the hearing provisions of Section 120.57, Florida Statutes (Supp.1976), apply. The prefatory language in that section makes the final, evidentiary hearing of subsection (1) applicable whenever material facts are in dispute “unless waived by all parties.” We find waiver occurred here since neither the City nor the union requested a formal hearing on the objections. We do not interpret Chapter 120 as requiring an agency to convene an unrequested formal hearing whenever it perceives the possibility of a disputed issue of material fact. Just as a litigant must request trial by jury, so must a substantially affected person affirmatively seek a 120.57(1) hearing.

The question then is whether the Commission complied with Section 120.-57(2), pertaining to informal proceedings and applicable when 120.57(1) has not been utilized. As we held in General Development Corp. v. Division of State Planning, 353 So.2d 1199, 1209-1210 (Fla. 1st DCA 1977), Section 120.57(2) requires notice, opportunity and a final order complying with 120.59. The Chairman’s report, later reviewed by the full Commission, was notice of agency action, and fully complied with the requirements of 120.57(2)(a)l. The report however, dismissing the objections was not final agency action, which occurred only when the Commission reviewed it and entered its final order. United Faculty of Fla. v. Branson, 350 So.2d 489, 493 (Fla. 1st DCA 1977).

The City had opportunity to be heard, though no hearing was held. Section 120.57(2) contemplates that a proceeding be held — not necessarily a hearing. The opportunity requirement of 120.57(2)(a)2 is satisfied by a written statement challenging the grounds for agency action. The City was furnished such opportunity by filing its request for review before the full Commission. The request completely challenged the Chairman’s report, and was duly considered by the Commission. As a result there was no departure by the Commission from the requirements of 120.57(2).

The City’s objections to the election concern (a) the limited voting hours and the inclusion of employees not properly within any bargaining unit, and (b) prejudicial pre-election campaign tactics by union agent Prata. As to the former, the City and union agreed in writing before the election on the hours and the eligible voters. PERC properly relied on National Labor Relations Board v. Tower Co., 329 U.S. 324, 67 S.Ct. 324, 91 L.Ed. 322 (1946), which refused to allow a post-election challenge to voter eligibility where due notice of the manner and conduct of the election was given to all. We again sustain the Commission’s conclusions on the facts presented.

As to the unfair campaign tactic charges, PERC has adopted the test found in Hollywood Ceramics Co., 140 NLRB 221, 224, 51 LRRM 1600 (1962), which allows the setting aside of union elections only when there has been a substantial departure from the truth, at a time which prevents the other party from making an effective reply, so that the misrepresentation may reasonably be expected to have a significant, impact on the election. We have previously recognized the discretion which should be accorded expert tribunals in their particular areas of special competence and expertise. Pasco Cty. Sch. Bd. v. Florida Public Emp. Rel. Comm., 353 So.2d 108, 116 (Fla. 1st DCA 1977).

Accordingly, we find no error in the Commission’s order. The petition for review is DENIED.

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


source: Caselaw Access Project

author: DAUKSCH, Judge.

license: Public Domain

text:
    THOMAS A. EDISON COLLEGE, INC., a/k/a Thomas A. Edison College, a/k/a Thomas A. Edison College Episcopal Church of Mind, a/k/a Thomas A. Edison College, the Order of St. John of Jerusalem, Inc. and George C. Lyon, Appellants, v. STATE BOARD OF INDEPENDENT COLLEGES AND UNIVERSITIES, Appellee.
    No. 77-1271.
    District Court of Appeal of Florida, Fourth District.
    April 25, 1978.
    Gary L. Vonhof of Johnson, Ackerman & Bakst, P.A., West Palm Beach, for appellants.
    Winifred L. Wentworth, General Counsel, and John D. Carlson, Tallahassee, for appel-lee.
   DAUKSCH, Judge.

By previous order this court consolidated the appeals filed under numbers 76-572 and 76-1550 and gave them a new number designation 77-1271. Appeal number 76-572 is dismissed and appeal number 76-1550 is affirmed.

AFFIRMED.

DOWNEY and ANSTEAD, JJ., concur.


author: CARROLL, Associate Judge.

text:
    SPRING LOCK SCAFFOLDING RENTAL EQUIPMENT COMPANY and United National Insurance Company, Appellants, v. CHARLES POE MASONRY, INC., et al., Appellees.
    Nos. 77-548, 77-549.
    District Court of Appeal of Florida, Third District.
    April 25, 1978.
    Rehearing Denied May 12, 1978.
    Virgin, Whittle & Popper and Gary E. Garbis, Podhurst, Orseck & Parks and Joel D. Eaton, Miami, for appellants.
    High, Stack, Davis & Lazenby and Alan R. Dakan, Horton, Perse & Ginsberg, P. J. Carroll & Associates, Miami, for appellees.
    Before HENDRY and HUBBART, JJ., and CHARLES CARROLL (Ret.) Associate Judge.
   CARROLL, Associate Judge.

The defendants, Spring Lock Scaffolding Rental Equipment Company (Spring Lock) and its insurer, United National Insurance Company, appeal from a summary judgment entered in favor of the appellees as the defendants to a third-party complaint filed against them by the defendant, Spring Lock.

One Arthur Lott was injured when he fell from a scaffold on a construction job. Joined by his wife, he filed action for damages for personal injuries against Spring Lock and its insurer. The right of Lott to so proceed notwithstanding his entitlement to workmen’s compensation benefits was established by this court on an earlier appeal in this case (311 So.2d 759).

The scaffold, manufactured by Spring Lock, was leased by Spring Lock to Charles Poe Masonry, Inc. (Poe) which assembled and used it, as a sub-contractor on a construction project on which Miller & Solomon Construction Co. was the general contractor. Lott was an employee of the general contractor. Emil J. Gould and Estelle Gould were the property owners.

In Lott’s action against the manufacturer, Spring Lock, recovery was sought on three grounds: negligence, breach of implied warranty and strict liability.

Spring Lock filed a third-party complaint for indemnity against its lessee, Poe (claiming indemnity by contract and by common law) and against the general contractor and the property owners (claiming common law indemnity). Lott and Spring Lock entered into a Mary Carter agreement, fixing a $300,000.00 liability limit. See: Booth v. Mary Carter Co., 202 So.2d 8 (Fla.2d DCA 1967); Maule Industries v. Rountree, 284 So.2d 389 (Fla.1973).

On motion of the third-party defendants, the court granted them summary judgment. Alternatively the court held that if Spring Lock ultimately should be held to be entitled to indemnity, its recovery would be limited to the Mary Carter agreement liability limit. Spring Lock appealed. [The summary judgment in favor of the land owners is not involved on this appeal.].

The trial court correctly held Spring Lock was not entitled to common law indemnity against the third-party defendants. If Spring Lock was guilty of negligence in the manufacture of the scaffold, as charged by plaintiff, its liability therefor was for its active negligence, precluding it from indemnity. Stuart v. Hertz Corporation, 351 So.2d 703 (Fla.1977). The same applies if liability should be established against Spring Lock for breach of warranty of fitness for the intended use of the scaffold or on the ground of strict liability. West v. Caterpillar Tractor Co., Inc., 336 So.2d 80 (Fla.1976).

By a provision in the written lease of the scaffold Poe undertook to maintain and use the equipment in a safe and proper manner, and to assume all responsibility for claims arising out of the erection, maintenance, use or possession of the equipment, and agreed to hold Spring Lock harmless from all such claims. The lease agreement did not specify or disclose an intention to indemnify Spring Lock from consequences arising solely from its own negligence. See: University Plaza Shopping Center, Inc. v. Stewart, 272 So.2d 507 (Fla.1973). Therefore, if it should be found on trial that negligence of Spring Lock in the manufacture of the scaffold was the sole proximate cause of plaintiff’s injury, the hold harmless provision of the lease would not furnish basis for contract contribution against Poe.

However, if upon trial it should be found and held that the plaintiff’s injury was proximately caused both by negligence of Spring Lock in the manufacture and by negligence of Poe in the assembly and use thereof, then on authority of Leonard L. Farber Co., Inc. v. Jaksch, 335 So.2d 847 (Fla. 4th DCA 1976), for their joint liability resulting from the separate negligence of both the lessee operator and lessor manufacturer, the latter would be entitled to indemnity from the former, not on the basis of common law, but on the indemnity contract.

Accordingly, the summary judgment is affirmed to the extent it represents a holding that Spring Lock is not entitled to common law indemnity against any of the third-party defendants. The summary judgment in favor of Poe is reversed in part because of a potential right of contract indemnity against Poe, dependent on a trial outcome contingency as outlined above. The trial court’s further ruling limiting indemnity, where present, to the Mary Carter agreement limit is affirmed.

Affirmed in part and reversed in part, and remanded for further proceedings.


author: PER CURIAM.

text:
    FLAMINGO BLUEPRINT, INC., Petitioner, v. MONUMENTAL PROPERTIES OF FLORIDA, INC., Respondent.
    No. 77-1213.
    District Court of Appeal of Florida, Third District.
    April 25, 1978.
    Sepler & Hernandez, for petitioner.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and David M. Rogero, Miami, for respondent.
    Before KEHOE, J., and BOYD, JOSEPH A., Associate Judge and CHARLES CARROLL, (Ret.), Associate Judge.
   PER CURIAM.

By petition for writ of certiorari there is presented for review a judgment of the circuit court of Dade County affirming a decision of the county court adverse to the defendant in an action for removal of the defendant from certain leased premises.

For five years prior to September 1,1976 the defendant, Flamingo Blueprint, Inc., occupied certain store premises in a shopping mall under a written lease from the lessor, the respondent, Monumental Properties of Florida, Inc.

On September 8, 1976 the lessor filed an action in the county court for removal of the tenant as holding over without a lease. The defendant-lessee answered, and in a counterclaim set forth, as an equitable defense against the ouster, that it was in possession under a new lease, alleging that on April 15,1976, some four months prior to the expiration of its original lease, the lessor prepared a similar written lease for a term of three years, to commence September 1, 1976, and submitted it to the lessee for signature (copy of which was attached to the counterclaim); that lessee signed the lease and returned it to the lessor for signature; that the lessor executed the lease; that thereafter and prior to September 1, 1976, lessor informed lessee the lease was made; that some time before the time the new lease was to become effective the lessor sought to have another lessee surrender to lessor a portion of the premises held by that lessee [the latter lessee was a separate corporation in which the defendant had a financial interest]; that when said other lessee refused to surrender a portion of its leased premises, the lessor, a few days before September 1,1976, informed defendant that the new lease to defendant would not be granted, although prior thereto, as mentioned above, lessor had informed defendant that the new three-year lease was made and would be in effect. Defendant alleged that on September 1, 1976 it made a rental payment as called for under the new lease, and that lessor accepted and retained such rental payment. The defendant sought a judgment holding that the new lease is effective and sought to enjoin action by lessor in derogation of said lease, and further sought compensatory damages in excess of $5,000.00 for alleged breach of contract, and punitive damages.

The plaintiff-lessor answered the counterclaim, averring as defenses thereto that it had not executed the new three-year lease, and that the matter of surrender of part of the property leased by said separate corporate entity had been a condition precedent to the granting of such new lease to the defendant.

Defendant moved for transfer of the action to the circuit court, based on its claim for damages in an amount in excess of the jurisdiction of the county court. Plaintiff moved to dismiss the counterclaim for insufficiency. The court denied transfer, granted plaintiff’s motion and struck the counterclaim, and without motion for summary judgment or trial summarily granted to the plaintiff a judgment for possession of the leased premises. It appears, however, that pending this litigation the lessee has continued in possession.

Defendant appealed to the circuit court, which affirmed without opinion. The defendant-lessee then filed this petition for certiorari.

The rights of the parties depend on determination of the issue, squarely raised on the pleadings, as to whether there was an executed lease. If, as alleged, some time prior to the commencement of the term of the new lease it was executed by the parties, and the lessor holding the document so informed the lessee, who was in possession and so continued at and after the commencement of the term, the lease contract would be effective without necessity of delivery. Therefore, the lessor could not deprive the lessee of its right to possession under said lease by refusing at the eleventh hour to supply an executed copy to the lessee. See: Tucker v. Gray, 82 Fla. 351, 90 So. 158 (1921); 49 Am.Jur., Statute of Frauds, § 391; Anno. 12 A.L.R.2d 508, 511, § 3.

Affirmance by the circuit court of the trial court’s denial of the transfer, in the circumstances of this case, was not a departure from essential requirements of law. The damage claim was patently improper. If there was no valid lease, there was no basis to claim damages. An oral agreement for a three-year lease would not be enforceable. If there was a lease, the lessee was entitled to its benefit, and lessee has remained in possession in the interval. State v. Hendry, 159 Fla. 210, 31 So.2d 254 (1947); Platt v. Kenco Chemical Co., 132 So.2d 27 (Fla. 3d DCA 1961); City of Miami v. Jafra Steel Corp., 184 So.2d 178 (Fla.1966); Davis v. Flato, 210 So.2d 16 (Fla. 4th DCA 1968).

We hold that in affirming the judgment which struck the counterclaim and summarily granted judgment to the plaintiff the circuit court departed from essential requirements of law. The counterclaim set up an equitable defense based on alleged existence of the new three-year lease. There was a triable issue as to the existence of the lease, and plaintiff’s pleading raised an issue as to an alleged condition precedent. The defense in the counterclaim is to be considered for purposes of summary disposition of the cause. Remington v. L. P. Gunson & Company, 125 So.2d 885 (Fla. 2d DCA 1961).

For the reasons stated, certiorari is granted and the cause is remanded to the circuit court with direction to further remand the cause to the county court for further proceedings not inconsistent herewith.


author: KEHOE, Judge.

text:
    The TRAVELERS INSURANCE COMPANY, a Foreign Corporation, Appellant, v. Columbus LEE and Bessie Lee, his wife, Appellees.
    No. 77-1705.
    District Court of Appeal of Florida, Third District.
    April 25, 1978.
    Alfred D. Bieley, Miami, for appellant.
    Wolf son, Appel & Maram and Anthony J. Brown, Miami, for appellees.
    Before KEHOE, J., and BOYD, JOSEPH A., Jr., and CHARLES CARROLL (Ret.), Associate Judges.
   KEHOE, Judge.

Appellant, plaintiff below, brings this interlocutory appeal from orders of the trial court dated July 19 and 22, 1977, denying its motion to enjoin arbitration proceedings. For the reasons set forth below, we reverse.

Appellee Columbus Lee purchased an automobile insurance policy from appellant. Subsequently appellee Columbus Lee, while operating an automobile insured under the policy, was involved in an automobile accident with Jimmy L. Franklin. As a result of the accident, appellee Columbus Lee sustained personal injuries and collected personal injury protection benefits from appellant. Thereafter, appellee Columbus Lee, along with his wife, alleged that Jimmy L. Franklin and his wife, Shirley Franklin, the owner of the vehicle involved, were uninsured and invoked the uninsured motorists provision of the policy with appellant. Subsequently, pursuant to the policy provisions, appellant states that it sought to obtain appellees’ sworn statements and other information in regard to their claim. Apparently, these attempts were met with considerable resistance. During this time, an arbitration panel was selected; thereafter, on May 11, 1977, the panel conducted a hearing. At this hearing, appellant’s request for a continuance was refused. Appellant then participated in the hearing which was not concluded, but continued to August 11, 1977. After the hearing appellant filed a complaint for declaratory relief seeking, among other things, to ascertain the question of whether appellees were covered under the policy for their claim for uninsured motorists benefits. Appellant also filed a motion to enjoin the arbitration proceedings set for August 11, 1977. From the trial court’s orders denying this motion, appellant brings this interlocutory appeal.

Appellant’s basic point on appeal is that the trial court erred by denying its motion to enjoin the arbitration proceedings because coverage was an issue in the matter and this question was a judicial matter which should be determined by the courts.

In Aetna Cas. & Sur. Co. v. Goldman, 346 So.2d 111, 112 (Fla.3d DCA 1977), we stated as follows:

“This court [3d DCA], in Cruger v. Allstate Insurance Company, 162 So.2d 690 (Fla.3rd D.C.A. 1964), clearly outlined that in this State (notwithstanding any provisions pertaining to arbitration in an insurance contract) the question of coverage was a judicial matter to be determined in the courts. This case has been followed in Zeagler v. Commercial Union Insurance Company of New York, 166 So.2d 616 (Fla.3rd D.C.A. 1964); Jones v. New Amsterdam Casualty Company, 213 So.2d [502] (Fla.3rd D.C.A. 1968); Perez v. State Automobile Insurance Association, 270 So.2d 377 (Fla.3rd D.C.A. 1972); and Government Employees Insurance Company v. Mirth, 333 So.2d 545 (Fla.3rd D.C.A. 1976).”

Although appellant’s complaint for declaratory relief sought a resolution of matters in addition to the question of coverage, we believe that the complaint created a. bona fide issue over the question of coverage under the policy. Based on the authorities set forth above, a question of coverage is a proper one for declaratory relief and should be made by the courts. See also Tavares v. Allstate Ins. Co., 342 So.2d 551 (Fla.3d DCA 1977). Therefore, in the instant case, the trial court should have granted appellant’s motion to enjoin the arbitration proceedings. See generally Section 682.03(4), Florida Statutes (1975). Further, under the circumstances of this case, although appellant participated in the arbitration process through one hearing which was continued, we do not find that this amounted to any waiver or foreclosure of its right to bring an action for declaratory relief to determine the question of coverage under the policy. In the light of this determination, it is unnecessary for us to consider the other aspects of appellant’s contentions on appeal. Accordingly, the orders appealed are reversed and the cause is remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.


text:
    CHINETTI GARTHWAITE IMPORTS, INC., Appellant, v. Mark SADKIN, Appellee.
    No. 77-2369.
    District Court of Appeal of Florida, Third District.
    April 25, 1978.
    Tew & Mason, Miami, for appellant.
    Kenneth P. Wurtenberger and Ira M. Krauss, Lauderhill, for appellee.
    Before HAVERFIELD, C. J., PEARSON, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The defendant, Chinetti Garthwaite Imports, Inc. (Chinetti), filed this interlocutory appeal from an order denying its motion to dismiss.

In this action, the appellee Mark Sadkin sued Ferrari, alleged to be an Italian corporation, Orange Motors of Miami, Inc. (Orange Motors), and Chinetti. Sadkin sought damages for breach of warranty of fitness and merchantability of a Ferrari automobile which he had purchased from Orange Motors for a price of $16,150.00, and which it was alleged had material mechanic defects which the seller had been unable to eliminate and which could not be eliminated. Ferrari was the manufacturer. Chi-netti was the authorized Ferrari distributor for the eastern part of the United States. Orange Motors, of Dade County, was a Ferrari dealer, authorized and acting under a franchise agreement granted by Chinetti.

Chinetti is a corporation formed under the laws of the State of Delaware, having its principal office and place of business in Pennsylvania. Substituted service was made on Chinetti in the manner prescribed in Section 48.081, Florida Statutes (1975), on the basis of it being a foreign corporation engaged ■ in business in Florida. See Sections 48.181, 48.193 and 48.194, Florida Statutes (1975).

Chinetti moved to dismiss, stating as grounds that Chinetti had insufficient contacts in Florida to subject it to jurisdiction, and that there was insufficient service of process. After considering evidence submitted by the parties relevant to the jurisdiction question, the court entered the order appealed from which, without statement of facts or findings, ordered that Chinetti’s motion to dismiss be denied, and setting the time for answer by said defendant.

The appellant contends that the trial court erred in denying its motion to dismiss, on the ground that it was not subject to service under Section 48.181(1) and (2), Florida Statutes (1975). Having reviewed the franchise agreement executed by the parties herein, and having considered the deposition of the president of Orange Motors setting forth the actions of the parties, both prior to and subsequent to execution of the franchise agreement, we find there was a sufficient showing to support the ruling, inherent in the order, that the appellant was amenable to service of process under the aforementioned statutes.

Affirmed. '


author: OTT, Judge.

text:
    Barbara Jean YONTZ, Appellant, v. Alvin Peter YORKUNAS, Appellee.
    No. 77-1403.
    District Court of Appeal of Florida, Second District.
    April 26, 1978.
    J. Michael Shea, of Duran, Shea & Cant-era, Tampa, for appellant.
    No appearance for appellee.
   OTT, Judge.

The appellant/wife appeals that portion of the final judgment of dissolution of marriage ordering appellee/husband to pay $25.00 per week child support. We conclude that the trial court abused its discretion by awarding this specific amount without sufficient evidence upon which to base its determination and we reverse.

The parties entered into a “separation and property settlement agreement” in contemplation of divorce and the wife filed a copy of this agreement along with her petition for dissolution. The agreement provided that the parties had and wished to maintain “joint custody” of the minor child and that the wife was not presently seeking an award of child support.

At a hearing before a special master, the parties agreed that the child was living primarily with the wife and she should have custody, but reaffirmed their agreement that the wife was not presently seeking child support. Accordingly, the special master’s report recommended that the wife be awarded custody of the child and that no child support be awarded at this time but that the trial court retain jurisdiction over the matter of child support.

At the final hearing, the trial judge refused to enter a final judgment without specifying some minimum obligation of the husband for child support. Upon ascertaining that the husband was then paying $23.00 per week for the child’s nursery school and that the parties “split the costs of the child, of everything,” ordered the final judgment prepared requiring the husband to pay $25.00 per week for child support. This order was entered without, so far as the record shows, sufficient evidence of the husband’s ability to pay and without any evidence of the child’s needs or the wife’s ability to contribute to the support of the child.

On the basis of the record before this court, it would appear that the husband was contributing more than $25.00 per week to the support of the child at the time of the dissolution hearing, since he and the wife were splitting all the child’s expenses. Nursery school alone cost $23.00 per week. If that is, in fact, the case, then the trial judge has lifted any responsibility on the part of the husband to pay more than $25.00, per week, although the husband had by virtue of the parties’ agreement agreed to assume that responsibility to the extent that half the cost of supporting the child exceeded $25.00 per week. While the trial court has broad discretion to enter any award supported by the evidence, the trial judge below abused his discretion by making an award without sufficient evidence upon which to base his determination.

That portion of the final judgment ordering the husband to pay $25.00 per week for child support is vacated and the cause remanded to the trial court for further proceedings not inconsistent herewith. The final judgment is affirmed in all other respects.

RYDER and DANAHY, JJ., concur.

      . As of this writing, appellant/wife had not made payment for the lower court clerk’s fees in this appeal. On remand, the trial court may, of course, take appropriate steps to see that these fees are paid.


author: LETTS, Judge.

text:
    Alvin David BROWN, a/k/a Calvin Carter, Anthony Jerome Collins, Herbert Marlin Johnson, and Sam Williams a/k/a Paul Adams, Appellants, v. STATE of Florida, Appellee.
    Nos. 76-2501, 76-2522, 76-2550 and 76-2582.
    District Court of Appeal of Florida, Fourth District.
    May 2, 1978.
    Richard L. Jorandby, Public Defender, Frank B. Kessler, Asst. Public Defender and Joseph R. Atterbury, Legal Intern, West Palm Beach, for appellants.
    Robert L. Shevin, Atty. Gen., Tallahassee and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   LETTS, Judge.

This case involves a conviction obtained against 4 co-defendants for robbery with a firearm. All 4 defendants were sentenced to a mandatory 3 year term under Fla.Stat. § 775.087(2) (1975) without the benefit of a presentence investigation. We reverse, finding merit in two of the four points on appeal.

The facts reveal that the State could only identify the appellant, Williams,- as being the actual possessor of one of two guns involved in this robbery. Nonetheless, all three of the remaining defendants were, like Williams, sentenced to the mandatory 3 years, minimum jail sentence, under § 775.-087(2) Fla.Stat. (1975). It was error to do so under this statute.

The State argues that the jury instruction, and sentence, was proper under § 777.-011 Fla.Stat. (1975), which permits any aider or abettor to be treated as, and punished as, a principal in the first degree. We might well have agreed with this contention on the date of the convictions, however, the argument has since been rejected by our Supreme Court which recently held that vicarious possession will not suffice and that actual possession must be the test to invoke the provisions of § 775.087(2). Earnest v. State, 351 So.2d 957 (Fla.1977). We agree that it is somewhat doubtful if the foregoing is procedurally preserved for our review; however, in the light of our decision on the ensuing point, we remand with directions to the trial court to proceed in accordance with the foregoing as to all defendants, except Williams.

Turning now to the trial judge’s ruling that a presentence investigation is not permissible under the same § 775.087(2) because of the following wording:

“Notwithstanding the provisions of § 948.01, adjudication of guilt or IMPOSITION OF SENTENCE shall not be suspended, DEFERRED . prior to serving such minimum sentence.” (emphasis supplied.)

We find this to be in error also. Once again the question has since been resolved opposite to the trial judge’s ruling in this case. Thus in our very recent holding in Thomas v. State, Fla.App., 356 So.2d 846, opinion filed March 14, 1978, we held that the particular wording of the statute does not preclude a presentence investigation,

THIS CAUSE IS REVERSED AND REMANDED FOR PROCEEDINGS IN ACCORDANCE HEREWITH.

ANSTEAD, J., and MINER, Jr., Associate J., concur.


text:
    GORY ASSOCIATED INDUSTRIES, INC., Appellant, v. JUPITER ROOFING & SHEET METAL, INC., a Florida Corporation, Frank Masiello and Eve M. Masiello, jointly and severally, Appellees.
    No. 76-2513.
    District Court of Appeal of Florida, Fourth District.
    May 2, 1978.

      Larry A. Klein, West Palm Beach, and Alan J. Pollock, Deerfield Beach, for appellant.
    James McC. Wearn of Wearn & Fulton, West Palm Beach, for appellee, Jupiter Roofing.
    Luther M. Taylor of Ryan & Taylor, North Palm Beach, for appellees Masiello.
   LETTS, Judge.

This appeal is from a judgment in favor of a homeowner, supposedly awarding, as damages, the sum necessary to replace a defective roof installation. We reverse in part and remand.

The homeowner, by profession himself an architect, here sought to build a house, acting as his own general contractor. In the process he engaged a roofing company to furnish a. roof for $7,070 using a certain type of tile, which tile in turn, was to be supplied to the roofing company by the appellant tile manufacturer for $1,883. Apparently, the original tile ordered was unavailable and a substitute used. There is conflict in the evidence as to whether the homeowner/architect approved the substitute and it is also disputed as to whether the substitute tile was, in fact, defective. A nonjury trial was held and a judgment resulted, against the tile manufacturer, in favor of the homeowner for $7,000 and also in favor of the cross claimant roofing company for its $7,070 contract price. There was undisputed evidence that the removal of the alleged defective roof and a replacement thereof would cost $11,250.

In the light of our ruling, it is unimportant to resolve whether or not the homeowner/architect approved the substitute tile. However, in passing we would note that he certainly ratified the choice by personally inspecting the tile and observing its day after day installation, over a protracted period.

In our opinion, there is sufficient evidence in the record to support a conclusion by the trial judge that the roof was defective and in need of replacement, because of fading, discoloration and the appearance of “efflorescence.” This being so, we cannot find his decision to be an abuse of discretion, particularly since he went to view the roof for himself. It is true that the trial judge, in his final judgment for the homeowner/architect, makes no mention of which count or counts in the counterclaim he based his decision on. However, the award cannot be for the repair of leaks, because there is nothing in the record to support an award of $7,000 to repair them. Nor can it be for reimbursement for the $7,070 contract price of the roof, not only because the sum of $7,000 does not match said price, but also because the homeowner/architect has yet to pay any sums towards the construction of the roof, so he cannot expect reimbursement. Accordingly, the award must be directed towards the cost of replacement. This being so, the correct figure is not $7,000, but $11,250, less, however, the $7,070 which the homeowner/architect was supposed to pay for a satisfactory roof. This subtraction of $7,070 is necessary because the final judgment has also directed that this latter sum be paid to the roofing company thereby satisfying the homeowner’s obligation as to it.

The appellant also argues that the award of damages, in this case, should not be for replacement and must instead be measured in terms of the diminution of the value of the house, because of the discolored tile, vis-a-vis its value, if the roof were satisfactory. To this end, appellant cites the case of Edgar v. Hosea, 210 So.2d 238 (Fla. 3rd DCA 1968). However, that same case specifically recognized that there is authority for the proposition that the measure of damages can be the amount necessary to make the building conform to the specifications as ordered, especially if that conformance does not “. . . involve unreasonable destruction of the work done . and the cost thereof would not be grossly disproportionate to the results to be obtained.” Edgar v. Hosea, supra, (at p. 234) [see also Ray v. Dock and Marine Construction, 183 So.2d 237 (Fla. 3rd DCA 1966)] There is nothing in the record to reflect that the $11,250 required to replace the roof is grossly disproportionate to the value of the entire house. Thus we cannot say that the results to be obtained involve unreasonable destruction of work done disproportionate to the results to be obtained.

We would comment that we are sympathetic to a replacement of defective work. If a proud householder, who plans to live out his days in the home of his dreams, orders a new roof of red barrel tile and the roofer instead installs a purple one, money damages for the reduced value of his house may not be enough to offset the strident offense to aesthetic sensibilities, continuing over the life of the roof.

Accordingly, this cause is reversed and remanded to the trial judge for the entry of an appropriate judgment which shall amend paragraph 2 thereof so as to grant the counterclaim in favor of the homeowner/architect for $4,180 instead of $7,000.

The remainder of said judgment, specifically paragraph 1 and paragraphs 3 through 6, is affirmed.

REVERSED AND REMANDED IN ACCORDANCE HEREWITH.

ANSTEAD, J., and MINER, Jr., Associate Judge, concur.


text:
    George A. REFIOR, Appellant, v. John J. MATUSZCAK and Travelers Insurance Company, Appellees.
    No. 77-141.
    District Court of Appeal of Florida, Fourth District.
    May 2, 1978.

      Joseph R. Moss, Cocoa, for appellant.
    James E. Glatt, Jr., and Janis M. Halker, of Gurney, Gurney & Handley, P. A., Orlando, for appellees.
   PER CURIAM.

This appeal is from a final summary judgment holding that the defendant below was entitled to immunity from a tort suit under the Florida Automobile Reparations Reform Act because the plaintiff, as a matter of law, did not sustain a claim of a “permanent injury within reasonable medical probability.”

Under the Florida No-Fault Act in effect at the time of the accident (1972), the plaintiff could only maintain his action if he had sustained medical expenses in excess of $1,000 or sustained a “permanent injury within reasonable medical probability.” Fla.Stat. 627.737. It is acknowledged that the medical did not exceed $1,000.

In support of his motion the defendant submitted the affidavit of Dr. Glen Mussel-man which stated that the plaintiff did not sustain any permanent injury. The plaintiff then submitted his own counter-affidavit stating:

“That I believe that I have suffered injuries from the accident . . . which continue to cause me pain and which I believe are permanent in nature.”

While plaintiff’s complaint alleges that his injuries “are either permanent or continuing in nature,” it does not allege his injuries are permanent within a reasonable medical probability. In his sworn answers to interrogatories plaintiff stated he knew of no physicians or other medical experts who can testify that his injuries are permanent or who have any opinion whatever concerning any fact in the case. Plaintiff has not seen a doctor on account of injuries incurred in the accident since February 9, 1973. On deposition, plaintiff stated he does not remember asking any of the doctors who treated him whether his injuries were permanent and that no physician has ever told him his injuries are permanent. There is no issue that there is no medical evidence of permanent injury. Thus, assuming plaintiff continues to have pain, but has no medical evidence of permanency, no jury issue exists under the requirements of Fla.Stat. 627.737.

This court is aware that Gallub v. Del Vecchio, 301 So.2d 785 (Fla.3d DCA 1974) and Salvador v. Munoz, 193 So.2d 442 (Fla.3d DCA 1966), are authority for the fact that a plaintiff’s medically uncorroborated testimony on the issue of permanency of an injury is sufficient to charge the jury on that issue. However, those cases did not involve the “no-fault act” and this act specifically requires that there be a “permanent injury within reasonable medical probability.” The plaintiff’s affidavit certainly cannot be deemed to speak in terms of “reasonable medical probability.” Therefore, the trial court properly ruled that there was no genuine issue of material fact.

AFFIRMED.

CROSS and ANSTEAD, JJ., and CRAWFORD, GRADY L., (Retired), Associate Judge, concur.


text:
    Leon WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 77-195.
    District Court of Appeal of Florida, Fourth District.
    May 2, 1978.

      Richard L. Jorandby, Public Defender, and Frank B. Kessler, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Benedict P. Kuehne, Asst. Atty. Gen., for appellee.
   PER CURIAM.

AFFIRMED on authority of State v. Clarke, 242 So.2d 791 (Fla. 4th DCA 1970).

DOWNEY, C. J., and CROSS and DAUKSCH, JJ., concur.


text:
    CITY OF CORAL SPRINGS, Florida, a Municipal Corporation, Appellant, v. FLORIDA NATIONAL PROPERTIES, INC. a Florida Corporation, Appellee.
    No. 77-303.
    District Court of Appeal of Florida, Fourth District.
    May 2, 1978.
    Rehearing Denied June 9, 1978.
    Paul J. McDonough, Coral Springs, for appellant.
    H. C. Feige of Patterson, Maloney, Blyler & Feige, Fort Lauderdale, for appellee.
   PER CURIAM.

After a review of the record and the arguments of the parties this court is of the view that the trial court was correct in ruling that the ordinance enacted by the appellant, City of Coral Springs, constituted an attempt to levy an unauthorized tax and was therefore invalid. Accordingly, the judgment of the trial court is affirmed.

DOWNEY, C. J., and ANSTEAD, and LETTS, JJ., concur.


text:
    Hermon Lee PARTON, Appellant, v. STATE of Florida, Appellee.
    No. 77-503.
    District Court of Appeal of Florida, Fourth District.
    May 2, 1978.
    Richard L. Jorandby, Public Defender, Frank B. Kessler, Asst. Public Defender, and William H. Larkins, Legal Intern, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED on the authority of Jones v. State, 358 So.2d 37 (Fla. 4 DCA Case No. 77-911, Opinion filed April 4, 1978).

DOWNEY, C. J., and DAUKSCH and LETTS, JJ., concur.


text:
    Ralph ROBERSON, Appellant, v. STATE of Florida, Appellee.
    No. 77-639.
    District Court of Appeal of Florida, Fourth District.
    May 2, 1978.

      Richard L. Jorandby, Public Defender, and Allen J. De Weese, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Harry M. Hipler, Asst. Atty. Gen., West Palm Beach, for appellee.
   LETTS, Judge.

This appeal stems from a hearing at which the defendant’s probation was revoked, the judge correctly stating that he was adjudging the defendant guilty of breaking and entering with intent to commit a misdemeanor as per the original charge to which he had pled nolo conten-dere. However, we assume, through error, the ensuing written Judgment and Sentence revoked his probation and adjudged him guilty of breaking and entering with intent to commit a felony. This was error.

It has been established that “one cannot plead guilty to one offense and be adjudged guilty and sentenced to another” Perkins v. Mayo, 92 So.2d 641, 643 (Fla.1957).

We point to the following colloquy at the probation hearing:

THE CLERK: Adjudication has been withheld until now.
THE COURT: All right. Ralph, I am going to find you guilty of violation of the terms and conditions of your probation, revoke your probation, adjudge you to be guilty of breaking and entering a dwelling house with intent to commit a felony. Is that what he pled guilty to?
MR. SMITH [State’s Attorney]: Misdemeanor.
THE CLERK: To commit a misdemean- or, petty larceny.
THE COURT: With intent to commit a misdemeanor, to-wit: Petty larceny.
Do you have anything to say why sentence should not be imposed?

There can be no doubt from the above that a disparity exists between this record and the subsequent judgment. Accordingly, under the authority of Walt v. State, 323 So.2d 621 (Fla. 1st DCA 1975) we remand this case for the entry of a proper judgment. We agree with the Second District that courts are authorized to correct clerical errors within, or beyond the term. Boggs v. Wainwright, 223 So.2d 316 (Fla.1969). Such error does not require reversal.

REMANDED IN ACCORDANCE HEREWITH.

DOWNEY, C. J., and ANSTEAD, J., concur.


text:
    Bruce William HAMPTON, Appellant, v. STATE of Florida, Appellee.
    No. 77-859.
    District Court of Appeal of Florida, Fourth District.
    May 2, 1978.
    Richard L. Jorandby, Public Defender, and Joseph S. Karp, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Benedict P. Kuehne, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

The judgment of conviction appealed from is affirmed, but the cause is remanded to the trial court with instructions to allow appellant credit for time served in jail as a condition of probation. Freeman v. State, 340 So.2d 1251 (Fla.2d DCA 1976).

AFFIRMED AND REMANDED with instructions.

DOWNEY, C. J, and DAUKSCH and LETTS, JJ., concur.


author: DOWNEY, Chief Judge.

text:
    ROYAL PAINTING COMPANY, INC. a Florida Corporation, Appellant, v. EAGLE-PICHER INDUSTRIES, INC., a Foreign Corporation, d/b/a Atlantic Paints and Plas-Chem Coatings, Appellee.
    No. 77-1551.
    District Court of Appeal of Florida, Fourth District.
    May 2, 1978.
    William A. Block, Merritt Island, for appellant.
    Jerry L. Jester of Raymond, Wilson, Conway, Barr & Barrows, Merritt Island, for appellee.
   DOWNEY, Chief Judge.

Appellant contracted with the City of Sarasota to paint certain elevated water tanks in accordance with city specifications. The paint for the job was purchased by appellant from appellee who was familiar with the conditions of the proposed work. During the progress of the work the City Building Inspector performed certain tests upon the painted surface and found the paint did not properly adhere thereto. Work was stopped several times and finally finished by a replacement painting crew.

Appellant sued for breach of implied warranty. Appellee filed an answer affirmatively alleging appellant was at fault in the manner in which the paint was applied. Appellee also filed a counterclaim for the value of the paint purchased for the job which resulted in a summary judgment in favor of appellee for $30,880.12. After a trial without a jury the court found that appellant was entitled to recover $21,599.68, which sum was set off against the summary judgment on the counterclaim resulting in a net judgment for appellee of $9,280.44. It is that judgment which is attacked on this appeal.

We have reviewed the record, including the evidence adduced at trial, and find the trial judge’s detailed findings supported by competent evidence. Accordingly, the judgment appealed from is affirmed.

AFFIRMED.

CROSS and ANSTEAD, JJ., concur.


author: HENDRY, Judge.

text:
    Walter RAGLAND, Appellant, v. The STATE of Florida, Appellee.
    No. 77-397.
    District Court of Appeal of Florida, Third District.
    May 2, 1978.
    Bennett H. Brummer, Public Defender and Kurt Marmar, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before PEARSON and HENDRY, JJ., and CRAWFORD, GRADY L. (Ret.), Associate Judge.
   HENDRY, Judge.

Appellant, defendant below, was charged by information with conspiracy to commit murder and attempted murder. A jury returned verdicts finding appellant guilty of conspiracy, but not guilty of attempted murder. The court adjudged appellant guilty and sentenced him to ten (10) years probation with a special condition that he serve five (5) years in the State Penitentiary-

Appellant’s sole point on appeal is directed to the trial court’s denial of various motions for mistrial. Appellant argues that motions for mistrial should have been granted upon repeated prosecutorial comments on appellant’s post-arrest silence. We disagree.

While we are fully aware of the restrictions placed upon prosecutors on commenting upon a defendant’s exercise of his or her constitutional right to remain silent, Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976); Bennett v. State, 316 So.2d 41 (Fla.1975), the record before us conclusively demonstrates that appellant never invoked his Fifth Amendment right against self-incrimination. Rather, the record reveals that after being given his Miranda warnings, appellant freely and voluntarily conversed with the police. During this post-Miranda lengthy conversation, appellant refused to answer one question of many. We do not believe that comment, upon the failure to answer a single question was violative of appellant’s constitutional right, when said constitutional right was not invoked. See Williams v. State, 353 So.2d 588 (Fla. 3d DCA 1977); Kellerman v. State, 353 So.2d 901 (Fla. 3d DCA 1977); Miller v. State, 343 So.2d 1292 (Fla. 3d DCA 1977); see also United States v. Fairchild, 505 F.2d 1378 (5th Cir. 1975).

Accordingly, appellant’s conviction and sentence are affirmed.

Affirmed.


author: PEARSON, Judge.

text:
    Alexander C. MacINTYRE, Appellant, v. Marcelo TORRES, Appellee.
    No. 77-496.
    District Court of Appeal of Florida, Third District.
    May 2, 1978.
    Adams, George, Schulte & Ward and Amy Shield Levine, Miami, for appellant.
    Chopin & Chopin, Joseph M. Gersten, Kenneth W. Rijock, Miami, for appellee.
    Before HAVERFIELD, C. J., PEARSON, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PEARSON, Judge.

This is the second appearance of this cause before the court; see Torres v. MacIntyre, 334 So.2d 59 (Fla. 3d DCA 1976). The prior appeal was from a dismissal of the complaint with prejudice for failure of the subcontractor/lienor to file the notice of intention to claim lien within forty-five days of commencing to furnish the services or materials. We held that it was not an absolute bar to the lienor’s claim that he had failed to file the notice of intention to claim lien within forty-five days of commencing to furnish the services or materials. We further held that the lienor could proceed unless it was shown that the owner had proceeded regularly in payments to the general contractor and that no part of the agreed contract price was unpaid. Citing Crane Co. v. Fine, 221 So.2d 145 (Fla.1969), and other cases following that decision. Upon return of the cause to the trial court, a trial was held and, at the conclusion thereof, a final judgment foreclosing the lien was entered. The court held that, “the plaintiff has carried the burden of proving his claim of lien but that the defendant owner has failed to meet the burden in proving his defenses.” This appeal is from that final judgment.

The defendant, MacIntyre, who is the appellant here, entered into a contract with Larry Griggs, Inc., for the construction and remodeling of defendant’s home. Griggs, in turn, hired the plaintiff, Marcelo Torres, a subcontractor, to furnish materials and labor in the construction on the home. The plaintiff-lienor failed to file a notice of intention to claim lien as provided by the statute. There is unpaid on his bill the amount of $2,889.55. Thereafter, the plaintiff filed his claim of lien.

On May 29, 1973, the defendant owner was notified that the general contractor, Griggs, had abandoned his work on the property. A notice of recommencement of operations was filed by the owner on September 19, 1973. The contract price between MacIntyre and the first contractor, Griggs, was for a price of $129,000. At the time of the abandonment of the contract, Griggs was paid for his services in the amount of $101,000. The record now before the court reveals that the owner paid a second contractor, James T. Russo, an additional $78,447.63 for Russo to complete the job abandoned by Griggs. The contract between MacIntyre and the second contractor, Russo, provided that Russo was “. . .to perform and complete all of the work required under the terms of the June 16, 1972, contract hereinabove referred to.” The June 16th contract was the contract with the first contractor, Griggs. The owner agreed to pay for the work on a cost-plus basis. The record is devoid of any showing that this was not a regular and proper way to complete the job. There is also no evidence in the record that the $101,000 paid to Griggs was improperly paid.

We hold that the evidence in the record of the payments under the original contract and the payments under the contract for completion adequately prove the defense that there is no fund under the holding in Crane Co. v. Fine, supra, to which the plaintiff-lienor’s claim can attach. Cf. Alton Towers, Inc. v. Coplan Pipe & Supply Co., 262 So.2d 671 (Fla.1972); Carter Sand Company, Inc. v. Baymeadows, Inc., 320 So.2d 14 (Fla. 1st DCA 1975).

The final judgment of foreclosure of lien is reversed upon the failure of the plaintiff, Marcelo Torres, to bring himself within the purview of the doctrine announced in Crane Co. v. Fine, 221 So.2d 145 (Fla.1969); and Melnick v. Reynolds Metals Co., 230 So.2d 490 (Fla. 4th DCA 1970).

Reversed.

      . This notice of recommencement did not appear in the record of the first appeal and the opinion so noted. 334 So.2d 60, footnote 2.


text:
    Wade Danell COOK, Appellant, v. The STATE of Florida, Appellee.
    No. 77-530.
    District Court of Appeal of Florida, Third District.
    May 2, 1978.
    Bennett H. Brummer, Public Defender and Warren S. Schwartz, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Antho- • ny C. Musto, Asst. Atty. Gen., for appellee.
    Before HENDRY and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed on the authority of Smith v. State, 356 So.2d 380 (Fla. 3d DCA 1978); Jones v. State, 353 So.2d 891 (Fla. 3d DCA 1977); Kellerman v. State, 353 So.2d 901 (Fla. 3d DCA 1977); Ellison v. State, 349 So.2d 731 (Fla. 3d DCA 1977).


author: HAVERFIELD, Chief Judge.

text:
    RYDER TRUCK RENTAL, INC., a Florida Corporation, Appellant, v MISSOURI BEEF PACKERS, INC., a Missouri Corporation, and/or its successor, M.B.P.X.L. Corporation, a Delaware Corporation, Appellees.
    No. 77-570.
    District Court of Appeal of Florida, Third District.
    May 2, 1978.
    Tworoger & Asher, Fort Lauderdale, for appellant.
    Sandler & Sandler and Garry J. Alhalel, Miami, for appellees.
    Before HAVERFIELD and PEARSON, JJ., and CHARLES CARROLL (Ret.) Associate Judge.
   HAVERFIELD, Chief Judge.

Counterplaintiff, Ryder Truck Rental, Inc., appeals an adverse final judgment for counterdefendant, Missouri Meats, Inc., on its counterclaim in the nature of a creditor’s bill. The facts giving rise to this action are as follows:

Counterdefendant-appellee, Missouri Meats, Inc., is a beef wholesaler which sold beef to Moore Meats, Inc., which in turn stored and packaged the beef at its facilities and distributed its products to its customers (restaurants, stores, etc.) with trucks leased from Ryder Truck Rental, Inc. Moore owned the parcel of land on 36th street on which was located the packaging plant. The cold storage facility was located on two parcels of land on 20th street; one of these parcels Moore owned in fee simple and the other it held under a 99 year lease. In 1973, Moore suffered business losses and became indebted to Missouri Meats, Inc., for more than $500,000. As a result, Missouri filed suit against Moore, which was dismissed in August, 1973 when Moore secured its indebtedness to Missouri by executing in favor of Missouri a note and mortgage on the 20th street and 36th street parcels which it owned in fee simple. Business continued to deteriorate for Moore and in the spring of 1974 failed to make certain payments to Missouri due under the above 1973 note. Missouri threatened to foreclose and a settlement was reached whereby in lieu of foreclosure, Moore in June, 1974 deeded the 20th street parcel to Missouri and also assigned to it the 99 year lease on the adjacent parcel. The 36th street parcel also encumbered by the 1973 mortgage was released by Missouri and the mortgage was satisfied. The parties at the same time executed an agreement giving Moore an option to purchase the 20th street property for $300,000 by the payment of $3,000 per month for 6 months. In the fall of 1974 Moore received an open line of credit from Missouri in exchange for a note and mortgage in favor of Missouri on the 36th street parcel as collateral security and Missouri continued to make beef shipments to Moore. In February, 1975 Moore went out of business and left various creditors including Missouri and appellant Ryder unpaid. Subsequently, Moore deeded the 36th street parcel to Missouri in lieu of foreclosure. Also in February Moore instituted suit against Ryder for breach of their truck lease agreement. Ryder counterclaimed for the monies owed by Moore and also implied as a third party counterdefendant, Missouri, in seeking to set aside the above real property transfers from Moore to Missouri on the ground these transfers were made in violation of Section 608.55, Florida Statutes (1975) and therefore were valid.

“*608.55 Prohibited transfers to officers or stockholders; transfers after or in contemplation of insolvency. — No corporation which shall have refused to pay any of its notes or other obligations when due, nor any of its officers or directors, shall transfer any of its property to any of its officers, directors or stockholders, directly or indirectly, for the payment of any debt, or upon any other consideration than the full value of the property paid in cash. No conveyance, assignment or transfer of any property of any such corporation by it or by any officer, director or stockholder thereof, nor any payment made, judgment suffered, lien created or security given by it or by any officer, director or stockholder when the corporation is insolvent or its insolvency is imminent, with the intent of giving a preference to any particular creditor over other creditors of the corporation, shall be valid, except as to any rights or interests which may be acquired thereunder by any person for a valuable consideration and without notice or reasonable cause to believe that such conveyance, assignment, transfer, payment, judgment, lien or security would effect a preference. Every person receiving by means of any such prohibited act or deed any property of a corporation shall be bound to account therefor to its creditors or stockholders. No holder of stock not fully paid in any corporation shall transfer it to any person in contemplation of the corporation’s insolvency. Every transfer or assignment or other act done in violation of the foregoing provision of this section shall be void except as hereinbefore provided. The directors or officers of a corporation who shall violate or be concerned in violating any provision of this section shall be personally liable to the creditors and stockholders of the corporation of which they shall be directors or officers to the full extent of any loss such creditors and stockholders may respectively sustain by such violation.” [Emphasis supplied]

Ryder’s counterclaim against Missouri was tried non-jury and upon the evidence presented the trial court found no violation of this statute and declared all the transfers from Moore to Missouri to be valid and legal. Final judgment was entered for Missouri and Ryder perfected this appeal.

Ryder basically contends that Moore as early as August, 1973 was insolvent or about to become insolvent and the subsequent parcel transfers were made with the intent of giving a preference to Missouri and therefore invalid. We cannot agree.

The test of insolvency under Section 608.55, Florida Statutes (1975) voiding certain preferential transfers made by an insolvent corporation is not whether the books show an excess of liability over assets, but rather whether the corporation has a general inability to answer in the course of business the liabilities existing and capable of being enforced. Williams v. American Crafts, Inc., 129 So.2d 165 (Fla. 3d DCA 1961); James Talcott, Inc. v. Crown Industries, Inc., 323 So.2d 311 (Fla. 2d DCA 1975). The “intent to prefer” is present only when payments are made in contemplation of insolvency and winding up of the business as an impending fact; conversely, such an intent is not present when such payments are made with the good faith intention of continuing in business. Freehling v. Michigan Repacking and Produce Company, 426 F.2d 989 (5th Cir. 1970). Furthermore, whether an intent to prefer is present is a question of fact to be decided by the trier of the fact, the trial court in the present case. See Freehling, supra. Inherent in the findings of the trial court set out above is the determination that there was no showing of insolvency or imminent insolvency on the part of Moore or an intention to prefer one creditor over another. We find that the evidence reflected that Moore effected these transfers as part of a good faith effort to remain in business and in fact continued to stay in operation until February, 1975. There being competent substantial evidence to support the findings of the trial court, we will not disturb the judgment appealed.

Affirmed.


text:
    VACATION, INC., 177 Corporation and Andrew Weisz, Appellants, v. SOUTHEAST FIRST LEASING, INC., Appellee.
    No. 77-655.
    District Court of Appeal of Florida, Third District.
    May 2, 1978.

      Sandstrom & Haddad, Fort Lauderdale, and Marsha G. Madorsky, Fort Lauderdale, for appellants.
    Friedman & Britton and J. T. Haley, Miami, for appellee.
    Before HENDRY and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

This appeal is by the defendants below from an adverse judgment, entered following a non-jury trial of an action for damages for breach of a lease of an aircraft, against the lessee, Vacation, Inc., and the guarantors, 177 Corporation and Andrew Weisz. We hold no reversible error has been shown.

The lease was for a period of three and one-half years, with an option to purchase. Blank spaces provided in the written lease in which to set out the provisions relating to payment, as to the number and amounts of lease payments, when they were to be made, etc., were not filled in. Those omissions were supplied by a subsequent letter from lessor to lessee. The lessee was put in possession. Pursuant to the terms of the contract as supplemented by the letter, an initial deposit by the lessee was applied by lessor to certain ensuing monthly payments and thereafter lessee made certain of the designated monthly payments. The trial court properly held the contract was made up by the two documents. Hughes v. Professional Insurance Corporation, 140 So.2d 340 (Fla. 1st DCA 1962); Fraser v. Lewis, 187 So.2d 684 (Fla. 3d DCA 1966); 7 Fla.Jur., Contracts, § 78.

Appellants argue that the written guaranty of the defendant 177 Corporation was insufficient in law, and that the written guaranty of the defendant Weisz was not made in his individual capacity. The holding of the trial court contrary to those arguments was correct. The authority of 177 Corporation to make such guaranty, or of the president thereof to execute the corporate guaranty, was not raised by the defendants at trial. The individual character of the separate written guaranty of the defendant Weisz was not affected by the fact that the word or designation “Pres.” was inserted after his signature on his warranty.

Affirmed.


text:
    Allan J. APPLESTEIN, Appellant, v. NATIONAL BANK OF TULSA, Appellee.
    No. 77-702.
    District Court of Appeal of Florida, Third District.
    May 2, 1978.

      Tew & Mason, Miami, for appellant.
    Bradford, Williams, McKay, Kimbrell, Hamann & Jennings and R. Benjamine Reid, Miami, for appellee.
    Before PEARSON and HENDRY, JJ., and CRAWFORD, GRADY L. (Ret.), Associate Judge.
   PEARSON, Judge.

The defendant, Allan J. Applestein, appeals a summary final judgment entered against him in an action by the National Bank of Tulsa upon Applestein’s written guarantee of the debts of a corporation. An airplane chattel mortgage was given as security for the debt. The airplane was sold and suit was instituted for the deficiency. Applestein, as appellant, urges the existence of a genuine issue of material fact. We agree and reverse.

On December 8, 1971, Allan J. Applestein executed an unconditional guaranty to the National Bank of Tulsa relating to the debts of Little Judy Industries, Inc. The guaranty was limited to $28,840.32. Little Judy Industries, Inc., had executed a note to appellee on November 12, 1971, which was incorporated into a renewal note of $119,941.56 on August 10, 1972. An airplane chattel mortgage was given as security for this debt.

On July 19, 1973, a Florida tax warrant for sales and use tax was issued against Little Judy Industries, Inc. Following execution and levy by the Sheriff of Dade County, the airplane referred to above was scheduled for a public sale. The sale was properly advertised and took place on August 29, 1973. Appellee, being the. highest bidder, was issued a bill of sale by the Sheriff and took all right, title and interest possessed by Little Judy Industries, Inc., in the airplane. The complaint alleged that the collateral was sold by the plaintiff with the proceeds received therefrom being applied against the principal amount due on the note.

In response to the motion for summary judgment, the defendant filed his affidavit stating that:

1. He received no notice of the disposition of the collateral to the note;

2. He received no notice of the time and method of the sale of the collateral to the note;

3. He had no opportunity to secure purchasers in order to redeem his equity in the collateral to the note;

4. The amount of money received by the plaintiff at the sale of the collateral was below the fair market value of the collateral;

5. The fair market value of the aircraft was in excess of the amount due the plaintiff under the note;

6. The sale was not conducted in a commercially reasonable manner.

Section 679.504, Florida Statutes (1973), governs the resale of collateral pursuant to a security agreement. The secured creditor “. . . may sell, lease or otherwise dispose of any or all of the collateral in its then condition or following any commercially reasonable preparation or processing.” Additionally, Section 679.504(3), Florida Statutes (1973), provides that:

“(3) Disposition of the collateral may be by public or private proceedings and may be made by way of one or more contracts. Sale or other disposition may be as a unit or in parcels and at any time and place and on any terms but every aspect of the disposition including the method, manner, time, place and terms must be commercially reasonable. Unless collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, reasonable notification of the time and place of any public sale or reasonable notification of the time after which any private sale or other intended disposition is to be made shall be sent by the secured party to the debtor, and except in the case of consumer goods to any other person who has a security interest in the collateral and who has duly filed a financing statement indexed in the name of the debtor in this state or who is known by the secured party to have a security interest in the collateral. The secured party may buy at any public sale and if the collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations he may buy at private sale.”

The defendant urges that there is a genuine issue concerning its defense that it was entitled to notice of the sale. We find no issue on that defense inasmuch as the record shows that the defendant had waived notice of the sale by a letter disclaiming an interest in the airplane after the sheriff’s sale.

Secondly, the defendant claims a genuine issue concerning the defense that the sale of the collateral was not conducted in a “commercially reasonable” manner. We find this issue undisposed of on the record. The plaintiff’s position is that inasmuch as it owned the airplane after the sheriff’s sale, there was no requirement for a sale in any manner. But this action is based upon a deficiency left after the private sale. The sale, if it is to produce a deficiency, is an element of the action that must be proved without genuine issue, if a summary final judgment is to be entered. Cf. Pompano Paint Co. v. Pompano Beach Bank and Trust Company, 208 So.2d 152 (Fla. 4th DC A 1968); and Spear v. Martin, 330 So.2d 543 (Fla. 4th DCA 1976).

The defendant’s further contention of a merger after the sheriff’s sale, which released the defendant, is without merit. See the discussion and cases cited at 69 Am.Jur.2d Secured Transactions § 545.

The summary final judgment is reversed and the cause remanded for further proceedings in accordance with the views herein expressed.

Reversed and remanded.

HENDRY, J., dissents.


text:
    Harry K. JOHNSTON, Appellant, v. Maurice REVITZ, Trustee, Appellee.
    No. 77-725.
    District Court of Appeal of Florida, Third District.
    May 2, 1978.
    Richard W. Wasserman, Miami Beach, for appellant.
    Starr W. Horton, Miami, for appellee.
    Before PEARSON and HUBBART, JJ., and CRAWFORD, GRADY L. (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See Duval Jewelry Co. v. Smith, 102 Fla. 717, 136 So. 878 (1931); Herbeck v. Holdeman, 163 So.2d 766 (Fla. 2d DCA 1964).


text:
    Frank C. JACKSON, Appellant, v. Ralph R. BOARTFIELD, Dwight L. Small, and City of Coral Gables, Appellees.
    No. 77-737.
    District Court of Appeal of Florida, Third District.
    May 2, 1978.
    Neil Chonin, Miami, and Marilyn Sher, Coral Gables, for appellant.
    Charles H. Spooner, City Atty., and Robert D. Zahner, Asst. City Atty., for appellee.
    Before PEARSON and HUBBART, JJ., and CRAWFORD, GRADY L. (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See Bowlin v. County of Dade, 296 So.2d 602 (Fla. 3d DCA 1974).


text:
    Ileana TORRES, etc., et al., Appellants, v. The PROTECTIVE NATIONAL INSURANCE COMPANY OF OMAHA, etc., Appellee.
    No. 77-956.
    District Court of Appeal of Florida, Third District.
    May 2, 1978.

      Thomas F. Gillotte, Miami, and Richard L. Zapf, Coral Gables, for appellants.
    Leland E. Stansell, Jr., and Robert A. Glassman, Miami, for appellee.
    Before HUBBART and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   KEHOE, Judge.

Appellants, plaintiffs below, bring this appeal from a summary final judgment dated April 13,1977, entered by the trial court in favor of appellee, defendant below. For the reasons set forth below, we reverse.

Appellants’ twelve year old daughter, Ileana Torres, was struck by a hit and run driver. Because she was truant from school at the time of the accident, Ileana lied to her parents about the cause of her injuries. Approximately two weeks later, appellants learned the true cause of their daughter’s injuries. Appellants then immediately notified the police of the accident. Appellants also notified and made a claim against ap-pellee, their insurer, under an automobile insurance policy which provided coverage, under the uninsured motorist section, for the injuries sustained by Ileana. Appellee refused to pay this claim on the ground that appellants had failed to give it proper notice pursuant to the terms of the policy.

As a result of appellee’s refusal to pay, appellants filed a complaint, as amended, seeking to compel appellee to arbitrate the claim. Subsequently, appellee filed a motion for summary judgment on the ground that appellants had failed to comply with the provisions of the policy which provided that notice must be given within 24 hours of the accident. Thereafter, on this ground, the trial court granted appellee’s motion for summary judgment. From the order granting summary final judgment, appellants appeal.

Appellants contend that the trial court erred by entering the summary final judgment in favor of appellee and by holding that appellants’ failure to comply with the notice provisions of the policy barred their recovery.

Appellee contends, basically, that the trial court did not err by granting its motion for summary judgment because appellants failed to satisfy a material condition precedent to recovery, i. e., the requirements of the notice provision of the policy. Appellee further contends that there existed no genuine issue of any material fact at the time the trial court granted its motion for summary judgment. It is with appel-lee’s last contention that we disagree. The applicable principles of law, in cases such as this one, were articulated by Judge Hubbart in Allstate Insurance Co. v. Korschun, 350 So.2d 1081, 1081-82 (Fla.3d DCA 1977), as follows:

“The law is clear that a 24 hour notice requirement to the police or appropriate government authority is a valid provision and generally a condition precedent to obtaining uninsured motorist coverage in a hit and run automobile accident. The reason for such a requirement is to allow the police and other interested parties (such as the insurance company) an opportunity to investigate, search and possibly apprehend the hit and run driver, thus facilitating inquiry whether the hit and run vehicle was in fact uninsured and allowing the insurer to enforce its subro-gation rights against a negligent uninsured hit and run motorist. McKay v. Highlands Insurance Co., 287 So.2d 393, 395 (Fla.3d DCA 1973). While prejudice to the insurer is presumed in the case of noncompliance with such a notice requirement, the insurer will not automatically be relieved of liability simply by showing that notice was not given within the time provided for in the policy if the insured can demonstrate that the insurer has not thereby been prejudiced. Laster v. United States Fidelity and Guaranty Co., 293 So.2d 83, 86 (Fla.3d DCA 1974). See Tiedtke v. Fidelity and Casualty Co. of New York, 222 So.2d 206 (Fla.1969).”

Based upon these principles, it is our opinion that the summary judgment in the instant action was prematurely granted. The pleadings and affidavits on file with the trial court, at the time of the entry of the summary judgment, created a genuine issue of a material fact, i. e., whether the insurer was, in fact, prejudiced by appellants’ failure to conform to the notice provisions of the policy, which precluded the entry of a summary judgment. Fla.R.Civ.P. 1.510. Accordingly, the summary final judgment appealed is reversed and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.


text:
    TREASURE LAKE OF GEORGIA, INC., Treasure Lake of North Carolina, Inc., Treasure Lake of Pennsylvania, Inc., Appellants, v. HAROLD MILLER MARKETEER, INC., Appellee.
    No. 77-1216.
    District Court of Appeal of Florida, Third District.
    May 2, 1978.
    Shapiro & Marcus, Miami, for appellants.
    Howard R. Hirsch, Miami Beach, for ap-pellee.
    Before HENDRY and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The defendants appeal from an adverse final judgment entered upon a non-jury trial in an action for damages for alleged breach of employment contract. By a written contract the defendants employed the appellee-plaintiff for the calendar year 1975 to perform certain stated services at a salary of $3,000.00 per month. The contract provision for termination therein was as follows: “This agreement can be terminated at any time upon the written notice of both parties.” Prior to the end of the year, by a letter exchanged between the parties, the employment contract was extended for the year 1976 on the same terms. On September 15, 1976, by written notice, the employers terminated the agreement, purportedly as of August 31, 1976.

The appellee filed action, claiming breach of contract. The plaintiff stated he was paid through August, 1976, and sought recovery of the salary for September through December, 1976. The defendants relied upon the right to terminate the contract by notice. The court held the plaintiff-employee was entitled to recover the salary for the balance of the year, with interest after January 1, 1977. Defendants appealed.

Inherent in the judgment was a ruling by the trial court that the termination clause in the contract would not permit either party to terminate the contract and that the meaning of the termination provision was that the contract could be terminated only by mutual consent. With that interpretation of the contract we cannot agree, and we hold that the provision in question entitled the employer to terminate the contract. The termination was effective in September of 1976 and the employee is entitled to be paid for that month. Accordingly, the judgment is amended to constitute a judgment in favor of the plaintiff against the defendants for the sum of $3,000.00 with interest thereon at 6% from September, 1976 and costs in the amount of $85.50.

Judgment amended, and, as amended, affirmed.

      . The termination letter included the following statements:
      “As expressed in prior conversations, our marketing and sales programs are not definite at this time and, accordingly, there are no reasons to justify extending our arrangement beyond August 31, 1976.
      “Should our future plans require your talents, we would welcome the opportunity to discuss possible areas of mutual interest. As for the present, however, please consider this letter as formally confirming our previous understanding that our arrangement for your services is to be discontinued as of August 31, 1976.”


text:
    WIN-SAN BUILDING CORPORATION, Petitioner, v. STATE of Florida, DEPARTMENT OF REVENUE, Respondent.
    No. 77-1228.
    District Court of Appeal of Florida, Third District.
    May 2, 1978.

      Williams, Salomon, Kanner & Damain and Gary S. Brooks, Miami, for petitioner.
    Robert L. Shevin, Atty. Gen., and Edwin J. Stacker, Asst. Atty. Gen., Tallahassee, for respondent.
    Before HUBBART and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   CHARLES CARROLL (Ret.), Associate Judge.

By petition for certiorari, Win-San Building Corporation seeks review of a finalized order of the Department of Revenue finding that a certain transfer of real estate was subject to documentary stamp tax, and that a 100% penalty was owed for failure to apply such tax stamps under Sections 201.02 and 201.17, Florida Statutes (1975).

The property involved was the sole asset of Bal-Harbour Towers, Inc. Outstanding thereon was a mortgage of $800,000.00. That corporation was a wholly owned subsidiary of the petitioner corporation. Upon liquidation of the former, the asset was transferred to the parent corporation, its stockholder, without monetary consideration, but subject to said mortgage. Relying on State ex rel. Palmer-Florida Corporation v. Green, 88 So.2d 493 (Fla.1956) as authority that the transfer in those circumstances was not subject to the tax, the stamps were omitted. By the terms of Section 201.17, Florida Statutes (1975) one who makes or receives a document or instrument required to be so taxed, without the full amount of the tax imposed thereon being paid, is guilty of a misdemeanor of the second degree and any such document on which the tax is imposed, which upon audit or recor-dation does not bear the proper value of stamps, shall “subject” the person or persons liable for the tax to (a) payment of the stamps required and (b) to a monetary penalty, as follows:

“Payment of penalty to the Department of Revenue equal to the purchase price of the stamps not affixed. This penalty is to be in addition to and not in lieu of any other penalty imposed by law.”

Here, the tax found payable on the transfer was $23,999.70, and the penalty imposed was in like amount, making an aggregate of $47,999.40.

Petitioner contends first, that the transfer was one that was not subject to such tax and second, that the imposition of the 100% penalty was improper under the circumstances.

On petitioner’s first contention we find no merit. The Supreme Court held that a transfer made in such circumstances, subject to a mortgage was a taxable transfer. See: Florida Department of Revenue v. DeMaria, 338 So.2d 838 (Fla.1976). There, as in Green, the transfer was by a corporation to its stockholder. However, whereas in Green the transfer was not subject to a mortgage, in DeMaria it was, and in the latter case the Court held the transfer was thus taxable on the basis of the amount of the encumbrance, on the theory that the transfer carried with it a shifting of the economic burden of paying the outstanding mortgage.

Petitioner argues DeMaria should not apply here because the two corporations, for some years prior to the transfer, had availed themselves of the privilege of filing joint income tax returns. With that contention we cannot agree. The imposition of the tax was authorized and required on authority of the holding of the Supreme Court in DeMaria. See, also: Greyhound Corporation v. United States, 208 F.2d 858 (7th Cir. 1954).

We also must reject as unsound the arguments upon which the petitioner seeks to have this court modify and reduce the statutory 100% penalty imposed for omission to affix the tax stamps due.

In contending the imposition of the full penalty was inequitable, because of petitioner’s belief the stamp tax was not applicable to this transaction, petitioner relied on Zuckerman-Vernon Corp. v. Department of Revenue, 339 So.2d 685 (Fla. 1st DCA 1976), where, for certain circumstances therein involved that court held the full penalty was inequitable, and materially reduced it. However on certiorari that ruling of the District Court in Zuckerman was. quashed by the Supreme Court. State of Florida, Department of Revenue v. Zuckerman-Vernon Corp., 354 So.2d 353 (Fla.1977). In the latter, while the Supreme Court held the Department had no discretion to reduce the penalty prescribed by the statute, the Court recognized the inherent power of the courts to reduce or modify a documentary tax penalty imposed pursuant to Section 201.17(2), Florida Statutes (1975) but found absence of disclosure of equities in that case sufficient to call for exercise of the power. The Court stated that good faith belief that the transfer was not taxable, without more, was insufficient to prompt a reduction and that the size or amount of the penalty, alone, did not make it inequitable. Ch. 77-281, amending Section 201.17 (1975) was held not to operate retroactively.

For the reasons stated, the petition for writ of certiorari is denied.


text:
    Bobby Lee THOMAS, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1928.
    District Court of Appeal of Florida, Third District.
    May 2, 1978.
    Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before HAVERFIELD, C. J., and PEARSON, J., and CRAWFORD, GRADY L. (Ret.), Associate Judge.
   PER CURIAM.

On this appeal of an order revoking probation, the defendant probationer urges that the trial court erred in admitting into evidence testimony which established that the defendant had committed several offenses other than the violation charged in the affidavit of violation of probation. The record reveals that the other offenses which were proved by the testimony were related to the offense charged in the affidavit and were admissible into evidence under the rules stated in Williams v. State, 110 So.2d 654 (Fla.1959).

An additional point questioning the sufficiency of the proof of the violation charged in the affidavit does not present reversible error upon the holding in Randolph v. State, 292 So.2d 374 (Fla.3d DCA 1974).

Affirmed.


text:
    Hubert FLOWERS, Jr., Appellant, v. The STATE of Florida, Appellee.
    No. 77-1952.
    District Court of Appeal of Florida, Third District.
    May 2, 1978.
    Weiner, Robbins & Tunkey, Miami, for appellant.

      Robert L. Shevin, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before PEARSON and HENDRY, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Appellant, defendant below, was found guilty, pursuant to a jury verdict, of burglary of a conveyance, petit larceny and loitering. He was sentenced to five (5) years in prison on the burglary charge with credit for time served, to wit: forty-six (46) days. On the charges of petit larceny and loitering and prowling, appellant was sentenced to credit for time served, to wit: forty-six (46) days.

After carefully reviewing the record, briefs and arguments of counsel, it is our opinion that no reversible error has been made to appear. United States v. Stephenson, 474 F.2d 1353 (5th Cir. 1973); L. L. J. v. State, 334 So.2d 656 (Fla. 3d DCA 1976); Mahoney v. State, 300 So.2d 743 (Fla. 1st DCA 1974); State v. Young, 217 So.2d 567 (Fla.1968), and Fla.R.Crim.P. 3.390(d).

Accordingly, appellant’s convictions and sentences are hereby affirmed.

Affirmed.


text:
    Carlos A. MARTINEZ, Petitioner, v. FLORIDA DEPARTMENT OF COMMERCE, DIVISION OF EMPLOYMENT SECURITY, Respondent.
    No. 77-1994.
    District Court of Appeal of Florida, Third District.
    May 2, 1978.
    Carlos A. Martinez, in pro. per.
    Kenneth H. Hart, Jr., Ollie L. Evans, Tallahassee, for respondent.
    Before PEARSON and HUBBART, JJ., and CRAWFORD, GRADY L. (Ret.), Associate Judge.
   PER CURIAM.

The claimant, Carlos A. Martinez, brought a petition for writ of certiorari to review an order of the Industrial Relations Commission affirming the decision of the Appeals Referee and the claims examiner that the claimant had insufficient wage credits to establish a valid claim. Claimant urges that a prior order under'which he received benefits for the full extent of his claim is determinative of the issue and may not be reconsidered because of the expiration of the one year period provided by Section 443.07(3)(c), Florida Statutes (1973).

The Florida Department of Commerce, Division of Employment Security, has filed in this cause a waiver stating that even though it is a statutory respondent in the cause, it is not going to take a position on the facts and waives its right to submit a brief in opposition to the petition for certio-rari.

On September 29,1975, the then Industrial Relations Commission filed an order in which it reported the history of this case as follows:

“In this case, the employer reported that claimant was paid $1,500 for thirteen weeks work during the second quarter of 1973. He was paid $1,000 in the first five weeks of the third quarter. This $1,000 included two weeks wages in lieu of notice and two weeks vacation pay. The Referee credited claimant with only eighteen weeks of insured work, or the number of weeks during which he actually performed services for the employer.
“A week of unemployment is defined in § 443.03(12)(a), F.S., as any week during which an individual performs no services and with respect to which no wages are payable to him. In this case, the Appeals Referee erred in assuming that the claimant was unemployed during the two weeks immediately following his discharge, because, although he performed no services for the employer during those weeks, he was paid wages with respect to those weeks in the form of wages in lieu of notice.
“Pursuant to § 443.06(3)(a), an individual shall be disqualified for receipt of benefits for any week with respect to which he is receiving or has received remuneration in the form of wages in lieu of notice. In order to determine the number of weeks for which a claimant will be determined ineligible for receipt of benefits after receiving a lump sum of money as wages in lieu of notice, a certain amount of the money is allocated to a certain week. Thus, since claimant was given $250 as wages in lieu of notice, $125 (his usual weekly wage) would be allocated to each of the two weeks following his discharge. Claimant would be disqualified from receipt of benefits for those two weeks.
“Obviously, if these wages are allocated to a specific week, it must be said that wages are payable to the claimant with respect to that week. As stated in § 443.03(12)(a), F.S., if an individual performs no services and wages are not payable to him with respect to a certain week, an individual is not unemployed during that week; he is constructively employed. Those weeks during which claimant would be disqualified from receipt of benefits if he met the general eligibility requirements must also be considered in determining that same eligibility.”

Thereafter, upon the termination of his benefit year, the claimant filed a new claim, effective July 29, 1974. On that claim, the Commission made the following determination:

“The claimant filed his initial claim for benefits to be effective July 29, 1973, thus establishing a benefit year which ended on July 28, 1974. The claimant continued to file for benefits until he exhausted his claim. Upon termination of his benefit year he filed a new claim effective July 29, 1974. It was determined that the claimant had insufficient wage credits to establish a valid claim at that time. The claimant appealed the determination and it was affirmed by the Appeals Referee. On appeal to the Industrial Relations Commission it was reversed on September 29,1975. The Commission allocated two weeks paid wages in lieu of notice to the then two weeks following the claimant’s last day of work.
“On October 22, 1975, a Claims Examiner’s determination was issued which held the claimant ineligible for not having earned three times his weekly benefit amount after his filing on July 29, 1973, as required by § 443.05(l)(e)2, F.S. The Appeals Referee affirmed that ineligibility on February 8, 1977.
“The claimant contends that the October 22, 1975, Claims Examiner’s determination is void under § 443.07(3)(c)l, F.S., because it was made in excess of one year after the date of filing on July 29, 1974. That section refers to a redetermination, i. e. reconsideration of a determination, when it is found that an error has occurred or new evidence has been discovered. The October 22, 1975, decision is not a redetermination, but rather a determination going to a threshold eligibility condition which is required by Statute, § 443.05(l)(e)2, F.S. The October 22, 1975, decision is not subject to the one-year limit placed on redeterminations.
“The claimant contends that the previous Industrial Relations Commission Order No. 75-162 is finally dispositive of the issue of whether the claimant is eligible for benefits. That Order dealt with the issue of the claimant’s available wage credits which is a threshold eligibility condition in itself. The issue here is a separate one, a threshold condition required by the Statute, which was not finally and conclusively decided by the previous order.
“The claimant contends that the previous allocation of the two weeks wages paid in lieu of notice to the period August 1, 1973, to August 15, 1973, estops the October 22,1975, determination. He contends that this allocation satisfied the statutory requirement of having earned three times his weekly benefit amount under § 443.05(1)(3)2 [443.05(l)(e)2], F.S. The Statute in that section requires that an individual perform service and earn remuneration of at least three times his weekly benefit amount in order to requa-lify for benefits after a year in which he received benefits. The claimant performed no services after his separation from the employer in July of 1973 when he filed his original claim. The claimant has not met the statutory requirement of § 443.05(l)(e)2, F.S., to perform services.”

We hold that the Division of Employment Security is estopped to take a contrary position as to the time of the application of the two weeks paid wages in lieu of notice of discharge. Therefore, the allocation of these wages to the period August 1st to August 15th, 1973, satisfies the requirement that a claimant earn remuneration of at least three times his weekly benefit amount in order to requalify for benefits after a year in which he receives benefits. These two weeks’ wages may not be used as a basis for disqualification for compensation during the period for which they were paid and then treated as nonexistent because no services were actually performed for the employer during that period of time. The statute must be construed reasonably to give the claimant the benefit of wages paid in lieu of notice of discharge. See St. Joe Paper Company v. Gautreaux, 180 So.2d 668 (Fla. 1st DCA 1965).

Accordingly, the petition for writ of cer-tiorari is granted and the order of the Commission, dated August 19, 1977, disqualifying claimant, is quashed with directions to enter an order in accordance with the views herein expressed.

It is so ordered.

      . This court’s decision on a prior petition in this matter appears at State ex rel Martinez v. Florida Division of Commerce, 339 So.2d 313 (Fla. 3d DCA 1976).


text:
    Clarence BAKER, Appellant, v. The STATE of Florida, Appellee.
    No. 78-482.
    District Court of Appeal of Florida, Third District.
    May 2, 1978.
    Clarence Baker, in pro per.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before HAVERFIELD, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

Petitioner pursuant to Fla.R.App.P. 9.140(g) having taken this appeal from the summary denial of his motion for post conviction relief under Fla.R.Crim.P. 3.850 and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed.


text:
    Myra Phillips HARDEN, as Administratrix of the Estate of Delton H. Harden, Jr., Deceased, Appellant, v. In re the ESTATE of Joseph A. KELCHLIN, Deceased, Appellee.
    No. GG-251.
    District Court of Appeal of Florida, First District.
    May 3, 1978.
    Harley E. Riedel, II, of Stichter, Stagg, Hoyt, Riedel & Fogarty, Tampa, for appellant.
    Emory P. Cain and Ronald S. Cohen, of Proctor & Cain, Jacksonville, for appellee.
   PER CURIAM.

It appears the issue raised by appellant in this appeal from an interlocutory order raises the same issue as was decided in a related matter previously before this court. There review was sought from a summary judgment in the wrongful death action brought by appellant. This court considered the timeliness of appellant’s filing of proof of claim and affirmed the summary judgment, published in tabular form as Harden v. Proctor, 351 So.2d 410 (Fla. 1st DCA 1977).

AFFIRMED.

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


text:
    David S. PARKER, as Administrator of the Estate of Ava Aycock Parker, Deceased, Appellant, v. FLORIDA FIRST NATIONAL BANK OF JACKSONVILLE (a national banking association), and Dorothy DeShong Aycock, as the personal representative of the Estate of Thomas J. Aycock, Jr., Appellee.
    No. GG-381.
    District Court of Appeal of Florida, First District.
    May 3, 1978.
    Martin L. Haines, III, of Haines & Ros-sow, North Palm Beach, for appellant.
    Paul P. Sanford, of Rogers, Towers, Bailey, Jones & Gay, Jacksonville, for appellee.
   PER CURIAM.

Finding no abuse of discretion in the order appealed from, we affirm. Castlewood International Corporation v. LaFleur, 322 So.2d 520, 522 (Fla.1975) (Overton, J., concurring).

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


text:
    Dimple E. GILYARD, Appellant, v. S. S. KRESGE COMPANY, d/b/a K-Mart Number 4420, A Foreign Corporation, Appellee.
    No. HH-17.
    District Court of Appeal of Florida, First District.
    May 3, 1978.
    Benny R. S. Harris, Ocala, for appellant.
    Robert A. Vostrejs, Jr., of Pattillo, Mac-Kay & McKeever, Ocala, for appellee.
   PER CURIAM.

AFFIRMED. See Page v. Staley, 226 So.2d 129 (Fla. 4th DCA 1969).

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