author: HAVERFIELD, Judge.

text:
    B & J HOLDING CORPORATION, a Florida Corporation, et al., Appellants, v. Bertha WEISS et al., Appellees.
    No. 76-1574.
    District Court of Appeal of Florida, Third District.
    Nov. 22, 1977.
    Rehearing Denied Jan. 4, 1978.

      L. J. Cushman, Miami, for appellants.
    Williams, Salomon, Kanner & Damian and Gary S. Brooks, Miami, for appellees.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   HAVERFIELD, Judge.

This is an appeal by defendant corporate developer and its three principal officers from a final judgment totalling $51,489.88 entered pursuant to a jury verdict in favor of the plaintiffs, a condominium association and the unit owners, in this action for breach of implied warranty and contract.

Several unit owners in the Stuart House Condominium on behalf of themselves, the remaining unit owners and the condominium association filed a breach of contract and implied warranty action against the developer, B & J Holding Corporation, and its three principal officers, Louis Sternberg, Ben Okun and Louis Halpern, who were the initial officers and directors of the condominium association. Plaintiffs’ complaint, in essence, alleged that B & J breached its purchase contract and implied warranties of fitness by substituting inferior features for those set forth in the documents incorporated into the purchase contract thereby changing the building plans filed with the local governmental authority, and constructing the common elements and systems of the building in an improper and inferior manner. The alleged deficiencies consisted of the following: (1) omission of sound boards in party walls, (2) omission of moisture proofing in the card room wall, (3) utilization of an incorrect voltage system, (4) utilization of 3 HP rather than 5 HP water pumps, (5) failure to provide housing for the hot water heaters on the roof, and (6) use of clear plate glass rather than tinted glass. The complaint further alleged that Sternberg, Okun and Halpern, as the initial officers and directors of the condominium association, breached their fiduciary duty to the association in failing to assess B & J as the owner of the unsold units for the maintenance payments due the association. Plaintiffs prayers for punitive damages and attorney fees were ultimately stricken by the court. At the ensuing trial, the jury returned a verdict against B & J for $48,884 on the breach of contract and implied warranty counts, and a $2,605.88 verdict against B & J, Sternberg, Okun and Louis Halpern holding them jointly and severally liable for the breach of their fiduciary duty to the association. Judgment was entered accordingly.

After considering the arguments raised in defendants’ first two points on appeal that plaintiffs, as a matter of law, could not prevail upon the counts of breach of contract and implied warranty, we conclude that these points have been adversely determined to defendants in David v. B & J Holding Corp., 349 So.2d 676 (Fla.3d DCA revised opinion filed August 9, 1977).

Defendants also argue that plaintiffs were not entitled to recover the cost of remedying or repairing the deficiencies because they produced no evidence as to the sums incurred to correct or repair the deficiencies.

The record contains ample testimony as to the expenses which will have to be incurred to correct the defects and in a case of this nature the measure of damages is the cost of correcting the defects or completing the omissions. Edgar v. Hosea, 210 So.2d 233 (Fla.3d DCA 1968).

Next, defendants Sternberg, Okun and Halpern contend the court erred in instructing the jury that it could find them personally liable, as initial officers and directors of the condominium association, for B & J’s failure to make the maintenance payments for the unsold units to the association.

In support of their contention, defendants cite to 7 FlaJur. Contracts § 305 (1956):

“§ 305. Liability for Corporate Acts, Debts, and Contracts.
“The directors or officers of a corporation are not liable for corporate acts and debts simply by reason of their official relation to the corporation; they are merely the agents of the corporation and on principle should no more be held liable therefore than any other agent should be held for the acts and debts of his principal .. . ”

Although we do not take issue with the above principle of law, we nevertheless find it inapplicable here as the defendants are not being held liable in their capacity as principal officers of B & J, but rather as the condominium association’s initial directors and officers who deliberately failed to collect the maintenance payments due the association from B & J as owner of the unsold units. We hold that where an officer and director of a corporation occupies a quasi-fiduciary relationship toward the corporation and its stockholders and is bound to act with fidelity and the utmost faith, he (or she) in accepting the office impliedly agrees and undertakes to give the corporation the benefit of his (or her) best care and judgment and to exercise his (or her) powers in the interest of the corporation and the stockholders; officers and directors are liable for damages to the corporation which results from a breach of their trust on the common law rule of the responsibility of an agent for injury to his principal. See Flight Equipment & Engineering Corp. v. Shelton, 103 So.2d 615 (Fla.1958) and 7 Fla. Jur. Corporations §§ 299-300 (1956) and cased cited therein. Thus, we conclude the personal liability instruction was correct and the evidence was sufficient to support the verdict holding defendants personally liable.

Last, defendants argue plaintiffs are barred by the one-year statute of limitation set forth in Section 711.24(l)(g)(3), Florida Statutes (1973).

This argument lacks merit because plaintiffs did not bring this action under Chapter 711, Florida Statutes (1973). The relief granted was premised upon common law causes of action.

On cross-appeal plaintiffs contend the court erred by striking their claim for punitive damages before the trial. We cannot agree.

The law with respect to punitive damages is that such damages are not recoverable for breach of contract; however, where the acts constituting a breach of contract also amount to a cause of action in tort, there may be recovery of exemplary damages upon the proper allegations and proof of the intentional wrong, insult, abuse or gross negligence constituting an independent tort. Griffith v. Shamrock Village, 94 So.2d 854 (Fla.1957); Country Club of Mi ami Corporation v. McDaniel, 310 So.2d 436 (Fla.3d DCA 1975). We find plaintiffs failed to allege a willful, independent tort, separate and apart from the breach of contract, upon which punitive damages might be claimed.

We also considered plaintiffs’ remaining second point on cross-appeal and conclude that no reversible error has been made to appear.

Affirmed.

      . a non-profit corporation


source: Caselaw Access Project

author: ERVIN, Judge. BOYER, Acting Chief Judge,

license: Public Domain

text:
    INTERNATIONAL HARVESTER COMPANY, Petitioner, v. John D. CALVIN, Director of the Division of Motor Vehicles of the Department of Highway Safety and Motor Vehicles of the State of Florida, and Rich Motors, Inc., Respondent.
    No. DD-193.
    District Court of Appeal of Florida, First District.
    Nov. 29, 1977.
    Rehearing Denied Jan. 10, 1978.

      John H. Schulte of Smathers & Thompson, Miami, for petitioner.
    Edwin E. Strickland, Gen. Counsel, Enoch J. Whitney, .Asst. Gen. Counsel, Tallahassee, and Edwin Marger, Atlanta, for respondents.
    J. Robert McClure, Jr. of McClure, Wig-ginton, Campbell & Owen, Tallahassee, ami-cus curiae.
   ERVIN, Judge.

International Harvester petitions for review from an order of the Director of the Division of Motor Vehicles setting aside an attempted cancellation of its franchise agreement with its West Palm Beach dealer, Rich Motors. The Director has so acted under Section 320.641, Florida Statutes (1975), which allows him to find an “unfair cancellation” in such situations.

THE FACTS

Rich Motors is a family owned business with facilities adjacent to the Rich Ice Cream Company plant. Williard Rich, Sr., president of both companies, and Williard Rich, Jr., general manager of Rich Motors, have their offices in the ice cream plant. Mr. Rich, Jr. testified he devoted about forty per cent of his time to the running of the truck business. There is no other full-time general manager. The sales manager is also a full-time commissioned salesman. The dealership facilities are basically unchanged since before Rich Motors came into existence in 1965.

A contract was executed on April 1,1971, between the parties as part of a nationwide renegotiation of agreements between International Harvester and its dealers. The requirements of Rich Motors are cast in general terms. Rich Motors agreed, for example, to “provide and maintain physical facilities commensurate with the sales possibilities and service needs in the Dealer’s trade area, including ... a building of acceptable appearance and sufficient size . . to provide and maintain signs recommended and approved by International Harvester; to maintain an invem-tory of International vehicles and parts “in keeping with the sales possibilities in his trade area”; to use promotional and advertising materials made available by the company and to advertise as provided for in the agreement. Perhaps the most important portion of the contract was for Rich Motors “[t]o achieve a reasonable share of the market, for the goods covered by the agreement, in the normal trade area served by the Dealer’s location.”

In return, Rich Motors was made the franchise dealer for the eastern half of Palm Beach County for heavy duty trucks and the eastern half of Palm Beach County north of Boynton Beach for light and medium duty trucks. Rich’s trade area was considered by International a primary market and one of the most important in the state.

By early 1972, Rich was receiving unsatisfactory performance evaluations from International’s district manager. In April, 1974, International Harvester notified Rich it was in violation of several sections in the agreement and that the contract would be terminated if corrective action was not taken. In August, 1975, International Harvester notified Rich, effective 90 days later, the agreement between the parties would be terminated.

Rich Motors then sought this administrative action.

RICH MOTORS’ CONTENTIONS

International Harvester in 1972 attempted to install a dealership in neighboring Delray Beach. Rich contends it informally protested the action to International, but the complaints were ignored. Rich formally complained to the Department of Highway Safety and Motor Vehicles, under another subsection of Section 320.641. John Calvin, the same director who heard this proceeding, granted the application for the Delray Beach dealership following a hearing in October, 1973. Rich contends it was only then that the relationship between the parties began to deteriorate, as reflected by International Harvester’s evaluations of Rich Motors. This culminated in the August 21, 1975 notice to Rich of International’s intention to cancel the franchise agreement. Rich further contends International had attempted to coerce it to find new and expanded facilities, with a much greater investment in inventory and fixed costs. In view of the economic data available to Rich, its opposition to International Harvester’s pressures for greater investment was reasonable. International Harvester’s notice of cancellation was the result of Rich Motor’s reasonable refusal to comply with demands concerning increased investment in inventory and premises. Rich continues the criteria upon which International Harvester relied to justify the cancellation was applied to it in a biased manner compared to the treatment of other franchised dealers of International since there were other dealerships in Florida and in the region with similar physical plants and below average market penetration. Such other dealerships were not similarly singled out for cancellation.

INTERNATIONAL HARVESTER’S CONTENTIONS

International refers to the following evidence in support of its termination: At the time the new franchise agreements were executed in 1971, the facilities at Rich Motors were then deemed satisfactory but were considered to need improvement for future growth. In March, 1972, prior to Rich’s protest of the new dealership, both market penetration and advertising promotion were rated unsatisfactory. In January, 1973, Rich’s market penetration, inventory and advertising were all rated unsatisfactory. Sales possibilities for the area in 1973 were calculated by International to be roughly $2,000,000.00. Rich’s sales were only $1,400,000.00 or about 70% of the estimated sales potential. International also calculated three to five acres of land were needed for an adequate facility to handle the trade area while Rich only had one and one-tenth acres. From 1972 to 1973 the truck market in Rich’s trade area grew 84% overall. Medium duty truck sales grew 59% while heavy duty truck sales grew 110%. Rich also refused to install a new identification sign approved by International Harvester. Although Rich was International’s heavy duty truck dealer for the area, it refused to stock any heavy duty trucks. Any such sales were by special order.

Market penetration of Rich Motors was measured by International using the R. L. Polk compilation of registrations. International’s data showed 265 new heavy duty trucks of all makes registered in Rich’s trade area in 1973. Rich Motors sold 16 or 6%. Other key market International Harvester dealers in Florida averaged 15.3%. Average sales from all southeastern states were 19.2%. Twenty-eight International Harvester trucks were delivered in Rich’s trade area with Rich accounting for only 16.

Three hundred forty-one new medium duty trucks of all makes were registered in the trade area during 1973. Rich reported sales of 29 International Harvester trucks or 8.5%. The key market average was 13.9%, while the regional average was 12.2%. Rich’s sales of 29 trucks were less than half the 67 new International medium duty trucks registered in the area for 1973. Its sales of light duty trucks was, however, competitive. Rich sold 56 of the 3,602 light duty trucks of all makes registered in the trade area in 1973, or 1.3%. The key market average was 1.7% and the regional average 1.6%.

During 1974, 170 heavy duty trucks were registered in Rich’s trade area. Rich sold 7 or 4.1%. The regional average was 19.5% and the key market average was 19.6%. Rich sold only seven of the 24 International Harvester heavy duty trucks registered in 1974. Of 205 new medium duty trucks registered in 1974, Rich sold 22 or 10.7%. The regional average was 14% and the key market average was 21.7%. Figures for the first quarter of 1975 revealed about the same level of market penetration by Rich for heavy duty and medium duty trucks as the preceding year.

Rich Motors was also required by the contract’s terms to advertise sufficiently International’s products. International calculated the national average spent on advertising by motor vehicle dealers is one-half of 1% of the total operating budget. Rich spent only one-tenth of one percent or about 20% of what the average motor vehicle dealer spends. Moreover full use was not made of the cooperative advertising programs with the manufacturer, of which International agreed to provide one-half the cost.

AGENCY ACTION

The Director rejected the proposed findings of fact submitted by International as summarized above. The proposed findings of Rich Motors were adopted in full. The cancellation of the franchise agreement was found to be done in bad faith by the manufacturer, constituting an unfair cancellation under Sections 320.64(7), (8) and 320.641. The Director ordered Rich Motors to continue to act as the licensed International Harvester dealer in West Palm Beach under all present contractual agreements.

ANALYSIS

Sections 320.60-70 were enacted as part of a legislative scheme to insure fair dealing at all levels between motor vehicle manufacturers, the dealers and the consuming public. Section 320.641 specifically deals with unfair cancellations of franchise agreements and provides in subsection (3) for administrative review by the Director. The only criterion for agency review under Section 320.641(3) is whether the franchise agreement was unfairly cancelled. In permitting such review, it is obvious the legislative intent was to redress the economic imbalance which customarily exists between national manufacturers and local dealers. A second reason for agency review is to protect dealerships from arbitrary and discriminatory action when manufacturers seek to impose the franchise agreement’s broad requirements upon dealers as a pre-text to terminate. Another reason, as alleged here by Rich, is when the manufacturer coerces a dealer to buy more inventory or make more expenditures it would not make but for fear of termination of its franchise. It is not, however, coercion for the manufacturer to attempt to enforce the valid contractual obligations of another party. We must therefore attempt to determine from the evidence the motives leading to International’s decision to cancel.

We are again faced, as in Pasco County-School Board v. PERC, 353 So.2d 108 (Fla. 1st DCA 1977), and Columbia County Board of Public Instruction, 353 So.2d 127 (Fla. 1st DCA 1977), with the difficult problem of determining the subjective intent of a party. As in Pasco County, we adopt the United States Supreme Court’s reasoning in Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), as the proper test for determining such intent.

Contrary to the argument in the Director’s brief, it is Rich Motors which has the initial burden of proof to show by a preponderance of the evidence the unfairness of International’s decision to terminate the franchise agreement. The burden, following a prima facie showing of bad faith, shifts to International Harvester to show by a preponderance of the evidence it would have reached the same decision even in the absence of the alleged bad faith. Mt. Healthy, supra, at 286, 97 S.Ct. 568.

It is questionable whether Rich Motors, by its bald assertion International Harvester desired termination of the dealership after Rich had protested the neighboring Delray Beach dealership, has made a prima facie showing of unfairness. Nevertheless we find the objective data introduced by International Harvester, and substantially uncontradicted by Rich Motors, is so overwhelming as to establish an independent reason for termination of the contract.

The Director rejected the figures submitted by International Harvester, holding (1) the evidence and testimony presented did not establish why a certain level of market penetration should justify the termination of the franchise agreements; (2) the yearly truck registration figures offered are at variance with the actual sales and the physical location of the trucks in this particular trade area; (3) International failed to consider specific factors and individual equities of the dealer in applying its criteria.

These reasons are not supported by the evidence. First, Rich’s market penetration was compared not only with other International dealers in the region but also with dealers in similar or “key” markets. The evidence was unrefuted that R. L. Polk figures are used by most, if not all, motor vehicle manufacturers in grading dealer performance.

Secondly, yearly truck registration figures are more illuminating in showing Rich’s market share. International’s market is calculated by the number of its trucks registered in the trade area as a percentage of the total trucks registered. But Rich sold only a portion of new International trucks within the trade area. As listed above, only 16 of the 28 heavy duty International trucks registered in 1973 in the area were sold by Rich. Only 29 of the 67 new medium duty trucks registered were sold by Rich. This indicates other International dealers were successfully selling trucks to customers in Rich’s trade area.

Thirdly, the Director’s finding that specific factors and individual equities of the dealer were not considered is contradicted by the testimony of Fred Jennings, International’s regional business manager:

“We compare as outlined in the Sales and Service Agreement by using the R. L. Polk lists. We don’t specify R. L. Polk but we specify those particular kinds of lists that we compare. We compare him to other dealers in the area. We compare him to dealers in similar markets. We compare him to dealers all over the United States and we make every comparison we can think of to make before we tell a dealer that he is unsatisfactory.”

We conclude it was International’s consideration of Rich’s peculiar market situation which led to the termination. There are dealers in the state with the same or worse facilities and dealers with a lower market penetration. None have such a large trade area. If such dealers sold very few trucks it would not make a great deal of difference. But Rich’s failure to be competitive in a large potential market means lost sales on a large number of units. This was International’s legitimate business concern.

We find International Harvester’s decision to terminate in accordance with the franchise agreement between the parties. Any prima facie showing of unfairness by Rich Motors was clearly rebutted by the objective data submitted by International.

The Director’s order is REVERSED.

MILLS, J., concurs.

BOYER, Acting C. J., dissents.

BOYER, Acting Chief Judge,

dissenting.

Were we the initial reviewing forum with the duty and prerogative of making findings of fact I would be in complete agreement with my brother judges. I concur that my own view of the evidence is that Rich failed to discharge its responsibilities. However, as I conceive the law to be, it was the function of the Director to make findings of fact and a final determination based thereon. I am of the view that although I readily concede that I would have found contra, nevertheless, the Director made his determination based upon substantial competent evidence. I would accordingly affirm.

      . The Director failed to consider International’s proposed findings of facts in his original order. We remanded for entry of a proper order as required by § 120.59(2), Fla.Stat. (1975) and § 120.68(8), Fla.Stat. (Supp.1976).

      . Health & R. S. v. Career Serv. Comm., 289 So.2d 412, 415 (Fla. 4th DCA 1974).

      . As stated above, we adopted the reasoning in Mt. Healthy when considering a public employer’s alleged bad faith leading to the decision not to renew certain school teachers’ contracts in Pasco County. This is perhaps not as sensitive an area as public labor relations. There is here not the aura of First Amendment and Florida constitutional rights of speech and association as in labor relations cases. Nor are the parties here in the necessarily adversary relationship of unions and employers. The aims of the manufacturer and dealer are basically the same — to make a profit. It makes less sense to attribute a bad motive to a manufacturer when the relationship with the dealer is so obviously symbiotic.

      . Rich put on no evidence showing such encroachment was attributable to the manufacturer or was done with bad motives.


author: PER CURIAM.

text:
    Dionie LAY, Appellant, v. Ruth KRAUSE, Appellee.
    No. FF-93.
    District Court of Appeal of Florida, First District.
    Nov. 29, 1977.
    Rehearing Denied Jan. 13, 1978.
    O. E. Adams, Sr., Pensacola, for appellant.
    Ruth Krause, in pro per.
   PER CURIAM.

Honoring appellant’s request that we treat the notice of appeal as a petition for commonlaw certiorari, which we do, we nevertheless find from an examination of the record that we have no jurisdiction. (See Grandin Lake Shores Association, Inc. v. Underwood, 351 So.2d 1131 (Fla. 1st DCA 1977). Accordingly, the petition is

DISMISSED.

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


author: SMITH, Judge. ERVIN, Judge,

text:
    STATE of Florida, Appellant, v. Milton Talliaferro CADIEU, Appellee.
    No. FF-141.
    District Court of Appeal of Florida, First District.
    Nov. 29, 1977.
    Rehearing Denied Jan. 13, 1978.
    Robert L. Shevin, Atty. Gen., Wallace E. Allbritton, Asst. Atty. Gen., Raymond T. McNeal, Asst. State Atty., for appellant.
    John E. Futch, Fore & Futch, P.A., Ocala, for appellee.
   SMITH, Judge.

The State appeals from a trial court order arresting judgment on Cadieu’s conviction for violation of Section 800.04, Florida Statutes (1975), providing:

“Any person who shall handle, fondle or make an assault upon any child under the age of 14 years in a lewd, lascivious or indecent manner . . . without the intent to commit involuntary sexual battery shall be guilty of a felony of the second degree . . .

Following a jury verdict of guilty, the court on Cadieu’s motion arrested judgment and discharged Cadieu on the ground “The information upon which the Defendant was tried is so defective that it will not support a conviction . . . Fla.R.Cr.P. 3.610(a)(1). We reverse.

The information charged in four counts that Cadieu on stated dates “did unlawfully handle, fondle or make an assault upon [name] a female child of the age of [under 14 years] in a lewd, lascivious or indecent manner, without the intent to commit Involuntary Sexual Battery . . . The trial court held the information fatally vague because it did not specify the “lewd, lascivious or indecent manner” in which the accused allegedly handled the children. Had the information been timely challenged before or upon arraignment, by motion to dismiss pursuant to Fla.R.Cr.P. 3.190(b) and (c), we would unhesitatingly agree with the trial court that the information fails to give the accused adequate notice of the particular act of which he was accused. State ex rel. Swanboro v. Mayo, 155 Fla. 330, 19 So.2d 883 (1944). But, because no such motion was made — we disregard as dehors the record and as not quite relevant the representation in Cadieu’s brief that an oral motion to dismiss was made “at the commencement of the trial” — the information is to be judged post-trial by a different and more liberal standard. Fountain v. State, 92 Fla. 262, 109 So. 463 (1926). The information is cast in the statutory language. Though it is imperfect because it does not descend from statutory generalities to essential particulars, the information is not so defective that it “will not support a judgment of conviction” and is vulnerable to initial post-trial attack. When confronted with an information that is defective only in failing to charge particulars within a generic statutory description of proscribed conduct, the accused must either challenge the information by motion, thus providing opportunity for a new and curative information, or be satisfied with resolving his doubts by discovery and a motion for statement of particulars. The law does not favor a strategy of withholding attack on the information until the defendant is in jeopardy, then moving to bar the prosecution entirely. Sinclair v. State, 46 So.2d 453 (Fla.1950).

Swanboro, which supports Cadieu’s criticism of this information, was rendered after conviction on petition for habeas corpus at a time when Section 920.05, Florida Statutes (1941), provided for arrest of judgment on the ground “the indictment or information does not charge an offense.” The corresponding ground of present Rule 3.610(a)(1) is that the indictment or information “is so defective that it will not support a conviction.” The change was made

“to better take into account the fact that an accusatorial writ which would not withstand a motion to qaush (dismiss) might well support a judgment of conviction if no such motion is filed.” Committee Note on Rule 3.610, 34 F.S.A. 229 (1975).

REVERSED.

MILLS, Acting Chief Judge, concurs.

ERVIN, J., specially concurring.

ERVIN, Judge,

specially concurring.

While the grounds for motions in arrest of judgment have been modified since State ex rel. Swanboro v. Mayo, 155 Fla. 330, 19 So.2d 883 (1944) was decided, the relevant language here has not been. Ch. 19554, Section 242, Laws of Florida (1939) provided:

“Judgment shall be arrested only on one or more of the following grounds:
* * * * * *
(d) That the defendant was convicted of an offense for which he could not be convicted under the indictment or information. . . . ”

Fla.R.Crim.P. 3.610(a) states:

“The Court shall grant a motion in arrest of judgment only on one or more of the following grounds:
******
(4) That the defendant was convicted of an offense for which he could not be convicted under the indictment or information under which he was tried.”

The standard for arresting judgment is the same now as when Swanboro was decided. Convictions must fall under an information wholly failing to charge an offense. Compare Catanese v. State, 251 So.2d 572 (Fla. 4th DCA 1971). If the Swanboro rule is applicable here, so that Cadieu’s information is fatally vague, then we have no alternative but to affirm.

However, the informations are, I think, materially different. Swanboro was charged by an information with

“a lewd and lascivious act in the presence of children under the age of fourteen years, to wit: in the presence of Ola Artie Pittman and Ann Weems, without intent to commit rape upon such children (Sec. 800.04 1943) contrary to the form of the Statute in such case made and provided, and against the peace and dignity of the State of Florida.”

The information in this case charged that Cadieu did “unlawfully handle, fondle or make an assault upon [name] a female child of the age of [under fourteen years] in a lewd, lascivious or indecent manner, without the intent to commit involuntary sexual battery. ...”

The Supreme Court in Swanboro, upon a post-conviction petition for writ of habeas corpus, held the criminal act must be definitely and precisely set out in the information because of the inherent vagueness of the terms “lewd and lascivious.” Had Ca-dieu been charged only with a lewd and lascivious act, then clearly in my opinion the information would be properly subject to a motion for arrest; however the words “lewd and lascivious” merely modified the acts of handling, fondling or assaulting a named child. In my view these additional words were sufficient to place a defendant on notice of his improper conduct. Compare Adams v. Culver, 111 So.2d 665 (Fla.1959), in which a defendant was charged with “a lewd and lascivious act before . , a female, aged eleven years, by exhibiting a lewd and pornographic picture in the presence of said minor female, without intent to commit rape.” The Supreme Court held the allegations adequately apprised the petitioner of “the nature and cause of the accusation against him,” and protected him from any subsequent prosecution for the same offense.

It is on this ground that I concur with the reversal of the order arresting judgment.

      . While one of the statutory grounds was different from that presently, stated in Rule 3.610(a), the grounds as to both statute and rule are stated in the alternative. A defendant need only rely on one of the four in order to seek relief.


author: NATHAN, Judge.

text:
    Peter STORER and Stuart W. Patton, as Co-Executors of the Estate of George B. Storer, Deceased, Appellants, v. Dorothy M. STORER, Appellee.
    No. 74-1392.
    District Court of Appeal of Florida, Third District.
    Nov. 29, 1977.
    Rehearing Denied Jan. 5, 1978.

      Patton, Kanner, Segal, Zeller, LaPorte & King, Miami, Spector & Tunnicliff, Tallahassee, for appellants.
    Kelly, Black, Black & Kenny and William G. Earle, Miami, for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   NATHAN, Judge.

The appellants, Peter Storer. and Stuart W. Patton, as co-executors of the estate of the deceased husband, George B. Storer, seek review of a final judgment determining alimony, attorneys fees and costs, in an action for dissolution of marriage instituted by the wife, Dorothy M. Storer, appellee herein.

The record reflects that the parties were married in 1960; that the marriage was of 12 years duration; and that the wife was 74 years old at the time of the entry of the final judgment in 1974. As stated on the record by the trial judge,

“. . . the style of living which these parties accustomed themselves to boggles the mind.”

A brief introduction to the facts in this case includes the following: the couple spent about 6 months of the year in their luxurious home on Indian Creek Island, Miami Beach, Florida. They spent the remaining months of the year in Wyoming on the Storer ranch in their substantial home there. The Storers also owned several guest houses and a golf course in Wyoming and property in the Bahamas. In New York City, there was a suite maintained for their exclusive use which they visited a few times each year. They had several servants, belonged to the best clubs, traveled in grand style and entertained lavishly.

During the course of the 12 year marriage, the parties owned several boats, at lways available. They owned a Lear jet-least one of which was a 108 foot yacht, and all of which were named after Mrs. Storer. Captain and crew of 6 were always available. They owned a Lear jet and other planes. In fact, from the ranch in Wyoming, Mrs. Storer would fly her lady friends in one of the private planes to Denver for lunch every two or three weeks.

According to Mrs. Storer, her husband’s net worth was in excess of $31,000,000.00. His tax returns indicated that he spent $450,000.00 a year in purchases with sales tax ramifications, about $70,000.00 in charitable contributions, and $20,000.00 in real estate taxes. There was evidence that Mr. Storer spent some $250,000.00 a year maintaining his private planes and boats, and it was estimated that his average yearly expenditures were over $600,000.00.

The marriage became irretrievably broken in 1971 when Mr. Storer met a nurse whom he decided to marry. He informed Mrs. Storer that he did not want to live with her any more, and he left her. After an attempted settlement in Florida with Dorothy Storer failed, Mr. Storer went to Wyoming and filed suit for divorce on April 21, 1972. Mrs. Storer was constructively served in Miami pursuant to a Wyoming long arm statute. She then proceeded to file a petition for dissolution of marriage in Dade County, Florida, on May 22, 1972. Although Mrs. Storer made no appearance in the Wyoming proceedings, on May 30, 1972, the Wyoming court granted Mr. Storer a divorce, and entered an order determining the property rights of Mrs. Storer. She then amended her complaint in the Dade County proceedings.

Mr. Storer was personally served in Dade County in January, 1973. He filed an answer and requested that the Wyoming divorce and alimony decree be given full faith and credit in Florida. A two and one half year jurisdictional dispute began. Subsequently, the trial judge entered an order denying the husband’s motion to quash the Florida divorce proceedings, in which the court found that the wife was a domiciliary of Florida when the Wyoming proceedings took place, and concluded that the Wyoming decree was not entitled to full faith and credit insofar as it determined alimony and the property rights of the wife. On interlocutory appeal to this court, the order of the trial court was affirmed. See Storer v. Storer, 305 So.2d 212 (Fla. 3d DCA 1974); certiorari denied by Florida Supreme Court, 346 So.2d 994 (Fla.1977); application for stay denied by United States Supreme Court, July 27, 1977.

The trial court held a hearing on the matters of alimony and attorneys fees and costs and entered the following final judgment which is the subject of this appeal:

FINAL JUDGMENT
* * * * * *
1. The wife should be and hereby is awarded lump sum alimony as follows:
(a) Two Million Two Hundred Sixty-One Thousand Dollars ($2,261,000.00); this sum shall be paid by George B. Storer to Dorothy Storer in monthly installments of $19,000.00 for a total of 119 months. .
(b) The fee simple interest in all real property located at 26 Indian Creek Island, Dade County, Florida . .together with all furniture, furnishings and contents therein. .
2. The lump sum alimony awarded herein is decreed to be vested in Dorothy Storer as of the date of this final judgment. It is not subject in any way to the death, change in economic status, or remarriage of either party. It is the specific direction of this Court that neither the death of George B. Storer nor the death of Dorothy Storer prior to the full payment of the vested lump sum alimony awarded herein shall have any effect on the judgment of this Court. In the event of the death of George B. Storer prior to full payment of the sum herein awarded, his estate shall be chargeable with the balance of the payments. Likewise, in the event of the death of Dorothy Storer prior to the full payment of the sum herein awarded, George B. Storer shall continue to make payments to the estate of Dorothy Storer.
3. The issue of what constitutes a reasonable attorney’s fee for the wife’s attorneys is not before the Court. Rather the issue is what amount, if any, of a reasonable attorney’s fee for the wife’s attorneys should be borne by respondent. The Court determines that $200,000.00 be paid by the respondent, George B. Storer, . as fees for the wife’s attorneys.
* * * * * *

In October, 1974, this appeal was taken to challenge the provisions of the final judgment. In November, 1975, George Storer died. Pursuant to motion for substitution, Peter Storer and Stuart W. Patton, as co-executors of the estate of George B. Storer, were substituted as parties appellant in this court. The following questions are raised by the appellants in this appeal:

(1) Was the cash lump sum award to the wife of $2,261,000.00 arbitrary and excessive, and did it constitute an abuse of discretion?
(2) Did the court, in making and entering the final judgment, err in therein providing that the periodic payments to be made, to the wife should survive the death of either party?
(3) Did the court err in awarding to the wife the home which was in the sole name of the husband, together with furnishings and fixtures, when no special equity was claimed or proven?
(4) Did the court err in light of the award to the wife in requiring the husband to pay $200,000.00 in attorneys fees?

Before we address these questions specifically, we note that as a general rule, in appellate proceedings, the trial court’s findings and conclusions are shielded from attack and are clothed with the presumption of validity. Even if the appellate court disagrees with the trial court and would have reached a different conclusion had it been in the shoes of the trial court, barring a lack of substantial evidentiary support for the trial court’s findings, the judgment should be affirmed. Herzog v. Herzog, 346 So.2d 56 (Fla.1977). Also see Pross v. Pross, 72 So.2d 671 (Fla.1954), and Baker v. Baker, 299 So.2d 138 (Fla. 3d DCA 1974).

The scope of our review in cases such as this was sharply dealt with by the Florida Supreme Court in Shaw v. Shaw, 334 So.2d 13 (Fla.1976). In that case, it was held that an alimony award by a trial judge is a matter of fact, the determination of which is committed to the trial judge and not the appellate court; and that a modification by this court of the alimony and property awards in the trial court’s judgment amounted to a re-evaluation of the evidence and substitution of this court’s judgment for that of the trial court. As stated at page 16,

“It is clear that the function of the trial court is to evaluate and weigh the testimony and evidence based upon its observation of the bearing, demeanor and credibility of the witnesses appearing in the cause. It is not the function of the appellate court to substitute its judgment for that of the trial court through reevaluation of the testimony and evidence from the record on appeal before it. The test ... is whether the judgment of the trial court is supported by competent evidence. Subject to the appellate court’s right to reject ‘inherently incredible and improbable testimony or evidence,’ it is not the prerogative of an appellate court, upon a de novo consideration of the record, to substitute its judgment for that of the trial court.”

The opinion further states that while the district court of appeal or the Florida Supreme Court might have reached a different financial balance and divided the assets of the parties some other way, it was not error or an abuse of discretion for the trial court to arrive at the result it reached. Shaw v. Shaw, page 17.

The record in the case now before us reflects that the trial judge held a one-day hearing on the questions of alimony and property. The wife’s undisputed testimony and evidence as to the parties’ standard of living and financial status, including balance statements and income tax returns, was the only evidence before the trial judge, from which he could make his findings.

Turning now to the questions presented on appeal, the first concerns whether the lump sum award of alimony to the wife in the amount of $2,261,000.00, was arbitrary, excessive and an abuse of discretion. We think not.

The courts of Florida follow two criteria in determining the amount of alimony, if any, to be awarded: (1) the husband’s ability to pay, and (2) the needs of the wife, taking into consideration the standard of living shared by the parties to the marriage. Pfohl v. Piohl, 345 So.2d 371, 375 (Fla. 3d DCA 1977), and cases cited therein. Lump sum alimony is justified only where it serves a reasonable purpose, such as rehabilitation, or where the marriage’s duration or the parties’ financial position would make such an award advantageous to both. Calligarich v. Calligarich, 256 So.2d 60 (Fla. 4th DCA 1971); Jones v. Jones, 330 So.2d 536, 538 (Fla. 1st DCA 1976); Cann v. Cann, 334 So.2d 325, 328 (Fla. 1st DCA 1976). Lump sum alimony may be made payable in installments. Cann v. Cann, supra; Section 61.08, Florida Statutes (1975). The wife’s needs and the husband’s ability to pay are still the correct equation to follow. Calligarich v. Calligarich, supra.

Where, as here, the husband’s financial condition is such as to enable him to respond to a gross allowance of alimony without financial hardship, it may be the better solution to grant such an allowance when all other equitable considerations justify it, and thereby avoid vexatious and endless litigation. Yandell v. Yandell, 39 So.2d 554 (Fla.1949). Lump sum alimony may be the proper and better practice in a situation such as this where the divorce is an absolute divergence of the lives of the parties, there being no children involved. Yandell v. Yandell, supra, at page 556. Also see Goode v. Goode, 76 So.2d 794 (Fla.1954); Bradley v. Bradley, 327 So.2d 253 (Fla. 4th DCA 1976).

The record before us contains ample, substantial, competent evidence to support the amount of the lump sum alimony award. The wife presented evidence of the husband’s net worth, in excess of $31,000,-000.00; annual salary of $60,000.00; annual dividends of $880,000.00; annual interest income of $28,000.00; annual tax-exempt income of $450,000.00; plus the homes and other property owned by the husband, and the parties’ standard of living during the marriage. From the particular facts of this case, we find no doubt that the trial judge properly characterized the financial status of the parties, contemplating the present and future needs of the wife, and the present ability of the husband to pay, when he entered the judgment. The record clearly demonstrates that the scale of living shared by the couple during marriage, the ability of the husband to respond and the needs of the wife were sufficient to justify the trial court’s findings and the amount of the award. We find no abuse of discretion and affirm the lump sum alimony award. Ortiz v. Ortiz, 211 So.2d 243 (Fla. 3d DCA 1968); Baker v. Baker, supra. We further conclude that the arrangement for installment payments of the lump sum award finds legal, substantial and competent support in the record. See Pross v. Pross, supra.

The appellants’ second question is whether the court erred in providing in the final judgment that the alimony payments to the wife should survive the death of either party. Again, we think not.

Lump sum alimony awards have long been upheld in Florida courts. Yandell v. Yandell, supra; Pross v. Pross, supra; Zohlman v. Zohlman, 235 So.2d 532 (Fla. 3d DCA 1970); Fishman v. Fishman, 245 So.2d 258 (Fla. 3d DCA 1971); Langston v. Langston, 257 So.2d 625 (Fla. 3d DCA 1972). By definition, an award of lump sum alimony vests in the recipient at the time of the final decree, and is not subject to defeasance or modification. Latta v. Latta, 135 So.2d 443, 444 (Fla. 3d DCA 1961); Keller v. Belcher, 256 So.2d 561 (Fla. 3d DCA 1971).

Just as it is within the trial court’s discretion to order an award of lump sum alimony, Ortiz v. Ortiz, supra, it is within the court’s discretion to determine what alimony arrangement would be most equitable under the circumstances of the case, Bosem v. Bosem, 279 So.2d 863 (Fla.1973), and that discretion includes ordering lump sum alimony to be payable in installments. Pross v. Pross, supra; Gann v. Cann, supra. Even where payable in installments, however, the lump sum is a fixed amount vested in the wife, and the husband’s obligation to pay it has every element of finality. Yandell v. Yandell, supra, page 556. The award in this case is consistent with Section 61.08, Florida Statutes (1973), which provides in pertinent part that,

. . the court may grant alimony to either party, which alimony may be rehabilitative or permanent in nature. In any award of alimony, the court may order periodic payments or payments in lump sum or both. . . . ” (emphasis supplied)

We hold that Dorothy Storer’s right to receive lump sum alimony in equal monthly installments became fixed and final under the final judgment.

The third question on appeal is whether the court erred in awarding to the wife as lump sum alimony, the home on Indian Creek Island, which was owned solely by the husband before and during the marriage, together with all of his furniture and fixtures, when no special equities were shown by the wife. We find that reversible error has been committed in this regard. While there is authority for the proposition that the wife can be awarded property belonging solely to the husband, such an award is proper only in certain circumstances.

Lump sum alimony should be awarded only where some special equities require it. Yandell v. Yandell, supra. The burden of proof is on the wife to sustain a special equity and to establish to the exclusion of a reasonable doubt that she had acquired a legal or equitable title in the property. Singer v. Singer, 262 So.2d 731 (Fla. 3d DCA 1972). No special equity has been shown by Mrs. Storer.

On the contrary, the record reflects that Mr. Storer was the sole owner of the home and its contents prior to and during the marriage. Mrs. Storer failed to demonstrate that she made any financial contribution to the purchase or maintenance of the Indian Creek home, or to any of the other properties owned by Mr. Storer. Nor did she demonstrate that she contributed such personal services to the marriage as to warrant an award of the home to her as lump sum alimony. The record also fails to reflect a showing of great need for the home. Neither the briefs, supplements to the briefs, oral argument nor our extensive research, has led us to a case which stands for the proposition that a trial judge may award to one spouse as lump sum alimony, property belonging solely to the other spouse, absent a showing of special equities or great need. See Bezanilla v. Bezanilla, 65 So.2d 754 (Fla.1953); Reid v. Reid, 68 So.2d 821, 822 (Fla.1953).

We hold that a trial judge cannot order the husband to give to the wife as lump sum alimony, specific real property or personal effects of which he is the sole owner, unless there is a showing of special equities or great need. While it was proper in this case for the court to award the wife a specified amount of cash as lump sum alimony, it was improper to order the husband to divest himself of this solely owned property as an award of lump sum alimony. To hold otherwise would permit the court to make a division of a spouse’s solely owned property by way of lump sum alimony. Accordingly, we find that the award to the wife of the husband’s real and personal property as lump sum alimony constitutes error, and we reverse that portion of the final judgment.

The fourth question on appeal is whether the court erred in requiring the husband to pay $200,000.00 of the wife’s attorneys fees. We find no error in the award of attorneys fees.

A hearing was held on the issues of attorneys fees and costs. Expert testimony was presented on behalf of both parties. The trial court, in making its determination of the portion of the wife’s attorneys fees to be paid by the husband, stated that, “. . . the record should contain a full and fair reflection of the Court’s feelings on all of the matters.” It was then determined that a reasonable fee for the wife’s attorneys would be $400,000.00, and that it would be reasonable for the husband to pay $200,000.00, or one half of that amount.

We find that this award of attorneys fees is not so excessive as to constitute an abuse of discretion. The expert testimony established the value of the case, and the amount of the award was within the bounds of the experts’ recommendations. It is apparent from the lengthy record that the case involved such difficulty and complexity, and required such skill of counsel as to make the fee reasonable. See Lodding v. Dunn, 251 So.2d 560 (Fla. 3d DCA 1971); and compare Cummings v. Cummings, 330 So.2d 134 (Fla.1976).

Two other questions were raised on appeal. In our opinion, they are without merit as they are matters which were previously raised and resolved in the interlocutory appeal in this cause.

The final judgment herein appealed is affirmed in all respects except the award of the Indian Creek Island home and its contents to the wife as lump sum alimony, which is reversed.

Affirmed in part and reversed in part.


text:
    CAPITAL BANK OF NORTH BAY VILLAGE, f/k/a Bank of North Bay Village, a Florida Bank Corporation, Appellant, v. HARTNETT BUILDING MANAGEMENT, INC., a Florida Corporation, William J. Hartnett, John J. Hartnett, Robert C. Hartnett, James D. Hartnett, Elizabeth R. Hartnett, Jacqueline B. Hartnett, Kathleen N. Hartnett, Katherine P. Hartnett, Appellees.
    No. 76-1275.
    District Court of Appeal of Florida, Third District.
    Nov. 29, 1977.
    Rehearing Denied Jan. 9, 1978.
    Stroock, Stroock & Lavan, Miami, for appellant.
    Ritter & Ritter, John L. Hartnett, Coral Gables, for appellees.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   PER CURIAM.

This is an appeal from an order dismissing with prejudice the appellees as defendants from plaintiff’s complaint. The appel-lees were the alleged endorsees and the alleged guarantors of a bank debt. After hearing the motion to dismiss, the trial court entered the order appealed from which found as a matter of fact that the personal guarantees were inconsistent with negotiations between the bank and the debtors. This finding of fact is outside the scope of a ruling on a motion to dismiss inasmuch as a motion to dismiss admits all matters well pleaded and should be granted with prejudice only when it appears from the complaint that the plaintiff cannot state a cause of action against the defendants. See Posey v. Ford Motor Company, 128 So.2d 149 (Fla. 1st DCA 1961); and Leonard v. Browne, 134 So.2d 872 (Fla. 1st DCA 1961).

Therefore, the order dismissing the complaint as to these defendants is reversed with directions to grant the defendants a reasonable time to file an answer setting up the factual defenses relied upon.

Reversed and remanded with directions.


text:
    Ramon B. FISCH, Appellant, v. Burton RADOFF, and Edgewater Beach Hotel, Inc., a Florida Corporation, Appellees.
    No. 76-1781.
    District Court of Appeal of Florida, Third District.
    Nov. 29, 1977.
    Rehearing Denied Jan. 4, 1978.

      Podhurst, Orseck & Parks and Michael S. Olin, Miami, for appellant.
    Friedman & Britton and Arnold D. Schatzman, Miami, for appellees.
    Before HENDRY, C. J., and NATHAN and KEHOE, JJ.
   NATHAN, Judge.

This is an appeal by Ramon B. Fisch, a real estate broker and plaintiff below, from an adverse final judgment pursuant to a directed verdict in a breach of contract action against a corporation and its president. The primary issue to be decided is whether any evidence adduced at trial could support a jury verdict for the plaintiff. We find such evidence in the record and reverse the decision below.

The essential facts are as follows. On August 2, 1974, after extensive negotiation, the parties entered into a “Multiple Listing Agreement,” a form of employment contract, by which defendants Radoff and/or Edgewater Beach Hotel, Inc. agreed to give plaintiff Fisch the sole right and authority to find a purchaser for the Edge-water Beach Hotel, a property designated on the contract by a legal description of real property. Prior to executing the contract both sides were aware that the hotel was a corporate asset, ownership of which resided in Edgewater Beach, Inc., and that Burton Radoff was president of this corporation.

The pertinent terms of the contract and an addendum thereto provided that: (1) In return for his efforts to find a purchaser for the described property, plaintiff would have, for a nine month period, an exclusive right to find a purchaser, and, if the purchaser were ready, willing and able to buy, to receive a commission equal to six percent of the sale price; (2) The price would be $925,000, “or . . . any other price and terms acceptable to the undersigned owners)”; (3) Defendants would enter a written contract with the purchaser plaintiff found “on a form the same as or similar to the Miami Beach Board of Realtors standard Deposit Receipt Agreement”; (4) Defendants had the right to cancel the agreement prior to its termination date upon payment of one-half the agreed brokerage fee; and (5) Defendants would close or give occupancy within thirty days of execution of the Deposit Receipt Agreement “except as per attached addendum.” The addendum provided that Edgewater Beach Hotel, Inc. would give possession only at certain times and by means of the transfer of all stock in that corporation to the purchaser. It further provided that the corporation would indemnify the purchaser against debts, liabilities, and claims of and to the corporation.

Fisch forwarded the listing to the Miami Beach Board of Realtors Multiple Listing Service. When published by this service, the listing incorrectly showed Radoff as sole owner of the property. Radoff tried to get the Board of Realtors to cancel the listing, but, since only the broker had authority to do this, a meeting was held among Fisch, his salespeople, and Radoff on August 12, 1974, at which Radoff asked Fisch to terminate the arrangement. Among other things, Radoff indicated that tax problems precluded transfer of the corporation’s stock from his mother, sole owner thereof, to himself. No agreement was reached at this meeting.

On September 1, 1974, Radoff sent Fisch a letter cancelling the listing. The letter gave as a reason for the cancellation, lack of authority to have given the listing in the first place. Radoff contends he only can-celled the listing as published. Fisch understood the termination to go to the broker-principal relationship, and did no further work to locate a purchaser. No purchaser was found by Fisch. The action sub judice ensued, Fisch alleging breach of contract and seeking damages pursuant to the contract. After presentation of plaintiff’s case in chief, the trial court granted a directed verdict in favor of defendants.

Appellant contends, first, that the contract provision was for liquidated damages and not a penalty since damages were not readily ascertainable at the time of contracting, and, second, that the evidence adduced at trial establishes, at minimum, a jury question as to whether there was a breach of contract.

Appellee contends that no valid contract existed for two reasons: first, because the contract violated the principles underlying Chapter 517, Florida Statutes (the Blue Sky Laws), since a sale of stock was contemplated and Fisch was not a registered dealer, and, second, because the contract was so incomplete as to be impossible to perform. Appellee further asserts that even if the contract were valid, it was never terminated, and that the damages clause was an unenforceable penalty since damages were ascertainable at the time of contracting.

Initially we note that Chapter 517, Florida Statutes, is irrelevant in this case. Fisch was not “in the business” of buying and selling securities, and thus was not a “dealer” as contemplated by Section 517.-02(4). More importantly, the record reveals that both parties understood at the time of contracting that, although the means of accomplishing the sale of real property would be by transfer of corporate stock the substantive intent of their dealings was to effect the safe of real property. To argue the applicability of the Blue Sky Laws is to insert a non sequitur into the proceedings and we reject this contention.

We next reach appellee’s assertion that the contract was impossible to perform. The contract at issue is an employment contract, not a sales contract. When a broker is employed to find a purchaser his is primarily a preliminary function concerned with the bringing together of the buyer and the seller. See generally Keyes Co. v. Dade County Bar Ass’n, 46 So.2d 605 (Fla.1950). The fact that the details of the sale might be difficult or even impossible to work out between the seller and the ultimate buyer does not, as a matter of law, necessarily preclude the viability of a contract which merely grants a broker the right to a commission if and when he is able to produce a purchaser, for when knowledge of the facts which make performance impossible is available to a promisor at the time he makes the contract, he cannot later invoke impossibility as a defense. Shore Investment Co. v. Hotel Trinidad, 158 Fla. 682, 29 So.2d 696 (1947). See also Metropol itan Dade County v. Babcock Company, 287 So.2d 139 (Fla.3d DCA 1973). The key to understanding this issue in this case is that plaintiff never contended that he had earned any commission because he never produced a purchaser ready, willing and able to buy the property. Cf. Falovitch v. Adrienne Realty, Inc., 345 So.2d 839 (Fla.3d DCA 1977). (When a failure of both the listing and the deposit receipt agreements to encompass the terms and conditions under which property owners are willing to sell occurs, the broker has not produced an able purchaser and is not entitled to a commission.) Here, plaintiff contends that he was denied the opportunity to perform by defendant’s untimely breach, and is therefore entitled to damages pursuant to the employment contract between the parties. Since defendant’s knowledge of the impossibility at the time of contracting precludes his assertion of the defense, impossibility does not bar plaintiff’s cause of action for breach of contract.

Appellee also contends that the provision of the contract which permitted defendants to cancel prior to the agreed termination date upon payment of one-half the stated commission was a penalty clause. We disagree. In order for a liquidated damages clause to constitute a penalty, damages must be readily ascertainable at the time of the drawing of the contract. Hutchison v. Tompkins, 259 So.2d 129 (Fla.1972). The contract herein at issue provided that the sales price was to be $925,000 or “any other price . . . acceptable to the undersigned owner(s) . . . It is well known that the distance between asking price and accepted price in real estate transactions is often a long mile indeed. Thus, at the time this contract was drawn, one-half of the agreed commission was not readily ascertainable and, as a matter of law, the clause should be construed as providing for liquidated damages.

Lastly, we reach appellee’s assertion that the contract had not been terminated. He reasons that a condition precedent to termination was the payment of one-half the agreed commission, and since that payment had never been made, the contract had not been terminated. Appellant asserts that this argument confuses termination of the contract by compliance with its terms with breach of contract by non-compliance. In essence, the conflict lies in a determination of whether the evidence presented proves that the cancellation went to the incorrect listing only, or whether it went to the entire agreement between broker and principal, for if the cancellation went only to the published listing, the contract would not have been terminated.

The record reveals that evidence was presented which could lead to either conclusion. Thus it was error for the court to take from the jury its right to determine whether the contract expired at the end of nine months or whether defendants had prematurely cancelled the entire agreement between the parties. Parsons v. Reyes, 238 So.2d 561 (Fla.1970); Guerriero v. Adams, 190 So.2d 432 (Fla.3d DCA 1966); Franklin v. Dade County, 230 So.2d 730 (Fla.3d DCA 1970); Ranger v. Avis Rent-A-Car System, Inc., 336 So.2d 467 (Fla.3d DCA 1976).

Reversed and remanded for a new trial.

      . The original complaint directed its allegations of breach of contract against the corporation only, while other allegations, later dropped, were directed at both the corporate and the individual defendants. The evidence relevant to the alleged breach of contract adduced at trial was directed against both defendants, and appellant, in his brief, noted an apparent intent to amend his pleadings to conform to the evidence in accord with Fla.R.Civ.P. 1.190. No objection was made at trial that the evidence was outside the scope of the pleadings as they stood at the time. Therefore we treat this appeal as going to a directed verdict in favor of both defendants.

      . It remains to be decided whether either or both of the defendants may be liable on the contract.

      . The Hutchison Court • specifically receded from an earlier definition of “readily ascertainable” in so far as it would conflict with the rationale underlying its decision. That rationale was expressed as follows:
      The better result . . . is to allow the liquidated damage clause to stand if the damages are not readily ascertainable at the time the contract is drawn, but to permit equity to relieve against forfeiture if it appears unconscionable in light of the circumstances existing at the time of breach.
      259 So.2d 129 at 132.


text:
    STATE of Florida, DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Appellant, v. Michael JOANNOU, Appellee.
    No. 76-1946.
    District Court of Appeal of Florida, Third District.
    Nov. 29, 1977.
    Rehearing Denied Jan. 9, 1978.
    Edwin E. Strickland and Enoch J. Whitney, Tallahasee, for appellant.
    Gus Efthimiou, Jr., Miami, for appellee.
    Before HENDRY, C. J., and HAVER-FIELD and NATHAN, JJ.
   PER CURIAM.

Appellant, State of Florida, Department of Highway Safety and Motor Vehicles, Division of Driver Licenses, appeals an order of the Circuit Court of Dade County granting certiorari and quashing an order of appellant which suspended appellee’s driving privileges for one year and denied reinstatement of such privileges.

The determinative point on appeal is whether the circuit court erred in denying the state’s motion to dismiss the petition for certiorari which was filed September 22nd, 1975, more than thirty days after the entry of the state’s order denying, reinstatement of appellee’s driving privileges. The appellant argues that the circuit court lacked jurisdiction to consider appellee’s petition for certiorari inasmuch as, it was not timely filed. We find merit in the state’s contention and reverse. The petition should have been dismissed. See State of Florida, Department of Highway Safety and Motor Vehicles, Division of Driver Licenses v. Adams, 338 So.2d 542 (Fla. 1st DCA 1976).

Reversed.


text:
    George SMALL, M.D., Francisco A. Prado, M.D., Pablo Tachmes, M.D., Alberto Osin and Steven Kouchalakos, Appellants, v. KAPSHER REALTY, INC., Appellee.
    No. 76-2029.
    District Court of Appeal of Florida, Third District.
    Nov. 29, 1977.
    Rehearing Denied Jan. 9, 1978.
    Joe N. Unger, Miami, for appellants.
    Dubbin, Schiff, Berkman & Dubbin and Evan J. Langbein, Miami, for appellee.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   PER CURIAM.

Affirmed. See Kanter v. Safran, 68 So.2d 553, 557 (Fla.1953); Murphy v. Green, 102 Fla. 102, 107-08,135 So. 531, 534 (1931); Palatka Federal Savings and Loan Ass’n v. Raczkowski, 263 So.2d 842, 845 (Fla. 1st DC A 1972); Hamilton v. Corcoran, 177 So.2d 64, 65 (Fla. 2d DCA 1965).


text:
    Michael Arthur STUART, a/k/a Michael A. Stuart, Appellant, v. The STATE of Florida, Appellee.
    No. 77-49.
    District Court of Appeal of Florida, Third District.
    Nov. 29, 1977.
    Rehearing Denied Jan. 4, 1978.
    Law Offices of Max P. Engel and Don S. Cohn, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Anthony C. Musto and Joel D. Rosenblatt, Asst. Attys. Gen., for appellee.
    Before HENDRY, C. J., and NATHAN and HUBBART, JJ.
   NATHAN, Judge.

Defendant, Michael Stuart, appeals the revocation of his probation, but so structures his argument as to attempt to challenge the jurisdictional authority of the trial court to render its judgment revoking probation. We reject his contentions and affirm the judgment of the trial court.

The essential facts are as follows. Defendant is a youth with a troubled history of mental problems which includes a low normal or mildly retarded intellectual capacity. In 1973, he was charged with ten counts of breaking and entering and nine counts of grand larceny. He pled guilty to the breaking and entering charges, and the state abandoned all grand larceny charges.

Prior to the hearing at which he pled guilty to the breaking and entering charges, defendant had undergone extensive psychiatric evaluations. The record reveals that, because the trial court was aware of and concerned with the defendant’s mental and emotional problems, particular care was taken to question him about whether he understood the nature of the charges against him, whether his guilty plea was entered voluntarily, and whether he understood that he was waiving his right to a jury trial and to confront his accusers. Defense counsel was asked whether he was satisfied that Michael understood the charges and the consequences of his plea. He answered affirmatively.

After entering a finding of guilty, the court deferred sentencing until completion of extensive pre-sentence investigation. Subsequently, defendant was sentenced to one year in the county jail for one of the breaking and entering charges, and put on probation on the other charges for ten years. Michael had already served sufficient time in jail, and was placed in Genesis House, an in-custody institution, as a condition of his probation. He was to participate in the medical and psychiatric programs of Genesis House until a medical doctor determined that he was ready for release.

In late 1976, after an affidavit of violation of probation had been filed showing defendant’s arrest on another breaking and entering charge, a probation revocation hearing was held. The primary question at issue was whether the probation itself was valid. No dispute existed as to defendant’s having committed the probation violations alleged.

At this hearing, Michael’s mother, sister and brother testified that he had been induced to plead guilty by the advice of his family and trial counsel, but that they believed he had not been capable of understanding the nature and consequences of his plea. They agreed that all had believed Michael would benefit by entering a guilty plea since he was likely to receive treatment without further incarceration as a result.

Probation was revoked on all remaining cases. Defendant was sentenced to fifteen years in state prison on one case, fifteen years, to run consecutively, on another, and fifteen years sentences on the remaining cases to run concurrently with the first fifteen year term.

Defendant filed a motion to vacate his guilty pleas pursuant to Fla.R.Crim.Pro. 3.850, on grounds that he had been incompetent to enter such pleas. The motion was denied, the order of denial stating that the court had independent recollection of the case and found the defendant had been legally sane, capable of assisting counsel in his own defense and understanding the consequences of his pleas. Further the court found the entry of the pleas to have been voluntary after defendant had been specifically advised by the court that he could spend the rest of his life in prison should he violate his probation.

By this appeal, defendant does not directly contest the denial of his motion to vacate his pleas. Instead, he appeals from the judgment revoking probation, asserting that the court had no jurisdiction in the revocation hearing because the imposition of probation was void ab initio since defendant was incompetent to enter the pleas. We disagree.

If defendant is appealing the probation revocation, we are precluded by Section 924.06, Florida Statutes (Supp.1977) from entertaining his appeal. This statute provides, in pertinent part: “An appeal of an order revoking probation may review only proceedings after the order of probation.” Therefore, we have no jurisdiction to hear an appeal of probation revocation which is bottomed on events occurring prior to the order of probation. Burgess v. State, 194 So.2d 698 (Fla.2d DCA 1967); Hardrick v. State, 293 So.2d 135 (Fla.2d DCA 1974); Brown v. State, 305 So.2d 309 (Fla.4th DCA 1974); Deaver v. State, 326 So.2d 222 (Fla.2d DCA 1976).

If defendant is appealing the denial of his motion to vacate his pleas, as the substance of his argument indicates, we are at a loss to determine why he did not so designate this appeal. But since the order denying his motion was filed on the same date as the order revoking probation, and since this appeal, if considered as going solely to the issue involved in denial of defendant’s motion to vacate his plea, was timely filed, we will reach the merits of this point.

The trial court in this case not only had studied the reports of the five psychiatrists, but, as noted above, diligently questioned the defendant regarding his ability to understand the nature of his plea, its volun-tariness, and the consequences involved, and carefully observed his demeanor in responding to the questions asked. Moreover, both sides stipulated that the defendant was legally sane and understood the nature and consequences of his acts both at the time the offenses were committed and at the time the pleas were entered.

Years later, after defendant has violated his probation, he seeks to establish his prior incompetency by reference to psychiatric reports already considered, and by the testimony of family members who stood mute on the issue at the time pleas were entered. The record is clear that there was ample evidence to support the trial court’s conclusion that the defendant’s pleas were competently entered, and this decision will not be reversed on appeal.

Affirmed.


text:
    Jose BARED et al., Appellants, v. MIAMI PROFESSIONAL SPORTS, LTD., etc., et al., Appellees.
    Nos. 77-1935 and 77-1936.
    District Court of Appeal of Florida, Third District.
    Nov. 29, 1977.
    Rehearing Denied Jan. 4, 1978.
    Heiman & Heiman and Norman J. Silber, Miami, for appellants.
    Paul & Thomson and James W. Beasley, Jr. and Dennis J. Olle, Fowler, White, Burnett, Hurley, Banick & Knight and Henry Burnett, Robert M. Sondak, Miami, for ap-pellees.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   PER CURIAM.

We are presented here with an interlocutory appeal and a full appeal from an order dissolving a limited partnership pursuant to Section 620, Florida Statutes (1975).

The burden of respondent-appellants’ attack is that they had alleged certain defenses: (1) waiver of right to proceed for dissolution, (2) equitable estoppel of petitioners to proceed for dissolution, and (3) an implied agreement not to proceed for dissolution. It affirmatively appears from this record that the issues attempted to be raised are merely “paper issues.” The un-controverted evidence in its entirety supports the trial judge’s determination that there was nothing in the affidavits or depositions to support a genuine issue of material fact on any of the purported issues. We, therefore, affirm the summary final judgment upon the principles stated in Johnson v. Studstill, 71 So.2d 251 (Fla.1954); and Edgewater Drugs, Inc. v. Jax Drugs, Inc., 138 So.2d 525 (Fla. 1st DCA 1962)..

Affirmed.


author: KEHOE, Judge.

text:
    TINY’S LIQUORS, INC., Appellant, v. Paul DAVIS, Appellee.
    No. 76-1300.
    District Court of Appeal of Florida, Third District.
    Dec. 6, 1977.
    Rehearing Denied Jan. 9, 1978.
    Corlett, Merritt, Killian & Sikes, Greene & Cooper, Miami, for appellant.
    Horton, Perse & Ginsberg and Arnold R. Ginsberg, Brumer, Moss, Cohen & Rodgers, Miami, for appellee.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   KEHOE, Judge.

Appellant, defendant below, brings this appeal from a final judgment and cost judgment entered in favor of appellee, plaintiff below, after a jury trial on the' issue of whether appellant, pursuant to allegations in the complaint of respondeat superior and negligent hiring and retention, was liable to appellee for personal injuries caused by appellant’s employee who purposely set appellee on fire. The jury returned a general verdict in favor of appel-lee and the trial court entered the judgments appealed. It is contended on appeal that the trial court erred by denying appellant’s motion for a directed verdict because there was insufficient evidence to raise a jury question on the issues of respondeat superior and the negligent hiring and retention raised by the complaint. Also, appellant contends that the trial court erred in entering the cost judgment, predicated on the final judgment, in favor of appellee. We have considered all of the points raised by appellant and have concluded that they are without merit. Therefore, the judgments entered by the trial court are affirmed.

As set forth above, appellee advanced two theories in his complaint for recovery against appellant, i. e., respondeat superior and negligent hiring and retention, for the actions of its employee who purposely set fire to appellee, causing him serious bodily injuries. During the jury trial of this cause, appellant moved for a directed verdict both at the close of appellee’s case and at the close of all the evidence. The basis of appellant’s motions for a directed verdict was that the evidence was insufficient to raise a jury question on either of the theories alleged by appellee for recovery. These motions were denied, the jury returned a general verdict in favor of appel-lee, and the trial court entered the final judgment and cost judgment which appellant appeals.

Motions for directed verdicts, judgments in accordance with motions for directed verdicts upon which rulings have been withheld and judgments notwithstanding the verdict all share the following rules as to their application by the trial court and on review by an appellate court. They should be cautiously granted and then only when it can be said, after reviewing the evidence and testimony in the light most favorable to the non-moving party, that a jury could not reasonably differ as to the existence of a material fact or a material inference and that the movant is entitled to a judgment as a matter of law. Put another way, such motions should not be granted when there is any reasonable evidence upon which a jury could legally predicate a verdict in favor of the non-moving party. McCabe v. Watson, 225 So.2d 346 (Fla.3d DCA 1969); Chowning v. Pierce, 174 So.2d 42 (Fla.3d DCA 1965); and Deese v. White Belt Dairy Farms, Inc., 160 So.2d 543 (Fla.2d DCA 1964). Further, in testing a motion, the movant admits all of the facts shown in the evidence and admits to every reasonable inference favorable to the adverse party. Lupoletti v. Miller, 269 So.2d 67 (Fla.4th DCA 1972); and National Bank of Melbourne & Trust Company v. Batchelor, 266 So.2d 185 (Fla.4th DCA 1972). In light of these principles, we have reviewed the record and have concluded that, although the evidence was insufficient to raise a jury question on the issue of respon-deat superior, the evidence was sufficient to raise a jury question on the issue of the negligent hiring and retention by appellant of its employee who injured appellee. Therefore, the trial court improperly denied appellant’s motion for a directed verdict as to the issue of respondeat superior; however, the trial court properly denied appellant’s motion for a directed verdict on the issue of negligent hiring and retention. Regardless of the improper denial of appellant’s motion for a directed verdict on the one issue of respondeat superior, where, as here, a case goes to the jury on two theories and the evidence supports one of the theories, the verdict should be affirmed. Moore v. St. Cloud Utilities, Inc., 337 So.2d 982 (Fla.4th DCA 1976); Hester v. Gatlin, 332 So.2d 660 (Fla.2d DCA 1976); Cicerco v. Paradis, 184 So.2d 212 (Fla.2d DCA 1966); and Berkman v. Miami National Bank, 143 So.2d 535 (Fla.3d DCA 1962).

For the reasons set forth above, the final judgment entered by the trial court is affirmed. In light of this decision, we further determine that the trial court properly entered the cost judgment in favor of appel-lee. Therefore, both judgments are affirmed.

Affirmed.

PEARSON, J., concurs in the decision to affirm only.


author: HENDRY, Chief Judge.

text:
    Laszlo HUN, Appellant, v. R. Ray GOODE, etc., et al., Appellees.
    No. 76-1765.
    District Court of Appeal of Florida, Third District.
    Dec. 6, 1977.
    Rehearing Denied Jan. 9, 1978.

      Eugene P. Spellman, Miami, for appellant.
    Stuart L. Simon, County Atty., and Alan J. Kan, Asst. County Atty., for appellees.
    Before HENDRY, C. J., and PEARSON and NATHAN, JJ.
   HENDRY, Chief Judge.

This is an appeal from a final judgment denying appellant’s petition for writ of cer-tiorari. We affirm.

Appellant, Laszlo Hun, was a police officer employed by appellee, respondent below, Metropolitan Dade County. On November 15, 1974, appellant was dismissed by the Director of Public Safety for cause. An administrative appeal was thereupon filed by appellant culminating, on June 12, 1975, with the preparation of “Findings of Fact and Recommendations by the Hearing Examiner.”

As a result of certain demands having been made on the Hearing Examiner to be more specific, a second set of “Findings of Fact, Conclusions and Recommendations” were prepared by the Examiner and reviewed by the County Manager on or before October 14, 1975. These findings of fact were not acted upon by the County Manager until November 7, 1975, when appellant’s employment with the County was terminated.

Subsequently, appellant instituted certio-rari proceedings in the Circuit Court of Dade County, claiming, inter alia, that by virtue of Section 2-47 of the Code of Metropolitan Dade County, the County Manager was without jurisdiction to dismiss appellant. In pertinent part, Section 2-47 provides that:

“. . . The county manager shall reach his decision within fifteen (15) days from the receipt of the hearing examiner’s recommendations.” [Emphasis added.]

Sub judice, the decision of the county manager to terminate appellant’s employment was rendered some twenty-four (24) days after receipt of the hearing examiner’s findings, on November 7, 1975.

Certiorari was denied by the circuit court and appellant thereupon filed this appeal, urging reversal upon several substantive and procedural grounds. Having carefully reviewed all points raised by appellant, we find the following point deserving of discussion, to-wit: whether the fifteen (15) day requirement of Section 2-47 of the Code of Metropolitan Dade County is mandatory or merely directory.

In the companion cases of Scottie-Craft Boat Corporation v. Smith, 336 So.2d 1150 (Fla.1976) and Miller v. Oolite Industries, Inc., 336 So.2d 1152 (Fla.1976), the Florida Supreme Court construed the following language of Section 440.25(3)(b), Florida Statutes (1975):

“. . . The hearing shall be conducted by a judge of industrial claims, who shall within 30 days, unless otherwise agreed to by the parties, after such hearing determine the dispute in a summary manner.” [Emphasis added.]

The court concluded that the language of the statute was directory only, and not mandatory, notwithstanding the use of the word “shall.” This holding was entirely consistent with an earlier ruling of the Supreme Court in the case of Schneider v. Gustafson Industries, Inc., 139 So.2d 423 (Fla.1962), wherein the court opined that:

“[Mandatory language has in a number of cases been construed as directory, dependent upon the history and subject matter of the particular provision, and as a general rule, statutes setting the time when a thing is to be done are regarded as merely directory, where no provision restraining the doing of it after that time is included and the act in question is not one upon which court jurisdiction depends.” Supra at 425.

Based upon the above principle, we hold that the “mandatory” language of Section 2-47 of the Code of Metropolitan Dade County is directory only. Therefore, the county manager was not divested of his jurisdiction to enter a final “decision” dismissing appellant from employment, notwithstanding the fact that said “decision” was reached more than fifteen (15) days after receipt of the hearing officer’s findings and recommendations.

Accordingly, the final judgment is hereby affirmed.

Affirmed.


text:
    ALL-STAR INSURANCE CORPORATION et al., Appellants, v. SCANDIA, INC., et al., Appellees.
    No. 76-2036.
    District Court of Appeal of Florida, Third District.
    Dec. 6, 1977.
    Rehearing Denied Jan. 9, 1978.
    George J. Baya, Miami, for appellants.
    Gars & Dixon, Miami, for appellees.
    Before HAYERFIELD, NATHAN and KEHOE, JJ.
   KEHOE, Judge.

In this case, we are called upon to decide whether the attorneys’ fees awarded appel-lees’ counsel were reasonable. We have concluded that the trial judge exercised sound judicial discretion and assessed reasonable fees; therefore, the judgment appealed is affirmed.

In a prior appeal of the case sub judice, All-Star Insurance Corporation v. Scandia, Inc., 321 So.2d 575 (Fla. 3d DCA 1975), this court reversed a directed verdict for the sum of $135,000 entered by the trial court, setting aside a second jury verdict for the sum of $60,000, and reinstated the second jury verdict. Also, the trial court’s award of the sum of $30,000 for attorneys’ fees, in favor of appellee herein, was reversed and remanded with directions. The trial court was directed that appellees’ attorneys were entitled to recover reasonable attorneys’ fees based upon established law considering, among other things, the amount of the judgment on the second jury verdict.

Subsequently, pursuant to our mandate, a hearing on the issue of attorneys’ fees was held with testimony, other evidence, and arguments being presented by appellants and appellees. Thereafter, the trial judge entered a final judgment awarding, inter alia, attorneys’ fees in the sum of $27,300 to appellees. From this part of the final judgment on mandate, appellants appeal. Appellants’ basic contention on appeal is that the award of attorneys’ fees was unreasonable in light of the final judgment on mandate, dated October 12,1976, entered by the trial court.

The award of attorneys’ fees is within the sound discretion of the trial judge and, in the absence of a clear showing of an abuse of such discretion, an appellate court will not substitute its judgment for that of the trial judge. See, e. g. Krasner v. Krasner, 339 So.2d 674 (Fla. 3d DCA 1976); Ruwitch v. First National Bank, 327 So.2d 833 (Fla. 3d DCA 1976); Pennsylvania National Mutual Insurance Co. v. Doyon, 323 So.2d 677 (Fla. 3d DCA 1976); Dade County v. Oolite Rock Co., 311 So.2d 699 (Fla. 3d DCA 1975), and Belman Hotel Corp. v. Maher, 170 So.2d 591 (Fla. 3d DCA 1965).

In the case sub judice, the trial judge, in light of our mandate issued in All-Star Insurance Corporation v. Scandia, Inc., 321 So.2d 575 (Fla. 3d DCA 1975), held an evidentiary hearing on the issue of attorneys’ fees, exercised his discretion, and awarded the sum of $27,300 to appellees. Appellants have demonstrated no clear showing of the abuse of this discretion; therefore, the judgment on mandate entered by the trial judge is affirmed.

Affirmed.


author: OTT, Judge.

text:
    James AALDERINK and Kenneth S. Blow, Appellants, v. STATE of Florida, Appellee.
    Nos. 77-737 and 77-738.
    District Court of Appeal of Florida, Second District.
    Dec. 7, 1977.
    Rehearing Denied Jan. 12, 1978.

      Jack 0. Johnson, Public Defender, David S. Bergdoll, Asst. Public Defender, Bartow, and Charles M. Johnston, Research Asst., Gainesville, for appellants.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellee.
   OTT, Judge.

Appellants Aalderink and Blow, defendants in the trial court, were charged with possession of greater than five grams of marijuana. Appellant Blow was charged additionally with possession of paraphernalia. Both appellants filed motions to suppress the evidence. The motions were granted in part, and denied in part. Thereafter, Blow and Aalderink entered pleas of nolo contendere, specifically reserving their right to appeal that part of their motions to suppress which was denied.

In the process of a drug investigation and because of indications of possible involvement of appellants, the investigating officers decided to wire a confidential informant for transmission and send him into the appellants’ residence posing as a potential buyer. If the informant actually observed marijuana or other illegal drug activity in the residence he was instructed to utter a prearranged “code word.” Police officers were stationed nearby listening and taping the conversation. Upon hearing the “code word” the officers entered the residence and arrested Aalderink and Blow for possession of marijuana.

Quite obviously there was insufficient probable cause to justify a warrant either for a search of the residence or for communication interception. At the hearing on the motion to suppress the confidential informant did not testify. Appellants contend that failure of the informant to testify that he gave his consent to the taping of the conversation was error, citing Tollett v. State, 272 So.2d 490 (Fla.1973). We agree and reverse.

Section 934.03(2)(c), Florida Statutes (1975), permits a warrantless interception of an oral communication where one of the parties to the communication has given pri- or consent to the interception and the purpose of the interception is to obtain evidence of a criminal act. The court in Tollett v. State, supra, insisted that the requisite consent must be established by competent and relevant testimony of a party to the communication, subject to cross-examination by the defendant, as a condition precedent to the introduction of the recording into evidence.

In the instant case the recording itself was not introduced into evidence. However, a police officer not a party to the communication or otherwise privy thereto was allowed to testify as to its contents and the requisite consent of one of the parties. That this testimony was critical is apparent since the officer conceded, and we feel accurately, that no probable cause existed until the moment he heard the “code word.” To allow police to testify as to the contents of a warrantless interception or an oral communication without first providing competent evidence of consent would allow them to accomplish indirectly what they could not do directly. This type of tactic was condemned long ago in Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307 (1939). Accordingly, it was error to allow the police officer to testify regarding the taped conversation.

The judgments and sentences are reversed and the cause remanded for further proceeding consistent herewith.

HOBSON, Acting C. J., and DANAHY, J., concur.


author: LETTS, Judge. CROSS, Judge,

text:
    Joseph J. LAMBUSTA, Appellant, v. STATE of Florida, Appellee.
    Nos. 76-2477, 76-2495.
    District Court of Appeal of Florida, Fourth District.
    Dec. 13, 1977.
    Rehearing Denied Jan. 17, 1978.
    Larry M. Roth of Rutberg & Roth, Cas-selberry, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   LETTS, Judge.

From an examination of the record and briefs in this cause, the court determines that the Circuit Court passed upon the constitutionality of Florida Statute 812.10 (1973).

Accordingly, because the Circuit Court’s ruling has been preserved and presented on appeal, we hereby transfer jurisdiction of this appeal to the Supreme Court pursuant to the authority of Article V, Section 3(b)l of the Florida Constitution and in accordance with Florida Appellate Rule 2.1(5)(d).

ANSTEAD, J., concurs.

CROSS, J., dissents, with opinion.

CROSS, Judge,

dissenting:

I respectfully dissent.

The record is totally devoid of an order of the trial court passing directly upon the validity of § 812.10, Florida Statutes. Thus, jurisdiction over the appeal does not vest in the Florida Supreme Court. Accordingly, I would retain jurisdiction of this case.


author: DAUKSCH, Judge.

text:
    Peter F. SOPP, Petitioner, v. FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD, Respondent.
    No. 77-352.
    District Court of Appeal of Florida, Fourth District.
    Dec. 13, 1977.

      Thomas Boroughs, Winter Park, for petitioner.
    David Linn, Tallahassee, for respondent.
   DAUKSCH, Judge.

Petitioner seeks review of an Order by the Florida Construction Industry Licensing Board suspending his swimming pool contractor’s registration. We deny certiorari.

The issue is whether the Board can suspend the registration of an unregistered contractor whose application for registration was pending approval at the time the contractor violated the law. We answer in the affirmative.

The facts are that Petitioner was registered as a contractor until June 30 when his registration expired. On July 25 he requested renewal of his registration which renewal was granted on December 10. In October and November Petitioner violated Section 468.112(2)(c), Florida Statutes (1975), by combining with a contractor unqualified to obtain permits in Orange County through use of Petitioner’s registration. Section 468.112(6), Florida Statutes (1975), provides:

“The lapse or suspension of a certificate or registration by operation of law or by order of the Board or a court, or its voluntary surrender by a certificate holder or registrant does not deprive the Board of jurisdiction to investigate or act in disciplinary proceedings against the certificate holder or registrant.”

Implicit in this Statute is the authority of the Board to suspend the registration of one who has pending a renewal of a registration. This is made especially true because the renewal is a mandatory, ministerial, act by the Board according to Section 468.-108(2), Florida Statutes (1975). When a prior registrant complies with this Statute the Board must issue the renewed registration. cf. Vocelle v. Riddell, 119 So.2d 809 (Fla.2d DCA 1960).

Certiorari DENIED.

ALDERMAN, C. J., and LETTS, J., concur.


text:
    DRS. HOWARTH & SCOTT, P.A., a Medical Professional Association, and Dr. German Montoya, Petitioners-Relators, v. The Honorable Claude R. EDWARDS, Dr. Bruce Brunson and James Driscoll (Medical Mediation Panel Members), Respondents.
    No. 77-2244.
    District Court of Appeal of Florida, Fourth District.
    Dec. 13, 1977.
    Charles W. Abbott of Maguire, Voorhis & Wells, P.A., Orlando, for petitioners-rela-tors.
   DAUKSCH, Judge.

ON SUGGESTION FOR WRIT OF PROHIBITION

The circuit judge sitting as a judicial referee in a medical mediation panel refused to grant Petitioners’ Motion for Summary Judgment. He declared he had no authority to grant a summary judgment. He is right. See, for example, Floyd v, Goss, 352 So.2d 1189 (Fla. 4th DCA 1977). Although it is not determinative of this case we note that Writ of Prohibition is not the proper remedy. Certainly medical mediation panels are the only forums to hear these medical mediation claims under Section 768.44, Florida Statutes (1975). They have jurisdiction. If Petitioners are correct that the Statute of Limitations ran before the claim was filed then that is a matter of affirmative defense for the trial court, not the panel or any member thereof, to decide.

Suggestion for Writ of Prohibition is DENIED.

CROSS and LETTS, JJ., concur.


text:
    Wesley McNAIR, Jr., Appellant, v. The STATE of Florida, Appellee.
    No. 76-210.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 1977.
    George W. Drake, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., Linda Collins Hertz, Asst. Atty. Gen., and Harold E. Rosenfeld, Legal Intern, for appellee.
    Before PEARSON and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed on authority of Campbell v. State, 155 Fla. 359, 20 So.2d 127 (1944); Spencer v. State, 133 So.2d 729 (Fla.1961); Burton v. State, 207 So.2d 465 (Fla. 3d DCA 1968); Reis v. State, 248 So.2d 666 (Fla. 3d DCA 1971); Oja v. State, 292 So.2d 71 (Fla. 2d DCA 1974); Garmise v. State, 311 So.2d 747 (Fla. 3d DCA 1975); Rodriguez v. State, 327 So.2d 903 (Fla. 3d DCA 1976).


text:
    Kathryn BAGLEY and John Bagley, her husband, Appellants, v. DADE COUNTY, a political subdivision of the State of Florida, d/b/a Metropolitan Transit Agency, Appellee.
    No. 76-1004.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 1977.
    Horton, Perse & Ginsberg, Stanley M. Rosenblatt, Miami, for appellants.

      Stuart L. Simon, County Atty., and Thomas Goldstein, Asst. County Atty., for appellee.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   KEHOE, Judge.

Appellants, plaintiffs below, bring this appeal from a final judgment dated May 3, 1976, in favor of appellee rendered pursuant to the trial court’s direction of a verdict at the conclusion of all of the evidence. The sole point raised on appeal is whether the trial court erred in holding that under no view the jury might lawfully take of the evidence could a verdict in favor of appellants be sustained under the law relating to the common carrier-passenger-sudden stop-injury context.

The principles, upon which motions for directed verdicts may be granted, are well established. See, e. g., Riviera Condominium Apts. v. Weinberger, 231 So.2d 850 (Fla. 3d DCA 1970); McCabe v. Watson, 225 So.2d 346 (Fla. 3d DCA 1969); Chowning v. Pierce, 174 So.2d 42 (Fla. 3d DCA 1965); and Deese v. White Belt Dairy Farms, Inc., 160 So.2d 543 (Fla. 2d DCA 1964). We have carefully reviewed the record in the instant appeal and, based upon these principles, have concluded that the trial court erred in granting appellee’s motion for a directed verdict and in entering the final judgment in favor of appellee. Our review of the record shows that there was conflicting testimony which, if resolved by the jury in favor of appellants, could have sustained their cause of action. See, e. g., Wright v. City of St. Petersburg, 291 So.2d 639 (Fla. 2d DCA 1974); City of Coral Gables v. Patty, 162 So.2d 530 (Fla. 3d DCA 1964); and Blackman v. Miami Transit Co., 125 So.2d 128 (Fla. 3d DCA 1960).

Therefore, the final judgment appealed is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.


text:
    Willie J. SMALL, Appellant, v. STATE of Florida, Appellee.
    No. 76-1448.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 1977.
    Rehearing Denied Jan. 9, 1978.
    Bennett H. Brummer, Public Defender, Thomas G. Murray, Asst. Public Defender, and Randolph Ferguson, Legal Intern, for appellant.
    Robert L. Shevin, Atty. Gen., Margarita Esquiroz, Asst. Atty. Gen., and John C. Moppert, Legal Intern, for appellee.
    Before PEARSON and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed on the authority of Williams v. State, 110 So.2d 654 (Fla.1959); Ashley v. State, 265 So.2d 685 (Fla.1972); and Wilson v. State, 330 So.2d 457 (Fla.1976).


text:
    Frank WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1894.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 1977.

      Bennett H. Brummer, Public Defender and Karen Gottlieb, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, NATHAN and KEHOE, JJ.
   PER CURIAM.

Affirmed. See Spinkeilink v. State, 313 So.2d 666 (Fla.1975); Gordon v. State, 312 So.2d 809 (Fla.3d DCA 1975); Wetherington v. State, 263 So.2d 294 (Fla.3d DCA 1972); Matera v. State, 218 So.2d 180 (Fla.3d DCA 1969); Dennis v. State, 214 So.2d 661 (Fla.3d DCA 1968); and Eizenman v. State, 132 So.2d 763 (Fla.3d DCA 1961).


text:
    Urban J. GUTJAHR, Appellant, v. Lyda GUTJAHR, Appellee.
    No. 76-2110.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 1977.
    Bernard A. Wieder, Miami Beach, for appellant.
    Shirley Woolf and George P. Sampas, Miami Beach, for appellee.
    Before BARKDULL, HUBBART and KEHOE, JJ.
   PER CURIAM.

Affirmed. Herzog v. Herzog, 346 So.2d 56 (Fla.1977); Shaw v. Shaw, 334 So.2d 13 (Fla.1976).


text:
    Evelyn KOOGAN, Appellant, v. NATIONAL HOME LIFE ASSURANCE COMPANY, a Missouri Corporation, Appellee.
    No. 76-2112.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 1977.
    Matthew M. Slepin, Miami, for appellant.
    Thornton, Dougherty & Conroy and Bruce F. Simberg, Miami, for appellee.
    Before BARKDULL, HUBBART and KEHOE, JJ.
   PER CURIAM.

Affirmed. See and compare: Nationwide Mutual Insurance Company v. Anglin, 306 So.2d 147 (Fla.2d DCA 1975).