author: HOBSON, Acting Chief Judge.

text:
    DON MOTT AGENCY, INC., a Florida Corporation, Appellant, v. Julia HARRISON et al., Appellee.
    No. 77-1531.
    District Court of Appeal of Florida, Second District.
    Aug. 2, 1978.
    Richard A. Strickland, of Fowler, White, Gillen, Boggs, Villareal & Banker, St. Pe-tersburg, for appellant.
    John M. Edman, of Meros, Coit, Edman & Meros, St. Petersburg, for appellee.
   HOBSON, Acting Chief Judge.

In this interlocutory appeal from a post-judgment order we must determine whether a motion to set aside a final judgment is timely filed when it is filed more than one year after the trial court entered its order approving the settlement upon which the final judgment was based but less than one year after entry of that final judgment where there is no evidence that the motion was otherwise untimely filed. We hold that the motion was timely filed. We must also determine whether this court’s denial of a petition for writ of cer-tiorari to review an order denying a motion in limine to exclude evidence of an allegedly fraudulently procured settlement constitutes a ruling that the fraud did not exist, thereby precluding further inquiry into the issue of fraud. We hold that the denial of a petition for writ of certiorari does not affirm the trial court’s determination of any issue of fact inherent in the judicial act, review of which was sought.

The circumstances giving birth to these controversies are as follows: Ms. Harrison sued Dr. Pullum for medical malpractice resulting in the death of Ms. Harrison’s daughter. Dr. Pullum brought a third-party action against appellant for indemnification. The malpractice action and the indemnification action were severed for trial. However, Dr. Pullum settled with Ms. Harrison prior to trial. In that settlement, damages were stipulated to amount to $250,000 and Dr. Pullum assigned his rights in the indemnification action to Ms. Harrison. The trial court approved the settlement on March 19, 1976. Final judgment on the malpractice claim between Ms. Harrison and Dr. Pullum was entered on May 13, 1976. At no time did appellant participate in the negotiations, settlement, or proceeding for court approval.

At a pretrial conference in the indemnification action, Ms. Harrison announced her intention to offer the stipulated final judgment in the malpractice action as proof of damages at' trial of the indemnification claim. Appellant alleged that the settlement was procured by collusion between Ms. Harrison and the allegedly judgment-proof Dr. Pullum. Appellant filed a motion in limine to exclude evidence of that settlement or the final judgment entered thereon from the trial in the indemnification action. Appellant also filed a motion to sever the trial of appellant’s obligation to indemnify Dr. Pullum from the trial of the issue of the amount of damages for which appellant must indemnify Dr. Pullum. (The evidence of the settlement and final judgment were asserted to be relevant only in this subsequent trial.) The motions were denied by the trial court. Appellant sought review by certiorari. This court denied certiorari. Don Mott Agency v. Harrison, 341 So.2d 298 (Fla. 2d DCA 1976).

On May 6, 1977, appellant filed a motion to set aside the final judgment entered on the settlement between Dr. Pullum and Ms. Harrison. Ms. Harrison responded with a motion to strike. The trial court granted the motion to strike because the motion to set aside judgment was not timely filed from the time of entry of the order approving settlement and because “the issue of ‘fraud’ has already been decided in this cause . . . (when the) lower court’s order denying the Motion in Limine was affirmed . . ..”

Appellant first contests the trial court’s ruling that the motion to set aside the final judgment was not timely filed. While that motion was not filed until more than one year after the trial court entered its order approving the settlement upon which final judgment was later rendered, it was filed within one year after entry of the final judgment. There was no showing that the motion was filed an unreasonable time after entry of the final judgment. Florida Rule of Civil Procedure 1.540(b) requires filing of a motion to relieve a party from a final judgment or order for the reasons of fraud, misrepresentation, or other misconduct of the adverse party within a reasonable time not more than one year after the judgment or order was entered. The order under review made it abundantly clear that the trial court considered the motion untimely filed because more than the one-year period specified in Rule 1.540(b) had lapsed from the time of entry of the order approving settlement. The trial court would have been correct, and we would affirm, had the motion sought to set aside the settlement. However, at that time appellant sought relief, not from the order approving settlement, but from the final judgment and its legal ramifications. Whatever we may speculate to be the reason for appellant’s attack on the final judgment at a time at which appellant was precluded from attacking the underlying order approving the settlement, appellant was entitled to be heard on its motion for relief from judgment and to have that motion be determined on its merits by the trial court. The motion to set aside final judgment was not shown to have been untimely filed.

We must now consider whether this court’s review of the trial court’s denial of the motion in limine established the “law of the case” to be that fraud did not exist in the settlement. As indicated by footnote 2, the trial court misconstrued or was misinformed as to the nature of this court’s treatment of the review of its order denying the motion in limine. The trial court was clearly in error in stating that that court’s “order denying the Motion in Limine was affirmed by the Second District Court of Appeal dated November 19, 1976.” We can appreciate how this confusion could have arisen from the filing of a notice of interlocutory appeal and a petition for writ of certiorari. However, the fact remains that this court reviewed that order by way of petition for writ of certiorari and not by way of interlocutory appeal. A simple denial of certiorari without opinion is not an affirmance and does not establish the law of the case. “Such a denial ‘cannot be construed as passing upon any of the issues in the litigation . . . ’ and would not be res judicata as to the issues raised in the petition for certiorari.” Haddad, Common Law Writ of Certiorari in Florida, 29 U.Fla. L.Rev. 207, 226 (1977) quoting Keay v. City of Coral Gables, 236 So.2d 133, 135 (Fla. 3d DCA 1970) and citing Ruth v. United States Fidelity and Guaranty Co., 83 So.2d 769 (Fla.1955), where denial of certiorari did not bar further litigation of the controversy involved in the petition for writ of certiora-ri, and State v. Edwards, 135 So.2d 889 (Fla. 2d DCA 1961) where this court cautioned that its denial of certiorari “cannot be interpreted as a determination of the issues presented in the petition requesting such review and cannot be used as a precedent or authority for or against the propositions raised by either party in the proceedings.” See also Mystan Marine, Inc. v. Harrington, 339 So.2d 200 (Fla.1976). In many such cases the actual merits will not be reached and certiorari will properly be denied because either the petitioner did not demonstrate a clear departure from the essential requirements of law by the trial court, which is a higher standard than mere reversible error, or because the petitioner has an adequate remedy at law, as by appeal after final judgment or both. This court’s denial of appellant’s petition for common law certiorari did not determine the issue of fraud and did not preclude assertion of that issue as grounds for relief from judgment.

Appellant has demonstrated that the order striking its motion to set aside the final judgment was based upon erroneous grounds. Appellee has failed to show any proper grounds supporting that order. Consequently, entry of the order striking the motion to set aside final judgment was reversible error. That order must be, and is hereby, REVERSED and the case REMANDED.

SCHEB and RYDER, JJ., concur.

      . The notice of appeal was filed prior to March 1, 1978; consequently, the Florida Appellate Rules (1962 Revision) apply.

      . This quote from the order striking appellant’s motion to set aside final judgment refers to Don Mott Agency, Inc. v. Harrison, 341 So.2d 298 (Fla. 2d DCA 1976) (appeal number 76-1261) in which appellant timely filed both a notice of interlocutory appeal and a petition for writ of certiorari and sought consolidation of the two cases in this court. This court resolved appellant’s doubt as to the proper method of review by denying consolidation, dismissing the appeal, and considering the petition for writ of certiorari. However, certiorari was denied.


source: Caselaw Access Project

author: DANAHY, Judge.

license: Public Domain

text:
    Muriel LUTGERT, Appellant, v. Raymond L. LUTGERT, Appellee.
    No. 77-2055.
    District Court of Appeal of Florida, Second District.
    Aug. 2, 1978.
    Rehearing Denied Sept. 14, 1978.

      Robert C. Ward, Miami Beach, and Marion E. Sibley of Sibley, Giblin, Levenson & Glaser, Miami Beach, for appellant.
    Julian Clarkson of Holland & Knight, Fort Myers, and Vega, Brown & Nichols, Naples, for appellee.
   DANAHY, Judge.

On this second appeal in a dissolution of marriage proceeding, the wife protests her award of alimony as inappropriate and inadequate. We. agree in part and reverse.

The husband initiated these proceedings after a marriage of almost ten years duration. He had been married once before; she, twice. There are no children of the marriage. Insofar as the husband’s financial obligations to the wife are concerned, the husband relied on the terms of an ante-nuptial agreement which limited the wife to the sum of $1,000 per month alimony in the event of divorce. The wife challenged the validity of that agreement and it was upheld by the trial judge. On appeal, this court reversed in an opinion by Judge McNulty. Lutgert v. Lutgert, 338 So.2d 1111 (Fla. 2d DCA 1976).

On remand the trial judge was faced with the task of determining the amount of alimony to be awarded to the wife. We must assume that in doing so, he followed the primary criteria applicable to this case in determining an award of alimony; that is, the husband’s ability to pay and the needs of the wife, taking into consideration the parties’ shared standard of living during the marriage. Sisson v. Sisson, 336 So.2d 1129 (Fla.1976). The trial judge awarded the wife $75,000 in lump sum alimony, plus the sum of $4,000 rehabilitative alimony for a period of 24 months. After reviewing that award in the light of the record before us, we conclude that the award of rehabilitative rather than permanent alimony was in error, and the amount per month is inadequate.

Considering first the standard of living enjoyed by these parties during their marriage, we need only quote the following from the prior opinion of this court:

After the marriage, as may be gleaned from the admitted wealth of the husband the parties enjoyed a lifestyle reserved only to the fabulously rich. While the trial court found that during the times material herein the husband was worth from approximately $3,100,000 at the beginning to $3,900,000 at the present time, the wife points to much of the record tending to the conclusion that he is really presently worth nearer to $25,000,000. Indeed the admitted opulent lifestyle would appear to be supportable only if the latter figure were found to be the fact. For example, the present home-place in Naples, Florida, is a palatial mansion directly on the Gulf of Mexico. It has eight bedrooms, twelve baths, a five-car garage, a guest house and servants’ quarters and is surrounded by some four and a half acres of formal gardens with a gate house at its entrance. The parties owned at least three luxury motor yachts, one of them a 50-footer custom built in North Carolina, and one a 63-footer custom built in Japan. They at one time owned a private turbojet airplane. They drove only luxury cars, including Rolls Royces and Lincoln Continentals. They took at least one round-the-world cruise and several extended cruises to Europe and other parts of the world. They had staffs of servants and gardeners. He gave expensive gifts of valuable jewelry. The husband has a hobby of collecting classic automobiles, his present collection having a value in excess of $900,000; and on one occasion he bid for and purchased an original Duesenberg automobile for some $207,-000. Lutgert v. Lutgert, supra, at p. 1114.

We consider next the husband’s ability to pay. The husband contends that the trial judge, in the original final judgment upholding the validity of the antenuptial agreement, made a finding of fact that the husband is worth $3,900,000. That is clearly not the case. The final judgment was devoted in large part to the trial judge’s conclusions concerning the validity of the antenuptial agreement. In considering whether there was a full and frank disclosure to the wife of the husband’s worth, the trial judge said “[t]he court has the benefit of statements of the financial condition of the husband on July 1,1963 ($3,163,000) and again on September 30, 1974 ($3,915,929).” That reference did not amount to a finding of fact and we do not consider the language used by Judge McNulty in the prior opinion in this case as so stating.

Unfortunately, we do not have the benefit of an express finding by the trial judge as to the actual worth of the husband. The husband relied on a financial statement prepared by his certified public accountant showing a net worth of approximately $3,900,000. The statement revealed that a substantial amount of the husband’s assets consists of his ownership interest in some six corporations. In two of these corporations the husband owns 99.8% of the outstanding shares of stock; in the other four, he owns 96% of the outstanding stock. The statement reflected, and the accountant testified, that the investments in these corporations were shown on the statement at book value. The accountant testified further that the assets of some of these corporations consist of interests in various partnerships, also shown at book value. Thus the husband’s business interests are reflected in a somewhat complicated structure of corporations and partnerships.

Real estate investments comprise the bulk of the assets included in that financial structure. Evidence adduced by the wife established that, using the current fair market value of those investments, rather than book value, the net value of the husband’s various corporate interests is greatly in excess of $3,900,000; indeed, as Judge McNulty said, much of the record tends to the conclusion that the husband is really worth closer to $25,000,000. While the husband’s income appears modest in comparison to the evidence as to the extent of his wealth, we note that he followed the custom of having much of the amenities of his life supplied by his corporations. For example, his corporations owned the yachts, the airplane, the classic automobiles, and the expensive automobiles which he and the wife drove. Furthermore, the evidence showed that the husband’s corporations enjoyed substantial cash profits. We are of the opinion that the husband’s ability to pay is not appropriately measured by his income alone. See McCloskey v. McCloskey, 359 So.2d 494 (Fla. 4th DCA 1978).

We turn now to a consideration of the wife’s situation. She is over 50 years of age and has not been employed in some thirty years. Her employment experience thirty years ago was limited. She was a fashion model but that was not her support. She worked in a dress shop for four or five months at a small salary. She and a friend operated a charm school for teenagers which was not lucrative. She worked as an errand girl in a law office; she cashed checks and sold merchandise for a chemical company.

After the marriage of these parties, when they moved to Florida, the wife obtained a real estate salesman’s license. The wife testified that she obtained the license in order to understand her husband’s real estate ventures. She further testified that the license was hung in the office of one of her husband’s companies. That company paid her a salary of $600 per month (which, of course, is no longer available to her), but she did not work there as a real estate salesman. She has made some real estate investments on her own behalf. However, the wife has never used her salesman’s license and there is nothing in the record leading to the conclusion that in two years the wife can support herself in the style to which she is accustomed through her efforts in real estate sales.

We hold that it was an abuse of discretion to award rehabilitative alimony rather than permanent alimony under these circumstances. Lash v. Lash, 307 So.2d 241 (Fla. 2d DCA 1975). If the wife, despite her age and lack of business experience, should achieve success in the real estate field or in some other career, that circumstance can be considered later as a basis for modification of the alimony award. McAllister v. McAllister, 345 So.2d 352 (Fla. 4th DCA 1977).

The husband makes much of the wife’s separate assets. Those assets include jewelry given to her by the husband during the marriage valued at approximately $150,000, stocks and real property having a net value of approximately $60,000, and the marital home of the parties, which Judge McNulty described as “a palatial mansion directly on the Gulf of Mexico.” The husband gave that residence to the wife during the marriage and he now contends that its value is at least $1,000,000, thus making the wife, in effect, a millionaire with the prospects of a millionaire’s income. The record simply does not support that conclusion.

In the first place, one of the husband’s corporations owns the east 415' of the property, which is the portion consisting of 4!/2 acres of formal gardens. The five-car garage, guest house and gatehouse are located on that portion and the driveway to the house runs through that portion of the property. Although the husband testified that there was an “easement” affording access to the residence, he did not know whether his corporation had actually given a deed granting such an easement and the record discloses no recorded easement. The wife testified that she did not know what the value of the residence would be without inclusion of the formal gardens. Additionally, the husband’s argument as to the value of the residence fails to take into consideration that the cost basis in the residence is relatively low (according to the husband’s figures), and a sale for a substantial sum would produce a large income tax liability to the wife. Furthermore, the husband admits that it may take at least two years to find a buyer for the property. The parties introduced no evidence as to the value of the residence other than their own testimony. Under these circumstances, it appears to us that the net amount the wife might realize upon a sale of the residence is highly speculative at this time. We, therefore, feel that consideration of the marital residence as a substantial income producing asset of the wife should be given much less weight than the husband contends.

The wife’s income from stocks and real estate is approximately $400 per month. That sum obviously will not go very far toward affording the wife some semblance of the lifestyle which she enjoyed during the marriage. And the wife cannot be compelled to consume her separate assets to maintain the style of living which she and the husband enjoyed. Gordon v. Gordon, 204 So.2d 734 (Fla. 3d DCA 1967). If, in the future, the wife’s separate investments, including the sum which she may realize upon sale of the marital residence, should afford her a substantially greater income, this factor may be considered in any later review of alimony, along with any other material changes in the circumstances of the parties. In re Marriage of Jones, 357 So.2d 439 (Fla. 2d DCA 1978).

Finally, in assessing the wife’s situation, we must take into consideration the wife’s assertions in the record of the amount needed per month for her needs. In her initial pleadings, the wife asserted, and she has argued, that she needs the sum of $10,000 per month to maintain the standard of living which she enjoyed during the marriage. Nowhere is this amount itemized. In her financial affidavit, the wife stated that her monthly expenses during the marriage, exclusive of items pertaining to the marital residence and other expenses which were paid by the husband, amounted to $4,500 per month. She itemized these expenses. After remand of this case following the first appeal, the wife filed a pleading which asserted that the amount needed for her to continue to live in the home is $6,500 per month. That sum was itemized, and did not include costs of maintenance and repair of the residence. The husband disputes none of these figures.

We have already determined that permanent periodic alimony should be awarded in this case rather than rehabilitative alimony. Any amount of permanent periodic alimony will be taxable to the wife (and deductible by the husband). Taking note of that fact, it is clear that from an award of $4,000 per month, the net amount the wife will have available to live on would be closer to $30,-000 per year than $48,000 per year. Manifestly, this would not sustain the wife in any semblance of the standard of living which she enjoyed during the marriage.

Based upon the record before us, we hold that it was an abuse of discretion to award the wife the sum of $4,000 per month alimony. An award of $6,500 per month is well within the ability of the husband to pay, as shown by the record in this case, and would meet the demonstrated need of the wife by providing her with a sum per month sufficient to maintain a standard of living reasonably commensurate with that enjoyed by her during the marriage.

We fully realize that it is normally not our function to direct the trial judge as to the specific amount of an alimony award, but this is the second appeal in this case and the litigation has now been pending three and a half years. We believe such a direction to be appropriate here to terminate this lengthy and costly litigation. We, therefore, reverse with directions that the amount of alimony be increased to $6,500 per month and made permanent. McAllister v. McAllister, supra. We do not disturb the award of lump sum alimony.

We have carefully considered the wife’s other two points on this appeal and find them to be without merit.

Reversed.

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

      . We note that, although not applicable to this case, Ch. 78-339, Laws of Florida, which became effective June 19, 1978, lists specific factors which must be considered in determining an award of alimony. We believe the result reached here would be proper were this new law applicable to the case before us.

      . While the wife’s initial pleading alleges such a value in describing her very high standard of living during the marriage, subsequent developments in this prolonged litigation demonstrate she was not bound by that allegation.


author: PER CURIAM. DAUKSCH, Judge,

text:
    Tommy Lee McDOWELL, a/k/a Spooky, Appellant, v. STATE of Florida, Appellee.
    No. 77-2080.
    District Court of Appeal of Florida, Fourth District.
    Aug. 2, 1978.
    Earl L. Maxwell, Jr., West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and John D. Cecilian, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed.

CROSS and MOORE, JJ., concur.

DAUKSCH, J., dissents with opinion.

DAUKSCH, Judge,

dissenting:

I must respectfully dissent. Appellant was charged with attempted possession of heroin and attempted delivery of heroin. The evidence upon which he was convicted was that an undercover agent gave the appellant twenty dollars to buy either one or two “bags” of “stuff”. The undercover agent was qualified as an “expert in narcotics street language” and was allowed to interpret “bag” to mean tinfoil packet and “stuff” to mean heroin. When the agent took the appellant to a house appellant left the agent’s car and went to the house and returned, declaring no one was home.

Upon this evidence the appellant was convicted. It is legally insufficient. There is a lack of legally substantial proof that the defendant knew that bag meant tinfoil packet and stuff meant heroin. Even if that was proved the evidence does not meet the standard Judge Cross said was required in Groneau v. State of Florida, 201 So.2d 599 (Fla. 4th DCA 1967) in order to convict a person of an attempt.

This case should be reversed and the appellant discharged.


author: PER CURIAM.

text:
    Gus ROSS, Appellant, v. STATE of Florida, Appellee.
    No. 77-1110.
    District Court of Appeal of Florida, Fourth District.
    Aug. 9, 1978.
    Rehearing Denied Oct. 4, 1978.
    Richard L. Jorandby, Public Defender and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallassee and John D. Cecilian, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED.

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

BAKER, JOSEPH P., Associate Judge, dissents without opinion.


text:
    FORD MOTOR CREDIT COMPANY, a Delaware Corporation authorized to do business in the State of Florida, Petitioner, v. Herbert WILSON, Respondent.
    No. 77-2234.
    District Court of Appeal of Florida, Fourth District.
    Aug. 9, 1978.
    Rehearing Denied Sept. 28, 1978.
    Guy C. Hill, West Palm Beach, for petitioner.
    No appearance for respondent.
   PER CURIAM.

Certiorari denied.

CROSS, ANSTEAD and MOORE, JJ., concur.


text:
    Steven Lew QUATTRY, Appellant, v. STATE of Florida, Appellee.
    No. 77-2254.
    District Court of Appeal of Florida, Fourth District.
    Aug. 9, 1978.
    Rehearing Denied Sept. 27, 1978.
    Larry M. Roth and Gerald S. Rutberg of Rutberg & Roth, Casselberry, for appellant.

      Robert L. Shevin, Atty. Gen., Tallahassee, and John D. Cecilian, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED.

LETTS, MOORE and BERANEK, JJ., concur.


author: ERVIN, Judge. BOOTH, Judge,

text:
    JOHN DEERE INDUSTRIAL EQUIPMENT COMPANY, Appellant, v. Betty ROBERTS, as Executrix of the Estate of C. W. Roberts, Jr., Deceased and C. W. Roberts, III, Appellees. SIERRA GENERAL LIFE INSURANCE COMPANY, Appellant, v. Betty ROBERTS, as Executrix of the Estate of C. W. Roberts, Jr., Deceased and C. W. Roberts, III, Appellees.
    Nos. FF-89, GG-29.
    District Court of Appeal of Florida, First District.
    Aug. 9, 1978.
    Rehearing Denied Sept. 27, 1978.

      F. Alan Cummings of Holland & Knight, Tallahassee, Jeffrey Bassett of Barron, Redding, Boggs & Hughes, Panama City, for appellants.
    Samuel T. Adams and J. Ben Watkins of Watkins & Watkins, Apalachicola, for ap-pellees.
   ERVIN, Judge.

In these consolidated appeals, John Deere and Sierra General Life Insurance Co. appeal from summary final judgments entered in favor of the Roberts. The question before us is who is liable for payment of a front-end loader, the estate of C. W. Roberts, Jr., or John Deere’s credit life insurer, Sierra?

John Deere brought an action against the estate of C. W. Roberts, Jr., seeking to replevin a front-end loader sold to the late Roberts under the terms of a retail installment contract. It alleged that the agreement was in default and no payments had been made to Deere since November 1, 1975. The Roberts, in their answer, denied that the agreement was in default and alleged that all payments due under the agreement were fully cancelled and satisfied upon the death of C. W. Roberts, Jr., on November 26, 1975. They also filed certain affirmative defenses and a counterclaim against Deere. Later, the Roberts filed a third party complaint against Sierra alleging that Sierra had wrongfully refused to honor the claim of the Roberts under the insurance commitment contained in the agreement. The court issued an order directing the Roberts to show cause why the claimed property should not be taken from their possession. During the hearing on the order to show cause, Allen Eugene Gunter, an employee of Beard Equipment Co., identified a copy of the security agreement and retail installment contract, and testified concerning its execution.

Following the hearing, Deere moved for permission to amend certain paragraphs of its complaint and to strike Gunter’s testimony relating to rental of the loader as parol evidence which contradicted an unambiguous written instrument. The motions were denied. Later the court granted Roberts’ motion for summary judgment against John Deere, denied Sierra’s motion and deferred ruling on Roberts’ motion against Sierra until additional evidence was adduced. The court’s reasons for allowing summary judgment turned upon the provisions of Section 627.553, Florida Statutes (1975), and the pleadings and evidence before it. Later a stipulation was entered, signed by the attorneys for John Deere and Sierra, in which it was agreed that credit life insurance was payable by Sierra upon proof of the eligible debtor’s death. Final judgments were entered against both John Deere and Sierra. We reverse.

Deere argues that the terms of the contract are clear and unambiguous and there is no necessity for parol evidence which varies or contradicts the contract’s terms. On the face of the retail installment contract, the purchaser is identified as C. & G. Construction Company and the seller as Beard Equipment Company. Beneath the name of C. & G. Construction Company is that of Chuck Roberts. On the reverse side of the contract is a provision pertaining to group life insurance for eligible debtors. It provides in part:

If a debtor whose signature is on the Note on the face hereof qualifies as an Eligible Debtor under the provisions below and if John Deere Company (John Deere Industrial Equipment Company) becomes the holder of the Note, life insurance protection under Group Credit Life Insurance Policy No. CL-001 issued by Sierra General Life Insurance Company, Reno, Nevada, will be provided in connection with the indebtedness under said Note on the life of such Eligible Debtor. . ELIGIBLE DEBTOR . . . When the Note is signed by only one debtor, such debtor is the Eligible Debtor, When the Note is signed by the two or more debtors, the Eligible Debtor shall be that debtor whose signature appears to the left or uppermost on the Note except if both husband and wife are signers of the Note, the husband shall be the Eligible Debtor. Where, in the case of a corporation indebtedness, the officer who signs for the corporation also signs a second time as a co-debtor, such officer shall be the Eligible Debtor, (e. s.)

The Roberts respond that the true identity of the contract debtor, C. W. Roberts, Jr., was admitted by Deere’s pleadings and by the testimony of Deere’s witness, Gunter, during the show cause hearing, which was received by the court without objection from Deere. They refer to the following allegations in Deere’s complaint as being admissions:

2. On June 18, 1975, [The date, as reflected on the contract, was actually May 25, 1975.] C. W. ROBERTS, III, on behalf of C & G Construction Company, executed a Retail Installment Contract and Security Agreement (the “agreement”) for the purchase of certain personal property described therein from Beard Equipment Company. .
3. By the terms of the agreement of C. W. ROBERTS, JR., d/b/a C & G Construction Company, was obligated to pay 35 monthly installments of $471.54 each for the purchase from Beard Equipment Company of the following described equipment (the “equipment”):
One (1) John Deere Loader; Model 644; Serial No. 94315.

During the show cause hearing, Gunter testified that he went to the office of C. & G. Construction Company on May 25, 1975, and discussed with Chuck Roberts, C. W. Roberts’ son, the terms of the contract. Later, C. W. Roberts entered the office, instructed his son to sign the contract, saying, “ ‘it’s about time you started signing something.’ ” During cross-examination, Gunter testified without objection that in the latter part of 1974, C. W. Roberts first rented the loader from him for the sum of $2,100. All the terms of the rental contract were oral, and the rental agreement was later converted into a lease-purchase agreement.

The Roberts additionally argue that even if the true identity of the insured debtor had not been established by Deere’s pleadings and by Gunter, the entity, C. & G. Construction Company, listed as the purchaser and debtor on the face of the contract, is ambiguous and therefore subject to clarification and identification by means of parol evidence. They also rely upon Hardy v. American Southern Life Insurance, 211 So.2d 559 (Fla.1968), as supporting their position that the knowledge possessed by the principal’s dealer of certain material facts relating to a contract of insurance is imputable to the insurer. Therefore Beard Equipment Company was agent of both Deere and Sierra, and the knowledge possessed by the dealer that the person who signed the contract was not the debtor is imputable to Deere and Sierra.

We reject Roberts’ arguments. The admission made in Deere’s complaint that C. W. Roberts, Jr. was obligated to pay 35 monthly installments, and the testimony of Beard’s employee, Gunter, that C. W. Roberts, Jr. initially contracted to lease the loader were not relevant to the crucial question of which person was the eligible debtor and therefore entitled to credit life insurance. The question is not who is the party responsible for making the payments as required by the sales contract, it is rather who is the individual eligible to receive credit life insurance. The contract clearly provides that when the note is signed by only one debtor, such debtor is the eligible debtor. Chuck Roberts was the only person who signed the contract on behalf of C. & G. Construction Company. The admission in Deere’s complaint that C. & G. Construction Company was owned by C. W. Roberts, Jr., although this was a fact not known by Gunter at the time the contract was executed, makes no difference. Only Chuck Roberts, under the terms of the contract, was the person who was eligible for credit life insurance. The contract’s terms were clear and unambiguous. In a case strikingly similar to this, John Deere Co. v. Atkinson, 482 S.W.2d 115 (Ark.1972), the Arkansas Supreme Court concluded, after examining a provision in an installment contract providing for credit life insurance, that the eligible debtor was the person described in the contract: the person whose signature appeared at the left or uppermost on the note. Id. at 116.

Finally, Chuck Roberts is presumed to understand the contents of the contract he signed. > On the face of the contract were the words: “Do not sign this contract before you read it . . . .” A party who signs his name to an instrument cannot deny its contents on the ground that he signed it without reading it unless he shows facts indicating circumstances which prevented his reading it. All Florida Surety Co. v. Coker, 88 So.2d 508 (Fla.1956); Reliable Finance Co. v. Axon, 336 So.2d 1271 (Fla. 2d DCA 1976).

The Roberts’ contention that the Beard Equipment dealer was in fact the agent of Sierra, and therefore the knowledge which the agent had as to the true contract debtor’s identity is imputable to his principal, Sierra, is not well founded. Hardy v. American Southern Life Insurance, supra, offers no support to the Roberts’ position. In Hardy, a couple, upon purchasing an automobile, authorized application for individual credit life insurance through a car salesman. The application was accepted and the husband was named as the insured. The policy provided for premium payments separate from the installment contract. The husband was, as known by the salesman, a bedridden patient suffering from terminal cancer, and, shortly after the sale, died from his affliction. The Fourth District Court of Appeal denied coverage based upon the “sound health” provision in the policy. The Supreme Court reversed, finding the car salesman and the dealer knew of the husband’s bedridden condition but nevertheless accepted the application from the wife for the insurance. The insurance company was found to have constructive notice, through its agents, the salesman and dealer, and was therefore es-topped from denying coverage.

The holding in Hardy is not applicable here for at least two reasons: First, we are not concerned with a forfeiture of the insurance policy as was the case in Hardy. Secondly, the credit life insurance was sold on an individual basis, separate from the retail installment contract. John Deere, on the other hand, contracted with Sierra for group coverage on all its debtors. Coverage begins automatically when Deere accepts assignment of the installment contract. No additional charge is made to the eligible debtor for the insurance. Under these circumstances, we cannot say the John Deere retail dealer is an agent for Sierra so that Sierra is imputed with the knowledge of the elder Roberts’ status as company owner and real party in interest under the contract. Compare Couch v. Connecticut General Life Insurance Company, 216 So.2d 72 (Fla. 2d DCA 1968); Denton v. Connecticut General Life Ins. Co., 323 So.2d 17 (Fla. 1st DCA 1975); South Branch Valley National Bank v. Williams, 155 S.E.2d 845 (W.Va.1967).

The Roberts also argue that Section 627.553 requires insurance as to creditor owned life insurance policies upon the creditors’ debtors. Section 627.553 provides in part:

(1) The debtors eligible for insurance under the policy shall be all of the debtors of the creditor whose indebtedness is repayable in installments, or all of any class or classes thereof determined by conditions pertaining to the indebtedness or to the purchase giving rise to the indebtedness.
* * * * * *
(2) . . .A policy on which no part of the premium is to be derived from the collection of such identifiable charges must insure all eligible debtors, or all except any as to whom evidence of individual insurability is not satisfactory to the insurer.

The court, in its order granting Roberts’ motion for summary judgment, apparently reasoned that, since none of the premiums was derived from the collection of identifiable charges from the debtor, the statute required all who were obligated on the debt were eligible for credit life insurance. The lower court’s interpretation of the statute is incorrect. Under paragraph (1), an eligible debtor is described as “all of any class or classes thereof determined by conditions pertaining to the indebtedness or to the purchases giving rise to the indebtedness . .” The contract therefore determines the conditions which apply to one who may become an eligible debtor. The condition provided in the retail installment contract that “the debtor whose signature is . . .on the face hereof qualifies as an eligible debtor . . .” is entirely consistent with the provisions of the statute.

The final judgments entered against John Deere and Sierra are reversed and judgments are entered in their favor against the Roberts.

SMITH, Acting C. J., concurs.

BOOTH, J., dissents.

BOOTH, Judge,

dissenting.

I would affirm the judgment below for the reasons stated by the eminent trial court, in pertinent part as follows:

“According to the provisions of Florida Statutes, Section 627.553, the debtors eligible for insurance under a group credit life insurance policy ‘shall be all of the debtors of the creditor whose indebtedness is repayable in installments’. Under that statute it is also noted that a policy on which no part of the premium is to be derived from the collection of identifiable charges from the debtor ‘. . . must insure all eligible debtors . . .’.
It is the finding and conclusion of this Court under the pleadings and evidence that C. W. Roberts, Jr. was in fact the ‘eligible debtor’ of John Deere Industrial Equipment Company. It is equally clear that C. W. Roberts, III was not the ‘eligible debtor’, that he made no contract or agreement for purchase of the equipment in questiori, and in fact had no insurable interest in the property covered by such agreement.
Upon acceptance of the assignment to John Deere, the eligible debtor, C. W. Roberts, Jr., became entitled to the group life insurance provisions of the policy mentioned in the contract, as an integral part of the consideration and benefits flowing to him by virtue of his transaction and dealings with the dealer, Beard Equipment Company, and its assignee, John Deere.
The dealer who initiated this transaction had actual knowledge that the purchaser and ‘eligible debtor’ was in fact C. W. Roberts, Jr. The Complaint alleges that C. W. Roberts, Jr. was the party obligated to pay the monthly purchase price installments, and John Deere thereafter received such payments until November 1, 1975. Under the circumstances presented by the facts in this case John Deere cannot now disclaim knowledge of the true identity of the ‘eligible debtor’. Neither John Deere nor its dealer, Beard Equipment Company, can by virtue of their own mistake or negligence in failing to have the eligible debtor sign the contract document in question now deprive the estate of C. W. Roberts, Jr., of the benefit of the entire contract.
Knowledge of the true identity of the ‘eligible debtor’ is imputed to the Third-Party Defendant, Sierra General Life Insurance Company, assuming it is found to be the insurer under the group credit life policy mentioned in the John Deere contract. It is noted that its status as insurer is denied by Sierra in its pleadings. Assuming the status of Sierra as the insurer under the group life policy is established, it will be the ruling of this Court that John Deere and Sierra cannot disclaim knowledge of the true identity of the debtor and thereby deprive his estate of the benefit of the insurance contract between themselves. To allow them to do so would be to sanction what would amount, in this Court’s opinion, to a virtual constructive fraud.” (e. s.)

The foregoing order is correct. I respectfully dissent from this Court’s reversal.


text:
    Annalee ERHARDT, Appellant, v. Harold George ERHARDT, Appellee.
    No. 77-1936.
    District Court of Appeal of Florida, Second District.
    Aug. 9, 1978.
    Rehearing Denied Sept. 11, 1978.
    William D. Keith, of Monaco, Cardillo & Keith, Naples, for appellant.
    Richard D. Sparkman, of Sparkman & Hamilton, Naples, for appellee.
   PER CURIAM.

Subsequent to the entry of an order granting the motion for default filed by appellant/wife Annalee Erhardt, the trial court entered a final decree of dissolution of the marriage between appellant and ap-pellee/husband Harold George Erhardt on August 19, 1975. Appellant was awarded $300 per month permanent alimony, and appellee was ordered to provide $600 per month child support.

On May 3, 1977 appellee, in an independent action, filed a petition for relief from that final judgment alleging that appellant had fraudulently misrepresented the income of appellee and that the trial court relied on this misrepresentation as a basis for the alimony and child support awards. The petition requested that appellee be relieved of the child support and alimony obligations. It should be noted that at the time the petition was filed appellee was approximately $17,000 in arrears on these obligations. After appellee filed his petition, the trial court in effect reopened the dissolution action and consolidated it with appellee’s petition.

At the conclusion of an evidentiary hearing on the petition the trial court found that appellee was not making as much money as appellant had said he was during the dissolution action. However, the court found that no fraud had been committed upon the court, but that appellant had been “working under a bonafide [sic] mistake of fact.” The court further ruled that appel-lee was relieved of the obligations imposed under the previous final judgment of dissolution, including the $17,000 in arrearages. The court directed the husband to begin paying $300 per month child support, but did not require him to pay any alimony. Soon thereafter the trial court entered an amended final judgment in the original dissolution proceedings embodying the above. It is from this amended final judgment that wife appeals.

Rule 1.540(b) of the Florida Rules of Civil Procedure provides in pertinent part:

On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, decree, order or proceeding for the following reasons: ... (3) fraud (whether heretofore denominated intrinsic or extrinsic) . . . . The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, decree, order or proceeding was entered or taken. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, decree, order or proceeding or to set aside a judgment or decree for fraud upon the court. (Emphasis added).

Appellee contends that even though the trial court did not find that appellant had committed fraud upon the court he could still be granted relief under the last sentence of Rule 1.540(b). Appellee argues that this final sentence empowers a trial court to entertain petitions for relief seeking either (1) “[relief] from a judgment, decree, order or proceeding” or (2) “to set aside a judgment or decree for fraud upon the court.” In other words appellee views the two portions of the final sentence dis-junctively and finds two separate grounds for relief, one of which requires a showing of fraud and one of which does not. We reject this reasoning. We read the final sentence to provide only one basis for relief and that requires a showing of fraud upon the court.

As mentioned previously, the trial court found at the conclusion of the hearing that appellee had committed no fraud upon the court. We hold that this finding was supported by the evidence. Therefore, since no fraud was committed upon the court, the court had no power to grant relief under the final sentence of Rule 1.540(b) because appellee’s application for relief was untimely.

Accordingly, the amended final judgment is vacated and the final judgment of August 19, 1975 is reinstated.

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


text:
    Sherman L’HOMMEDIEU, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 78-1286.
    District Court of Appeal of Florida, Second District.
    Aug. 9, 1978.
    Rehearing Denied Sept. 13, 1978.
   PER CURIAM.

In his motion filed under Fla.R.Crim.P. 3.850, appellant alleges that he did not have counsel when he was convicted in 1952 and sentenced to three years imprisonment. Obviously, appellant is not now serving this three-year sentence. The motion does not state whether he is presently incarcerated and, if so, how or whether his original sentence affected his current sentence. See State v. Reynolds, 238 So.2d 598 (Fla.1970). If he merely seeks to expunge his conviction from the record, he should say so pursuant to the authority of Weir v. State, 319 So.2d 80 (Fla.2d DCA 1975). Therefore, the denial of his motion is affirmed without prejudice.

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

ON PETITION FOR REHEARING

In his pro se petition for rehearing appellant has stated additional facts. Since this court cannot entertain new facts not presented to the court below, the petition is denied. The appellant is at liberty to file in the trial court another motion under Fla.R. Crim.P. 3.850 setting forth under oath such additional facts as may be pertinent to his request for relief.

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


text:
    Roy GARCIA and Roxanna Garcia, his wife, Appellants, v. Rosandra ANTUNEZ et al., Appellees.
    Nos. 77-631, 77-835 and 77-1122.
    District Court of Appeal of Florida, Third District.
    Aug. 15, 1978.

      Horton, Perse & Ginsberg, Miami, William Sullivan, Coral Gables, for appellants.
    Ress, Gomez, Rosenberg, Berke & How-land and Roland Gomez, North Miami, Joe N. Unger, Stephens, Schwartz, Lynn, Cher-nay & Brandy, Miami, for appellees.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   PER CURIAM.

These consolidated appeals are from final judgments in an action growing out of an intersectional collision. The plaintiffs were Roy Garcia and Roxanna Garcia, his wife. The defendants were Rosandra Antunez, whose car first collided with plaintiff Garcia’s automobile, and Jose Araco, whose car then collided with plaintiff’s car.

The evidence as to the collision between plaintiff’s vehicle and the Antunez vehicle is conflicting, but it is clear that the Antunez vehicle proceeded out of a street controlled by a stop sign and that the Antu-nez vehicle stalled in the intersection. The evidence is clear that Araco was proceeding slowly on the same through-street as Garcia and in the same direction as Garcia. The Garcia car was forced back into the Araco automobile.

The cause was tried before a jury. At the conclusion of all the evidence, the trial judge directed a verdict for Araco and his insurance company. The court, over the objection of the plaintiff and the defendant Antunez, gave the following instruction upon the Florida No-Fault insurance statute:

“You are instructed that this case is subject to the Florida no-fault law. In order for the plaintiff to recover damages in this case, you must first find that he has either sustained á permanent injury within the reasonable medical probability, as a result of the accident in this cause, or has incurred reasonable and necessary medical expenses in excess of $1,000.
“If you find the plaintiff has either sustained a permanent injury within a reasonable medical probability as a result of the accident, or has incurred reasonable and necessary medical expenses in excess of $1,000, then you may consider the element of damages, of which I will instruct you.
“If you find, however, that the plaintiff did not sustain a permanent injury within a reasonable medical probability as a direct result of the accident, or incur reasonable and necessary medical expenses in excess of $1,000, then you must find for the defendants.” [emphasis supplied]

The jury returned a verdict for the defendant Antunez. Final judgment was entered for both defendants, and these appeals followed.

The directed verdict for the defendant Araco was proper because no reasonable view of the evidence established negligence on his part. The judgment for defendant Araco and his insurance company is affirmed. Cf. Hormovitis v. Mutual Lumber Co., 120 So.2d 42 (Fla. 2d DCA 1960); Novitch v. Nu Way Auto Service, 315 So.2d 203 (Fla. 3d DCA 1975).

The evidence as to the negligence of the defendant Antunez was conflicting. Viewed in the light most favorable to the jury verdict, the evidence was sufficient to support the jury verdict for the defendant Antunez. See Republic National Life Insurance Company v. Valdes, 348 So.2d 566 (Fla. 3d DCA 1977).

Plaintiff urges that the Supreme Court of Florida in Calhoun v. New Hampshire Ins. Co., 354 So.2d 882 (Fla.1978), eliminated the necessity of presenting the no-fault threshold question to the jury and that, therefore, the giving of the instruction above quoted, over plaintiff’s objection, was error. The holding in Calhoun limits itself to the question of “subject matter jurisdiction.” Section 627.737, Florida Statutes (1975), creates specific events that must transpire, i. e., over $1,000.00 in reasonable and necessary medical expenses or permanent injury before plaintiff may recover certain damages in a motor vehicle tort action, and those events for jurisdictional purposes must be alleged in good faith and proven to a jury’s satisfaction for a plaintiff to recover.

Affirmed.


author: BARKDULL, Judge. HUBBART, Judge

text:
    Leona McPHEE, as Personal Representative of the Estate of Brenda Annette McPhee, Deceased, and on behalf of Octavian Demetrius McPhee and Gregory Terrell McPhee, surviving minor children, Appellant, v. DADE COUNTY, a political subdivision of the State of Florida, and Continental Casualty Company, Appellees.
    No. 77-1809.
    District Court of Appeal of Florida, Third District.
    Aug. 15, 1978.

      Marlow, Shofi, Ortmayer, Smith & Span-gler, Greene & Cooper and Sharon L. Wolfe, Miami, for appellant.
    Carey, Dwyer, Cole, Selwood & Bernard and Steven R. Berger, Miami, for appellees.
    Before HENDRY, BARKDULL and HUBBART, JJ.
   BARKDULL, Judge.

This is an appeal by the plaintiff-appellant, Leona McPhee, as personal representative of the Estate of Brenda Annette McPhee, deceased, and on behalf of Octavian and Gregory McPhee, surviving minor children, from a final summary judgment in favor of Dade County and its insurer, Continental Casualty Company.

The decedent met her death by drowning at Virginia Beach, a County park. From the record it appears that the decedent did not know how to swim and knew there was no lifeguard present. There were no other people on the beach; at the time the accident happened the sun had gone down completely. The hours of the operation of the park were from sunrise to sunset. There were 18" X 36" signs with the warning “Caution — Deep Water, Swimming Prohibited Beyond This Point” posted up and down the shoreline along the beach at the park site, approximately 50 yards apart. Plaintiffs sister testified at her deposition that she saw the warning sign, but didn’t read it; that she didn’t have any difficulty in seeing it but that she didn’t pay any attention to it. Both the decedent and her sister were able to read and should have seen the warning. After being notified of the danger' involved, the decedent chose to enter the water; her actions were the cause of her death.

The appellant contends that the County was negligent in failing to erect and maintain safety barriers in the form of fences or gates a sufficient distance in the water along the perimeter of the shoreline, to protect swimmers and bathers; in failing to inform and/or adequately warn the public of the alleged dangerous conditions; in failing to have lifeguards stationed on the beach throughout the hours that the beach was open to the public; in failing to have necessary and adequate life-saving equipment.

At the time of plaintiff’s drowning the park was closed; it was after sunset; the lifeguards’ duties terminated when the park closed. The appellant’s contention that fences and/or barriers should have been constructed in the water is not well-taken, when viewed in light of the fact that much of the County’s land abuts on the water and that citizens have a right to use the navigable waters of this State. Brickell v. Trammell, 77 Fla. 544, 82 So. 221 (1919); City of Miami Beach v. Hogan, 63 So.2d 493 (Fla.1953); State v. T. O. L. Inc., 206 So.2d 69 (Fla. 4th DCA 1968).

From the record, the drowning was caused by the decedent’s own negligence in swimming in an area after the close of the park when she, in fact, did not know how to swim. When the movant shows that a plaintiff’s negligence is the sole proximate cause of the injury, courts will grant a summary judgment in his favor. Wills v. Sears Roebuck Co., 351 So.2d 29 (Fla.1977). Dade County owed no duty that was breached and is not liable for any negligence in the case at bar.

As a defense, the County pleaded the doctrine of sovereign immunity and even if negligent would be relieved of liability because of said doctrine. In Keggin v. Hillsborough County, 71 Fla. 356, 71 So. 372 (1916), the following is found:

******
“While a county may, in some respects, resemble a municipality in that both organizations deal with public interests, their differences are so great that the cases discussing the latter’s liability in damages for the negligent omission to perform a public duty are not analogous to those in which a liability is sought to be imposed upon a county. The one feature which sufficiently distinguishes them is that the counties are under the constitution political divisions of the state, municipalities are not; the county, under our Constitution, being a mere governmental agency through which many of the functions and powers of the state are exercised. County of San Mateo v. Coburn, 130 Cal. 631, 63 P. 78, 621. It therefore partakes of the immunity of the state from liability. Many of the powers exercised by a municipality, such as building and maintaining streets, erecting and operating water supply systems, lighting and power plants, are, in their nature and character, corporate rather than governmental. The corporation being organized voluntarily by the citizens of the locality for the purpose of local government, it is given the power and charged with the duty by the state of keeping the streets in a safe condition. 2 Dillon’s Munic. Corp. (4th ed.) § 1034; City of Key West v. Baldwin, 69 Fla. 136, 67 So. 808. The citizens of a municipality have a proprietary interest in the property and funds of the municipality; the citizens of a county have not. * * * ”
* * * * * *

More recently, the Supreme Court held, in Kaulakis v. Boyd, 138 So.2d 505, 507 (Fla.1962), that “Counties, * * * as political subdivisions constitute a part of the machinery of the state government. Therefore, it has been held that they partake of the sovereign immunity from liability.” This immunity is embodied in Article X, Section 13, Constitution of Florida (1968).

The immunity of the County from suit is absolute. Buck v. McLean, 115 So.2d 764 (Fla. 1st DCA 1959). It makes no difference whether the activity of the County is involved in is classified as governmental or proprietary; the immunity is unqualified. Buck v. McLean, supra; Dept. of Natural Resources v. Circuit Court of Twelfth Judicial Circuit, 317 So.2d 772 (Fla. 2d DCA 1975). The court in Buck, referring to the above-quoted passage in Keggin, stated: ‡ % * * *

“Appellants insist that the decisions of our Supreme Court in Bragg and Richter have been receded from and overruled by its decision in Hargrove. (Citation omitted). With this contention we cannot agree. The Hargrove case involved a tort action against the Town of Cocoa Beach, a municipal corporation. In holding that under the doctrine of respondeat superior a municipal corporation may be liable in tort for the negligent act of its police officer whether committed in the discharge of a governmental or proprietary function, the court receded from its former decisions holding to the contrary. There is nothing in this decision which says, or from which it can be reasonably inferred, that the rule there announced is likewise applicable to the State of Florida, or its several counties and boards of public instructions. The broad and well defined distinction between a municipal corporation on the one hand, and a county or other agency of the State on the other, was ably discussed by our Supreme Court in the Keggin case. * * * ” [emphasis added]
sfc He H< He sf:

The liability of a county is fundamentally different from that of a municipality.

The appellant relies on several cases involving Dade County which are distinguishable. In Butts v. County of Dade, 178 So.2d 592 (Fla. 3d DCA 1965), an action was brought by a bus passenger for injuries received when the bus collided with another vehicle. At the outset, the court stated: “Metropolitan Dade County’s immunity from tort liability was established by the Supreme Court of Florida in Kaulakis v. Boyd * * * Butts at 594. The court then went on to hold that the plaintiff, as a paying passenger on a common carrier, had the right to sue in contract for the breach of the contract of carriage, and that her action could be brought on that basis. The instant case sounds in tort.

In Department of Natural Resources v. Circuit Court of Twelfth Judicial Circuit, supra, a case with similar facts to the case at bar, the District Court stated that under the doctrine of sovereign immunity it makes no difference whether the negligent act is committed in the performance of a governmental or proprietary function; both functions are immune. The Supreme Court of Florida agreed. Circuit Court of Twelfth Judicial Circuit v. Department of Natural Resources, 339 So.2d 1113 (Fla. 1976). In discussing the difference between municipalities and the sovereignty of the State, the court stated:

* * * * * *
“ * * * Cases such as Hargrove v. Town of Cocoa Beach, 96 So.2d 130 (Fla. 1957), this Court’s landmark decision modifying the sovereign immunity of municipalities, are distinguishable precisely because they involve municipal corporations, not the state or its agencies. The governmental/proprietary distinction, which has on occasion been viewed as a test for waiver of sovereign immunity, has almost invariably been crucial only in the cases involving municipalities. See Seligman & Beals, The Sovereignty of Florida Municipalities, 50 Fla.B.J. 338 (1976), for the view that existing precedent has led to some confusion over the viability of the distinction in the municipal area. We are not called upon today to reconcile whatever conflict in precedent may exist in that area of the law. Seligman and Beals further state, ‘While the State of Florida has always enjoyed sovereign immunity with respect of the torts of state employees, municipalities have not enjoyed full derivative immunity,’ and appellant has been unable to direct our attention to a single case which undermines the accuracy of that statement.” [emphasis added]

* * * * * *

The appellant seeks to rely on Butts v. Bade County, supra, asserting that in Butts the court found liability for a proprietary endeavor. While the Supreme Court noted that Butts involved a County and not a State agency, it did state:

* * * * * *
“ * * * Without expressly overruling the Butts decision, we question the wisdom of its apparent extension of the Har-grove rationale to the county level. Unlike a municipality, a county has no corporate fund or other proprietary holding. It has long been held that counties act as arms of the state. Thus a persuasive argument, and one which this Court has accepted previously, could be made for including counties in the Constitution’s protection of the state from legal liability. See Keggin v. Hillsborough County, 71 Fla. 356, 71 So. 372 (1916). Whether such an argument would be accepted by this Court today is a matter we need not yet decide. In any event, we do not find Butts, based as it seems to be on dicta from the Suwannee County decision, to be persuasive authority for appellant’s point of view.” [emphasis added]
* * * * * *

The Supreme Court has left open the question of whether the rationale of Keggin, supra, would be accepted today. However, as the Supreme Court has not yet overruled Keggin, it is the duty of the court to follow the prior decisions of the Supreme Court. Reaves v. L. W. Rozzo, Inc., 286 So.2d 221 (Fla. 4th DCA 1973).

In Jackson v. Palm Beach County, 360 So.2d 1 (Fla. 4th DCA 1978), opinion filed April 10, 1978, the Fourth District Court of Appeal, when confronted with a similar fact situation and a similar argument of liability based upon a proprietary rather than a governmental function, adhered to the holdings in Keggin v. Hillsborough County, supra, and Circuit Court of Twelfth Judicial Circuit v. Department of Natural Resources, supra, and held the County had absolute immunity even though it was engaged in the proprietary function of operating a park.

The appellant asserts that the defense of sovereign immunity is unavailable to the County because it obtained insurance. Section 455.06, Florida Statutes (1975) reads:

“Liability insurance; authority of counties, state agencies, and certain political subdivisions to purchase.—
“(1) The public officers in charge or governing bodies, as the case may be, of every county, district school board, governmental unit, department, board, or bureau of the state, including tax or other districts, political subdivisions and public and quasi-public corporations, other than incorporated cities and towns, of the several counties and the state, all hereinafter referred to as political subdivisions, which political subdivisions in the performance of their necessary functions own or lease and operate motor vehicles upon the public highways or streets of the cities and towns of the state or elsewhere, own or lease and operate watercraft or aircraft or own or lease buildings or properties or perform operations in the state or elsewhere are hereby authorized, in their discretion, to secure and provide for such respective political subdivisions, and their agents and employees while acting within the scope of their employment, insurance to cover liability for damages on account of bodily or personal injury or death resulting therefrom to any person, or to cover liability for damage to the property of any person or both, arising from or in connection with the operation of any such motor vehicles, watercraft, or aircraft, from the ownership or operation of any such buildings, property, or livestock, or any other such operations, whether from accident or occurrence; and to pay the premiums therefor from any general funds appropriated or made available for the necessary and regular expense of operations of such respective political subdivisions, without the necessity of specific appropriation or specification of expense with respect thereto. Provided, that in those instances where, by general law, provision has been made for the public officer in charge or governing body of any such political subdivision to provide such insurance, this section shall not be construed to impair any such previous acts but shall be construed as cumulative thereto.
“(2) In consideration of the premium at which such insurance may be written, it shall be a part of any insurance contract providing said coverage that the insurer shall not be entitled to the benefit of the defense of governmental immunity of any such political subdivisions of the state in any suit instituted against any such political subdivision as herein provided, or in any suit brought against the insurer to enforce collection under such an insurance contract; and that the immunity of said political subdivision against any liability described in subsection (1) as to which such insurance coverage has been provided, and suit in connection therewith, are waived to the extent and only to the extent of such insurance coverage; provided, however, no attempt shall be made in the trial of any action against a political subdivision to suggest the existence of any insurance which covers the whole or in part any judgment or award which may be rendered in favor of the plaintiff, and if a verdict rendered by the jury exceeds the limit of the applicable insurance, the court shall reduce the amount of said judgment or award to a sum equal to the applicable limit set forth in the policy.”

Wnen a statute purports to authorize a waiver, the statutory language must be clear and unequivocal; such statutes should be strictly construed. Arnold v. Shumpert, 217 So.2d 116 (Fla.1968). In Arnold, the county had obtained an insurance policy covering liability from malfunctioning traffic lights. The Supreme Court found the purchasing of insurance did not waive sovereign immunity where the purchase of such insurance was unauthorized. A similar issue was present in Valdez v. State Road Department, 189 So.2d 823 (Fla. 2d DCA 1966). In Valdez, a prisoner was injured by the operator of a motor vehicle owned by the State Road Department. Although the vehicle was insured, the court held that sovereign immunity applied absent specific wording in the statute authorizing suit.

As pointed out above, Dade County is immune from suit unless the insurance provisions waive such immunity. The immunity extends to both the governmental and proprietary functions of the County. See: Circuit Court of Twelfth Judicial Circuit v. Department of Natural Resources, supra; Keggin v. Hillsborough County, supra; Kaulakis v. Boyd, supra. It is the appellee’s position that the insurance waiver only applies to those functions which are traditionally considered governmental. The waiver does not apply when the insurance covers functions which are proprietary. A governmental function has to do with the administration of some phase of government; that is to say, dispensing or exercising some element of sovereignty. Daly v. Stokell, 63 So.2d 644 (Fla.1953). A proprietary function is one designed to promote the comfort, convenience, safety and happiness of the citizens. It is well-settled that the operation of playgrounds and recreation areas is a proprietary function. Woodford v. City of St. Petersburg, 84 So.2d 25 (Fla. 1955); Ide v. City of St. Cloud, 150 Fla. 806, 8 So.2d 924 (1942). The plaintiff was in a recreation area at the time of her death.

A close examination of the two principal cases on which the plaintiff relies, reveal that they support the County’s position.

In Buffkin v. Board of County Commissioners of Brevard County, 320 So.2d 876 (Fla. 4th DCA 1975), a minor drowned in a drainage ditch. In citing the full text of the statute, the court italicized the words “in the performance of their necessary functions ”. The court noted that the drainage ditch was part of the Mosquito Control District. The maintenance of a mosquito district drainage ditch is not a function capable of being performed by the private sector of the community; it exists under the sovereignty of the County’s power to protect its citizens from disease. Such a function is governmental.

In Surette v. Galiardo, 323 So.2d 53 (Fla. 4th DCA 1975), a minor was killed while waiting at a school bus stop. Again the court emphasized the words “in performance of their necessary functions”. In distinguishing the Arnold case, the court stated:

♦ * * * * *
“In Arnold, the court found that although the insurance policy covered the negligent operation of a traffic light, the statute, sec. 455.06, did not include a traffic light in the category of property for which insurance could be purchased and liability waived. By marked contrast, in the instant case we are, for example, not concerned with the category of school board ‘property’, but, rather, we are concerned with the category of a necessary ‘operation’. Moreover, there is a vast distinction between the permissive function of owning and operating traffic signals and the mandatory governmental function of operating a school bus transportation system. * * * ” Surette, supra, at 57 [emphasis added]
* * * * * *

The Surette court makes the permissive proprietary versus governmental distinction clear. A governmental function is necessary; a proprietary function, such as maintaining a recreation area, is not.

A review of Section 455.06(2), Florida Statutes (1975), reveals that when insurance is purchased the defense of governmental immunity is waived. It should be noted that the Legislature did not say sovereign immunity (which encompasses governmental and proprietary immunity). Cf. Section 768.28, Florida Statutes (1974). Governmental immunity must be construed to mean immunity for governmental functions. Such a reading of the statute would be in harmony with the “necessary function” language of the statute.

In conclusion, Section 455.06, Florida Statutes (1975), authorizes the waiver of immunity for governmental functions. The maintenance of a recreation area is not a necessary or governmental function. The accident occurred at a recreation area. Therefore, the procuring of insurance for such a function does not waive sovereign immunity. The appellees also rely on Section 375.251, Florida Statutes (1975) for immunity. We find this not to be applicable to a county.

The appellant claims the County is liable as a municipality, citing Article VIII, Section 2, Constitution of the State of Florida (1968). We do not agree. Having additional powers of a municipality does not automatically give Dade County municipal responsibilities. This court has recently held, in three cases, that Dade County is not liable in tort. See and compare: Smith v. Metropolitan Dade County, 343 So.2d 653 (Fla. 3d DCA 1977); Cruz v. Metropolitan Dade County, 350 So.2d 533 (Fla. 3d DCA 1977); Cheney v. Dade County, 353 So.2d 623 (Fla. 3d DCA 1977).

Therefore, for the reasons above stated, the trial court is affirmed for any or all of the said reasons. A trial court will be sustained if its ruling is correct on the record. Pinson v. Barlow, 209 So.2d 722 (Fla. 2d DCA 1968); First National Bank of Clearwater v. Morse, 248 So.2d 658 (Fla. 2d DCA 1971); Aetna Insurance Company v. Settembrino, 324 So.2d 113 (Fla. 3d DCA 1975).

Affirmed.

HUBBART, Judge

(concurring).

I concur in the court’s judgment herein solely on the grounds that: (1) Dade County enjoys complete sovereign immunity for its torts unless specifically waived by statute; and (2) Dade County did not waive such immunity under Section 455.06, Florida Statutes (1977), by purchasing insurance to cover liability for damages on account of personal injury or death arising out of the ownership and operation of the public park and recreational area herein because it, had no authority under the above statute to purchase such insurance for such property. Accordingly, the action herein is barred by the doctrine of sovereign immunity, and the trial court was eminently correct in rendering a summary judgment in favor of Dade County.

As to the first ground, I fully agree with the court’s opinion on this issue together with its authorities and reasoning. As to the second ground, the Supreme Court of Florida in Arnold v. Shumpert, 217 So.2d 116 (Fla.1968), has settled the issue by holding that when a county, as in the instant case, seeks to purchase insurance under Section 455.06, Florida Statutes (1977), “to cover liability for damages on account of bodily or personal injury or death resulting therefrom, to any person . . . arising . from the ownership or operation of any such buildings, property, or livestock, or any other such operations,” it is confined to purchasing insurance to cover property and operations specifically enumerated in the statute [livestock] and to no other species of property or operation based on the statutory interpretation doctrine of ejusdem gen-eris. To the extent that Surette v. Galiardo, 323 So.2d 53 (Fla. 4th DCA 1975), and Buffkin v. Board of County Commissioners of Brevard County, 320 So.2d 876 (Fla. 4th DCA 1975), conflict with the Arnold holding, such decisions do not represent the law of this state. As such, Dade County was unauthorized to purchase the liability insurance herein as it relates to a species of property [public park and recreational area] which is not specifically enumerated in the statute.

I cannot agree with the court, however, that the above statute authorizes Dade County to purchase liability insurance for the specific property and operations enumerated in the statute only when the county is performing a “governmental function,” but not a “proprietary function.” I find no such language in the statute, and we would do well not to read into the statute the governmental-proprietary function doctrine which has been so thoroughly discredited. Hargrove v. Town of Cocoa Beach, 96 So.2d 130 (Fla.1957). This is particularly true when we reach the anomalous result, as in this case, that the county, in complete turnabout from the above doctrine, is immune from tort liability when performing its proprietary functions, but not its governmental functions. Waiver of sovereign immunity statutes should be strictly construed, but not in such a way as to reach an unreasonable or illogical result. See State Farm Mutual Automobile Insurance Co. v. O’Kelley, 349 So.2d 717, 719 (Fla. 1st DCA 1977); George v. State, 203 So.2d 173, 175-76 (Fla. 2d DCA 1967).

In my view, the term “necessary functions” as used in the statute should be interpreted in a common sense way to mean any lawful function of county government. Such an interpretation is a reasonable, yet strict construction of the statute. When read in pari materia with the specifically enumerated species of property and operations which can be covered by liability insurance, it is clear that only a very limited waiver of sovereign immunity has been accomplished by this statute. And contrary to the court’s conclusion herein, the term “governmental immunity” as used in the statute has no special meaning apart from the term “sovereign immunity” because both such terms have long been used interchangeably in this field of law. Prosser on Torts 970-987 (4th Ed. 1971); Harper and James, The Law of Torts 1607 — 1632 (1956).

Finally, it should be noted that the'tort incident sued upon occurred prior to the effective date of Florida’s general waiver of sovereign immunity statute. Sections 768.-28, 768.30, Florida Statutes. (1975). Had it occurred subsequent thereto, a substantially different question would be presented.

      . It should be noted that the limited waiver of sovereign immunity allowed by Section 768.28, Florida Statutes (1974) is not applicable in this case, since the alleged wrongful death occurred before the effective date of the statute.


text:
    Robert W. ELKINS, Appellant, v. Ellyn F. ELKINS, Appellee.
    No. 77-1832.
    District Court of Appeal of Florida, Third District.
    Aug. 15, 1978.
    Rehearing Denied Sept. 14, 1978.
    Bradford, Williams, McKay, Kimbrell, Hamann & Jennings and Thomas E. Scott, Jr., Miami, for appellant.
    Goodhart & Rosner, Morgan, Lewis & Bockius and Paul J. Levine, Miami, for ap-pellee.
    Before PEARSON, BARKDULL and KEHOE, JJ.
   PER CURIAM.

Affirmed. Klein v. Klein, 122 So.2d 205 (Fla. 3d DCA 1960); Calligarich v. Calligarich, 256 So.2d 60 (Fla. 4th DCA 1971); Firestone v. Firestone, 263 So.2d 223 (Fla. 1972); Sharpe v. Sharpe, 267 So.2d 665 (Fla. 3d DCA 1972); Bosem v. Bosem, 279 So.2d 863 (Fla. 1973); Reback v. Reback, 296 So.2d 541 (Fla. 3d DCA 1974); Shaw v. Shaw, 334 So.2d 13 (Fla. 1976); McAllister v. McAllister, 345 So.2d 352 (Fla. 4th DCA 1977); Hawkesworth v. Hawkesworth, 345 So.2d 359 (Fla. 3d DCA 1977); Rosenberg v. Rosenberg, 352 So.2d 867 (Fla. 3d DCA 1977); Bickerstaff v. Bickerstaff, 358 So.2d 590 (Fla. 1st DCA 1978); Compare McCloskey v. McCloskey, 359 So.2d 494 (Fla. 4th DCA 1978).


text:
    William CANADAY, Appellant, v. Lance GRESHAM, etc., et al., Appellees.
    Nos. 77-1900, 77-2028.
    District Court of Appeal of Florida, Third District.
    Aug. 15, 1978.
    Horton, Perse & Ginsberg and Arnold R. Ginsberg, Goldman, Goldstein & Paczier, Miami, for appellant.
    I. R. Mayers, Miami, for appellees.
    Before HENDRY and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Appellant/petitioner, William Canaday, the natural father of two minor children, appeals from two orders denying his motions to vacate the final judgment of adoption rendered in favor of appel-lee/respondent, Lance Gresham, the stepfather of the children and the husband of Jane Canaday Gresham, the children’s mother and former wife of appellant.

After carefully reviewing the record, briefs and arguments of counsel, it is our opinion that the trial judge erred in denying appellant’s motions to vacate the final judgment of adoption previously entered in favor of appellee. The record affirmatively reveals that appellant had no notice of the institution of these proceedings to adopt his children. Personal service of process was never made nor attempted. In addition, even though it appears that the whereabouts of appellant could have been ascertained by appellee through appellant’s mother, who lived only one mile from appel-lee, constructive service of process was never utilized as a means of notification.

Notice is a fundamental prerequisite to any adoption proceeding. Fielding v. Highsmith, 152 Fla. 837, 13 So.2d 208 (1943); Grissom v. Dade County, 293 So.2d 59 (Fla.1974); In re Adoption of Shaw, 198 So.2d 87 (Fla. 3d DCA 1967); Section 63.-122(2), Florida Statutes (1977). As appellant, the natural father of the children, never received the requisite notice, the final judgment of adoption is void.

Reversed and remanded for further proceedings.


text:
    Jon M. CAMACHO, etc., et al., Appellants, v. Linda FURMAN, Appellee.
    No. 77-1913.
    District Court of Appeal of Florida, Third District.
    Aug. 15, 1978.
    Fowler, White, Burnett, Hurley, Banick & Knight and Fred R. Ober, Miami, for appellants.
    Grusmark, Jaffe & Karten, Miami, for appellee.
    Before HAVERFIELD, C. J., and HUB-BART and KEHOE, JJ.
   PER CURIAM.

Defendant, Jon M. Camacho, takes this appeal to challenge the following rule of procedure regarding voir dire used by the trial court in the case at bar:

“5. If both sides challenge the same juror, each side will be charged with a challenge.”

After counsel for each party in the instant case questioned the prospective jurors, they submitted their written challenges. One of the prospective jurors was challenged by both sides and, thus, this challenge was charged to both plaintiff and Camacho, defendant-appellant herein.

Camacho contends that the application of the above rule resulted in the denial of this right to three peremptory challenges as provided in Fla.R.Civ.P. 1.431(d).

After a review of the record, we conclude that Camacho has not properly preserved the alleged error in that he failed to attempt to exercise another peremptory challenge to which he claims he was entitled in accepting the jury and was denied by the trial court.

Affirmed.


author: PEARSON, Judge.

text:
    Ellen K. ROACH, Appellant, v. Mrs. John (Helen) RAUBAR, Appellee.
    No. 77-2099.
    District Court of Appeal of Florida, Third District.
    Aug. 15, 1978.
    Edward A. Sirkin and David S. Wieder, Miami, for appellant.
    John W. Fowler, Miami, for appellee.
    Before PEARSON and KEHOE, JJ., and PIERCE, WILLIAM C. (Ret.), Associate Judge.
   PEARSON, Judge.

Ellen K. Roach, the plaintiff below, brings this appeal from a final judgment entered upon a directed verdict for the defendant, Helen Raubar. The directed verdict was entered for the defendant at the close of the plaintiff’s case. We reverse upon a holding that the evidence presented showed a prima facie case. See Brookbank v. Mathieu, 152 So.2d 526 (Fla. 3d DCA 1963).

The plaintiff testified that she was ascending the steps of an apartment house owned and operated by the defendant and that as she reached the top (third) step, she fell. Photographs admitted into evidence showed that the top step was badly broken and damaged with large chunks broken from the lip of the step. Plaintiff did not testify that the broken step caused her to fall. Presumably, for this reason, the trial court entered the directed verdict and the defendant here urges that the directed verdict was proper because to hold that the plaintiff fell because of the defective condition would be to place an inference upon an inference, relying upon Commercial Credit Corporation v. Varn, 108 So.2d 638 (Fla. 1st DCA 1959).

We hold that the principle stated in the Commercial Credit Corporation case is not applicable here because the defective condition of the step was not a presumption but must be regarded as a fact from the photographic evidence and plaintiff’s testimony. Under the circumstances of this case, the jury would be entitled to find that the plaintiff’s fall was occasioned by the defective condition inasmuch as the evidence shows that the fall occurred at the time and place where the defective condition existed. Cf. Fletcher v. Petman Enterprises, Inc., 324 So.2d 135 (Fla. 3d DCA 1975); and Majeske v. Palm Beach Kennel Club, 117 So.2d 531 (Fla. 2d DCA 1959).

The final judgment is reversed and the cause remanded for a new trial.

Reversed and remanded.


text:
    Charles Ray TIDWELL, Sr., as natural father and guardian of Charles Ray Tidwell, Jr., a minor, and Charles Ray Tidwell, Sr., Individually, Appellants, v. William H. TOCA, Yolanda Toca, and Allstate Insurance Company, Appellees.
    No. 77-2144.
    District Court of Appeal of Florida, Third District.
    Aug. 15, 1978.
    Mark J. Feldman, Miami, for appellants.
    Adams & Ward and Ramon E. Rasco, Miami, for appellees.
    Before HAVERFIELD, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

The plaintiffs suffered a jury verdict against them and appeal the final judgment upon a claim that the jury was inconsistent. The verdict was upon special interrogatories, as follows:

“1. What percentage of negligence, if any, do you find that WILLIAM H. TOCA, was guilty of in causing this accident?
%_0_
2. What percentage of negligence, if any, do you find that CHARLES RAY TIDWELL, JUNIOR, was guilty of in causing this accident?
% 100
3. What is the total amount of damages, if any, that you find CHARLES RAY TIDWELL, JR., has sustained as a direct and proximate result of the accident?
$4.500.00
4. What is the total amount of damages, if any, you find, that CHARLES RAY TIDWELL, SR. as natural father and guardian of CHARLES RAY TID-WELL, JR. has sustained as a direct and proximate result of the accident?
$3.500.00
SO SAY WE ALL”

We hold that the verdict is not inconsistent under the rule stated in Crawford v. DiMicco, 216 So.2d 769 (Fla. 4th DCA 1968). A party may not complain of a verdict form to which he does not object. It is clear that in the instant case, the verdict as submitted permitted a finding of an amount of damages without a finding of liability for the damages.

Appellants’ reliance upon this court’s decision in Sweeney v. Wiggins, 350 So.2d 536 (Fla. 3d DCA 1977), is misplaced since that case concerned a verdict which was clearly improper and was rejected by the trial court.

Affirmed.


author: KEHOE, Judge.

text:
    Evelio ROSELL, Appellant, v. Christina Louis ROSELL, Appellee.
    No. 77-2205.
    District Court of Appeal of Florida, Third District.
    Aug. 15, 1978.
    Hirschhorn & Freeman and Joel Hirsch-horn, Miami, for appellant.
    Fink & Syna and Richard K. Fink, Miami, for, appellee.
    Before PEARSON, BARKDULL and KEHOE, JJ.
   KEHOE, Judge.

Appellant, plaintiff below, brings this appeal from an order on motions for custody, modification, visitation, contempt, and child support, entered by the trial court on September 28, 1977.

Appellant first contends that the trial court abused its discretion in denying his motion for modification of child support. We disagree. The actions of the trial court are adequately supported by the record and appellant has failed to show any clear abuse of discretion. See, e. g., Krischer v. Krischer, 337 So.2d 1011 (Fla. 3d DCA 1976); Kalmutz v. Kalmutz, 299 So.2d 30 (Fla. 4th DCA 1974); Simonet v. Simonet, 279 So.2d 35 (Fla. 4th DCA 1973); and Morse v. Morse, 191 So.2d 449 (Fla. 3d DCA 1966).

Appellant’s second point is that the trial court erred in finding him in contempt of court for furnishing certain medical care to the parties’ minor child. In our opinion, this contention is not supported by the record or the order appealed; the trial court did not find appellant in contempt of court. However, because the following language found in paragraph 3 on page 3 of the trial court’s order could be construed as implying such a finding, we feel that this language should be stricken from the order:

“. . . however, the court withholds adjudication and sanctions subject to Respondent in the future complying with all of the Orders of this court; . . .”

Further, we hold that the trial court did not abuse its discretion by requiring each party to pay their own attorneys’ fees. See § 61.16, Fla.Stat. (1975).

Affirmed as modified.


text:
    MISSION EAST COMPANY, a Florida Corporation, Appellant, v. Stephanie WYSZATYCKI, Appellee.
    No. 77-2505.
    District Court of Appeal of Florida, Third District.
    Aug. 15, 1978.
    Smathers & Thompson and Shepherd D. Johnston, Miami, for appellant.
    Aronovitz & Weksler and Anne-Lise Gus-tafson, Miami, for appellee.
    Before NATHAN, HUBBART and KE-HOE, JJ.
   KEHOE, Judge.

Appellant, defendant below, brings this appeal from a final judgment dated November 1, 1977, entered by the trial court pursuant to appellee’s, plaintiff below, motion for a final judgment after a default. We affirm.

Appellee filed a complaint on September 12,1977, against appellant seeking to recover on a promissory note. Thereafter, on October 11,1977, appellee filed a motion for default which was granted by the trial court. Subsequently, on October 13, 1977, appellee moved for the entry of a final judgment, based on the default, which was entered by the trial court. On October 18, 1977, appellant, after having filed an answer on October 12, 1977, moved to vacate the default. Appellant’s motion to vacate was denied by the trial court.

In its order denying appellant’s motion to vacate the default, the trial court stated, in pertinent part, as follows:

“THIS CAUSE came on to be heard on the Motion to Vacate Default filed herein by Mission East Co. [appellant herein], and after argument of the Counsel and it appearing to the Court that the defendant has failed to show that it has a meritorious defense, and the Court being otherwise duly advised, it is
“ORDERED AND ADJUDGED that the Motion to Vacate Default of Defendant, Mission East Co., a Florida Corporation, be, and the same is hereby denied.”

As stated by this court in Acme Fast Freight, Inc. v. Bell, 318 So.2d 212, 213 (Fla. 3d DCA 1975), “[t]he general rule in respect to setting aside a default or final judgment consequent thereon is that relief may be granted within the sound discretion of the trial judge upon showing of the existence of [1] a meritorious defense and [2] a legal excuse for failure to comply with the rules.”

In the instant action, the only defense raised by appellant was set forth in its answer filed on October 12, 1977. This defense reads as follows: “The allegations of the complaint are denied.” As can be seen from the quoted portions, set forth above, of the trial court’s order denying appellant’s motion to set aside the default, the trial court exercised its discretion and found that, because appellant had shown no meritorious defense, it was not entitled to have the default set aside.

In making the finding, it was necessary for the trial court to determine that appellant’s general denial, set forth in its answer, was not a meritorious defense sufficient for the purpose' of setting aside the default. We agree with the trial court’s determination. See Bay Convalescent Center, Inc. v. Carroll, 352 So.2d 900 (Fla. 1st DCA 1977); Perry v. University Cabs, Inc., 344 So.2d 914 (Fla. 3d DCA 1977); and Associated Medical Institutions, Inc. v. Imperatori, 338 So.2d 75 (Fla. 3d DCA 1976). See generally North Shore Hospital, Inc. v. Barber, 143 So.2d 849 (Fla.1962); Florida Investment Enterprises, Inc. v. Kentucky Co., 160 So.2d 733 (Fla. 1st DCA 1964); 46 Am.Jur.2d Judgments § 742 (1969); and Annot., 174 A.L.R. 10 (1948).

Affirmed.


text:
    COLONIAL PENN INSURANCE COMPANY, Appellant, v. Joan B. CASTILLO et al., Appellees.
    No. 78-552.
    District Court of Appeal of Florida, Third District.
    Aug. 15, 1978.

      Blackwell, Walker, Gray, Powers, Flick & Hoehl and Bradford Swing, Miami, for appellant.
    Corlett, Merritt, Killian & Sikes, Yogler & Postman, Greene & Cooper and Marc Cooper, Miami, for appellees.
    Before PEARSON, BARKDULL and KEHOE, JJ.
   PER CURIAM.

The question on this appeal is whether including the following exclusion in an automobile liability policy is void as contrary to public policy of the State of Florida:

******
“Exclusions: This policy does not apply: ******
“Under the Liability Coverage * * * ******
“(h) to any automobile or trailer while maintained or used by any person while such person is employed or otherwise engaged in the automobile business, but this exclusion does not apply to the mainte--nance or use of an owned automobile (1) by the named insured or a relative, or (2) by any other insured in an automobile business in which the named insured has an interest as proprietor or partner;”
******

We hold that it is not and reverse, the trial court’s final summary judgment so holding. See: Schaffer v. Government Employees Insurance Company, 280 So.2d 504 (Fla. 2d DCA 1973); Hodge v. Hartford Accident & Indemnity Company, 339 So.2d 279 (Fla. 3d DCA 1970); Compare: Reid v. State Farm & Casualty Company, 352 So.2d 1172 (Fla. 1977).

The cause is remanded to the trial court for further proceedings not inconsistent herewith.

Reversed and remanded, with directions.


text:
    Ben WOLFSON and Alvin Wilensky, Petitioners, v. STATE of Florida ex rel. David H. BLUDWORTH, State Attorney for the Fifteenth Circuit and Enforcing Authority Under Chapter 501, Party II, Florida Statutes, Respondent.
    No. 77-2192.
    District Court of Appeal of Florida, Fourth District.
    Aug. 16, 1978.
    Timothy P. McCarthy, of Levy, Plisco, Perry, Shapiro, Kneen & Kingcade, Palm Beach, for petitioners.
    Steven W. Gomberg, Asst. State’s Atty., West Palm Beach, for respondent.
   Petition for Writ of Certiorari to the Circuit Court, Palm Beach County; Timothy P. Poulton, Judge.

Petition for Writ of Certiorari is hereby DENIED.

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