author: SCHWARTZ, Judge.

text:
    Gladys M. FULKA, Appellant, v. FLORIDA COMMERCIAL BANKS, INC., d/b/a Commercial Bank & Trust Company, etc., Appellee.
    No. 78-1569.
    District Court of Appeal of Florida, Third District.
    May 22, 1979.

      Steven Gary, North Miami Beach, for appellant.
    Levine, Reckson & Reed and Robert S. Geiger, Miami, for appellee.
    Before HAVERFIELD, C. J., and PEARSON and SCHWARTZ, JJ.
   SCHWARTZ, Judge.

The appellant, Mrs. Fulka, was the plaintiff below in an action against the defendant-appellee bank for the conversion of two checks of which she was the named payee. Her case was based upon the bank’s payment of the checks upon allegedly forged indorsements. In granting the defendant’s motion for involuntary dismissal under Fla. R.Civ.P. 1.420(b) at the conclusion of the plaintiff’s case in a non-jury trial, the trial judge ruled that Mrs. Fulka could not recover because, as a matter of law, she had, by her conduct, ratified the supposed forgeries. We agree and affirm the judgment below.

Some months prior to September, 1973, Mrs. Fulka became acquainted, through her employment as a bookkeeper for a carpet concern, with a man named Cy Okum. She entered into negotiations with Okum under which she would invest funds either by going into partnership with him or by purchasing an interest in his own supposedly existing carpet company. Early in September, 1973, Mrs. Fulka went on a trip to California. Before she left, she made a $6,400 loan against her account with her broker, Bache & Co. Mrs. Fulka intended to use the funds to invest with Okum. Since she was to be gone on vacation she therefore instructed Bache to send the checks, which represented the loan proceeds and which were payable to her order, directly to him at his business address. She told Okum, however, that he was authorized only to deposit the checks in her account at the Hollywood Southeast Bank. Okum received the checks — one for $4,000 and one for $2,400 — on September 6,1973 while Mrs. Fulka was still away. Contrary to her instructions, he indorsed them by signing her name, and negotiated them with the Commercial Bank & Trust Co., the present ap-pellee. The proceeds were deposited in Okum’s account at that bank.

The defendant bank concedes that it would be at least prima facie liable for conversion by paying the checks on a forged indorsement — if that were the end of the story. But it is not. For a few days later when Mrs. Fulka returned from California, Okum specifically told her what he had done with the checks and where the money was. Her own testimony at the trial clearly demonstrates that she had no objection whatever to Okum’s actions and that it was perfectly all right with her for him to keep the funds during the course of their negotiations. In other words, Mrs. Fulka was looking only to Okum, the intended recipient of the money, for its eventual return— hopefully with a profit as well. It was only several months later, when Okum perhaps predictably disappeared with the funds, that she claimed that someone else was responsible for the loss and began to pursue the bank which had supposedly converted “her” checks. The trial judge was entirely correct in concluding that this description of her own actions demonstrated conclusively that Mrs. Fulka had ratified the bank’s improper payments.

The controlling provision of the U.C.C. is Section 673.3-404, Florida Statutes (1977), which states:’

“(1) Any unauthorized signature is wholly inoperative as that of the person whose name is signed unless he ratifies it or is precluded from denying it; but it operates as the signature of the unauthorized signer in favor of any person who in good faith pays the instrument or takes it for value.
(2) Any unauthorized signature may be ratified for all purposes of this chapter. Such ratification does not of itself affect any rights of the person ratifying against the actual signer.” [e.s.]

Within the meaning of this provision, as stated in Restatement of Agency 2d, § 82 (1958):

“Ratification is the affirmance by a person of a prior act which did not bind him but which was done or professedly done on his account, whereby the act, as to some or all persons, is given effect as if originally authorized by him.”

The “affirmance” thus required to create a ratification may arise from conduct which can be rationally explained only if there were an election to treat a supposedly unauthorized act as in fact authorized. Restatement of Agency, 2d § 83 (1958); see Thermo Contracting Corp. v. Bank of New Jersey, 69 N.J. 352, 354 A.2d 291, 296 (1976); Atlas Building Supply Co., Inc. v. First Independent Bank of Vancouver, 15 Wash. App. 367, 550 P.2d 26, 28 (1976); Common Wealth Ins. Systems, Inc. v. Kersten, 40 Cal.App.3d 1014, 115 Cal.Rptr. 653 (1974); cf. G & M Restaurants Corp. v. Tropical Music Service, Inc., 161 So.2d 556 (Fla. 2d DCA 1964). That principle is directly applicable here. Mrs. Fulka’s actions can be fairly viewed only as evincing her intention to approve and agree to the results of the bank’s action in letting Okum have the money.

It is established in Florida that one may be barred by ratification from asserting a claim based upon the forgery of a negotiable instrument. Chemical Corn Exchange Bank & Trust Co. v. Frankel, 111 So.2d 99, 102 (Fla. 3d DCA 1959). Our conclusion that it occurred in this case is, as the bank contends, strongly supported by the decision of the New Jersey Supreme Court in Thermo Contracting Corp. v. Bank of New Jersey, supra. In that case, checks had been issued jointly to a general contractor, Thermo, and a sub-contractor, Kashulines. The checks were received by Kashu-lines who forged the general’s indorsement and deposited the proceeds in his own account. Like Mrs. Fulka in this case, Thermo learned of the forgeries shortly after they occurred, but, again like the plaintiff, took no action against anyone for several months. It did so in order to secure the cooperation of the sub on several projects upon which they were both working. Only after the sub went out of business did Thermo bring an action against the bank which had paid on the forgeries. On these facts, which are indistinguishable from those before us, the court affirmed a summary judgment for the bank. It held, in a scholarly and soundly reasoned decision upon which we could not improve, that ratification had been established as a matter of law. For the same reasons, we reach the same conclusion. See also Rakestraw v. Rodrigues, 8 Cal.3d 67, 104 Cal.Rptr. 57, 500 P.2d 1401 (1972); American Cast Iron Pipe Co. v. American R. Co., 87 F.2d 250 (1st Cir. 1936).

Affirmed.

      . On this point, the record shows the following:
      “Q In fact, the purpose of that money was to purchase a partnership interest or a stock interest in Mr. Okum’s business; was it not?
      “A Yes, sir.
      “Q How much more money were you intending to give Mr. Okum, above the $6400?
      “A About $18,000.”

      . Section 673.3-419(1)(c), Florida Statutes (1977); Barnett Bank of Miami Beach, N. A. v. Lipp, 364 So.2d 28 (Fla. 3d DCA 1978); cf. City National Bank of Miami, N. A. v. Wernick, 368 So.2d 934 (Fla. 3d DCA 1979).

      . Mrs. Fulka testified:
      “Q When you came back, did you contact Mr. Okum?
      “A Yes, sir.”
      * * Hi * * *
      “Q Did you talk about the checks?
      “A Yes, sir.
      “Q What did you say to him?
      “A I asked him what happened to the funds, and he said that he had put them into his bank account.
      “Q When was this conversation? When did this conversation take place?
      “A I would assume a few days after I returned.”
      * * . * * * *
      “Q Well, let’s talk about in September of 1973, as soon as you found out what happened.
      “A Uh-huh.
      “Q What did you do? Who did you notify?
      “A I didn’t notify anyone”
      Hs * * * * *
      “Q I am talking about notifying anyone that Mr. Okum apparently had not followed the instructions that you say you gave him in connection with those checks.
      “A Probably.
      “Q It was over a year?
      “A Probably.
      “Q Why did you wait so long?
      “A I was trying to get in touch with Mr. Okum, because he had told me that he would pay me back.”
      * * * * * *
      “Q Then is it fair to say that your answer is that you were not concerned as to where your money was or what was going to happen to it and and that you were not concerned about losing your money, even after you knew that Mr. Okum had cashed your checks?
      Is that right?
      “A At that time I was of the assumption that he would — either the deal would be consummated or he would refund the money to me.
      “Q The business deal, you believed at that time that the business deal would be consummated?
      “A It was in negotiation.”
      * * ‡ *
      “Q You said that the first person that you told about the fact that Mr. Okum had cashed your checks was your attorney, Mr. Gary.
      What caused you at that specific time to go to Mr. Gary and tell him what happened?
      “A Because I was not able to contact Mr. Okum.
      “Q So as long as you were able to maintain contact with Mr. Okum, you were not concerned; were you?
      “A Well, I felt like he would be making restitution to me for the checks.
      “Q The fact of the matter was that you intended to look to Mr. Okum to recover your money; is that correct?
      “A Yes, sir.”
      * * * * *
      “Q So that you were not particularly concerned with the fact that Commercial Bank & Trust had cashed that check; were you?
      “A Not the few days right after I got back, no.
      “Q It was not until several months later, when you could not recover your money from Mr. Okum, that you became concerned about that?
      “A I became concerned after we — the negotiations were falling through on the partnership.

        “Q But so long as you had your partnership negotiations, you were not concerned at all about where that money was; isn’t that right?
      “A Not overly concerned.
      “Q Okay.
      “A I knew where it was.”

        . It makes no difference that the bank did not even know of, much less rely on, Mrs. Fulka’s ratification and thus, as it was put at the oral argument, that it simply “lucked out” of liability in this case. The affirmance of a previously unauthorized transaction is effective even if it is not communicated. Restatement, Agency 2d § 95. In this respect, the ratification doctrine may differ from the showing necessary to establish an estoppel. See discussion in the Thermo case, supra, at 354 A.2d 295, n.3.

      . Compare Atlas Building Supply Co., Inc. v. First Independent Bank of Vancouver, supra, a case very similar in its facts to Thermo, but in which the plaintiff’s active efforts to secure payment for the sums represented by the checks were held to have negated a finding of ratification as a matter of law.

      . The description of the transaction by Ther-mo’s principal is uncannily similar to Mrs. Ful-ka’s testimony here. Note 2, supra. It is set forth as follows at 354 A.2d 294:

      “Q. So that in November 1971 you learned presumably for the first time, that * * * the four checks which are the subject matter of our presence here today, payable to Ther-mo, drawn by Seabrook, were paid or issued?
      A. Yes, were issued.
      Q. I see. You learned that for the first time in November 1971?
      A. Uh Huh.
      Q. I see. What did you do?
      A. I immediately took it up with Kashu-lines.
      Q. And.
      A. And we talked.
      He * * * *
      Q. And what was the extent of your discussion with Kashulines concerning the matter?
      A. He told me that he was pressed for cash, he had to use the money. He apologized and told me he would make it up to me as soon as he possibly could.
      Q. Was that acceptable to you?
      A. At the time it was.

      q * * * you accepted his explanation as to his being sorry and he’ll make it up to you.
      A. Yes, 1 did. * * * 1 had faith in the man.”

      . An alternative, but closely related line of analysis of the situation which also requires affirmance is that the plaintiff suffered no damages as a result of the alleged conversion. This is so because, even if Mrs. Fulka had herself been paid the proceeds of the checks, she meant them eventually to be transmitted to Okum anyway. See Note 1, supra. Analogously, it is well-established that a drawer is precluded from recovering on an improperly paid check when the proceeds actually reach the person intended to receive them. Blomquist v. Zions First National Bank, N. A., 18 Utah 2d 65, 415 P.2d 213 (1966); Sundail Construction Co. v. Liberty Bank of Buffalo, 277 N.Y. 137, 142, 13 N.E.2d 745, 747 (1938).


source: Caselaw Access Project

author: BOARDMAN, Acting Chief Judge.

license: Public Domain

text:
    Paul R. BELL and Ruth G. Bell, Appellants, v. CITY OF SARASOTA, Appellee.
    No. 78-2109.
    District Court of Appeal of Florida, Second District.
    May 23, 1979.

      Ray Graham, Sarasota, for appellants.
    Wayne C. Hall of Strode, Hereford & Taylor, Sarasota, for appellee.
   BOARDMAN, Acting Chief Judge.

Appellants, Paul R. Bell and Ruth G. Bell, owned real property in the City of Sarasota, appellee. In accordance with the zoning code of the city, appellants petitioned the Board of Adjustment for a variance permit from a minimum land requirement. After presentations on the subject at a meeting, the board granted the variance. Appellee then sought review of the board’s action to the circuit court. It is alleged that there was a lack of substantial, competent evidence to support a finding that the six criteria set out in the code which the adjustment board is required to consider were met. The circuit court agreed and entered final judgment in favor of appellee. We have that order before us.

Section 163.250, Florida Statutes (1977) provides that:

Any person or persons, jointly or severally, aggrieved by any decision of the board of adjustment, or any officer, department, board, commission, or bureau of the governing body, may apply to the circuit court in the judicial circuit where the board of adjustment is located for judicial relief within [30] days after rendition of the decision by the board of adjustment. Review in the circuit court shall be either by a trial de novo, which shall be governed by the Florida Rules of Civil Procedure, or by petition for writ of certiorari, which shall be governed by the Florida Appellate Rules. The election of remedies shall lie with the appellant.

Section 163.175, Florida Statutes (1977) provides: “Any incorporated municipality may exercise any or all of the powers granted under the provisions of this act in the total area within its corporate limits upon passage of an appropriate ordinance to that effect by the governing body.” Pursuant to Section 163.175, Florida Statutes, Sections 43-11 and 43-98 of the City of Sarasota Code were adopted to provide for review of decisions of the Board of Adjustment in the circuit court. The city apparently elected review in the circuit court by statutory certiorari.

The scope of review by certiorari under 163.250, Florida Statutes (1977) and its predecessor statute Section 176.16, Florida Statutes (1971) has been limited to a determination of whether the zoning action is arbitrary, discriminatory, or unreasonable. City of Naples v. Central Plaza of Naples, Inc., 303 So.2d 423 (Fla. 2d DCA 1974). Where there is sufficient, competent evidence to support the decision of the zoning board, the reviewing court will not disturb the board’s action. City of Tampa v. Islands Four, Inc., 364 So.2d 738 (Fla. 2d DCA 1978). Where there are conflicts in the evidence presented to the board, the reviewing court will uphold the judgment of the board if it is a fairly debatable decision. See Alachua County v. Reddick, 368 So.2d 653 (Fla. 1st DCA 1979); 82 Am. Jur.2d Zoning and Planning § 335 (1976). The court is not permitted to reweigh the evidence and substitute its judgment for that of the board.

In reviewing the transcript of the zoning board proceedings, we note that the board was presented with facts meeting each of the required criteria. Discussion before the vote indicated board members were basing their decision on those criteria. We hold that there was sufficient, competent evidence before the board to justify its action. There is no evidence or indication in the transcript or record on appeal that the board’s action was arbitrary, discriminatory, or unreasonable.

REVERSED and REMANDED with instructions to reinstate the decision of the Board of Adjustment.

RYDER and DANAHY, JJ., concur.

      . The criteria contained in Section 43-10, City of Sarasota Code pertaining to the prerequisite conditions for grant of a variance are similar to those contained in Section 163.225(3)(a), Florida Statutes (1977). Section 43-10 provides:
      A. Written Petition. A written petition for a variance is submitted demonstrating that:
      (1) Special conditions and circumstances exist which are peculiar to the land, structure, or building involved and which are not applicable to other lands, structures, or buildings in the same zoning district;
      (2) The special conditions and circumstances do not result from the actions of the applicant;
      (3) Literal interpretation of the provisions of this Zoning Code would deprive the applicant of rights commonly enjoyed by other properties in the same zoning district under the terms of this Zoning Code and would work unnecessary and undue hardship on the applicant;
      (4) The variance, if granted, is the minimum variance that will make possible the reasonable use of the land, building, or structure;
      (5) Granting the variance requested will not confer on the applicant any special privilege that is denied by this Zoning Code to other lands, buildings, or structures in the same zoning district;
      (6) The grant of the variance will be in harmony with the general intent and purpose of this Zoning Code, will not be injurious to the neighborhood, or otherwise detrimental to the public welfare.

      . The proper method of invoking jurisdiction of this court is by appeal, since the action authorized in the circuit court was the original action of statutory certiorari. See Skaggs-Albertson’s v. ABC Liquors, Inc., 363 So.2d 1082 (Fla.1978); Board of County Commissioners v. Lowas, 348 So.2d 13 (Fla. 3d DCA 1977). However, the Bells filed a petition for writ of certiorari in the Second District Court of Appeal. We treat the petition as if the proper appeal remedy were sought. Fla.R.App.P. 9.040(c).

      . Section 43-11 of the City of Sarasota Code provides that:
      Any person or persons, jointly or severally, aggrieved by any decision of the Board of Adjustment, or any officer, department, board, commission, or bureau of the City may apply to the circuit court having jurisdiction in Sarasota County for judicial relief within thirty (30) days after rendition of the decision by the Board of Adjustment in accordance with State law.
      Section 43-98 provides that “[a]ny person or persons, jointly or severally, aggrieved by any decision of the board of adjustment may apply to the circuit court of the county for judicial relief within thirty days after rendition of the decision by the board of adjustment."

      . Appellants’ petition for a variance met the six conditions:
      1.This property has the peculiar condition of being zoned OPB and unlike any other OPB zoned property in the city, is less than the minimum square footage called for in the ordinance criteria.
      2. The applicant had nothing to do with the circumstance.
      3. The provisions of the zoning code do deprive the applicant of the right commonly enjoyed by other OPB property owners and having a property zoned OPB without the base criteria of 10,000 square feet is creating an unnecessary and undue hardship on the applicant.
      4. The variance, if granted, is the minimum variance that will make possible the use of this land under the OPB zoning ordinance.
      5. Granting this variance would not confer to the applicant any special privileges that are denied by the zoning code to other lands in the same zoning district.
      6. The granting of the variance will be in harmony with the general intent and purpose of the zoning code by adding the necessary square footage to bring this property up to the minimum standards of the code. It would not be injurious to the neighborhood which is also OPB or detrimental to the public, as all other provisions of the code shall be met.


author: DANAHY, Judge.

text:
    Judith H. BURDACK, Appellant, v. Friedrich W. BURDACK, Appellee.
    No. 77-259.
    District Court of Appeal of Florida, Second District.
    May 25, 1979.
    Robert W. Morrison, Tampa, for appellant.
    Britt Whitaker, Tampa, for appellee.
   DANAHY, Judge.

On this appeal we reverse that part of a postjudgment order which modified and reduced the amount of previously agreed upon and ordered child support payments. The issue is whether there was sufficient evidence of a substantial and permanent reduction in the husband’s ability to pay to support the reduction. We find there was not.

The 1974 final judgment which dissolved the marriage of the parties required the husband to pay the wife $90 per week as child support for their three year old son. Later the parties stipulated to a reduction to $75 per week and on March 20, 1975 the trial court entered an order modifying the judgment to conform to that agreement. The pleadings giving rise to this appeal commenced in August 1976 when the wife moved the court to hold the husband in contempt for his failure to make those payments which she alleged were in arrears. The husband replied and petitioned for forgiveness of the arrearages and for further reduction in child support payments. After a hearing the trial court entered the order of January 13, 1977 which we have for review. The order modified the order of March 20, 1975 by reducing the payment to $60 per week. The trial court also found arrearages in the amount of $1,064 and required the husband to pay an additional $25 per week until that sum was satisfied. Thus his total weekly payment was to be $85. The immediate net effect on the husband was an increase of his total weekly outlay for child support by $10 over the amount set in the previous court order until satisfaction of the arrearage. We cannot say the record shows error in the trial court’s conclusion that the husband had the present ability to pay that slightly increased amount to catch up on the past due installments which had become vested property rights. We do find, however, that it was an abuse of discretion to reduce the permanent payments from $75 to $60 per week. Because we do not disturb the finding, of the trial court as to the total amount the husband can now pay, we reallocate the amount to be applied to the arrearage in the decision portion of this opinion.

The evidence at the hearing held January 10,1977 revealed the following circumstances. Since the order of March 20, 1975 requiring the weekly payments of $75, the needs of the child have not decreased. The wife, who has a nondisabling health problem, is, and has been since before the dissolution of marriage, a school teacher. If the trial court were to consider any relevant change in her financial condition it must, of course, begin with her financial circumstances on March 20, 1975 when the parties agreed to, and the court ordered, the weekly amount of $75. It is clear from the record that the modest annual increases in her contract salary for the years 1975, 1976 and 1977 do not constitute a substantial change in her financial circumstances since the order of March 20, 1975.

The husband, who also has a nondisabling health problem, is a union member who has been employed for a number of years with Anheuser Busch, Inc. While the record does not reveal his net income, his gross income for 1975 was $18,436 when he earned between $6.55 and $7.00 per hour, and $12,240 in 1976 when he earned $7.00 per hour before a strike by his union, and $7.69 per hour since then. The reduction in his 1976 income was totally attributable to the fact that his union was on strike for fourteen weeks during the spring of that year. His hourly rate of pay was further scheduled to rise to $8.29 a short time after the hearing. The trial court opined that with his poststrike raises the husband’s 1977 income would probably actually increase over 1976. The court also stated that because of the loss of income during the strike in 1976, the Husband had shown “some, change in circumstances.”

It is the husband’s contention, supported by the trial court and disputed by the wife, that his lack of income during the strike resulted in a substantial change in his circumstances which supports the order reducing child support payments.

The husband’s petition for modification of the child support order which adopted the agreement of the parties is authorized by Section 61.14(1), Florida Statutes (1977). A fundamental prerequisite to modification of child support payments is a showing of substantial change of circumstances, including financial circumstances, of one or both of the parties. Brown v. Brown, 315 So.2d 15 (Fla. 3d DCA 1975). This change in circumstances must be significant, material, involuntary and permanent in nature. In re Marriage of Johnson, 352 So.2d 140 (Fla. 1st DCA 1977). The party seeking modification has the burden of showing this change in circumstances. Meltzer v. Meltzer, 356 So.2d 1263 (Fla. 3d DCA 1978). And where, as here, the amount of child support is based upon an agreement by the parties, a heavier burden rests upon the party seeking a modification than would otherwise be required. Scott v. Scott, 285 So.2d 423 (Fla. 2d DCA 1973).

The husband in the case at bar has not carried this heavy burden. It may be that the trial court could have relieved him of some of the arrearages if it found them to be attributable to some extraordinary and compelling circumstances. The trial court made no such determination, however, and instead found the husband had the present ability to pay an additional amount per week to satisfy the arrearages. As we have said, that portion of the order actually results in a $10 per week increase over the amount of the 1975 order, but finding no clear abuse of discretion as to the finding of the total amount the husband is able to pay weekly, we do not disturb that determination by the trial court.

Addressing next the reduction in weekly child support from $75 to $60 per week, we find that the financial setback occasioned by the strike was of a temporary nature and in no way permanent. In addition the trial court specifically found no substantial change of circumstances resulting from the strike, but rather he stated he felt there had been “some” change in circumstances. “Some” change does not meet the more stringent requirement that there be a “substantial” change of circumstances before the amount of child support can be decreased. Because this is so, we find the trial court abused its discretion when it ordered the weekly child support payments lowered.

That portion of the order modifying child support payments by reducing them from $75 to $60 is vacated.

We affirm the determination of the amount of arrearages by the trial court. We adhere to the trial court’s intent and finding that the husband is capable of paying a total of $85 per week including an amount toward arrearages, and we reallocate that sum as follows: $75 per week as child support and $10 per week to the ar-rearages until satisfied.

Reversed and remanded for further proceedings consistent with this opinion.

BOARDMAN, Acting C. J. and SCHEB, J., concur.

      . See Teta v. Teta, 297 So.2d 642 (Fla. 1st DCA 1974), and cases cited therein. We note the general rule, however, that in Florida unpaid child support payments constitute a vested right not subject to modification, absent some extraordinary and compelling circumstances. Feder v. Feder, 291 So.2d 641 (Fla. 3d DCA 1974); Petrucci v. Petrucci, 252 So.2d 867 (Fla. 3d DCA 1971).


author: PER CURIAM.

text:
    David K. WONG, Appellant, v. The CAREER SERVICE COMMISSION and the Department of Highway Safety and Motor Vehicles, Appellees.
    No. LL-399.
    District Court of Appeal of Florida, First District.
    May 25, 1979.

      Jerry G. Traynham of Patterson & Traynham, Tallahassee, for appellant.
    David K. Wong, in pro per.
    Michael J. Alderman, Asst. Gen. Counsel, Dept, of Highway Safety and Motor Vehicles, Tallahassee, for appellees.
   PER CURIAM.

David Wong petitions for review of a final order of the Career Service Commission sustaining his dismissal from the position of professional engineer by the Department of Highway Safety and Motor Vehicles.

Wong contends that there was no substantial competent evidence upon which the Career Service Commission could sustain his dismissal. The Department urges that since no transcript of the proceedings below was brought to this court, we are precluded from reviewing the sufficiency of the evidence. Wong replies that the Administrative Procedures Act requires that the administrative order must set forth the findings of fact with particularity, must explain the conclusions of law in light of the findings of fact, and must respond to countervailing arguments and proposed findings of fact submitted to the agency by a party. McDonald v. Dept. of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977). Wong’s statement of the law applicable here is correct. Furthermore, this court specified in Forrester v. Career Service Commission, 361 So.2d 220 (Fla. 1st DCA 1978), that when a party does submit proposed findings the agency must make an explicit ruling on each proposed finding unless such finding is subordinate, cumulative, immaterial, or unnecessary.

The order at issue in this case suffers from two deficiencies: ■ the conclusion of law is not supported by the findings of fact and pertinent proposed findings submitted by Wong are ignored rather than explained or explicitly ruled on. As for the first point, the order acknowledges that Wong was hired as a professional engineer and that he was competent and capable as a structural engineer, but notes that the evaluations which were the formal basis for his dismissal were based on information which “was not intended to rate the appellant as an engineer since the appellant was the only Professional Engineer in the bureau.” As for the second reason given by the Department, Wong’s inadequate performance at a training seminar, the order states that Wong’s performance was “at least average” and that he was hired to be an engineer, not a trainer. Finally, in setting forth the third reason given for the dismissal, the order recites, “There was an abundance of testimony presented before the Commission that the Appellant’s performance at interpreting building code violations was inadequate.” The order does not contain facts which support that conclusory statement except to describe a test which the supervisor used to evaluate Wong’s ability to read and identify blueprints. Of that test, the order acknowledges that it “was not shown to be a valid indicator of performance as an engineer.” Furthermore, the order does not respond to the proposed findings that the directions were unclear; that there was no testimony concerning the scoring criteria and how a “passing grade” was established; and that Wong noted the defects by marking the blueprints, but was graded on his having listed them on a separate paper. There are other examples in the record of pertinent proposed findings which are ignored in the order.

In essence, though Wong was dismissed for his alleged inability to perform as an engineer, the order indicates that the evaluations used to support the dismissal were based on his ability to perform non-engineering tasks which were not shown to be assigned duties. Accordingly, the case will be remanded for such further examination, clarification and supplementation of its order as the commission may deem appropriate in the light of the deficiencies in its order pointed out in this opinion.

The order appealed from is vacated and the case is remanded.

McCORD, C. J., and BOOTH and LARRY G. SMITH, JJ., concur.


text:
    Robert SMALL, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1077.
    District Court of Appeal of Florida, Third District.
    May 29, 1979.
    Bennett H. Brummer, Public Defender and Jacquelyn S. Plasner, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before HENDRY and KEHOE, JJ., and SCHULZ, GEORGE E. (Ret.), Associate Judge.
   PER CURIAM.

Defendant, Small, was tried by a jury and a verdict of guilty was returned for the offense of the unauthorized use of a motor vehicle. The trial court adjudicated defendant guilty and immediately sentenced him to imprisonment for a period of one year in the county jail; the sentence constitutes the maximum penalty under the applicable statute. Defense counsel stated to the court that there were certain circumstances about which the court should be made fully aware in order for it to consider mitigation of sentence and the defense requested a sentencing hearing pursuant to Florida Rule of Criminal Procedure 3.720. The court denied the motion. Defendant filed the appeal contending that not only should a sentencing hearing have been afforded him, but that the trial court erred in failing to give the defendant credit for time spent in jail prior to sentencing, pursuant to § 921.161(1), Florida Statutes (1975). We agree with the appellant on these points.

In Mason v. State, 366 So.2d 171 (Fla. 3d DCA 1979), the court held that the requirement of a sentencing hearing is mandatory under Fla.R.Crim.P. 3.720 and may not be omitted at the discretion of the trial court. See also, Mask v. State, 289 So.2d 385 (Fla.1973); Trudeau v. State, 348 So.2d 66 (Fla. 4th DCA 1977) certiorari denied, 355 So.2d 517 (Fla.1978); Culbertson v. State, 306 So.2d 142 (Fla. 2d DCA 1975). The Mason court stated that it would defeat the whole purpose of the rule to deny the defendant the opportunity to present evidence relevant to the sentence prior to the imposition of that sentence.

We now address appellant/defendant’s contention that error was committed by the court in that it failed to give credit for time served. We have determined that when the cause is remanded pursuant to this court’s mandate regarding point one, the trial court shall additionally determine what credit shall be afforded defendant for time served prior to sentencing. Smith v. State, 310 So.2d 770 (Fla. 2d DCA 1975); Brooker v. State, 362 So.2d 697 (Fla. 2d DCA 1978); Section 921.161(1), Florida Statute (1975).

We, therefore, reverse and remand the cause with directions to the trial court to resentence defendant after first affording him an opportunity to offer matters in mitigation of sentence and to afford him credit for time served in the county jail prior to sentencing.

Reversed and remanded.

      . The court noted in its option that the holding in Cheatham v. State, 346 So.2d 1218 (Fla. 3d DCA 1977), does not dictate a contrary result. In Cheatham the court held that the trial court’s denial of defendant’s motion for a continuance prior to sentencing was not an abuse of discretion, and the court had fully complied with the requirements of Fla.R.Crim.P. 3.720.


author: HENDRY, Judge.

text:
    Barbara LONGMAN, Individually and as Mother, next friend and natural guardian of Carolyn and Susan Longman, Appellants, v. TRAVELERS INSURANCE COMPANY, Appellee.
    No. 78-1596.
    District Court of Appeal of Florida, Third District.
    May 29, 1979.
    Abramson, Mendigutia & Libman and Paula L. Schwartz, Miami, for appellants.

      High, Stack, Lazenby & Bender and Alan R. Dakan, Miami, for appellee.
    Before HENDRY, HUBBART and SCHWARTZ, JJ.
   HENDRY, Judge.

This is an appeal from a final summary judgment which was entered for the appel-lee-insurance company based upon a general release executed by appellant. We have determined that the order must be vacated and the cause remanded, as the trial court erred in its finding that an insured cannot recover personal injury protection benefits from its own insurer where a release has been given a third party tortfeasor.

The appellant, Longman, as mother, next friend and natural guardian of the two minors, executed a general release in favor of the driver of the other vehicle, the alleged tortfeasor, and his insurer, Allstate. Subsequently, appellant filed a lawsuit against the appellee herein, alleging that it had breached its contract of insurance with appellant inasmuch as it failed and refused to pay all of the medical bills under the provisions for personal injury protection of the insured.

On its motion for summary judgment, Travelers asserted that the said release from liability worked as a release for Trav: elers as well as for the other driver and Allstate. Summary judgment was granted on the ground that the release was a bar to appellant/plaintiff’s cause of action.

Florida law is clear that releasing a party charged or chargeable with liability or responsibility does not have the automatic effect of releasing one’s own insurance carrier from the contractual provisions of an insurance policy which provides P.I.P., medical payment coverage. See Hughes v. State Farm Mutual Automobile Insurance Company, 294 So.2d 398 (Fla. 1st DCA 1974), where the court held that a release executed by the plaintiff was effective to release the defendant as to the uninsured motorist claim only and that the release did not preclude plaintiff from asserting a claim for benefits under the Florida Automobile Reparations Reform Act. The rationale was that the coverage relating to the uninsured motorists and the coverage required by the Florida Automobile Reparations Reform Act were two separate and distinct categories of insurance; the former assumes the availability of a tort action against a third party and the latter is based on the no-fault concept. Under the uninsured motorist category, the insurance company is responsible only to the extent the injured party has a claim against •& third party, whereas, under the second category the insurance company is obligated to make payment based upon the facts of injury without regard to fault. As stated in an excerpt from Hughes, supra, at 400, referring to the proposition espoused in the same court’s earlier holding in Phoenix Insurance Company v. Kincaid, 199 So.2d 770 (Fla. 1st DCA 1967), cert. denied, 211 So.2d 210:

“The bodily injury and property damage coverages are activated by the negligence of those insured under the provisions of the policy while operating an insured automobile . The medical payment coverage is a distinct type of separate coverage in that the question of negligence is of no import as to the liability of the insurance company to the insured, for in this instance the benefits are payable as a matter of right in the case of an accident involving an insured automobile.”

Appellee’s reliance upon the holding in Weatherford v. Ryder Truck Rental and Leasing, Inc., 344 So.2d 937 (Fla. 3d DCA 1977), is misplaced, since under Florida law the release of a party charged or chargeable with liability or responsibility does not have the effect of releasing an injured insured’s carrier from paying medical expenses under the P.I.P. coverage provision. See, in addition to Hughes, supra, Gateway Insurance Company v. Lymus, 295 So.2d 326 (Fla. 3d DCA 1974).

In Weatherford, the release discharging the defendant-driver and its insurer “and all other persons, firms or corporations liable or who might be claimed to be liable . ” effectively released the owner and the lessee of a tractor trailer which had been at the site of the subject auto accident; it is manifestly clear that those released along with the first defendant were possible tortfeasors, and the release of the auto driver/tortfeasor properly released the others. Whereas, in the cause sub judice the appellee/defendant could not be considered a possible tortfeasor, and it has a legal, contractual obligation to its insured to pay medical expenses under the separate and distinct P.I.P. provisions of its policy with appellant. See, § 627.736, Florida Statutes (1975).

The order appealed is reversed and remanded with directions to vacate the summary judgment and to enter an order requiring appellee to make payment under the P.I.P. provisions of the policy with the insured.

Reversed and remanded.


text:
    Sonja SCAVELLA, Appellant, v. Gilbert FERNANDEZ and Metropolitan Dade County, jointly and severally, Appellees.
    No. 78-1639.
    District Court of Appeal of Florida, Third District.
    May 29, 1979.
    William N. Hutchinson, Jr., Miami, for appellant.
    Stuart L. Simon, County Atty., and Mark A. Dresnick, Asst. County Atty., for appel-lees.
    Before HAVERFIELD, C. J., and PEARSON and SCHWARTZ, JJ.
   SCHWARTZ, Judge.

The plaintiff-appellant’s complaint for personal injury damages against Dade County was dismissed with prejudice because it did not allege compliance with the 60 day notice requirement of Section 2-2 of the Metropolitan Dade County Code. Since we hold that Section 2-2 is invalid as in conflict with the three year notice period provided by Section 768.28(6), Florida Statutes (1977), the judgment of dismissal under review is reversed.

The accident in question, in which a Dade County motor vehicle struck a car driven by the plaintiff Scavella, occurred on January 17, 1977. In this action, filed as against the county pursuant to Section 768.28, Florida Statutes (1977), the comprehensive statute in which sovereign immunity in tort actions has been waived by the legislature, the plaintiff alleged that she had given notice of the claim to the county on May 8, 1978. The notice was thus well within the period specifically provided by Section 768.28(6), which states:

“(6) An action shall not be instituted on a claim against the state or one of its agencies or subdivisions unless the claimant presents the claim in writing to the appropriate agency, and also, except as to any claim against a municipality, presents such claim in writing to the department of insurance, within 3 years after such claim accrues and the department of insurance or the appropriate agency denies the claim in writing.” [emphasis supplied]

The action was nonetheless dismissed because the notice was obviously not given within the period provided in Section 2-2 of the County Code as follows:

“Sec. 2-2. Suits for damages against county, notice.
No suits shall be maintained against the county for damages to persons or property or for wrongful death arising out of any tort unless written notice of claim shall first have been given to the clerk of the commission, 240 Dade County Courthouse, within sixty (60) days after the date of receiving the injury or damage alleged, specifying the name and address of the person injured or of the owner of the property damaged, the date, time, place and circumstances of the injury or damage, the nature of the injury or damage and the amount claimed as damages.” [e. s.]

Under the Home Rule Amendment, Dade County may not enact «.n ordinance which is in “conflict with this Constitution or any such applicable general law . . . ” Art. VIII, § 6(2), Fla.Const. of 1968 (reenacting Art. VIII, § 11(5), Fla.Const. of 1885). The sole issue presented on this appeal by the plaintiff from the order of dismissal is thus whether Section 2-2 is in “conflict” with Section 768.28(6). It is.

As was said in Jordan Chapel Freewill Baptist Church v. Dade County, 334 So.2d 661, 664 (Fla. 3d DCA 1976):

“The word ‘conflict’ in Article VIII, Section 11(5) has been construed to mean ‘contradictory in the sense of legislative provisions which cannot co-exist’. E.B. Elliott Advertising Co. v. Metropolitan Dade County, 425 F.2d 1141, 1150 (5th Cir. 1970). State ex rel. Dade County v. Brautigam, 224 So.2d 688 (Fla.1969).”

It seems obvious that, under this definition, the two provisions in question here cannot co-exist. One need only put them side by side in order to make this determination. The state statute gives 3 years to file a claim; the ordinance 60 days to file the same claim for the same thing against the same entity. The county thus purports to take away 2 years and 10 months of time which the. state has granted. The conflict between the statute and the ordinance is no less than self-evident. Hence, the ordinance must fall.

In arguing otherwise, the county relies heavily upon the statement in the Jordan Chapel Freewell Baptist Church case, supra, that “legislative provisions are inconsistent if, in order to comply with one provision, a violation of the other is required.” Based on this statement it contends that one may comply with both the ordinance and the statute, merely by giving notice within 60 days. This argument is entirely unsound, primarily because the type of legislation involved in Jordan Chapel, and in E.B. Elliott Advertising Co. v. Metropolitan Dade County, 425 F.2d 1141 (5th Cir. 1970), cert, denied, 400 U.S. 878, 91 S.Ct. 12, 27 L.Ed.2d 35 (1970), upon which Jordan Chapel was based, differs so greatly from that involved in this case. Both of the cited cases held that the state’s enactment of prohibitory-regulatory legislation dealing in the Elliott case with the location of billboards, and in Jordan Chapel with the playing of bingo, were not in “conflict” with more stringent Dade County requirements. In the Elliott case, the court pointed out, at 425 F.2d 1150:

“Section 479.15, supra, clearly indicates that Chapter 479 was designed to establish minimum regulations for the outdoor advertising business and does not prevent, but rather leaves the way open and encourages stricter regulations by other governmental agencies in the lawful exercise of their power.”

Similarly, the court said in the Jordan Chapel case, at 334 So.2d 664:

“The regulations provided by the state constitute minimum regulations. This Court has not found, and the plaintiff has not cited any language in the statute which can be deemed a prohibition on additional stricter regulations by local government agencies, such as are contained in the Dade County ordinance.”

The issue of conflict as to the type of legislation involved in Jordan Chapel and Elliott was well stated in Village of Struthers v. Sokol, 108 Ohio 263, 140 N.E. 519, 521 (1923):

“No real conflict can exist unless the ordinance declares something to be right which the state law declares to be wrong, or vice versa. There can be no conflict unless one authority grants a permit or license to do an act which is forbidden or prohibited by the other. No act is either expressly or inferentially permitted or licensed by either of the ordinances, or the statutes. On the contrary, all acts referred to are forbidden and penalties imposed for violations.” [e.s.]

This doctrine has no application to the present situation, in which the state has not “forbidden” anything or enacted a law which, in the sense used in Jordan Chapel, may be “violated” by anybody. It has, in effect, granted a plaintiff permission, or the right to take three years to file a claim; the county may not therefore validly prohibit the exercise of any part of that right or restrict any portion of that permission.

Far more pertinent to the present issue is Loewenberg v. Fidelity Union Casualty Co., 147 So. 81, 90 (La.App.1933) in which the court invalidated a local ordinance which prohibited a person under 16 from driving as in conflict with a state statute fixing the age at 14. The court held

“When the law of the state provides that it is unlawful for a person under fourteen years of age to drive an automobile on the highways of the state, it is equivalent to stating that it is, lawful for a person over fourteen years of age to drive an automobile on the highways of the state, and therefore an ordinance of a municipality that attempts to make it unlawful for a person over fourteen years to drive on the highways of the statute [sic] is in conflict with the general law, and of no effect. Schneiderman v. Sesanstein, 121 Ohio St. 80, 167 N.E. 158, 64 A.L.R. 981.”

Accord: Schneiderman v. Sesanstein, 121 Ohio St. 80, 167 N.E. 158 (1929) (invalidating local 15 m. p. h. speed limit as in conflict with statute providing that over 15 m. p. h. shall be only prima facie evidence of excessive speed). Applying these principles, in Purdy v. Woodard, 369 So.2d 105 (Fla. 3d DCA 1979), this court recently affirmed the invalidation of Sec. 21-15 of the Dade County Code, which provided a one-year term for a permit to carry a concealed firearm. Over precisely the same arguments presented in this case, it was held that the ordinance was in conflict with Section 790.06, Florida Statutes (1977), which provides for a two-year term. See also Iley v. Harris, 345 So.2d 336 (Fla.1977); Atty. Gen. Op. 76-9 (1976). The same reasoning applies here. What the legislature hath granted, the commission may not take away — even in part.

For these reasons, the final order below is reversed and the cause remanded for further consistent proceedings.

Reversed and remanded.

      . The plaintiff also sued the driver, Gilbert Fernandez. The action against him is of course not affected by the notice issue.

      . If the statute in the Elliott case had stated that signs “will be permitted” a given distance from the street, or, in Jordan Chapel, that games of a certain type are “hereby made lawful” in Florida, no one would argue that the county could nonetheless restrict the distances or forbid the games thus directly authorized by the state. The statement in Jordan Chapel that the test of conflict is whether one must violate one of the state provisions in order to obey the ordinance is to be applied only to regulatory legislation of the kind with which the courts were directly dealing in that case, in Elliott, and in Metropolitan Dade County v. Rockmatt Corp., 231 So.2d 41 (Fla. 3d DCA 1970), which is also cited by the county.

      . It may be significant that the supreme court’s recent opinion in Cheney v. Dade County, 371 So.2d 1010 (Fla.1979) discusses only the notice provisions of Section 768.28(6), and does not even mention Section 2-2.


text:
    James Theodore ROBERTS, Appellant, v. The STATE of Florida, Appellee.
    Nos. 77-1692, 77-1701.
    District Court of Appeal of Florida, Third District.
    May 29, 1979.
    Robrish & Major and Joel D. Robrish, Miami, for appellant.
    Jim Smith, Atty. Gen., and Susan C. Minor, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and PEARSON and SCHWARTZ, JJ.
   PER CURIAM.

The appellant, James Theodore Roberts, was found guilty of grand larceny and carrying a concealed weapon at the conclusion of his first trial. Later, he was found guilty of burglary in a separate trial. The trial court then sentenced Roberts, based upon prior convictions, to an enhanced sentence on the burglary and grand larceny charges pursuant to the Florida Habitual Felony Offender Act, Section 775.084, Florida Statutes (1975). The judgment and sentence in each case have been appealed and the appeals consolidated for consideration in this court.

The main thrust of these appeals is that the trial judge erred in sentencing Roberts as an “habitual felony offender” under Section 775.084, Florida Statutes (1975). It is argued that the trial judge, because he initiated the proceedings, was prima facie prejudiced against the appellant. This argument simply does not follow because a trial judge has an obligation to see that the proper sentence is imposed. See, e. g., § 775.084(4)(a), Fla.Stat. (1975).

It is also urged that the procedure employed in proving the identity of Roberts was improper. While we do not approve of this procedure, we find that the appellant has failed to show any illegality or prejudice from the use of such a procedure, which was employed merely to prove his identity as the person previously convicted. See Anderson v. State, 297 So.2d 871, 874 (Fla. 2d DCA 1974).

We have examined the appellant’s points directed to the admission of certain evidence and the failure to grant a judgment of acquittal at the close of all the evidence on the charge of grand larceny, and we find that neither point presents error on this record. The appellant’s point directed to the failure of the court to discharge him under Florida Rule of Criminal Procedure 3.191 is not well taken because both the State and the defendant obtained continuances, and inasmuch as the date of the State’s last continuance was ninety days prior to the trial in this case, no error is shown in the denial of the motion.

The appellant’s contention that he was entitled to a directed verdict on the grand larceny charge is not sustained by the record in that the explanation given of the circumstantial evidence is not a reasonable explanation. Note the principle of law in Brannen v. State, 94 Fla. 656, 114 So. 429, 430-431 (1927).

Two other points presented have been examined and found not to present error.

Affirmed.


text:
    Alejandro Quiles BURGOS and Paulita Ortez Burgos, his wife, Appellants, v. INDEPENDENT FIRE INSURANCE COMPANY, a Florida Corporation, Delta Insurance Corporation, a Florida Corporation, and Metropolitan Mortgage Company, a Florida Corporation, jointly and severally, Appellees.
    No. 78-1746.
    District Court of Appeal of Florida, Third District.
    May 29, 1979.

      Spiegelman & Spiegelman and Robert I. Spiegelman, Miami, for appellants.
    Stanley H. Spieler, Miami, for appellees.
    Before HAVERPIELD, C. J., and PEARSON and SCHWARTZ, JJ.
   PER CURIAM.

Plaintiff property owners appeal an adverse summary final judgment for defendant insurance agents in an action to recover damages for alleged negligent failure to obtain insurance coverage.

Plaintiffs, Alejandro Burgos and his wife, are the owners of certain improved real property encumbered by a first mortgage. Metropolitan Mortgage Company was the servicing agent for the mortgagee. Delta Insurance Company obtained for Burgos a fire insurance policy issued by Independent Fire Insurance Company covering the subject property from June 29, 1974 to June 29, 1975. In May, 1975 Independent, through its general agent, Southern Underwriters, issued a renewal certificate extending the policy from June 29, 1975 to June 29, 1976. Burgos tendered the $102 renewal premium to Delta, which in turn remitted it to Independent. Before the renewal became effective, Independent on June 9, 1975 cancelled the policy and its agent, Southern, mailed the cancellation notice to Burgos and a copy of the notice to Delta as originating agent. In October, 1975 the Burgos property was damaged by fire and a claim was filed with Independent which denied coverage on the basis that the policy had been cancelled. Burgos and his wife filed the instant suit against Independent, Delta and Metropolitan (with whom Delta is now merged) alleging that the defendants, Delta and Metropolitan, are liable for failing to inform them of the cancellation and further for failing to procure a replacement policy. Delta and Metropolitan answered denying the allegation that Burgos and his wife were not informed and alleged that replacement insurance was unobtainable. Subsequently, Delta and Metropolitan moved for summary judgment which after hearing was granted in their favor.

Burgos and his wife appeal and contend that there was a genuine issue of material fact as to whether Delta and Metropolitan, as agents or brokers, had a duty to procure replacement insurance and then failed to do so. They basically argue that since they were not notified of the cancellation and Delta retained the premium, they were led to believe that fire insurance had been procured on the subject property; therefore, Delta and Metropolitan are liable for failing to procure replacement coverage.

Delta in support of the motion for summary judgment submitted the affidavit of its administrative officer, James Boyle, a licensed independent insurance agent. Boyle alleged that upon receipt of the copy of the cancellation notice mailed to Burgos and his wife by Independent through Southern, he was in telephone communication with Burgos. They discussed the reasons for the cancellation and under the circumstances the difficulty in procuring replacement insurance. Nevertheless, Burgos requested that Delta continue to try to obtain such insurance and hold the $102 premium refund to be applied towards replacement coverage if it could be obtained. Boyle further alleged that he was unsuccessful in obtaining replacement insurance.

In opposition to the motion for summary judgment, Burgos and his wife filed an affidavit alleging that they never received notice of the cancellation and denied having any conversation with Boyle concerning the cancellation and attempt to procure replacement coverage.

The well established principle of law with regard to the issue of notice of cancellation is that proof of mailing a notice of cancellation to a named insured at the address stated in the policy is sufficient compliance with the policy provision requiring notice to the insured. Allstate Insurance Company v. Dougherty, 197 So.2d 563 (Fla. 3d DCA 1967). The record is replete with evidence that by certified letter Southern Underwriters (as agents of Independent) mailed the notice of cancellation to Burgos at his current address. Therefore, as a matter of law, Burgos is precluded from denying notice of cancellation.

As concerns the issue of the duty to obtain replacement insurance, the record contains no evidence reflecting that the relationship between Delta and Burgos was of such a nature that Delta was the general agent of Burgos or had a duty of keeping the subject property insured. To the contrary, the evidence reflects that once Delta initially procured the fire insurance, Delta’s duty to Burgos terminated. See Cat ’N Fiddle, Inc. v. Century Insurance Company, 213 So.2d 701 (Fla.1968). Nor was Metropolitan, as servicing agent for the mortgagee, under any duty to Burgos, the owner, to obtain replacement insurance.

Affirmed.

      . not a party to this appeal

      . A fire loss in February, 1975 sustained by Burgos on adjacent property also insured by Independent apparently prompted the cancellation.

      . outside of the bare allegation in the complaint


author: PEARSON, Judge. SCHWARTZ, Judge

text:
    DORSET HOUSE ASSOCIATION, INC., a non-profit Florida condominium corporation, Appellant, v. DORSET, INC., etc., et al., Appellees.
    No. 78-1810.
    District Court of Appeal of Florida, Third District.
    May 29, 1979.

      Charles L. Neustein, Miami Beach, for appellant.
    Malspeis, Lococo & Brown and Morton P. Brown, North Miami, for appellees.
    Before HAVERFIELD, C. J., and PEARSON and SCHWARTZ, JJ.
   PEARSON, Judge.

The plaintiff-appellant sought to foreclose a lien pursuant to Section 711.15, Florida Statutes (1975), for the alleged failure of a condominium owner to pay his proportionate share of the maintenance due. Defendant-appellee Dorset, Inc., the unit owner and developer of the condominium, answered and raised as an affirmative defense the allegation that it (the developer) was not obligated for maintenance payments because of an exemption from payment during the “Developers’ Maintenance Period.” It was alleged that this exemption was a provision of the recorded Declaration of Condominium. After the filing of affidavits, the trial judge granted the defendant’s motion for summary final judgment and entered judgment thereon. Thereafter, the plaintiff moved for a rehearing, and the trial judge entered an amended final judgment providing:

“ORDERED AND ADJUDGED that the granting of the Final Summary Judgment in favor of the Defendant, DORSET, INC., and against the Plaintiff, DORSET HOUSE ASSOCIATION, INC., shall not act as estoppel by fact, estoppel by judgment or res judicata in any subsequent action that the Plaintiff herein may cho[o]se to bring against the Defendant, DORSET, INC., which future action may be predicated upon the Plaintiff's claim that the Defendant failed to maintain the subject condominium during the ‘developer’s maintenance period’.”

The trial court wished to make it clear that it was deciding only that the plaintiff did not have a statutory lien against the defendant. We hold that it does not appear without genuine issue of material fact that defendant is entitled to a judgment. An issue of fact arises from the pleadings in the plaintiff’s reply to the affirmative defenses concerning the defendant’s entitlement to the exemption provided in the Declaration of Condominium. The defendant alleged that it had complied with the requirement of the Declaration of Condominium by maintaining the project during the “Developers’ Maintenance Period.” By its reply, the plaintiff alleged that the defendant had not complied with that provision of the declaration. The issue was not shown to be less than genuine by the affidavits on file. Therefore, the summary final judgment must be reversed. See the principles of law in Harvey Building, Inc. v. Haley, 175 So.2d 780 (Fla.1965); and Turner Produce Company v. Lake Shore Growers Cooperative Association, 217 So.2d 856, 860-861 (Fla. 4th DCA 1969).

In addition, it is our view that the amended summary judgment shows error because even where a summary judgment should be granted but it appears that the plaintiff may have a cause of action not pleaded, the proper procedure is to enter summary judgment but with leave to amend in that suit. See Hart Properties, Inc. v. Slack, 159 So.2d 236, 240 (Fla.1963); Sorrells v. Mullins, 303 So.2d 385 (Fla. 3d DCA 1974); and Bernard Marko & Associates, Inc. v. Steele, 230 So.2d 42 (Fla. 3d DCA 1970).

Accordingly, the judgment and amended judgment are reversed and the cause remanded for further proceedings.

Reversed.

SCHWARTZ, Judge

(concurring in part).

I agree with the court’s disposition of the issues discussed in Judge Pearson’s opinion. However, I would go further and hold that the affirmative defense that the developer is exempt from the payment of maintenance fees by the terms of the Declaration of Condominium, is insufficient as a matter of law. At the time the condominium documents in issue were executed in 1973, the applicable law, Section 711.15 Florida Statutes (1965), provided:

“(1) A unit owner, regardless of how title is acquired, . . . shall be liable for all assessments coming due while he is the owner of a unit.”

See Margate Village Condominium Assoc. Inc. v. Wilfred, Inc., 350 So.2d 16 (Fla. 4th DCA 1977); Century 21 Commodore Plaza, Inc. v. Commodore Plaza at Century 21 Condominium Assoc., Inc., 340 So.2d 945 (Fla. 3d DCA 1977), cert. denied, 354 So.2d 979 (Fla.1978). In my view, the contractual exemption is invalid and unenforceable as in conflict with this legislative enactment. Local No. 234 v. Henley & Beckwith, Inc., 66 So.2d 818 (Fla.1953). Therefore, I would direct that on remand the affirmative defense be stricken.

      . Only in 1976 did the legislature authorize a developer-maintenance period-exemption from assessments, such as that asserted below. Sec. 718.116, Fla.Stat. (1977).


author: HAVERFIELD, Chief Judge.

text:
    Sandra Schiller PAGE, Appellant, v. Michel Douglas PAGE, Appellee.
    No. 78-1938.
    District Court of Appeal of Florida, Third District.
    May 29, 1979.
    Friedman, Britton, Cohen, Kaufman, Zin-kow, Benson & Schantz and John L. Brit-ton, Miami, for appellant.
    Abe Koss, Graham C. Miller, Miami, for appellee.
    Before HAVERFIELD, C. J., and PEARSON and SCHWARTZ, JJ.
   HAVERFIELD, Chief Judge.

Sandra Schiller Page appeals a final dissolution of marriage judgment denying her request for alimony and directing that her husband, the respondent, Michel Douglas Page, pay $40 per week as and for support of their minor son.

The basic issue to be resolved is whether the trial judge erred in his determination of the amount of child support by failing to consider a trust established for Michel Page.

The parties were married three years during which time Michel Page was and is employed by a business owned by his family and earns $100 per week. Although Michel would have difficulty in qualifying as a spendthrift based on his salary; nevertheless, he is the beneficiary of a spendthrift trust which was established by his father and produces an annual income of approximately $17,000. With respect to the distribution of income, the trust contains the following:

“Paragraph 1: The Trustee shall hold the entire Trust Estate which it has received under this Instrument together with all additions, accretions, gains, profits, income or other enhancements thereof for the benefit of MICHEL D. PAGE or his issue, in accordance with the following provisions:
“A. Prior to the Termination Event (as defined in Paragraph 2 below) the Trustee may in the exercise of its sole discretion, either:
“(1) Accumulate all or any portion of the net income of the Trust, or
“(2) Distribute to or for the benefit of the Beneficiary, all or any portion of the net income of the Trust as such net income shall be from time to time determined in accordance with the provisions of this Instrument. Subject to the provisions of Article III (relating to Spendthrift Provisions), distributions of income may be made to or for the benefit of the Beneficiary for any lawful purpose, including, but not limited to: the purchase of luxury items for the Beneficiary; the payment of rent or mortgage payments for the Beneficiary’s living quarters; the payment of any insurance premiums for the Beneficiary, including but not limited to those for the Beneficiary’s health, major medical, and life insurance; the payment of any type of educational expenses for the Beneficiary; the payment of the Beneficiary’s medical expenses; and for any other purpose which is not contrary to the laws of the State of Florida.”

The record reflects that the trial judge in awarding the $40 weekly child support failed to consider the trust established for Michel as an available asset and the fact that Michel under the broad trust provisions would be eligible for distributions of the income for the purpose of contributing to the support of his minor child.

The prime criteria by which to measure child support is the child’s needs and the parents’ ability to pay. Simonet v. Simonet, 279 So.2d 35 (Fla. 4th DCA 1973). In determining a husband’s (or wife’s) ability to pay, the court properly may and should consider not only the husband’s income alone, but also any and all assets available to him regardless of the source. Dixon v. Moody, 352 So.2d 950 (Fla. 1st DCA 1977) and See Sisson v. Sisson, 336 So.2d 1129 (Fla.1976); 10A Fla.Jur. Dissolution of Marriage § 80 (1973).

We hold that the trust is an asset of Michel Page and, therefore, reverse the child support award of $40 per week and remand the cause to the trial court to reconsider the amount of child support in light of this asset and the income available therefrom.

We next considered the denial of alimony and conclude that although the final judgment recites no alimony was awarded because of the financial inability on the part of Michel, there are additional reasons recited by the trial judge at the conclusion of the final hearing to support the denial of Sandra’s alimony request. See Shaw v. Shaw, 334 So.2d 13 (Fla.1976).

Last, we find no abuse of discretion in denying Sandra an award of attorney’s fees.

Affirmed in part, reversed in part.


text:
    FIDELITY NATIONAL BANK OF SOUTH MIAMI, an association organized and existing under the laws of the United States, Appellant, v. DADE COUNTY, a political subdivision of the State of Florida, Appellee.
    No. 78-1966.
    District Court of Appeal of Florida, Third District.
    May 29, 1979.
    Paul & Thomson and Sanford L. Bohrer, Miami, for appellant.
    Stuart L. Simon, County Atty., and R. A. Cuevas, Jr., Asst. County Atty., for appel-lee.'
    Bruce Culpepper, Tallahassee, for Florida Association of Registered Bank Holding Companies, Inc., as amicus curiae.
    Before HENDRY, HUBBART and SCHWARTZ, JJ.
   SCHWARTZ, Judge.

Compliance with the terms of a letter of credit is not like pitching horseshoes. No points are awarded for being close. Because the judgment below contravenes this established principle of commercial law, it is reversed.

The controlling facts are entirely undisputed. In September 1973, at the instance of one of its customers, C.S.F. Condominiums Ltd., the appellant, Fidelity National Bank of South Miami, which was the defendant below, issued an “irrevocable commercial letter of credit” to Dade County, the present appellee. The bank’s undertaking, in effect, secured C.S.F.’s performance of a subdivision agreement with tjre county. The letter of credit, which, as subsequently modified, was for $142,300 and bore an expiration date of September 22, 1977, provided that the bank would pay the county the face amount at sight of the county’s draft, drawn for that sum “Accompanied by:

—Certificate of Dade County Public Works Director, stating that C.S.F. Condominiums, Ltd., has failed to complete the improvements as specified in agreement dated September 10, 1973, between Dade County Board and C.S.F. Condominiums Ltd.”

On September 22, 1977, the letter’s expiration date, the county, in attempting to comply with its terms, tendered the bank two separate papers along with its draft. One was a memorandum from William M. Powell, the Public Works Director — the person referred to in the letter of credit — to the county’s Finance Director. The document directed him to

“Please take the necessary steps to collect the full amount of the $142,300 bond in accordance with the terms of the agreement now in effect.”

The other document was a letter to the bank which tracked the statement required by the letter of credit, but which was executed, not by the Public Works Director, but by the Chief Accountant, a subordinate of the Finance Director. It stated:

“Fidelity National Bank of South Miami
5880 Bird Road
Miami, FI 33155
Gentlemen:
Subject: Irrevocable Letter
of Credit # 705
Dated 9/30/73, Reduced
9/22/75
This is to certify that C.S.F. Condominiums, Ltd. has failed to complete the improvements as specified by agreement dated September 10, 1973, on irrevocable letter of credit between Dade County and C.S.F. Condominiums, Ltd.
Sincerely,
/s /
Richard Yoder
Chief Accountant”

The bank, contending that the terms of the letter of credit had not been complied with, refused to pay the draft. The county sued the bank in the Dade County Circuit Court and, after a non-jury trial, won a judgment for the face amount of the letter of credit, $142,300 plus interest. The bank appeals and we reverse.

Under Sec. 675.5-114(1), Fla.Stat. (1977) the issuer of a letter of credit must honor a draft . . which complies with the terms of [a] relevant credit . . ” The standard to be applied in interpreting this provision is clearly that the beneficiary must comply very strictly with and without deviation from the provisions of the letter. Indeed, the eases and authorities seem to have ransacked Roget in order to find expressions which serve to emphasize the point. In Courtaulds North America, Inc. v. North Carolina National Bank, 528 F.2d 802, 805-806 (4th Cir. 1975), for example, the Court stated:

“. . .as the predominant authorities unequivocally declare, the beneficiary must meet the terms of the credit — and precisely — if it is to exact performance of the issuer. Failing such compliance there can be no recovery from the drawee.”
******
“Nothing less is shown to be tolerated in the trade. No substitution and no equivalent, through interpretation or logic, will serve. Harfield, Bank Credits and Acceptance (5th Ed. 1974), at p. 73, commends and quotes aptly from an English case: ‘There is no room for documents which are almost the same, or which will do just as well.’ Equitable Trust Co. of N. Y. v. Dawson Partners, Ltd., 27 Lloyd’s List Law Rpts. 49, 52 (1926).” [emphasis supplied]

Accord, e. g., Insurance Company of North America v. Heritage Bank, N.A., 595 F.2d 171 (3d Cir. 1979); and cases cited; Pringle-Associated Mortgage Corp. v. Southern National Bank of Hattiesburg, Miss., 571 F.2d 871, 874 (5th Cir. 1978); Chase Manhattan Bank v. Equibank, 550 F.2d 882 (3d Cir. 1977); Barclays Bank, D.C.O. v. Mercantile National Bank, 481 F.2d 1224 (5th Cir. 1973), cert. dism. 414 U.S. 1139, 94 S.Ct. 888, 39 L.Ed.2d 96 (1974); Venizelos, S.A. v. Chase Manhattan Bank, 425 F.2d 461 (2d Cir. 1970). The application of these principles to the transaction involved in this case requires reversal of the trial judge’s conclusion that the county had complied with the terms of the credit and was thus entitled to recovery. The document required for payment was a “[1] certificate [2] of Dade County Public Works Director, stating that C.S.F. Condominiums, Ltd. has failed to complete the improvements specified . . ” Neither of the two documents produced by the county satisfied this requirement. Even assuming that the Public Works Director’s memorandum was a “certificate,” it did not “certify” the existence of the facts required. The certificate which did so was not “of [the] Dade County Public Works Director.” The county clearly did not adhere to the precise terms of the letter and was thus precluded from recovery.

The county seems to argue that the director’s memorandum, when taken together with the letter, constituted the certificate required. The issuer of a letter of credit, however, is not obliged, and is not even permitted, to engage in any such editorial or interpretive process. In the Cour-taulds case, supra, the letter of credit required the presentation of an “invoice stating 100% acrylic yarn.” The beneficiary presented an invoice stating “imported acrylic yarn” with attached packing lists which showed that the products were “100% acrylic.” The trial court held that the documents, as a whole, constituted sufficient compliance. The court of appeals reversed on the holding that strict compliance had not been demonstrated. Similarly, in Crocker First National Bank of San Francisco v. De Sousa, 27 F.2d 462 (9th Cir. 1928), reversing 23 F.2d 118 (N.D.Cal.1927), cert. denied, 278 U.S. 650, 49 S.Ct. 94, 73 L.Ed. 561 (1928), the court held that the terms of a letter of credit which called for a single document showing the shipment of “150 tons white Java refined granulated sugar” were not satisfied by the presentation of several documents which, read together, made it appear that such a shipment had occurred. See also Insurance Co. of America v. Heritage Bank, N.A., supra.

Nor does it matter whether a “reasonable person,” viewing both documents, would conclude that the events had taken place which the bank’s customer and the county agreed would call for payment; that is, that C.S.F. Condominiums had defaulted on its agreement to make subdivision improvements. The obligation of the issuer of a letter of credit is entirely independent and unrelated to the underlying transaction between the beneficiary of the letter and its purchaser. As was said in the Courtaulds case, supra, at 528 F.2d 805:

“In utilizing the rules of construction embodied in the letter of credit — the Uniform Customs and State statute — one must constantly recall that the drawee bank is not to be embroiled in disputes between the buyer and the seller, the beneficiary of the credit. The drawee is involved only with documents, not with merchandise. Its involvement is altogether separate and apart from the transaction between the buyer and seller; its duties and liability are governed exclusively by the terms of the letter, not the terms of the parties’ contract with each other.”

See generally, Barclays Bank, D.C.O. v. Mercantile National Bank, supra; Chase Manhattan Bank v. Equibank, supra.

A letter of credit amounts to an offer by the issuer to purchase certain documents. If those documents are not tendered, the offer is not accepted, and the issuer is not bound. The efficacy of the letter of credit as a convenient and useful instrument of commerce would be severely damaged were the courts to hold the issuer to any duty beyond the ministerial ones of laying the instruments next to one another, and determining whether they precisely coincide. See Kingdom of Sweden v. New York Trust Co., 197 MisC. 431, 96 N.Y.S.2d 779 (Sup.Ct.1949), and cases and authorities cited; Harfield, The Sensible Use of Acceptances and Letters of Credit, 56 Journal of Commercial Lending 25. As appears in Para. 7.7016, Comptroller of the Currency Rulings:

“A National bank may issue its own letters of credit to or on behalf of, its customers in the normal course of its business provided that the bank’s obligations may legally be described as a letter of credit and not as a mere guaranty. In order to constitute a true letter of credit transaction, the following elements must all be present: (1) the bank must receive a fee or other valid business consideration for the issuance of its undertaking; (2) the bank’s undertaking must contain a specified expiration date or be for a definite term; (3) the bank’s undertaking must not be unlimited but be up to a stated amount; (4) the bank’s obligation to pay must arise only upon the presentation of specific documents and the bank must not be called upon to determine disputed questions of fact or law; (5) the bank’s customer must have an unqualified obligation to reimburse the bank on the same condition as the bank has paid.”

[e.s.]

Dade County did not strictly comply with the terms of the credit and may not recover under it as a matter of law. The judgment below is reversed and the cause is remanded with directions to enter judgment for the appellant-bank.

Reversed and remanded.

      . In its entirety, the memorandum, dated September 20, 1977, stated:
      “On September 13, 1973, we transmitted to you Irrevocable Letter of Credit No. # 705 dated September 10, 1973, in the amount of $280,000.00 on Fidelity National Bank of South Miami, submitted to us as cash bond for roads, sidewalks, drainage, fill, curb and gutters, fire hydrants and one street sign. On August 13, 1974, the bond was reduced to $142,300.00 for fill, sidewalks, street sign and fire hydrants. The $142,300.00 bond was extended twice and its current expiration date is September 22, 1977.
      The principal and bank was required to submit to this office by 10:00 A.M. September 20, 1977, either a new letter of credit or extend the expiration date to September 22, 1978. This has not been complied with. The improvements are not complete and the bank, which has foreclosed on the subject property, will not extend the bond.
      Please take the necessary steps to collect the full amount of the $142,300.00 bond in accordance with the terms of the agreement now in effect.”

      . A “guaranty” of performance of the underlying transaction would turn the issuer’s obligation into one of suretyship. Such an undertaking is vastly different from that involved under a letter of credit and is indeed one in which a national bank like the present appellant is forbidden to engage. Barclays Bank, D.C.O. v. Mercantile National Bank, supra; cf. Ferguson v. Five Points National Bank of Miami, 187 So.2d 45 (Fla. 3d DCA 1966).


text:
    Ronald Steven POLESKI, Appellant, v. The STATE of Florida, Appellee.
    No. 78-2055.
    District Court of Appeal of Florida, Third District.
    May 29, 1979.

      Groland & Brown and Jerold H. Dworkin, Miami, for appellant.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before PEARSON, HUBBART and SCHWARTZ, JJ.
   SCHWARTZ, Judge.

The defendant below appeals from an order unsealing his felony arrest record and court file, which had been previously ordered sealed pursuant to Section 901.33, Fla.Stat. (1977). See Johnson v. State, 336 So.2d 93 (Fla.1976); Fla.R.Crim.P. 3.692. We affirm.

The record shows that on August 14, 1977, Poleski, who had not then been convicted of any offense, was stopped by a Hialeah police officer when he was observed driving his car in an erratic fashion. After the officer placed him under arrest for “driving under the influence,” in violation of § 316.028, Fla.Stat., a search of his person turned up two bags of quaaludes, with the possession of which he was then also charged. As to the latter offense, a felony, Poleski was informed against in the Dade County Circuit Court. After he had successfully completed the pre-trial intervention program, however, the information was nolle prossed on January 25, 1978. In the meantime, however, he had been convicted of the d.u.i. charge, apparently in the County Court, on October 4, 1977.

On May 15, 1978, without revealing his d.u.i. conviction, Poleski moved for an order sealing the arrest and court records of the felony possession charge. The court granted the motion on June 19, 1978. After the Department of Criminal Law Enforcement brought the d.u.i. conviction to the trial judge’s attention, she entered the “order unsealing court file” which is now under review. That order was properly entered.

The controlling statute, Section 901.33, Fla.Stat. (1977) provides:

“If a person who has never previously been convicted of a criminal offense or municipal ordinance violation is charged with a violation of a municipal ordinance or a felony or misdemeanor, but is acquitted or released without being adjudicated guilty, he may file a motion with the court wherein the charge was brought to expunge the record of arrest from the official records of the arresting authority The court shall not enter an order expunging the records as above provided when there are several acts, or said person has been charged with several offenses originating out of or related to the offense or offenses for which such person had been charged and not found guilty, and when the charge and adjudication of nonguilt did not include all such charges or all such several acts.” [emphasis supplied]

The emphasized provisions of the statute apply directly to Poleski’s situation. Plainly, there were “several acts” involved in the defendant’s August 14, 1977 arrest. It is also clear that the d.u.i. charge was directly “related to” the possession offense which was nolle prossed. Cf. State v. Zawistowski, 339 So.2d 315 (Pla. 1st DCA 1976). Since the nolle prosse did not include the d.u.i. offense, of which, to the contrary, the defendant was found guilty, the very terms of the statute demonstrate that he was not entitled to the relief sought.

Affirmed.

      . In Johnson v. State, 336 So.2d 93 (Fla.1976), the statute was held partially unconstitutional on a point not involved in this case. The invalid provisions were modified and adopted as Fla.R.Crim.P. 3.692.

      . The facts of this case demonstrate the wisdom of the proviso in the statute which is applicable here. Both the d.u.i. and the felony possession charges were incorporated into the same “A” or arrest form. Thus even an ex-pungement of the felony charge would not eliminate the reference to those same charges in the unsealed County Court files involving the d.u.i.

      . The trial judge based the ruling below upon her conclusion, which was acknowledgedly directly contrary to State v. Zawistowski, 339 So.2d 315, 316 (Fla. 1st DCA 1976), that the statute applied only if the defendant had not been “previously convicted” of another offense as of the time that the file was to be sealed rather than, as of “the time of the arrest,” as the First District held in Zawistowski. Since we affirm upon another ground, we do not resolve this issue.


author: HOBSON, Judge.

text:
    Kendrick A. JONES, et al., Appellants, v. W. L. COBB CONSTRUCTION COMPANY, INC., Appellee.
    No. 78-979.
    District Court of Appeal of Florida, Second District.
    May 30, 1979.
    Richard T. Earle, III of Earle & Earle, St. Petersburg, for appellants.

      Brian C. Ellis of Dixon, Shear, Brown, Lima & Moffitt, Tampa, for appellee.
   HOBSON, Judge.

The owners of certain real property entered into a building contract with General Building Design, Inc., a general contractor. The appellants, capital stockholders of General Building Design, Inc., executed a document entitled “Guaranty of Completion” which stated:

To eliminate the need of a performance and/or payment bond for the construction contract . . each of us hereby jointly and severally represent, warrant and covenant as follows:
1. We unconditionally guarantee to you the due performance of all of General’s obligations under the above described construction contract. .

Article 9 of the building contract provided:

It is an expressed condition of this contract that . . . Jones agree to personally guarantee the performance of General Building Design, Inc. so that no performance bond will be required.

This action began with the filing of a complaint by a subcontractor against the property owners seeking foreclosure of a mechanic’s lien. Numerous counterclaims, crossclaims and third-party actions were filed, adding as parties the general contractor and numerous subcontractors and mate-rialmen, including appellants, as guarantors. All claims were settled with the exception of appellee’s claim against General Building Design, Inc. and appellants as guarantors.

The trial court entered a final judgment in favor of W. L. Cobb Construction Company, holding that the guarantee of Kendrick Jones, et ah, appellants, was provided in lieu of a statutory payment bond as contemplated by Section 713.23, Florida Statutes (1977). The court stated:

. [I]f a personal guarantee is provided in lieu of the statutory payment bond, the personal guarantee must likewise be construed to afford the full protection contemplated by a Section 713.23 bond, which would inherently and necessarily include the obligations of General Building Designs, Inc. under its subcontract with W. L. Cobb Construction Company. . . .

Appellants ask this court to find that the guarantee in question is, as a matter of law, in the nature of a performance bond rather than a payment bond. Appellants argue that the obligation undertaken by them as guarantors was solely for the benefit of the owners and was never intended to exempt the owners from the provisions of the Florida mechanics’ lien laws. Appellants point out that Cobb’s initial pleading was a suit on a mechanic’s lien for material and labor incorporated in the improvement. Only after this lien was satisfied by prorating the available money to the several lienors did Cobb file the instant claim for the unpaid balance against appellants as guarantors.

We find that the guarantee in question has the effect of a performance bond to indemnify the owners of the real property against liens and thus does not benefit appellee for a breach of contract by General Building Design, Inc.

Section 713.23, Florida Statutes (1977) provides that a payment bond “shall be executed as surety by a surety insurer authorized to do business in Florida . . .” Its purpose is to exempt the property owner from Florida’s mechanics’ lien laws. Statutory requirements for bonds of this type must be strictly followed. In reversing the dismissal of a complaint seeking foreclosure of a mechanic’s lien under a statutory payment bond, the Fourth District Court stated:

Suffice to say, a bond furnished pursuant to Section 713.23, Florida Statutes (1975) must comply with the provisions of that section in order for the benefits afforded thereby to accrue to the owner since preclusion of a claimant’s lien right is no insignificant matter. Hunt Truck Sales and Service, Inc. v. Bonanza Construction, Inc. 353 So.2d 612 (Fla. 4th DCA 1977) at 613.

This court stated in Alpha Electric Supply, Inc. v. F. Feaster, Inc., 358 So.2d 892 (Fla. 2d DCA 1978):

Thus, proof of the existence of a payment bond meeting all of the conditions of Section 713.23, Florida Statutes (1975) is a complete defense to a suit We believe the defense was prematurely raised and should be asserted affirmatively by allegations showing that the payment bond did, in fact, meet all the conditions of Section 713.23. (Emphasis added)

If the owners had intended to exempt themselves from the provisions of Chapter 713, they would have required the general contractor to provide a payment bond. The guarantee in question here does not suffice, on its face, to substitute for a payment bond and the record shows that numerous subcontractors and materialmen did avail themselves of the benefits of Chapter 713.

Although it is not mandatory that an owner obtain a payment bond, if the owner chooses the alternative of a bond, he may not employ one other than as provided for by Section 713.23. Guin & Hunt, Inc. v. Hughes Supply, Inc., 335 So.2d 842 (Fla. 4th DCA 1976). In the instant case, the owners did not choose the alternative of a payment bond. They remained subject to the provisions of Chapter 713. The guarantee provided by the appellants, stockholders of General Building Design, Inc., served to indemnify the property owners against loss arising by reason of a failure of the general contractor to faithfully perform under the building contract.

Looking to the language of the guarantee itself, we find no mention of payment to materialmen. In fact, Article 9 of the building contract expressly states that the guarantors “personally guarantee the performance of General Building Design, Inc. so that no performance bond will be required.” The record reveals no other statements, agreements or intentions which would modify the plain meaning of this phrase. In the body of the written guarantee itself we find the phrase, “We unconditionally guarantee to you the due performance of all of General’s obligations. . . ” This promise runs from the guarantors to the owners and we will not extend the obligation to third-party subcontractors and materialmen.

We recognize that the mere use of labels such as “payment” or “performance” will not assure the substantive consequences of an agreement. However, the agreement in question lends itself to a “performance” interpretation because of 1) the repeated use of the word “performance,” 2) the absence of any mention of duties to subcontractors or materialmen, and 3) the strict statutory requirements for payment bonds. We believe that the owners chose to avoid the use of bonds altogether and instead employed the personal guarantee of Kendrick Jones, et al., to achieve the desired results, /. e., the faithful performance of the building contract by General Building Design, Inc. to the owners.

The final judgment entered in this cause against appellants, Kendrick A. Jones, et al., is hereby reversed.

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


text:
    Darrell Lamar JACKSON, Appellant, v. STATE of Florida, Appellee.
    Nos. 78-1724, 78-1725.
    District Court of Appeal of Florida, Second District.
    May 30, 1979.
    Jack 0. Johnson, Public Defender, Paul C. Helm, Asst. Public Defender, and Brent A. Woolbright, Legal Intern, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm the court’s judgments and sentences, but we remand the ease so that the trial court may set aside the orders assessing costs against appellant. Since the court had adjudged appellant to- be insolvent, it was not authorized to assess costs against him. Section 939.15, Florida Statutes (1977); Cox v. State, 334 So.2d 568 (Fla.1976).

GRIMES, C. J., and HOBSON and DAN-AHY, JJ., concur.


text:
    Nancy Elizabeth MOODY, Appellant, v. Danny M. MOODY, Appellee.
    No. 78-2001.
    District Court of Appeal of Florida, Second District.
    May 30, 1979.
    Michael A. Linsky of Linsky & Reiber, P. A., Tampa, for appellant.
    Jack M. Larkin of Spicola & Larkin, P. A., Tampa, for appellee.
   PER CURIAM.

This is an action for interpleader in which appellant and appellee are the interpleaded codefendants. Appellant seeks to appeal (1) an order denying appellant’s motion to set aside a default previously entered against her by the clerk, (2) an order denying appellant’s motion for clarification of an order of interpleader and determining that appellant may not present any evidence at all in any further proceedings regarding the disposition of funds deposited in the registry of the court, and (3) an order denying appellant’s request to establish or otherwise delineate the factual issues existing between her and appellee. None of these orders is a final order within the contemplation of Fla. R.App.P. 9.030(b)(1)(A). Likewise, none of these orders is within the category of nonfi-nal orders specified in Fla.R.App.P. 9.130(a) as nonfinal orders which may be reviewed by appeal. Praet v. Martinez, 367 So.2d 657 (Fla.3d DCA 1979). Since none of the orders is appealable, the appeal is dismissed sua sponte. Arnold v. Brady, 178 So.2d 732 (Fla.2d DCA 1965); Renard v. Kirkeby Hotels, 99 So.2d 719 (Fla.3d DCA 1958).

GRIMES, C. J., and HOBSON and DAN-AHY, JJ., concur.


text:
    Belinda Joyce NADJOWSKI, a/k/a Brenda Nadjowski, a/k/a Susan Alexsandria, Appellant, v. STATE of Florida, Appellee.
    No. 78-2015.
    District Court of Appeal of Florida, Second District.
    May 30, 1979.
    Jack 0. Johnson, Public Defender, P. Douglas Brinkmeyer, Asst. Public Defender, and David A. Davis, Legal Intern, Bar-tow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We remand so that the lower court may correct the written order revoking appellant’s probation to conform to the court’s oral pronouncement, by striking the finding of violation of conditions 2 and 3. See Sing Eng v. State, 350 So.2d 559 (Fla.2d DCA 1977).

On remand, the trial court should also set aside the order assessing costs against appellant. Since the court had adjudged appellant to be insolvent, it was not authorized to assess costs against him. Cox v. State, 334 So.2d 568 (Fla.1976); § 939.15, Fla.Stat. (1977).

We otherwise affirm the order of revocation, judgment, and sentence.

GRIMES, C. J., and HOBSON and DAN-AHY, JJ., concur.


author: OTT, Judge.

text:
    William STEPHENSON, Appellant, v. STATE of Florida, Appellee.
    No. 78-2309.
    District Court of Appeal of Florida, Second District.
    May 30, 1979.

      Jack 0. Johnson, Public Defender, P. Douglas Brinkmeyer, Asst. Public Defender and David A. Davis, Legal Intern, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and C. Marie King, Asst. Atty. Gen., Tampa, for appellee.
   OTT, Judge.

Appellant appeals his convictions for sale and possession of marijuana alleging that the court erred in denying his Fla.R.Crim.P. 3.190(c)(4) Motion to Dismiss. We agree as to possession and reverse that conviction. We affirm the sale conviction.

The facts as admitted by the motion show that appellant and a codefendant named Tuck negotiated with two officers of the St. Petersburg Police Department for the sale of a pound of marijuana. Under the arrangement appellant and Tuck were to go to Sarasota to get the marijuana from a supplier. Their supplier required advance payment of the purchase price of $380. The officers handed the cash to Tuck at appellant’s request and left to return later for delivery of their purchase. When they returned two hours later to pick up the marijuana, Tuck delivered it to them. Appellant was not there.

We note that a charge of substantive crime may be proved by evidence of aiding and abetting. State v. Roby, 246 So.2d 566 (Fla.1971). Arrangement or participation in the sale of drugs is sufficient for an aiding and abetting conviction. State v. Dent, 322 So.2d 543 (Fla.1975); State v. Hubbard, 328 So.2d 465 (Fla. 2d DCA 1976). We hold the above facts sufficient to establish a prima facie case against appellant for sale, and thus, sufficient to withstand a motion to dismiss under Fla.R. Crim.P. 3.190(C)(4).

Appellant, however, is correct that nothing in the facts suggests he had actual or constructive possession of the marijuana. There is no indication that appellant had marijuana in his physical possession or ever did or could exercise control over it. See Daudt v. State, 368 So.2d 52 (Fla. 2d DCA 1979). Thus, a prima facie case for possession was not shown and denial of the motion to dismiss was error.

The judgment and sentence against appellant for sale of marijuana are affirmed; the judgment for possession is reversed and the sentence vacated.

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


text:
    Tony COCHRAN, Appellant, v. STATE of Florida, Appellee.
    No. 79-42.
    District Court of Appeal of Florida, Second District.
    May 30, 1979.
    Jack O. Johnson, Public Defender, and Michael S. Becker, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed. See Nelson v. State, 372 So.2d 949 (Fla. 2d DCA 1979).

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