text:
    George ALEXANDER, Appellant, v. STATE of Florida, Appellee.
    No. 74-481.
    District Court of Appeal of Florida, Second District.
    Jan. 12, 1977.
    Rehearing Denied Feb. 8, 1977.

      James A. Gardner, Public Defender, Harold H. Moore, Asst. Public Defender, Sarasota, and Karl W. Pilger, Student Asst., Washington, D.C., for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

On May 5, 1970, appellant was indicted for first degree murder. On May 28, 1970, an information was filed charging appellant with having committed robbery in a separate occurrence. On June 22, 1970, appellant appeared with counsel and entered pleas of guilty to both charges. He was adjudicated guilty on both charges and sentenced to life imprisonment for murder and fifteen years for robbery with the sentences to run consecutively.

While in prison several years later, appellant filed a petition for habeas corpus asserting that he had requested his court-appointed counsel to appeal the judgments and sentences but no appeal had been taken. The Director of the Division of Corrections filed a response which had the effect of admitting the pertinent allegations of the petition. As a consequence, this court entered an order affording appellant the opportunity of a full appellate review pursuant to the authority of Baggett v. Wainwright, 229 So.2d 239 (Fla.1969). The appeals of the two cases were consolidated.

Appellant has raised two points. His contention that the court erred in accepting his pleas without first adequately determining whether the surrounding circumstances reflected a full understanding of the significance of the pleas and their voluntariness is without merit. The record indicates that appellant freely and voluntarily pled guilty to the two crimes and understood what he was doing.

At the time of his convictions, appellant was eighteen years old and, therefore, a minor under the laws existing at that time. There is no indication that he was married. For his second point on appeal, appellant contends that his convictions must be set aside because of the failure of the court to comply with Section 932.38, Florida Statutes (1969), which read as follows:

“932.38 Parent or guardian to be notified before trial of offense against minor; service of notice.—
(1) When any minor, not married, may be charged with any offense and brought before any of the courts, including municipal courts, of this state, due notice of such charge prior to the trial thereof shall be given to the parents or guardian of such minor, provided the name and address of such parent or guardian may be known to the court, or to the executive officers thereof. In the event that the name of such parent or guardian is not known or made known to the court or executive officer or cannot be reasonably ascertained by him, then such notice shall be given to any other relative or friend whom such minor may designate.
(2) The service of notice required by this section to be given to the parent, or guardian or other person provided herein may be made as the service of summons ad respondendum is made; or in the event such parent, or guardian or other person provided herein may be beyond the jurisdiction of the court, then, and in that event, service may.be made by registered mail, or by telegram, and return of such service shall be made by the executive officer of the court in the same manner as returns are made upon summons ad respondendum.”

The substance of this statute has been retained in Section 925.07, Florida Statutes (1975).

Our courts have consistently held that the conviction of a minor must be reversed where the notice requirements of this statute have not been followed. Keene v. Cochran, 146 So.2d 364 (Fla.1962); Thomas v. State, 301 So.2d 487 (Fla.2d DCA 1974); Wade v. State, 184 So.2d 462 (Fla.2d DCA 1966); Milligan v. State, 177 So.2d 75 (Fla.2d DCA 1965); Ziegler v. State, 180 So.2d 477 (Fla.3d DCA 1965). However, since the service provisions are only directory, actual knowledge by the person to be notified is sufficient for purposes of the notice required by the statute. Snell v. Mayo, 84 So.2d 581 (Fla.1956); Holloway v. State, 216 So.2d 248 (Fla.2d DCA 1968).

The only paper in the file purporting to pass as notice is a copy of a letter from the State Attorney notifying Mrs. Leona Harrington of appellant’s arraignment for murder. On the face of the copy of the letter there is a return which recites that the letter was served upon Mrs. Harrington by the sheriff’s office on May 12, 1970, and an acknowledgment of the receipt of the letter which bears the signature of Leona Harrington. This brings into focus the question of whether notice to Mrs. Leona Harrington of the murder charge was sufficient compliance with the statute. Since this matter had never been considered by the trial court, this court, following a procedure analogous to that employed in Wade, remanded the case for evidence on whether the written notice to Mrs. Leona Harrington constituted compliance with the statute on the murder charge and also whether an appropriate representative under the statute had actual notice of either of the charges.

In testimony taken at the hearing on remand, it was developed that there is a notation on the applicable police booking sheets which apparently notes “Mooma” Harrington as appellant’s next of kin. Mrs. Leona Harrington testified that at the time the charges were made appellant’s parents were dead and he was staying with her after having lived in a foster home. Mrs. Harrington spoke of appellant as her adopted child but admitted that she had never formally adopted him through legal proceedings. Mrs. Harrington did not recall having been served with the notice but acknowledged that it was her signature on the copy which is in the court file. She said she knew of the murder charge which was pending against appellant because she read about it in the newspaper. She was not asked whether she knew of the pending robbery charge.

In the absence of any record indicating that notice of the robbery charge was given to an appropriate representative under the statute and with no showing of actual notice, the robbery conviction must be vacated. On the other hand, we believe the record sufficiently reflects compliance with the statute for purposes of the murder conviction. While not technically appellant’s parent or guardian, Mrs. Harrington was certainly performing that function. She was the person who logically should have been notified, and it is reasonable to assume that the state attorney would not have known to notify her unless she had been designated by appellant.

Consequently, the judgment and sentence for murder is affirmed. The judgment and sentence for robbery is reversed, and the case is remanded for further proceedings on the robbery information.

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


source: Caselaw Access Project

author: PER CURIAM. SCHEB, Judge,

license: Public Domain

text:
    UNITED OF FLORIDA, INC., Appellant, v. ILLINI FEDERAL SAVINGS & LOAN ASSOCIATION and Lyman Savings & Loan Association, Appellees. UNITED OF FLORIDA, INC., Appellant, v. MIDWEST FEDERAL SAVINGS & LOAN ASSOCIATION OF MINOT, Appellee.
    Nos. 76-459, 76-504.
    District Court of Appeal of Florida, Second District.
    Jan. 12, 1977.
    Thomas B. Drage, Jr., Orlando, and Grover C. Freeman, Tampa, for appellant.
    Thomas W. Stewart, Bradenton, for Illini Federal Savings & Loan Association and Lyman Savings & Loan Association.
    Richard A. Nielsen of Gregory, Cours, Paniello, Johnson & Hayes, Tampa, for Midwest Federal Savings & Loan Association of Minot.
   PER CURIAM.

These appeals present an issue as to which claimant has priority, a lienor under the mechanics lien law or the assignees of mortgages where the assignments were effectuated more than one year after the owners filed a notice of commencement. We hold the mechanics lien claimant has priority and reverse the summary judgments entered by the trial court in favor of the assignees of the mortgages.

As related to the issue before us, the facts are undisputed. The owners of Horizon-DeSoto Lakes, a large condominium complex in Manatee County, filed a notice of commencement under Section 713.13, Florida Statutes, on March 14, 1973. Appellant United installed the plumbing and on-site utilities for the project. Within one year from the filing of the notice, four of the condominium units were sold to purchasers who executed mortgages in favor of a mortgage lender, Urban Shelter Savings, Inc. More than one year after the notice of commencement was filed, Urban assigned its mortgages to appellees. Subsequently, on December 20, 1974, appellant United filed its claim of lien against the project for $30,596.

Even though the pleading posture of these cases differs, the trial court found in each case that the notice of commencement was not renewed or extended and did not provide that it was effective as to any person acquiring an interest under the owner more than one year from the date it was recorded. Thus, the court concluded there was no effective notice of commencement when the appellees acquired their mortgage interests, and adjudged each appellee’s mortgage lien to be superior to United’s claim of lien.

Section 713.13, Florida Statutes, which provides for notice of commencement, states in Subsection (5) thereof:

“Unless otherwise provided in the notice of commencement or a new or amended notice of commencement, any notice of commencement heretofore or hereafter recorded shall not be effective as to any person acquiring title or any interest in real property from the owner or under him after one year from the date of recording the notice of commencement.”

No one suggests that the mortgages in favor of Urban would have priority over United’s subsequently filed lien. Appellees, however, urge that when they were assigned these mortgages, they “acquired an interest in real property” under the above subsection. They contend the notice of commencement was rendered ineffective as to them, and the priority dispute must be determined as if no notice of commencement had been filed. Appellees then point to Section 713.07(2), Florida Statutes, which provides that in the event a notice of commencement is not filed, a mechanics lien does not attach until it is recorded. Since United recorded its claim subsequent to the assignments, appellees maintain that the mortgages acquired by them have priority.

In our judgment United’s claim must take priority, because we do not believe it can be said that a mortgage is an interest in real property. Consequently, the assignee of a mortgage could not thereby acquire “an interest in real property” as specified in Section 713.13(5), Florida Statutes.

Florida is a lien theory state. Section 697.02, Florida Statutes (1975), provides:

“A mortgage shall be held to be a specific lien on the property therein described, and not a conveyance of the legal title or of the right of possession.”

On more than one occasion our Supreme Court has held that a mortgage does not create an interest in real property but is rather a chose in action creating a lien on the property. E. g., Shavers v. Duval County, 73 So.2d 684 (Fla.1945); Waldock v. Iba, 114 Fla. 786, 153 So. 915 (1934).

2 Boyer, Florida Real Estate Transactions, Sec. 32.01, states:

“At common law, the mortgagee was vested with legal title, the mortgage operating as a conveyance subject to defea-sance, but in Florida, the mortgage does nothing more than create a lien upon the land of the mortgagor.”

Apropos to the instant case, the Supreme Court said in Garrett v. Fernauld, 63 Fla. 434, 57 So. 671 (1912):

“An assignment of a mortgage lien is not ‘a conveyance’ or a ‘transfer’ of ‘any interest’ in land covered by the mortgage, but is only an assignment or transfer of the lien created by the mortgage;

The appellees argue that the words “interest in real property” should be held to mean something else when considered within the context of the Mechanic’s Lien Act. Yet, the words are not otherwise defined in the Act. With these words having such a well understood meaning, we believe that if the legislature had meant Section 713.13(5), Florida Statutes, to include mortgages, it would have said so.

Even if we accepted the contention that a mortgage is an interest in real property for purposes of Section 713.13(5), we would still find it necessary to reverse. Clearly, the mortgages in favor of Urban were subordinate to United’s claim since Urban acquired those mortgages within the one year period stipulated in Section 713.-13(5). When appellees acquired Urban’s rights, they stood in the shoes of their assignor, receiving only those rights and benefits available to Urban. Dubbin v. Capital National Bank of Miami, 264 So.2d 1 (Fla.1972). Thus, the assignment to appellees did not create any new interest in real property and did not have the effect of subordinating United’s claim which attached from the date the notice of commencement was filed.

Assuming that a mortgage is an interest in real property, appellees argue that if they had acquired new mortgages from the owners of the four condominium units, they would have been protected and that this court should equate their assignments with new mortgages since from an economic standpoint appellees have the same investment. Be that as it may, the fact is the mechanics lien statutes afforded United protection as to its lien claim by granting it priority over any interest in real property acquired within one year. United held its priority over the Urban mortgages and such priority could not be “laundered out” merely by the act of assignment. Given the principle set forth in Dubbin, supra, it would be inequitable to allow an enhancement of the priority position of the Urban mortgages merely because they were assigned.

Accordingly, the summary judgments in favor of appellees are reversed and these causes are remanded for further proceedings consistent with this opinion.

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

SCHEB, J., concurs specially.

SCHEB, Judge,

concurring specially.

Since I agree that an assignee of a mortgage stands in no better position than its assignor, I concur with the result reached by the majority. It is not necessary, in my opinion, to reach the question in this case as to whether a mortgage is “an interest in real property” within the contemplation of the mechanics lien law. The cases cited in the majority opinion for the proposition that a mortgage is not an interest in real property arose in contexts other than mechanics lien law and I am not prepared to hold that such cases are controlling in this instance. I concur in the decision to reverse; however, I would have predicated the reversal on the ground that the assignment to appellees did not create any new interest in real property.


text:
    A. H. BLAKE, as tax assessor of Dade County, Florida, et al., Appellants, v. R. M. S. HOLDING CORP., a Florida Corporation, Appellee.
    No. 75-1753.
    District Court of Appeal of Florida, Third District.
    Jan. 18, 1977.

      Stuart L. Simon, County Atty., and Robert L. Krawcheek, Asst. County Atty., for appellants.
    Richard M. Sepler and Irma V. Hernandez, Hialeah, for appellee.
    Before HENDRY, C. J., and PEARSON, J., and CHARLES CARROLL (Ret.), Associate Judge.
   CHARLES CARROLL (Ret.), Associate Judge.

This appeal is by the tax assessor and tax collector of Dade County and the other named defendants, from an adverse summary judgment which set aside the 1974 assessment of plaintiff’s real property made on a nonagricultural basis, and directed that the property be assessed and taxed for 1974 as agricultural. We find error, and reverse.

On March 13, 1975, the plaintiff landowner R.M.S. Holding Corp. filed suit in the circuit court of Dade County, under Section 194.171 Florida Statutes (1973), contesting the amount of the 1974 assessment on its real property as nonagricultural ($152,-600.00), contending the property should have been classified as agricultural and assessed accordingly, for a lesser amount.

As ground for its challenge of the amount of the assessment, the plaintiff alleged that through its attorney, on January 31, 1974, it had mailed to the assessor a letter containing an application to have the property classified as agricultural; that the assessor had failed to comply with that request, and had not informed plaintiff of a denial thereof, for which reason the plaintiff had not petitioned the Board of Tax Adjustment for review of the assessment. It was alleged the plaintiff had complied with every condition precedent required by law to have the property classified as agricultural for 1974. The complaint “tendered” to “the defendant” the sum of $88.70, therein stated to represent the amount of tax which plaintiff admitted in good faith it owed on the property for 1974. There was no allegation that any portion of the tax had been paid to the tax collector, and no receipt of the tax collector for any such payment was filed with the complaint.

The defendants answered. They denied the allegation of compliance with the legal requirements to entitle plaintiff to receive the desired classification of the property, and averred that no such application from the plaintiff was received by the tax assessor’s office. As affirmative defenses the defendants pleaded failure of the plaintiff to file with the assessor a timely application for agricultural assessment; failure of the plaintiff to exhaust its administrative remedy; failure of the plaintiff to pay to the tax collector the portion of tax admitted to be owed and failure to file with the complaint a receipt of the tax collector for such a payment; and that the action was not filed within the 60 day time limit provided therefor by law. At the hearing on a motion for summary judgment filed by the defendants, the pleadings, and the evidence consisting of an affidavit and a discovery deposition of the plaintiff’s attorney and an affidavit of an employee of the tax assessor who headed the department of the assessor’s office concerned with such matters, showed the following facts.

In August of 1973 certain individuals, whose identity was not disclosed, entered into a contract to purchase the land in question from the then owner, one Raymond Leyon, a resident of the state of Michigan; that because of the time required for the owner to cure a defect in title, the closing of the sale, which was to have been sometime in 1973, was delayed and it appeared the sale was closed in January of 1974, on or after January 15. The purchasers formed the plaintiff corporation to which title was conveyed.

While previously owned by Leyon, the property had been assessed and taxed as agricultural for a number of years. In 1972 and 1973 Leyon had timely filed short form applications for renewals of agricultural assessment, which had been acted upon by the assessor for taxation of the property on that basis in those years.

On January 18, 1974, the assessor sent to Leyon, who appeared on his records as the owner, a short form renewal card for his use in applying for a renewal of agricultural assessment, as permitted by statute to one whose land was assessed as agricultural for the preceding year. Having sold the property, Leyon forwarded the application form to the attorney for the new owner. On January 31, 1974, the plaintiffs attorney wrote a letter to the assessor in which he enclosed the short renewal form, made out as an application of the new owner for agricultural assessment of the property for the tax year 1974. Due to an error by a secretary, that letter was incorrectly addressed to the assessor at the Dade County courthouse, whereas the office of the tax assessor was, and for a number of years had been, Room 310 Justice Building, 1351 N. W. 12th Street, in Miami. That letter was not delivered to the assessor’s office. Accordingly, the property was assessed and taxed for 1974 as nonagricultural.

On December 11, 1974, after receipt by the plaintiff of the tax bill for 1974 based on such assessment, the plaintiff’s attorney wrote a letter to the assessor in which he enclosed the 1974 tax bill and a copy of the January 31, 1974 letter (which the assessor had not received), and stated: “My records reveal that we filed for this renewal on January 31,1974 as per copy of the enclosed letter. We received no notification from the tax assessor’s office and assumed as in prior years agricultural assessment would be utilized. The enclosed tax bill indicated a contrary treatment on the assessment and taxation of the subject property which needs to be corrected. Should you require any additional information, please feel free to call upon me.” That letter was similarly incorrectly addressed, and was not received by the tax assessor. On December 27,1974, another letter was sent to the assessor by the plaintiff’s attorney, enclosing a copy of the letter of December 11. That letter was received by the tax assessor, who replied thereto on January 3, 1975, stating the earlier letters referred to had not been received, and that the records of the assessor’s office showed no return was filed for agricultural assessment of the property for 1974. The assessor’s letter also stated that since no such return had been filed for 1974, a renewal form for 1975 was not being sent to the plaintiff, but that a return form to be filed by the plaintiff for 1975 was enclosed.

The trial court, holding there was no tria-ble issue of fact, granted summary judgment in favor of the defendants. Plaintiff moved for rehearing. The ground stated therein was that the court had erred in granting summary judgment for the defendants “in that there are questions of facts in this case”. The court granted rehearing, and entered the summary judgment from which the defendants have appealed. Therein, without stating grounds or reasons, other than that the ruling was made upon reconsideration of the pleadings, deposition and affidavits, the court vacated the judgment initially rendered in favor of the defendants and granted summary judgment in favor of the plaintiff, in which the court ordered the defendants to classify the property as agricultural for the calendar year 1974, and to adjust the tax thereon accordingly.

In our opinion, the judgment originally entered in favor of the defendants was correct, and the judgment entered in favor of the plaintiff on rehearing was erroneous because on the pleadings and the evidence before the court on the defendants’ motion for summary judgment the several affirmative defenses pleaded by the defendant were established.

First. In order for the plaintiff, as the new owner, to obtain a classification and assessment of its property as agricultural for the tax year 1974, it was necessary for the plaintiff to file a return, or application therefor in the office of the tax assessor on or before April 1, 1974, and supplement the same with such information as the assessor properly should require. Section 193.461(3)(a) Florida Statutes (1973). Additionally, subsection (6)(a) of that section provided that the assessment of land should be based solely on its agricultural use “in years in which proper application for agricultural assessment has been made and granted pursuant to this section”. Further, in subsection (6)(b) the statute stated: “In years in which proper application for agricultural assessment has not been made the land shall be assessed under the provisions of § 193.011, Florida Statutes” [nonagricul-tural].

No return or application for agricultural assessment was made by the plaintiff for 1974. The statute required that it be filed with the assessor, by April 1. To be so filed, a document or paper must be delivered to and received in the office of the assessor. Black’s Law Dictionary, Fourth Edition, defining file, states: “To deliver an instrument or other paper to the proper officer for the purpose of being kept on file by him in the proper place”, and further; “A paper is said to be filed when it is delivered to the proper officer, and by him received to be kept on file”. See Bituminous Casualty Corporation v. Clements, 148 Fla. 175, 3 So.2d 865 (1941).

On that ground, aside from other considerations, the defendants were entitled to judgment. We hold to be without merit the appellee’s argument that the mailing of an application to the assessor, which was incorrectly addressed and not received by the assessor’s office, fulfilled the statutory requirement for filing such a return or application with the assessor. The record shows that the letter which was not received by the assessor enclosed a short form renewal application for agricultural assessment for 1974. Therefore, even if it had been received by the assessor, it would not have been a “proper application” by the new owner, although the prior owner, had he not sold the property, could have used that short form renewal application.

Second. The plaintiff failed to comply with legally imposed conditions precedent to filing suit to challenge the amount of the assessment. Section 194.171(3), Florida Statutes (1973) provided that before a taxpayer may bring an action to contest a tax assessment “he shall pay to the collector the amount of the tax which he admits in good faith to be owing”. Here that was not done. That subsection further provides: “The collector shall issue a receipt for the payment, and the taxpayer shall file the receipt with his complaint.” The plaintiff did not comply with that requirement. Because of those omissions by the plaintiff, the defendants were entitled to summary judgment. Buchanan v. City of Tampa, 134 Fla. 618, 184 So. 104 (1938); Dade County Land Development Corp. v. Dade County, 157 So.2d 142 (Fla.3d DCA 1963).

Third. Admittedly the plaintiff did not exhaust its administrative remedies, by timely seeking review of the amount of the assessment, as provided for by statute. See sections 193.461(2), 194.011(3), 194.032, and 194.042 Florida Statutes (1973). As a result of its failure in that regard the plaintiff was entitled to no relief on its suit challenging the assessment. Marx v. Welch, 178 So.2d 737 (Fla.3d DCA 1965); Monroe County v. Gustinger, 285 So.2d 431 (Fla.3d DCA 1973).

We reject as unsound the contention of the appellee that it should be excused for its failure to exercise its administrative remedies because the assessor did not notify the plaintiff that its application for agricultural assessment had been “denied”. When the assessor did not receive such an application, he cannot be said to have denied it, and there was no occasion for the assessor to communicate with the plaintiff prior to the assessment which was made. Moreover, when a properly filed application for agricultural assessment is not granted, the statute does not require the assessor to so inform the applicant. The statute provides that the assessor “shall have available at his office a list by ownership of all applications received [for agricultural assessment], showing the acreage, full valuation under § 193.011, the valuation of the land under the provisions of this section, and whether or not the classification requested was granted”. Section 193.461(2) Florida Statutes (1973). Therefore, by virtue of that provision of the statute, the plaintiff was charged with notice that the public records in the assessor’s office would reveal the status of the land in question in the respects. involved. The plaintiffs lack of knowledge in the matter was due to its failure to timely check the records in the assessor’s office. The assessment and taxation of the property as nonagricultural for 1974, in the existing circumstances, were made properly under the law.

The appellee argues the judgment for plaintiff is supportable upon the ground that on the facts of the case the defendant officials were estopped to assess and tax the property for 1974 other than as agricultural. With no timely and proper application for agricultural assessment of the property for 1974 having been received in the office of the assessor, that official took no action contrary to the law or which could have misled the plaintiff in any regard with respect to the assessment placed on the property for 1974. The same applies to the tax collector, acting on the certified assessment roll. There was no basis to apply an estoppel against the defendants.

Fourth. Section 194.171(2) Florida Statutes (1973) states that no action shall be brought to contest a tax assessment after 60 days from the date the assessment roll is certified for collection under section 193.122(2), which provides for certification of the assessment roll by the tax assessor after revisions thereof to implement any changes in the roll resulting from action of the Board of Tax Adjustment. Under section 197.055, taxes become due and payable on the first day of November of each and every year “or as soon thereafter as the assessment roll may come into the hands of the tax collector”.

Because this suit was not filed within the time prescribed by law the trial court did not have jurisdiction of the subject matter. Although the defendants did not present evidence (by certificate or affidavit of the assessor) of the date on which the assessment roll was certified for collection, which customarily takes place prior to November 1, it sufficiently appeared on the record in the trial court that the 1974 assessment roll was certified for collection, at the latest, sometime prior to December 11, 1974. That was disclosed in the record by the showing that the plaintiff had received its bill for the 1974 taxes, from the tax collector, on or prior to December 11, on which date the plaintiff’s attorney wrote a letter to the tax assessor enclosing the tax bill. As the plaintiff’s action challenging the assessment was commenced on March 13, 1975, it was clearly disclosed that the suit was filed more than 60 days after the certification of the assessment roll for collection. For that additional reason the defendants were entitled to judgment, and it was error to grant judgment for the plaintiff. Harvey Seeds Post No. 28 American Legion v. Dade County, 230 So.2d 696 (Fla.3d DCA 1970); Askew v. MGIC Development Corporation of Florida, 262 So.2d 227 (Fla.4th DCA 1972). In this instance the property was subject to the taxation and the tax imposed thereon for 1974 was authorized by law. The exception by which the 60 day filing period may be disregarded for a suit challenging an assessment on grounds that a property is not subject to taxation, or that the tax is void, is not applicable. See Ranger Realty v. Hefty, 112 Fla. 654, 152 So. 439, 442-443 (1933); West Virginia Hotel Corporation v. W. C. Foster Co., 101 Fla. 1147, 132 So. 842 (1931).

For the reasons stated, the judgment entered in favor of the plaintiff which is appealed from is hereby reversed, and the earlier summary judgment entered in favor of the defendants is reinstated.

It is so ordered.

      . § 193.461 Fla.Stat. (1973), by subsection (1), directed the assessor, "ún * án 'árinual basis, to classify for assessment purposes all property within the county as either agricultural or non-agricultural. Subsection (2) made provision for a landowner who was denied agricultural assessment to apply to the Board of Tax Adjustment for review thereof. Subsection (3) provided that “No lands shall be classified as agricultural lands unless the return is filed on or before, April 1 of, each year”, and that the assessor, before classifying such lands as agricultural “may require the taxpayer or his representative to furnish the assessor such information as may reasonably be required to establish that the said lands were actually used for a bona fide agricultural purpose”, and provided: “Failure to make timely application by April 1, shall constitute a waiver for one year of the privilege herein granted for agricultural assessment”. It was further provided therein that an owner whose land was classified as agricultural in the previous year could apply for a renewal thereof for the ensuing year on a “short form” provided for that purpose, when the ownership or use has not changed.

      Further in subsection (3), that section of the statute set forth a considerable number of factors and elements essential to be considered by the assessor in determining whether land was to be classified as agricultural. Many of those are matters with regard to which the assessor would be entitled to require information from a landowner initially applying for an agricultural classification, or upon application by a purchaser from an owner whose lands had been so classified previously. Additionally, as to an application by a new purchaser, the statute provided that if the purchase price for which the land was acquired by the purchaser was three or more times the amount of the agricultural assessment which was previously placed on the land, that fact would create a presumption that the land is not used primarily for bona fide agricultural purposes by the new owner, requiring a showing by the new owner of special circumstances to the contrary to rebut the presumption. The record in this case does not disclose the price for which the land was purchased by plaintiff, and does not show the amount of the prior agricultural assessment.


author: PER CURIAM.

text:
    B. M., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1899.
    District Court of Appeal of Florida, Third District.
    Jan. 18, 1977.
    Rehearing Denied Feb. 7, 1977.
    Bennett H. Brummer, Public Defender, and Paul Morris, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Brian A. Leslie, Asst. Atty. Gen., for appellee.
    Bfore HENDRY, C. J., and PEARSON and NATHAN, JJ.
   PER CURIAM.

In our opinion in this case, reported as B. M. v. State, 337 So.2d 423 (Fla. 3rd DCA 1976), we relinquished jurisdiction and remanded the cause to the trial judge to consider and then rule explicitly on the voluntariness of the juvenile’s confession. Pursuant thereto, the trial judge rendered the following finding of voluntariness of the confession:

“There is no need for this Court to hear any additional testimony. Based upon the testimony heretofore heard by this Court and the oral argument of counsel for the respective parties, this Court specifically finds that the confession of the juvenile was clearly voluntary. Prior to giving the confession the juvenile was fully advised of his constitutional rights in accordance with the Miranda decision, he intelligently and voluntarily waived those rights and confessed. There is nothing in the record to indicate that the juvenile was under any undue pressure when he gave his voluntary confession.
“The delay in transporting the juvenile from the Public Safety Department homicide office to Youth Hall was unfortunate and unnecessary, however, this Court has heard no evidence which would justify a finding that the delay in transportation in any way vitiated the voluntariness of the juvenile’s confession.”

Based on the foregoing, we are of the opinion that the adjudication of delinquency must be affirmed.

Affirmed.


text:
    Stanley C. WASMAN, Appellant, v. Mitchell RUBINSON et al., Appellees.
    No. 75-1999.
    District Court of Appeal of Florida, Third District.
    Jan. 18, 1977.
    Rehearing Denied Feb. 8, 1977.
    Grusmark, Jaffe & Karten, Miami, for appellant.
    Noriega, Bartel, Chopp, Schatz, Levine & Shuford, Miami, for appellees.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Appellant, Stanley C. Wasman, one of the defendants in the trial court, seeks review of a final judgment arising out of a complaint to cancel as void and unenforceable a usurious note secured by a mortgage given by appellees Mitchell and Edda Rubinson to Wasman.

The Rubinsons alleged in their complaint that Wasman had agreed to loan them the sum of $44,000 at 10% interest, repayable in 14 months and secured by a note and mortgage on the borrowers’ home; that at the time of the closing, the borrowers were given $43,350 in cash ($650 being for expenses); that the lender required the borrowers to execute a note and mortgage for $49,205.75; that in addition, borrowers signed a one year lease on an automobile in their name and payable by them, which automobile was to be driven by the lender; that the lender reserved more than 28% interest and therefore the note should be surrendered and the mortgage cancelled pursuant to Florida Statutes § 687.071(7), which invalidates extensions of credit which are made in violation of Florida usury laws.

The lender by answer denied that the borrower had received only $43,350; he counterclaimed, alleging that the principal sum of $49,205.75 plus interest was due on the note and mortgage and seeking foreclosure of the mortgage.

At the initial deposition of the lender, the lender’s wife and the lender’s trustee representative, each testified that the full amount of $49,205.75 was given to the borrowers in cash at the closing of the loan and that no interest was reserved or discounted at that time. In later depositions and at trial, the same witnesses and the lender recanted and corrected their testimony, admitting that only $44,000 was loaned to the borrowers, thus admitting a usurious transaction.

The trial court found that the difference between the face of the note and mortgage and the amount actually loaned constituted reserved interest which, when combined with the 10% interest shown on the face of the note, rendered the transaction civilly usurious in violation of Florida Statutes § 687.02. The court also found that the borrowers had failed to prove that the payments made for the rental car which was to be used by the lender were part of the loan transaction. The court finally found that the lender had not demonstrated sufficient equities to justify reformation, although the lender did not ask for reformation.

The trial court entered judgment in the amount of $44,000 against the borrowers; this represented the principal amount of the loan. Interest was denied, as was foreclosure of the mortgage, the court ordering cancellation thereof. It is from this judgment that the lender, Wasman, appeals.

Appellant contends that the trial court erred in failing to order foreclosure of the mortgage, since the transaction involved interest in excess of 15% but less than 25%, and that by denying the foreclosure, the court enlarged the penalty of forfeiture of interest prescribed by Florida Statutes § 687.04.

We do not agree. The question here is not whether a usurious mortgage can be foreclosed, as the usury statutes do not provide otherwise; further, it is clear that foreclosures have been permitted in our courts although the transactions involved were tainted with usury. Feemster v. Schurkman, 291 So.2d 622 (Fla.3d DCA 1974); Staros v. Avalon Shores, Inc., 249 So.2d 448 (Fla.lst DCA 1971). Rather, the issue here is whether the trial court properly declined to foreclose the mortgage because of equitable principles.

In the instant case, the pleadings and initial depositions of the lender and his witnesses denied the existence of usury instead of establishing the true character of the transaction, albeit such became evident later by the lender’s admission. In finding that insufficient equities were demonstrated by the lender to justify reformation of the mortgage and foreclosure thereof, the trial court was amply supported by the record, and its finding will therefore not be disturbed on this appeal. Maxwell v. Smith, 119 Fla. 389, 161 So. 566 (1935); see Scheuer v. Balik, 130 Fla. 255, 177 So. 731 (1937).

Affirmed.


text:
    ACE APARTMENTS, INC., a Florida Corporation, Appellant, v. Levina S. PHILLIPS, Appellee.
    No. 76-22.
    District Court of Appeal of Florida, Third District.
    Jan. 18, 1977.
    Rehearing Denied Feb. 3, 1977.

      Kenneth N. Rekant, Miami Beach, for appellant.
    Robert J. Ritter, Miami, for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

This is an appeal from a judgment for $4,150 entered in favor of plaintiff in this action for breach of contract.

Plaintiff, Levina Phillips, as seller, and Ace Apartments, as purchaser, on January 22, 1973 entered into a contract for the purchase of Ms. Phillips’ home. Pursuant to this agreement, Ace deposited $4,150 in escrow with Interstate Title Company. The purchase and sale contract contained a clause whereby Phillips was given 60 days in which to use reasonable diligence to correct any defects in the title in the event defects were found. If Phillips failed to exercise reasonable diligence, the deposit was to be returned to Ace. On February 23 an abstract of title was delivered to Interstate Title Company which represented Ace. On March 1 or 2 Donald Vestal, the abstract examiner, telephoned Phillips’ attorney, Mr. Paul, and advised him of three defects which had to be corrected before the title could be made marketable and insurable. Thereafter, on April 4 Mr. Vestal sent to Phillips’ newly retained counsel, Robert Rit-ter, a letter setting out the three defects which had to be cured to insure title. Subsequently, on April 18 Vestal wrote Ritter that Ace was demanding its deposit back if the transaction was not closed by May 2. Interstate Title Company, escrow agent, by check dated April 26 returned Ace’s deposit and Ace cashed the check on May 3. Thereupon Phillips filed the instant breach of contract action against Ace. The cause was heard by the trial judge who found that (1) even though Mr. Paul had been informed of some of the defects of title and requirements of Interstate Title Company to cure the defects, the seller actually was placed on notice in writing on April 4 by the letter to Mr. Ritter and, therefore, the sixty days began to run as of this date; (2) the seller’s attorney was in the process of correcting the defects to make the title insurable; (3) by receiving and cashing the check on May 3, Ace breached the contract. The judge then entered judgment in plaintiff’s favor for $4,150 in accordance with the terms of the contract.

After a review of the record, we find there was competent substantial evidence to support the finding of the trial judge that the sixty day period began to run on April 4, 1973. Ace having failed to carry the burden of demonstrating that the judgment is against the manifest weight of the evidence or contrary to the legal effect thereof, we affirm. See 2 Fla.Jur. Appeals § 346 (1963) and cases cited therein.

Affirmed.

      . The deadline for the sixty days to cure any defects was computed from the March 2 telephone call by Mr. Vestal to Mr. Paul advising of the title defects.


text:
    Harold Columbus FISHER, Appellant, v. Carole Roberta FISHER, Appellee.
    No. 76-87.
    District Court of Appeal of Florida, Third District.
    Jan. 18, 1977.
    Rehearing Denied Feb. 16, 1977.

      Horton, Perse & Ginsberg, Miami, for appellant.
    Adams, George, Lee & Schulte and David L. Willing, Miami, for appellee.
    Before HENDRY, C. J., and BARKDULL and NATHAN, JJ.
   PER CURIAM.

Affirmed. DelVecchio v. DelVecchio, 143 So.2d 17 (Fla.1962); Harless v. Harless, 185 So.2d 728 (Fla.4th D.C.A.1966); Posner v. Posner, 257 So.2d 530 (Fla.1972); Bunn v. Bunn, 311 So.2d 387 (Fla.4th D.C.A.1975); Plant v. Plant, 320 So.2d 455 (Fla.3rd D.C. A.1975); Lutgert v. Lutgert, 338 So.2d 1111 (Fla.2nd D.C.A.1976).


text:
    Rocky RICCOBONO, Appellant, v. CORDIS CORPORATION, a Florida Corporation, and Dade County, a political subdivision of the State of Florida, d/b/a Jackson Memorial Hospital, Appellees.
    Nos. 76-100, 76-297.
    District Court of Appeal of Florida, Third District.
    Jan. 18, 1977.
    Rehearing Denied Feb. 10, 1977.
    Horton, Perse & Ginsberg; Stanley M. Rosenblatt, Miami, for appellant.
    Fowler, White, Burnett, Hurley, Banick & Knight and A. Blackwell Stieglitz, Miami, for appellees.
    Before HENDRY, C. J., and PEARSON and HAVERFIELD, JJ.
   PER CURIAM.

Plaintiff appeals an order dismissing his complaint in this medical malpractice action.

On September 9, 1975 Rocky Riccobono filed a complaint against Jackson Memorial Hospital and Cordis Corporation alleging that in September 1973 he was admitted to Jackson Memorial Hospital for a coronary catheterization procedure and while the procedure was being performed, the tip of a number 7 French Cordis special left coronary catheter broke off causing injury to him. In response Jackson filed a motion to dismiss for plaintiff’s failure to comply with Section 768.133, Florida Statutes (1975) which requires the submission of a claim of medical malpractice to a medical mediation panel prior to filing a complaint in the circuit court. On December 18, 1975 the trial court entered an order granting the motion to dismiss.

The validity of Section 768.133, Florida Statutes (1975) has been upheld by our Supreme Court in Carter v. Sparkman, 335 So.2d 802 (Fla.1976). This statute clearly provides that prior to filing a malpractice claim in the circuit court, the complainant must submit such claim to a medical liability mediation panel. Plaintiff having failed to submit his claim to a mediation panel, the trial judge was eminently correct in entering the order of dismissal. See Mount Sinai Hospital of Greater Miami, Inc. v. Wolfson, 327 So.2d 883 (Fla.3d DCA 1976).

Affirmed.


text:
    Willie DUNN, Appellant, v. The STATE of Florida, Appellee.
    No. 76-283.
    District Court of Appeal of Florida, Third District.
    Jan. 18, 1977.
    Bennett H. Brummer, Public Defender and Julian S. Mack, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Margarita G. Esquiroz, Asst. Atty. Gen. and David A. Acton, Legal Intern, for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

After a trial by jury defendant Willie Dunn was convicted for (1) uttering a forged instrument, (2) unlawful possession of a forged instrument and (3) attempted grand larceny. He was given sentences of 30 months each on counts 1 and 2 and one year on count 3 above, all sentences to be served concurrently.

Dunn urges as error, failure of the trial judge to declare a mistrial after a police officer gave testimony relating to a crime for which he was not being tried. This alleged error arises out of the following colloquy between the prosecuting attorney and Tampa police detective Dennis D. Kop-lin who was called as a state witness for the limited purpose of testifying as to Dunn’s flight to avoid prosecution and evasion of prosecution:

sf! sf: Jjs * *
“Q. (By Mr. Munroe) Did you have occasion to ask him for any identification showing that he was, in fact, Willie James Palmer?
“A. Yes, sir.
“Q. Did he produce any identification?
“A. He had none on his person.
We had seized other identification which he stated was his.
0; sf: sfs >f! sfc sfs
“Q. And what is that object, sir?
“A. International driver license.
“Q. And where did you first see that item, sir?
“A. It was turned over to me from a uniformed officer.

Defense counsel moved for mistrial on the ground this testimony indicated to the jury that Dunn was in fact in custody and, therefore, this was evidence of another crime. The motion was denied. We find no abuse in the court’s denial of the motion for mistrial as such a motion should not be granted in the middle of a criminal trial unless there is an absolute legal necessity to stop the trial and discharge the jury. See Kelly v. State, 202 So.2d 901 (Fla. 2d DCA 1967). At best, Dunn’s contention that this testimony evidenced to the jury another crime for which he was not being tried is mere speculation and conjecture.

Further, we conclude that if there was error, then, under the circumstance, it was not fundamental. See Ashford v. State, 274 So.2d 517 (Fla. 1973); Marion v. State, 287 So.2d 419 (Fla. 4th DCA 1974).

We also considered defendant’s second point on appeal that the sentences were improper and find no error. See Jenkins v. Wainwright, 322 So.2d 477 (Fla. 1975).

Affirmed.


text:
    The STATE of Florida, Appellant, v. David Lee MATHIS, Appellee.
    No. 76-384.
    District Court of Appeal of Florida, Third District.
    Jan. 18, 1977.
    Robert L. Shevin, Atty. Gen., Richard E. Gerstein, State’s Atty., and John H. Lipin-ski, Asst. State’s Atty., for appellant.
    Bennett Brummer, Public Defender and Beth C. Weitzner, Asst. Public Defender, for appellee.
    Before HENDRY, C. J., and BARKDULL and NATHAN, JJ.
   PER CURIAM.

Affirmed. Byrd v. State, 80 So.2d 694 (Fla.1955); Thomas v. State, 297 So.2d 850 (Fla. 4th D.C.A. 1974); Harding v. State, 301 So.2d 513 (Fla. 2nd D.C.A. 1974); Porchay v. State, 321 So.2d 439 (Fla. 1st D.C.A. 1975); Stanley v. State, 327 So.2d 243 (Fla. 2nd D.C.A. 1976).


text:
    Robert LYKINS, Appellant, v. The STATE of Florida, Appellee.
    No. 76-527.
    District Court of Appeal of Florida, Third District.
    Jan. 18, 1977.
    Bennett H. Brummer, Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Sidney M. Pertnoy, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., and BARKDULL and NATHAN, JJ.
   PER CURIAM.

Affirmed. Battle v. State, 338 So.2d 1107 (Fla.3rd D.C.A.1976); Harris v. State, 338 So.2d 880 (Fla.3rd D.C.A.1976).


text:
    Neil STUDNICK, Appellant, v. The STATE of Florida, Appellee.
    No. 76-872.
    District Court of Appeal of Florida, Third District.
    Jan. 18, 1977.
    Rehearing Denied Feb. 16, 1977.
    Michael H. Weisser, North Miami Beach, for appellant.
    Robert L. Shevin, Atty. Gen. and Arthur Joel Berger, Asst. Atty. Gen., for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Defendant, Neil Studnick, seeks reversal of a conviction for indirect criminal contempt for failure to obey a witness subpoena.

On April 20, 1976 an “insolvent” subpoena was issued to defendant-appellant, Neil Studnick, to appear on April 26, 1976 as a witness in the case of State v. Hernandez. Although the return on the subpoena specified that he was personally served, Studnick alleged he received it by mail. Upon receipt of the subpoena, Studnick immediately contacted his attorney who advised him not to appear due to the fact that there was no check with the subpoena and also it did not afford reasonable notice in reference to the time he (Studnick) had to appear. Studnick did not appear and subsequently a rule to show cause was issued as to why he should not be held in contempt for his failure to appear. A hearing on the rule to show cause was held on May 7,1976 and the trial judge then determined that Studnick was in indirect contempt of court because of his deliberate and unjustified failure to obey a subpoena duly served upon him. Thereupon, the judge sentenced him to 10 days in the county jail. Studnick appeals and contends that the judge erred in adjudicating him guilty of indirect contempt when he was not personally served with the subpoena, and on advice of counsel did not appear as a witness at the trial. We cannot agree.

If Studnick and/or his counsel believed that the subpoena or its service was defective in any manner, it was incumbent upon them to file a motion to quash and set aside the subpoena. Having failed to file such a motion, Studnick waived any defects and could not be heard on this point at a later date (i. e., either at the contempt hearing or on his appeal). See Coleman v. State, 134 Fla. 802, 184 Sol 334 (1938).

Nevertheless, the fact that Studnick relied upon the advice of his attorney should have been taken into consideration by the trial judge in mitigation of the punishment. See 17 C.J.S. Contempt § 38 (1963). We deem the sentence of 10 days in the , county jail to be too severe under the circumstances, and hereby reduce the sentence to one day in the county jail.

It is so ordered.


text:
    GENERAL JOHN J. PERSHING AUXILIARY NO. 6, DEPARTMENT OF FLORIDA, a non-profit corporation, Appellant, v. Frances C. MURPHY, and Lawrence J. Spiegel, Appellees.
    No. 76-1088.
    District Court of Appeal of Florida, Third District.
    Jan. 18, 1977.

      Hendricks & Hendricks, Miami, for appellant.
    Lawrence J. Spiegel and Richard E. Do-herty, Irma V. Hernandez, Hialeah, for ap-pellees.
    Before PEARSON, BARKDULL and NATHAN, JJ.
   PER CURIAM.

This is an interlocutory appeal by the defendant, General John J. Pershing Auxiliary No. 6, Department of Florida, from an adverse order declaring valid a mortgage and note given by defendant Auxiliary to its attorney, Lawrence J. Spiegel, appellee herein, for attorneys fees.

The issue in this cause is the validity of the note and mortgage given by the Auxiliary to attorney Spiegel, as security for the payment of his attorneys fees. No useful purpose would be served by setting out in detail the complex and lengthy facts involved in this case. Suffice it to say, there was a retainer agreement signed by the Auxiliary, stating that the Auxiliary retained Spiegel to prosecute a civil action for the purpose of transferring the property of General John J. Pershing Camp No. 10 of Miami, Florida, to the Auxiliary, and that the attorneys fee for such services will be 10% of the value of all real property owned by the Camp but not less than $7,500.00, plus costs which shall be payable in advance.

The record reflects that the Camp owned one piece of real property, and that the president of the Camp had already entered into a deposit receipt agreement with a purchaser for the sale of the property for $80,000.00. The Auxiliary and Spiegel had knowledge of this agreement. Based on this sale price, under the retainer agreement between Spiegel and the Auxiliary, his attorneys fee would be $8,000.00.

Subsequently, however, Attorney Spiegel again met with representatives of the Auxiliary, with reference to the matter of attorneys fees. At this meeting, agreement was reached that Spiegel was entitled to a fee of $12,000.00. This new fee amount was based on Spiegel’s representation that the property was worth $120,000.00. The Auxiliary gave Spiegel a promissory note in the amount of $12,000.00 plus interest, and secured payment of the note by a mortgage on the property.

The purchaser under the deposit receipt contract then filed an action for specific performance of that contract. The trial court found that she was entitled to specific performance and ordered that the property be conveyed to her for $80,000.00.

While we agree with the trial court that the note and mortgage given to secure Spiegel’s attorneys fees is valid under the facts in this case, the initial written retainer agreement was for 10% of the value of the property which would be $8,000.00. The subsequent agreement which brought about the execution of the note and mortgage by the Auxiliary was based on Spie-gel’s representation that the property was worth $120,000.00. We find that there was no consideration for the additional $4,000.00 attorneys fees. Spiegel was already obligated to serve the Auxiliary to the best of his ability as an attorney under the written retainer agreement for 10% of the value of the property. See Stitt v. Powell, 94 Fla. 550, 114 So. 375 (1927). Under these circumstances, the sale price of the property must be considered as the value of the property.

Therefore, the order granting attorneys fees in the amount of $12,000.00, is hereby modified and reduced to $8,000.00.

It is so ordered.

PEARSON, J., concurs in the decision and result only.

      . See Wharton v. Hammond, 20 Fla. 934 (1884).


text:
    ZOTO’S INTERNATIONAL, INC., Appellant, v. Ruth PINKUS and Jolan’s Beauty Salon, Inc., et al., Appellees.
    No. 76-1562.
    District Court of Appeal of Florida, Third District.
    Jan. 18, 1977.
    Rehearing Denied Feb. 3, 1977.
    Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O’Hara and Richard A. Sherman, Miami, for appellant.
    Preddy, Haddad, Kutner, Hardy & Josephs and Joel Kaplan, Feldman & Abram-son, Mitchell M. Goldman, Sam Daniels, Miami, for appellees.
    Before HENDRY, C. J., and HAVER-FIELD and NATHAN, JJ.
   PER CURIAM.

Affirmed. See Green v. Hood, 120 So.2d 223 (Fla.2d DCA 1960); Shurden v. Thomas, 134 So.2d 876 (Fla.1st DCA 1961) and Farish v. Lum’s, Inc., 267 So.2d 325 (Fla.1972); Acme Fast Freight, Inc. v. Bell, 318 So.2d 212 (Fla.3d DCA 1975); Scherer v. The Club, Inc., 328 So.2d 532 (Fla.3d DCA 1976).


author: SCHWARTZ, ALAN R., Associate Judge.

text:
    David G. MENDELSON, Appellant, v. Lavine MENDELSON, Appellee.
    No. 75-1107.
    District Court of Appeal of Florida, Second District.
    Jan. 19, 1977.

      William J. Terry, Tampa, for appellant.
    D. Russell Stahl, Tampa, for appellee.
   SCHWARTZ, ALAN R., Associate Judge.

As Churchill might have put it had he been considering the fascinating and monumental verities of Florida post-trial procedural law and practice rather than merely the prosaic question of Chinese politics, the result we reach in this case represents an incongruity arising out of an imbroglio and caused by an anomaly. The incongruity lies in the fact that the parties are required to undergo a new trial even though the plaintiff has now agreed to an order, secured by the defendant, and affirmed by us, which reduces his judgment as a condition of avoiding such a trial. The anomaly is the peculiarity of the Florida law which permits a full appeal from an essentially interlocutory order only in the case of an order granting a new trial. The imbroglio occurred in this manner:

In 1974 the present appellee, Lavine Men-delson, sued his brother, the appellant David G. Mendelson, for money damages based on two separate and complex claims of fraud arising out of joint business ventures in which they had been engaged. The jury trial in that case ended in a $68,500 verdict for the plaintiff, Lavine Mendelson. In ruling upon the defendant’s post-trial motions, the trial court, on September 4, 1974, ordered the plaintiff to file a $50,000 remittitur within ten days; the order provided that upon the plaintiff’s failure to do so, a “new trial will be 'granted.” The plaintiff did not file the remittitur. Before the ten day period had expired, however, he filed separate notices of appeal and of interlocutory appeal directed to the alternative remittitur-new trial order. It is clear that the only basis for invoking our jurisdiction at that stage was the consideration of the order on appeal as one actually granting the new trial. It is indeed upon that basis that we considered the merits of the appeal and the propriety of the order, a consideration which resulted in a per cu-riam affirmance of the order, on February 28, 1975, in Mendelson v. Mendelson, 309 So.2d 84 (Fla.2d DCA 1975).

Before the appellate mandate thus affirming the granting of the new trial was even issued by this court, much less received in the Circuit Court, the plaintiff, on March 13, 1975, filed in the trial court the $50,000 remittitur alternatively required in the post-trial order. He simultaneously moved for the entry of a final judgment in his favor in the amount of the jury verdict as reduced by the remittitur. Over the defendant’s opposition, the Circuit Court, on July 2,1975, of course well after the receipt of our mandate, granted the motion and entered judgment for the plaintiff for $18,-500.

On this appeal from the final judgment now entered against him, the defendant claims the right to the new trial on all issues he says was required by the original post-trial order of September 4, 1974 as affirmed and mandated by this court. We agree with this position.

The basis for this determination is, as what we have already said foreshadows, the conclusion that the plaintiff’s pursuit of his appeal from the September 4, 1974 order — one which could have been reviewed only if it were in fact one granting a new trial — constituted a binding and irretrievable election to forego the alternative of posting the remittitur and to accept the alternative requirement of a new trial. The Supreme Court clearly indicated this result in Sewell v. Sewell, 91 Fla. 982, 109 So. 98, 100 (1926):

“Where the party in whose favor a money verdict is rendered declined to enter a remittitur suggested by the trial court as an alternative to the granting of a motion for new trial, and motion for new trial is granted, the party in whose favor the verdict is rendered may, under the statutes, take a writ of error to the order granting a new trial; but if any of the grounds of the motion for new trial show material and prejudicial error in the finding either as to liability or as to the amount awarded, the order granting the motion for new trial should be affirmed, since if the error relates to liability a new trial was properly granted, and if the error relates only to the amount allowed, the party in whose favor the verdict was rendered, by refusing to enter the suggested remittitur, has lost the opportunity to cure the error in the verdict as indicated by the trial court.” [emphasis supplied]

The plaintiff’s election to treat the order as one granting a new trial, and thereby to waive the “right” to file a remittitur so as to avoid one, gained the plaintiff the concomitant right to appeal from that order, one which would not otherwise have existed. The application of familiar principles concerning the effect of an election of inconsistent remedies, Scott v. National Airlines, Inc., 150 So.2d 237 (Fla.1963); Coronet Kitchens, Inc. v. Mortgage Mart, Inc., 146 So.2d 768 (Fla.2d DCA 1962); Rivers Body Factory v. Lufkin Foundry & Machine Co., 146 So.2d 774 (Fla. 1st DCA 1962); 11 FlaJur., Election of Remedies, § 17, pp. 334-335, requires the holding that the plaintiff should not now, after his initial choice has proven unsuccessful, be given the right to make another.

This is particularly true since that initial choice has resulted, after our consideration of his appeal on its merits, in a mandate of this court affirming the order granting the new trial. No principle of appellate jurisdiction is more firmly established than the one which provides that a trial court utterly lacks the power to deviate from the terms of an appellate mandate. City of Miami Beach v. Arthree, Inc., 300 So.2d 65 (Fla.3rd DCA 1973); Schetter v. Schetter, 330 So.2d 150 (Fla.4th DCA 1976); Ohio Casualty Group v. Parrish, 338 So.2d 910 (Fla.3rd DCA 1976). Upon our affirmance of the order granting a new trial, the Circuit Court had no authority to do anything but to schedule one. We reverse the final judgment and direct that this now be done.

Reversed and remanded.

McNULTY, A. C. J., and GRIMES, J., concur.

      . Clement v. Aztec Sales, Inc., 297 So.2d 1 (Fla.1974) makes clear that the notice of “full” appeal, as from a final judgment, was the appropriate one.

      . We find without merit the additional contentions raised here by the defendant concerning adverse rulings in the first trial, including his alleged entitlement to a directed verdict as to one or both of the counts of the complaint against him. We note, however, that, under the then and present law, Osteen v. Seaboard C. L. R. Co., 283 So.2d 379 (Fla. 1st DCA 1973); Leonetti v. Boone, 74 So.2d 551 (Fla.1954), though not in the future, Bowen v. Willard, 340 So.2d 110 (Fla.Sup.Ct. opinion filed November 30, 1976), the defendant could not have secured review of these contentions in the first appeal by the plaintiff or until, as has now occurred, a final judgment was entered against him.

      . Clement v. Aztec Sales, Inc., supra, n. 1; Wackenhut Corp. v. Judges, 297 So.2d 300 (Fla.1974); Hoffman v. Jackson’s Minit Markets, Inc., 313 So.2d 722 (Fla.1975); Bowen v. Willard, supra, n. 2.

      . We attach no significance whatever to the facts that the notice of appeal was filed before the ten day remittitur period had expired and that the remittitur itself was filed before the Circuit Court had reacquired jurisdiction over the case through the receipt of our mandate. The notice of appeal treated the order appealed from as one granting a new trial; its having been filed before the effective date of that order did not affect the efficacy of the notice. Williams v. State, 324 So.2d 74 (Fla.1975); State v. Rawls, 326 So.2d 173 (Fla.1976).

      .Particularly in view of the Supreme Court’s determination as expressed in Bowen v. Willard, supra, n. 2, to streamline the appellate process in the review of orders of this kind, we see no reason why a plaintiff, faced with a typical remittitur-new trial order such as the one in this case, may not — if he does not in fact desire a new trial — file the remittitur under protest; appeal from the thus-reduced final judgment; and assign as error the order which required a reduction of his verdict in order to avoid a new trial. As the Fifth Circuit cases which endorse this procedure, Delta Engineering Corp. v. Scott, 322 F.2d 11, 15 (5 Cir. 1963); Steinberg v. Indemnity Ins. Co. of North America, 364 F.2d 266 (5 Cir. 1966); see Wiggs v. Courshon, 485 F.2d 1281 (5 Cir. 1973), indicate, there can be no viable claim that by filing a remittitur only because he was ordered to do so, the plaintiff would somehow voluntarily acquiesce in the reduction of this judgment or otherwise waive the right to claim error in that order. Compare cases collected at 2 Fla.Jur., Appeals, §§ 312-313, pp. 666-671.

      . This is the rule in the absence of permission from the appellate court to do otherwise, which was sought and obtained from the Supreme Court on petition for rehearing in a similar situation in Hardy v. Addison, 41 So.2d 149 (Fla.1949), but which was not sought in this case.


text:
    Samuel Price MOORE, Appellant, v. STATE of Florida, Appellee.
    No. 76-381.
    District Court of Appeal of Florida, Second District.
    Jan. 19, 1977.
    Rehearing Denied Feb. 8, 1977.
    Jack O. Johnson, Public Defender, and J. Peyton Quarles, Asst. Public Defender, Bar-tow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Moore was charged with robbery. He requested that the jury be instructed upon the lesser included offenses of assault with intent to commit robbery, grand larceny, assault with intent to commit grand larceny, petit larceny and assault with intent to commit petit larceny. The court gave instructions on robbery, grand larceny, petit larceny and assault. The jury found appellant guilty of robbery. Appellant alleges that the refusal to grant the requested instructions was reversible error.

On the authority of the supreme court’s decision in State v. Terry, 336 So.2d 65 (Fla.1976), we are compelled to agree. In Terry the court mandated strict compliance with Brown v. State, 206 So.2d 377 (Fla.1968). Instructions should be given on all Brown category III and IV offenses. These are lesser included offenses which are necessarily included in the offense charged and those which may be or may not be included in the offense charged, depending on the accusatory pleading and the evidence.

The assault charges are Brown category IV offenses. In this case the robbery information and evidence supported the assault instructions. The trial court thus committed reversible error in failing to give the requested instructions. Hammer v. State, 343 So.2d 856, (Fla. 1st DCA opinion filed December 9, 1976); Silvestri v. State, 332 So.2d 351 (Fla. 4th DCA 1976); Lightfoot v. State, 331 So.2d 388 (Fla. 2d DCA 1976); Young v. State, 330 So.2d 532 (Fla. 3d DCA 1976).

We have considered appellant’s other point on appeal and found it without merit.

Accordingly, this cause is reversed and remanded for a new trial.

BOARDMAN, C. J., and HOBSON and McNULTY, JJ., concur.

      . In Lomax v. State, 322 So.2d 650 (Fla. 2d DCA 1975), this court held that in light of the supreme court’s decision in State v. White, 324 So.2d 630 (Fla.1975), assault with intent to commit robbery was a category IV lesser included offense of robbery. Prior to its decision in State v. White, supra, the supreme court had noted that assault was a category III lesser included offense of robbery. Gilford v. State, 313 So.2d 729 (Fla.1975).


author: GRIMES, Judge.

text:
    David N. MARCUM, Appellant, v. STATE of Florida, Appellee.
    No. 76-869.
    District Court of Appeal of Florida, Second District.
    Jan. 19, 1977.
    Rehearing Denied Feb. 11, 1977.

      Jack 0. Johnson, Public Defender, and David S. Bergdoll, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

Appellant was charged with resisting arrest with violence and battery. Self-defense was an issue at the trial. The jury found appellant guilty of both charges. This is an appeal from the judgments of guilt and the sentences entered thereon.

Appellant was driving his car north on U. S. 19 in Pasco County. He was accompanied by his wife and children as they were on their way home from Christmas shopping. Appellant was in the righthand lane of a multiple lane highway. He started to pull out to pass a car in front of him at a time when Wayne Thomas was overtaking in the lefthand lane. As a result, Thomas had to suddenly brake his car to avoid an accident, and appellant pulled back into the righthand lane. From here on, the testimony was in substantial conflict.

Appellant says that Thomas started tailgating him, swerving and honking his horn. When he was unable to get out of his way, he pulled off the side of the highway. Thomas pulled off in front of him. Both drivers got out of their cars. Appellant testified that Thomas said, “Boy you did this to the wrong fella this time.” Thomas walked up to appellant and displayed his wallet and a badge indicating that he was a deputy sheriff and said that appellant was under arrest. Thomas was in civilian clothes and his wife was in the car. Referring to the badge, appellant said, “That is probably phony.” Thomas put his chest up against appellant and started yelling at him with his saliva striking appellant in the face. Appellant pushed Thomas back. At this point, Thomas began to curse him and swung his fist at appellant but missed. Appellant then hit the deputy and they began to wrestle. They finally became disengaged at the importunities of their wives. Another deputy subsequently came to the scene and transported appellant to the sheriff’s office. Appellant’s wife corroborated his version of the incident.

Deputy Thomas who was not on duty at the time said that when appellant swerved in front of him he did not seek to follow him or catch up with him. He said the two cars simply came abreast of each other about two miles up the road. At this point appellant said something and pointed to the side of the road, so both of them pulled off. After both drivers got out of their cars, Thomas identified himself with his badge. Appellant said, “That is a damn phony.” Appellant then pushed Thomas and then hit him. Thomas advised appellant that he was under arrest for assault and battery. The parties then scuffled, but Thomas denied throwing a punch at any time. Thomas then requested his wife to call the sheriff’s department. Thomas’ wife gave a similar version of the events.

Mrs. Blalock who was sitting in a car in her yard testified that Deputy Thomas’ vehicle cut off appellant’s vehicle causing him to pull off the road in front of her house. She heard Thomas state that he was a police officer and saw him take something out of his pocket. She said appellant then shoved the officer. At this point Thomas struck appellant with his fist, appellant hit back, and they began to wrestle on the ground. The deputy who was called to the scene testified that after he gave appellant his Miranda warnings appellant offered to fight him if he took the handcuffs off. He said appellant was very belligerent and cursed all the way to the station.

As part of his defense, appellant sought to have Kathy Gruber testify concerning Thomas’ general reputation for aggressiveness and violence on the issue of who was the initial aggressor. The court declined to permit the testimony on the ground that the appellant had failed to establish a proper predicate. We believe this was error.

In Cole v. State, 193 So.2d 47 (Fla. 1st DCA 1967), the court reversed a manslaughter conviction for the refusal to permit a witness to testify that “the decedent had a record for cuttings and was a violent man.” The trial judge had rejected the testimony because there was no proof that the defendant was aware of the decedent’s propensity. The district court of appeal observed that the ruling would have been correct if the purpose of the interrogation had been to explain the acts of the defendant as in the case of self-defense. However, the court held that the testimony should have been admitted in this case in order to “give meaning, significance, or point to the conduct of the deceased at the time of killing.” In a case involving the issue of who was the aggressor, the court held that it was irrelevant that the defendant was not aware of his adversary’s reputation. See also Fine v. State, 70 Fla. 412, 70 So. 379 (1915); Copeland v. State, 41 Fla. 320, 26 So. 319 (1899); Garner v. State, 28 Fla. 113, 9 So. 835 (1891); 1 Jones on Evidence, § 4.40 (6th ed. 1972); Annot., 1 A.L.R.3d 571, 601 (1965).

S. Gard, Florida Evidence (1967), states the principle as follows:

“RULE 96. Character Evidence in Assault and Homicide cases
The reputation or character of the victim in a criminal or civil case involving assault or homicide is not directly in issue, but evidence of his reputation or character may be circumstantially relevant on the issues of self-defense or who was the aggressor.”

A portion of the author’s comment which follows the statement of the rule says:

“On the issue of who was the aggressor, it is not the state of mind of the victim which counts. Therefore, it is not necessary in such cases to show that the defendant had knowledge of the propensities of the victim, because the evidence is relevant only on the question of who started the fight. . . . ”

The state argues that since appellant admits pushing the officer back before any blows were struck that there was no dispute concerning who was the aggressor. This begs the question, because according to appellant’s version (which is somewhat substantiated by Mrs. Blalock), Thomas’ conduct on the highway would have made him the initial aggressor. On this point, the state suggests that Deputy Thomas simply “pulled” appellant to the side of the road for his erratic driving behavior, but Thomas, himself, doesn’t even support this view. Thomas testified that he pulled off the road at appellant’s invitation and only sought to put appellant under arrest after the appellant struck him. While the question of who was the aggressor would not normally be an issue in the resisting arrest case, both the resisting arrest and the battery charges were tried together, and the facts of both were interwoven. Therefore, if the jury had believed that Thomas rather than the appellant was the aggressor, it may well have been that appellant would have been acquitted of both charges.

The evidence in this case was in sharp conflict. The testimony of appellant and his wife cannot be reconciled with that of Thomas and his wife. The testimony of the second deputy supports Thomas’ description of appellant’s hostile attitude. On the other hand, to the extent that she was able to observe what transpired, Mrs. Blalock’s testimony supports appellant. Therefore, Ms. Gruber’s testimony could have tipped the scale for appellant.

The judgments and sentences are reversed, and the cases are remanded for a new trial.

HOBSON, A. C. J., and McNULTY, J„ concur.

      . This incident occurred subsequent to the effective date of Sec. 776.051, Florida Statutes (1975). Therefore, appellant could be convicted of resisting arrest even if the arrest was illegal.


author: RAWLS, Judge.

text:
    Thomas B. RIGGS, Appellant, v. SALTMARSH, CLEAVELAND AND GUND, a partnership, Appellee.
    No. DD-313.
    District Court of Appeal of Florida, First District.
    Jan. 25, 1977.
    Roderic G. Magie, of Levin, Warfield, Middlebrooks, Graff, Mabie, Rosenbloum & Magie, Pensacola, for appellant.
    G. Miles Davis, of Beggs & Lane, Pensacola, for appellee.
   RAWLS, Judge.

Appellant Riggs, an accountant, does not want an accounting in a court of equity, but to the contrary seeks damages in a court of law arising out of an alleged six-year partnership with his former accounting firm. By this interlocutory appeal, Riggs seeks reversal of an order of the trial court striking his prayer for a jury trial.

Riggs’ second amended complaint alleged that on or about February 1, 1969, he became a general partner of defendant-appel-lee accounting firm, and that, as a general partner, he was entitled to a one-ninth interest in the assets of said firm. Riggs further alleged that on January 31,1975, he voluntarily terminated and retired from the partnership, and upon his retirement, he was entitled to his interest in the partnership consisting of his share of the profits and surplus over and above his draws as of January 31, 1975, for the preceding fiscal year, and the value of a one-ninth interest in the assets of the firm, plus interest. He demanded a jury trial.

Although Riggs attempted to frame his complaint as an action seeking damages, salient allegations reflect that it is a classical case of seeking to establish a fiduciary relationship, i. e., a partnership, and then an accounting in the event he is successful in the first instance. In Maiming v. Clark, in which a termination of an alleged partnership and accounting was sought, the Supreme Court stated:

“It is well settled that in suits for an accounting, where the answer does not admit the allegations of the complaint and there is no consent to entry of a decree, the proper practice is for the court to determine the initial question of plaintiff’s right to an accounting, and an accounting may then be decreed if the finding is in favor of plaintiff upon the preliminary issue.”

Dairy Queen v. Wood, cited by Riggs, is not applicable for there plaintiff sought to metamorphize a classic law action for breach of contract into an equitable action by incorporating equitable terms in his allegations. Assuming Riggs proves his allegation that he was a general partner, the unravelling of the partnership’s affairs spanning a period of five years to ascertain his claim of “one-ninth interest in the assets of the firm” will obviously entail an accounting between fiduciaries which involves extensive or complicated accounts. Matters of account are one of the ordinary sources of equity jurisdiction, and on its face this case falls squarely within the rule that although courts of law have jurisdiction to enforce contract demands which involve an accounting, equity will take cognizance of cases where the alleged contract demands extensive accounting.

AFFIRMED.

BOYER, C. J., and McCORD, J., concur.

      . Defendant-appellee answered denying the allegations in the complaint and counterclaimed that this is an action for an accounting.

      . Wood v. Brackett, 266 So.2d 398 (1 Fla.App. 1972).

      . Manning v. Clark, 56 So.2d 521 (Fla.1951).

      . Dairy Queen v. Wood, 369 U.S. 469, 8 L.Ed.2d 44, 82 S.Ct. 894 (1962).

      . Alter v. Finesmith, 214 So.2d 732 (3 Fla.App. 1968).

      . F.A. Chastain Construction, Inc. v. Pratt, 146 So.2d 910 (3 Fla.App. 1962).


author: SMITH, Judge.

text:
    The SCHOOL BOARD OF MARION COUNTY, Florida, Relator, v. FLORIDA PUBLIC EMPLOYEES RELATIONS COMMISSION et al., Respondents. The SCHOOL BOARD OF MARION COUNTY, Florida, Petitioner, v. DISTRICT COUNCIL #66, INTERNATIONAL BROTHERHOOD OF PAINTERS AND ALLIED TRADES and the Florida Public Employees Relations Commission, Respondents.
    Nos. DD-466, EE-24.
    District Court of Appeal of Florida, First District.
    Jan. 25, 1977.
    Rehearing Denied Feb. 17, 1977.

      John P. McKeever of Pattillo, Mackay & McKeever, P. A., Ocala, for petitioner and relator.
    Jack L. McLean, Jr., Acting Gen. Counsel, Gene L. Johnson, Tallahassee (No. DD-466), and William E. Powers, Jr., Gen. Counsel, Tallahassee (No. EE-24), for respondents.
   SMITH, Judge.

This case requires construction of the Public Employees Relations Act, Section 447.201 et seq., Florida Statutes (1975). Marion County School Board filed here a suggestion for writ of prohibition. We issued a rule nisi, to which respondent Florida Public Employees Relations Commission (PERC) has appropriately responded. The School Board also filed a petition for common law writ of certiorari raising the same issue. Because an adequate remedy is provided by interlocutory review under Section 120.68, Florida Statutes (Supp. 1976), we consider the petition for common law writ of certiorari as a petition for review under that section.

On December 9, 1975, PERC notified the School Board that respondent Union, District Council No. 66, International Brotherhood of Painters and Allied Trades, had petitioned PERC for recognition as collective bargaining agent for certain of the School Board’s employees. On December 19, 1975, the School Board responded to the petition by denying the union had ever requested the Board to recognize it as collective bargaining representative. The School Board moved PERC to dismiss the petition for certification on the ground the Union had neither requested recognition by the Board as required by Section 447.307(1), Florida Statutes, nor been refused recognition by the Board as required by Section 447.307(2), Florida Statutes. PERC denied the motion to dismiss and ordered an election among employees in a defined unit. We grant interlocutory review because, if the Board’s position is correct, there is a serious impediment to PERC’s jurisdiction which cannot be cured or wholly remedied by review of final agency action. Section 120.68, Florida Statutes (Supp. 1976). Contrast Panama City v. Florida Public Employees Relations Commission, 333 So.2d 470 (Fla. 1st DCA 1976); School Board of Sarasota County v. Florida Public Employees Relations Commission, 333 So.2d 95 (Fla. 2d DCA 1976).

Section 447.307, Florida Statutes (1975), provides in pertinent part as follows:

“(1) Any employee organization which is designated or selected by a majority of public employees in an appropriate unit as their representative for purposes of collective bargaining shall request recognition by the public employer. The public employer shall, if satisfied as to the majority status of the employee organization and the appropriateness of the proposed unit, recognize the employee organization as the collective bargaining representative of employees in the designated unit. Upon recognition by a public employer, the employee organization shall immediately petition the commission for certification. The commission shall review only the appropriateness of the unit proposed by the employee organization. If the unit is appropriate according to the criteria used in this part, the commission shall immediately certify the employee organization as the exclusive representative of all employees in the unit.
(2) If the public employer refuses to recognize the employee organization, the employee organization may file a petition with the commission for certification as the bargaining agent for a proposed bargaining unit. The petition shall be accompanied by dated statements signed by at least 30 percent of the employees in the proposed unit, indicating that such employees desire to be represented for purposes of collective bargaining by the petitioning employee organization. .” (emphasis added.)

The School Board contends PERC is without authority to entertain the Union’s petition for certification until the Union has requested voluntary recognition by the Board and the Board has refused it. PERC contends that because the Union did not claim to represent more than 50 percent of the employees in the proposed unit, but did show dated statements indicating representation of at least 30 percent, it was not required to request voluntary recognition by the Board before filing its petition with PERC.

The requirements of the statute are not clear. We note an apparent inconsistency between Sections 447.305(1) and 447.307(2), Florida Statutes (1975). Section 447.305(1) provides in pertinent part:

“Every employee organization, prior to requesting recognition by a public employer for purposes of collective bargaining, or prior to submitting a petition to the commission for purposes of requesting a representation election, shall adopt a constitution and bylaws and shall register with the commission. . . . ” (emphasis added.)

Section 447.305(1) appears to contemplate alternative methods for an employee organization to achieve certification as a bargaining representative: the employee organization may request recognition by the public employer, or it may petition PERC for a representation election. But Section 447.-307(2) suggests the legislature intended that an employee organization petition PERC for a representation election only when “the public employer refuses to recognize the employee organization.”

In the form considered but not enacted by the 1972 Legislature, House Bill 3314, a precursor of the 1974 Act, contemplated alternative procedures for recognition. It contained consistent provisions paralleling Sections 447.305(1) and 447.307(2) of the 1974 legislation. Thus, Section 2-447.008(1) of House Bill 3314 was identical to present Section 447.305(1) and Section 2-447.009(2) of the bill provided in part:

“(2)(a) Any employee organization may file a petition with the commission for certification as the bargaining agent for a proposed bargaining unit. The petition shall contain a sworn statement that thirty percent (30%) or more of the public employees in the proposed bargaining unit desire to be represented for purposes of collective bargaining by the employee organization filing the petition.”

Critics of House Bill 3314 suggested that the section should be amended to require employee organizations to request informal recognition from public employers before petitioning for a representation election. See McGuire, Public Employee Collective Bargaining in Florida — Past, Present and Future, 1 Florida State Law Review 26, 69 n. 214 (1973). A 1973 version of the proposed act provided, as does present Section 447.307(2), Florida Statutes (1975), that an employee organization may file a petition with PERC for certification “[i]f the public employer refuses to recognize the employee organization . . ..” Fla. H.B. 2028, § 1-447.009 (1973).

The legislative history does not, as the School Board suggests, indicate a final legislative purpose to require a denial of voluntary recognition by a public employer as a jurisdictional prerequisite to PERC’s entertaining a union petition for a representation election. The legislative history simply accounts for two opposing inferences now arising from Sections 447.305 and 447.-307(2).

The School Board construes Section 447.-307(2) as requiring an employee organization to request voluntary recognition as a prerequisite to petitioning PERC even when it cannot show 50 percent representation, but can show only 30 percent. But Section 447.307(1) entitles an employee organization to voluntary recognition only when it is designated or selected by a majority of public employees of the unit. Federal precedent suggests that it would be an unfair labor practice under Section 447.-501(l)(b), (e), Florida Statutes (1975), for a Florida public employer to recognize, even in good faith, a union which in fact has less than 50 percent support of unit employees. International Ladies’ Garment Workers’ Union v. N.L.R.B., 366 U.S. 731, 81 S.Ct. 1603, 6 L.Ed.2d 762 (1961). It would therefore be wholly futile and potentially an illegal inducement for a union with more than 30 percent but less than 50 percent employee support to request recognition by the public employer.

Other absurd results would follow a requirement that no employee organization may petition for or be granted a representation election absent a prior assertion to the employer that it enjoys majority support. When two or more employee organizations compete to become the bargaining agent, a great majority of employees may desire representation although no single organization can immediately claim majority support. Under the Board’s reasoning, no union would be eligible to commence PERC proceedings for an election until one of them can — presumably in good faith — claim to represent a majority of employees.

A statute should not be construed so as to bring unreasonable or absurd consequences when, considered as a whole, the statute is fairly subject to another construction which will aid in accomplishing the manifest intent and purposes designed. City of Miami v. Romfh, 66 Fla. 280, 63 So. 440 (1913); State ex rel. Florida Industrial Commission v. Willis, 124 So.2d 48 (Fla. 1st DC A 1960); Miller v. State, 297 So.2d 36 (Fla. 1st DCA 1974).

In searching for a policy to resolve the ambiguous legislation, the case law developed under the National Labor Relations Act is instructive. From its beginning the National Labor Relations Board required petitions for collective bargaining elections to allege the employer declines to recognize petitioner’s representative. In 1947 Congress revised the NLRA to incorporate that rule in the statute. Act of June 23,1947, c. 120, Title I, § 101, 61 Stat. 136 [29 U.S.C. § 159(c)(1)]. The NLRB has since held that, despite statutory language literally requiring an allegation that the employer declines to recognize the petitioner’s representative, petitions will not be dismissed simply because the petitioner has failed to request voluntary recognition. If, subsequent to the filing of the petition, the employer declines to recognize the petitioner’s representative, the NLRB considers the statutory requirements satisfied. Advance Pattern Company, 80 NLRB 29, 23 LRRM 1022 (1948), vacating 79 NLRB 209, 22 LRRM 1366 (1948); American Tobacco Company, Inc., 108 NLRB 1211 (1954); “M” System, Inc., 115 NLRB 1316 (1956).

Thus there is no federal policy requiring unions to seek voluntary recognition before petitioning for an election. Indeed, the NLRB experience suggests that overly strict interpretation of the certification procedure’s formal requirements may produce results contrary to the overall intent of the statute. See Advance Pattern Co., supra, 23 LRRM at 1024:

“Ample opportunity is afforded under our practice for parties to execute agreements during informal conferences, at which they are encouraged by the Board to solve their own problems. Abrupt departure from what has proved salutary for so many years can produce only the atmosphere of a tensely litigated law suit in which all sides will be quick to seize upon technical defects in pleadings to gain substantive victories. Such a step can hardly lead to fruitful collective bargaining.”

Therefore we decline to give Section 447.307(2) the literal construction urged by the Board. We hold that when an employee organization can show at least 30 percent representation in a proposed unit, it may file a petition with PERC for certification as the bargaining agent without first requesting recognition by the public employer.

The rule nisi in prohibition heretofore issued is DISCHARGED and the suggestion for writ of prohibition is DENIED. The prayer of the petition for writ of common law certiorari, considered as a petition for judicial review under Section 120.68, is DENIED.

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

      . . the section might properly require the employee organization first to demand informal recognition by the employer under Fla. H.R. 3314, § 2^47.009(1) (1972), before filing a petition under subsection 2. Only if the public employer refused to recognize the employee organization would it be permitted to file the petition for an election.”


text:
    Jack WILSON and Pat Dalton et al., Appellants, v. WEST FLAGLER ASSOCIATES, LTD., et al., Appellees.
    Nos. 75-1276, 75-1277, 75-1278 and 75-1784.
    District Court of Appeal of Florida, Third District.
    Jan. 25, 1977.
    Pettigrew, Arky, Freed, Stearns, Watson & Greer, Miami, for appellants.
    Patton, Kanner, Nadeau, Segal, Zeller & LaPorte, Sibley, Giblin, Levenson & Ward, Miami, for appellees.
    Before HAVERFIELD and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed without prejudice to the appellants to raise the matters reserved by the Supreme Court of Florida in Wilson v. Sandstrom, 317 So.2d 732 (Fla.1975), for the full hearing in the main proceeding in this cause.


text:
    Paul VAUGHAN, Appellant, v. ART CONSTRUCTION COMPANY, Appellee.
    No. 75-1813.
    District Court of Appeal of Florida, Third District.
    Jan. 25, 1977.
    Rehearing Denied Feb. 18, 1977.
    Horton, Perse & Ginsberg, Miami, for appellant.

      Adams, George, Lee & Schulte, Miami, for appellee.
    Before HENDRY, C. J., and HAVER-FIELD and NATHAN, JJ.
   PER CURIAM.

Plaintiff, Paul Vaughan, appeals an amended final judgment awarding defendant, Art Construction Company, $106,652.28 plus costs and attorney’s fees and foreclosing a mechanic’s lien on Vaughan’s property.

In August 1972 Paul Vaughan entered into a standard A.I.A. contract with Art Construction Company to build a single family residence in eight months for a total price of $775,500. The contract provided that no claim for extras or deletions would be honored unless evidenced by a written change order signed by the parties. The contract also provided that the architect could sign a change order pursuant to written authority from Vaughan. In September 1972 construction commenced and subsequently changes were made by the contractor at the direction and approval of Carson Bennett Wright, the supervising architect. These changes resulted in construction delays and additional costs. During the construction period, the contractor made 21 draw requests which were approved by Wright and promptly paid. In August 1974 the contractor submitted the last draw request along with a final affidavit. Despite Wright’s approval, Vaughan refused to make any further payments. In December 1974 Vaughan filed a complaint for breach of contract against Art Construction Company alleging that it had wrongfully and neglectfully failed to complete the construction in accordance with the time set forth in the contract resulting in financial loss. In March 1974 Art Construction filed a complaint to foreclose a mechanic’s lien for $85,000 in labor, material and services allegedly due from Vaughan. Vaughan answered and pled as an affirmative defense the failure to furnish him with an affidavit pursuant to Section 713.06(3)(d)(l), Florida Statutes (1975). The two causes were consolidated and tried non-jury. The trial judge found no wrongdoing on the part of Art Construction. Thereupon, the judge entered final judgment and an amended final judgment impressing a mechanic’s lien against Vaughan’s property and awarding Art Construction $106,652.28 (after deducting a credit allowance for Vaughan) plus interest and costs and following a separate hearing, awarded a $35,000 reasonable attorney’s fee pursuant to Section 713.29, Florida Statutes (1975).

Appellant Vaughan primarily argues that a mechanic’s lien should not have been impressed against his property because there was no proof that an affidavit had been served upon him pursuant to Section 713.-06(3)(d)(l), Florida Statutes (1975).

In addition to previously furnishing appellant with 21 progress payment affidavits pursuant to Section 713.06(3)(d)(l), Florida Statutes (1975), on August 30, 1974 appellee Art Construction executed an affidavit with a list of all debts outstanding to secure final payment from appellant. Therefore, the record is sufficient to support the conclusion that appellee complied with Section 713.06(3)(d)(l), Florida Statutes (1975). See R. F. Driggers Construction Co. v. Bagli, 313 So.2d 450 (Fla.2d DCA 1975). We also note that appellee after introduction of the August 30, 1974 affidavit at the trial, moved to amend the complaint to show that the required affidavit was furnished; however, the trial judge did not feel the amendment was necessary since appellee had proved it filed the affidavit. Thus, this point of appellant must fail.

Appellant also contests the award of the $35,000 attorney’s fee on the grounds that appellee is not entitled to such an award, and the amount of the fee is excessive. We cannot agree.

Appellee having prevailed on its action to impress a mechanic’s lien is entitled to an award of a reasonable attorney’s fee pursuant to Section 713.29, Florida Statutes (1975). As to the issue of the reasonableness of the amount awarded, expert testimony ranged from a low figure of $20,000-$25,000 to a high of $70,000. We find no abuse of discretion in the determination that $35,000 would be a reasonable fee.

We have also considered appellant’s remaining points on appeal, and conclude that no reversible error has been made to appear.

Affirmed.

      . Accompanied by progress payment affidavits.