source: Caselaw Access Project

author: ALDERMAN, Justice.

license: Public Domain

text:
    In the Interest of M. E., a child, Petitioner.
    No. 54333.
    Supreme Court of Florida.
    April 26, 1979.
    Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for petitioner.
    Jim Smith, Atty. Gen., and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for respondent.
   ALDERMAN, Justice.

We have for review by petition for writ of certiorari the decision of the Fourth District Court of Appeal in In the Interest of M. E, a child, 357 So.2d 1052 (Fla. 4th DCA 1978), which conflicts with the Second District Court of Appeal’s decision in Stewart v. State, 122 So.2d 34 (Fla. 2d DCA 1960). The Fourth District, in M. E., held that a manager of a store, even though he does not hold legal title to the premises, has a possessory property interest in the premises superior to that of a burglar and sufficient to support an allegation of ownership in the manager. The Second District in Stewart v. State, under materially similar facts, held that an allegation of ownership in a manager of a business premise is legally insufficient to support a charge of burglary. We resolve the conflict by rejecting the holding in Stewart v. State and approving the Fourth District’s conclusion that, for the purposes of charging burglary, ownership may be alleged in the manager of a store even though he does not hold legal title to the premises.

A petition seeking an adjudication of delinquency was filed against M.E., charging him with burglary. The charging document alleged that M.E. unlawfully entered a structure owned by one Wesley Phillips with intent to commit the offense of larceny, in violation of section 810.02(3), Florida Statutes (1975).

At trial, the state presented testimony that the premises entered was a grocery store managed and run by Wesley Phillips. The testimony, however, established that legal title to the store and its contents was held not by Wesley Phillips but by his father. When the state rested its case, M.E. moved to dismiss the petition on the ground of a fatal variance between the allegation of ownership of the store found in the petition and the proof of ownership offered by the state. This motion was denied, and M.E. thereafter was found guilty as charged and adjudicated delinquent.

On appeal, M.E. argued that the trial court erred in denying his motion to dismiss because the state failed to prove ownership of the premises as alleged in the petition. He contended that the petition should have charged the burglary of Wesley Phillips’ father’s store because it was the father who was the owner. The Fourth District rejected his argument and affirmed the adjudication of delinquency. The district court held that it is sufficient to charge and prove a greater possessory right than the accused’s; that it is not required that the legal titleholder of the property be pleaded and proved as owner; and that the petition in this case sufficiently identified the property and the proof of ownership was as alleged.

M.E. argues that alleging ownership in one other than the holder of legal title should be done only when the legal titleholder is not in possession and the alleged owner has possession and independent control of the premises and is not a mere servant of the legal titleholder. He contends that in the present case there was a failure to prove ownership in Wesley Phillips because there was no showing that he held legal title nor was there any evidence that he had possession and independent control over his father’s business at the time of the burglary so as to vest him with a pos-sessory right sufficient to constitute ownership. According to M.E., there was no showing that Wesley was more than a mere employee and that, even if Wesley was the manager, under the decision in Stewart v. State, he did not have sufficient possessory rights to support the state’s allegation of ownership. The state responds that there was no fatal variance because Wesley was not a mere employee but was the manager and agent in charge, and in this capacity he had possession and control of the store sufficient to support an allegation of ownership in him.

To support a conviction of burglary, the allegation of ownership of the building entered must be proven as laid since it is a material element of the crime. Smith v. State, 96 Fla. 30, 117 So. 377 (1928). Under various circumstances, however, the ownership may be laid equally well in one person or another. Addison v. State, 95 Fla. 737, 116 So. 629 (1928). The purposes of the requirement of an allegation of ownership in a burglary charge are to prove the premises were not the property of the accused, inasmuch as one cannot commit the offense of breaking and entering his own building, and to identify the offense sufficiently to protect the accused from a second prosecution for the same offense. Davis v. State, 51 Fla. 37, 40 So. 179 (1906).

Ownership for the purposes of charging burglary is not the same as ownership in property law since burglary is a disturbance to habitable security and not to the fee. Ownership means any possession which is rightful as against the burglar and is satisfied by proof of special or temporary ownership, possession, or control. Addision v. State.

The uncontradicted testimony established that Wesley Phillips ran the store; that he was the manager; that he was in charge; and that he was more than merely an employee or servant. Keeping in mind the two-fold purpose for the allegation and proof of ownership, we conclude that an allegation of ownership in a manager of a store, even though legal title is held by another, is legally sufficient because a manager always has lawful control over the premises superior to that of the burglar. The fact that the manager does not hold legal title to the premises is irrelevant in light of the lawful control he exercises over the premises. See Adirim v. State, 350 So.2d 1082 (Fla. 3d DCA 1977). Wesley Phillips, as manager, had a possessory right of interest in his father’s store which was greater than that of M.E., and proof of such in no way exposes M.E. to a second prosecution for the same offense.

By our decision, we expressly reject the decision in Stewart v. State to the extent that it holds that a manager who does not hold legal title cannot have a possessory interest superior to that of a burglar and sufficient to support an allegation of ownership. We also disapprove the language found in other decisions, such as in Anderson v. State, 356 So.2d 382, 385 (Fla. 3d DCA 1978), which states that work contact by a nontitle-holding manager does not provide a sufficient possessory interest in the manager to support an allegation of ownership of the premises.

Accordingly, the writ is discharged.

ENGLAND, C. J., and ADKINS, BOYD, OVERTON, SUNDBERG and HATCHETT, JJ., concur.


author: PER CURIAM.

text:
    Robert RUSSELL, Appellant, v. STATE of Florida, Appellee.
    No. 55051.
    Supreme Court of Florida.
    April 26, 1979.
    Richard L. Jorandby, Public Defender, and Rendell F. Brown, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

The order of the trial judge, denying the motion to dismiss on the grounds that section 812.014, Florida Statutes (1977), is unconstitutional, is affirmed. See State v. Allen, 362 So.2d 10 (Fla. 1978); State v. Lewis, 364 So.2d 1223 (Fla. 1978); State v. Belgrave, 364 So.2d 1225 (Fla. 1978); Dunnigan v. State, 364 So.2d 1217 (Fla. 1978). This case is transferred to the District Court of Appeal, Fourth District, for consideration of the remaining issues raised by appellant.

It is so ordered.

ENGLAND, C. J., and ADKINS, BOYD, OVERTON, SUNDBERG, HATCHETT and ALDERMAN, JJ., concur.


author: PER CURIAM. DAUKSCH, Judge,

text:
    James R. HAWTHORNE, Appellant, v. STATE of Florida, Appellee.
    No. 77-2733.
    District Court of Appeal of Florida, Fourth District.
    March 28, 1979.
    Rehearing Denied May 31, 1979.
    Victor Tobin, Ft. Lauderdale, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary E. Marsden, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed.

CROSS and LETTS, JJ., concur.

DAUKSCH, J., concurs specially.

DAUKSCH, Judge,

concurring specially:

While I concur in the result reached by the majority, I feel it necessary to comment about this appeal. Appellant has urged the trial court erred in sentencing him. He has not challenged, and cannot challenge the conviction because he was convicted after pleas of nolo contendere to the charges of violations of securities laws and did not reserve the right to appeal any of the court’s rulings made prior to the pleas.

In studying this case I was first struck by the allegation in appellant’s brief that he was sentenced to hard labor. If this was true we would correct the sentence or reverse for resentencing, of course. Lemley v. State, 362 So.2d 691 (Fla. 4th DCA 1978).

I have examined each of the sentences and in none of them was the appellant sentenced to hard labor. The sentencing documents are not unclear and nowhere are the words “hard labor” to be found.

Next appellant urges he was sentenced to pay a fine of $10,000.00 for all counts of which he was convicted and when he failed to pay the fine he was called back to court, over a year later, and resentenced to time in the State prison, four consecutive two year sentences. Of course, we would reverse a sentence which imposed a jail term for non-payment of a fine. Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971). If the appellant fell within the guidelines of Tate v. Short,, supra, and those following, such a sentence is denial of equal protection of law for indigent persons.

From the record it is evident the appellant entered his pleas in accordance with certain negotiations between the state, the judge, the appellant’s lawyer and the appellant. It is quite apparent that the appellant understood the negotiations and the final agreement and that the appellant was willing to accept the terms of the agreement. In exchange for the acceptance of the nolo contendere pleas and the forebearance from placing the appellant in prison it was agreed the appellant would pay a fine of $10,000.00. There has never been a contention on the part of the appellant, or anyone, that the appellant was at any relevant time indigent and unable to pay the fine because of inadequate funds, and more importantly, nothing in the record to support such a contention. There is no testimony from the appellant in that regard and his counsel, in his brief, said the failure to pay was not because of indigency, but because the appellant “was in fear of his life.” His lawyer at sentencing advised the court the appellant was willing to sell his $20,-000.00 trailer to pay the fine. His attempted explanation in regard to life-threatening circumstances were so vague and insubstantial to border upon ludicrous. The fact that the appellant left the jurisdiction and did not return until caught a year and half later, without an attempt to contact his lawyer or the judge should confirm anyone’s suspicion of his inadequate explanation. His counsel, at sentencing, recognized the court had the right to impose the fine as a condition of probation and failing in that to impose a sentence of incarceration. He argues that but for “technical errors” (his words) the procedure would be proper. I disagree there was sufficient technical error to constitute a due process violation. I will say, though, that the unusual procedure should not be established as a common practice, in my opinion.

The sentencing transcript reveals the court, the appellant’s attorney and the appellant in accord as follows:

THE COURT: I will do it in this instance, that the defendant will enter his plea; waive a presentence investigation; and the Court will adjudicate him guilty; and the Court will impose a fine, that the court has a right to vacate the sentence imposed; and the Court has a right to bring him back to the State of Florida and sentence him as though he were pleading to an open plea; and that would not preclude the possibility that the Court would impose a prison sentence upon the defendant.
APPELLANT’S ATTORNEY: The defendant is content. We made our negotiations. We will accept the Court’s condition, and we have proffered our no contest plea.
THE COURT: .... There being nothing sufficient said as to why the Court should not adjudicate and impose sentence, the Court having found you guilty of all eight Counts, does hereby find you guilty of Counts I, II, III, IV, V, VI, VII and VIII of Information 75-0903 CF, and nothing sufficient said why sentence should not be imposed, the Court herein imposes a fine of $1,250.00 as to Count I; $1,250.00 as to Count II; $1,250.00 as to Count III; $1,250.00 as to Count IV; $1,250.00 as to Count V; $1,250.00 as to Count VI; $1,250.00 as to Count VII; $1,250.00 as to Count VIII; the Court grants your attorney an extension of time of sixty days to pay this $10,000.00 fine with a submitted position that I want you to state on the record in the event that within sixty days the fine has not been paid, and you will be required at this time to sign extradition papers for this purpose, that you will allow yourself to be extradited from the State of Nevada, if that’s where you are, or whatever place you are at, and the Court will have a right to vacate this sentence being imposed; and the Court will have a right to impose a sentence suitable to the Court at that time, which might also include a period of incarceration.
Are you willing to accept under those negotiation?
THE DEFENDANT: Yes.
THE COURT: Before you sign that, let me state one thing for the record. Mr. Hawthorne, the sentence is imposed this morning, but the sentence is not formally recorded until the day the fine is paid and received by the Clerk of the Court.
THE DEFENDANT: Okay.
THE COURT: So until such time as it is recorded, it is not an official sentence, which means I will vacate what I ordered, but there will not be anything of record that will be appealable, and that’s my intent. Are you conceding to that?
THE DEFENDANT: Right.

While there is little question the procedure followed here was unusual and the condition placed upon deferral of the sentence is not common or even desirable there is no question it was to the greater benefit of the appellant, who now complains when the inevitable alternative was imposed, than it was to anyone else. In addition there was no question this appellant knew the consequences of his refusal to live up to his obligation. The only question I have, and the reason for this concurring opinion, is how it could be urged in good faith that the trial judge is at fault. Perhaps the question is answered when we consider the first point mentioned, the appellant was deceptive, to put it nicely, when he led us to believe he received a sentence at hard labor. Appellate courts, especially this one, have enough to do to keep up with the meritorious appeals.


text:
    FLORIDA DEPARTMENT OF COMMERCE, DIVISION OF ECONOMICAL DEVELOPMENT, Petitioner, v. Sally RAMSEY and Career Service Commission, Respondents.
    No. II-260.
    District Court of Appeal of Florida, First District.
    April 10, 1979.
    Rehearing Denied July 20, 1979.
    Kenneth H. Hart, Jr., Tallahassee, for petitioner.
    Clinton H. Coulter, Jr., Tallahassee, for respondents.
   PER CURIAM.

We have considered the respondents’ motions for attorney’s fees on appeal and for interest. The motions are hereby DENIED.

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


author: RYDER, Judge.

text:
    Charles ROBERTS, Appellant, v. STATE of Florida, Appellee.
    No. 78-1301.
    District Court of Appeal of Florida, Second District.
    April 11, 1979.
    Rehearing Denied May 8, 1979.

      Jack 0. Johnson, Public Defender, Bar-tow and Douglas A. Wallace, Asst. Public Defender, Bradenton, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Judge.

Charles Roberts appeals his conviction of the crime of issuing a worthless check contravening Section 832.05(2), Florida Statutes (1977). Mr. Roberts contends, inter alia, that the trial judge erred in refusing to permit the introduction of Roberts’ checkbook into evidence and that the evidence contained therein was basic to his defense in the cause.

Mr. Roberts was charged with having issued a worthless check in the amount of $168.00 to an employee on February 3,1978. The testimony introduced at trial indicated that the amount of the check in question and that of two other checks also written on February 3, 1978 together exceeded the balance in Mr. Roberts’ checking account. The two other checks reached the bank first and were honored, but the employee’s check was not and was returned because the account had been closed by the bank for insufficient funds.

Mr. Roberts’ defense was that he had entrusted his wife with $300.00 to deposit in his account and that she had failed to do so. In support of this defense, Mr. Roberts attempted to introduce his checkbook into evidence for the purpose of showing that he had entered the $300.00 as a deposit entry in the register. The prosecutor objected to the introduction of the checkbook because its existence had not been disclosed to the prosecution in response to the State’s demand for reciprocal discovery. Defense counsel explained that Mr. Roberts and his wife had separated and that she had retained possession of the checkbook. Mr. Roberts had not recovered possession of the book until the evening before trial. Defense counsel further averred he did not actually discover the entry until after the trial had begun.

The trial court rejected the explanation on the basis that the criminal discovery rules are a “two-edged sword”, and, without further inquiry, refused to admit the checkbook into evidence. Mr. Roberts was found guilty as charged and sentenced to five years imprisonment.

Under the circumstances, the trial court’s refusal to admit the checkbook as evidence was error. Where it is brought to the attention of the trial court that a party has failed to comply with the criminal rules on discovery, the trial court has the discretion to determine whether the noncompliance would result in harm to the other party, but this discretion can only be properly exercised after the court has made an adequate inquiry into the surrounding circumstances. Bradford v. State, 278 So.2d 624 (Fla.1973); Richardson v. State, 246 So.2d 771 (Fla.1971). This, the trial court failed to do.

A defendant facing a serious criminal charge should be able to produce evidence essential to his defense. See Wilson v. State, 220 So.2d 426 (Fla. 3d DCA 1969), cert. den., 225 So.2d 921 (Fla.1969). The failure of defense counsel to inform the prosecution of the existence of the checkbook was not an exercise of personal judgment by defense counsel nor a trial tactic. Even if the failure to notify was due to the negligence or inadvertence of defendant’s attorney, defendant should not be the one to suffer the consequences unless the lack of notice caused prejudice to the State.

Although the court did briefly hear Mr. Roberts’ explanation for his noncomplianee with the discovery rules, the record is devoid of any indication as to how the introduction of the checkbook would have prejudiced the State.

Accordingly, we REVERSE and REMAND the cause for a new trial.

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


author: CHARLES CARROLL, Associate Judge. SCHWARTZ, Judge

text:
    Dan Gonzales GELLERT, Appellant, v. EASTERN AIR LINES, INC., a Delaware Corporation, Appellee.
    No. 78-352.
    District Court of Appeal of Florida, Third District.
    April 17, 1979.
    Rehearing Denied June 1, 1979.

      Horton, Perse & Ginsberg and Arnold R. Ginsberg; Ellis Rubin, Miami, for appellant.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and James E. Tribble, Miami, for appellee.
    Before SCHWARTZ, J., and CHARLES CARROLL (Ret.), and EZELL, BOYCE F., Jr. (Ret.), Associate Judges.
   CHARLES CARROLL, Associate Judge.

This appeal is by Dan Gonzales Gellert, the plaintiff below, from a judgment for the defendant Eastern Airlines, Inc., entered upon granting defendant’s renewed motion for directed verdict, after a jury verdict had been rendered in favor of the plaintiff for substantial amounts of compensatory and punitive damages.

The principal question presented by this appeal is whether, under the law of this state as pronounced by the Supreme Court and district courts of appeal, one may recover damages for intentional infliction of severe mental distress which is without physical contact, and which is not incidental to or consequent upon any separate tort or other actionable wrong. The judgment appealed from was predicated on the trial court answering that question in the negative. We hold that in so ruling the trial court was correct, and affirm the judgment. The appellant. was a pilot employed by Eastern. Based on his experience with a certain type of passenger aircraft then in use, plaintiff regarded as a defect therein (bearing on safety) the fact that the “automatic hold” (an automatic control device designed to maintain a set altitude level) could become disengaged silently upon inadvertent application of pressure on the wheel control column. The action by Gellert against Eastern (as it went to the jury after the court had eliminated other counts), was for damages for mental distress occasioned by certain actions which allegedly were done intentionally in retaliation for Gel-lert’s contentions or criticisms of lack of safety in Eastern’s said equipment and its pilot training procedures.

The complaint presented four counts. The first count charged defamation against Eastern, for having published, to other employees and to the Airline Pilots Association, the report of the company’s doctor that it would not be safe for Gellert to fly aircraft. The second count charged Eastern breached plaintiff’s employment contract, by not keeping such medical report confidential, by improperly removing Gel-lert from flight duty, and by allegedly destroying a written bid Gellert had made for a change of flight duty.

Count III sought recovery of damages for intentional infliction of mental distress, charging that conduct of Eastern (citing the incident of grounding, an incident relating to a ticket or pass, and the “mysterious lost bid”) was intended to cause Gellert severe emotional distress, or was such that Eastern should have known it would have that effect. The fourth count sought a mandatory injunction to require Eastern to institute certain aircraft safety and training safeguards; and to enjoin Eastern from further acts of harassment.

On defendant’s motion to dismiss, the trial court dismissed, as not being within the court’s jurisdiction, the count for breach of contract and the count seeking by injunction to require Eastern to institute certain safety procedures. The count for defamation was eliminated at trial, by the granting of a motion of the defendant for a directed verdict on that count.

With regard to the count on intentional infliction of mental distress, at trial the defendant moved for directed verdict at the close of the plaintiff’s case and at the conclusion of the evidence. After verdict for the plaintiff, the defendant renewed the motion for directed verdict. The motion was granted, and judgment was then entered for the defendant, from which the plaintiff appealed.

Our disposition of this appeal does not require lengthy or detailed statement of the facts, or of the evidence adduced. In his experience as a first officer (co-pilot) on the L-1011 type passenger aircraft then in use by defendant, on two occasions the “altitude hold” became disengaged upon some contact being made with the control wheel column. Those occurrences took place prior to the time that a craft of that type crashed in the Everglades west of Miami while approaching Miami International Airport. By design the “altitude hold” was to disengage upon application of 15 to 20 pounds pressure on the control wheel column. When the “altitude hold” was “on”, that fact was shown by a lighted indicator on the control panel, called an annunciator. When the automatic hold became disengaged, the an-nunciator light on the panel would go out. Such an inadvertent disengagement of the altitude hold was experienced by Gellert on two occasions. Gellert had reported the first such incident to a superior flight officer. He wrote a letter to Colonel Borman (then a vice president in charge of operations) relating to the operation of the automatic pilot and automatic hold and its silent disengagement, Borman replied by letter that the matter was being analyzed.

Gellert sent letters to the chairman of the board of Eastern and to the president of Eastern, in which among other things he expressed desire to testify as Eastern’s representative at the hearing to be held by the National Transportation Safety Board regarding the Everglades crash. Instead, Eastern chose as its representative (witness) for that hearing the pilot who was its most experienced on that type craft. Gel-lert was granted leave to attend the hearing as a witness, without pay or expenses, and did attend and testify at the hearing.

After the NTSB made its findings, Gel-lert filed a petition with the Board for reconsideration of its findings in certain respects. Thereafter, he wrote lengthy letters to the FBI and to Colonel Borman, including in the latter a copy of the letter he had written to the FBI. The letters written by Gellert were referred to Eastern’s psychiatrist and neurologist, Dr. Watt, for initial evaluation. Upon reviewing them, Dr. Watt reported to Eastern by memorandum that the “construction, tone, intent and implications” of the letters indicated some psychiatric disorder. Thereupon Gellert was notified he was removed from flight duty (but would continue on flight pay status), and it was requested that he report to Eastern’s medical department for physical and psychological examination. As a result thereof, the doctor made a written report to Eastern in which the doctor expressed the view that he did not believe that it would be completely safe for Gellert to fly aircraft “at this time.” Based thereon Eastern’s medical director, Dr. Serrano, informed Gellert he would not be on flight status, and would be placed on sick leave pay; that the medical records would be made available for examination by Gel-lert’s physician; and that Gellert would be re-evaluated within a reasonable time. Some months later, upon a re-evaluation, Gellert was found then fit for and was returned to flight status. Without dissent, the medical witnesses, after reading the letters, found the actions of Eastern in this regard were justifiable. However, that matter was one of the three items which Gellert charged caused him extreme mental distress.

Another item was one relating to a hearing with resultant reprimand to Gellert for his misuse of a certain type of pass issued to the pilots. Concededly Gellert had altered the destination of the pass, and had used it for purposes other than or in addition to those which were prescribed for its use. That was considered by Gellert as harassment, and as a matter that caused him mental distress.

A third incident was with reference to a bid which Gellert had mailed in, for change of pilot duty, to serve as captain on flights from a New York base. His was one of some 2,000 duty transfer bids handled. In sending in the bid, the envelope he used gave a return address but not his name. After a delay of approximately 60 days a letter was sent to “Occupant” at the address, stating the bid form that was sent in had been bare of any information. Gellert contended that such report that the bid form he had sent was in blank was false, and that by reason of that incident he suffered intense mental distress.

An additional incident upon which Gellert relied as causing him mental distress was that, prior to the time he testified before tfye NTSB, a fellow pilot who was a good friend talked to him about his intentions to so testify, and attempted to persuade him not to testify, and told him that it would be against his best interests to do so. Gellert viewed that as action directed by Eastern, in an effort to prevent him from testifying at the hearing. That fact, if it was so, was not established. To the contrary, the pilot who so advised Gellert testified he had done so on his own.

A further matter advanced by the plaintiff, although not alleged in Count III dealing with mental distress, was that he noted what he assumed to be intentional tampering with planes he was piloting. One such occurrence consisted of the fact that on a plane he was piloting between Washington and New York one of the motors lost practically all of its oil. Another was that an altimeter was found to be registering improperly by hundreds of feet. An assumption that Eastern as a retaliatory act against the plaintiff would thus intentionally sabotage a plane in a manner that well might cause loss of the plane and its passengers, is staggering and unreal.

Of the above incidents, those consisting of his being grounded, reprimanded for misuse of the pass, and the manner of handling of his bid for duty change, were charged and classified by the plaintiff as constituting breaches of his employment contract (in the contract count in his complaint). Those incidents did not constitute independent torts, and were not such as would form basis for action other than as claimed breaches of contract or as basis for the claim of unfair labor practices. Recovery cannot be had for mental distress which may have been brought about by a breach of contract, unless such breach amounts to an independent, willful tort. Hazen v. Cobb, 96 Fla. 151, 117 So. 853, 856 (1928); Kirksey v. Jernigan, 45 So.2d 188, 189 (Fla.1950); Henry Morrison Flagler Museum v. Lee, 268 So.2d 434, 436-7 (Fla. 4th DCA 1972); DeMarco v. Publix Super Markets, Inc., 360 So.2d 134, 136 (Fla.3d DCA 1978).

As pointed out above, the trial court granted judgment for the defendant on the ground that under the law of Florida intentional infliction of mental distress is not actionable when not incident to or connected with an independent tort. Such has been the uniform holding, and this rule appears to be one that is founded on sound policy. Kirksey v. Jernigan, supra, 45 So.2d 188 (Fla.1950); Slocum v. Food Fair Stores of Florida, Inc., 100 So.2d 396 (Fla.1958); La Porte v. Associated Independents, Inc., 163 So.2d 267 (Fla.1964); Korbin v. Berlin, 177 So.2d 551 (Fla.3d DCA 1965); Sacco v. Eagle Finance Corporation of North Miami Beach, 234 So.2d 406 (Fla.3d DCA 1970); Henry Morrison Flagler Museum v. Lee, supra, 268 So.2d 434 (Fla.4th DCA 1972); Knowles Animal Hospital, Inc. v. Wills, 360 So.2d 37 (Fla.3d DCA 1978).

In Kirksey v. Jernigan, supra, the Supreme Court reversed the dismissal of a complaint for damages for mental pain and anguish suffered by the plaintiff as a result of conduct of the defendant which the Court regarded as a separate actionable wrong. Plaintiff’s child had been killed by an accident in the home, during the absence of the plaintiff, the mother. Prior to plaintiff’s return, the defendant undertaker had taken the body of the child without authority. Demands made by the plaintiff over several days for surrender of the child’s body were refused by the defendant, who embalmed the body without authority. The Court stated such action of the defendant constituted “an actionable wrong, for which substantial damages may be recovered.” Regarding the claim for damages for mental pain and anguish occasioned thereby, the court said:

“This court is committed to the rule, and we re-affirm it herein, that there can be no recovery for mental pain and anguish unconnected with physical injury in an action arising out of the negligent breach of a contract whereby simple negligence is involved. Dunahoo v. Bess, 146 Fla. 182, 200 So. 541, following International Ocean Telegraph Company v. Saunders, 32 Fla. 434, 14 So. 148, 21 L.R.A. 810.
“But we do not feel constrained to extend this rule to cases founded purely in tort, where the wrongful act is such as to reasonably imply malice, or where, from the entire want of care of attention to duty, or great indifference to the persons, property, or rights of others, such malice will be imputed as would justify the assessment of exemplary or punitive damages. See 15 Am.Jur., Damages, Sec. 179, page 596; Restatement of Torts, Section 47(b). The right to recover, in such cases, is especially appropriate to tortious interference with rights involving dead human bodies, where mental anguish to the surviving relatives is not only the natural and probable consequence of the character of wrong committed, but indeed is frequently the only injurious consequence to follow from it.”

In Slocum v. Food Fair Stores of Florida, Inc., supra, the plaintiffs sought damages for mental suffering and emotional distress (with ensuing aggravation of a heart condition), caused by an insult. The Supreme Court affirmed a dismissal of the complaint. The Court noted that the only direct injury was “mental or emotional with physical symptoms merely derivative therefrom”, and rejected an invitation presented on the appeal to hold that recovery could be had for such mental distress as a separate cause of action absent an independent cause of action in tort. In so deciding, the court held it did not regard the making of the insult as constituting an independent actionable tort or wrong such as would furnish basis for recovery of damages for the alleged mental distress. In Slocum the Court recognized Kirksey v. Jernigan, supra, as being a decision that “would apparently allow recovery for mental suffering, even absent physical consequences, inflicted in the course of intentional or malicious torts.”

In La Porte v. Associated Independents, Inc., supra, the plaintiff’s pet dog was killed by defendant’s employee by a wrongful malicious act committed within the sight of the plaintiff. In her ensuing action it was held that her mental distress occasioned thereby was a proper element of recoverable damages.

In Korbin v. Berlin, supra, this court reversed dismissal of a complaint seeking damages for the alleged intentional infliction of severe mental distress to a child which was brought about by a tortious act, a slander of the child’s mother.

In Sacco v. Eagle Finance Corporation of Miami Beach, supra, this court upheld, as proper, the dismissal of a count of a complaint which sought damages for mental disturbance caused by repeated dunning telephone calls for collection of a debt, in the absence of an independent intentional or malicious tort. In so holding, the court said:

“The first count of the plaintiffs’ complaint alleges that a cause of action exists in tort for intentional interference with mental tranquility. The defendant below moved to dismiss this count on the grounds that the general rule in Florida with regard to this particular tort is that intentional interference with emotional tranquility is not, in and of itself, an independent tort in Florida. See Slocum v. Food Fair Stores of Florida Inc., Fla. 1958,100 So.2d 396. We must agree with the trial court’s application of the doctrine in Slocum, supra, under the facts shown by this record. * * * The case which demonstrates the type of circumstance wherein this tort will lie, i. e., when it is coupled with some other intentional or malicious tort, occurred in Kirksey v. Jernigan, Fla. 1950, 45 So.2d 188. * * * "

In Knowles Animal Hospital, Inc., v. Wills, supra, recovery of damages was allowed to the owner of a dog, for mental pain and suffering of the plaintiffs which was occasioned by the independent tort of negligently leaving the dog lying on a heat pad for an extended period causing a severe burn of the dog which contributed to a need to destroy the dog.

In arguing that such damages should be recoverable without an independent tort, the appellant cites a dictum of the Supreme Court in the case of Gilliam v. Stewart, 291 So.2d 593 (Fla.1974). There, in quashing a decision of a district court of appeal which had undertaken to reject the impact rule, the Supreme Court stated that there may be circumstances under which recovery could be had for emotional or mental injuries, as when there has been physical impact “or when they are produced as a result of a deliberate and calculated act performed with the intention of producing such an injury by one knowing that such act would probably—and most likely—produce such an injury.”

We agree that there are circumstances where recovery can be had for intentionally caused severe mental distress, but under the decided cases the circumstances for which recovery for such is allowed are those where the mental injury was occasioned by or as a consequence of a separate tortious wrong.

Gilliam did not involve the question which is of concern here. That case involved the impact rule. The dictum in Gilliam did not refer to the need of a separate tort, or to the lack of need of a separate tort, as essential to recovery for intentional infliction of mental distress, and we do not observe in that opinion any holding or expression of intent by the Supreme Court to change the law on this subject from that which has been established and applied in prior decisions.

The import of the rule under discussion is that when recovery is allowed for mental distress intentionally caused by or incident to a separate actionable tort or as a reasonably foreseeable consequence of such tort, in practical effect the damages which are awarded for the mental distress are consequential damages for the independent tort. To permit recovery of such damages in absence of any connected, separate tor-tious conduct would be legally impractical, as recognized in the application of the “impact rule”, incident to which in Butchikas v. Travelers Indemnity Company, 343 So.2d 816, 819 (Fla.1977), the Court said: “It would be far-reaching indeed to expand that notion to permit financial recovery for all of the emotional and mental strains which modern society inflicts on an individual by reason of its inevitable clashes.”

Accordingly, for the reasons stated we hold the trial judge was eminently correct in concluding that recovery could not be had on the plaintiff’s claim of intentional infliction of severe mental distress in the absence of its having been incident to or predicated upon a separate actionable tor-tious wrong.

It would appear that if the plaintiff had any basis for relief it was for breach of contract or upon a claim of unfair labor practices. Whether the facts were such as to present any valid claims on those bases, as to which we express no opinion, is not material in this case.

The appellee, in addition to contending the judgment should be affirmed on the ground upon which it was entered by the trial judge, argues that the judgment is entitled to be affirmed on the separate ground, which was stated in its motion for directed verdict, that even if recovery could be had in absence of a supporting separate, independent tort, the evidence was insufficient to support a verdict for the plaintiff. In the judgment entered by the trial court that ground of plaintiff’s motion for directed verdict was denied. We cannot agree that in such circumstance the evidence would be sufficient to support the verdict. The appellee is privileged to argue the question of insufficiency of the evidence as the basis for supporting the judgment, without the need to have filed a cross-appeal. Cerniglia v. C. & D. Farms, Inc., 203 So.2d 1 (Fla.1968).

Under the decisions dealing with recovery for intentional infliction of severe mental distress, recovery therefor is proper only when the causatory conduct is deliberately done with intent to so harm the person, and is of such wanton and outrageous character as would constitute conduct that would warrant the allowance of punitive damages (Kirksey v. Jernigan, supra), and constitutes conduct that exceeds all bounds which could be tolerated by society, and is of a nature especially calculated to cause mental damage of a serious kind. Slocum v. Food Fair Stores of Florida, Inc., supra. The several incidents presented and relied on by the plaintiff as having caused him severe mental distress, in our view were not shown to be conduct equal to the flagrant character thereof which, as outlined above, is essential for recovery. The judgment is entitled to be affirmed on this alternative and separate ground. In re Estate of Yohn, 238 So.2d 290, 295 (Fla.1970); Firestone v. Firestone, 263 So.2d 223, 225 (Fla.1972); Deemer v. Hallett Pontiac, Inc., 288 So.2d 526, 528 (Fla.3d DCA 1974); Atlantic Plaza Partnership v. Daytona Sands, Inc., 357 So.2d 761 (Fla. 1st DCA 1978).

The judgment is affirmed.

SCHWARTZ, Judge

(specially concurring).

I agree with Judge Carroll’s alternative conclusion that the evidence was insufficient, as a matter of law, to establish the elements of the tort of intentional infliction of severe mental distress, as they have been formulated by the courts and authorities which have recognized that cause of action. In short, neither the actions of the defendant, see Slocum v. Food Fair Stores of Florida, Inc., 100 So.2d 396 (Fla.1958); Dowling v. Blue Cross of Florida, Inc., 338 So.2d 88 (Fla. 1st DCA 1976); Fletcher v. Florida Publishing Co., 319 So.2d 100 (Fla. 1st DCA 1975), separate holding quashed, 340 So.2d 914 (Fla.1976); Korbin v. Berlin, 177 So.2d 551 (Fla. 3d DCA 1965), cert. dism., 183 So.2d 835 (Fla.1966); Restatement of Torts, Second, § 46, comments d, g, i; nor the effect of those actions upon the mental well-being of the plaintiff, Harris v. Jones, 281 Md. 560, 380 A.2d 611 (1977); cf. Womack v. Eldridge, 215 Va. 338, 210 S.E.2d 145 (1974); Restatement of Torts, Second, § 46, comment j; were of the thoroughly horrendous character required to make out such a claim. Like the supreme court in Slocum, supra, I therefore do not and, were I writing for the court, would not reach the very thorny question of whether Florida does or would recognize the independent tort in a case to which the doctrine could properly be applied.

      . The report stated:
      “Because of his, if you will, monomania, I do not believe that this man would be completely safe to fly aircraft at this time. Men who are primarily preoccupied with such matters let everything else go and become completely consumed with their cause: Seeking justice for themselves. It seems amply clear to me that this 24-hour-a-day job is not compatible with clear headed, relaxed flying of an aircraft in conjunction with other crew members.”

      . I likewise find it unnecessary to decide the equally difficult question of whether the lower court lacked subject matter jurisdiction over the claim in question because of the alleged exclusive jurisdiction of the airline’s System Board of Adjustment established under § 184 of the Railway Labor Act. 45 U.S.C. §§ 151-164, 181-188 (1970). On very similar facts, however, a divided court so held in Magnuson v. Burlington Northern, Inc., 576 F.2d 1367 (9th Cir. 1978), cert. denied,-U.S.-, 99 S.Ct. 318, 58 L.Ed.2d 323 (1978).


text:
    Arthur H. RUDE, Petitioner, v. FLORIDA ELECTIONS COMMISSION, Respondent.
    No. 78-385.
    District Court of Appeal of Florida, Fourth District.
    April 18, 1979.
    Rehearing Denied May 31, 1979.
    Robert W. Stern, Miami, for petitioner.
    Stephen Marc Slepin of Slepin & Slepin, Tallahassee, for respondent.
   PER CURIAM.

The petitioner was found to have violated provisions of the Florida elections law, and civil fines were assessed against him. While we conclude that the findings of the Florida Elections Commission were without error, it is apparent that civil fines were imposed for violations that occurred prior to the time such authority was granted the Commission. Section 106.265, Florida Statutes (1977), authorizing the imposition of civil fines became effective on January 1, 1978, and most of petitioner’s violations occurred prior thereto and the fines levied on each such violation individually set forth.

Accordingly, the petition for writ of cer-tiorari is granted and the provisions of the order of January 24, 1978, assessing civil penalties for violations occurring prior to January 1, 1978, are quashed; and the Respondent, Florida Elections Commission, is hereby directed to conduct further proceedings in accord with the terms of this opinion.

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


author: PER CURIAM. BAKER, JOSEPH P., Associate Judge,

text:
    ARVIDA CORPORATION, a Delaware Corporation, Appellant, v. A. J. INDUSTRIES, INC., etc., et al., Appellees.
    No. 77-1077.
    District Court of Appeal of Florida, Fourth District.
    April 18, 1979.
    Carey M. Fischer of Ferrero, Middle-brooks & Strickland, Fort Lauderdale, for appellant.
    Martin J. Sperry of Carey, Dwyer, Cole, Selwood & Bernard, Fort Lauderdale, for appellees.
   PER CURIAM.

AFFIRMED.

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

BAKER, JOSEPH P., Associate Judge, concurs with opinion.

BAKER, JOSEPH P., Associate Judge,

concurring specially.

Call this the case of Arvida’s bathrooms. The plot is rather simple as far as whodunits go. Arvida’s complaint stated that after it had completed one of its real estate developments it discovered that the bathtubs and other customary items of bathroom furniture had become discolored, spotted, cracked and gaps appeared between the fixtures and the walls.

Arvida accused the corporations who had parts in either manufacturing or selling of the purchased bathroom necessities. In its complaint Arvida charged these corporations with responsibility for its mottled bathrooms by reason of breach of contract, negligence, strict liability as well as breaches of express and implied warranties under Florida’s version of the Uniform Commercial Code.

Arvida also suspected another, namely, Porcelite Services, which was the company hired by Arvida to repair the bathroom equippage, but Porcelite bungled the job, according to Arvida’s complaint. Porcelite was sued in four counts and moved to dismiss all of them. The two counts sounding in breach of contract and negligence were sustained by the trial court. But the two counts in which Arvida charged breach of implied and express warranties were dismissed for failing to state a cause of action, and from that dismissal this appeal was taken by Arvida.

Arvida argues that there is no important difference in commerce between a sale of goods and a sale of services, and, ergo, sales of services, such as repairs, should carry with them the same warranties as sales of goods. Arvida cites cases involving food services tonsorial treatment, sales of new condominiums (realty) and sales of electricity where the plaintiffs were damaged and received compensation in court actions based on implied warranties. Arvi-da says these recoveries where no “goods” were involved provide support by analogy for extending to repair work the same warranties that apply to sales of goods. (§ 672.314, Fla.Stat.)

One way to accomplish what Arvida wants is to see if anything that would pass for “goods” was involved in the transaction. Under careful enough examination some parts or materials can nearly always be found that were used in making repairs, and these parts or materials could be held to qualify that transaction as a “sale of goods”. This requires saying that the services are incidental to the goods used, regardless of whether the cost of the “goods” and the importance of the “goods” were small compared to the labor in making the repairs. This is hardly commendable detective work in uncovering the truly guilty party because it simply obliterates the distinction between sales of goods and sales of services.

No doubt seals, caulking, screws, nuts, bolts or pipe were used in its efforts at repair by Porcelite, but if there ever was a repair as distinct from a sale of goods, it would be repairs of the bathroom equipment that had been installed as fixtures in Arvida’s buildings when Porcelite came into the story. It does not make sense to say that Porcelite was hired to sell Arvida seals, caulking, screws and whatever else it used in attempting repairs.

A repairer such as Porcelite is not a seller, but it may be a “merchant” because “by [its] occupation [it] holds [itself] out as having knowledge or skill peculiar to the practices or goods involved in that transaction”. (§ 672.2 — 104, Fla.Stat.) It must be assumed for purposes of testing Arvida’s complaint that appellee held itself out as having special knowledge and skill in repairing bathrooms, or it wouldn’t have been hired by Arvida. Assuming that there was no sale of goods, then, what is the reluctance to impose Code warranties on repairmen either by application of the Code to all service that required use of some product, or by analogy to the Code in sales of services? To answer that question, it must first be observed that Arvida sued the repairman for breach of warranties because of the stricter nature of liability in warranty actions; that is, no proof of fault is required nor is a proof of a breach of a promise. Warranty actions under the Code are in the same family with strict tort liability cases.

To agree with Arvida and impose implied warranties akin to those for a sale of goods on Porcelite’s repair work would relieve Ar-vida of having to prove up its counts alleging negligence and breach of contract, and another consequence would be that all of the suspects, all of the defendants, would be held equally responsible regardless of their participation. Imposing the same liability on the manufacturer of a product and the repairman of that product is to impose the same liability for not only different, but unrelated activities. Furthermore, imposing the same liability on the manufacturer and the repairman ignores the wide difference in the compensation received by the manufacturer and retailer compared to the repairman and apparently would allow the same remedies and same recovery against both.

Assuming the complaint to be true, it is quite clear that it was the manufacturer “who done it” to Arivda in a special and primary sense. Unless the equipment was defective and the defects obvious, there would be no reason for Porcelite to be hired to make repairs. The pleadings negate any circumstances that would indicate that the bathroom equipment was to be rebuilt by Porcelite such that it would be described as renewed equipment after Porcelite finished with it.

The repairman and the manufacturer can’t both have created the same problem, and if they can’t be at fault in the same way for the wrong complained about by plaintiff, why should they be liable in the same way for the same amount? They shouldn’t, and the evidence against the repairman should relate to his negligence or breach of promise. Implied warranties are limited to sales of goods.

I concur with the trial judge’s assessment of “who done what” that led him to dismiss the counts alleging breach of implied and express warranties against Porcelite. And isn’t it nice to have a mystery story that not only comes to the right conclusion but the one that was expected?

      . Cliett v. Lauderdale Biltmore Corp., 39 So.2d 476 (Fla.1949).

      . Newmark v. Gimbel’s Inc., 102 N.J.Super. 279, 246 A.2d 11 (1968).

      . Gable v. Silver, 258 So.2d 11 (Fla. 4th DCA 1972) affm. 264 So.2d 418 (Fla.1972). The measure of damages in this case, which involved defective air conditioning that had become a fixture in the real estate, was the cost of the repairs.

      . Insurance Company of North America v. Radiant Electric Company, 55 Mich.App. 410, 222 N.W.2d 323 (1972) and Buckeye Union Fire Insurance Company v. Detroit Edison Company, 38 Mich.App. 325, 196 N.W.2d 316 (1972).

      .“Services” and “repairs” are not synonyms. Arvida’s claim against Procelite arose out of “repairs”. The allegations against the repair company are not argued by Arvida to come within § 672.314, Fla.Stat., because it was not alleged to be a “goods” transaction. Therefore, this case is one of “services” on the pleadings.
      Since “services” includes lawyering and doctoring and other professions, the introduction of implied warranties in service transactions would impose standards on human beings, rather than on their artifacts. Conceivably all sorts of personal performances for hire could be subjected to judicial testing as to whether they met the implied warranty of “merchantability” or whatever else it is that is impliedly warranted.

      . See note # 3, above.

      . As noted in the opinion Arvida included a count alleging “strict liability” against each of the other defendants. Presumably this “strict liability” theory is the one announced in West v. Caterpillar Tractor Company, Inc., 336 So.2d 80 (Fla.1976). Arvida and Porcelite Services were in privity, and “strict liability” was not necessary for Arvida to recover against Porcel-ite where "strict liability” may have been helpful against some of the corporations who manufactured the equipment.
      If implied warranties were judicially created for repairs or for services generally, a question remaining to be decided would be whether “strict liability” applies to the new implied warranties on services. That is not an easy question to answer.
      Limiting the class of claimants to those who are in privity with the one rendering the services may be justified where it is not in the manufacture and distribution of goods.

      .The damages sought by Arvida are for economic losses. However, property damages and personal injuries could be claimed on the theory of implied warranty advanced by Arvida against a repairman or other person rendering services.

      . A discussion of this question of implied warranties for services is to be found in J. White & R. Summers, Handbook of the Law Under the Uniform Commercial Code (1972), especially pertinent being §§ 9-6 through 9-8.


author: KEHOE, Judge.

text:
    SOUTHERN AMERICAN FIRE INSURANCE COMPANY, Appellant, v. Harold KRASNER and Pearl Krasner, his wife, and International Funding Corporation, Appellees. Harold KRASNER and Pearl Krasner, his wife, Appellants, v. INTERNATIONAL FUNDING CORPORATION, a Florida Corporation, Appellee. INTERNATIONAL FUNDING CORPORATION, Appellant, v. Harold and Pearl KRASNER and Southern American Fire Insurance Company, Appellees.
    Nos. 78-1214, 78-1215 and 78-1217.
    District Court of Appeal of Florida, Third District.
    April 24, 1979.
    Herbert B. Lebovitz, Hollywood, for Krasner, Norman L. Miley, Jr., Tallahassee, for Southern American Fire Ins. Co.
    Ritter & Ritter and John A. Ritter, Coral Gables, for International Funding Corp.
    Before PEARSON and KEHOE, JJ., and EZELL, BOYCE F., Jr., (Ret.) Associate Judge.
   KEHOE, Judge.

Harold and Pearl Krasner, and Southern American Fire Insurance Company, as first and second mortgagees, filed separate appeals from an order entered by the trial court denying- their motions for a deficiency judgment on certain foreclosed property. International Funding Corporation, the mortgagor, filed another appeal from the trial court’s order directing the disbursement of rental payments paid into the registry of the trial court by the tenants of the foreclosed property- These three appeals were consolidated for appellate purposes.

The primary point raised by the Krasners and Southern American relates to whether the trial court properly determined as a matter of law, without taking any testimony, that they were not entitled to a deficiency judgment. In our opinion, the trial court abused its discretion in ruling as it did because the record discloses no proven facts establishing any equitable considerations sufficient to warrant such a denial. See, e. g., Scheneman v. Barnett, 53 So.2d 641 (Fla.1951); Carlson v. Becker, 45 So.2d 116 (Fla.1950); Larsen v. Allocca, 187 So.2d 903 (Fla. 3d DCA 1966); and Nathanson v. Weston, 163 So.2d 41 (Fla. 3d DCA 1964). Accordingly, the order appealed by the Krasners and Southern American denying a deficiency judgment is reversed. We do not pass upon the question of their entitlement to such a judgment, but remand the cause for further proceedings so that the trial court may properly make such a determination.

International Funding Corporation contends that the trial court erred in disbursing the rent monies paid into the court’s registry. In our opinion, the trial court committed no reversible error in receiving and disbursing the rent monies as it did. See, e. g., Carolina Portland Cement Co. v. Baumgartner, 99 Fla. 987, 128 So. 241 (1930); and Cone-Otwell-Wilson Corp. v. Commodore’s Point Terminal Co., 94 Fla. 448, 114 So. 232 (1927). Accordingly, the trial court’s order directing the disbursement of the rental monies paid into the court’s registry is affirmed.

Affirmed in part; reversed in part and remanded.


text:
    Vestus Elbert PRUITT, Jr., Appellant, v. August Owens PRUITT, Appellee.
    No. 78-1548.
    District Court of Appeal of Florida, Third District.
    April 24, 1979.
    Rehearing Denied June 1, 1979.
    Coleman R. Rosenfield and Stuart Meisel, Ft. Lauderdale, L. J. Cushman, Miami, for appellant.

      Michael P. Maguire and Michael R. Friend, Miami, for appellee.
    Before PEARSON and KEHOE, JJ., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   KEHOE, Judge.

Appellant, movant below, brings this appeal from an order entered by the trial court, incorporating a report of the general master, denying jurisdiction to determine certain property rights after a divorce decree between the parties had been entered. The general master found that the property rights of the parties were determined as of the date of the final decree and that no post-decree order may now be entered affecting or determining the property rights of the parties. Under the facts of this cause as reflected by the record, we agree with this proposition, particularly as it relates to the parties’ Texas property. See, e. g., Finston v. Finston, 37 So.2d 423 (Fla.1948); Bowen v. Bowen, 347 So.2d 675 (Fla. 3d DCA 1977); and Sistrunk v. Sistrunk, 235 So.2d 53 (Fla. 4th DCA 1970). However, we believe that the trial court erred when it awarded attorney’s fees to appellee in regard to appellant’s motion. See, e. g., Patterson v. Patterson, 348 So.2d 592 (Fla. 1st DCA 1977); and Schwebkne v. Schwebkne, 347 So.2d 645 (Fla. 3d DCA 1977). Accordingly, the order appealed is affirmed, except, to the extent that it awarded attorney’s fees to appellee, it is reversed.

Affirmed in part, reversed in part.


author: DAUKSCH, Judge.

text:
    John M. STARLING, Appellant, v. Ester F. STARLING, Appellee.
    No. 78-1419.
    District Court of Appeal of Florida, Fourth District.
    April 25, 1979.
    Rehearing Denied June 4, 1979.
    Lealand L. Lovering of Lovering, Pound & Lober, P. A., Cocoa, for appellant.
    Janis Mary Halker, Winter Park, for ap-pellee.
   DAUKSCH, Judge.

In this appeal from a judgment in a dissolution action the court erred in awarding a special equity in the marital home to the appellee. Steinhauer v. Stein- hauer, 252 So.2d 825 (Fla. 4th DCA 1971). This case is not affected by the decision in Ball v. Ball, 335 So.2d 5 (Fla.1976) because the petition for dissolution was filed before the decision in Ball was final. The court also erred in awarding lump sum alimony to the appellee in view of the lack of ability of the husband to pay the amount awarded and further in view of the adequacy of the periodic alimony award. Gesford v. Gesford, 337 So.2d 1017 (Fla. 4th DCA 1976). In all other respects the judgment is affirmed. We note from pleadings filed in this court that the trial court has under consideration a petition for temporary relief pending appeal which was filed after the taking of this appeal as a petition for modification. One of the errors alleged in this appeal is that the periodic alimony award was excessive. We have given the order of the trial court the benefit of the presumption of correctness and cannot substitute our judgment for that of the trial court but upon remand the trial court is not precluded from considering any change in circumstances affecting the need for alimony and the ability to pay. That need or ability may or may not be affected by this opinion.

The judgment is affirmed in part and reversed in part and this cause remanded for further proceedings.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

MOORE, J., concurs.

CROSS, J., concurs only in conclusion.


text:
    INVESTORS TAX SHELTERED REAL ESTATE, LTD., etc., Appellant, v. LAVENTHOL, KREKSTEIN, HORWATH & HORWATH, Appellee.
    No. 78-95.
    District Court of Appeal of Florida, Third District.
    May 1, 1979.
    Rehearing Denied June 1, 1979.

      Bailey & Dawes and Guy B. Bailey, Jr., Miami, for appellant.
    Fowler, White, Burnett, Hurley, Banick & Knight and Richard S. Banick; Turner & Ashe, Miami, for appellee.
    Before HENDRY, HUBBART and KE-HOE, JJ.
   PER CURIAM.

In November of 1972, appellant, Investors Tax Sheltered Real Estate, Ltd. entered into a sale/leaseback transaction whereby it purchased an apartment complex in Dallas, Texas from U.S. Capital Corporation, a wholly-owned subsidiary of Hallmark Group Companies, Inc., a New York corporation; simultaneously, the complex was leased back to U.S. Capital to operate and to pay Investors in excess of $2.5 million, payable in monthly installments. Both U.S. Capital and its parent corporation gave their guaranties on the rental payments. Thereafter the lease aspect of the transaction went into default, and U.S. Capital became a defunct corporation and the Hallmark Group filed a petition in bankruptcy.

In 1974 Investors filed suit in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County against Laventhol, Krekstein, Horwath & Horwath, a national accounting firm, alleging that it had negligently audited, prepared and rendered its unqualified opinion as to Hallmark’s 1971 financial statements. The crucial allegations of the cause of action below were that the appellant was caused to rely upon said financial statement which allegedly failed to fully disclose that a certain line item entry (listed under “Assets” as “Notes receivable on mobile home park sales . . ”) was related to Hallmark’s lease obligations on a series of sale/leaseback transactions that were, in reality, merely conditional contractual rights predicated upon a number of critical variables and conditions precedent and, thus, should not have been listed as it was. Appellant asserted, intra alia, that Laventhol performed the Hallmark audit inadequately, and that its methods in preparing the financial statements were in contravention of the dictates of generally accepted accounting principles (GAAP) and generally accepted auditing standards (GAAS) of the accounting profession.

The two issues raised by this appeal are: (1) whether the trial court erred in directing a verdict for defendant/appellee at the close of Investor’s liability evidence, and (2) whether privity of contract is required in a negligence action such as this under Florida law. In order for a trial judge to properly grant a directed verdict it must be shown that there has been no invalid encroachment upon the right of a litigant to a jury trial, and the authority to direct a verdict should be exercised with great caution and only when, as a matter of law, no proper view of the evidence and testimony could sustain a verdict in favor of the non-moving party. Mathis v. Lambert, 274 So.2d 601 (Fla.3d DCA1973) and Sun Life Ins. Co. v. Evans, 340 So.2d 957 (Fla.3d DCA1976).

The court should direct a verdict if the evidence falls short of the minimum on which a jury could lawfully find for a party. Buhler v. Travelers Indemnity Company, 174 So.2d 59 (Fla.3d DCA1965). Hence, the trial court must place its own valuation on the evidence to determine the question of its minimum sufficiency. Traurig v. Spear, 102 So.2d 165 (Fla.3d DCA1958) and Alterman Transport Lines, Inc. v. McCahon, 168 So.2d 707 (Fla.3d DCA1964).

On reviewing such a judgment, the court is required to observe the settled rule that we should consider the testimony in the light most favorable to the plaintiff, disregarding conflicts in the evidence and indulging in the plaintiff’s favor every reasonable inference therefrom. Guerriero v. Adams, 190 So.2d 432 (Fla.3d DCA1966); Wilson v. Bailey-Lewis-Williams, Inc., 194 So.2d 293 (Fla.3d DCA1967); Mathis v. Lambert, supra; Kilburn v. Davenport, 286 So.2d 241 (Fla.3d DCA1973); and Lovings v. Seaboard Coastline Railroad Company, 340 So.2d 1279 (Fla.2d DCA1977).

A review of the voluminous record reveals that the evidence shows that the financial statement does, in fact, disclose the relationship between the notes receivable asset entry and Hallmark’s sale/leaseback transactions; the customary explanatory notes following the consolidated statements puts the reader on notice as to the origin and nature of the asset entry as it relates to the lease obligations to purchasers. Ironically the testimony of one of the appellant’s expert witnesses was that a financial statement should be read as a whole, including the notes thereto, and “anyone who took the trouble to read the financial statement should be prepared to put the pieces together.” The same expert testified that: (a) the standard user would be able to relate the instant notes to the entry, (b) the subject financial statement was acceptable to the Securities and Exchange Commission, and (c) even though he personally might have explained the notes in a different fashion, he did have the opinion that the disclosure was adequate. Other expert witness testimony presented by appellant was apparently structured on inferences and, in sum, constituted insufficient evidence to establish a prima facie case of negligence.

Additional reasoning for affirmance of the trial court order in this cause is based upon the state of the law in Florida pertaining to liability of an accountant to a third party not in privity of contract with the accountant. In Investment Corp. of Florida v. Buchman, 208 So.2d 291 (Fla.2d DCA1968), cert. dismissed, 216 So.2d 748 (Fla.1968), the court rejected the contention that an accountant could be held liable for negligence as one who by profession supplies information for the guidance of others in business transactions, determining that in the absence of privity of contract there could be no right of recovery under a negligence theory. In Canaveral Capital Corp. v. Bruce, 214 So.2d 505 (Fla.3d DCA1968), this court stated that before an accountant would be liable to a third party with whom the accountant was not in privity for loss allegedly sustained arising out of reliance upon statements prepared by the accountant, there would have to be a showing that the accountant had been guilty of gross negligence, or, having knowledge that the third party intended to rely upon the statements prepared by him, was guilty of fraud in connection therewith. See also, Dubbin v. Touche Ross & Co., 324 So.2d 128 (Fla.3d DCA1975) and Mulligan v. Wallace, 349 So.2d 745 (Fla.3d DCA1977). See generally, 46 A.L.R.3d 979, Liability of Public Accountant to Third Parties.

We have carefully considered the record and points on appeal and have concluded that the directed verdict was legally justified in light of the paucity and insufficiency of evidence presented by the appellant/plaintiff.

No reversible error has been demonstrated, accordingly the judgment appealed is affirmed.

Affirmed.

      . Investors had sued both the parent and the subsidiary in a Texas state court. Judgment against them was entered in the amount of $2,289,204. However, the judgment was uncol-lectible.

      . Now known as Laventhol and Horwath.

      . The instant financial statement was part of Hallmark’s 1971 annual report which includes the customary president’s letter to shareholders, a consolidated balance sheet, a consolidated statement of income, a consolidated statement of changes in shareholders’ equity, and the explanatory notes to the consolidated financial statements.

      .Hallmark’s principal subsidiary, Pacific Western Mobile Homes, Inc., was the entity which had entered into the eight mobile home park sale/leaseback transactions. Hallmark’s largest asset was the notes receivable on those transactions.

      . “Direct” users include investors, present or prospective, creditors, present or prospective, tax authorities; “indirect” includes financial investment companies, mortgage companies, and trade unions.

      . The court’s opinion includes reference to and strong reliance upon the reasoning used by the courts in Ultramares Corp. v. Touche Ross & Co. v. Ernst, 278 N.Y. 104, 15 N.E.2d 416 (1938).

      .None of the four cited cases expands on the rationale and reasoning of prior case law in Florida; rather the cases are the most recent progeny of a line of cases originating with Ultramares, supra.


text:
    Rafael FERNANDEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1544.
    District Court of Appeal of Florida, Third District.
    May 1, 1979.
    Rehearing Denied June 1, 1979.
    Stone, Sostchin & Gonzalez and Gisela Cardonne, Miami, for appellant.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before PEARSON and KEHOE, JJ. and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   PER CURIAM.

Appellant was found guilty by a jury of conspiracy to commit a felony and grand larceny by staging an automobile accident after which the participants made planned and fraudulent claims. On this appeal, appellant’s main thrust is that the court should have granted his motion for severance because of the holding of the Supreme Court of the United States in Bruton v. U. S., 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Our review of the record in the light of this argument shows that no prejudice resulted to the appellant. See Johnson v. State, 355 So.2d 143 (Fla. 3d DCA 1978); and Ballard v. State, 323 So.2d 297 (Fla. 3d DCA 1975).

Appellant’s point directed to the introduction of the accident report was not error inasmuch as Section 316.066(4), Florida Statutes (1977), is not applicable to a staged collision which was not, under any consideration, an accident. Even if the report should be determined to have been inadmissible, we would hold that such an error was harmless in the present instance where there was no prejudice to the appellant and there was overwhelming evidence of guilt. Cf. McKissack v. State, 243 So.2d 14 (Fla. 3d DCA 1971).

The other points presented by the appellant have been examined in the light of the briefs and oral argument and have been found not to present reversible error.

Affirmed.


text:
    Barbara SOCHANCHAK et al., Appellants, v. ELI LILLY & CO. et al., Appellees.
    No. 78-1851.
    District Court of Appeal of Florida, Third District.
    May 1, 1979.
    Rehearing Denied June 1, 1979.
    Lida & Krasnow, Miami, for appellants.
    Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O’Hara and Richard A. Sherman; Lane, Mitchell & Harris, Miami, for appellees.
    Before HENDRY, HUBBART and KE-HOE, JJ.
   PER CURIAM.

Affirmed. Diamond v. E. R. Squibb & Sons, Inc., 366 So.2d 1221 (Fla. 3d DCA 1979).


text:
    Robert WEINSTEIN, Appellant, v. Carol WEINSTEIN, Appellee.
    Nos. 78-2350, 79-35 and 79-78.
    District Court of Appeal of Florida, Third District.
    May 1, 1979.
    Rehearing Denied June 1, 1979.
    Nachwaiter, Christie & Falk and Jay M. Levy, Miami, for appellant.
    Shorenstein & Lewis and Marvin W. Lewis, Miami Beach, for appellee.
    Before HENDRY, HUBBART and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed. § 48.193(3), Fla.Stat. (1977).


author: DANAHY, Judge.

text:
    Matthew RISCILE, Appellant, v. Lois RISCILE, Appellee.
    No. 78-1321.
    District Court of Appeal of Florida, Second District.
    May 2, 1979.

      Harvey Schonbrun, Tampa, for appellant.
    Patricia A. Butler of Law Offices of Charles F. Mixon, Jr., Tampa, for appellee.
   DANAHY, Judge.

The trial judge in this case awarded to the wife as “permanent alimony” the husband’s one-half interest in a liquor license. We find error in that rather unusual award, and reverse.

The marriage dissolved in these proceedings was of six years duration. The wife is 63 years of age and the husband is 74. Both are in poor health and unable to work. Their financial resources are limited.

The wife receives $104.60 per month in social security benefits and owns the home in which she lives. She also owns a savings account with a balance of approximately $4,000, an automobile, and some diamond jewelry.

The husband receives $259.60 per month from social security. He and his sister own a commercial property on Buffalo Avenue in Tampa which they inherited from their parents. They operate the Phoenix Bar and Lounge on this property, rent part of it to Clara’s Beauty Parlor, and allow a former wife of the husband to occupy a party of the property as her living quarters. The husband and his sister together own the liquor license under which the bar and lounge business is conducted.

The husband resides with his sister next door to the Phoenix Bar and Lounge. He testified that this business currently produces a net profit of approximately $60 per week and that he gives his share to his sister, in return for which she provides him with free room and board. His only expenses are for doctors’ care and medicine, but he is required to pay $50 per week in alimony to his former wife. The husband and his sister receive a modest amount of monthly rental from Clara’s Beauty Parlor, but these funds are used to pay the annual real estate taxes on their property.

The husband clearly is dependent upon his sister to meet his personal needs and, in turn, his arrangement with her is dependent upon the economic base afforded by their jointly owned and inherited property. The alimony award in this case, therefore, would deprive the husband of an asset of the business which forms part of his only resource for living. On the other hand, that asset would be of questionable value to the wife other than as an economic weapon against the husband. We hold that such an award is an abuse of discretion.

At the threshold, we question whether a liquor license is an appropriate subject of a lump sum alimony award. By statute a liquor license is not transferable except to a bona fide purchaser of the business which the licensee is licensed to conduct. Section 561.32(1), Florida Statutes (1977). It seems to us that a transfer attempted outside the statute would stand on doubtful footing. But see Wright v. Cade, 349 So.2d 833 (Fla. 1st DCA 1977). For present purposes, however, we need not address this question. We find the award deficient in other respects.

The ultimate goal of an award of alimony is to do equity and justice between the parties. Section 61.08, Florida Statutes (1977). The yardstick to be used in measuring the propriety of a lump sum alimony award was set forth by our supreme court in Yandell v. Yandell, 39 So.2d 554 (Fla.1949). The alimony statute then in effect declared that an alimony award must be “fit, equitable and just.” The supreme court stated in Yandell that a lump sum award of alimony should never be made unless the provider (the husband in that case) is in a financial position to make payment of the award without endangering or actually impairing his or her economic status. The court held that a lump sum award is not fit, equitable and just unless the provider is in a position to make payment of the award over and above the requirements attendant upon the maintenance of his or her business or employment, or the preservation of his or her professional activities.

Furthermore, the court made it clear in Yandell that even where a provider is in a financial position to make payment of a lump sum alimony award, such an award should not be made unless there are special circumstances which require it or make it advisable. Florida courts have found such circumstances to exist only when there is a reasonable purpose to be served by a lump sum alimony award, so that such an award is advantageous to both parties. E. g., Calligarich v. Calligarich, 256 So.2d 60 (Fla. 4th DCA 1971) (rehabilitation); Bunn v. Bunn, 311 So.2d 387 (Fla. 4th DCA 1975) (security); Storer v. Storer, 353 So.2d 152 (Fla. 3d DCA 1977) (economic separation).

In this case the wife clearly is in economic need, but we see no purpose to be served in attempting to meet that need by awarding her one of the husband’s business assets as lump sum alimony in lieu of periodic alimony. We find no special circumstances such as those envisioned by our supreme court in the Yandell case.

Beyond that, we believe that the award in this case violates the admonition in Yan-dell that a lump sum award must not endanger or impair a husband’s economic status. The award in this case clearly would do just that, for it would imperil the husband’s only economic base. That result is simply not consonant with the goal of achieving equity and justice between the parties. Cf. McGaughy v. MeGaughy, 410 Ill. 596, 102 N.E.2d 806 (1951) (where the husband’s only business is a farm conducted on 400 acres of land inherited from his parents and the entire acreage should be farmed as one unit, an award of one-half of the acreage to his wife as lump sum alimony would destroy the husband’s means of livelihood and does not represent a fair and equitable determination of the rights of the parties).

We reverse that part of the final judgment which awards the wife as permanent alimony the husband’s one-half interest in the liquor license pertaining to the Phoenix Bar and Lounge, and remand with directions that the trial judge conduct a rehearing on the matter of alimony in this case, receiving such additional evidence as the parties may offer, and make such an award of periodic alimony, if any, as he shall in his discretion determine to be appropriate.

Reversed and remanded.

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

      . The award of alimony in this case was made prior to the effective date of § 61.08, Fla. Stat. (Supp. 1978). That statute, however, also provides that the goal of an alimony award is to do equity and justice between the parties.


text:
    Carl Lynn MARTIN, Appellant, v. STATE of Florida, Appellee.
    No. 78-1370.
    District Court of Appeal of Florida, Second District.
    May 2, 1979.
    Jack 0. Johnson, Public Defender, Bar-tow, and William Murphy, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed. See Harris v. State, 370 So.2d 74 (Fla. 2d DCA, 1979); Martin v. State, 367 So.2d 1119 (Fla. 1st DCA 1979).

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


text:
    Frederick GRONEAU and Daniel Mazek, Appellants, v. STATE of Florida, Appellee.
    No. 78-1605.
    District Court of Appeal of Florida, Second District.
    May 2, 1979.
    Jack O. Johnson, Public Defender, and James R. Wulchak, Asst. Public Defender, Bartow, for appellants.
    Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

After reviewing the briefs and record on appeal, we find that appellants have failed to demonstrate any reversible error. Therefore, the judgments and sentences appealed are affirmed.

One point raised by appellants does merit discussion, however. Appellants contend that the trial judge erred in failing to specify on their sentences the amount of credit due to them for time spent in the county jail awaiting trial, as required by Section 921.161, Florida Statutes (1977). The judgment and sentence forms do indeed fail to provide for credit for time served. However, the record does not indicate that appellants were incarcerated prior to trial. Appellants therefore have not demonstrated that the failure to specify credit for time served was error.

Accordingly, we affirm without prejudice for appellants to raise this issue pursuant to Fla.R.Crim.P. 3.850 with sufficient factual allegations to show that they are entitled to credit for time served under Section 921.-161.

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


text:
    Calvin HARDY, Appellant, v. STATE of Florida, Appellee.
    No. 78-1755.
    District Court of Appeal of Florida, Second District.
    May 2, 1979.

      Jack 0. Johnson, Public Defender, Paul C. Helm, Asst. Public Defender, and Brent A. Woolbright, Legal Intern, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm the trial court’s acceptance of appellant’s plea of nolo contendere to the felony offense of dealing in stolen property, proscribed by Section 812.019(1), Florida Statutes (1977). However, we remand for correction of the order placing appellant on probation.

Appellant was placed on unsupervised probation. Section 948.01(3), Florida Statutes (1977) provides that a defendant placed on probation for a felony shall be under the supervision of the Department of Offender Rehabilitation. This statutory requirement is mandatory. State v. Wilcox, 351 So.2d 89 (Fla.2d DCA 1977).

The order of probation is therefore vacated and the cause remanded for the entry of a new order consistent with this opinion.

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


author: OTT, Judge.

text:
    Gregory Lee NEWSOME, Appellant, v. STATE of Florida, Appellee.
    No. 78-1814.
    District Court of Appeal of Florida, Second District.
    May 2, 1979.
    Jack O. Johnson, Public Defender, James R. Wulchak, Asst. Public Defender, and Charles L. Stutts, Legal Intern, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   OTT, Judge.

While appellant, Gregory Lee Newsome, has raised several issues relating to his conviction for burglary and aggravated assault, we find that only one merits discussion. Appellant argues that the twenty year sentence imposed upon his conviction of aggravated assault is excessive. We agree.

The maximum allowable sentence for aggravated assault is five years. See § 784.-021(2), Fla.Stat. (1977); § 775.082(3)(d), Fla. Stat. (1977).

Accordingly, the judgment of conviction for aggravated assault is affirmed, but the case is remanded for the purpose of resen-tencing appellant for this conviction not to exceed five years.

The judgment of conviction for burglary of a dwelling and the sentence thereon are affirmed.

HOBSON, Acting C. J., and BOARD-MAN, J., concur.


author: GRIMES, Chief Judge.

text:
    BUCKEL CORP., a Florida Corporation, and Commodore Club II, Appellants, v. FIDELITY & DEPOSIT COMPANY OF MARYLAND and Jones & Braido, Inc., Appellees.
    No. 78-2191.
    District Court of Appeal of Florida, Second District.
    May 2, 1979.
    Archie M. Odom, Punta Gorda, and Richard J. Aaron of Schryver, Hagaman, Good-lette & Aaron, Chartered, Naples, for appellants.
    G. Holdt Garver of Garver & Manz, Naples, for appellees.
   GRIMES, Chief Judge.

This is an appeal from a summary judgment exonerating a surety company from liability to the appellants.

Jones & Braido, Inc. (contractor) entered into a contract to build a condominium apartment project for Buckel Corp. (developer). After the completion of construction and the sale of the apartment units as condominiums, the developer and the condominium association sued the contractor for damages allegedly due to faulty construction. The complaint contained no allegations that the contractor had failed to pay for labor or materials incorporated into the project. Appellants joined Fidelity & Deposit Company of Maryland (surety) as a defendant.

A copy of a bond issued by the surety was attached to the complaint. The bond is a printed form of payment bond written for the contractor with respect to the construction of the project. While the complaint calls it a performance bond, nothing in the bond suggests that it is anything more than a payment bond except for the handwritten interlineation “& Performance” placed after the printed title “Payment Bond.” However, the surety, in its answer, not only admits the allegation that it issued a performance bond but specifically makes such a statement in an affirmative defense.

The surety successfully moved for summary judgment on the ground that the bond provided that no suit could be brought on the bond after one year “from the performance of the labor or completion of delivery of the materials and supplies.” The complaint affirmatively showed that the construction had been completed more than a year prior to the filing of the suit.

We are thus faced with a dilemma: the complaint characterizes as a performance bond that which is obviously only a payment bond, yet the answer admits the execution of a payment and performance bond. There is nothing to tell us how the handwritten reference to performance happened to appear upon the copy of the bond attached to the complaint, and the record does not reflect whether a premium for a performance bond was paid. In view of the fact that this case reaches us on summary judgment, we believe it prudent to reverse so as to permit the true facts to be developed.

As it now stands, the complaint does not state a cause of action against the surety. Merely calling a payment bond a performance bond cannot make it so. There are no allegations that the handwritten reference to performance was added at the time of the execution of the bond or that the parties agreed that a formal performance bond would be forthcoming. Therefore, the appellants should be permitted to amend their complaint to add such additional facts as they might be able to prove in order to determine if they can state a cause of action. By the same token, the surety should not be held to its original pleadings which admit the existence of a performance bond but should be permitted to file an amended answer asserting the facts it believes to be correct.

REVERSED and REMANDED.

HOBSON and SCHEB, JJ., concur.


text:
    CENTURY CONSTRUCTION CORPORATION, a Florida Corporation, Appellant, v. CENTRAL TELEPHONE COMPANY OF FLORIDA, a Florida Corporation, Appellee.
    No. LL-395.
    District Court of Appeal of Florida, First District.
    May 4, 1979.
    Rehearing Denied June 1, 1979.
    M. Stephen Turner of Thompson, Wads-worth, Messer, Turner & Rhodes, Tallahassee, for appellant.
    James D. Beasley of Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, for appellee.
   PER CURIAM.

Appellant, Century Construction Corporation (Century) appeals a final judgment rendered by the Circuit Court of the Second Judicial Circuit in and for Leon County, Charles E. Miner, Jr., Judge, in favor of Appellee, Central Telephone Company of Florida (Centel), finding that Century was liable to Centel for costs incurred by the latter in performing the re-location of certain above ground telephone facilities owned by Centel, in the sum of $4,814.65, together with an attorney’s fee of $500.00 awarded in accordance with a stipulation entered into by the parties prior to trial below.

We affirm, and in so doing agree with the findings of law and fact made by the trial court in the partial summary judgment and final judgment entered herein. Appellant has made a part of the record herein memoranda submitted by it to the trial court below. It is evident that the trial court in rendering the judgments below considered the authorities cited by appellant in such memoranda, and the reasoning put forth by it in support of its position with respect to the issues raised by the pleadings, and that the trial court rejected such. We hold that he did not err in so doing.

The appellant in its briefs and oral argument presented to this court, in addition to the authorities presented to the trial court below, the New Jersey case of Fellowship Bank v. Public Service Electric and Gas Company, 158 N.J.Super. 107, 385 A.2d 887 (1978). Reliance upon that case is ill-placed. In that case liability was placed upon the utility to relocate at its own expense utility poles required to be moved in a road widening project because the County Planning Board had implemented a police power decision to widen the right-of-way of the road there involved. There the relocation resulted from the exercise of the police power for the benefit of the general public. But in the case at bar no public entity elected to construct the extension of Tim-berlane Road across Meridian Road. The decision was made by Century in order to have access to a new subdivision proposed by it. No where in the record herein is a finding that Timberlane Road ever would have been extended across Meridian Road by any public body. Furthermore, appellant can take no solace by virtue of the provisions of Chapter 338.19 (1977). That statute by its own terms applies only to circumstances where a public body or authority elects to take action requiring utility facilities relocation. Here, the decision was that of a private developer made for its private benefit.

In accordance with the terms of a pretrial stipulation made by the parties to the effect that the loser of this litigation would pay to the winner certain amounts, both at the trial and appellate levels, to be applied on account of attorneys fees incurred by such winner, an appellate attorney’s fee of $1,000.00 is awarded appellee herein.

Affirmed.

MILLS, Acting C. J., ERVIN, J., and MASON, ERNEST E., Associate Judge, concur.


text:
    Harry Michael EDEN, Appellant, v. STATE of Florida, Appellee.
    No. MM-84.
    District Court of Appeal of Florida, First District.
    May 4, 1979.
    Rehearing Denied June 1, 1979.

      Virlyn B. Willis, Jr., Lake City, for appellant.
    Jim Smith, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Eden appeals the trial court’s denial of his motion to suppress evidence discovered in his vehicle by an agricultural inspector pursuant to Section 570.15, Florida Statutes (1977), claiming (1) that the inspector had no authority under the statute to stop or inspect his vehicle, and (2) that he did not voluntarily consent to a search of his vehicle after it was stopped. We disagree on both points and affirm.

Section 570.15(2) makes it unlawful for “any truck or any truck or motor vehicle trailer” to bypass an agricultural inspection station without stopping. Appellant argues that his vehicle, a van, was not required to stop under that statute. After studying the statutory definitions provided in Chapter 320, however, we cannot agree. Section 320.01(13) provides that the word “trucks” includes “any motor vehicle designed or used principally for carrying things other than passengers and includes a motor vehicle to which has been added a cabinet box, platform, rack, or other equipment for the purpose of carrying merchandise other than the person or effects of the passengers.” Here the testimony showed that appellant’s van had seats for a driver and passenger but was otherwise composed entirely of cargo area. Further, it was shown that the back compartment of the van contained a large wooden storage area clearly not intended for passenger use. On these facts, we believe appellant was required to stop his vehicle at the inspection station, and when he did not do so, the inspector had the right to chase him down and detain the vehicle for inspection purposes.

With respect to the issue of consent, we would note initially that Section 570.-15(l)(a)(6), Florida Statutes (Supp.1978) gives inspectors the right of access to “trucks.” Applying the above-mentioned definition of “trucks”, it is clear that appellant’s vehicle fit within that category rather than the excepted category of “private passenger automobiles with no trailer in tow, travel trailers, camping trailers, and motor homes . . . .” specified in Section 570.15(l)(a)(7), Florida Statutes (Supp. 1978). Therefore in the absence of any refusal by appellant, the inspector had the right of full access to appellant’s van.

The record shows on this issue that appellant willingly opened the side door of his vehicle after the agricultural inspector stopped him and asked if he could see what appellant was carrying. The inspector then observed the inside compartment in the vehicle and asked if appellant would open the back door of the vehicle. Appellant did so, and raised the wooden door in the rear of the compartment. The inspector saw several large packages and smelled the odor of marijuana. Believing that a felony was being committed, he escorted the vehicle back to the station, arrested appellant for bypassing the station, and reported the matter to the Sheriff’s office. The Sheriff’s Deputy arrived and the inspector opened up the rear door and the wooden compartment. The Deputy discovered marijuana and arrested appellant and his companion.

There is nothing in the record indicating any refusal or resistance to the search on appellant’s part at any point. We think the case is controlled by Bagocus v. State, 359 So.2d 885 (Fla. 1st DCA 1978), where this court held:

“We decline to extend the holdings in Sarga v. State, 322 So.2d 592 (Fla. 1st DCA 1975) and Powell v. State, 332 So.2d 105 (Fla. 1st DCA 1976), to hold as a matter of law that uniformed agricultural inspection officers, carrying weapons they did not brandish in any way, have overborne the will of a lawfully stopped driver by simply asking him to permit an inspection.”

Similarly here we see no basis for upsetting the trial court’s conclusion that the search of appellant’s vehicle was conducted with his consent. The situation is unlike that in Rose v. State, 369 So.2d 447 (Fla. 1st DCA 1979), where the appellant clearly indicated his refusal of access to the enclosed boxes, and all of the evidence showed that the station search was made without a warrant in spite of appellant’s refusal.

The judgment is AFFIRMED.

MELVIN, Acting C. J., and BOOTH and LARRY G. SMITH, JJ., concur.


author: ERVIN, Judge.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a Foreign Corporation, Appellant, v. James Allen MORRIS, as Personal Representative of the Estate of James Harold Morris, Deceased, Appellee.
    No. MM-369.
    District Court of Appeal of Florida, First District.
    May 4, 1979.

      John H. Haswell of Chandler, O'Neal, Gray, Lang & Haswell, Gainesville, for appellant.
    Harold Silver, Gainesville, for appellee.
   ON MOTION TO DISMISS

ERVIN, Judge.

This cause is before us upon appellee’s motion to dismiss appellant’s review of a non-final order. Appellee sought damages on behalf of the estate of James Harold Morris for the wrongful death of the latter caused by the alleged negligence of one Jack Page, who, at the time of the accident, operated decedent’s automobile with his apparent knowledge and consent. Both Page and State Farm were sued. It was alleged that State Farm had insured decedent’s automobile and, upon the death of the decedent, the insured, the policy inured to the benefit of his estate. State Farm moved for summary judgment, contending that the policy was designed to protect the decedent from liability to third persons caused by the operation of his insured vehicle and was not intended to provide bodily injury coverage to the insured. The motion for summary judgment was denied, the court holding that the exclusion had no application. The order also denied appellee’s motion for summary judgment. The order concluded by stating that it did not decide whether or not either defendant Jack Page or State Farm might still raise affirmative defenses, assumption of the risk and comparative negligence.

Fla.R.App.P. 9.130(a)(C)(iv) permits review of non-final orders which determine the issue of liability in favor of the party seeking affirmative relief. The committee note to the rule states that it permits “appeals from interlocutory orders which determine liability in favor of a claimant.” (e.s.) No liability has been determined as yet in favor of the claimant. Both appellant’s and appellee’s motions for summary judgment were denied. While the court held that State Farm’s exclusionary clause did not apply, it still made no ruling on an affirmative issue of liability. Such issues remain outstanding and are not ripe for review at this point. Appellee’s motion to dismiss the interlocutory appeal is granted.

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

      . The policy excluded coverage “to any insured or any member of the family of an insured residing in the same household as the insured; . .