text:
    Ellynn JOSEPHS, Appellant, v. Michael JOSEPHS, Appellee.
    No. 76-2302.
    District Court of Appeal of Florida, Third District.
    March 21, 1978.
    Rehearing Denied April 28, 1978.
    Leo Greenfield, North Miami, Hall & Swann, Coral Gables, for appellant.
    Barranco, Darlson & Daniel, Podhurst, Orseck & Parks and Michael S. Olin, Miami, for appellee.
    Before PEARSON, NATHAN and HUB-BART, JJ.
   PER CURIAM.

The appellant, Ellynn Josephs, appeals a final judgment of dissolution of marriage and an amended order altering the final judgment. The amended order was entered pursuant to timely petitions for rehearing filed by each of the parties. Michael Josephs, the former husband, cross-appeals the award of periodic alimony to the former wife.

After a final hearing, a final judgment of dissolution of marriage was entered. The wife was awarded, among other things, the sum of $75,000 as lump sum alimony, $1,000 per month for twelve months as rehabilitative alimony, all their wedding gifts and an automobile.

The husband was awarded, among other things, the marital home of the parties with an approximate value of $150,000, the furniture therein of approximately $20,000, a Porsche automobile valued at $10,000, a one-half interest in a 35 foot Trojan Sports Fisherman boat valued at $11,000, $5,000 to be returned to the husband from the wife, all his personal assets, $850 from the wife which the husband had advanced as a security rental deposit, and their dog.

Motions for rehearing were timely filed and, by order of the court, the lump sum alimony of the wife was reduced from $75,-000 to $9,150. The order changed the award of rehabilitative alimony to the-wife to $1,800 a month for forty months with provision that it would cease upon her remarriage, the death of the husband, or a change in the economic status of the parties. The order awarded her attorney fees of $7,500, made disposition of various household goods and small personal items to the parties and required the wife to reimburse the husband for an additional $1,800 for charges made by her against his credit since the filing of the petition for dissolution.

The appellant wife’s main contention is that the trial judge abused his discretion in the award of lump sum alimony of $9,150 and periodic alimony of $1,800 per month. It is urged that because most of the money earned by the wife and the husband was channeled through a joint checking account, the wife should receive one-half of all the assets purchased from the joint checking account. She also urges that the attorney fee awarded is not adequate in that it does not represent a reasonable payment for the time and effort expended by her attorney. Lastly, she urges that the record does not support the award of certain personal property to the husband.

The husband, on cross-appeal, claims that the trial judge abused his discretion in that the amount of periodic alimony is excessive.

We find no reversible error upon the amounts allowed as lump sum alimony and the periodic alimony. See Herzog v. Herzog, 346 So.2d 56 (Fla.1977); Shaw v. Shaw, 334 So.2d 13 (Fla.1976); and Krischer v. Krischer, 337 So.2d 1011 (Fla. 3d DCA 1976). The trial judge as the trier of fact was not compelled to find a constructive trust for the wife’s benefit in all the funds which passed through the joint checking account. See the principle of law in Wilson v. Wilson, 279 So.2d 893 (Fla. 4th DCA 1973).

The trial judge’s award of certain items of personal property to each party is supported by the record and was based upon conflicting testimony concerning the ownership and the equities of the parties. The award will not be reversed on appeal in the absence of a showing of a clear abuse of discretion. See Tucker v. Tucker, 306 So.2d 164 (Fla. 2d DCA 1975). The same principle applies to the amount of the award as attorney’s fees. See Campbell v. Campbell, 220 So.2d 920 (Fla. 4th DCA 1969).

Affirmed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Leslie NACHMAN and Elizabeth Nachman, Appellants, v. Mark R. RUBIN, etc., et al., Appellees.
    Nos. 77-275 and 77-852.
    District Court of Appeal of Florida, Third District.
    March 21, 1978.
    Rehearing Denied April 27, 1978.
    Samuel Sheradsky, Miami, for appellants.
    Heiman & Heiman, Miami, George J. Tal-ianoff, Miami Beach, for appellees.
    Before HAVERFIELD, C. J., and NATHAN and HUBBART, JJ.
   PER CURIAM.

Affirmed. See Sydney Paper Co. v. Gans, 193 So.2d 41 (Fla.3d DCA 1966); Butler v. Metropolitan Dade County, 298 So.2d 552 (Fla.3d DCA 1974); Chason v. Adams, 318 So.2d 537 (Fla.4th DCA 1975).


author: CHARLES CARROLL, Associate Judge.

text:
    PACEMAKER CORPORATION, Appellant, v. Aaron T. EUSTER, Appellee.
    No. 77-495.
    District Court of Appeal of Florida, Third District.
    March 21, 1978.
    Rehearing Denied April 27, 1978.
    Adams, George, Schulte & Ward and Amy Shield Levine, Miami, for appellant.
    Fowler, White, Burnett, Hurley, Banick & Knight and William B. Milliken, Miami, for appellee.
    Before KEHOE, J., and BOYD, JOSEPH A., Jr., and CHARLES CARROLL (Ret.), Associate Judges.
   CHARLES CARROLL, Associate Judge.

This appeal is by the defendant below from an order determining the scope of an agreement for arbitration and denying defendant’s motion to limit arbitration.

Appellee, Aaron T. Euster, following purchase of a vessel manufactured by the appellant, Pacemaker Corporation, sued Pacemaker (and others not involved here) for damages for alleged defective condition of the vessel. A settlement of the disputes involved in that litigation was entered into on December 1, 1972. The settlement agreement, in its preamble, stated the following:

“WHEREAS, certain disputes have arisen between PLAINTIFF and DEFENDANTS as a result of which there ensued litigation in the Circuit Court in and for Dade County, Florida, Case No. 71-16712, and
“WHEREAS, there were numerous items of disagreement between the parties in the foregoing litigation, and
“WHEREAS, after diligent and exhaustive negotiations the parties hereto have resolved all differences between them and desire that their agreement be formally set out in a written document, and
“WHEREAS, upon execution of this written agreement the issues between the parties hereto in said litigation shall have been resolved and said litigation should be dismissed,”.

The agreement provided for certain listed repairs to be made by Pacemaker within thirty days, and for Pacemaker to pay $5,000.00 to Euster “as reimbursement for past, and in liquidation for future repairs not listed above, necessary to be made to the vessel”. Further, it was provided that after completion of said specified repairs by Pacemaker a general release would be given by Euster except for a specified warranty, and that the action would be dismissed with prejudice.

The warranty thus referred to was set out in paragraph 1 (I) as follows:

“I. PACEMAKER warrants that after the repairs mentioned in the foregoing paragraphs have been accomplished the vessel will be seaworthy and will not leak (except for normal seepage from shaft logs and rudder ports) for the period of one (1) year from the date the vessel is delivered to EUSTER upon completion of the repairs stated in this agreement. Said warranty is applicable specifically to Hull No. 48-G-145 and is in addition to all other expressed warranties, if any, from the manufacturer or seller of the vessel.”

Additionally, with regard to the above warranty, the agreement provided:

“PACEMAKER shall be liable for all consequential damages to the vessel as a result of the leak or leaks not being corrected or the hull being unseaworthy, provided that such consequential damages arise as the result of water leakage or unseaworthiness as described above, that occurred within the warranty period. All of the terms of this subparagraph (1.1.) shall be incorporated into the terms of said warranty.”

With regard to disputes arising from the repairs which were required to be made, the contract contained a provision for arbitration as follows:

“7. Any disputes concerning the workmanlike quality, adequacy or sufficiency of repairs as set out in this agreement shall be submitted to binding arbitration.”

That provision for arbitration as to disputes relating to adequacy and sufficiency of the required repairs must be read in connection with the warranty that the vessel would be seaworthy and not leak except for normal seepage from shaft logs and rudder ports for a year after the required repairs were made. Breach of the warranty which thus was tied in with the required repairs would involve questions or disputes as to the adequacy or sufficiency of such repairs, determination of which the contract provided should be by arbitration.

Pacemaker made the stated repairs, delivered the vessel to Euster, and paid Eus-ter the $5,000.00 mentioned above. Euster gave Pacemaker a general release subject to the above-quoted one-year warranty, and dismissed the action with prejudice.

Later, after the period of one year, Eus-ter filed this action against Pacemaker. In Count I the plaintiff, Euster, alleged his purchase of the vessel for $111,815.00; that the manufacturer’s warranty of fitness of the vessel had been breached; that the vessel was unfit for use, and that plaintiff’s right of recission of the sale had been refused; and that the vessel could not be made useable by repair. Based thereon plaintiff sought damages for the amounts he had expended for repairs, and in effect sought recission by praying for judgment to require Pacemaker to pay plaintiff $95,000.00 with which to enable Euster to purchase another comparable vessel. By additional counts plaintiff sought damages for an alleged period of loss of use of the vessel and, further, upon alleging failure of Pacemaker to pay plaintiff the value of the vessel (rescind) was malicious, sought punitive damages of $500,000.00. The complaint referred to the agreement for arbitration of disputes concerning the workmanlike quality, adequacy, or sufficiency of the repairs which the settlement agreement provided to be made by Pacemaker, and alleged difficulty in agreeing on an arbitrator, requesting that the court appoint an arbitrator. On a hearing before the trial court relating to the arbitration, the court denied the motion of Pacemaker to limit the arbitration to issues for which the agreement provided and ordered that arbitration should include the above-mentioned claims for damages contained in the complaint. In this respect, the order provided as follows:

“ORDERED AND ADJUDGED that Defendant’s motion be, and the same is, hereby denied, and those issues which are to be submitted to arbitration shall include the various claims for damages alleged in the Complaint filed herein *

Appellant argues the court erred in the order relating to the arbitration in that the claims or damages to which arbitration was extended by the court were issues or matters that had been asserted in the prior action and terminated by the prior settlement and dismissal of that action and, further because the arbitration necessarily was limited to the issues or matters which the parties had contracted should be submitted to arbitration.

Those issues or matters for which the parties had contracted to arbitrate were clearly set out in paragraph 7 of the agreement, as quoted above. Therefrom it is clear the parties contracted to arbitrate disputes concerning the workmanlike quality, adequacy or sufficiency of the several specified repairs, which the settlement contract provided were to be made by Pacemaker.

We hold it was error to order that the arbitration order include other disputes or claims. Section 682.02, Florida Statutes (1975) provides that parties may agree in writing to submit to arbitration any controversy existing between them at the time of the agreement, or (as here) that they may include in the written contract a provision for the settlement by arbitration of any controversy thereafter arising between them relating to such contract or the failure or refusal to perform the whole or any part thereof. In this instance the agreement of the parties for arbitration was as to disputes which might arise with reference to certain repairs to be made by Pacemaker.

The agreement of the parties for the arbitration fixed its subject and its limits. In this instance, the controversies or claims for damages as contained in the complaint which were outside the matters expressly agreed for arbitration should not have been considered by the court thereby subject to arbitration, not only because they were not included in the agreement for arbitration but because all such matters had been removed from controversy by the settlement, general release, and dismissal of the prior action with prejudice. Cf. D.F.S., Inc. v. Beasley Crane Service & Sales, Inc., 251 So.2d 727 (Fla.2d DCA 1971); Robinson v. Friedman, 219 So.2d 54 (Fla.3d DCA 1969). Following the settlement and release, there remained as a basis for future controversy only the one-year warranty above quoted and disputes which might arise with relation to the quality and sufficiency of the repairs which were made subsequent to the agreement, as provided for therein. Arbitration should be only of those controversies or disputes which the parties have agreed to submit to arbitration. Wood-Hopkins Contracting Co. v. C. H. Barco Contracting Co., Inc., 301 So.2d 479 (Fla. 1st DCA 1974); Frank J. Rooney, Inc. v. Charles W. Ackerman of Fla., 219 So.2d 110 (Fla.3d DCA 1960).

The motion of the defendant for the arbitration to be restricted to that which was expressly contracted for should have been granted, and the order appealed from is reversed to the extent that it made provision for the arbitration to “include the various claims for damages alleged in the complaint”.

Reversed, and remanded for further proceedings.


author: KEHOE, Judge.

text:
    The STATE of Florida, Appellant, v. Martin FRIED, Appellee.
    No. 77-682.
    District Court of Appeal of Florida, Third District.
    March 21, 1978.
    Rehearing Denied April 28, 1978.

      Janet Reno, State’s Atty. and Milton Robbins, Asst. State’s Atty., for appellant.
    Bartel, Levine & Shuford, Miami, for ap-pellee.
    Before PEARSON, NATHAN,and KE-HOE, JJ.
   KEHOE, Judge.

Appellant, plaintiff below, brings this appeal from an order dated March 1, 1977, entered by the trial court dismissing a criminal Information filed against appellee, defendant below. For the reasons given below, we affirm.

On October 4, 1976, appellant filed a six-count Information charging appellee with the sale of two promissory notes, allegedly in violation of Chapter 517, Florida Statutes (1975). The Information, in Counts I and IV, charged that appellee, along with two co-defendants, not appellees herein, had sold two Triex Corporation promissory notes to James Burleson, in violation of Section 517.07, Florida Statutes (1975). The Information, in Counts II and V, charged appellee with selling the notes without being registered as a dealer or salesman of securities, in violation of Section 517.12, Florida Statutes (1975). In Counts III and VI, the Information charged appellee with selling the notes in a fraudulent manner, in violation of Section 517.-301(1), Florida Statutes (1975). Subsequently, appellee filed a motion to dismiss the Information on the ground that it failed to allege sufficient facts to charge a crime.

In ruling on appellee’s motion to dismiss the Information, the trial court considered the Information in conjunction with, and as narrowed by, the Bill of Particulars. This was a correct procedure. See State v. Davis, 243 So.2d 587 (Fla.1971), and Heisterman v. State, 327 So.2d 839 (Fla. 3d DCA 1976). After this consideration, the trial court found, as set forth in its order dismissing the Information, that the remaining allegations charged appellee with fraudulently selling an unregistered corporate note of Triex Corporation for $24,500, secured by a mortgage on certain real property, without being registered as a dealer or salesman of securities, all in violation of Chapter 517, Florida Statutes (1975). The trial court stated, in part, in its order as follows:

“7. Therefore, the only allegations against MARTIN FRIED are those of an isolated, (or isolated) one-time transaction^) bearing all the indicia of a commercial loan. The Court is aware that under the definitions of securities as contained in 517.02, certain promissory notes may be considered securities. However, just as all “stocks” do not constitute securities, all promissory notes are likewise not so defined by law. See United Housing Foundation, Inc. v. Forman, 421 U.S. 837, 95 S.Ct. 2051 [44 L.Ed.2d 621] (1975). Florida courts have traditionally rejected a mechanical application of the Florida securities statute. Lapidus v. Rever, 174 So.2d 459 (Fla. 3d DCA 1965); Willmont v. Tellone, 137 So.2d 610 (Fla. 2d DCA 1962).
“The borrowing of money in a single transaction between a borrower and a lender, with the giving of a promissory note to evidence the indebtedness, does not constitute the sale of a security. Avenue State Bank v. Tourtelot, 379 F.Supp. 250 (N.D.Ill.1974). These and other federal cases are highly persuasive upon this Court for the proposition that the isolated sale(s) of a promissory note allegedly made by the defendant does not constitute a security under the Florida statute, which is closely modeled after the federal act. See McClure v. First National Bank, 497 F.2d 490 (5th Cir. 1974). Additionally persuasive is the three criteria established by the Supreme Court of the United States in the case of SEC v. W. J. Harvey Co., 328 U.S. 293 [66 S.Ct. 1100, 90 L.Ed. 1244] (1946) for determining whether a security is involved: 1) an investment of money in 2) a common enterprise, and 3) with profits to come solely through the efforts of persons other than the investor. Surely, the sale of a note secured by a mortgage cannot be said to meet these criteria.”

We are persuaded by the trial court’s reasoning and agree that, under the facts of this case, the single sale of the note by appellee was not a sale of a “security,” as that term is defined in Chapter 517, Florida Statutes (1975).

Appellant contends, among other things, that the trial court erred in dismissing the Information because it tracked the statutory language and the question of whether the note sold by appellee was a “security” should have been determined by the jury.

If a trial court concludes that the facts alleged in an information do not establish a prima facie case of the violations charged, it is within the discretion of the trial court to dismiss such information. See State v. Jones, 247 So.2d 342 (Fla. 3d DCA 1971). See also United States v. Hedges, 458 F.2d 188 (10th Cir. 1972), and see generally Wilson v. State, 298 So.2d 433 (Fla. 4th DCA 1974). In the instant case, each of the violations charged against appellee pertained to a violation of Chapter 517, Florida Statutes (1975), pertaining to securities. The trial court correctly determined that the Information, when read in conjunction with, and narrowed by, the Bill of Particulars, did not establish a prima facie case of any violation of Chapter 517, because the note sold by appellee was not a “security” as that term is used in the Chapter. For the purpose of ruling on appellee’s motion to dismiss the Information, we believe that it was appropriate for the trial court to make this determination. Compare Miller v. State, 285 So.2d 41 (Fla. 2d DCA 1973). Therefore, we have concluded that the trial court did not err in dismissing the Information.

In the light of this determination, it is unnecessary for us to consider appellant’s other point on appeal in regard to the applicable statute of limitations for the offenses alleged in the Information.

For the reasons set forth above, the order of the trial court dismissing the Information is affirmed.

Affirmed.


author: HENDRY, Judge.

text:
    Joaquin Antonio CORTIZO, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1286.
    District Court of Appeal of Florida, Third District.
    March 21, 1978.
    Rehearing Denied April 21, 1978.

      Harry W. Prebish, Miami, for appellant.
    Robert L. Shevin, Atty. Gen. and Ronald A. Dion and Jose R. Rodriguez and Steven R. Jacob, Asst. Attys. Gen., for appellee.
    Before HENDRY and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   HENDRY, Judge.

Appellant, defendant below, was tried and convicted by a jury of conspiracy to sell a controlled substance (Cocaine); sale or delivery of a controlled substance; and manufacture or possession with intent to sell, manufacture or deliver a controlled substance. He was adjudged guilty and sentenced to seven years on the “sale” count and five years each on the “conspiracy” and “possession” counts, all sentences to run concurrently. From his convictions and sentences, appellant has raised a number of points on appeal.

Point I claims that the trial court committed reversible error in denying appellant’s motion to dismiss the conspiracy count on the grounds that the State failed to produce independent evidence of appellant’s participation in the crime. In conjunction with the first point, appellant’s point II claims as error the trial court’s denial of his motion for new trial. Said motion was based upon the allegedly erroneous admittance of certain statements made by appellant’s co-defendants, while appellant was not present, implicating appellant in the conspiracy. It is appellant’s contention that because the state failed to produce independent proof of a conspiracy, the “co-conspirator exception” to the hearsay rule is not applicable and the court should have excluded the testimony of a confidential informant which related such statements to the jury.

Notwithstanding appellant’s contentions, after carefully examining the record, it is our opinion that the state did present independent proof of a conspiracy involving appellant and thus, the “co-conspirator exception” to the hearsay rule was both available and correctly utilized by the trial judge. Adirim v. State, 350 So.2d 1082 (Fla.3d DCA 1977).

Appellant’s point III states that the trial court committed reversible error in allowing into evidence testimony of a subsequent, similar crime. We, however, find that the evidence was relevant insofar as proving such factors as intent, common scheme and design, while at the same time disproving unlawful entrapment. Williams v. State, 110 So.2d 654 (Fla.1959); Green v. State, 190 So.2d 42 (Fla.2d DCA 1966).

Appellant’s final point is without merit and need not be discussed.

Accordingly, after carefully reviewing the record, briefs and arguments of counsel, it is our opinion that the judgment and sentences appealed from must be affirmed.

Affirmed.


text:
    STATE of Florida ex rel. Martin J. LITVAN, Relator, v. Honorable Ellen J. MORPHONIOS, Judge of the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida, Respondent.
    No. 78-182.
    District Court of Appeal of Florida, Third District.
    March 22, 1978.
    Rehearing Denied April 27, 1978.

      Allen L. Jacobi, North Miami, for relator. Janet Reno, State’s Atty. and Milton Robbins, Asst. State’s Atty., for respondent.
    Before HUBBART and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   CHARLES CARROLL (Ret.), Associate Judge.

This is an original proceeding in prohibition. A rule nisi was issued, to which respondent filed a response, and the matter was argued.

We hold respondent’s return showed good cause, and the application of the relator for issuance of a writ in prohibition is denied on authority of State v. Bassham, 352 So.2d 55 (Fla.1977); Williams v. Eastmoore, 297 So.2d 572 (Fla.1st DCA 1974); O’Bryan v. State, 326 So.2d 83 (Fla.1st DCA 1976).

The facts revealed in the suggestion for prohibition are the following: On March 31, 1975 and April 24, 1975 warrants for the arrest of the relator were issued in Dade County for instances of breaking and entering. At that time the relator was in custody of the Broward County Sheriff’s Office, held there on charge of offense committed in that county. On August 28, 1975 the relator was convicted thereon in a court in Broward County, and was sentenced to imprisonment in the Florida State Prison System for a term of three and one-half years. Thereafter, with no arrest of the relator having been made on the Dade County warrants, and while the relator was imprisoned on the basis of said Broward County court sentence, Dade County, on January 26, 1976, placed a detainer against the relator with the Department of Offender Rehabilitation. On September 22, 1977, an information or informations were filed against the relator charging him with said breaking and entering offenses alleged to have been committed in Dade County [case Nos. 77-28162 and 77-28182]. Thereafter, relator moved for discharge under Fla.R.Crim.P. 3.191(b)(1). The motion was denied and this proceeding in prohibition followed.

Under the section of the rule just cited, a person while thus imprisoned who is charged by indictment or information “whether or not a detainer has been filed against such person”, shall without demand be brought to trial within one year (for crimes of the type for which he was informed against here). The rule further provides that such one-year period “shall commence when the person is taken into custody as a result of the subject conduct or criminal episode, or when the subject charge of crime is filed, whichever is earlier, whether or not such period may commence to run before such person began to serve his term of imprisonment”, [emphasis supplied]

Thus, in this case, if the one-year period within which it was required that the relator be brought to trial commenced when the detainer was filed on January 26, 1976, while he was thus imprisoned, the period for trial' would have elapsed before he moved for discharge. On the other hand, if the trial period commenced on the date of the filing of the information or informa-tions against him on September 22, 1977, the one-year period for trial had not expired, and the denial of the motion for discharge was proper.

That presents the question of whether in the circumstances of this case, the commencement date of the trial period was the time of the filing of the information or informations, or the time of the placing of the detainer.

In Bassham the Supreme Court, adopting the rationale of the earlier decisions of the First District Court of Appeal in Eastmoore and O’Bryan, held:

“ * * * Accordingly, we hold that a detainer placed by one county for a prisoner held by another county is not considered custody within the contemplation of the speedy trial rule so as to commence the running of the speedy trial time.”

In Bassham the Pasco County Sheriff’s Office filed a detainer on July 28, 1975 against a man who was being held by the Hillsboro County Sheriff’s Office. Later, when he was delivered to the Pasco County Sheriff’s Office on March 1, 1976, he was served with a capias for his arrest. Thereafter, he was arraigned and trial was set for April 1, 1976. The Supreme Court held the defendant was not entitled to discharge. Involved there was subsection (a)(1) of Fla. R.Crim.P. 3.191 requiring that the defendant be brought to trial within 180 days (from the time the defendant was “taken into custody as a result of the conduct or criminal episode giving rise to the crime charged”). Therefore, in that case it appeared that if the 180-day period commenced when the detainer was filed on July 28, 1975, the trial date of April 1, 1976 would be beyond the trial period. However, if the period commenced when the defendant was delivered to and arrested in Pasco County on March 1, 1976, the trial date was well within the required period. As noted above, the Supreme Court held that the filing of the detainer against the defendant did not commence the 180-day period and that its commencement was the time of the subsequent arrest.

Although the cases cited above involved the 180-day period (where the detainers involved in those cases were filed while the defendant was not “imprisoned in a Florida penal or correctional institution” but was in custody in another county being held awaiting trial there) the holding as to the effect of the detainer would appear to be the same for the one-year period [under subsection (b)(1)], where the person is “imprisoned”.

The section of the rule applicable in the instant case provides that the period for trial shall commence either when the person is taken into custody as a result of the subject conduct or criminal episode, “or when the subject charge of crime is filed, whichever is earlier”. He was not arrested on the Dade County warrants previous to the filing of the information or informa-tions. The placing of the detainer was not a taking into custody for the Dade County criminal episodes (Bassham, supra). We hold the filing of the information or infor-mations started the running of the one-year period for trial here, as contended in the response to the rule nisi issued by this court.

The argument of the relator that it was the placing of the detainer rather than the filing of the information that constituted the filing of “the subject charge of crime”, which marked the start of the time period, is unsound. The alternative period starters specified in the rule, that is, the time of arrest or when the subject charge of crime is filed, must be considered in connection with the first part of the section, wherein the one-year (or two-year) period for trial is made applicable to an imprisoned person when he is charged by indictment or information, whether or not a detainer has been filed.

Clearly, where no detainer is filed, then in the absence of arrest the information would be the “subject charge of crime”, the filing of which would start the running of the time. It should not be otherwise simply because a detainer was filed.

A detainer placed against a person who is in custody or imprisoned is not the filing of a charge of crime upon which the person could be brought to trial. One can be brought to trial on an information filed by a state attorney or on an indictment submitted by a grand jury. A detainer can be filed or placed against a person by a sheriff or other law enforcement officer. Black’s Law Dictionary defines detainer as “A writ or instrument, issued or made by a competent officer, authorizing the keeper of a prison to keep in his custody a person therein named.”

For the reasons stated, the rule nisi previously issued in this cause is vacated, and the suggestion in prohibition is dismissed.


author: McCORD, Chief Judge.

text:
    GIFFEN INDUSTRIES OF JACKSONVILLE, INC., a Florida Corporation, Appellant, v. SOUTHEASTERN ASSOCIATES, INC., a Florida Corporation, Great American Mortgage Investors, a Massachusetts business trust, Appellees.
    No. EE-179.
    District Court of Appeal of Florida, First District.
    March 28, 1978.
    Rehearing Denied April 28, 1978.

      Ellis E. Neder, Jr., Jacksonville, for appellant.
    William E. Scheu, Jr., of Ulmer, Murchison, Ashby & Ball, Jacksonville, for appel-lees.
   McCORD, Chief Judge.

This appeal is from a final summary judgment entered in favor of Great American Mortgage Investors (hereafter sometimes referred to as GAMI). By the judgment the trial court ruled that appellant Giffen Industries of Jacksonville, Inc., (hereafter sometimes referred to as Giffen) was not entitled to a mechanic’s lien or an equitable lien on real property sold at public sale pursuant to a final judgment entered in a separate foreclosure suit brought by GAMI or to an equitable lien upon retain-age, rental funds or undischarged contract funds held by GAMI.

Appellee Southeastern Associates, Inc., (hereafter sometimes referred to as Southeastern) was the fee simple owner of real property known as the Publix-Pablo Plaza and was also the developer of a construction project thereon. On March 2, 1973, Southeastern executed and delivered to GAMI a note and mortgage on the property securing a $2,527,500 construction loan. The mortgage was recorded, and pursuant to Chapter 713, Florida Statutes, a notice of commencement dated March 2, 1973, was recorded. On May 24, 1973, Giffen entered into a contract with Southeastern to furnish roofing supplies, materials and labor in connection with the construction project. On November 27, 1973, Giffen furnished a “notice to owner” to Southeastern. On September 6, 1974, GAMI filed an action to foreclose its mortgage, and in connection therewith filed a notice of lis pendens. Gif-fen was not a party defendant to the foreclosure action nor did it intervene therein. The record does not indicate and there was no allegation that GAMI had any knowledge that Giffen was a contractor on the job.

On October 23, 1974, Giffen filed and recorded its claim of lien and on September 16, 1975, Giffen filed the action sub judice seeking to foreclose its mechanic’s lien and alternatively to establish and foreclose an equitable lien against Southeastern and GAMI. Subsequently, on November 17, 1975, a final judgment of foreclosure was entered in GAMI’s mortgage foreclosure action, and the property was sold at public sale on December 12,1975. Later, on January 6,1976, Giffen’s complaint in the action sub judice was dismissed and Giffen subsequently filed a four-count amended complaint seeking (1) to foreclose its mechanic’s lien against Southeastern, (2) to seek breach of contract damages against Southeastern, (3) to impress an equitable lien upon retain-age, rental funds, and undisbursed contract funds held by GAMI, (4) to impress an equitable lien upon the real property in the amount of Giffen’s claim of lien. GAMI then moved for summary judgment which was granted, and this appeal was taken therefrom. In entering the summary judgment, the trial court found that Giffen’s action to foreclose or impress a lien upon the real property in question is barred by GAMI’s notice of lis pendens, and the final judgment of foreclosure and that summary judgment should be entered in GAMI’s favor.

GAMI’s notice of lis pendens, filed prior to Giffen’s claim of mechanic’s lien, is a bar to Giffen’s foreclosure of mechanic’s lien. § 48.23(l)(b), Florida Statutes, provides in pertinent part as follows:

“The filing for record of such notice of lis pendens shall constitute a bar to the enforcement against the property described in said notice of lis pendens of all liens including but not limited to federal tax liens and levies, unrecorded at the time of filing for record such notice of lis pendens unless the holder of any such unrecorded lien shall intervene in such proceedings within 20 days after the filing and recording of said notice of lis pendens, and if the holder of any such unrecorded lien does not intervene in the proceedings, and if such proceedings are prosecuted to a judicial sale of the property described in said notice of lis pendens, the said property shall be forever discharged from all such unrecorded liens. . . . ”

§ 713.05, Florida Statutes, upon which Gif-fen relies for its mechanic’s lien expressly provides that, “No lien under this section shall be acquired until a claim of lien is recorded.” Giffen contends that under the mechanic’s lien law, its interest relates back to the date of the filing of the notice of commencement of construction, but the above quoted portion of § 713.05, construed in conjunction with the lis pendens statute, clearly reveals that since Giffen had not recorded the mechanic’s lien at the time the lis pendens notice was filed, enforcement of its subsequently acquired lien is barred by § 48.23, Florida Statutes.

We turn now to Giffen’s contention that it is entitled to an equitable lien upon the retainage, rental funds and undis-bursed construction loan funds and upon the real property which has been foreclosed by GAMI. Unless there is fraud on the part of a mortgagee or unless a mortgagee has in some way induced a materialman or laborer to forego taking action which would have protected his interest, such material-man or laborer would have no claim for an equitable lien superior to the mortgage lien of the mortgagee subject to certain exceptions which we will subsequently discuss. There is no claim of fraud on the part of GAMI nor is there a claim that GAMI induced Giffen to take or forego any action to its detriment. Giffen does contend, however, that GAMI continued to release mortgage funds to Southeastern for continuation of the construction at a time when Southeastern was in default on the mortgage, and as a result, Giffen did additional construction for which it has not been paid. That contention would not constitute a basis for an equitable lien if GAMI foreclosed upon an uncompleted construction project. We agree with the well-reasoned opinion of Judge Stephen H. Grimes, in J. G. Plumbing Service, Inc. v. Coastal Mortgage Co., 329 So.2d 393 (Fla. 2d DCA 1976), in which our sister court of the Second District was involved with a related question to the one which is before us. There the court said:

“This case involves the question of whether a construction mortgage lender on an unfinished construction project runs the risk of unpaid contractors and materialmen obtaining liens upon the un-disbursed loan funds because of its failure to promptly notify them of a default in the mortgage.”
* * * * * *
“The essence of the affirmative defenses and the counterclaim is that Plumbing is entitled to an equitable lien in the undis-bursed construction loan proceeds because Coastal knew of Goba’s defaults upon which it based its foreclosure action but delayed in asserting its rights thereby allowing Plumbing to continue to supply services, materials and labor to the job so as to enhance the value of the property upon which Coastal intended to foreclose. . . "
* * * * * *
“If all the funds called for under the loan agreement have not been disbursed by the time construction has been completed, the construction lender then has more security than it bargained for. Should a default then occur, the mortgage lender will be in the position of being able to foreclose upon (and perhaps buy in) a completed building even though it has not yet disbursed all of the construction loan money. Under these circumstances, the Fourth District Court of Appeal recently held that a contractor who had completed the construction in accordance with his construction agreement was entitled to an equitable lien against the un-disbursed balance of construction loan funds under the construction loan agreement. Morgen-Oswood & Associates, Inc., of Florida v. Continental Mortgage Investors, Fla.App. 4th, 1975, 323 So.2d 684. In essence, that was a case in which relief was granted in order to avoid an unjust enrichment.”
“We do not believe that this principle can be extended to a situation where the default occurs before the construction contemplated by the loan agreement has been completed. Under these circumstances, the construction lender is left with the remedy of foreclosing upon a partially completed building. More often than not, the market value of a partially constructed building will be substantially less than the total cost of the labor and material which had already been incorporated into its construction. Under these circumstances, it cannot be said that the mortgagee has been unjustly enriched. To adopt the rule urged by appellant would place upon construction lenders the unwarranted duty of affirmatively keeping all of the subcontractors and materi-almen advised of the status of the mortgage and might even discourage a mortgage lender from working with its mortgagor so as to enable him to correct his default and to complete the job.”

The court went on to say:

“In the context of the instant case and consistent with Hall’s, we readily agree that a construction lender should not be permitted to affirmatively mislead subcontractors and materialmen so as to induce them to continue to work upon and supply materials to the job to their detriment. A construction lender who falsely advises a materialman or subcontractor that the mortgage is not in default must suffer the consequences if further work and materials are incorporated into the project in reliance thereon. Such action would be equivalent to the fraud and misrepresentation which the courts have traditionally sought to remedy where possible through the imposition of an equitable lien. See Schraub v. Charest, Fla. App. 3d, 1973, 277 So.2d 814.”

In Snead Const. v. First Federal S & L Assn., 342 So.2d 517 (Fla. 1st DCA 1977), appellant, a prime contractor for three motel projects in Daytona Beach, sought to impose a trust on undisbursed construction funds in the hands of the mortgage lender. There this Court said:

“Snead’s case for imposing a trust on the undisbursed construction funds in the hands of the lenders is also unavailing. Construction is incomplete and funds are yet required for its completion. See J. G. Plumbing Serv., Inc. v. Coastal Mtg. Co., 329 So.2d 393 (Fla.App. 2d, 1976). Contrast Morgen-Oswood & Assoc., Inc. v. Continental Mtg. Investors, 323 So.2d 684 (Fla.App. 4th, 1976), and Fred S. Conrad Constr. Co. v. Continental Assur. Co., 215 So.2d 45 (Fla.App. 1st, 1968). The lenders here are not guilty of fraud or misrepresentation and have not gained any inequitable advantage merely by holding funds which may be necessary to complete construction.”

This Court’s opinion in Fred S. Conrad Constr. Co. v. Continental Assur. Co., cited above, was also discussed in the opinion of the District Court of Appeal, Second District in J. G. Plumbing Service, Inc. There, the Second District Court pointed out that it could not determine from the opinion in Conrad whether or not the housing project for which the money had been loaned was completed. In Conrad this Court ruled that appellants had stated a cause of action for relief up to the remaining balance of undisbursed funds on the construction loan but the opinion did not state whether or. not construction had been completed. Since we consider that completion of construction is critical to whether or not a materialman or laborer is entitled to relief against undisbursed proceeds, we have examined the case file in Conrad and find an undisputed statement in the brief of appellants that the construction was completed. We did not, however, find any statement in the record either supporting or not supporting the statement in appellants’ brief. We expressly recede from any inference that the ruling in Conrad is applicable to an uncompleted project.

From our examination of the record in the case sub judice, we are unable to determine whether or not the project had been completed at the time of foreclosure by GAMI of its mortgage or whether or not there was any retainage or undisbursed contract funds held by GAMI upon completion, if there was completion. The summary judgment is affirmed as to its denial of a mechanic’s lien but is reversed as to its denial of an equitable lien and the cause is remanded to the trial court for further proceedings consistent herewith.

AFFIRMED in part and REVERSED in part.

SMITH and MELVIN, JJ., concur.


text:
    Paul Wesley MOORE, Individually, Jasper M. Moore and Betty Moore, his wife, Individually and as husband and wife, Appellants, v. DADE GLASS AND MIRROR COMPANY, INC., a Florida Corporation, Appellee.
    Nos. 77-896, 77-897.
    District Court of Appeal of Florida, Third District.
    March 28, 1978.

      Greene & Cooper, Miami, for appellants.
    Mason & Meyerson, Miami, for appellee.
    Before HENDRY, HUBBART and KE-HOE, JJ.
   HENDRY, Judge.

This consolidated appeal is taken from an order denying plaintiffs/appellants’ motion to set aside a judicial sale and an order denying appellants’ motion for an eviden-tiary rehearing and to add an additional party.

The sole question for our determination is whether the trial judge erred in refusing to set aside a sheriff’s sale conducted to satisfy a judgment lien. We hold that no error was committed by the trial judge.

In order to satisfy a judgment, appellants’ counsel directed the sheriff to levy against a parcel of property owned by ap-pellee a writ of execution issued against appellee and the sheriff levied against the parcel.

Appellants received a notice from the Dade County Sheriff’s Office that a sheriff’s sale of the property would be held on December 29, 1976, between the hours of 11:00 A.M. and 2:00 P.M. The notice stated that the sale would take place “at the south front door of the Court House in Miami, Dade County, Florida . . . .”

Appellants’ counsel instructed an investigator for the law firm to attend the sheriff’s sale as a representative of appellants. Counsel informed his investigator that the sale was to be held at the south front door of the courthouse between the aforementioned hours and instructed and authorized the investigator to bid for the property, up to the full amount of the judgment.

The investigator arrived at the courthouse at approximately 10:30 A.M. on the day of the sale. At approximately 10:45 A.M., a crowd of approximately fifteen or twenty people gathered inside the south front door of the courthouse. The investigator congregated with this group of people and awaited the sale. Unbeknownst to the investigator, another sale was simultaneously taking place outside the south front door of the courthouse.

The sale attended by the investigator concluded in about thirty (30) minutes. Ap-pellee’s property was not offered. At that point, the investigator discovered that he had attended the wrong sale, i. e., a foreclosure sale rather than the sheriff’s sale. He proceeded to the sheriff’s office and was told that the property, with a fair market value of $80,000.00, had been sold for a bid of $1,500.00 to appellants’ counsel.

Subsequently, appellants moved the trial court to set aside the sheriff’s sale because of “irregular procedure and gross inadequacy of the sale price.” The court, however, denied the motion. Appellants then requested the trial court to conduct an evi-dentiary hearing and to add the new purchaser of the property as an additional party. This motion was, likewise, denied. This appeal followed.

Appellants contend that the “gross inadequacy of the price coupled with the irregularity of the sale procedure and notice established grounds for setting aside the sale.” In that we find no irregularity in either the sale procedure or notice given to appellants, we affirm.

The general rule is that standing alone, mere inadequacy of price is not a ground for setting aside a judicial sale. Arlt v. Buchanan, 190 So.2d 575 (Fla.1966); Ohio Realty Investment Corp. v. Southern Bank of West Palm Beach, 300 So.2d 679 (Fla.1974). Therefore, the fact that property with a fair market value of $80,000.00 was purchased for a bid of $1,500.00 (subject to a mortgage of approximately $34,-500.00) at a judicial sale would not, in and of itself, require the setting aside of the sale.

Rather, inadequacy of the purchase price must be connected with, or shown to result from misconduct, accident, surprise, mistake, fraud or irregularity. Ruff v. Guaranty Title & Trust Co., 99 Fla. 197, 126 So. 383 (1930); Ohio Realty Investment Corp. v. Southern Bank of West Palm Beach, supra; Helinger v. Allen, 352 So.2d 122 (Fla. 2d DCA 1977). Sub judice, appellants claim an irregularity in the notice requirement of the sale. Specifically, appellants contend that while the notice of sheriff’s sale stated that said sale would be held at the south front door of the courthouse, it failed to state whether the sale would occur inside the building at the south entrance, or outside, on the courthouse steps. Such silence in the notice, appellants argue, created confusion and was tantamount to an irregularity in the proceedings, requiring the setting aside of the sale.

In support of their contention, appellants rely heavily upon the case of Arlt v. Buchanan, supra. In that case, a sheriffs sale of certain property was to be held at “the south front door of the Dade County Court House.” The sale was, however, conducted at “the information booth near the elevator on the west side of the lobby, some distance from said door.” [Emphasis added.] The Supreme Court of Florida, in quashing this court’s opinion, held that if an injustice was committed by the above “irregularity” the judicial sale could be set aside. See also Ohio Realty Investment Corp. v. Southern Bank of West Palm Beach, supra, where a judicial sale, advertised for 11:00 A.M. and actually held at 2:00 P.M., when coupled with an inadequate purchase price, was set aside.

Here however, we find no irregularity in the proceedings, notwithstanding an admittedly low purchase price bid. The record reveals that the sale was conducted at the proper time and at the proper place, i. e., the south entrance to the courthouse. Despite appellants’ surrogate bidder’s confusion, an officer in the Dade County Sheriff’s Department, by affidavit, stated that prior to the start of the bidding at the “clerk’s sale,” held inside the south door, he announced that the sheriff’s sale, pursuant to court orders and writs of execution, would be conducted outside the south door and that all interested persons were advised to come outside. In addition, the officer stated that this procedure had been followed for months prior to this particular sale.

By his rulings on the motions, the trial judge was obviously convinced as to the regularity of the proceedings. After carefully reviewing the record, in light of the applicable and controlling principles of law, it is, likewise, our opinion that the proceedings were “regular” in nature. Accordingly, the orders appealed from are hereby affirmed.

Affirmed.


text:
    Keith O. MALKEMES, Appellant, v. Kathryn W. MALKEMES, Appellee.
    No. 77-1425.
    District Court of Appeal of Florida, Second District.
    March 29, 1978.
    Rehearing Denied April 27, 1978.

      T. H. “Ted” Brousseau, Jr., Naples, for appellant.
    George O. Kluttz of Pavese, Shields, Garner, Haverfield & Kluttz, Fort Myers, for appellee.
   PER CURIAM.

The primary thrust of this appeal is whether the court properly awarded appel-lee a 100% special equity in a house and two condominium apartments which had been acquired in tenancy by the entirety during the parties’ short marriage. This suit for dissolution was filed subsequent to Ball v. Ball, 335 So.2d 5 (Fla.1976), so none of the pre-Ball presumptions were applicable.

The record contains clear and convincing evidence to support the court’s conclusion that the apartments were bought with money which the appellee had obtained from a source unconnected with the marital relationship and that she did not intend to make a gift of the funds. There is similar evidence with respect to the house except that not all of the monies for its purchase were furnished by the appellee. The record reflects that the appellant contemporaneously supplied $4,000 of his own funds toward the down payment and he signed a joint note with appellee for another $7,000 to be applied thereon. Since the down payment was approximately $30,000, the appellee’s interest in the house should have been limited to 75%.

The other points raised by appellant are without merit. The judgment is modified to the extent that Kathryn W. Caston (formerly Malkemes) shall own an undivided 75% interest and Keith O. Malkemes shall own an undivided 25% interest in the following described property:

Lot 19, Block 127, Unit 4, MARCO BEACH SUBDIVISION, as recorded in Plat Book 6, Pages 32-37, Public Records of Collier County, Florida.

AFFIRMED, AS MODIFIED.

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


author: RYDER, Judge.

text:
    Jackie E. BROOKS and Insurance Company of North America, Appellants, v. Jose M. BOLANOS and Esteria Bolanos, his wife, Appellees.
    No. 77-1913.
    District Court of Appeal of Florida, Second District.
    March 29, 1978.
    Rehearing Denied April 26, 1978.
    David L. Bresler of Fowler, White, Gillen, Boggs, Villareal & Banker, P. A., St. Pe-tersburg, for appellant, Jackie E. Brooks.
    John W. Williams and Jeffrey R. Fuller of D’Aiuto & Williams, P. A., St. Peters-burg, for appellant, Ins. Co. of North America.
    Steven C. Ruth of Piper, Esteva, Pennell, Karvonen & Lewis, St. Petersburg, for ap-pellees.
   RYDER, Judge.

In this automobile negligence action for damages arising out of a collision in which the car driven by appellant Brooks struck the rear of the car driven by appellee Bola-nos, the trial court entered an order granting partial summary judgment on liability in favor of appellees/plaintiffs and against appellants/defendants. The trial court found that there were no material issues of fact; the sole proximate cause of the accident was the negligence of appellant Brooks; and there was no evidence of negligence on the part of appellee Bolanos. We reverse.

It cannot be said that appellees met their “. . . burden of showing conclusively that genuine issues of material fact do not exist.” Holl v. Talcott, 191 So.2d 40, 47 (Fla.1966). See also Tamiami Builders, Inc. v. Smith, 305 So.2d 58 (Fla.2d DCA 1974). On the contrary, the record herein reveals the presence of issues of material fact regarding the negligence of the respective parties sufficient to preclude the entry of partial summary judgment for appellees.

Accordingly, the order granting partial summary judgment is hereby reversed and the cause is remanded for further proceedings not inconsistent herewith.

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


author: GRIMES, Judge.

text:
    John J. CAPIELLO, Allstate Insurance Company, a corporation, and United States Fidelity and Guaranty Company, a corporation, Appellants, v. Johnnie E. GOODNIGHT, as Administrator of the Estate of Geneva Goodnight, Deceased, Appellee.
    Nos. 77-1504 and 77-1567.
    District Court of Appeal of Florida, Second District.
    March 31, 1978.
    Rehearing Denied April 24, 1978.

      Kempton P. Logan, of Henderson, Franklin, Starnes & Holt, Fort Myers, for appellants Capiello and United States Fidelity and Guaranty.
    James H. McNeil, of Taylor & McNeil, Fort Myers, for appellants Capiello and Allstate.
    William D. Keith, of Monaco & Cardillo, Naples, for appellee.
   GRIMES, Judge.

The question posed by this appeal is whether the adult children of one who is killed by the negligence of another can recover damages under the new Florida Wrongful Death Act when they were not dependent upon the decedent.

Geneva Goodnight was killed in a one car collision. The decedent owned the car, but the appellant, John J. Capiello, was driving when the accident occurred. Appellant, United States Fidelity and Guaranty Company, insured the car and appellant, Allstate Insurance Company, insured Capiello.

The decedent was a forty-nine year old divorced woman who was survived by two adult sons and an adult daughter. None of the children were dependent on their mother for support. One of the sons, as administrator of his mother’s estate, brought a wrongful death action against the appellants. The complaint included a claim on behalf of the adult children for net accumulations under Section 768.21(6)(a), Florida Statutes (1975). The appellants admitted the negligence of Capiello, and the case was tried before a jury on damages. Over the appellants’ objection, the jury was permitted to consider as an element of damages the loss of net accumulations to the decedent’s estate. The only other damages were medical and funeral expenses which were stipulated to be $2,141.75. The jury returned a verdict for the appellee in the amount of $50,000.

The portions of the Wrongful Death Act pertinent to the determination of this case are set forth below:

768.18 Definitions. — As used in §§ 768.16-768.27:
(1) “Survivors” means the decedent’s spouse, minor children, parents, and, when partly or wholly dependent on the decedent for support or services, any blood relatives and adoptive brothers and sisters. It includes the illegitimate child of a mother, but not the illegitimate child of the father unless the father has recognized a responsibility for the child’s support.
(5) “Net accumulations” means the part of the decedent’s expected net business or salary income, including pension benefits, that the decedent probably would have retained as savings and left as part of his estate if he had lived his normal life expectancy. .
768.21 Damages. — All potential beneficiaries of a recovery for wrongful death, including the decedent’s estate, shall be identified in the complaint, and their relationships to the decedent shall be alleged. Damages may be awarded as follows:
(6) The decedent’s personal representative may recover for the decedent’s estate the following:
(a) Loss of earnings of the deceased from the date of injury to the date of death, less lost support of survivors excluding contributions in kind, with interest. If the decedent’s survivors include a surviving spouse or lineal descendants, loss of net accumulations beyond death and reduced to present value may also be recovered.

The appellants contend that under Section 768.21(6)(a) the lineal descendants named in the complaint were not “survivors” as defined by Section 768.18(1). The appellee argues that the reference to survivors in 768.21(6)(a) is nonspecific and not a definitional use of the term. He suggests that since the words “minor children” were used several times throughout the Wrongful Death Act, had the legislature intended to limit the recovery of net accumulations to minor children it would have used those terms rather than the words “lineal descendants.” The appellants respond by asserting that the scheme for damages under the new act is the concept of dependency rather than age. Thus, they argue that Section 768.21(6)(a) is not intended to limit the recovery of net accumulations to estates with only a surviving spouse or minor children as beneficiaries but rather is intended to cover adult lineal descendants if they were at least partially dependent upon the decedent.

In Henderson v. Insurance Company of North America, 347 So.2d 690 (Fla. 4th DCA 1977), our sister court recently answered this question adversely to the appel-lee’s position:

The adult children of a decedent who are not dependent upon the decedent are not “survivors” under Section 768.18(1); therefore they are not “survivors” under Section 768.21(6)(a). . . .

We agree. The statutes permit no other interpretation.

Section 768.18 specifies that the definitions contained therein shall be applicable throughout the Wrongful Death Act. The word “survivors” is defined therein and is used throughout the balance of the act. Thus, Section 768.20 requires the complaint to be brought for the benefit of the decedent’s “survivors” and estate, and Section 768.22 envisions a verdict in separate amounts for each “survivor” and the estate. We cannot say that the legislature did not intend the word “survivors” to have the definitional meaning when it was used in Section 768.21(6)(a). The precise language of the statutes leads to the inescapable conclusion that loss of net accumulations is recoverable only by a surviving spouse or lineal descendants providing these persons fall within the definition of “survivors.” By reference to Section 768.18(1) this would include only the surviving spouse and minor children and any other lineal descendants when partly or wholly dependent upon the decedent for support or services. In the absence of dependency, the decedent’s adult children cannot recover net accumulations.

As a fall back position, the appellee contends that if the statute is construed to prohibit recovery of net accumulations by the adult, but nondependent, children, it is unconstitutional. This contention is disposed of by the rationale of White v. Clayton, 323 So.2d 573 (Fla.1975). In upholding the constitutionality of the new act against the claims of the decedent’s two sisters who had been denied recovery for net accumulations, the supreme court said:

The right of recovery in a wrongful death action has not been abolished; only the elements of damage have been changed. The new act, in comparison with the prior law, will increase damages in some circumstances and decrease them in others.
Changes in the elements of damage or the .standards by which they are recovered under these circumstances is a legislative prerogative. .

Accord, Henderson v. Insurance Company of North America, supra.

The judgments are hereby reversed. Because the only remaining element of damage is the stipulated sum of $2,141.75, the trial court is directed to enter a new judgment in this amount against all appellants.

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

      . As our supreme court recently observed when discussing the legislature’s specific usage of defined terms, “In the face of this selectivity, courts generally are not free to replace one term with the other in order to provide what they perceive to be a preferred connotation.” Heredia v. Allstate Insurance Company, 358 So.2d 1353 (Fla.1978).

      . Those charged with the responsibility of preparing the Florida Standard Jury Instructions must have reached the same conclusion because instruction No. 6.4 does not provide for a recovery by the decedent’s estate for net accumulations when there are no survivors.


author: ALDERMAN, Chief Judge.

text:
    RYDER TRUCK RENTAL, INC., John Lee Abrams and Atlas Electric Supplies, a Florida Corporation, Appellants, v. Orin C. KORTE, and Margaret M. Korte, his wife, Sol Kleinman and Allstate Insurance Company, Appellees.
    No. 76-1427.
    District Court of Appeal of Florida, Fourth District.
    April 4, 1978.
    Rehearing Denied May 2, 1978.

      Henry Burnett of Fowler, White, Burnett, Hurley, Banick & Knight, P.A., Miami, for appellants.
    F. Lawrence Matthews, Miami, Gilbert J. Murray, and Patrick N. Chidnese, Fort Lauderdale, for appellees-Korte.
    Robert E. Ferris, Jr., of Gustafson, Caldwell, Stephens & Ferris, Fort Lauderdale, for amicus curiae-The Fraternal Order of Police.
   ALDERMAN, Chief Judge.

In this appeal we must determine what effect, if any, the adoption of comparative negligence in lieu of contributory negligence has had upon the “rescue doctrine” and whether a policeman who is injured while attempting a rescue has a cause of action against those responsible for the peril. We conclude that principles of comparative negligence are applicable in rescue cases and that a policeman, under certain circumstances, may have a cause of action based upon the rescue doctrine.

The appellants were the defendants in the trial court. Abrams, an employee of Atlas, negligently drove a truck owned by1 Ryder, causing it to collide with several parked cars. The plaintiff, a police officer, in response to a call, arrived at the scene with other officers and found a woman hysterically screaming that her husband had a heart condition and was suffering a heart attack. The woman’s husband was slumped forward over the steering wheel of one of the cars involved in the accident. The officers could not reach the victim to administer aid because other vehicles were jammed against both sides of the victim’s car. One of the police officers shouted, “Let’s pick this thing up,” and the plaintiff and two other officers were able to move the front end of one of the vehicles about ten or twelve inches, making it possible for them to reach the victim. In moving the vehicle the plaintiff suffered a back injury. The trial court, in a non-jury trial, ruled that the rescue doctrine was applicable, that the plaintiff was injured while performing beyond his normal duties a humanitarian act in a reasonable manner, and that he was therefore entitled to recover from the defendants.

The Supreme Court, prior to Hoffman v. Jones, 280 So.2d 431 (Fla.1973), recognized that the rescue doctrine could be invoked in a personal injury action to offset contributory negligence on the part of a rescuer, Rose v. Peters, 82 So.2d 585 (Fla.1955), but there has been no detailed analysis of the doctrine. In most cases where it has been considered, our appellate courts have found it to be inapplicable, Rose v. Peters, supra, Adair v. The Island Club, 225 So.2d 541 (Fla.2d DCA 1969), Perotta v. Tri-State Insurance Co., 317 So.2d 104 (Fla.3d DCA 1975), although in Newsome v. St. Paul Fire and Marine Insurance Co., 350 So.2d 825 (Fla.2d DCA 1977), the court, in reversing a directed verdict in favor of the defendant, held that a jury question was presented as to whether the doctrine was applicable. None of the Florida cases, however, have considered the issues which are presented in this appeal.

It has generally been held that the rescue doctrine serves a dual purpose: first, to establish the causal connection between the defendant’s negligence and the plaintiff’s injury, and second, to eliminate the absolute defense of contributory negligence. 57 Am.Jur.2d, Negligence, § 227, § 418. Now that Florida has abolished contributory negligence, the rescue doctrine is no longer needed to allow a rescuer to recover in spite of his contributory negligence, but there is no logical reason why the principles of comparative negligence should not apply in a rescue case. We therefore hold that when the plaintiff in performing a rescue is himself negligent, he should recover only that portion of the entire damages sustained by him as the defendant’s negligence bears to the combined negligence of both the plaintiff and the defendant. In the present case the trial court specifically found that “the plaintiff was injured while performing a humanitarian act in a reasonable manner.” The record supports the finding that the plaintiff was not negligent; therefore it was not necessary to apportion his damages.

Although no longer necessary to relieve a rescuer from the absolute bar of contributory negligence, the rescue doctrine is still applicable to establish that the defendant’s negligence was the proximate cause of the plaintiff’s injury. A basic principle of the doctrine is that where the defendant has created a situation of peril for another the defendant will be held in law to have caused the peril not only to the victim but also to his rescuer, and so to have caused any injury suffered by the rescuer in his rescue attempt. Tiley: The Rescue Principle, 30 Modern Law Review 25.

In this case, the plaintiff as a rescuer should be able to recover from the defendants unless he is barred because he is a policeman. This brings us to the second issue, whether a policeman injured while attempting a rescue has a cause of action under the rescue doctrine against the persons who caused the peril. The plaintiff may be classified as a professional rescuer in that his duties included rendering first aid and assistance to victims of automobile accidents. The trial court found, however, that even though he was expected to perform many duties related to the protection of persons and property, the lifting of an automobile to assist or free a trapped person was beyond his normal duties.

Most of the cases which exclude professional rescuers from the rescue doctrine have dealt with firemen and are based on the concept that the doctrine requires a voluntary act by a rescuer who is prompted by a spontaneous, humane motive to save human life without any duty by virtue of his employment. See, for example, Nastasio v. Cinnamon, 295 S.W.2d 117 (Mo.1956). It has been said that since it is the fireman’s business to fight fire he cannot complain of negligence in the creation of the very occasion for his engagement; that there is no duty owed the fireman to exercise care so as not to require the special services for which he is trained and paid. Krauth v. Geller, 31 N.J. 270, 157 A.2d 129 (1960); see also Erickson v. Toledo, Peoria & Western R.R., 21 Ill.App.3d 546, 315 N.E.2d 912 (1974). But it has been recognized that even though it is contemplated that a fireman in the performance of his duties shall extinguish fires however caused and encounter incidental risks, it does not follow that a fireman voluntarily assumes risks of injury beyond those inevitably involved in fire fighting. Jackson v. Velveray Corp., 82 N.J.Super. 469, 198 A.2d 115 (1964).

A Louisiana court has held that a policeman performing his duty may be classified as a rescuer. Gambino v. Lubel, 190 So.2d 152 (La.App. 4th Cir. 1966). In that case a policeman, investigating an automobile that was stopped with its engine running, and who discovered and attempted to aid an unconscious diabetic driver, was held to be a rescuer, and his failure to turn off the ignition did not constitute contributory negligence when the motorist revived and accelerated the automobile, injuring the policeman. The court made no distinction between a professional and a non-professional rescuer, and no reference was made to those cases which recognize a special rule for the professional rescuer.

While we do not go as far as the Louisiana court apparently did in Gambino v. Lubel, supra, we do believe that a professional rescuer, such as a policeman, under certain circumstances, may be within the intended scope of the. rescue doctrine. We think that a policeman should be able to recover under the doctrine when, during a rescue attempt, he is injured as the result of having performed an act or incurred a risk beyond the call of his normal duties; additionally, we think that he should be able to recover when his injury results from a danger not reasonably foreseeable. In other words, if, as part of his normal duties, a policeman is expected to perform particular acts or incur certain risks in attempting rescues, and as a result of performing such acts or incurring such risks he is injured, he should not recover under the rescue doctrine. If, however, in attempting a rescue, he is injured performing acts or incurring risks beyond the call of his normal duties, or if he is injured as a result of a danger not reasonably foreseeable, he should recover.

It is undisputed that the defendants were responsible for placing the victim in peril. It also appears that the plaintiff had a duty to render first aid and assistance to the victim. The disputed issue is whether the lifting of an automobile by hand, in order to effect the rescue of a trapped motorist, was within the call of plaintiff’s normal duties as a policeman. The trial judge, as the finder of fact, concluded that the plaintiff-policeman was injured while performing beyond his normal duties. The evidence may be subject to differing interpretations, but we cannot say as a matter of law that the trial court’s finding of fact is clearly erroneous. Therefore, we must recognize that the plaintiff acted beyond the scope of his normal duties as a policeman when he lifted an automobile by hand, thereby injuring his back. It follows then that the plaintiff, under the circumstances of this case, has a cause of action under the rescue doctrine and is not excluded because he is a policeman.

We have also considered plaintiff’s cross-appeal in which he contends that the damages awarded are insufficient to compensate him for the injuries and find no error.

AFFIRMED.

CROSS and MOORE, JJ., concur.


author: GREEN, OLIVER, Associate Judge. DAUKSCH, Judge,

text:
    Laura M. JONES, Appellant, v. TRAVELERS INDEMNITY COMPANY OF RHODE ISLAND, Appellee.
    No. 76-2511.
    District Court of Appeal of Florida, Fourth District.
    April 4, 1978.
    Rehearing Denied May 2, 1978.

      Robert V. Romani of Farish & Farish, West Palm Beach, for appellant.
    Roy R. Watson II of Adams, Coogler & Watson, West Palm Beach, for appellee.
   GREEN, OLIVER, Associate Judge.

We affirm.

The Appellant’s minor child died in an automobile accident on August 31, 1975. Several claims arose because of this accident.

The tortfeasor’s liability insurer provided coverage in the amount of $15,000.00 per person, and $30,000.00 per occurrence. The Appellant chose to settle her claim against the tortfeasor for $10,000.00, because of the other competing claims. The Appellant also was covered by uninsured motorist insurance in the amount of $15,000.00 per person, and $30,000.00 per occurrence.

The Appellant brought this suit against her uninsured motorist carrier, the appellee, contending that because her initial recovery had been diminished, she was entitled to full coverage under her uninsured motorist policy, in spite of Section 627.727 of the Florida Statutes. The Appellant and Appellee filed Motions for Summary Judgment. Summary Judgment was entered in favor of the Appellee on October 27, 1976.

Section 627.727(2)(b), Florida Statutes, provides:

“(a) For the purpose of this coverage, the term ‘Uninsured motor vehicle’ shall, subject to the terms and conditions of such coverage, be deemed to include an insured motor vehicle when the liability insurer thereof:
(b) Has provided limits of bodily injury liability for its insured which are less than the limits applicable to the insured person provided under his uninsured motorist coverage”.

Paragraph (2)(b) of Section 627.727, Florida Statutes, is explicit in providing that uninsured coverage becomes applicable only when the uninsured policy limits exceed that which is available from the tortfeasor.

There is no provision in either of the policies associated with this case to fill this void. Such claims must be provided for by law or contractual agreement. For this court to hold otherwise is to usurp the powers of the legislature.

The decision of the trial judge granting Appellee’s Motion for Summary Judgment is affirmed.

ALDERMAN, C. J., concurs.

DAUKSCH, J., dissents with opinion.'

DAUKSCH, Judge,

dissenting:

Appellant was the mother of a child killed in an automobile accident which also resulted in the death of another and serious injuries to three others. Appellee is appellant’s insurance carrier.

When appellant went to the tortfeasor’s insurance company to collect for her daughter’s death she found the coverage to be inadequate to compensate her for her injuries because the policy provided a maximum per occurrence limit of $30,000.00 and the other injured person had claims against the $30,000.00. So, with the concurrence of ap-pellee, appellant settled with the tort-feasor’s carrier for $10,000.00.

Appellant now seeks to collect from ap-pellee on the uninsured/underinsured motorist benefits under her policy which has $15,000.00 per person limits. She wants the entire $15,000.00 because the parties here have agreed her claim is worth at least $25,000.00. In an action for declaratory judgment the trial court determined appellant is entitled to nothing from her insurance company.

The purpose of underinsured motorist coverage is to protect persons who suffer their injuries from the tort of one who has decided to inadequately provide for those he may injure. Section 627.727(2)(b) Florida Statutes (1975). It is an extension of the older uninsured motorist coverage which is the provision for recompense of persons, by their own insurance carriers, who are injured by a tortfeasor with no insurance. As was said in State Farm v. Anderson, 332 So.2d 623 (Fla. 4 DCA 1976) I see no reason to not apply the same rules in under-insurance cases as are applied in uninsured cases. In a logical extension of that case I should say appellant is entitled to collect from her carrier all the money available under her policy to pay for the injuries. Because the amount of the damages exceeded $25,000.00 and she only collected $10,000.00 from the tortfeasor, she is entitled to the limits of her coverage, $15,-000.00. See also Government Employees Insurance Company v. Graff, 327 So.2d 88 (Fla. 1 DCA 1976).

Naturally appellee wants to pay nothing and has argued that if it has to pay anything it should only have to pay $5,000.00 because appellant is only entitled to collect $15,000.00 and she has already collected $10,000.00 from the tortfeasor. The insurance contract between the parties here defines the liability of appellee to appellant. It provides $15,000.00 for appellant if the tortfeasor has no insurance and by statutory definition, Section 627.727(2)(b), Florida Statutes (1975) this also applies to underin-sured vehicles. Appellee argues this under-insured motorist coverage is “not intended to be general excess insurance.” It argues that appellant’s coverage was identical to the tortfeasor’s therefore she is not entitled to recover because the statute says she can only recover if the tortfeasor’s policy limits are “less than the limits applicable to the injured person provided under (her) uninsured motorist’s coverage.” Section 627.-727(2)(b), Florida Statutes (1975). This construction of the statute is too strict. In discussing the statute, it was said in Government Employees Insurance Company v. Graff, supra at 90, “The benefits thus provided are designed to insure the recipient against uncompensated loss attributable to the financial irresponsibility of the party at fault . . . ” There is no duplication of funds paid to appellant because it is agreed her damages exceed all available insurance. After all, if the tortfeasor was uninsured appellant would be entitled to collect from her policy the full $15,000.00 so what logical reason is there to not at least try to fully compensate her with the bene-1 fits provided in her insurance contract?

I would reverse.


author: BOYER, Judge.

text:
    Dr. E. W. LUDWIG, Dr. Richard W. McDowell and Dr. Vernon P. Zeigler, Appellants, v. Samuel J. GLOVER, Jr., a minor by his father and next friend, Samuel J. Glover, Sr., and Samuel J. Glover, Sr., Individually and as Trustee for Barbara Glover, the natural mother of Samuel J. Glover, Jr., Appellees.
    No. FF-302.
    District Court of Appeal of Florida, First District.
    April 5, 1978.

      John R. Saalfield and Harold H. Catlin of Marks, Gray, Conroy & Gibbs, Jacksonville, for appellants.
    Gerald R. Hart of Spinner, Hart & Brown, Jacksonville, for appellees.
   BOYER, Judge.

We are again, by this interlocutory appeal which we have elected to entertain as a petition for common law certiorari, required to interpret Florida’s new and vexing medical liability mediation law embodied in F.S. 768.133. The facts are not in dispute.

Samuel J. Glover, Jr., is an infant born October 4, 1973. It is alleged that he sustained certain injuries at birth as a result of the negligence of appellants, who are physicians. The parties agree that the statutorily imposed limitation period is two years which commenced to run on October 4,1973 and would have expired, if not tolled in some manner, on October 4, 1975. The plaintiffs, appellees here, filed their claim under the Medical Malpractice Reform Act (MMRA) on September 17, 1975. No final hearing was held and on September 13, 1976 the judicial member of the mediation panel issued a final order purportedly terminating jurisdiction of the panel. On September 16,1976 the complainants filed their complaint in circuit court. The defendant physicians asserted the statute of limitations as a defense. The plaintiffs filed a motion to strike that defense on the basis that the statutory sixty day extension contained in F.S. 768.133(4) commenced running from the date of the order terminating jurisdiction rather than the date of the expiration of the ten month period provided in F.S. 768.133(3). The trial court initially denied the motion but upon the plaintiffs alleging in a petition for rehearing that the ten month period expired on a Saturday the petition for rehearing was granted and the defense stricken. It is the striking of that defense which we are now asked to review.

Clearly, but for the filing of the claim on September 17,1975 the statute of limitation would have expired on October 4, 1975. Equally clearly, the filing of the claim tolled the expiration of the statutory period. (F.S. 768.133(4))

F.S. 768.133(3) provides, in so far as here material, as follows:

“ * * * If no hearing on the merits is held within 10 months of the date the claim is filed, the jurisdiction of the mediation panel on the subject matter shall terminate, * * * ’’ (Emphasis added)

Rule 20.190 Fla.R.Med.P. provides, in material part:

“The clerk shall send to all parties a notice of termination of the proceedings when any of the following events has occurred:
“(d) The final hearing has not been concluded within 10 months from the date the claim is filed.
“Termination for any of the foregoing reasons terminates the jurisdiction of the panel. Such termination is final and cannot be extended, modified or reinstated by the panel, the judicial referee or by agreement of the parties. A termination for one of the foregoing reasons is automatic, and the clerk’s act or failure to act is ministerial only.” (Emphasis added)

Further, this court held in Aldana v. Holub et al., 354 So.2d 1272 (Fla. 1st DCA 1978), that jurisdiction of the panel terminates at the expiration of the statutorily imposed period of ten months of the date of the filing of the claim. It is significant that the ten month period provided in F.S. 768.133(3) and referred to in Rule 20.190 Fla.R.Med.P. is a jurisdictional period as distinguished from a limitation period. There is a difference. (See Mullin v. State, etc., 354 So.2d 1216 (Fla. 1st DCA 1978).)

The order of the judicial referee in the case sub judice was, therefore, ineffective to extend the jurisdictional period.

F.S. 768.133(4), after providing that any applicable statute of limitation is tolled by the filing of a claim pursuant to subsection (1), states:

“ * * * In any event, a party shall have 60 days from the date the decision of the hearing panel is mailed to the-parties or the date on which the jurisdiction of the panel is otherwise terminated in which to file a complaint in circuit court.” (Emphasis added)

Since the applicable statute of limitation sub judice, but for being tolled, would have expired prior to termination of jurisdiction in the mediation panel and, but for the sixty day period of extension allowed in F.S. 768.133(4), would have expired in less than sixty days after such termination of jurisdiction, the query is: When did the sixty day period above mentioned end? In order to decide that issue we must first determine when the period commenced. That determination, in turn, depends on the date jurisdiction was terminated in the mediation panel.

As we have above decided, jurisdiction of the mediation panel, in this particular case, terminated at the expiration of the ten month period provided in F.S. 768.133(3): But when did that occur?

It is important to note that the period provided in F.S. 768.133(3) is described in months whereas the period described in subsection (4) is in days. The former relates to jurisdiction: The latter to limitation.

As above recited, the claim sub judice was filed on September 17, 1975. In Simmons v. Hanne, 50 Fla. 267, 39 So. 77 (Fla.1905), the Supreme Court of Florida had occasion to interpret a then existing statute requiring that a writ of error be sued out within “six months” from the date of judgment. In deciding what was meant by the term “months” the Supreme Court of Florida said:

“The term ‘months,’ when used in a statute of this state, means calendar months, and not lunar months, unless there is something in the statute which indicates that a contrary meaning was intended, [citation omitted] When time is to be computed from a particular day, or when an act is to be performed within a specified period from or after a day named, the rule is to exclude the first day designated, and to include the last day of the specified period, [citation omitted] An appeal taken August 22d from a judgment rendered February 21st is not taken within six months, and must be dismissed, [citation omitted]
“Excluding the 26th day of August, the day when the judgment was filed and recorded by the clerk, the six months within which a writ of error must be sued out from that day would expire on the 26th day of February, 1905 * * * ” (39 So. at page 79)

In State v. White, 73 Fla. 426, 74 So. 486 (Fla.1917) in construing a poll tax statute, our Supreme Court said:

“ * * * The word ‘month,’ when used in a statute or contract without qualification, meant, at common law, a lunar month of 28 days. See 5 Words and Phrases, 4574. In the United States, however, the word is construed to mean calendar time. * * *
******
“The word ‘month’ as used in the statutes above quoted means a calendar month, or that period of time elapsing between a given date and the corresponding date of the next preceding month by name. * * * ” (Emphasis added) (74 So. at page 487)

In a more recent case, Greer v. Estate of Smith, 342 So.2d 1007 (Fla. 4th DCA 1977), our sister court of the Fourth District said:

“Although appellee is troubled somewhat by the term ‘calendar month’, the general definitions which describe it as a period of time from any day of any month to the corresponding day of the next month appear adequate in this instance. * * * ” (342 So.2d at page 1010)

We decide therefore that ten months from September 17, 1975 expired at midnight on July 17, 1976.

Appellee urges that since July 17, 1976 was a Saturday the ten month jurisdictional period was extended to Monday, July 19, 1976, citing Fla.R.Civ.P. 1.090(a) and several cases which hold that if the last day of a period of limitation for commencing an action or for the doing of any act falls on a Saturday, Sunday or a legal holiday the period is extended and the action may be commenced or the act taken on the following secular or business day. (See, for example, the cases above cited and in addition thereto Daly, Aluminum Products, Inc. v. Stockslager, 244 So.2d 528 (Fla. 2d DCA 1971); Stockslager v. Daly Aluminum Products, Inc., 246 So.2d 97 (Fla.1971); Herrero v. Black and Decker Manufacturing Company, 275 So.2d 54 (Fla. 3rd DCA 1973); Black and Decker Manufacturing Company v. Herrero, 281 So.2d 18 (Fla.1973); and Moorey v. Eytchison and Hoppes, Inc., 338 So.2d 558 (Fla. 2nd DCA 1976)).

The problem, however, with applying that rule to the ten month period now under consideration is two-fold: First the ten month period is jurisdictional rather than a limitation. Even assuming, however, without deciding, that a jurisdictional period is extended if the last day thereof falls on a Saturday, Sunday or legal holiday, no difference would be made under the facts sub judice because we are not here concerned with any act to be performed or attempted to be performed within the ten month period. Sub judice the only significance of the ending of the ten month jurisdictional period prescribed by subsection (3) of F.S. 768.-133 is that it establishes the time of the commencement of the running of the sixty day period provided by subsection (4) of the same statute.

We are not unmindful that there is an inconsistency in the several sections of Fla.R.Civ.P. 1.090 in that section (b) provides that “When an act is required or allowed to be done within a specified period of time by order of court, * * * section (c) provides that “The period of time provided for the doing of any act or the taking of any proceeding shall not be affected * * * ” and section (e) provides “When a party has the right or is required to do some act or take some proceeding within a prescribed period * * * ” whereas there is no corresponding provision relating to the doing of any act or taking any action in section (a) of that rule. We nevertheless construe the words “period of time prescribed or allowed by these rules, by order of court or by any applicable statute,” as contained in section (a) of the rule to relate to the period within which some act or action must be taken. Accordingly, we hold that the expiration of the ten month jurisdictional period, in so far as it is significant to the case sub judice, is only to trigger the commencement of the running of the sixty day period provided in subsection (4) and that it is not extended if the last day of the ten month period is a Saturday, Sunday or legal holiday. Whether the ten month period would be extended for the commencement or conclusion of a hearing before the mediation panel should the last day thereof fall on a Saturday, Sunday or legal holiday is not an issue in this case. We therefore defer any decision on that issue until properly presented in an appropriate case.

We decide therefore that, sub judice, the ten month period ended at midnight on Saturday, July Í7, 1976 and that jurisdiction of the mediation panel terminated at that time.

As above noted, subsection (4) provides that “a party shall have 60 days from the date * * * on which the jurisdiction of the panel is * * * terminated in which to file a complaint in Circuit Court.” The effect of that provision is to extend any applicable statute of limitation. It comes into operation if the applicable statute of limitation would expire, but for being tolled by the filing of the claim, during the period that the mediation panel had jurisdiction or within 60 days thereafter: In which event the claimant may file his complaint in Circuit Court at any time within sixty days following the date upon which jurisdiction in the mediation panel terminated.

The Supreme Court of Florida stated in McMillen v. Hamilton, 48 So.2d 162 (Fla.1950):

“The general rule for computation of time accepted and recognized in this jurisdiction is that where an act is to be performed within a specified period of time, the first day is excluded in the computation and the last day of the period is included, [citations omitted]” (48 So.2d at page 163.)

Sub judice, as we have held, jurisdiction in the mediation panel terminated at midnight on July 17, 1976. According tó F.S. 768.133(4) the claimants had sixty days from that date in which to file their complaint in Circuit Court. Applying the last above quoted rule, the day from which the count is commenced (July 17th) is excluded. Commencing with July 18th, and including that date, the sixtieth day, which is also included, was September 15, 1976. Appel-lee’s complaint was filed on September 16, 1976. It was not timely filed. The learned trial judge therefore erred in holding that the plaintiffs’ claim was not barred by the statute of limitation.

REVERSED.

McCORD, C. J., and McLANE, RALPH M., Associate Judge, concur.