author: CROSS, Judge. DOWNEY, Judge,

text:
    In re ESTATE of Gertrude M. WYLIE, Deceased.
    No. 75-1746.
    District Court of Appeal of Florida, Fourth District.
    Feb. 4, 1977.
    Jerome J. Bornstein, of Bornstein & Pe-tree, Orlando, for appellants Patricia Wylie Yarnell and Donald M. Wylie.
    Eli H. Subin, of Subin Shams Rosenbluth & Moran, Orlando, for appellees Lee Jay Colling and Betty Otto.
   CROSS, Judge.

Appellants, Donald M. Wylie and Patricia Wylie Yarnell, appeal an order entered in favor of appellees, Betty S. Otto and Lee Jay Colling, Co-Executors of the Estate of Gertrude M. Wylie, deceased, dismissing appellants’ amended petition to set aside an order discharging the Co-Executors of the Wylie Estate and discharging a Rule Nisi. We reverse.

On August 31,1964 Donald M. Wylie died leaving a last will and codicil thereto dated August 19, 1957 and December 12, 1963, respectively.

In Article VII, paragraph (a) of his last will, Donald M. Wylie created a testamentary trust in the following manner:

“I give, devise and bequeath said fraction of said rest, residue and remainder of my estate in trust to hold, manage, invest and reinvest the same and to pay the entire net income from the time of my death, monthly or quarterly, as my executors and trustees shall from time to time determine, to my said wife, Gertrude M. Wylie, during her life and upon her death, to distribute the principal of said trust and the income for the period between the last income distribution date and the date of my wife’s death, to or for the benefit of such person or persons or the estate of my said wife, in such amounts and proportions and upon such trusts, terms, conditions and limitations as my wife shall appoint by will made after my death, which will specifically refers to the power herein given to my wife . . . ”

Appellee, Lee Jay Colling, was the attorney for Gertrude M. Wylie, the wife of Donald M. Wylie, and drafted her last will and codicil. In accordance with the codicil to her will, Gertrude M. Wylie directed:

“Under ARTICLE SEVENTH of the Will of my husband, DONALD M. WYLIE, which was dated August 19, 1957, and admitted to probate in the County Judge’s Court of Dade County, Florida, File No. 64446-A, I was given a power of appointment. I now exercise it and direct that the principal and undistributed income, if any, of the trust be appointed as follows:
“A. I give, devise and bequeath unto my Trustees hereinafter named all of the principal and undistributed income, if any, over which I have power of appointment . . . .”

Gertrude M. Wylie designated Betty S. Otto and Lee Jay Colling as Trustees of the trust created by her last will and codicil.

Gertrude M. Wylie died on May 20, 1969, and her will and codicil was admitted to probate and letters testamentary were issued to Betty S. Otto and Lee Jay Colling as Co-Executors of the Estate of Gertrude M. Wylie, deceased. Mr. Colling was employed by the Co-Executors of the estate to represent the Co-Executors and to serve as attorney for both the Co-Executors and the Estate of Gertrude M. Wylie.

Following the issuance of the letters testamentary to Betty S. Otto and Lee Jay Colling, as Co-Executors of the Estate of Gertrude M. Wylie, these Co-Executors prepared and executed an estate inventory, the aggregate value of the assets of the Estate of Gertrude M. Wylie reported therein as $136,263.96. On December 25, 1969 this original inventory was increased and amended by a savings account in the amount of $7,094.39, which had been previously unknown.

In the interim between the filing of the original inventory and the amendment pertaining to the savings account, Betty S. Otto and Lee Jay Colling executed and filed a document designated “Acceptance of Trusteeship.” In this document they recited that Gertrude M. Wylie had a general power of appointment granted to her under the will of her late husband which she had exercised, appointing that the property over which the said power of appointment was exercised be distributed to Betty S. Otto and Lee Jay Colling as Trustees, and approximately nine months later on May 26, 1970 Betty S. Otto and Lee Jay Colling executed a second amendment to the inventory of Gertrude M. Wylie’s Estate.

The second Amendment stated that they were appointed Co-Executors of the Estate of Gertrude M. Wylie, and they again recited that Gertrude M. Wylie had exercised power of appointment granted to her under her husband’s will; that they acting both as Co-Executors and Trustees of the testamentary trust carried under the will of Gertrude M. Wylie did not take possession of any of the assets included in the trust established by her husband until September 26,1969, and concluded with a listing of the assets in the Trust of Donald M. Wylie amounting to slightly more than one million dollars. Adding this amount to the total of the inventory of Gertrude M. Wylie’s estate increased the assets from $143,358.35 to $1,149,783.87.

Based upon the new total inventory in the amount of $1,149,783.87, the appellees, Betty S. Otto and Lee Jay Colling, filed a petition for allowance of executors’ fees in the sum of $28,662.24 each, and a second and additional fee for Mr. Colling as attorney in the sum of $29,567.24. These fees were approved by the court. Payment was accordingly made to Betty S. Otto as Co-Executrix in the amount of $28,662.54 and to Lee Jay Colling as Co-Executor in a like amount, and attorneys’ fees in the amount of $29,567.24, making an aggregate amount of $58,329.48 paid to Mr. Colling.

On April 25, 1974 an order was entered discharging the Co-Executors and closing the Estate of Gertrude M. Wylie.

On April 16, 1975, upon the petition of Donald M. Wylie and Patricia W. Yarnell, the court issued a Rule Nisi to Betty S. Otto and Lee Jay Colling for them to show cause why the Estate of Gertrude M. Wylie should not be reopened and the matter of executors’ and attorneys’ fees be redetermined.

On September 4, 1975 the court entered an order discharging the Rule Nisi and dismissed the amended petition. This appeal then followed.

We have for determination the following issue, which was stipulated by the parties:

“Was it erroneous, improper or unlawful to include in the estate inventory of the Gertrude M. Wylie Estate, and base the computation and allowance of executors’ fees and attorneys’ fees thereon, the value of the Donald M. Wylie Trust over which Gertrude M. Wylie had a general power of appointment which she exercised by her last will codicil in favor of her testamentary trustees, and the assets of which were actually distributed and paid over to the trustees under the will of Gertrude M. Wylie, deceased?”

The issue presented to this court is one of first impression in the State of Florida. We must, therefore, deal with the manifold problems of substantive law as they relate to the interest of the donee of a power of appointment.

The power of appointment is a unique legal creature. It is never created by implication or by operation of law, but only by a deliberate act. The law calls the creator of the power the donor, the person who is permitted to exercise the power the donee, and the person in whose favor the power is exercised the appointee.

Today, estate planners include a power of appointment in a will as a common practice to qualify for the marital deduction under the provisions of the Internal Revenue Code. However, historically, the power of appointment dates back before the Statute of Uses and Wills. The power of appointment was developed in chancery through the vehicle of the use. Basset’s Case, 2 Dyer, 136a, 73 Eng.Rep. 297 (1557); 4 Holdsworth, History of English Law, 474 (1926). It was chiefly utilized in those places where land was not divisible to make it, in effect, divisible. Later, in the XVIII and XIX centuries in England, the general power was used by conveyancers to give flexibility to the land law system, and also to skirt other inconvenient rules of law, particularly those involving dower and cur-tesy and the incapacity of married women to convey. 7 Holdsworth, History of English Law, 181 (1926).

The main strut in the ancient superstructure of power was “relation back doctrine.” This doctrine was expressed in two forms (1) that the appointee of the property takes directly from the donor of the power or (2) that the instrument exercising the power is to be read as part of the instrument creating the power. The exercise of the power of appointment was used as a shifting event, much as any other shifting executory interest was viewed. The “relation back doctrine” is nowhere better described than in the Restatement of the Law of Property:

“The donee of the power of appointment likewise has the power to create interest in other persons; but it is the underlying dogma of the law of powers of appointment that such interest constitute transfers from the donor of the power, not from the donee.” 3 Restatement of Property (1940) § 318 Comment (b).

The doctrine of relation back, minimizing as it does the importance of the donee of the power, is the mainstay for that rule of law which treats the donee as a mere agent with no property interest. Although under attack by many commentators in the field of future interests, the prevailing view still remains that a general power of appointment is a mere mandate or authority to dispose of property and not an interest in property itself. Holzback v. United Virginia Bank, 216 Va. 482, 219 S.E.2d 868 (Sup.Ct.Va.1975); In re Von Der Hallen’s Trust, 9 Misc.2d 927, 169 N.Y.S.2d 698 (1957); Commonwealth v. Carter, 198 Va. 141, 92 S.E.2d 369 (1956); Tax Commission of Ohio v. Oswald, 109 Ohio St. 36, 141 N.E. 678 (1923); Davis v. Kendall, 130 Va. 175, 107 S.E. 751 (1921); Shattuck v. Burrage, 229 Mass. 448, 118 N.E. 889 (1918); Supreme Colony United Order Pilgrim Fathers v. Towne, 87 Conn. 644, 89 A. 264 (1914).

Those courts emphasizing the agency aspect of the general power of appointment adhere to the proposition that title to the property concerned remains with the donor until the power has been effectively exercised by the donee, at which time the title passes through the donee as a conduit to the appointee; that a power of appointment does not vest ownership of the property in the donee of the power; the property remains the property of the donor of the power, and the donee in execution of the power is considered to be a mere agent of the donor. Shriners’ Hospital v. Citizens National Bank, 198 Va. 130, 92 S.E.2d 503; 72 C.J.S. Powers § 31, pages 426, 427; 41 Am.Jur., Powers § 70, at 857. Other courts have adhered to the proposition that a property which is exposed to the exercise of a power of appointment does not become part of the estate of the donee of the power. Equitable Trust Company v. Snader, 17 Del.Ch. 203, 151 A. 712 (1930); In re: Buck Estate, Del.1973, 301 A.2d 328.

Those writers extolling the principle that the general power of appointment is an interest in property as opposed to a mandate or an authority to dispose of property, base such reliance upon the fact that the donee of a general power of appointment can appoint to himself if the power is presently exercisable or at least to his estate if the power is testamentary only, state that the power should be treated as an interest in property, and that the general power is but a historical relic that is useless except to evade the rules of law relating to the liabilities and duties of ownership. Depending upon for what. purpose they are evaluating the power, some authorities reviewed emphasize the diametrically opposed proprietorship aspect of the general power of appointment. The rights of third parties, such as creditors, spouse and heirs of the donee, claiming against or through the donee of the power, illustrate the interplay between the two concepts. For example, the Internal Revenue Code of 1954, § 2041, treats the donee of a general power as owner for tax purposes; thus, the tax is imposed on the estate of the donor when the power is created by will, and on the estate of the donee when the power is exercised by will. It can readily be seen that whether a general power of appointment is to be viewed as a property interest or as an authority to dispose of the property depends upon the facts of the case, and for what purpose that power is being evaluated.

In the case sub judice, there must be a determination whether the power of appointment bestowed upon Gertrude M. Wylie by her husband created in Mrs. Wylie as donee, an interest in property or merely a mandate or authority to dispose of property. Such determination controls the co-executors’ and attorneys’ fees which were awarded by the trial court, since these fees were calculated on the value of Mrs. Wylie’s estate, which valuation included the assets over which Mrs. Wylie had a general power of appointment. If these assets were to be considered an interest in property, then the fees awarded would stand. However, if Mrs. Wylie’s power of appointment was merely an authority to dispose of property, the fees awarded would fall.

We see no compelling reason in this case to depart from those innumerable cases justified by the historical origin of powers of appointment, and we determine that Mrs. Wylie’s power of appointment was an authority to dispose of property and not an interest in property. Any contrary determination would do violence to the spirit if not the letter of the law of powers of appointment and would, in effect, further the elimination of one of the most useful tools in estate planning, in addition to giving credence to an unjust method of assessing executor’s fee and attorneys’ fees.

Our decision is not based upon an arbitrary choosing between opposed aspects of the general power of appointment, but is based upon the goal to achieve substantial justice.

Accordingly, the order appealed is reversed and the cause remanded for further proceedings consistent with the views herein expressed.

Reversed and remanded.

FOGLE, HARRY W., Associate Judge, concurs.

DOWNEY, J., concurs specially, with opinion.

DOWNEY, Judge,

specially concurring.

The issue before this court is whether the property which was the subject of the power of appointment Gertrude M. Wylie exercised was part of her estate. If it was, then the fees the court awarded to the appellees were proper; if it was not, the fees were improper.

The following authorities support a holding that the property subject to the power of appointment in the present case was not part of the estate of Gertrude M. Wylie: United States v. Field, 255 U.S. 257, 41 S.Ct. 256, 65 L.Ed. 617 (1921); In re Baird’s Estate, 135 Cal.App.2d 333, 287 P.2d 365 (1955); In re Breault’s Estate, 29 Ill.2d 165, 193 N.E.2d 824 (1963); Boston Safe Deposit & Trust Co. v. Johnson, 151 Me. 152, 116 A.2d 656 (1955); Fiske v. Warner, 99 N.H. 236, 109 A.2d 37 (1954); Norris v. Oklahoma Tax Commission, 350 P.2d 246 (Okla.1960); In re Fenner’s Estate, 2 Utah 2d 134, 270 P.2d 449 (1954); 33 C.J.S. Executors and Administrators § 121, pp. 1074-1075.

On the strength of these authorities I concur in the decision to reverse the order under review.

      . Section 733.617, Florida Statutes, effective 1975, alleviates the fee aspect as a problem in the probate of property devised under a general power of appointment. A fee award must be based upon a reasonable fee as opposed to a fee schedule based upon the value of the estate.


source: Caselaw Access Project

license: Public Domain

text:
    Edith Sandra POPE, Appellant, v. Generoso POPE, Appellee.
    Nos. 75-1903, 75-2206.
    District Court of Appeal of Florida, Fourth District.
    Feb. 4, 1977.
    John R. Young, of Hamilton, James, Mer-kle & Young, West Palm Beach, for appellant.
    George H. Bailey, of Jones, Paine & Foster, P.A., West Palm Beach, for appellee.
   DURANT, Jr., N. JOSEPH, Associate Judge.

This is an appeal from a final order denying modification of a final decree of divorce as it relates to an award of alimony and child support. The decree in question incorporated a separation and property settlement agreement by reference, which agreement established the original rights of the parties relative to the payment of alimony and support. The petition for modification was filed on behalf of the Wife, and was based on a substantial and material change in the financial circumstances of the parties.

The original decree of divorce was entered on June 28, 1963. The marriage of the parties had been of approximately three (3) years duration, with the termination being at the instance of the Husband, at about the same time the minor child of the parties, GINA MARIE POPE, was born.

The decree, and the agreement adopted therein, provided in 1963 for the payment of $2,500.00 a month in alimony to the Wife, and the payment of $416.66 per month for child support. These payments were expressly premised on an annual gross income in the Husband of $112,000.00 for the years 1961 and 1962. Proviso was made for a reduction in the Husband’s obligation should his income of $112,000.00 have been reduced in the years thereafter. The agreement was silent with respect to any effect to be given to an increase in the Husband’s income. The agreement and decree likewise provided ultimately for the Husband to furnish a home for the Wife and minor child to live in, with title to the homeplace to be retained by the Husband.

The above described agreement and final decree was sought to be modified on essentially two grounds, both reflecting material changes in the financial circumstances of the parties. The first was the substantial increase in income and salary realized by the Husband from 1963 to 1973. The second was the increased financial needs of the Wife and child evidenced principally by the erosion in the purchasing power of the dollar created by inflation, and the increased cost of supporting a child now some eleven years older than she was at the time of the final decree.

The record reflects that from a total income of $112,000.00 in 1963, as evidenced by the property settlement agreement, the Husband had a taxable income of $250,-000.00 in 1973, together with the other benefits in car expense and chauffeur salaries.

Unlike the Husband, the appellant-wife’s income has not increased since 1963. It remains at a total of $35,000.00 per year, with $5,000.00 of this allocable to child support. She is now 49 years of age and unemployed. She has not been employed since she was 19 to 20 years of age and has no special qualifications for employment. The record is devoid of any showing she has any viable opportunity for employment, and her health is deteriorating, both emotionally and physically.

GINA MARIE, the minor child, is now 12 years of age with all of the increased needs and demands of an active teenager. The cost of maintaining and providing for this youngster have materially increased since 1963. Indeed, the trial court conceded he would take judicial notice of this fact. The needs reflected by the Petitioner’s affidavit, marked as Exhibit 24, are for the most part similar to the needs she had in 1963 as they relate to herself, but at vastly increased prices. It is obvious they cannot and are not being met by alimony and support awarded by the 1963 judgment.

Milton Redman, a professor of economics, testified that to obtain a like purchasing power to that afforded in 1963 by $30,-000.00, one would in 1973 require some $51,-000.00. Essentially there has been a rise of 68.3% in the cost of living on basic items, with an even larger increase on service items.

In the case of Chord v. Chord, 209 So.2d 281 (Fla.3d DCA 1968) the Court said:

“A petition to modify an award of alimony made in a final decree of divorce will not be granted except upon a showing in change of circumstances. Conversely, it may not be denied when the change is clearly shown.” (Emphasis supplied).

And, in the case of Banks v. Graham, 252 So.2d 864 (Fla.3d DCA 1971), which involved a petition for modification of child support provisions, the Court held that where the plaintiff did establish a prima facie case, “the trial court abused its discretion in not making some award which increased the child support payments from defendant to the plaintiff.”

In the case sub judice, the appellant-wife established more than a prima facie case, and, therefore, we must hold that the trial court erred in denying any increase in alimony and child support.

Having concluded that the trial court erred, we will not discuss the amounts of the award, but reverse the order with directions to the trial court to enter an order increasing the alimony and child support in such an amount as is justified by the change in circumstances of the respective parties.

REVERSED AND REMANDED.

DOWNEY and ALDERMAN, JJ., concur.


author: PER CURIAM.

text:
    CITY OF ORLANDO, Appellant, v. G. C. ASHLOCK and Mary Ashlock, his wife, Appellees.
    No. 76-951.
    District Court of Appeal of Florida, Fourth District.
    Feb. 4, 1977.
    Gretchen R. H. Vose, Asst. City Atty., Orlando, for appellant.
    Stephen P. Kanar of Fishback, Davis, Dominick & Simonet, Orlando, for appel-lees.
   PER CURIAM.

This is an interlocutory appeal from an order of the Circuit Court of Orange County. All parties moved for summary judgment. The trial court, concluding that there were no genuine issues of material fact, partially granted appellees’ motion and mandatorily enjoined the City of Orlando to develop and implement plans to bring the Bennett Road Sewage Treatment Plant into compliance with state standards by June 1, 1976, and further required the City to report periodically on the progress being made toward that end.

Disputed factual issues may not be tried or resolved in a summary judgment proceeding. Summary judgment is appropriate only if the facts are so crystallized that nothing remains but questions of law. Shaffran v. Holness, 93 So.2d 94 (Fla.1957). We have carefully reviewed the record on appeal in this case and find that there are genuine issues of fact which preclude the entry of summary judgment. Hobby v. Scott, 298 So.2d 436 (Fla. 4th DCA 1974); Osceola County v. Goodman, 276 So.2d 210 (Fla. 4th DCA 1973); Van Arsdale v. DiMil Land Company, 264 So.2d 85 (Fla. 4th DCA 1972); Shollenberger v. Baskin, 227 So.2d 79 (Fla. 4th DCA 1969).

REVERSED and REMANDED for further proceedings consistent with this opinion.

ALDERMAN and DAUKSCH, JJ., and GREEN, OLIVER L., Jr., Associate Judge, concur.


author: DAUKSCH, Judge.

text:
    Wayne F. ITALIANE, Appellant, v. Joanne G. ITALIANE, Appellee.
    No. 76-423.
    District Court of Appeal of Florida, Fourth District.
    Feb. 4, 1977.

      Ralph Paul Douglas, Pompano Beach, for appellant.
    Robert T. Grace, Pompano Beach, for ap-pellee.
   DAUKSCH, Judge.

This is an appeal from a Final Judgment in a dissolution case and essentially concerns itself with the award of special equities in real property. We reverse in part and affirm in part.

The marriage entered into in 1972 was dissolved four years later almost to the day. It was apparently a stormy marriage which ended in physical combat just prior to the dissolution. As a result of the combat the wife incurred physical injury for which the court ordered the husband to pay to the wife $300 as a contribution toward her medical expenses. This was a proper award and we affirm that portion of the Judgment.

During the marriage the parties acquired interest in two parcels of real estate. The Jefferson County property interest was purchased jointly and titled jointly. The down payment was $6,000, $2,200 of which came from a joint savings account, $2,500 of which came from a loan by the wife’s father, and the remaining $1,300 borrowed by the parties from a finance company. The record does not disclose the value of the property. But the court awarded the wife the husband’s equity in the property because the wife was bound to pay her father the $2,500 he had loaned toward the purchase price. There was no determination as to who was responsible to pay the $1,300 to the finance company so it is assumed the parties are jointly and severally liable for that portion of the down payment. Also, it is remembered that $2,200 of the down payment was from joint funds. For these reasons the wife has failed to establish that she is legally entitled to the husband’s entire interest in the property and the court erred in so ordering.

During the marriage the parties lived in a home on 45th Street in Lighthouse Point, which home was purchased from the separate funds of the wife and was her property. The husband claims special equity in this real property because he performed certain labor to make improvements and paid for the materials to improve the property. Further, he signed a promissory note secured by a mortgage on the marital residence binding himself to pay $50,000 in the event the requirements of the mortgage were not met. He did this on the assurance from his wife that she was going to convey a one-half interest in the property. She never conveyed that interest to him. Additionally, the wife has filed a real property arrangement under Chapter XII of the Federal Bankruptcy Act and placed the marital home in the arrangement which may leave the husband solely liable on the note. The contribution the husband made toward the marital residence by the provision of $6,000 in labor and materials and his becoming jointly or solely obligated on the $50,000 note should be recognized in the Final Judgment. But this court is unable to establish the amount of the special equity to which the husband is entitled since the value of the property is not provided in the record, nor is the outcome of the bankruptcy proceeding known. The Final Judgment does not concern itself with the debts of the parties and establish the respective obligations of the parties as to jointly owed debts. For instance, the husband may be entitled to a $1,300 special equity in the Jefferson County property if he is the only one obligated to pay that amount or is the one who has paid it.

This cause is remanded for the trial court to establish the amount of special equity in the marital domicile to which the husband is entitled on account of his $6,000 contribution and his $50,000 obligation taking into consideration the value of the property. It is further remanded for the trial court to establish the equity to which the wife and the husband are entitled on account of their joint and individual contributions made and obligations incurred in purchase of the Jefferson County real property interest after the present value is established. It is further remanded for the court to determine the amount of the joint debts of the parties and order one or the other of the parties to pay the said debts taking into consideration the equities established as required above and the other considerations the law may require. The case of Ball v. Ball, 335 So.2d 5 (Fla.1976) is not applicable here because the dissolution proceedings herein were instituted before that opinion became final. This cause is remanded for the establishment of the special equities and debts and the Judgment is affirmed in all other respects.

REVERSED IN PART, AFFIRMED IN PART, AND REMANDED.

DOWNEY, J., and GREEN, OLIVER L., Jr., Associate Judge, concur.


author: ALDERMAN, Judge.

text:
    BAY COLONY OFFICE BUILDING JOINT VENTURE, a partnership, et al., Appellants, v. WACHOVIA MORTGAGE COMPANY, a North Carolina Corporation, et al., Appellees.
    No. 76-1894.
    District Court of Appeal of Florida, Fourth District.
    Feb. 4, 1977.
    James W. Geiger, Fort Lauderdale, for appellants.
    Patrick G. Kelley of Kelley, Tompkins, Frazier & Kelley, Fort Lauderdale, for ap-pellees.
   ALDERMAN, Judge.

After this appeal had been filed, and briefs from both parties received by this court, the appellees gave Notice of Withdrawal of Opposition to Appeal and moved that their own brief be stricken. With the contestants in apparent agreement that the court below should be reversed, we have considered the record carefully and find that we must concur that the trial court erred in striking, sua sponte, three of the appellants’ affirmative defenses.

Because there was no motion to strike the affirmative defenses numbered 4, 5 and 6, the court’s authority to strike was limited to the provisions of Fla.R.Civ.P. 1.140(f):

“Motion to Strike. A party may move to strike or the court may strike redundant, immaterial, impertinent or scandalous matter from any pleading at any time.”

The trial court may not on its own initiative strike an affirmative defense for the reason that it is legally insufficient; in that case a motion by a party is required. Fla.R.Civ.P. 1.140(b). Neither may an affirmative defense be stricken merely because it appears to a judge that the defendant may be unable to produce evidence at trial to sustain such a defense. Windle v. Sebold, 241 So.2d 165 (Fla. 4th DCA 1970). In the present case, there obviously being no scandalous or impertinent matter, the only possible justification for the trial court’s striking the three affirmative defenses at issue here would be that those defenses were redundant or immaterial. Recalling that the striking of pleadings is not favored and is a drastic action to be used sparingly by courts, and further that any doubts are to be resolved in favor of the attacked pleadings, we conclude that affirmative defenses 4, 5 and 6 in this case were not so entirely without any possible relation to the controversy as to warrant their being stricken. Van Valkenberg v. Chris Craft Industries, Inc., 252 So.2d 280, 284 (Fla. 4th DCA 1971). Matter should be stricken as redundant or immaterial only if it is wholly irrelevant and can have no bearing on the equities and no influence at all on the decision. Gossett v. Ullendorff, 114 Fla. 159, 154 So. 177 (1934); Pentecostal Holiness Church, Inc. v. Mauney, 270 So.2d 762 (Fla. 4th DCA 1972).

The order from which this appeal is taken is reversed as to the striking of affirmative defenses 4, 5 and 6.

CROSS and LETTS, JJ., concur.


author: BY THE COURT.

text:
    Herman Howard MARSH, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. CC-121.
    District Court of Appeal of Florida, First District.
    Feb. 11, 1977.
    Rehearing Denied March 23, 1977.
    Richard W. Ervin, III, Public Defender, and Theodore E. Mack, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appel-lee.
   BY THE COURT.

Upon consideration of the briefs and the record, we strike the words “hard labor” from the sentence, McDonald v. State, 321 So.2d 453 (Fla.4th DCA 1975). Otherwise, we affirm the judgment and sentence in all respects.

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


author: SMITH, LARRY G., Associate Judge.

text:
    Jerry L. GREER, Appellant, v. ESTATE of Vivian Brown SMITH, Deceased, Appellee.
    No. 75-1272.
    District Court of Appeal of Florida, Fourth District.
    Feb. 11, 1977.
    James S. Theriac, III, of Wolfe, Kir-schenbaum, Caruso & Mosley, P. A., Merritt Island, for appellant.
    George Ritchie, Cocoa, for appellee.
   SMITH, LARRY G., Associate Judge.

This is an appeal from a final order granting appellee’s motion to dismiss appellant’s complaint. The sole issue is whether the complaint was filed within the time allowed by Section 733.18(2), Florida Statutes (probate law) as it existed in January, 1975.

Appellant contends that he had three additional days to file suit under Rule 1.090(e) FRCP. Appellee contends that the rule does not apply. The trial court agreed with appellee’s position, but for the reasons hereinafter stated we find this was reversible error.

Appellant first filed a claim against ap-pellee’s estate in the probate division. The personal representative filed an objection to the claim and complied with the statute by mailing a copy of the objection to appellant by registered mail on December 20, 1974. Copy of the objection was received by appellant on December 21, 1974, as evidenced by the return receipt bearing appellant’s signature. Appellant, as plaintiff, then filed his complaint on January 23, 1975.

The statute, Section 733.18(2), at the time in question, allowed one calendar month from the date of service of the objection within which to file the appropriate suit. Appellant contends that since the objection was served by mail the provisions of Rule 1.090(e) FRCP would become operative, thus adding three days to the prescribed period of time allowed for filing suit. Obviously, unless the additional three day period does apply, appellant’s complaint was not timely filed and was properly dismissed.

The statute, Section 733.18(2), at the time in question provided in part as follows:

. . If objection is filed, the person filing it shall, forthwith, but not later than thirty days after same has been filed, serve a copy of such objection by registered mail or personal service on the creditor or claimant to whose claim he objects . . . A copy of the objection with appropriate certificate of service shall also be sent by ordinary mail to the attorney for the claimant, if his name and address appear on the claim. The creditor or claimant shall thereupon be limited to one calendar month from the date of such service within which to bring appropriate suit, action, or proceedings upon such claim or demand. The circuit judge for good cause shown may extend the time for filing objection to any claim or demand or the time for serving such objection, and may likewise for good cause shown extend the time for filing appropriate suit, action or proceedings upon any such claim after objection is filed; but in any of said instances, said extension of time shall be granted only after due notice of such application. No suit, action, or proceeding shall be brought against any personal representative after the time limited above. . (Emphasis supplied.)

Rule 5.050, Florida Rules of Probate and Guardianship Procedure, as it existed in January 1975, specifically adopted Rule 1.090 FRCP, as seen from subparagraph (h) which read as follows:

Rule 5.050. Process; Notice; Time.
* * * * * *
(h). The provisions of Rule 1.090 RCP shall apply in probate and guardianship proceedings.

Rule 1.090(e) FRCP is as follows:

(e) Additional Time After Service By Mail. When a party has the right or is required to do some act or take some proceeding within a prescribed period after the service of a notice or other paper upon him and the notice or paper is served upon him by mail, three days shall be added to the prescribed period.

No useful purpose would be served by any attempt to further explore and expound upon what is “procedural”, and therefore subject to rules of practice adopted by the Supreme Court, and what is “substantive”, and therefore exclusively controlled by statute. This subject has been well covered by the Supreme Court of Florida. See In Re: Florida Rules of Criminal Procedure, Fla.1973, 272 So.2d 65, amended 272 So.2d 513; In Re: Clarification of Florida Rules of Civil Practice and Procedure, Fla.1973, 281 So.2d 204.

The case law of this state has already characterized Section 733.18(2) of the statutes as being one wherein “the stated time limits operate as rules of judicial procedure”. In Re: Jeffries’ Estate, 136 Fla. 410, 181 So. 833, 838 (1938); In Re: Goldman’s Estate, Fla.1955, 79 So.2d 846; In Re: Kemp’s Estate, Fla.App. 1st 1965, 177 So.2d 757.

Judge Rawls, dissenting on other grounds in In Re: Kemp’s Estate, supra, appropriately pointed out that the rule requiring filing of suit within a specified time after service of an objection is “neither a non-claim statute nor a statute of limitations”, but is “in effect a statutory rule of judicial proceeding”. (Opinion page 764).

Upon a reading of the statute and the rules together, considered in the light of the foregoing authorities, we have no difficulty in holding that Rule 1.090(e) must be deemed cumulative to the statutory procedure prescribing time limits for filing of suit after service of objection by mail. It should be noticed that we are not here dealing with service of process, as in American Liberty Insurance Company v. Maddox, Fla.App.2d 1970, 238 So.2d 154. We have no quarrel with the Court’s decision in that case which adhered to the rule that statutes governing service of process must be strictly complied with, rejecting a rule of procedure in conflict with the statute.

In this case the objection is simply a matter of notice between parties to the controversy, which is distinguishable from service of process. The rule and the statute do not conflict. Furthermore, we do not think it unreasonable for one accustomed to the operation of the rules to assume the applicability of the three day rule under the circumstances here existing. The statute itself contains inconsistent provisions for service. On the one hand, it requires service on the claimant by registered mail, or personal service, while on the other hand, it requires service upon the claimant’s attorney by ordinary mail. The certificate of mailing appended to the executor’s objection in this case shows service by mail on claimant’s attorney. We think that injustice would be done by failing to recognize the possibility, if not probability, that the peculiar dual but dissimilar service provisions of the statute itself would tend to lull even a reasonably careful practitioner into the belief that the rule allowing three additional days for aetion would apply. We agree with the view expressed by the Supreme Court in the case of In Re: Jeffries’ Estate, supra, in which the Court pointed out that the purpose of the probate law was to “expedite the settlement of the estate of decedents”, but there is no purpose to “unreasonably curtail the remedial rights of creditors of such estates to present and to enforce their claims by due and appropriate judicial procedure”.

For whatever it is worth, the Legislature has seen fit to abandon these inconsistent service provisions, so that now, under amendments effective January 1,1976 (Section 733.705, Florida Statutes), the objecting party has the alternative of service by registered or certified mail upon the claimant, or service by delivery on the claimant or his attorney. Amendments have also been made in the rules (See Rules of Probate and Guardianship Procedure, effective January 1, 1976). For this reason we express no opinion as to what application, if any, our decision would have under the new statutes and rules.

We construe the statute to require actual receipt of the objection. See In Re: Maxcy’s Estate, Fla.App.2d 1965, 178 So.2d 43. The date of receipt of the objection by the claimant (appellant) in this instance, December 21, 1974, would therefore be the “date of such service” under the statute. In computing the “one calendar month” allowed for filing suit, the day of service of the objection would not be included. Rule 1.090(a) FRCP. As to applicability of this rule, although in another context, see Daly Aluminum Products, Inc. v. Stockslager, Fla.App.2d 1970, 244 So.2d 528, and opinion of the Supreme Court of Florida denying certiorari, Stockslager v. Daly Aluminum Products, Inc., Fla.1971, 246 So.2d 97. In that case it was held that the rules of civil procedure would govern the timeliness of service of a notice to owner under the mechanic’s lien statute, so that where the last day of the statutory forty-five day period fell on Sunday, the notice was effective under the rule (Rule 1.090(a) )when it was delivered on the following Monday, the forty-sixth day.

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. Appellee invokes the aid of certain interpretations from other jurisdictions which would limit the time span of a calendar month from the beginning of the day on which it starts to the end of the day before the same day of the next month. But the distinction, if any, is not critical here. This is so for the reason that service of the objection in this instance was effected on December 21, 1974, as above stated. Under the rule, the period of time within which suit could be filed would not commence until December 22, 1974, because of the application of Rule 1.090(a) FRCP, as above shown. Using appellee’s method of computation, the “calendar month” would commence at midnight on December 21, 1974, and end at midnight on January 21, 1975. The suit was filed on January 23, 1975, one day sooner than required when three extra days are added under Rule 1.090(e) FRCP.

We reject appellee’s contention that the rule applies only where service is by “mail”, rather than where “registered mail” is required. Our ruling is consistent with that of the District Court of Appeal, Second District, in Daly Aluminum Products, Inc. v. Stockslager, supra, which dealt with a portion of the mechanic’s lien law, Section 713.-18(l)(c), Florida Statutes, which required mailing of notice by “registered mail or certified mail”. As previously noted, the Court in that case found the same rule of civil procedure applicable.

Accordingly, the order dismissing appellant’s complaint is reversed, and the case is remanded for further proceedings.

REVERSED AND REMANDED, with directions.

MAGER, C. J., and CROSS, J., concur.


author: ANSTEAD, Judge,

text:
    Robert Roy CAMPBELL, Appellant, v. STATE of Florida, Appellee.
    No. 75-1439.
    District Court of Appeal of Florida, Fourth District.
    Feb. 11, 1977.
    Richard L. Jorandby, Public Defender, West Palm Beach, Frank B. Kessler and Tatjana Ostapoff, Asst. Public Defenders, and Jerry Schwartz, Legal Intern, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Basil S. Diamond, Asst. Atty. Gen., West Palm Beach, for appellee.
   ANSTEAD, Judge,

This is an appeal from a sentence entered after a conviction and sentence for breaking and entering. The defendant appeals, asserting as error the trial court’s refusal to allow disclosure of the confidential portion of the presentence investigation. We find that the trial judge was correct in declining to release the confidential portion of the report but we remand for a new sentencing hearing on the basis that the defendant was not provided all the factual material contained in the presentence investigation pri- or to sentencing.

Rule 3.713, F.R.C.P. provides that the defendant be furnished all factual material in the presentence investigation a reasonable time prior to sentencing. At the sentencing hearing the trial court disclosed to the defendant’s counsel certain factual information contained in the confidential portion of the presentence investigation but not in the non-confidential portion, and gave the defendant an opportunity to explain such information if he wished. The defendant declined to explain at the sentencing, claiming surprise and an inadequate opportunity to respond. Because the information disclosed may be characterized as factual material we find that the defendant was entitled to such information a reasonable time prior to sentencing. Guglielmo v. State, 318 So.2d 526 (Fla. 1st DCA 1975); McCormack v. State, 332 So.2d 117 (Fla. 1st DCA 1976).

This problem could have been avoided had the Parole and Probation Commission included the factual information involved in the non-confidential portion of the report. If this is not done an unfair burden is placed on the trial judge to determine before sentencing whether there is any factual material in the confidential portion of the investigation that must be disclosed to the defendant.

This cause is hereby remanded for resen-tencing with directions that the trial court again review the confidential portion of the presentence investigation and thereafter disclose to the defendant, a reasonable time prior to sentencing, any factual material contained therein not found in the non-confidential portion.

ALDERMAN and DAUKSCH, JJ., concur.


author: DAUKSCH, Justice.

text:
    Edward P. HARVELL, and Ann Wood Harvell, his wife, Appellants, v. DIVISION OF ADMINISTRATION, STATE of Florida DEPARTMENT OF TRANSPORTATION and National Home Loans, Inc., et al., Appellees.
    No. 76-36.
    District Court of Appeal of Florida, Fourth District.
    Feb. 11, 1977.
    Robert N. Reynolds, Toby P. Brigham, Miami, for appellants.
    Andrew Schuster, Geoffrey B. Dobson, and Robert I. Scanlan, Tallahassee, for ap-pellees.
   DAUKSCH, Justice.

This is an appeal from an Order granting a new trial in a condemnation cause. We reverse.

Prior to the trial of this cause the Appellants, Defendant below, failed to comply with certain discovery requirements and the Appellees, Plaintiff below, obtained an Order of the court to require the production and requested sanction under the Rule 1.380(b) Fla.R.Civ.P. The trial court refused sanction but withheld a final determination of that matter until the trial was completed to determine whether or not any prejudice to the Plaintiff resulted from the failure of the Defendant to furnish the discovery matters.

During the trial the court again refused Plaintiff’s request for sanction or withheld its ruling.

We have searched the record provided and cannot find that the Plaintiff was prejudiced by the Defendant’s failure to comply and therefore reverse the Order granting a new trial with the direction that the trial court enter Judgment for the Defendant in accordance with the verdict of the jury.

REVERSED WITH DIRECTION.

ALDERMAN, J., and GREEN, OLIVER L., Jr., Associate Judge, concur.


text:
    STATE of Florida, Appellant, v. Paul KUGEL, Appellee.
    No. 76-144.
    District Court of Appeal of Florida, Fourth District.
    Feb. 11, 1977.
    Philip S. Shailer, State Atty., and Linda A. Naze, Asst. State Atty., Fort Lauder-dale, for appellant.
    Steadman S. Stahl, Jr., of Varón, Stahl, Kay & Roderman, P.A., Hollywood, for ap-pellee.
   DAUKSCH, Judge.

This appeal arises out of a dismissal by the trial court of the information charging the Appellee here with the crime of conspiracy. We reverse.

The information which we deem sufficient to charge the Appellee with a crime in each count reads as follows:

“Count I: Philip S. Shailer, State Attorney of the Seventeenth Judicial Circuit . charges that Paul Kugel a/k/a Red King on the 19th day of November, A.D. 1974, through and including the 10th day of January, A.D. 1975, and on divers times and dates intervening between those dates, ... did knowingly, unlawfully, and feloniously agree, conspire, combine, or confederate, with Hayward Buddy Spires, to unlawfully suffer or permit persons to gamble for money, by accepting, placing or otherwise assisting in the acceptance or placing of money bets on athletic contests in a dwelling over which they directly or indirectly had charge, control, or management, located at 3475 Northwest 17th Terrace, Apartment # B, Oakland Park, contrary to F.S. 849.01 and F.S. 833.04,
Count II: And . . . further charges that Paul Kugel a/k/a Red King on the 19th day of November, A.D. 1974, through and including the 10th day of January, A.D. 1975, and on divers times and dates intervening between those dates, ... did knowingly, unlawfully, and feloniously agree, conspire, combine, or confederate, with Hayward Buddy Spires and Alan Moriarty, to unlawfully suffer or permit persons to gamble for money, by accepting, placing or otherwise assisting in the acceptance or placing of money bets on athletic contests in a dwelling over which they directly or indirectly had charge, control, or management, located at 7111 Environ Boulevard, Apartment # 111, Lauderhill, contrary to F.S. 849.01 and F.S. 833.04,
Count III: And . further charges that Paul Kugel a/k/a Red King on the 22nd day of November, A.D. 1974, through and including the 10th day of January, A.D. 1975, and on divers times and dates intervening between those dates, . . . did knowingly, unlawfully, and feloniously agree, conspire, combine, or confederate, with Hayward Buddy Spires and Eugene McCormack, to unlawfully suffer or permit persons to gamble for money, by accepting, placing or otherwise assisting in the acceptance or placing of money bets on athletic contests in a dwelling over which they directly or indirectly had charge, control, or management, located at 720 Northeast 2nd Street, Apartment # 3, Fort Lauder-dale, contrary to F.S. 849.01 and F.S. 833.04.”

We further find that the wording of this information does not subject the Appellee to the possibility of double jeopardy as was urged by the Appellee and therefore hereby remand this cause to the trial court for further proceedings as are necessary.

REVERSED AND REMANDED.

ALDERMAN and ANSTEAD, JJ., concur.


text:
    Andre SIDERS, Appellant, v. STATE of Florida, Appellee.
    No. 76-154.
    District Court of Appeal of Florida, Fourth District.
    Feb. 11, 1977.

      Richard L. Jorandby, Public Defender, and Frank B. Kessler and Tatjana Ostapoff, Asst. Public Defenders, and Laurie Sis-trunk, Legal Intern, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Harry M. Hipler, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

The trial court accepted appellant’s plea of guilty in a criminal case conditioned upon appellant having the right to appeal the denial of his motion for discharge under the Speedy Trial Rule, Fla.R. Crim.P. 3.191. The court below assured appellant that his right of appeal had been reserved. This was error. A voluntary plea of guilty in a criminal case waives all defects other than jurisdiction. Rece v. State, 333 So.2d 494 (Fla. 4th DCA 1976).

Normally we would reverse and remand to allow appellant to withdraw his plea of guilty and enter a new plea of nolo contendere, thereby preserving his right to appeal. State v. Ashby, 245 So.2d 225 (Fla.1971). This will not be necessary in this case. The trial court’s error was harmless because the point on appeal which appellant sought to preserve is without merit.

AFFIRMED.

ALDERMAN and LETTS, JJ., and CLARK, HAROLD R., Associate Judge, concur.


author: JOANOS, JAMES E., Associate Judge.

text:
    Silas Ray CREES, Appellant, v. Mara King CREES, Appellee.
    No. 76-205.
    District Court of Appeal of Florida, Fourth District.
    Feb. 11, 1977.

      Elting L. Storms of Storms, Pappas & Krasny, Melbourne, for appellant.
    Kendall T. Moran, Titusville, for appellee.
   JOANOS, JAMES E., Associate Judge.

Appellant husband, respondent in the trial court, appeals a final judgment of dissolution entered on December 1, 1975.

The parties were married on August 1, 1970. During their marriage they lived in separate households although the husband spent considerable time at the home of the wife and the wife spent some time at his home. The wife, during the marriage continued to reside with her mother as she had prior to the marriage. She lived there with the one child of the marriage and with her child of a former marriage.

At the time of the dissolution, the wife was 33 years of age. She was unemployed. She had been employed prior to the marriage and was offered a job two years prior to the dissolution. She testified that she did not accept the job because the husband would not permit it. During the marriage, the husband contributed regularly to the support of appellee. The evidence as to the husband’s income was conflicting. In his direct testimony he stated that he was receiving $112.00 weekly and heavily indebted, however, cross examination reflected that he was current on a mortgage and an unsecured note and was expending approximately $250.00 per week. The trial judge found that during the marriage, the husband’s “. . . contributions were adequate to assure her an extensive and fashionable wardrobe, trips abroad, and medical care for herself and an allergy-prone child”.

In the judgment appealed from, the trial judge dissolved the marriage and awarded the appellee the custody of the parties’ four year old daughter, $35.00 per week for support of the parties’ four year old child, $75.00 per week for alimony, court costs, and $500.00 as attorney’s fees.

On appeal, appellant argues that the judgment was excessive as to the amount of alimony and attorney’s fees and further that the award of permanent alimony was improper.

As to the amount of $500.00 for attorney’s fees, we find no fault with the judgment. The award is adequately supported by the record. Nor would we question $75.00 per week as an appropriate amount for rehabilitative alimony.

However, in awarding permanent alimony to the wife we hold that the judgment appealed from was in error and cannot be supported by applicable principles of law. In Roberts v. Roberts, 283 So.2d 396, 397 (Fla. 1st DCA 1973), the First District Court of Appeal reasoned that the public policy attendant to our dissolution law required that “. . . if the spouse has the capacity to make her own way through the remainder of her life unassisted by the former husband, then the courts cannot require him to pay alimony other than for rehabilitative purposes.” In Thigpen v. Thigpen, 277 So.2d 583 (Fla. 1st DCA 1973), the First District had stated that the law placed “. . . both parties to the marriage on a basis of complete equality as partners sharing equal rights and obligations in the marriage relationship and sharing equal burdens in the event of dissolution.”

Considering the length and style of the marriage, and the needs and abilities of the parties as reflected in the record, we find an insufficiency in the evidence to require alimony payments to extend beyond five years at a maximum from the date of dissolution in this case. We do not believe that there is “magic” in the number “five”. We just reason that within five years the child of the parties should be of sufficient age as not to hinder appellee’s abilities to be employed and that sufficient time should have passed to allow appellee to get additional training or schooling so as to place her in as good a position as to her ability to earn as she would have attained but for the marriage and what negative effects it may reasonably have had upon her ability to earn. We emphasize, that we are not holding that rehabilitative alimony should be provided for an exact period of five years. What we are saying is that under the circumstances of this case more than five years would be excessive. The evidence in this case just does not reflect a permanent inability on the part of appellee to become self-sustaining. Without that, there can be no award of permanent alimony.

The judgment appealed is reversed and the cause remanded with directions that an amended judgment be rendered that is consistent with the holding and views expressed in this opinion.

REVERSED and REMANDED.

MAGER, C. J., and CROSS, J., concur.


text:
    FIRST NATIONAL BANK OF HOLLYWOOD, as Trustee, Appellant, v. William MARKHAM, Broward County Property Appraiser, et al., Appellees.
    No. 76-320.
    District Court of Appeal of Florida, Fourth District.
    Feb. 11, 1977.
    Jack F. Weins of Abrams, Anton, Robbins, Resnick & Schneider, Hollywood, for appellant.
    Gaylord A. Wood, Jr., of Wood & Cohen, Fort Lauderdale, and Edward J. Williams, Asst. Gen. Counsel for Broward County, Fort Lauderdale, for appellees.
   DAUKSCH, Judge.

This appeal results from a denial by the property appraiser of an application for agricultural classification of real property. The case proceeded thru the administrative route, a law suit and Summary Judgment for the property appraiser to this appeal.

The Appellant urges its land should be granted the benefit of an agricultural classification which should result in a lower tax rate than non-agricultural land. The Ap-pellee maintains that the land is not entitled to the more beneficial classification because it is not being used for bona fide agricultural purposes as defined in Section 193.461(3)(b), Florida Statutes (1976) which requires more than just agricultural use to entitle the owner to the agricultural classification.

The facts of this case are essentially undisputed and the court below had no choice but to grant the Summary Judgment which we hereby affirm. The Appellant as trustee for a Jacksonville family took title to the land after paying approximately $5,800,000 for the approximately 1,080 acres. This amounts to approximately $5,400 per acre. The beneficial owner of the property does not intend to develop the property but to hold it for resale with the hope of a profit. In order to help carry the property, cattle grazing and sod production was begun when the property was purchased in 1973. The agricultural classification in question here was for the year 1974. The evidence indicates in 1974 the expense of the property was $255,326.50 of which $218,000 was for interest. There was no income from the agricultural enterprises but one of the beneficial owners testified that he expected in 1975 approximately $87,000 income from agriculture but that there would be an interest payment of $600,000 due for the year 1975.

There was evidence submitted by affidavit by Appellant that this land had been previously used as a dairy farm and that this land was presently being used for agricultural purposes. When we read Section 193.461(3)(b), Florida Statutes (1976) we find that agricultural use of the land is not in and of itself sufficient to entitle one to fall within the definition of “good faith commercial agricultural use.” In this case there is no question that the cows were grazing and the sod was being lifted. Nor was there any question that the land had for some time been used for agricultural enterprises. However, the property appraiser properly took into consideration purchase price paid, $5,400 per acre, the difference between the income from agricultural enterprises and the expense to continue to own the land and the announced purpose of the beneficial owner of the land to hold for resale as an investment. The statute extant prior to 1972 apparently permitted the owner of land to receive the agricultural classification if he maintained an agricultural enterprise without consideration of whether or not it was a bona fide commercial agricultural enterprise, one which could reasonably expect to realize a profit or at least pay the expenses of owning the land.

Since the statutory change of 1972 the property appraiser must use other considerations in determining whether or not he is permitted to classify land as agricultural. While there are no cases cited directly on point we do not find it hard to interpret under the facts presented here. After the request for classification here and therefore not available to the parties for their consideration at the time classification was requested the Florida Department of Revenue, Division of Ad Valorem Tax propounded some rules entitled “Agricultural Classification, Definitions” Chapter 12D-5.01 Rules of the State of Florida, Department of Revenue, Division of Ad Valorem Tax. While we did not use these guidelines in our opinion here we make note of them for possible future reference by those interested.

The Judgment is affirmed.

DOWNEY, J., and GREEN, OLIVER L., Jr., Associate Judge, concur.


text:
    Cynthia M. PEARSON, Appellant, v. Harry L. PEARSON, Jr., Appellee.
    No. 76-336.
    District Court of Appeal of Florida, Fourth District.
    Feb. 11, 1977.
    Harry G. Carratt of Morgan, Carratt & O’Connor, Fort Lauderdale, for appellant.
    Neal R. Kalis of Shaffner & Shaffner, Fort Lauderdale, for appellee.
   ALDERMAN, Judge.

The parties to this appeal were previously before the court in State ex rel. Pearson v. Johnson, 334 So.2d 54 (Fla.4th DCA 1976). Appellant-wife in the earlier case sought a writ of prohibition. In denying the writ we held that the trial court had jurisdiction to enter the order in question, but we did not decide the merits of the case because the function of prohibition is not to correct error or act as a substitute for appeal.

The order of the trial court is now before this court for review by appeal. The facts are as follows: appellee-husband filed suit for dissolution of marriage. He attached to his petition a property settlement agreement that had been signed by both husband and wife. A default was taken against wife and the action proceeded to final hearing. An ex parte final judgment was obtained which dissolved the marriage and incorporated by reference the terms of the property settlement agreement. The final judgment ordered that the property settlement agreement was binding upon the parties as to any and all matters contained therein. No appeal was taken from the final judgment. More than a year later husband sought by contempt proceedings to force his former wife to convey to him her interest in certain jointly owned real property. The trial court, in the order which is the subject of this appeal, ordered wife to execute and deliver to husband a quit claim deed for this property.

The only provision of the property settlement agreement which specifically mentions real property provides:

“The Wife agrees to execute any Quit Claim Deeds, Releases or other documents of conveyance and relinquishment in order to secure to the Husband all real property, stocks and mutual funds, and business known as PRETTY POODLE, all of which are presently titled in the Husband’s name alone.” (Emphasis supplied).

The real property in question was not “titled in husband’s name alone.” During the marriage and at the time of the divorce it was owned by husband and wife jointly as an estate by the entireties. Upon dissolution of the marriage the parties by operation of law would become tenants in common, unless some other disposition was made of the property. Section 689.15, Florida Statutes (1975). Husband contends that some other disposition was in fact intended. The trial court found that the jointly held real property belonged to the husband because it fell within the purview of that portion of the property settlement agreement quoted above. We respectfully disagree and reverse.

The property settlement agreement recited that the parties had agreed upon settlement of all questions, including property rights and that they desired to reduce the settlement to writing. The agreement further stated that the written document constituted the entire agreement, and that no representations other than those set forth therein had been made; nor were any to be interpreted as being part of the intent of the parties at the time they entered into the agreement.

According to the property settlement agreement: “The Wife agrees to execute any Quit Claim Deeds ... in order to secure to the Husband all real property . all of which are presently titled in Husband’s name alone.” Although awkwardly stated, this provision on its face is clear and unambiguous. It is not inherently inconsistent with the other parts of the property settlement agreement. A literal reading of the provision is that wife agreed to secure to husband all real property presently titled in husband’s name alone. No reference is made to real property owned jointly by the parties.

The trial court based its ruling upon the testimony of the husband as to the true intent of the parties at the time the property settlement agreement was signed. We hold this testimony to be inadmissible under the parol evidence rule. .This is a rule of substantive law which rests upon a rational foundation of experience and policy and is essential to the certainty and stability of written obligations. Milton v. Burton, 79 Fla. 266, 84 So. 147 (1920); Paradise Beach Homes, Inc. v. South Atlantic Lumber Co., 118 So.2d 825 (Fla.1st DCA 1960); Evans v. Borkowski, 139 So.2d 472 (Fla.1st DCA 1962). Husband by his oral testimony should not have been allowed to contradict, vary or modify the clear and unambiguous terms of the property settlement agreement.

In summary we hold that the property settlement agreement as written does not require the wife to quit claim to her former husband her interest in their jointly owned real estate. Husband can not now ask the court to rewrite the clear and unambiguous terms of the written agreement based upon parol testimony as to the true intent of the parties.

REVERSED.

ANSTEAD and DAUKSCH, JJ., concur.


author: ANSTEAD, Judge.

text:
    COLLECTION BUREAU OF ORLANDO, INC., a Florida Corporation, Appellant, v. CONTINENTAL CASUALTY COMPANY, a Stock Insurance Company authorized to do business in Florida, Appellee.
    No. 76-401.
    District Court of Appeal of Florida, Fourth District.
    Feb. 11, 1977.

      Thomas S. Kirk, Orlando, for appellant.
    Reinald Werrenrath III, Orlando, for ap-pellee.
   ANSTEAD, Judge.

This is an appeal from a final summary judgment holding that the defendant Continental Casualty Company was not obligated to furnish coverage to its insured, the plaintiff, Collection Bureau of Orlando, Inc., in a separate action wherein the plaintiff was sued for damages under Florida Statutes, Section 559.72. Section 559.72 prohibits certain debtor harassment practices. Continental’s policy provided coverage when its insured was sued for any violation of an individual’s right of privacy.

In enacting Florida Statutes, Sections 559.72 and 559.77, the legislature has provided a cause of action in debtor harassment situations not previously passed on or specifically recognized by the courts of this state. But this cause of action has been generally identified under the common law and in other jurisdictions as falling within the broad tort classification of invasion of privacy. Santiesteban v. Goodyear Tire & Rubber Company, 306 F.2d 9 (5th Cir. 1962). Housh v. Peth, 165 Ohio St. 35, 133 N.E.2d 340 (1956). With the passage of the statutes in question the legislature has further defined and protected an individual’s right of privacy in this state.

Under the law of contracts insurance policies are to be liberally construed in favor of the insured. 18 Fla.Jur. Insurance, § 407. In this case we hold that the terms of the insurance policy does provide the insured with coverage for actions brought against it under the provisions of Florida Statutes, Sections 559.72 and 559.77. Accordingly, the judgment of the trial court is reversed with directions that judgment be entered in favor of the appellant, Collection Bureau of Orlando, Inc.

ALDERMAN and DAUKSCH, JJ., concur.


text:
    Betty S. OTTO et al., Appellants, v. Lee Jay COLLING et ux., Appellees.
    No. 76452.
    District Court of Appeal of Florida, Fourth District.
    Feb. 11, 1977.
    Jerome J. Bornstein, Bornstein, Petree & Shader, Orlando, for appellants.
    James F. Page, Jr., Page & White, Orlando, for appellees.
   PER CURIAM.

Upon oral argument in this cause all counsel agreed that the certified questions presented here would at most be determinative of the cause only if such questions were answered in a particular way and would not be determinative if answered in another. Accordingly this court declines to answer such questions since they are not in compliance with Florida Appellate Rule 4.6.

Certified questions denied.

ALDERMAN, ANSTEAD and LETTS, JJ., concur.


text:
    Salvatore INTERLANDI, Appellant, v. TOWN OF LANTANA et al., Appellees.
    No. 76-678.
    District Court of Appeal of Florida, Fourth District.
    Feb. 11, 1977.
    William P. Jacobson, West Palm Beach, for appellant.
    James M. Adams, West Palm Beach, for appellees.
   PER CURIAM.

Upon review of the record and briefs of the respective parties, we determine that the circuit court, in its appellate capacity to review by certiorari an order of the Civil Service Board of the Town of Lantana, applied an erroneous application of law in dismissing the petition for certiorari for lack of jurisdiction. Accordingly, the order on review is quashed and the cause remanded with directions to reinstate the petition for certiorari, and for further proceedings consistent with the views herein expressed.

Order quashed and cause remanded, with directions.

MAGER, C. J., and CROSS and DOW-NEY, JJ., concur.


author: DOWNEY, Judge.

text:
    The FIRST NATIONAL BANK OF KISSIMMEE, a United States Banking Corporation, Appellant, v. C. M. DUNHAM and W. A. Dilbeck, Appellees.
    No. 76-1067.
    District Court of Appeal of Florida, Fourth District.
    Feb. 11, 1977.

      Mary Smith Townsend, Kissimmee, for appellant.
    C. Shelby Dale, Fort Lauderdale, for ap-pellee Dilbeck.
   DOWNEY, Judge.

We have for review a final judgment dismissing one of two defendants from the cause for lack of jurisdiction.

On May 10, 1974, C. M. Dunham and W. A. Dilbeck executed a promissory note to The First National Bank of Kissimmee. Though only Durham was a Florida resident, both men were present at the Bank when the note was executed. ' When the note became in default, the Bank filed suit and, acting pursuant to a “long arm” statute, Section 48.193, Florida Statutes (1973), served Dilbeck in accordance with Section 48.194, Florida Statutes (1973). Dilbeck moved to quash the service of process upon him and supported the motion with an affidavit stating that he was at all pertinent times a resident of the State of Indiana, so that the trial court did not have jurisdiction over his person. The motion was granted and this appeal followed.

The Bank contends that Dilbeck was subject to the jurisdiction on at least one of the following two theories. First, Dilbeck’s act of signing the note constituted engaging in a business or a business venture, within the meaning of Section 48.193(l)(a). Second, Dilbeck’s failure to repay the note was a breach of contract within the meaning of Section 48.193(l)(g).

In response to the Bank’s first theory, Dilbeck relies upon Odell v. Signer, 169 So.2d 851 (Fla. 3rd DCA 1964), to support the trial court’s decision, pointing to the statement therein to the effect that the mere signing of a promissory note and defense of a lawsuit thereon are not sufficient acts, in and of themselves, to constitute carrying on or engaging in a business or business venture so as to enable Florida courts to obtain personal jurisdiction over non-residents by service of process under Section 47.16, Florida Statutes (1963) (now Section 48.161, Florida Statutes (1973)). Dilbeck did not respond to the Bank’s second theory.

We reverse the judgment under review on the ground that the Bank’s second theory is a correct statement of the law as it applies to the facts of this case.

It should be noted that the holding in the Odell case involves a long arm statute that is different from the one involved in the present case. The latter statute was enacted nine years after the Odell decision was rendered.

In 1973 the Legislature enacted Chapter 73-179, Laws of Florida, which added to the reach of the “long arm” statutes any person “Breachpng] a contract in this state by failing to perform acts required by the contract to be performed in this state.” In the case at bar we have a purported breach of contract in this state by Dilbeck’s alleged failure to pay the promissory note to the Bank at Kissimmee, Florida. Feldman v. Southeast Bank of Dadeland, 323 So.2d 628 (Fla. 3rd DCA 1975). The note does not mention the place of payment so it is payable at the residence of the payee. See, e. g., Florida Forms, Inc. v. Barkett Computer Serv., Inc., 311 So.2d 730 (Fla. 4th DCA 1975).

Dilbeck was subject to the jurisdiction of the courts of this state under Section 48.-193(l)(g), Florida Statutes (1973), and the judgment quashing service of process was erroneous. Accordingly the judgment appealed from is reversed, and the cause is remanded for further proceedings.

REVERSED AND REMANDED.

MAGER C. J., and ALDERMAN, J., concur.


author: MILLS, Judge. BOYER, Chief Judge, McCORD, Judge,

text:
    Ivan C. ROSS, Petitioner, v. STATE of Florida, DIVISION OF PROFESSIONS, DEPARTMENT OF PROFESSIONAL AND OCCUPATIONAL REGULATIONS, FLORIDA STATE BOARD OF CHIROPRACTIC EXAMINERS, Respondent.
    No. CC-244.
    District Court of Appeal of Florida, First District.
    Feb. 15, 1977.
    Rehearing Denied March 23, 1977.
    Rosemary Barkett of Farish & Farish, West Palm Beach, for petitioner.
    Robert L. Shevin, Atty. Gen., Carol L. Reilly, Asst. Atty. Gen., for respondent.
   MILLS, Judge.

Ross seeks review of an order of the Florida State Board of Chiropractic Examiners (Board) revoking his license to practice chiropractic in Florida. Although a number of issues have been raised, the issues which are determinative of this review are whether there is substantial competent evidence to support the findings of the Board and whether the penalty imposed on Ross was excessive.

On the basis of a patient’s complaint, the Board charged Ross with lack of good moral character, Section 460.13(3)(b), Florida Statutes (1975), as well as unprofessional conduct with which we are not concerned. A hearing officer found the facts to be those generally set forth below and recommended that Ross’ license be revoked. The Board adopted the hearing officer’s recommended order and revoked Ross’ license.

A female patient of Ross claimed that while under his treatment for a back condition, Ross used a vibrator in her pubic area causing her to have an orgasm. Following this event, the patient contends that Ross undressed, straddled her legs while she was on the examining table in the nude and manipulated himself to an orgasm. Ross denied the accusation.

Although we might have reached a different result, there is substantial competent evidence to support the Board’s findings of fact and we affirm its findings of fact.

The revocation of Ross’ license is too severe and we reverse on this issue. Ross has been a licensed practicing chiropractor in Florida since January 1953. No prior complaints of any kind were filed against him. A number of people filed affidavits attesting to his good moral character. The only evidence to the contrary is that of the patient which is uncorroborated and involves a single incident. It is unnecessary that we go into the details of other mitigating circumstances reflected by the record. We are of the opinion that to terminate Ross’ livelihood after twenty-two years of unblemished service to his profession and patients is unreasonable and excessive. See Richardson v. Florida State Board of Dentistry, 326 So.2d 231 (Fla. 1st DCA 1976).

The revocation of Ross’ license is quashed and this case is remanded with instructions that the Board suspend Ross from the practice of chiropractic in Florida for a period of six months following which he is to be reinstated. Otherwise, the petition for review is denied.

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

BOYER, Chief Judge,

concurring specialty-

If the facts recited in the foregoing opinion were the totality of the facts in this case, I would not be inclined to agree with the decision. However, the record reveals extensive evidence relative to the conduct of the complaining witness, the recitation of which would serve no useful purpose here, but which in my view is material and which requires the decision here reached. I, accordingly, concur.

McCORD, Judge,

concurring specially.

I agree with the foregoing opinion of Judge Mills as amplified by the special concurring opinion of Chief Judge Boyer and, therefore, concur.


author: SMITH, Judge.

text:
    Mae Helen EARNEST, Appellant, v. STATE of Florida, Appellee.
    No. CC-365.
    Rehearing Denied March 23, 1977.
    District Court of Appeal of Florida, First District.
    Feb. 15, 1977.
    Rehearing Denied March 23, 1977.

      Richard W. Ervin, III, Public Defender, and Douglas C. Kearney, Asst. Public Defender, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., Tallahassee, for appellee.
   SMITH, Judge.

Appellant’s most substantial point is that the trial court erred in holding Section 775.-087(2), Florida Statutes (1975), requires a minimum three-year sentence and in sentencing appellant accordingly. Appellant was tried and convicted on an information charging robbery in which “the said defendant carried a firearm.” There was competent evidence appellant participated with another in committing the robbery and that the other, in appellant’s presence and with her approval, carried and displayed a firearm. Appellant’s conviction of armed robbery was not predicated on her personal possession of the firearm but rather on her active and knowing aid to him who did possess it. The jury was suitably charged on the principles of Section 777.011 as embodied in Fla. Std. Jury Instr. (Crim., 2d ed.) 2.05:

“A person may commit a crime by his own personal act or through the act or acts of another person. Any person who knowingly aids, abets, counsels, hires or otherwise procures the commission of a crime is equally guilty with the one who actually performs the criminal act, whether he is or is not present at the commission of the offense. However, for one person to be guilty of a crime physically committed by another, it is necessary that he have a conscious intent that the criminal act shall be done and that, pursuant to that intent, he do some act or say some word which was intended to and which did incite, cause, encourage, assist or induce another person to actually commit the crime.”

Convicting, the jury found a nexus between appellant’s knowing conduct and her companion’s firearm. The jury finding that appellant committed armed robbery is sufficient also, as the trial court held, to demonstrate her vicarious possession of the firearm for purposes of Section 775.087(2):

“Any person who is convicted of any robbery . . . and who had in his possession a ‘firearm,’ . . . shall be sentenced to a minimum term of imprisonment of 3 years. . .

AFFIRMED.

BOYER, C. J., and MILLS, J., concur.


text:
    Frieda ROSENTHAL et al., Appellants, v. Sam SIMONHOFF et al., Appellees.
    No. 76-95.
    District Court of Appeal of Florida, Third District.
    Feb. 15, 1977.
    Rehearing Denied March 23, 1977.

      Aronovitz & Weksler, Taylor, Brion, Buker & Greene and Arnaldo Velez, Miami, for appellants.
    Cunningham & Weinstein, Miami, for ap-pellees.
    Before HENDRY, C. J., and BARKDULL and NATHAN, JJ.
   PER CURIAM.

This is an appeal from an adverse final judgment quieting title to certain lands in Dade County. The chains of title are not in dispute. The case was tried without a jury, and a joint exhibit was presented, consisting of various instruments, documentation, plats and material from previous lawsuits involving the subject property. The trial court ruled in favor of the appellees, and this appeal ensued.

According to a pre-trial stipulation, the sole issue to be resolved was title to approximately two acres of land lying along the border of several tracts of platted lands. The controversy stems from the fact that the property in question has been described by reference to both a Government Subdivision Survey and a plat that was derived therefrom, known as the Richardson-Kellett plat. According to the Richardson-Kellett plat, the eastern border of tracts 8 and 9 overlap the western border of tract 10 as described in the Government Survey.

Ultimately, this dispute centers around the intent of various grantors and mortgagors within the chain of title to rely upon one or the other of the two possible descriptions of the property. The trial court found that the parties to these transactions had relied upon the Richardson-Kellett plat in all critical instances.

Upon examining the record, we find that the conclusions of the trial court are supported by substantial competent evidence. In such a case, we will not disturb the findings of the trier of fact. See Silver v. Wilson, 221 So.2d 201 (Fla. 1st DCA 1969).

Affirmed.


author: HUBBART, Judge.

text:
    AMERICAN HOUSING SYSTEMS CORP., Appellant, v. COUNTRY CLUB OF MIAMI CORPORATION, Appellee.
    No. 76-356.
    District Court of Appeal of Florida, Third District.
    Feb. 15, 1977.
    Rehearing Denied March 23, 1977.

      Howard R. Hirsch, Miami Beach, for appellant.
    Guy B. Bailey, Jr., Miami, for appellee.
    Before HAVERFIELD and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   HUBBART, Judge.

This case is an appeal from a judgment of $263,104.57 on a promissory note entered on the pleadings in favor of the plaintiff, Country Club of Miami, in the Circuit Court of Dade County. The defendant, American Housing Systems, appeals.

The issue presented is whether a judgment on the pleadings lies in favor of a plaintiff in a suit on a promissory note where the defendant in his answer denies default on the note and sets up certain affirmative defenses of duress and lack of consideration. We hold that such a judgment on the pleadings does not lie and reverse.

Country Club of Miami brought suit in the Circuit Court of Dade County on a promissory note. It alleged in its complaint in count I that American Housing Systems had executed the note in its favor and thereafter had defaulted thereon. American Housing Systems filed an answer admitting that it had executed the note, but denying all other allegations in the complaint including allegations of default on the note. In addition, American Housing Systems set up the affirmative defense of lack of or failure of consideration. The answer also included a counterclaim asserting in detailed fashion that the note in question had been given under duress. That defense, mistakenly included in the counterclaim, was entitled to be treated as if it had been properly set forth in the answer as an affirmative defense. Fla.R. Civ.P. 1.110(d); Mayflower v. Suskind, 112 So.2d 394 (Fla.3d DCA 1959). Country Club of Miami filed a reply denying and moving to strike the affirmative defense of no consideration and failure of consideration.

Based solely on the above pleadings, Country Club of Miami made a motion for judgment on the pleadings which it orally confined to count I of the complaint when the motion was heard in the court below. Fla.R.Civ.P. 1.140(c). The lower court granted the motion. On appeal, American Housing Systems contends that it was error to enter such a judgment on this state of the record. We agree.

The moving party, on a motion for judgment on the pleadings admits for purposes of the motion the facts well pleaded by his adversary despite their denial by the movant; the movant also admits the untruth of his own allegations which have been denied by his adversary. Falick v. Sun N Sea, 81 So.2d 749 (Fla.1955); Greater Miami Telephone Answering Service v. A-1 Answering Service, 141 So.2d 619 (Fla.3d DCA 1962). Judgment on the pleadings lies only if on the facts so admitted the moving party is entitled to judgment. Miller v. Eatmon, 177 So.2d 523 (Fla.1st DCA 1965).

In the instant case, Country Club of Miami was obliged to admit for purposes of its motion for judgment on the pleadings that American Housing Systems had executed a promissory note in favor of Country Club of Miami, that American Housing Systems had not defaulted on that note, and that the note was given under duress and without consideration. Country Club of Miami was clearly not entitled to judgment on these facts and the motion for judgment on the pleadings should have been denied. Mayflower v. Suskind, 112 So.2d 394 (Fla.3d DCA 1959).

Country Club of Miami both in the court below and before this court seeks to go outside the pleadings and assert that American Housing Systems gave the promissory note herein in settlement of a prior lawsuit, that American Housing Systems has thereafter defaulted on the note, and the American Housing System may not now assert the affirmative defenses of duress or lack of consideration against a suit on the note. We express no opinion on the validity of such contentions as they are based on matters outside the pleadings and are not properly before the court on a motion for judgment on the pleadings.

We further reject Country Club of Miami’s contention that counsel for American Housing Systems waived his affirmative defenses and conceded liability on the note in the court below. Such a contention is not supported by the record.

The judgment below is reversed and the cause remanded for proceedings not inconsistent with this opinion.


author: McCORD, Judge.

text:
    NATIONAL CAR RENTAL SYSTEM, INC., Appellant, v. CITY OF PENSACOLA and Dollar Rent-A-Car Systems, Appellees.
    No. AA-241.
    District Court of Appeal of Florida, First District.
    Feb. 18, 1977.
    Rehearing Denied March 21, 1977.

      Robert P. Gaines of Beggs & Lane, Pensacola, for appellant.
    Don J. Catón, Henry R. Barksdale, of Barksdale & Crongeryer, Pensacola, for ap-pellees.
   McCORD, Judge.

This is an appeal from a final declaratory judgment construing a Pensacola airport car rental concession contract between appellant National Car Rental System, Inc., hereafter called National and appellee, the City of Pensacola, hereafter called City. Appellee Dollar Rent-A-Car Systems, hereafter called Dollar, was an intervenor. The trial court ruled that the City’s contract with National did not prevent it from entering into an additional car rental concession with Dollar. We disagree and reverse.

On May 30, 1973, the City advertised its intention to receive proposals on rental car concessions at its airport. The advertisement stated that an award of the concession would be made to the highest of as many as three responsible bidders. The proposed concession stated that the advertisement, the instructions, the general specifications, the special specifications, the information concerning bidder, the proposal form and the contract form would all become a part of the proposal and be incorporated into the contract. A similar provision is contained in the proposal and in the contract itself. The contract is for a period of five years.

National was one of three successful bidders for such a concession, and all three concessionaires were actively operating at the airport on July 23, 1975, when the City Council approved a motion that would allow Dollar to also operate a rental car concession at the airport. Such resulted in this lawsuit. It was contended in the trial court that there is no prohibition in the contract between National and the City that would prevent Dollar from also obtaining a concession and the trial court so found in its final judgment.

The contract documents state in two places that the automobile rental concession would be granted to “as many as” three bidders, and the term of the contract was stated to be for five years. The amount to be paid to the City by National was based upon a percentage of gross sales with a minimum guarantee. The contract documents clearly indicate that no more than three rental car concessions would be awarded during the five year term of the contract. Since advertisements for bids were submitted on that basis, it would certainly follow that bidders would take into consideration the fact that they would have no more than two competitors at the airport, and such would enter into their determination of how much they would agree to pay for the next five years as an annual minimum payment.

While appellee calls attention to the fact that paragraph 24 of the proposed concession (a part of the contract papers) provides:

“NON-EXCLUSIVE LEASE: Notwithstanding anything herein contained that may be or appear to be to the contrary, it is expressly understood and agreed that the rights granted to City in this agreement in that such rights relate to any landing area or navigation facility, within the meaning or contemplation of such terms and rights as referred to in Section 303 of the Civil Aeronautics Act (C. 601, Title 111[III], Sec. 303, [52] Stat. 986; 49 U.S.C.A. Sec. 453), or any subsequent act or regulation of the Federal Government, are non-exclusive, and the City herein reserves the right to grant similar privileges to another operator or other operators.”

the above paragraph obviously pertains only to a landing area or navigational facility within the meaning of § 303 of the Civil Aeronautics Act. That section of the Act which has since been repealed provided:

“There shall be no exclusive right for the use of any landing area or air navigation facility upon which Federal funds have been expended.”

There is nothing in the record before us to show that this restriction has any application to the operation of a rental car concession at the Pensacola airport, and appellees have not argued that it does. Referring to paragraph 24, appellees in their brief state:

“However, even though we do not interpret the aforementioned paragraph to apply to rental car agencies, .there still remains the fact that nothing contained in the contract prohibits the City during the life of the contract from granting other contracts to other agencies.”

Appellees go on to argue that since the specifications refer to paragraph 24, such “must serve some useful purpose and the inclusion therein indicated clearly to the bidders that the contract to be entered into between them was not to be exclusive.”

We do not consider there was any such implication unless, as the provision says, the rights are prohibited from being exclusive under Section 303 of the Civil Aeronautics Act (which was repealed by P.L. 85-726, Title XIV, § 1401(b), 72 Stat. 806, and is now covered by 49 U.S.C.A. § 1349, in substantially the same form as is pertinent here). We agree with the well-reasoned opinion of the United States District Court, Northern District of Texas, Dallas Division, in Continental Bus System, Inc. v. City of Dallas, 386 F.Supp. 359 (N.D.Tex.1974), in construing 49 U.S.C. § 1349. There the court said in relation to the operation of the Dallas-Ft. Worth airport:

“One of Continental’s themes in this suit is that the cities have granted an ‘exclusive franchise’ to Surtran. This franchise creates a monopoly prohibited by 49 U.S.C. § 1349(a), Continental insists. The text of the statute is quoted in the margin, but in essence it provides that if any federal funds have been spent on the construction of ‘any landing area or air navigation facility,’ then no one shall have an exclusive right to its use. Continental points out that federal funds were used at D/FW Regional and concludes that the law prohibits Surtran’s exclusive right to operate there. I cannot agree that this is the law.
Continental apparently equates sidewalks and curbs, at which buses load passengers, with ‘landing areas’ and ‘air navigation facilities.’ The statutory definitions of these terms do not agree with Continental’s position. ‘Landing area’ is defined in 49 U.S.C. § 1301(22) as a locality, including airports, which is used or intended to be used for the landing and take-off of aircraft. An ‘air navigation facility,’ according to 49 U.S.C. § 1301(8), is a device used to aid navigation of aircraft, such as lights and radios. Thus, even if the cities had granted Surtran an exclusive franchise — as contrasted with operating it themselves — Surtran’s operations would not be within the statute in question, just as hangar leasing was held not to be within the statute in MacAire Aviation Corp. v. Corporate Air, Inc., 6 Conn.Cir. 238, 270 A.2d 849 (1970). It seems fairly obvious that the congressional purpose of this statute was to prohibit an owner or operator of an airport built partly with federal funds from allowing, say, one airline to do business there while forbidding another airline to land there. It does not forbid the cities of Dallas and Fort Worth from operating their own bus service at the airport to the exclusion of a privately owned bus company.”

In addition, we note that the Supreme Court in Miami Beach Airline Service v. Crandon, 159 Fla. 504, 32 So.2d 153, 172 A.L.R. 1425 (1947), upheld the authority of the Dade County Port Authority to grant a taxicab company an exclusive right to transport commercial airlines passengers between such authority’s airport and the city. That case, however, did not involve a construction of the foregoing Federal Act.

Reversed and remanded for further proceedings consistent herewith.

BOYER, C. J., and MILLS, J., concur.


text:
    Gerald A. LEWIS, as State Comptroller and Head of the Department of Banking and Finance, Petitioner, v. LIFE SAVINGS AND LOAN ASSOCIATION (a proposed state savings and loan association), Respondent.
    No. EE-456.
    District Court of Appeal of Florida, First District.
    Feb. 18, 1977.
    Rehearing Denied March 23, 1977.
    William B. Corbett, Jr., Tallahassee, and Richard E. Gentry, Jacksonville, for petitioner.
    Howell L. Ferguson and Philip S. Parsons, of Macfarlane, Ferguson, Allison & Kelly, Tallahassee, for respondent.
   PER CURIAM.

The prayer of the interlocutory petition for review is denied without prejudice to consideration by the hearing officer of a motion pursuant to Fla.R.Civ.P. 1.280(c) for protection concerning depositions of the Comptroller and his staff, upon the Comptroller otherwise providing adequate discovery of legal and factual positions to be urged by the Comptroller on the issues to be tried before the hearing officer, evidence to be adduced by the Comptroller in support of those positions, and any criteria uniformly applied by the Comptroller in ascertaining the matters referred to in Sections 665.-704 and 665.031(5), Florida Statutes (1975).

BOYER, C. J., and RAWLS and SMITH, JJ., concur.


author: GALE, JOHN, Associate Judge. MAGER, Chief Judge,

text:
    Harry JOHNSTON, Appellant, v. ORANGE COUNTY, a political subdivision of the state of Florida, and James W. Smart, Zoning Director of Orange County, Florida, Appellees.
    No. 75-918.
    District Court of Appeal of Florida, Fourth District.
    Feb. 18, 1977.

      David J. Fuller, Orlando, for appellant.
    Steven R. Bechtel of Mateer, Harbert, Bechtel & Phalin, P. A., Orlando, for appel-lees.
   GALE, JOHN, Associate Judge.

Defendant-appellant Harry Johnston appeals a final judgment entered in favor of the plaintiff-appellees Orange County, a political subdivision of the State of Florida, and James W. Smart, Zoning Director of Orange County, Florida in a cause of action for violation of an Orange County Zoning Ordinance.

We reverse.

In 1973 the defendant Harry Johnston became the owner of a property in Orange County, Florida, which is zoned C-2 (General Commercial District) and known as the Covered Wagon Mobile Home Park. The property had the C-2 classification placed upon it in 1960 and at that time this classification permitted mobile home usage. In 1962 mobile home usage was removed from the C-2 classification and R-T (mobile home district) classification was created thereby making the existence of mobile homes on Mr. Johnston’s property a nonconforming use. When Mr. Johnston purchased the property in 1973 it contained single family dwelling unit mobile homes. These were subsequently replaced by Mr. Johnston with “double wide” two family mobile homes, until there remained only one single family mobile home that had been placed on the property prior to 1973.

In April of 1974 the Zoning Department of Orange County issued a violation notice requiring the removal of the “double wide” units within ten (10) days. Upon Mr. Johnston’s failure to comply, a complaint was filed seeking injunctive relief against Mr. Johnston alleging that he had extended and enlarged a non-conforming use by permitting an increased number of mobile home units to be placed upon his property, permitting the density of population of these mobile home units to increase and permitting the placement and use of duplex home units on that property. Mr. Johnston answered the complaint denying generally the allegations. The cause went on to a non-jury trial. The trial court entered a final judgment in favor of Orange County determining that Mr. Johnston’s mobile home park was a non-conforming use and he had extended and enlarged the non-conforming use on his property in violation of Orange County Planning Zoning Resolution by permitting the placement and use of duplex mobile home units on the property. It is from this Final Judgment that Mr. Johnston appeals.

The issue for our determination upon this appeal is whether there was substantial evidence presented to the trial court which showed an improper extension or enlargement of a non-conforming use.

The applicable Orange County Zoning Resolution provides:

“ARTICLE XXIV
Non-Conforming Uses
Section 1. INTENT
It is the intent of this Article that the lawful use of any building, structure, or land existing at the time of adoption of this Resolution may be continued although such use does not conform with the provisions of this Resolution, provided the following conditions are met:
* * * * * *
Section 5. EXTENSION
Buildings or structures or uses of land which are non-conforming shall not be extended or enlarged, provided, however, that any non-conforming use may be extended if such extension will make such use conform with current regulations for the district in which it is located.”

The Complaint of Orange County dwells upon an extension or enlargement of a nonconforming use. The violation specifically resolves completely on the fact that there has been a replacement of “double wide” mobile homes where single mobile homes had previously existed.

Significantly the record is devoid of any substantial evidence which might prove that particular extension or enlargement. The trial court could not have determined by this record if the number of “double wides” exceeded the amount of single family trailers that previously existed nor could the trial court determine if the replacement of “double wide” single family trailers actually had an effect of increasing the density of population or if such replacement would have been detrimental to the public health, welfare and safety.

The Courts of this State have never questioned the right of a municipality or county to impose reasonable restrictions on the expansion of a non-conforming use. However, justice requires substantial proof of the violation of such restrictions. To enter a judgment in favor of Orange County, on the face of this record invades the constitutional guarantee of due process for protection of private property.

In view of the foregoing, the Judgment is reversed and the cause remanded to the trial court to take such testimony as consistent with the determination herein.

REVERSED AND REMANDED.

CROSS, J., concurs.

MAGER, C. J., dissents.

MAGER, Chief Judge,

dissenting:

In my opinion the decision of the trial judge should be affirmed upon the authority of Bixler v. Pierson, 188 So.2d 681 (Fla. 4th DCA 1966). The majority opinion, most respectfully, not only conflicts with this court’s decision in Bixler but is contrary to the applicable Orange County zoning regulations. Accordingly, I would affirm.