text:
    Ernest GERSTEIN, Appellant, v. The SECOND NATIONAL BANK OF NORTH MIAMI, Appellee.
    No. 75-754.
    District Court of Appeal of Florida, Third District.
    April 13, 1976.
    Rehearing Denied July 6, 1976.
    Frank, Strelkow & Gay, Miami Beach, for appellant.

      Kates, Ress, Gomez & Rosenberg, North Miami, for appellee.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

Affirmed. See: Bryant v. Food Machinery and Chemical Corporation Niagara Chemical Division, Fla.App.1961, 130 So.2d 132; Sears v. James Talcott, Inc., Fla. App.1965, 174 So.2d 776; . Anderson v. Trade Winds Enterprises Corp., Fla.App. 1970,241 So.2d 174.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    POSTON BRIDGE & IRON, INC., a Florida Corporation, Appellant, v. The HOME INSURANCE COMPANY, and Gladys Xiques, Appellees.
    No. 75-842.
    District Court of Appeal of Florida, Third District.
    April 13, 1976.
    Rehearing Denied July 6, 1976.
    Moore, Kessler, Roth & Beckerman, Miami, for appellant.
    Kuvin, Klingensmith & Lewis, Stuart A. Markus, Miami, for appellees.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Plaintiff, Poston Bridge & Iron, Inc., appeals a summary final judgment for the defendants, The Home Insurance Company and Gladys Xiques. Defendant Home Insurance insured Poston against loss of money resulting from fraudulent or dishonest acts committed by Poston’s employees. Gladys Xiques was an employee of Poston. It was alleged that she converted money belonging to Poston.

The summary judgment was entered after voluminous discovery. Poston maintains that the judgment was improperly entered because there was a genuine issue of material fact as to the extent of its employee’s theft of its money and of the affirmative defense asserted by Home Insurance. See Holl v. Talcott, Fla.1966, 191 So.2d 40. Home Insurance maintains that the discovery evidence clearly shows that the only basis for the claim is that Poston cannot now locate certain xecords of the handling of its petty cash fund and that, therefore, it is conclusively demonstrated that Poston is without legitimate and admissible proof to recover under the policy provisions. See Food Fair Stores of Florida, Inc. v. Patty, Fla.1959, 109 So.2d 5. Defendant Xiques has not filed a brief in this court.

Our review of the depositions, answers to interrogatories and responses to requests for admissions convinces us that the record does not conclusively demonstrate that Poston cannot prove any of its claims under its policy against its employee. In order to reach the conclusion that, “the plaintiff is completely without proofs to sustain her comlaint.” it would be necessary to rule upon the admissibility of numerous items of evidence which are not yet before the court. In addition, it appears that Poston’s position that vouchers for cash were used more than once by Xiques to obtain payment into the petty cash fund is susceptible of proof. We do not limit ourselves to these items but hold that the record in its entirety does not meet the standard set out in Food Fair v. Patty, supra, and subsequent cases approving that basis for summary judgment.

Reversed.

      . Food Fair Stores of Florida, Inc. v. Patty, Fla.1959, 109 So.2d 5 at 7.

      . See Harvey Building, Inc. v. Haley, Fla. 1965, 175 So.2d 780; Morton v. Mastan Co., Inc., Fla.App.1966, 181 So.2d 575; Holl v. Talcott, Fla.1966, 191 So.2d 40; Page v. Staley, Fla.App.1969, 226 So.2d 129; Robinson v. Loyola Foundation, Inc., Fla.App. 1970, 236 So.2d 154, and Cristel v. City of Miami Beach, Fla.App.1971, 246 So.2d 595.


text:
    Rudolph HUTCHINS, Appellant, v. The STATE of Florida, Appellee.
    No. 75-43.
    District Court of Appeal of Florida, Third District.
    April 20, 1976.
    Rehearing Denied July 6, 1976.

      Phillip A. Hubbart, Public Defender, and Lewis S. Kinder, Alvin E. Entin and Jerry J. Mosca, Sp. Asst. Public Defenders, for appellant.
    Robert L. Shevin, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen,, for ap-pellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Defendant-appellant was indicted for first degree murder, tried by jury, found guilty of second degree murder and sentenced to life in prison. In seeking to reverse his conviction, defendant first urges as error the trial court’s denial of his motions for mistrial predicated upon the testimony elicited from Sgt. Harper and Daniel Morris concerning a polygraph examination given to the State’s witness Morris. During the State’s direct examination of Harper, he made the following statements with regards to the polygraph examination:

“Q Do you know who George Slatery is?
“A Yes, I do.
“Q Who is George Slatery ?
“A He is a certified Polygraph Examiner.
“Q All right.”

At that point defense counsel objected and moved for a mistrial. The motion for mistrial was denied, but the trial judge gave the jury a curative instruction.

Later in the trial, while being cross-examined by defense counsel, Daniel Morris in response to' his question stated:

“THE WITNESS: Actually, he asked me would I take a polygraph test.”

Again, defense counsel objected and moved for a mistrial. The motion was denied and the jury instructed to disregard the remark.

Although neither the results of a lie detector examination nor testimony which indirectly or inferentially apprises a jury of the results of a lie detector test is admissible into evidence, the mere fact that the jury is apprised that a lie detector test was taken is not necessarily prejudicial if no inference as to the result is raised or if any inferences that might be raised as to the result are not prejudicial. Johnson v. State, Fla.App.1964, 166 So.2d 798.

In this case the testimony about a polygraph examination apprised the jury only that Morris may have taken such a test, but raised no inference as to the results. Appellant’s contention that the testimony indicated to the jury that Morris submitted to and passed a polygraph test is pure speculation on his part and reversible error cannot be predicated on mere conjecture. See Sullivan v. State, Fla. 1974, 303 So.2d 632. Thus, we find this point lacks merit.

We also note that the recently released case of Crawford v. State, Fla.App. 1975, 321 So.2d 559 is not controlling because in the instant case in contrast to Crawford (1) upon objections of defense counsel, curative instructions were given to the jury; (2) one of the two references to a polygraph examination was elicited by defense counsel during cross-examination; (3) there is no unmistakable inference that Morris had taken a polygraph examination and the results of the examination indicated that Morris’ testimony against the defendant was true.

Appellant secondly contends the trial court erred in denying his motions for mistrial predicated upon the State’s introduction of testimony concerning other similar crimes which defendant allegedly perpetrated. We cannot agree.

The established rule in Florida is that evidence revealing other crimes is admissible if it casts light upon the character of the act under investigation by demonstrating motive, intent, absence of mistake, common scheme, identity or a system or general pattern of criminality so that the evidence of the prior offenses would have a relevant or a material bearing on some essential aspect of the case being tried. Williams v. State, Fla.1959, 110 So.2d 654; Dean v. State, Fla.1973, 277 So.2d 13.

It is clear that the evidence of other crimes which were all committed in the same general area in a period of 12 days were relevant inasmuch as this evidence demonstrated a common scheme on the part of the appellant to holdup convenience stores in a similar manner as the store in this case. In addition, like the appellant in the case at bar, the victims of these holdups described the perpetrator as having a white or pink acne medication on his face. Cf. Hawkins v. State, Fla.1968, 206 So.2d 5.

Affirmed.


text:
    MILLER & SOLOMON, INC., a Florida Corporation, Individually and for the use and benefit of the Travelers Insurance Company, a Foreign Corporation, Subrogee, Appellant, v. CONCREFORM COMPANY, a Florida Corporation and General Concrete Contractors, Inc., a Florida Corporation, Appellees.
    No. 75-874.
    District Court of Appeal of Florida, Third District.
    April 20, 1976.
    Rehearing Denied July 6, 1976.
    High, Stack, Davis & Lazenby and Norman S. Segall, Miami, for appellant.
    Wicker, Smith, Blomqvist, Davant, Mc-Math, Tutan & O’Hara, Stephens, Thornton & Schwartz, and Jonathon P. Lynn, Miami, for appellees.
    Before PEARSON, HENDRY and NATHAN, JJ.
   PER CURIAM.

Affirmed upon authority of United States Casualty Company v. F. A. Johnson, Inc., Fla.App. 1960, 117 So.2d 438.


text:
    Jeanne D. FARRAR, Appellant, v. Dr. John Marvin FARRAR, Appellee.
    No. 75-1060.
    District Court of Appeal of Florida, Third District.
    April 13, 1976.
    Rehearing Denied July 6, 1976.
    Sinclair, Louis & Siegel and Leonard H. Rubin, Miami, for appellant.
    Sams, Anderson, Post & Ward and Frank B. Pridgen, Miami, for appellee.
    Before BARKDULL, C. J., PEARSON, J., and CHARLES CARROLL (Ret.) Associate Judge.
   PER CURIAM.

The former wife, Jeanne D. Farrar, appeals a final judgment of dissolution of marriage and assigns as error the financial provisions of the judgment. The husband has appealed and assigns as error the allowance of an attorney’s fee to the wife. This marriage of short duration was between parties of mature age, the husband being past seventy and the wife past sixty years of age. The main thrust of the wife’s appeal is that the trial court erred in failing to find fraud on the part of the husband for not placing the title to the marital home in the joint names of the husband and wife. There is no showing that the wife contributed money to the purchase of the home and the deed was actually taken in the name of the husband only. The funds for the purchase of the home were procured by a mortgage on a prior residence owned by the husband in which the wife refused to live. Both the husband and wife signed this mortgage. The first residence was later sold and the mortgage assumed by the purchasers. In addition, the wife signed the assumption of a $12,000 mortgage on the new home purchased by the husband. The record shows an offer by the husband to secure a release of the wife’s liability on these mortgages or to indemnify her for any liability that she may have.

We hold that this record does not demonstrate error upon the trial judge’s failure to find fraud in that the title to the marital home was taken in the husband’s name alone. See Sheppard v. Cherry, 118 Fla. 473, 159 So. 661 (1935); Miller v. Bay-To-Gulf, Inc,, 141 Fla. 452, 193 So. 425 (1940); and Casey v. Welch, Fla.1951, 50 So.2d 124. We hold, however, that it was error for the trial court to fail to include in its judgment a provision for either relieving the wife of the liability of the $38,000 and $12,000 mortgages or requiring the husband to execute and deliver under the court’s supervision a proper instrument indemnifying the wife from loss by liability upon these mortgages.

The husband has failed to demonstrate error upon the trial court’s allowance, under the circumstances of this case, of an attorney’s fee for the wife.

Accordingly, the cause is affirmed in part, reversed in part and remanded with directions.


author: PEARSON, Judge.

text:
    Frank S. UWANAWICH, Appellant, v. Alfred GAUDINI and Jean Gaudini, his wife, Appellees.
    No. 75-314.
    District Court of Appeal of Florida, Third District.
    April 27, 1976.
    Rehearing Denied July 6, 1976.
    Robert M. Brake, Coral Gables, for appellant.
    Militana, Militana & Militana, Miami, for appellees.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   PEARSON, Judge.

This is an appeal from a final judgment of foreclosure. The appellant is Frank S. Uwanawich, the mortgagor. The appellees are Alfred Gaudini and Jean Gaudini, the mortgagees. Three points are presented. The first urges an abuse of discretion by the trial judge in allowing the acceleration of the mortgage debt. The second urges that the trial judge erred in failing to grant the mortgagor’s prayer for a reformation of the default clause. The third urges error upon the procedure employed in the allowance of attorney’s fees to the mortgagees. The facts are more conveniently stated upon the discussion of the points involved. The facts will be stated as though the trial judge had determined all conflicting evidence for the appellees.

The first question is whether the trial court abused its discretion by holding’ that the mortgagor had defaulted in the installment payments and by allowing a lien to be placed upon the mortgaged property. The mortgagor claims that equitable principles were violated in allowing acceleration of the mortgage debt.

The mortgage is a purchase money mortgage. A brother of the mortgagor first contracted to purchase the property. This contract was cancelled. The brother negotiated for the construction of a swimming pool on the property. A contract for the construction was signed by the mortgagor subsequent to his taking possession of the property. A mechanic’s lien was filed against the property for this contract work prior to acceleration. The lien claimant was joined in this foreclosure and was subsequently dismissed from the case.

The mortgagor covenanted to make payments on the 25th of October, 1973, and the 25th day of each month thereafter, and to pay promptly all obligations and encumbrances on the property. The mortgage contained a 15 day default clause. The October and November payments were made without incident. The mortgagor discovered an unpaid water bill in the amount of $18.29 which he deducted from his December payment. The mortgagees protested immediately about the insufficiency of the amount of the payment but deposited the check for the lesser amount. The January, 1974, payment was not received by the mortgagees. The mortgagor testified that he mailed a check for the payment prior to the expiration of the 15 day default period. On February 14th, twenty days after the date the payment was due, the mortgagees filed the foreclosure suit and therein declared the entire debt due. On February 16th, the mortgagor tendered the January payment. On February 24th, the tender was renewed with the addition of the amount of the December deficiency. The tender of payments has been kept current.

Whatever the equities of the mortgagor are, under the circumstances of this case, they are not so overbearing that we should hold that the trial judge committed error in holding that the appellees were entitled to enforce the terms of their mortgage. See Campbell v. Werner, Fla.App. 1970, 232 So.2d 252.

The second question is whether the trial judge erred in failing to find for the mortgagor on his counterclaim to reform the note and mortgage to provide for a thirty day default period. When the mortgagor contracted to purchase the property involved, the contract stated that the purchase money mortgage would contain a thirty day default clause. The contract was between appellant and appellees and did not include the mortgagor’s wife. The closing was scheduled for September 10, 1973. Prior to the date of closing, the mortgagees’ attorney notified the mortgagor that the mortgagees would insist that mortgagor’s wife signs the mortgage. The mortgagor agreed. The mortgagor declined to employ an attorney and chose instead to rely upon the advice of his title company representative. At the closing, a substantial question was raised as to the identity of the person presented by the prospective mortgagor as his wife. The attempted closing ended unsuccessfully with no signatures being placed on the mortgage. In order to facilitate the closing, the prospective mortgagor agreed, upon the advice of the title company representative, to accept the prospective mortgagees’ agreement to take the mortgage without a wife’s signature but with a fifteen day, instead of thirty day, default clause. The re-scheduled closing took place, and the deed and mortgage were signed and delivered.

The mortgagor argues that because he could have legally forced a closing upon the terms of the contract of sale and, therefore, because the requirement to have his wife sign the mortgage was legally unenforceable, accordingly, his concurrent agreement to shorten the default period was void for lack of consideration. Thereupon, he asserts that the trial judge should have reformed the mortgage to extend to him the default period contained in the agreement of sale.

This argument overlooks the well-established rule that where a party has a bona fide belief that he has a legal right, a forbearance to enforce that right may be consideration for a new agreement. See Henderson v. Kendrick, 82 Fla. 110, 89 So. 635 (1921). In addition, it is held that a closing of a real estate deal merges all of the prior agreements concerning the sale into the new contract between the parties. See the general rule in St. Clair v. City Bank & Trust Co. of St. Petersburg, Fla. App.1965, 175 So.2d 791. We must, therefore, decline to hold that the trial judge was required to grant the counterclaim for reformation of the mortgage.

The third question is whether the court erred in the amount of an attorney’s fee and the procedure employed for its determination under the provisions of the note and mortgage. The record is devoid of any effort by either party to secure the reception by the court of testimony as to a proper fee. A supplemental record has been filed showing the submission of affidavits as a basis for the court’s determination of a proper fee. Inasmuch as this procedure may be agreed upon by the parties to a mortgage foreclosure, we must assume that the court acted upon the agreement of counsel in this case. We, therefore, decline to reverse the award.

Affirmed.


text:
    Richard Earl RODGERS, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1127.
    District Court of Appeal of Florida, Third District.
    April 20, 1976.
    Rehearing Denied July 6, 1976.
    Phillip A. Hubbart, Public Defender and Elliott H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., for ap-pellee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Affirmed on the authority of Morris v. State, 1930, 100 Fla. 850, 130 So. 582; Thomas v. State, Fla.1975, 326 So.2d 413, opinion filed December 3, 1975; Darden v. State, Fla. 1976, 329 So.2d 287. Opinion filed February 18, 1976; Walker v. State, Fla.App.1976, 330 So.2d 110, opinion filed March 9, 1976.


text:
    Ann TIBALDEO, Appellant, v. Victor Louis TIBALDEO, Appellee. Victor L. TIBALDEO, Appellant, v. Ann TIBALDEO, Appellee.
    Nos. 75-1474, 75-1667.
    District Court of Appeal of Florida, Third District.
    June 22, 1976.
    Hilton R. Carr, Herbert A. Warren, Miami, for Ann Tibaldeo.
    Courshon & Berk, James Dougherty, III., Miami, for Victor Tibaldeo.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   PER CURIAM.

Affirmed. See Shaw v. Shaw, Fla.1976, 334 So.2d 13.


author: CHARLES CARROLL, Associate Judge.

text:
    Alicia Perez ECKERT and Arthur R. Eckert, her husband, Appellants, v. GOVERNMENT EMPLOYEES INSURANCE COMPANY and Gizella S. Szuri, Appellees.
    No. 75-606.
    District Court of Appeal of Florida, Third District.
    May 4, 1976.
    Rehearing Denied July 6, 1976.

      Kuvin, Klingensmith & Lewis, Miami, for appellants.
    Bradford, Williams, McKay, Kimbrell, Hamann & Jennings and Thomas E. Scott, Jr., Miami, for appellees.
    Before BARKDULL, C. J., PEARSON, J., and CHARLES CARROLL, (Ret.) Associate Judge.
   CHARLES CARROLL, Associate Judge.

Gizella S. Szuri and Alicia Perez Ec-kert were injured in an accident involving two automobiles. One, owned by Deszo Szuri, was being driven by his wife Gizella. The other, owned by Arthur R. Eckert, was being driven by his wife Alicia.

Gizella was protected by liability indemnity insurance, including uninsured motorists coverage, under a policy issued by Government Employees Insurance Company (Geico). The automobile owned by Eckert was uninsured. The claim of Gizella and her husband on the uninsured motorists coverage was settled by Geico which paid $9,000.00. Geico obtained a written receipt therefor and release from Gizella and her husband, with a provision therein whereby the latter agreed to hold in trust for the benefit of Geico their cause or causes of action against others arising from the accident, with further provision that the expenses and costs incident to any such action would be paid by Geico, and that the amount recovered thereon would be paid to Geico up to $9,000.00 with any excess thereof to be paid to or retained by Gizella and her husband.

Thereafter a compaint was filed against Alicia Perez Eckert by “Government Employees Ins. Co., as Subrogee of Deszo Szuri and Gizella S. Szuri”. Therein Geico alleged the occurrence of the accident, which it charged was caused by negligence of the defendant; alleged its payment of $9,000.00, as above mentioned, and attached a copy of the above described release and agreement.

The defendant Alicia Perez Eckert answered, denying her negligence and averring the accident was the result of negligence on the part of Gizella. The answer included a counterclaim by Alicia for damages for her personal injuries, and sought derivative damages for Arthur R. Eckert for medical expenses, loss of consortium and property damage. Geico was made a defendant to the Eckert counterclaim. Separate answers to the counterclaim were filed by Geico and Gizella Szuri. In each there was a contention of want of jurisdiction of the cause of action asserted under the Eckert counterclaim, for inability to meet the requirements therefor under the Florida Automobile Reparations Reform Act. Gizella’s answer to the counterclaim of the Eckerts, contained a counterclaim, later amended, against Alicia and her husband, whereby, upon alleging the accident was caused by the negligence of Alicia, Gizella sought to recover for her personal injuries and the medical expenses incident thereto. Gizella’s husband was not a party to Gizella’s counterclaim as amended. Issue was joined thereon.

On trial of the cause before a jury a verdict was rendered finding the accident was caused by negligence of both drivers, and apportioning their negligence at 30% for Gizella and 70% for Alicia. Applying those percentages the verdict awarded $14,700.00 to Gizella, $1,050.00 to Alicia, and $100.00 to Alicia’s husband Arthur Eckert. Acting thereon the court, upon applying a set off, granted judgment in favor of Gizella against Alicia Eckert and Arthur Eckert for the net sum of $13,550.-00. Geico was eliminated from the action by a directed verdict against it.

The Eckerts appealed. Geico and Gizel-la filed cross assignments of error.

Granting judgment for the net amount upon setting off the opposing verdict awards was not error. Stuyvesant Insurance Company v. Bournazian, Fla., March 10, 1976. The ruling of the trial court with reference to certain medical testimony was not reversible error. The evidence appellants contended was hearsay was cumulative to testimony given by a doctor witness. The error, if any was not harmful error such as to require reversal.

Appellants Eckert argued error was committed by inclusion of Gizella’s medical expenses in the damage award to Gizella, contending the obligation therefor was that of her husband. It appears that the marriage of Gizella and her husband was dissolved sometime during the litigation. He did not take part in the case. In her counterclaim Gizella sought recovery of such expenses. Bills for the medical expenses were introduced into evidence, and there was testimony of a doctor as to their reasonableness. ¡When such items were filed in evidence there was no objection. Opposing counsel affirmatively consented to their introduction, stating only that the reasonableness thereof was not agreed to. In the brief of the appellants Eckert, the statement of that point as argument was not accompanied by the designation of any assignment or assignments of error relied on in support thereof. See Rule 3.7f(4) F.A.R. The assignments of error .which were filed did not include an assignment covering this point. The only assignment with reference to medical expenses was one in which it was contended the court erred in permitting the medical bills concerning Gizella to be admitted into evidence, and, as shown above, the admission of the medical bills into evidence by Gizella was consented to at trial. In the court’s charges such medical expenses were submitted as an element of damage on Gizella’s counterclaim for consideration by the jury, and the record shows no objection thereto. For those reasons the contention of error as to such medical expenses is without merit in this case.

The appellants Eckert contend the award to Gizella was improper, on the theory that the action was initially brought by Geico as subrogee, that there was only one cause of action, and that Gizella was attempting to assert a separate and second cause of action which did not 'exist. That contention has no merit. Geico could maintain the action under the common law doctrine of subrogation, for its own benefit to the extent of its interest and for use and benefit of Gizella for any excess. In joining therein seeking recovery, Gizel-la was asserting the same cause of action. According to her written agreement Gizel-la could maintain the action for use and benefit of the subrogee to the extent of its interest and for her own benefit for any excess, subject to a provision that the costs and expenses of recovery would be borne by Geico.

By cross assignment of plaintiffs it is contended the awards in favor of the Eckerts should be reversed on the ground that the claim of Alicia Eckert did not meet the threshold requirements for prosecution of the action. However, there was evidence from which the jury could and did conclude that the claim was actionable, and the issue was explained and submitted to the jury by the trial court.

By cross assignment Geico contends denial of recovery by it, through directing a verdict against it was error, and that the judgment should have been entered in favor of Geico and Gizella. We find merit in that contention. The trial court granted a directed verdict against Geico because the Geico insurance policy was not offered in evidence.

Without the introduction of the policy into evidence, there was ample evidence that Geico, as insurer, had paid the uninsured motorists benefits to Gizella. Both Geico and Gizella, in their pleadings, proceeded on that basis. Geico’s right of subrogation, to enforce Gizella’s claim against the tort-feasor did not arise by virtue of any term or provision in its policy, but was created by and was the result of the payment Geico had made to Gizella. The release and agreement signed by Gizella admitted receipt of the $9,000.00 from Geico, sufficiently confirming such payment as having been made under an insurance policy, and Gizella therein recognized Geico as a subrogee. Under those circumstances, it was error to direct a verdict against Geico. See Firestone Stores, Inc. v. Wynn, 131 Fla. 94, 179 So. 175.

In this action brought by Geico as sub-rogee, in which Gizella joined, to deny reimbursement to Geico from the amount recovered would be to allow a double recovery by Gizella. The judgment should have been entered in favor of Geico and Gizella.

We note that the First District Court of Appeal has held that in such a case where the recovery is more than sufficient to reimburse the insurer-subrogee for the amount paid by it under the uninsured motorists coverage, the subrogee is not entitled to full reimbursement (less expenses of recovery) but is restricted to recovery of a portion thereof to be determined upon the basis of equitable distribution. We are shown no statutory provision limiting recovery by the subrogee to a portion of its outlay on the basis of equitable distribution in such circumstance. We recognize that a statute which had provided for full recovery by the insurer in such an instance (§ 627.0851(4) Fla.Stat., F.S.A.) is no longer in effect and was not applicable in this case. However, it would appear that the insurer may so recover under the common law doctrine of subrogation, and we so hold. We regard our ruling on this question to be a decision on a matter of great public interest, on the basis of which we are separately so certifying it to the Supreme Court of Florida, for review upon certiorari.

For the reasons stated, the judgment is affirmed in part and reversed in part, as and in the respects set out hereinabove. The judgment rendered in favor of Gizella on the merits should have also been in favor of Geico, and the judgment is so amended. The cause is remanded with direction to the trial court to allocate the amount recovered in the action by Geico and Gizella, by awarding $9,000.00 to Geico (out of which the expenses of recovery shall be paid) and the excess ($4,550.00) to Gizella.

It is so ordered.

      . Central National Insurance Group v. Hotte, Fla.App.1975, 312 So.2d 235; State Farm Mutual Ins. Co. v. Gordon, Fla.App.1975, 319 So.2d 36.

      . International Sales-Rentals Leasing Co. v. Nearhoof, Fla.1972, 263 So.2d 569; De Cespedes v. Prudence Mutual Casualty Co. of Chicago, Ill., Fla.App.1967, 193 So.2d 224 (aff’d on cert., Fla., 202 So.2d 561).
      The absence of a separate statute for such recovery by an insurer will not operate to deny to it the right to sue and recover under the common law doctrine of subrogation.


text:
    The STATE of Florida ex rel. Phillip O. KIRSCH, Appellant, v. The Honorable C. P. RUBIERA, Judge of the County Court in and for Dade County, Florida, Appellee.
    No. 75-1231.
    District Court of Appeal of Florida, Third District.
    April 13, 1976.
    Rehearing Denied July 6, 1976.
    Phillip A. Hubbart, Public Defender and Mark King Leban, Asst. Public Defender, for appellant.
    Richard E. Gerstein, State Atty. and Charles Poole, Asst. State Atty., for appel-lee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Affirmed on the authority of State ex rel. Butler v. Cullen, Fla.1971, 253 So.2d 861; Rubiera v. Dade County ex rel. Benitez, Fla.1974, 305 So.2d 161.


author: BY THE COURT.

text:
    PALM BEACH COUNTY, a political subdivision of the State of Florida, Petitioner, v. William Lamar ROSE, Judge, Circuit Court, Fifteenth Judicial Circuit, Respondent.
    No. BB-247.
    District Court of Appeal of Florida, First District.
    June 29, 1976.
    R. William Rutter, Jr., West Palm Beach, for petitioner.
    Robert L. Shevin, Atty. Gen., George R. Georgieff, Asst. Atty. Gen., David Blud-worth, State Atty., for respondent.
   BY THE COURT.

Petition for certiorari was filed in the District Court of Appeal, Fourth District, seeking to review an order entered by the Circuit Court of the Fifteenth Judicial Circuit in and for Palm Beach County, Florida, in the case of State of Florida v. Simpson, No. 75-2553-CF.

By its order of 1 March 1976, 330 So.2d 32, the above cause was transferred to this Court pursuant to the provisions of Florida Appellate Rule 2.1, subd. a(5)(d).

Upon examination we find that the order sought to be reviewed was entered by the Circuit Court of the Fifteenth Judicial Circuit in and for Palm Beach County, Florida, which is in the jurisdiction of the District Court of Appeal, Fourth District.

In light of the foregoing, the petition for certiorari shall be transferred by separate order to the District Court of Appeal, Fourth District, after five days’ notice due to the parties as provided by Rule 2.1, subd. a(5)(d), Florida Appellate Rules.

BOYER, C. J., and MILLS and Mc-CORD, JJ., concur.


text:
    ALY HANDBAGS, INC., a Florida Corporation, and Alberto Llodra, Appellants, v. Ira ROSENFELD, Appellee.
    No. 75-1496.
    District Court of Appeal of Florida, Third District.
    April 27, 1976.
    Rehearing Denied July 6, 1976.
    Gelb & Spatz, Miami, for appellants.
    Nachwalter, Christie & Falk, and Steven Kronenberg, Miami, for appellee.
    Before BARKDULL, C. J., HAVER-FIELD, J., and CHARLES CARROLL, (Ret.) Associate Judge.
   PER CURIAM.

Defendants appeal an order granting plaintiff an accounting in an action to recover commissions due pursuant to a contract of employment.

On October 2, 1968 plaintiff, Ira Rosen-feld, an experienced handbag salesman,'entered into a written employment contract with defendant Aly Handbags, Inc., whereby plaintiff was to receive a 10% commission on all net sales made in Florida plus out-of-state accounts designated by him, and a 3% override commission on all orders which were not his accounts. Shortly thereafter, plaintiff discovered that defendant had made sales on which it was not paying commissions by designating them “house accounts” (sales made in areas where there were no salesmen). Whereupon, he complained to defendant, Alberto Llodra, president of Aly Handbags, and threatened to quit. Llodra assured plaintiff that such conduct would not be repeated and orally agreed to give him an additional 2% commission to be placed in a joint account at the First National Bank of Hialeah on all net shipping made from Aly Handbags. On September 1, 1970 the parties entered into a new employment contract providing for the same commission structure as the 1968 contract. Subsequently, plaintiff again voiced his dissatisfaction in not receiving commissions on cash sales being made to retailers and customers and then discovered Llodra discontinued the joint account at the bank. On February 16, 1973 plaintiff’s employment was terminated and he filed the instant action seeking to collect the commissions due on the house accounts and cash sales dating from the 1968 contract. Plaintiff also sought an accounting and after a hearing, the court entered the following order:

“ORDERED AND ADJUDGED as follows:
“1. That Plaintiff’s demand for accounting for monies due and owing to him under the contract entered into between the parties dated October 2, 1968, be and the same is hereby denied.
“2. That Plaintiff’s demand for accounting for monies owing to him under the contract entered into between Plaintiff and ALY HANDBAGS, INC. dated September 1, 1970, be and the same is hereby granted. Said accounting shall be for the period September 1, 1970 to the date of Plaintiff’s termination on February 16, 1973. The scope of said accounting shall be limited to the following:
“a) Commissions due and unpaid to Plaintiff on all net sales made, shipped and/or distributed by ALY HANDBAGS, INC. on orders made by the Plaintiff prior to his termination by Defendant on February 16, 1973, and on all reorders on such sales or orders, even though the shipments thereof were not made until after the termination of Plaintiff’s services.
“b) Any 3% override commissions due to IRA ROSENFELD on orders shipped prior to the termination of services on February 16, 1973.
“c) Plaintiff shall further have the right to inspect the books and records of ALY HANDBAGS, INC., concerning commissions due, if any, on cash sales and house accounts, as reflected in the books and records of ALY HANDBAGS, INC.
“3. Plaintiff shall further have the right to an accounting as to all monies deposited and withdrawn from the joint bank account maintained in the names of Plaintiff and ALBERTO LLODRA at the First National Bank of Hialeah and bearing Account No. 116-690-6, as reflected by the records of said joint bank account.”
ifc ‡ ‡ 5|e %

Defendants Aly Handbags and Alberto Llodra appeal, and plaintiff Ira Rosenfeld cross-appeals from this order.

Defendants contend the court erred in extending the scope of accounting to include cash sales and house accounts for the primary reason that the parties four-year course of dealing settled that plaintiff was not entitled to receive commissions on cash sales and house accounts because plaintiff did not continually demand commissions on them. We cailnot agree.

First, the record demonstrates that on more than one occasion plaintiff complained to Llodra that he was not receiving commissions on house accounts and cash sales.

Second, it is a fundamental principle of law that modification of a contract cannot be made by one party to the contract without the assent of the other party. Wilson v. Odom, Fla.App. 1968, 215 So.2d 37, 39. The undisputed evidence reflects that defendants never made available to plaintiff any invoices as to the cash sales (on many of which no invoices were drawn up) and house accounts. The defendants having concealed this information, it cannot be said that there existed a course of dealing between the parties with respect to payment of commissions on the sales and accounts. Thus, there was no assent on the part of plaintiff to give up these commissions.

We next considered defendants’ second point on appeal that the court erred in extending the scope of accounting back to September 1, 1970 and find it to be lacking in merit.

On cross-appeal plaintiff first urges as error the court’s denying an accounting under the 1968 contract.

The well established rule of law is that a contract may be discharged or extinguished by merger into a later contract entered into between the parties in respect to the same subject which replaces the original contract. 7 Fla.Jur. Contracts § 166 (1956). We hold that upon the execution of the September 1, 1970 contract between the parties, the contract of October 2, 1968 merged into this later contract and thereby was extinguished.

Plaintiff further alleges that the court erred in extending the accounting only up to February 16, 1973 and, therefore, he will be precluded from commissions on orders placed prior to his termination but shipped thereafter.

A careful reading of paragraph 2(a) of the accounting order demonstrates this contention to be without merit.

Plaintiff having failed to make reversible error appear in his remaining points on cross-appeal, the order of accounting is affirmed.

Affirmed.


text:
    Ruby C. LAURANCE, Individually as an executrix of the Estate of Jack C. Laurance, Deceased, Appellant, v. PAUL W. DAVIS SYSTEMS, INC. OF ST. PETERSBURG, and Servicemaster-Hirth Carpet and Furniture Cleaners, Inc., Appellees.
    No. 75-1551.
    District Court of Appeal of Florida, Second District.
    June 25, 1976.
    Lewis H. Homer, III, Clearwater, for appellant.
   PER CURIAM.

Appellant appeals a final judgment foreclosing a mechanic’s lien filed by Davis Systems. The appellant filed a counterclaim against Davis Systems claiming damages. Davis Systems then filed a third-party complaint against Servicemaster and the appellant followed with a crossclaim against Servicemaster. After all pleadings had been filed and all issues framed, a pretrial order was entered ordering the mechanic’s lien foreclosure to proceed in a non jury trial and leaving the remaining claims to be tried at a later date before a jury as requested.

Thereafter another circuit judge tried the mechanic’s lien foreclosure and entered the final judgment appealed. Appellant brought this appeal in fear that the final judgment, not having reserved jurisdiction to try the issues presented by her counterclaim and crossclaim, would preclude appellant from her day in court on those issues. No issue is raised with respect to the propriety of the entry of the foreclosure judgment prior to the disposition of the other claims.-

Therefore, we affirm the final judgment foreclosing the mechanic’s lien and remand the cause for a jury trial on the remaining claims.

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


author: BY THE COURT. BOYER, Chief Judge

text:
    ZIMMER HOMES CORPORATION, Appellant (Plaintiff), v. Keith A. BAKER and Gladys Sue Baker, d/b/a Bakers Mobile Home Sales and Service, Appellees (Defendants).
    No. Z-391.
    District Court of Appeal of Florida, First District.
    June 29, 1976.
    Alan B. Fields, Jr., Palatka, for appellant.
   BY THE COURT.

This appeal questions the correctness of a summary judgment rendered in favor of appellees.

The record on appeal fails to conclusively establish that there was no genuine tria-ble issue of a material fact under the issues as made by the counterclaim and the answer thereto. Under these circumstances, appellees were not entitled to judgment as a matter of law, and the trial court erred in holding to the contrary.

The judgment appealed is reversed and the cause remanded to the trial court for the purpose of receiving evidence on the issues as made by the pleadings, and rendering final judgment thereon.

Reversed and remanded.

MILLS and McCORD, JJ., concur.

BOYER, C. J., concurs specially.

BOYER, Chief Judge

(concurring specially) .

I concur in reversal and remand. Upon remand a trial should be held on the merits. The record-on-appeal does not reveal a demand for jury trial but neither does it affirmatively reveal that no such demand was made. Whether the case is tried before the court or by jury will, of course, depend upon whether or not a timely demand for jury trial was made.


text:
    George Michael KELLY, Appellant, v. STATE of Florida, Appellee.
    No. 75-696.
    District Court of Appeal of Florida, Second District.
    June 23, 1976.
    Jack O. Johnson, Public Defender, and Dan P. Brawley, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant raises several points on this timely appeal. After due consideration of the record we find only one merits discussion.

At the conclusion of the state’s case appellant moved for judgments of acquittal as to Counts V and VI of the information which charged him with malicious destruction of a jail cell and malicious destruction of a police car respectively. The court granted the motion as to Count VI involving the police car. After the close of appellant’s case, the court announced that it was reinstating Count VI and that the motion had been one of dismissal rather than acquittal. We do not agree and hold this decision by the trial judge constitutes reversible error. Appellant was clearly prejudiced by having the charge reinstated after he had rested his case. The grant of the motion for acquittal acts as a bar to subsequent prosecution. Cf., Potter v. State, 1926, 91 Fla. 938, 109 So. 91.

We note that appellant was sentenced to a concurrent one year sentence for Counts III-VI of the information. (These four counts were the two aforementioned charges of malicious destruction of public property and two counts of assault and battery.) This was an invalid general sentence as to those four counts. See Long v. State, Fla.App.2nd, 1975, 310 So. 2d 35. Accordingly, we vacate this portion of the sentence.

The trial court is directed to vacate the judgment and sentence on Count VI; discharge appellant as to that count; and enter proper sentences on Counts III, IV and V. The judgment and sentence rendered on Counts I and II are affirmed. The judgment as to Counts III, IV and V is affirmed.

REVERSED in part; AFFIRMED in part; and REMANDED for proper sentencing.

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


author: BARKDULL, Chief Judge.

text:
    HEFTLER CONSTRUCTION CO. AND SUBSIDIARIES, Petitioner, v. DEPARTMENT OF REVENUE of the State of Florida, Respondent.
    No. 76-72.
    District Court of Appeal of Florida, Third District.
    June 22, 1976.
    Williams, Salomon, Kanner & Damian, Miami, for petitioner.
    Robert L. Shevin, Atty. Gen., and E. Wilson Crump, II, Asst. Atty. Gen., J. Ed Straughn, Winter Haven, for respondent.
    Before BARKDULL, C. J., and HAV-ERFIELD, J., and CHARLES CARROLL (Ret.), Associate Judge.
   BARKDULL, Chief Judge.

Pursuant to the new Administrative Procedures Act, Ch. 120, Fla.Stat., the petitioner seeks review of an order of the respondent which disallowed losses from the petitioner’s Puerto Rico subsidiaries to be included on its Florida corporation income tax return, made an apportionment of certain expenses attributable to its Puerto Rico property, and billing the petitioner for a tax deficiency. The order approved by the Governor and the Cabinet, sitting as the head of the Department of Revenue, reads in part as follows:

******
“INTRODUCTION
“At the beginning' of the hearing, the parties stipulated that there were no material issues of fact in dispute and that the relevant facts were as set forth in the pleadings. The hearing was thus confined to the parties’ legal arguments regarding the interpretation of certain statutes relating to the primary issue of the validity of the proposed deficiency in petitioners’ Florida income taxes for the fiscal years ending July 31, 1972, and July 31, 1975. In determining this issue, three further issues present themselves for decision:
“A. Do profits or losses derived by a corporate income taxpayer from operations in Puerto Rico come within the foreign source income exclusion of F.S. § 220.13(1) (b)2.b.?
“B. If so, is the foreign source income adjustment of § 220.13 applicable to an affiliated group filing a consolidated return under F.S. § 220.131?
“C. Are property, payroll and sales of a taxpayer’s Puerto Rican operations to be excluded from the demoninator [sic] in its apportionment formula?
“It is the petitioners’ contention that income or losses from operations within Puerto Rico do not fall within the foreign source income adjustment of F.S. § 220.13. In that alternative, even if they did, petitioners contend that such adjustments required by § 220.13 are not applicable to an affiliated group of corporations filing a consolidated return under § 220.131, which mandates the use of federal taxable income.
“It is the respondent’s contention that the adjustments required by § 220.13 are applicable to an affiliated group of corporations filing a consolidated return under § 220.131 and that losses derived from Puerto Rican operations are not in-cludable in adjusted federal taxable income for Florida purposes.
“FINDINGS OF FACT
“Having considered the pleadings, evidence and legal arguments presented in this cause, the following facts are found:
“1. Petitioner is a corporation duly organized under the laws of the State of New Jersey and qualified to do business in the State of Florida.
“2. Two of the subsidiaries of Petitioner are Island Properties, Inc., formerly known as Heftier International, Inc., and Island Land Corporation, formerly known as Heftier Construction Company of Puerto Rico, Inc. These corporations are organized under the laws of the State of Florida and the State of New Jersey respectively and maintain principal places of business in Puerto Rico.
“3. For the fiscal years ending July 31, 1972 and July 31, 1973, petitioners properly included losses from the operations of the Puerto Rico corporations in their consolidated income tax returns filed with the Internal Revenue Service.
“4. For the fiscal years ending July 31, 1972, and July 31, 1973, petitioners timely filed with the respondent consolidated income tax returns including therein the operations of the Puerto Rico corporations.
“5. After a timely audit, the respondent excluded, for the purposes of computing adjusted federal income as defined by § 220.13, the losses sustained by the Puerto Rico corporations. The respondent also excluded from the computation of the apportionment factors defined in F.S. § 214.71 and 220.15 the value of the property, payroll and sales utilized in the operations of the Puerto Rico corporations. The respondent cited F.S. §§ 220.13(1)(b)2.b, 220.15(3) and 214.71 as its authority.
“6. The adjustments made by the respondent results in a net proposed deficiency of $75,076.46 for the two fiscal years in question.
“7. After attempts by the parties to resolve the issues by informal means failed, the petitioner requested a formal hearing and the respondent requested the Division of Administrative Hearings to conduct the hearing.
“CONCLUSIONS OF LAW
“The Florida income tax code imposes upon corporations an excise or privilege tax measured by net income. F.S. § 220.-11(2). Florida net income is defined as ‘adjusted federal income’, apportioned where necessary in accordance with F.S. § 220.15, less the annual exemption allowed by § 220.14. F.S. § 220.12(1). Thus, ‘adjusted federal income’ is the beginning point for computing tax liability under the Florida Code.
“There are two sections of Ch. 220 pertaining to adjusted federal income. The first is § 220.13 which defines it as federal taxable income, subject to certain limitations on loss and expense carryovers, adjusted in accordance with specified additions and subtractions. The second is § 220.131 which allows an affiliated group of corporations to file a consolidated return. This latter section provides that
‘The computation of consolidated taxable income . . . shall be made in the same manner and under the same procedures ... as are required for consolidating the incomes of affiliated corporations for the taxable year for federal income tax purposes . . ., and the amount shown as consolidated taxable income shall be the amount subject to tax under this Code.'
F.S. § 220.131(4).
Based upon this language, it is petitioners’ contention, inter alia, that the adjusted federal income definition of § 220.-13 is not applicable to affiliated groups filing consolidated returns, whose tax for Florida purposes would be identical to the federal tax. A reading and consideration of these two statutes leads the undersigned to conclude that petitioners’ contention in this regard is without merit.
“First, there would appear to be no rational reason why the adjustments prescribed by F.S. § 220.13 (which defines ‘adjusted federal income’ for the purposes of determining a taxpayer’s net income) would be applicable to one corporation, but would not be applicable to two or more corporations filing as an affiliated group. Second, it must be remembered that the tax imposed by Ch. 220 is a tax measured by net income. Net income is defined in terms of adjusted federal income. The opening sentence of § 220.13, defining adjusted federal income, provides that it means an ‘amount equal to the taxpayer’s taxable income ... or said taxable income of more than one taxpayer as provided in § 220.131, adjusted . . .’ by certain additions and subtractions. (Emphasis supplied). It thus seems clear that although a Florida parent may file a consolidated Florida return with its in-state affiliates and a Florida parent and all of its federal corporate affiliates may elect under certain conditions to file their federal consolidated return in Florida, the net income subject to the Florida income tax is the adjusted federal income as defined by § 220.13. Also see F.A.C. Rule 12C-1.131(4)(c), which provides that
‘The limitations described in Section 220.13(1)(b) in respect to net capital losses and excess contributions deductions shall be taken into account in the computation of consolidated items.’

"This then brings us to the issue of whether profits or losses derived from operations in Puerto Rico come within what is known as the foreign source income exclusion or subtraction of § 220.-13(l)(b)2.b. That section provides that there shall be subtracted from taxable income any amount included therein which was derived from sales outside of the United States, and from sources outside the United States as interest, as a royalty or as compensation for technical or other services. While the Florida corporate income tax code does not define the term ‘United States’, the legislative history and a reading of other statutes and rules and regulations leads to the conclusion that the legislature intended the term ‘United States’ to mean only the fifty states and the District of Columbia.

“Construction of a statute by the administrative agency charged with its enforcement and interpretation is entitled to great weight. State v. Florida Development Commission, 211 So.2d 8 (Fla.1968); Gay v. Canada Dry Bottling Co., 59 So.2d 788 (Fla. 1952); Commissioner v. South Texas Lumber Company, 333 U.S. 496, 68 S.Ct. 695, 92 L.Ed. 831 (1948). The administrative interpretation of the foreign source exclusion is set forth in F.A.C. Rule 12C-1.13(1) (b)2, which states

‘. . . income derived from sources within a possession or territory of the United States shall be treated as income derived from sources outside the United States.’

“There is a further consideration, which also goes to the third issue raised in this proceeding — whether the property, payroll and sales of the Puerto Rican operations are excludable from the de-moninator [sic]- of the taxpayer’s apportionment formula. According to F.S. § 220.15, adjusted federal income is to be apportioned to Florida in accordance with Part IV of F.S. Ch. 214, specifically § 214.71. The apportionment factors of § 214.71 are partially defined by § 220.15. As originally promulgated, § 220.15(3) defined ‘everywhere’ for purpose of computing the demoninator [sic] of the apportionment factor, to mean

‘in all other states of the United States, the District of Columbia, the commonwealth of Puerto Rico, any territory or possession of the United States, or any political subdivision of the foregoing.’ Laws of Florida 1971, Ch. 71-984.

That section was amended by Ch. 72-278, § 5, Laws of Florida 1972, by deleting references to Puerto Rico and any territory or possession of the United States. Thus, ‘everywhere’ is now defined to mean ‘in all states of the United States, the District of Columbia, or any political subdivision of the foregoing’. F.S. § 220.15(3). This amendment clearly illustrates the legislative intent to exclude Puerto Rican sales, property and payroll from the demoninator [sic] in the apportionment formula. If Puerto Rican income and operations were to be taxed by Florida, it would have been necessary to include these elements in the apportionment formula. Having excluded these elements, it seems clear that the Florida Legislature considered Puerto Rican income and losses as foreign source income and losses to be subtracted from adjusted federal income.

“In conclusion, it is my interpretation of the statutes in question that affiliated groups are subject to the adjustments to taxable income prescribed by F.S. § 220.-13; that profit or losses derived from operations in Puerto Rico come within the foreign source exclusion or subtraction of F.S. 220.13(1)(b)2.b.; and that property, payroll and sales from Puerto Rican operations are to 'be excluded from the demoninator [sic] of corporations apportioning their income between Florida and other jurisdictions.

RECOMMENDATION
“Based upon the above findings of fact and conclusions of law, it is recommended that there is no basis for affording petitioners any relief from the proposed deficiency and that said deficiency in the amount of $75,076.46 be sustained.” [Emphases supplied]

We sustain the action of the Department and the order it approved, which correctly reviews the legislative history and intent of the legislature in the enactment of Ch. 220, Fla.Stat. If there was any doubt about the original intent of the legislature to exclude foreign source income adjustment, this was clarified by the 1972 amendment to § 214.71, Fla.Stat., and was further clarified by the author of Ch. 220, the Honorable Arthur J. England, Jr. now Justice of the Supreme Court of Florida, found in his article entitled: Corporate Income Taxation in Florida: Background, Scope, and Analysis, which is found in a special works Compiled and Edited by the Editorial Staff of the Florida State Law Review, 1972, entitled: An Introduction to Florida Corporation Income Taxation.

There are many varied reasons why the Legislature of the State of Florida would exempt foreign sources from Florida income tax liability. This case is a good example of why foreign source income should be treated different from that earned in a sister state, because in the instant matter the affiliated foreign corporations operated at a loss and, by filing a consolidated tax return, the domestic United States corporation reduces its tax liability. But the contrary is not true. If the foreign affiliated corporations operate at a profit, then there is no filing of a consolidated tax return and the earnings of the foreign subsidiary are not subject to Federal income tax. See: § 931, Internal Revenue Code of 1954. This may be a public policy established by the United States Congress to encourage American corporations to invest in Puerto Rico, but the Legislature of the State of Florida had a right and did elect not to make this a part of the public policy of the State of Florida. The United States Congress elected to subsidize Puerto Rican business by such Federal laws; the Florida Legislature declined to do the same.

Therefore, for the reasons above stated, we hold that foreign source income tax adjustment is not permitted in computing the income tax due the State of Florida and, further, that the Department of Revenue acted correctly in utilizing the tax apportionment formula which excluded property, payroll, and sales of Puerto Rican subsidiaries in determining the tax base.

Affirmed.

CHARLES CARROLL, Associate Judge, dissents.

      . Said article reads in part as follows:
      its * * * *
      “5. Foreign Source Income. — Income derived for foreign (non-United States) sources was never seriously considered by the legislature to be an appropriate subject for Florida taxation. The draft statutes circulated before the November referendum had raised the possibility of taxing this type of income, but a great outpouring of opposition emanated from areas in south Florida, principally Coral Gables, where there are headquartered export companies doing a substantial business in Latin America, the Carribean, and other western hemisphere countries. Additionally, several national oil companies urged the legislature to consider the technical difficulties of adjusting the Florida tax base to take into aeeount the foreign tax credit provisions of federal law. It was shown that vast inequities among competing corporations with different corporate structures, but with similar levels of business activity in Florida, would result unless the Florida code provided something akin to the federal tax credit for foreign source income. A state tax credit did not seem feasible, however.
      “As finally adopted, the Florida Code eliminates from the tax base all income derived from foreign sources. To prevent erosion of the tax base where domestic as well as foreign source income is earned, the apportionment fractions for sales, property, and payroll were adjusted to eliminate foreign property from the denominator of each fraction.”
      s|c sis


text:
    LEATHERBY INSURANCE COMPANY, Appellant, v. Barbara M. MATHERLY, and Earl W. Matherly, her husband, Appellees.
    No. 76-140.
    District Court of Appeal of Florida, Third District.
    June 22, 1976.
    Prunty, Ross, DeLoach & Olsen, Miami, for appellant.
    Frates, Floyd, Pearson, Stewart, Proenza & Richman and George E. Schulz, Jr., Miami, for appellees.
    Before HENDRY and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

This is an interlocutory appeal by defendant from an order of the circuit court granting partial summary judgment in favor of plaintiffs, appellees, on the issue of liability.

We have carefully reviewed the record on appeal and have found that it discloses that there are issues of material fact which have not been eliminated by movants so as to entitle them to a partial summary.

Summary judgments are proper only where there is no genuine issue of material fact to be tried. Anderson v. Aamco Transmissions of Brevard, Inc., Fla.1972, 265 So.2d 5; Connell v. Sledge, Fla.App.1975, 306 So.2d 194.

For the reasons stated partial summary judgment should not have been granted.

Reversed and remanded for further proceedings.


text:
    ALLSTATE INSURANCE COMPANY, an Illinois Corporation, Appellant, v. Bernhard BAER and Yetta Baer, Appellees.
    No. 75-610.
    District Court of Appeal of Florida, Third District.
    June 8, 1976.
    Rehearing Denied July 9, 1976.
    Weissenborn, Burr & Hyman, Podhurst, Orseck & Parks, Miami, for appellant.
    Horton, Perse & Ginsberg, Brumer, Moss, Cohen & Rodgers, Miami, for appel-lees.
    Before BARKDULL, C. J., and HEN-DRY, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

This appeal by Allstate Insurance Company, the plaintiff below is from a declaratory judgment determining the limits of uninsured motorist coverage included in automobile liability indemnity policies which had been issued by the appellant to the appellees.

On or about September 22, 1973, the insurer notified the insureds, in writing, that as required by law the limits of the uninsured motorist coverage in the policies would be increased to equal the limits of the liability coverage, on October 1, 1973, unless the insureds rejected the increase in writing. Each policy provided $100,000.00 and $300,000.00 liability and $10,000.00-$20,000.00 uninsured motorist coverage. The insureds did not so reject the increase.

In the declaratory judgment action brought by Allstate against the appellees, Allstate contended the increase did not thereby occur. The defendants contended otherwise. The court held the increase became effective. Allstate appealed.

The notice sent by Allstate to the insureds, a short time prior to October 1, 1973, and which was received by them and upon which they concluded not to reject the indicated increased coverage, was as follows:

“New Requirements For Uninsured Motorist Coverage
“The insurance law in Florida requires that we make a change in the coverage of many of our policyholders.
“Beginning October 1, 1973, the law states that we must include Uninsured Motorist Protection in your policy. This coverage must be in the same limits as your Bodily Injury Liability limits.
“If you already have Uninsured Motorist Protection — we will increase your limits to equal your Bodily Injury Liability limits.
“If you now carry no Uninsured Motorist Protection, we will add it to your policy — with limits equalling your Bodily Injury Liability limits.
“The additional charge will be included in your premium.
“However, under the law you do have the opportunity to reject the changes in your coverage that we are required by law to make. You can decide to reject the coverage completely, or to have lower limits.
“You have the right to reject these changes — it must be in writing! You have the right to reject this coverage, or to select lower limits. But we must receive written notice from you. Otherwise your coverage will include the changes in your Uninsured Motorist Protection, or the addition of that coverage to your policy.
“If you choose to reject the changes we are required by law to make, just check the box that informs us of what you want done, sign the form and return it to us in the enclosed envelope.
“If you have any questions about this change or any other insurance matter, just see your agent or call our nearest office.” (Emphasis by Allstate).

Appended thereto was a detachable card to be mailed to Allstate by the insureds in event they should desire to reject the increased coverage. At the trial there was evidence that the insureds were aware of the notice prior to October 1, 1973, and chose not to reject the increased coverage. Additionally Bernhard Baer testified as follows:

“Q. Now, when you read this what was your inclination as to what you had to do about it? A. That in order to receive maximum coverage on uninsured motorist I had to do nothing. Q. Effective October 1st, 1973, you had it? A. That’s right.
******
Q. In 1972 were you ever given the opportunity to accept or reject a higher uninsured motorist limit equal to your liability policy? A. No. Q. If you had been given that opportunity would you have declined it or accepted it? A. 1 would have accepted it.”

When the trial court had before it the above notice from Allstate to the insureds and the evidence relating to their purposeful non-rejection of the increased coverage, that was the case- — and all that remained was for the court to determine the legal effect thereof. The extensive discovery and litigation of collateral matters, involving the expenditure by counsel of hundreds of hours in this case, were needless and amounted to overtrial of the action,

We affirm the holding of the trial court declaring the increase in limits of uninsured motorists coverage in the policies went into effect, as Allstate had notified the insureds it would, on October 1, 1973. That legal effect of the transaction could not be altered by the circumstance that an accident occurred after October 1, 1973, on the basis of which a claim or claims could be made involving the increased coverage. Allstate selected the method and procedure for putting such increased coverage into effect, and, as the trial court held, it was not in a position to disclaim the result it had intended and effectively accomplished.

By an order supplementing the judgment, the court determined the fee to be paid by Allstate for the services of the defendant’s attorneys. Allstate’s appeal contends the fee allowance was grossly excessive. We agree. The question presented for determination by declaratory judgment was one of legal construction to be made by the Court, based on the written notice given by Allstate to its insureds and the handling thereof by the insureds. The insurance company should be required to pay only a reasonable fee for services of the insureds’ attorneys in the handling of the case that were reasonably and necessarily required, but not for services that went beyond that which was called for. The judgment or order awarding the attorney fees is hereby modified to reduce the allowance for attorneys’ fees to $15,000.00, as the amount provided by the judgment to be paid by Allstate.

The judgment, including the supplement thereto relating to attorney fees as above modified, is affirmed.

      . In 1971 Chapter 71-88 amended § 627.0851 (1) Fla.Stat., F.S.A. to require that such policies issued on or after January 1, 1972 should include uninsured motorist coverage in limits no less than, the liability insurance limits therein, unless rejected by the insured.
      Appellees policies which had been obtained by them prior to 1972, were not affected by the above amendment.

      . Section 627.727(1) Fla.Stat., F.S.A. (in the form in which its predecessor section 627.0851 (1) had been amended by Ch. 71-88) was further amended by Chapter 73-180(3), by adding a provision that an insured, without rejecting uninsured motorist coverage, could select limits thereof less than the liability insurance policy limits.
      That amendment of 1973 was made applicable to policies “delivered, issued for delivery or renewed in this state with an inception on or after October 1, 1973.”
      Thus, the 1973 amendment did not have reference to the policies held by the appellees. The fact that Allstate effectively brought about the increases of the limits of the uninsured motorist coverage in appellees’ policies as of October 1, 1973, under the mistaken impression that the 1973 amendment was applicable and required such, was not material, and could not serve to nullify such action of Allstate and the effect and result thereof.


text:
    KEY PHARMACEUTICALS, INC., et al., Appellants, v. Seymour ROBINSON et al., Appellees.
    No. 75-1433.
    District Court of Appeal of Florida, Third District.
    June 15, 1976.

      Pettigrew & Bailey and Marc M. Watson, Miami, for appellants.
    Michael B. Solomon, Miami Beach, for appellees.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

This is an interlocutory appeal wherein defendants seek reversal of an order denying their motion to dismiss for lack of jurisdiction over the subject matter.

After receiving letters of patent for this invention of a cleaning device utilizing ultra-sonic vibrations for dislodging debris from teeth, Seymour Robinson, plaintiff, entered into an agreement with, Harvey Liefman and Pro-Sonic Industries, Inc., defendants, wherein they agreed to pay him $14 on every unit sold or 20% of the net profits, whichever was greater, in exchange for assignment of his interest in the cleaning tool. Subsequently this interest was transferred to Sonoptics, Inc. and then to Key Pharmaceuticals, Inc., defendants. The payment of royalties to Robinson became irregular and eventually stopped. Robinson then filed suit against the defendants seeking recovery for past due royalties and alleging fraud in that defendants developed devices utilizing the same concept as his tool, caused letters of patent to be issued and did not pay him royaltiés on the sale of these similar devices. Defendants moved to dismiss the action on the ground that the federal courts have exclusive jurisdiction over claims arising under patent rights and, therefore, the circuit court lacked jurisdiction over the subject matter. The motion was denied. We affirm.

A suit arises under the law that creates the cause of action and the plaintiff’s opening pleading is determinative. Arvin Industries, Inc. v. Berns Air King Corporation, 510 F.2d 1070 (7th Cir. 1975). If a plaintiff founds his suit directly on a breach of some right created by the patent laws, he. (or she) makes a case arising under those laws and only a federal court has jurisdiction; however, if he (or she) founds his suit on some right vested in him by the common law or by general equity jurisdiction, he makes a case arising under state law and only a state court has jurisdiction. Bert Lane Company v. International Industries, Fla. 1955, 84 So.2d 5.

We conclude that this cause is within the jurisdiction of the state court in that plaintiff pursuant to the terms of the assignment agreement with the defendants is seeking to enforce his right to past due payment of royalties and to determine whether or not the similar devices patented by the defendants would defeat his continuing right to royalties. These rights are conferred by state law and cannot be the basis for exclusive federal jurisdiction. See Arvin Industries, Inc., supra, and Cf. Lang v. Patent Tile Company, 216 F.2d 254 (5th Cir. 1954).

Affirmed.


text:
    Guillermo PERNAS, Individually and as father and next friend and guardian ad litem of Elena Pernas and Elizabeth Pernas, both minors, Appellants, v. HARTFORD ACCIDENT AND INDEMNITY COMPANY, Appellee.
    No. 75-1212.
    District Court of Appeal of Florida, Third District.
    June 15, 1976.
    Lawrence F. Kaine, Miami, for appellants.
    Robert A. Glassman and Leland E. Stan-sell, Jr., Miami, for appellee.
    Before PEARSON, HAVERFIELD, and NATHAN, JJ.
   PER CURIAM.

This appeal is taken by the defendants, Guillermo Pernas, individually and as father, next friend and guardian ad litem of Elena and Elizabeth Pernas, minors, from a declaratory final judgment in favor of the plaintiff, Hartford Accident and Indemnity Company, in which the trial court determined that no insurance coverage is available to the defendants.

While riding home from school in a school van, Elena and Elizabeth Pernas were injured in an automobile accident caused by a negligent uninsured motorist. Pursuant to the policy provisions of an insurance policy with Hartford (no. 21GB42S074, infra), the Pernases filed for arbitration of their claim for damages with the American Arbitration Association. Before trial, Hartford filed this suit in Dade County circuit court seeking declaratory relief as to whether the uninsured motorist provision in the policy applied to the Pernas children, and injunctive relief to halt the arbitration proceedings until the court could adjudicate the coverage question.

Hartford wrote the following two policies: Policy 21GB425074 in the name of Continental Enterprises of America, Inc. T/A Magnuflex Rods and Policy 21GB-424970 in the name of North American Enterprises, Inc. d/b/a Campdel Exports. Both corporations are controlled by Guillermo Pernas and Elena, his wife. In both policies the uninsured motorist coverage endorsement was left blank where the “designation of named insured for purposes of this endorsement” should have been filled in. The limits of liability portion of 10 and 20 thousand dollars was filled in and the premium part of $5 INCL and $6 INCL was filled in and the premiums paid. In policy 21GB42S074 in the name of Continental Enterprises of America, Inc., the box on the front sheet is marked “The named insured is: Individual [X].” In policy 21GB424970 in the name of North American Enterprises, Inc. d/b/a Campdel Exports a binder is attached to the policy which states under “Remarks,” “Drivers— Guillermo A. & Elena V. Pernas.” It was stipulated that none of the vehicles in the accident was owned by the named insured in the policy.

The cause came to issue on Hartford’s amended complaint, the Pernas’ amended answer and counterclaim based on both policies and the binder naming Guillermo and Elena Pernas as the drivers, the answer to the counterclaim, a stipulation of facts, and affidavit and depositions. The amended complaint prayed that the court declare Hartford’s rights and obligations under the policy. The amended counterclaim asked that the court declare that the Pernases were entitled to uninsured motorist coverage under the policies or in the alternative that they be granted a trial for damages for Hartford’s negligence in failing to provide uninsured motorist coverage as requested. The Pernases moved for summary judgment and both parties submitted memoranda of law. The trial judge rendered judgment for Hartford holding there was no uninsured motorist coverage available to the Pernas children based on the stipulated facts and the insurance policies. This appeal is taken from that final judgment.

The record reflects that there is ample evidence to support the trial judge’s findings of fact and conclusions of law. Therefore, the declaratory final judgment denying coverage is affirmed. However, we do> not consider the declaratory final judgment to have adjudicated the defendants’ counterclaim against plaintiff Hartford for damages for negligence. The final judgment orders “that the Pernases be permanently enjoined from prosecuting any claims for insurance coverage against Hartford . . .”, but is silent as to claims for damages for negligence.

Affirmed.


text:
    Joann CRAWFORD, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1381.
    District Court of Appeal of Florida, Third District.
    June 15, 1976.
    Phillip A. Hubbart, Public Defender and Karen M. Gottlieb, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Linda C. Hertz, Asst. Atty. Gen., and Roy J. Kahn, Legal Intern, for appellee.
    Before BARKDULL, C. J., and HEN-DRY and NATHAN, JJ.
   PER CURIAM.

The appellant, Joann Crawford, was charged by information with two felony counts of possession of a controlled substance. She entered a plea of not guilty and filed a motion to suppress on the grounds that the evidence was obtained pursuant to an unreasonable search and seizure. After hearing testimony and argument, the trial judge denied the motion to suppress. Appellant Crawford changed her plea to nolo contendere, reserving her right to appeal the denial of the motion to suppress and the court entered a judgment of conviction and sentence of two concurrent four-month terms in the Dade County Jail.

On appeal, Crawford contends that the trial court erred in denying the motion to suppress evidence seized by the police without a warrant where there was no showing of the underlying circumstances on which the officer based his conclusion that the information received from a confidential informant was accurate, and where there was no independent evidence upon which to base probable cause.

The trial court’s ruling on a motion to suppress comes to this court with a presumption of correctness, and in testing the accuracy of the trial court’s conclusions, we should interpret the evidence and all reasonable inferences and deductions to be drawn therefrom in a light most favorable to sustain these conclusions. Rodriguez v. State, Fla.App.1966, 189 So.2d 656, concurring opinion of Judge Barkdull, 660. Under § 901.15, a police officer may make an arrest without a warrant when he reasonably believes that a felony has been or is being committed and reasonably believes that the person to be arrested has committed or is committing it. The arresting officer is not required to have sufficient first hand knowledge to constitute probable cause. It is sufficient if the police officer initiating the chain of communication either had first hand knowledge or received his information from some person, official source or eye witness, who it seems reasonable to believe is telling the truth. Salas v. State, Fla.App.1971, 246 So.2d 621, 622.

Having examined the facts pursuant to the foregoing principles of law, we find there to be substantial competent evidence to support the trial court’s ruling. See Eason v. State, Fla.App.1975, 317 So. 2d 447.

Affirmed.


author: BOYER, Chief Judge.

text:
    Carol B. BONE, Appellant, v. John R. BONE, Appellee.
    No. Z-240.
    District Court of Appeal of Florida, First District.
    June 30, 1976.
    P. Michael Patterson, Gainesville, for appellant.
    David H. Levin, Levin, Warfield, Mid-dlebrooks, Graff, Mabie, Rosembloum & Magie, Pensacola, for appellee.
   BOYER, Chief Judge.

This appeal emanates from a final judgment in a dissolution of marriage proceeding by which custody of the parties’ three-year-old minor child was awarded to its father, appellee here. In the final judgment, the able and experienced trial judge cited two cases from this court, Dinkel v. Dinkel, Fla.App. 1st 1974, 305 So.2d 90 and Young v. Young, Fla.App. 1st 1974, 305 So.2d 92, stating: “The language in Young is particularly applicable.”

Appellant first urges that quashal of our Dinkel decision by the Supreme Court of Florida (Dinkel v. Dinkel, Sup.Ct. Fla.1975, 322 So.2d 22) necessitates a remand of this case for reconsideration by the trial judge in light of the Supreme Court’s opinion in Dinkel, citing as authority Dean v. Deas, Sup.Ct.Fla.1959, 116 So. 2d 23. Our examination of the latter case reveals that although it is authority for remand when the rule of law relied upon by the trial court is subsequently reversed, it does not necessitate such a result when the conclusion in the final judgment of the trial court being reviewed is consistent with the principles announced by the Supreme Court in its opinion by which the case cited by the trial court is reversed. The case sub judice is a perfect example:

In the final judgment here appealed the trial judge recited: “The Court finds that the respondent-wife is not a fit and proper person to have the custody of the minor child.” The subsequent provision in the final judgment awarding custody of the child to its father, appellee, necessarily implies that the trial judge not only found appellant not to be a fit and proper person to have custody of her minor child but also that it was for the best interest of the child for custody to be vested in appellee.

In the Supreme Court’s Dinkel opinion that court justified its jurisdiction upon the stated basis that this Court’s opinion conflicted “ * * * with the myriad cases setting forth the rule that in the absence of a clear showing of abuse of discretion, the decision of the trial judge in a child custody case will not be reversed.” It further said:

“In any child custody proceeding, the welfare of the child is the prime consideration. * * * ”
“ * * * Whether the adultery has a direct bearing on the welfare of the child is a question for the trier of fact. * * * ”
ifc ‡ ‡ i}c
“Where the trier of fact reaches the conclusion that the adulterous conduct adversely affects the child, the scales are tipped against the award of custody to the adulterous spouse. * * * ”
* * * * * *
“It is the function of the trial judge in a child custody proceeding to determine what is in the best interests of the child. An appellate court should not reverse the trial judge’s findings absent a showing of abuse of discretion. * * * ”

No abuse of discretion has been shown. Neither we nor the Supreme Court are legally authorized to substitute our opinion for that of the trial judge.

AFFIRMED.

The appellee, husband, has timely moved for an award of attorney’s fees incident to this appeal pursuant to Rule 3.16(e), FAR. That motion is not frivolous but it is denied.

RAWLS, J., and WARREN, LAMAR, Associate Judge, concur.


text:
    SYMON-RYALS GROUP, INC., a Florida Corporation, et al., Appellants, v. CITIZENS AND SOUTHERN MORTGAGE COMPANY of Florida, a Florida Corporation, Appellee.
    No. BB-399.
    District Court of Appeal of Florida, First District.
    June 25, 1976.
    P. Kevin Davey, of Douglass & Powell, Tallahassee, for appellants.
    Frederick M. Bryant, of Rhodes, Stephens & Bryant, S. Gunter Toney, Jesse F. Warren, Jr., Tallahassee, Mr. and Mrs. Kenneth E. Hair, Mark Saunders, for ap-pellee.
   BOYER, Chief Judge.

Is a final judgment of foreclosure in a mortgage foreclosure action a final decision or is it interlocutory ?

Appellee, as plaintiff in the trial court commenced a foreclosure action against appellants and others. An order was entered on March 8, 1976, entitled “Order Granting Motion for Summary Judgment” which order concluded as follows:

“ORDERED AND ADJUDGED that the motions for summary judgment filed in the captioned causes by the plaintiff be and the same are hereby granted, and upon proof of the sums due on the respective obligations final judgment will be accordingly entered.”

On March 23, 1976, a final judgment of foreclosure was entered by which the amount owed to the mortgagee was determined and in default of the payment of such sum the Clerk of the Circuit Court was directed to sell the property encumbered by the mortgage and described in said final judgment on April 7, 1976 “to the highest bidder for cash at public sale”.

Appellants filed notice of interlocutory appeal designating the order, judgment or decree of which review was sought to have been entered March 23, 1976 and reciting “The nature of the orders appealed from are Final Judgments of Foreclosure.”

Appellee has filed a motion to dismiss, the only ground of which meriting our consideration is that appellants are incorrectly seeking interlocutory review pursuant to Rule 4.2, FAR, of a final judgment which is reviewable only as a final decision pursuant to Rule 3.2, FAR, et seq.

We have been cited to no decision squarely addressing this issue and independent research has failed to reveal any. In Volume 59, C.J.S. Mortgages § 685, is found a brief general discussion which though not directly on point sheds some light on the subject:

“While a final judgment or decree is essential to a valid foreclosure proceeding, a foreclosure judgment or decree is generally final in part and interlocutory in part. * * *
“A judgment or decree of foreclosure, directing a sale of the mortgaged property, is generally regarded as a final judgment or decree, and its finality is not affected by the failure of the judgment to dispose of other asserted liens. It is final in so far as it determines the rights of the parties, the amounts to be paid, and as to the award of a personal judgment and the granting of a lien; and, when the judgment or decree grants a time to redeem, the day of the expiration of such time is the day of final judgment. It is executory and interlocutory as to the order directing the manner of sale and the proper distribution of the proceeds thereof.” (Footnotes omitted)

In Florida Fertilizer Mfg. Co. v. Hodge, Sup.Ct.Fla., 1912, 64 Fla. 275, 60 So. 127, cited in a footnote to the above quoted, the Supreme Court of Florida, discussing the finality of a final judgment of foreclosure, but without considering applicability thereof, said:

“In judicial proceedings to foreclose a mortgage, the decree adjudging the equities and directing a sale of the property on default of payment is the final decree in the cause. Orders confirming sales made under a foreclosure decree are merely steps taken in the enforcement of the final decree. While a final decree may not be vacated after it becomes absolute under the rule * * * an order confirming a sale made under a foreclosure decree may be vacated upon appropriate proceedings duly taken. * * ” (60 So. 127 at page 127)

The last quoted language was quoted with approval by our Supreme Court in Life & Casualty Ins. Co. of Tennessee v. Tumlin, Sup.Ct.Fla.1939, 138 Fla. 447, 189 So. 406.

Without discussing the specific issue here under consideration our sister court of the third district in South Dade Farms, Inc. v. Atlantic National Bank, Fla.App.3d 1969, 222 So.2d 275, a case remarkably similar to the case sub judice, appears to have treated the summary final judgment of foreclosure there appealed as a final decision appealable as such.

In our view, a final judgment of foreclosure in a mortgage foreclosure proceeding is final as between the mortgagor and mortgagee and should be reviewable as such.

Article V, Section II of the Constitution of the State of Florida requires that no cause be dismissed because an improper remedy has been sought. Accordingly, while holding that the final judgment of foreclosure dated March 23, 1976, designated in the notice of appeal as the judgment sought here to be reviewed, is a final decision and therefore not reviewable pursuant to Rule 4.2, FAR, we, in accordance with the constitutional mandate, treat this appeal as an appeal from a final decision and therefore deny appellee’s motion to dismiss.

Assignments of error have been filed as have briefs but inasmuch as appellants have sought to avail themselves of the provisions of Rule 4.2, FAR, no record on appeal has been prepared nor filed. The parties are allowed 30 days from date hereof within which to comply with the rules applicable to appeals from final decisions and within which to file any amended or supplemental brief as they may desire.

RAWLS and McCORD, JJ., concur.


author: SCHEB, Judge.

text:
    Frederick John ROTI, Appellant, v. STATE of Florida, Appellee.
    No. 75-965.
    District Court of Appeal of Florida, Second District.
    June 23, 1976.
    William L. Camper, Huey & Camper, Tallahassee, Theodore M. Becker, J. Samuel Tenenbaum, Becker & Tenenbaum, and Edward M. Genson, Chicago, Ill., and Joseph P. Garlovsky, Daytona Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Judge.

Appellant was tried by jury and found guilty of receiving or aiding in the concealment of stolen property contrary to Fla. Stat. § 811.16. He was sentenced to five years in prison with credit for time served. We hold the trial court erred (1) in permitting the state’s detective to testify as to prior consistent statements made by one of its chief witnesses who testified at trial; and (2) by allowing the state, on cross-examination of one of the appellant’s witnesses, to attack the appellant’s character when he had not placed his good' character in issue. We reverse.

Appellant Roti purchased a diamond ring from David Blackmer. At trial, Blackmer admitted he had stolen the ring from Jesse Lynn Gilmore. Roti admitted buying it, but he denied knowledge that the ring was stolen. Thus, the primary issue at trial was whether Roti had knowledge that the ring was stolen.

Blackmer testified that his friend, Andy Douglas, suggested they go see a local bar owner named Fred Roti, since Roti might be interested in purchasing the ring. Black-mer testified that he and Douglas went to see Roti at his bar late on a Friday night. According to Blackmer, Roti told them to come back on the following Monday morning. When they returned on Monday, they had a 10 to 15 minute conversation with Roti. Blackmer testified that at that time he told Roti the ring was stolen. Roti testified he did not recall the original encounter, but he did recall the Monday morning meeting with Blackmer and Douglas, at which time he asked them if the ring was “hot.” He claimed he was told at that time by Blackmer and Douglas that it was not hot, but rather it was a family heirloom. A defense witness who was in Roti’s bar at that time corroborated Roti’s testimony on this point. After that meeting, Roti retained the ring to have it appraised, and suggested to Blackmer and Douglas that they return that afternoon after he had an opportunity to secure the desired appraisal. Blackmer testified that he reiterated to Roti at that final meeting on that afternoon that the ring was stolen. Roti, however, testified he again asked if the ring was “hot” and Blackmer and Douglas assured him it was not, whereupon Roti paid' them $400 cash for the ring.

Over Roti’s objection, the trial court allowed Detective Louis C. Hoss of the Manatee County Sheriff’s Office to testify as to prior statements made to him by Black-mer. Detective Hoss was permitted to paraphrase what Blackmer had told him concerning Roti’s implication in purchasing the ring. Additionally, a written statement taken from Blackmer while he was in Hoss’ custody was admitted. While these prior statements varied somewhat from Black-mer’s in-court testimony, they were consistent with and corroborated and strengthened Blackmer’s testimony that Roti, at the time he purchased the ring, had direct knowledge that it was stolen.

In Van Gallon v. State, Fla.1951, 50 So. 2d 882, the trial court admitted evidence of a written statement made by the state’s principal witness who was present and testifying. There, the Supreme Court in reversing a conviction and ordering a new trial said:

“We recognize the rule that a witness’s testimony may not be corroborated by his own prior consistent statement and the exception that such a statement may become relevant if an attempt is made to show a recent fabrication.”

No contention was advanced that Hoss’ testimony was made necessary by any recent fabrication by Blackmer. There was, however, a direct conflict in testimony as to Roti’s “knowledge.” And, Blackmer’s testimony was crucial to establish that knowledge on the part of Roti. Blackmer was an admitted thief. Further, at time of trial, he was under sentence for a breaking and entering unrelated to this case. His credibility was clearly in question. By permitting Hoss to testify as to Blackmer’s prior consistent statements, the state bolstered Blackmer’s testimony and cloaked it with a vicarious integrity which undoubtedly enhanced its probative value.

Further, we think the court erred when it permitted the prosecutor, in cross-examining Danny Winstead, Roti’s bartender who appeared as a defense witness, to ask Winstead, “Have you ever heard that Freddie Roti buys stolen things?” The defense objected; however, Winstead was permitted to testify, and replied affirmatively, stating that he had heard a lot of things about Roti. During the further dialogue between the prosecutor and Winstead, the witness said he had “frequently” heard that Roti bought stolen things. Obviously, Winstead’s testimony on cross was elicited by the state in an attempt to impute knowledge on the part of Roti that the ring he purchased was a stolen one. Moreover, in cross-examination of Roti, the prosecutor reiterated that part of Winstead’s testimony. The prosecutor, in final argument, further emphasized Roti’s reputation for buying stolen property by reminding the jury that Roti’s bartender had testified that he had heard that Roti bought stolen goods. Thus, a serious attempt was made to establish Roti’s guilt in the minds of the jury by an unwarranted attack on his character and by subtly establishing in the minds of the jurors that Roti may have committed offenses independent of the crime charged' in this case, all based on hearsay evidence elicited from a defense witness. It is fundamental that unless the defendant has first chosen to place his good character in issue, the state is not permitted to attack his character. Jordan v. State, 1932, 107 Fla. 333, 144 So. 669; Andrews v. State, Fla.App.lst 1965, 172 So.2d 505.

The appellant’s right to a fair trial was violated and prejudicially so because the trial court permitted the state to bolster the testimony of one of its chief witnesses by introduction of prior consistent statements made by that witness, and further, by permitting a defense witness to testify as to the character of the appellant especially as related to his reputation for committing the type of crime charged against him. In view of our conclusion, it is unnecessary to comment on the other thirteen points briefed and argued by appellant as grounds for reversal of his conviction.

Accordingly, the judgment and sentence are reversed' and a new trial ordered.

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

      . Renumbered as 812.031 and amended by Laws 1974, c. 74-383, § 41, eff. Oct. 1, 1975.


text:
    INDUSTRIAL FIRE AND CASUALTY INSURANCE COMPANY, Appellant, v. William COLLIER, Appellee.
    No. 75-1153.
    District Court of Appeal of Florida, Third District.
    June 15, 1976.
    Rehearing Denied July 9, 1976.

      Hawksworth & Schmick and Richard L. Wassenberg, Miami, for appellant.
    George P. Telepas, Miami, and John M. Parker, Coral Gables, for appellee.
    Before BARKDULL, C. J., HENDRY, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Appellant, defendant below, appeals a final judgment entered by the trial court, after a nonjury trial on the issue of damages, subsequent to the granting of appel-lee’s, plaintiff below, motion for summary judgment on the issue of liability.

Appellee owned two automobiles, a 1967 Volkswagen and a 1974 Chevrolet. Only one of the cars, the Chevrolet, was insured under an automobile insurance policy issued by appellant to appellee.

On October 3, 1974, appellee was driving the Volkswagen home from work and one of the tires became flat. During the time he was changing the tire, his car was struck by another automobile which caused the Volkswagen to strike and injure him. At the time appellee was injured, he was standing outside the Volkswagen, with it jacked up, removing the spare tire from it. Subsequently, appellee filed a complaint seeking personal injury protection benefits under the insurance policy on the Chevrolet.

Thereafter, appellant, upon learning of the circumstances surrounding the accident, denied coverage under its policy with ap-pellee. In denying coverage, appellant relied upon a section of the policy dealing with exclusions which stated that the policy did not provide personal injury protection benefits to the named insured, i. e., appel-lee, while occupying a motor vehicle of which he was the owner and which was not the insured motor vehicle under the policy. This exclusion is authorized by § 627.736 (2), Fla.Stat., 18A F.S.A.

After the parties completed discovery, both appellant and appellee moved for summary judgment on the issue of liability under the policy. After argument, the trial court granted appellee’s motion. Subsequently, the issue of damages was tried nonjury and the trial court entered a final judgment, pursuant to its order of summary judgment, awarding $3,000 in benefits to appellee. From this final judgment, appellant appeals.

The basic point raised on appeal is whether or not the trial court properly entered summary judgment in favor of ap-pellee by finding that, even in light of the exclusion in the policy, appellant was liable to appellee under the terms of the policy. The policy exclusion provision in regard to personal injury protection benefits provided that the policy did not apply to appellee while occupying a motor vehicle of which he was the owner and which was not an insured motor vehicle under the policy. Further, the policy defined the word “occupying” to mean “in or upon, or entering into, or alighting from a motor vehicle.” Thus, whether the trial court properly granted appellee’s motion for summary judgment, based on the facts of this case, depends upon whether or not appellee was “occupying” or not “occupying” the Volkswagen at the time of the accident.

We are unable to locate any Florida cases considering the definition of “occupying” a motor vehicle as raised in the context of this case. However, after a reading of the Automobile Reparations Reform Act, § 627730, et seq., Fla.Stat., 18A F.S.A., in light of its history, and after considering the several cases from other states defining the word “occupying” as used in automobile insurance policies, we are of the opinion that, based on the facts of this case, appellee was “occupying” the Volkswagen at the time he was injured. Therefore, ap-pellee fell within the provision of the policy excluding him from coverage. See, e. g., Collins v. Motorists Mutual Insurance Company, 36 Mich.App. 424, 194 N.W.2d 148 (1971); Hart v. Traders and General Insurance Company, 487 S.W.2d 415 (Civ. App.Texas 1972); Lokos v. New Amsterdam Casualty Company, 197 Mise. 40, 93 N. Y.S. 825 (1949); Lumbermen’s Mutual Casualty Company v. Norris, 15 Ill.App.3d 95, 303 N.E.2d 505 (1973); Motor Vehicle Accident Indemnification Corporation v. Oppedisano, 41 Misc.2d 1029, 246 N.Y.S.2d 879 (1964); United Farm Bureau Mutual Insurance Company v. Pierce, 152 Ind. App. 387, 283 N.E.2d 788 (1972); and Wolf v. American Casualty Company of Reading, Pennsylvania, 2 Ill.App.2d 124, 118 N.E. 2d 777 (1954). Thus, the trial court erred in granting appellee’s motion for summary judgment, because, based upon the policy exclusion, it should have granted appellant’s motion for summary judgment finding that no liability existed under the policy.

We have considered the record, all points in the briefs, and arguments of counsel, and have concluded that reversible error has been demonstrated. Therefore, for the reasons stated and upon the authorities cited, the final judgment is reversed with directions to the trial court to enter summary judgment in favor of appellant on the issue of liability.

Reversed and remanded with directions.