author: ADKINS, Acting Chief Justice.

text:
    Dorthy BOULD and Edward Simonson, Jr., as Administrator of the Estates of Edward and Alice Simonson, both Deceased, Petitioners, v. Mitchell C. TOUCHETTE, U. S. Concrete Pipe Company, a Florida Corporation, and Hartford Accident & Indemnity Company, Respondents.
    No. 48935.
    Supreme Court of Florida.
    July 28, 1977.
    Rehearings Denied Sept. 13, 1977.

      Edward A. Perse of Horton, Perse & Ginsberg and Brumer, Moss, Cohen & Rodgers, Miami, for petitioners.
    Michael B. Davis of Walton, Lantaff, Schroeder & Carson, West Palm Beach, for Mitchell C. Touchette, Richard A. Sherman of Wicker, Smith, Blomzvist, Davant, McMath, Tautan & O’Hara, Miami, for U. S. Concrete Pipe Company.
    Sam Daniels, Miami, for Hartford Accident & Indemnity Co.
   ADKINS, Acting Chief Justice.

By petition for certiorari we have for review a decision of the District Court of Appeal, Fourth District (Touchette v. Bould, 324 So.2d 707) which allegedly conflicts with decisions of this Court and the District Court of Appeal on the same point of law. The District Court held that punitive damages must bear some reasonable, albeit imprecise, relation to the actual, or compensatory, damages, citing International Union of Operating Engineers, Local No. 675 v. Lassitter, 325 So.2d 408 (Fla.4th DCA 1975). We accepted jurisdiction of Lassitter as being in conflict with Levine v. Knowles, 197 So.2d 329 (Fla.3d DCA 1967), and Hutchinson v. Lott, 110 So.2d 442 (Fla.1st DCA 1959). We have jurisdiction. Article V, Section 3(b)(3), Florida Constitution.

Having taken jurisdiction because of a conflict as to one question of law, U. S. Concrete Pipe Company says we should consider no other questions involved in the appeal before the District Court, as these questions were not raised in Bould’s petition for certiorari seeking jurisdiction. This contention is without merit. If conflict appears and this Court acquires jurisdiction, we then proceed to consider the entire cause on the merits. As stated in this Court in Tyus v. Apalachicola Northern Railroad Company, 130 So.2d 580 (Fla.1961):

“Since we have concluded that, on the face of the subject opinion of the District Court, it appears there can be no doubt about the question of direct conflict with many of our prior decisions, as well as the decision of the District Court of Appeal, . . it becomes our duty and responsibility to consider the case on its merits and decide the points passed upon by the District Court which were raised by appropriate assignments of error as completely as though such case had come originally to this court on appeal.” At 585.

See also Brown v. State, 206 So.2d 377 (Fla.1968), and D’Agostino v. State, 310 So.2d 12 (Fla.1975).

Petitioners were plaintiffs in the trial court in consolidated wrongful death and survivorship actions prosecuted under the Florida Wrongful Death Act (Sections 768.-01-768.03, Florida Statutes (1970), and the former survivorship statute, Section 46.021, Florida Statutes (1970)). The accident causing the death of Edward Simonson and Alice Simonson, his wife, occurred on January 15, 1971. So the present wrongful death statute is inapplicable here. McKibben v. Mallory, 293 So.2d 48 (Fla.1974). The respondents were defendants in the trial court.

For clarity, the petitioners Dorothy Bould and Edward Simonson, Jr., will be referred to as “Bould” and “Simonson,” U. S. Concrete Pipe Company as “Concrete Pipe,” Mitchell C. Touchette as “Touchette,” and Hartford Accident and Indemnity Company as “Hartford.”

Sixty-six year old Edward Simonson and his sixty-four year old wife, Alice, were returning to Buffalo, New York, in a 1967 Ford Sedan, having concluded a retirement vacation in South Florida. Shortly before noon, on a clear day, they were forced to bring their vehicle to a stop at the end of a long line of traffic, as the road was under construction and traffic was being regulated by a flagman. The road was straight, flat and level for more than a mile before the actual construction site.

A pickup truck stopped back of the vehicle of the Simonsons. Shortly thereafter a large flat-bed semi-trailer truck bore down upon the stopped vehicles. The occupant of the pickup truck attempted to signal but, realizing that the semi-trailer truck would not be able to stop, attempted to turn his wheels. Without reducing speed, sounding a warning, or applying brakes, the operator of the semi-trailer truck struck the rear of the pickup truck, tossing it aside, and, continuing over the Simonson’s vehicle, flattened it. The semi-trailer truck did not come to a stop until it had run through two other vehicles and collided with another large truck. The semi-trailer truck was being operated by Touchette in the course and scope of his employment by Concrete Pipe.

The cause of action for wrongful death accrued to Bould as the surviving natural mother of Alice Simonson and dependent upon both decedents for her support. Bould, the wrongful death plaintiff, received $100,000 compensatory damages against Touchette and Concrete Pipe.

Simonson, an adult son of decedents, qualified as personal representative of each estate and was plaintiff in the survivorship action, receiving an award of $65,000 compensatory damages against Concrete Pipe and Touchette, $800,000 punitive damages against Concrete Pipe, and $5,000 punitive damages against Touchette.

A motion for new trial was denied by the trial court. Upon appeal the District Court held that the verdict and judgment in each case was grossly excessive and contrary to the law and evidence. The District Court ordered a new trial “on all issues.”

The principles of law to be applied in considering excessiveness of damages are stated in Talcott v. Holl, 224 So.2d 420 (Fla.3d DCA 1969), as follows:

“A party who assails the amount of a verdict as being excessive, has the burden of showing it is unsupported by the evidence, or that the jury was influenced by passion or prejudice. Breeding’s Dania Drug Co. v. Runyon, 147 Fla. 123, 2 So.2d 376, 377; Florida Power & Light Co. v. Robinson, Fla.1953, 68 So.2d 406, 415. A verdict which has been approved by the trial court as to amount should not be disturbed on appeal if it has a reasonable relation to the damages proven, in the absence of a showing that it imposes a hardship out of proportion to the injury suffered. Margaret Ann Super Markets, Inc. v. Scholl, 159 Fla. 748, 34 So.2d 238; Florida Power & Light Co. v. Robinson, supra.
“In Sproule v. Nelson, Fla.1955, 81 So.2d 478, 481, 76 A.L.R.2d 1066, the Supreme Court, speaking through the late Justice Glenn Terrell, said:
“ ‘There is an element of speculation in most personal injury verdicts, but this is a matter for jury discretion. The court may review their discretion but not the amount awarded unless shown to be clearly arbitrary. * * *’
“The determination of the amount of such damages is peculiarly within the province of the jury. Higbee v. Dorigo, Fla.1953, 66 So.2d 684; Merwin v. Rellenas, Fla.1955, 78 So.2d 865; Sproule v. Nelson, supra.
“In Upton v. Hutchison, Fla.1950, 46 So.2d 20, 21, the Supreme Court said: ‘It is well settled that the verdict of a jury will not be disturbed by this court on appeal where there is ample substantial evidence to support such verdict. Nor will this court substitute its judgment for that of the jury as to the amount of damages to which the plaintiff is entitled, unless the amount found is so excessive as to indicate that the jury was influenced by passion, prejudice, corruption, or other improper motive. Loftin v. Dagley, 152 Fla. 831,13 So.2d 311; Florida Motor Lines Corp. v. Shontz, 159 Fla. 518, 32 So.2d 248.’ ” At 422.

In determining whether a verdict is excessive, vague expressions by the courts about “conscience-shocking amounts” do not furnish the enlightenment that the public should expect from judges about how they arrive at their decisions. The problem of determining whether a verdict is excessive is not so subjective as to prevent the formulation of standards to be used in the exercise of the court’s power. Nor should judges have the unfettered latitude for decision that might be afforded by the imprecision of the rules that they themselves formulated.

Where recovery is sought for a personal tort, or where punitive damages are allowed, we cannot apply fixed rules to a given set of facts and say that a verdict is for more than would be allowable under a correct computation. In tort cases damages are to be measured by the jury’s discretion. The court should never declare a verdict excessive merely because it is above the amount which the court itself considers the jury should have allowed. The verdict should not be disturbed unless it is so inordinately large as obviously to exceed the maximum limit of a reasonable range within which the jury may properly operate. Lassitter v. International Union of Operating Engineers, 349 So.2d 622, opin. filed May 26, 1977, approving the reasoning in Gorsalitz v. Olin Mathieson Chemical Corp., 429 F.2d 1033 (5th Cir. 1970).

We first consider the award of $100,000 in the wrongful death ease. Bould was entitled to recover pecuniary loss of support as damages and was not entitled to recover for mental anxiety and suffering. The single element of damage was the pecuniary value of the loss of support suffered by Bould. This does not mean that the recovery is limited to a present value of anticipated support which must be measured to a mathematical certainty. The rule is discussed in Cudahy Packing Co. v. Ellis, 105 Fla. 186, 140 So. 918 (1932):

“The weight of authority supports the rule that more than ordinary discretion may be allowed the jury in assessing damages in actions for wrongful death. They are not limited to a consideration of the age and probable life expectancy of the dependents, neither are they limited to a consideration of the age, earning power, and probable life expectancy of the deceased. They may consider the probable increased needs of the dependents and the probabilities of the deceased contributing to such increased needs. They may also consider the degree or spirit in which the deceased responded to his obligation to contribute to the support of his dependents, the amount contributed in the past with probable future contributions, together with the likelihood of promotion, the relationship of those dependent on him, and increased income of the deceased. They may also consider the health, habits, morals, social adaptability, and possible other facts and circumstances, and then award damages that will reasonably compensate for the injury resulting from the wrongful death.
“Now as a lead or basis for the admea-surement of damages when guided by these considerations, courts in this country have generally approved a sum that would purchase an annuity equal to the value of the pecuniary aid which the dependents would have derived from the deceased; in other words, the present worth of such an amount as would accrue to the beneficiary based on his or her life expectancy.” At 919.

Bould was 87-years old when her daughter was killed and 90-years old at time of trial. She was unemployed and had been supported by the Simonsons since 1945, enjoying a close relationship. Bould was in excellent health and was totally ambulatory. During the period between the accident and the trial, she became confined to a wheelchair and her need for support was thereby increased.

As the result of the death of the Simon-sons, Bould was forced to move into a nursing home in Buffalo, New York, and at the time of trial had lost three years of support.

The jury was not legally bound to make a mathematically precise and minimal award which, apparently, was suggested by the District Court. The verdict of the jury was based upon criteria as set forth in Cudahy Packing Co. v. Ellis, supra, and was within and did not exceed the maximum limit of reasonable range within which the jury may properly operate. This is particularly true when we consider, as a matter of common knowledge, inflationary tendencies and steady increase in prices.

In recognizing the effect of inflation upon the amount of damages to be awarded, the court in Seaboard Coast Line R.R. Co. v. Garrison, 336 So.2d 423 (Fla.2d DCA 1976), said:

“[E]ven in the absence of any evidence whatsoever on this matter, we think it likely that juries will consider the impact of future inflation. Inflation has become a fact of life within the experience of everyone. It has continued to a greater or lesser extent throughout most of our lifetimes. Most people have found it necessary to reckon with this in their own financial planning for the future. Certainly injuries, which are drawn from citizens from every walk of life, are aware of the effects of inflation. Quite likely they will be prone to consider it in their attempts to fully compensate a plaintiff.” At 424.

We next consider the award of $65,000 compensatory damages in the survivorship action. As pointed out by the District Court of Appeal, there could be no recovery under the survival statute by the personal representative for loss of the decedent’s prospective estate.

“Nonetheless, this element of damage was plead by the plaintiff and tried without objection by defendants (and hence by implied consent), and the jury was instructed thereon with the acquiescence of the defendants. Appellee contends that if it was error for the jury to be instructed on loss of prospective estate as an element of plaintiff’s damages, this was invited error which cannot be remedied on appeal.” 324 So.2d at 711.

However, it is contended that this was fundamental error involving lack of subject matter jurisdiction, which cannot be waived and can be raised by the parties at any time. The District Court of Appeal did not pass upon this question.

A party cannot complain on appeal of the adoption of a rule of damages in accordance with the theory upon which he tried the cause, although it was the wrong rule. See 22 Am.Jur.2d Damages § 346, at 450; 5 Am.Jur.2d Appeal and Error § 640, at 95; New York Lake Erie and Western Railroad Co. v. Estill, 147 U.S. 591,13 S.Ct. 444, 37 L.Ed. 292 (1892); City of Ottumwa v. Nicholson, 161 Iowa 473, 143 N.W. 439 (1913); Gibson Properties Co. v. City of Oakland, 12 Cal.2d 291, 83 P.2d 942 (1938); Wolfsen v. Hathaway, 32 Cal.2d 632, 198 P.2d 1 (1948); Wharam v. Investment Underwriters, 58 Cal.App.2d 346, 136 P.2d 363 (1943); Stegmeier v. Gappert, 190 N.W.2d 36 (N.D.1971); Okmulge County, etc. v. Robnett, 368 P.2d 502 (Okl.1962).

To hold that the inclusion of this element of damages m the instructions to the jury was fundamental error would mean that every instruction on damages would be subject to attack on appeal without the necessity of making any objection during the trial of the case. We hold that this was not a fundamental error, but was an invited error which could not be raised for the first time upon appellate review.

The jury award of $65,000 was the total compensatory damages to the survival action plaintiff acting as the administrator of both estates. For the reasons discussed in considering the amount of the award in the wrongful death case, we hold that the verdict was not so inordinately large as obviously to exceed the maximum limit of a reasonable range within which the jury may properly operate. Lassitter v. International Union of Operating Engineers, supra.

In the survivorship action the jury awarded $800,000 punitive damages against Concrete Pipe and $5,000 against Touchette. Having concluded that the judgment for compensatory damages must be reversed, the District Court of Appeal held that the award of punitive damages should also be reversed. The District Court of Appeal relied upon the rule that punitive damages must bear some reasonable, albeit imprecise, relation to the actual or compensatory damages. We have disavowed this rule. Lassitter v. International Union of Operating Engineers, supra.

Concrete Pipe contends the punitive damage award was excessive. Guidelines for the assessment of punitive damages are contained in Joab, Inc. v. Thrall, 245 So.2d 291 (Fla.3d DCA 1971).

“The allowance of punitive damages is discretionary with a jury and the fixing of the amount is peculiarly within its province. Florida East Coast Ry. Co. v. McRoberts, 111 Fla. 278, 149 So. 631 (1933); and Florida East Coast Ry. Co. v. Morgan, Fla.App.1968, 213 So.2d 632.
“In awarding punitive damages the jury may properly punish each wrongdoer by exacting from his poeketbook a sum of money which, according to his financial ability, will hurt, but not bankrupt; and the verdict shall state separately the amount of punitive damages. Lehman v. Spencer Ladd’s, Inc., Fla.1966, 182 So.2d 402 .. ..” At 293.

See also Atlas Properties, Inc. v. Didich, 226 So.2d 684 (Fla.1969).

Concrete Pipe’s net worth at the time of trial was $13,145,000, so the punitive damage award amounted to 6.2 per cent of its total net worth. This award is not so gross as to raise the spector of bankruptcy, and is totally consistent with the guidelines established by the above authorities. See also, Sperry Rand Corp. v. A. T. O., Inc., 447 F.2d 1387 (4th Cir. 1971) (punitive damages $175,000, net worth $750,000, approved); Fuchs v. Kupper, 22 Wis.2d 107, 125 N.W.2d 360 (1963) (punitive damages 12V2 per cent net worth approved); Malco, Inc. v. Midwest Aluminum Sales, 14 Wis.2d 57, 109 N.W.2d 516 (1961) (punitive damages 7V2 per cent net worth approved).

Touchette says punitive damages were improperly awarded against him because there was no evidence of his net worth.

In Rinaldi v. Aaron, 314 So.2d 762 (Fla. 1975), we said:

“[E]vidence of financial worth is admissible and may be considered by the jury in its determination of the amount to be awarded as punitive damages, but evidence of worth is not a requisite to such award. If defendant’s financial worth is meager, it would be to his advantage to introduce such evidence in order to mitigate the damage award.” At 765.

In the absence of any evidence as to the net worth of Touchette, we cannot say that the award was excessive.

By post-judgment motion the trial court entered an order granting judgment in favor of Concrete Pipe against Hartford to the maximum limits of insurance coverage of $500,000, and by a separate order taxed the plaintiff costs. These orders were the subject of separate interlocutory appeals. Because of the disposition of the case, the District Court of Appeal did not pass upon this question.

For the above reasons the decision of the District Court of Appeal is quashed and the cause is remanded with instructions to further remand same to the trial court for reinstatement of the judgments.

The District Court of Appeal is further directed to entertain the interlocutory appeals from the post-judgment motions of the trial court.

It is so ordered.

BOYD, ENGLAND, SUNDBERG and KARL, JJ., concur.


source: Caselaw Access Project

author: SUNDBERG, Justice. OVERTON, Chief Justice,

license: Public Domain

text:
    Linda S. HELMAN, Petitioner, v. SEABOARD COAST LINE RAILROAD COMPANY and William A. Cagle, Respondents.
    No. 49570.
    Supreme Court of Florida.
    July 28, 1977.
    Rehearing Denied Sept. 15, 1977.

      Gordon V. Frederick, Sanford, and James O. Driscoll of Driscoll, Baugh, Langston, Layton & Kane, P. A., Orlando, for petitioner.
    William H. Davis and Frederick J. Ward of Giles, Hedrick & Robinson, Orlando, for respondents.
   SUNDBERG, Justice.

This cause is a petition for writ of certiorari to review a decision of the District Court of Appeal, Fourth District, reported at 330 So.2d 761. Because the District Court reweighed and reevaluated evidence considered by the trier of fact contrary to voluminous authority finding this practice outside the scope of appellate review, jurisdiction vests in this Court pursuant to Article V, Section 3(b)(3), Florida Constitution. See Westerman v. Shell’s City, Inc., 265 So.2d 43 (Fla.1972), and its progeny.

Petitioner was injured when the vehicle in which she was a passenger collided with a train owned and operated by respondents. The accident occurred at dusk when the roads were wet from precipitation. Prior to the calamity, the intersection was recognized as being perilous because one quadrant of the railroad crossing was enshrouded by trees and shrubbery. In the instant cause, the driver of the southbound pickup truck had his view of the train obstructed until he was within seventy-five (75) feet of the crossing.

Petitioner received a favorable jury verdict based upon her allegations that respondents were negligent (1) in failing to warn adequately of the oncoming train by emitting a warning whistle which was inaudible to someone in a moving vehicle, (2) in traveling at an excessive speed, and (3) in failing to maintain a proper lookout. The District Court reversed, finding there was no competent evidence to support a verdict in favor of the plaintiff. Specifically, it found the negative testimony regarding the sounding of the horn insufficient to support a finding of negligence. As to the allegation that the train was traveling at an excessive speed, the court found that the speed at which the train was traveling was not the proximate cause of the collision despite the fact that the freight was exceeding the speed limit prescribed by company rules. Similarly, the court found that where the brakeman testified that he was watching the crossing, saw the vehicle as soon as possible, yelled to the engineer, and applied the emergency brakes, failure to maintain a proper lookout could not have been the proximate cause of the accident.

We initiate this analysis by articulating three incontrovertible premises of law which are relevant to our disposition of this case. First, it is not the function of an appellate court to reevaluate the evidence and substitute its judgment for that of the jury. Herzog v. Herzog, Fla.Sup.Ct, 346 So.2d 56, filed March 10, 1977; Shaw v. Shaw, 334 So.2d 13 (Fla.1976); Ates v. Yellow Pine Land Co., 310 So.2d 772 (Fla. 1st DCA 1975); Littel v. Hunnicutt, 310 So.2d 45 (Fla. 1st DCA 1975); White v. White, 306 So.2d 608 (Fla. 1st DCA 1975); Rolland v. Thompson, 305 So.2d 239 (Fla. 1st DCA 1975); Cook v. Cook, 305 So.2d 12 (Fla. 1st DCA 1974); Imperial Lumber Co., Inc. v. James Knowles, Inc., 267 So.2d 53 (Fla. 2d DCA 1972); Becklin v. Travelers Indemnity Co., 263 So.2d 629 (Fla. 1st DCA 1972); City of Jacksonville v. Mack, 260 So.2d 542 (Fla. 1st DCA 1972); Clem v. Clem, 215 So.2d 789 (Fla. 4th DCA 1968). Second, if there is any competent evidence to support a verdict, that verdict must be sustained regardless of the District Court’s opinion as to its appropriateness. Herzog v. Herzog, supra; Greenwood v. Oates, 251 So.2d 665 (Fla. 1971); Trobaugh v. Trobaugh, 81 So.2d 629 (Fla.1955); Glass v. Parrish, 51 So.2d 717 (Fla.1951). Finally, the question of whether defendant’s negligence was the proximate cause of the injury is generally one for the jury unless reasonable men could not differ in their determination of that question. Moyer v. Martin Marietta Corp., 481 F.2d 585 (5th Cir. 1973); Brightwell v. Beem, 90 So.2d 320 (Fla.1956); Loftin v. Wilson, 67 So.2d 185 (Fla.1953); Western Union Telegraph Co. v. Taylor, 94 Fla. 841, 114 So. 529 (1927); Doll v. Robbins, 303 So.2d 338 (Fla. 3d DCA 1974); Kwoka v. Campbell, 296 So.2d 629 (Fla. 3d DCA 1974); Railway Express Agency, Inc. v. Garland, 269 So.2d 708 (Fla. 1st DCA 1972).

Application of these principles to the case sub judice mandates a reversal of the appellate court. On the face of its opinion, the District Court violated these rules. After conceding that respondents were negligent in exceeding their own speed regulation by five (5) miles per hour, the District Court concluded that such negligence was not the proximate cause of the injury. By so concluding, the court substituted its judgment for the judgment of the jury whose function it was to determine proximate cause by drawing inferences from the evidence before it. In addition, testimony reflected the fact that the Railroad was in violation of its own rules in failing to commence sounding its whistle when it was within 1,500 feet of the crossing. The engineer testified that the whistle was not emitted until it was 1,000 feet from the intersection. Again, the jury could find respondents negligent in failing to timely sound their warning signal and infer from all the evidence before it that such negligence was a proximate cause of the accident and petitioner’s resultant injuries. Because there was some competent evidence to support the jury verdict that respondents were negligent in traveling at an excessive speed and in failing to sound their whistle when required, the jury was concomitantly imbued with the function of deciding whether such negligence was a proximate cause of the injury. For the District Court’s decision to be sustained, there needed to be a complete absence of competent evidence to support the verdict, or, in the alternative, it was necessary that the evidence be of such a nature that reasonable men could only conclude that the behavior of the individual driving petitioner’s truck was the sole proximate cause of the accident. Neither is apparent from the record in the instant cause.

Accordingly, we are constrained to quash the decision of the District Court of Appeal, Fourth District, and remand to that court with instructions to reinstate the judgment of the trial court.

It is so ordered.

ADKINS, BOYD, HATCHETT and KARL, JJ., concur.

OVERTON, C. J., dissents with an opinion.

ENGLAND, J., dissents and concurs with OVERTON, C. J.

OVERTON, Chief Justice,

dissenting.

I dissent. There is no jurisdiction in this Court. The majority is, in effect, making the District Courts only intermediate way stations whenever the sufficiency of the evidence is in issue. The petition should be denied.

ENGLAND, J., concurs.

      . The court states:
      “ . . . Assuming, however, that on this evidence the jury could find that (1) the train was travelling twenty-five miles per hour when it entered the intersection, and (2) speed in excess of twenty miles per hour was negligence, it is abundantly clear that the excessive speed was not the proximate cause of the collision.” 330 So.2d at 765.


author: ENGLAND, Justice.

text:
    Patricia Elaine JOHNSON, Petitioner, v. STATE of Florida, Respondent.
    No. 51809.
    Supreme Court of Florida.
    Aug. 31, 1977.
    James P. Judkins of Davis & Judkins, Tallahassee, for petitioner.
    No appearance, for respondent.
   ENGLAND, Justice.

The First District Court of Appeal has certified its decision in this case for consideration of the same question which was posed in Earnest v. State, 342 So.2d 1024 (Fla. 1st DCA 1977), that is, whether a three year minimum jail sentence for possession of a firearm during the commission of certain crimes extends to aiders and abetters who are principals in the first degree of those crimes. We answered this question in the negative on review of the Earnest decision. Earnest v. State, Fla., Case No. 51,491, opinion filed August 31, 1977.

Accordingly, petitioner’s minimum mandatory sentence is vacated and the case is remanded to the district court with instructions to remand to the trial judge for appropriate sentencing in accordance with this decision.

It is so ordered.

OVERTON, C. J., SUNDBERG and HATCHETT, JJ., concur.

KARL, J., dissents.

      . Johnson v. State, 346 So.2d 651 (Fla. 1st DCA 1977).


author: ANSTEAD, Judge.

text:
    Leo JENKINS, Appellant, v. STATE of Florida, Appellee.
    No. 76-1630.
    District Court of Appeal of Florida, Fourth District.
    Aug. 2, 1977.
    Richard L. Jorandby, Public Defender, Jerry L. Schwarz, Asst. Public Defender and Frank B. Kessler, Chief, Appellate Division, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, for appellee.
   ANSTEAD, Judge.

The appellant, Leo Jenkins, appeals his conviction of aggravated assault and possession of a pistol without a license, claiming error in the trial court’s exclusion of evidence as to his previous altercations with the alleged victim of the assault. We reverse.

Jenkins was charged with having assaulted Joseph Robinson on March 18, 1976. In defense Jenkins claimed he acted solely to defend himself from an assault by Robinson. Both on cross-examination of Robinson and in his own testimony, Jenkins attempted to present evidence that he was assaulted and robbed by Robinson just two days before, on March 16, 1976. Jenkins also proffered the testimony of a police officer who saw the injuries sustained by Jenkins on March 16. The trial court refused to admit any of this testimony and ruled that evidence of any relations between Jenkins and Robinson prior to March 18 was not admissible.

We believe the evidence of the previous recent assault by Robinson should have been admitted, for two reasons. Jenkins took the position that Robinson assaulted him on March 18 and to bolster the credibility of that position was entitled to show that Robinson had attacked him in the same fashion just two days before. And, Jenkins also maintained that Robinson was biased against him and gave false testimony against him. On cross-examination, Jenkins was entitled to try to establish Robinson’s bias by the recent assault.

The First District in dealing with a similar situation has held:

. . it is equally erroneous to exclude from evidence testimony concerning a recent violent assault made by a deceased upon the person of a defendant of such nature as might have resulted in death or serious bodily injury. This is particularly true when the evidence is conflicting upon the question as to who began the difficulty, and such prior assault tends to explain or give meaning to the words or actions of the deceased which occurred immediately prior to the killing, and tends to justify the defendant’s apprehension that he was in danger of death or bodily injury.

Several witnesses testified that Jenkins was the aggressor in the March 18 fight, but Jenkins testified to the contrary. This testimony is sufficient to create an issue. It may be that a jury will again find Jenkins’ testimony unbelievable, even with evidence of the previous assault. It may even be that the evidence of the previous assault will be construed as giving Jenkins a motive for later attacking Robinson and hence work against Jenkins. But these are all matters for a jury to decide, not this court.

Jenkins was also charged with carrying a concealed weapon. He claims error by the trial court in instructing the jury that manual possession of a pistol without a license was a lesser included offense. We agree. Manual possession of a firearm without a license is not a necessarily included lesser offense of carrying a concealed weapon. In addition, no allegation was made in the charging document of this offense and no proof was adduced at trial.

Accordingly, the judgment of conviction for aggravated assault is hereby reversed for a new trial; and the judgment of conviction for manual possession of a pistol without a license is hereby reversed with directions that the conviction be vacated.

DOWNEY, J., and DEAN, ROY E., Associate Judge, concur.

      . McDuffie v. State, 341 So.2d 840 (Fla. 2d DCA 1977).

      . Coker v. State, 212 So.2d 648 (Fla. 1st DCA 1968).


author: FOGLE, Judge. DOWNEY, Judge,

text:
    Leo JENKINS, Appellant, v. STATE of Florida, Appellee.
    No. 76-139.
    District Court of Appeal of Florida, Fourth District.
    Sept. 6, 1977.

      Richard L. Jorandby, Public Defender, Henry Prettyman and Frank Kessler, Asst. Public Defenders, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, for appellee.
   FOGLE, Judge.

The appellant, defendant below, was charged by information with possession of more than five grams of marijuana with intent to sell same. The information was filed on August 28,1974, and the defendant failed to appear for formal arraignment on September 23, 1974.

The appellant was re-arrested on January 23, 1975, and on January 27, 1975, he entered a plea of not guilty. On March 10, 1975, a motion to suppress the State’s physical evidence was filed and granted by the trial court. The State filed an interlocutory appeal to this Court from the Order granting the motion to suppress and this Court reversed the Order of the trial court, issuing its mandate on October 24, 1975.

At the time it filed the interlocutory appeal, the State sought, and was granted, an Order extending the time for speedy trial. The motion for same specifically requested a six month extension of the time and the Order granting same extended the time for six months, commencing on March 19,1975.

After this Court’s mandate issued, which was more than six months from the date of said Order, the defendant-appellant moved for discharge for failure to comply with the speedy trial rule. Appellant’s motion was denied and he thereafter entered a plea of nolo contendere, reserving his right to appeal the trial court’s denial of his motion for discharge and the cause is before us on appeal from that Order denying discharge.

The appellant cannot be denied his right to a speedy trial because of any “automatic” extension of time granted to the State or assumed by the State, simply because the State had an appeal pending. The State should have asked for an extension of time for a period equal to the time consumed by the appeal. State v. Cannon, 332 So.2d 127 (Fla. 4th DCA 1976); Mallín v. State, 307 So.2d 829 (Fla. 3d DCA 1975).

Therefore the cause is reversed and remanded to the trial court with directions to discharge the defendant.

ANSTEAD, J., concurs.

DOWNEY, J., concurs specially.

DOWNEY, Judge,

concurring specially:

This court has previously held that Section 924.071(2), Florida Statutes (1975), does not automatically toll the time set forth in Fla.R.Crim.P. 3.191, for trying a defendant. State v. Cannon, 332 So.2d 127 (Fla. 4th DCA 1976). Because I feel bound to follow the Cannon holding, I concur in the decision to reverse appellant’s judgment of conviction.

However, if the question of the effect of Section 924.071(2) were before us for the first time I would vote to affirm the judgment of conviction (and the underlying order denying appellant’s motion for discharge filed pursuant to Rule 3.191) on authority of the analysis of Section 924.071(2), contained in State v. Pearce, 336 So.2d 1274 (Fla. 1st DCA 1976).


author: KANEY, FRANK N., Associate Judge.

text:
    IMPERIAL POINT COLONNADES CONDOMINIUM, INC., Appellant, v. FREEDOM PROPERTIES INTERNATIONAL, INC., a Florida Corporation, Mary Magdalene Heugel, a single woman, and Kenneth Eugene Heugel, Appellees.
    No. 76-1467.
    District Court of Appeal of Florida, Fourth District.
    Aug. 9, 1977.
    Rehearing Denied Oct. 17, 1977.
    William K. Gordon of Berryhill, Avery, Schwenke, Williams & Scott, P.A., Fort Lauderdale, for appellant.
    Robert S. McConnaughey, Fort Lauder-dale, for appellees.
   KANEY, FRANK N., Associate Judge.

This is an appeal from a Summary Judgment denying Appellant, who was the Plaintiff below, all the relief it sought.

The appellant is a condominium association vested with the authority and responsibility for the administration of the condominium including the enforcement of the Declaration of Condominium.

Article XII, Section G of the Declaration of Condominium speaks to the conveyance of apartment units. This section required that an apartment owner obtain written approval from Appellant for the sale of the apartment unit. This was to be accomplished by notifying Appellant of the sale and its terms, submission of the prospective purchaser to an interview with Appellant, and paying an investigation or transfer fee for credit information. Section G(5) of Article XII assesses a sum equal to 1 per cent of the agreed purchase price which must be paid into a Contingency Reserve Fund, pri- or to the Appellant approving the sale of any apartment unit.

This Declaration of Condominium was recorded in the Broward County public records in 1965.

On September 6, 1974, the Appellees, Heugel, transferred their apartment in Imperial Point to the Appellee, Freedom Properties International. No effort was made by any of the Appellees to comply with Section G of Article XII of the Declaration of Condominium.

On October 1, 1974, some twenty-four days after the sale by Appellees, Florida Statute Section 711.08(2) became effective. This statute provided that no fee shall be charged in connection with a transfer or approval in excess of the expenditures reasonably required for credit report expenses and this charge could not exceed $50.00. Prior to this statute, there was no limitation on expenses or fees that could be charged.

It was not until March of 1975, that Appellant discovered the Appellees’ transfer of property. After failing to secure voluntary compliance with Article XII, Section G, Appellant filed suit seeking either compliance or voidanee of the transfer.

At the joint motion for Summary Judgment the trial court ordered Appellee to comply with the requirements of Subsection G except the payment of the 1 per cent fee to the Contingency Reserve Fund. The Circuit Court found that this was a transfer fee in excess of $50.00 and thus barred by F.S.A., Section 711.08(2). We disagree and reverse.

Because of our determination on other grounds, we do not address the question of whether this is a transfer fee or not.

The sale by the Heugels to Freedom Properties International took place and became effective twenty-four days before there was any law in Florida limiting transfer fees or other approval expenses. The fact that Appellees concealed the sale for some six months does not alter the fact that the 1 per cent assessment became due on September 6, 1974.

A statute is not operative as law until the date at which it takes effect. Neisel v. Moran, 80 Fla. 98, 85 So. 346 (Fla.1919), and it operates prospectively unless the intent that it operate retrospectively is clearly expressed. Springer v. Colburn, 162 So.2d 513 (Fla.1964).

There is no clear intent that F.S.A., Section 711.08(2) operates retrospectively and thus Section G(5), Article XII, of the Declaration of Condominium was a lawful and enforceable provision on September 6,1974.

There is another matter which needs to be addressed by this Court. Appellees did not favor this Court with a brief and of course did not participate in oral argument. Such conduct is a distinct disservice not only to this Court but also to the trial court which ruled in their favor. This is a practice which should be soundly condemned by the Bar.

This cause is reversed with instructions to enter an order requiring compliance with Section G(5), Article XII, of the Declaration of Condominium for voidanee of the transfer.

REVERSED, with directions.

MAGER, J., concurs.

DAUKSCH, J., concurs in conclusion only.


author: DOWNEY, Judge.

text:
    Eddie L. BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 76-942.
    District Court of Appeal of Florida, Fourth District.
    Aug. 12, 1977.
    Rehearing Denied Oct. 4, 1977.
    Richard L. Jorandby, Public Defender, and Frank B. Kessler, and James K. Green, Asst. Public Defenders, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Harry M. Hipler, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

We have for review in this case the question of the admissibility of a tape recorded conversation of appellant and a codefendant made without their knowledge while they were confined in a police car.

Appellant and a codefendant, Jody Stanley, Jr., were arrested on a charge of robbery and placed in the back seat of a police car. A tape recorder located on the front seat of the car was activated, and it recorded a conversation between appellant and his codefendant. During the period of the recorded conversation no one else was present in the police car.

When the court denied appellant’s motion to suppress the tape recorded conversation appellant plead nolo contendere reserving the right to appellate review of that ruling. Appellant poses three points on appeal, only two of which warrant discussion:

“II. WHETHER THE INTERCEPTION OF APPELLANT’S ORAL COMMUNICATIONS WITH HIS CO-DEFENDANT VIOLATED HIS PROTECTIONS AGAINST UNREASONABLE SEARCHES?
“HI. WHETHER THE INTERCEPTION OF APPELLANT’S ORAL COMMUNICATIONS WERE MADE IN VIOLATION OF HIS ‘MIRANDA RIGHTS’?”

Appellant's first contention is that interception of his oral communication with a codefendant constitutes an unlawful incursion into appellant’s Fourth Amendment rights. We disagree. It appears to be the general rule that a prisoner in jail has no reasonable expectation of privacy and that the custodians of such a detention center have the right to exercise constant surveillance of inmates, including eavesdropping on their conversations. See, e. g., Lanza v. New York, 370 U.S. 139, 82 S.Ct. 1218, 8 L.Ed.2d 384 (1962); United States v. Hearst, 412 F.Supp. 888 (N.D.Cal.1976); People v. Miller, 252 Cal.App.2d 877, 60 Cal.Rptr. 791 (1967). This rule has been held to include electronic surveillance while a person is under detention in a police building and not yet formally imprisoned. People v. Califano, 5 Cal.App.3d 476, 85 Cal.Rptr. 292 (1970).

The question at hand is whether the rule applies to arrested persons confined in a police vehicle; we think it does. Once a person is taken into custody by law enforcement authorities, his right to privacy has been effectively diminished, and he has no reasonable expectation that his conversations will be private.

In People v. Chandler, 262 Cal.App.2d 350, 68 Cal.Rptr. 645 (1968), on facte very similar to those in the present case, the court of appeal held that the expectation of a person to privacy while under valid arrest in a police car can be no greater than his expectation of privacy while confined in jail. The defendants in Chandler knew their conversations was being recorded while they were in the police car. However, the court held that the knowledge was of no consequence, since the defendants had no reasonable expectation of privacy while they were confined in a police car. Thus, we hold appellant’s constitutional right to privacy has not been offended. We note that the California statute prohibiting the recording of certain conversations provides that the recording of an oral communication is not prohibited if the parties thereto “ ‘may reasonably expect that the communication may be overheard or recorded.’ ” People v. Chandler, supra, 68 Cal.Rptr. at 648. Our statute, Chapter 934, Florida Statutes (1975), prohibits the recording of “any oral communication uttered by a person exhibiting an expectation that such conversation is not subject to interception under circumstances justifying such expectation . . . .” Section 934.02(2). Because we hold that a person in appellant’s circumstances at the time of the recording has no reasonable expectation of privacy, Chapter 934 gives appellant no protection.

Appellant’s second contention for reversal is that the interception of his oral communication constitutes a violation of his “Miranda rights”. The argument seems to be that since appellant had been deprived of his freedom in a significant way, his remarks contained on the tape recording constituted custodial statements prohibited by Miranda. We would answer this contention by simply adopting the reasoning of the California Court in People v. Califano, supra, in discussing a similar contention by the appellee therein:

“The fallacy in this argument is self-evident. The incriminating statements made in the course of this conversation were not responsive to any process of interrogation. As stated in People v. Fioritto, supra [68 Cal.2d 714,] at page 718, 68 Cal.Rptr. [817,] at page 819, 441 P.2d [625,] at page 627:
‘As [Miranda] makes plain, the procedural safeguards therein come into play only where “custodial interrogation” is involved, and by “custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” * * * ’
“In People v. Ireland, 70 Cal.2d 522, 75 Cal.Rptr. 188, 196, 450 P.2d 580, 588, it was stated that ‘even a defendant in custody might make statements admissible under Miranda if it were shown that such statements were the result of the defendant’s own initiative and did not arise in a context of custodial interrogation.’ 85 Cal.Rptr. at 297.

For the foregoing reasons we affirm the judgment and sentence appealed from.

AFFIRMED.

MAGER and LETTS, JJ., concur.


author: SCHEB, Judge.

text:
    Rafael LOPEZ, Appellant, v. STATE of Florida, Appellee.
    No. 77-179.
    District Court of Appeal of Florida, Second District.
    Aug. 31, 1977.
    Rehearing Denied Sept. 26, 1977.
    Thomas J. Hanlon, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Judge.

Rafael Lopez, also known as Pedro Lovai-na Duran, was convicted of aggravated battery and sentenced to fifteen years in prison, with credit for time served prior to sentencing. He appeals, contending the trial court erred in denying his right to elicit testimony from his co-defendant who invoked the Fifth Amendment and declined to testify. We find no reversible error; we affirm.

In October of 1975 appellant Lopez and Luis Libed were charged by the same information with aggravated battery for allegedly cutting Mahmoud Badran with a knife. The prosecution resulted from an incident which occurred in the parking lot of a restaurant in Hillsborough County. Charges against the two co-defendants were severed. Lopez was to be tried first with Libed scheduled to go on trial several days later.

At Lopez’ trial in December of 1975, the complaining witness, Badran, testified that Lopez and another man (presumably Libed) had started the trouble and had been the aggressors in the incident. After the state rested, the defense called Libed as its first witness. Libed’s attorney stepped forward and informed the court that his client would invoke his right not to testify on the grounds of self-incrimination and would refuse to answer any questions concerning the knifing incident. A conference involving Libed’s attorney, Lopez’ attorney, the state attorney, and the trial judge culminated in a ruling by the court that since Libed was charged under the same information for the same offense, he could not answer any questions that defense counsel might pose. Lopez’ counsel objected, contending there had not been a proper predicate for Libed to invoke the Fifth Amendment.

Lopez subsequently took the stand in his own defense and claimed that the complaining witness, Badran, was the aggressor, and that he was merely protecting himself. On appeal Lopez argues it was error for the trial court not to require Libed to testify, as Libed was the only person who could confirm the veracity of his testimony and the falsity of the allegations made by the complaining witness.

Appellant contends that the trial judge incorrectly allowed Libed’s counsel to be the judge of whether Libed should testify. Appellant argues that the trial court should have first inquired directly of Libed and then made his own independent determination of whether there was a basis for Libed to exercise his right to remain silent. Appellant points to this court’s opinion in Ta-layera v. State, 227 So.2d 493 (Fla.2d DCA 1969), quashed in part on other grounds, 248 So.2d 595 (Fla.1971), holding that a trial judge should grant a severance to a defendant to afford him the right to compulsory process against his codefendant. There Judge McNulty said:

A witness’s refusal to answer under the 5th amendment privilege will only be sustained where it appears from the questions and their implications, and the setting in which they are asked, that a responsive answer or explanation of the claim of privilege involves a disclosure dangerous to the witness, and will present a reasonable grounds for the witness to apprehend a real danger of criminal prosecution. These matters are questions of law for the trial court, upon a voir dire examination, to determine. 227 So.2d at 495-6 (footnotes omitted) (emphasis supplied).

We agree with appellant that ordinarily the trial judge initially must make a direct inquiry on voir dire to determine a witness’ claim of privilege. In the determination of this threshold question a witness who claims the privilege against self-incrimination has the burden of establishing his entitlement and this, of course, as pointed out in Talavera, supra, is a matter for the court to determine. Under the circumstances here, however, it would have been an idle exercise of judicial labor to indulge in such inquiry. The facts before the court, and patent from the four corners of the case at the critical posture involved, clearly support the court’s conclusion that Libed was entitled to the Fifth Amendment privilege against self-incrimination. It was not error to forego the voir dire examination which, under other circumstances, may ordinarily have been required.

The witness being entitled to the privilege, therefore, the true question in this case devolves whether, notwithstanding, the defendant herein has established his entitlement to the witness’ testimony anyhow, under the rationale of Talavera, supra. Upon a proper predicate, we said in that case, he was entitled to compel such testimony under appropriate safeguards devised within the discretion of the trial judge sufficient to insulate the witness from the incriminating effects of what he may be compelled to say.

Here, appellant has not demonstrated by the record before us that he did lay such a predicate for his entitlement to the privileged testimony; consequently, he has failed to make error clearly to appear. The course we pursued in Talavera, supra, in remanding so as to afford the defendant an opportunity to make such a showing was bottomed on fairness in that, having been without the guidance of precedent, the defendant did not know how to proceed. That situation does not exist here, however, since Talavera itself now exists as precedent.

Accordingly, the judgment and sentence appealed from should be, and they are hereby, affirmed.

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


author: McCORD, Chief Judge. BOYER, Judge,

text:
    Dorothy HOWE, Appellant, v. ESTATE of Howard F. HOWE, Deceased, Appellee.
    No. CC-206.
    District Court of Appeal of Florida, First District.
    Sept. 2, 1977.
    Rehearing Denied Oct. 14, 1977.

      Isham W. Adams, Daytona Beach, for appellant.
    Larry R. Stout of Becks & Becks, Dayto-na Beach, for appellee administrator ad li-tem.
    G. Steve Stanley, Deland, for appellee Ronald Howe.
    Douglas P. Lawless of Brennan, McAili-ley, Albury & Hayskar, Fort Pierce, for appellee children-heirs.
   McCORD, Chief Judge.

This is an appeal from final judgment entered upon a jury verdict denying the petition for dower of appellant Dorothy E. Howe, widow of Howard F. Howe, deceased. The issue in the court below was whether or not appellant had waived her right to dower by an antenuptial agreement entered into between her and her deceased husband. They were married after a courtship of approximately three months, and decedent died intestate six months later as the result of an accident. It was the third marriage for each party. Appellant had 20 to 22 years experience as a legal secretary and had worked for approximately four years, around 1963-67, for a member of the law firm of which the attorney who drafted the agreement is a member. The agreement recited that decedent owed real and personal property valued in excess of $500,-000 and stated that should the marriage be dissolved within two years from the date of the marriage ceremony, appellant would accept the sum of $20,000 in lieu of her rights in and to the decedent’s real and personal property including “dower, homestead and all other statutory rights and all other rights as widow or heir of Howard.” The agreement further provided that in any other event she would be entitled to all her rights with the exception that she agreed to accept at the time of the death of Howard, in lieu of any other rights she might have, a life estate in his property “provided only that the estate shall be invested in such manner as to produce a reasonable income.” The issue presented in the trial of the case was whether the phrase “should the marriage be dissolved within two years from the date of the marriage ceremony,” (which appellant contended was ambiguous) was intended by the parties to mean only dissolution of the marriage by divorce or was also intended to mean dissolution by death.

Appellant presented as her only witness in addition to herself the attorney who drafted the agreement. He testified that decedent told him that he wanted to establish an antenuptial agreement, and he originally prepared it from a standard form; that such agreement was a complete waiver of the rights of the wife, and during their conversation it became apparent that decedent did not intend for appellant to make a complete waiver; that the standard agreement was then amended to provide that in the event of dissolution of the marriage within two years, appellant would receive $20,000 and that would be the end of it; that if the marriage lasted beyond two years, decedent was willing then to take his risks under the standard property rights; that decedent considered the chances of dissolution of the marriage would be less after two years; that decedent also discussed his plans for creating an irrevocable trust for some of his children, a further trust which would pay income to him and appellant for life and the remainder to go to the children or possibly to some other entity such as a charity. The attorney further testified as follow's as to decedent’s wishes in the event of his death:

“. . .In the event of his death when there was no dissolution or divorce, as he called it, involved, he would want Dorothy to have all of her rights except that if he got around to establishing a trust, he did not want her to have her rights to the property but merely a life estate in the property. So we structured a provision in the agreement that preserved the rights of Dorothy Sykes, that she would have subject only to the fact that if the trust was established she would have a life estate in the property if it produced sufficient income.”

The attorney further testified that decedent contemplated establishing such a trust before his death; that paragraph 2A of the instrument dealt with the contingency of the dissolution of marriage (which the attorney testified meant divorce); that sub-paragraph B covered any other event including the potential death of decedent.

Raymond Howe, son of the decedent, testified as follows regarding his first meeting appellant and learning of the marriage:

“This is the first time I have ever met her and she brought up the fact that she says, ‘I know your father has had to work very hard all his life to get where he is today and I want you to know — I want your father to explain to you and your brothers and sisters when it’s time about this contract that your father and I have entered into.’ She said, ‘With this contract, if anything should ever happen to your father or if anything should ever happen to our marriage, I would go out of this marriage just with what I came into it plus a twenty thousand dollars.’ ” (Emphasis supplied)

Ronald Howe, another son of the decedent testified that prior to the marriage, he and his wife had lunch with his father and appellant at which time appellant revealed their marriage plans. He testified that appellant told them “if anything were to happen to the marriage that she would get absolutely nothing out of it.” He further testified that after his father’s death, when they went over to the house to comfort appellant, she stated at that time “that all she wanted out of it was the few personal possessions that she had brought to the house and that there was a little bit of insurance and that’s all that she wanted to get out of it, that they had an agreement and that is the first time I heard of the agreement.” Other witnesses of appellee testified similarly.

The testimony that appellant, contemporaneously with the execution of the antenuptial agreement, stated that under the agreement, if anything happened to decedent, she would receive nothing from the marriage other than the $20,000 stands un-refuted. Although appellant testified in the case, she did not attempt to explain or contradict that testimony. While that testimony as to intent is in conflict with the testimony of the attorney who prepared the agreement, it was the jury’s province to resolve the conflict. It resolved the ambiguity in favor of the decedent’s children and against appellant, finding that appellant had waived her right to dower. The credibility of the testimony and the weight of the evidence are for the jury’s determination. It is not the province of the court to substitute its judgment on factual issues for that of the trier of the facts. Keith v. Amrep Corp., 312 So.2d 234 (Fla. 1 DCA 1975). There is competent substantial evidence which supports the jury’s verdict.

Affirmed.

RAWLS, J., concurs.

BOYER, J., dissents.

BOYER, Judge,

dissenting.

I respectfully dissent. The only real question is whether the word or term “dissolution” means divorce or whether it means death. The legislature, in its infinite wisdom, decided that it means divorce. (See Chapter 61, Florida Statutes) The attorney who drafted the antenuptial agreement testified without equivocation that the reference in that agreement to “dissolved” meant dissolution or divorce (if we are to use the old terminology). I would reverse.


author: McNULTY, Acting Chief Judge.

text:
    STATE of Florida, Appellant, v. George TOOGOOD, Appellee.
    No. 76-1800.
    District Court of Appeal of Florida, Second District.
    Sept. 9, 1977.
    Joseph P. D’Alessandro, State’s Atty., Louis S. St. Laurent, Chief Asst. State’s Atty., and Roger H. Foster, Asst. State’s Atty., Fort Myers, for appellant.
    Dennis A. Hedge, Fort Myers, for appel-lee.
   McNULTY, Acting Chief Judge.

The state appeals an order dismissing the information against appellee on the grounds of statutory transactional immunity.

Toogood was charged with grand larceny by an information filed July 9, 1976 alleging that he stole money in excess of $100 from one Russ Gorgone on November 9, 1975. Subsequently, Toogood moved to dismiss pursuant to Fla.R.Crim.P. 3.190(c)(3) claiming the statutory immunity mentioned.

A hearing was held and the testimony is summarized as follows. Prior to January 28, 1976 the state attorney’s office in Fort Myers received information about two worthless checks from the state attorney’s office in St. Augustine. On January 28, 1976, the clerk issued a subpoena for the appearance of appellee before state attorney Joseph D’Alessandro on February 2, 1976 at 10:00 A.M. D’Alessandro testified that the subpoena was issued to compel appellee’s appearance to discuss the checks, but the subpoena itself does not specify any particular violation.

The subpoena was duly served on appel-lee and he responded as directed on February 2. D’Alessandro testified that he advised appellee of his rights, they discussed the check matters, and as appellee was leaving, a brief conversation was had relative to Russ Gorgone. This conversation was initiated as a result of D’Allessandro’s recollection of having previously heard appel-lee’s name or the type of business with which he was connected. A few weeks prior to February 2, while riding a chartered bus to the Super Bowl in Miami, D’Alessandro had talked with Gorgone about a problem the latter was having with someone installing equipment in his office. Appellee’s name was mentioned in this conversation which lasted less than a minute. D’Alessandro further stated that Toogood told him he had been sick and he had some trouble putting the equipment in Gorgone’s office. D’Alessandro was not aware at the time of this conversation of any charge against appellee or investigation of appellee or his business.

Appellee claimed total recall of the conversation and testified that D’Alessandro began to quiz him about his business dealings with Gorgone immediately upon his arrival and prior to any discussion of his rights or the two checks.

Resolving any conflicts, the trial judge in his order granting the motion to dismiss found as facts: that (1) appellee made no voluntary waiver of his rights to immunity; (2) that D’Alessandro knew of the existence of a problem between appellee and Gor-gone; (3) that D’Alessandro was not, at the time of appellee’s appearance pursuant to the subpoena, aware of any official investigation into the problem; and (4) that the inquiry of D’Alessandro into the area of the Gorgone problem was not related to the subject matter about which the subpoena was issued. The judge then concluded that appellee was given transactional immunity. We think the facts, as found, do not support the court’s conclusion and reverse.

Expressly, the court found that the inquiry by D’Allessandro into the area of Gorgone problem was not related to the subject matter about which the subpoena was issued. Under similar circumstances our supreme court in State ex rel. Hough v. Popper construed the provisions of our immunity statute as follows:

“. . .if petitioners’ testimony given under subpoena concerned the same ‘transaction, matter or thing’ for which they are being prosecuted under the indictments here in question, the indictments must be dismissed pursuant to F.S. 914.04, F.S.A.; if, however, the indictments do not relate to a transaction concerning which they testified pursuant to subpoena, but rather relate to an independent criminal transaction, F.S. 914.04, F.S.A., provides only ‘use’ immunity.”

From all the foregoing, then, we condense the operative facts, viz: that the attorney was investigating the worthless check offenses, that appellee was subpoenaed to testify in relation thereto, that ap-pellee gave testimony relating to an independent criminal transaction not related to the worthless check offenses, and that the larceny charge in the instant case relates to the aforesaid independent criminal transaction. Under Popper, supra, it follows that appellee has only use immunity insulating him under the instant charge from the incriminating effect of what he may have been compelled to say regarding such charge. Parenthetically, we point out that we assume the “compulsion” necessary to give rise to any immunity, transaction or use, because of the express finding of the trial court that appellee did not waive immunity which, in turn, necessarily means he did not waive his Fifth Amendment privileges upon which such immunity would be dependent.

We hold, therefore, that the findings of the trial court will support only “use” immunity. Accordingly, the order appealed from should be, and it is hereby, reversed; and the cause is remanded for further proceedings not inconsistent herewith.

GRIMES and OTT, JJ., concur.

      . Section 914.04, Florida Statutes (1975).

      . 287 So.2d 282 (Fla. 1973).

      . Id., 287 So.2d at 285.


author: ERVIN, Judge. SMITH, Judge,

text:
    Willis N. BUTTS and Elizabeth L. Butts, his wife, Appellants, v. John A. DRAGSTREM and Janet K. Dragstrem, his wife, Appellees.
    No. DD-90.
    District Court of Appeal of Florida, First District.
    Sept. 13, 1977.
    Rehearing Denied Oct. 14, 1977.
    William H. Maness, Jacksonville, for appellants.
    Keith Watson and John G. Barry, III of Newton & Watson, Jacksonville, for appel-lees.
   ERVIN, Judge.

The Butts appeal a judgment entered in favor of Mr. and Mrs. Dragstrem for $42,-000.00. They urge that the lower court erred in denying their motion for directed verdict on the ground that John Dragstrem was not justified in relying upon certain fraudulent representations made by Willis Butts which were material in the Drag-strems’ decision to purchase Butts’ trailer park. We agree and reverse.

In early 1973, John Dragstrem visited his brother, Wayne, who at the time managed a seventeen unit mobile home subdivision in Jacksonville, Florida, which was owned by Butts. Dragstrem had in Illinois operated a small apartment building for seven years and was experienced in the maintenance and upkeep of rental property. He advised his brother he was interested in purchasing rental property which would net him at least $1,000.00 per month. His brother consulted Mr. Butts concerning the possibility of Dragstrem’s purchasing the property. Butts evinced interest, advising Wayne that his brother could easily make $1,000.00 per month net income, saying he had made at least that much per month for several years in the past.

Between February and October, 1973, Dragstrem spent a considerable portion of his time in the Jacksonville area. He socialized with Butts and his wife and saw them frequently in church. Butts appraised his own property, based upon his thirty years experience in the rental of mobile homes, at $167,000.00, but told Dragstrem he would sell the subdivision to him for $147,000.00. Although Dragstrem was never shown Butts’ books of account, he was given a pink slip listing average monthly expenses of $249.00, of this amount $30.00 was allocated to “maintenance and upkeep: mower; minor maintenance on mobile homes and street.” Butts represented these figures as accurate. Dragstrem, relying on Butts’ representations as a Christian brother and on Butts’ reputation for honesty agreed to purchase the property for $145,000.00.

After purchasing the property, Drag-strem soon realized that he was unable to make anywhere near the $1,000.00 per month net income Butts had claimed to have made. After the contract to buy and sell was signed, Dragstrem came upon the premises and found there the ledger book maintained by Butts. It reflected during a period of 15 months gross income of $31,-945.00. It did not, however, show the expenses involved.

At a deposition of Butts’ accountant, taken three weeks prior to trial, Dragstrem learned for the first time that Butts’ net monthly income, after subtracting expenses and mortgage payments, was $540.00 per month. At trial Dragstrem testified that following the purchase, his average net monthly income was $490.00. The accountant for Butts, one Rudolph Black, testifying on behalf of Butts, did not substantially contradict the testimony of Dragstrem. He testified the total gross income for fifteen months was $32,938.04, excluding rental deposits. Total expenses, excluding mortgage payments, for the same period were $7,190.00. Net monthly expenses during the 15 months were $480.00, which contrasted sharply with the average monthly figure of $249.00 supplied by Butts to Dragstrem on the pink slip.

At the outset we conclude there was ample evidence in support of the conclusion that Butts fraudulently misrepresented the average monthly net income he derived from his business. In general, misrepresentations as to past income — as opposed to probable future profits — are proper predicates for alleging fraud. Drag-strem was required, however, to prove also that he relied upon the representation resulting in his injury, which representation was a material fact in inducing the purchase and that he was justified in relying upon the truth of the statement. The right of reliance is also closely bound up with a duty on the part of the representee to use some measure of protection and precaution to safeguard his interests. His justifiable reliance goes to the heart of the problem. In the absence of a showing of a fiduciary or confidential relationship, if there is no accompanying actual deception, artifice, or misconduct, where the means of knowledge are at hand and are equally available to both parties and the subject matter is equally open to their inspection, one disregarding them will not be heard to say that he was deceived by the other’s misrepresentations.

Thus it was necessary for Dragstrem to avail himself of an opportunity to inspect Butts’ books. True, Dragstrem testified he asked to see the books and, according to Dragstrem’s testimony, Butts replied he would bring them over in the morning, but the morning never came. Later after the purchase was consummated, the books of account containing only items of income were found upon the premises. Before the sale, however, Dragstrem was advised the name of Butts’ bookkeeper yet he made no attempt, until three weeks prior to trial, to ascertain from the accountant what Butts’ expenses had been. If there was evidence of active concealment by Butts of his books then a different result might well obtain. There is no such evidence here. We have previously held that where a vendor by his actual deception or misconduct conceals the evidence of a defective condition in such a way as to render it incapable of detection from a reasonable and ordinary inspection, the vendor can no longer rely upon the purchaser’s duty to inspect because such conduct by the vendor serves to impair the purchaser’s opportunity to make a meaningful inspection.

While Dragstrem had never operated a mobile home park before the purchase, he was not an inexperienced man of business. He had for seven years maintained a small apartment building in Illinois and was thereby not unaware of the attendant problems associated with the maintenance and upkeep of rental properties. There were certain avenues of inquiry which this record does not show Dragstrem pursued. In addition to his failure to consult Butts’ accountant, Dragstrem could also have directed appropriate inquiries to his brother concerning what knowledge, if any, he had concerning the income and operational expenses of the subdivision.

It appears Dragstrem’s primary justification for his reliance upon Butts’ representations was owing to their close personal friendship and mutual religious interests. Unfortunately for Dragstrem’s position such a relationship does not create a fiduciary or confidential relationship. True, the relation and correlative duties necessary to give rise to such status need not be legal but may be moral, social, domestic or merely personal. But close friendship is not enough to sustain Dragstrem’s action. In refusing to rescind a deed from a mother-in-law to a son-in-law, conveyed to him following his false representations that he would care for her the remainder of her life or so long as she remained a single woman, our Supreme Court stated, “[t]he law does not prohibit contracts entered into upon the basis of mutual confidence and friendships.”

Having considered the record before us we determine that Dragstrem had a duty to make a reasonable inquiry of the seller’s operational expenses. His casual request to Butts for his books did not discharge this burden. He knew the name of Butts’ accountant, yet it was only after the action was filed and three weeks prior to the date of trial that he asked any questions as to the expenses incurred by Butts in the operation of the mobile home park. While it may have required a bit more persistence by Dragstrem to ascertain the truth, there is nothing before us indicating he could not have acquired the requisite knowledge by the exercise of ordinary care. On the facts before us we conclude his failure.to discover the truth is attributable to his own negligence.

The lower court erred in denying Butts’ motion for directed verdict. The judgment is reversed.

RAWLS, Acting C. J., concurs.

SMITH, J., dissents.

SMITH, Judge,

dissenting:

In my view the trial court properly concluded that the evidence presented a jury question on the pertinent issues. Butts misrepresented his average monthly expenses at a precise $249.00. Even assuming that inspection of Butts’ books of account was reasonably required of Dragstrem as a matter of law, Dragstrem’s persistence in his request for inspection would have been unavailing because, as the majority opinion recognizes, the books contained no information inconsistent with Butts’ misrepresentation of expenses. I do not conceive that we are justified in imposing on Dragstrem a duty to interview Butts’ accountant in order to verify information so explicitly misrepresented. Board of Pub. Instr. of Dade Co. v. Everett W. Martin & Son, Inc., 97 So.2d 21 (Fla. 1957). To so hold as a matter of law imposes an incalculable burden on a prospective purchaser and reduces the seller’s precise misrepresentation of facts to the legal insignificance of puffery. The question was one for the jury under proper instructions, concerning which Butts has demonstrated no error. I would affirm.

      . Oceanic Villas, Inc. v. Godson, 148 Fla. 454, 4 So.2d 689 (1941).

      . Citizens’ State Bank v. Jones, 100 Fla. 1492, 131 So. 369 (1930).

      . Morris v. Ingraffia, 154 Fla. 432, 18 So.2d 1 (1944).

      . Kaminsky v. Wye, 132 So.2d 44 (Fla. 2nd DCA 1961).

      . Farnham v. Blount, 152 Fla. 208, 11 So.2d 785 (1942); Beagie v. Bagwell, 169 So.2d 43 (Fla. 1st DCA 1964).

      . Beagle v. Bagwell, 215 So.2d 24 (Fla. 1st DCA 1968).

      . Dale v. Jennings, 90 Fla. 234, 107 So. 175 (1925).

      . Smith v. Curtis, 19 Fla. 786, 799 (1883).


author: McNULTY, Judge.

text:
    Paul G. BURNETTE and Patricia G. Burnette, Appellants, v. Lois THOMAS, Raymond Thomas and State Farm Mutual Automobile Insurance Company, a Foreign Corporation, Appellees.
    No. 76-816.
    District Court of Appeal of Florida, Second District.
    Sept. 16, 1977.
    Rehearing Denied Oct. 12, 1977.

      Sam E. Murrell, Jr., and Robert W. Kief-fer of Sam E. Murrell & Sons, Orlando, for appellants.
    Thomas G. Kane and James 0. Driscoll of Driscoll, Baugh, Langston, Layton & Kane, P. A., Orlando, for appellees.
   McNULTY, Judge.

Plaintiffs-appellants appeal a final summary judgment for the defendants in an action for the recovery of damages to certain real property. We reverse and remand.

In the order granting summary judgment the trial court found the facts to be without controversy as set forth hereafter and the record fully supports this. On October 19, 1974, defendant-appellee Lois Thomas operated an automobile owned by defendant-ap-pellee Raymond Thomas so as to cause it to collide with a building situated on certain real property in Leesburg, Lake County. On the date of the collision, John and Linda Smith were in lawful possession of the aforesaid property as lessees, pursuant to a lease with plaintiffs-appellants Paul and Patricia Burnette, the lessors. Subsequently, on October 22, 1974, John Smith executed a proof of loss document presented to him by an agent of appellee State Farm Mutual Automobile Insurance Company, the automobile liability insurer of the ap-pellees Thomases. In executing the aforesaid proof of loss, John Smith represented himself to be the owner of the damaged premises.

Thereafter, appellee State Farm issued its draft in the sum of $2,380 to John W. Smith for repairs to the property. Upon receiving this draft, Smith endorsed and cashed it, but did not make repairs to the structure nor did he account to appellants.

Subsequently, appellants brought this negligence action against the Thomases and State Farm seeking the recovery of the cost of repairs and the loss of rental income during the time necessary for repairs.

Appellees answered, denying liability to appellants on the grounds that their payment to Smith discharged appellants’ claim. Appellees also filed a third-party complaint against John and Linda Smith.

Appellees thereafter moved for summary judgment. The court found the uncontro-verted facts to be as stated above and entered final summary judgment in favor of appellees as a matter of law. We think he’s wrong.

To begin with, we think it’s rudimentary that a landlord and tenant have separate estates in the demised premises during the term of the lease, the tenant’s being a possessory interest and the landlord’s a reversion interest. Where a tor-tious act of a third party injures the interests of both the landlord and the tenant, each has a right of action for the injury to his own interest and each may maintain a separate action. Significantly, neither the landlord nor the tenant can in his separate action recover the damages to the estate of the other. The wrongdoer does not have to respond in damages twice for the same injury, but he must compensate each of the parties for the injuries respectively sustained as consequences of his tort.

Of course, most torts that injure the landlord’s reversion will also be injurious to the tenant’s possessory interest, whereas a mere disturbance of the tenant’s possession very often will not affect the reversion of the lessor. With regard to the particular type of injury to the premises suffered in this case, it is well settled that damages to or the destruction of a building on the leased premises is an injury to the reversion of the landlord as well as creating a right of action in the tenant for the damage to his possession. Moreover, we emphasize, it is also a well-recognized rule that the tenant has no power to bind the landlord or the reversion of the landlord by any act or contract on his part.

Appellees contend, however, that certain exceptions to the general rules stated above preclude appellants from maintaining this suit and recovering thereon under the uncontroverted facts presented. First, they point to the fact that the lease between appellants and the Smiths gave the Smiths an option to purchase the property. They argue by way of analogy that a recovery against a third person in favor of a conditional vendee for damage to property is a bar to an action and recovery by the conditional vendor against the third person. The conditional vendor’s only right after a recovery or settlement, they say, is to recover from the conditional vendee for monies had and received. They cite to the venerable case of Smith v. Gufford.

We think, however, their reliance on Guf-ford is misplaced. That case involved the conditional sale of a horse which was later wrongfully killed by a railroad train while in the possession of the conditional vendee. Our supreme court held that either the vendor or the conditional vendee could sue and recover damages for the tort, but recovery by either would bar any further recovery by the other. If the conditional vendee recovers for the tort, the vendor then acquires a right of action against him for monies had and received for his use and benefit. The court further declared that the horse killed by the train lost its identity as property upon being killed; therefore, it was said, if the conditional vendee purchases another horse with the monies collected as damages from the railroad, the vendor certainly does not become the owner of the new horse, nor does he acquire any equitable lien upon it for the purchase money due for the dead horse. Stated otherwise, there can be no reversionary interest in the dead horse, it having ceased to be property.

We yield to temptation and suggest that appellees are “beating a dead horse”—their analogy breaks down when the permanence of realty as property is considered. A re-versionary interest in injured realty may exist; and if such injury is caused while such interest is vested, recovery may be sought by the owner thereof. That such interest may be divested by the exercise of an option in another ought be no comfort to a tortfeasor causing the injury. The injury is real, present and its extent measurable— the “horse” lives on. Indeed, on the point, it has been stated as black letter law that “. . . the fact that the tenant has an option to purchase the leased premises does not deprive the landlord of his right of action.” We subscribe to this rule.

Finally, appellees point out that the Smiths’ lease with appellants contained a covenant whereby the Smiths as tenants agreed to maintain the premises in the same condition and repair as at the commencement of the term of the lease, excepting only reasonable wear and tear, and refer further to a clause stating “tenants shall be responsible for all repairs to said property.” They assert that in such a case, where the lease requires the tenant to be responsible for all repairs, damage done by a tortfeasor gives rise only to a cause of action in favor of the tenant and not the landlord. Appellees cite us to the annotation in 12 A.L.R.2d at 1192 for this proposition and argue that a failure of the lessee to perform his duties under the lease to repair the premises does not give rise to a cause of action by the lessor against the tortfeasor, who has already paid the lessee in settlement for the damages. They contend the lessor’s remedy is against the lessee.

We cannot agree. We do recognize a split of authority regarding the effect of a covenant to repair upon the landlord’s right of action against a third-party tort-feasor. This split is apparent from a review of the annotation cited by appellees, as well as from our independent research. We are unaware of any Florida case on the point, but the state of the law generally is well summarized in the following passage:

“Although as a general proposition neither the landlord nor the tenant can in his separate action recover for damages to the estate of the other, in some jurisdictions it is held that whenever the tenant is liable to the landlord for injuries to the freehold, either by contract or under the common law, he has a right of action against a third person causing such an injury. . . . Other courts, assuming the liability of the tenant to the landlord for injuries to the reversion by third persons, hold that reparation or satisfaction to the landlord is a condition precedent to the tenant’s right to sue, and that until such reparation is made, there has been no injury to the tenant. [Citations omitted.]”

We subscribe to the latter rule. The former rule not altogether unreasonably assumes an innocent lessee acting in good faith; but it opens the door to fraud by one who may recover for all damages, fail to repair injuries to the reversion and abscond without accounting to the lessor for the portion of the recovered damages assignable to the reversion — a distinct possibility here. The latter rule, on the other hand, protects the innocent lessor while at the same time, under the general law relating to landlord and tenant first discussed above, an unscrupulous one would be unable to recover for or appropriate unto himself damages recoverable for injury to the lessee’s possessory interest. Clearly, this is the sounder rule as affects the rights flowing between the lessee and the lessor; and certainly, it cannot prejudice the diligent third-party tortfeasor who, before he would settle with one in possession, need merely check the records to determine whether such possessor and the record owner are one and the same (a course unfortunately not pursued by appellees herein).

In sum, we hold that under the uncontro-verted facts herein appellants, as lessors, may maintain an action for damages against appellees for injuries to their rever-sionary interest in the leased premises. We do not concern ourselves now, of course, with the merits of appellees’ third-party claim over against the Smiths. For ought that appears, the issues therein are still viable.

In view whereof, the final summary judgment appealed from should be, and it is hereby, reversed; and the cause is remanded for further proceedings not inconsistent herewith.

BOARDMAN, C. J. and GRIMES, J., concur.

      . See 49 Am.Jur.2d Landlord and Tenant § 82; 20 Fla.Jur. Landlord and Tenant § 23.

      . See 49 Am.Jur.2d Landlord and Tenant § 84; 51C C.J.S. Landlord & Tenant § 261.

        .See 49 Am.Jur.2d Landlord and Tenant § 86; 12 A.L.R.2d 1192, § 18 at 1122.

      . See 49 Am.Jur.2d Landlord and Tenant § 83.

      . 36 Fla. 481, 18 So. 717 (1895).

        .See Am.Jur.2d Landlord and Tenant § 84 at 124, citing Hayden v. Consolidated Mining & Dredging Co., 3 Cal.App. 136, 84 P. 422 (Cal.3d DCA 1906).

      . 12 A.L.R.2d 1192, esp. §§ 18, 19 and 20.

      . 49 Am.Jur.2d Landlord and Tenant § 289 at 305.

        .See California Dry-Dock Co. v. Armstrong, 17 F. 216 (C.C.D.Cal.1883); and see Nashville, C. & St. L. Ry. v. Heikens, 112 Tenn. 378, 79 S.W. 1038 (1904).


text:
    SAINER CONSTRUCTORS, INC., a Florida Corporation, and Fidelity and Deposit Company of Maryland, a Maryland Corporation, Appellants, v. PASCO COUNTY SCHOOL BOARD, a Public Authority existing under the laws of the State of Florida, for the use and benefit of Sims Crane Service, Inc., a Florida Corporation, Appellee.
    No. 77-380.
    District Court of Appeal of Florida, Second District.
    Sept. 16, 1977.
    As Modified on Denial of Rehearing Oct. 5, 1977.

      Hugh C. Ferrell of Trawick, Griffis & Ferrell, Sarasota, for appellants.
    C. Elmon Gatlin, Tampa, for appellee.
   SCHEB, Judge.

The trial court denied appellants/defendants’ motion to dismiss for lack of prosecution, holding that certain non-record activities which occurred in the course of this litigation constituted good cause shown to avoid dismissal for lack of prosecution under Fla.R.Civ.P. 1.420(e). This interlocutory appeal by defendants ensued. We affirm.

Defendants contend the trial court erred because: (1) non-record activity is no longer sufficient to avoid dismissal under Rule 1.420(e), since the rule was amended effective January 1, 1977, to specify that only activity appearing on the face of the record is sufficient to avoid involuntary dismissal; and, (2) even under the rule as it stood before amendment, the non-record activity in this case was not sufficient to furnish good cause to avoid dismissal.

To place this problem into proper perspective, some background of the litigation is necessary. It seems that during 1974 the Pasco County School Board, as use plaintiff for Sims Crane Service, Inc., filed suit in circuit court against defendants Sainer Constructors, Inc. and Fidelity & Deposit Company of Maryland, as principal and surety respectively on a public works bond. The complaint sought compensation for crane service furnished by Sims to one of Sainer’s subcontractors on a public works project. Also, in 1974 Sims Crane Service sued Sainer Constructors in circuit court on an open account.

In November 1975 defendant Sainer moved unsuccessfully for summary judgment in the cause now before us; L e., suit against Sainer and its surety on the public works contract. Then, in January 1976, Sainer moved successfully for summary judgment in the open account case. In both, Sainer claimed that a general release delivered to it had the effect of discharging the claims made by plaintiff Sims.

On December 81, 1976, defendant Sainer filed its motion to dismiss the public works case now before us for lack of prosecution. Plaintiff opposed the motion with an affidavit from its counsel attesting to contacts with defense counsel concerning the formulation of a stipulated statement of facts. Though a stipulation was eventually prepared by plaintiffs counsel, it was never executed nor sent to the defendants. Plaintiff also filed a transcript of certain proceedings in the open account case which concerned the release and its effect on that case as well as the cause now before us.

The trial court refused to dismiss for lack of prosecution, stating:

[T]he Court finds that there was non-record activity in February of 1976 which would constitute “affirmative action moving in a continuous stream toward a disposition of the case.” Musselman Steel Fabricators, Inc., vs. Radziwon, 263 So.2d 221. This activity is evidenced by the transcript of testimony taken before the Honorable I. C. Spoto in a companion case, Sims Crane Service Inc., vs Sainer Constructors, Inc., 74-12295, and by the affidavit of the plaintiff’s attorney that about the same time he endeavored to effect a stipulation with the defendant’s attorney of a statement of facts which would expedite the final hearing, although such a stipulation was not entered.

Defendants correctly point out that Rule 1.420(e) had been amended by the supreme court effective January 1, 1977. The rule as it stood before the amendment has been construed by the courts to allow non-record activity to be considered as good cause to avoid dismissal for lack of prosecution. Musselman Steel Fabricators, Inc. v. Radziwon, 263 So.2d 221 (Fla.1972). As amended, the rule now requires that the activity must appear “on the face of the record” in order to save a cause from dismissal. The meaning of the new language is clear. Non-record activity as defined in the decisional law construing the former rule can no longer be good cause to avoid dismissal for lack of prosecution. But, does this mean that non-record activity prior to the effective date of the amended rule is of no avail to one opposing dismissal?

Although defendants have correctly interpreted the meaning of the rule as amended, we believe that non-record activity prior to 1977 which was recognized under interpretation of the former rule, may still be sufficient good cause to avoid dismissal under the amended rule. The amended rule contains a caveat, just as the former rule did, to the effect that an action shall not be dismissed if a party shows “good cause” why it should not be. Certainly a trial judge could conclude, as he did in this case, that compliance with the former rule would be “good cause” not to dismiss under the amended rule. Justice and fairness require this to be so.

The important question thus becomes: Did plaintiff’s non-record activities amount to good cause to avoid dismissal under the former rule?

The standard utilized by the courts to judge whether non-record activity is sufficient to avoid dismissal has often been stated as follows:

[A]ny activity of record or non-record which results in contact by one party with the opposing party or the court and which moves the cause of action towards its ultimate resolution is sufficient prosecution under the hereinabove cited rule [i. e., Rule 1.420(e)]. Rapport v. Weisberg, 316 So.2d 73, 74 (Fla. 3d DCA 1975) (citations omitted).

We have considerable reservations as to whether the hearing in the open account case was sufficient under this standard. We cannot see how the hearing in the companion case advanced this litigation. If plaintiff deemed it essential to the progress of this suit to litigate the effect of the release, it could have done so in this case.

We think, however, the affidavit by plaintiff’s counsel formed a basis for the trial judge’s finding that the effort to enter into a stipulation was sufficient non-record activity to avoid dismissal. Though defendants’ affidavit denied there was specific contact concerning the proposed stipulation, there was before the trial court a letter dated February 12, 1976, from plaintiff’s counsel to defendants’ counsel which could be interpreted to indicate that there had been contact between opposing counsel concerning the stipulation. In any event, we must resolve the factual dispute presented by the opposing affidavits in a manner that supports the trial court’s ruling, if possible. We conclude that the affidavit by plaintiff’s counsel was sufficient to support the trial court’s finding. In short, we do not think defendants have sustained the heavy burden of showing that the trial court’s refusal to dismiss the cause was an abuse of judicial discretion. Adams Engineering Co. v. Construction Products Corp., 156 So.2d 497 (Fla.1963); Eli Einbinder, Inc. v. Miami Crystal Ice Co., 317 So.2d 126 (Fla. 3d DCA 1975).

In sum, we hold that there was sufficient evidence before the trial court upon which it could have based its finding that there had been contact between the parties intended to hasten the suit to its conclusion, and that this activity constituted good cause for not dismissing the case for lack of prosecution.

Affirmed.

BOARDMAN, C. J., and GRIMES, J., concur.


author: BURNSTEIN, MIETTE K., Associate Judge.

text:
    In re the Matter of ADOPTION OF Suzanne Michelle NOBLE.
    No. 76-617.
    District Court of Appeal of Florida, Fourth District.
    Sept. 20, 1977.

      John L. Parker, Jr., Legal Aid Society of Palm Beach County, West Palm Beach, for appellant.
    Eugene J. Ethier, Lake Park, for appel-lees.
   BURNSTEIN, MIETTE K., Associate Judge.

This appeal arises from the granting of a final judgment of adoption of Suzanne Michelle Noble by Suzanne Gale and her husband, Charles Gale, appellees herein.

In October 1972 the mother placed the child with the Gales until she was able to resume custody. Mrs. Gale had several children of her own and was able to devote her full attention to homemaking and child-rearing. The child remained with the Gales until Ms. Noble, who was working in New Hampshire, returned to Florida the following September to take the child back. After two weeks in New Hampshire, where Ms. Noble acknowledged that she was unable to cope with the rigors of rearing a small child and maintain a demanding full-time job, she asked Mrs. Gale to resume care of the child.

Although adoption was discussed, no final determination was made, nor was any consent executed.

The child remained with the Gales, although the natural mother remained in touch with the Gales, sent periodic checks for the child’s care, visited with the child on at least three or four occasions, sent birthday presents, Christmas and other gifts, made medical payments, bought items of clothing from time to time and telephoned the Gales regularly to inquire of the child.

On January 24th, 1975, the Appellees filed their petition for adoption; appellant counter-petitioned for custody. The Department of Health and Rehabilitative Services — Office of Social and Economic Services, filed its findings that the child is loved and considered part of the Gales’ family; and that the natural mother is a stable employee, capable of formulating and carrying out plans for herself and the child.

Both parties are financially capable of caring for the child although the Gales are substantially better able to provide for her.

The trial court found that the petitioners are fit and proper persons to adopt Suzanne Michelle Noble and that the child’s best interests would be promoted by such adoption, and granted the adoption.

We find no error in the determination that the Gales are fit and proper, nor do we question a finding that the child’s best interests may be promoted by awarding her custody to the Gales. We do, however, find that these standards, with nothing further, are insufficient to terminate parental rights permanently. Due regard must be given to the rights of a natural parent. Wiggins v. Rolls, 100 So.2d 414 (Fla.1958).

Adoption completely severs parental ties. Such permanent termination of parental rights and responsibilities must not be ordered without parental consent except upon clear and convincing proof that the natural parent has conducted himself in such a way as to show a complete abandonment of the child. La Follette v. Van Weeldon, 309 So.2d 197 (Fla. D.C.A. 1st 1975).

We decline to follow Jones v. Allen, 277 So.2d 599 (Fla. D.C.A. 2nd 1973). That case held that something less than complete and total abandonment by natural parents was sufficient to permit adoption by strangers. Neglect by the natural parents or disinterest and failure to carry out parental obligations does not justify adoption of a child by strangers over the natural parents’ objection.' Temporary failures and derelictions of parents, while possibly justifying deprivation of custody, will not support judgment of adoption. In re Adoption of Gossett, 277 So.2d 882 (Fla. D.C.A. 2nd 1973). We follow the stringent standard of Wiggins, supra.

In the case presently before us, we find a concerned natural parent, who, though admittedly is unable to cope with many parental obligations, is, nevertheless, entitled to the future benefits of maternal pride and a familial heredity.

Accordingly, we reverse and set aside the final judgment of adoption and remand this cause to the trial court for a determination of custody.

REVERSED with directions.

DOWNEY and DAUKSCH, JJ., concur.