author: CARLTON, Associate Judge.

text:
    J. C. PENNEY COMPANY, INC., Appellant, v. Richard KOFF, Appellee.
    No. 75-2162.
    District Court of Appeal of Florida, Fourth District.
    March 18, 1977.
    Rehearing Denied May 20, 1977.

      Paul R. Regensdorf of Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellant.
    Samuel L. Heller, Fort Lauderdale, for appellee.
   CARLTON, Associate Judge.

Appellant, J. C. Penney, Inc., a Delaware corporation authorized to do business in the State of Florida, appeals a final judgment entered by the trial court denying the appellant’s claim for specific performance and for damages and granting appellee’s counter-claim for rescisión of a sale and purchase agreement and awarding damages pursuant thereto.

On December 17, 1973, appellant, J. C. Penney Company, Inc., entered into a sale and purchase agreement with appellee, Richard Koff, for the sale of certain land totalling 9.615 acres in the City of Lauder-dale Lakes, Broward County, Florida. Negotiations had been conducted over a 25 month period prior to this. At the time the sale and purchase agreement was entered into, the zoning applicable to the subject property was R-4A which allowed 28 condominium units per acre. On March 26, 1974, prior to closing, the City of Lauder-dale Lakes revised its description of R-AA zoning and provided that such development could not have more than 12 condominium units per acre. Thus making the venture less profitable to appellee. The closing was scheduled to take place April 23, 1974. Shortly before the closing appellee Koff delivered notice of rescisión relying on the fact that the zoning had been changed.

Appellant Penney filed a complaint for specific performance and damages on the sale and purchase agreement between it and the appellee Koff. Appellee filed his answer denying appellant’s right to specific performance and for damages and filed a counter-claim for the return of funds it deposited under the sale and purchase agreement as well as for the reimbursement of certain other funds spent under a collateral agreement between appellee and the City of Oakland Park, Florida. At the termination of the non-jury trial, the court entered a final judgment denying appellant Penney’s request for specific performance, denying appellant’s claim for damages and finding for appellee Koff on the counterclaim for the rescisión of the sale and purchase agreement. The trial court further awarded appellee the sum of $65,000 in damages. This sum represented $10,000 as a deposit on the sale and purchase agreement and $55,000 for the sum appellee paid on the collateral agreement with the City of Oakland Park, Florida.

Appellee’s primary case in the trial court consisted of attempting to show an ambiguity in the sale and purchase agreement and utilizing various parol testimony and prior correspondence in an attempt to support his position for denial for specific performance. The trial court over objections of appellant held that certain provisions in the sale and purchase agreement were ambiguous and allowed into evidence parol testimony and certain prior correspondence between the parties.

The substance of the parol evidence was to establish that appellee because of the change of density requirements between the execution of the contract and the scheduled closing would have a less profitable business venture and that appellee did not intend to be bound by the sale and purchase agreement if there was a change in the density.

Paragraph 1A, 1C and 6 of the sale and purchase agreement must be examined for ambiguities. They are as follows:

“1. AGREEMENT TO SELL AND PURCHASE.

Seller shall sell and Purchaser shall purchase good and marketable fee simple title to the Premises described on Exhibit “A” subject to the following:

“A. Applicable building laws, zoning ordinances, laws and other regulations of any governmental body, subdivision, or agency having jurisdiction existing at the date of closing of title, provided the same do not prohibit the construction of residential type units as permitted under zoning ordinance category R-4A of the zoning ordinance of the City of Lauderdale Lakes, Florida including an apartment complex and recreational amenities including tennis courts, swimming pools and a health club.”.(Emphasis added)
“C. All covenants, agreements, restrictions and easements of records; provided the same do not prohibit the construction of residential type units as provided under zoning ordinance category R-4A of the zoning ordinance of Lauderdale Lakes, Florida including an apartment complex and recreational amenities including tennis courts, swimming pools and a health club.”(Emphasis added)
6. NO REPRESENTATIONS BY SELLER
“Seller makes and has made no representation, statement, warranty or guarantee as to the conditions, fitness or value of the Premises. The execution of this Agreement has not been procured by any representation, statement, warranty or guarantee not herein contained and Purchaser agrees to accept the Premises ‘as is’ as of the date hereof.” (Emphasis added)

Appellee contends that the phrases “as permitted” under Paragraph 1A, “as provided” under Paragraph 1C and “as is as of the date hereof” under Paragraph 6 were ambiguous and therefore, parol evidence should be received by the court to determine what was meant by these phrases.

In reviewing the contract in an attempt to determine its true meaning, the court must review the entire contract without fragmenting any segment or portion. Royal American Realty, Inc., v. Bank of Palm Beach and Trust Company, FIa.App., 215 So.2d 336; International Erectors, Inc. v. Wilhoit Steel Erectors and Rental Service, 400 F.2d 465. In Ross v. Savage, 66 Fla. 106, 63 So. 148 the Supreme Court held:

“The entire instrument must be considered in order to gather the real intent and to determine the true design of the makers thereof. To that end all the different provisions of such instrument must be looked to, and all construed so as to give the effect to each and every of them, if that can reasonably be done. . . ”
“When parties deliberately put their engagement into writing, in such terms as import a legal obligation without any uncertainty as to the object or extent of engagement, it is, as between them, conclusively presumed that the whole engagement and the extent and manner of their undertaking is contained in the writing.No other language is admissable to show what they meant or intended, and for the simple reason that each of them has made that to be found in the instrument the agreed text of his meaning and intention.”

In the case of Perry v. Woodberry, 26 Fla. 84, 7 So. 483, this principle was stated over seventy years ago and continues to be the law of Florida and does bar the consideration of any extensive evidence to explain or vary the express terms of a contract unless an ambiguity of a contract is first found to fairly appear. See Dimension Four International, Ltd. v. Huskey Realty, Fla.App., 325 So.2d 34; Black v. Clifton, Fla.App., 284 So.2d 465; Graham v. Graham, Fla.App., 277 So.2d 540; Hamilton Construction Co. v. Board of Public Instruction, Fla., 65 So.2d 729; Parkleigh House, Inc. v. Wahl, 97 So.2d 714. The above stated cases taken together adhere to the principle that the courts are allowed to consider extrinsic evidence only when confronting an ambiguous contract provision, and they are barred from using evidence to create an ambiguity to rewrite a contractual provision, or to vary a party’s obligation under a contract.

It is necessary to look to the balance of the entire agreement to see what the intent of the parties were. The last clause of Paragraph 6 where “purchaser agrees to accept the premises ‘as is’ as of the date hereof can logically be read in conjunction with Paragraph 1A without ambiguity. There is under Paragraph 1A language specifically relating to the zoning question in that appellant agreed to convey good and marketable title subject to zoning “existing at date of closing of title”. The court cannot interpret a general clause, the last phrases of Paragraph 6, in a manner directly contrary to a specific clause, Paragraph 1A. However, there must be an attempt made to give the last phrase in Paragraph 6 a reasonable meaning. Paragraph 6 is obviously a clause inserted to protect the seller by the limitation of representations for which he will be held responsible. There is no ambiguity in that portion of Paragraph 1A or of Paragraph 6 sufficient to justify the admission of parol evidence.

Appellee further contends that the phrases “as permitted” under Paragraph 1A and “as provided” under Paragraph 1C are ambiguous. We disagree. The most compelling language in the contract is in Paragraph 1A itself. It is stated that title must be good and marketable subject to zoning regulations “existing at the date of closing of title.” The phrase immediately following states “provided the same” (the regulations existing at the date of closing) do not prohibit the construction of residential type units as permitted under zoning ordinance category R4—A. It is obvious that the phrases “as permitted” under 1A and “as provided” under 1C refer to the type of use the land could be put to for the actual construction of various buildings and complexes under the prior zoning provisions and does not refer to a change of density. This phrase relates to when a future zoning ordinance may prohibit the actual construction of an apartment complex, recreational amenities including tennis courts, swimming pools and a health club.

Therefore, we are of the opinion the agreement to sell and purchase under these phrases is not ambiguous, and extrinsic evidence should not have been admitted to change or alter the express provision in Paragraph 1A.

One other “provision” of this contract is significant. This is the implied provision effected by the application of the doctrine of equitable conversion to an exec-utory contract for the sale of land in Florida. The doctrine of equitable conversion as set forth by the Supreme Court of Florida in Hull v. Maryland Casualty Company, Fla., 79 So.2d 517 states:

(equitable conversion) .... “becomes operative upon the entry of an agreement to convey title to realty. The vendee immediately becomes the beneficial owner, and the vendor retains only naked legal title as security for payment of the purchase price.”

The transfer of possession is irrelevant. See: Insurance Company of North America v. Erickson, 39 So. 495.

In the case of Arko Enterprises, Inc. v. Wood, Fla.App., 185 So.2d 734, a seller and purchaser entered into an agreement to sell real property and prior to the date of the scheduled closing the City of Cocoa Beach instituted eminent domain proceedings. In that case the court held that the doctrine of equitable conversion applied and held that the purchaser became seized of the beneficial title to property upon the execution of the contract. The purchaser took beneficial title and with the beneficial title came the risk of eminent domain. Consequently, the purchaser was obligated to pay the seller the full contract price. In the application of the law set forth in the Arko case, we hold that the person who acquired the beneficial title became the party directly affected by subsequent governmental action. If that action increased the zoning density of the tract or otherwise made it more valuable, the purchaser is enriched. Conversely, however, if the value of the tract is diminished or if the zoning density is reduced, the party to feel the detrimental fact is again the purchaser.

This cause is hereby reversed and remanded to the court below with direction to enter an order for specific performance in behalf of appellant Penney containing such provisions that are not inconsistent herewith.

Reversed.

CROSS, J., and MAURICE PAUL, Associate Judge, concur.


source: Caselaw Access Project

author: PER CURIAM. ANSTEAD, Judge,

license: Public Domain

text:
    C. I. MORTGAGE GROUP, a Massachusetts Real Estate Investment Trust, Appellant, v. GENERAL ELECTRIC COMPANY et al., Appellees.
    No. 76-458.
    District Court of Appeal of Florida, Fourth District.
    March 18, 1977.
    Rehearing Denied May 13, 1977.
    Stanley Angel of Cohen & Angel, North Miami, for appellant.
    William C. Lewis, Coral Gables, for appel-lee-General Elec. Co.
   PER CURIAM.

Affirmed.

CROSS, J., and DRIVER, B. J., Associate Judge, concur.

ANSTEAD, J., concurs specially with opinion.

ANSTEAD, Judge,

concurring specially:

This writer is reluctantly compelled to join the majority in affirming the trial court under the authority of International Harvester Credit Corp. v. American National Bank of Jacksonville, 296 So.2d 32 (Fla.1974).


author: ANSTEAD, Judge. DAUKSCH, Judge,

text:
    Roxana PETERSON, Appellant, v. William A. PETERSON, Appellee.
    No. 76-556.
    District Court of Appeal of Florida, Fourth District.
    March 25, 1977.
    Howard Todd Jaffe, of Kaplan, Jaffe & Associates, Hollywood, for appellant.
    Robert J. O’Toole, Fort Lauderdale, for appellee.
   ANSTEAD, Judge.

Our opinion filed February 25, 1977, is withdrawn and this opinion is filed in place thereof.

This is an appeal from a final judgment of dissolution of marriage. The wife appeals contending that the trial court erred in modifying certain provisions of a property settlement agreement and awarding custody of one of two male children to the husband.

The parties were married in 1959 and resided together until 1970 when the parties separated and the wife filed suit for divorce. During the separation the parties entered into a property settlement agreement but thereafter resumed their marital relationship and the divorce suit was voluntarily dismissed. On October 3, 1975 the husband filed a petition for dissolution seeking a dissolution and a judicial order setting aside the agreement of 1970.

A final hearing was held on December 11, 1975 during which the husband moved to amend his pleadings to allow a claim for child custody and the trial court granted such motion over the objection of counsel. After the final hearing deposition testimony on the issue of custody was presented to the court and the parties’ counsel appeared for final argument before the court on December 18, 1975.

In a final judgment of dissolution entered on January 13, 1976 the trial court upheld the validity of the separation agreement but modified certain provisions thereof concerning alimony, child support and child custody. Custody of the oldest child, age 14, was awarded to the husband and custody of the youngest, age 12, to the wife.

The husband is an engineer and the wife is a housewife. At the time of the settlement agreement in 1970 the husband was earning $25,000.00 yearly. At the time of trial his income had increased to approximately $50,000.00. The wife had no substantial employment at either time and lived in the same marital home which had been deeded to her pursuant to a provision of the 1970 agreement. The children were five years older but still attending local schools. Due to his employment, the husband was scheduled to travel to Indonesia for one year beginning in January of 1976.

The settlement agreement, in addition to providing the wife the marital home, gave her custody of the children and provided for alimony and child support in the total sum of 50% of the net income, after taxes, of the husband.

The agreement provided:

ARTICLE VII. SUPPORT FOR WIFE AND MINOR CHILDREN
A. That Husband’s income is substantial, and he is well able to care for the Wife and minor children herein; that the parties agree that Wife shall receive fifty percent (50%) of the Husband’s income after payment of all income taxes, which share shall be used by Wife for the support and maintenance of the three (3) minor children, to-wit: WILLIAM ALBERT PETERSON, JOHN FREDRICK PETERSON, and KIMBERLEY PETERSON, and the Wife. Said support shall continue until the youngest child shall attain the age of twenty-one (21). In the event the Wife shall remarry, the entire amount shall constitute support for the children.
B. The amounts so received shall be divided as follows: One Dollar ($1.00) a month as alimony, and the balance shall be construed as child support.
C. At the time the youngest child attains the age of twenty-one (21) years, if the Wife has not previously remarried, the Wife may apply to the Court to have her alimony set.

In the final judgment the wife was awarded $200.00 per month child support for the child remaining in her custody until the child reached age 18 and as alimony $700.00 per month for the first year, $400.00 per month for the next three years and $100.00 for the last two, a total of six years of rehabilitative alimony.

The trial court granted the husband’s motion to amend with reference to child custody when it appeared during the course of the trial that the oldest child had expressed a desire to be with the father and the father’s departure for Indonesia was imminent.

While due process requirements of notice and a reasonable opportunity to be heard are equally important in child custody cases as in other matters, we are unable to say the trial court erred under the circumstances of this case. There was no significant issue of the husband or wife’s competency for custody, the husband’s counsel virtually stipulated to such as to the wife as did the husband himself. During the course of the trial the husband stipulated that it would be unnecessary for the wife to call certain witnesses to establish her competency. And after the hearing the wife was allowed to take and present to the court the deposition of a clinical psychologist who was treating the oldest child.

Despite the issue arising as it did we are not convinced the wife was prevented from presenting any evidence or testimony relevant to the issue of custody prior to the trial court’s determination of that issue. When this is considered together with the increased age of the child, the testimony of the child and the clinical psychologist and the other evidence presented, there was a sufficient basis for the court to modify the settlement agreement reference the custody of the older child and we affirm the trial court’s custody order.

We do not reach the same conclusion in regard to the court’s modification of the financial terms of the agreement. The husband sought to have the settlement agreement invalidated by the trial court. The trial court rejected the husband’s claim and upheld the agreement but thereafter proceeded to modify the terms of the agreement with reference to alimony and child support. Absent a substantial and material change in circumstances the trial court was without authority to modify the terms of the agreement of the parties. Singer v. Singer, 318 So.2d 438 (Fla.4th DCA 1975).

The circumstances of the parties are set out above and reveal the most obvious change from the time of the agreement to be an increase in the husband’s earnings from $25,000.00 to $50,000.00. There is no evidence of any substantial change in circumstances that would merit a decrease in child support or alteration of the other financial provisions of the agreement. Those provisions of the final judgment relating to alimony and child support contrary to the terms of the separation agreement are reversed.

Accordingly the final judgment is hereby affirmed in part, reversed in part and remanded to the trial court for further proceedings consistent with the terms of this decision.

ALDERMAN, J., concurs.

DAUKSCH, J., dissents, with opinion.

DAUKSCH, Judge,

dissenting:

I respectfully dissent. The custody of the oldest minor child being awarded to the father was quite proper under the circumstances. However I do not agree with the majority opinion that a change in circumstances was not shown and I feel the Judgment of the trial court should be affirmed in all. respects. The most significant change in circumstances is the departure from the home of two of the three children. The oldest boy is now on his own evidently and the 14 year old child is being supported solely by the husband in the husband’s care. As a result of the Judgment of the trial court the wife’s need has decreased by ^approximately one-half. The amount awarded by the trial court was supported by the evidence based on the need of the wife and the ability of the husband and should not have been disturbed, the Chancellor’s discretion not having been shown as having been abused. Since we saw nothing wrong with changing the agreement as to custody even though the wife strongly protested I don’t see how we can refuse to consider the change in circumstances presented at trial. Additionally, it appears to me that the provisions of the agreement set out in the majority opinion clearly support the trial court in reducing the amount payable by the husband to the wife because it says “which share shall be used by Wife for the support and maintenance of the three (3) minor children, to-wit: WILLIAM ALBERT PETERSON, JOHN FREDRICK PETERSON and KIMBERLEY PETERSON, and the Wife.” I feel the evidence presented to the trial court was insufficient to support the wife’s contention that she should have one-half of the husband’s after-tax income to support herself and one child when the agreement provided that she was entitled to one-half of the husband’s after-tax income to support herself and three children. The agreement further states that $1.00 of the 50% was for alimony and the balance for child support. Hopefully the trial court will have the opportunity to again attempt to establish the equities.

      . The settlement agreement itself actually contemplated reconciliation and recited reconciliation as a premise of the parties in entering into the agreement.

      . The husband has not appealed the trial court’s decision upholding the validity of the agreement.


author: PER CURIAM. HUBBART, Judge

text:
    The STATE of Florida, Appellant, v. Manuel Francisco ALONSO, a/k/a Manuel Alonzo, Appellee. The STATE of Florida, Appellant, v. Luis Bulas BARQUET et al., Appellees.
    Nos. 76-763, 76-1649.
    District Court of Appeal of Florida, Third District.
    March 29, 1977.
    Rehearing Denied May 4, 1977.
    Richard E. Gerstein, State’s Atty., and Alan E. Krueger and George Volsky, Asst. State’s Attys., for appellant.
    Bierman, Sonnett, Beiley, Shohat & Osman, Black & Denaro, Miami, for appellees.
    Before BARKDULL, HAVERFIELD and HUBBART, JJ.
   PER CURIAM.

Both of these appeals ultimately question the correctness of the orders of two trial judges, in effect holding that in order to be convicted of the crime of involuntary sexual battery pursuant to Section 794.011, Florida Statutes (1975) it is necessary that a defendant be charged with intent to attain sexual gratification and, necessarily, to be convicted thereof evidence would have to be introduced supporting such a charge.

In Case No. 76-763, the State of Florida appeals from an order dismissing Count I of the Information charging the defendant, Alonso, with the commission of sexual battery in violation of Section 794.011, Florida Statutes (1975). In Case No. 76-1649, the State appeals from an order dismissing Counts I through IV of the Information against Barquet and West, charging them with sexual battery.

In Count I of the Information, Alonso was charged with having committed sexual battery in violation of Section 794.011, Florida Statutes (1975), in that Alonso falsely held himself out to be a duly licensed physician and performed a procedure to terminate the pregnancy of a fourteen-year-old girl, resulting in serious personal injury to her, for a fee of $100.00 or more. The State alleged that the object used to accomplish vaginal penetration was a surgical instrument; that the victim was over the age of eleven years; that Alonso used actual physical force, likely to cause serious personal injury; and that Alonso, without the victim’s intelligent knowing and voluntary consent, administered to the victim a narcotic anesthetic and other intoxicating substance which physically and mentally incapacitated the victim. Upon the defendant’s motion to dismiss, the court entered an order dismissing Count I on the ground that the Information failed to state an offense of sexual battery under Section 794.011, Florida Statutes (1975).

In Case No. 76-1649, the State charged Barquet with four counts of sexual battery, and charged West with aiding and abetting Barquet in the commission of each sexual battery. It was alleged that Barquet penetrated the vagina of the victim named; that he did so with a surgical instrument, and that he did so without the intelligent knowing and voluntary consent of the victim. The trial judge in this cause indicated that because the Information charged in the words of the statute, he was going to hold it charged a crime. However, by stipulation of counsel, the motion was treated as a sworn motion to dismiss with a stipulated set of facts, so that the trial court could rule on the law as it applied to the undisputed facts of the case. On that basis, the court withdrew its prior ruling.

On August 6,1976, the trial court entered a written order dismissing each of the four counts. The court ruled that: (1) the sexual battery statute requires a showing that some degree of sexual gratification must attend the act of vaginal penetration; (2) the charge does not lie where the offense is perpetrated through fraud in the inducement; and (3) the statute is not applicable to acts of penetration perpetrated by unlicensed persons falsely holding themselves out as duly licensed medical doctors, because the statute exempts acts done for bond fide medical purposes.

The only ground we are interested in, because of our ultimate holding in this opinion, is ground 1 of the judge’s order. We affirm the actions of the trial judges in the entry of the orders here under review. Section 794.011, Florida Statutes (1975) was enacted in 1974 by the Legislature, to replace Florida’s previous rape statutes. At common law, there was no rape unless unlawful intercourse was engaged in without the woman’s consent. R. Perkins, Criminal Law, 152 (2nd ed. 1969). Rape being a felony, it was a crime malum in se, requiring the specific intent on the part of an accused to penetrate the vaginal opening with his sexual organ.

Florida’s former rape statute, Section 794.01, Florida Statutes (1973), though derogating the common law, did not eliminate the requirement of a specific intent to penetrate the oral, anal, or vaginal orifices with the penis. The Supreme Court of Florida, in an opinion holding constitutional the application of this statute to nonconsensual anal intercourse with a male, cited the following definitive language with approval:

“ ‘Our research reveals that sodomy has been held to include forcible carnal knowledge of the victim. * * * Carnal knowledge includes sexual intercourse, but that is not all that carnal knowledge includes. Sodomy may not be committed without experiencing carnal knowledge of the victim. * * * The word “carnal” is derived from the Latin word meaning flesh. The Webster’s Collegiate Dictionary defines it variously as fleshly; sensual; related to the body as the manifestation of man’s lower nature; implies connection with flesh; implies habitual indulgence in sensations and desires having a physical origin. The word pertains to the body, its passions and its appetites. Carnal pertains to the body and includes carnal knowledge of the body of another person by either natural or unnatural copulation. * * * Carnal knowledge includes more than sexual intercourse. It extends to the gratification of animal appetites or lusts upon the body of another. * * * It means bodily connections. * * *
“ ‘In our view, the body and mind of a victim of a forcible sexual assault is no less outraged because the penetration by the assailant occurred in the anal orifice — as in the instant case — of in the oral orifice— * * * —rather than in the vaginal orifice. In either case, it is a gross invasion of the privacy of one’s body which cannot be tolerated by a civilized society.
* * Accordingly, we hold that any forcible penetration by a man’s sexual organ into any bodily orifice of another against the latter’s will constitutes forcible carnal knowledge of the victim and upon conviction thereof is punishable under Section 794.01, Florida Statutes, F.S.A.
“ ‘Moreover, we hold that males are entitled to the same protection from degrading ravishment and sexual assaults, regardless of the orifice involved, as are females. It is no longer consonant with constitutional principles of equal protection to continue a criminal sanction against sexual assaults on females and not provide the same criminal sanction where such assaults are made on males.’ ” [emphasis added] Washington v. State, 302 So.2d 401, (Fla.1974), quoting Brinson v. State, 278 So.2d 317 (Fla. 1st D.C.A. 1973).

Although the rape statute has been replaced with the sexual battery law, this quoted language elucidates the policies underpinning Section 794.011, Florida Statutes (1975). The Involuntary Sexual Battery Law is the “criminal sanction against sexual assaults”. It differs from the former rape statute only insofar as it protects all aspects of sexual privacy. The new statute recognizes that not only should males as well as females be afforded protection against nonconsensual invasions of sexual privacy, but that such invasions may occur by objects other than a penis.

The fundamental protection afforded by the Involuntary Sexual Battery Law is against invasion of sexual privacy. The root of the word “sexual”, “sex”, is defined as:

“1. Either of two divisions of organisms distinguished respectively as male or female.
2. The sum of the structural, functional, and behavioral peculiarities of living beings that subserve reproduction by two interacting parents and distinguish males and females.
3. Sexually motivated phenomena or behavior.” Webster’s Seventh New Collegiate Dictionary, 795 (1967).
“The distinctive quality which differentiates between male and female.”
Taber’s Cyclopedic Medical Dictionary, S-30 (10th ed. 1965).
“The sum of the peculiarities of structure and function that distinguish a male from a female organism; the character of being male or female.” Black’s Law Dictionary, 1541 (4th rev. ed. 1968).

An examination of these medical, legal, and lay authorities indicates “sexual privacy” refers to the right to be let alone in those areas based upon distinctions of the male and female human being.

To construe the Involuntary Sexual Battery Law as requiring less than an intent by the actor to attain sexual arousal or gratification ignores the plain meaning of the words of the statute. Primarily, the statute is concerned with criminal sexual conduct and invasions of sexual privacy. The Involuntary Sexual Battery Law broadens the previously limited scope of included sexual conduct, yet the actions must arise from the connection of the sexual reproductive organs and the psychosexual motivation and orientation of the actor. Though, under the new statute, use of the actor’s sexual organ in the assault is not a necessary element, the psychosexual motivational connection must be present or the intent or the mens rea is lacking. Moreover, if this element was abolished, innocent conduct not intended by the Legislature to be included would be made criminal.

That abortions and other termination of pregnancy procedures lack the requisite intent by the action is exceedingly clear. The State of Florida does not contend that the accused in this case acted so as to obtain sexual arousal or gratification for themselves, using the alleged medical procedures as subterfuges such a goal. Rather, it is contended that the accused lacked proper licensure to engage in the practice of medicine and nursing. There is a complete absence of contentions tending to show an invasion of any alleged victim’s sexual privacy, within the scope of Section 794.011, Florida Statutes (1975).

Therefore, the orders under review be and they are hereby affirmed.

Affirmed.

HUBBART, Judge

(concurring).

I concur in the court’s able opinion in this case and would add a few additional comments. By its decision, the court has held that an essential element of the crime of sexual battery under Section 794.011, Florida Statutes (1975), is a criminal intent to obtain sexual gratification, which element the state must allege and prove. I would make this perfectly clear for the future guidance of the bench and bar in prosecutions of this nature.

The statute, including its very title, is pervasive with terms which show an unmistakable legislative purpose to protect people against sexual, not non-sexual attacks. As the court’s opinion makes clear, it extends the former crime of rape to more broadly protect people in their sexual privacy and imposes severe penalties for an invasion thereof. The statute, however, does not in plain and unmistakable terms so radically change the crime of rape as to do away with its sexual underpinnings and convert the same into a non-sexual attack in which a criminal sexual intent is irrelevant. If the legislature intended such a result, as urged by the state, it certainly did not do so under the plain terms of the statute.

The Florida Supreme Court in Watson v. Stone, 148 Fla. 516, 4 So.2d 700 (1941), states the controlling law in interpreting this statute:

“Penal laws should be strictly construed . . In the construction of penal statutes, if there is any doubt as to its meaning, the Court should resolve the doubt in favor of the citizen. Any doubt or ambiguity in the provisions of criminal statutes are to be construed in favor of the citizen, life and liberty. Statutes prescribing punishment and penalties should not be extended further than their terms reasonably justify. If doubt exists as to the construction of a penal statute, it is the duty of the court to resolve such doubt in favor of the citizen and against the state. Accused must be plainly and unmistakably within the criminal statute to justify conviction.” Id. at 701 [citations omitted]

A strict construction of the sexual battery statute clearly compels the conclusion that non-sexual attacks fail to plainly and unmistakably come within the ambit of the statute. Resolving all doubts in favor of the accused, a criminal intent to obtain sexual gratification is implicit in the statute.

This conclusion is further supported by a well-settled canon of statutory construction that the courts should not construe a statute to reach an absurd and unreasonable result. Johnson v. State, 91 So.2d 185, 191 (Fla.1956); State v. Babun, 233 So.2d 171 (Fla. 3d DCA 1970). To accept the state’s contention that the statute covers any unprivileged penetration .of the vaginal or anal cavities with any object, would mean that good-natured horseplay in which a person penetrates the anal cavity of another with a finger or other object would be a sexual battery. A scuffle in which a person’s vaginal or anal cavity was penetrated with a finger or other object would also be a sexual battery. And an abortion induced by fraud would be a sexual battery.

In my view, these results are unreasonable, if not absurd under the plain terms of the statute. I cannot believe that the legislature intended to proscribe such acts under this statute, particularly with its severe penalties. It seems clear that these acts do not come within the ambit of the statute unless they are accompanied by a requisite sexual intent.

I, therefore, join in the opinion and judgment of the court affirming the dismissal of the sexual battery counts in the informa-tions herein.

      . The Information also charged the defendant, Alonso, with: One count of unlawful practice of medicine and one count of grand larceny by false pretenses.

      . The Information also charged the defendants with unlawful practice of nursing and medicine, unlawful termination of pregnancy, and grand larceny by false pretenses.

      . 794.011 Sexual Battery.—
      (1)Definitions:
      (a) “Offender” means a person accused of a sexual offense.

      (b) “Mentally defective” means that a person suffers from a mental disease or defect which renders that person temporarily or permanently incapable of appraising the nature of his or her conduct.
      (c) “Mentally incapacitated” means that a person is rendered temporarily incapable of appraising or controlling his or her conduct due to the influence of a narcotic, anesthetic, or intoxicating substance administered to that person without his or her consent or due to any other act committed upon that person without his or her consent.
      (d) “Physically helpless” means that a person is unconscious, asleep, or for any other reason is physically unable to communicate unwillingness to an act.

      (e) “Serious personal injury” means great bodily harm or pain, permanent disability, or permanent disfigurement.
      (f) “Sexual battery ” means oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object; however, sexual battery shall not include acts done for bond fide medical purposes.
      (g) “Victim” means the person alleging to have been the object of a sexual offense.

      (h) “Consent” means intelligent, knowing, and voluntary consent and shall not be construed to include coerced submission.

      (2) A person 18 years of age or older who commits sexual battery upon, or injures the sexual organs of, a person 11 years of age or younger in an attempt to commit sexual battery upon said person commits a capital felony punishable as provided in §§ 775.082 and 921.-141. If the offender is under the age of 18, that person shall be guilty of a life felony, punishable as provided in § 775.082, § 775.083, or § 775.084.
      (3) A person who commits sexual battery upon a person over the age of 11 years, without that person’s consent, and in the process thereof uses or threatens to use a deadly weapon or uses actual physical force likely to cause serious personal injury shall be guilty of a life felony, punishable as provided in § 775.082, § 775.083, or § 775.084.
      (4) A person who commits sexual battery upon a person over the age of 11 years, without that person’s consent, under any of the following circumstances shall be guilty of a felony of the first degree, punishable as provided in § 775.-082, § 775.083, or § 775.084:

        (a) When the victim is physically helpless to resist.

      (b) When the offender coerces the victim to submit by threatening to use force or violence likely to cause serious personal injury on the victim, and the victim reasonably believes that the offender has the present ability to execute these threats.
      (c) When the offender coerces the victim to submit by threatening to retaliate against the victim, or any other person, and the victim reasonably believes that the offender has the ability to execute these threats in the future. “Retaliation,” as used in this section, includes, but is not limited to, threats of future physical punishment, kidnapping, false imprisonment or forcible confinement, or extortion.
      (d) When the offender, without the prior knowledge or consent of the victim, administers or has knowledge of someone else administering to the victim any narcotic, anesthetic, or other intoxicating substance which mentally or physically incapacitates the victim.
      (e) When the victim is older than 11 but less than 18 years of age and the offender is in a position of familial, custodial, or official authority over the victim and uses this authority to coerce the victim to submit.

      (f) When the victim is mentally defective and the offender has reason to believe this or has actual knowledge of this fact.
      (5) A person who commits sexual battery upon a person over the age of 11 years, without that person’s consent, and in the process thereof uses physical force and violence not likely to cause serious personal injury shall be guilty of a felony of the second degree, punishable as provided in § 775.082, § 775.083, or § 775.084. Section 794.011 Florida Statutes (1975). [Emphasis supplied].


author: DANAHY, PAUL W., Associate Judge.

text:
    ALLINGTON TOWERS NORTH, INC., a Florida Corporation, Appellant, v. Daniel TEICH, Appellee.
    No. 75-711.
    District Court of Appeal of Florida, Fourth District.
    April 1, 1977.
    Allan M. Rubin, Glickstein, Rubin & Ru-binchik, Hollywood, for appellant.
    Mark S. Roth, Miami Beach, for appellee.
   DANAHY, PAUL W., Associate Judge.

Appellant/Defendant in the trial court was a condominium developer and Appel-lee/Plaintiff was the contract purchaser of one of its condominium units. This is an appeal from an Order and Final Judgment; (1) granting purchaser’s Motion for Summary Judgment and awarding him, with costs, his $4,450 Purchase Agreement deposit; (2) denying the developer’s Motion for Summary Judgment, and; (3) granting developer’s Motion to Strike the purchaser’s claim for attorneys’ fees and punitive damages.

In its two points on appeal, Appellant urges us to reverse because the trial court misapplied the evidence and the law in granting a Summary Judgment, and also because it was error for the trial court to fail to strike one of Appellee’s supporting affidavits which did not comport with Fla.R.Civ.P. 1.510(e).

Because we agree with Appellant’s first point, and now reverse, it is unnecessary to reach the second.

In their Purchase Agreement, the purchaser agreed to buy the condominium unit from the developer for $44,500. The purchaser paid the deposit and, among other things, agreed to assume a mortgage of $33,375 at closing. The Agreement, in pertinent part, provided:

“1. Purchaser agrees to purchase an apartment for the price set forth above. The purchase price shall be paid to Seller by: a).b).c) By agreeing to assume and pay a first mortgage upon the apartment in the amount indicated above, which mortgage shall require the pre-payment of principal together with interest at the prevailing rate at the time of closing in equal monthly installments over a period of at least twenty (20) years; Purchaser agrees to furnish the financing institution with a credit report and any other information deemed necessary by the financing institution, to approve the financial ability of the Purchaser; . . . ” (Emphasis ours)

The purchaser applied for the mortgage in the amount described in the agreement to Chase Federal Savings and Loan Association. The application was accompanied by certain financial data which did not include copies of his income tax returns. The record reflects considerable communication between Chase’s loan officer, loan committee and the Purchaser, the result of which was the approval by Chase for a loan in a lesser amount than that requested by Purchaser. Chase’s reasons at that point for approving the lesser amount were that the Purchaser refused, after requested to do so, to provide copies of his income tax returns, and because of its restrictive loan policy on non-owner occupied units. But in its communications with the Purchaser, Chase agreed to waive the non-owner occupied requirement and to continue to process the application for the amount requested by the Purchaser.

In the trial court, the Purchaser contended that he tried and failed to obtain the mortgage loan in the requested amount, and that, therefore, there was a failure of the condition precedent to his liability to the developer. The developer’s position was that the Purchaser failed, under the terms of the Agreement, to comply with Chase’s requests for copies of his income tax returns, and that thereby the Purchaser made it impossible for Chase to act favorably on the requested amount. The developer additionally urges the applicability of the general proposition recited by us in such cases as Bruce Builders, Inc. v. Goodwin, 317 So.2d 868 (Fla. 4th DCA 1975), that a Purchaser in default cannot recover from the seller money paid in part performance of an exec-utory contract.

A study of the recent history of Florida’s Summary Judgment Rule discloses the continuing difficulty our courts have in applying it. See NOTE, The Procedural Mirage: Post-Hall Summary Judgment Law in Florida, 27 U.Fla.L.Rev. 729 (1975).

In Fletcher Co. v. Melroe Manufacturing Co., 261 So.2d 191 (Fla. 1st DCA 1972), the law is correctly stated as follows:

“When reviewing the propriety of a summary judgment, the classic inquiry is whether or not there remains any genuine issue of material fact. If issues of fact exist and the slightest doubt remains, a summary judgment cannot be granted. And, of course, all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party.”

After reviewing the pleadings, interrogatories, admissions and depositions, the trial court found the Purchaser carried his burden of conclusively showing that no genuine issue of material fact remained. Reviewing the record on appeal most favorably to the developer, as we must, the question of whether the purchaser was in default of Paragraph 1(c) of the Agreement by not supplying the requested copies of his income tax returns to Chase, does pose a genuine issue of material fact which must be resolved by the trier of fact and not by way of Summary Judgment.

REVERSED and REMANDED for further proceedings.

DOWNEY and ALDERMAN, JJ., concur.


author: COBB, WARREN H., Associate Judge.

text:
    John E. SCHWAB and St. Paul Fire and Marine Insurance Company, a Foreign Corporation, Appellants, v. Leonard J. TOLLEY et al., Appellees.
    No. 75-1398.
    District Court of Appeal of Florida, Fourth District.
    April 1, 1977.
    Rehearing Denied May 16, 1977.

      Edna L. Caruso, of Howell, Kirby, Montgomery, D’Aiuto and Dean, West Palm Beach, for appellants.
    Phillips & Babbitt, and Larry Klein, West Palm Beach, for appellees.
   COBB, WARREN H., Associate Judge.

This appeal emanates from a medical malpractice action brought against the appellant, Dr. Schwab, a neurosurgeon, and his insurance carrier. Said appellants hereinafter will be referred to as the defendants, their status at trial.

The facts show that the primary plaintiff below, Dr. Tolley, a 54 year old dentist, was seriously injured in an automobile collision on December 24, 1972. He was treated in the hospital by Dr. Schwab, who diagnosed a swollen cord and spondylosis in the cervical area.

After various tests and discussion with Dr. Tolley and his family, Dr. Schwab performed a cervical decompressive laminecto-my on January 12, 1973 to relieve pressure on the spinal cord with the hope of alleviating loss of neurological function. The operation was not successful; subsequently, Dr. Tolley has been essentially without function and quadriplegic.

The action against Dr. Schwab alleged negligence in performing an operation that was contraindicated, in the manner in which he performed the surgery and a mye-logram on Dr. Tolley, and in Dr. Schwab’s failure to fully inform the plaintiff of the attendant risks.

A verdict was returned by the jury in favor of Dr. Tolley in the amount of $1,325,-000 and in favor of Mrs. Tolley, his wife, in the amount of $360,000. They hereinafter will be referred to as the plaintiffs.

The defendants strenuously urge numerous errors at the trial level. The major thrust at oral argument was their contention that “Dr. Tolley failed to carry the burden of proving future loss of earning capacity with reasonable certainty.” They argue that it was error for the trial court to allow the introduction of evidence relating to Dr. Tolley’s past earnings and to future loss of earning capacity as a dentist since no expert witness could testify, based on reasonable medical certainty, that Dr. Tolley would have been able to return to the practice of dentistry absent the surgery, given the serious paralysis resulting from the collision.

The plaintiffs contend, on the other hand, that the issue is one of apportionment, not the certainty that future damage will occur.

Although there was great conflict in the medical testimony at trial, that which was most favorable to plaintiffs in regard to the above point was given by Drs. Fager, Suss-man, and Guttman.

Dr. Fager testified about Dr. Tolley’s condition as follows:

“Now how much better he could have been as time went on I think it is hard for anyone to say. Given this particular situation had he not had surgery I think there’s every likelihood that he would gave gained some more function, certainly on the left side and probably a good bit more function in the right leg, as one compares his neurological situation with other cases that I’ve seen over the years . . . That (being bedridden or wheelchair bound) is the worst that could have happened. I think that he could have improved enough to be up and around. If I think in terms of patients that I’ve seen like him, I don’t know that he ever would have returned to dentistry.”

The question was asked of Dr. Fager by defense counsel:

“Q. Doctor, it’s not possible to tell what Dr. Tolley’s actual progress would have been had this operation not been performed, is it?
“A. It’s not possible to tell how he would have progressed from that point on. I think that’s speculative.”

The above answer forecloses any right of the trial court or this Court on appeal to find, as a matter of law, that Dr. Tolley could not have returned to dentistry absent the surgery. It presented a factual determination for the jury as to whether or not apportionment was possible.

Dr. Fager later testified:

“If I had to say, based upon my experience with similar cases, I’d say that he’d get around with a cane . . . dragging one leg.”

Dr. Sussman testified:

“I believe he would have walked (given proper medical care and not given the care that he was). I don’t have any doubt about that . . . Now, I have never seen a case that stopped (improvement) at two weeks permanently. He had to improve more than that and chances are he would have made major further recovery because when you start getting the toes back, you, as a clinical guide we always know that other muscles are going to come back . So, I feel it is certain, in some fashion he would, at the worst, have walked. I would have expected much more than that. I would expect he would walk very well and I would doubt that he would, that he would need mechanical devices finally to walk
“I believe that (the ability of bladder and bowels) would come back.
“I can’t say that (he would have returned to dentistry). I believe that he would have gotten, since he had such excellent use of his left hand, I believe that that use of that hand would have been assured him. Of course, he was a right-handed man. Now, on the right side, at the time he became paralyzed, all he had was his thumb. But, he, the chart does indicate that he had position sense in that hand. Now, whether this dentist would retrain himself so he could use a good left hand or a hand that might be just a thumb, you wouldn’t want to speculate. But, now, if that hand did improve further and he just got the index finger back — and I think there is a fair chance of that — I wouldn’t know why he might not attempt to go back to dentistry. But, that is, that remains a question.”

Dr. Guttman testified:

“. . .1 have no doubt that if that improvement had not been arrested by that operation, that that man (Dr. Tolley) could have walked and used his left hand at least completely, and also partly his right arm.”

In response to a query as to Dr. Tolley’s progress in the absence of the surgery, Dr. Guttman said:

“This is not speculation at all. Having regard to the continuous improvement he showed before the operation it can be assumed with a great degree of certainty that that man would have improved to such an extent that he would have been able to walk and use his left upper and lower extremity fully, and at least to a great extent also the right. Whether he would have got a complete recovery of the finger muscles on the right, that I could not say . (W)hether he would have been able to take up his job as a dental surgeon, I would not know, but there is at least a possibility.”

It is the position of the defendant that, since prospective damage must be proved with reasonable certainty, as set forth in Grainger v. Fuller, 72 Fla. 57, 72 So. 462 (1916), and the plaintiffs presented no testimony based on reasonable certainty that Dr. Tolley would have been able to return to dentistry absent the surgery, this Court should grant a new trial.

This argument is misleading. It totally disregards the fact that here we are not talking about the certainty that future damage will occur (which is uncontrovert-ed) but its causation.

It has long been the rule in Florida that causation does not have to be proved with reasonable medical certainty or probability. Jacksonville Electric Co. v. Cubbage, 58 Fla. 287, 51 So.139 (1910); Southern States Power Co. v. Clark, 118 Fla. 521, 159 So. 881 (1935); Eli Witt Cigar & Tobacco v. Matatics, 55 So.2d 549 (Fla. 1951); and Nationwide Mutual Ins. Co. v. Griffin, 222 So.2d 754 (Fla. 1st DCA 1969). Grainger, relied on by defendants, did not concern two traumas and the difficulties of distinguishing their causal effects. It dealt with the wording of a jury instruction to limit recovery for future pain to that pain reasonably certain to occur.

It is an absolute certainty in the instant case that, as a result of either the automobile collision or the surgery or both, Dr. Tolley is a permanent quadriplegic who can never practice dentistry again. No one quarrels with this.

There was testimony at trial, as shown above, that apportionment of the causation of his ultimate injury between the two traumas (the collision and the surgery) was speculative, even impossible. There was ample testimony from which the jury properly could conclude that there was aggravation by the surgery of an existing physical condition caused by the collision, and that they could not determine what portion of Dr. Tolley’s complete debility at time of trial resulted from the aggravation and could not say whether that ultimate condition (quadriplegia) would have existed apart from the aggravating injury. Therefore, Dr. Schwab can be held liable for the entire condition. This is exactly the situation contemplated by Florida Standard Jury Instruction 6.2(b) on causation.

The defendants’ argument on appeal would be tenable only if the evidence, construed most favorably for the plaintiffs, established a negative: that Dr. Tolley could not have practiced dentistry again as a result of the collision irrespective of the surgery.

The evidence favorable to plaintiff in this regard, as shown by the testimony of Drs. Fager, Sussman, and Guttman, did not establish that negative as a matter of law. Thus the factual dispute was properly submitted to the jury.

Although this rule seems harsh, it is predicated on a sound principle: the prevention of a subsequent wrongdoer from escaping responsibility where his conduct contributed to the creation of the situation in which the problems of apportionment arose. Washewich v. LeFave, 248 So.2d 670 at 673 (Fla. 4th DCA 1971).

The cases cited by defendants — Fuller, supra; Baggett v. Davis, 169 So. 372 (Fla.1936); and Stores v. Hussey, 100 So.2d 649 (Fla. 1st DCA 1958) — deal with the necessity of showing that future damage will occur with reasonable certainty. They do not deal with the apportionment between an original condition and its aggravation where the damage is certain — which is the case before us.

The rule was set forth by this Court in Washewich v. LeFave, supra:

“. . . where the evidence reveals two successive accidents, and the defendant is only responsible for the second accident, the burden is on the plaintiff to prove to the extent reasonably possible what injuries were proximately caused by each of the two accidents. The jury should be instructed to make an apportionment of the damages as between the two accidents insofar as it may be reasonably possible to do so, but if an apportionment is impossible, the jury may be authorized to charge the defendant with all damages flowing from the entire injury.” See also, Wise v. Carter 119 So.2d 40 (Fla. 1st DCA 1960).

The case of University Community Hospital v. Martin, 328 So.2d 858 (Fla. 2nd DCA 1976) is relied upon by defendants. In that case the appellate court found that, although the issue of apportionment was properly submitted to the jury, “the jury erred because we believe from a study of the evidence that it was patent that the aggravation of Martin’s condition caused by such injuries sustained at the Hospital could be distinguished from the condition which resulted from his original injuries.”

In Martin the Court said: “No medical evidence demonstrated any possibility that Martin would recover from the problems inflicted by the original gunshot wound.” (emphasis added).

Martin, therefore, is distinguished from the present case where there was testimony received without objection that Dr. Tolley possibly could have returned to dentistry absent the second trauma.

The Martin opinion expressly recognizes the rule set forth in Standard Jury Instruction 6.2(b) and Washewich, but held it inapplicable because “all the evidence indicated Martin would remain a paraplegic for the rest of his life regardless of the fall” (the second trauma in that ease).

Thus, it was held as a matter of law that additional medical bills and loss of earning capacity attributable to paraplegia were not attributable to the fall. Consequently, the appellate court held that a verdict of $350,-000 shocked its conscience since the injury was limited to some undefined loss of sensation to a preexisting paraplegic. The case was remanded for a remittitur or new trial at the option of the trial judge.

Clearly that case could not have had the same result on appeal if there had been medical evidence at trial that possibly Martin would have recovered from the gunshot wound so that he could have resumed his prior occupation except for the fall in the hospital. Then, the jury could have determined that apportionment could not be made due to the fault of the tortfeasor causing the second injury, who then would be liable for the entire condition.

Two other cases relied upon by defendants are equally distinguishable, even supportive of plaintiffs’ position.

In E. R. Squibb, Inc. v. Jordan, 254 So.2d 17 (Fla. 1st DCA 1971) it was held to be error for the trial court to instruct the jury on apportionment when the plaintiff’s witness, the treating physician, allocated fixed mathematical percentages to the original and to the subsequent injury — 15% and 5% respectively. “There was no other evidence which tended to indicate that the use of ‘Bo-plant’ (the second injury) was responsible for more than 5 percent of Mrs. Jordan’s disability. There being no evidence from which the jury could find an aggravation of the preexisting condition in excess of the 5 percent as testified by Dr. Davis, it was error to submit this issue to the jury and instruct them that they could make allowance in the verdict for the entire condition.” See E. R. Squibb, Inc., supra, at page 20.

In the instant case, there was abundant evidence that the extent of the aggravation was extensive and indefinite. See testimony of Drs. Fager, Sussman, and Guttman, quoted above.

The recent case of Security Mutual Casualty Company v. Bleemer, 327 So.2d 885 (Fla. 3d DCA 1976), cited by counsel for defendants, is totally irrelevant to the issue before us. In that case the plaintiff was injured in two automobile accidents several months apart. She contended at joint trial of the cases that the damages could not be apportioned. During trial she settled with the defendants involved in the first collision for $7,000. The trial continued against the defendants in collision number two, and at the end the trial court, without objection, gave the apportionment instruction. But the jury was not instructed to specify whether their verdict was for all or apportioned damages. The verdict was $10,000. The defendant wanted a $7,000 set-off— which they would be entitled to if the verdict was for full, rather than apportioned, damages. There was no way to determine which approach the jury had used in arriving at the $10,000 since their' verdict form did not provide this information. Faced with this dilemma, the appellate court found fundamental error in the trial court’s not obtaining this information by interrogatory verdict from the jury, so that the propriety of the set-off could be properly determined.

In other words, the trial court failed to submit an essential question to the jury without which there was inadequate information to compute the judgment. Therefore, the final judgment was affirmed as to liability and reversed for new trial as to damages.

The Bleemer case is relevant only in cases involving the computation of a set-off.

On this appeal no issue of set-off has been raised. For all we know, there has been no settlement or litigation involving the collision.

The defendants also argue that the trial court was in error in instructing the jury that if they could not determine what portion of Dr. Tolley’s condition resulted from aggravation or if it could not be said that the condition would have existed apart from the injury, then they should make allowance for the entire condition in their verdict.

In addition to the discussion under the first point, we observe in regard to this point that there is nothing before this Court to show whether or not the jury did, in fact, apportion damages.

There was no inherent reason here, as in Security Mutual Casualty Company v. Bleemer, supra, for the trial court to require the jury to designate whether or not its award was based on apportionment or total damages. No set-off was involved here.

The defendants apparently did not request an interrogatory verdict in this regard.

Therefore, the defendants have not shown that the jury did allocate all of Tol-ley’s damages to them. That burden is on them on appeal.

The defendants also challenge the sufficiency of the following instruction given by the trial court:

“You are instructed that the duty of a physician in connection with the diagnosis and treatment of a patient is that the physician must use the ordinary skills and means and methods that are recognized as necessary and which are customarily followed in the particular type of case according to the standards of those who are qualified by training and experience to perform similar services in the community or in a similar community and the failure of a physician to do so would constitute negligence. However, physicians are allowed a wide range in the exercise of their judgment and discretion. They fulfill their obligation if they use methods approved by others of their profession who are reasonably skilled.
A doctor who practices a specialty is bound to exercise the special degree of care, skill and knowledge possessed by members of his profession who specialize in the treatment of similar conditions in similar localities, having a regard for the present state of medical and scientific knowledge at the time of the treatment.”

This instruction is substantially the same as that now recommended by the Florida Supreme Court in Florida Standard Jury Instructions (see Instruction 4.2, pages 1 and 2). The instruction sought by defendant in regard to “respectable minority” or “two schools of thought”, supported by California case law, was adequately covered in the trial court’s instruction.

The case of Baldor v. Rogers, 81 So.2d 658 (Fla. 1954) does not support the defendants’ requested instruction in any way. In Baldor the Florida Supreme Court concluded that the trial jury was justified in finding the defendant doctor negligent. The doctor kept treating a lip cancer with injections (which represented one of many schools of thought at that time) and, despite continued spread of the cancer and the ineffectiveness of the treatment, known as the Koch method, he failed to inform the patient, at the earliest possible time, that the conservative treatment was not working and the only prospect for recovery lay with other more drastic treatments. This case did not deal with the propriety vel non of an instruction such as that requested by defendants in the instant case.

The defendants’ contention that the trial court should have given their “honest error in judgment” instruction is contrary to the committee recommendation in its comments on Standard Jury Instruction 4.2(a). The committee states that the charge is “confusing, difficult of application and argumentative.”

The defendants’ other related charges which were rejected are analogous to a charge that “negligence may not be inferred from the mere happening of an accident alone”, which the committee recommends against as argumentative and negative. See comment No. 1 on Standard Instruction 4.1, and comment No. 2 in regard to “unavoidable accidents.”

The defendants further contend that the testimony of Dr. Guttman was inadmissible because he was not familiar with the standard of care in Palm Beach County or similar communities and did not adhere to the correct “standard of care” definition in rendering expert opinion.

It is clear from reading the testimony of Dr. Guttman that he professes a familiarity with the standard of care for neurosurgery in the United States; there is no basic difference in that standard in Palm Beach County and elsewhere in the United States. This is a matter of common sense as well as case precedent.

It is true that Guttman defined the standard of care at one point in his testimony as being the viewpoint of “a leading neurosurgeon.” Dr. Schwab, of course, cannot be held to more than the skill and diligence of the average practitioner in the same or a similar community. Couch v. Hutchinson, 135 So.2d 18 (Fla. 2d DCA 1961). Several times in his testimony Gutt-man referred to “leading and responsible neurosurgeons.” When Guttman was asked to talk about average, as opposed to leading, neurosurgeons, he seemingly could not comprehend the word average as applied to neurosurgery. To him the opposite of a leading and responsible neurosurgeon was one “with no experience or very little experience” and not familiar with the “modern concept of treatment.” The latter is “certainly under standard,” according to Gutt-man.

In other words, to Guttman there are “leading and responsible neurosurgeons” and those under standard through lack of experience. He conceived of no other categories. Guttman’s standard, although couched in pompous terms, is nothing more than the ordinary standard of care since his alternative to a “leading, responsible neurosurgeon” is an incompetent one. His testimony, taken in its entirety, clearly reveals this.

The defendants objected to the trial court striking a portion of the Guttman deposition testimony wherein he said that, as far as he knew, he did not believe that one Dr. Becker, a defense witness acknowledged as having a good reputation, would advocate early surgical intervention in the instant case. The defendants argued that this should have been admitted to impeach Guttman.

What Guttman thought Becker would think is irrelevant and inadmissible. A witness may not be impeached by proof of statements as to immaterial matters. Whaley v. State, 157 Fla. 593, 26 So.2d 656.

The proper method for impeaching Guttman’s opinion was by the introduction of contrary opinion based on the same facts, not to elicit from one expert what he thinks of another. Ecker v. National Roofing of Miami, Inc., 201 So.2d 586 (Fla. 3d DCA 1967).

Moreover, the opinion stated by Guttman as to early surgical intervention was not actually controverted by Becker or anyone else. Guttman’s opinion, as set forth in the record, was that, given an incomplete lesion of the spinal cord, “there is no immediate or even early urgency to operate in the time when the patient has improved in his neurological condition.” (emphasis added).

Nothing in Dr. Becker’s testimony challenges this medical opinion. In fact, all of defendants’ expert witnesses agreed with this opinion. The difference between Gutt-man and Becker in this case was the factual determination as to Tolley’s improvement between the collision and surgery. Gutt-man found significant and continuing improvement; Becker did not. The factual dispute between them was fully presented to the jury.

The jury heard the opinions of each Gutt-man and Becker in this case, and had ample opportunity to weigh one against the other without the witnesses being asked to usurp the jury function by evaluating each other.

The defendants urge that the jury instruction on informed consent was improper in that it stated that disclosure was to be made to Leonard J. Tolley, whereas, under the evidence in this case, the instruction should have apprised the jury that disclosure also could have been made to the family of Dr. Tolley.

At the trial the defendants did not ask for the instruction they now request and, in fact, expressly told the trial court that the charge on informed consent should be given.

The record does not reveal any reservation of objections as now asserted by defendants on appeal. There was certainly no approval by the trial court of any agreement that any and all objections were reserved for appeal whether or not they were brought to the attention of the trial court, even by implication or indirection. It would be unreasonable to expect this of any trial court, and turn instruction conferences into games of ambush. The Court stated that it was understood that each side would have an objection to charges given which were not requested by that party or failure to give requested charges. Here, both sides agreed to an informed consent charge and worked on the phraseology of it. No objection as to the giving of such a charge was stated. The informed consent charge was as much that of the defendants as of the plaintiffs. Indeed, defense counsel at trial was the primary contributor to the phraseology of the instruction that the defendants now assail on appeal. If the charge was erroneous, the error was induced, at least in part, by counsel for the defendants.

In the recent case of Klepper v. J. C. Penney Co., Inc., Fla.App. 4th, 340 So.2d 1170, 1976, the Court stated:

“. . . (T)rial counsel has a special duty to his client and to the trial judge to read the instructions as the judge recites them and to aid in the prevention of the kind of error which occurred in the case sub judice by objection to or pointing out the error.”

That same principle is applicable to the preparation, as well as to the reading, of instructions.

The remaining points on appeal are without merit.

Accordingly, the judgment of the lower court is AFFIRMED.

ALDERMAN, J., and SMITH, ROBERT, Associate Judge, concur.


author: DAUKSCH, Judge.

text:
    Carl Allen McDONALD, a/k/a Allan Carl McDonald, Appellant, v. STATE of Florida, Appellee.
    No. 76-97.
    District Court of Appeal of Florida, Fourth District.
    April 1, 1977.
    Richard L. Jorandby, Public Defender, Craig S. Barnard, Asst. Public Defender, and Joseph Atterbury, Legal Intern, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Harry M. Hipler, Asst. Atty. Gen., West Palm Beach, for appellee.
   DAUKSCH, Judge.

This matter is here for our review for the second time. In McDonald v. State, 321 So.2d 453 (Fla. 4th DCA 1975) quite a bit of judicial labor went into this matter and an even greater amount of valuable attorney’s time was expended in setting out the law of this case. Notwithstanding all that, we have again for review the Judgments and sentencing of the Appellant to jail for three counts of contempt. This court said before that Appellant was only liable for one contempt. In order to prevent any possible future misunderstanding the Judgments and sentences below are reversed. The jail time which the Defendant has already served in this matter shall be credited to the time he is serving on another sentence given upon a revocation of his probation.

LETTS, J., and WEAVER, SIDNEY M., Associate Judge, concur.


author: PER CURIAM.

text:
    Richard Duane OSBORN, Appellant, v. STATE of Florida, Appellee.
    No. 76-445.
    District Court of Appeal of Florida, Fourth District.
    April 1, 1977.

      Richard L. Jorandby, Public Defender, and Frank B. Kessler and Tatjana Ostapoff, 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.
   PER CURIAM.

This is an appeal from a conviction of aggravated assault. Two points have been argued, but only one has merit.

Appellant specifically requested that the trial judge charge the jury on attempted aggravated assault. The triál court refused this request, on the theory that no such crime existed. This was reversible error. State v. White, 324 So.2d 630 (Fla.1975); Irving v. State, 337 So.2d 1014 (Fla.2d DCA 1976).

REVERSED and REMANDED for a new trial.

ALDERMAN, ANSTEAD and LETTS, JJ., concur.


text:
    Mildred C. WEST, Appellant, v. Howard WEST, Appellee.
    No. 76-605.
    District Court of Appeal of Florida, Fourth District.
    April 1, 1977.
    John T. Christiansen of Sales & Chris-tiansen, Palm Beach, for appellant.
    William J. Swink of Swink, Swink & Swink, Miami, for appellee.
   PER CURIAM.

Our reading of the record in this cause leads us to conclude that the trial court erred in awarding rehabilitative alimony to the 57 year old wife who had not worked during the 35 year marriage between the parties. There is no evidence in the record which demonstrates the potential or actual capacity for self support by the wife. On authority of Reback v. Reback, 296 So.2d 541 (Fla. 3d DCA 1974); and Yohem v. Yohem, 324 So.2d 160 (Fla. 4th DCA 1975), we reverse the final judgment insofar as the award of rehabilitative alimony is concerned and remand the cause with directions that the trial court enter an award for permanent alimony in such amount as the court shall determine to be appropriate based upon the current needs of the wife and the husband’s ability to pay.

The judgment is affirmed in all other respects.

AFFIRMED IN PART; REVERSED IN PART; and remanded with directions.

DOWNEY and ANSTEAD, JJ., and FO-GLE, HARRY W., Associate Judge, concur.


text:
    FIRST FUNDING CORPORATION, Appellant, v. SHATTUCK, ROETHER, FRAILEY AND WILSON, INC., a Florida Corporation, Appellee.
    No. 76-781.
    District Court of Appeal of Florida, Fourth District.
    April 1, 1977.
    Daniel D. Peschio, Jr., Pompano Beach, for. appellant.
    John L. Graham, Jr., Graham, Markel & Scott, Orlando, for appellee.
   PER CURIAM.

The parties to this appeal having filed a Joint Stipulation For Dismissal of Appeal, which amounts to confession of error, the judgment appealed from is reversed and the cause is remanded to the trial court for further proceedings.

REVERSED AND REMANDED.

DOWNEY and ANSTEAD, JJ., and FO-GLE, HARRY W., Associate Judge, concur.


text:
    Jose S. LOPEZ, Appellant, v. STATE of Florida, Appellee.
    No. 76-852.
    District Court of Appeal of Florida, Fourth District.
    April 1, 1977.

      Howard M. Zeidwig, Fort Lauderdale, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Our opinion filed March 11, 1977, is withdrawn and this opinion is filed in place thereof.

This is an appeal from a conviction of aggravated assault. The defendant, Jose S. Lopez, who was tried upon a charge of aggravated battery, claims that the evidence did not support the conviction of aggravated assault. We agree and reverse.

To sustain a charge of aggravated assault there must be proof that the victim was in fear of imminent bodily injury. State v. White, 324 So.2d 630 (Fla.1975). There was no proof of this necessary element offered at the trial of this case. Accordingly, the judgment and sentence are reversed. Since the evidence at trial established that appellant was guilty of battery, a lesser offense necessarily included in the charge upon which the appellant went to trial, we remand this cause to the trial court with directions to enter a judgment and sentence for battery, a first degree misdemeanor. See Clark v. State, 337 So.2d 798 (Fla.1976).

REVERSED AND REMANDED, with directions.

DOWNEY and ANSTEAD, JJ., and FO-GLE, HARRY W., Associate Judge, concur.


author: PER CURIAM. PER CURIAM.

text:
    Cleveland J. BARLOW, Appellant, v. STATE of Florida, Appellee.
    No. BB-437.
    District Court of Appeal of Florida, First District.
    April 7, 1977.
    On Rehearing May 13, 1977.
    John W. Tanner and Raymond A. Haas of Gosney, Haas, Cameron & Parsons, Daytona Beach, for appellant.

      Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellee.
   PER CURIAM.

The appellant, brings this appeal from the circuit court’s order denying a writ of prohibition challenging that the appellant had not been brought to trial within 90 days as required by Fla.R.Crim.P. 8.191(a)(1). The appellant was arrested on several charges of selling obscene materials, in violation of Florida Statute 847.011 (1975), each charge a misdemeanor. Although the appellant asserts that speedy trial time begins with each of his several arrests, we conceive that the speedy trial time began on November 24, 1975, when all charges against the appellant were transferred at his request from municipal court to county court in order to provide him a jury trial. On Monday, February 23, 1976, 91 days after the cause was transferred to the county court, the appellant filed a motion for discharge alleging violation of the speedy trial rule.

The trial court was correct in denying the appellant’s motion for discharge. Although the motion was filed 91 days after the cause was transferred to county court, the 90th day was a Sunday. As we stated in State ex rel. Williams v. Bruce, 327 So.2d 51, 52 (Fla. 1st DCA 1976), Fla.Rule Crim.P. 3.040 applies. The last date of the speedy .trial period was on Monday, February 23, 1976, the date the appellant was scheduled for trial and the date he filed the motion for discharge. See also Griffith v. State, 299 So.2d 618 (Fla. 2nd DCA 1974).

AFFIRMED.

McCORD, Acting C. J., DREW, E. HARRIS, and MASON, ERNEST E. (Retired), Associate Judges, concur.

ON PETITION FOR REHEARING

PER CURIAM.

The appellant has brought to our attention that of the four counts against the appellant, three of them were transferred to the county court on November 24,. 1975, but the fourth count, Count I, was transferred to the county court on November 17, 1975. In that respect, therefore, this Court was in error in asserting:

“Although the Appellant asserts that speedy trial time begins with each of his several arrests, we conceive that the speedy trial time began on November 24, 1975, when a 11 charges against the Appellant were transferred at his request from municipal court to county court in order to provide him a jury trial. . . . ” (Emphasis added). ’

As to Count I, therefore, the speedy trial time had expired when, on February 23, 1976, the cause was brought to trial. As the state concedes, Count I against the appellant should be discharged.

The Petition for Rehearing is granted for the purpose of discharging the appellant as to Count I, in all other respects our opinion of April 7, 1977 remains unchanged.

McCORD, Acting C. J., and DREW, E. HARRIS, and MASON, ERNEST E., Associate Judges, concur.


author: ANSTEAD, Judge.

text:
    STATE of Florida ex rel. Abbott M. HERRING, as State Attorney for the Eighteenth Judicial Circuit of the State of Florida, Appellant, v. Alma C. MURDOCK and Hal Russ, Appellees.
    No. 75-1270.
    District Court of Appeal of Florida, Fourth District.
    April 7, 1977.

      John C. Adkins, Asst. State Atty., Titus-ville, for appellant County of Brevard.
    Jere E. Lober, of Lovering, Pound & Lo-ber, Rockledge, for appellee Alma C. Mur-dock.
    Stephen Y. Rosin, Consumer Counsel, Tallahassee, and Rodney L. Tennyson, Sp. Asst. Atty. Gen., West Palm Beach, for Atty. Gen. for the State of Florida, Robert L. Shevin, as amicus.
   ANSTEAD, Judge.

This is an appeal from an order dismissing a complaint filed by the State Attorney seeking injunctive relief against the appel-lees, Alma C. Murdock and Hal Russ, under the provisions of Part II of Chapter 501 of the Florida Statutes.

The complaint specifically relied on the authority granted in Section 501.207(1)(b) “to enjoin a supplier who ... is violating . . . this part.” A “supplier” is defined in Section 501.203(3), Part II, as someone involved with “consumer transactions.” A “consumer transaction” is defined as:

. a sale, lease, assignment, award by chance, or other disposition of an item of goods, a consumer service, or an intangible . . . ,

The acts of the appellees sought to be enjoined consisted of the alleged false advertising for sale of real estate lots. The trial court, in granting the motion to dismiss, simply found that the sale of real estate lots did not come within the definition of a consumer transaction as set out above. We agree.

The appellant has correctly pointed out that all “unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce” are made unlawful by Chapter 501. Such broad language would appear to include real estate sales, especially in light of the legislative directive to consider decisions of the Federal Trade Commission in construing the provisions of Chapter 501. However, we cannot ignore the specific language used by the legislature in Section 501.207(1)(b) restricting its application to a “supplier” as is defined in the statute itself. Perhaps the legislature intended to include real estate sales as a “consumer transaction”; but such sales are not included in the definition of “consumer transaction” explicitly stated in the act; and we cannot properly make such an addition to the definition.

We note that other provisions of Chapter 501 provide for actions against alleged violators of the act without restricting the actions to “suppliers,” so the appellant is not without relief. However, the complaint involved here limited the relief sought to that provided in Section 501.-207(l)(b); and, accordingly, the order of the trial court is affirmed.

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

      . Section 501.203(1), Florida Statutes.

      . Section 501.204(1), Florida Statutes.

      . Section 501.204(2), Florida Statutes.

      . For example see Sections 501.207(1)(a) and 501.208.


author: LETTS, Judge.

text:
    INTERNATIONAL PILING, INC., a Florida Corporation, Appellant, v. AMERICAN NATIONAL FIRE INSURANCE COMPANY, Appellee.
    No. 76-622.
    District Court of Appeal of Florida, Fourth District.
    April 7, 1977.
    Thomas F. Gustafson, Gerald M. Walsh & Associates, P. A., Fort Lauderdale, for appellant.
    Albert P. Massey, III, Pyszka, Kessler, Adams & Solomon, Fort Lauderdale, for appellee.
   LETTS, Judge.

This appeal comes on before us from an order of the trial court granting a motion to dismiss with prejudice.

We agree with the trial judge.

The appellant in this case is a corporate employer which procured insurance from the appellee insurance company to provide coverage for workmen’s compensation claims. While the policy was in effect, according to the corporate employer, an employee was injured and he sought relief in the Industrial Claims Court. Apparently, for some reason not explained in the record, the insurance company denied that coverage for this injured employee existed, whereupon the corporate employer filed suit for a declaratory decree for a determination as to coverage, in the Circuit Court. In the complaint filed, the allegation was made that the Judge of Industrial Claims was preparing to rule on the question of the existence of the coverage and that said Industrial Claims Court had no jurisdiction to do so. The trial judge disagreed and dismissed the case with prejudice, resulting in this appeal.

The basic issue before us is whether the trial court properly ruled that the question could be resolved by the Industrial Claims Court on the basis of statute. Appellant asserts that Florida Statute § 440.42(3) (1967) defines and limits the judicial authority of the Industrial Claims Court, and interprets it as requiring a controversy between two or more carriers involved in a claim for workmen’s compensation. The Statute states:

(3) When there is any controversy as to which of two (2) or more carriers is liable for the discharge of the obligations and duties of one (1) or more employers with respect to a claim for compensation, remedial treatment or other benefits under this chapter, the commission shall have jurisdiction to adjudicate such controversy; and if one (1) of the carriers voluntarily or in compliance with a compensation order makes payments in discharge of such liability and it is finally determined that another carrier is liable for all or any part of such obligations and duties with respect to such claim, the carrier which had made payments either voluntarily or in compliance with a compensation order shall be entitled to reimbursement from the carrier finally determined liable, and the commission shall have jurisdiction to order such reimbursement; provided, however, that if the carrier finally determined liable can demonstrate that it has been prejudiced by lack of knowledge or notice of its potential liability, such reimbursement shall be only with respect to payments made after it had knowledge or notice of its potential liability.

Accordingly, as this case involves a dispute between only one carrier and an employer, the corporate employee contends that the Industrial Claims Court does not have jurisdiction over the situation sub judice under § 440.42(3).

It is also argued that Florida Statute 440.41 (1967) provides no basis for jurisdiction of the Industrial Claims Court. This latter section permits the substitution of an insurance carrier for an employer, who is not self-insured, so that the carrier discharges the obligations of an employer in a workmen’s compensation claim. Appellant reasons that if 440.42(3) does not apply to the instant case, then 440.41 cannot be employed to give the Industrial Claims Court jurisdiction. We do not agree.

As the insurance company indicates, there is case law interpreting both statutes which illustrate circumstances in which the Industrial Claims Court has jurisdiction. In Blumberg v. American Fire and Casualty Company, 51 So.2d 182 (Fla.1951), it was held that where the intent of the parties to an insurance claim was unclear, the claims court had the authority to interpret the policy under § 440.41.

It is admitted that the question raised on appeal in this case does not seem to have been met, head on, at the appellate level, but the Supreme Court of Florida discussed the question of jurisdiction of the Industrial Claims Court in Fireman’s Fund Insurance Company v. Rich, 220 So.2d 369 (Fla.1969), where the question of jurisdiction was specifically in dispute, even although-two carriers were involved. The factual situation in Fireman’s Fund involved an interpretation of an expired insurance policy to determine if the carrier remained liable by estoppel or under an oral renewal binder. The carrier argued that such a decision was beyond the scope of any power vested in the claims court by statute. Holding that the matter could be resolved by the claims court rather than a court of equity or law, the Court stated that:

... it would appear to be within the peculiar competence of an industrial judge to decide the existence or non-existence of insurance coverage when relevant to a workmen’s compensation problem. The industrial judges are all lawyers who now devote full time to the duties of their office. Fla.Stat. § 440.45 (1967), F.S.A. They develop an expertise that equips them to handle effectively matters relating to workmen’s compensation. This is so even though in a different posture similar problems might properly be referred to a court of equity or law. Id. at 371-72.

The same Court also said the following:

Fla.Stat. § 440.42(3) (1967) F.S.A. allows the Industrial Commission to settle a dispute between two or more contesting insurance carriers. IT WOULD BE IMPOSSIBLE TO SETTLE SUCH A CONFLICT WITHOUT THE POWER ALSO TO DECIDE, IF NECESSARY, THAT AN INSURANCE CONTRACT BETWEEN EMPLOYER AND CARRIER IS IN EFFECT. Bituminous Casualty Corporation et al. v. Clements, 148 Fla. 175, 3 So.2d 865 (1941).

Id. at 371 (emphasis supplied).

The emphasized quote above would appear to us to be dispositive of the case now before us. Accordingly, we cannot find that the trial judge below erred in declining to take jurisdiction, although we do not mean to suggest by this opinion that the Circuit Court might not be a competent forum in such a dispute.

AFFIRMED.

ALDERMAN, J., and HAROLD R. CLARK, Associate Judge, concur.


text:
    Harold M. RUSSELL, d/b/a O’Kissimmee Fish Camp, Appellant, v. STATE of Florida DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, HEALTH PROGRAM OFFICE, ex rel. E. Charlton PRATHER, M. D., etc., Appellees.
    No. 76-774.
    District Court of Appeal of Florida, Fourth District.
    April 7, 1977.
    David M. Conlon, Okeechobee, for appellant.
    Barbara Dell McPherson, Jacksonville, for State of Florida Department of Health and Rehabilitative Services.
   PER CURIAM.

Upon review of the record on appeal and consideration of the briefs and argument of counsel for the respective parties, we are of the opinion that the order of the trial court bearing date March 12,1976 should be modified by deleting therefrom the words “and a permanent.” In all other respects the order on appeal is affirmed, and the cause is remanded with directions to grant appellant leave to answer the complaint, as amended, and for further proceedings consistent thereafter in accordance with the Florida Rules of Civil Procedure.

Affirmed as modified, and remanded with directions.

CROSS, ALDERMAN and DAUKSCH, JJ., concur.


author: DOWNEY, Judge.

text:
    Annalee EL SHORAFA and Waleed El Shorafa, her husband, Appellants, v. Sherburn RUPRECHT et al., Appellees.
    No. 76-903.
    District Court of Appeal of Florida, Fourth District.
    April 7, 1977.

      David B. King of Law Offices of Peed & King, Orlando, for appellants.
    Richard W. Bates, Orlando, for Air Flow Heating and Air Conditioning, Inc.
   DOWNEY, Judge.

This appeal involves the applicability of the rule which exonerates a contractor from liability for negligence for injuries to third parties occurring after a contractor has completed his work and turned the project over to an owner who accepts the work.

In Slavin v. Kay, 108 So.2d 462 (Fla.1959), the Supreme Court of Florida considered the respective liability of an owner and contractor for injuries to a third person for negligence of the contractor in the construction of the improvement. The court held that, if the offending defect was latent and unknown to the owner, the contractor remained liable, even after the project was completed and accepted by the owner. The rationale of that holding is that the contractor’s negligence is the proximate cause of the injury. The Slavin court held, however, that if the defect were patent or if the owner learned of it and did not rectify the condition then the owner’s negligence is the proximate cause of the injury rendering the owner liable and exonerating the contractor.

Appellant urges this court to depart from “the anachronistic” holding of Slavin because it was decided eighteen years ago, and “the modern trend” is to equate the liability of contractors with that of manufacturers in products liability cases. However, while conceding the persuasiveness of appellant’s argument, we do not perceive it to be our function to attempt a departure from rules announced by the Supreme Court of Florida, though they be several decades old. See Hoffman v. Jones, 280 So.2d 431 (Fla.1973). In addition, the holding of the Slavin case has been followed, or at least recognized, in a number of more recent cases, such as Mai Kai, Inc. v. Colucci, 205 So.2d 291 (Fla.1968); Green Springs, Inc. v. Calvera, 239 So.2d 264 (Fla.1970); Hutchings v. Harry, 242 So.2d 153 (Fla. 3d DCA 1971); Forte Towers South, Inc. v. Hill York Sales Corp., 312 So.2d 512 (Fla. 3d DCA 1975). As recently as June 1976, the First District Court of Appeal stated in Roman Spa, Inc. v. Lubell, 334 So.2d 298, 299-300 (Fla. 1st DCA 1976):

“When an owner accepts work from a contractor, that upon reasonable inspection would reveal a dangerous defect, he has the duty to make the work safe. Thereafter, if a third person is injured, it is the owner’s failure to perform his duty which is the proximate cause of the injury. However, the owner cannot be held liable ‘. . . where the dangerous condition is one which is not discoverable by inspection’. Slavin v. Kay, 108 So.2d 462 (Fla.1959).”

Accordingly, we decline to depart from the rule laid down by the Supreme Court of Florida in Slavin v. Kay, supra, and we affirm the summary judgment appealed from.

AFFIRMED.

CROSS and LETTS, JJ., concur.


text:
    Otis K. HAYES, Appellant, v. STATE of Florida, Appellee.
    No. 76-1108.
    District Court of Appeal of Florida, Fourth District.
    April 7, 1977.
    Richard L. Jorandby, Public Defender, Frank B. Kessler, Asst. Public Defender and James K. Green, Legal Intern, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony C. Musto, Asst. Atty. Gen., West Palm Beach, for appellee.
   DAUKSCH, Judge.

This matter is before us after an Order below was entered revoking the Appellant’s probation.

It was alleged the Appellant violated the terms of his probation by violating the law — possessing heroin.

The standard of proof in a probation violation hearing is different than that at trial. Laboratory reports are admissable without the chemist’s testimony. Singletary v. State, 290 So.2d 116 (Fla. 4th DCA 1974). The Appellant’s urging that the revocation was based on hearsay is not borne out by the transcript of testimony. The officers saw the Appellant purchase the foil packets, searched the Appellant and seized the packets, ran a positive presumptive test on the contents of the packet and had the presumption confirmed by a lab report from a chemist. The court was eminently correct in revoking the Appellant’s probation.

AFFIRMED.

ALDERMAN, J., concurs.

MAGER, C. J., concurs in conclusion only.


author: DAUKSCH, Judge. LETTS, Judge,

text:
    James F. PERRIN and Barbara Jan Perrin, Appellants, v. SAM KAYE, INC., Appellee.
    No. 76-1208.
    District Court of Appeal of Florida, Fourth District.
    April 7, 1977.
    J. Brian Brennan, of Brennan, Brown & Avery, West Palm Beach, for appellants.
    Howard M. Antevil, Palm Beach, and Frank J. McKeown, Jr., of Cone, Owen, Wagner, Nugent, Johnson & McKeown, West Palm Beach, for appellee.
   DAUKSCH, Judge.

This is an appeal from a summary judgment entered against the Appellants in a suit brought by the Appellee to recover a real estate commission.

The Perrins, as sellers, and Sam Kaye, Inc., as real estate broker, entered into an exclusive listing agreement. In return for the Appellee’s promise to use its best efforts to find a buyer the Appellants agreed to list their home exclusively with the Ap-pellee for three months and thereafter until revoked by ten days’ written notice.

It is alleged Appellants executed an exclusive right of sale with another broker prior to the effective revocation of the exclusive listing agreement with the Appellee. The property was sold thru the second broker and the Appellee sued for its commission.

In their answer, the Appellants denied the statement in the complaint that the Appellee used its best efforts to find a buyer and otherwise performed all the conditions of the exclusive listing agreement. Appellee moved for summary judgment without offering any affidavits in support of its allegation of full performance. The trial court granted the motion and judgment was entered against the Appellants. Since factual question of failure of consideration remains the trial court was precluded from the entry of the summary judgment and erred in doing so. A.B.G. Investment, Inc. v. Selden, Jr., 336 So.2d 444 (Fla. 4th DCA 1976); Cook v. Martin, 330 So.2d 498 (Fla. 4th DCA 1976).

REVERSED and REMANDED.

ALDERMAN, J., concurs.

LETTS, J., concurs specially, with opinion.

LETTS, Judge,

specially concurring.

Without in any way disagreeing with Judge Dauksch, I would add that the answer and counterclaim filed by the property owner, alleged with crystal clarity that the property owners did not have any dealings with any other broker until after the expiration of the period covered by the exclusive right of sale agreement. Moreover, the date of the eventual sales contract, procured through the efforts of another broker, is alleged to be dated after said expiration date. Further, the property owner has inclyided an affidavit to confirm all of the foregoing.

It is true that the requests for admissions filed by the broker (and which were admitted) might have been construed by the trial judge to be an admission by the property owner that the original exclusive listing agreement was still in force on the date when the eventual contract of sale was entered into; however, said admissions are really only confirming what the exclusive listing contract purported to say under its own terms, and such is not an admission that the contract remained in force after the expiration date claimed by the property owner.

There is also a question of mixed law and fact as to what the parties intended under the original exclusive right of sale agreement, the relevant printed portion of which stated:

I hereby give [the broker] for a period of _months from this date (and thereafter until this agreement is revoked by ten day’s written notice delivered to you) the sole right and authority to find a purchaser .

Into the blank space in the above quoted passage has been inserted the arabic numeral “3”, and the property owner is claiming that it was a three month exclusive which he gave. The broker, on the other hand, is claiming that the exclusive listing was forever until revoked in writing. It would be inappropriate at this juncture to rule on that, but suffice it to say that it is not clear to me that this contract should be interpreted to continue in perpetuity, and the wording is not susceptible to a summary judgment in favor of the broker in the light of the property owner’s affidavit to the contrary.

As to the question of whether or not a broker may file his lis pendens to assist him collect a brokers commission, in the light of § 475.42(1)(j) Florida Statutes (1975), such is moot in this case, as appellants themselves admit. Accordingly, we need not pass on this question, except to note that if appellants want their pound of flesh in this regard, as indeed they appear to, then an ideal forum in this instance would be the Florida Real Estate Commission.