text:
    COLONNADES, INC., a Florida Corporation, Petitioner, v. FLORIDA DEPARTMENT OF COMMERCE, DIVISION OF EMPLOYMENT SECURITY, and Mary Ann M. McKee, Respondents.
    No. GG-486.
    District Court of Appeal of Florida, First District.
    April 5, 1978.

      Gayle Smith Swedmark of Madigan, Parker, Gatlin, Truett, Swedmark & Skelding, Tallahassee, for petitioner.
    Edward F. Beers, Jr., R. L. Smith, Jacksonville, Kenneth H. Hart, Tallahassee, and Steven H. Parton, West Palm Beach, for respondents.
   BOYER, Judge.

Colonnades, Inc., the' owner and operator of a hotel, here seeks review of an order of the Industrial Relations Commission affirming a decision of an appeals referee holding that Colonnades’ appeal of a claims determination relating to the discharge of its employee, McKee, was not timely filed.

The only facts which are relevant to our decision are those relating to mailing or delivery of the notice required by F.S. 443.-07(3)(a) and Colonnades’ response.

F.S. 443.07(3)(a) provides:

“An initial determination upon a claim filed * * * shall be made promptly by an examiner * * *. The claimant, his most recent employing unit, and all employers whose accounts would be charged with benefits pursuant to such determination, shall be promptly notified of such initial determination, and such determination shall be final unless within ten days after the mailing of such notices to the parties’ last known addresses, or in the absence of such mailing, within ten days after the delivery of such notice, appeal or written request for reconsideration is filed by the claimant or other party entitled to such notice.”

The record reveals a claim for benefits filed by McKee, certain proceedings thereon and a form letter from a claims adjudicator (presumably the “examiner'designated by the division” as provided for in the Statute) dated February 3, 1976, addressed to Colonnades, Inc. and captioned with the name of the claimant (McKee) and her social security number. The letter advised the addressee that the adjudicator could not determine that McKee’s discharge was for misconduct and that, accordingly, Colonnades’ employment record was properly chargeable with its pro-rata share of benefits which may be paid on the claim. The letter concluded with the paragraph:

“If you disagree with this determination, you may request reconsideration or a hearing before an appeals referee. This may be done by writing this office within ten days from the date of this letter, explaining the basis for your protest.”

There is no stamp mark, certificate nor other indication on the letter to indicate the date of mailing, delivery nor receipt. As above recited, the letter is dated February 3, 1976.

The record next reveals a letter dated February 17, 1976 on Colonnades letterhead signed by its President addressed to the Florida Department of Commerce, captioned in the same manner as the letter from the adjudicator which recites, inter alia,

“I have your February 3d letter and violently disagree with your determination. I request reconsideration of a hearing before the Appeals Referee.”

That letter was received by the addressee on February 19, 1976.

In due course a hearing was held as to the timeliness of Colonnades’ request for reconsideration at which documentary evidence was received and testimony taken. The appeals referee determined that Colonnades’ request was untimely and the Commission affirmed.

Although Colonnades, in its brief, presents numerous points they all relate to the single issue of timeliness. First, it calls to our attention the paucity of evidence as to the date of mailing of the letter from the claims adjudicator. Second, it contends that even assuming that letter to have been mailed on the date that the letter is dated (February 3,1976) nevertheless the date for its response was extended by Fla.R.Civ.P. 1.090.

Our review of the record reveals no “hard evidence” as to the date of mailing. As already recited, the letter is dated February 3, 1976. Although the adjudicator testified as to the customary procedure in her office relating to the preparation, typing and mailing of “determination letters” neither she nor any other witness testified that in fact the letter to Colonnades was mailed on the date that it bore. There is no procedure for date stamping outgoing mail nor of maintaining any log nor record of outgoing mail. The President of Colonnades testified without equivocation that the letter from the adjudicator was received by him on February 17,1976 and that he responded by letter on that same date. The testimony was recorded mechanically rather than stenographically and the record is replete with skips and gaps. It does reveal, however, that the Colonnades’ President testified that its mail was obtained from the Post Office by a Colonnades’ employee, testifying further:

“anything or pertaining to the hotel is sent to me immediately by messenger as fast as they get it * * * I got it within two hours of the time it was delivered.”

In summary, the evidence reveals that the adjudicator’s letter was dated February 3, 1976 and received by Colonnades on the 17th. Although such letters are customarily dated on the day that they are typed and mailed on the same day, there is no evidence to support mailing other than custom.

We have examined Martorano v. Florida Industrial Commission, 160 So.2d 744 (Fla. 3rd DCA 1963) but find that it does not help resolve the issues here presented. Although that case involved chapter 443 Florida Statutes and related to the timeliness of an appeal to the District Court of Appeal, that decision turned upon an interpretation of the specific wording of a particular statute, as it then existed, which allowed a party sixty days from the date of notice within which to take an appeal. The court there distinguished cases from other jurisdictions interpreting statutes allowing a specific time after mailing. It will be noted that the statute involved sub judice employs the terminology “after the mailing of such notices”. That opinion is significant, however, for the proposition of applicability of Fla.R.Civ.P. 1.090(e). The court there held, after quoting the predecessor to the last mentioned rule:

“Consistent with the foregoing rules, we conclude in the case presented that notice of the order, which under the statute marks the commencement of the 60 day period for review, is the day of actual notice where actual notice is provided, but that when such notice is given by mailing, three' days should be allowed, making the date of notice, and therefore the beginning of the 60 day period for certiorari, three days after the date of mailing.” (emphasis the Courts: 160 So.2d at page 746)

Neither do we find aid in Miami Dolphins, Ltd. v. Florida Dept. of Commerce, 252 So.2d 396 (Fla.App. 3 1971) nor Florida State University v. Jenkins, 323 So.2d 597 (Fla.App. 1 1975). In the Dolphins case the court held nothing more than that the employer should “be afforded an opportunity to present a defense if its failure to respond to the notice within the ten day period is shown to be due to non-delivery of such notice.” In the Jenkins’ case, in which we acknowledged and distinguished the Dolphins case, there was no question concerning either mailing, delivery by the Post Office Department, nor receipt by the employer. Neither was there any issue as to the applicability of Fla.R.Civ.P. 1.090 or any similar rule of law.

In Florida Dept. of H. & R. Serv. v. Industrial Rel. Com’n, 297 So.2d 337 (Fla. App. 1 1974) this court had occasion to consider a factually similar case involving the same statute (F.S. 443.07) but a different section thereof (F.S. 443.07(4)(c)). However the wording of that section is substantially the same as that involved sub judice in that the appeal there allowed is required to be taken “within ten days after the [date of] mailing of such notices”. In that case there was considerably more evidence of the mailing of the decision than appears in the record sub judice. In that opinion we recited

“ * * * The decision is dated March 29, 1973 and there appears in the lower left-hand corner of the last page thereof the following words: ‘Date mailed to all parties: April 13, 1973’. On April 13, 1973 there was prepared a ‘Notice of Decision of Appeals Referee’ signed by the referee, reciting the name and address of the employer * * * In the lower left-hand corner of that notice appear two lines. Beneath the first line are the words ‘Date of mailing this decision’ and above the line appears the date April 13, 1973. Beneath the second line appears the words ‘Last date for filing appeal to Industrial Relations Commission’ and above that line appears the date April 23, 1973.” (297 So.2d 338)

In that case the notice of appeal was dated April 27 and was filed with the commission on April 30. The notice of appeal recited that the decision of the appeals referee and the notice thereof, although containing a recitation that same was mailed to the employer on April 13,1973, in truth and in fact was not received by the employer until April 25, 1973, two days after the lapsing of the ten day period provided for appeal. We recited in our opinion that “No affidavit nor other proof was filed to substantiate mailing on April 13. The only evidence of such mailing are the recitations appearing on the face of the documents as herein-above recited.” Upon that state of the record we further recited “there was no proof before respondent [commission] of actual mailing of the referees’ decision and notice on April 13, 1973.” We held in that case that “should such mailing be not proven by a preponderance of the evidence then the order of dismissal should be vacated and set aside and further proceedings should be had in accordance with law.” (297 So.2d at page 339)

By no stretch of the imagination can it be said that the record before us, which is the same record before the Commission, the referee and the adjudicator, is sufficient to establish proof by a preponderance of the evidence that the adjudicator’s letter was mailed on February 3, 1976.

This court, in at least two opinions authored by Judge Smith, has suggested, even urged, governmental agencies to adopt procedures to take some of the guess work out of the fact or event of mailing. In Fox v. South Florida Regional Planning Council, 327 So.2d 56 (Fla.App. 1 1976) the court stated:

“If our view of the statute has the unfortunate effect of subjecting parties in local government proceedings to ‘the vagaries of clerical happenstance and postal miscarriage,’ as Fox’s lawyer aptly puts it, we can at least suggest, and we do, that local governments minimize the uncertainty of the rendition dates of their order by appending to them appropriate certificates of the transmittal dates.” (327 So.2d at page 59)

And again in Murphy v. State, Dept. of Admin., Div. of Ret., 342 So.2d 147 (Fla.App. 1 1977) the same author, citing Fox v. South Florida Regional Planning Council, supra, wrote:

“In order to assure that affected parties have notice of their actions and that judicial review will be promptly sought, if at all, agencies should take care to comply with Section 120.59(4) immediately upon adopting a final order, and they should preserve in writing proof of service, as by appending to their orders appropriate certificates of the date of delivery or mailing.” (342 So.2d 147 at page 148)

The fact of mailing becomes of crucial importance when a time period is commenced by mailing as distinguished from delivery or receipt, particularly when such a short period as ten days is provided.

Having determined that the preponderance of the evidence does not support the fact • of mailing on February 3 it is not necessary that we address the constitutional issue of due process which was the subject of an opinion of our sister court of the Third District under factually similar circumstances. (State ex rel. Owra v. Florida Dept. of Commerce, 351 So.2d 769 (Fla.App. 3 1977)) That case is distinguishable in that there the party seeking relief never received the notice. From the standpoint of due process, however, there is little difference between receiving a notice on a date too late to respond and never receiving it at all. In each instance it is the fact of the date of mailing which is important.

Because of our holding with reference to the fact of mailing, as above recited, we find no occasion to address the balance of the issue, as to the applicability of Fla.R. Civ.P. 1.090 or any other rule of law relative to the allowance of three days for mailing or the effect of the last day of a prescribed period falling on a Saturday, Sunday or a legal holiday. (But see Fox v. South Florida Regional Planning Council, supra, and cases therein cited; Stockslager v. Daly Aluminum Products, Inc., 246 So.2d 97 (Fla.1971); State v. Brown, 308 So.2d 655 (Fla.App. 1 1975); Mick v. Florida State Bd. of Dentistry, 338 So.2d 1297 (Fla.App. 1 1976); Greer v. Estate of Smith, 342 So.2d 1007 (Fla.App. 4 1977), and Ludwig v. Glover, 357 So.2d 233 (Fla. 1st DCA 1978).)

In summary, we hold, as we at least inferred in Florida Dept. of H. & R. Serv. v. Industrial Rel. Com'n, supra, that since the proof fails to establish the date of mailing, Colonnades is entitled to the sequested hearing before an appeals referee as to the correctness of the ruling of the adjudicator that McKee’s discharge was not for misconduct and that, accordingly, Colonnades’ employment record was properly chargeable with its pro-rata share of benefits paid on McKee’s claim.

Remanded for further proceedings consistent herewith.

IT IS SO ORDERED.

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    John E. PEPPER, Appellant, v. LAWYERS TITLE INSURANCE CORP., Appellee.
    No. HH-188.
    District Court of Appeal of Florida, First District.
    April 7, 1978.
    Rehearing Denied April 28, 1978.
    O. E. Adams, Sr., Pensacola, for appellant.
    Louis K. Rosenbloum, of Levin, Warfield, Middlebrooks, Magie, Rosenbloum & Magie, Pensacola, for appellee.
   PER CURIAM.

The issue on this appeal is whether the trial court erred in dismissing with prejudice appellant’s third party complaint for damages incurred when appellee failed to discover the recording of an instrument known by appellant to exist. The facts are somewhat unique and apparently have not been addressed by a Florida appellate court. Appellant gave a contract for deed to a grantee for property he owned and the grantee recorded the contract. Subsequently the grantee defaulted in his payments and appellant found another buyer for the property. He gave this buyer a warranty deed and in connection with the sale employed appellee to abstract the record title to the property. Appellee did so but failed to discover the recording of the previous contract for sale. The transaction then proceeded to closing, at which time appellant informed the buyer of the previous contract but produced the unclouded abstract given by appellee. Later another abstracter hired by the buyer’s financing institution discovered the recorded contract for sale. The buyer sued appellant for rescission of the transaction, cancellation of the warranty deed, a refund of the monies paid plus attorney’s fees and costs. Appellant, forced into a settlement on this suit, then brought a third party complaint against appellee. After two amendments of this complaint the trial court dismissed it with prejudice.

Appellant bases his appeal from that dismissal on a citation of the general rule that an abstracter is liable in damages to its employer. 1 Fla.Jur., Abstracts of Title, § 2. Appellee contends that an abstracter is not liable for an omission of a document in an abstract where the person claiming damages has actual knowledge of the omitted document. It cites a New York case, Maggio v. Abstract Title & Mortgage Corp., 277 App.Div. 940, 98 N.Y.S.2d 1011 (1950), as authority for the proposition that knowledge of the omitted document in such a case precludes recovery because there can be no actual reliance on the abstract by a person who knows of the missing document.

We decline to adopt appellee’s argument and reverse. As pointed out by appellant’s counsel at oral argument, there is a fundamental distinction to be drawn between knowing about a previous transaction regarding property and knowing whether this transaction has been recorded (thereby creating a cloud on the title of the property). It is obvious that the very reason appellant employed appellee here was to tell him whether the contract for sale to his original grantee had been recorded. When appel-lee’s search revealed a clear title, appellant and his buyer did in fact rely on this representation in pursuing their transaction. The damages which resulted when the second abstracter discovered the recording of the contract and the buyer cancelled the sale were the product of appellant’s reliance on appellee to give him accurate information about the status of his property.

Appellant’s complaint against appellee did state a viable cause of action. The judgment is reversed and the cause remanded for trial.

MILLS, Acting C. J., and ERVIN and BOOTH, JJ., concur.


text:
    Nina Dawn VINES, Appellant, v. Doyle Eugene VINES, Appellee.
    No. 77-1247.
    District Court of Appeal of Florida, Second District.
    April 7, 1978.

      Patrick W. Skelton, Bay Area Legal Services, Inc., Tampa, for appellant.
    No appearance for appellee.
   PER CURIAM.

By this appeal the wife challenges a final judgment of dissolution of marriage in two respects; first, that portion of the final judgment awarding custody of the parties’ two minor children to the husband, and second, that portion of the final judgment finding the wife in contempt and fining her the sum of $100. We affirm as to the award of custody, but reverse the finding of contempt.

Insofar as the award of custody is concerned, our review of the record reveals that there was evidence, albeit sparse, of the fitness of each parent to have custody of the children. There is a dearth of evidence concerning the specific needs of the children, but we must assume that the trial judge based his decision on what he felt were the best interests and welfare of the children as well as the fitness of the parents. The evidence in this record contains a sufficient foundation to support the custody order of the trial judge. There is likewise sufficient evidence to support a custody order to the mother, and it may well be that any one of us sitting as a trier of fact would have so held. But as we have said before, it is not the function of this court to substitute its judgment for that of the trier of fact who concluded that the best interests of these children would be served by placement with their father. Wray v. Williams, 352 So.2d 152 (Fla. 2d DCA 1977).

The record here does not disclose that clear abuse of the trial judge’s discretion which is necessary to reverse the custody order and so that portion of the final judgment is affirmed.

The contempt finding, however, is clearly erroneous as a matter of law. The final judgment does not describe the allegedly contumacious conduct, but the record reveals that it consisted of the wife’s failure to appear in the trial court on the date and at the time the final hearing in this case was initially scheduled. (There was no subpoena, order, or other direction by the court requiring her attendance.) At that time the wife was living in Tennessee. Her attorney appeared at that hearing, though she did not. As it turned out, the husband was not prepared to proceed with the final hearing and it was rescheduled for a later date. The wife did appear at the final hearing as rescheduled and this exchange between her and the trial judge then occurred:

The Court: Why weren’t you here, Mrs. Vines?
Mrs. Vines: I didn’t have a way here or the money to get here.
The Court: That is contempt, to have a case set before a judge and not show up or call. I find you in contempt of court. I don’t know what I will do about it, but I find you in contempt right now.

The final judgment, entered eight days after the final hearing in chambers without notice to or the presence of the wife, contained only the following language regarding her contempt:

That this court finds the wife, Nina Dawn Vines, guilty of contempt and fines her $100 to be paid within thirty days of this order.

These scant proceedings show that the trial judge made no effort whatsoever to comply with the provisions of Fla.R. Crim.P. 3.830 or 3.840 governing the procedure to be followed by a judge with respect to direct or indirect criminal contempt. Because of the foregoing, we find no need to recite in detail the respects in which the trial judge failed to conform to either rule; suffice it to say that the rules were apparently ignored in their entirety. It is, of course, necessary that a judge follow these rules in all matters involving criminal contempt. Pugliese v. Pugliese, 347 So.2d 422 (Fla.1977).

The basic law concerning criminal contempt was expressed by the Supreme Court of Florida in Ex Parte Earman, 85 Fla. 297, 95 So. 755 (1923). There the court set forth the definition that “a criminal contempt is conduct that is directed against the authority and dignity of a court or of a judge acting judicially, as in unlawfully assailing or discrediting the authority or dignity of the court or judge, or in doing a duly forbidden act.” Clearly, resistance of or an interference with the lawful authority of the court or judge constitutes criminal contempt. Acts which obstruct, interrupt, prevent, or embarrass the administration of justice by the judge constitute contempt.

In determining whether conduct amounts to criminal contempt, the true test is whether the conduct interferes with or impugns the judicial function, not whether it causes a particular judge to feel aggrieved or vexed. Thus, the standard to be applied is objective, not subjective. Punishment for contempt of court is allowed to be imposed, not to satisfy an offended judge, but to vindicate the authority and dignity of the judicial office. Id.

Tested by these standards, the wife’s nonappearance at the final hearing as originally scheduled, standing alone, did not constitute criminal contempt. It is clear that, when a party to civil litigation fails to appear at trial, the trial judge may proceed with the trial in the absence of that party. Holt Industries, Inc. v. Airtronics International Corporation, 139 So.2d 731 (Fla. 3d DCA 1962); Ortiz v. Nicolaides, 196 So.2d 186 (Fla. 3d DCA 1967). While the nonappearing party faces jeopardy of substantive rights by making that choice, nonappearance of a party alone does not insult the trial judge, does not constitute a resistance of or interference with his lawful authority, nor does it interrupt or hinder judicial proceedings.

In matters of criminal contempt, it is well to bear in mind the statement in Ex Parte Earman, supra, that “[t]he courts and judges have, under constitutional government, inherent power by due course of law to appropriately punish by fine or imprisonment or otherwise, any conduct that in law constitutes an offense against the authority and dignity of a court or judicial officer in the performance of judicial functions.” (Emphasis added.) Thus, a criminal contempt citation cannot stand unless it meets three criteria. The conduct of the party must in law constitute contempt, the contempt proceedings must be “in due course of law,” and the punishment must be appropriate to the offense.

That portion of the judgment finding the wife in contempt fails to meet the first two of these criteria. (It is unnecessary, therefore, to decide whether the fine was excessive and inappropriate.) The language in the final judgment regarding the wife’s contempt is vacated and stricken.

Affirmed in part and reversed in part.

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

      . Rule 3.830. Direct Criminal Contempt
      A criminal contempt may be punished summarily if the court saw or heard the conduct constituting the contempt committed in the actual presence of the court. The judgment of guilt of contempt shall include a recital of those facts upon which the adjudication of guilt is based. Prior to the adjudication of guilt the judge shall inform the defendant of the accusation against him and inquire as to whether he has any cause to show why he should not be adjudged guilty of contempt by the Court and sentenced therefor. The defendant shall be given the opportunity to present evidence of excusing or mitigating circumstances. The judgment shall be signed by the judge and entered of record. Sentence shall be pronounced in open court.
      Rule 3.840. Indirect Criminal Contempt
      (a) Indirect (Constructive) Criminal Contempt. A criminal contempt except as provided in the preceding subsection concerning direct contempts, shall be prosecuted in the following manner:
      (1) Order to Show Cause. The judge, of his own motion or upon affidavit of any person having knowledge of the facts, may issue and sign an order directed to the defendant, stating the essential facts constituting the criminal contempt charged and requiring him to appear before the court to show cause why he should not be held in contempt of court. The order shall specify the time and place of the hearing, with a reasonable time allowed for preparation of the defense after service of the order on the defendant.
      (2) Motions; Answer. The defendant, personally or by counsel, may move to dismiss the order to show cause, move for a statement of particulars or answers such order by way of explanation or defense. All motions and the answer shall be in writing unless specified otherwise by the judge. A defendant’s omission to file motions or answer shall not be deemed as an admission of guilt of the contempt charged.
      (3) Order of Arrest; Bail. The judge may issue an order of arrest of the defendant if the judge has reason to believe the defendant will not appear in response to the order to show cause. The defendant shall be admitted to bail in the manner provided by law in criminal cases.
      (4) Arraignment; Hearing. The defendant may be arraigned at the time of the hearing, or prior thereto upon his request. A hearing to determine the guilt or innocence of the defendant shall follow a plea of not guilty. The judge may conduct a hearing without assistance of counsel or may be assisted by the prosecuting attorney or by an attorney appointed for that purpose. The defendant is entitled to be represented by counsel, have compulsory process for the attendance of witnesses, and may testify in his own defense.
      All issues of law and fact shall be heard and determined by the judge.
      (5) Disqualification of Judge. If the contempt charged involves disrespect to or criticism of a judge he shall disqualify himself from presiding at the hearing. Another judge shall be designated by the Chief Justice of the Supreme Court.
      (6) Verdict; Judgment. At the conclusion of the hearing the judge shall sign and enter of record a judgment of guilty or not guilty. There should be included in a judgment of guilty a recital of the facts constituting the contempt of which the defendant has been found and adjudicated guilty.
      (7) The Sentence; Indirect Contempt. Pri- or to the pronouncement of sentence, the judge shall inform the defendant of the accusation and judgment against him and inquire as to whether he has any cause to show why sentence should not be pronounced. The defendant shall be afforded the opportunity to present evidence of mitigating circumstances. The sentence shall be pronounced in open court and in the presence of the defendant.


text:
    Elbon Burnett HARDEN, Appellant, v. Sarah Christine Carter HARDEN, Appellee.
    No. HH-41.
    District Court of Appeal of Florida, First District.
    April 10, 1978.
    Terry McDavid of McDavid & Murphy, Lake City, for appellant.
    Herbert F. Darby and Raymond 0. Ma-nasco, Jr. of Darby, Peele & Bowdoin, Lake City, for appellee.
   PER CURIAM.

The proceedings giving rise to the order appealed were not transcribed, therefore, the record presented to us is insufficient to demonstrate reversible error.

Accordingly, the order appealed is affirmed.

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


author: DOWNEY, Judge.

text:
    Lewis GUTHRIE, Appellant, v. Hilda GUTHRIE, Appellee.
    No. 76-1003.
    District Court of Appeal of Florida, Fourth District.
    April 10, 1978.
    Michael N. Gomes of Week & Stone, Pompano Beach, for appellant.
    Martin Zevin, Fort Lauderdale, and S. Robert Zimmerman, Pompano Beach, for appellee.
   DOWNEY, Judge.

The husband appeals from an order awarding an attorney’s fee to counsel for the wife for services rendered on appeal from the final judgment of dissolution of marriage.

A final judgment of dissolution was entered awarding the wife, among other things, exclusive possession of the jointly held marital domicile, $400 per month alimony and attorney’s fees in the amount of $1000. The wife appealed setting forth seven points for review. This court in Guthrie v. Guthrie, 315 So.2d 498 (Fla. 4th DCA 1975), reversed on two of said appellate points and directed the trial court to 1) give the wife credit, upon a sale of the marital domicile, for one-half of the mortgage payments, interest, taxes, insurance and repairs, and 2) increase the award of alimony. This court also directed the trial court to determine the amount of attorney’s fees to be awarded to the wife’s counsel for services rendered during the appeal. Upon remand the trial court awarded the wife’s counsel $8000 for said attorney’s fees. This appeal by the husband concerns that award.

The wife’s counsel testified that he spent ninety-one hours on the appeal, twenty of which were in conference with his client. It was necessary, counsel testified, for him to confer with his client to determine what points should be raised on appeal and what should be included in the appendix. In addition, the client participated with counsel in redrafting the several rough drafts of appellant’s briefs.

We are not insensitive to the fact that matrimonial litigation is often more emotionally charged than the usual case and that clients in this type of case frequently require more “nursing” than the average client. However, we have re-examined the briefs involved in the original appeal and find the points raised are routine issues involved in dissolution cases. Thus, the ninety-one hours spent in submitting the appeal on behalf of the appellant simply cannot be justified. We also see no justification for the expenditure of twenty hours conference time with the client for an appeal. The fact that appellant was very emotional and persistent in nature does not mean that all of the time spent with her was reasonably necessary and that is the test in assessing fees against the opposing party, Allstate Insurance v. Baer, 334 So.2d 135 (Fla. 3rd DCA 1976). Work done that is not reasonably necessary but performed to indulge the eccentricities of the client should more properly be charged to the client rather than the opposing party.

We note further the award of an attorney’s fee for the trial court proceeding which produced a record of over 600 pages and a transcript of over 200 pages was only $1000.

In summary, we have closely considered this record, the briefs from the original appeal, and all of the contentions of the appellee in order to find support for the amount of the fee awarded for that appeal and we cannot do so. We conclude that the services rendered herein cannot justify a fee of $8000. In reaching that conclusion we are not unmindful of the fact that appellant adduced the testimony of a lawyer who opined a fee of $9000 was reasonable.

Accordingly, we reverse the order appealed from and remand the cause with directions to enter an order allowing counsel for the wife a fee of $5000.

REVERSED AND REMANDED with directions.

ALDERMAN, C. J., and CROSS, J., concur.


author: ALDERMAN, Chief Judge. DAUKSCH, Judge,

text:
    PALM-AIRE COUNTRY CLUB CONDOMINIUM ASSOCIATION NO. 2, INC., et al., Appellants, v. F.P.A. CORPORATION, etc., et al., Appellees. F.P.A. CORPORATION, a Delaware Corporation, and Orleans Construction Co. of Florida, Inc., a Florida Corporation, Appellants, v. PALM-AIRE COUNTRY CLUB CONDOMINIUM ASSOCIATION NO. 2, INC., etc., et al., Appellees.
    Nos. 77-1619, 77-1846.
    District Court of Appeal of Florida, Fourth District.
    April 10, 1978.
    Rehearing Denied April 21, 1978.

      Jeffrey E. Streitfeld and Mark B. Schorr of Becker, Poliakoff & Sachs, P. A., Fort Lauderdale, for Palm-Aire Country Club et al.
    Gerald Mager and Maurice M. Garcia of Abrams, Anton, Robbins, Resnick, Schneider & Mager, P. A., Hollywood, for F. P. A. Corp. et al.
   ALDERMAN, Chief Judge.

Two interlocutory appeals involving the same parties and arising out of the same case have been consolidated.

Case No. 77-1619

The appellants, who were the plaintiffs in the trial court, are the lessees under a long-term condominium recreation lease. The appellees, who were the defendants, are the developers of the condominium and the lessors under the lease. The lessees, pursuant to Section 718.401(4), Florida Statutes (Supp.1976), seek the right during the pending action to deposit with the registry of the court recreation lease rentals which have accrued and will become due in the future. The lessors, pursuant to the same statute, seek disbursement of any rentals deposited for the payment of mortgage payments due on a mortgage which encumbers the recreational facilities. The trial court granted both requests. Its order allows the lessees to deposit the rentals, but also allows the deposited funds to be disbursed to the lessors for payment of the mortgage. This first appeal involves only that part of the trial court’s order that allowed the disbursement. We find no error and affirm.

The relevant portion of the statute provides:

When the unit owner has deposited the required funds into the registry of the court, the lessor may apply to the court for disbursement for all or part of the funds shown to be necessary for the payment of taxes, mortgage payments, maintenance and operating expenses, and other necessary expenses incident to maintaining and equipping the leased facilities. The court, after preliminary hearing, may award all or part of the funds on deposit to the lessor for such purpose.

The lessees argue that the trial court exceeded its authority when it allowed disbursement for mortgage payments without a showing that the mortgage payments are “incident to maintaining and equipping the leased facilities.” We think that the lessees have misconstrued the plain language of the statute when they maintain that the “mortgage payments” referred to in the statute must be “incident to maintaining and equipping the facilities.” The same sentence of the statute further provides that funds on deposit may also be disbursed for the payment of taxes and taxes obviously are not used for maintaining and equipping the leased premises. In our opinion the phrase “incident to maintaining and equipping the leased facilities” refers to “other necessary expenses” and not to taxes or mortgage payments. We hold that under the statute the trial court, after preliminary hearing, may authorize the disbursement of all funds on deposit that are shown to be necessary for mortgage payments. It need not be shown that the mortgage payments are incident to maintaining and equipping the leased premises as long as the mortgage encumbers the leased premises.

Alternatively, plaintiffs argue that there was no showing before the trial court that it was necessary to use any part of the funds to make the mortgage payments. This argument is also without merit. The existence of the mortgage is in and of itself prima facie evidence of the need for the money. The mortgage contains an unconditional promise to pay and it encumbers the property. It is therefore necessary that the payments be made. This is sufficient to meet the requirement of the statute. It is immaterial that the lessors might be able to make the payments from other sources.

The trial court’s initial order authorizing disbursement for mortgage payments is affirmed.

Case No. 77-1846

In the second appeal the positions of the parties are reversed, the lessors are appealing and the lessees are trying to uphold the trial court’s order. Subsequent to the entry of the first order, the lessees filed another motion requesting that the previous order be modified to provide that that part of the payments representing the escalated portion of the rentals not be disbursed. The trial court granted this motion thereby preventing the lessors from utilizing that portion of the rent attributable to the escalation clause. We find this second order to be in error and reverse.

The lessees contend that the escalation portion of the recreation lease is unenforceable because Section 711.231, Florida Statutes (1975), declares escalation clauses in condominium recreational leases to be void and unenforceable. However, the Florida Supreme Court has determined that this statute is only prospective in application and does not apply to preexisting contracts. Fleeman v. Case, 342 So.2d 815 (Fla.1976). The leases which are the subject of this appeal were in existence prior to the effective date of Section 711.231.

To avoid the holding in Fleeman the lessees rely on Kaufman v. Shere, 347 So.2d 627 (Fla. 3d DCA 1977). In Kaufman the court recognized that Section 711.231 does not have retroactive effect, but found that the declaration of condominium in that case, which antedated the enactment of the statute and which stated that “. the provisions of the Condominium Act . as it may be amended from time to time . . . are adopted and included herein by express reference,” incorporated the provisions of the statute. The court then held that the specific statutory provision, declaring rent escalation clauses in condominium recreation leases to be void and unenforceable, had been incorporated into the declaration of condominium by the express wording of the declaration itself. The lessees argue that we should reach the same result in the present case. Simply stated, their position is that the condominium documents were automatically amended when the Condominium Act was amended. We reject this contention because, unlike Kaufman, the condominium documents in this case do not expressly adopt the provisions of the Condominium Act. In fact the lease provides for an exclusive method of amendment which does not include an automatic amendment whenever there is a change in the Condominium Act. We conclude that the rent escalation clauses in the recreational leases have not been voided by virtue of an automatic amendment of condominium documents triggered by the adoption of Section 711.231. It follows that the rents deposited that are attributable to the escalation clauses are also subject to disbursement under the provisions of Section 718.401(4). The trial court’s second order that the escalated portion of the rents may not be disbursed is reversed.

AFFIRMED as to Case No. 77-1619; REVERSED as to Case No. 77 — 1846 and REMANDED for further proceedings consistent with this opinion.

CROSS, J., concurs.

DAUKSCH, J., concurs specially.

DAUKSCH, Judge,

concurring specially.

While I concur with the majority opinion as a correct statement of the law, I do not recede from my dissent in The Renaissance of Pompano Beach, Inc., v. Southeastern Development Corp., 353 So.2d 105 (Fla. 4 DCA 1977) as it may apply to this case.


text:
    LEWIS MARINE SUPPLY, INC., James R. Lewis and Alice O. Lewis, Appellants, v. Jacquelee BLUE HURT, Individually and as Personal Representative of the Estate of Luther G. Blue, Deceased, Lurene W. Blue, and Margaret Blue Howell, Appellees.
    No. 77-2313.
    District Court of Appeal of Florida, Fourth District.
    April 10, 1978.
    Rehearing Denied April 28, 1978.
    Edwin D. McDonald, Fort Lauderdale, for appellants.
    Byrd V. Duke, Jr. and Robert C. Birme-lin, North Miami, for appellees.
   PER CURIAM.

The appellants’ complaint to enforce a contract for the redemption of stock was dismissed on the grounds that it contained no allegation of compliance with the probate claims statute, Section 733.702(1), Florida Statutes (1975). We do not believe such an allegation was necessary for the complaint to state a cause of action. Stern v. First National Bank of South Miami, 275 So.2d 58 (Fla. 3d DCA 1973). Moreover, it appears that the cause of action set out in the complaint does not come within the purview of Section 733.702(1). Accordingly, the order of dismissal is hereby reversed.

ALDERMAN, C. J., and DOWNEY and ANSTEAD, JJ., concur.


author: KEHOE, Judge.

text:
    HOME FEDERAL SAVINGS & LOAN ASSOCIATION OF HOLLYWOOD, a U. S. of America Corporation, Appellant, v. DOPPELT INDUSTRIES OF MIAMI, INC., Appellee.
    Nos. 76-1959, 76-1960.
    District Court of Appeal of Florida, Third District.
    April 11, 1978.
    A. C. Paoli, Hollywood, Goodwin, Rys-kamp, Welcher & Carrier, Miami, for appellant.
    Burton Harrison, Fine, Jacobson, Block, Goldberg & Semet and Mitchell R. Bloom-berg, Miami, for appellee.
    Before HENDRY and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   KEHOE, Judge.

Appellant, plaintiff below, brings these consolidated appeals from a summary judgment dated September 24, 1976, entered by the trial court in favor of appellee Doppelt Industries of Miami, Inc., intervenor below. Appellant contends that genuine issues of material fact existed at the time of the granting of summary judgment by the trial court which, pursuant to the Florida Rules of Civil Procedure 1.510 precluded the proper entry of summary judgment. We agree; therefore, the summary judgment appealed is reversed.

After examining the various pleadings, depositions, and affidavits before the trial court at the time it granted the summary judgment, we have concluded that there existed a genuine issue of a material fact in regard to whether Larfran Realty Corp. owned or acquired an interest in certain personal property which would subject the property to appellant’s lien. Accordingly, the case is reversed and remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.


author: HUBBART, Judge.

text:
    TROPICAL PARK, INC., a Florida Corporation, Appellant, v. UNITED STATES FIDELITY AND GUARANTY COMPANY, a Maryland Insurance Company, Appellee.
    No. 76-2139.
    District Court of Appeal of Florida, Third District.
    April 11, 1978.

      Taylor, Brion, Buker & Greene and R. Bruce Wallace, Jr., Miami, for appellant.
    Carey, Dwyer, Cole, Selwood & Bernard and Michael C. Spring, Miami, for appellee.
    Before HUBBART and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   HUBBART, Judge.

This is an action by an insured against its insurance carrier seeking damages and attorneys fees for a wrongful refusal to defend and pay a negligence claim brought against the insured filed before the Circuit Court for the Eleventh Judicial Circuit of Florida. After a non-jury trial, final judgment was entered in favor of the insurance carrier. The insured appeals.

There are two central issues presented for review by this appeal. The first issue is whether an exclusionary clause in a general liability insurance policy denying coverage to an insured horse race track company “for bodily injury claims on account of injury to any person while practicing for or participating in any contest or exhibition of an athletic or sports nature sponsored by the insured” applies to a claim for injuries sustained by an exercise boy while exercising a horse on the insured’s race track due to the insured’s alleged negligence. The second issue is whether the insurance carrier herein on such a general liability policy with such an exclusionary provision has a duty to defend such a claim under a provision of the policy obligating the carrier to defend the insured against lawsuits falling within the scope of insurance coverage where the complaint in the lawsuit filed against the insured alleges that the exercise boy herein was a freelance jockey exercising the horse on the insured’s race track when the alleged injuries were sustained. We hold that the aforesaid exclusionary clause is inapplicable to deny insurance coverage herein, that the insurance carrier is contractually obligated under the insurance policy to pay the insured for any judgment arising out of such a claim, and that the insurance carrier is contractually obligated to defend a lawsuit filed against the insured based upon such a claim. Accordingly, we reverse.

The facts of this case are undisputed. The plaintiff insured Tropical Park, Inc. at all times material to this cause was the owner of a horse race track and held in full force and effect a general comprehensive liability insurance policy with the defendant insurance carrier United States Fidelity & Guaranty Co. containing policy coverage limits of $250,000 per person and $500,000 per occurrence together with a standard clause obligating the said carrier to defend the insured against lawsuits falling within the scope of insurance coverage. The policy contained the following exclusionary provision:

“It is understood and agreed that coverage excludes bodily injury claims on account of injury to any person while practicing for, or participating in any contest, exhibition of an athletic or sports nature sponsored by the insured and immediate medical and surgical relief to any person so injured.”

In late December, 1972, one Alfonso Perez filed a negligence action against the insured Tropical Park before the Circuit Court for the Eleventh Judicial Circuit of Florida. The complaint was served on Tropical Park and alleged that Perez as “a free-lance jockey” was injured while “exercising a horse” at Tropical Park’s racetrack due to Tropical Park’s negligence. Tropical Park duly notified its insurance carrier USF&G of the claim and forwarded the complaint and summons served upon it to USF&G, which USF&G refused to defend relying on the above exclusionary provision in the insurance policy.

The uncontradicted facts surrounding the Perez claim as noted by the trial court below in its findings of fact were that Perez was hired by a horse trainer on the date of the accident in question as an exercise boy, not a freelance jockey, to gallop a two year old horse once around the Tropical Park racetrack and return to the stables. The horse in question had never run in a race and was not scheduled to run in a race at the time. Perez was apparently injured as he circled the racetrack exercising the horse.

After the insurance carrier’s refusal to defend the Perez claim, Tropical Park proceeded to defend the case on its own. Subsequently, the claim was settled for $20,000 with prior notice to and no objection from USF&G. It appears without dispute that USF&G has declined to pay the claim as settled based on the above exclusionary clause in the insurance policy.

The insured Tropical Park then brought this action against its insurance carrier USF&G in the Circuit Court for the Eleventh Judicial Circuit of Florida. Tropical Park sought to recover from the carrier the settlement amount paid on the Perez claim, its attorneys fees and expenses in defending the Perez claim, and attorneys fees for prosecuting this action. The case was tried non-jury in which the above facts were established. The trial court entered judgment for the insurance carrier; this appeal follows.

The law of Florida is well-settled that a contract of insurance prepared by an insurance company must be construed liberally in favor of the insured and strictly against the insurance carrier. Where the terms of an insurance contract are susceptible of two reasonable constructions, that interpretation which will sustain coverage for the insured will be adopted. Poole v. Travelers Insurance Co., 130 Fla. 806, 179 So. 138 (1937); Hartford Fire Insurance Co. v. Spreen, 343 So.2d 649 (Fla. 3d DCA 1977); Oliver v. United States Fidelity & Guaranty Co., 309 So.2d 237 (Fla. 2d DCA 1975); Moore v. Connecticut General Life Insurance Co., 277 So.2d 839, 842 (Fla. 3d DCA 1973). In particular, exclusionary clauses in insurance contracts must be construed liberally against the insurance company and in favor of the insured in order that the purpose of insurance will not be defeated. George v. Stone, 260 So.2d 259 (Fla. 4th DCA 1972).

The law is also well-settled that the duty of an insurance carrier to defend a claim falling within its insurance contract depends solely on the allegations in the complaint filed against the insured. The original complaint under this rule must allege facts which fairly bring the cause within the coverage of the insurance contract even though ultimately there is no liability. Where the complaint contains allegations partially within and partially outside the scope of coverage, the insurance carrier is required to defend the entire suit. Union Fire Insurance Co. v. Lenox Liquors, Inc., 358 So.2d 533 (Fla.1977); C. A. Fielland, Inc. v. Fidelity & Casualty Co. of New York, 297 So.2d 122 (Fla. 2d DCA 1974); Garden Sanctuary, Inc. v. Insurance Co. of North America, 292 So.2d 75 (Fla. 2d DCA 1974); Tennessee Corp. v. Lamb Bros. Construction Co., 265 So.2d 533 (Fla. 2d DCA 1972).

In the instant case, we deal with a comprehensive liability insurance contract with certain stated limits of maximum coverage. In an exclusionary clause contained therein, insurance coverage is denied to the insured “for bodily injury claims on account of injury to any person while practicing for or participating in any contest or exhibition of an athletic or sports nature sponsored by the insured.” In our view, it cannot fairly be said that the exercise boy herein was practicing for or participating in any contest or exhibition of an athletic or sports nature. He was merely performing his appointed duties to keep the horse he was riding in good physical shape and health by exercising it once around the track. In this respect, he is no different from a person who rubs the horse down or feeds the horse or medically examines and treats the horse.

USF&G argues that the horse itself was practicing for a sports contest by running around the racetrack. We cannot agree. The horse had never run in a race and was not scheduled to run in a race'; furthermore, the horse was being exercised and was not practicing for any race. In any event, the argument misses the mark because the insurance exclusionary clause herein refers to a person, not to a horse. Under the exclusionary clause the person must be engaged inter alia in some activity which constitutes practice for an athletic or sports contest to deny coverage. Clearly the exercise boy herein was not engaging in such activity and the exclusionary clause in the insurance contract is inapplicable. Mountain States Mutual Casualty Co. v. Northeastern New Mexico Fair Ass’n, 84 N.M. 779, 508 P.2d 588 (1973).

As to the duty of the insurance carrier to defend the insured against the Perez claim, it is clear from the allegations of the complaint that the claimant was allegedly injured while “exercising a horse” at the insured’s racetrack. There is no allegation in the complaint to the effect that the claimant was participating in or practicing for a sports contest. And the mistaken allegation in the complaint that the claimant was a “free-lance jockey” as opposed to an exercise boy cannot reasonably be interpreted as placing the claim within the exclusionary clause. As such, the claim was fairly within the scope of insurance coverage and the insurance carrier was obligated to defend the claim.

The judgment appealed from is reversed and the cause is remanded to the trial court with directions to enter a judgment for the insured Tropical Park, Inc. against the insurance carrier United States Fidelity and Guaranty Co. for (1) the amount of the judgment paid by Tropical Park, Inc. on the Perez claim herein plus interest, (2) the amount of attorneys fees and taxable costs expended by Tropical Park, Inc. in defending the Perez claim herein. Appropriate attorneys fees and taxable costs must also be awarded to Tropical Park, Inc. for bringing this action in the trial court.

Reversed and remanded.

      . The pertinent portions of the Perez complaint are paragraphs 4 through 7 which allege as follows:
      “4. At all times mentioned and at all times material hereto, the Plaintiff, ALFONSO PEREZ, was a free-lance jockey and at 7:45 A.M. on or about September 23, 197[1], he was exercising a horse on the above-mentioned tartan track and was therefore a business invitee to whom the Defendant, TROPICAL PARK, INC., owed the duty to use reasonable care for his safety while riding upon horses on the said race track.
      5. At the above-mentioned time and place, the Defendant, TROPICAL PARK, INC., knew or should have known that the period of time from 5:00 A.M. to 10:00 A.M. was reserved for trainers and owners to exercise their horses.
      6. At the above-mentioned time and place the Defendant, TROPICAL PARK, INC., was in the process of resurfacing the main dirt track at Tropical Park Race Track and had large road grading equipment operating on the main dirt track.
      7.That the Defendant, TROPICAL PARK, INC., knew or should have known that the operation of said machinery on the main track during the period of time reserved for exercising race horses created a dangerous and unnatural condition; that the Defendant failed to take the appropriate measures necessary to properly maintain or remedy such condition when, in the use of reasonable care, the defendant, TROPICAL PARK, INC., should have foreseen that the jockeys, including the plaintiff, were being subjected to being injured when their horses were subjected to the heavy operating equipment causing said unnatural and dangerous condition; that the Defendant, TROPICAL PARK, INC., negligently and carelessly failed to take the appropriate measures necessary prior to September 23, 1971, at approximately 7:45 A.M. when Plaintiffs horse without warning, upon seeing the dangerous condition above-described, bucked, lunged and unnaturally and abnormally jumped, thereby causing the Plaintiff to be thrown from said horse and sustain serious personal injuries as hereinafter described.”


text:
    HART PROPERTIES, INC., et al., Appellants, v. EASTERN ELEVATOR SERVICE CORP. et al., Appellees.
    No. 77-76.
    District Court of Appeal of Florida, Third District.
    April 11, 1978.

      Corlett, Merritt, Killian & Sikes, and Greene & Cooper, Miami, for appellants.
    Adams, George, Lee & Schulte and Amy Shield Levine, Miami, for appellees.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   KEHOE, Judge.

Appellants, Hart Properties, Inc., and its insurer Calvert Fire Insurance Company, defendants and third party plaintiffs below, bring this appeal from an order entered by the trial court dated December 9, 1976, dismissing with prejudice their third party complaint against appellees, Eastern Elevator Service Corporation and its insurer Travelers Insurance Company, third party defendants below.

William Goldstein, plaintiff below, not a party herein, filed a complaint against Hart Properties, Inc. [hereinafter referred to respectively as Hart and Calvert]. The complaint alleged, among other things, that Hart was the owner of the Castaways Hotel; that plaintiff was a guest in the hotel; that Hart negligently maintained an elevator on the premises; and that plaintiff was injured when he became trapped in the elevator for an extended period. The complaint also alleged that Hart knew or should have known of the latent peril created by the negligently maintained elevator.

Subsequently, Hart and Calvert filed a third party complaint seeking indemnity or contribution from Eastern Elevator Service Corporation and Travelers Insurance Company [hereinafter referred to respectively as Eastern and Travelers]. They alleged that Hart had a written service and maintenance contract with Eastern in which Eastern agreed to maintain the elevator, which injured the plaintiff, in good condition. A copy of the contract was attached to the third party complaint. Appellants further alleged that Eastern was actively negligent in failing to use reasonable care, as required by the contract, in maintaining the elevator. Also, appellants alleged that, if Hart were negligent at all, it was only passively negligent as the owner of the premises. Based on these facts, appellants sought indemnity or contribution from appellees for the amount of any judgment entered against them pursuant to the plaintiff’s complaint.

Eastern moved to dismiss the third party complaint on the ground that the service and maintenance contract specifically excluded any indemnification to appellants for any injuries or damages arising from the use of the elevator. From the trial court’s order dismissing the third party complaint with prejudice, appellants bring this appeal.

Appellants’ primary point on appeal is that the trial court erred in dismissing the third party complaint with prejudice because it stated a cause of action for common law indemnity or contribution which was not barred by any provision in the agreement between Hart and Eastern. On the other hand, appellees contend basically that, by virtue of the terms of the agreement, appellants are barred in seeking indemnity or contribution from them and, accordingly, the trial court properly dismissed the third party complaint with prejudice.

We have carefully reviewed the provisions of the agreement and have concluded that they are not specific enough to determine that Eastern meant to excuse itself from indemnity for acts of its own negligence. Compare University Plaza Shopping Center, Inc. v. Stewart, 272 So.2d 507 (Fla.1973). We note that such agreements are not looked upon with favor. See Nat Harrison Associates, Inc. v. Florida Power & Light Co., 162 So.2d 298 (Fla. 3d DCA 1964). Further, it is well established in Florida that when the active or primary negligence of one tort feasor and the passive or secondary negligence of another tort feasor combine to proximately cause an injury to a third party, the passively negligent tort feasor is entitled to indemnity from the actively negligent one. See, e. g., Florida Power Corp. v. Taylor, 332 So.2d 687 (Fla. 2d DCA 1976); GACL, Inc. v. Riviera Tile and Terrazo Company, 300 So.2d 39 (Fla. 3d DCA 1974); Maybarduk v. Bustamante, 294 So.2d 374 (Fla. 4th DCA 1974); and Peoples Gas System, Inc. v. B & P Restaurant Corp., 271 So.2d 804 (Fla. 3d DCA 1973). Accordingly, because the terms of the agreement involved do not preclude a cause of action for appellant’s claims of common law indemnity or contribution, which are adequately set forth in the thrid party complaint, we hold that the trial court erred in dismissing the third party complaint with prejudice. Therefore, the order appealed is reversed and the cause remanded for further proceedings.

Reversed and remanded.


text:
    Eva ZEIDEL, Appellant, v. ESTATE of Hyman ROSENBERG, Lorraine Schuster, as successor Personal Representative of the Estate of Hyman Rosenberg, and Evelyn Rosenberg, Appellee.
    No. 77-104.
    District Court of Appeal of Florida, Third District.
    April 11, 1978.
    Kuvin, Klingensmith & Lewis, Miami, for appellant.
    Kalback & Thomas, Miami, for appellee.
    Before HENDRY and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   HUBBART, Judge.

The appellant Eva Zeidel appeals from an order entered in a probate proceeding before the Circuit Court for the Eleventh Judicial Circuit of Florida in which the trial court denied her motion for an extension of time within which to file an independent suit against the appellee Estate of Hyman Rosenberg pursuant to the non-claim statute [§ 733.705(3), Fla.Stat. (1975)]. In our view, the trial judge was eminently correct in denying the motion because the non-claim statute herein was inapplicable to the appellant Zeidel’s independent suit and thus no extension of time within which to file such suit was necessary under the statute.

The gravamen of the independent suit against the estate herein was a replevin action in which the appellant Zeidel asserts that certain bearer bonds held by the appel-lee estate belong in fact to the appellant and not to the estate. As such, the lawsuit falls outside the purview of the non-claim statute because it asserts a claim on identifiable property held by the estate and alleges that such property is not a proper part of the estate. Hodges v. Logan, 82 So.2d 885 (Fla.1955); Fisher v. Creamer, 332 So.2d 50 (Fla. 3d DCA 1976); Ruza v. Estate of Ruza, 132 So.2d 308 (Fla. 3d DCA 1961). No extension of time within which to file such a suit was therefore necessary under the non-claim statute as the suit can be maintained independent of the non-claim statute.

Affirmed.


text:
    Thomas W. WOODWORTH, Appellant, v. METALLIC ENGINEERING COMPANY and Hartford Accident and Indemnity Company, Appellees.
    No. 77-490.
    District Court of Appeal of Florida, Third District.
    April 11, 1978.
    Krupnick & Campbell and John R. Gillespie, Jr. and Kevin Malone, Ft. Lauderdale, for appellant.
    Wicker, Smith, Blomqvist, McMath, Tu-tan & O’Hara and Richard Sherman, Miami, for appellees.
    Before HAVERFIELD, C. J., and PEARSON, J., and Charles Carroll (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See Carter v. Sims Crane Service, Inc., 198 So.2d 25 (Fla.1967); Slack v. Acousti Engineering Company of Florida, 122 So.2d 574 (Fla. 2d DCA 1960); Gross v. Rudey’s Stone Co., Inc., 179 So.2d 603 (Fla. 2d DCA 1965).


text:
    Ferdinand D’ALAURO, Appellant, v. PAN AMERICAN WORLD AIRWAYS, INC., etc., and Travelers Insurance Company, etc., Appellees.
    No. 77-586.
    District Court of Appeal of Florida, Third District.
    April 11, 1978.
    Horton, Perse & Ginsberg, Hawkesworth, Schmick, Ponzoli & Wassenberg, Miami, for appellant.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and James E. Tribble, Miami, for appellees.
    Before PEARSON, NATHAN and KE-HOE, JJ.
   PER CURIAM.

The plaintiff appeals a final judgment on a jury verdict. The single point presented urges error upon the trial court’s denial of plaintiff’s motion for a new trial. The weight of the evidence and a claimed prejudicial comment of defendant’s counsel are urged as grounds for a new trial. We hold that the record supports the verdict and that the claimed prejudicial comment concerning workman’s compensation was in response to statements by plaintiff’s attorney. The judgment is affirmed. See Ward v. Hopkins, 81 So.2d 493 (Fla.1955); and Pix Shoes of Miami, Inc. v. Howarth, 201 So.2d 80 (Fla.3d DCA 1967). See also Murray v. State, 154 Fla. 688, 18 So.2d 782 (1944); and Tyson v. State, 87 Fla. 392, 100 So. 254 (1924).

Affirmed.


text:
    Jose Garcia DE LOS SALMONES, Appellant, v. Allen D. STOLAR, Appellee.
    No. 77-590.
    District Court of Appeal of Florida, Third District.
    April 11, 1978.
    Hendricks & Hendricks, Miami, for appellant.
    Fowler, White, Burnett, Hurley, Banick & Knight and Fred R. Ober, Miami, for appellee.
    Before HENDRY and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Plaintiff appeals a summary final judgment entered in favor of the defendant in an action for damages wherein defendant, an attorney at law, was charged with negligently representing plaintiff in connection with the purchase of a hotel from defendant’s client. The defendant denied that he was negligent or that he breached any duty owed to the plaintiff.

The trial court found there were no genuine issues as to any material fact and that the defendant was entitled to a summary final judgment as a matter of law.

This appeal questions the propriety of such judgment. Our review of the record convinces us that there are genuine issues of material fact so as to preclude a summary disposition. Among the disputed issues of fact is whether there was an attorney-client relationship between the parties in relation to the purchase of the hotel; if so, was the defendant guilty of any negligence that resulted in damages to the plaintiff.

Therefore, the judgment is reversed and the cause remanded for further proceedings.

Reversed and remanded.


text:
    RELIANCE INSURANCE COMPANY, Appellant, v. Barbara L. KELLY, Appellee.
    No. 77-608.
    District Court of Appeal of Florida, Third District.
    April 11, 1978.
    Carey, Dwyer, Cole, Selwood & Bernard and Michael C. Spring, Miami, for appellant.
    Harrington & Willis, Miami, for appellee.
    Before HENDRY, BARKDULL and KE-HOE, JJ.
   PER CURIAM.

Affirmed on the authority of Jones v. General Accident Fire and Life Assurance Corporation, 118 Fla. 648, 159 So. 804 (1935); Great American Insurance Company v. Cornwell, 191 So.2d 435 (Fla. 1st DCA 1966); Rowland v. National State Insurance Company, 295 So.2d 335 (Fla. 1st DCA 1974); Nationwide Mutual Insurance Company v. Anglin, 306 So.2d 147 (Fla. 2d DCA 1975).


author: BARKDULL, Judge.

text:
    Gladys MOLNE, Appellant, v. The KEYES COMPANY, Appellee.
    No. 77-677.
    District Court of Appeal of Florida, Third District.
    April 11, 1978.

      H. C. Starkweather, Miami, for appellant.'
    Sager & Burns and Joseph Pardo, Miami, for appellee.
    Before HENDRY, BARKDULL and KE-HOE, JJ.
   BARKDULL, Judge.

This case has been before this court previously. See: Dionise v. Keyes Company, 319 So.2d 614 (Fla.3d DCA 1975). To understand this opinion, the prior opinion of this court should be reviewed.

Prior to the finding by the trial judge, as referred to in the earlier opinion (that the signature of Mrs. Molne on the deposit receipt was a forgery), The Keyes Company had filed a counterclaim seeking a recovery of their brokerage commission, contending the deposit receipt was valid. When the trial judge found Mrs. Molne’s signature to be a forgery, Keyes voluntarily dismissed its counterclaim for brokerage commission based upon this finding. Subsequent to the reversals of the judgments referred to in the earlier opinion and the entry of an order on the mandate, the matter came on for pre-trial hearing prior to a new trial. At that time, the parties recognized that the counterclaim for commission by Keyes was then a viable issue in the event the jury found, upon a special interrogatory, that Mrs. Molne had in fact executed the deposit receipt. It was clearly indicated during the pre-trial conference, and agreed to by the parties, that if the jury found no forgery and, therefore, a valid contract Keyes would be entitled to move for a directed verdict , for its commission. The jury found no forgery; Keyes moved for a directed verdict on its commission, and the trial judge entered an order granting same which reads in part as follows:

* * * * * *
“THIS MATTER coming on to be heard upon the Motion for Directed Verdict made by THE KEYES COMPANY, in open Court, on its Counterclaim against GLADYS MOLNE, after the determination and finding made by the jury, on February 9, 1977, that the signature of GLADYS MOLNE on the Deposit Receipt Contract, dated January 3, 1973 was authentic, * * *”
******

The contract that Keyes had with Mrs. Molne provided for attorney fees and, in this respect, the final judgment read in part as follows:

******
“ORDERED AND ADJUDGED that a reasonable attorney’s fee in favor of THE KEYES COMPANY, against GLADYS MOLNE, shall be entered by subsequent Order of this Court.”
******

Subsequently, the parties stipulated as to the reasonableness of attorney’s fees as follows:

“IT IS HEREBY STIPULATED by and between THE KEYES COMPANY and GLADYS MOLNE that the issue of a reasonable attorney’s fee to THE KEYES COMPANY in connection with the Deposit Receipt Contract may be presented by each of the parties by Affidavits and the Court may consider the entry of a reasonable attorney’s fee without further testimony.”
* * * * * *

Thereafter, counsel for Keyes submitted affidavits as to the reasonableness of a fee. No affidavits were submitted by attorneys for Mrs. Molne on her behalf. Subsequently, the trial judge entered an order awarding the fees within the range of the affidavits tendered by Keyes. This appeal ensued.

Mrs. Molne contends, first, that the counterclaim was not properly before the court and, secondly, that the amount of attorney’s fee awarded in the event the counterclaim was properly before the court was unreasonable. We find no merit in her contentions. First, no effort was made to correct the final judgment that reflected that the cause was submitted to the jury on the counterclaim. If this order was inaccurate it was incumbent upon the appellant to seek to correct the inaccuracy in the trial court. Dade County Board of Public Instruction v. Foster, 307 So.2d 502 (Fla. 3d DCA 1975); Fla.R.App.P. 3.61. Further, by the claims and admissions made at the pretrial conference, it was clear that all parties and the court were aware that the issue as framed by the counterclaim for brokerage commission would be considered in light of whether the jury determined the signature on the brokerage contract to be valid. Any irregularity in the pleadings were cured by the parties’ actions at the pre-trial conference. State v. Pepper, 155 So.2d 383 (Fla. 1st DCA 1963); 62 Am.Jur.2d, Pre-Trial Conference, § 26. As to the attorney’s fee, the appellant having tendered no counter-affidavits in the trial court, she is not in a position to question the reasonableness of said fee at this time. Huntley v. Baya, 136 So.2d 248 (Fla. 3d DCA 1962); Solar Research Corporation v. Parker, 221 So.2d 138 (Fla.1969).

Therefore, the final judgment under review be and the same is hereby affirmed.

Affirmed.


text:
    S. Charles ADAMS, Appellant, v. Ann Shepherdson ADAMS, Appellee.
    Nos. 77-806, 77-628.
    District Court of Appeal of Florida, Third District.
    April 11, 1978.

      Di Giulian, Spellacy & Bernstein and John B. DiChiara, Ft. Lauderdale, for appellant.
    Sinclair, Louis, Siegel & Heath and John L. Zavertnik, Miami, for appellee.
    Before HENDRY, BARKDULL and KE-HOE, JJ.
   KEHOE, Judge.

Appellant, petitioner below, and former husband of appellee, appeals an order dated December 21, 1976, entered by the trial court modifying a final judgment of dissolution of marriage entered in the cause on July 10, 1973. Appellant also appeals an order dated March 28,1977, committing him for contempt, for failure to pay appellee $4,400 in arrearages for child support, and awarding appellee attorney’s fees.

After hearing oral argument, reviewing the record, and considering the briefs of the parties on appeal, we are convinced that the entry of the order by the trial court, modifying the final judgment, was within its sound judicial discretion; therefore, the order is affirmed.

However, the commitment order is defective. The order fails to comply with the requirement that such an order include an affirmative finding that either the former husband presently had the ability to comply with the order, and willfully refused to do so, or that he previously had the ability to comply, but divested himself of that ability to frustrate the intent and purpose of the order. See Faircloth v. Faircloth, 339 So.2d 650 (Fla.1976), and Epstein v. Epstein, 354 So.2d 398 (Fla. 3d DCA 1977). Further, appellant has failed to demonstrate any reversible error in the trial court’s award of attorney’s fees to appel-lee at the contempt proceedings; accordingly, that portion of the order is affirmed.

The order of commitment is reversed and the cause is remanded to the trial court with directions to make the required affirmative finding of ability, if supported by the record, or, otherwise, to vacate the commitment order.

Affirmed in part; reversed in part and remanded.


author: PEARSON, Judge.

text:
    Juanita HARDWICK, Appellant, v. The STATE of Florida, Appellee.
    No. 77-2656.
    District Court of Appeal of Florida, Third District.
    April 11, 1978.

      Bennett H. Brummer, Public Defender and Kurt Mamar, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Steven Bolotin, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and PEARSON, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PEARSON, Judge.

The probationer, Juanita Hardwick, appeals a sentence imposed upon the revocation of her probation on the ground that because it was imposed after she had already been sentenced, it was, therefore, void because it placed her in double jeopardy for the violation. See Troupe v. Rowe, 283 So.2d 857 (Fla.1973); Katz v. State, 335 So.2d 608 (Fla. 2d DCA 1976); and Beckom v. State, 227 So.2d 232 (Fla. 2d DCA 1969). We agree and, accordingly, reverse the sentence and remand the cause for the re-establishment-of the first sentence.

At the probation violation hearing, the probationer admitted one of the alleged violations and the court orally sentenced her to serve one year in the county jail with provisions made for her drug problem and her pregnancy. A handwritten notation of the sentence was entered by the clerk and the defendant was turned over to officers of the Dade County Department of Correction and Rehabilitation to begin serving her sentence. Subsequent thereto, the defendant was guilty of misconduct in the courtroom which would constitute contempt. Thereupon, the trial court vacated the first sentence and entered a new sentence for three years in the state penitentiary.

A defendant may be sentenced for a contempt committed in the presence of the court, but such a sentence must be entered pursuant to Fla.R.Crim.P. 3.830; and Manning v. State, 234 So.2d 16 (Fla. 2d DCA 1970).. The contempt does not allow a reconsideration of the sentence already imposed. See the Troupe, Katz and Beckom cases cited above. Accordingly, the defendant’s second sentence to three years in the state penitentiary is reversed and the cause is remanded to the trial court for the execution of the sentence of one year in the county jail as originally imposed. This decision does not bar such action as the court may find proper for the contempt committed.

Reversed and remanded with directions.

      . “THE COURT: Excuse me. Did I see what I thought I did? Did she hit you?
      “THE PROBATION OFFICER: Yes.
      “THE COURT: Do you have any reason that you can give to me why you shouldn’t be held in contempt of this Court?
      “There being no response, you are adjudicated in contempt of this Court. And in addition to the one year sentence heretofore imposed, that sentence is vacated. Sentence the defendant to three years in the state penitentiary. All right.”


text:
    Barrington Anthony GRAY, Appellant, v. The STATE of Florida, Appellee.
    No. 78-483.
    District Court of Appeal of Florida, Third District.
    April 11, 1978.
    Barrington Anthony Gray, in pro per.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before HAVERFIELD, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

This appeal from summary denial of motion for post-conviction relief under Fla.R. Crim.P. 3.850 being presented pursuant to Fla.R.App.P. 9.140(g) and the court having considered the record presented and the prior appeal by this defendant (330 So.2d 729), which was dismissed with prejudice because the defendant was at large as a fugitive from justice, the denial of the motion is affirmed.

Affirmed.


text:
    Gerdine WILLIAMS, a/k/a Jerry Williams, Appellant, v. STATE of Florida, Appellee.
    No. DD-492.
    District Court of Appeal of Florida, First District.
    April 12, 1978.
    Michael J. Minerva, Public Defender, and Theodore E. Mack, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Patti Englander, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellant seeks reversal of adjudication of guilt and resulting concurrent sentences for three charges of grand larceny. We have reviewed the record and find that as to two of the charges there is no reversible error and the evidence is sufficient to sustain the conviction. However, as to case # 76-56 CF wherein appellant was convicted of grand larceny from one Margaret Danford we are of the view that appellant’s points are well taken and that as to that conviction not only was there prejudicial error but the totality of the evidence was insufficient to sustain conviction.

Accordingly, as to cases 77-629 CF and 76-17 CF we affirm. As to case 76-56 CF 23 we reverse.

BOYER, Acting C. J., and SMITH and MELVIN, JJ., concur.


text:
    William Riley GAYLORD, Appellant, v. STATE of Florida, Appellee.
    No. FF-293.
    District Court of Appeal of Florida, First District.
    April 14, 1978.

      Michael J. Minerva, Public Defender, Janice G. Scott, Asst. Public Defender and J. Victor Africano, for appellant.
    Robert L. Shevin, Atty. Gen., and Michael H. Davidson, Asst. Atty. Gen., for Appellee.
   PER CURIAM.

Appellant Gaylord was sentenced within the statutory maximum prescribed for a violation of Section 812.13(2)(a) (robbery while carrying a firearm). A review of the record in this case reveals no abuse of discretion in the sentencing procedure. Therefore, the judgment and sentence are

AFFIRMED.

SMITH, Acting C. J., and MELVIN & BOOTH, JJ., concur.


text:
    Deborah GREENBERG, d/b/a 183rd Street Auto Tag Agency, Appellant, v. BARNETT BANK OF JACKSONVILLE, N. A., a National Banking Corporation, Appellee.
    No. II-213.
    District Court of Appeal of Florida, First District.
    April 14, 1978.
    Sidney Z. Brodie of Abramson, Scremin, Mendigutia & Libman, Miami, for appellant.
    Dana G. Bradford, II of Mahoney, Had-low & Adams, Jacksonville, Phillip C. Asher of Tworoger & Asher, Fort Lauderdale, for appellee.
   PER CURIAM.

AFFIRMED. See Coggin Pontiac, Inc. v. Putnam Auto Sales, 278 So.2d 647 (Fla. 1st DCA 1973).

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


text:
    KILLEARN PROPERTIES, INC., a Florida Corporation, Appellant, v. Charles Glennon ROWELL, Norman D. Heydenburg, David W. Stuart, Joseph Jenkins and Fred Q. Vroom, Appellees.
    No. II-257.
    District Court of Appeal of Florida, First District.
    April 14, 1978.
    Edward S. Jaffry of Horne, Rhodes, Jaf-fry, Stephens, Bryant, Horne & Chapman, Tallahassee, for appellant.
    Harry Lewis Michaels, Tallahassee, for appellee.
   PER CURIAM.

The necessary prerequisites to the maintenance of a class action are discussed in two recent opinions of this court, Cordell v. World Insurance Company, 352 So.2d 108 (Fla. 1st DCA 1977) and Smith v. Atlantic Boat Builder Company, 356 So.2d 359 (Fla.1st DCA 1978) Opinion Filed March 13, 1978, Case No. HH-298, and authorities therein cited and discussed. No useful purpose will be achieved by repetition here. Suffice to say, that the mere fact that some members of a proposed class may not ultimately be entitled to relief does not result in inability to maintain the suit as a class action.

AFFIRMED.

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


text:
    J. A. COLEMAN, Appellant, v. Jacob O. SMITH, d/b/a Southern Printing Service, Appellee.
    No. II-343.
    District Court of Appeal of Florida, First District.
    April 14, 1978.
    Eric C. Eggen, Pensacola, for appellant.
    Joseph C. Rubel, of Fisher & Bell, P. A., Pensacola, for appellee.
   PER CURIAM.

The documentary and other evidence in support of appellee’s motion for summary judgment does not demonstrate that the parties intended that the unconditional monetary obligation expressed in the promissory note should be vitiated if the parties did not within six months agree upon the terms of and perform further contracts discharging the principal obligation. The summary judgment is therefore

REVERSED.

McCORD, C. J., and SMITH, J., concur.

BOYER, J., dissents.


text:
    B. A. A., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1488.
    District Court of Appeal of Florida, Third District.
    April 17, 1978.
    Bennett Brummer, Public Defender and Paul Morris, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and William M. Grodnick, Asst. Atty. Gen., for appellee.
    Before PEARSON and BARKDULL, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on May 25, 1976 affirming the order of the Circuit Court of Dade County, Florida in the above styled cause; and

WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida by its opinion and judgment filed March 9, 1978 (356 So.2d 304) and mandate now lodged in this court, quashed this court’s judgment;

NOW, THEREFORE, It is Ordered that the judgment of this court filed May 25, 1976 is vacated and the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court, the order of the trial court appealed herein is reversed and the cause is remanded for further proceedings consistent with the opinion and judgment of the Supreme Court of Florida. Costs allowed shall be taxed in the trial court (Rule 3.16(b), Florida Appellate Rules).


author: SUMMERS, Justice. CALOGERO, Justice,

text:
    STATE of Louisiana v. Mitchell BAXTER.
    No. 60253.
    Supreme Court of Louisiana.
    Jan. 30, 1978.
    Dissenting Opinion April 11, 1978.

      Lyman S. Gore, Philip A. LeTard, Vidalia, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., W. C. Falken-heiner, Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

Defendant Mitchell Baxter was charged by the grand jury of Concordia Parish with the second degree murder of Robert Maddox on May 2, 1976. La.Rev.Stat. 14:30.1. He was convicted and sentenced to hard labor for life. On this appeal he contends the trial judge erroneously denied his motion for a new trial.

The motion was filed before sentence. It alleged that defendant had discovered since the verdict that Charles T. Bell, a member of the jury, had been convicted of a felony; he had not been pardoned and was therefore not qualified to serve as a juror. The motion also alleged that, notwithstanding the exercise of reasonable diligence by defendant, Bell’s conviction was not discovered before verdict.

At the hearing on the motion the juror Bell recalled that at the outset of the voir dire examination the trial judge informed the prospective jurors that they could not serve as jurors if they had been convicted of a felony and were not pardoned, which Bell understood to refer to violent crimes. He recalled, also, he had been examined on voir dire by the prosecutor, who asked him if he had ever been convicted of a violent crime and he answered that he had not been.

Juror Bell recalled being asked by the prosecutor, “Has anybody, you or your family ever been robbed or beaten or shot or anything like that? Or have you or any close members of your family ever been charged with a serious crime?” He said he remembered the question but did not remember that “serious crime” was mentioned. He understood instead that the question referred to “violent crime”, and he asked the prosecutor if he was referring to violent crime. When the prosecutor answered in the affirmative, Bell replied that he had not been convicted of a violent crime.

Bell also remembered being asked by the prosecutor on voir dire whether he knew of any reason why he would not be acceptable as a juror. He answered that the only reason he could think of was the fact that he knew Officer Langston and some of the other Sheriff’s deputies.

At the hearing on the new trial motion, Bell admitted that he had been convicted under the alias of Charles T. Jackson of the federal crime of presenting false claims, a violation of 18 U.S.C. § 287, and sentenced in 1971 by a federal court in Atlanta, Georgia, to serve three years imprisonment. His probation officer told him that he would be automatically pardoned by the State of Louisiana after the three-year sentence had expired, and the necessary papers to that effect would be sent to the authorities in Concordia Parish where he lived. Being so informed, Bell assumed that he had been pardoned and did not consider himself disqualified, despite the fact that he had not applied for a pardon and possessed no document indicating that he had been pardoned.

Associate defense counsel testified that a rumor of Bell’s conviction was brought to his attention several days after the verdict had been rendered in defendant Baxter’s trial. On this basis an investigation was immediately begun, leading to facts which confirmed the rumor of Bell’s conviction. He testified further that Bell’s answers to the questions propounded by the prosecutor gave him no cause to believe that the prospective juror was disqualified. Because of the judge’s instructions on qualifications of jurors and the interrogation of the prosecutor, he testified, the defense did not question Bell on voir dire.

A certificate from Louisiana’s Secretary of State introduced by the defense set forth that Bell had not been pardoned.

The prosecutor testified that he had no knowledge of Bell’s conviction until after the verdict. A stipulation was entered that prior to trial the office of the District Attorney made a cursory investigation of the list of prospective jurors, and no information obtained thereby indicated that Bell had been convicted of a felony. The trial judge took judicial notice of the fact that the jury vote was ten to two for guilty in Baxter’s trial with Bell voting guilty.

On the record thus formed at the hearing, the trial judge found that Bell was in fact convicted of a felony; neither the defense nor the prosecution was aware of Bell’s conviction until after verdict; the jurors voted ten to two for a guilty verdict; and Bell was one of the ten who voted guilty. Basing his decision on these facts and the decision in State v. Hall, 255 La. 854, 233 So.2d 541 (1970), the trial judge denied the motion for a new trial.

In order to qualify to serve as a juror, a person must “[n]ot . . . have been convicted of a felony for which he has not been pardoned.” La.Code Crim.Pro. art. 401(5).

The trial judge correctly found that Bell’s 1971 conviction in Georgia, involving a sentence of imprisonment for three years, was a felony. Any offense punishable by death or imprisonment for a term exceeding one year is a felony under federal law. 18 U.S.C. § 1. Any crime for which an offender may be sentenced to death or imprisonment at hard labor is a felony under Louisiana law. La.Rev.Stat. 14:2. The reference to felony convictions in Article 401(5) applies equally to state or federal convictions. Cf. State v. Butler, 149 La. 1036, 90 So. 395 (1922).

Only the President of the United States has power under the Federal Constitution to grant pardons for offenses against the United States. U.S.Const. art. II, § 2. A pardon attorney within the Department of Justice of the United States, subject to the general supervision of the Attorney General, has charge of the receipt, investigation, and disposition of applications to the President for pardon. 28 CFR, § 0.35 (1976). The power of the Governor of Louisiana to pardon is limited to offenses against the State. La.Const. art. IV, § 5 (1974); La.Const. art. V, § 10 (1921). And the automatic pardon to which first offenders are entitled upon completion of their sentence under Section 5(E) of Article IV of the 1974 Constitution of Louisiana is not applicable to offenses which occurred prior to January 1, 1975, the effective date of the Constitution of 1974. State v. Williams, 326 So.2d 815 (La.1976). Thus, in the absence of a pardon from the President, for his 1971 offense against the United States, Bell was not qualified to serve as a juror during Baxter’s trial. There is no evidence in this record which supports a finding that Bell had been pardoned.

When the disqualification of a petit juror is discovered for the first time after verdict, this fact may be urged in a motion for a new trial under subparagraph 4 of Article 851 of the Code of Criminal Procedure, upon the allegation that

“The defendant has discovered, since the verdict or judgment of guilty, a prejudicial error or defect in the proceedings that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before the verdict or judgment . . .

The rule which has long been recognized by this Court is that in order for a defendant to avail himself of the lack of qualification of a juror, it must be made to appear that the disqualification of the juror was not known to defendant, or his counsel, when the juror was accepted by him and could not then have been ascertained by due diligence; and it must be made to appear that such diligence was exercised by an examination of the juror, on his voir dire, touching his qualifications, and that he answered falsely. State v. Hall, 255 La. 854, 233 So.2d 541 (1970); State v. Lewis, 161 La. 696, 109 So. 391 (1926); State v. Holbrook, 153 La. 1025, 97 So. 27 (1923); State v. Nash, 45 La.Ann. 1137, 13 So. 732 (1893).

Only one of the two defense lawyers said that he was unaware of the prospective juror’s lack of qualifications until after verdict, the information having been brought to his attention by “rumors”. The other attorney made no statement on the subject nor did the defendant. Such a limited showing is inconclusive, except as to the attorney who testified. This leaves unsettled whether the other attorney or defendant may have known something which would have, or should have, required the defense to explore the possibility of Bell's criminal record more diligently on voir dire examination. With the record in this state, the defense has not satisfied its burden of showing the requisite lack of knowledge. Although lack of knowledge is a negative, the burden of proof is not unduly burdensome in this case because lack of knowledge is a fact peculiarly within the knowledge of the other defense counsel and defendant. They were present at the hearing and did not testify. A presumption exists in law “that evidence under the control of a party and not produced by him was not produced because it would not have aided him.” La. Rev.Stat. 15:432.

A matter of further concern is the fact that defense counsel did not interrogate Bell on voir dire. The state of Bell’s voir dire examination by the prosecutor was limited to generalizations. No questions were propounded inquiring into the possibility of a prior criminal record, except to ask whether he had been charged with any “violent” crimes. At least that is the way Bell understood the questions, and he answered in the negative. If any doubt existed whether the prosecutor asked Bell if he had ever been charged or convicted of a “serious crime” (felony), due diligence on the part of defense counsel would require that he make proper inquiry into this subject if he felt that such a disqualification would be prejudicial. This was not done.

It is suggested that the defense should not be required to question prospective jurors too extensively on their criminal records, for to do so may create the impression that the prospective juror is suspected of having a criminal record and such an interrogation would prejudice the prospective juror against the defendant. On the other hand, the defense should not be permitted to sit by during voir dire examination and learn as little as possible about a prospective juror, and then, after an unfavorable verdict, discover or seek out a ground for disqualification and demand a new trial.

Voir dire of prospective jurors is specifically designed to test their qualifications and competency. An accused has “a right to full voir dire examination” for this purpose. La.Const. art. I, § 17. If not qualified, the prospective juror can be challenged for cause before he is sworn. La. Code of Crim.Pro. arts. 795, 797. This procedure is designed to protect the defendant and the State from unqualified and incompetent jurors and to avoid an aborted trial if an incompetent juror should serve.

Bell’s former conviction and imprisonment would ordinarily incline him to compassion for others accused of crime. The defense, therefore, would be less concerned than the State with the fact that a prospective juror had previously been convicted of a felony, a factor which could have induced defense counsel to forego inquiry into Bell’s former criminal record.

This case is unusual in that Bell was apparently entirely honest in answering that he had not been charged with a violent crime, and he was careful to limit his responses to that category. He testified that while imprisoned he was told his was not a violent crime and he was allowed on work details, a privilege not accorded those convicted of violent crimes; hence the reason for his careful distinction between violent and serious crimes. When this distinction was made at the voir dire examination defense counsel should have been alerted to make further inquiry.

For the reasons assigned, the ruling of the trial judge on the motion for a new trial was correct, and defendant’s convictions and sentence are affirmed.

DIXON, J., respectfully concurs not agreeing with the discussion of the power of the governor to pardon.

CALOGERO, J., dissents and assigns reasons.

CALOGERO, Justice,

dissenting.

This trial was not conducted in accordance with law. A juror was clearly unqualified. His presence on the jury invalidates the verdict.

For this reason I dissent.