author: CHARLES CARROLL, Associate Judge.

text:
    Grace E. SHINDLER, Appellant, v. STATE WIDE RECOVERY AND RESEARCH CORPORATION, Appellee.
    No. 76-16.
    District Court of Appeal of Florida, Third District.
    April 27, 1976.
    Crary, Buchanan & Meginniss and James L. S. Bowdish, Stuart, for appellant.
    Neil Flaxman, South Miami, for appel-lee.
    Before HENDRY and HAVERFIELD, JJ. and CHARLES CARROLL (Ret.), Associate Judge.
   CHARLES CARROLL, Associate Judge.

This is an interlocutory appeal by the defendant below from an order relating to venue, as provided for by Rule 4.2(a) F. A.R.

The pertinent facts bearing on the question of venue, as revealed by the complaint and its exhibits and the defendant’s motion claiming lack of venue in Dade County and its supporting affidavits, may be summarized as follows.

The action, filed in the circuit court of Dade County, is by the holder of a dishonored check, against the maker, for recovery of the amount of the check. The defendant Grace E. Shindler, who resides in St. Lucie County, for consideration made and delivered a check for $5,000.00 to one Norman Peetluck. The check was drawn on The First National Bank and Trust Company of Stuart, a bank having its office and place of business in Martin county. The payee endorsed the check and transferred it for consideration to the plaintiff State Wide Recovery and Research Corporation. The latter thereafter deposited the check in an account maintained by it in United National Bank of Dadeland, in Dade county. The check was dishonored by the drawee bank, for insufficient funds. It was returned to the plaintiff-holder by the United National Bank of Dadeland, with a written notice that the check had been dishonored for insufficient funds and that the amount thereof had been charged to the holder’s account in said bank (thereby indicating that when the check had been deposited there for collection the plaintiff’s account had been credited with such sum).

The trial court denied the defendant’s motion, by an order in which it was held that the cause of action accrued in Dade county because the check was presented for payment to a bank in Dade county and was returned there for insufficient funds by the Martin county (drawee) bank.

Section 47.011 Fla.Stat., F.S.A., relied on by the defendant in moving for change of venue, provides as follows:

“Actions shall be brought only in the county where the defendant resides, where the cause of action accrued, or where the property in litigation is located. This section shall not apply to actions against nonresidents”.

The determinative question here is whether the cause of action accrued in Dade county, as contended for by the plaintiff-appellee and as held by the trial court, or accrued in Martin county, as contended by the defendant-appellant. Contrary to the holding of the trial court, and in conformity to the contention of the appellant, in decisions by the first district court of appeal and this court, it has been held that in circumstances such as this case presents the holder’s cause of action for recovery on the dishonored check accrued when, and at the place where the drawee bank refused payment.

In Permenter v. Bank of Green Cove Springs, Fla.App. 1962, 136 So.2d 377, decided by the first district court of appeal, Permenter issued a check to the Bank of Green Cove Springs (located in Clay county), drawn on The Atlantic National Bank of Jacksonville (located in Duval county). Thereafter, upon direction of Permenter, the Jacksonville bank refused payment of the check. The bank of Green Cove Springs, the payee, sued Permenter in Du-val county. The defendant Permenter moved to dismiss, contending the cause of action accrued in Clay county because the transactions surrounding the issuance of the check took place there. The trial court granted the motion, holding venue did not lie in Duval county. The appellate court reversed, sustaining the venue in Duval county, holding the check was a written contract to be performed at the place of business of the drawee.

In Bank of Hallandale v. Joe Sullivari's Concrete Service, Inc., Fla.App.1968, 216 So.2d 260, this court followed Permenter. In the Hallandale case, the Bank of Hal-landale, located in Broward county, as maker, issued a check made payable “To the order of Central Bank of North Dade, for credit to the account of Joe W. Sullivan Concrete Service, Inc.”. In the opinion it is not shown where the check was presented for payment or was deposited. However, when the check reached the Bank of Hallandale in Broward county it was dishonored. An action by the holder to collect on the check was filed in the circuit court of Dade county. The defendant Bank of Hallandale moved to dismiss for improper venue. The trial court denied the motion. In reversing, this court said:

“In Permenter the court held that ‘a check is a written contract to be performed at the place where is located the banking house or place of business of the person on whom it is drawn * * *.’ Under this rule the place of performance (payment) in the present case is the drawee-appellee’s place of business; the cause of action, if any, therefore accrued in Broward County. * * *

We have been presented with no argument sufficient to cause us to decide this case contrary to the holdings in Permenter and Hallandale, on the authority of which we hold the cause of action sued upon in the instant case accrued in Martin county.

Accordingly, we hold the trial court erred in denying the defendant’s motion challenging venue in Dade county. The order appealed from is reversed, and the cause is remanded to the circuit court with direction to enter an appropriate order pursuant to Rule 1.060(b) F.R.C.P., transferring the case either to Martin county (where the cause of action accrued) or to St. Lucie county (where the defendant resides), as the plaintiff may elect, provided however that such transfer may not be made to the county where the defendant resides, rather than to Martin county, unless the defendant shall consent thereto. See § 47.163 Fla.Stat., F.S.A.; Mann v. Goodyear Tire and Rubber Company, Fla.1974, 300 So.2d 666.

It is so ordered.


source: Caselaw Access Project

author: RAWLS, Acting Chief Judge.

license: Public Domain

text:
    Homer ADKINS, Appellant, v. STATE of Florida, Appellee.
    No. Y-506.
    District Court of Appeal of Florida, First District.
    May 5, 1976.
    Richard W. Ervin, III, Public Defender; and Louis G. Carres, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for appellee.
   RAWLS, Acting Chief Judge.

Appellant, Homer Adkins, seeks reversal of his concurrent sentences of one year upon three counts of assault and battery on the ground that such sentences are cumulative and in violation of the single transaction rule. An accused, upon conviction, may be sentenced for each such offense, when violence was offered to three persons, regardless of whether such criminal conduct may be said to have occurred within a single criminal episode. Rodgers v. State, 325 So.2d 48 (Fla.App.2 1975), and Robinson v. State, 323 So.2d 62 (Fla. App.l 1975).

Appellant Adkins also contends that the trial court was not authorized under Florida Statute 948.01(4) to place the appellant on probation for a period of two years after serving three months in the Duval County Jail, in that the probationary period exceeded the concurrent one year sentences imposed. A myriad of cases in the four appellate districts of this state have treated this question with varying results. However, as we read the recent Supreme Court decision in State v. Jones, 327 So.2d 18, opinion filed January 14, 1976, the sentence imposed is lawful, and Adkins’ contention is without merit. Also see Scott v. State, Supreme Court, 326 So. 2d 165, opinion filed January 15, 1976 (no Petition for Rehearing filed).

AFFIRMED.

MILLS and SMITH, JJ., concur.


author: PER CURIAM.

text:
    Marianne YAKELWICZ, Appellant, v. L. C. BARNES et al., Appellees.
    No. 75-1013.
    District Court of Appeal of Florida, Third District.
    March 17, 1976.
    Rehearing Denied May 12, 1976.
    Harold A. Lassman, Miami, for appellant.
    Granville E. Petrie, Jr., Miami, for ap-pellees.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Plaintiff appeals an adverse final judgment finding that defendant insurance company did not afford coverage in this action for damages for injuries sustained as a result of the alleged negligent operation of a motorcycle.

On May 21, 1970, plaintiff, Marianne Yakelwicz, was a passenger on a motorcycle owned by L. C. Barnes and being operated by Randall Lynn Barnes when it collided with another vehicle causing serious injury to the plaintiff. In May 1974 Marianne filed suit against L. C. and Randall Lynn Barnes and their insurer, Reserve Insurance Company, appellees herein. L. C. and Randall Barnes were served by con- . structive service (§§ 48.151, 48.161, 48.171, Fla.Stat.) and defendant insurer was served through the insurance commission. On June 7 plaintiff’s motion for entry of default against defendant insurer was granted. In August, defendant insurer moved to set aside the default on the ground of excusable neglect due to a misplacement of the file. Defendant insurer also alleged that it had a meritorious defense in that its policy specifically excluded claims of passengers on the insured motorcycle. After hearing the trial judge set aside the default and defendant insurer filed its answer. The issue of coverage was tried non-jury and the judge entered the appealed judgment finding that defendant insurer did not afford coverage to the plaintiff.

Plaintiff-appellant first argues that the exclusion as to passengers contained in this standard liability policy without calling the attention of the insured to it is unconscionable.

After a reading of the motorcycle insurance policy issued by the defendant-appellee, we find the policy in clear and unambiguous language excludes bodily injury of any person “sustained while such person is a passenger in or upon . the insured motorcycle.” Thus, appellee insurer was not liable for the injuries sustained by plaintiff while she was a passenger on the motorcycle. See Winter Garden Ornamental Nursery, Inc. v. Cappleman, Fla.App.1967, 201 So.2d 479.

Plaintiff next contends that such a liability insurance policy which excludes from coverage passengers on the insured motorcycle violates the financial responsibility act.

There being no proof or evidence that this insurance policy ever was certified as proof of financial responsibility by the insured motorcycle owner so as to invoke the provisions of the financial responsibility law (§ 324.151(2), Fla.Stat.), the passenger exclusion was not in violation of the law or the public policy of this state. See Ennis v. Charter, Fla.App.1974, 290 So.2d 96.

We also considered appellant’s remaining points on appeal and find they are without merit.

Affirmed.


text:
    Donna KLAVANS, Appellant, v. Jack KLAVANS, Appellee.
    No. 75-664.
    District Court of Appeal of Florida, Third District.
    March 23, 1976.
    Rehearing Denied May 11, 1976.

      Markus, Winter & Spitale, Paul E. Gif-ford, Miami, for appellant
    Storace, Hall & Hauser, Miami, for ap-pellee.
    Before BARKDULL, C. J., and HEN-DRY and HAVERFIELD, JJ.
   PER CURIAM.

Appellant, Donna Klavans, seeks reversal of that provision of a final dissolution of marriage judgment awarding custody of the four year old daughter, Marti, to the father, Jack Klavans.

Donna Klavans filed a petition for dissolution of the six year marriage to Jack Klavans and prayed that she he awarded custody of their only child Marti, three years old at the time. Jack counterpeti-tioned for dissolution also seeking custody of Marti. After finding that “both parties, the father and the mother, are equally fit and proper parents to have custody of the minor child, to wit: Marti Klavans, four years of age . . .,” the chancellor dissolved the marriage between the parties and awarded custody of Marti to Jack. Donna appeals the custody award. We reverse.

The law still remains that where equal consideration given to the father in determining child custody results in the finding that the parties are equally fit to have custody, children of tender years should be awarded to the mother. See Anderson v. Anderson, Fla.1975, 309 So.2d 1; Silvestri v. Silvestri, Fla.App.1975, 309 So.2d 29; Forman v. Forman, Fla.App.1975, 315 So. 2d 9.

Both parents having been found equally fit and Marti being a child of tender years, the chancellor erred in awarding custody of Marti to the father, Jack Klavans. We reverse the custody provision of the dissolution judgment and remand the cause to the chancellor with directions to enter an order awarding custody of Marti to the mother, Donna Klavans, with reasonable visitation rights being given to the father.

It is so ordered.


author: PEARSON, Judge. NATHAN, Judge

text:
    Mae Diamond GARFINKL, Appellant, v. Nathaniel GARFINKL, Appellee. Mae Diamond GARFINKL, Appellant, v. Howard N. GALBUT, Executor of the Estate of Nathaniel Garfinkl, Deceased, Appellee.
    Nos. 74-1711, 74-1749.
    District Court of Appeal of Florida, Third District.
    March 30, 1976.
    Rehearing Denied May 12, 1976.

      Horton, Perse & Ginsberg, William W. Bailey, Miami, for appellant.
    Theodore M. Trushin and Michael B. Solomon, Galbut & Galbut, Miami Beach, for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PEARSON, Judge.

There has recently appeared in the opinions of the District Courts of Appeal of Florida the concept that a dissolution of a marriage may be entered upon a determination that the marriage is irretrievably broken with the trial court by subsequent judgment proceeding to settle the financial problems of the dissolution. See Klarish v. Klarish, Fla.App.1974, 296 So.2d 497; Becker v. King, Fla.App. 1975, 307 So.2d 855, 860; Hyman v. Hyman, Fla.App. 1975, 310 So.2d 378; In re Marriage of Golub, Fla.App.1975, 310 So.2d 380. This appeal is concerned with such an order.

The difficulties which may be caused by such a procedure are illustrated, in part, by the facts of this case. The deceased ap-pellee, Nathaniel Garfinkl, a wealthy, elderly man, filed for dissolution of his marriage to his wife, .Mae Diamond Garfinkl, the appellant. Mae answered and denied that the marriage was irretrievably broken. A trial date was set. Mae did not attend but evidence was submitted by Nathaniel that the marriage was irretrievably broken. The judge entered an order entitled “Partial Final Judgment of Dissolution of Marriage” in which he provided:

“That the marriage of NATHANIEL GARFINKL and MAE DIAMOND GARFINKL, his wife, is irretrievably broken and therefore said marriage is hereby dissolved.
“IT IS FURTHER ORDERED AND ADJUDGED:
“That the Court shall reserve for final determination the question of the Respondent-Wife’s Petition for affirmative relief which shall be determined at a later Hearing to be set.”

Nathaniel died and his executor has been substituted. Mae has filed two appeals from the order dissolving her marriage; the first filed before the substitution of the executor and the second filed after the substitution. The appeals have been consolidated. The single point presented urges a procedural error in that the trial judge entered the order of dissolution “without hearing or considering appellant’s testimony regarding whether or not the subject marriage is irretrievably broken.”

The record shows that the petition for dissolution of marriage was filed August 1, 1973; after answer and discovery the cause was set on the trial calendar. Because of the wife’s illness and consequent inability to attend, the trial was continued and reset for September, 1974. The cause came on for hearing on September 13, 1974, with counsel for both parties present. The court announced that a further hearing would be necessary. The court realized that there were plans to take the wife’s deposition in New York State because of her illness and announced that a commissioner would be appointed.

The continued hearing was had on October 8, 1974/ with both counsel present, but the wife’s deposition had not been taken. Over the objection of the wife’s counsel that the action was premature and that the wife wished to submit evidence by deposition concerning the court’s jurisdiction, the court announced that it would grant “the partial, the dissolution of marriage, and leave for final determination the equities between the parties in regard to property.” The trial judge suggested the procedure that he followed and, pursuant to his suggestion, the husband made an oral motion at the hearing for the order dissolving the marriage. The appealed order was entered on November 15, 1974.

As above noted, the appellant wife urges that she was deprived of her day in court and that, therefore, due process was not afforded her. The appellee husband urges that the judge properly entered the order because (1) the wife failed to ask for a continuance of the trial and, therefore, waived any objection to the order dissolving the marriage and (2) the court had the discretion to grant the dissolution upon the conclusive evidence of the husband that the marriage was irretrievably broken.

We hold that it was error for the trial judge to enter the order dissolving the marriage at a hearing where the motion for such an order was made upon the trial judge’s own suggestion. In the instant case, it was also error for the trial judge to announce that he would consider the wife’s deposition and then at the continued hearing to regard the matter as determinable without evidence from the wife. We do not imply that it was necessary for the judge to wait indefinitely but there was no showing that the trial judge determined that the wife had not proceeded with diligence in the securing of her deposition in New York. It is noted from the record that the trial judge on October 9, 1974, after announcing that he would enter the order dissolving the marriage, entered an order appointing a commissioner in the state of New York to take the wife’s testimony. Under these circumstances and in the absence of a showing in this record of a need for haste in the matter, we think that the trial judge acted precipitously. The Supreme Court of Florida in Ryan v. Ryan, Fla.1973, 277 So.2d 266, passed upon the constitutionality of the present dissolution of marriage law and discussed the proof necessary for a determination of whether the marriage is irretrievably broken and, as a caveat, held:

“We do not view the matter of dissolution as being such a simple, unilateral matter of one mate simply saying T want out.’ All of the surrounding facts and circumstances are to be inquired into to arrive at the conclusion as to whether or not indeed the marriage has reached the terminal stage based upon facts which must be shown.”

There is an absence of guidelines in the decided cases for the entry of an order dissolving a marriage prior to the settlement of property rights. Therefore, the trial judge cannot be held to have disregarded clear rules established for the entry of such an order. For the purpose of this decision, it is sufficient to point out that the granting of an order dissolving the marriage prior to final judgment is an unusual and often unnecessary step. The parties are, by such an order, placed in the position where, under the decided cases, the order is interlocutory. See Hyman v. Hyman, Fla.App.1975, 310 So.2d 378. Therefore, it is subject to change by the trial judge upon a showing of error prior to the termination of the cause.

In the present instance, if the wife had been given notice that the court would consider the dissolution of marriage at the second hearing, it is possible that her testimony would have been available to the court. At the time the trial judge entered the order, the wife had no notice that the matter would be considered at the continued hearing. At the time the first hearing was continued, the plaintiff husband had not rested. Since the defendant has no duty to present evidence until the plaintiff has rested, we hold that the wife was effectively deprived of notice of hearing and of the opportunity to present evidence by the court’s suggestion and the order entered pursuant to oral motion. See the rule in Mayflower Inv. Co. v. Brill, 1939, 137 Fla. 287, 188 So. 205; Eagle v. Carr, 1943, 153 Fla. 224, 14 So.2d 268; and Lewis v. Hot Shoppes, Fla.App.1968, 211 So. 2d 20.

We regard the questions presented on this appeal to be of such importance that they should be settled by the Supreme Court of Florida. This is true both of the decision in this case and of the question of whether an order dissolving a marriage prior to final judgment shall be regarded as an interlocutory order as held by our sister court in Hyman v. Hyman, supra, or as a partial judgment as noted by the present trial judge. We have determined, therefore, that the decision in this cause will be certified to the Supreme Court of Florida pursuant to Fla.Const. Art. V, § 3(3).

Accordingly, the order dissolving the marriage is reversed.

NATHAN, Judge

(specially concurring).

I concur only in the result. See my dissent in Kipnis v. Kipnis, Fla.App., 330 So. 2d 67.

      . Additional difficulties appear as to the title of real property pendente lite.

      . It appears that the trial court may have opened the “floodgates” referred to by Chief Judge McNulty in his dissent in In re Marriage of Golub, Fla.App.1975, 310 So.2d 380, where he said:
      “I fear such a departure from precedent in permitting interlocutory judgments of dissolution will open the floodgates to untold, unforeseeable vices. I must, accordingly, dissent, and would answer the question in the affirmative.”


author: HAVERFIELD, Judge.

text:
    CENTENNIAL INSURANCE CO., Appellant, v. Loretta WALLACE, acting as personal representative of the Estate of William J. Wallace, Deceased, Appellee.
    Nos. 75-106, 75-393, 75-457, 75-458 and 75-459.
    District Court of Appeal of Florida, Third District.
    April 6, 1976.
    Rehearing Denied May 12, 1976.

      Gladson, Knecht & Sullivan, Coral Gables, for appellant.
    Horton, Perse & Ginsberg, Miami, Bernard H. Butts, Hialeah, for appellee.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   HAVERFIELD, Judge.

Plaintiff appeals a summary final judgment determining defendant to be entitled to the uninsured motorist coverage under its policy, and several orders on an attorney’s fee award.

This controversy arises out of the electrocution death of William Wallace, husband of defendant-appellee, Loretta Wallace. On January 3, 1973 the deceased, an employee of Florida Power and Light Company (FPL) was working foreman of a five man crew assigned the task of stringing a wire between two poles which carried two other power lines conducting 7,620 watts of electricity. Wallace was standing on the ground stretching out the wire to be strung while another crew member, Gary Cochrane, was standing in the turret of the winch truck, a large vehicle with a swivel boom. The truck was immobilized by hydraulically operated arms or feet attached to the sides of the rig and lowered to the ground to prevent the truck from tipping when the turret moved. As Cochrane began to swing the winch boom to his right, the turret jerked causing the winch line to sway into the power lines above and the electric current communicated itself to Wallace resulting in his electrocution.

At the time of his fatal accident, Wallace was insured under an automobile liability policy issued by the plaintiff-appellant, Centennial Insurance Company. Gary Cochrane, operator of the winch truck, had an automobile insurance policy with State Farm which refused to acknowledge liability upon a claim being filed against it by Loretta Wallace. The winch truck was self-insured by FPL pursuant to § 324.171, Fla.Stat.; nevertheless, FPL was immune from liability by virtue of § 440.11, Fla. Stat Mrs. Wallace filed a claim with appellant under the uninsured motorist provision of her deceased husband’s policy. Appellant denied the claim and instituted an action seeking judicial declaration that there is no uninsured motorist coverage on the grounds that the winch truck was not in use as a vehicle, but rather was being employed as stationary construction equipment; the vehicle was self-insured, not uninsured. Mrs. Wallace answered and counterclaimed for declaratory relief. She contended that she was entitled to the uninsured motorist coverage because although the winch truck was self-insured by FPL, the insurance was not available because her deceased husband was an employee of FPL and could not maintain an action against his employer in tort (pursuant to § 440.11, Fla.Stat.); Gary Cochrane was uninsured in that his insurer denied responsibility. After pretrial discovery, Mrs. Wallace moved for summary judgment which the trial judge granted in her favor on the issue of uninsured motorist coverage. The judge then entered several orders with regards to attorney’s fees culminating in an amended order of March 4, 1975 awarding appellee’s counsel $6,000 plus 40% of any award made in arbitration or in settlement in addition to any contractual arrangement between appellee and her attorney.

Appellant contends the trial judge erred in finding that the winch truck involved in the accident was an automobile within the uninsured motorist provision of the decedent’s automobile policy.

We find that the winch truck is a vehicle and was self-insured by its owner, FPL. Further, there is no doubt that the fatal accident arose out of the use of the truck. See Great American Insurance Co. v. General Accident Fire & Life Assurance Corp., 321 F.2d 948 (5th Cir. 1963) and Valdes v. Smalley, Fla.App.1974, 303 So.2d 342.

Appellant next argues it was error for the trial judge to find that the winch truck was uninsured and to grant summary judgment. This point has merit.

In interpreting an automobile insurance policy the courts have followed the definitions given in the policy itself. Dorrell v. State Fire and Casualty Company, Fla.App.1969, 221 So.2d 5 and cases cited therein. Appellant’s policy excludes from the definition of an uninsured vehicle “an automobile which is owned by a self-insurer within the meaning of any motor vehicle financial responsibility law . . . ,” and all parties concede that the winch truck was self-insured by FPL. Thus, the truck is not an uninsured vehicle under the terms of appellant’s policy.

We must also reject appellee’s argument that because FPL is immune from liability by virtue of workmen’s compensation laws (§ 440.11), the winch truck is an uninsured vehicle. Where a vehicle is covered to the extent of the law, it is not an uninsured vehicle simply because coverage may not be available to the injured party under the circumstances. See Taylor v. Safeco Insurance Co., Fla.App.1974, 298 So.2d 202.

In light of our disposition of this point, it is apparent the orders awarding appellee attorney’s fees are erroneous.

Accordingly, the final summary judgment and orders on attorney’s fees are reversed and the cause remanded to the trial court for further proceedings not inconsistent herewith.

      . “440.11 Exclusiveness of liability
      “(1) The liability of an employer prescribed in § 440.10 shall be exclusive and in place of all other liability of such employer to any third party tort-feasor and to the employee, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death, except that if an employer fails to secure payment of compensation as required by this chapter an injured employee or his legal representative, in case death results from the injury, may elect to claim compensation under this chapter, or to maintain an action at law or in admiralty for damages on account of such injury or death. In such action the defendant may not plead as a defense that the injury was caused by negligence of a fellow servant, nor that the employee assumed the risk of his employment, nor that the injury was due to the contributory negligence of the employee.”


text:
    Aimee CAMARA, Appellant, v. Pedro Pablo de la CAMARA, Appellee.
    No. 75-266.
    District Court of Appeal of Florida, Third District.
    April 6, 1976.
    Rehearing Denied May 12, 1976.
    Sibley, Giblin, Levenson & Ward, Miami, for appellant.
    Frates, Floyd, Pearson, Stewart, Proenza & Richman, Miami, for appellee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Respondent wife, Aimee Camara, appeals from the property alimony and attorneys fees provisions of the judgment dissolving her marriage to the petitioner husband, Pedro Pablo de la Camara.

The husband and wife were married in Cuba in 1936 and resided there until 1960 at which time they came to live in the United States. Since then, both parties have been domiciled in and have become citizens of the United States, the husband now residing in Florida.

The husband was a lawyer in Cuba and had about $250,000 in various real estate properties located in Cuba, some of which he inherited and others which he purchased. These properties were taken by the Cuban government at the time the husband left Cuba. Upon arrival in the United States he had approximately $170,000 in stocks and bonds which he owned and which were held in brokerage accounts in the United States. The wife, while in Cuba, inherited approximately $100,000 in cash and brought to the United States approximately $80,000 in cash and $58,000 in stocks and bonds owned by her and held by a United States brokerage firm. The major source of the wife’s accumulation of assets came from her inheritance. The parties separated in 1962, and have not lived together since that time. Since 1962, the husband has given the wife approximately $92,000 in support money and has supported their two children who have now reached their majority. The husband has worked for modest salaries since 1962, and is 72 years of age. He now lives on the dividends and interest on his stock holdings as does the wife.

The main thrust of the wife’s appeal is that the marriage property law of Cuba (Sociedad de Gananciales) applies to the property of the parties and, therefore, she is entitled to one-half of the husband’s assets.

In the final judgment of dissolution of marriage, the trial court found that,

1. The parties have not lived together as man and wife in a normal family relationship for approximately twenty years.
2. That during the period of at least the last twelve years, the Petitioner has been making voluntary payments to the Respondent far in excess of his ability to provide and her need therefor.
3. That part of the means that Petitioner used to pay the aforesaid sums to the Respondent was by liquidation of principal rather than from earned income.
4. That the stocks now held by the Petitioner have been in large part purchased while in the United States with no showing as to whether the funds used to purchase these stocks were, in fact, directly related to the stocks purchased while in Cuba, or what series of transactions actually led up to and resulted in the stocks now held.
5. That a substantial portion of the “moveables” were acquired by the Petitioner, after having left Cuba, and the requisite facts for the establishment of a resulting trust in the after acquired property has not been shown.
6. That the granting of lump sum alimony, as hereafter set forth, would in effect equal the Respondent’s interest in the ‘Sociedad de Gananciales’ as to those moveables acquired prior to leaving Cuba, even if said ‘Sociedad de Ganan-ciales’ was found to exist, and to be applied as the rule of law herein.
7. The Petitioner has sustained the allegations of his complaint.
NOW, THEREFORE, it is
ORDERED AND ADJUDGED:
1. That the bonds of marriage between the Petitioner, PEDRO PABLO de la CAMARA, and the Respondent, AIMEE CAMARA, are dissolved because the marriage is irretrievably broken.
2. That lump sum alimony in the sum of Twelve Thousand and No/100 Dollars ($12,000.00) is granted to the Respondent from the Petitioner. Said lump sum alimony to be payable at the rate of Five Hundred and No/100 Dollars ($500.00) per month commencing the first day of February, 1975, and the first day of each month thereafter until fully paid, or by payment in full at any time of the balance then remaining unpaid.
3. Each party is to bear his own attorney’s fees and costs.

The interest of one spouse in moveables acquired by the other during marriage is determined by the laws of the domicile of the parties when the moveables are acquired. Quintana v. Ordono, Fla.App.1967, 195 So.2d 577, and cases cited therein. Therefore, Cuban law applies to moveables owned by the parties in 1960, thereafter brought to the United States. It must, then, be proved that the moveables now in possession of the husband are conjugal property. If a portion of the consideration for the husband’s assets belongs to the wife and such assets are taken in the husband’s name, a resulting trust arises in her favor by implication of the law. Quin-tana v. Ordono, supra. We then look and apply the findings of fact made by the trial court in the case presently before us and apply the law applicable thereto. We are of the opinion that, from the testimony and documentary evidence presented by the parties, there is substantial competent evidence to support the finding and judgment of the trial court as to the property rights of the husband and wife and the alimony award.

We find no abuse of discretion in the judgment of the ^trial court in requiring each party to bear his/her respective attorneys fees and court costs.

Affirmed.

      . Sociedad de Gananciales provides in pertinent part:
      “Art. 1392. By virtue of the conjugal partnership the earnings or profits indiscriminately obtained by either of the spouses during the marriage shall belong to the husband and the wife, share and share alike, upon the dissolution of the marriage.
      Art. 1396. The following is the separate property of each of the spouses:
      1. That brought to the marriage as his or her own.
      2. That acquired for a good consideration by either of them during the marriage.
      3. That acquired by right of redemption or by exchange for other property belonging to one of the spouses only.
      4. That bought with money belonging exclusively to the wife or to the husband.
      Art. 1398. Property bestowed as a gift or left by will jointly to the spouses and with a designation of specified shares shall belong as dowry to the wife and as capital to the husband and in the proportion fixed by the donor or testator. .
      Art. 1401. To the conjugal partnership belong:
      1. Property acquired for a valuable consideration during the marriage at the expense of the partnership property, whether the acquisition is made for the partnership or for one of the spouses only.
      2. That obtained by the industry, salaries, or work of the spouses or of either of them.
      3. The fruits, income, or interest collected or accrued during the marriage, coming from the partnership property, or from that which belongs to either one of the spouses.
      Art. 1407. All of the property of the marriage shall be considered as partnership property until it is proven that it belongs exclusively to the husband or to the wife.
      Art. 1408. The conjugal partnership shall be liable for:
      5. The support of the family and the education of the children in common and of the legitimate children of one of the spouses only. Art. 1417. The conjugal partnership expires on the dissolution of the marriage or when it is declared void.”


text:
    JACMAR, INC., et al., Appellants, v. A. J. ARMSTRONG CO., INC., Appellee.
    No. 75-1139.
    District Court of Appeal of Florida, Third District.
    April 27, 1976.
    Gross & Berger and Terrence S. Schwartz and George J. Talianoff, Miami Beach, for appellants.

      Friedman, Britton & Stettin and Arnold D. Schatzman, William B. Roman, Miami, for appellee.
    Before BARKDULL, C. J., HENDRY, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See Martyn v. Amold, 36 Fla. 446, 18 So. 791; Gendzier v. Bielecki, Fla. 1957, See: 97 So.2d 604; Exchange National Bank of Tampa v. Hospital and Welfare Board of Hillsborough County, Fla.App.1965, 181 So.2d 9; Balfe v. Gulf Oil Company-Latin America, Fla.App.1964, 293 So.2d 82; Federated Department Stores, Inc. v. Antigo Industries, Inc., Fla.App. 1974, 297 So.2d 591; § 92.36, Fla.Stat. Compare Mastan Company v. American Homes, Inc., Fla.App.1968, 214 So.2d 103.


author: BOYER, Chief Judge. HATCHETT, JOSEPH W., Associate Judge

text:
    215-22ND STREET, INC., d/b/a Place Pigalle, Petitioner, v. BOARD OF BUSINESS REGULATION, DIVISION OF BEVERAGE OF the DEPARTMENT OF BUSINESS REGULATION, Respondent.
    No. Z-317.
    District Court of Appeal of Florida, First District.
    April 20, 1976.
    Rehearing Denied May 21, 1976.
    Cynthia S. Tunnicliff and Sam Spector, Tallahassee, for petitioner.
    J. Riley Davis, Tallahassee, for respondent.
   BOYER, Chief Judge.

Respondent, Board of Business Regulation, issued an order affirming an order of the Division of Beverage which revoked petitioner’s alcoholic beverage license. In its petition for writ of certiorari, petitioner challenges the order of license revocation, claiming that the evidence presented at the hearing did not establish a statutory violation as alleged in the notice to show cause and that the director of the Division of Beverage, Edward Ashley, was without authority to sign the order revoking petitioner’s license.

The notice to show cause charged petitioner with violation of F.S. 562.131(2) which provides:

“It is unlawful for any licensee, his employee, agerrt or servant to knowingly permit any person to loiter in or about the licensed premises for the purpose of begging or soliciting any patron or customer of or visitor in such premises to purchase any beverage, alcoholic or otherwise.”

Analysis of the statute indicates that in order to show a violation thereof, the State must prove four elements. The state must prove that (1) the licensee (or his employee, agent, or servant) did knowingly permit any person to (2) loiter in or about the licensed premises (3) for the purpose of (4) begging or soliciting. In the absence of proof of any of the foregoing elements, respondent’s case against petitioner must fall.

In order to determine whether the State met its burden, the evidence produced at the revocation hearing must be summarized. On the evening of January 23, 1974, State Beverage Agents Miles L. Johnson and William Valentine visited petitioner’s establishment. After the two agents were seated, cocktail waitress Beverly Powell approached them, informed them of the three drink minimum, and took their order. Shortly thereafter, another white female joined the agents at the table, engaged in general conversation, and departed. Some five minutes later, another female (Linda Payne) joined the men at their table with their approval. Miss Payne conversed briefly with the men, then turned to Agent Valentine and asked him if he minded if she had some wine. Agent Valentine offered no objections whereupon Miss Payne ordered a bottle of red wine. Miss Payne asked the agents if they would like to have “Miss Body Beautiful” (a/k/a Miss Paseley Pop a/k/a Kathy Lawler) sit at their table. When the agents expressed approval, Miss Payne told waitress Powell to bring Miss Body Beautiful to the table. Upon arriving, she also engaged the agents in general conversation and, after a short time, asked Agent Johnson whether he minded if she had some wine. The cocktail waitress brought two small bottles of wine to the table for the two women. When these were consumed, the two women asked the agents if there were any objections to their having some more wine. Hearing none, the women ordered two more bottles of wine, with Miss Body Beautiful specifying large bottles. President of petitioner indicated that he paid his employees bonuses at the end of every week based on the amount of wine purchased when they sat with customers. He also testified that both Miss Payne and Miss Body Beautiful were employed by him as exotic dancers, but that on the night in question they were not performing. At the end of the evening, cocktail waitress Powell presented the agents with a bill which totaled $129.40, each agent being charged $10.40 for the three drink minimum, $19.50 for each small bottle of wine, and $35.15 for each large bottle of wine. The agents paid the bill, and left the premises.

Our detailed examination of the evidence presented at the hearing as summarized above indicates a complete dearth of testimony on the element of “loitering”. It is undisputed that the two women who were allegedly soliciting Agents Johnson and Valentine on the evening in question were employees of petitioner, even though they were not actively engaged that night in their normal capacity as exotic dancers. Petitioner significantly asks, “Can a bona fide employee loiter on his place of business ?” Our answer, under the circumstances of this case, is in the negative. Black’s Law Dictionary defines “loiter” as “to he dilatory; to be slow in movement; to stand around or move slowly about; to stand idly around; to spend time idly; to saunter; to delay; to idle; to linger; to lag behind.” The actions of the females involved in this case do not bring them within any legally accepted definition of “loiter”.

Our opinion should not be construed as an expression of judicial approval of the actions involved herein. We do not condone B-girls, or liquor being sold at exorbitant prices. However, the legislature, not the courts, must determine what is prohibited and clearly express such prohibitions in proper statutory language. Here, the conduct for which petitioner was punished is not proscribed by statute. Until the legislature does pass an appropriate statute, the type of conduct which is involved in the instant case cannot serve as a basis for the revocation of an alcoholic beverage license. (See Garcia v. Munro, 1958, 161 Cal.App. 2d 425, 326 P.2d 894)

Petitioner also claims that Director Edward B. Ashley of the Division of Beverage did not have the statutory authority to sign the order revoking petitioner’s license. Pursuant to F.S. 20.16(4), the executive director of the Board of Business Regulation appointed Mr. Ashley on August 9, 1974. On November 12, 1974, one month after Director Ashley signed the order revoking petitioner’s alcoholic beverage license, the full Board of Business Regulation voted to confirm Mr. Ashley’s appointment effective retroactively to August 9, 1974. Petitioner argues that inasmuch as Director Ashley had not been confirmed by the Board of Business Regulation prior to the time that he signed the order revoking petitioner’s license, he acted without statutory authority, and the order involved herein should be declared null and void under Treasure, Inc. v. State Beverage Department, Sup.Ct.Fla.1970, 238 So.2d 580. We have concluded that the Treasure, Inc. decision is not dispositive of the issue before us. The Supreme Court in its Treasure, Inc. decision discussed the power of the beverage director under F.S. 561.29 (1967) and held that before a substitute director could be appointed, he must have been formally commissioned and taken an oath of office under the appropriate sections of the 1885 Florida Constitution. The instant case is governed by drastically different constitutional and statutory provisions. F.S. 561.29 was amended in 1969 so that the Division of Beverage rather than the beverage director now has the power to suspend or revoke licenses. We are not prepared to say that this change in language . is meaningless. Moreover, under Article 4, Section VI of the Florida Constitution (1968. Rev.), all functions of the executive branch are to be allotted among not more than 25 departments, the administration of which are to be placed by law under the direct supervision of the Governor and other enumerated State officers and entities, including boards appointed by and serving at the pleasure of the Governor. This Constitutional provision reflects an obvious attempt to consolidate executive power and to reduce the number of State agencies exercising delegated executive functions. Thus, no longer is the beverage director directly appointed by the Governor, nor is he directly authorized to exercise the sovereign power of the State. Under the current Constitutional and statutory scheme, it is the Board of Business Regulation which administers the Department of Business Regulation and the subordinate divisions, including the Division of Beverage. Finally, the Treasure, Inc. decision dealt with the violation of specific Constitutional provisions (the taking of the oath of office and the issuing of formal commission) and held that in the absence of these Constitutional requirements, the substitute director lacked authority to exercise the State’s power. In the instant case, petitioner does not allege any Constitutional violation but merely asserts that the statutory method by which a beverage director assumes office was not followed.

Thus, the question becomes whether the statutory requirement that the director of the Division of Beverage be approved by the Board of Business Regulation is of such legal significance that any-action taken by the beverage director before fulfillment of such requirement is a nullity. Given the nature of executive power as reorganized under Article 4, Section VI of the Constitution (1968 Rev.) and the fact that the director of the Division of Beverage serves at the pleasure of the Board of Business Regulation as well as being appointed by that body, it appears logical that the Board of Business Regulation may ratify the actions of a beverage director who has been duly appointed by the Executive Director of the Board of Business Regulation but who has not been confirmed by the full board. The board attempted to accomplish this very result when, at the time it confirmed Mr. Ashley as the director of the Division of Beverage, it voted to make the confirmation retroactive from August 9, 1974. This action by the Board of Business Regulation in addition to the order appealed herein which affirmed Director Ashley’s order revoking petitioner’s alcoholic beverage license manifests an obvious intent on the part of the Board of Business Regulation to ratify Director Ashley’s actions. See 63 Am.Jur.2d, “Public Officers and Employees”, § 272. In light of the actions taken by the Board, we conclude that the order revoking petitioner’s alcoholic beverage license and signed by Mr. Ashley as Director of the Division of Beverage should be considered binding and valid.

For reasons expressed in the first part of this opinion, the petition for writ of certiorari is granted, and the order of the Board of Business Regulation affirming the order of the Division of Beverage which revoked petitioner’s alcoholic beverage license is quashed.

LEE, THOMAS E., Associate Judge, concurs.

HATCHETT, JOSEPH W., Associate Judge, concurring with opinion.

HATCHETT, JOSEPH W., Associate Judge

(concurring).

The bar owner testified that the girls’ pay depended on how much wine was ordered by customers at whose tables the girls sat. The agents testified that it was the girls who brought up the subject of wine and that they ordered it themselves on one occasion. Surely this activity is near the core of the evil at which Fla.Stat. § 562.131 (1973) is directed. It is decided today, however, that a bar employee cannot “loiter” on her own employer’s premises, within the meaning of Fla.Stat. § 562.131(2) (1973). In view of the contrasting prohibition in the preceding subsection, Fla.Stat. § 562.131(1) (1973), which forbids “any licensee, his employee, agent, servant, or any entertainer employed at the licensed premises” to ask patrons to buy them drinks, I concur in the view that subsection two of the statute only reaches persons not employed on the premises. The evidence adduced at the hearing established that the girls were employees on the premises. The agents’ testimony indicates that Ms. Lawler was working as an entertainer and other testimony shows that Ms. Payne was also employed by the bar on the night in question. Their activity constituted a violation of Fla.Stat. § 562.131(1) (1973), in my view, rather than a violation of Fla.Stat. § 562.131(2) (1973). Only because the respondent has insisted that the conduct in question violated Fla.Stat. § 562.131(2) (1973), and has not advanced subsection one as a basis on which to uphold the revocation order, do I concur in the judgment of the court.

      . The whole section reads :
      562.131 Solicitation for sale of alcoholic beverage prohibited; penalty

      (1)It is unlawful for any licensee, his employee, agent, servant, or any entertainer employed at the licensed premises or employed on a contractual basis to entertain, perform or work upon the licensed premises to beg or solicit any patron or customer thereof or visitor in any licensed premises to purchase any beverage, alcoholic or otherwise, for such licensee’s employee, agent, servant, or entertainer.
      (2) It is unlawful for any licensee, his employee, agent or servant to knowingly permit any person to loiter in or about the licensed premises for the purpose of begging or soliciting any patron or customer of or visitor in such premises to xiurchase any beverage, alcoholic or otherwise.
      (3) Any violation of this section is a misdemeanor of the second degree, punishable as provided in §§ 775.082 or 775.083.

      . Agent Johnson testified:
      Before Lawler had an opportunity to drink any of the wine from her second bottle, she had to leave the table and go change for her dance number, which she did and which we observed.

      . Mr. Ridge testified :
      Well, actually, they are waitresses. When it is slow, I got to give them some kind of job. Like, I got two girls at the door. I pay them $20 a night.


text:
    CITY OF HIALEAH, a Municipal Corporation, Appellant, v. Frank D. STOLA, Appellee.
    No. 75-1981.
    District Court of Appeal of Florida, Third District.
    April 20, 1976.
    Rehearing Denied May 12, 1976.
    Ralph F. Miles, Hialeah, for appellant.
    Francis E. Holden, Jr., Hialeah, for appellee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

The City of Hialeah appeals a partial summary judgment reinstating plaintiff, Frank D. Stola, to his former position as a permanent civil service employee with the classification of electrician in the Maintenance Division of the Department of Public Works and ordering recovery of all of plaintiff’s back pay since the date of his dismissal after a finding by the trial court that there is no genuine issue as to the sole material fact that Stola was not served by his department director with a notice of discharge.

Rule XI, Section 1 of the Civil Service Rules and Regulations of the City of Hialeah clearly require that the discharge of a permanent employee shall not become effective until the department director shall have first served that employee with a written notice of dismissal together with such facts as shall enable the employee to explain the situation in his own defense. It being undisputed that Stola was served by the assistant department director with written notice of dismissal, we find the trial judge was correct in entering summary judgment for the plaintiff. See Bryan v. Landis, 106 Fla. 19, 142 So. 650 (1932).

Affirmed.


text:
    Lewis WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1341.
    District Court of Appeal of Florida, Third District.
    April 27, 1976.
    Phillip A. Hubbart, Public Defender, and Paul Morris, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Brian H. Leslie, Asst. Atty. Gen., for appellee.
    Before BARKDULL, C. J., and HA-VERFIELD and NATHAN, JJ.
   PER CURIAM.

Counsel for the State having conceded error in this cause as it relates to the sentence, the sentence imposed upon the adjudication of guilt be and the same is hereby set aside and the matter is returned to the trial court for appropriate sentencing, taking into account the time that the defendant served in the County Jail prior to sentencing.

Reversed and remanded, with directions.


author: SMITH, Judge.

text:
    NEWPORT DIVISION, TENNECO CHEMICALS, INC., Appellant, v. Allie Mae THOMPSON and Buford Pogue, Appellees.
    No. AA-50.
    District Court of Appeal of Florida, First District.
    April 23, 1976.

      Robert P. Gaines, Beggs, Lane, Daniel, Gaines & Davis, Pensacola, for appellant.
    Lefferts L. Mabie, Jr., Levin, Warfield, Middlebrooks, Graff, Mabie, Rosenbloum & Magie, Pensacola, for appellees.
   SMITH, Judge.

Tenneco appeals from partial summary-judgments entered against it on liability in these pre-1972 survival actions by the administratrices of the estates of two men who died in a fire at Tenneco’s plant. Sec. 46.021, F.S.1971. The administratrices, Allie Mae Thompson and Buford Pogue, are also the decedents’ widows. They first obtained and collected judgments against Tenneco under the old wrongful death act, §§ 768.01-.02, F.S.1971. Considering that the parties in the present survival actions were also parties to the earlier death actions, the trial court held that the prior judgments conclude the question of Ten-neco’s liability in the present cases.

The record does not demonstrate sufficiently for summary judgment purposes that the persons beneficially interested in the two estates were parties in interest in the prior death actions. Thompson was survived by an adult child or children. Pogue was survived by one or more children whose ages were not established. The record contains no evidence of whether the decedents left wills, although the designation of appellees as administratrices implies that they did not. For aught that appears, therefore, the parties beneficially interested in these survival actions are the heirs at law, including adult children in addition to the widows. Those adult children were in no sense parties to or beneficiaries of the prior death action judgments. Because the parties to the present actions are not in all respects the same as in the prior litigation, the conventional test for res judicata or estoppel, by judgment is not satisfied by this record. Colonial Enterprises, Inc. v. Hill, 227 So.2d 481 (Fla.1969). Contrast Epps v. Railway Expr. Agency, Inc., 40 So.2d 131 (Fla.1949); Rehe v. Airport U-Drive, Inc., 63 So.2d 66 (Fla.1953).

Shearn v. Orlando Funeral Home, Inc., 88 So.2d 591 (Fla.1956), relied on by ap-pellees, involved the successive litigations of Mary Shearn, first her personal action as widow under the death act (and also as executrix suing under the survival statute) and then her personal action for her own injuries and automobile damage. The real party plaintiff in interest in the later action was therefore a party plaintiff to the earlier judgment. No such correlation has been shown in this case.

Appellees urge that we recede from the doctrine that there must be mutuality in collateral estoppel arising from a prior judgment. In terms of this case, that doctrine holds that prior judgments against Tenneco for the wrongful death of Thompson and Pogue do not now estop Tenneco to deny liability to the administratrices in these survival actions because those prior judgments, had they been instead for Ten-neco, could not estop the survival claims in behalf of persons interested in the estates who were not parties to the death actions.

Bentham’s criticism of the mutuality rule in 1827 and the California court’s rejection of it in Bernhard v. Bank of America, 19 Cal.2d 807, 811-13, 122 P.2d 892, 894-95 (1942), have attracted recent converts to the idea that a party who has had a full and fair opportunity to litigate his rights or liabilities against one adversary, and who has lost, should not ordinarily be granted further opportunities to litigate the same questions against other adversaries. There is no legitimate purpose, it is argued, in permitting Tenneco to avoid the prior adjudication of its responsibility for the death of Thompson and Pogue simply because some of the relatives now asserting Tenneco’s liability were not present when it was previously established. See Bahler v. Fletcher, 257 Or. 1, 474 P.2d 329, 332 (1970).

The mutuality doctrine is but one application — in favor of the party who was present at the prior judgment, against one who wasn’t — of the well-settled rule that there must be an “identity of persons and the parties to the action” for an estoppel to arise. Brundage v. O’Berry, 101 Fla. 320, 324, 134 So. 520, 522 (1931); Youngblood v. Taylor, 89 So.2d 503 (Fla. 1956). The requirement of mutuality has been consistently honored in Florida, although with little discussion. Its silent influence dominated the Shearn case, for example, in which the only question was whether Orlando Funeral Home, Inc., should be permitted to relitigate the question of its responsibility for the collision in which William Shearn was killed and his wife injured. The District Court of Appeal, Fourth District, explicitly declined to abrogate the mutuality rule in Daigneau v. National Cash Register Co., 247 So.2d 465 (Fla.App.4th, 1971).

We also decline to abandon the doctrine. While we may doubt that mutuality serves commonly accepted policies undergirding the doctrine of judicial finality, see Babler, supra, 474 P.2d at 332, and we are sorely tempted to grasp any remedy which promises a consolidation and expedition of litigation, yet we are persuaded that to abrogate the doctrine, in the absence of reformed procedure rules affecting joinder of parties, would lead to unjust and unpredictable impositions of estoppel. Greene-baum, In Defense of the Doctrine of Mutuality of Estoppel, 45 Ind.L.J. 1, 13 (1969).

REVERSED.

RAWLS, Acting C. J., and RUDD, JOHN A., Associate Judge, concur.

      . Because the deaths occurred in Marcli and April 1971, these actions were unaffected by ch. 72-35, Fla.Laws, §§ 768.16 et seq., F.S.1975.

      . “There is reason for saying that a man shall not lose his cause in consequence of the verdict given in a former proceeding to which lie was not a party; but there is no reason whatever for saying that lie shall not lose his cause in consequence of the verdict in a proceeding to which he was a party, merely because his adversary was not . . . . ” 3 Bentham, Rationale of Judicial Evidence 579 (1827), quoted in Bahler v. Fletcher, infra, 474 P.2d at 332-33.


author: PER CURIAM. PEARSON, Judge

text:
    Howard YACKER, Appellant, v. Jay TEITCH and Muriel Teitch, his wife, Appellees. Jay TEITCH, Appellant, v. Howard YACKER, Appellee.
    Nos. 75-605 and 75-629.
    District Court of Appeal of Florida, Third District.
    April 13, 1976.
    Rehearing Denied May 12, 1976.

      Bolles, Goodwin, Ryskamp & Welcher, Miami, for Yacker.
    Sam Daniels, Miami, for Teitch.
    Before PEARSON and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

These are consolidated appeals from a final judgment on a jury verdict in favor of the plaintiff in a defamation of character action stemming from remarks made by the. defendants about child molesting.

In the first appeal, the successful plaintiff, Howard Yacker, contends that the trial court erred in ruling that defendant, Muriel Teitch, the wife of defendant, Jay Teitch, is not liable to the plaintiff, and in entering a judgment non obstante veredicto in her favor.

The entry of a judgment non ob-stante veredicto should be tested by the rules applicable to motions for directed verdicts, for such judgment is essentially an order granting a motion for a directed verdict during trial except that the judgment is made after the jury has returned the verdict. A motion for a judgment notwithstanding the verdict should be resolved with extreme caution since the granting thereof holds that one side of the case is essentially devoid of probative evidence. Macrellis v. George, Fla.App.1967, 202 So.2d 107. As this court stated in Florida Tomato Packers, Inc. v. Wilson, Fla.App. 1974, 296 So.2d 536, 540:

“Motions for directed verdict, judgments in accordance with motion for directed verdict upon which ruling has been, withheld, and judgments n. o. v., .all share the following rules relating to their disposition by the trial court, and, on review, by an appellate court. Such motions should be cautiously granted and affirmed, and then only when it can be said, after viewing the evidence and testimony in the light most favorable to the non-moving party, that a jury could not reasonably differ as to the credibility of the witnesses, or the existence of a material fact or a material inference, and that the movant is entitled to judgment as a matter of law. E. g., McCabe v. Watson, Fla.App.1969, 225 So.2d 346, cert, den., Fla.1970, 232 So.2d 739;” (further citations omitted)

In accordance with the foregoing' principles of law, we are of the opinion that the judgment non obstante veredicto in favor of Muriel Teitch was properly granted and that no reversible error has been demonstrated in this respect.

In the second appeal, defendant Jay Teitch contends that the trial court erred in its charge to the jury on slander per se and on damages and in refusing to charge the jury on qualified privilege. Jury instructions must be viewed in light of the evidence before reversible error can be ascertained. If it appears that the jury has not been confused or deceived, the judgment must be affirmed. Stewart v. Drawdy, Fla.App.1973, 277 So.2d 803. In determining whether a specific instruction is erroneous, it should be considered with all the other instructions given, and the pleadings and evidence in the case. Staicer v. Hall, Fla.App.1961, 130 So.2d 113. The proper test is whether the charge as a whole adequately presents the law upon the issues. Busser v. Sabatasso, Fla.App.1962, 143 So.2d 532. In passing on a single instruction, it is to be judged in the light of all other instructions given, bearing upon the same subject and if when so judged, the law appears to have been fairly presented to the jury, an assignment of error based on the challenged instruction cannot prevail. Staicer v. Hall, supra. We have considered the instructions challenged by Teitch in the context of the entirety of the court’s charge to the jury. In our opinion, the court gave the jury a fair presentation of the law.

Accordingly, the final judgment herein appealed is affirmed as to the plaintiff and the defendants.

PEARSON, Judge

(dissenting).

I would reverse and remand for a new trial upon the ground that the court erred in refusing to charge on the qualified privilege doctrine and in giving the charge that malice was to be presumed under the circumstances of this case. See Abraham v. Baldwin, 52 Fla. 151, 42 So. 591 (1906).


text:
    DIVERSIFIED SERVICES, INC., d/b/a Sears Rent-a-Car of Miami, Inc., a Florida Corporation, etc., et al., Appellants, v. Elizabeth JACKSON et al., Appellees.
    No. 75-682.
    District Court of Appeal of Florida, Third District.
    April 13, 1976.
    Rehearing Denied May 11, 1976.

      Sam Daniels, Miami, for appellants.
    Spencer & Taylor, Miami, for appellees.
    Before HAVERFIELD and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   HAVERFIELD, Judge.

Appellants seek review of a declaratory judgment involving insurance coverage and indemnity.

On November 9, 1972, appellee Anthony Lopez rented a car from the appellant Diversified Services, Inc. to which appellant Pan American Fire & Casualty Company issued an automobile liability insurance policy affording $100/300,000 coverage to Diversified as the primary insured. Part one of the policy offered coverage to renters of the vehicle as contingent insureds with liability limited to “. . . the amount by which the applicable financial responsibility limit exceeds the sum of the limits of liability under all other automobile liability insurance available to the contingent insured . . .” This coverage was not applicable “to any loss with respect to which the contingent insured is covered by any other automobile liability insurance, whether on a primary, contributory, excess or any other basis . . .” Further, the total amount of Pan American’s liability was limited to $10/20,000, the limits specified in the financial responsibility law. A contingent insured is defined in Pan American’s policy as:

“(a) any person or organization using a RENTAL VEHICLE with the permission of the owner, BUT ONLY IF SUCH PERSON OR ORGANIZATION HAS NO OTHER AUTOMOBILE LIABILITY INSURANCE AVAILABLE TO HIM WITH LIMITS OF LIABILITY AT LEAST EQUAL TO THE FINANCIAL RESPONSIBILITY LIMITS, whether on a primary, contributory, excess, or any other basis with respect to his use of the rental vehicle . . .”

Lopez owns an automobile which is insured with appellee Allstate Insurance Company. Allstate’s policy provides coverage of $100/300,000 which, with respect to a temporary substitute vehicle or a non-owned automobile, shall be excess insurance over any other collectible insurance.

On November 10, the day after he rented the car from Diversified, Lopez was involved in a collision with a car in which Elizabeth Jackson was a passenger. A third vehicle owned and operated by Michael Lavoie was also involved in the accident. As a result, Ms. Jackson filed suit against Diversified, Lopez and Lavoie. A dispute then arose between Diversified, Pan American, Lopez and Allstate regarding who should pay what portion of any judgment recovered by Ms. Jackson. Diversified filed a third party complaint seeking indemnity from Allstate as the insurer of Lopez. Allstate arid Lopez in turn filed a third party complaint against Diversified and Pan American and prayed for a declaratory judgment determining that Pan American provided primary coverage up to $100/300,000 for Lopez. A final hearing was held on these third party complaints at which Allstate and Lopez argued that (1) the contingent insured provision in Pan American’s policy was contrary to public policy and void; (2) the provisions in this policy that renters only had coverage for the financial responsibility limits ($10/20,000) were also contrary to public policy and void; and (3) Diversified was not entitled to indemnity from Lopez for any amount. Diversified and Pan American conceded that under this court’s decision in Executive Rent-a-Car, Inc. v. Uditsky, Fla.App. 1974, 297 So.2d 340, cert. denied, Fla., 310 So.2d 742 the contingent insurance clause was invalid. However, as to arguments two and three above, they contended to the contrary. After the conclusion of the hearing, the trial judge entered final judgment which reads in pertinent part:

“ORDERED, ADJUDGED and JUDICIALLY DECLARED:
“1.) That ANTHONY LOPEZ is an insured under PAN AMERICAN INSURANCE COMPANY’S Policy issued to DIVERSIFIED SERVICES, INC., d/b/a SEARS RENT-A-CAR OF MIAMI, INC. as to the accident of November 10th, 1972 and PAN AMERICAN INSURANCE COMPANY has the primary obligation to defend ANTHONY LOPEZ in connection with the lawsuit brought against him by ELIZABETH JACKSON; and
“2.) PAN AMERICAN INSURANCE COMPANY’S policy providing coverage on November 10th, 1972 to DIVERSIFIED SERVICES, INC., d/b/a SEARS RENT-A-CAR OF MIAMI, INC., constitutes primary coverage to the extent of its limits in the amount of $100,000 per person and $300,000 per accident as to any judgment rendered in favor of the Plaintiff, ELIZABETH JACKSON, with the coverage provided by ALLSTATE INSURANCE COMPANY being excess thereover; and
“3.) DIVERSIFIED SERVICES, INC., d/b/a SEARS RENT-A-CAR OF MIAMI, INC. is barred from seeking indemnity from ANTHONY LOPEZ and the Third-Party Complaint by DIVERSIFIED SERVICES, INC., d/b/a SEARS RENT-A-CAR OF MIAMI, INC. against ALLSTATE INSURANCE COMPANY be and the same is hereby dismissed with prejudice; and”

Appellants Diversified and Pan American contend the trial judge erred in holding that the policy provisions limiting the coverage of authorized users of rental cars to that required by the applicable financial responsibility laws ($10/20,000) were contrary to public policy and void.

In Florida the cases hold that the owner of an automobile is primarily liable for the results of an accident even when the automobile has been loaned or leased. Roth v. Old Republic Insurance Company, Fla.1972, 269 So.2d 3; Hartford Accident and Indemnity Co. v. Liberty Mutual Insurance Co., Fla.1973, 277 So.2d 775; Spurgeon v. State Farm Mutual Insurance Co., Fla.App.1964, 169 So.2d 343; Rouse v. Greyhound Rent-A-Car, Inc., 506 F.2d 410 (5th Cir. 1975).

Pan American having provided to Diversified primary insurance coverage with limits of $100/300,000 and Diversified being primarily liable for any money judgment which Eizabeth Jackson may recover as a result of the alleged negligent operation of the automobile by Lopez, it logically follows that the coverage and the $100/300,000 limits of liability under Pan' American’s policy is extended to Lopez, an authorized user of the rented vehicle.

In addition, as noted above, Diversified and Pan American conceded that the contingent insured clause is invalid and the limitation of coverage to the financial responsibility law contained in the Pan American policy being applicable only to that portion of the policy regarding contingent insureds, we conclude the limitation of coverage is also invalid.

Appellants secondly contend that the trial judge erred in holding Diversified had no right of indemnity. We cannot agree.

Roth v. Old Republic Insurance Company, supra, Fla.1972, 269 So.2d 3, 6 is dis-positive of this issue and we hold that Pan American has no right of indemnity from Lopez, who is an insured protected by its policy even though he may be a tort-fea-sor. See also Morse Auto Rentals, Inc. v. Lewis, Fla.App.1964, 161 So.2d 235; Ray v. Earl, Fla.App.1973, 277 So.2d 73. Thus, this contention lacks merit.

Affirmed.


text:
    Gerald HAUSMAN, Appellant, v. Renee HAUSMAN, Appellee.
    No. 75-869.
    District Court of Appeal of Florida, Third District.
    April 13, 1976.
    Rehearing Denied May 12, 1976.

      Dubbin, Schiff, Berkman & Dubbin, Podhurst, Orseck & Parks, Miami, for appellant.
    Heller & Kaplan, Miami, for appellee.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   PER CURIAM.

Appellant, Gerald Hausman, seeks reversal of those provisions of a dissolution of marriage judgment awarding his former wife, Renee, lump sum and permanent periodic alimony and attorney’s fees and directing him to pay her $17,500 for certain stocks and bonds.

On April 11, 1975 the four year marriage between Renee and Gerald Hausman was dissolved. Renee was awarded, inter alia, $10,000 as lump sum alimony, $1,000 alimony per month for one year, $600 monthly thereafter as permanent periodic alimony and $7,500 for a reasonable attorney’s fee. Additionally, Gerald was ordered to pay Renee $17,500 and she in exchange would endorse over to him the Greyhound stock and Central Railroad of New Jersey bonds on which he had indemnified her against loss.

Gerald principally contends the chancellor abused his discretion with respect to the amount of the awards of lump sum and permanent periodic alimony. We cannot agree.

The primary criteria to be used in establishing the amount of alimony is the husband’s ability to pay and the needs of the wife, taking into consideration the standard of living enjoyed by the parties during the marriage. Firestone v. Firestone, Fla. 1972, 263 So.2d 223; Hagen v. Hagen, Fla.App.1975, 308 So.2d 41.

Appellant does not take issue with the needs of appellee and admits to the lavish standard of living established by him during the marriage. He argues that he is financially unable to pay the alimony awards because his liabilities now exceed his assets. It appears that although appellant’s 1974 gross income was in excess of $164,000, in September 1974 because of his debts, he voluntarily agreed to deposit all of his income from whatever source into an account to be controlled by his brother-in-law and from this account he consented to withdraw only $1,160 per month for all of his living expenses. Appellee alleged that this agreement, which was drawn up at about the time she instituted the current proceedings, is merely a device to avoid paying alimony. It is apparent that the chancellor who heard all the testimony and reviewed the documentary evidence presented by the parties concluded that the large reduction of appellant’s income for the most part was brought about voluntarily and not out of necessity with the purpose of avoiding his obligation to pay alimony. We find there is ample evidence to sustain this conclusion. Cf. McRae v. McRae, Fla. 1951, 52 So.2d 908; Bergh v. Bergh, Fla.App.1964, 160 So.2d 145; Gamse v. Gamse, Fla.App.1974, 291 So.2d 620. Further, where the head of a family by furnishing money over a period of years establishes a certain financial standard of living, in the absence of sufficient evidence to the contrary, it may be inferred that he has the financial ability to enable him to continue to maintain his spouse in substantially the same manner of living. See Silvers v. Silvers, Fla.App.1973, 274 So.2d 555 and cases cited therein. In the final analysis the following quote from Firestone v. Firestone, supra, at 227 appears to be dispositive of this issue of alimony:

“Unfortunately, when the dance of marriage has reached its ‘fine’ and the time arrives to pay the fiddler, the predilections for unrestrained pleasures, more often than not, then turn into hues and cries of poverty and despair. Nonetheless, cloth must be cut to fit the pattern, and if excessive indulgences, as a customary norm, accompany private wealth they may very well establish a pattern.”

We also reviewed appellant’s remaining points on appeal concerning the stocks and bonds and attorney’s fee and find no reversible error.

Affirmed.


author: HENDRY, Judge.

text:
    Helen DeLALIO and Pierre DeLalio, her husband, Appellants, v. FOOD PALACE, INC., a Florida Corporation and the Travelers Insurance Company, Appellees.
    No. 75-772.
    District Court of Appeal of Florida, Third District.
    April 27, 1976.
    Spencer & Taylor, Miami, for appellants.
    Adams, George, Wood, Lee & Schulte and David L. Willing, Miami, for appel-lees.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   HENDRY, Judge.

Appellants, plaintiffs below, appeal from a final judgment of the trial court denying their motion for writ of garnishment against appellee Travelers Insurance Company, garnishee below, based on a final judgment of the trial court entered against appellee Food Palace, Inc., defendant below.

The action below was commenced by appellants on September 3, 1970, when they filed a complaint seeking damages for injuries sustained by appellant Mrs. Helen DeLalio in a slip and fall accident in ap-pellee Food Palace, Inc.’s, grocery store. Thereafter, on October 27, 1970, appellants’ motion for a default was granted. Subsequently, the issue of damages was tried before a jury, and on January 30, 1973, the trial court entered a final judgment, incorporating the jury’s verdict assessing damages against appellee Food Palace, Inc., in the total amount of $80,000, in favor of appellants.

On February 1, 1973, appellants filed a motion for writ of garnishment against ap-pellee Travelers Insurance Company (Travelers) alleging that it had issued a valid policy of liability insurance protecting appellee Food Palace, Inc., from the liability out of which the final judgment resulted and was contractually bound to pay the judgment. Appellee Travelers answered the motion and denied that it was in possession or control of any property belonging to appellee Food Palace, Inc., or that it was indebted to appellee Food Palace, Inc. Appellee Travelers answered further by stating that appellee Food Palace, Inc., had failed to give it timely notice of the claim which was the subject matter of the garnishment; said notice being a condition precedent to any liability coverage under its contract of insurance with appellee Food Palace, Inc. After a hearing, the trial court entered a final judgment dated April 18, 1975, denying appellants’ motion for a writ of garnishment. From this final judgment, appellants appeal.

Appellants contend as follows:

(1) that the trial court erred in finding appellee Travelers had been prejudiced by any delayed notice to it of appellants’ claim, because they had offered to waive any theory of their claim by which appel-lee asserts it was prejudiced; and

(2) that the trial court erred in not finding appellants to have been third party beneficiaries under the liability insurance policy and by not finding that appellants’ rights to benefits under the policy arose or vested at the time of the accident.

Appellee Travelers contends that when an issue of prejudice is injected into a “delayed notice” case, the insurer is not required to show that it was prejudiced by the failure of the insured to give timely notice, but that a rebuttable presumption of such prejudice arises. As authority for this proposition, it cites the following cases: Niesz v. Albright, Fla.App.1969, 217 So.2d 606; Deese v. Hartford Accident and Indemnity Co., Fla.App.1967, 205 So.2d 328; Hartford Accident and Indemnity Co. v. Mills, Fla.App.1965, 171 So.2d 190; and American Fire & Casualty Co. v. Collura, Fla.App.1964, 163 So.2d 784. Appellee Travelers further contends that its liability policy with appellee Food Palace, Inc., made notice of any claim a condition precedent to any action against it on the policy. As authority for this proposition, it cites the following cases: Fidelity & Casualty Co. v. Tiedtke, Fla.App. 1968, 207 So.2d 40; Deese v. Hartford Accident and Indemnity Co., supra; and Midland National Insurance Co. v. Watson, Fla.App. 1966, 188 So.2d 403. Appellee Travelers argues that, based on these two propositions of law, the trial court did not err in entering the final judgment denying appellants’ motion for a writ of garnishment.

Where a case is tried nonjury before a trial judge, the conclusions he reaches have the weight of a jury verdict. These conclusions, when appealed, arrive at the appellate court clothed with a presumption of correctness, and in testing the accuracy of such conclusions the appellate court should interpret the record and all reasonable inferences and deductions capable of being drawn therefrom in the light most favorable to sustain those conclusions. The appealing party has the burden of clearly demonstrating that the trial court’s decision is erroneous. See, e. g., Lodding v. Dunn, Fla.App.1971, 251 So.2d 560, cert. den. 258 So.2d 818 (Fla.); Strickland v. Jacobs, Fla.App.1970, 235 So.2d 747; and 2 Fla.Tur., Appeals § 346.

We have considered the record, all points in the briefs, and arguments of counsel in the light of the controlling principles of law, and have concluded that no reversible error has been demonstrated. Therefore, for the reasons stated and upon the authorities cited, the final judgment appealed is affirmed.

Affirmed.


text:
    Joseph F. JANECZEK and Dorothy Janeczek, his wife, Appellants, v. Edward EMBRY et al., Appellees.
    No. 75-285.
    District Court of Appeal of Florida, Third District.
    April 27, 1976.
    Rehearing Denied May 12, 1976.

      Robert M. Brake, Coral Gables, for appellants.
    George A. Williamson, Fort Lauderdale, Kates, Ress, Gomez & Rosenberg, North Miami, for appellees.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

This is an appeal by Joseph F. Janeczek and Dorothy M. Janeczek, plaintiffs in the trial court, from a final judgment in favof of the defendants, Edward Embry, James Killen and Space to Grow, Inc., entered at the close of the plaintiffs’ case in a non-jury trial.

No useful purpose would be served by a detailed recitation of the facts in evidence. Suffice it to say that this controversy stems from an exchange of boats for a parcel of land. The Janeczeks traded their houseboat and two other boats for a 5-acre parcel of Collier County land in which Embry allegedly had an interest by an agreement for deed with Space to Grow, Inc., now dissolved. James Killen was the president of Space to Grow, Inc. The Janeczeks traded their boats to Embry and took over Embry’s alleged contract without ever seeing the land. After the swap they executed a new agreement for deed contract with Space to Grow and made a payment thereon. Subsequently, the Janeczeks tried unsuccessfully to locate the property, and discovered that it was swampland and that it was inaccessible. They made no further payments and thereafter Space to Grow cancelled their contract. In the complaint, the Janeczeks sought rescission, punitive damages for fraud and “such other and further relief as this 'Court may deem just and advisable.”

The cause proceeded to a non-jury trial. At the close of the plaintiffs’ case, the defendants moved for judgment in their favor. The trial court granted the defendants’ motion and stated that because the Janeczeks wilfully refused to make the monthly payments on the land contract, causing its cancellation, it was impossible to give the land back to Embry and, therefore, the plaintiffs were not in a position to rescind. “. . . (T)hese people have made rescission impossible, rescission with the Space to Grow or rescission of the contract between the Janeczeks and Mr. Em-bry.”

In our opinion, there was no substantial competent evidence to support a judgment in favor of the Janeczeks against defendants Killen and Space to Grow. Accordingly, the final judgment is affirmed as to these defendants.

As to defendant Embry, however, the record contains ample evidence to establish a prima facie case of fraud. Therefore, we reverse the final judgment in Embry’s favor and remand the cause to the circuit court for a trial. Although the trial court expressed concern with the fact that rescission was not possible since the contract between Embry and Space to Grow could not be returned to Embry, there are exceptions to the rule that the unchanged consideration must be restored in order to return the parties to their prior positions. See Williston on Contracts, 3rd Ed., Vol. XII, Rescission and Restitution, §§ 1460A, 1463; Fraud and Misrepresentation, § 1530. The plaintiffs contend that the trial court could have entered a money judgment based on the prayer in their complaint for general relief. We agree. Generally a court of equity will enter a monetary judgment when necessary to afford complete relief. 12 Fla.Jur., Equity, § 46. Of course, in determining the award of damages, if any, the trial court may take into consideration the actions of the plaintiffs in employing self help and taking back one of the boats and secreting it, and in failing to inspect the land before entering the agreement to trade.

Affirmed in part, reversed in part and remanded for further proceedings consistent herewith.


author: SCHEB, Judge.

text:
    Margaret Francis PALMER, Appellant, v. Clyde Orien PALMER, Appellee.
    No. 75-1091.
    District Court of Appeal of Florida, Second District.
    April 28, 1976.
    Myron M. Gold and Roberta Fulton Fox, Gold & Fox, Coral Gables, for appellant.
    Andrew B. Jackson and Jon H. Anderson, Jackson & Anderson, Lake Placid, for appellee.
   SCHEB, Judge.

The appellant/wife presents questions concerning various financial aspects of a judgment for dissolution of marriage entered by the trial court. The record on appeal does not include any stenographic record of the proceedings below, neither party having requested a court reporter in the trial court. Cf. RCP 1.035. This, of course, limits the scope of effective review of those matters of which she complains concerning the character and amount of alimony awarded to her and her contention that the trial court judge erred in not awarding her a special equity in property owned by her husband.

The finding and judgment of the trial court come to this court with a presumption of correctness and it is the appellant’s burden to demonstrate otherwise. Canning v. Norton, Fla.App.2d 1963, 155 So.2d 737. Where, as here, points raised on appeal require a review of the evidence considered by the trial court and a record thereof is not furnished us in support of those contentions on appeal, this court cannot reverse the trial court on such points. Broward County Port Authority v. F. M. Rule & Co., Fla.App.2d 1960, 119 So.2d 82.

From our review of the record furnished us and briefs of counsel and after hearing oral argument, we conclude that the only error that appellant has demonstrated is so much of the final judgment as awards lump sum alimony to the appellee/husband, the petitioner in the dissolution of marriage proceedings. For, even from the record presented, it is apparent the trial judge determined the wife required and the husband had the ability to provide her with lump sum alimony, permanent periodic alimony, and counsel fees. The final judgment so provided. Therefore, the award by the trial judge of lump sum alimony to the husband in the form of requiring the wife to transfer to him all of her interest in certain stocks is inconsistent with the whole tenor of the final judgment making awards to the wife. It is, of course, error to award alimony to both parties, since it is anomalous for one spouse to have both “needs” and “ability to pay” at the same time. Niemann v. Niemann, Fla.App.4th 1974, 294 So.2d 415; cert. dismissed, Fla. 1975, 312 So.2d 733. And, since no special equity was established in favor of the husband and recognizing the trial courts cannot make a property settlement for the parties, the trial court had no authority to transfer one spouse’s assets to another. That part of the final judgment cannot stand. See, Owen v. Owen, Fla.1973, 284 So.2d 384.

Accordingly, Paragraph (6) of the final judgment which provides:

“The petitioner is awarded lump sum alimony as follows: the respondent’s interest, if any, in the Federal Land Bank Association and Production Credit Association stocks. The respondent shall execute the necessary forms to assign her interest, if any, to the petitioner in the said stock.”

is hereby deleted; otherwise, the judgment is affirmed.

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


text:
    CITY OF SAFETY HARBOR, a Municipal Corporation, Appellant, v. CITY OF CLEARWATER, a Municipal Corporation, Appellee.
    No. 73-113.
    District Court of Appeal of Florida, Second District.
    April 30, 1976.

      William P. O’Malley, Clearwater, for appellant.
    Thomas A. Bustin, City Atty., and N. S. Gould, Asst. City Atty., Clearwater, for ap-pellee.
   SCHEB, Judge.

Appellant, City of Safety Harbor, sought a declaratory judgment that appellee City of Clearwater, by annexing certain unincorporated lands in Pinellas County, violated a “Service Area Agreement.” The trial court granted Clearwater’s motion to dismiss with leave to amend. However, Safety Harbor declined to amend; final judgment was entered, and Safety Harbor filed this appeal. We affirm.

There is no dispute as to the essential facts. On February 2, 1970, three municipalities in Pinellas County; Clearwater, Dunedin, and Safety Harbor, entered into a Service Area Agreement delineating three separate areas of unincorporated lands. Each of the three cities agreed respectively to direct its long range attention to rendering municipal services in only one of these designated areas. Further, each city agreed “to avoid and discourage future plans or requests for annexation of any lands contained in the areas designated . for service by the other municipalities.”

During 1972 the City Commission of Clearwater took the position it was not bound by the Service Area Agreement and adopted a series of ordinances annexing certain lands which the agreement had designated as being within Safety Harbor’s Service Area. This action by Safety Harbor ensued. The trial judge, upon dismissal of Safety Harbor’s complaint, opined that the Service Area Agreement did not invest Safety Harbor with any standing to challenge Clearwater’s exercise of its municipal powers of annexation.

Stripped of various procedural questions and the issue raised as to the vagueness of the Service Area Agreement, the controversy here devolves into a fundamental principle of municipal law. Succinctly stated, that issue is: Can the City of Clearwater contract away the power and authority the Legislature granted its governing body to provide by ordinance for annexation of unincorporated lands ?

Article VIII, § 2(c), of the Florida Constitution of 1968, provides that annexation of unincorporated lands by a municipality must be exercised as provided by general or special law. The Legislature granted this power of annexation to Clear-water; § 6(d) of the Charter of the City of Clearwater (Ch. 9710, Laws of Florida, Special Acts of 1923, as amended by Ch. 65-1386, Laws of Florida, Special Acts of 1965.) As in the case of other governmental authorities vested in a municipality, this power cannot be contracted away. See City of Clearwater v. Bonsey, Fla.App.2d 1965, 180 So.2d 200; Pinellas County v. City of Pinellas Park, Fla.App.2d 1976, 330 So.2d 106, opinion filed April 7, 1976.

Here the Service Area Agreement merely evinces a consensus of the governing bodies of Dunedin, Clearwater and Safety Harbor, in office on February 2, 1970, with respect to their plans to furnish municipal services in certain unincorporated areas.

Agreements of this type, of course, reflect a desirable approach for inter-governmental cooperation among the municipalities concerned with the proliferation of growth-’in their environs. And, clearly, planning-of this nature assists in accommodation of the anticipated growth of these urban areas. But to the extent that such agreements operate either to limit or restrict the elected representatives of the governing bodies and their duly elected successors in the exercise of their governmental powers, they are inoperative. Simply stated, the power to annex is governmental and such a power cannot be contracted away. The city must not be rendered impotent to exercise governmental functions and, where necessary, to modify or change its policies.

On November 8, 1973, this court, in response to motions of both parties, relinquished jurisdiction to the trial court to determine whether this appeal was rendered moot by enactment of House Bill 2125, effective June 30, 1973 (Ch. 73-434, Laws of Florida, Special Acts of 1973). House Bill 2125 did amend § 6 of the Charter of the City of Clearwater to incorporate into that city’s boundaries those lands which Safety Harbor contended were annexed in violation of the Service Area Agreement. This, of course, was the prerogative of the Legislature. See City of Long Beach Resort v. Collins, Fla.1972, 261 So.2d 498. Upon remand Safety Harbor injected a new issue, contending the new act is void, because it was adopted by the Legislature in violation of Fla.Stat. § 286.011 (Government in the Sunshine Law). The trial court rejected such contention and entered a summary judgment against Safety Harbor which now raises this additional point on appeal. In view of our opinion that the Service Area Agreement is unenforceable to the extent it impairs the exercise of Clearwater’s governmental power of annexation, it is unnecessary to reach the question of the validity of House Bill 2125.

Accordingly, the' judgments of the trial court are affirmed.

McNULTY, C. j., and GRIMES, J., concur.

      . The parties recognize the Service Area Agreement was not entered into pursuant to Fla.Stat. Ch. 163; hence, the effect of these statutes relating to intergovernmental programs is not at issue here.


text:
    Milton R. FARMER, Appellant, v. STATE of Florida, Appellee.
    No. 75-1601.
    District Court of Appeal of Florida, Second District.
    April 23, 1976.

      Jack O. Johnson, Public Defender, and Robert H. Grizzard, II, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant was convicted of attempted robbery, conspiracy to commit a felony punishable by life imprisonment, and possession of a firearm during an attempted felony. He received a 15 year general sentence and appealed the convictions and sentence. This court affirmed the convictions but vacated the general sentence noting that only one sentence was appropriate for the attempted robbery and use of a firearm while attempting to commit a felony since they were facets of the same transaction. Farmer v. State, Fla.App.2d 1975, 315 So.2d 225.

On remand, the trial court sentenced appellant to 15 years on the firearm count, to 5 years for attempted robbery (to be served concurrently) and to 15 years for conspiracy (also to be served concurrently). Appellant again appeals contending that the imposition of sentences for both attempted robbery and use of a firearm while attempting to commit a felony is improper since both are facets of the same criminal transaction.

We agree that the concurrent sentence for attempted robbery was improper. See Cone v. State, Fla.1973, 285 So.2d 12; Union v. State, Fla.App.2d 1975, 322 So. 2d 643; Benton v. State, Fla.App.2d 1976, 330 So.2d 203.

Accordingly, the trial court is directed to vacate and set aside the concurrent sentence for attempted robbery; otherwise the sentences are affirmed.

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


author: MILLS, Judge. McCORD, Judge SMITH, Judge

text:
    J. I. DUNCAN, as Administrator of the Estate of James L. Duncan, Deceased, Appellant (Plaintiff), v. MONARK BOAT COMPANY, INC., a corporation, Appellee (Defendant).
    No. X-393.
    District Court of Appeal of Florida, First District.
    May 5, 1976.

      John M. Green, Jr., Green, Simmons, Green & Hightower, Ocala, and Keith Myers, Hollis, Okl., for appellant.
    Barry D. Graves, Jones & Ritch, Gaines-ville, for appellee.
   MILLS, Judge.

The plaintiff appeals from an adverse final summary judgment entered in a wrongful death case. The issue here is whether the trial court erred in entering the judgment.

Plaintiff seeks damages for the death of its decedent when a boat manufactured by the defendant sank, and the decedent, who was an occupant of the boat, drowned.

This case has been here before. In Duncan v. Monark Boat Co., Inc., 281 So. 2d 382 (Fla.App.lst, 1973), we reversed the trial court on its dismissal of a count of plaintiff’s complaint which charges the defendant with violation of Section 371.60, Florida Statutes. This statute requires that manufacturers of boats attach a plate on them stating the recommended number of persons or maximum weight load consistent with their safe operation. We directed reinstatement of this count of the complaint.

After remand, the trial court granted the defendant’s motion for summary judgment. The defendant stipulated that it violated the statute. In his brief, the plaintiff admits that the boat was overloaded when it sank. The defendant contends there is no causal relationship between the defendant’s violation of the statute and the decedent’s death, or that violation of the statute was not the proximate cause of the decedent’s death.

The defendant presented evidence that the overloading of the boat was brought to the attention of the decedent, nevertheless, he proceeded into the lake with water coming in over the bow. When the decedent increased the speed of the boat, its bow went under the water and it sank.

The defendant argues that because the overloading of the boat was brought to the attention of the decedent, the presence of the required plate on the boat would have added nothing. The plaintiff argues that violation of the statute is negligence per se, and that the purpose of the plate is to warn persons who are unfamiliar- with loading capacities.

Although the violation of the statute before us is negligence per se, it does not necessarily mean there is actionable negligence. The plaintiff must establish that the violation of the statute was the proximate cause of its decedent’s death. deJesus v. Seaboard Coast Line Railroad Company, 281 So.2d 198 (Fla.1973). Under the facts in this case, this the plaintiff failed to do. The decedent saw that the boat was overloaded. The presence of the plate required by the statute would not have helped. Nor would it have served its purpose. There is no material issue of fact concerning proximate cause and the defendant is entitled to judgment as a matter of law.

We affirm the judgment.

McCORD, Acting C. J., concurs specially-

SMITH, J., dissents.

McCORD, Judge

(concurring specially).

I agree with the opinion of Judge Mills. The statutory requirement that a plate be attached to the boat stating the recommended number of persons or maximum weight load consistent with its safe operation was for the sole purpose of warning against boat overloading. The boat was operated by decedent and occupied by Ja-phet and Camp. It also carried numerous supplies. The decedent operator Duncan was specifically warned by Japhet before he shoved off in the boat that it was overloaded, but Duncan told Japhet to go ahead and get in. When the boat shoved off, the water was choppy and the boat had only six inches of freeboard above the water line. When water began to ship over the bow, Duncan was told to slow down, but instead he speeded up and the boat nosedived under the water. It is obvious that the lack of the warning plate attached to the boat did not in any way contribute to this accident. The sole proximate cause was Duncan’s negligence.

SMITH, Judge

(dissenting) :

Both Monark and the decedent Duncan, operator of the boat, could be found by a jury to have been negligent. In my view, a jury could also conclude from the evidence that Monark’s negligence was a causative factor not made remote by Duncan’s conduct. If one of Duncan’s passengers had drowned, it would be difficult to say as a matter of law that Monark’s negligence was remote. Given comparative negligence as a means of allocating responsibility for the loss of Duncan’s life, the causation question is the same in this case. Furthermore, I cannot equate the knowledge attributed to Duncan by the warning of a sixteen year-old boy with the more significant notice which the statute required of Monark. I would reverse the judgment and submit the case to a jury.