text:
    MAWI CORPORATION, a Florida Corporation, Appellant, v. ADVANCE MORTGAGE CORPORATION, a Delaware Corporation authorized to do business in the State of Florida, Appellee.
    No. 76-1626.
    District Court of Appeal of Florida, Third District.
    Nov. 29, 1977.
    Rehearing Denied Jan. 19, 1978.
    McCormick, Bedford & Backmeyer and Robert A. Geiss, Miami, for appellant.
    Therrel, Baisden, Stanton, Stillman, Brown & Wood and Howard A. Setlin, Miami Beach, for appellee.
    Before HENDRY, C. J., and BARKDULL and HAVERFIELD, JJ.
   PER CURIAM.

This appeal is taken from a sun-unary final judgment of foreclosure, rendered in favor of appellee/plaintiff, the construction lender and mortgagee, and against various junior lienors, including appellant/defendant. ,

After carefully reviewing the record, briefs and arguments of counsel, it is our opinion that neither the affirmative defenses raised by appellant in its answer to ap-pellee’s complaint for foreclosure, nor its counterclaim for a superior equitable lien, raised any genuine issues of material fact prohibiting the entrance of a summary final judgment in favor of appellee.

The only question of merit concerning the propriety of the summary judgment is by way of the chancellor’s refusal to permit appellant to file an amended counterclaim and amended affirmative defenses, the contents of which might have raised a genuine issue of material fact, i. e., that appellant had completed work on the project prior to the execution of the note and mortgage, creating a superior equitable lien in favor of appellant.

In that the motion to amend the affirmative defenses and counterclaim was filed one day before the hearing on appellee’s motion for summary judgment and the allegations raised by the amended pleadings were contradictory to prior pleadings and affidavits which stated that labor and services were first performed on the property after the note and mortgage were executed, we cannot say that the chancellor abused his discretion in denying the motion to amend. Home Loan Company Incorporated of Boston v. Sloane Company of Sarasota, 240 So.2d 526 (Fla.2d DCA 1970); Houston Texas Gas & Oil Corporation v. Hoeffner, 132 So.2d 38 (Fla.2d DCA 1961).

Accordingly, the summary final judgment is hereby affirmed.

Affirmed.


source: Caselaw Access Project

author: HENDRY, Chief Judge.

license: Public Domain

text:
    AMERICAN MANUFACTURERS MUTUAL INSURANCE COMPANY, Appellant, v. John Howard HORN, III, et al., Appellees. UNITED STATES FIRE INSURANCE COMPANY, Appellant, v. John Howard HORN, III, et al., Appellees.
    Nos. 77-1620 to 77-1623.
    District Court of Appeal of Florida, Third District.
    Nov. 30, 1977.
    Rehearing Denied Jan. 16, 1978.

      Wicker, Smith, Blomqvist, McMath, Tu-tan & O’Hara and Richard A. Sherman, Pyszka, Kessler, Adams & Solomon, Rentz, McClellan & Haggard, Miami, for appellants.
    Greene & Cooper, Podhurst, Orseck & Parks and Michael S. Olin, Corlett, Merritt, Killian & Sikes and A. Dan Killian, Jr., Miami, Herman Grayson, Miami Beach, for appellees.
    Before HENDRY, C. J., and HUBBART and KEHOE, JJ.
   HENDRY, Chief Judge.

American Manufacturers Mutual Insurance Company and the United States Fire Insurance Company, defendants in the trial court, take this consolidated appeal from a partial summary judgment construing the terms and amount of their respective insurance policies issued to the appellee/defend-ant Eastern Auto Leasing, Inc. to be used for the benefit of John Howard Horn, III, plaintiff in the trial court. Horn and Eastern Auto Leasing join together in urging affirmance of the judgment appealed.

Horn was seriously injured when the motorcycle he was riding was struck by an automobile driven by one Perla M. Bardino. Bardino’s automobile was leased by Miami Latin of Florida, Inc. and operated with its permission at the time of the accident. Miami Latin in turn leased the vehicle from appellee Eastern Auto Leasing.

Horn brought suit against Bardino, Miami Latin, Eastern Auto Leasing and their insurers for personal injury damages sustained as a result of the accident. While the negligence claim was pending, Horn and Eastern Auto Leasing sought a declaration by the trial court as to the scope and amount of coverage provided by insurance policies issued by Indiana Insurance Company, American Manufacturers Insurance Company and the United States Fire Insurance Company. Indiana Insurance Company issued a policy with a maximum coverage of $100,000 to Miami, Latin. Indiana has already tendered its coverage for the benefit of Horn and is not a party to this appeal. Appellant American Manufacturers issued an insurance policy to Eastern Auto Leasing with a maximum exposure of $300,000. United States Fire Insurance Company also issued a policy to Eastern Auto Leasing providing for excess coverage up to $1,300,000.

The trial court entered a partial summary judgment construing the terms of the policies and providing as follows:

“2. ORDERED AND ADJUDGED that Plaintiff’s Motion for Partial Summary Judgment and Defendant EASTERN AUTO LEASING’S Motion for Partial Summary Judgment are granted. The Court finds as a matter of law that INDIANA INSURANCE COMPANY provides the first $100,000.00 coverage for the benefit of the Plaintiff, AMERICAN MANUFACTURERS MUTUAL INSURANCE COMPANY provides coverage from $100,000.00 to $300,000.00 for the benefit of the Plaintiff, and UNITED STATES FIRE INSURANCE COMPANY provides coverage from $300,000.00 to $1,300,000.00 for the benefit of the Plaintiff. The Court’s determination is supported by the following conclusions of law:
“a. INDIANA INSURANCE COMPANY has admitted, and the Court so finds, that it provides the first $100,-000.00 coverage for the benefit of the Plaintiff.
“b. The provisions of the AMERICAN MANUFACTURERS’ policy are repugnant and inconsistent. Any such inconsistency or ambiguity must be resolved against the insurer and in favor of coverage. Stuyvesant Insurance Co. v. Butler, 314 So.2d 567 (Fla.1975); Travelers Indemnity Co. v. Kassner, 322 So.2d 80 (Fla.3d DCA 1975). The AMERICAN MANUFACTURERS’ policy provides $200,000.00 coverage to EASTERN AUTO LEASING AND MIAMI LATIN in excess of the $100,-000.00 coverage provided by INDIANA.
“c. In the alternative, the Court finds that there is coverage under the AMERICAN MANUFACTURERS’ policy by reason of the representation of their authorized agent, Kimpfler, made prior to the issuance of the policy in question, that there would be coverage under the facts of this case. Under the circumstances, AMERICAN MANUFACTURERS is estopped to deny the correctness of the interpretation put upon its policy by its agent. E. J. Evans Co. v. Ohio State Life Ins. Co., 144 So.2d 833 (Fla.2d DCA 1962); 18 Fla.Jur. 371-72; Insurance § 403.
“d. The Court finds that under the terms of the UNITED STATES FIRE policy, UNITED STATES FIRE provides $1,000,000.00 coverage to EASTERN AUTO LEASING and MIAMI LATIN in excess of the $100,000.00 coverage provided by INDIANA and the $200,000.00 coverage provided by AMERICAN MANUFACTURERS.
“3. ORDERED AND ADJUDGED, in the alternative, that if an appellate court holds there is no coverage under the AMERICAN MANUFACTURERS' policy, this Court finds that UNITED STATES FIRE INSURANCE COMPANY provides coverage of $1,000,000.00 for the benefit of the Plaintiff in excess of the $100,000.00 coverage provided by INDIANA INSURANCE COMPANY. Such an alternative holding is proper. Petrine v. D. Black & Sons, Inc., 338 So.2d 912 (Fla.3d DCA 1976).
* * * * * *

We will first discuss the contentions presented by appellant American Manufacturers. It argues on appeal that the trial court erred in ordering it to provide coverage from $100,000.00 to $300,000.00 for the benefit of Horn since its policy clearly excludes coverage in this instance. It refers us to an endorsement entitled “Leased Automobiles — Contingent Liability Coverage”:

* >f: * * * *
“2. ‘Leased automobile’ as used in this endorsement, means an automobile rented by the named insured under a written agreement to another person or organization, hereinafter called the lessee, for one year or longer without the services of a driver, and such written agreement requires the lessee to:
“(a) maintain for the named insured with respect to the operation or use of such automobile direct primary bodily injury liability and property damage liability insurance at least equal to the limits of liability stated in the schedule, and
“(b) furnish the named insured a certificate of insurance as evidence of such insurance, such certificate to provide not less than 30 days prior notice of cancellation of the insurance to the named insured.
“3. Application of Insurance — Leased Automobiles. — The insurance applies only to a leased automobile with respect to which the lessee has not maintained the insurance as required in Paragraph 2.” [Emphasis supplied.]
******

It contends that this endorsement requires that the lease agreement between Eastern Auto Leasing and Miami Latin must contain a provision in which Miami Latin will maintain bodily injury liability coverage at least equal to the limits of liability provided for in the policy schedule, i. e., at least $300,000.00 per person bodily injury liability coverage. Since the lease agreement provides only $100,000.00 per person bodily injury liability coverage, an exclusion in the policy operates to deny coverage to Eastern Auto Leasing:

“This policy does not apply with respect to an owned automobile while such automobile is in the custody of a lessee under a written lease agreement which requires the lessee to provide insurance thereon unless insurance is specifically provided by endorsement to this policy.”

We are not persuaded that the policy clearly operates to deny coverage in this instance.

The policy defines a leased automobile as follows:

“(3) The term ‘leased automobile’ means an owned automobile furnished for the use of a person or organization under a written lease agreement between such person or organization, hereafter called ‘lessee’, and the named insured providing for the exclusive use of such automobile by the lessee for a period of not less than twelve (12) consecutive calendar months.”

The “Leased and Rental Automobile Endorsement” specifically provides coverage with respect to such leased automobiles:

“With respect to the insurance for bodily injury liability and for property damage liability the unqualified word ‘insured’ includes the named insured and, if the named insured is an individual, his spouse if a resident of the same household, and also includes the lessee or renter and, if the lessee or rentee is an individual, his spouse if a resident of the same household, and any person while using the automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured, lessee, rentee or such spouse or with the permission of the named insured, lessee, rentee or such spouse . . . .” [Emphasis supplied.]

We find that these provisions are inconsistent with the exclusions relied upon by American Manufacturers to deny coverage. Since the appellant has failed to refer us to any other provision in the policy that would clearly operate to negate coverage, we conclude that the provisions outlined above are sufficiently inconsistent to create uncertainty in the proper interpretation of the policy. We are therefore obliged to construe this uncertainty against the insurer and in favor of the insured. Stuyvesant Insurance Company v. Butler, 314 So.2d 567 (Fla.1975), Maryland Casualty Company v. Murphy, 342 So.2d 1051 (Fla.3d DCA 1977). Nor are we unmindful that this policy must be considered in its entirety in order to determine the intentions of the parties. Feldman v. Central National Insurance Co. of Omaha, 279 So.2d 897 (Fla.3d DCA 1973). Equally important, the policy should receive a reasonable, practical and sensible interpretation consistent with the intent of the parties — not a strained, forced or unrealistic interpretation. U. S. Fidelity & Guaranty Co. v. Hazen, 346 So.2d 632 (Fla.2d DCA 1977), General Accident Fire and Life Assurance Corp. v. Liberty Mut. Ins. Co., 260 So.2d 249 (Fla.4th DCA 1972).

Applying these principles to the facts of the instant case, American Manufacturers may not now deny coverage where it drafted the terms and conditions of the policy and could have done so in such a manner as to clearly exclude coverage of this contingency had it chosen to do so. Eastern Auto Leasing should not be penalized by an esoteric exclusion when it sought coverage to indemnify itself for losses of precisely this nature. We therefore adopt the construction which provides the most coverage to the insured and affirm the partial summary judgment determination regarding the terms and conditions of coverage of American Manufacturers’ policy. See Oliver v. United States Fidelity and Guaranty Co., 309 So.2d 237 (Fla.2d DCA 1975), cert. den. 322 So.2d 913 (Fla.1975).

We next turn to consider the position advanced on appeal by the other appellant, U. S. Fire Insurance Company. U. S. Fire contends that the trial court erred in holding that its policy would be excess over $300,000.00 rather than excess over $400,-000.00 since its policy provides that it is excess over the retained limits of the underlying insurance. The retained limits are defined as:

“(a) the total of the applicable limits of the underlying policies listed in Schedule A hereof, and the applicable limits of any other underlying insurance collectible by the insured; or
“(b) an amount as stated in item 4(c) of the declarations as the result of any one occurrence not covered by the said policies of insurance; . . . ” [Emphasis supplied.]

Applying this provision to the facts at bar, Schedule A to the policy specifically lists the American Manufacturers’ policy as the underlying insurance policy with limits of $300,000.00. Indiana Insurance has already admitted coverage for its $100,000.00 and is therefore “any other underlying insurance collectible by the insured.”

Since U. S. Fire’s policy provides that it is excess over “the applicable limits of the underlying policies listed in Schedule A, and the applicable limits of any other underlying insurance collectible by the insured”, the trial court correctly held the applicable limits of American Manufacturers’ policy to be $200,000.00 and the applicable limits of the Indiana policy to be $100,-000.00. We hold that this provision unambiguously operates to provide all excess coverage over $300,000.00 up to the maximum limits of the policy.

In view of our decision to affirm the trial court’s partial summary judgment, we need not discuss its alternative rulings. Therefore, for the reasons stated and upon the authorities cited, the partial summary judgment appealed is affirmed.

Affirmed.


author: BOARDMAN, Chief Judge.

text:
    SARASOTA COUNTY, Florida, Appellant/Cross-Appellee, v. TOWN OF LONGBOAT KEY, Florida, City of Sarasota, Florida, City of Venice, Florida, and City of North Port, Florida, Appellees/Cross-Appellants.
    No. 76-1632.
    District Court of Appeal of Florida, Second District.
    Nov. 30, 1977.
    As Modified On Denial of Rehearing Jan. 6, 1978.

      Talbot D’Alemberte of Steel, Hector & Davis, Miami, and Richard E. Nelson, Richard L. Smith, and Leslie Telford of Nelson, Hesse, Cyril & Weber, Sarasota, for appellant/ cross-appellee.
    William R. Korp and Andrew J. Britton of Korp, Wheeler & McGill, Venice, for appellee/cross-appellant, city of Venice.
    John R. Wood of Wood, Whitesell & Karp, Sarasota, for appellee/cross-appel-lant, town of Longboat Key.
    William C. Strode of Strode, Hereford & Taylor, Sarasota, for appellee/cross-appel-lant, city of Sarasota.
    Allen J. Levin, Port Charlotte, for appel-lee/cross-appellant, city of North Port.
   BOARDMAN, Chief Judge.

In June 1976 appellees, town of Longboat Key, city of Sarasota, city of Venice, and city of North Port, filed suit against appellant, Sarasota County, Florida, seeking relief from the levy of taxes allegedly used to finance services which were of no real or substantial benefit to the property or residents of the incorporated areas of the county-

Article VII, Section 9(a) of the Florida Constitution authorizes taxation of real and tangible personal property at specified rates by counties, school districts, municipalities, and special districts for their respective purposes. In addition, if authorized by general law, a county which provides services typically provided by a municipality (“municipal services”) may levy additional taxes to finance those services within the tax-rate limit set for municipal purposes. Article VII, Section 9(b), Florida Constitution. It has long been held by the courts, however, that the taxing power may not be used to secure revenue from an area for services which do not benefit that area. E. g., State ex rel. Attorney General v. Avon Park, 108 Fla. 641, 149 So. 409 (1933). Included in the 1968 constitution was a specific proscription of taxation of property within a municipality to finance services rendered by the county exclusively for the benefit of unincorporated areas. Article VIII, Section 1(h), Florida Constitution. The supreme court construed Article VIII, Section 1(h) as prohibiting taxation of the incorporated areas for a purpose which would not provide a real and substantial benefit to municipal residents. City of St. Petersburg v. Briley, Wild & Associates, Inc., 239 So.2d 817 (Fla.1970).

In 1974 the legislature enacted a comprehensive statute authorizing a county to provide “municipal services” and facilitating elimination of unconstitutional dual taxation of municipalities for those services which specially benefit the unincorporated areas. The state provides a scheme whereby the recipient of the services will finance those services. For example, by creation of “municipal service taxing or benefit units” within its unincorporated areas the county can assess the full costs of the “municipal service” provided to that unit. Section 125.01(l)(q), Florida Statutes (1975). Alternatively, the whole of the unincorporated area may be assessed the cost of each “municipal service” provided by the county. Municipalities are not, however, precluded from voluntarily participating in a program where the county provides “municipal services” to it. A “special district” may be created to include an incorporated area but only upon passage of an ordinance which sets out the millage to be paid to the county for specific services provided to that district by the county. Section 125.01(5), Florida Statutes (1975).

If a municipality believed that the county is providing a service financed by countywide revenues which is rendered particularly for the benefit of the unincorporated area, it may petition the county for redress. Upon determination that the service at issue is of special benefit to the unincorporated area or is of no real or substantial benefit to the municipality the county must elect among the following remedies: (1) financing the activity only by funds derived from the unincorporated areas, (2) creating a municipal service authority to provide the service with “funds derived from service charges, special assessments, or taxes within such unit only,” and (3) remitting to the municipality the cost of the service .identified as having been contributed by the municipality. Section 125.01(6)(a), Florida Statutes (1975). It would seem most reasonable to read this section as providing alternatives one and two for prospective relief and alternative three for retroactive relief.

Pursuant to Section 125.01, Florida Statutes, appellees each filed a separate resolution with the county challenging certain county-provided services and requesting that the county comply with Section 125.-Ol(lXq). The county did not respond to the petitions within ninety days as provided by Section 125.01(6)(b), and this suit was brought by all four cities in circuit court on June 15, 1976. The county filed its answer alleging, among other things, that it “has provided and does make available to all the residents within the County various services which the Plaintiffs in this suit have failed and refused to utilize fully and otherwise make available to their residents.”

Following extensive hearings and examination of the pleadings and exhibits, the trial court entered final judgment finding that

the equities of the cause are in favor of the Plaintiffs, Cities of Sarasota County, and against the Defendant, Sarasota County.
It is the further finding of the Court that an inequity exists between the taxes paid by the citizens of the incorporated areas of Sarasota County and the services which they have received.
To correct the imbalance between payment of services by the cities for which they received less services, there shall be created two major taxing districts within Sarasota County. These taxing districts shall be known as; Tax District A, consisting of the incorporated areas within Sarasota County, and Tax District B, which shall consist of the remainder, or the unincorporated areas of Sarasota County. The millage assessment for Tax District A is hereby set at 4.444 mills; and the millage assessment is hereby set for Tax District B at 6.140 mills for the tax year 1977.

Although the trial judge expended a great deal of time and effort in reaching his conclusion and fashioning an equitable solution, the remedy proposed by the trial court is not within the grant of authority provided by Section 125.01 as outlined in this opinion. We reverse and remand.

During final hearing several county and municipal officials testified to the type and scope of services provided by the county. Those witnesses referred repeatedly to a report prepared by an accounting firm at the request of the Sarasota County League of Cities, Inc. The report segregated the revenue collected by Sarasota County from the unincorporated areas and from each of the appellee municipalities and allocated a value to the unincorporated areas and each of the municipalities for certain categories of services provided by the county for the tax years 1972-73, 1973-74, 1974-75. The report demonstrated that revenues generated from the municipalities were not matched by value in services provided to the municipalities. Although there was testimony relevant to the manner and amount by which specific services rendered by various departments benefitted each municipality, this evidence was not offered or considered to establish whether a particular service was a “municipal service” which provided a real or substantial benefit to municipalities. The purpose of this testimony was to determine whether the proportion of the total services rendered for the municipalities’ benefit to total service rendered in the county equaled the proportion of the municipalities’ total contribution to county-wide total contribution for the services.

If on remand the trial court finds that any challenged service was a “municipal service” financed by county-wide revenue of no real or substantial benefit to the municipalities, it will direct the county to establish an appropriate mechanism to pay for this service in the future. The county must also reimburse each of the municipalities for the cost of each service paid by its property owners from the time it identified that service by filing a resolution with the county until the corrective mechanism is established. In Judge Grimes’ comprehensive opinion in Manatee County, Florida v. Town of Longboat Key, Florida, 352 So.2d 869 (Fla.2d DCA 1977), he outlined the procedure for determining the amount of the rebate due each municipality, and we refer the trial court to that case.

In view of our disposition of the case it is not necessary to reach the other issues raised on appeal.

REVERSED and REMANDED.

GRIMES, J., and McNULTY, JOSEPH P. (Ret.), Associate Judge, concur.

      . There were several services common to all resolutions but the lists were not identical, and each resolution was presented to the county on a different date.


author: McCORD, Chief Judge.

text:
    Loydean SMITHWICK, Appellant, v. Walter SMITHWICK, III, Appellee.
    No. EE-56.
    District Court of Appeal of Florida, First District.
    Dec. 6, 1977.
    Opinion Modified, Rehearing Denied in Part and Granted in Part Jan. 13, 1978.

      Gary C. Pajcic of Pajcic & Pajcic, Jacksonville, for appellant.
    B. Thomas Whitefield, III and Gary B. Tullís of Ulmer, Murchison, Ashby & Ball, Jacksonville, for appellee.
   McCORD, Chief Judge.

This appeal is from a final judgment of dissolution of marriage. The parties were married in 1961, the year when appellee began medical school. He graduated four years later, and during that time, appellant contributed all of her salary as an x-ray technician to their support. After medical school, appellee interned and then served in the Army until 1974. By then, the parties had three children. During this period, after the birth of their first child, appellant devoted her full time to being a wife and mother while appellee pursued his career. In 1974, appellee entered private practice with a Jacksonville firm of doctors as a thoracic and cardiovascular surgeon where his net income from the firm for his first year was $236,890.

In addition to property settlement, the trial court awarded appellant rehabilitative alimony in the amount of $1,200 per month to be reviewed by the court after one year to determine whether or not it should be continued, and if so, whether it should be increased, reduced, or should remain the same. The court also awarded child support for the three minor children. No question is raised on appeal as to child support or as to the amount of alimony, but appellant contends that the alimony awarded should have been permanent alimony rather than rehabilitative alimony. She testified below that since she had been in the home for over 10 years, it would be necessary that she be retrained before she would be employable and even then that she would make only $9,000 a year. She testified that she preferred to devote full time to the role of mother and homemaker for the three children as she had done since the birth of the first child. Appellee contended that she was fully employable and should seek employment.

We find no error in the trial court categorizing the alimony award as rehabilitative rather than permanent. It appears from the evidence that appellant would be émployable as an x-ray technician after a period of refresher training. However, ap-pellee now has very high earnings and earning capacity as a cardiovascular surgeon, a status which he has attained through the joint efforts of himself and appellant; and since the birth of their first child, appellant’s full time has been devoted to being a mother to the three children and a wife to appellee. In view of these facts, appellant should not now be forced to dilute her attention to the children by finding employment. Compare Brown v. Brown, 300 So.2d 719 (Fla. 1 DCA 1974). Appellee unquestionably has the financial ability to pay the alimony awarded without any degree of strain. On the other hand, at appellant’s present age (approximately 38 years), ap-pellee should not be required to support her for the balance of her life. She should, however, be adequately supported by him during the period of the minority of the children and during a reasonable rehabilitative period thereafter, and she should not live under the uncertainty of an automatic reappraisal of the alimony during such period. As aforesaid, we find no error in categorizing the alimony as rehabilitative, but we do find it was an abuse of discretion under the facts shown by the record for the trial court to order a review of the alimony one year after the final judgment. The final judgment should direct that the alimony will not be reduced prior to the youngest child reaching the age of his majority and such reasonable time thereafter as may be necessary for appellant to rehabilitate herself for employment, in the absence of a future showing by appellee on a petition for modification filed by him that he is unable to make alimony payments in the amount awarded or upon a showing of a change of circumstances which would justify a reduction in alimony.

We have considered the other points raised by appellant and find them to be without merit.

Affirmed in part and reversed in part and remanded with directions to modify the final judgment consistent with this opinion.

SMITH and MELVIN, JJ., concur.


author: ALDERMAN, Chief Judge.

text:
    UNITED YACHT BROKERS, INC., a Florida Corporation, Appellant, v. Betty J. GILLESPIE, Robert J. Mortimer and Seymour M. Klein, Personal Representatives of the Estate of Keith Wold Johnson, and Arthur Siewert and Edgar Anstett, Appellees.
    Nos. 76-1445 and 76-1933.
    District Court of Appeal of Florida, Fourth District.
    Dec. 6, 1977.
    Michael D. Stewart of Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellant.
    Gary B. Sack and Donald E. Van Kough-net of Retter & Sack, Miami, for appellees Gillespie, Mortimer and Klein.
    Brian R. Hersh and Jeffrey A. Bernstein of Law Offices of Brian R. Hersh, Miami, for appellees Siewert and Anstett.
   ALDERMAN, Chief Judge.

This appeal is brought by the plaintiff following orders dismissing with prejudice Count I of its second amended complaint for failure to state a cause of action, dismissing the action as to certain defendants, and entering final summary judgment in favor of the remaining defendants.

We conclude that the trial court initially and directly passed on the validity of a state statute, and that the Supreme Court of Florida has jurisdiction of this appeal pursuant to Article V, Section 3(b)(1), Florida Constitution. Both counts of the second amended complaint included or incorporated the following language:

[T]he plaintiff alleges that § 537.05 is unique in the field of regulatory legislation controlling the conduct of brokers. That no other form of brokerage business is subjected to such a requirement or to the consequential deprivation of the right of compensation where said statute is not complied with. The statute is, therefore, unfairly discriminatory against yacht brokers and the plaintiff herein and is violative of Article II of the Florida Constitution and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

The trial judge did not specifically mention Section 537.05 nor its validity, “but this fact does not alter the effect of the decree as a negative disposition of all pertinent questions properly raised by appellant.” Evans v. Carroll, 104 So.2d 375, 377 (Fla.1958). If Section 537.05 had been declared void by the trial court in concurrence with the plaintiff’s pleadings, neither dismissal nor summary judgment would have been appropriate because the parties may then have had a valid contract. The statutory issue was a genuine and essential element in the litigation, a decision on the validity of the statute was necessary to a determination of the cause, and therefore a finding of validity was inherent in the orders of the lower court from which this appeal is brought. P. G. Lissenden Co., Inc. v. Board of County Commissioners of Palm Beach County, 116 So.2d 632 (Fla.1959); Harrell’s Candy Kitchen, Inc. v. Sarasota-Manatee Airport Authority, 111 So.2d 439 (Fla.1959). This appeal is transferred to the Supreme Court of Florida pursuant to Fla.App. Rule 2.1, subd. a(5)(d).

DREW, E. HARRIS (Retired), and STET-TIN, HERBERT, Associate Judges, concur.


author: NATHAN, Judge. HUBBART, Judge

text:
    BARRY COLLEGE, a Florida Corporation, Appellant, v. Eugene HULL, Appellee. Eugene HULL, Appellant, v. BARRY COLLEGE, a Florida Corporation, Appellee.
    Nos. 75-1464, 76-1905.
    District Court of Appeal of Florida, Third District.
    Dec. 6, 1977.
    Rehearing Denied Jan. 16, 1978.

      Smathers & Thompson and Mercer K. Clarke, Miami, for Barry College.
    William Huggett, Miami, for Eugene Hull.
    Before HENDRY, C. J., and NATHAN and HUBBART, JJ.
   NATHAN, Judge.

Barry College, the defendant, .appeals a final judgment entered pursuant to a jury verdict in favor of the plaintiff, Eugene Hull, in the amount of $63,107.93. Eugene Hull and his wife, Robina, plaintiffs in the trial court, appeal the trial court’s orders granting two remittiturs in the amount of $21,000.00 and $10,000.00, respectively. The two appeals are consolidated.

This is an action in breach of contract and libel and slander by Eugene Hull against Barry College over the publication of an allegedly defamatory memorandum written by the president of Barry College in which it was asserted that Hull “tendered his resignation” from his position as vice president for business affairs.

Hull was hired by Barry College as director for business affairs, and later promoted to vice president for business affairs. He was employed by Barry College from July 1, 1970, until September 21, 1973. Hull was given two consecutive one year contracts from July 1, 1970, through June 30,1972. Prior to the expiration of the last contract, he was granted a written two year contract from July 1,1972, through June 30, 1974.

On March 23,1973, Hull notified the president of Barry College by written memorandum that,

“It is my professional opinion that my knowledge and expertise are not being utilized. Therefore, I wish to inform you that I shall be seeking a relationship with another institution.
. please be assured that I shall consider your needs as well as Barry’s prior to accepting a new professional relationship.”

In mid-September, there occurred the last of several policy disagreements involving Hull and the administration. On September 21,1973, the Board of Trustees of Barry College determined to accept Hull’s “resignation” and directed the president to so inform Hull. Pursuant to that determination, a written notice was placed on the bulletin board of Barry College informing the Barry community as to Hull’s change in status:

“This is to announce that Mr. Eugene Hull, Vice President for Business Affairs, having tendered his resignation several months ago makes it effective as of this date.
His responsibilities will be temporarily assumed by other staff members. An announcement of these assignments will be posted later.”

It was this notice that was subsequently, alleged to be the libel committed by Barry College.

Hull was informed that he would receive his salary through the end of December, 1973. However, payment of salary was terminated when Hull commenced this lawsuit on November 8, 1973. The complaint alleged breach of contract and libel and slander, and contained a count for loss of consortium by Hull’s wife. Hull contended (1) that his contract was wrongfully terminated in the middle of an academic year without warning or notice; (2) that he was fired and never resigned, and the firing in this abrupt manner effectively prevented him from getting a job in the academic world because it raised insurmountable implications that he had been fired for serious misconduct; (3) that Barry College’s entire course of conduct in firing him without notice in mid-academic year and publishing a false memorandum constituted a defamation which was incompatible with the proper exercise of his profession.

The case proceeded to a jury trial, culminating in a verdict in favor of Hull against Barry College with respect to the claims for breach of contract and libel. The amount of the jury verdict was $63,107.93. The jury found against Mrs. Hull on her claim for loss of consortium.

Barry College challenged the verdict by post-trial motions seeking a remittitur and/or a new trial. The trial court denied the motion for new trial but entered a remittitur of $21,000.00. As a result, Hull was awarded a judgment in the amount of $42,107.93.

Barry College subsequently filed a motion for relief from judgment on the grounds that Hull had committed perjury at trial and had otherwise misrepresented his employment status after leaving Barry College. While that motion was pending, Barry College filed a notice of appeal, and then requested that this court stay the appeal and relinquish jurisdiction to the trial court for the purpose of resolving the perjury question. After several stays of the appeal, the trial court ordered, as a result of the perjury charge, that Hull accept a further remittitur or he would grant a new trial on the issue of damages only. Hull declined to accept this remittitur and appealed the order. By order of November 8, 1976, this court resumed jurisdiction of the appeal.

Barry College contends that the trial court erred in failing to grant a directed verdict on Hull’s claim for libel. Hull claims that the notice published on the bulletin board of Barry College constituted libel per se as it stated that he had resigned when, in fact, he had been fired. The trial judge considered the publication to be libel per se.

Generally, a publication is libelous per se if, when considered alone without innuendo, it tends to subject one to hatred, distrust, ridicule, contempt or disgrace, or tends to injure one in his trade or profession, Adams v. News-Journal Corporation, 84 So.2d 549, 551 (Fla.1955), or if it imputes to another conduct, characteristics, or a condition incompatible with the proper exercise of his lawful business, trade, profession or office. Miami Herald Publishing Co. v. Brautigam, 127 So.2d 718, 722 (Fla.3d DCA 1961). Words which amount to libel per se import damages and malice and are actionable in and of themselves without allegations or proof of special damages. See Campbell v. Jacksonville Kennel Club, 66 So.2d 495, 497 (Fla.1953). With written words which are actionable per se, their libelous and injurious character is a matter of common knowledge, and the court can take judicial notice thereof. Such words necessarily import damage. Therefore, in such cases, general damages need not be pleaded or proved, and special damages need not be shown to sustain the action. Moreover, malice is presumed as a matter of law. Commander v. Pedersen, 116 Fla. 148, 156 So. 337 (1934).

The record reflects that the trial judge fashioned a charge on libel per se which he gave to the jury. This charge, however, removed from the jury, the responsibility of deciding whether the notice constituted libel per se, libel per quod or no libel at all. The charge merely combined Hull’s termination with his alleged inability to find employment, and, in effect, directed the jury to find libel if it found that Hull had been fired.

In our opinion, the court erred in determining that the notice of September 23, 1973, constituted libel per se. Under Florida law, false written statements may be either libel per se or libel per quod. The practical distinction between the two is that for libel per quod, actual malice and special damages must be proved. To recover damages for libel per quod, it is necessary to establish that the damages were caused by the language alleged to be libelous. Harriss v. Metropolis Co., 118 Fla. 825, 160 So. 205 (1935).

As stated in Wolf son v. Kirk, 273 So.2d 774 (Fla.4th DCA 1973), defamation (libel and slander) may be defined as the unprivileged publication of false statements which naturally and proximately result in injury to another. Malice is an essential element of the tort. In fact, without malice, either express or implied by law, no tort could result from the publication of a defamatory statement concerning another, however untrue it might be. Layne v. Tribune Co., 108 Fla. 177, 146 So. 234 (1933). The pertinent holding in Wolf son v. Kirk, supra, is that neither the court nor the jury may go beyond the four corners of the publication in determining whether or not there is libel per se.

Hull testified that he was terminated in September, 1973, and that he was unable to secure employment through the time of trial, in May, 1976. He attributed his lack of employment after termination to the timing of the termination. The court charged the jury that if the firing caused the unemploy-ability, then that would be libel per se. In order to find that Hull was fired rather than having resigned, it was necessary to go out of the four corners of the notice. Therefore, there was no libel per se.

Further, the record reflects no evidence of damages stemming from the publication of the notice so as to give rise to an action for libel per quod. Accordingly, we are of the opinion that the trial judge erred in failing to grant a directed verdict on the count for libel. We reverse and remand with instructions to enter a directed verdict in favor of Barry College and against the plaintiff, Hull, on the libel count.

The other points raised by Barry College are without merit. The points raised by Hull in his appeal need not be discussed in view of the above opinion. The verdict and judgment in the amount of $16,107.93 for breach of Hull’s employment contract is affirmed.

Affirmed in part, reversed in part and remanded with directions.

HUBBART, Judge

(concurring).

I concur in the judgment of the court on a ground which seems implicit in the court’s opinion, namely, that the involuntary termination of the plaintiff’s employment herein constituted an actionable breach of contract, but the written publication thereof stating without more that the plaintiff had resigned his employment was not defamatory and thus not actionable as libel.

The instant publication, even though charitably false as the plaintiff had in fact been involuntarily terminated, is not a defamatory publication because it did not expose the plaintiff to distrust, hatred, contempt, ridicule or obloquy; or cause the plaintiff to be avoided; or constitute an attack on the plaintiff’s character which would have a tendency to injure the plaintiff in his office, occupation, business or employment, as required by the law of libel. Cooper v. Miami Herald Publishing Co., 159 Fla. 296, 31 So.2d 382, 384 (1947). The written notice on the Barry College bulletin board merely recited that the plaintiff had submitted his resignation as college vice-president for business affairs, that such resignation was now effective, and that the plaintiff’s duties were being temporarily assumed by other college staff members. The notice contained no disparaging remarks which could in any way reflect on the plaintiff’s character or reputation. As such, the notice cannot constitute an actionable libel. See: M. F. Patterson Dental Supply Co. v. Wadley, 401 F.2d 167 (10th Cir. 1968); Hubbard v. Furman University, 76 S.C. 510, 57 S.E. 478 (1907) as discussed in Jack’s Cookie Co. v. Brooks, 227 F.2d 935, 938 (4th Cir. 1955); 50 Am.Jur.2d Libel and Slander §§ 116-17 (1970); Prosser on Torts 739-744 (4th ed. 1971).

Employment terminations of this variety and subsequent publications thereof are not uncommon in the business and professional worlds and cannot reasonably be interpreted as disgracing the employee or injuring his reputation without additional words of an otherwise defamatory character. No such additional words appear in this case. It is true that the employment termination herein and the timing thereof may have been injurious to the plaintiff’s future employment prospects, but the injury, if any, came from the fact and timing of the termination, not the publication thereof. For such termination, the plaintiff’s sole remedy was breach of contract.

Accordingly, the judgment on the libel count is subject to reversal for failure of the trial court to grant the defendant’s motion for a directed verdict. The judgment on the breach of contract count, however, must be affirmed.


text:
    BERMIL CORPORATION, a Florida Corporation, Edward Leeds, Norman Morris and C.C.C. Investment Corporation, Appellants, v. Kay SAWYER d/b/a United Mortgage Company, Appellee.
    Nos. 76-521, 76-657 and 76-658.
    District Court of Appeal of Florida, Third District.
    Dec. 6, 1977.
    Rehearing Denied Jan. 16, 1978.

      Lapidus & Hollander and Richard L. La-pidus, Miami, for Bermil Corp.
    Sibley, Giblin, Levenson & Glaser and Irving B. Levenson, Miami Beach, for Leeds, Morris & CCC Investment, appellants.
    Male, Bloom, Bodne, Kuperstein & Eisen-berg, Miami and Michael J. Fingar, Miami Lakes, for appellee.
    Before HENDRY, C. J., and PEARSON and NATHAN, JJ.
   HENDRY, Chief Judge.

These appeals, consolidated for all appellate purposes, are taken from three final judgments rendered pursuant to jury verdicts. The first judgment was rendered in favor of appellee/plaintiff Kay Sawyer and against appellant/defendant Bermil Corporation on a cause of action based upon a breach of a brokerage contract. Judgment number two was rendered in favor of Sawyer and against appellant/defendant Edward Leeds for the tortious interference with the above brokerage contract. The third and final judgment appealed from was rendered in favor of Bermil Corporation, as appellee/cross-plaintiff, and against appellants/cross-defendants Leeds, Norman Morris and C.C.C. Investment Corporation for damages based upon the jury’s determination that a certain real property transaction entered into between the parties and designated by them as a sale with option to repurchase was, in reality, a device to disguise a usurious loan.

The salient facts, taken in the light most favorable to the various appellees, are as follows: on August 28, 1973, Bermil Corporation defaulted on a first mortgage which encumbered its Cypress Plaza Shopping Center in Pompano Beach, Florida. Unable to forestall the New York mortgagee any longer, Bermil- Corporation, acting through its president, Milton Stein, began approaching various mortgage brokers for the needed money to satisfy the default.

On or about December 7,1973, Stein telephoned Kay Sawyer, a Dade County mortgage broker. That same day, Stein and Ms. Sawyer met in the latter’s office at which time Stein signed a loan application. In pertinent part, the application provided that Stein agreed to pay Sawyer a $6,000.00 fee if she could obtain a $60,000.00 loan for him at the rate of 15% interest for 5 years. Later that day, Ms. Sawyer began her quest, burdened by the reality that Stein’s financial difficulties, including the “failure” of other shopping centers owned by his corporation, would make the task difficult. She did, however, contact Edward Leeds, who demonstrated a serious interest in making the loan, upon the proper security being furnished.

A few days passed between the initial conversation of Leeds and Sawyer and a second conversation wherein Leeds agreed to loan the money at the aforementioned rate of interest secured by a mortgage on the property. Pursuant to this second conversation, the mortgage was to be taken in the name of C.C.C. Investment Corporation, a Florida corporation that had paid no income taxes since 1969; had held no director’s or stockholder’s meetings; and had been utilized to pay the personal debts of its sole stockholder, Leed’s wife. Relying upon Leed’s representation that he would fund the mortgage, Ms. Sawyer prepared a note and mortgage and recorded same.

On December 14,1973, the resident agent of Bermil Corporation received a complaint for foreclosure, together- with notice, stating that on December 21, 1973, a hearing was scheduled for the appointment of a receiver for the Cypress Plaza Shopping Center, predicated upon the failure of Ber-mil Corporation to pay the August, 1973, mortgage payment. According to the terms of the mortgage, upon default, the mortgagee had the right to accelerate the entire debt, which at that time, was nearly $2,000,000.00.

On December 19, 1973, two days prior to the receivership hearing (and after the note and mortgage had been recorded), a meeting was held in Ms. Sawyer’s office attended by Stein, Leeds and Sawyer. After preliminary talks, Leeds put a check on the table for $57,000.00. When asked by Ms. Sawyer why the check was not in the heretofore agreed upon amount of $60,000.00, Leeds responded by saying that he would give her the $3,000.00 balance and told her not to worry about it. The tender was refused by Sawyer on the grounds that (1) the check had too many endorsements on its back and that (2) she was an “ethical broker” and “sometimes it [the funding of a mortgage note by a lender in an amount less than the actual face value of the note] could be a usurious transaction” resulting in the appearance “that there had been a kickback of some kind.”

The next evening, with the receivership hearing the following day, Leeds telephoned Stein and told him that he would not fund the mortgage. Instead, Leeds suggested that for the same $60,000.00, he would buy 40% of the shopping center. On December 21, 1973, the following morning, Leeds and Stein met, at which time Leeds insisted upon being given a deed to 40% interest in the property. Having until noon of that day to make payment on the first mortgage, Stein agreed to the deed.

The terms of the transaction were as follows: Stein deeded over to C.C.C. Investment Corporation the 40% interest in the shopping center in exchange for $60,000.00, with an option to repurchase same at the end of one year for $100,000.00. Prior to the receivership hearing, upon negotiation with the mortgagee’s attorney, $54,000.00 was paid to satisfy the default in the mortgage. Leeds kept the remaining $6,000.00 which had originally been earmarked as Sawyer’s brokerage commission. As of the time of trial, Sawyer had not been paid for her efforts.

At the time of the transaction, the net income generated by the shopping center was over $50,000.00 per year. The stores at the shopping center were generally rented with long term leases and the revenue generated by said leases were constant. At trial, the value of the equity in the property was estimated at between $500,000.00 and $750,000.00.

Subsequent to the aforedescribed transaction, on December 25, 1973, Leeds approached Norman Morris about purchasing half of his 40% interest. Before that date, Morris was neither involved in the above transaction, nor had he known of Leed’s prior representation to loan Stein the $60,-000.00. Morris did testify at .trial that he was aware of Stein’s financial difficulty at the time that he became Leed’s partner and that his interest in the equity was purchased well below its probable value.

After a lengthy and complex trial, a jury returned a verdict in favor of Ms. Sawyer and against Bermil Corporation (Stein) for her brokerage commission, assessing damages at $6,000.00, the amount of the commission. In addition, Sawyer was awarded a favorable verdict against Leeds for the tortious interference with the Sawyer-Ber-mil Corporation brokerage contract. Damages were assessed by the jury in the like amount of $6,000.00. Finally, the jury returned a verdict in favor of Bermil Corporation and against Leeds, Morris and C.C.C. Investment Corporation on the former’s cross-claim, finding that the sale-option transaction was, in reality, a device to cloth a usurious transaction. Damages in the amount of $73,000.00 were assessed by the jury-

From these three final judgments, this consolidated appeal follows.

Initially, it must be emphasized that all three final judgments under attack were rendered pursuant to a jury verdict. As such, certain appellate principles of law must be emphasized and cannot, sub judice, be understated. Those principles include the caveat that the function of an appellate court is not to substitute its judgment for that of the jury on disputed questions of fact. Fountainhead Motel, Inc. v. Massey, 336 So.2d 397 (Fla.3d DCA 1976). In addition, a judgment of the trial court reaches an appellate court clothed with a presumption of correctness, Keith v. Amrep Corporation, 312 So.2d 234 (Fla.lst DCA 1975), and will not be disturbed as long as there is any competent substantial evidence which can sustain the jury’s verdict. South Carolina Insurance Company v. Wolf, 331 So.2d 337 (Fla.lst DCA 1976). Finally, it must be stated that any party seeking to have a jury verdict set aside admits, for purposes of that proceeding, all material facts as testified to by the opposing party together with all inferences favorable to the opposing party which might reasonably be drawn from the evidence as a whole. Thompson v. Jacobs, 314 So.2d 797 (Fla.lst DCA 1975).

With the above principles in mind, we first turn to the final judgment rendered against Leeds, Morris and C.C.C. Investment Corporation for usury. In order to establish a usurious transaction, certain elements must first be present. Firstly, there must be a loan, either expressed or implied, and an understanding between the parties that the money lent shall be returned. Secondly, it must appear that a greater rate of interest than is allowed by law has been or is about to be paid, or was agreed to be paid. Thirdly, there must exist an intent to wilfully and knowingly take more than the legal rate of interest for the use of the money loaned. Sharp v. Dixon, 252 So.2d 805 (Fla.4th DCA 1971).

Sub judice, the record reflects that there was competent substantial evidence to support the jury’s verdict that the “sale-option to repurchase” transaction entered into between Bermil Corporation and C.C.C. Investment Corporation was but a camouflaged attempt to extract greater than the legal rate of interest from Bermil Corporation, at a time when its president, Milton Stein, was under the greatest of financial pressures. Notwithstanding the contents of the record, the parties to this particular appeal, Leeds, Morris and C.C.C. Investment Corporation, raise certain points on appeal which, they contend, will insulate them from liability — as a matter of law.

Firstly, all three appellants contend that, the “option to repurchase,” given in conjunction with the sale, was not an unconditional, enforceable covenant and as such, they, as lenders, could not compel Bermil Corporation, as the borrower, to exercise the option and pay the usurious amount of interest. The option to repurchase being conditional, appellants argue that as a matter of law, the requisite intent to extract a usurious rate of interest at the inception of the transaction was absent and thus, no prima facie case of usury could be established.

Generally, in order to establish a usurious transaction when a sale-option to repurchase is involved, the option must, in fact, be unconditional, compelling the vendor to repurchase the property sold at a sum which, if said sale was determined to be a disguise for a loan, would make the loan usurious. See Mears v. Mayblum, 96 So.2d 223 (Fla.1957). As with every generality, however, there is a notable exception, best expressed in a scholarly, well-reasoned opinion from the Supreme Court of Hawaii, cited as Kawauchi v. Tabata, 49 Haw. 160, 413 P.2d 221 (1966). In that case, the court opined that in a transaction whereby a vendee purchases property for an amount much less than that property’s value, and contemporaneously executes with the vendor an option to repurchase said property, then notwithstanding the fact that the option is not obligatory on the part of the vendor, a court might, upon a proper allegation of usury, disregard the form of the transaction and look to its substance.

We believe the reasoning in Kawau-chi, supra, is sound and can be applied sub judice, for while the option to repurchase was not mandatory, the relative disparity between the sale price of a 40% interest in the shopping center and its true value dictated the exercise of the option. Thus, while the option, in and of itself, was not legally enforceable by the purchaser (appellants), it was economically binding, satisfying to our satisfaction, the “intent to extract usurious interest” requirement as required by the Sharp case, supra. As such, we cannot accept appellants’ argument that C.C.C. Investment Corporation and Leeds did not have the intent needed, as a matter of law, to find them guilty of usury.

Appellant Edward Leeds next contends that his liability, as an individual, on the judgment was legally erroneous in that the “loan” was made in the name of C.C.C. Investment Corporation, only. There was, however, in our opinion, competent substantial evidence to support the verdict of the jury in that the record was permeated with examples of Leeds, as a corporate officer of C.C.C. Investment Corporation, personally utilizing the assets of the latter for the payment of personal obligations and investments; failing to maintain either the de jure or de facto existence of the corporate entity; and generally treating the corporation as a sham. As a matter of law, based on the above and even absent the allegation and proof of actual fraud, it was not error for a jury to pierce the corporate veil and find Leeds liable on an alter ego theory. See Levenstein v. Sapiro, 279 So.2d 858 (Fla.1973), conformed to at 282 So.2d 11 (Fla.3d DCA 1973).

As for Norman Morris, however, the partner of Leeds, it is our opinion that the record will neither factually nor legally support his individual liability on the usurious transaction. As was previously mentioned, Morris was brought in as a partner of Leeds subsequent to the completion of the usurious transaction entered into between Stein and Leeds. There is nothing in the record that would lend itself to the interpretation that Morris knew the true circumstances of the transaction. Rather, the record reflects that Morris believed that he had made a purely advantageous purchase of an interest in the shopping center partly owned by Leeds. As a matter of law and fact then, the requisite “intent” factor needed to establish usury is noticeably absent as regards Morris, absolving him from liability. Sharp v. Dixon, supra.

We also find that the jury’s verdicts against Bermil Corporation and Edward Leeds and in favor of Kay Sawyer were based upon competent substantial evidence. Firstly, as regards to the judgment entered against Bermil Corporation, it is no defense to the payment of a brokerage commission that the parties consummated the transaction upon different terms and without the participation of the broker when (1) the broker initially brought the parties together and (2) the parties purposely excluded the broker from the negotiations by dealing with one another directly and in a clandestine manner. First Realty Corporation v. Standard Steel Treating Company, 268 So.2d 410 (Fla.4th DCA 1972); see also Estes v. Moylan, 94 So.2d 362 (Flá.1957).

Regarding the judgment entered against Edward Leeds for the tortious interference of contractual relations, we turn to the case of Regan v. Davis, 97 So.2d 324 (Fla.2d DCA 1957) wherein the court stated that in order to establish a prima facie case of interference, it must be shown that (1) the acts were intentional and wilful; (2) said acts were calculated to cause damage to the plaintiff in his or her business; (3) that the acts were done with the unlawful purpose of causing damage and loss, without right or justifiable cause on the part of the defendant (constituting malice); and (4) that actual damages and loss resulted. The facts sub judice support the jury’s verdict as to the tort of interference with contractual relations.

Appellant Leeds nevertheless contends that once a judgment has been rendered in favor of a broker against the vendor on a contract action for the contract price, a second remedy of tortious interference with the contract cannot be pursued to judgment. We disagree. Where a vendor and vendee act in concert to deprive a broker of her commission pursuant to a contract entered into between the broker and the vendor, then an action for tortious interference with that contract will lie against the vendee, as well as an action for breach of the brokerage contract against the vendor. Mead Corporation v. Mason, 191 So.2d 592 (Fla.3d DCA 1966). Both remedies having been pursued to judgment, both Leeds and Bermil Corporation are both jointly and severably liable for the damages sustained by Sawyer, .i.e., $6,000.00.

Accordingly, after carefully reviewing the record, briefs and arguments of counsel, it is our opinion that the final judgments rendered against Edward Leeds and Bermil Corporation for tortious interference with contract and breach of contract, respectively, are hereby affirmed. The final judgment rendered in favor of Bermil Corporation on its cause of action for usury is affirmed as to C.C.C. Investment Corporation and Edward Leeds, but reversed as to Norman Morris.

Affirmed in part; reversed in part and remanded for further proceedings.


author: PER CURIAM.

text:
    HOLIDAY AIR ASSOCIATES, INC., Appellant, v. AERO TIRE COMPANY, a Florida Corporation, and John T. Clark, d/b/a Clark Aircraft Service, Appellees.
    No. 76-630.
    District Court of Appeal of Florida, Third District.
    Dec. 6, 1977.
    Rehearing Denied Jan. 16, 1978.

      Walsh, Kahn & Gustafson and Mark R. Boyd, Fort Lauderdale, for appellant.
    Brigham & Brigham and Dana P. Brigham, Miami, for appellees.
    Before HENDRY, C. J., and HAVER-FIELD and HUBBART, JJ.
   PER CURIAM.

Plaintiff, Holiday Air Associates, in this negligence action seeking to recover damages to its aircraft after a crash-landing, appeals a summary judgment entered in favor of defendant, John T. Clark.

Holiday Air is the owner of a Cessna 402-A airplane which was forced to crash-land resulting in extensive damage to the aircraft. The alleged cause of the crash was the installation of improperly recapped tires which did not meet the manufacturer’s specifications as to size and quality; when the tires were mounted on the aircraft their bulk would not permit the main landing gear of the aircraft to be properly retracted and lowered. Holiday filed the instant action for damages against John T. Clark and others alleging that Clark, who is a certified mechanic, negligently installed the tires on the Cessna and failed to conduct a wheel retraction test. Clark answered generally denying the material allegations of the complaint. Subsequently, Clark filed a motion for summary judgment attaching a stipulation for compromise and settlement by which he claimed Holiday had released him from all claims and demands. After a hearing, the trial judge entered the summary judgment for Clark. We reverse.

After an examination of the record and the stipulation, we conclude that there remain questions of fact as to whether or not the stipulation released Clark from liability with respect to the issues raised by the present law suit. Thus, the summary judgment is reversed and the cause remanded to the trial court for further proceedings not inconsistent herewith. See Holl v. Talcott, 191 So.2d 40 (Fla.1966).

Reversed and remanded.

      . It appears that this stipulation which was approved by court order resulted from a prior suit brought by Clark against Holiday Air and others.


text:
    Robert H. MYERS, Jr., et al., Appellants, v. Bernard L. GARMIRE, etc., et al., Appellees.
    No. 76-1518.
    District Court of Appeal of Florida, Third District.
    Dec. 6, 1977.
    Rehearing Denied Jan. 16, 1978.

      Whitman, Wolfe & Gross and Irving J. Whitman, Miami, for appellants.
    George F. Knox, Jr., City Atty., and S. R. Sterbenz, Asst. City Atty., for appellees.
    Before HAVERFIELD, HUBBART and KEHOE, JJ.
   PER CURIAM.

Petitioners, members of the City of Miami Police department, appeal a final judgment in favor of the City of Miami police chief, the City manager, and executive secretary of the civil service board in an action seeking to enjoin the abolishment of an eligible register containing certain grandfathered promotional positions and requiring the City manager to promote petitioners to the rank of sergeant by filling these grandfathered positions from the register.

Prior to 1963 the City of Miami police department personnel was divided into two categories, uniform and detective, with separate promotional lists and separate positions (or ranks) as follows:

Uniform Division Detective Bureau
1. Police Officer
2. Police Officer First Class
3. Sergeant Detective
4. Lieutenant Detective Sergeant
5. Captain Detective Lieutenant
6. Inspector Detective Captain

A police officer desiring to advance in rank had to make a choice whether to pursue his career in the uniform or detective section. The officer would then take the promotional examination for the section of his choice and upon passing the examination, his name and score would be placed upon the eligible register for promotion. The officer could not be transferred or interchanged to another section unless he consented. In 1974 the City replaced this procedure with a single eligible register containing only the ranks of sergeant, lieutenant and captain. Further, when a police officer on the eligible register was promoted to sergeant he could be interchanged between the uniform and detective sections. Petitioners contend that as a result of an agreement between the City attorney’s office, the City manager and chief of police, no rank would be lost that was in being prior to 1963; thus, those reputive detective positions being held at the time by the police personnel in the detective bureau were “grandfathered in”. The agreement further provided that there would be no reduction in the number of sergeants. The so-called “grandfathered detective positions” is the crux of this controversy. It appears from the record that after these grandfathered detective positions were vacated by the original personnel (either through retirement or promotion), the City manager continued to fill some of these positions from the then current promotional register, and petitioners were on the sergeant’s promotional register which expired on April 4,1974. Sometime prior to this date, the City manager abolished these grandfathered detective positions and failed to promote appellants. Appellants before April 4, 1974 filed a petition and thereafter an amended petition seeking to enjoin the City manager from abolishing these grandfathered positions and to require the manager to promote them to these vacant positions. After a non-jury trial, the judge entered judgment for respondents. We affirm.

The City manager in the exercise of his administrative discretion may choose to leave a position vacant and appellants failed to show a legal duty upon the respondents to promote them. See City of Miami v. Rezeau, 129 So.2d 432 (Fla. 3d DCA 1961); City of Miami v. Elmore, 131 So.2d 517 (Fla. 3d DCA 1961); City of Miami v. Perkins, 139 So.2d 178 (Fla. 3d DCA 1962). As this court stated in Elmore, supra, at 519:

“We are unable to reconcile the charter powers granted the city manager with the contentions of the appellees that the city manager is required to fill a vacancy when one exists. To adopt the appellees’ position would render impotent the charter provision that grants to the city manager the discretion to determine the number of police officers as well as his right by ordinance to abolish positions in the interests of efficient and economic administration. To state the proposition another way would be to say that the city manager, when a vacancy occurred, had no discretion but to fill the vacancy regardless of whether or not he, as the chief executive officer of the city, deemed it beneficial from an economic or efficiency standpoint to do so.”

As pointed out in the above quote, the City manager within his administrative discretion has the right to abolish or re-establish positions.

It is clear from a reading of the record that the agreement creating the so-called grandfathered positions was applicable only to the police personnel promoted prior to 1963 and only these personnel had a personal interest therein.

Finally, although the City manager did fill some vacancies in these grandfathered positions after the personnel promoted prior to 1963 were either promoted or retired, this practice did not constitute a binding agreement; it simply was a matter of policy which in the City manager’s discretion could be discontinued.

Affirmed.


author: NATHAN, Judge.

text:
    Jeanette WILLIAMS a/k/a Jeanette Morgan, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1584.
    District Court of Appeal of Florida, Third District.
    Dec. 6, 1977.
    Rehearing Denied Jan. 16, 1978.

      Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., and HAVER-FIELD and NATHAN, JJ.
   NATHAN, Judge.

The defendant, Jeanette Williams, a/k/a Jeanette Morgan, was charged by information with possession of a controlled substance; carrying a concealed firearm; buying, receiving or concealing stolen property; and robbery. She pled not guilty and was tried by jury. The jury returned verdicts of not guilty on the charge of carrying a concealed firearm, and guilty on the remaining charges. The trial court entered a judgment of acquittal on the charge of carrying a concealed firearm, adjudicated the defendant guilty on the remaining charges and sentenced her to 99 years imprisonment on the robbery conviction, and consecutive 5 year terms on the possession and buying, receiving or concealing convictions.

Defendant contends that the State elicited testimony that defendant exercised her right to remain silent while in police custody. The controlling question in this case is whether the admission of the testimony constituted error, and if so, was it fundamental error?

The record reflects that the arresting officer testified that he read the defendant her rights from the standard Miranda card; that she indicated that she understood each of them; and that he said,

“. . . ‘Knowing your rights, as I have just related them to you, are you now willing to asnwer [sic] any questions without having an attorney present?’ She said ‘Yes,’ but she didn’t say anything.”

The State then sought to introduce into evidence several inculpatory statements made by the defendant. At this point, defense counsel objected. A hearing on vol-untariness was held outside the presence of the jury, and the court ruled,

“. . . For the purposes of this hearing, we will determine that the statements that she made, whatever she made, were freely and voluntarily given. That her constitutional rights under Miranda, were protected. The value of those statements or the credit to be given to them are questions for the jury to resolve under appropriate instruction.”

The jury was then brought back in, and the officer continued to testify:

A I advised her that she was under arrest for robbery .
Q Did she say anything in response to that?
A Not at that time. No, sir.

It is the defendant’s position that even without objection having been made by defense counsel, the officer’s two statements, “but she didn’t say anything,” and “[She didn’t say anything] at that time. No, sir,” were impermissible references to her right to remain silent, constituted a violation of her privilege against self-incrimination, as guaranteed by the United States and Florida Constitutions, and mandate reversal of her convictions. As authority, defendant cites Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Jones v. State, 200 So.2d 574 (Fla. 3d DCA 1967); Bennett v. State, 316 So.2d 41 (Fla.1975). Taking the officer’s two statements out of context, we might be inclined to so interpret them. However, we have considered the officer’s testimony in its entirety. The State’s next question was,

“Q Did there come a time when she made any statement to you?”

The following then transpired:

“A She was sitting in the lobby of the Florida City police station. She made a statement then.
Q What did she say to you then?
A She said then, ‘We didn’t get any money. All we had, we didn’t take any money. We just ripped the man off for his drugs.’
Q Was that in response to any questions?
A No, sir.
Q Did she make any further remarks to you?
A Yes, sir, she did.
Q What further remarks did she make?
A She said, T beat a murder rap one time by pleading insanity. I will do the same thing with the robbery charge.’ ” *

We are in agreement with defendant’s statement of law that generally, a prosecutor is forbidden from eliciting testimony or from commenting on a defendant’s right to remain silent. However, that is not the situation in this case. From the record, we find that the prosecutor was seeking to introduce a statement of the defendant into evidence, and it was necessary to first show that she had been properly warned of her constitutional rights, and that she knowingly and voluntarily waived those rights. The record fails to show that the defendant exercised her right to remain silent. Rather, the testimony shows that she did not seek to exercise the right to remain silent, and that her inculpatory statements were made freely, voluntarily and with full knowledge of her rights.

The crucial aspect of the challenged testimony is that it was not elicited to show that the defendant did not say anything at that time. The importance of the testimony is the fact that the defendant responded that she was willing to answer questions, and willing to waive her right to remain silent. Defendant was not asked to make a statement, but rather, was asked if she was willing to answer questions. The testimony by the police officer that she did not volunteer a statement at that time, when she had not been asked to do so, did not constitute an impermissible reference to her exercise of the right to remain silent, as the record demonstrates a waiver of that right.

Generally, the voluntariness of a confession is to be determined from the totality of the circumstances. Williams v. State, 156 Fla. 300, 22 So.2d 821 (1945); State v. Ghorpenning, 294 So.2d 54 (Fla. 2d DCA 1974). One of the circumstances to be considered in this case is that the defendant was in custody and had been given her Miranda rights. Under Florida law, the matter of the voluntariness of a confession is a mixed question of law and fact to be determined initially by the trial court in ruling on admissibility of the statement, and ultimately by the jury. State v. Oyar zo, 274 So.2d 519, 521 (Fla.1973). The jury is entitled to have the question of the vol-untariness of a confession submitted to it under appropriate instructions from the trial judge, and it may accord the confession such weight as it merits in light of all of the evidence adduced, including the circumstances under which it was made. Foreman v. State, 213 So.2d 754 (Fla. 1st DCA 1968). The record reflects that the court did instruct the jury as to the voluntariness of the confession and the weight to be accorded it.

There being no error in the admissibility of the challenged testimony, we need not reach the question of whether, had the defendant chosen to stand on her Fifth Amendment right to remain silent, admission of the testimony without objection by defense counsel would have been reversible error, even if she later made the inculpato-ry statement.

We have considered the other points raised by the defendant and find them to be without merit.

Affirmed.


text:
    Kenneth Roger CHASE and American Bankers Insurance Company of Florida, Appellants, v. Martin J. GILMORE, as Administrator of the Estate of Gladys Irene Gilmore, Deceased, etc., Appellee.
    No. 76-1888.
    District Court of Appeal of Florida, Third District.
    Dec. 6, 1977.
    Rehearing Denied Jan. 16, 1978.
    Helliwell, Melrose & DeWolf and William E. Sadowski, Miami, for appellants.

      Jerry A. Burns, Stanley M. Rosenblatt, Greene & Cooper and Sharon L. Wolfe, Miami, for appellee.
    Before PEARSON and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

This wrongful death action was instituted against Kenneth Roger Chase and his liability indemnity insurer by Martin J. Gilmore, as Administrator of the Estate of Gladys Irene Gilmore, deceased. The death of the deceased came about when, as a pedestrian crossing a street, she was struck by a motorcycle owned and being operated by Chase.

Trial of the action resulted in a verdict for the plaintiff by which the jury fixed damages for one minor child at $250,000.00 and for a second child in the amount of $50,000.00, and for the decedent’s husband, Martin J. Gilmore, at $5,000.00. In connection therewith, the jury found that of the combined negligence of the defendant (Chase) and the decedent, twenty per cent was attributable to Chase and eighty per cent to the decedent. Judgment was entered on the verdict for the reduced amounts indicated by those percentages. The defendants appealed, and Martin J. Gilmore filed a cross-assignment of error; appellants do not question the damages awarded. Appellants contend error was committed in three instances by ruling at trial by which the court, over objection, excluded certain evidence and admitted certain evidence. To discuss those matters here would serve no useful purpose. We have considered the record and briefs relating thereto and hold no reversible error thereby resulted.

Additionally, appellants contend the court erred by charging the jury on the law, as set out by statute, requiring that every motorcycle, other than a “motor-driven cycle”, have multiple beam road lighting equipment which shall reveal persons and vehicles at a distance of at least three hundred feet. Section 316.248, Florida Statutes (1975). The appellants contend the charge on that subject should have been the statutory requirement for “motor-driven cycles”; that their lighting equipment be such as to reveal persons and vehicles at a lesser distance. Section 316.249, Florida Statutes (1975).

Although in the latter statutory section it is provided that such a cycle shall have lighting equipment sufficient to reveal persons and vehicles at one hundred feet when operated at a speed of less than 25 m.p.h. and at two hundred feet when operated at a speed of 25 m.p.h. or more, that section also provides that such distance shall be not less than three hundred feet when the motor-driven cycle is operated at a speed- of 35 m.p.h. or more. In this instance, the defendant, Chase, was proceeding at the latter rate or more on his motorcycle. We find no error was made in the giving of the questioned jury charge.

Appellee, Martin J. Gilmore, seeks reversal of the judgment as to him and a new trial on damages, contending the sum of $5,000.00 fixed by the jury as damages for him was inadequate in view of the evidence. We cannot agree. There was presented to the jury evidence relating to Gilmore and his wife, the decedent, and otherwise bearing on his elements of damage, on the basis of which we are unable to conclude that the verdict awarded to Gilmore was not supported and justified by the evidence.

No reversible error having been shown, the judgment is affirmed.


text:
    John BRINKLEY and Vincenta Brinkley, Appellant, v. SOUTHERN BELL TELEPHONE & TELEGRAPH COMPANY, Appellee.
    No. 76-1913.
    District Court of Appeal of Florida, Third District.
    Dec. 6, 1977.
    Rehearing Denied Jan. 16, 1978.
    Preddy, Kutner & Hardy and Joel Ka-plan, Miami, for appellant.
    Mahoney, Hadlow & Adams and Paul C. Huck and Sharon L. Wolfe, Miami, for ap-pellee.
    Before HAVERFIELD, NATHAN and KEHOE, JJ.
   NATHAN, Judge.

This appeal questions the correctness of a summary final judgment rendered in favor of the defendant, Southern Bell Telephone & Telegraph Company, in a personal injury action stemming from an accident in which the telephone booth owned by the defendant, and occupied by the plaintiff, John Brinkley, located in a shopping center parking lot, was struck by an automobile. The automobile was owned by a third party, and the driver was allegedly drunk at the time of the accident.

We have examined the record on appeal, and have concluded that there are genuine issues of material fact in this case which are triable by jury, including foreseeability; the negligence of Southern Bell; and whether the actions of the driver of the automobile constituted an independent intervening cause. See Wills v. Sears, Roebuck & Company, 351 So.2d 29 (Fla.1977); Vining v. Avis Rent-A-Car Systems, Inc., 354 So.2d 54 (Fla.1977). Defendant not having been entitled to judgment as a matter of law, the summary final judgment is, therefore,

Reversed.


author: KEHOE, Judge.

text:
    David ENGEL, Appellant, v. The STATE of Florida, Appellee.
    No. 76-2276.
    District Court of Appeal of Florida, Third District.
    Dec. 6, 1977.
    Rehearing Denied Jan. 16, 1978.

      Bennett H. Brummer, Public Defender, and Kurt Marmar, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Anthony Musto, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, NATHAN and KEHOE, JJ.
   KEHOE, Judge.

Appellant, defendant bélow, brings this appeal contending that the trial court erred in entering a final judgment and imposing separate sentences for offenses which were facets of the same transaction. We note that the question of the propriety of the sentences imposed upon appellant was never raised in the trial court. It is a well settled principle of law that issues not raised at trial will not be reviewed on appeal. Mariani v. Schleman, 94 So.2d 829 (Fla.1957). This principle has been specifically applied to attempts to challenge on appeal, as appellant does here, the legality of a sentence. Jones v. State, 341 So.2d 846 (Fla. 3d DCA 1977); and Noble v. State, 338 So.2d 904 (Fla. 1st DCA 1976).

Based on these principles, the final judgment of conviction and sentences appealed are affirmed; however, this decision is without prejudice as to the question of the propriety of the sentences if the issue is otherwise properly' raised, e. g., by Fla.R. Crim.Pro. 3.850.

Affirmed.


text:
    GEMAIRE DISTRIBUTORS, INC., a Florida Corporation, Appellant, v. WESTLAND-EDEN, INC., a Florida Corporation, and Flagship First National Bank of Miami Beach, Appellees.
    No. 77-1338.
    District Court of Appeal of Florida, Third District.
    Dec. 6, 1977.
    Rehearing Denied Jan. 16, 1978.
    Taylor, Brion, Buker & Greene and Ar-naldo Velez, Miami, for appellant.
    Therrel, Baisden, Stanton, Stillman, Brown & Wood and Allen R. Roman, Miami Beach, for appellees.
    Before PEARSON and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See Schleifer v. All-Shores Const. & Supply Co., Inc., 260 So.2d 270 (Fla. 4th DCA 1972).


author: DAUKSCH, Judge. ANSTEAD, Judge,

text:
    In the Interest of M. E. G., a child.
    No. 76-2399.
    District Court of Appeal of Florida, Fourth District.
    Dec. 13, 1977.

      Richard L. Jorandby, Public Defender, and James L. Eisenberg, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Harry M. Hipler, Asst. Atty. Gen., West Palm Beach, for appellee.
   DAUKSCH, Judge.

It is improper at trial for comment to be made concerning a defendant’s invoking his right to remain silent after having been advised of his Miranda rights. Shannon v. State, 335 So.2d 5 (Fla.1976); Bennett v. State, 316 So.2d 41 (Fla.1975); Paulen v. State, 352 So.2d 1205 (Fla. 4th DCA 1977), opinion issued November 22, 1977; Williams v. State, 335 So.2d 854 (Fla. 4th DCA 1976); Martin v. State, 334 So.2d 841 (Fla. 4th DCA 1976).

It is reversible error incapable of being rendered harmless error by some later statements. Bennett v. State, supra. As Judge Alderman noted in his dissent in Paulen v. State, supra, our Supreme Court has been invited to review the flat declaration made in Bennett. Until some change, if any, we follow Bennett strictly.

However, all of the above cited cases have to do with fair trial, jury trial. Here we have a delinquency proceeding, a judge trial. The standards are, and should be, different. Adjmi v. State, 208 So.2d 859 (Fla. 3d DCA 1968), cert. denied 395 U.S. 958, 89 S.Ct. 2097, 23 L.Ed.2d 745 (1969). A judge is in a position to weigh testimony, assess credibility and resolve conflicts, just like a jury, when he sits as a trier of the facts. There are no jury trials in delinquency proceedings. He also decides what testimony is to be excluded as being viola-tive of some evidentiary rule. He sits in the unique position of admitting and excluding testimony and then weighing what he admits and disregarding what he excluded. In the recent case of Alford v. State, 355 So.2d 108 (Fla.1977), Opinion filed November 10, 1977, it was recognized that a trial judge may be made aware of facts bearing on sentencing issues but that he was capable of disregarding the known facts in reaching his decision. Therefore, extending Alford to this case, we feel the trial judge is able to disregard the improper testimony in making his decision, thereby rendering the “error” harmless.

The particular colloquy we read in this case goes like this:

“Q. [Prosecutor] Can you repeat what you said then, today?
A. [Police Officer] Yes, sir. You have a right to remain silent; anything you say can and will be used against you in a court of law. You have a right to have an attorney. If you cannot afford one, one will be appointed by the State. Understanding this, do you want to tell us anything?
Q. Okay. Is that what you asked? Do you want to tell us anything?
A. I asked him if he wanted — I don’t remember the exact wordings I used.
Q. Did Mr. Green say anything to you?
A. Not at that time.
Q. Did he say anything to you after-wards?
A. Yes, he said—
Q. When afterwards?
A. Approximately ten minutes later.”

If this was a jury trial there is no question the comment violated the Defendant’s right to a fair trial and the fact that the Defendant later made an inculpatory statement (or exculpatory, for that matter) does not render the error harmless because the jury has already heard the damaging testimony and can easily infer what they must not be permitted to infer. But we are of the opinion, and so hold, that in a non-jury trial such error can be rendered harmless and in this case it was rendered harmless by the immediate revelation the Defendant later made a statement to the police officer, a confession. We have considered In The Interest of I.S.H., a child, 344 So.2d 1295 (Fla. 4th DCA 1977), and do not recede from that opinion, nor confirm this case as being in accord with it, since the record which was relied upon in that case is not available to us here.

The Order appealed is AFFIRMED.

CROSS, J., concurs.

ANSTEAD, J., concurs specially, with opinion.

ANSTEAD, Judge,

specially concurring:

I concur in the conclusion that no prejudicial error occurred. However, in addition to the fact that this was a non-jury trial, I believe the questions and answers involved here constituted a proper predicate for the admission of a statement given by the minor within ten minutes of being arrested and advised of his Miranda rights.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


text:
    FLORIDA GLASS & MIRROR COMPANY OF ORLANDO, INC., Appellant, v. ECONOMY KING EQUIPMENT COMPANY et al., Appellees.
    No. 76-2586.
    District Court of Appeal of Florida, Fourth District.
    Dec. 13, 1977.
    Rehearing Denied Jan. 17, 1978.

      Robert B. Worman of Waterhouse & Worman, Orlando, for appellant.
    Robert G. Murrell of Sam E. Murrell & Sons, Orlando, for Appellee-Economy King Equipment Co.
   ALDERMAN, Chief Judge.

We have considered the issues raised by the appellant and cross-appellant in this mechanic’s lien foreclosure case and find no reversible error. We also grant appellee’s motion for attorney’s fees.

The award of attorney’s fees merits discussion. Section 713.29, Florida Statutes (1975), provides for recovery of attorney’s fees by the prevailing party in any action brought to enforce a mechanic’s lien. The Supreme Court in Sunbeam Enterprises, Inc. v. Upthegrove, 316 So.2d 34 (Fla.1975), held that Section 713.29 referred only to attorney’s fees at the trial level and did not provide for the allowance of such fees on appeal. Since that time the Legislature has enacted an amended version of Section 59.-46, Florida Statutes, which took effect on October 1, 1977. (Chapter 77-76, Laws of Florida.)

In the absence of an expressed contrary intent, any provision of statute or contract entered into after October 1, 1977, providing for the payment of attorney’s fees to the prevailing party, shall be construed to include the payment of attorney’s fees to the prevailing party on appeal. Section 59.46(1), Florida Statutes (1977)

We conclude that the phrase, “entered into after October 1, 1977,” refers only to contracts and has no bearing on the time of enactment of statutes. We therefore hold that Section 713.29 when construed in the light of Section 59.46 now permits recovery of reasonable attorney’s fees by the prevailing party on appeal.

Because the amended version of Section 59.46 took effect on October 1,1977, and this court’s determination of this appeal occurred after that date, the appellee, as the prevailing party, is entitled to the payment of reasonable attorney’s fees on appeal. The law in effect at the time of appellate disposition is to be applied. Guth v. Guth, 346 So.2d 81 (Fla. 4th DCA 1977).

Affirmed and remanded to the trial court for the determination and award of reasonable attorney’s fees to appellee as the prevailing party on appeal.

AFFIRMED and REMANDED.

DOWNEY and LETTS, JJ., concur.


author: LETTS, Judge.

text:
    Raymond D. PARKS, Orville R. Parks and Ray’s Inn, Inc., a Florida Corporation, Appellants, v. ST. LUCIE PLAZA, a Joint Venture of Melvin F. Sembler, Fred A. Beshara, Individually and as Trustee, Albert L. Dangler and Nicholas Manos, Appellees.
    No. 77-11.
    District Court of Appeal of Florida, Fourth District.
    Dec. 13, 1977.
    Richard D. Sneed, Jr., of Richard D. Sneed, Jr., P.A., Fort Pierce, for appellants.

      Vincent A. Lloyd, Fort Pierce, for appel-lees.
   LETTS, Judge.

In the case now before us we see no purpose in reciting facts to produce a lengthy opinion.

The trial court granted a summary judgment despite the patent existence of properly pleaded issues of fact. Moreover in an extraordinary hearing, held in an attempt to set the summary judgment aside, some two months after rendition, the trial judge frankly and honestly admitted that he had made a mistake and that the “Plaintiffs (appellants) are entitled to the relief sought.” We commend him for his forthrightness in so doing.

REVERSED AND REMANDED.

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


author: CROSS, Judge.

text:
    Noel T. WINTER and Gloria Mavrakis, Appellants, v. PLAYA del SOL, INC., Appellee.
    No. 76-1398.
    District Court of Appeal of Florida, Fourth District.
    Dec. 13, 1977.
    H. Mark Purdy of Parkhurst, La Hurd & Purdy, Fort Lauderdale, for appellants.
    Edward R. Rumin of Adams & Adams, Fort Lauderdale, for appellee.
   CROSS, Judge.

Appellant-plaintiffs, Noel T. Winter and Gloria Mavrakis, appeal a summary final judgment entered in favor of appellee-de-fendant, Playa del Sol, Inc., in an action for mandatory injunction. We reverse.

Appellant-plaintiffs, non-resident condominium owners in the Playa del Sol Condominium, demanded that the condominium officers and management allow appellants to inspect and make handwritten notations of certain condominium records for the purpose of obtaining names and addresses of other non-resident unit owners. Appellee allowed appellants to visually inspect the records, but prohibited any handwritten notations. Appellants then filed suit for mandatory injunction to enable them to make written notations from the condominium records. Both parties moved for summary judgment. After hearing, the trial judge entered summary judgment in favor of ap-pellees, stating that § 711.12, Florida Statutes, which required the condominium to keep certain records did not contemplate furnishing every resident of every condominium a mailing list of every other person in the condominium. This appeal then followed.

The sole question presented by this appeal is whether the trial court erred in construing § 718.111(7), Florida Statutes (Supp.1976), formerly § 711.12(7), F.S., from prohibiting condominium owners from copying information contained in records kept by the condominium association.

Section 718.111(7), F.S., provides in pertinent part:

“The association shall maintain accounting records for each condominium it manages in the county where the condominium is located, according to good accounting practices. The records shall be open to inspection by unit owners or their authorized representatives at reasonable times, and written summaries of them shall be supplied at least annually to unit owners or their authorized representatives. . . . The records shall include, but are not limited to:
“(a) A record of all receipts and expenditures.
“(b) An account for each unit, designating the name and the current mailing address of the unit owner . . .”

The right to inspect public records carries with it the right to make copies. This is on the theory that the right to inspect would in many cases be valueless without the right to make copies. Fuller v. State ex rel. O'Donnell, 154 Fla. 368, 17 So.2d 607 (1944).

Other jurisdictions have held in certain contexts that the right of inspection includes the right to make copies of the information contained in the records. The right of a member of a political party to inspect enrollment of the registered voters of the party includes the right to copy the list of names found therein. People ex rel. Spire v. General Committee of Republican Party of Erie County, 25 App.Div. 339, 49 N.Y.S. 723 (App.Div. 4th 1898). The right to inspect the master record of voters carriers along with it the right to make copies. It is no invasion of privacy to copy information contained in the records if such information is already known directly. Ortiz v. Jaramillo, 82 N.M. 445, 483 P.2d 500 (1971).

It is an established principle that where the language of a statute is clear and unambiguous and conveys a clear and definite meaning, courts should not resort to rules of statutory interpretation and construction. The statute must be given its plain and obvious meaning. Union Camp Corporation v. Seminole Forest Water Management District, 302 So.2d 419 (Fla. 1st DCA 1974). Construction of a statute which would lead to an absurd result should be avoided. McKibben v. Mallory, 293 So.2d 48 (Fla.1974).

In the instant case, it appears that the privilege of inspection of condominium association accounts afforded by statute to condominium unit owners should carry with it the right to make handwritten notations from the records. Permitting copying is the only result that is consistent with various judicial interpretations of statutory rights to inspection of records. It appears that the plain meaning of the statute is to allow the condominium owners access to the information in the records of the association, even to the extent of furnishing owners written summaries at least annually. To deny the owners, the appellants herein, the privilege of making handwritten notations from their direct observation of the information contained in the records would lead to an absurd result. Accordingly, the order of the trial court is reversed and the cause remanded for further proceedings consistent with the views herein expressed.

Reversed and remanded.

DAUKSCH and LETTS, JJ., concur.


text:
    Alfred J. ZARNOWSKI, Petitioner, v. STATE of Florida, DEPARTMENT OF COMMERCE, INDUSTRIAL RELATIONS COMMISSION and Canteen Food & Vending Service, Respondents.
    No. 77-775.
    District Court of Appeal of Florida, Fourth District.
    Dec. 13, 1977.
    Roger D. Haagenson of Haagenson & Peacock, Fort Lauderdale, for petitioner.
    No appearance for respondent.
   PER CURIAM.

We find that the petitioner, Alfred J. Zarnowski, did not receive sufficient notice of a hearing to determine his right to unemployment compensation benefits. The notice stated that only the testimony of the petitioner’s employer would be taken. Instead a final hearing was conducted, and the petitioner was not allowed a reasonable opportunity to present evidence in his own behalf. Accordingly, the petition for writ of certiorari is granted; and the decision of the Industrial Relations Commission is quashed with directions that a new hearing be scheduled before an appeals referee with proper notice thereof to the petitioner.

ANSTEAD, DAUKSCH, and LETTS, JJ., concur. .