text:
    THE FLORIDA BAR, Petitioner, v. COASTAL BONDED TITLE COMPANY et al., Respondents.
    No. 47999.
    Supreme Court of Florida.
    Nov. 26, 1975.
    H. L. Cooper, Jr., West Palm Beach, Richard C. McFarlain, and William B. Wiley, Tallahassee, for The Florida Bar, petitioner.
    Ronald G. Thornton of Fisher, Sauls, Adcock, DeLoach & Gowen, Seminole, for respondents.
   PER CURIAM.

This cause is before us on complaint of The Florida Bar against Coastal Bonded Title Company, Gerald Ferguson and Virginia Tupps alleging unauthorized practice of law and praying that respondents be required to show cause why they should not be enjoined by this Court for the unauthorized practice of law, that permanent injunction issue preventing and restraining respondents from engaging in the acts complained of and from otherwise engaging in the practice of law in Florida, and that this Court grant such other relief as deemed appropriate.

Rule Nisi was issued requesting respondents to show cause why they should not be charged in contempt of this Court for the unauthorized practice of law.

After filing of the complaint with this Court and issuance by us of a Rule Nisi, The Florida Bar and respondents entered into the following Stipulation and Joint Motion:

“The Petitioner, THE FLORIDA BAR, and the Respondents, COASTAL BONDED TITLE COMPANY, GERALD FERGUSON and VIRGINIA TUPPS, do hereby stipulate and jointly move as follows:
“1. That the allegations of the Petition Against Unauthorized Practice of Law filed by THE FLORIDA BAR are not contested.
“2. That the Respondents, GERALD FERGUSON and VIRGINIA TUPPS, in the capacity of either owner/manager/employee of the Respondent, COASTAL BONDED TITLE COMPANY, or otherwise, shall not prepare or cause to be prepared any of the following legal documents:
(1) Contract of purchase and sale for realty or any other document having the force and effect of a contract for the purchase and sale of realty,
(2) Bill(s) of sale for personalty,
(3) Subdivision restrictions, and/or
(4) Any other legal instruments which do not represent legal documents necessary to fulfill conditions contained in a title insurance commitment issued by Respondent, COASTAL BONDED TITLE COMPANY.
“3. That Respondents, GERALD FERGUSON and VIRGINIA TUPPS, in the capacity of either owner/manager/employee of Respondent, COASTAL BONDED TITLE COMPANY, or otherwise, shall not render legal advice to suggest to, proffer to, or otherwise counsel prospective or actual parties to a real estate transaction in reference to any legal matter. In particular, Respondents shall not suggest that a particular form contract of purchase and sale or other document intended to be contract of purchase and sale or having the force and effect of a contract of purchase and sale, is appropriate and/or legal for the particular transaction contemplated or involved.
“4. That Respondents, GERALD FERGUSON and VIRGINIA TUPPS, in the capacity of either owner/manager/employee of Respondent, COASTAL BONDED TITLE COMPANY, or otherwise, shall not furnish blank contracts of purchase and sale or other documents having the force and effect of a contract of purchase and sale t,o prospective or actual parties to a real estate transaction wherein it is suggested that one of the parties involved can prepare said contract under the supervision of the Respondents or that Respondents will assist them in the drafting of said contract or that Respondents will ensure that said contract is legal.
“5. That Respondents, GERALD FERGUSON and VIRGINIA TUPPS, in the capacity of either owner/manager/employee of Respondent, COASTAL BONDED TITLE COMPANY, or otherwise, shall not hold themselves out by words or conduct as having legal expertise in real property transactions or other legal matters and, furthermore, when questioned as to legal rights and/or duties by a party to any real estate transaction shall affirmatively represent that they do not represent their legal rights and that only a licensed attorney-at-law can perform that function on their behalf.
“6. That Respondents shall forthwith cease and desist from furnishing to clients or prospective clients such documents as Contract(s) for Sale of Real Estate, Bill(s) of Sale for personalty and/or any other document (s) having or appearing to have the force and effect of a contract of purchase and sale of real estate.
“7. That Respondents are now familiar with the decisions of the Supreme Court of Florida in Cooperman v. West Coast Title Company, et al., 75 So.2d 818 (Fla.1954); The Florida Bar v. McPhee, 195 So.2d 552 (Fla.1967); The Florida Bar v. Columbia Title of Florida, 197 So.2d 3 (Fla.1967); The Florida Bar v. American Legal and Business Forms, Inc., 274 So.2d 225 (Fla.1973), and they will fully and faithfully comply with those decisions.
“8. That Petitioner and Respondents jointly move the Court to withhold any adjudication of contempt in this cause and as an alternative to enter a permanent injunction against Respondents from engaging in the aforedescribed activities which constitute the unauthorized practice of law and from otherwise engaging in the practice of law in the State of Florida.”

The Stipulation and Joint Motion is ' hereby approved.

Accordingly, it is ordered and adjudged that in accordance with the stipulation, Rule Nisi is discharged, adjudication of contempt is withheld, and respondents are permanently enjoined from engaging in the aforedescribed activities which are stipulated to constitute the unauthorized practice of law and from otherwise engaging in the practice of law in the State of Florida.

It is so ordered.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and ENGLAND, JJ., concur.


source: Caselaw Access Project

author: ROBERTS, Justice.

license: Public Domain

text:
    Luke RADER, M.D. and the Employers Fire Insurance Company, Petitioners, v. VARIETY CHILDREN’S HOSPITAL and the Continental Insurance Company, Respondents.
    No. 45626.
    Supreme Court of Florida.
    Nov. 26, 1975.
    Mark Hicks, of Blackwell, Walker, Gray, Powers, Flick & Hoehl, Miami, for petitioners.
    Tully Scott and Robyn Greene, of Cor-lett, Meritt, Killian & Sikes, Miami, for respondents.
    Steven R. Berger, of Carey, Dwyer, Austin, Cole & Selwood, Miami, for the Dade County Defense Bar Ass’n, amicus curiae.
   ROBERTS, Justice.

This cause is before us on petition for writ of certiorari granted to review the decision of the District Court of Appeal, Third District, reported at 293 So.2d 778, Fla.App., which purported conflicts with Hoffman v. Jones, 280 So.2d 431 (Fla.1973). We have jurisdiction pursuant to Article V, Section 3(b)(3), Constitution of Florida.

Petitioner, Rader, a physician, and Respondent Hospital had been defendants in a malpractice suit brought against them by Josephina Osle. They were found to be jointly and severally liable for damages in the malpractice suit. Subsequently, the petitioners, physician and his insurance corn-pany, filed a complaint in the Circuit Court seeking contribution from the hospital and its insurance company. Respondents moved to dismiss the action on the ground that contribution between joint tortfeasors could not be ordered under the laws of this state. The motion was granted with leave to amend and, thereafter, the amended complaint was dismissed with prejudice. The District Court of Appeal affirmed finding no merit to petitioner’s argument that the reasoning of Hoffman v. Jones, supra, required abrogation of the rule of “no contribution” among joint tortfeasors.

Since the filing of the petition sub ju-dice, the Florida Legislature enacted Section 768.31, Florida Statutes, the Uniform Contribution Among Joint Tortfeasors Act which provides that it shall be applicable to all causes of action pending at the time of its passage wherein the rights of contribution among joint tortfeasors are involved and cases filed after the effective date of the law, and following which, this Court rendered an interpretive decision on the statute in Lincenberg v. Issen et al., 318 So.2d 386 (Fla.1975), rehearing denied October 8, 1975.

Accordingly, the decision of the District Court of Appeal under review is vacated and the cause is remanded for further consideration in light of Section 768.31, Florida Statutes, and Lincenberg v. Issen, supra.

It is so ordered.

ADKINS, C. J., BOYD, J., and RUDD and HARDING, Circuit Judges, concur.

      . Cf. Florida East Coast Ry. Co. v. Rouse, 194 So.2d 260 (Fla.1967); Carr v. Crosby Builders Supply Co., Inc., 283 So.2d 60 (Fla. App. 4, 1973), and Hoffman v. Jones, supra. In Hoffman, this court determined that its decision adopting comparative negligence would be applicable to: “1. As to those cases in which the comparative negligence rule has been applied, this opinion shall be applicable. 2. As to those cases already commenced, but in which trial has not yet begun, this opinion shall be applicable. 3. As to those cases in which trial has already begun or in which verdict or judgment has already been rendered, this opinion shall not be applicable, unless the applicability of the comparative negligence rule was appropriately and properly raised during some state of the litigation. 4. As to those eases on appeal in which the applicability of the comparative negligence rule has been properly and appropriately made a question of appellate review, this opinion shall be applicable. 5. This opinion shall be applicable to all cases commenced after the decision becomes final.”


author: OVERTON, Justice.

text:
    Francis KELLY, Appellant, v. STATE of Florida, Appellee.
    No. 45674.
    Supreme Court of Florida.
    Dec. 10, 1975.

      Steadman S. Stahl, Jr., of Varón, Stahl & Kay, Hollywood, and Archie Odom, Port Charlotte, for appellant.
    Robert L. Shevin, Atty. Gen., and Richard G. Pippinger, Asst. Atty. Gen., for ap-pellee.
   OVERTON, Justice.

This case is before this Court upon the constitutionality of the riot statute, Section 870.01(2), Florida Statutes (1973). The appellant, Francis Kelly, was charged in a two-count information as follows:

“COUNT I FRANCIS KELLY, did then and there riot, or incite a riot, or encourage a riot.
“COUNT II FRANCIS KELLY, did then and there, willfully, maliciously and intentionally injure or damage real or personal property, to-wit: An International backhoe, the property of RUPERT BROWN, said damage being in excess of $200.00.”

The appellant moved to dismiss Count 1 on the grounds that:

“. . . Chapter 870.01 of the Florida Statutes is unconstitutional in that it fails to set forth sufficient information and guidelines. . .

The trial court denied the motion to dismiss. We have jurisdiction.

The appellant was tried by a jury, which returned its verdict of guilty to both Counts 1 and 2 of the information. The appellant was sentenced to five years on each count, the sentences to run concurrently.

We hold Section 870.01(2), Florida Statutes (1973), is constitutional in accordance with our recent decision in State v. Beasley, 317 So.2d 750 (Fla.1975), and the restrictive construction contained therein. Under the guidelines set out in State v. Beasley, supra, the information in this cause is insufficient to properly charge the offense of riot. The conviction and sentence under Count 1 of the information are hereby vacated, without prejudice to the State to file an amended information.

The conviction and sentence under Count 2 of the information are valid, no error having been asserted.

This cause is remanded for proceedings not inconsistent herewith.

It is so ordered.

ADKINS, C. J., and ROBERTS, BOYD, ENGLAND, SUNDBERG and HATCHETT, JJ.

      . Section 822.18, Florida Statutes (1973).

      . Article V, Section 3(b)(1), Florida Constitution.


author: ENGLAND, Justice.

text:
    David KAPLAN and Todkan, Inc., d/b/a Beefster Restaurant, Petitioners, v. Eileen LENNECKER et al., Respondents.
    No. 45627.
    Supreme Court of Florida.
    Nov. 26, 1975.
    Fred C. Davant, Wicker, Smith, Pyszka, Blomqvist & Davant, Miami, for petitioners.
    David L. Willing, Adams, George, Wood, Schulte & Thompson, Miami, for respondents.
   ENGLAND, Justice.

By petition for a writ of certiorari to the Third District Court of Appeal, petitioner has asked that we review a decision of that court which is reported at 293 So. 2d 738. Certiorari was tentatively granted based on an apparent conflict between the decision below and both National Indemnity Co. v. Corbo, 248 So.2d 238 (3d DCA Fla.1971) and Allstate Insurance Co. v. Van Jordan, 266 So.2d 680 (3d DCA Fla.1972).

The Florida Constitution limits our review in cases such as this to those creating a “direct” conflict with prior appellate decisions. Nielsen v. Sarasota, 117 So.2d 731 (Fla.1960).

In both National and Allstate the district courts passed on a legal aspect of the “use” of an automobile for insurance coverage purposes. In National the court held that the injury which generated the litigation arose from the use of the owner’s automobile, thereby necessitating the insurance company’s defense of litigation against the owner-insured. In Allstate the court held that the vehicle’s use was not excluded under the terms of the policy, thereby also necessitating the insurance company’s defense of litigation against the owner-insured’s permitted user. This case does not involve the “use” of an automobile in any way.

A jury in this case found that a restaurant should be held responsible for damages arising out of its negligent maintenance of its premises. The district court affirmed that determination. Neither found that the restaurant was responsible, directly or vicariously, as a result of its, or its parking attendant’s, “use” of an automobile. There being no conflict in decisions, the writ is discharged.

ROBERTS, OVERTON and SUND-BERG, JJ., and LEE, Circuit Judge, concur.

ADKINS, C. J., and BOYD, J., dissent.


author: ENGLAND, Justice. ADKINS, Chief Justice

text:
    AMERICAN INTERNATIONAL LAND CORPORATION, a Florida Corporation, Petitioner, v. Robert J. HANNA, Respondent.
    No. 45246.
    Supreme Court of Florida.
    Oct. 15, 1975.
    Rehearing Denied Jan. 16, 1976.

      Howard W. Mazloff, of Weithorn & Mazloff, Coral Gables, for petitioner.
    Ronald S. Guralnick, of Guralnick & Gellman, Miami, for respondent.
   ENGLAND, Justice.

This cause is before us on a petition for writ of certiorari to review a decision of the Second District Court of Appeal reported at 289 So.2d 756. Jurisdiction for our review is established by the direct conflict between the district court’s decision and Associated Heavy Equip. Schools, Inc. v. Masiello, 219 So.2d 465 (3rd Dist.Ct. App.Fla.1969). We have concluded that the rule of law articulated in Masiello is correct, and that the district court’s decision is in error.

The factual and procedural background of this case is set forth in the opinion below. The sole issue for our review is whether punitive damages can be recovered for a breach of contract or for the conversion of real property. The facts alleged by Hanna to support such a recovery begin after Hanna had paid in full for two lots under an installment land sales contract with petitioner’s predecessor (for convenience, “petitioner”). At that time Hanna was entitled to a deed by the terms of his contract. Instead of providing a deed, petitioner offered to exchange Hanna’s lots for two others owned by petitioner in the same land subdivision. At the time of the offer Hanna was neither advised nor aware that petitioner had begun the construction of a golf course on his lots. Nonetheless, Hanna refused the exchange offer and demanded a deed to the original lots. When petitioner continued in its refusal to issue Hanna a deed, Hanna discovered the motive for petitioner’s exchange offer. Hanna then filed suit seeking specific performance and, if not granted, both compensatory and punitive damages.

During the course of the trial court action, Hanna abandoned his demand for specific performance and agreed to accept monetary relief. The trial court subsequently entered an order limiting recovery to compensatory damages. On appeal of that decision the district court disagreed and reversed, holding that Hanna’s complaint not only asserted a bad faith breach of contract but also the independent tort of intentional, willful conversion of the property. Based on the asserted bad faith breach of contract, the district court held that punitive damages would not be foreclosed where the complaint alleges an intentional conversion of property. We disagree.

Both parties agree that real property cannot be the subject of conversion, but Hanna asks that we disregard the district court’s language and look to its conclusion that punitive damages are recoverable. Neither approach warrants affirmance, however. Petitioner may have done something on or to Hanna’s real property, but the land was not in fact or in law “converted” because it was still available to Hanna through an action for specific performance. Hanna indicated a desire to pursue that remedy when he brought suit on that basis, but he subsequently abandoned that cause of action and agreed to accept compensatory damages for contract breach. His election foreclosed the “penalty” to petitioner of having to convey Hanna’s land with petitioner’s golf course on it.

Treating the district court’s finding of “conversion” as an assertion that the tort of fraud and deceit is spelled out in the complaint, we still find no basis for recovery either in law or in fact. The general rule is that a breach of contract cannot be converted into a tort merely by allegations of malice. Nothing in the facts of this case suggests a reason to depart from that rule.

In an action for fraud and deceit plaintiff must allege (1) that defendant made a representation on which plaintiff was meant to act, (2) that the representation was false and defendant knew that fact, and (3) that plaintiff relied on the representation to his injury. All three elements must appear with reasonable certainty in plaintiff’s complaint. The only specific acts of deceit which Hanna attributes to respondent are the construction of a golf course on his lots and the offer to exchange those lots for two others. The former was not an affirmative, false representation to Hanna although it affected his property without his knowledge. The latter was not a false representation and, because it was never accepted, obviously was not relied upon to Hanna’s detriment. Thus, although Hanna’s contract was perhaps flagrantly breached, the legal elements of tortious fraud and deceit are wholly absent from his complaint.

Accordingly, the decision of the district court is reversed, the trial court’s order rejecting a recovery of punitive damages is reinstated, and Hanna’s claim for punitive damages is dismissed.

BOYD, OVERTON and SUNDBERG, JJ., concur.

ADKINS, C. J., dissents with an opinion, with which CHAPPELL, Circuit Judge, concurs.

ADKINS, Chief Justice

(dissenting):

I would discharge the writ of certiorari for lack of conflict necessary to invoke this Court’s jurisdiction and let stand the decision of the District Court reversing the trial court and allowing the jury to consider punitive damages.

The majority finds conflict with Associated Heavy Equipment Schools, Inc. v. Masiello, 219 So.2d 465 (Fla.App.1969). There the District Court held that punitive damages cannot be assessed for simple breach of contract, and with that principle of law I cannot quarrel. Nor can I disagree with the majority that real property cannot be the subject of conversion. But citing this Court’s opinion in Griffith v. Shamrock Village, Inc., 94 So.2d 854 (Fla.1957), the District Court in Masiello said:

“The general rule is that punitive damages are not recoverable for breach of contract, irrespective of the motive of defendant. But where the acts constituting a breach of contract also amount to a cause of action in tort there may be a recovery of exemplary damages upon proper allegations and proof. In order to permit a recovery, however, the breach must be attended by some intentional wrong, insult, abuse or gross negligence which amounts to an independent tort.” 219 So.2d at 467.

Based upon that statement of law and the facts appearing in the opinion of the District Court and the opinion of the majority sub judice, I find no conflict or error with the decision of the District Court.

As stated by the District Court herein, the only question for our determination, simply stated, is whether respondent Hanna stated a cause of action in his complaint sufficient to support recovery of punitive damages. But the majority, in its eagerness to deny Hanna the opportunity to submit his claim for punitive damages to the jury, found that although his contract was perhaps flagrantly breached, Hanna failed to allege in his complaint the elements of tortious fraud and deceit, and hence failed to allege an independent tort for which punitive damages might lie. Reference to the offending complaint, however, shows Hanna alleged inter alia:

“5. That, in fact, Defendant [petitioner] has wilfully, maliciously, deceitfully, and fraudulently converted Plaintiff’s [respondent] land and is presently building a golf course on the same land which it had sold to Plaintiff in 1959, without having ever informed Plaintiff of this intention.
“7. That despite Plaintiff’s refusal, Defendant did thereafter deceitfully, wilfully, maliciously, and fraudulently convert Plaintiff’s land without his consent.
“8. That this deceit and fraud is again evidenced by the fact that Defendant wilfully, maliciously and fraudulently misrepresented to Plaintiff that he was purchasing ‘waterfront’ lots when in truth they were not.”

It appears to me from the foregoing that these allegations, which must be taken as true for the purpose of a motion for judgment on the pleadings, satisfy the requirements for pleading an independent tort, if not by constructing a golf course on Hanna’s property without his knowledge or consent and refusing to deliver the deed thereto, then most certainly by misrepresenting that Hanna’s property consisted of waterfront lots which, in fact, they were not.

For the reasons stated I must respectfully dissent.

CHAPPELL, Circuit Judge, concurs.

      . Fla.Const. art. V, § 3(b) (3).

      . Hanna v. American Int'l Land Corp., 289 So.2d 756, 758 (2d Dist.Ct.App.Fla.1974).

      . Quitman Naval Stores Co. v. Conway, 63 Fla. 253, 58 So. 840 (1912); 7 Fla.Jur. Conversion § 4 (1956).

      . There is no dispute that such a tort and recovery are available under the proper sets of facts and allegations. Griffith v. Shamrock Village, Inc., 94 So.2d 854 (Fla.1957).

      . Days v. Fla. East Coast Ry., 165 So.2d 434 (3d Dist.Ct.App.Fla.1964). Even a tort action will not support punitive damages where the assertions of willfulness and malice are not supported by specific allegations regarding the malicious conduct. Anderson v. Burwell Motors Co., 73 So.2d 822 (Fla.1954); General Finance Corp. v. Sexton, 155 So.2d 159 (1st Dist.Ct.App.Fla.1963).

      . Mizell v. Upchurch, 46 Fla. 443, 35 So. 9 (1903).

      . Fla.R.Civ.P. 1.120(b); Nantell v. Lim-Wick Constr. Co., 228 So.2d 634 (4th Dist.Ct.App. Fla. 1970).

      . As stated, the remedy for that misconduct ■would have been specific performance, where Hanna would obtain his land with petitioner’s improvements.

      . Although respondent’s letter offering the exchange did not state the real motive for the proposal — to permit or continue the construction of a golf course on Hanna’s lots — “the general rule is that punitive damages are not recoverable for breach of contract, irrespective of the motive of the defendant.” Griffith v. Shamrock Village, 94 So.2d 854, 858 (Fla.1957).

      .We approve and reiterate the rule enunciated in Associated Heavy Equipment Schools v. Masiello, supra, and in Griffith v. Shamrock Village, Inc., supra, to the effect that punitive damages are not recoverable for breach of contract.


author: PER CURIAM. PER CURIAM. ROBERTS, Justice

text:
    In re Involuntary Retirement of Circuit Judge Jack A. FALK.
    No. 46101.
    Supreme Court of Florida.
    Aug. 27, 1974.
    On Motion to Vacate July 31, 1975.
    Rehearing Denied Jan. 12, 1976.
    Paul A. Louis, Paul Siegel and John L. Zavertnik, of Sinclair, Louis & Siegel, Miami, for Jack A. Falk, deceased and Corrine Falk, his widow.

      Richard T. Earle, Jr., St. Petersburg, Chairman, Robert C. Scott and J. Lewis Hall, Tallahassee, for the Florida Judicial Qualifications Commission.
    David V. Kerns and L. Keith Pafford, Tallahassee, for Department of Administration, Division of Retirement.
   PER CURIAM.

The Judicial Qualifications Commission has conducted proceedings under Rule 6, Judicial Qualifications Commission Rules, to determine whether Judge Jack A. Falk, a Circuit Judge in the Eleventh Judicial Circuit of Florida, should be involuntarily-retired for disability seriously interfering with the performance of his duties, which was or is likely to become permanent in nature. Fla.Const., art. V, § 12, F.S.A.

After an appropriate hearing the Commission made the following findings of fact and conclusions of law:

“FINDINGS OF FACT
“1. Judge Jack A. Falk is suffering from a carcinoma of the prostrate gland and has been, for several months, unable to perform his duties as a Circuit Judge.
“2. Said disability is permanent in nature and will continue to make it impossible for Judge Falk to perform his duties as a Circuit Judge.
“CONCLUSIONS OF LAW
“That because of the foregoing, Judge Jack A. Falk should be involuntarily retired as a Circuit Judge of the Eleventh Judicial Circuit in and for Dade County, Florida.
“RECOMMENDATION FOR ORDER OF RETIREMENT
“The Florida Judicial Qualifications Commission, being well satisfied that Judge Jack A. Falk is suffering from a permanent physical disability, which said disability seriously interferes with and prevents the performance of his duties as a Circuit Judge, recommends to the Supreme Court of Florida that said Court enter an Order of Involuntary Retirement of Judge Jack A. Falk as a Circuit Judge of the Eleventh Judicial Circuit of Florida in and for Dade County, and declare that a vacancy exists in said Court.”

Nine members, constituting a clear majority of the Commission, have recommended that we enter an order of retirement.

We approve the findings of fact and the conclusions of law made by the Commission, and accordingly, Jack A. Falk is hereby retired from service as a Circuit Judge on the date of the filing of this opinion, his retirement being by reason of a physical disability of a permanent character and interfering with and preventing the performance of his duties. He is, therefore, entitled to compensation as provided by law in such cases.

After the date of the filing of this opinion, Circuit Judge Jack A. Falk, insofar as the relationship of the Court is concerned, is that of a retired judge, and by reason of his retirement there exists a vacancy in the Circuit Court of the Eleventh Judicial Circuit, in and for Dade County.

The Court having fully considered this matter and because of its emergency nature, there shall be no petition for rehearing, and this order shall be effective immediately.

It is so ordered.

ADKINS, C. J., and ROBERTS, McCAIN, DEKLE and OVERTON, JJ., concur.

ON MOTION TO VACATE

PER CURIAM.

Upon further consideration of this cause, the Court concludes that the Motion to Vacate the Judgment of this Court contained in the opinion upon Motion for Clarification filed September 10, 1974, should be granted and the original opinion filed August 27, 1974, reinstated. This disposition of this cause is made without consideration or determination of the merits of the controversy duly presented on oral argument.

Thereupon it is ordered that the opinion filed herein on September 10, 1974 be and the same is hereby vacated and the opinion originally filed in this cause on August 27, 1974 be and the same is hereby reinstated.

This opinion and order is without prejudice to the rights of the widow of Judge Falk to institute and prosecute appropriate proceedings for the determination of the compensation she is entitled to receive under the applicable retirement laws of the State of Florida.

It is so ordered.

ADKINS, C. J., and BOYD, ENGLAND and DREW (Retired), JJ., concur.

ROBERTS, J., dissents with an opinion.

ROBERTS, Justice

(dissenting) :

The effect of this Order is to bifurcate the questions of mandatory retirement and the amount of retirement benefits. Judge Falk died on November 5th, 1974, and there is no longer any question about his compulsory retirement because such is now moot. The only remaining question is the amount of the benefits which can be determined by the construction of several allegedly conflicting and overlapping statutes, and ten months have passed since his death without his widow knowing the amount of, or receiving retirement benefits. In my opinion, all parties are before the Court or could easily be brought before the Court, and I would take jurisdiction under Section 3(b)(4), Article V, Constitution of Florida, commonly referred to as the “All Writs Section,” as was done in Mize v. County of Seminole, 229 So.2d 841 (Fla. 1969), and Wilson, et al. v. Sandstrom, 317 So.2d 732 (Fla.1975). After providing all proper persons an opportunity to be heard, I would dispose of the total litigation.

I, therefore, respectfully dissent.


author: OVERTON, Justice. ADKINS, Chief Justice

text:
    William Andrew WHITE and Continental Insurance Company, Petitioners, v. Christine CLAYTON, Administratrix of the Estate of Cora Lee Baldwin, Deceased, Respondent.
    No. 45578.
    Supreme Court of Florida.
    Oct. 22, 1975.
    Rehearing Denied Jan. 16, 1976.

      C. Douglas Brown and Richard Smoak, Isler, Higby & Brown, Panama City, for petitioners.
    Jackson G. Beatty, Gregory, Towles, Beatty & Hood, Quincy, for respondent.
   OVERTON, Justice.

This cause is before this Court upon a petition for writ of certiorari to review an interlocutory order of the Walton County Circuit Court. In that order the trial court denied petitioners’ motion to strike an allegation in the complaint claiming losa of net accumulations beyond the decedent’s death and/or loss of prospective estate. In denying the motion, the trial court expressly held the new Florida Wrongful Death Act, Sections 768.16-768.27, Florida Statutes, was unconstitutional to the extent it precluded recovery of loss of net accumulations by the decedent’s two sisters, ruling specifically that the application of the wrongful death statute to the factual situation of this case was a violation of the Fifth and Fourteenth Amendments to the United States Constitution and would produce an invidious discrimination.

Under Article V, Section 3(b)(3), Florida Constitution, this Court has jurisdiction to review by certiorari an interlocutory order passing on a matter that would be directly appealable to this Court upon final judgment.

We have previously upheld the constitutionality of the new Florida wrongful death act in Martin v. United Security Services, Inc., and Mobley v. American Bankers Insurance Company of Florida, 314 So.2d 765 (Fla.1975).

The Martin and Mobley cases specifically held Sections 768.16-768.27, Florida Statutes (1973), were constitutional to the extent that they consolidated survival and wrongful death actions and substituted for a decedent’s pain and suffering the survivors’ pain and suffering as an element of damage. We further held that the title of the act provided sufficient constitutional notice to consolidate the survival and wrongful death actions into one action.

In the instant case we have a different constitutional contention. It is here asserted that the new wrongful death act is unconstitutional because Section 768.21 precludes two sisters of the decedent from recovering through the administratrix of the estate for “loss of net accumulations beyond death." The applicable portion of Section 768.21 reads as follows:

“(6) The decedent’s personal representative may recover for the decedent’s estate the following:
“(a) Loss of earnings of the deceased from the date of injury to the date of death, less lost support of survivors excluding contributions in kind, with interest. If the decedent’s survivors in- elude a surviving spouse or lineal descendants, loss of net accumulations beyond death and reduced to present value may also be recovered.” [Emphasis supplied]

Recovery under this section for net accumulations is limited to “a surviving spouse or lineal descendants.”

Respondent contends, and the lower court held (1) that limiting recovery for loss of net accumulations beyond death to the surviving spouse or lineal descendants was an unreasonable and arbitrary classification, and (2) that the legislature abolished a previously existing right without providing a reasonable alternative, in violation of Kluger v. White, 281 So.2d 1 (Fla. 1973). We disagree.

In considering the first issue, we must first examine the purpose of the wrongful death act. In its prior form its purpose was expressed by this Court in Garner v. Ward, 251 So.2d 252, 253 (Fla.1971), as follows:

“ . . .As the statutory language makes clear, the purpose of the act is to protect the family and dependents of an individual in event of wrongful death.”

The intent and purpose of the present wrongful death act was set forth by its drafters, the Florida Law Revision Commission, as follows:

. This objective is to allow a full recovery on behalf of those who were dependent on the deceased and who have sustained demonstrable losses of support and services by the wrongful death. . . . ”

It is clear that the purpose of the act is to provide recovery to those who need it, specifically the surviving spouse, children, or dependents of the decedent. We see nothing wrong with this classification. We hold that there has been no violation of the equal protection clause. Distinguishing rights of recovery for a surviving spouse and lineal descendants from those who are collateral descendants is not an unreasonable classification.

The second issue concerns the right of the legislature to modify the prior wrongful death cause of action. An action for wrongful death was not authorized at common law, and is a creation of the legislature. We recognize that there is a change in the elements of damage recoverable under the new act. In summary, individual pain and suffering for close relatives is added, while damages are eliminated for both the decedent’s pain and suffering and the loss of net accumulations for beneficiaries other than the surviving spouse and lineal descendants. These changes in the elements of damage do not violate our decision in Kluger v. White, supra. The right of recovery in a wrongful death action has not been abolished; only the elements of damage have been changed. The new act, in comparison with the prior law, will increase damages in some circumstances and decrease them in others. As stated by the Florida Law Revision Commission in its recommendations and report:

“ . . . [T]his proposal has the supreme virtue over the present law in that it assures that the recovery will go to those who really need it and not as windfalls to distant relatives. . . . ”

Changes in the elements of damage or the standards by which they are recovered under these circumstances is a legislative prerogative. For example, we recently upheld the constitutionality of the no-fault insurance act which included substantial statutory changes in the manner of recovery for damages for personal injuries. Lasky v. State Farm Insurance Company, 296 So.2d 9 (Fla.1974).

The order of the circuit court declaring Sections 768.16-768.27 unconstitutional is quashed, and this cause is remanded to the circuit court for proceedings not inconsistent with the views expressed herein.

It is so ordered.

ROBERTS and DREW (Retired), JJ., and ANDERSON and SIEGENDORF, Circuit Judges, concur.

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

ADKINS, Chief Justice

(dissenting):

I dissent and adopt the order of Circuit Judge Clyde B. Wells as my dissenting opinion:

“This is a wrongful death action filed by the Plaintiff which seeks to recover funeral expenses and ‘loss of accumulations’ resulting from the alleged wrongful death of Cora Lee Baldwin, age S3, who died intestate at DeFuniak Springs, Florida on August 25, 1973 as the result of being struck on that date by a car driven by the defendant White. Plaintiff’s Complaint alleges that Mrs. Baldwin was survived by her two sisters who were her next of kin and heirs at law.
“Defendants have filed a Motion to Strike the portion of Plaintiff’s Complaint that claims damages for loss of net accumulations contending that under the new Wrongful Death Act, F.S. 768.16-27 (Eff. July 1, 1972) that this item of damage is not recoverable by the adminis-tratrix for the benefit of the two sisters of the deceased. The only other damages sought by the Complaint are funeral expenses incurred.
“Florida has had a wrongful death statute since 1883. Prior to the effective date of the new act the Wrongful Death Act was found in Florida Statutes 768.01 thru 768.03. Under the old act and the court decisions thereunder ‘loss of prospective estate’ was an item of damage that was recoverable by the decedent’s personal representative for the benefit of the decedent’s next of kin heirs who had been deprived of their inheritance expectancy due to the decedent’s wrongful death. It was immaterial to the right of recovery whether the next of kin heirs were surviving spouses, minor children, grown children, or brothers and sisters of the decedent. The Florida Supreme Court in Florida East Coast Ry. Co. v. Hayes [67 Fla. 101], 64 So. 504 (Fla.1914) stated:
“ ‘But the administrator, as the legal representative of the decedent’s estate, can sustain no loss or damage, by reason of the wrongful death, except the pecuniary value of the life to the prospective estate of the decedent, which damage or loss does not include, and has no relation to, physical or other suffering of the decedent or his relatives, or to claims of any one for present or future support, or solatium. Such loss or damage to the estate is wholly monetary, and any compensation therefor, after the payment of debts, passes to the decedent’s general heirs as of the end of his life expectancy, to compensate for the estate that the decedent probably would have accumulated to leave at his death to such general heirs.’ (id. p. 505, emphasis added)
“Thus, under the former wrongful death act and the Florida Court decisions thereunder, in a factual situation such as presented in the instant case the decedent’s two sisters would have been entitled to recover their prospective inheritance loss (loss of prospective estate) as the decedent’s next of kin.
“Under the new Wrongful Death Act recovery for ‘loss of prospective estate’ is not allowed for nor is it specifically prohibited. However, a counterpart or somewhat similar item of damage entitled ‘loss of net accumulations’ is allowed under specified conditions under Section 768.21(6) (a) of the new act which provides :
“ ‘ . . . If the decedent’s survivors included a surviving spouse or lineal descendants, loss of net accumulations beyond death and reduced to present value may also be recovered.’ (emphasis added)
“When the definition of ‘survivors’ set forth in Section 768.18 is read in conjunction with the above-quoted portion of 768.21(6)(a), it appears that the new act purports to allow recovery for loss of ‘net accumulations’ beyond death only if the decedent is survived by a surviving spouse or minor children. The new act does not expressly prohibit recovery by other heirs who may be a decedent’s next of kin; it simply makes provision for recovery by only the two classes of favored heirs, i. e. spouse or minor children. This Court cannot find any significant rationale or constitutional basis for permitting two favored classes o\ heirs to recovery while denying recovery for all other next of kin heirs of a decedent.
“The item of damage that we are concerned with, ‘loss of net accumulations,’ by its very definition in the new act is considered to be a part of a decedent’s prospective estate. ‘Net accumulations’ is defined under Section 768.18(5) as that part of the decedent’s expected future income,
“ ‘ . . . that the decedent probably would have retained as savings and left as part of his estate if he had lived his normal life expectancy.’ (emphasis added)
“Thus, it is abundantly clear by statutory definition that this item of damage under the new act (as was its similar predecessor, ‘loss of prospective estate,’ under the old act) is a recovery or compensation purely and solely for a loss of prospective inheritance. All of a decedent’s general heirs have an equal and legitimate interest in the prospective estate of their relatives provided they are the decedent’s next of kin under the order of intestate succession provided for in F.S. 731.23. The injury to one’s prospective right to inherit from a next of kin is identical in every respect whether the next of kin is a spouse, minor children or brothers and sisters.
“The new act in allowing recovery for loss of prospective inheritance (net accumulations) only to certain favored heirs is arbitrary and capricious in precluding other heirs of a decedent from recovery of their prospective inheritance rights which they legitimately have as the decedent’s next of kin by virtue of F.S. 731.23. Insofar as the new Wrongful Death Act precludes the two sisters of Cora Lee Baldwin from recovering their ‘loss of net accumulations’ arising out of the alleged wrongful death of their sister the statute denies them equal protections of the laws and due process of law in the present case. There is no constitutional significance in favoring spouses’ and minor children’s inheritance rights while disallowing the same inheritance rights for other heirs such as brothers and sisters. The court holds that the new Florida Wrongful Death Act (F.S. 768.16-768.27) to the extent that it precludes recovery of loss of net accumulations by any of a decedent’s heirs who are the next of kin, is unconstitutional and in violation of the 14th Amendment to the United States Constitution and the 5th Amendment to the United States Constitution (providing for equal protection of laws and for due process of law). The leading U.S. Supreme Court decisions in this regard are Levy v. Louisiana, 391 U.S. 68, 89 S.Ct. 1509 [20 L.Ed.2d 436] (1968); and Glona v. American Guaranty [Guarantee] and Liability Insurance Company, 391 U.S. 73, 88 S.Ct. 1515 [20 L.Ed.2d 441] (1968). Both these cases forbid interpretation of State Wrongful Death Statutes in such a way as to produce ‘invidious discrimination.’
“Defendants’ Motion to Strike the portion of Plaintiff’s Complaint claiming ‘loss of net accumulations’ is therefore denied upon the foregoing reasons and authorities.
“Defendants’ Motion to Strike is also denied under the authority and rationale of Kluger v. White (Fla.1973) 281 So.2d 1. In Kluger the Florida Supreme Court aligned Florida with other jurisdictions which forbid and prohibit the legislature from simply abolishing a statutory or common law right previously existing unless the legislature affords a reasonable alternative to protect the rights of the person whose right is being abolished or unless the legislature shows an overpowering public necessity for the abolishment of such a right. Prior to the effective date of the new act the decedent’s next of kin heirs, in this case her two sisters, had the right under the old act and the court decisions thereunder to recover their prospective loss of inheritance, (loss of prospective estate) in the event of their sister’s wrongful death. The net effect of the new act was to eliminate Cora Baldwin’s sisters’ right to recover their loss of prospective inheritance. This deprivation is not permissible under the rational of Kluger v. White nor is it consistent with the mandate of the Florida Constitution, Article I, Section 21, F.S.A.. which provides:
“ ‘The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.’ ”

      . Florida Law Revision Commission, Recommendations and Report on Florida Wrongful Death Statutes, at 7-8 (December 1969) ; See comment about the need and purposes of the act in McKibben v. Mallory, 293 So.2d 48 (Fla.1974).

      . Florida Law Revision Commission, Recommendations and Report on Florida Wrongful Death Statutes, at 8 (December 1969).


author: PER CURIAM.

text:
    THE FLORIDA BAR, Complainant, v. George W. PROVOST, Respondent.
    No. 46896.
    Supreme Court of Florida.
    Nov. 19, 1975.
    Burl F. George, Bar Counsel, Fort Laud-erdale, for complainant.
   PER CURIAM.

This is a disciplinary proceeding brought by The Florida Bar against the respondent, George W. Provost. The respondent did not file a petition for review. The Referee found the respondent had breached his ethical duties by failing to properly represent and protect the interests of his clients.

The Referee found (1) that the respondent had negligently and incompetently failed to protect a client’s secured claim in a bankruptcy matter after receiving a retainer therefor, and further falsely advised his client concerning his nonaction; (2) that the respondent failed to complete the representation of a client in a child support matter for which he had received a fee by failing to prepare and submit an order of support pursuant to the directions of the trial judge, and further that he failed to withdraw from employment after he knew he was required to do so; (3) that the respondent negligently failed to complete the administration of two estates and failed to comply with court orders pertaining thereto.

The Referee found that such conduct was in violation of the following disciplinary rules of the Code of Professional Responsibility: DR 1-102(A)(4) and (A)(5); DR 2-110(A)(2), (A)(3) and (B)(2); DR 6-101 (A)(1), (A)(2), and (A)(3); and DR 7-101 (A)(1), (A) (2), and (A)(3).

The prior disciplinary history of the respondent reflects that he received a private reprimand on March 20, 1964, and was suspended from the practice of law for one year on March 23, 1973. The Florida Bar v. Provost, 275 So.2d 225 (Fla.1973).

The Referee recommended that the respondent be suspended from the practice of law for a period of three years- with proof of rehabilitation being required, and that he pay the costs of these proceedings.

We have reviewed the record in the proceeding before us. We approve the findings and recommendation of the Referee, and it is ordered that the respondent be suspended from the practice of law for a period of three years and thereafter until he establishes proof of his rehabilitation.

Execution is directed to issue for the costs of these proceedings against the respondent in the amount of $499.58.

It is so ordered.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and ENGLAND, JJ., concur.


text:
    THE FLORIDA BAR, Petitioner, v. Frank CLARK, III, Respondent.
    No. 47261.
    Supreme Court of Florida.
    Nov. 19, 1975.
    John A. Weiss and David G. McGunegle, Tallahassee, for petitioner.
    Frank Clark, III, Cocoa Beach, in pro. per.
   PER CURIAM.

The Florida Bar, pursuant to Rule 11.-07(3) of Article XI of the Integration Rule of The Florida Bar, petitions this Court to suspend Frank Clark, III, from the practice of law in Florida, alleging that Respondent was convicted on April 3, 1975, in the United States District Court, Southern District of New York, and sentenced to six months, which prison sentence was suspended, and fined $7,500.00.

It appears from the record before us that Respondent has been convicted of unlawfully, willfully and knowingly transporting in interstate commerce a diamond weighing approximately 8.04 carats and set in a platinum ring, knowing that this diamond ring had been stolen, converted and taken by fraud in violation of Title 18, United States Code, Section 2314 and Section 2. This offense is a felony.

Respondent replies to the Petition for Suspension, pointing out that he has filed an appeal in his federal case and requesting this Court to stay the suspension proceedings until the United States Second Circuit Court of Appeals hands down its decision. To support his position, Respondent submits that oral argument in his appeal is scheduled for the week of August 11, 1975; that he will suffer financial hardship by suspension; that his family will suffer in that his wife is in delicate health; and that the welfare of the public and of the legal profession would not best be served by his suspension at this particular stage of his New York case.

Petitioner replies that Respondent’s arguments do not constitute the good cause required by the Integration Rule to stay his suspension.

Integration Rule 11.07(1) reads as follows :

“(1) Determination or judgment of guilt. Determination or judgment of guilt of a member of The Florida Bar by a court of competent jurisdiction upon trial or plea of any crime or offense that is a felony under the laws of this state, or under the laws under which any other court making such determination or entering such judgment exercises its jurisdiction, shall be conclusive proof of the guilt of the offense charged for the purposes of these rules. Upon such determination or entry of such judgment of guilt by any court of this state, the judge or the clerk thereof shall transmit a certified copy of such determination or judgment to the Clerk of this Court and to the Executive Director of The Florida Bar.” Without assuming any position as to what the Second Circuit Court should or may do with Respondent’s appeal, we grant the Petition for his suspension based on the above Rule. This suspension shall terminate should the criminal conviction be reversed by the appellate court. As suggested by The Florida Bar, this suspension order herein shall become effective 45 days from the effective date of this order, with the condition that Respondent shall not accept any new litigation; in this manner Respondent’s clients will be protected by the orderly conclusion of their pending matters.

It is so ordered.

ADKINS, C. J., and BOYD, OVER-TON and ENGLAND, JJ., concur.

ROBERTS, J., concurs in judgment.

      . The Florida Bar v. Craig, 238 So.2d 78 (Fla.1970).

      . Rule 11.07(2) (c), Integration Rule.


text:
    Sammy Lee COLEMAN, Petitioner, v. Louie L. WAINWRIGHT, Director, Division of Corrections, etc., Respondent.
    No. 46779.
    Supreme Court of Florida.
    Dec. 10, 1975.
    Sammy Lee Coleman, in pro per.
    Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for respondent.
   OVERTON, Justice.

Petitioning prisoner, by habeas corpus, seeks recalculation of his release date. The respondent has filed a return. The subject matter of his cause is properly in mandamus, and we will treat this petition as seeking the appropriate mandamus relief.

This petitioner was the subject of numerous criminal proceedings. Their chronology is as follows:

(1) In May, 1960, the petitioner was sentenced by the Broward County Court of Record to two concurrent three-year prison terms on two charges of breaking and entering.

(2) The petitioner was released on parole on September 14, 1961, and his parole was revoked in December, 1961.

(3) In December, 1961, the petitioner was sentenced by the Circuit Court for Manatee County to twenty years for armed robbery, to run consecutively to the three-year Broward County sentence set forth in paragraph one. This Manatee County sentence was vacated in February, 1964; although a new trial was ordered, it was never held.

(4) Petitioner escaped on May 31, 1962, and was recaptured on June 3, 1962.

(5) In February, 1963, the petitioner was sentenced by the Leon County Court of Record for two counts of robbery, said sentences being six months to twenty years concurrent with each other but consecutive to the Manatee County robbery sentence. In December, 1963, the two Leon County sentences were vacated and a new trial ordered; one charge was nolle prossed and the petitioner was resentenced in January, 1964, on the other robbery offense to twenty years imprisonment, the sentence to run concurrently with the previous twenty-year sentence from Manatee County.

(6) Petitioner escaped on October 25, 1963, and was recaptured on November 5, 1963.

(7) In November, 1963, petitioner was sentenced by the DeSoto County Circuit Court to three years imprisonment for escape and three years for auto theft, said sentences to be concurrent with each other and consecutive to the six-months to twenty-year sentence from Leon County.

(8) Petitioner was paroled on September 21, 1971, which parole was revoked effective as of July 18, 1973.

The prison time that petitioner served under the void conviction for robbery was credited toward the remainder of his two Broward County breaking and entering sentences. The DeSoto County sentences were served prior to the recommencement of the valid Leon County robbery sentence. The only current sentence applicable to the petitioner is the twenty years imposed on January 27, 1964, for the Leon County robbery.

Petitioner claims that he has failed to receive credit for (a) the time served under the voided Leon County sentence; (b) the time served under the voided Manatee County sentence; and that (c) he is entitled to receive credit for the 21 months spent on parole. The record reflects that he was properly credited with all jail time including the time spent on the voided Manatee County sentence which was credited toward the Broward County sentence. The calculation of the valid Leon County robbery sentence has been properly computed considering all the time spent in custody and the other valid sentences which the petitioner was required to serve. The principles of Brumit v. Wainwright, 290 So.2d 39 (Fla.1974), and Segal v. Wainwright, 304 So.2d 446 (Fla.1974), have not been violated in a manner prejudicial to the petitioner.

The contention by the petitioner that time spent on parole should be credited against his sentence is without merit. See Schell v. Wainwright, 322 So.2d 897 (Fla.1975). Section 947.21, Florida Statutes (1973), governs the situation in this cause. The statute then applicable reads as follows:

“Violations of parole
“A violation of the terms of parole may render the parolee liable to arrest and a return to prison to serve out the term for which he was sentenced. No part of the time he may have been on parole shall in such event, in any manner diminish the time of such sentence.” [Emphasis supplied]

This statute was amended in 1974, granting the Parole Commission discretion to give a parole violator credit for time spent on parole. Parole is a privilege, not a right, and there is no constitutional requirement that credit for time spent on parole be applied to an individual’s sentence.

It appearing that the release date for the petitioner has been properly computed, the petitioner’s application for writ of habeas corpus, being treated by this Court as a request for mandamus, is hereby denied.

It is so ordered.

ADKINS, C. J., and ENGLAND, SUNDBERG and HATCHETT, JJ., concur.

      . We have jurisdiction. Art. V, § 3(b) (5), Fla.Const.

      . Section 947.21, Florida Statutes, as amended in 1974 by Chapter 74-112, provides as follows :

        “Violations of pa/role.—
      “(1) A violation of the terms of parole may render the parolee liable to arrest and a return to prison to serve out the term for which he was sentenced.
      “(2) An offender whose parole is revoked may, at the discretion of the commission, be credited with any portion of the time he has satisfactorily served on parole.”

      . McGinnis v. Royster, 410 U.S. 263, 93 S.Ct. 1055, 35 L.Ed.2d 282 (1973);

        Deese v. Cochran, 139 So.2d 429 (Fla.1962).


text:
    Jeanette England COLLINS, Appellant, v. Robert Stanton COLLINS, Appellee.
    No. 74-1456.
    District Court of Appeal of Florida, Third District.
    Nov. 4, 1975.
    Rehearing Denied Jan. 12, 1976.
    Frates, Floyd, Pearson, Stewart, Proenza & Richman, Miami, for appellant.
    Koeppel, Stark, Marks & Newmark, Miami, for appellee.
    Before BARDKULL, C. J., and HEN-DRY and HAVERFIELD, JJ.
   PER CURIAM.

Petitioner-appellant seeks review of the alimony and child support awards entered pursuant to a dissolution of marriage judgment.

After three stormy years of marriage, Jeanette Collins petitioned for dissolution of marriage. A final judgment severing the marital ties to her husband Robert Collins was entered, and Jeanette was awarded as lump sum alimony “that certain 1971 Cadillac Eldorado convertible, free and clear of any and all encumbrances,” $60 per week as support for the minor child born of the marriage, and was directed to vacate the marital residence within 14 days of the date of the judgment.

Appellant first contends the chancellor abused his discretion in awarding only the Cadillac as alimony. We find this point well taken.

Even though Florida has adopted the no-fault divorce concept, the guidelines in determining the amount of alimony are the needs of the wife, the financial ability of the husband, and the standard of living established by the parties during the marriage. Royal v. Royal, Fla.App.1972, 263 So.2d 277 and cases cited therein. Further, the very heart of an alimony award is and always has been the need of the demanding spouse for support and the ability of the other spouse to respond. Thigpen v. Thigpen, Fla.App.1973, 277 So.2d 583.

There is no question as to the ability of Robert Collins, a successful businessman, to make alimony payments, the lavish standard of living established by the parties during their marriage, and the needs and expressed desire of the appellant to rehabilitate herself by returning to college. Accordingly, we have determined that Jeanette Collins should be awarded $500 per month as rehabilitative alimony for a period of two years commencing with the issuance of the mandate of this court.

As to appellant s remaining points on appeal, we conclude that no abuse of discretion and no reversible error has been made to appear.

The judgment is affirmed in part, reversed in part and remanded for entry of an amended judgment as prescribed herein-above.


text:
    Corrine MILLENS, Appellant, v. RANDLE-EASTERN AMBULANCE SERVICE, INC., et al., Appellees.
    No. 75-51.
    District Court of Appeal of Florida, Third District.
    Nov. 18, 1975.
    Rehearing Denied Jan. 12, 1976.
    Preddy, Haddad, Kutner & Hardy and Timothy Anagnost, Miami, for appellant.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and Mark Hicks, Miami, for ap-pellees.
    Before PEARSON, HENDRY and NATHAN, JJ.
   PER CURIAM.

Affirmed on authority of Weaver v. Stone, Fla.App.1968, 212 So.2d 80.


text:
    CHESTER, BLACKBURN & RODER, INC., a Florida Corporation, Appellant, v. GLOBAL JALOUSIE GLASS MFRS., a Florida Corporation, Appellee.
    No. 75-243.
    District Court of Appeal of Florida, Third District.
    Nov. 18, 1975.
    Rehearing Denied Jan. 12, 1976.
    Edward R. Downing, Miami, for appellant.
    Koppen & Watkins, Miami, for appellee.
    Before BARKDULL, C. J., and PEARSON and HAVERFIELD, JJ.
   PER CURIAM.

Affirmed. See Winter Park Arms, Inc. v. Akerman, Fla.App.1967, 199 So.2d 107.


text:
    ZUCKERMAN-VERNON CORP., a Florida Corporation, Appellant, v. Murray ZELIKOFF and Clarwood Builders, Inc., et al., Appellees.
    No. 75-110.
    District Court of Appeal of Florida, Third District.
    Nov. 18, 1975.
    Rehearing Denied Jan. 12, 1976.
    Snyder, Young, Stern, Barrett & Tan-nenbaum and Barry Scott Richard, North Miami Beach, for appellant.
    Truett & Watkins, Miami, Hugh S. Glickstein, Koenig & Katz, Hollywood, Heller & Kaplan and Robert Golden, Miami, for appellees.
    Before BARKDULL, C. J., and HAV-ERFIELD and NATHAN, JJ.
   PER CURIAM.

Zuckerman-Vernon Corporation, defendant in the trial court, appeals from an order granting summary judgment as to liability to Murray Zelikoff, plaintiff. Third-party defendants, Clarwood, Inc., Drusin, and May Co. also challenge the summary judgment as to liability entered against Zuckerman-Vernon.

Zelikoff filed a complaint against Zuck-erman-Vernon for damages. It was alleged that he purchased four apartment buildings in Broward County from the defendant corporation, which warranted that the plumbing conformed to all relevant codes. In fact, the plumbing did not conform to the codes. Wastes evacuated and eliminated into the residents’ toilets were later backed up through those toilets and out into the apartments, causing “severe damage” to their interiors. Later, the defendant added a third-party complaint against three parties alleged to be builders and contractors who had supplied the defendant with the defective plumbing. The third-party defendants moved to transfer the cause to Broward County. The trial judge ordered the third-party action transferred to Broward County, but the case-in-chief retained in Dade County. The defendant appealed, and this court reversed the transfer order, holding that either the whole, matter should be transferred or none of it but that the complaint and third-party complaint should be kept together. Zuckerman-Vernon Corporation v. Zelikoff, Fla. App.1974, 303 So.2d 391. During the pen-dency of the proceedings reported in the cited case, between the time this court released its opinion on November 5, 1974 and the date it denied a rehearing and the mandate issued, the trial judge entertained a motion for summary judgment and rendered a summary judgment in favor of the plaintiff against the defendant in the casein-chief.

This appeal ensued, contending that the court erred in proceeding to determine the summary judgment when the question of whether or not the third-party complaint was properly before the Circuit Court of the Eleventh Judicial Circuit was the subject of appellate review. Strauser v. Strauser, Fla.App.1974, 303 So.2d 663; De La Portilla v. De La Portilla, Fla.1974, 304 So.2d 116.

We believe it was inappropriate for the trial judge to go forward with the matter when he was on notice that his order, severing the third-party complaint was in the process of being reversed, particularly in light of the rule of civil procedure which would permit a third-party defendant to address defenses to the original complaint. See: Rule 1.180(a), F.R.C.P.

Therefore, the summary judgment in favor of the plaintiff on liability be and the same is hereby reversed and set aside, and the matter is returned to the trial court without prejudice to any of the parties renewing motions for summary judgment when all parties are before the court.

This opinion is not to be construed as passing upon the merits of the plaintiff’s motion for summary judgment.

Reversed and remanded, with directions.

      . Rule 1.180. Third Party Practice
      “(a) * * * rpjie ihird party defendant may assert against the plaintiff any defenses which the third party plaintiff has to the plaintiff’s claim. The third party defendant may also assert any claim against the plaintiff arising out of the transaction or occurrence that is the subject matter of the plaintiff’s claim against the third party plaintiff. The plaintiff may assert any claim against the third party defendant arising out of the transaction or occurrence that is the subject matter of the plaintiff’s claim against the third party plaintiff and the third party defendant thereupon shall assert his defenses as provided in Rules 1.110 and 1.140 and his counterclaims and erossclaims as provided in Rule 1.170. * * * ” [emphasis added]


text:
    Frederick S. ROTHMAN, Appellant, v. GOLD MASTER CORPORATION, Appellee.
    No. 75-267.
    District Court of Appeal of Florida, Third District.
    Oct. 28, 1975.
    Rehearing Denied Jan. 12, 1976.
    Caidin, Rothenberg, Kogan, Kornblum & Benjamin, Miami, for appellant.
    Leslie A. Todd, Miami, for appellee.
    Before PEARSON, HENDRY and NATHAN, JJ.
   PER CURIAM.

This is the second appearance of this case before this court. Our prior decision of Fla.App., 287 So.2d 735 held that the complaint stated a cause of action. This appeal is from a summary final judgment in which the court held that the facts properly before it showed that there was no genuine issue of material fact and that the defendant was entitled to a judgment as a matter of law. The trial judge’s decision is amply supported by the law as stated in Connolly v. Sebeco, Inc., Fla.1956, 89 So.2d 482.

Affirmed.


author: PER CURIAM.-

text:
    Robert Earl SAUTTER, Jr., Appellant, v. VICTORY AUTO RENTAL CORP., a Florida Corporation and John P. Shale, Individually, Appellees.
    No. 75-284.
    District Court of Appeal of Florida, Third District.
    Oct. 21, 1975.
    Rehearing Denied Jan. 14, 1976.
    Rudolph Browd and Edwin B. Arnold, Jr., Miami, for appellant.
    Guralnick & Gellman, Miami, for appel-lees.
    Before BARKDULL, C. J., and HEN-DRY and HAVERFIELD, JJ.
   PER CURIAM.-

Affirmed. See Roberts’ Fish Farm v. Spencer, Fla.1963, 153 So.2d 718 and Ocala Loan Company v. Smith, Fla.App.1963, 155 So.2d 711.


author: HENDRY, Judge.

text:
    Carl Lee WIGFALL, Appellant, v. The STATE of Florida, Appellee.
    No. 75-231.
    District Court of Appeal of Florida, Third District.
    Oct. 21, 1975.
    Rehearing Denied Jan. 14, 1976.

      Phillip A. Hubbart, Public Defender, and Mark King Leban, Asst. Public Defender, and John C. Coleman, Legal Intern, for appellant.
    Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., for appel-lee.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   HENDRY, Judge.

Appellant, defendant in the trial court, brings this appeal from an order of the trial court withholding adjudication of his guilt after a plea of nolo contendere.

Pursuant to a complaint affidavit, an information was filed charging appellant with three criminal violations: (1) carrying a concealed weapon, (2) unlawful possession of cannabis in an amount of not more than five grams, and (3) possession of a controlled substance implement. On September 20, 1974, appellant was arraigned and pleaded not guilty.

Subsequently, appellant filed a motion to suppress evidence on the grounds that his rights against unlawful search and seizure had been violated, and that the provisions of § 30.384 of the Code of Metropolitan Dade County, relating to the impoundment of motor vehicles and inventory searches, had not been followed. On January 17, 1975, a hearing was held on this motion. During the course of the hearing, appellant’s motion to suppress was denied and appellant entered a plea of nolo conten-dere, reserving the right to appeal, which was accepted by the trial court. At the conclusion of this hearing, the court issued its order withholding adjudication of guilt from which appellant brings this appeal.

Appellant contends that the trial court erred in denying his motion to suppress evidence because the initial encounter, between the arresting officer and himself, which led to his arrest and search violated the requirements of § 901.151, Fla.Stat., F. S.A., and constituted an unlawful invasion of his constitutional rights. Also, appellant contends, assuming arguendo, that the initial encounter was lawful, that the subsequent search and discovery of the contraband was an unreasonable and unconstitutional invasion of his rights.

At the hearing on appellant’s motion to suppress, the record reveals that only the arresting officer, Anthony Leizze, from the Dade County Public Safety Department, testified. His testimony was that the initial encounter with appellant occurred on August 29, 1975, at 1:00 A.M. when he approached appellant, who was sitting in an automobile parked in a parking lot next to a bar, for a routine check. Officer Leizze explained that he had approached appellant because there was a high rate of narcotics used in the area and a number of stolen vehicles had been dropped off in the parking lot. Officer Leizze then asked appellant for his identification and car registration. Upon receipt of his identification, officer Leizze gave it to another officer for a records check. The records check revealed that a bench warrant had been issued for appellant. After Officer Leizze learned of the bench warrant, he asked appellant to get out of the car. As appellant complied, the officers asked him to turn around and put his hands on top of the car. Officer Leizze then searched appellant and advised him he was under arrest on the bench warrant. During the course of searching appellant, Officer Leizze, while kneeling down searching appellant’s legs, observed a glass and a gun under the front seat of .the automobile. The glass contained cannabis.

The basic question for our determination is whether or not the trial court erred in denying appellant’s motion to suppress.

The trial court’s ruling on the motion to suppress comes to this court with a presumption of correctness and, in testing the accuracy of the trial court’s conclusions, we should interpret the evidence and all reasonable inferences and deductions capable of being drawn therefrom in a light most favorable to sustain these conclusions. Rodriquez v. State, Fla.App.1966, 189 So.2d 656, and Savage v. State, Fla. App.1963, 156 So.2d 566.

With this standard in mind, we hold that the arrest of the appellant was valid under the outstanding bench warrant. See Murphy v. State, Fla.App.1971, 252 So.2d 261, and §§ 901.15(4) and 901.16, Fla.Stat., F.S.A. Further, the search of appellant was reasonable and the seizure of the gun and the glass containing cannabis, which fell in the plain view of the arresting officer who had a right to be in the position to have that view, was also reasonable and the evidence obtained thereby was properly admitted into evidence. State v. Flores, Fla.App.1974, 305 So.2d 292, and § 901.21, Fla.Stat., F.S.A. It is also our view that the reasonableness of the search and seizure after arrest was not affected by the fact that the original stopping of appellant may have been without probable cause. There is no testimony that appellant did anything other than to voluntarily cooperate with officer Leizze and voluntarily provide the requested identification. State v. Foust, Fla.App.1972, 262 So.2d 686, and see State v. Ecker, Fla.1975, 311 So.2d 104, and City of Miami v. Aronovitz, Fla. 1959, 114 So.2d 784. Officer Leizze’s initial encounter of appellant was not an unlawful invasion of his constitutional rights.

Also, we find appellant’s argument that the search was an unlawful inventory simultaneous with an improper impoundment to be without merit. Officer Leizze’s uncontradicted testimony is at the time of the arrest he had no intention to inventory the vehicle. This court has consistently, as in the case here, upheld the validity of an inventory of an automobile in connection with the impoundment' of the vehicle subsequent to the arrest of the driver. For example, Waterhouse v. State, Fla.App.1972, 256 So.2d 397, and State v. Ruggles, Fla. App.1971, 245 So.2d 692.

Assuming arguendo that the ordinances of Dade County were not properly followed by Officer Leizze in impounding the vehicle, such impoundment occurred subsequent to appellant’s lawful arrest and search. Therefore, the validity of the im-poundment should have no effect on the trial court’s denial of appellant’s motion to suppress.

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

Affirmed.


text:
    METROPOLITAN DADE COUNTY, a political subdivision of the State of Florida, and American Home Assurance Company, Petitioners, v. Annie L. HICKS, a/k/a Annie L. Peterson, Individually, and Annie L. Hicks, Administratrix of the Estate of Artie C. Hicks, Jr., a Deceased minor, Respondents.
    No. 75-656.
    District Court of Appeal of Florida, Third District.
    Sept. 30, 1975.
    Rehearing Denied Jan. 13, 1976.

      Fowler, White, Burnett, Hurley, Banick & Knight, Miami, for petitioners.
    Cohen & Kokus, Miami, for respondents.
    Before PEARSON, HENDRY, and HAVERFIELD, JJ.
   PER CURIAM.

By petition for common law writ of cer-tiorari, appellants, defendants in the trial court, seek review of the trial court’s order denying their motion to sever improper party.

Plaintiff, Annie Hicks in her individual capacity as mother of Artie C. Hicks, deceased, filed an action against Metropolitan Dade County under the Wrongful Death of a Minor Act [§ 768.03, Fla.Stat., F.S.A.]. With leave of court, plaintiff Hicks amended her complaint to add as an additional party defendant American Home Assurance Company, Dade County’s liability insurer. Prior to the scheduled trial date, plaintiff moved to amend her complaint to add as an additional party plaintiff herself as the administratrix of the estate of Artie C. Hicks, Jr., a deceased minor, and to seek damages in her capacity as administratrix pursuant to the Survival and Wrongful Death Statutes [§§ 46.021, 768.02, Fla.Stat., F.S.A.]. This motion to amend was granted and defendants responded with a motion to sever and/or drop the administratrix of the estate of Artie C. Hicks as an improper party plaintiff to the subject action. After hearing, the trial judge entered the following:

“THIS CAUSE having come on to be heard before me upon Defendants’ Motion to Sever and/or Drop and Motion to Dismiss, and the Court being fully advised in the premises and having considered same, it is
“ORDERED AND ADJUDGED:
“1. That Defendants Motion to Sever and/or Drop ANNIE L. HICKS as Ad-ministratrix of the Estate of Artie Hicks, Jr., is hereby denied.
“2. That Defendants’ Motion to Dismiss the claim of ANNIE L. HICKS as Administratrix of the Estate of Artie C. Hicks, Jr. on the grounds that the Statute of Limitations has expired is hereby denied.
“DONE AND ORDERED in Chambers at Miami, Dade County, Florida, this 2 day of April, 1975.”

The long established rule of law in Florida is that a cause of action accruing to a plaintiff individually cannot be joined with one accruing to the plaintiff in a representative capacity although they rise out of the same occurrence because the respective causes of action are not “in the same right.” Pensacola Electric Company v. Soderlind, 60 Fla. 164, 53 So. 722 (1910); Latimer v. Sears Roebuck and Company, 285 F.2d 152 (5th Cir. 1960).

Accordingly, the petition for writ of certiorari is granted; that portion of the trial judge’s April 2, 1975 order denying defendants’ motion to sever and/or drop Annie L. Hicks as administratrix of the estate of Artie Hicks, Jr. hereby is quashed and the cause remanded to the trial court with directions to sever the claim of Annie L. Hicks as administratrix of the estate of Artie Hicks, Jr.

It is so ordered.


author: NATHAN, Judge.

text:
    James BALDI, Appellant, v. Milagros O. BALDI, Appellee.
    No. 75-217.
    District Court of Appeal of Florida, Third District.
    Nov. 12, 1975.
    Rehearing Denied Jan. 13, 1976.
    William John Mason, Miami, for appellant.
    Alfred D. Bieley, Miami, for appellee.
    Before PEARSON and NATHAN, JJ„ and HALL, VINCENT T., Associate Judge.
   NATHAN, Judge.

James Baldi appeals from provisions of a final judgment dissolving his marriage to Milagros Baldi.

The parties have two minor children. In the final judgment, the trial judge granted to the wife child support payable monthly until each child reaches age 21, and gave the wife and the two children the right to occupy the marital home until each child reaches age 21. The judgment further provides that when the oldest child reaches 21, the support for the younger child shall increase to $350 per month until he reaches 21, and that the wife shall receive permanent alimony of $250 a month not to be reduced by any income that she might receive.

The husband contends that it was error to provide for child support beyond the age of 18 years, due to the emancipation act adopted by the legislature in 1973, and that it was error to award alimony which cannot be modified. In addition, he contends that although the amount of attorneys fees awarded to the wife’s attorneys is not objectionable, a portion of the payment thereof should be paid by the wife.

Turning to that portion of the judgment for child support, we hold that the trial court erred in providing child support beyond the age of 18 years, by way of money payments and right of occupancy of the home, because § 743.07(1), Fla.Stat., effective July 1, 1973, removed the disabilities of nonage for persons 18 years of age or older and provided that they shall enjoy and suffer the rights, privileges and obligations of all persons 21 years of age or older. Todd v. Todd, Fla.App.1975, 311 So.2d 769. We note, however, § 743.07(2), Fla.Stat., which provides that, “This act shall not prohibit any court of competent jurisdiction from requiring support for a dependent person beyond the age of 18 years. . . .” The term “dependent” is defined in White v. White, Fla.App.1974, 296 So.2d 619, 623, and in Finn v. Finn, Fla.1975, 312 So.2d 726. The record in this case does not reflect, nor did the trial judge find, that there is any reason for these two children to be dependent beyond the age of 18 years. Therefore, the question of support as dependent children beyond 18 years of age should be determined by the court, if requested, at the time of the attainment of majority of each child.

Relative to that portion of the final judgment granting permanent alimony not to be reduced by any income the wife would earn, we find no error. We interpret that language of the judgment to reflect the intent of the trial judge. There is nothing in this language which precludes the husband from moving for modification at a later date. Neither do we find error in the award of attorneys fees to be paid to the wife’s attorneys by the husband. Accordingly, child support provisions of the judgment shall now be modified consistent with this opinion, and the court, if it deems it advisable, may take further testimony for such purpose.

Affirmed in part and reversed in part with directions.


author: GRIMES, Judge.

text:
    NATIONWIDE MUTUAL INSURANCE COMPANY and Larry McCoy Milam, Appellants, v. Ralph FOUTS, Appellee.
    No. 74-1371.
    District Court of Appeal of Florida, Second District.
    Dec. 12, 1975.

      T. Rankin Terry, Jr. and Peter E. Bright of Roberts, Watson & McNeil, Fort Myers, for appellants.
    John B. Cechman of Goldberg, Rubinstein & Buckley, P. A., Fort Myers, for ap-pellee.
   GRIMES, Judge.

An automobile driven by Lawless was involved in a collision with an automobile driven by Milam. Fouts, who was a passenger in the Lawless automobile, sued Milam and his insurance carrier for injuries suffered in the accident. Milam and the carrier filed a third party complaint for contribution against Lawless. Relying upon the rule then in effect which barred contribution among joint tortfeasors, the court dismissed the third party complaint with prejudice.

Pending the appeal from this order, the legislature passed the Uniform Contribution among Tortfeasors Act and specified that it should apply to all causes of action pending at the time of its passage. Fla. Stat. § 768.31 (1975). Thereafter, the Supreme Court held that the doctrine of no contribution among joint tortfeasors no longer applied to Florida. Lincenberg v. Issen, Fla.1975, 318 So.2d 386.

Fla.Stat.- § 768.31 (1975) does not specifically provide for the enforcement of contribution by way of third party practice. The commissioners’ comment to the uniform act reflects that the drafters of the model act intended to leave this to the established procedure in the several states. Uniform Contribution among Tortfeasors Act (U.L.A.) § 3. The Florida rule on third party practice clearly contemplates the procedure of a defendant filing a third party complaint against a person not a party to the action “who is or may be liable to him for all or part of the claim” against him even though a judgment has not yet been entered. Rule 1.180 RCP; see Mims Crane Service, Inc. v. Insley Mfg. Corp., Fla.App.2d, 1969, 226 So.2d 836.

The order dismissing the third party complaint is reversed, and the case is remanded for further proceedings consistent herewith.

NcNULTY, C. J., and SCHEB, J., concur.


text:
    Robert L. MILLS, Appellant, v. STATE of Florida, Appellee.
    No. X-278.
    District Court of Appeal of Florida, First District.
    Dec. 2, 1975.

      Richard W. Ervm, III, Public Defender; and David J. Busch, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Donald K. Rudser, Asst. Atty. Gen., for appel-lee.
   PER CURIAM.

Appellant was charged in a three count information with (first count) possession of a controlled substance, to wit: cannibis in excess of five grams and (second count) possession of barbituric acid and (third count) possession of a controlled substance, to wit: heroin. He was tried by jury, found guilty of each count, adjudged guilty by the court and sentenced to five years imprisonment on each count to run consecutively. Motion for new trial was denied and this appeal is from the judgments, sentences and denial of the motion for new trial.

Appellant was found in possession of the above three controlled substances upon the execution of a search warrant. He contends, among other things, that the trial court erred in imposing consecutive sentences; that such was in violation of the single transaction rule as set forth in Cone v. State, Fla., 285 So.2d 12 (1973), and other opinions of the Supreme Court and appellate courts. Unfortunately for appellant, however, his argument is foreclosed by the recent opinion of the Supreme Court in Jenkins v. Wainwright, Fla., 322 So.2d 477, opinion filed July 2, 1975. See also Parker v. State, Fla.App. (1st), 237 So.2d 253 (1970).

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

Affirmed.

RAWLS, Acting C. J., and McCORD and SMITH, JJ., concur.


text:
    The STATE of Florida, Appellant, v. Wilbur JONES, Appellee.
    No. 75-573.
    District Court of Appeal of Florida, Third District.
    Dec. 9, 1975.

      Richard E. Gerstein, State Atty., and John Lipinski, Asst. State Atty., for appellant.
    Engel & Mishkin, Miami, for appellee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

The defendant, Wilbur Jones, was charged on September 23, 1974, by a 14-count information with the sale and possession of heroin. The information was dismissed on April 18, 1975, by the trial court for the failure of the State to disclose the name of the confidential informant to defense counsel. The State appeals. We reverse.

On October 17, 1974, defense counsel filed an unverified motion to compel the State to supply the name of the confidential informant. The motion gave no definite reason other than such information was necessary to insure a full and adequate defense. On January 9, 1975, the motion in question came on to be heard before the trial judge, at which time defense counsel said that the confidential informant was part of the overall transaction and, therefore, he wanted a disclosure of such informant. The court deferred ruling stating, in effect, that if there were testimony he would hear it. The motion to compel next came before the court on January 20, 1975, at which time the State argued that before an order requiring disclosure can be entered, it was up to the defense to establish the materiality of the disclosure of the confidential informant. Counsel for defendant responded that rather than have an eviden-tiary hearing, he would take the deposition of a police officer which would adduce evidence supporting the materiality and the need for the disclosure of the informant. Thereafter, hearing was held on February 19, 1975, at which time the court was mistakenly put under the impression that the court had, on four previous occasions, ordered the State to give the name and address of the informant to defendant’s counsel. The court then ordered the State to give to defendant’s counsel, in writing, the name of the confidential informant.

The State’s motion to rectify the court’s ruling was denied on February 26, 1975.

In the case of State v. Davis, Fla.App.1975, 308 So.2d 539, this court held, regarding the identity of a confidential informant, that the State has a privilege of non-disclosure and the burden is on the defendant claiming an exception to the privilege to show why disclosure should be required. Accord King v. State, Fla.App.1974, 296 So.2d 62; English v. State, Fla.App.1974, 301 So.2d 813.

Careful review of the record discloses no evidentiary showing in the motion or at the hearings before the trial court, that the testimony of the confidential informant would have been of such essential relevancy as to justify a required disclosure. Furthermore, the record does not reflect any orders, written or oral, prior to February 19, 1975, requiring the State to disclose the name of the informant.

Accordingly, the order of dismissal is vacated, the cause is reinstated and remanded for trial.

Reversed and remanded with directions.


author: BOYER, Chief Judge.

text:
    FLORIDA STATE UNIVERSITY, Petitioner, v. Samuel S. JENKINS, and the Division of Employment Security of the Department of Commerce, Respondents.
    No. Z-53.
    District Court of Appeal of Florida, First District.
    Dec. 23, 1975.
    Jean K. Parker, Tallahassee, for petitioner.
    Luther C. Smith, Kenneth H. Hart, Tallahassee, for respondents.
   BOYER, Chief Judge.

Petitioner, Florida State University (FSU) seeks review by petition for writ of certiorari of an order of the Industrial Relations Commission dismissing petitioner’s appeal on the basis that same was not timely filed.

A decision, adverse to contentions asserted by FSU, which was rendered by a referee of the unemployment compensation appeals section was mailed to FSU on December 20, 1974. A notice accompanying the decision stated, among other things, that: “This decision will become final unless within 10 days after the date it is mailed you file an application for review to the Industrial Relations Commission, Room 219, Ashley Building, Executive Center Drive, Tallahassee, Florida 32301.” Also recited was the fact that the decision had been mailed on December 20, 1974, and a statement that: “Last date for filing appeal to Industrial Relations Commission: December 30, 1974.” The personnel relations department, which is the department of FSU which receives notices of decisions of appeals referees concerning unemployment compensation, was closed at 5:00 p.m. on December 20, 1974, and remained closed until 8:00 a.m. on January 2, 1975. Although the decision and notice were promptly handled by the post office department they were not actually received by the personnel relations department until January 2, 1975. On January 6, 1975, FSU filed an appeal to the Industrial Relations Commission. That appeal was dismissed for lack of jurisdiction and petition for writ of certiorari to this court followed.

Petitioner candidly acknowledges that F.S. § 443.07(4) (b)3 requires that notices of appeal from a decision of an unemployment compensation appeals referee must be filed with the Industrial Relations Commission within 10 days after the date of mailing of notice of such decision. However, petitioner contends that it was not guilty of carelessness nor negligence and that since such notice was not received until after the 10 days had expired, the 10 day statutory time period should not be applicable, citing Miami Dolphins, Ltd. v. Florida Department of Commerce, Fla.App. 3rd 1971, 252 So.2d 396.

Without expressing any view as to the correctness of the above cited decision, we find that the holding there is not applicable here. In that case, the post office department failed to timely deliver the notice “due to the Christmas — New Year’s mail glut.” Under those circumstances, the Court of Appeals simply held that the employer (Miami Dolphins) should have been permitted to present a defense to the failure to act within the prescribed 10 day period. Such are not the facts sub judice. Here, notwithstanding the Christmas — -New Year’s glut, the post office department acted promptly and efficiently and the only reason FSU failed to receive the notice and decision was because it closed its doors and did not arrange for anyone of responsibility or authority to receive and examine its mail,

Decisions of appeals referees become final unless appealed within the time prescribed by the applicable statute. (See F. S. 443.07(4) (b) and F.S. 443.07(4) (c)). The powers and authority of administrative boards, commissions and officers are limited to those granted, either expressly or by necessary implication, by the statutes of their creation. (Florida Industrial Commission v. National Trucking Co., Fla.App. 1st 1958, 107 So.2d 397).

The petition for certiorari is denied.

SMITH, J., and SACK, MARTIN, Associate Judge, concur.


text:
    George MOLFETAS, Petitioner, v. The STATE of Florida, Respondent.
    No. 75-719.
    District Court of Appeal of Florida, Third District.
    Dec. 9, 1975.

      Silver S. Squarcia, Miami, for petitioner.
    Richard E. Gerstein, State Atty., and Charles I. Poole, Asst. State Atty., for respondent.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   PER CURIAM.

We are presented with a petition for certiorari to review a decision of the circuit court in the exercise of its appellate jurisdiction. The petition alleges, and the record supports, the allegation that petitioner was tried and found guilty of assault and battery in the County Court in and for Dade County, Florida. Further, it appears that petitioner had filed in the county court a demand for jury trial but that notwithstanding this demand he was tried before the court without a jury.

Upon appeal, the circuit court affirmed without opinion. We hold that the circuit court departed from the essential requirements of law in that petitioner could not lawfully be tried without a jury unless jury trial was waived in writing. See CrPR 3.251 and 3.260.

The State urges that the petitioner implicitly waived the right to a jury trial by “idly standing] by” and failing to demand at the beginning of the trial that which had already been demanded by him in writing. The right to a jury trial is a constitutional right. See Miller v. Rolfe, Fla.App.1957, 97 So.2d 132; and cf. Gaymon v. Quinn Menhaden Fisheries of Texas, Inc., Fla.App.1959, 108 So.2d 641. The waiver of such a constitutional right “. . . must be shown to have been knowingly, voluntarily and intentionally made.” Baker v. Wainwright, 422 F.2d 145 (5th Cir. 1970), and see U. S. v. Auerbach, 420 F.2d 921 (5th Cir. 1969).

Thereupon, the writ of certiorari is granted and the circuit court’s order affirming the judgment of the county court is quashed with directions to grant petitioner a new trial.

It is so ordered.


author: BOARDMAN, Acting Chief Judge.

text:
    OHIO CASUALTY INSURANCE COMPANY, Appellant, v. Robert REDDEN and Michael B. Rudderham, d/b/a Harbor Yacht Sales, Inc., Appellees.
    No. 74-1410.
    District Court of Appeal of Florida, Second District.
    Dec. 17, 1975.

      Michael C. Addison of Trenam, Simmons, Kemker, Scharf & Barkin, Tampa, for appellant.
    John T. Blakely of Johnson, Blakely & Pope, Clearwater, for appellee Robert Redden.
   BOARDMAN, Acting Chief Judge.

Appellant/defendant appeals an adverse summary final judgment entered in favor of appellee/plaintiff, Robert Redden. Redden instituted suit by filing a complaint in which he alleged that Michael B. Rud-derham, a boat broker, doing business as Harbor Yacht Sales, Inc. (who is not a party to this appeal) employed Redden. Redden had procured the sale of certain listed boats in 1973, earning a commission in the amount of $3,960, which sum was demanded of Rudderham, but refused. Appellant, Ohio Casualty Insurance Company, was joined as a defendant based on its issuance of a surety bond to Rudder-ham. Appellee alleged that under this bond appellant agreed to pay on behalf of Rudderham all sums which he should become legally obligated to pay as damages resulting from Rudderham’s operations as a licensed boat broker; and, further, that his claim comes within the purview of the surety bond issued in accordance with Chapter 537, Florida Statutes.

On September 12, 1974, after hearing, appellant’s motion to dismiss was denied. Appellee filed a motion for summary judgment against appellant that same day. Final default judgment had been entered against Rudderham for his failure to file his answer or any other paper. Subsequently, appellant filed its answer to the complaint admitting the issuance of the surety bond, but denying the allegation that coverage was provided thereunder for the plaintiff’s claim. Following a hearing, the court entered its order granting summary final judgment in favor of appellee. This timely appeal followed.

The sole issue for our consideration is whether a salesman’s claim for unpaid commission against his employer, a yacht and ship broker, is within the purview of the surety bond pursuant to Chapter 537, Florida Statutes.

Section 537.04(10), Florida Statutes, provides in pertinent part:

Any person claiming to be injured by the fraud, deceit or wilful negligence of any broker, . . . may bring an action upon the bonds deposited with the division against both the principals and the surety in any court of competent jurisdiction to recover the damage caused by such fraud, deceit, wilful negligence or failure to comply with the provisions of this chapter. In the event that any broker fails to pay any sum owed to any creditors arising out of any transaction in which such broker acted in his capacity as a broker, the division shall call and hold a hearing to determine the names of all such creditors to determine the amounts due and owing to them and to each of them . . . Each creditor claiming that a sum is owed to him shall file with the division at the hearing a verified statement of his claim. .

The Legislature, by enactment of said section, intended to allow parties dealing with a broker to recover damages for fraud, deceit, wilful negligence or failure to comply with provisions of this chapter. Appellee’s cause of action is for unpaid commission for services rendered his employer. It does not allege any of the four above-enumerated statutory grounds upon which an aggrieved party may bring an action upon the bond. Further, we cannot agree with the contention of appellee that the Legislature intended to include in the term, “[a]ny person,” a salesman claiming that he is due and owing unpaid compensation from a broker. We submit that a reading of the above-quoted section shows that the term, “[a]ny person,” as used in said statute, connotes a business relation between the customer/buyer and broker, and not an employee/employer relationship. We think this is a logical interpretation of the intent of the Legislature and consistent with the language contained in the statute.

Appellee, Redden, further contends that he stands in the position of a creditor and, therefore, should be allowed to recover from the surety. The record shows, however, that he failed to comply with the provisions of Section 537.04(10), Florida Statutes, by not notifying the Division of General Regulation of the Department of Business Regulation (Division) of his claim in order that a hearing could be held before the Division to determine the validity of his claim. This contention must fall for the reason that appellee did not follow the statutory procedure provided in such cases.

The filing of the bond under consideration was a prerequisite to obtaining a license by Rudderham to act as a yacht and ship broker. It was a form bond supplied by the Division. The coverage afforded under the subject bond is limited to its terms and conditions and does not, as contended by appellee, extend the liability of the surety beyond that contemplated by Chapter 537, Florida Statutes.

Finding that no ambiguity exists in the statutory language of Section 537.04(8), Florida Statutes, requiring the posting of a bond, or in Section 537.04(10), Florida Statutes, designating the persons who are authorized to sue on the bond, we reverse and remand for entry of judgment in favor of appellant.

Reversed and remanded.

GRIMES and SCHEB, JJ., concur.