text:
    Leonard COHEE and Glenn Cohee, on behalf of themselves and all other persons similarly situated, Appellants, v. CRESTRIDGE UTILITIES CORP., Appellee.
    No. 75-212.
    District Court of Appeal of Florida, Second District.
    Dec. 23, 1975.
    D. Russell Stahl, Tampa, for appellants.
    H. James Parker, Delzer, Edwards & Martin, Port Richey, for appellee.

      Raymond E. Vesterby, Tallahassee, for Florida Public Service Commission, amicus curiae.
   GRIMES, Judge.

This case involves the question of whether jurisdiction to pass upon the subject matter of the suit rests in the circuit court or in the Public Service Commission.

In 1965, Dixie Gardens, Incorporated, as the developer, entered into a contract with Crestridge Utilities Corporation whereby Crestridge was granted the exclusive right to provide water service to the property in Crestridge Gardens Subdivision for a period of thirty years. The two corporations were related at least to the extent that the same persons signed the contract as corporate officers of both parties. After specifying that Crestridge should lay and maintain water lines within the described property, the contract stated in part:

“ . . . The Contractor shall have the exclusive right to supply the water to all lots and it shall be entitled to receive a minimum of Five and No/100 ($5.00) Dollars per month for such service, which will entitle each lot owner the right to a reasonable use of water, it being understood that if any lot owner or an occupant shall consistently insist on using an excess amount of water and cause waste that the Contractor shall have the right to shut-off the water until definite agreement is obtained that the use of said water will be limited to reasonable use. This provision is in the interest of the public health and safety. Said monthly charge of Five and No/100 ($5.00) Dollars shall remain in effect on all lots which once is occupied by a home. If any lot owner or occupant wastes or uses water in excess the Contractor shall have the right to install a meter on said lot and charge on a metered basis with charges commensurate with other charges in the same general vicinity.”

The provision quoted above was restated as a part of the Crestridge Gardens restrictions which were recorded as covenants running with the land. In early 1970, Crestridge installed meters on all of the houses of homeowners in Crestridge Gardens Subdivision and began imposing charges for water service on a metered basis in excess of $5.00 per month.

The plaintiff s/appellants brought a class action seeking damages for breach of contract on behalf of themselves and all other homeowners in Crestridge Gardens Subdivision alleging that since none of the homeowners were wasting water, Crest-ridge was in violation of its contract by making monthly charges for water which averaged $12.00 per homeowner. As one of its defenses, Crestridge asserted that jurisdiction of this matter rested solely with the Public Service Commission, because on March 8, 1973, it had received a water certificate from that body after the Board of County Commissioners of Pasco County had adopted a resolution which made the provisions of the Water and Sewer Regulatory Law effective in Pasco County. The court entered a summary judgment for Crestridge on the basis that the Public Service Commission had exclusive jurisdiction of the issues raised in the pending litigation.

At the outset it should be noted that this is not the first dispute Crestridge has had with a property owner over rates for utility services. In Sloane v. Dixie Gardens, Inc., Fla.App.2d, 1973, 278 So.2d 309, this court considered the effect of the action of Crestridge in charging $2.25 per month for garbage collection when the contract between Crestridge and Dixie Gardens, Inc. provided for a fee of $1.75 per month. This court directed the trial judge to determine upon what authority Crestridge sought to make a charge in excess of the contract price. While the posture of that case was somewhat different, the following portion of this court’s opinion may bear on the instant case:

“The basic question is whether developers of property can provide for the furnishing of essential services and bind the owners of lots to pay for them. We think they can. We find no contravention of public policy in the agreement. Sloane’s argument that it constitutes a monopoly void as against public policy is without merit. Garbage collection is essential to a well-run community, and may be treated as an exclusive franchise just as the furnishing of telephone service and electric power are.
“We point out that the present litigation involves relationships' between private persons and a local utility corporation associated with the developer of the land. We are not called upon to determine the right of public authority to regulate or supersede the service . . . . ”

As a result of the Pasco County Commission resolution and the Public Service Commission order granting the water certificate, the operation of Crest-ridge’s water service is now clearly under the jurisdiction of the Public Service Commission. Fla.Stat. § 367.171 (1973). Thus, Crestridge argues that the issuance of the water certificate was tantamount to the approval of the water rates which were being charged when the certificate was issued. On the other hand, the plaintiffs contend that the courts rather than the Public Service Commission have jurisdiction since the plaintiffs’ claims are for breach of contract. In support of their position they point to Fla.Stat. § 367.011(4) (1973) which provides that Chapter 367 (the Water and Sewer Regulatory Law) “shall not impair or take away vested rights other than procedural rights or benefits.” •

The Supreme Court in Miami Bridge Co. v. Railroad Commission, 1944, 155 Fla. 366, 20 So.2d 356, stated:

“The State as an attribute of sovereignty is endowed with inherent power to regulate the rates to be charged by a public utility for its products or service. Contracts by public service corporations for their services or products, because of the interest of the public therein, are not to be classed with personal and private contracts, the impairment of which is forbidden by constitutional provisions. 16 C.J.S. Constitutional Law, pp. 766-773, § 327.”

Therefore, despite the fact that Crestridge had a pre-existing contract concerning its rates, now that Crestridge is under the jurisdiction of the Public Service Commission, these rates may be ordered changed by that body. The Public Service Commission has authority to raise as well as lower rates established by a pre-existing contract when deemed necessary in the public interest. State v. Burr, 1920, 79 Fla. 290, 84 So. 61.

As the criterion for setting the rates, Fla.Stat. § 367.081(2) (1973) provides:

“(2) The commission shall, after notice and hearing, either upon request or upon its own motion, fix rates which are just, reasonable, compensatory, and not unjustly discriminatory. In all such proceedings, the commission shall consider the value and quality of the service and the cost of providing the service, which shall include, but not be limited to, debt interest, the utility’s requirements for working capital, maintenance, depreciation, tax and operating expenses incurred in the operation of all property used and useful in the public service, and a fair return on the utility’s investment in property used and useful in the public service. The commission shall also consider the utility’s investment in property required by duly authorized governmental authority to be constructed in the public interest within a reasonable time in the future, not to exceed twenty-four months.”

Therefore, it would appear that the Commission would not even be authorized to take into consideration the pre-existing contract in its determination of reasonable rates. However, the question we must decide is whether the trial court had jurisdiction to determine whether Crestridge breached its contract when it raised the rates.

Because of this court’s concern that our opinion might affect the jurisdiction of the Florida Public Service Commission, an order was entered affording the Commission an opportunity to express its views through the filing of an amicus curiae brief. The Commission chose to file such a brief in which it stated that its issuance of the water certificate to Crestridge did not constitute the setting of rates. The Commission asserts that it merely approved what it believed to be the rates which were being charged and collected on the jurisdictional date. Fla.Stat. § 367.171 (1973) lends support to this view because it indicates that once a county commission has resolved to come within the provisions of the chapter, any utility then engaged in the operation of a water system can receive a certificate by filing an application together with a map of its existing system, a description of the area served and the appropriate fee. Thus, it appears that there has been no rate hearing as contemplated by Fla.Stat. § 367.081 (1973).

In its brief, the Commission also states that it does not have jurisdiction to determine the legality of an increase which took place prior to its jurisdictional date but concludes with this statement:

“If, however, a court of competent jurisdiction were to find that the rates being charged and collected on the jurisdictional date were unlawful because they were in violation of a presidential freeze, contract, deed restriction, municipal ordinance, or county regulatory law, we do not believe such rate can lawfully be grandfathered in.”

The plaintiffs are entitled to an adjudication of whether Crestridge breached its contract by going to the higher rates. This can only be accomplished in a court of law. Cf. State ex rel. McKenzie v. Willis, Fla.1975, 310 So.2d 1. Accordingly, the summary judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.

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

      . Since it was not raised below, this court expresses no opinion at this time on whether the case should have been transferred to the county court pursuant to RCP 1.060 on the premise that no claim of any single homeowner exceeded the minimum amount necessary for circuit court jurisdiction. See Curtis Publishing Company v. Bader, Fla.App.3d, 1972, 266 So.2d 78.

      . All statutory citations in this opinion shall refer to the latest edition of Florida Statutes since the relevant portions of the statutes in question have remained unchanged at all times pertinent to the decision,


source: Caselaw Access Project

author: PEARSON, Judge.

license: Public Domain

text:
    Eugene S. V. CHERRY and Katherine M. Cherry, his wife, Appellants, v. James R. PIRRELLO et al., Appellees.
    No. 75-81.
    District Court of Appeal of Florida, Third District.
    Dec. 16, 1975.

      Samuel Sheradsky, Miami, for appellants.
    Jeffrey M. Mart, Miami, for appellees.
    Before PEARSON, HENDRY and NATHAN, JJ.
   PEARSON, Judge.

The plaintiff, in his second amended complaint sought a declaration as to the ownership of a strip of land. He alleged that, as to the question of ownership, a dispute existed between himself and the defendant. A second count clairqed conversion of soil piled by plaintiff upon the disputed property. The complaint was dismissed upon the motion of the defendant. The basis for the trial judge’s decision that the complaint did not state a cause of action does not appear in the record. Appel-lee urges that the court determined that plaintiff’s claim of adverse possession was insufficient as a matter of law because defendant did not know that plaintiff was occupying his land. At the time of oral argument, it appeared that the trial court knew the factual basis of plaintiff’s claim because of hearings upon an application for injunction. However, it also appears that the complaint was not insufficient as a matter of law and that if the court’s decision was upon a factual basis, it should have been entered as a summary judgment. In addition, there is no basis for the dismissal of the count for conversion of soil although it may be that this claim does not reach the jurisdictional limit of the circuit court.

We hold, therefore, that the order dismissing the complaint was error. See Rosenhouse v. 1950 Spring Term Grand Jury, Fla.1952, 56 So.2d 445; Johnson v. Thoburn, Fla.App.1964, 160 So.2d 729; Tulip Realty Co. of Florida v. Fuhrer, Fla.App. 1963, 155 So.2d 637. See also Millers Mutual Fire Insurance Company of Texas v. American Fidelity Fire Insurance Company, Fla.App. 1965, 178 So.2d 742. The judgment is reversed and the cause remanded for further proceedings in accordance with the views herein expressed.

Reversed and remanded.


author: SMITH, Judge.

text:
    Roger Lewis DORSEY and Donald Wayne Bennett, Appellants, v. STATE of Florida, Appellee.
    No. Y-346.
    District Court of Appeal of Florida, First District.
    Dec. 23, 1975.
    Rehearing Denied Jan. 16, 1976.

      Richard W. Ervin, III, Public Defender, and Michael J. Minerva, Asst. Public Defender, for appellants.
    Robert L. Shevin, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., for appellee.
   SMITH, Judge.

From the circumstantial evidence in this case the jury could properly have found that appellants are guilty of breaking and entering with intent to commit pet-it larceny. The more troublesome question is whether, on an information charging that appellants with requisite intent broke and entered “a certain building located at 300 W. Tharpe Street, [Tallahassee] . , the property of Bill Peacock,” appellants may be convicted on proof thát the building was located on land leased by Bill Peacock Leasing & Rental, Inc. See Alvarez v. State, 157 Fla. 254, 25 So.2d 661 (1946). There was testimony, albeit ambiguous, that “the building belongs to Mr. Bill Peacock” and “the property, I understand, is leased.” See generally 17 Fla.Jur. Improvements § 3 (1958). At any rate, since for present purposes ownership is any possession which is rightful as against those alleged to be burglars, we conceive that the sole corporate stockholder and operator of a corporate business is, as against burglars, the owner of the building used only for corporate business. See Johnson v. State, 293 So.2d 71 (Fla.1974); Harper v. State, 169 So.2d 512 (Fla.App.2d 1964), 172 So.2d 454 (Fla.1965).

Affirmed.

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


author: OWEN, Judge.

text:
    Frances J. YOHEM, Appellant, v. Irvin L. YOHEM, Appellee.
    No. 75-322.
    District Court of Appeal of Florida, Fourth District.
    Dec. 19, 1975.

      Sidney M. Dubbin of Dubbin & Preefer, West Palm Beach, for appellant.
    Carl M. Collier, Palm Beach, for appel-lee.
   OWEN, Judge.

Upon appellant/wife’s petition, final judgment dissolving the parties’ twenty-five year marriage was entered. By way of this appeal, the wife questions the propriety of the trial court’s adjudication of certain property rights and alimony provisions in the final judgment, and certain provisions of a postjudgment order on petition for rehearing. The husband cross-appeals from that part of the final judgment awarding the wife attorney’s fees.

Of the five issues urged on appeal by the wife, we find merit in only those two which we shall discuss here: (1) the award of rehabilitative, rather than permanent, alimony in the amount of $50 per week for one year; and (2) the amount of interest awarded the husband upon monies from a joint savings account, withdrawn by the wife and placed in her sole name shortly before filing the instant action.

The facts of this case do not warrant an award of rehabilitative alimony. Appellant/wife is forty-seven years old and suffers from a chronic bladder condition. She is a high school graduate, but is possessed of no marketable skills nor employment experience. Although she did work for approximately three years prior to the marriage, thereafter she devoted herself primarily to being a housewife and to raising the parties’ five children, a task in which she is still engaged, having been awarded custody, as a result of the divorce, of the parties’ youngest child, a thirteen year old daughter.

The appellate courts of this state have been confronted with situations analogous to this one in cases now too numerous for citation. E.g., Patterson v. Patterson, 315 So.2d 104 (4th DCA Fla.1975); Hernan dez v. Hernandez, 312 So.2d 466 (4th DCA Fla.1975); Goldstein v. Goldstein, 310 So.2d 361 (3rd DCA Fla.1975); Lash v. Lash, 307 So.2d 241 (2nd DCA Fla.1975); Schwartz v. Schwartz, 297 So.2d 117 (3rd DCA Fla.1974); Reback v. Reback, 296 So.2d 541 (3rd DCA Fla.1974); Wilson v. Wilson, 279 So.2d 893 (4th DCA Fla.1973). As has been consistently iterated in those cases, rehabilitative alimony presupposes, and is therefore only proper in those cases in which there is, the potential or actual capacity for self-support. Reback v. Reback, supra; Lash v. Lash, supra. Absent such capacity, there is nothing to which the spouse can be rehabilitated. Schwartz v. Schwartz, supra. The record before us shows such capacity to be utterly lacking here. We therefore reverse the award of rehabilitative alimony and remand the cause to the trial court with instructions to enter an award for permanent alimony in such amount as the court shall determine to be appropriate based upon the current needs of the wife and the husband’s ability to pay. Wilson v. Wilson, supra. Such permanent alimony award shall remain subject, of course, to the right of either party, under the appropriate circumstances, to seek modification pursuant to Fla.Stat. § 61.14 (1973). Wilson v. Wilson, supra; Schwartz v. Schwartz, supra.

We further find that it was error to award the husband interest in the amount of $2,000 on his share of a jointly owned savings account which the wife had wrongfully withheld from him. While the decision to award interest was within the trial court’s discretion, see, Welsh v. Welsh, 160 Fla. 380, 35 So.2d 6 (1948), it is manifest that the computation thereof was in error. That part of the order of February 24, 1975 awarding, appellee $2,000 as interest is reversed, and upon remand the award shall be computed on the legal rate of interest for the period that the appellant withheld from appellee his share of the joint savings account.

Finding no merit in the wife’s remaining contentions, nor in those presented in the husband’s cross-appeal, we affirm the judgment in all other respects. The cause is remanded to the trial court for further proceedings consistent herewith.

Affirmed in part; reversed in part.

MAGER, J., and STRAWN, DAVID U., Associate Judge, concur.


author: PER CURIAM.

text:
    David F. RUPPEL, Appellant, v. Kenneth MILLER and John Lohde, as detectives in the St. Petersburg Department of Public Safety, et al., Appellees.
    No. 74-1323.
    District Court of Appeal of Florida, Second District.
    Dec. 12, 1975.
    Rehearing Denied Jan. 14, 1976.

      John Henninger of the Law Offices of Robert W. Pope, St. Petersburg, for appellant. *
    • Michael S. Davis, Asst. City Atty., St. Petersburg, for appellees.
   PER CURIAM.

In this combined false arrest and malicious prosecution action, plaintiff-appellant appeals from an adverse summary judgment. We reverse.

Appellant was arrested on May 18, 1973, for allegedly uttering a forged check to a certain bank in the appellee City of St. Pe-tersburg. Subsequent criminal proceedings were dropped upon notification that appellant was not the man being sought; that another man was guilty of the offense with which appellant was charged. This action ensued.

In due course, appellees filed a motion for summary judgment which, upon consideration of affidavits, depositions and evidence presented at the hearing thereon, was granted. A careful study of the record herein reveals that the sole question decided on the motion was whether the ap-pellee detectives of the City of St. Peters-burg had probable cause to arrest and commence prosecution of appellant for the alleged offense of uttering a forged check. Obviously, the trial court determined that appellees sufficiently established that there was no genuine issue of material fact with respect thereto.

We are of the view, however, that the aforesaid affidavits, depositions and evidence reflect a sufficient conflict concerning material relevant facts that a jury question is presented on the issue of probable cause. Summary judgment should have been denied.

In view whereof, the judgment appealed is hereby reversed and the cause is remanded for a full trial on all issues joined.

McNULTY, C. J., and HOBSON and SCHEB, JJ., concur.


text:
    Robert Lee HIGHTOWER, Appellant, v. STATE of Florida, Appellee.
    No. 75-474.
    District Court of Appeal of Florida, Fourth District.
    Dec. 19, 1975.
    Richard L. Jorandby, Public Defender, and James R. Bean, III, Asst. Public Defender, West Palm Beach, for appellant.-

      Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony J. Golden, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant, charged with breaking and entering a building with intent to commit a misdemeanor, was convicted of entering without breaking a building with intent to commit a misdemeanor. Relying upon Pettigrew v. State, 316 So.2d 69 (2nd DCA Fla.1975); O’Neal v. State, 308 So.2d 569 (2nd DCA Fla.1975), and Skov v. State, 292 So.2d 64 (2nd DCA Fla.1974), he contends that this is fundamental error. The cited cases have been expressly overruled. See Roberts v. State, 320 So.2d 832 (2nd DCA Fla.1975).

Affirmed.

OWEN, MAGER and DOWNEY, JJ., concur.


author: GRIMES, Judge.

text:
    Frank M. BYERS, Appellant, v. Jane R. BYERS, Appellee.
    No. 75-1067.
    District Court of Appeal of Florida, Second District.
    Dec. 19, 1975.

      Seymour A. Gordon, of Gay & Gordon, St. Petersburg, for appellant.
    George N. Meros, of Meros, Coit, Wells, Edman & Meros, St. Petersburg, for appel-lee.
    Eula Tuttle Mason, Redington Beach, Guardian Ad Litem for appellee.
   GRIMES, Judge.

This is an interlocutory appeal from an order of continuance which recites “that no final hearing in this cause (shall) be scheduled unless and until it is established to the satisfaction of the court that the respondent is able to attend and participate in a trial of this cause as well as being able to confer with her counsel in preparation for said final hearing.”

On July 26, 1974, the petitioner/husband filed a suit for dissolution on the ground that the marriage was irretrievably broken. The respondent/wife filed an answer in which she denied that the marriage was irretrievably broken. A nonjury trial was set for November 1, 1974. The wife moved for a continuance asserting that because of emotional problems she was unable to cooperate with her counsel at this time. The trial was continued until February 23, 1975. Apparently predicated upon a report from the wife’s psychiatrist, the trial was again postponed until June 13, 1975. At this point, the husband filed a motion for the appointment of a guardian ad litem. The wife then filed further motions for a continuance and for a stay, the gist of which being that she was now hospitalized in a psychiatric ward in St. Peters-burg and that due to her emotional state she could not confer with her attorneys or appear and testify at the final hearing.

Thereupon, an order was entered appointing Eula T. Mason, attorney at law, as guardian ad litem, “for the purpose of protecting the interest” of the wife. When the case came on for final hearing the court- entered the order of continuance from which this appeal is taken. In addition to postponing the case, the court ordered the parties to furnish monthly medical reports concerning the wife’s condition and her ability to proceed with the final hearing.

The husband’s position is that, rather than simply being a continuance, the order entered below amounts to an indefinite stay of the proceedings. He says that in view of the wife’s psychiatric problems dating back to 1966, there is no certainty that she will ever be in a position to go forward with the case. In addition to making certain arguments relating to the Dead Man’s Statute, which will be discussed below, the wife’s attorney contends that the husband has not shown any abuse of discretion in the granting of the continuance. The guardian ad litem, who is a personal friend of the wife, states that despite the wife’s objections, she is now convinced that the pendency of the divorce is preying on the wife’s mind to the extent that it would be in the wife’s best interest for the divorce to be granted, provided her financial interests were properly protected. Significantly, no one has suggested that the wife is mentally incompetent from a legal standpoint, and no declaration of legal incompetency has ever been sought or made. At oral argument; counsel advised the court that the wife was presently being treated on a voluntary basis at the state mental hospital in Arcadia.

This is a tragic case for which the law provides no suitable remedy. Whether a trial shall be postponed is normally a question addressed to the sound discretion of the trial court. Yet, the terminology reflects that this order constitutes more than a temporary postponement. For all intents and purposes, the case is indefinitely stayed until such time as the wife’s mental condition reaches the point where she can participate at the trial, and there is no indication in the record how soon this may be expected to occur. As sympathetic toward the wife as we may be, life has to go on. The husband is entitled to have his day in court. Under the circumstances of this case, we hold that the court should schedule a final hearing and proceed with the case in such a manner as may be prescribed by law.

As a further ground for the propriety of the continuance, the wife’s attorney suggested that in its present posture the case should not proceed because the requisite grounds for divorce could never be proven. Thus, it was argued that only the parties to the marriage could establish whether it was irretrievably broken; that even if the wife could be called as a witness, she would deny it and the husband couldn’t speak on the subject because he would be testifying to a transaction with an incompetent person in violation of the Dead Man’s Statute. Fla.Stat. § 90.05 (1973). As the wife’s attorney correctly states, there is nothing peculiar about a suit for dissolution, as such, which precludes the application of the Dead Man’s Statute. Lorenz v. Lorenz, 1946, 157 Fla. 402, 26 So.2d 54. We recognize that a discussion of this argument is not essential to the determination of the point before us. Yet both parties have chosen to address themselves to this issue in the brief, and the attorneys have implied that the order of continuance may have been influenced by similar arguments in the court below. Therefore, we will make some comments directed to this point in the hope of facilitating the disposition of the case upon remand.

As the case now stands, we fail to see how the Dead Man’s Statute could be applicable. In the first place, the wife has never been legally determined to be “an insane person or lunatic” contemplated by the statute. There has been no “as-signee or committee” to act in her stead. The appointment of the guardian ad litem did not act as an adjudication of mental incompetency. Peppard v. Peppard, Fla.App.3d, 1967, 198 So.2d 68. To suggest the applicability of the Dead Man’s Statute to a party whose mental condition may have been put in question but who has not been declared legally incompetent would render the statute more of an enigma than it already is.

Furthermore, even if the wife were declared mentally incompetent before the final hearing so as to become a protected party under the Dead Man’s Statute, this would not mean that it couldn’t be proven that the marriage was irretrievably broken. The central inquiry in a dissolution proceeding relates to the state of mind of the parties toward the marriage relationship. Riley v. Riley, Fla.App.1st, 1972, 271 So.2d 181. The opinion of one of the parties that the marriage was irretrievably broken would not constitute testimony with regard to a “transaction” between the witness and his incompetent spouse. Of course, the statute might well come into play with respect to testimony upon other issues involved in the dissolution proceeding.

The order of continuance is reversed, and the case is remanded for further proceedings consistent herewith.

HOBSON, A. C. J., and BOARDMAN, J., concur.


text:
    DEPARTMENT OF REVENUE of the State of Florida, Appellant, v. GAC PROPERTIES, INC., et al., Appellees.
    No. 74-1462.
    District Court of Appeal of Florida, Third District.
    Nov. 25, 1975.
    Rehearing Denied Jan. 14, 1976.
    Robert L. Shevin, Atty. Gen., and E. Wilson Crump, II, Asst. Atty. Gen., Tallahassee, for appellant.
    Smathers & Thompson, and Richard H. Hunt, Jr., Miami, for appellees.
    Before BARKDULL, C. J., and PEARSON and NATHAN, JJ.
   PER CURIAM.

The appellees, GAC Properties, Inc., and its affiliates and subsidiaries, comprise an affiliated group of corporations for intangible tax purposes within the definition of § 199.023(7), Fla.Stat. They are primarily engaged in the sale of land to individual purchasers on an installment contract which, in effect, is an agreement for deed.

In filing their intangible tax returns for the years 1972 and 1973, the appellees failed to report any of their agreements for deed nor did they pay intangible personal property tax thereon. The appellant, because of the appellees’ failure to pay intangible personal property taxes on said agreements for deed, issued a notice of assessment thereon, assessing taxes for the years 1972 and 1973 in the total amount of $367,561.37. The appellees filed objections to the assessment, which the appellant denied on the basis that pursuant to § 199.-023(1), Fla.Stat., Attorney General Opinions 072-279 and 062-148, and Section 12 B-2.10(2)(d), Florida Administrative Code, said agreements constituted intangible personal property for intangible personal property tax purposes.

Thereupon, the appellees brought the instant suit seeking to have the notice of assessment against the agreements for deed to be held unlawful and invalid in their entirety, to have Section 12 B-2.10(2)(d) of the Florida Administrative Code held to be invalid and void ab initio, and to enjoin the appellant from collecting the taxes. Issue was joined and, pursuant to the ap-pellees’ motion, the trial court entered the final summary judgment appealed herein holding the agreements for deed and the unpaid balance thereon did not constitute intangible personal property for tax purposes, and that Section 12 B-2.10(2)(d) of the Florida Administrative Code is inconsistent with and incompatible with § 199.-023(1), Fla.Stat., and is therefore not within the appellant’s rule-making powers rendering said section invalid and void ab initio.

The question before this court is whether an agreement for deed, wherein the purchaser does not enter into possession until full performance by him and is not personally liable for deficiency on default, constitutes intangible personal property in the hands of the seller, as defined by § 199.023(1), Fla.Stat., so as to render the seller liable for intangible personal property tax thereon.

The appellees contend the agreements have no value for the purpose of intangible personal property taxes because there is no personal obligation on the part of the purchaser to pay the amounts stated therein. This is not completely correct. While the agreements for deed do not permit recovery for deficiency in the event of default thereon, the agreements do impose certain legal and economic obligations on the part of the purchaser. The agreement clearly imposes upon the buyer the legal obligation to reimburse the appellees for property taxes paid on said property after the agreement has been in effect for more than three years. Said provision constitutes something of value enforceable by the appellees.

Furthermore, and probably of greater importance, is the economic obligation placed upon the buyer by this agreement. The buyer has an investment in the agreement which can be lost in its entirety under the terms of the agreement in the event of default. The potential loss of this investment constitutes an inducement upon the buyer to live up to the terms of the agreement which may, in fact, be greater than any legal liability which may be imposed for an alleged deficiency which may or may not, in fact, occur in the event of default. Therefore, the appellees cannot be permitted to escape intangible taxes on these agreements merely by the expediency of relinquishing a right which may never, in fact materialize.

As a result of the foregoing and on the authority of White v. Gapway Grove Corp., Fla.1951, 55 So.2d 573, we hereby hold that an agreement for deed of the type contained herein constitutes intangible personal property within the meaning of Ch. 199, Fla.Stat., and is taxable thereunder.

Therefore, we reverse the trial court and hold the agreements for deed in the case sub judice should be returned for purposes of intangible personal property taxes.

Inasmuch as we find the agreements herein constitute intangible personal property for tax purposes, we also reverse the holding of the trial court as it relates to the rule-making powers of the appellant in enacting Section 12 B-2.10(2) (d), Florida Administrative Code, and hold said rule to be valid and enforceable.

Notwithstanding the aforementioned error, the trial court, under the authority of State v. Dickinson, Fla.1975, 322 So.2d 525 (opinion filed July 9, 1975) , correctly enjoined the appellant from attempting to assess an annual tax on the intangible personal property herein pursuant to the provisions of § 199.032(1), Fla.Stat. State v. Dickinson, supra, clearly holds that agreements for deed such as are involved in this case are subject to a non-recurring tax pursuant to § 199.032(2), Fla. Stat., and that no tax was due until the agreements for deed were recorded or sought to be enforced. See § 199.042(2), Fla.Stat. Therefore, while the agreements for deed in the case sub judice constitute intangible personal property within the rheaning of § 199.023(1), Fla.Stat., under the facts herein and the holding of State v. Dickinson, supra, the appellees have incurred no liability for intangible personal property taxes thereon at the present time.

Based on the foregoing, the trial court is reversed as to its holdings on the questions of whether or not the agreements for deed constitute intangible personal property and the validity of Section 12 B-2.10(2) (d), Florida Administrative Code; but is affirmed as to that portion of the final judgment enjoining the appellant from taxing the agreements for deed pursuant to § 199.032(1), Fla.Stat.

Reversed in part, affirmed in part.

      . * * * * *
      “ ‘Intangible personal property’ means all personal property which is not in itself intrinsically valuable, but which derives its chief value from that which it represents * * * >>
      * * * * *

      . Section 12 B-2.10(2) (d), Florida Administrative Code.
      “Agreements for deed where the purchaser is not personally liable on default and does not enter into possession until full performance have a value to the seller whose interest therein falls within the general statutory definition of intangible personal property which is subject to taxation.”

      . It is to be pointed out that neither the trial court nor any of the parties herein had knowledge of State v. Dickinson, supra, which was decided subsequent to the trial court’s ruling in this case.


author: SCHEB, Judge.

text:
    STATE of Florida, Appellant, v. Anthony A. KNIGHT, Sr., Appellee.
    No. 75-509.
    District Court of Appeal of Florida, Second District.
    Dec. 17, 1975.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellant.

      Glen E. Greenfelder, McClain, Hobby & Greenfelder, Dade City, for appellee.
   SCHEB, Judge.

The question for resolve on this appeal is whether the trial court erred in suppressing all of the defendant/appellee’s admissions where some were made before and some after law enforcement authorities held out certain inducements to the defendant. We hold the court erred in suppressing all of the defendant’s admissions since some were made prior to any inducements and were thereby severable. We reverse.

The relevant facts are these:

On October 31, 1974, the defendant was taken into custody by Detective Grimes of the Pasco County Sheriff’s Office regarding suspected larceny of a tractor tire. While in custody and after being advised of his “Miranda” rights, the defendant was questioned by the detective. The defendant acknowledges the interrogation was conducted in two separate interviews. During the first of these the defendant admitted purchasing and selling the tire in question. Some two hours after this admission, he agreed to act as a narcotics purchaser for the Sheriff’s Department. The defendant did so act and claims to have understood that by lending such assistance to the law enforcement authorities there would be no further problem relative to his suspected involvement with the stolen tire. Thereafter, the defendant made further incriminating statements in which he admitted that at the time he received the tractor tire he had knowledge that a friend of his had stolen it.

Subsequently, the defendant was charged with receiving and concealing stolen property in violation of Fla.Stat. § 811.16. The trial court granted the defendant’s amended motion to suppress all statements, admissions and confessions made by him. The state appeals.

There is competent substantial evidence that some of the defendant’s statements were made after certain inducements to the defendant by the authorities. To this extent, the trial judge was correct in suppressing these statements as being involuntary since he found they were made after inducements to the effect that charges against the defendant would be dropped. See State v. Chorpenning, Fla.App.2d 1974, 294 So.2d 54. However, the defendant testified to a substantial interval of time occurring between his admission of having received and sold the tire and the later conversation wherein he made statements concerning his knowledge that the tire was stolen. The conduct which the trial judge determined to have rendered the defendant’s statements involuntary did not taint the original admission which could and should have been severed. And, since our review of the record reveals the defendant’s statement that he received and sold the tractor tire was voluntarily given, such should not have been suppressed.

Accordingly, we reverse and remand for further proceedings consistent with this opinion.

McNULTY, C. J., and HOBSON, J., concur.


text:
    WASHINGTON STAR SYNDICATE, INC., Appellant, v. Don WRIGHT, Appellee.
    No. 75-745.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 1975.

      Bolles, Goodwin, Ryskamp & Welcher, Miami, for appellant.
    Steel, Hector & Davis and Talbot D’Alemberte, Miami, for appellee.
    Before PEARSON, HENDRY and NATHAN, JJ.
   PER CURIAM.

This is the second appearance of this cause in this court. See Washington Star Syndicate, Inc. v. Wright, Fla.App.1975, 313 So.2d 444. The defendant urges on this appeal that the trial court erred in refusing to enforce a noncompetition covenant contained in the agreement of the parties. The covenant is as follows :

“This contract will be for a period of five years beginning with the initial release of the feature. At any time during that period, that you may for reasons of your own wish to discontinue syndication, you may do so upon giving us sixty days’ notice- — providing you do not turn syndication over to another syndicate.”

The burden of defendant’s argument is that the producer of the cartoons and the syndicate distributor were partners and that Fla.Stat. § 542.12(3) permitted the enforcement of the covenant. The trial judge correctly determined that the relationship was not that of a partnership or joint venture. See Russell v. Thielen, Fla.1955, 82 So.2d 143.

The evidence supports the finding by the trial court that the covenant was void under Fla.Stat. § 542.12. Cf. the general considerations of law in Auto Club Affiliates, Inc. v. Donahey, Fla.App. 1973, 281 So.2d 239.

Affirmed.


author: HOBSON, Judge.

text:
    Ben S. GILMER et al., Appellants, v. SHELL OIL COMPANY, etc., et al., Appellees.
    No. 75-448.
    District Court of Appeal of Florida, Second District.
    Dec. 19, 1975.

      Robert Gibbons and S. Thomas Ullman of Gibbons, Tucker, McEwen, Smith, Cofer & Taub, Tampa, for appellants.
    Howard P. Ross of Battaglia, Parker, Ross, Parker & Stolba, St. Petersburg, for appellee Shell Oil Co.
   HOBSON, Judge.

This is an appeal from a final judgment entered in favor of the appellee on March 12, 1975. The record on appeal shows that on March 7, 1975 the circuit judge who entered the final judgment had on the court’s own motion entered an order recusing herself from “hearings on the above .styled cause.” This order further directed the clerk to re-assign the cause to another circuit judge.

The question on appeal is whether or not a judge may recuse himself on his own motion and thereafter enter further orders or final judgment. It is well settled that a judge who is disqualified can proceed no further in the case. Vaughn v. State, Fla.App.3d 1969, 226 So.2d 443; Kells v. Davidson, 1951, 102 Fla. 684, 136 So. 450. The appellee suggests that there is a distinction between a disqualified judge and a judge who on his own motion recuses himself. We are not persuaded that there is a distinction which would remove a recused judge from the law applicable to a disqualified judge.

Webster’s Dictionary defines “disqualify” as “To deprive of the qualities necessary for any purpose; to render unfit.” In the same dictionary, “recuse” is defined as “To reject; esp., to except to (a judge), as interested or incompetent.”

The order of recusal and transfer on the court’s own motion does not state the reasons therefor. However, we must assume that while the reason or reasons might not be sufficient to disqualify under the applicable statutes, they were sufficient to preclude the judge from proceeding further in the case.

The appellees also take the position that the judge heard the final arguments of counsel on appellees’ motion for summary judgment and had reserved her decision in order to deliberate on the oral arguments and the authorities cited by counsel prior to the entry of the court’s own motion of recusal. This being so, the court merely entered its final judgment in written from, subsequent to her recusal, after having reached her decision prior to her recusal. To support this contention, the appellees rely heavily on the order of recusal wherein the court recused herself “from hearings on the above styled cause,” and there were no further hearings prior to the entry of the final judgment.

The record on appeal shows only that the order of recusal was entered on March 7, 1975 and the final judgment was entered subsequent thereto on March 12, 1975. Under these circumstances and under the law as established by Kells and Vaughn, supra, we hold that the final judgment was void and of no effect.

The final judgment is vacated and set aside and the cause remanded with directions that it be taken up before a circuit judge not disqualified to act in the further proceedings.

It is so ordered.

McNULTY, C. J., and BOARDMAN, J., concur.


author: PER CURIAM. PEARSON, Judge

text:
    The STATE of Florida, Appellant, v. Timothy Daniel CUNNINGHAM, Appellee.
    No. 75-1004.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 1975.
    Richard E. Gerstein, State Atty., and Milton Robbins, Asst. State Atty., for appellant.
    Gerald Kogan, Miami, for appellee.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

The appellee, Cunningham, was charged by information with the robbery of the Overhead Door Company. He protested his innocence and, during the pendency of this matter, his counsel and the State stipulated that he would submit to a polygraph examination, the results of which would be introduced into trial of that proceeding.

During the examination, the polygraph operator interrogated Cunningham as to whether or not he had ever killed anyone. At the conclusion of the test, the polygraph operator informed Cunningham that he was lying about not having killed anyone; that this would have an effect on the results of his test as to whether or not he had committed the robbery of the Overhead Door Company. Whereupon, Cunningham admitted that he had been involved in a robbery some years previous, which had resulted in the death of an individual. Subsequently, the polygraph operator informed the State of this admission and the State then instituted first degree murder proceedings against Cunningham as a result of the information learned by the polygraph operator conducting the test. Cunningham’s counsel in the murder prosecution filed a motion to suppress any statements during the trial received by the polygraph operator at the time he conducted the test. The trial judge granted the motion and this appeal ensued. We affirm.

Generally, polygraph tests and the information gleaned therefrom are not admissible evidence in any criminal proceeding. Kaminski v. State, Fla.1952, 63 So.2d 339; Anderson v. State, Fla.1970, 241 So.2d 390; Sullivan v. State, Fla.1974, 303 So.2d 632. The results may be admitted into evidence upon stipulation between the State and defense counsel. State v. Drown, Fla.App.1965, 177 So.2d 532; Ashary v. State, Fla.App.1974, 294 So.2d 33; Moore v. State, Fla.App.1974, 299 So.2d 119. The sole purpose of the stipulation entered into in the Overhead Door Company case related to permissible evidence in that cause and in no other. Therefore, we hold that the trial judge properly suppressed any information obtained during the giving of the polygraph test by the operator. Compare Pereira v. Pereira, 35 N.Y.2d 301, 361 N.Y.S.2d 148, 319 N.E.2d 413. This will not preclude the State from continuing with its first degree murder prosecution, but will only preclude the State from using the information obtained by the polygraph operator in response to questions propounded to Cunningham.

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

Affirmed.

PEARSON, Judge

(dissenting).

I must dissent because I feel that this decision is an unwarranted extension of those cases rendering confessions inadmissible because of exaggerated protections allowed to defendants who have confessed to crimes. I see no difference between the confession of a separate crime to a polygraph operator and the confession of a separate crime to any non-investigative officer. I would reverse the order suppressing the confession upon the authority of the decision of the District Court of Appeal, Second District, in Johnson v. State, Fla.App.1964, 166 So.2d 798.


author: McCORD, Judge.

text:
    James D. ALFORD, III, Petitioner, v. DUVAL COUNTY SCHOOL BOARD, Respondent.
    No. Y-122.
    District Court of Appeal of Florida, First District.
    Oct. 8, 1975.

      William H. Maness, Jacksonville, for petitioner.
    Harry L. Shorstein and Frederick J. Simpson, Jacksonville, for respondent.
    Robert L. Shevin, Atty. Gen., and Donald D. Conn, Asst. Atty. Gen., for amicus curiae.
   McCORD, Judge.

Although we previously issued a rule nisi in prohibition in this cause, upon further consideration, we do not consider that prohibition is the proper remedy. Therefore, we review the action below by common law certiorari.

Petitioner, being in a quandry as to his correct method for review, filed in this court a “Petition for Writ of Certiorari to the Circuit Court of Duval County, or, in the Alternative, to the Duval County School Board, or for Writ of Prohibition” to the Duval County School Board. We initially issued rule nisi in prohibition and granted a motion of the Attorney General of Florida to file a brief as amicus curiae. Briefs on the merits have been filed by respondent, relator and amicus curiae.

Petitioner is an annual contract teacher who was employed by the Duval County School Board. Proceedings for dismissal were brought against him by the Board pursuant to Ch. 21197, Laws of Florida, Acts of 1941 (a special act of the legislature) which will hereinafter be referred to as the Duval County Teachers’ Tenure Act. ■ The order which petitioner seeks to have reviewed is a ruling of the Board made on February 3, 1975, denying petitioner’s motion to quash the proceedings. Petitioner contended there and contends here that the dismissal proceedings are governed by the new Administrative Procedure Act, Chapter 74-310, Laws of Florida, which substantially rewrote Chapter 120, Florida Statutes. The new Administrative Procedure Act is now Chapter 120, Florida Statutes, 1974, as amended by Chapter 75-191, Laws of Florida, and will hereafter be referred to as the new A. P. A. The effect of the Board’s denial of petitioner’s motion was to rule that the proceedings would continue under the Duval County Teachers’ Tenure Act rather than the new A. P. A. We recognize that it is most important that this interlocutory ruling of the Board be reviewed at this time rather than after final action of the Board. A failure to review the ruling at this time could cause useless procedures before the Board and would leave open the question of whether or not judicial review of the final action of the Board would be before this court or the Circuit Court of Duval County. Review of agency action under the new A. P. A. is before this court while review under the Duval County Teachers’ Tenure Act is before the circuit court. We therefore consider this a proper question to be resolved at this time by common law certiorari.

Whether or not the new A. P. A. repealed other statutes must be determined by rules of statutory construction and the expressed legislative intent contained in the new A. P. A. In this connection, the Supreme Court in American Bakeries Co. v. Haines City, 131 Fla. 790, 180 So. 524, stated as follows:

“While statutes may be impliedly as well as expressly repealed, yet the enactment of a statute does not operate to repeal by implication prior statutes, unless such is clearly the legislative intent.
An intent to repeal prior statutes or portions thereof may be made apparent, when there is a positive and irreconcilable repugnancy between the provisions of a later enactment and those of prior existing statutes. But the mere fact that a later statute relates to matters covered in whole or in part by a prior statute does not cause a repeal of the older statute.” (Emphasis supplied)

The Supreme Court in State v. Southern Land & Timber Co., 45 Fla. 374, 33 So. 999, quoted with approval Enlich on the Interpretation of Statutes, § 223 as follows :

“It is but a particular application of the general presumption against an intention to alter the law beyond the immediate scope of the statute to say that a general act is to be construed as not repealing a particular one; that is, one directed towards a special object or a special class of objects. A general later affirmative law does not abrogate an earlier special one by mere implication. ‘Generaba spe-cialibus non derogant.’ The law does not allow the exposition to revoke or alter, by construction of general words, any particular statute, where the words of the two acts, as compared with each other, are not so glaringly repugnant and irreconcilable as to indicate a legislative intent to repeal, but may have their proper operation without it. It is usually presumed to have only general cases in view, and not particular cases which have been already otherwise provided for by the special act, or, what is the same thing, by a local custom. Having already given its attention to the particular subject and provided for it, the Legislature is reasonably presumed not to intend to alter that special provision by a subsequent general enactment, unless that intention is manifested in explicit language, or there be something which shows that the attention of the Legislature had been turned to the special act, and that the general one was intended to embrace the special cases within the previous one, or something in the nature of the general one making it unlikely that an exception was intended as regards the special act. The general statute is read as silently excluding from its operation the cases which have been provided for by the special one. * * * The fact that the general act contains a clause repealing acts inconsistent with it does not diminish the force of this rule of construction.”

In addition, the Supreme Court in In re Wade, 150 Fla. 440, 7 So.2d 797, said:

“It is said that the later general Act will be presumed to have made an exception of the prior special 'one, unless the contrary clearly appears.”

We now turn to the Legislative intent as expressed in the new A. P. A. Section 120.72(1) provides as follows:

“The intent of the legislature in enacting this complete revision of chapter 120, Florida Statutes, is to make uniform the rulemaking and adjudicative procedures used by the administrative agencies of this state. To that end, it is the express intent of the legislature that the provisions of this act shall replace all other provisions in the Florida Statutes, 1973, relating to rulemaking, agency orders, administrative adjudication, or judicial review, except for marketing orders adopted pursuant to chapters 573 and 601.” (Emphasis supplied.)

We cannot say that the legislature intended to repeal that part of the Duval County Teachers’ Tenure Act relating to the procedure for removal of teachers by the enactment of the new A. P. A. We consider it significant that the legislature in the above quoted statement of intent only provided that the new A. P. A. “shall replace all other provisions of the Florida Statutes, 1973, relating to rulemaking, agency orders, administrative adjudication or judicial review.” (Emphasis supplied.) The only reference to intent of the new A. P. A. is the above quoted Section 120.72(1) and it is noted that such statement relates only to its replacement of general laws (Florida Statutes 1973). It makes no reference to replacement of special acts such as the Duval County Teachers’ Tenure Act. While the procedure provided in the Duval County Teachers’ Tenure Act for discharge of a teacher is more abbreviated than is the procedure under the new A. P. A., we cannot say that it is so repugnant to the new A. P. A. that it is obvious that the legislature intended a repeal of the procedural provisions of the Duval County Teachers’ Tenure Act. Had it so intended it would have been a simple matter for it to have included special acts or this special act in the laws which were being replaced by the new A. P. A.

The rule nisi heretofore issued is discharged, writ of prohibition is denied, and certiorari is denied.

BOYER, C. J., and MILL, J., concur.


text:
    Emily W. ALEXANDER and William V. Chester, Petitioners, v. DUVAL COUNTY SCHOOL BOARD, Respondent.
    No. Z-204.
    District Court of Appeal of Florida, First District.
    Oct. 8, 1975.
    Rehearing Denied Jan. 16, 1976.
    William H. Maness, Jacksonville, for petitioners.
    Harry L. Shorstein and Frederick J. Simpson, Jacksonville, for respondent.
   PER CURIAM.

The rule nisi heretofore issued is discharged and writ of prohibition is denied. See Alford v. Duval County School Board, Fla.App.(1st), 324 So.2d 174, opinion filed October 8, 1975.

BOYER, C. J., and RAWLS and Mc-CORD, JJ., concur.


author: BOYER, Chief Judge.

text:
    Samuel DARDY, Appellant, v. STATE of Florida, Appellee.
    No. Y-292.
    District Court of Appeal of Florida, First District.
    Dec. 23, 1975.
    Peter A. Firpo, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for ap-pellee.
   BOYER, Chief Judge.

Appellant, defendant in the trial court, was charged by information with the crime of possession of a firearm by a convicted felon, contrary to Florida Statute 790.23. While his trial was still in progress he changed his plea, entering a plea of guilty to the offense as charged, but announced that he would appeal the trial court’s ruling on certain proffered testimony. He was adjudicated guilty and sentenced. From that judgment this appeal is taken.

At the trial, and prior to the guilty plea, the State proved that the defendant was in possession of a shotgun on October 5, 1974. The State also proved the defendant was a convicted felon. When the defense, on cross examination, attempted to establish why the defendant was in possession of the shotgun the State objected on the grounds of relevance. The defense then proffered testimony which tended to prove that on October S, 1974 one J. C. (Buckshot) Evans, a man with whom defendant had had a prior altercation, fired a weapon at defendant who was then unarmed. Upon being fired upon, defendant procured a shotgun from his car and fired back. In rejecting the proffered testimony, the trial court ruled that evidence of self defense was irrelevant to the charge of possession of a firearm by a convicted felon. It was at that point that defendant withdrew his prior plea and entered a plea of guilty, advising the court that its ruling on the proffered testimony would be appealed.

Although it has been held that an accused may enter a plea of nolo contend-ere and reserve questions of law for an appeal, such is not the case with regard to a guilty plea. (State v. Ashby, Sup.Ct.Fla.1971, 245 So.2d 225) Inasmuch as defendant does not question the jurisdiction of the trial court, the voluntariness of the plea nor the legality of the sentence, all other legal issues were legally abandoned by the guilty plea. However, even were we to reach the merits w^ would nevertheless be required under the evidence revealed by the record to affirm. Self defense is not a viable defense to the offense of possession of a firearm by a convicted felon. (See Carter v. State, Fla.App. 1st 1975, 312 So.2d 494; Johnson v. State, 1971, 256 Ind. 497, 269 N.E.2d 879) Further, the evidence reveals that the defendant had been in possession of the loaded shotgun for an extended period of time prior to the incident giving rise to the charges against him.

Affirmed.

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


author: WALDEN, Chief Judge.

text:
    Edward Anthony HACKNEY, Appellant, v. Dianne HACKNEY, Appellee.
    No. 75-266.
    District Court of Appeal of Florida, Fourth District.
    Dec. 26, 1975.
    John M. Cain, Orlando, for appellant.
    Robert W. Olsen, Orlando, for appellee.
   WALDEN, Chief Judge.

Husband appeals a final judgment of dissolution. We reverse the judgment insofar as it awarded the husband’s interest in jointly owned stock to the wife as lump sum alimony. We affirm the remainder of the judgment as being a proper exercise of the trial court’s discretion.

The wife requested alimony in her petition for dissolution, but thereafter testified plainly that she did not require any alimony, but would need child support for the three minor children. The trial court nonetheless made, in addition to child support, the lump sum alimony award.

The wife’s knowledgeable disclaimer, when combined with the evidence and accompanying awards, served to make this particular lump sum alimony award an abuse of discretion. See Posner v. Posner, 257 So.2d 530 (Fla.1972); Posner v. Posner, 233 So.2d 381 (Fla.1970); Black v. Black, 247 So.2d 775 (3d DCA Fla.1971); Costa v. Costa, 245 So.2d 123 (2d DCA Fla.1971).

In the present instance the wife’s statement that she did not need alimony was unrebutted by testimony or evidence. Furthermore, the husband may have been mislead. He naturally did not produce any positive evidence that she did not need alimony, as she had disclaimed any need. In light of these facts: (1) there was no evidence presented by the wife of need, (2) the wife disclaimed any need for alimony, and (3) it was not patently clear she was in need of alimony, the lump sum alimony award was erroneous. White v. White, 314 So.2d 187 (4th DCA Fla.1975); Roberts v. Roberts, 283 So.2d 396 (1st DCA Fla.1973).

We reverse and remand for áction not inconsistent with this opinion.

Reversed and remanded.

OWEN, J., and REASBECK, JAMES M., Associate Judge, concur.


text:
    Pat PROCACCI and Rose Procacci, his wife, Appellants, v. Mario ZACCO et al., Appellees.
    No. 75-102.
    District Court of Appeal of Florida. Fourth District.
    Dec. 26, 1975.
    Rehearing Denied Jan. 19, 1976.
    Herman I. Bretan, Bretan & Marks, Miami, for appellants.
    Rodney W. Bryson, Bryson & Berman, Miami, for appellees Zaceo and Chapman.
    Edward Paul Corwin, Hollywood, for appellee Holder.
   WALDEN, Chief Judge.

This is a dispute over' an alleged easement. The Doan Estate sold one parcel of land to an heir of the Estate, and an adjacent parcel to Phillips Petroleum. In the deed to Phillips Petroleum the following clause was included:

“Subject to an easement for road right-of-way over the South 25 feet of the North 235 feet of the above described land.”

This described strip of land was at right angles to the property sold to the heir. When the present owners of the Phillips Parcel began construction of buildings that encroached upon the described strip, the heir filed a petition for an injunction to prevent the construction, claiming the strip of land was an easement in favor of her property. The trial court held for defendants. We affirm.

The trial court held that the clause cited above did not reserve an easement for the plaintiffs’ property, because the language, “subject to,” was insufficient to reserve an easement of any kind. There is no Florida appellate discussion of this point, and there are authorities that hold that in certain circumstances the words, “subject to,” are terms of qualification, not words of contract — and that they do not operate so as to create or impose restrictions. Dubrowsky v. Benedict, 67 Misc.2d 189, 324 N.Y.S.2d 208 (1971):

“Conveyance to Benedict ‘subject to’ the restriction imposed by the Schoppa will was meaningless because the will restriction was itself meaningless and also because a conveyance 'subject to’ did not imply agreement on Benedict’s part that he would observe the covenant.” Id. 324 N.Y.S.2d at 212. (Emphasis supplied.)

See, Smith v. Second Church of Christ, Scientist, Phoenix, Arizona, 87 Ariz. 400, 351 P.2d 1104 (1960); Van Duyn v. H. S. Chase & Co., Inc., 149 Iowa 222, 128 N.W. 300 (1910); Werner v. Sample, 259 Minn. 273, 107 N.W.2d 43 (1961); Renner v. Crisman, 80 S.D. 532, 127 N.W.2d 717 (1964):

“The words ‘subject to’ are frequently used in conveyances and are generally considered terms of qualification. In their ordinary sense, they mean ‘subordinate to’, ‘subservient to’, ‘limited by,’ or ‘charged with’. There is nothing in their use which connotes a reservation or retention of property rights.” Id. 127 N.W.2d at 721.

Annotation, 84 ALR2d 780, § 2:

“The general conclusion consequently to be drawn from the cases is that the fact that a conveyance is made ‘subject to’ restrictions set forth in some other deed or instrument referred to will not, without more, make the restrictions applicable to the property conveyed if in fact the restrictions do not otherwise apply thereto. At most, a problem of construction arises, and any decision that the premises conveyed become subject to the restrictions thus referred to must rest upon the particular facts, circumstances, and situation presented.” Id. at 781.

23 Am.Jur.2d, Deeds § 217 (1965) :

“§217. ‘Subject to.’
“The words ‘subject to’ in a deed conveying an interest’ in real property are words of qualification of the estate granted. Even though the words ‘subject to’, mentioned in the phrase ‘subject to a specified encumbrance,’ bear the obvious meaning that only the equity of redemption belonging to the grantor passes by a deed, such words may, under the circumstances of the particular case, be ambiguous. To ascertain the intention in such ambiguous case, all the circumstances are taken into consideration, and the .primary meaning of the words ‘subject to’ will be departed from, if necessary, in order to effectuate what seems best to accord with the intention of the parties. Of course, the rights of an earlier grantee to which a later grant is expressed to be subject are neither abridged nor enlarged by the later grant.” Id. at 262.

At best the use of the words subject to” in an attempt to create an easement leads to unclear and ambiguous results, but see Owen v. Yount, 198 So.2d 360 (2dDCA Fla.1967). To understand the intentions of the parties (which should be understandable when reading the instrument), recourse must be had to surrounding agreements and circumstances. Without such facts and circumstances, no easement is created when the words “subject to” are used. 1(

Even had the proper words been utilized, there was no evidence of any facts and circumstances that would support a finding that the Estate and Phillips had any agreement to reserve an easement for the benefit of the plaintiffs, and, in fact, the Estate eventually quit-claimed to Phillips any interest the Estate might have had by that conditional clause. The deed to the plaintiffs contained no recitation of the transfer of any more than the fee title to a parcel of land. We hold, in light of these facts and circumstances, that no interest or easement was retained by the Estate for either the Estate or plaintiffs when the Estate sold the parcel to Phillips.

We note, too, that there can be no claim of easement by implication nor by prescription. There was no unity of ownership between the supposed dominant and servient estates at the time of the conveyance, there was no evidence of any use of the described land strip, no evidence of necessity and no evidence of any permanent structure on the described strip. See Downing v. Bird, 100 So.2d 57 (Fla.1958); Fla. Power and Light Co. v. Rader, 306 So.2d 565 (4thDCA Fla.1975); Orange Blossom Hills, Inc. v. Kearsley, 299 So.2d 75 (1stDCA Fla.1974); Reyes v. Perez, 284 So.2d 493 (4thDCA Fla.1973); Lovey v. Escambia County, 141 So.2d 761 (1stDCA Fla.1962); Kirma v. Norton, 102 So.2d 653 (2dDCA Fla.1958).

Finding that the trial court correctly determined the issue, we affirm.

Affirmed.

OWEN and DOWNEY, TJ., concur.


text:
    COMMERCIAL BANK OF KENDALL, a Florida Corporation, Appellant, v. Lawrence J. COSTLEY, a/k/a Larry J. Costley, and Joan E. Costley, his wife, Appellees.
    No. 75-130.
    District Court of Appeal of Florida, Third District.
    Dec. 16, 1975.

      Richard C. Carter, Jr., Miami, for appellant.
    Pallot, Stern, Proby & Adkins, Miami, for appellees.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

Appellant, plaintiff below, brings this appeal from a final judgment of the trial court awarding it attorneys’ fees and an order of the trial court denying its motion for a rehearing.

Appellant held a promissory note from appellee, Lawrence J. Costley, for the principal amount of $120,000.00 plus interest due and payable on July 29, 1974. The note was not paid when due and on September 18, 1974, appellant filed a complaint against appellee seeking damages and other relief, including the establishment of a lien and garnishment. Thereafter, a garnishment prior to judgment was issued and appellant posted a bond in the amount of $270,000.00 for which it was required to pay the premium.

After the garnishment, the parties entered into a stipulated settlement agreement whereby appellee paid $123,000.00 to appellant. This amount did not include attorneys’ fees and costs which by the agreement were to be determined by the trial court.

After a non-jury hearing on the issues of attorneys’ fees and costs, the trial court entered a final judgment dated December 17, 1974, which awarded appellant $500.00 in attorneys’ fees and denied it any amount for costs. From the judgment, appellant appeals.

Appellant contends the trial court erred in entering the judgment because it was contrary to the evidence. Appellee contends that there was competent substantial evidence to support the award of $500.00 as reasonable attorneys’ fees and to deny costs to appellant.

It is a well settled proposition of law that an appellate court should not interfere with the findings of fact of a trial judge, sitting non-jury, unless there is an absence of substantial competent evidence to support such findings. However, on appeal when such evidence is found to be lacking, even when the evidence is considered in a light most favorable to the prevailing party, it is an appellate court’s duty to reverse. Apeco Marina, Inc. v. St. Paul Fire & Marine Insurance Company, Fla.App.1974, 301 So.2d 136; Manchester Insurance & Indemnity Company v. Novack, Fla.App. 1973, 284 So.2d 433; C. T. Heath v. First National Bank in Milton, Fla.App.1968, 213 So.2d 883; and see 2 Fla.Jur. Appeals § 343.

In the instant case, the record shows that the legal activities undertaken and the costs incurred by appellant’s counsel were justified under the circumstances. Also, it appears that the trial court’s award of only $500.00 as attorneys’ fees and nothing for costs is not sustained by the evidence.

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 reversible error has been shown. Therefore, for the reasons stated, and upon the authorities cited, the judgment appealed is reversed and remanded to the trial court for the assessment of reasonable attorneys’ fees and costs.

Reversed and remanded.


author: SACK, MARTIN, Associate Judge.

text:
    The DEPARTMENT OF REVENUE of the State of Florida, Appellant, v. BROOKWOOD ASSOCIATES, LIMITED, etc., Appellee.
    No. Y-357.
    District Court of Appeal of Florida, First District.
    Nov. 26, 1975.
    Rehearing Denied Jan. 16, 1976.
    Robert L. Shevin, Atty. Gen., and David M. Hudson, Asst. Atty. Gen., for appellant.
    Joseph W. Gaynor, of Jacobs, Robbins & Gaynor, St. Petersburg, for appellee.
   SACK, MARTIN, Associate Judge.

In this declaratory judgment action, ap-pellee, plaintiff below, seeks to enjoin appellant from assessing and collecting additional documentary surtax payments on the sale of certain real property located in Alachua County. The primary issue in the case is whether the amount of an outstanding first mortgage constitutes part of the consideration for the conveyance of property upon which the amount of the documentary stamp surtax imposed by F.S. § 201.021 is computed when the purchase price includes a certain amount of cash and a purchase money wrap-around mortgage which wraps around an existing first mortgage and is subject to said first mortgage.

In its well-reasoned order of final summary judgment entered in favor of appel-lee, the trial court found the pertinent facts to be as follows:

"(a) The plaintiff at all times material to this cause was a limited partnership under Florida law and on December 29, 1972 was the purchaser of certain real estate in Alachua County from a general partnership named Brookwood Terrace Apartments. This property, known as Brookwood Terrace Apartments, was sold for a total purchase price of $2,460,000. To the warranty deed of conveyance the plaintiff attached documentary tax stamps, pursuant to F.S. 201.02 in the amount of $7,380. This reflects a tax of 30 [cents] per $100 of a consideration of $2,460,000. There were also attached documentary surtax stamps, pursuant to F.S. 201.021 in the amount of $506 which reflects a surfax of 55 [cents] per $500 on the sum of $460,000, which sum is based upon a total consideration of $2,460,000 less the amount of $2,000,000 which is the amount of the debt secured by a certain first mortgage held by Stockton, What-ley, Davin & Company on the property, which had been previously given by the seller. Such mortgage encumbered the property before, on, and after the date of sale and conveyance of the property to plaintiff.
“(b) A mortgage was given by plaintiff to the seller at the same time the deed was executed which secured part of the purchase price. This instrument recited the existence of the first mortgage to Stockton, Whatley, Davin & Company, and contained a covenant between the mortgagor and mortgagee that the mor-gagee would pay to the holder of the first mortgage the sum of $2,000,000 which was the balance remaining unpaid on the first mortgage, together with all interest thereon accruing thereunder, and together with certain payments as are due under the first mortgage under its terms. The covenants also included an agreement by the mortgagee to make all payments on the first mortgage before expiration of applicable grace periods provided.
“(c) The holder of the first mortgage agreed to this transaction. There was no release of the seller of its liability to the holder of the first mortgage, no no-vation occurred, and the obligation on the first mortgage remained solely in the seller.
“(d) The mortgage given by plaintiff to the seller of the property is commonly referred to as a ‘wrap-around mortgage’, whereby the total indebtedness represented by this mortgage includes the balance owed on the first mortgage. Such an arrangement enables the purchaser (and mortgagor to the seller) to make single installment payments on its total indebtedness with the seller transmitting to the holder of the first mortgage the amounts due under the first mortgage.
“(e) On or about November 21, 1973, defendant informed plaintiff that an assessment in the amount of $2,200 was due and owing on the documentary surtax stamps pursuant to F.S. 201.021 and that in addition a penalty assessment in a like amount was made pursuant to F.S. 201.17(2), for a total sum of $4,400.
“(f) Defendant contends that the surtax should apply also the the $2,000,000 of the first mortgage debt included in the total consideration. Plaintiff asserts that the plain terms and language of F. S. 201.02(1) exclude all ‘amounts of existing mortgages on the real estate sold’ from the consideration paid as the surtax of 55 [cents] per $500.
“(g) The defendant has adopted regulations as part of the Florida Administrative Code which purports, in effect, to discard ‘wrap-around’ mortgages as coming within the proviso of F.S. 201.021 which states: ‘that when real estate is sold, the consideration for purposes of this tax, shall not include amounts of existing mortgages on the real estate sold’. See Regulations 12A-4.12(3), (4), and 12A-4.13(23).”

Based on the foregoing facts, the trial court made the following conclusions of law:

“3. The defendants announced an intention of making a deficiency assessment with penalty and such is based upon a concept that the ‘consideration’ upon which the basic tax (F.S. 201.02) is based and that of the surtax (F.S. 201.-021) is the same in both instances and includes the amounts involved in the first mortgage referred to in a wraparound mortgage. It is well established that the ‘consideration’ in F.S. 201.02(1) includes all sums paid or agreed to be paid by the purchaser of the land, not only the amount paid at the time the transaction was closed, but also any amount which he would be required to pay in liquidation of all indebtedness owed to a mortgagee, without any deduction for value of outstanding liens or mortgages. Rasberry v. Dickenson [Dickinson], DCA 1 1971, 243 So.2d 236. See also Indian River Groves, Inc. v. Dickenson [Dickinson], Fla. [App.] 1970, 238 So.2d 125; Kendall House Apts. v. DOR, Fla.1971, 245 So.2d 221. No contention is made to the contrary by the plaintiff and the tax imposed by 201.-02(1) is admittedly based on a consideration which includes the mortgage debt outstanding. The language of 201.02(1) provides that the ‘consideration’ for the execution of the deed or other instrument of conveyance shall be the basis for computing the tax. No mention is made of liens, mortgages or other interests which may be outstanding. However, the language of F.S. 201.021 is quite different. It specifies a surtax computed on ‘the consideration paid’ but it also has a clear and unambiguous proviso that when the instrument involves a sale of real estate ‘the consideration, for purposes of this tax, shall not include amounts of existing mortgages on the real estate sold’. It is thus specific in its intent that if the real estate sold is subject to the lien of an existing mortgage or mortgages, the ‘amounts’ of such mortgages shall not be included in the ‘consideration’ on which the tax is to be computed. To undertake to ignore a mortgage, such as that of Stockton, Whatley, Davin and Company which was outstanding to the extent of a $2,000,000 unpaid balance, because its discharge was to be effected via of a ‘wraparound’ mortgage to the seller of the land would take out the words of the proviso and produce a distortion which would utterly frustrate the glaring legislative intent.
“4. The defendant seeks to rely on DOR v. McCoy Hotel [Motel], Inc., Fla. DCA 1, 1974, 302 So.2d 440 which dealt with documentary stamps on promissory notes and written obligations under F.S. 201.08(1), wherein a wraparound obligation was involved and the amount of the earlier obligation to be paid off by the payee of the later note was not allowed to be deducted in computing the amount of the obligation on which the tax is computed. This case is not in point and deals with statutory provisions not at all similar to those in F.S. 201.021.
“5. In the Rasberry case, supra, wherein the tax under F.S. 201.02 was held to be based upon the full consideration, including any amount the purchaser of real property would be obligated to pay in liquidation of outstanding indebtedness to a mortgagee, the Court specifically distinguished F.S. 201.02 from F.S. 201.021. It was said:
‘In so holding, it should be emphasized that the documentary stamp tax with which we are concerned is that levied by virtue of F.S. Section 201.02, F.S. A., based upon a full consideration paid for the conveyance of lands, and has no relationship to the surtax levied pursuant to F.S. Section 201.021, F.S. A. Under this latter statute the consideration upon which the tax is levied thereby is computed specifically excludes the amounts of existing mortgages against the land sold/ Emphasis supplied.
Also, in the Indian River Groves, Inc. case, supra, the court declined to pass on the question of whether a documentary stamp surtax would be payable under the facts shown in the record of that case.
“6. The first mortgage involved here was an ‘existing mortgage on the real estate sold’ and the ‘amount’ of it was the outstanding unpaid balance of $2,000,000. It is obvious that a large part'of the total consideration for the purchase, namely $2,460,000, was this unpaid balance which had to be paid in prder for the fee owner to be able to keep the property. The statute says this ‘amount’, for the purposes of the surtax, shall not be included in the ‘consideration paid’ on which the tax is computed.
“7. There is no genuine issue of material fact and this declaratory judgment may be rendered as a matter of law. The foregoing declarations are hereby rendered pursuant to F.S. Chapter 86 and are to the effect that the plaintiff is not obligated to pay any more docume- tary stamp taxes on the deed involved than have already been paid, and that the defendant is not entitled to issue any deficiency assessment or assess any penalty against plaintiff therefor. The mentioned regulations, to the extent that they conflict with the declarations herein made, are deemed to be in conflict with the statute involved and are to that extent invalid. . . .”

We agree with the above-quoted conclusion. Taxing statutes and statutes conferring authority to impose taxes are to be strictly construed. When such statutes are so drawn that the legislative intent is in doubt or where such statutes are so ambiguous as to render the legislative intent questionable or unclear then it is the duty of the taxing authority, and the duty of the courts when litigation arises, to construe such statutes or ambiguities liberally in favor of the taxpayer or citizen and strictly against the taxing authority. If a taxing statute does not reveal with certainty the intent of the legislature and is su-ceptible of two meanings, the meaning most favorable to the taxpayer should be adopted. This is particularly true in instances wherein one meaning results in imposing the tax and the other relieves imposition of the tax. (See 31 Fla.Jur., Taxation, Section 60, and cases therein cited)

Affirmed.

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


author: MILLS, Judge.

text:
    Dale E. FRANKLIN, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. Y-280.
    District Court of Appeal of Florida, First District.
    Dec. 23, 1975.

      Edward E. Hedstrom, of Dowda, Hed-strom & Fields, Palatka, for appellant.
    Robert L. Shevin, Atty. Gen., and Donald K. Rudser, Asst. Atty. Gen., for appel-lee.
   MILLS, Judge.

Franklin seeks reversal of a judgment of conviction and sentence based on a jury verdict finding him guilty of robbery. The issue before us is whether the trial court erred in denying his motion to suppress a confession made by him.

Immediately after his arrest Franklin was advised of his constitutional rights. When asked if he wanted to talk about the crime, Franklin replied, “No, not right now.” He gave the same answer when asked if he wanted an attorney. Within fifteen minutes of his arrest, Franklin was delivered by the arresting officer to the jail. The arresting officer informed the officer at the jail, to whom he delivered Franklin, that he had advised Franklin of his constitutional rights, and that Franklin did not want to give a statement. The officer at the jail inquired of Franklin if he had been advised of his constitutional rights, and if he understood them. Franklin responded, “Yes.” He was asked if he wanted an attorney. He said, “No.” Upon being asked if he wanted to give a statement, he said that he did. Approximately thirty minutes after his arrest, Franklin gave a written statement admitting his participation in the robbery. As a preface to the signed confession, Franklin stated that he had been advised of his constitutional rights; that he wanted to make a statment without the presence of an attorney; and, that he had not been threatened, coerced, forced, or promised anything to make the statement.

Before taking Franklin’s confession, was it necessary to fully repeat his constitutional rights to him? No. Did Franklin voluntarily, knowingly, and intelligently waive his rights? Yes.

Because only thirty minutes lapsed between the time he was given full Miranda warnings and the time he gave his confession; and because he was in substance reminded of the warnings before giving his confession; it was unnecessary to fully repeat the warnings. See Melero v. State, 306 So.2d 603 (Fla.App.3d, 1975).

A defendant has as much right to waive his right to be silent as he has to insist on the right. The validity of the waiver depends upon it being voluntarily, knowingly, and intelligently made. Nunez v. State, 227 So.2d 324 (Fla.App.4th, 1969). The facts presented to us clearly show a waiver that meets this test.

Affirmed.

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


author: NATHAN, Judge.

text:
    Harry HOROWITZ, on behalf of Meridian 17 Corporation, a Florida Corporation, Appellant, v. UNITED NATIONAL CORPORATION, a Delaware Corporation, et al., Appellees.
    No. 75-26.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 1975.
    Rehearing Denied Jan. 21, 1976.
    Sams, Anderson, Alper & Post and Frank B. Pridgen, Ronald S. Golub, Miami, for appellant.
    Heller & Kaplan, Miami, Finley, Kum-ble, Heine, Underberg & Grutman and Herbert F. Roth, New York City, for ap-pellees.
    Before BARKDULL, C. J., and HEN-DRY and NATHAN, JJ.
   NATHAN, Judge.

This is an appeal by the plaintiff, Harry Horowitz, on behalf of Meridian 17 Corporation, from an adverse final judgment entered after a non-jury trial in an action for fraud, accounting, constructive trust, specific performance and damages against United Investors Corporation, United Meridian Corporation, Meridian Parking Corporation and U.S.I.F. Meridian Corporation, the defendants.

The litigation commenced in 1968 when Horowitz filed a stockholder’s derivative suit on behalf of Meridian 17 Corporation, of which he and United Investors Corporation each own 50 per cent of the stock. The action is based on an agreement confirmed by a letter dated August 27, 1964, that the building owned by Meridian 17 Corporation was conveyed to a new corporate subsidiary of United Investors Corporation. As consideration, Horowitz received in excess of $1,200,000 and was stricken as a guarantor and relieved of responsibility for commitments and debts in connection with the building. The letter provided that Meridian 17 Corporation would lease the building from United Meridian Corporation (the subsidiary newly organized to take title) on the basis of a sale and leaseback agreement, but no date was given for commencement of the lease. In* 1967, Horowitz demanded that the lease-back agreement be effectuated. The defendants refused to comply and this litigation commenced in 1968. The building was sold by United to USIF Meridian Corporation in 1970. Following several years of procedural skirmishing and the filing of a third amended complaint, the cause came to trial in December, 1974.

The trial court entered an extensive final judgment in favor of the defendants, in which it stated that Horowitz sat on his rights and failed to demand the lease until the building became more profitable. The trial court denied recovery to Horowitz based on laches, waiver, estoppel and lack of definiteness of the agreement in that it failed to provide a time for commencement of the lease.

On appeal from the final judgment, Horowitz contends that he proved every allegation of his complaint and that the judgment is not supported by competent substantial evidence. We do not agree. The general rule, as espoused in Marshall v. C. S. Young Construction Company, 1927, 94 Fla. 11, 113 So. 565, 567, 55 A.L.R. 662, is that nothing can call forth the court of equity into activity but conscience, good faith and reasonable diligence. When these are wanting, the court is passive and does nothing. The court continues by stating that it is not mere delay that constitutes laches. Unreasonable delay in enforcing a right, coupled with disadvantage to another, are the elements of estoppel against the assertion of the right which is called laches. Applying this law to the facts of the instant case, the record demonstrates that there is competent substantial evidence to support the trial court’s findings of laches, waiver, es-toppel and lack of definiteness of the agreement.

Accordingly, the final judgment is affirmed.

      .This is the fifth appeal in this case. Horowitz v. United Investors Corporation, Fla.App.1968, 212 So.2d 85; Horowitz v. United Investors Corporation, Fla.App.1969, 227 So.2d 719; United Investors Corporation v. Horowitz, Fla.1970, 237 So.2d 180 (cert. den.); United National Corporation v. Horowitz, Fla.App.1972, 270 So.2d 62.


text:
    John STEPHENS, Appellant, v. STATE of Florida, Appellee.
    No. Y-262.
    District Court of Appeal of Florida, First District.
    Dec. 23, 1975.

      Richard ,W. Ervin, III, Public Defender, and David J. Busch, Asst. Public Defender, . for appellant.
    Robert L. Shevin, Atty. Gen., and Gerald L. Knight, Asst. Atty. Gen., for appellee.
   SACK, MARTIN, Associate Judge.

Appellant, defendant below, was tried under two counts of an information with delivering worthless bank checks. The jury found him guilty as charged under Count I of the information and, under Count II, found him guilty of the lesser included offense of delivering a check for the payment of money, knowing at the time of delivery that he had insufficient funds in the bank against which said check was drawn. The trial court adjudicated him guilty and imposed concurrent sentences of three years under Count I and one year under Count II. Appellant now appeals his judgment and sentences, alleging that there was a fatal variance between the information and the proof adduced at trial.

In an amended information, the State charged appellant with the following two counts :

“COUNT I. did unlawfully draw, make, utter issue or deliver to the Capital City First National Bank, a check or draft for the payment of money, in the sum of |850.00, knowing at the time of the making, uttering, issuing, or delivering of said check or draft, that the said John Stephens did not then have sufficient funds on deposit in or credit with such bank or depository with which to pay the same on presentation, a copy of said check or draft is attached hereto and made a part hereof as Exhibit No. 1, contrary to Section 832.05, Florida Statutes.
“COUNT II. And Harry Morrison, as State Attorney aforesaid, further information makes that JOHN STEPHENS of the County of Leon and State of Florida, on the 16th day of March, 1974, in the County of Leon and State of Florida, did unlawfully draw, make, utter, issue or deliver to the Capital City First National Bank, a check or draft for the payment of money, in the sum of $875.00, knowing at the time of the drawing, making, uttering, issuing or delivering of said check or draft that the said John Stephens did not then have sufficient funds on deposit in or credit with such bank.or depository with which to pay the same on presentation, a copy of said check or draft is attached hereto contrary to Section 832.05, Florida Statutes.”

At trial, the State established the following undisputed facts: The two checks referred to in Counts I and II of the amended information were delivered for deposit by appellant to the Capital City First National Bank of Tallahassee on March 6, 1974, and March 16, 1974, respectively. Both checks were corporate checks, and were drawn on International Leasing Corporation’s checking account at the Tallahassee Bank and Trust Company. Appellant, who testified that he was Chairman of International Leasing Corporation and owned 51 percent of the stock thereof, admitted signing both checks. The March 6 check was in the amount of $850.00, $800.-00 of which was deposited for credit to International Leasing Corporation’s checking account at Capital City First National, and the remaining $50.00 was returned to the defendant who stated that he used the money in his capacity as chairman of the corporation to print up daily rentals and bookkeeping ledger statements. The entire amount on the March 16 check ($875.00) was credited to International Leasing’s checking account at Capital City First National. When both checks were sent for collection to the Tallahassee Bank and Trust Company, they were marked insufficient funds and returned to Capital City First National. A senior vice-president of Capital City First National stated that, after being confronted with the checks, the appellant admitted that he knew when he wrote the checks that they were not good.

Both, at trial and on appeal, appellant has alleged that a fatal variance exists between the allegata and the probata. Specifically, both counts of the amended information under which the appellant was tried charge appellant with delivering a check knowing at the time of delivery of said check “ . . . that the said John Stephens did not then have sufficient funds on deposit in or credit with such bank . .” (Emphasis added). At trial, however, the State did not show that John Stephens had insufficient funds, but merely showed that International Leasing Corporation had insufficient funds. As noted in the amended information, appellant was charged with violations of F.S. § 832.05 which provides, in pertinent part, “it shall be unlawful for any person, firm or corporation to draw, make, utter, issue or deliver . . . ” a worthless check, knowing at the time of the drawing of the check that the “maker or drawer thereof has not sufficient funds . . . .”

This case comes under the rule announced in Long v. State, Sup.Ct.Fla.1957, 92 So.2d 259, 260, wherein the Court stated, “the general rule is where an offense may be committed in various ways, the evidence must establish it-to have been committed in the manner charged in the indictment. The Statute provides a penalty for acts in the disjunctive. The indictment or information may have alleged them in the conjunctive and proof of one would have sufficed but if one of the state of facts is alleged, it cannot be established by proof of the other.”

Thus, the State could have charged the corporation in the information and/or the defendant, acting in his corporate capacity. See State v. Shouse, Fla.App.2nd 1965, 177 So.2d 724, 727. However, the State elected to charge the appellant personally with the crime of delivering a worthless check, knowing at the time that he, personally, had insufficient funds in the bank to pay same. The State having failed to establish an essential allegation as contained in the information, appellant’s conviction must be reversed. See Fiske v. State, Fla.App.2nd 1958, 106 So.2d 586 and Conger v. State, Fla.App.3rd 1961, 130 So.2d 292.

Appellant also argues that the information was defective for want of an averment that appellant acted “with an intent to defraud” and that the evidence totally failed to establish such an averment. We have no difficulty in disposing of the latter point. The cancelled checks marked insufficient funds raise a presumption of an intention to defraud. In addition, there was testimony from officers of Capital City First National Bank which indicated that the appellant admitted knowing that the checks were worthless when he made and delivered them. As to the failure of the State to allege the intent to defraud in the information, it has been held that an information which substantially follows the language of the statute in charging an offense is legally sufficient. State v. Pound, Sup.Ct. Fla.1950, 49 So.2d 521. Moreover, it has also been held in a case involving a statute which explicitly requires the State to prove the intent to defraud, that a defendant who fails to move to quash the charge when the allegation of intent to defraud is omitted, takes a chance on the State’s supplying the defect by its evidence but is entitled to a proper instruction on the issue. Fiske v. State, supra, at 589. Here, appellant failed to move to quash the charge. Since the evidence at the trial established the intent to defraud and the trial court did instruct the jury that the State had to prove the intent to defraud, appellant’s objection on this point is without merit.

Because of the fatal variance between the allegata and probata, discussed in the first part of this opinion, we reverse and order that appellant be discharged.

Reversed.

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

      . The amended information actually contained four counts, but the latter two were nolle prossed prior to trial.


text:
    Christopher GATTI, Appellant, v. STATE of Florida, Appellee.
    No. 75-552.
    District Court of Appeal of Florida, Second District.
    Dec. 5, 1975.
    James A. Gardner, Public Defender, Sarasota, and William A. Dooley, Asst. Public Defender, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

From a careful review of the record herein we conclude that appellant has failed to show error in the conviction. Accordingly, the judgment of guilt is hereby affirmed.

However, at sentencing m open court a three year suspended sentence with probation was imposed. The written order of judgment and sentence provided for a five year suspended sentence with probation. The cause is remanded to the trial court to allow correction of the apparent clerical error in the order of judgment and sentence.

The judgment is affirmed except as otherwise noted.

HOBSON, Acting C. J., and BOARD-MAN and SCHEB, JJ., concur.