author: McCORD, Judge.

text:
    George ROU et al., Appellants, v. Jean F. BRAVO et al., Appellees.
    No. Z-173.
    District Court of Appeal of Florida, First District.
    Sept. 13, 1976.
    Rehearing Denied Oct. 29, 1976.
    Willard Ayres, Ayres, Cluster, Curry, Meffert & McCall, Ocala, for appellants.
    C. Ray Greene, Jr., Greene & Greene, Jacksonville, for appellees.
   McCORD, Judge.

This is an appeal from an amended final judgment enjoining appellants, the Board of County Commissioners of Marion County, Florida, from obstructing as against ap-pellees, their invitees, successors or assigns a certain road in K P Subdivision in Marion County and granting appellees, their invitees, successors or assigns free and unobstructed access to Rainbow River over said right of way without payment of any fee therefor.

As shown by the amended final judgment, K P Subdivision consists of lots in Block A thereof abutting Rainbow River and lots in Block B which do not front on the river. The plat of the subdivision contains a 40 foot road right of way known as Wekiva Road which runs from a public road paralleling the river (Railroad Street) to the edge of the river on its west side. The platted Wekiva Road is approximately 500 feet in length. In 1953, appellants purchased Lots 11, 12 and 13 of Block A and constructed a public recreation park thereon. Prior to April 21, 1959, appellants constructed a caretaker’s, house which encroached upon the right-of-way of Wekiva Road and constructed outbuildings and drove a well in the right-of-way. Upon complaint by the developer of the subdivision, appellant on April 21,1959, designated the north 20 feet of the west 400 feet of Lot 11 of Block A and the north 20 feet of the remainder of Lot 11 as a public road and shortly after April 21, 1959, paved it and constructed a launching ramp at the edge of the river. Appellants then maintained it as a public road until June 14, 1974. On that date, appellants barricaded the road at its intersection with Railroad Street and on July 16,1974, passed a resolution rescinding its resolution of April 21,1959, which established it as a public road. On the same day, appellants passed a resolution after due notice closing and vacating the platted street known as Wekiva Road. This road is the only public access to the river for the entire distance of five miles from Rainbow Springs at the headwaters to its confluence with the Withlacoochee River in the City of Dunellon.

The trial court found from the evidence that appellees Jean F. Bravo and Raleigh J. Bravo owned seven lots and a portion of another in Block B of the subdivision on which they have their home and trailer park consisting of 21 rental trailer spaces and that their property has substantially decreased in value as a result of the closing of the road located on the northerly portion of Lot 11. The trial court further found that appellees Raymond Biederman and Dorothy Biederman own a lot in Block B of the subdivision on which their home is located and that their property has substantially decreased in value because of the closing of the road. In addition the trial court found that Jacob R. Bohannon and May R. Bohannon own a lot in Block B of the subdivision on which their home is located and that their property has substantially decreased in value because of the closing of the road.

The trial court further found that subsequent to the closing, appellants continued to provide access to Rainbow River to the general public during the hours of. 8 a.m. to 8 p.m. upon the payment of an admission fee of $.25 per person and $1 per boat; that appellees are denied access between the hours of 8 p.m. and 8 a.m. which they had prior to the barricading of the road. The limited access afforded by appellants is through the main gate of their recreation park.

Appellees contended below and contend here that they purchased their nonwater-front lots in the subdivision relying upon access to Rainbow River through the designated public road. The Bravos operate a trailer park and their revenue therefrom depends upon access to Rainbow River. The limitation of access imposed by appellants has effectively prevented their customers from launching their boats in the early morning hours for bass fishing and during the night hours for catfish fishing. The cutting off of their access to the river has damaged their business and reduced the value of their property.

Appellants contend that the closing of the road and limiting of access to the river through their park was within the scope of its plenary and home rule and police powers and that the rights of, and the injury to, the appellee landowners differed only in degree, but not in kind, from all other “back lot” owners along the west side of the Rainbow River. (But the proper question is whether or not the injury to appel-lees is different only in degree and not in kind from that sustained by the community at large.) Appellants presented testimony of problems which have developed on the river which they contend required the exercise of their regulatory power in closing the road and limiting access to the river through their recreation park. This evidence showed that floating or tubing parties have become more and more popular on the river; that large groups of young people enter the river at the recreation park and float down it on innertubes or other flotation rafts or devices, many of whom carry alcoholic beverages; that wild night drinking parties are carried on resulting in many complaints about rowdiness and drinking.

We are not concerned here with the validity of any regulations which appellants have adopted or may adopt restricting and controlling the use of the river itself. This suit only involves the closing of the public road in question to appellees, their invitees, successors and assigns.

Appellants rely upon Town of Atlantic Beach v. Oosterhoudt, 127 Fla. 159, 172 So. 687 (1937). There the legislature, by statute, had made the ocean beach a public highway in the Town of Atlantic Beach and the Town had, by ordinance, prohibited the use of the beach “with wagon, omnibus, automobile, or other motor propelled vehicle, from 3 to 7 p.m. on each weekday.” The legislature, in the act making the beach a public highway, gave the town council jurisdiction and control over it as though it was a public street in the town. In a later statute, the town council was given full and complete jurisdiction and control over all public or dedicated roads and streets in the town with authority to restrain and regulate their use and occupation to the end that the safety, comfort, and welfare of the public may be secured and preserved. Oos-terhoudt brought suit to restrain enforcement of the ordinance on the theory that the beach was a public highway and the town was without authority to restrict its use by motorists. An intervenor contended that he owned a large hotel facing the ocean at the beach within the protected zone and that his patrons were accustomed to using the beach as an approach to the hotel and that he was peculiarly damaged by the restriction forbidding its use for automobile traffic. The Supreme Court in its opinion pointed out that ordinances of municipalities, in the exercise of their police power to regulate traffic in the interest of life, limbs, health, comfort and quiet of the people, have generally been upheld even when so drastic that they extended to the exclusion of traffic by automobile from certain streets and highways. The court went on to say:

“If the pedestrian has a right on Atlantic Beach ‘equal to, if not superior to, that of the motorist,’ as we said, with miles and miles and miles of beach to motor on north and south and adjacent to the protected zone, it certainly cannot be unreasonable to close one short sector (about one mile) four hours in the afternoon and require the motorists to detour around it on good and ample highways while the pedestrian gets his bath and takes his siesta in the sand unmolested by the reflection that if he does not look both ways with both eyes at the same time and dodge while he looks, he may be stricken down and carried off the beach feet first.”

Unlike Town of Atlantic Beach, the problems of appellants are problems from activities on the river rather than on the road. If the problems were on the road, Town of Atlantic Beach would be applicable. Appellants closing the road shuts off appellees’ access to the river without disturbing the use of the river by persons who own property on the river. Thus, rather than bar all persons from the use of the river during the hours in which the access road has been closed, appellants’ action only bars appellees and others whose only means of access to the river is over the road.

As to appellant’s contention that the injury to appellees differs only in degree, but not in kind, from others who are also denied use of the road, the evidence is to the contrary. In Brooks-Garrison Hotel Corp. v. Sara Inv. Co., 61 So.2d 913 (Fla.1952), the Supreme Court held that a suit by an individual to enforce a private right- to use a public street must be based on a special and particular injury differing in kind as well as degree from that sustained by the community at large. There, the Supreme Court said:

“ . . . Under this rule, the grantee’s private right of user extends only to those streets and alleys shown on the plat as are reasonably or materially beneficial to the grantee and of which the deprivation would reduce the value of his lot.”

In the case sub judice the evidence shows, and the trial judge found, that the closing of the street reduced the value of appellees’ lots.

Affirmed.

BOYER, C. J., and GREEN, R. A., Jr., Associate Judge, concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In re the ESTATE of Lester WARTELS, Deceased. Tillie WARTELS, Appellant, v. Edmund S. WARTELS, Executor of the Estate of Lester Wartels, Appellee. Edmund S. WARTELS, Executor of the Estate of Lester Wartels, Appellant, v. Tillie WARTELS, Appellee.
    Nos. 75-1216 and 75-1956.
    District Court of Appeal of Florida, Third District.
    Sept. 14, 1976.
    Rehearing Denied Oct. 14, 1976.
    Sinclair, Louis & Siegel, Miami, for Edmund Wartels.
    Abramson, Scremin, Mendigutia & Lib-man, Miami, for Tillie S. Wartels.

      Before BARKDULL, C. J., and HENDRY and NATHAN, JJ.
   PER CURIAM.

Petitioner, Tillie Wartels, appeals from an order denying her homestead rights in the cooperative apartment of her deceased husband, Lester Wartels. Executor Edmund Wartels, appeals from a judgment on jury verdict awarding Tillie Wartels dower in the estate of Lester Wartels, notwithstanding an antenuptial agreement renouncing dower and homestead.

The primary question raised with reference to the dower rights of the widow is whether the court erred in granting the widow a jury trial under Section 733.-12(3)(a), Florida Statutes, without previously having made a non-jury determination of the validity of the antenuptial agreement, and if invalid, then rescinding and cancelling it; where, moreover, the allegations in the pleadings were not framed to try the validity of the antenuptial agreement, but the jury had to reach that question in order to award dower to the widow. We answer in the negative for two reasons. The first is based on the line of Florida cases which espouse the principle that the submission of questions of fact to a jury in cases involving equitable relief, which questions are traditionally within the province of the trial judge, is a matter within the discretion of the trial judge. Berg v. New York Life Insurance Company, 88 So.2d 915 (Fla.1956); St. Sophia Greek Orthodox Community v. Vamvaks, 213 So.2d 313 (Fla.App.3d 1968); Sanitary Linen Service Company v. Executive Uniform Rental, Inc., 270 So.2d 432 (Fla.App.3d 1972). No abuse of that discretion has been shown by the appellant herein.

The second reason is that the record demonstrates that the question of the validity of the antenuptial agreement was tried with the consent, express or implied, of the executor. Not only did the executor submit numerous proposed jury instructions relating to the antenuptial agreement, but also he failed to raise the issue of the propriety vel non of permitting the jury to hear the matter until some five months after the trial and jury verdict. Failure to amend the pleadings to conform to the evidence shall not affect the result of the trial of issues not raised by the pleadings but tried by express or implied consent of the parties. See Chandler v. Chandler, 330 So.2d 778 (Fla.App.1st 1976), and compare Alfred S. Austin Construction Company v. Namia, 220 So.2d 36 (Fla.App.2d 1969). Since the matter of the validity of the antenuptial agreement was litigated without objection by the executor, and with his express, or at least implied, consent, the final judgment should not be disturbed.

As another point on appeal, the executor argues that the trial court erred in failing to give several of his proposed instructions which were taken from the tests for determining the validity of antenuptial agreements as set out in Del Vecchio v. Del Vecchio, 143 So.2d 17 (Fla.1962). Settled law requires the trial court to fully and fairly instruct the jury on the issues in the cause, Ashland Oil, Inc. v. Pickard, 269 So.2d 714, 722 (Fla.App.3d 1972), and regarding the law applicable to the facts of the case. Stark v. Smith, 310 So.2d 334 (Fla.App.3d 1975). It is clear from the totality of the record on appeal in this case that the trial judge fully and fairly instructed the jury on the issues and on the applicable law, and no reversible error is shown in this regard.

At this juncture, then, having upheld the trial court’s judgment on dower, we must now reach the question of homestead. We are of the opinion that the trial court’s ruling was correct and that the widow is not entitled to homestead in the deceased’s cooperative apartment. The question of homestead in a cooperative apartment is one of first impression in Florida. The courts have not yet expressed a view as to the effect of recent changes in applicable constitutional and statutory provisions. As the owner of a cooperative apartment has only a stock interest in the corporation and not in the realty, the property is not subject to the law controlling descent of homesteads. Shares of stock in the cooperative apartment corporation would be subject to devise or devolution under general law and would not be within the general provisions of Art. X, § 4, of the Florida Constitution, restricting devise of a homestead under stated conditions. Opinion # 071-19 of the Attorney General of Florida, February 9, 1971. This does not conflict with the decision in Ammerman v. Markham, 222 So.2d 423 (Fla.1969), which provides that the homestead exemption is applicable to cooperative apartments solely for the purpose of taxation.

We regard the question of whether a cooperative apartment may be considered to be homestead property for the purpose of subjecting it to the Florida Statutes regulating the descent of homestead property, under the facts presented on this appeal, to be of such importance that it should be settled by the Supreme Court of Florida. Therefore, we have determined that the decision in this cause will be certified to the Supreme Court of Florida pursuant to the Florida Constitution, Art. V, § 3(b)(3).

Affirmed.

      . Section 733.12(3)(a), Florida Statutes, in effect until January 1, 1976, provided that the question of right of dower may be tried by a jury upon demand of a party.


author: HENDRY, Judge.

text:
    TRAVELCO OF FLORIDA, INC., d/b/a Fugazy International Travel, Appellant, v. Martin BURNETT, Appellee.
    No. 75-1221.
    District Court of Appeal of Florida, Third District.
    Sept. 14, 1976.
    Rehearing Denied Oct. 6, 1976.
    Steinberg & Neustein, Miami Beach, Richard J. Burton, Coral Gables, for appellant.
    Englander & Burnett, Miami Beach, for appellee.
    Before BARKDULL, C. J., and HENDRY and NATHAN, JJ.
   HENDRY, Judge.

Appellant, plaintiff below, appeals a final summary judgment entered by the trial court in favor of appellee, defendant below.

Appellant filed a complaint for damages against appellee who, subsequently, filed a motion for summary judgment. On July 5, 1975, the trial court granted appellee’s motion. From the final summary judgment, appellant appeals.

Among other points, appellant contends that it was a holder in due course, as defined in Section 673.305, Florida Statutes (1975), of certain negotiable instruments on which appellee was the maker. As such a holder in due course, appellant argues that, based on the facts of this case, it was free from the defenses of appellee in regard to the enforceability of the negotiable instruments, here checks, against him. See Section 673.305 Florida Statutes (1975).

In our opinion, at the time the trial court entered the final summary judgment, there existed a genuine issue of a material fact, i. e., whether or not appellant was a holder in due course of the negotiable instruments on which appellee was the maker. Therefore, it was improper for the trial court, at that stage in the proceedings, to enter a final summary judgment in favor of appellee. Fla.R.Civ.P. 1.510.

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 demonstrated. Therefore, for the reason stated and upon the authority cited, the final summary judgment appealed is reversed and remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.


text:
    Rodney VANCE, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1405.
    District Court of Appeal of Florida, Third District.
    Sept. 14, 1976.
    Rehearing Denied Oct. 6, 1976.
    Jack R. Nageley, Miami Beach, for appellant.
    Robert L. Shevin, Atty. Gen., and Linda C. Hertz, Asst. Atty. Gen., for appellee.
    Before BARKDULL, C. J., and HENDRY and NATHAN, JJ.
   PER CURIAM.

Affirmed on the authority of Chesebrough v. State, 255 So.2d 675 (Fla.1971); State v. Ashby, 245 So.2d 225 (Fla.1971); Beverly v. State, 322 So.2d 597 (Fla. 1st DCA 1975); State v. Vinson, 320 So.2d 50 (Fla.2d DCA 1975); and Giannetta v. State, 296 So.2d 654 (Fla.2d DCA 1974).


text:
    STATE of Florida, Appellant, v. Danny EVANS and William Beck, Appellees.
    Nos. 75-1758 to 75-1760 and 75-1922.
    District Court of Appeal of Florida, Fourth District.
    Sept. 17, 1976.
    Rehearing Denied Nov. 3, 1976.

      Robert L. Shevin, Atty. Gen., Tallahassee, and Harry M. Hipler, Asst. Atty. Gen., West Palm Beach, for appellant.
    I. Paul Mandelkern of Law Offices of James M. Russ, Orlando, for appellees.
   PER CURIAM.

Upon due consideration of the briefs, oral argument and records in these consolidated appeals we are of the opinion that the trial court misconceived the legal effect of the evidence in granting defendants’ motion for discharge predicated upon the applicability of the speedy trial rule (section 3.191(h)(2), Fla.R.Crim.P.).

In particular, the informations filed against defendants in Orange County were based on separate substantive acts independent of those offenses previously set forth in Seminole County informations and were not as a matter of law “grounded on the same conduct or criminal episode” within the contemplation of Rule 3.191(h)(2), Fla.R. Crim.P. See State v. Boren, 273 So.2d 415 (Fla.3d DCA 1973); see also State ex rel. Meyer v. Keough, 325 So.2d 75 (Fla.2d DCA 1976). Moreover, the record does not reflect that any of the substantive offenses alleged in the Orange County informations were either a direct or an indirect result of the conspiracy charged in the Seminole County information.

Simply stated, the Orange County infor-mations were based upon separate criminal conduct and episodes alleging arsons which occurred at different times involving different owners, different property and different victims from those set forth in the Seminole County informations; the Orange County informations did not as a matter of law charge “a new crime grounded on the same conduct or criminal episode” within the meaning and contemplation of Rule 3.191(h)(2), supra.

Accordingly, the orders granting the defendants’ motions for discharge in these consolidated appeals are vacated and set aside and the cause remanded for further proceedings consistent herewith.

MAGER, C. J., ALDERMAN, J., and WEAVER, SIDNEY M.; Associate Judge, concur.


author: CROSS, Judge.

text:
    Linda McCOY, Appellant, v. STATE of Florida, Appellee.
    No. 75-2280.
    District Court of Appeal of Florida, Fourth District.
    Sept. 17, 1976.
    Rehearing Denied Oct. 29, 1976.

      Marc L. Lubet, Orlando, for appellant.-
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie Bernard, Asst. Atty. Gen., West Palm Beach, for appellee.
   CROSS, Judge.

Appellant, Linda McCoy, appeals a judgment of guilty and imposition of sentence for the crime of perjury. We reverse.

We glean from the proceedings before the trial court that appellant on January 31, 1975 was subpoenaed to be and appear before the state attorney or his lawfully appointed assistant state attorney to testify as to any violations of the criminal laws upon which appellant might be interrogated. It further appears that pursuant to the subpoena, the appellant appeared before an assistant state attorney, was placed under oath, given immunity from any crime to which she testified and gave information. Prior to appellant’s interrogation, the court reporter informed the assistant state attorney that she could not stay and take a lengthy statement from the appellant as she had prior commitments that afternoon. The assistant state attorney then asked two Orlando police detectives, who were present, to take the appellant over to the Orlando Police Department and for them to take appellant’s statement in their office.

Appellant was then escorted by the Orlando police from the state attorney’s office over to the Orlando Police Department, which was several blocks away. While at the Orlando Police Department, appellant was interrogated by the Orlando police officers without any further oath being administered. The statement given by the appellant was recorded by a mechanical device.

Subsequently thereafter, on February 28, 1975 appellant was subpoenaed by the Public Defender of Orange County, Florida, for the purpose of taking her deposition in a criminal proceeding in the Circuit Court of Orange County. After having been placed under oath, appellant made a statement as to certain burglaries she had knowledge of, and her knowledge of the participation of David S. Rohn and James Harold Rohn in the burglary in question.

On January 31, 1975, when questioned by the two Orlando police officers, appellant had stated that she had knowledge of a burglary at Bell Rental and Sales, Inc. at 5028 South Orange Avenue, Edgewood, Florida, that had occurred on November 28, 1974, and that the above named Rohn brothers had participated in that burglary. At the taking of appellant’s deposition on February 28,1975, appellant stated that she had no knowledge of the burglary at Bell Rental and Sales, Inc. on November 28, 1974, and that the Rohn brothers had not participated in that burglary.

Thereafter an information was filed, charging appellant with perjury by contradictory statements made under oath. Appellant by motion then moved to dismiss the information. The motion came on for hearing before the trial court, which motion was apparently treated by the trial court and the parties as a motion to dismiss, pursuant to Florida RCrP 3.190(c)(4), though not technically in compliance with Florida RCrP 3.190(c)(4). The trial court denied the motion to dismiss. Appellant then entered a plea of nolo contendere, reserving the right to appeal denial of the motion to dismiss. The trial court then adjudged appellant guilty of the crime of perjury by contradictory statements, and sentenced her to a term of years in the state prison. This appeal then followed.

Florida RCrP 3.190(c)(4) provides for dismissal of an information upon defendant’s motion when there are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant. Perjury by contradictory statements, as set forth by Section 837.021, Florida Statutes 1975, consists of two or more material statements being wilfully made under oath during one or more official proceedings which, in fact, contradict each other. Section 27.04, Florida Statutes 1975, provides that a state attorney may summon witnesses through the process of the court to appear before him to testify as to any violation of criminal law which he may be investigating, and he is authorized to administer oaths to such witnesses.

It is the process of the court which requires a witness to testify and not merely the directions or request of the county solicitor or state attorney. The state attorney is authorized to administer oaths to witnesses summoned to testify by the process of his court only for the purposes for which such witness is summoned by such process, as set forth in the process. When served with process or some valid order of the court, a person is not required to testify about other matters or before other courts, or the officers or agencies thereof, except those named in the process or court order. State ex rel. Stewart v. Coleman, 122 Fla. 368, 165 So. 272 (1936).

In the instant case appellant-defendant, Linda McCoy, was charged with perjury by contradictory-statements, one of which statements was made during interrogation by police officers without the presence of the state attorney or his assistant. An oath was properly administered by an assistant state attorney to appellant when she appeared to testify pursuant to a subpoena. Prior to interrogation, the assistant state attorney directed appellant to accompany two police officers to their office to take her statement; the assistant state attorney would not be present. The crime of perjury requires that appellant must have made contradictory statements under oath in an official proceeding. The assistant state attorney was authorized to administer an oath which applied to interrogation of appellant who was properly before him. Neither the statute nor court process empowered the assistant state attorney to administer an oath which would apply to testimony not before himself, but before police officers. It was the process of the court, the subpoena, which required the appellant to testify before the assistant state attorney and not his directions. A state attorney’s directions to give testimony while under oath in front of police officers is not unlike directions to testify before another court or governmental unit, which a state attorney clearly lacks power to do. Once the assistant state attorney varied considerably the directions of the subpoena and directed appellant to testify elsewhere, before persons other than himself, the appellant’s testimony is no longer validly under oath and is not of the character required for a prima facie case of the crime of perjury. The information upon which appellant was charged is based upon undisputed facts which do not establish a prima facie case of guilt against the appellant-defendant, Linda McCoy, sufficient to support the crime of perjury by contradictory statements. Thus was the error of the trial court in denying defendant’s motion to dismiss. The motion to dismiss the complaint should have been granted.

Accordingly, the judgment and sentence appealed is reversed and the cause remanded to the trial court to discharge Linda McCoy and to dismiss the information.

Reversed and remanded, with directions.

ALDERMAN, J., and CARLTON, CHARLES T., Associate Judge, concur.


text:
    Daniel J. SHEIL, Jr., and Carol Sheil, his wife, Appellants, v. LIBERTY MUTUAL INSURANCE COMPANY, etc., et al., Appellees.
    No. 75-1092.
    District Court of Appeal of Florida, Third District.
    Sept. 21, 1976.
    Rehearing Denied Nov. 1, 1976.
    Horton, Perse & Ginsberg, Brumer, Moss, Cohen & Rodgers, Miami, for appellants.
    Adams, George, Wood, Lee & Schulte, Magill & Sevier, Miami, for appellees.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

Affirmed. Hughes v. Miami Coca Cola Bottling Co., 155 Fla. 299, 19 So.2d 862 (1944); Millar v. Tropical Gables Corp., 99 So.2d 589 (Fla. 3rd DCA 1958); Tampa Drug Company v. Wait, 103 So.2d 603 (Fla. 1958); Warring v. Winn-Dixie Stores, Inc., 105 So.2d 915 (Fla. 3rd DCA 1958); Smith’s Bakery, Incorporated v. Jernigan, 134 So.2d 519 (Fla. 1st DCA 1961); Ford Motor Company v. Evancho, 327 So.2d 201 (Fla.1976); Prosser, Law of Torts, 646, 647, § 96, Ch. 17 (4th Ed.1971); Compare McCarthy v. Florida Ladder Company, 295 So.2d 707 (Fla. 2nd DCA 1974).


text:
    In re ESTATE of Beulah McCollum KING, Deceased. D. Lee POWELL, Appellant, v. Jackson L. KING et al., Appellees.
    No. 75-1157.
    District Court of Appeal of Florida, Third District.
    Sept. 21, 1976.
    Cypen & Nevins, and Steven Cypen, Miami Beach, for appellant.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and James E. Tribble, Trammell & Trammell, Miami, for appellees.
    Before PEARSON, HENDRY and HAV-ERFIELD, JJ.
   HENDRY, Judge.

Appellant, respondent and counterpeti-tioner below, appeals a final judgment of the trial court dated June 19, 1975, in favor of appellee, petitioner and counterrespon-dent below.

Through the efforts of appellant, a licensed real estate broker, Mrs. Beulah McCollum King entered into an option contract dated August 31, 1972, with Mr. Meyer Siegel for the sale of certain real property. On the same date, Mrs. King entered into a written agreement with appellant providing for the payment of a real estate brokerage commission for his services.

Pursuant to the terms of the option contract, Mrs. King received option payments of $50,000 and $30,000 from which appellant was paid $5,000 and $1,500, respectively, toward his total commission. The option contract provided that it could only be exercised by the optionee during the period commencing on the 181st day after the death of Mrs. King and ending on the 211th day after her death. The commission agreement with appellant provided for a total brokerage commission of $100,000 (to be reduced by the amount of any payments made out of the periodic option payments during Mrs. King’s life) to be paid when the option was exercised.

Mrs. King died on March 23, 1974. On April 2, 1974, notice to creditors was first published. Thereafter, by a letter dated June 20,1974, Mr. Siegel, the optionee, gave notice of his intention to exercise the option in accordance with the terms of the option contract. On August 19, 1974, the co-executors of the estate of Mrs. King filed their petition for authority to sell the real property pursuant to the option contract and to pay appellant his commission. Subsequently, the trial court entered an order dated August 16, 1974, authorizing the sale and the payment of appellant’s commission. Thereafter, on October 15, 1974, the co-executors petitioned the trial court to amend the August 16, 1974, order. This petition, as amended, sought, among other things, to eliminate the authorization to pay appellant the balance of his commission. Basically, the grounds for this petition were that appellant had not filed his claim for the commission within four months after the first publication of notice to creditors and, therefore, pursuant to Section 733.16, Florida Statutes (1974), the claim was barred. Appellant responded and counterpetitioned for his commission. On Juné 19, 1975, a final judgment was entered by the trial court granting the relief sought by the co-executors in their petition, as amended, and dismissing appellant’s counterpetition with prejudice.

Appellant contends on appeal that the trial court erred in finding and adjudging that he was not entitled to the balance of his commission. Basically, appellant argues that the claim for his commission is not barred by Section 733.16, Florida Statutes (1974).

Based on the facts of this case, in our opinion, appellant’s claim was not the type of contingent claim barred by Section 733.-16, Florida Statutes (1974), if not filed within four months from the time of the first publication of the notice to creditors. See Denco, Inc. v. Belk, 97 So.2d 261 (Fla.1957); and Section 733.16, Florida Statutes (1974). Further, in our opinion, the other conclusions of law set forth in the final judgment appealed denying appellant his commission are also without merit.

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 demonstrated. Therefore, for the reasons stated and upon the authorities cited, the final judgment appealed is reversed and remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.


text:
    Richard L. CICUREL, Appellant, v. Harry A. GALTON, Appellee.
    No. 75-1271.
    District Court of Appeal of Florida, Third District.
    Sept. 21, 1976.
    David Feldman, Miami Beach, for appellant.
    Walter S. Mackauf, Miami Beach, for ap-pellee.

      Before BARKDULL, C. J., and HENDRY and NATHAN, JJ.
   HENDRY, Judge.

Appellant, defendant below, appeals a summary judgment entered by the trial court in favor of appellee, plaintiff below.

Appellee filed a complaint, subsequently amended, against appellant seeking damages based on a foreign judgment dated January 11, 1961. Thereafter, appellant filed his answer and certain affirmative defenses. After both appellant and appel-lee filed motions for summary judgment, the trial court granted appellee’s motion. From this summary judgment, defendant appeals.

Appellant contends on appeal, among other points, that the summary judgment should be reversed because genuine issues of material facts remained unresolved at the time the judgment was granted. We agree with this contention.

Appellant’s first affirmative defense set forth that appellee’s claim, based on the foreign judgment, was barred by Section 95.11, Florida Statutes (1974), because the cause of action was not commenced within the seven year period allowed by the statute of limitations. However, Section 95.07, Florida Statutes (1974), provides that this seven year period will be tolled during any period of time, after a cause of action has accrued against a person, if he is out of the State of Florida.

Our review of the record indicates that, at the time the trial court entered summary judgment in favor of appellee, it was unclear as to what period of time appellant has been in the State of Florida. Therefore, this question presented a genuine issue of a material fact that was not sufficiently resolved to entitle appellee to a summary judgment. Fla.R.Civ.P. 1.510.

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 demonstrated. Therefore, for the reasons stated and upon the authority cited, the summary judgment appealed is reversed and remanded for further proceedings not inconsistent with this opinion. Reversed and remanded.


text:
    UNDERWRITERS NATIONAL ASSURANCE COMPANY, a Foreign Corporation, Appellant, v. Earle A. HARRISON, Appellee.
    No. 75-1312.
    District Court of Appeal of Florida, Third District.
    Sept. 21, 1976.
    Rehearing Denied Nov. 1, 1976.

      Fowler, White, Burnett, Hurley, Banick & Knight and A. Blackwell Stieglitz, Miami, for appellant.
    Bolles, Goodwin, Ryskamp & Welcher, Miami, for appellee.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

Appellant, defendant below, appeals a final judgment entered by the trial court pursuant to a jury verdict for appellee, plaintiff below.

Appellee filed a complaint against appellant seeking to recover benefits under a disability insurance policy and for attorney’s fees. Appellant denied that any benefits were due under the policy because it had been rescinded and because the contract was void by reason of certain material misrepresentations made by appellee in his application for the policy.

Subsequently, the case went to trial and, after appellant’s motions for a directed verdict were denied, the jury returned a verdict for appellee. Pursuant to this verdict, a final judgment, dated June 19, 1975, was entered in favor of appellee. From the judgment, appellant appeals.

Appellant contends that there was no competent substantial evidence adduced from which the court could have concluded that the misrepresentations made by appel-lee were not material to the risk accepted by appellant or that appellant did not rely substantially upon appellee’s representations in the application in executing the policy of insurance.

Appellee contends that the trial court acted with propriety by entering a final judgment upon the jury verdict and by denying appellant’s motions for a directed verdict and new trial because the questions of fact were properly submitted to the jiiry and no error was committed by denying appellant’s motions.

Appellant’s basic argument on appeal is that material misrepresentations were made by appellee in the application for the insurance policy and that, had it known of appellee’s prior medical history, it would not have issued the policy. Among other authorities, appellant cites Section 627.409, Florida Statutes (1975), in support of its position.

The general rule in Florida is that the answers given or the representations made by an insured on an application for insurance, when disputed, present questions of fact to be resolved by a jury. See, e. g., Hyman v. Life Insurance Company of North America, 481 F.2d 444 (5th Cir. 1973) (decided upon Florida law); Traveler's Insurance Company v. Zimmerman, 309 So.2d 569 (Fla.3d DCA 1975); and Lamm v. Prudential Insurance Company of America, 179 So.2d 238 (Fla.3d DCA 1965). This general rule is applicable to the instant appeal and the factual issues pertaining to appellee’s representations on the application for insurance were properly submitted to the jury for a determination.

Upon a defendant’s, here appellant, appeal from a final judgment based upon a jury verdict for a plaintiff, here appellee, all of the testimony and all proper inferences therefrom must be construed most favorably to the plaintiff. , See, e. g., Land v. Patroni, 214 So.2d 94 (Fla.1st DCA 1968); and F. W. Woolworth Co. v. Stevens, 154 So.2d 201 (Fla.3d DCA 1963). While an appellate court may not always agree with the conclusions of the jury from the conflicting evidentiary facts presented to it, the court is generally bound to affirm the jury’s determination, absent a clear showing that it is erroneous, when it is supported by sufficient competent evidence. See, e. g., Hartford Accident and Indemnity Co. v. Coloposcope of America, Inc., 308 So.2d 52 (Fla.3d DCA 1975); Miami Shores Village v. Lingler, 157 So.2d 716 (Fla.3d DCA 1963); and 2 Fla.Jur., Appeals §§ 308 and 346.

Although, in the instant case, if we had been sitting as jurors we might have decided the case differently, after a careful consideration of the record, all points in the briefs and arguments of counsel in the light of the controlling principles of law, we have concluded that no reversible error has been demonstrated. Therefore, for the reasons stated and upon the authorities cited, the final judgment appealed is affirmed.

Affirmed.


text:
    Vernon L. JONES, for the use and benefit of Jones Boat Yard, Inc., a Florida Corporation, Appellant, v. Cleveland H. JONES, Jr., et al., Appellees.
    No. 75-1761.
    District Court of Appeal of Florida, Third District.
    Sept. 21, 1976.
    McDonald & McDonald, Miami, for appellant.
    Milton M. Ferrell, Miami, for appellees.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

The plaintiff in a stockholder’s derivative action appeals a final judgment for the defendants. The basic finding of the trial court was that the plaintiff had, after a full trial, failed to show a misapplication of corporate funds. On this appeal, plaintiff argues that he did, in fact, prove a misapplication of corporate funds. The record contains evidence which, if believed by the trial judge, amply supports the court’s finding. Under such circumstances, it is not the function of an appellate court to retry the case. See Shaw v. Shaw, 334 So.2d 13 (Fla.1976); and Roberts v. South ern Farm Bureau Casualty Insurance Company, 215 So.2d 59 (Fla. 1st DCA 1968).

Affirmed.


text:
    Sorrell RIZZO, Appellant, v. STATE of Florida, Appellee.
    No. 75-1765.
    District Court of Appeal of Florida, Third District.
    Sept. 21, 1976.
    Melvyn Kessler, Miami, for appellant.
    Robert L. Shevin, Atty. Gen. and Ira M. Loewy, Asst. Atty. Gen., for appellee.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

Appellant, pursuant to plea negotiations with the State, withdrew her pleas of not guilty to count one of three informations and entered pleas of guilty to each of those counts which charged her with buying, receiving or concealing stolen property. She was sentenced to a term of three years in the State Penitentiary with credit for the six months time served in jail in the State of New York.

Appellant contends on appeal that the state breached its plea bargain agreement upon which the guilty pleas were entered.

We have carefully reviewed the record and considered the briefs of counsel and have concluded that appellant’s contentions are without merit. It clearly appears from the record that there was no breach of the plea bargain. No harmful error having been demonstrated the judgment and sentence are affirmed.

Affirmed.


text:
    Rudolph HINES, Appellant, v. The STATE of Florida, Appellee.
    No. 75-2021.
    District Court of Appeal of Florida, Third District.
    Sept. 21, 1976.
    Rudolph Hines, in pro. per.
    Robert L. Shevin, Atty. Gen. and Margarita Esquiroz, Asst. Atty. Gen., for appellee.
    Before PEARSON, HENDRY and HAV-ERFIELD, JJ.
   PER CURIAM.

Appellant was the movant in a motion for relief pursuant to Fla.R.Crim.P. 3.850. This appeal is from a denial of the motion. The sole ground for relief presented to the trial court was that upon appellant’s guilty pleas he was sentenced on two counts which were facets of the same transaction. Count one charged a breaking and entering of a dwelling with the intent to commit a felony. Count two charged an assault with intent to commit murder in the first degree. The offenses were clearly subject to separate sentences. See State v. Ray, 331 So.2d 316 (Fla.1976).

Affirmed.


text:
    John C. SPENCER and Virginia Q. Beverly et al., Appellants, v. AMERICAN ADVISORY CORP. et al., Appellees.
    No. 76-313.
    District Coúrt of Appeal of Florida, Third District.
    Sept. 21, 1976.
    Rehearing Denied Nov. 1, 1976.
    Snyder, Young, Stern, Barrett, Tannen-baum & Pallot, Miami, for appellants.
    Lapidus & Hollander, Friedman & Brit-ton, Adams, George, Wood, Lee & Schulte, Miami, for appellees.
    Before PEARSON, HENDRY and NATHAN, JJ.
   PER CURIAM.

This is an appeal from an order, entered after judgment and sale in a real estate mortgage foreclosure action, which denied plaintiff-appellant’s motion for a deficiency judgment and final judgment on the guaranty. We affirm.

The final judgment of foreclosure found that the plaintiffs were due $8,000,000.00 as principal, together with interest, attorney’s fees and costs. The plaintiffs purchased the property at the foreclosure sale for $8,000,000.00. No objection to the sale was made. The complaint had sought by a separate count to enforce a guaranty of payment of the indebtedness secured by the mortgage and the expenses of collection. After the sale, plaintiffs moved for the entry of “Deficiency Judgment and Final Judgment on the Guaranty.” The court permitted discovery and held a full eviden-tiary trial upon the issue of the value of the property obtained by the foreclosure of the mortgage. Thereafter, the court entered its order denying the motion upon the following finding:

“5. On November 21, 1975, this Court heard testimony for a full day on the issue of value. Three appraisers testified, two called by the Plaintiffs, and one by the mortgagor. Officials of the City of Miami testified. Based upon all of the testimony, including the testimony of Plaintiffs’ own appraisers, this Court finds as a matter of fact upon the evidence, that the fair market value of the property on the date of foreclosure, on the date of the foreclosure sale and on the date that the Clerk’s Deed issued was greatly in excess of the amount found due by the Final Decree of Foreclosure upon that property.”

This appeal is from that order. Three points have been presented. The first urges that the court should have granted the motion for a judgment on the guaranty because as a matter of law the value of the property obtained at a foreclosure sale does not affect the liability of the guarantors of a mortgage debt where the language of the guaranty unconditionally guarantees the full indebtedness of the borrower. It is urged that the measure of the guarantors’ liability becomes ascertainable immediately following the foreclosure sale.

We hold that the point does not present error because the indebtedness is paid by the foreclosure in which there is no deficiency. See cases collected at 38 Am. Jur.2d “Guaranty” § 51. There is sufficient evidence in the record to support the trial judge’s finding that: “. . . the fair market value of the property ... on the date of the foreclosure sale and on the date that the Clerk’s Deed issued was greatly in excess of the amount found due by the Final Decree of Foreclosure upon that property.” An appellate court will not substitute its judgment for that of a trier of fact when the finding of fact is supported by the record. Crosthwait v. Northern Trust Co., 144 Fla. 231, 197 So. 785 (1940).

Plaintiffs’ second point claims error upon the court’s denial of a deficiency judgment. It is argued that the amount bid at the sale established the value of the property foreclosed for the determination of the equities upon an application for a deficiency judgment. It is established that the sale price is one of the factors to be considered. See Section 45.031(7) Florida Statutes (1975); R. K. Cooper Construction Company v. Fulton, 216 So.2d 11 (Fla.1968); Kurkjian v. Fish Carburetor Corporation, 145 So.2d 523 (Fla. 1st DCA 1962). Where, as in the instant case, the court finds from all the evidence that the value of the property recovered exceeds the amount of the final judgment of foreclosure, a deficiency judgment may be denied based upon the equities involved. Cf. Jonas v. Bar-Jam Corp., 170 So.2d 479 (Fla. 3d DCA 1965); Maudo, Inc. v. Stein, 201 So.2d 821 (Fla. 3d DCA 1967).

■ Plaintiffs’ third point claims error upon the refusal of the court to accept into evidence a showing of the amount of the ad valorem assessment upon the property. Also included in the point are claims of error upon the limitation of cross-examination. We think that the court’s ruling upon the amount of the tax assessment is in accord with the holding in Southern Realty and Utilities Corp. v. Gettleman, 197 So.2d 30 (Fla. 3d DCA 1967). Even if this were not so, we would hold the error harmless in view of the extensive testimony of market value in this record. We have examined the record in the light of the other rulings argued under this point and find no reversible error.

Accordingly, the order appealed is affirmed.

Affirmed.


text:
    Milton E. STEINHARDT and Ester Steinhardt, his wife, Appellants, v. Betty D. LEHMAN et al., Appellees.
    No. 76-323.
    District Court of Appeal of Florida, Third District.
    Sept. 21, 1976.
    Rehearing Denied Nov. 1, 1976.
    Podhurst, Orseck & Parks, Miami, for appellants.
    Sinclair, Louis, Siegel & Heath, Miami, for appellees.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Defendant, Milton Steinhardt, appeals an order denying his motion for summary judgment in this action by his brother, sister and sister-in-law seeking an accounting and imposition of a constructive or resulting trust upon a family business entrusted to defendant’s management.

In 1935 Morris Steinhardt sold his oil business and entrusted the funds derived from the sale to his on Milton to invest in real estate. Following their father’s death, plaintiffs agreed that Milton should continue to manage the family real estate business and render an accounting to them from time to time. Milton amassed a large fortune and on numerous occasions over the years plaintiffs made demands for an accounting, but to no avail. Finally brother Arthur, sister Betty and brother Julius’ widow and children filed the instant action for an accounting to impress a constructive or resulting trust on the family business. Betty also alleged in the complaint that Milton had failed to abide by an agreement whereby both she and her husband were to receive 21/2% of the income derived from a 99-year ground lease at a certain condominium project developed by Milton, and title to one of the units in the complex. Milton’s motion to dismiss the action was denied whereupon he answered asserting the following affirmative defenses: statute of limitations, statute of frauds, lack of jurisdiction, res judicata, estoppel, laches, failure to state a cause of action, failure to join indispensable parties, failure to comply with the time requirements for asserting a claim against an estate, equitable estoppel and failure to set forth sufficient records for an accounting. Following extensive pre-trial discovery, Milton moved for summary judgment. The trial judge denied the motion and Milton appeals. We affirm.

The burden of proving the absence of a genuine issue of material fact is upon the party moving for summary judgment and until it is determined that the moving party has successfully met this burden, the opposing party is under no obligation to show that issues do remain to be tried. Holl v. Talcott, 191 So.2d 40 (Fla.1966). A review of the record reflects the existence of genuine issues of material fact and the trial judge was eminently correct in denying the motion for summary judgment.

Affirmed.

NATHAN, J., has participated in the decision but not in oral argument.


text:
    George R. PARKS, Jr., Appellant, v. RALSTON CONSTRUCTION CO., Appellee.
    No. 76-376.
    District Court of Appeal of Florida, Third District.
    Sept. 21, 1976.
    Jack R. Rice, Jr., Miami, Pilafian & Rice, for appellant.
    Joel L. Wertheim, Miami, for appellee.
    Before PEARSON, HENDRY and NATHAN, JJ.
   PER CURIAM.

Appellant, plaintiff below appeals from the entry of an order of the Circuit Court of Monroe County, which states:

“THIS CAUSE coming on to be heard upon defendant’s, RALSTON CONSTRUCTION CO., Motion to Set Aside Jury Verdict; Enter Judgment Non Ob-stante Veredicto For Defendant Or In The Alternative, Motion For New Trial, and the Court having heard the argument of counsel and being fully advised in the premises, it is
“ORDERED AND ADJUDGED that said Motion For New Trial is hereby granted on the ground that the plaintiff’s property was not damaged to the extent of the verdict, and not only was such verdict excessive, but it exceeded the amount requested by the plaintiff, and the verdict rendered herein and entered in the records of this Court is hereby vacated and set aside, and a new trial is hereby granted to the defendant unless plaintiff shall, within thirty (30) days from the date of this Order, enter and file a remittitur in the sum of Thirty Thousand and no/100 Dollars ($30,000.00), reducing the judgment that may be entered in this cause to the sum of Fifteen Thousand and no/100 Dollars ($15,000.00). It is further.
“ORDERED AND ADJUDGED that if the plaintiff shall, within the said thirty-day period, enter and file said remittitur, then in such event the defendant’s said Motion for New Trial shall, at the expiration of the thirty-day period, stand denied, and in that event final judgment in favor of the plaintiff and against the defendant shall-be entered in the sum of Fifteen Thousand and no/100 Dollars ($15,000.00).
“DONE AND ORDERED at Key West, Monroe County, Florida, this 2nd day of February, 1976.”

It is appellant’s main contention on appeal that the trial court erred in ordering a remittitur in the amount of Thirty Thousand Dollars ($30,000.00) thereby reducing the jury verdict from Forty-five Thousand Dollars ($45,000.00) to Fifteen Thousand Dollars ($15,000.00) and that the court erred in granting a new trial to the defendant on the question of liability. We find merit in both of these contentions.

We therefore reverse that part of the order that directs the plaintiff to enter a remittitur in the sum of Thirty Thousand Dollars ($30,000.00) and that part of the order that grants defendant a new trial on the question of liability. We hold that the order granting a new trial should have been limited to the question of damages. The cause is therefore remanded for a new trial on the issue of damages only. It appears that the question of liability is fully supported by the record and no error has been made to appear with respect to the liability of the defendant.

Affirmed in part and reversed in part.

      . See Clement v. Aztec Sales Inc., Fla.1975, 297 So.2d 1.


text:
    Wayne STEINBERG and Golda Steinberg, his wife, Appellants, v. CHARLES SALES CORP., a Florida Corporation, Appellee.
    No. 76-793.
    District Court of Appeal of Florida, Third District.
    Sept. 21, 1976.
    Rehearing Denied Nov. 1, 1976.
    Gars & Dixon, Miami, for appellants.
    Milton A. Fried, Miami, for appellee.
    Before BARKDULL, C. J., and PEARSON and NATHAN, JJ.
   PER CURIAM.

Affirmed. See City of Miami v. Dade County, 321 So.2d 140 (Fla. 3d DCA 1975).


text:
    Tony A. RAY, d/b/a Action Center Realty, Appellant, v. Marvin WEISMAN et al., Appellees.
    No. 75-1680.
    District Court of Appeal of Florida, Fourth District.
    Sept. 24, 1976.
    Rehearing Denied Oct. 29, 1976.
    Seymour Benson of Jacob & Benson, Orlando, for appellant.
    Michael R. Walsh, Orlando, for appellee Marvin Weisman.
   PER CURIAM.

This appeal is dismissed for lack of jurisdiction because the appellant failed timely to appeal from an order of July 30, 1975, which dismissed his complaint with prejudice and which, therefore, constituted an appealable final judgment against him.

DISMISSED.

DOWNEY, J., SCHWARTZ, ALAN R., and MORROW, RUSSELL 0., Associate Judges, concur.


text:
    Edward Robson DUBOCQ, Appellant, v. Joyce Ellen DUBOCQ, Appellee.
    No. 75-1282.
    District Court of Appeal of Florida, Third District.
    Sept. 24, 1976.
    Share & Tilson, Homestead, for appellant.
    Bernard A. Wieder, Miami Beach, for ap-pellee.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

The appellant seeks review of a final judgment of dissolution of marriage. He raises several points on appeal, none of which we find to have merit except that the trial court conditioned his temporary custody of the minor children as follows:

* * * * iff *
“ * * * Said temporary custody shall be terminated upon the Husband’s failure to comply with each and every provision of this Final Judgment of Dissolution.”
s{5 * sfc * * ♦

We find this provision to be error and modify said final judgment of dissolution by striking said provision. Howard v. Howard, 143 So.2d 502 (Fla. 3rd DCA 1962); Chaffin v. Grigsby, 293 So.2d 404 (Fla. 4th DCA 1974). In all other respects the final judgment is affirmed.

Affirmed as modified.


author: SMITH, Judge. FULLER, RICHARD S., Associate Judge

text:
    The FIRST NATIONAL BANK OF LAKE CITY, Appellant, v. ESTATE of Minnie S. YOUNG, Deceased, Appellee.
    No. Z-151.
    District Court of Appeal of Florida, First District.
    Sept. 28, 1976.
    Rehearing Denied Nov. 1, 1976.

      Wallace M. Jopling, of Jopling, Darby, Peele & Page, Lake City, for appellant.
    J. Klein Wigginton, of McClure, Wiggin-ton, Campbell & Owen, Tallahassee, and A. K. Black, Lake City, for appellee.
   SMITH, Judge.

The Bank, beneficiary of Minnie Young’s will, appeals from a trial court’s judgment which invalidates her bequest to the Bank of 20 shares of Bank stock. The trial court’s decision, holding in effect that the stock passes to residuary beneficiaries, is grounded on three stated conclusions: (1) that the testatrix did not intend to make “an outright gift to the Bank for the purpose of enhancing its capital structure, but for the restrictive purpose of providing a financial mechanism by which newly elected Directors of the Bank could meet the qualification requirements of the national banking code, 12 U.S.C. Sec. 72”; (2) that considered as a trust the bequest “clearly violates the rule against perpetuities” in that the ultimate beneficiaries are unidentifiable individuals in whom the corpus will not necessarily vest within the period of the rule; (3) that 12 U.S.C. § 83 prohibits the Bank from receiving and holding its own capital stock as an asset except in circumstances not here pertinent; and (4) that to regard the bequest as “an outright restricted gift” would tempt the Bank to violate 12 U.S.C. § 72 by selling the stock to a new director at a nominal price, to the prejudice of other stockholders and the Bank’s capital structure.

We have the view that this simple bequest may be effectuated. The testatrix, after bequeathing some of her Bank stock to Bank employees who befriended and assisted her during her life, bequeathed 20 shares of that stock to the Bank itself “that said stock may be sold at the direction of the President of the said Bank with the approval of the Directors to qualify a Director or Directors to serve said Bank.” The bequest was absolute and unrestricted except by the sensitivity of the Bank officers to the stated motives of the testatrix. The testatrix had no purpose to create a trust or to postpone the vesting of future interests in the stock; so her bequest should not be invalidated for its failure to satisfy rules pertaining to such matters. The circumstances here are entirely unlike those in In Re Estate of Stewart, 242 So.2d 781 (Fla.App. 4th, 1971), rev’d sub nom. Stewart v. Caldwell, 271 So.2d 754 (Fla.1973), relied on by the trial court, where the legatee was designated a “Trustee” and given a power of appointment, exercisable in the remote future, among an ill-defined class. The testatrix here envisioned no monetary or other benefit for the unnamed future directors to whom the stock' might be sold. She bequeathed both the stock and the benefit of it to the Bank, and her commendatory words concerning its sale to qualifying directors did not create a trust or otherwise charge the gift. Floyd v. Smith, 59 Fla. 485, 51 So. 537 (1910).

The National Bank Code provides:

“No association shall make any loan or discount on the security of the shares of its own capital stock, nor be the purchaser or holder of any such shares, unless such security or purchase shall be necessary to prevent loss upon a debt previously contracted in good faith; and stock so purchased or acquired shall, within six months from the time of its purchase, be sold or disposed of at public or private sale . . ..” 12 U.S.C. § 83 (emphasis added).

Neither the quoted statute nor the interpretative decision in Deitrick v. Greaney, 309 U.S. 190, 60 S.Ct. 480, 84 L.Ed. 694 (1940), relied on by the trial court, prohibits the Bank from acquiring and “holding” an outright bequest of its own capital stock. The statute prohibits only such “holding” of a bank’s own capital stock as results from the bank’s purchase or acquisition of a security interest in it. That interpretation seems required both by the text of the statute and by its title: “Loans on or purchases by bank of own stock.” 12 U.S.C. § 83. As the Supreme Court said in Dei-trick,

“The obvious purpose of prohibiting the purchase by a bank of its own stock is to prevent the impairment of its capital resources and the consequent injury to its creditors in the event of insolvency.” 309 U.S. at 195, 60 S.Ct. at 482, 84 L.Ed. at 698.

It is plain enough that Minnie Young’s bequest enhances and does not impair the Bank’s capital resources. As for the trial court’s apprehension that the Bank may underprice the stock in a qualifying sale to a new director, thus wasting assets and injuring other shareholders in violation of 12 U.S.C. § 72, the Bank’s sense of self-interest should sufficiently deter that improbable temptation. Failing that, the Comptroller of the Currency surely will. 12 U.S.C. § 161, et seq. In any event, the possibility that the Bank may misuse the bequest is no reason to cancel it.

REVERSED.

McCORD, Acting C. J., concurs.

FULLER, RICHARD S., Associate Judge, dissents.

FULLER, RICHARD S., Associate Judge

(dissenting).

I agree with the trial judge’s interpretation of the controlling law and the conclusions he has drawn therefrom, and accordingly must respectfully dissent from the majority.

      . “I give, bequeath and devise to The First National Bank of Lake City, Florida twenty (20) shares of stock in The First National Bank of Lake City, Florida, this bequest being made that said stock may be sold at the direction of the President of said Bank with the approval of the Directors to qualify a Director or Directors to serve said Bank.”


text:
    Earl Nathaniel GARRISON, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1052.
    District Court of Appeal of Florida, Third District.
    Sept. 28, 1976.
    Phillip A. Hubbart, Public Defender, and Harvey Robbins, Sp. Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Linda C. Hertz, Asst. Atty. Gen., for appellee.
    Before PEARSON, HENDRY and HAV-ERFIELD, JJ.
   PER CURIAM.

Appellant was found guilty of robbery by a jury, adjudged guilty and sentenced. On appeal, he urges that error was committed when the trial judge denied his “Motion to Suppress Lineup, Showup, Photograph, Other Pre-Trial Confrontation, and Courtroom Identification of the Defendant.” A review of the record shows that the identification of the defendant was clear and positive. It meets the test set forth in Neil v. Biggers, 409 U.S. 188, 98 S.Ct. 375, 34 L.Ed.2d 401 (1972). The judgment and sentence are affirmed. See Glas v. State, 329 So.2d 341 (Fla. 3d DCA 1976).

Affirmed.


text:
    Norman ABRAHAM, Appellant, v. Miriam ABRAHAM, Appellee.
    No. 75-1320.
    District Court of Appeal of Florida, Third District.
    Sept. 28, 1976.
    Pallot, Stern, Proby & Adkins, Miami, for appellant.
    Marks, Keith, Mack & Lewis, Miami, for appellee.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

Affirmed. See: Dinkel v. Dinkel, 322 So.2d 22 (Fla.1975); Huber v. Huber, 26 Ill.App.2d 207, 167 N.E.2d 431; People ex rel. Strauss v. Steindler, 223 App.Div. 230, 227 N.Y.S. 726; Anno. 88 A.L.R.2d 148. Compare Cortina v. Cortina, 108 So.2d 63 (Fla. 2nd DCA 1958); Rodgers v. Williamson, Tex.1973, 489 S.W.2d 558.


author: NATHAN, Judge.

text:
    Alfonso WILLIAMS, Appellant, v. LEATHERBY INSURANCE COMPANY, Appellee.
    No. 75-1598.
    District Court of Appeal of Florida, Third District.
    Sept. 28, 1976.

      Carl M. Sugarman, Miami, for appellant.
    Prunty, Ross, DeLoach & Olsen, Miami, for appellee.
    Before HENDRY and NATHAN, JJ., and SACK, MARTIN, Associate Judge.
   NATHAN, Judge.

Plaintiff, Alfonso Williams, appeals from a summary final judgment in favor of the defendant, Leatherby Insurance Company, in an action for personal injury protection benefits under a policy of insurance issued by Leatherby to plaintiff’s sister, Betty Jean Williams, under the Florida Automobile Reparations Reform (No-Fault Insurance) Act.

At all times material, Alfonso Williams was a resident of the household and resided with his sister, Betty Jean, who had no-fault insurance for her car. On December 2, 1974, Nandor Sechney gave Alfonso a station wagon to drive on an errand. An accident occurred, Alfonso was injured, and he incurred medical bills and lost wages. He filed suit seeking to recover personal injury protection benefits under his sister’s policy, under a provision allowing coverage for members of the insured’s household. The record reflects that at the time of the accident, Alfonso owned a 1968 Oldsmobile, registered in his name, but uninsured. More than two months before the accident, the transmission “gave out” and the car could not be driven. It was pushed to Alfonso’s mother’s house for storage, and was not repaired until after the accident.

Defendant Leatherby Insurance Company filed an answer to the complaint denying the plaintiff’s allegations and stating that the plaintiff is barred from recovering no-fault benefits under the policy of his sister, Betty Jean, since plaintiff himself was the owner of a motor vehicle with respect to which security is required under the Florida Automobile Reparations Reform Act. Both parties filed motions for summary judgment. The trial court granted summary judgment in favor of defendant Leatherby, and this appeal ensued.

The pivotal question is whether, under these facts, Section 627.733, Florida Statutes, requires security for a licensed and registered motor vehicle which is temporarily inoperable or in storage.

Section 627.733(1), entitled “Required Security,” states as follows:

“Every owner or registrant of a motor vehicle required to be registered and licensed in this state shall maintain security as required by subsection (3) of this section in effect continuously throughout the registration or licensing period.” (emphasis added)

The language of this section clearly states that security shall be maintained “continuously throughout the registration or licensing period,” and in our opinion means that the owner of an automobile is required to obtain security at the time of acquisition and to maintain coverage throughout the registration and licensing period. The record shows that plaintiff Alfonso Williams did not have such coverage, and did not obtain it until after the accident. The temporary immobility of his automobile should not eliminate his legal obligation as the owner, to obtain insurance prior to the car becoming disabled.

We recognize the apparent conflict between this holding and the recent decision of our sister court in Staley v. Florida Farm Bureau Mutual Insurance Company, 328 So.2d 241 (Fla.App. 1st 1976), but we reconcile the difference by virtue of the concurring opinion of Judge Smith as follows:

“I can readily conceive of circumstances in which a motor vehicle may be temporarily inoperable or in storage and yet still be subject to registration and licensing.”

The circumstances of this case are that Williams’ automobile had been continuously driven for almost a year prior to the accident, and it was licensed and registered at the time of the accident. The fact that it was temporarily immobile and inoperable has no effect on Section 627.733(1), Florida Statutes, or on the requirement for security under this set of facts.

Accordingly, there was no genuine issue of any material fact relating to liability, and defendant Leatherby was entitled to judgment as a matter of law. "

Affirmed.


text:
    Laurentino A. GARCIA, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1773.
    District Court of Appeal of Florida, Third District.
    Sept. 28, 1976.
    Phillip A. Hubbart, Public Defender and Paul Morris, Asst. Public Defender, for appellant.
    Robert L. Shevin, Attorney General and Joel D. Rosenblatt, Asst. Atty. Gen., for appellee.
    Before BARKDULL, C. J., and HAVER-FIELD and NATHAN, JJ.
   PER CURIAM.

Affirmed. See United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976) and McLendon v. State, 74 So.2d 656 (Fla.1954).


text:
    K. G., a juvenile, Appellant. v. The STATE of Florida, Appellee.
    No. 75-1951.
    District Court of Appeal of Florida, Third District.
    Sept. 28, 1976.

      Phillip A. Hubbart, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., for appellee.
    Before PEARSON, HENDRY and NATHAN, JJ.
   PER CURIAM.

The appellant, a fifteen year old juvenile, was charged in a petition for delinquency with creating a disturbance in a public place, two counts of assault and battery and resisting arrest. Following a hearing, the juvenile was found to have committed the acts charged, and was adjudicated delinquent and placed under the supervision of the Division of Youth Services. On appeal, the juvenile contends that the court erred in entering an adjudication of delinquency.

The record reflects that the juvenile was observed with several other young females speaking to the driver of an automobile which was stopped in the roadway. Police officers requested that the females leave the road and stand on the sidewalk. The juvenile complied, but uttered profanities. When she became boisterous and loud, she was arrested for “open profanity.” During the arrest, the juvenile struck one of the officers and bit the other.

The appellant urges that Section 877.03, Florida Statutes, entitled “Breach of the peace; disorderly conduct,” was unconstitutionally applied to the facts of this case. We do not agree. Generally, the utilization of expletives creating a mere annoyance does not come within the purview of the statute. See Gonzales v. City of Belle Glade, 287 So.2d 669, 670 (Fla.1973), and In re Fuller, 255 So.2d 1 (Fla.1971). However, as stated in Bradshaw v. State, 286 So.2d 4, 8 (Fla.1973), the atmosphere surrounding the incident is always relevant. There are certain exceptions, depending upon the circumstances, which, when coupled with the use of expletives will constitute a breach of the peace. Phillips v. State, 314 So.2d 619, 621 (Fla.4th DCA 1973).

The testimony of one of the officers was that during the incident, people were coming out of their houses and watching, and that others were stopping to assist the juvenile, and they too began yelling profanities at the officers. In our opinion, the actions of the juvenile were of such a nature as to create a disturbance which affected the peace and quiet of persons witnessing the incident, and were in violation of Section 877.03, Florida Statutes. Therefore, we find that the statute was constitutionally applied to the facts of this case, and we affirm the adjudication of delinquency on the charge of creating a disturbance in a public place.

Based on the foregoing, it follows logically that the actions of the juvenile in biting and striking the arresting officers and in obstructing the execution of their legal duty, should result in an affirmance of the adjudication of delinquency on the two counts of assault and battery, and on the count of resisting arrest. Had the arrest not been valid, the juvenile would still not have been justified in violently resisting arrest. Section 776.051(1), Florida Statutes, provides that a person is not justified in the use of force to resist an arrest by a law enforcement officer who is known, or reasonably appears, to be a law enforcement officer. As stated in Rosenberg v. State, 264 So.2d 68 (Fla.4th DCA 1972), assuming an appellant was innocent of the misdemeanor for which he was arrested, such charge is a matter properly to be dealt with in a court of law. The determination to conduct one’s defense “then and there at the scene of arrest with a crude type of ‘trial by wager of battle', while understandable as a natural impulsive reaction, nonetheless simply cannot be condoned.” Rosenberg, supra, at page 69. Also see Clarke v. State, 303 So.2d 35 (Fla.3d DCA 1974); State v. Byrne, 311 So.2d 764 (Fla.4th DCA 1975); Kaiser v. State, 328 So.2d 570 (Fla.3rd DCA 1976).

The remaining point on appeal is without merit and will not be discussed.

Affirmed.


text:
    ASSOCIATED MEDICAL INSTITUTIONS, INC., d/b/a Hialeah Hospital, Appellant, v. Joseph IMPERATORI, Personal Representative of the Estate of Infant Imperatori, for the use and benefit of said Estate, et al., Appellees.
    No. 76-550.
    District Court of Appeal of Florida, Third District.
    Sept. 28, 1976.
    Rehearing Denied Nov. 1, 1976.

      Preddy, Haddad, Kutner, Hardy & Josephs, Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O’Hara, Miami, for appellant.
    Beckham & McAliley and Carole A. Gard-iner, Miami, for appellees.
    Before BARKDULL, C. J., and HAVER-FIELD and NATHAN, JJ.
   PER CURIAM.

Defendant hospital appeals an order denying its motion to set aside default judgment.

In a wrongful death action a default was entered against Hialeah Hospital for failure to answer the complaint. The hospital filed a motion to set aside default stating that the failure to answer was due to excusable neglect and that it had “viable defenses.” Attached to the motion was Robert Trim-ble’s the hospital’s administrator, affidavit stating that while he was on vacation a copy of the complaint and summons was served upon his secretary, Miss Wong, who by mistake misfiled them in the “terminated case” file instead of the “pending case” file. The trial judge denied the motion for failure to show (1) the existence of meritorious defenses, and (2) a legal excuse for not filing a responsive pleading. The hospital then filed a motion for rehearing along with an answer containing affirmative defenses. Upon denial of this petition, the hospital perfected this interlocutory appeal.

When a defendant demonstrates that his neglect was excusable and he has a meritorious defense, a court will set aside the default for failure to file a responsive pleading so as to permit a determination of the controversy on the merits. Clark v. Roberto’s, Inc., 320 So.2d 870 (Fla. 4th DCA 1975) and cases cited therein.

We find that the misfiling of the complaint and summons constitutes excusable neglect. See North Shore Hospital, Inc. v. Barber, 143 So.2d 849, 853 (Fla.1962).

Initially the motion to vacate default merely alleged that the hospital had “viable defenses” which was insufficient and, thus, the trial judge was correct in denying the motion for defendant’s failure to plead or present a meritorious defense. See North Shore Hospital, supra at 852.

However, the hospital did file an answer and affirmative defenses with its petition for rehearing and the judge erred in denying the petition. See Rubin v. Baker, 276 So.2d 532 (Fla. 3d DCA 1973).

Accordingly, the order denying the petition for rehearing is reversed and the cause is remanded to the trial court with directions to accept the hospital’s tendered answer and for further appropriate proceedings.

Reversed and remanded.


author: WALKER, WILLIAM L., Associate Judge.

text:
    STATE of Florida, Appellant, v. Norbert Lee BANDI, Appellee.
    No. 75-1420.
    District Court of Appeal of Florida, Fourth District.
    Oct. 8, 1976.

      Philip S. Shailer, State Atty., and Jon H. Gutmacher, Asst. State Atty., Fort Lauder-dale, for appellant.
    Glenn R. Roderman and Steadman Stahl, Jr., of Varón, Stahl & Kay, Hollywood, for appellee.
   WALKER, WILLIAM L., Associate Judge.

The State appeals the trial court’s Order granting defendant-appellant’s Motion to Dismiss.

The information alleged indecent assault on a nine year old between April 1, 1974, and February 16, 1975. A statement of particulars narrowed the date to a period of March 1 to June 1, 1974. At the hearing the State Attorney said he could not further refine the time span. The case was dismissed without prejudice.

Involved is F.R.Cr.P. 3.140(n):

“(n) Statement of Particulars. The Court, upon motion, shall order the prosecuting attorney to furnish a statement of particulars, when the indictment or information upon which the defendant is to be tried fails to inform the defendant of the particulars of the offense sufficiently to enable him to prepare his defense. Such statement of particulars shall specify as definitely as possible the place, date, and all other material facts of the crime charged that are specifically requested and are known to the prosecuting attorney, including the names of persons intended to be defrauded. Reasonable doubts concerning the construction of this rule shall be resolved in favor of the defendant.” (Emphasis added.)

Here involved is not the issue of granting a bill of particulars but the quality of compliance. It is not necessary that the exact date of the offense be alleged. See State v. Beamon, 298 So.2d 376 (Fla.1974). It is our opinion the State has complied with both the requirement of the bill and the requirement of due process. We do not believe the State has the burden of showing what it has done toward narrowing the time requirement. We are further of the opinion that the exact time is not an element of an offense and defendant can not so make it by presenting a “possible” defense of alibi.

See Sparks v. State, 273 So.2d 74 (Fla. 1973), at 75. See also, State v. Beamon, supra, at 379.

It has been held that an information or bill of particulars may properly charge the crime between two dates. See Skipper v. State, 114 Fla. 312, 153 So. 853 (1934) at 858, app. dismissed 293 U.S. 517, 55 S.Ct. 76, 79 L.Ed. 631 (1934).

Accordingly, the trial court’s order granting defendant’s motion to dismiss is vacated and set aside and the cause remanded to the trial court for further proceedings consistent herewith.

REVERSED AND REMANDED.

MAGER, C. J., and CROSS, J., concur.


author: SCHWARTZ, ALAN R., Associate Judge.

text:
    Wade M. MERRICK and Robert Fredrick Munday, Appellants, v. STATE of Florida, Appellee.
    Nos. 75-1560, 75-1645.
    District Court of Appeal of Florida, Fourth District.
    Oct. 8, 1976.
    Fred Haddad, of Sandstrom & Hodge, Fort Lauderdale, and Colin Guy, of Peter F. K. Baraban, North Miami, for appellants.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Harry M. Hipler, Asst. Atty. Gen., West Palm Beach, for appellee.
   SCHWARTZ, ALAN R., Associate Judge.

The defendants appeal from judgments of guilt and sentences for possession of cannabis. We reverse because the trial judge erroneously denied their motion to suppress the forty pounds of marijuana introduced against them.

Based upon what were concededly ample grounds to believe that contraband was contained in a separate cottage located some distance to the rear of a two-story, red and white house in Fort Lauderdale, police secured a search warrant which described the property in question only as a:

“. . . two story wood frame house, color red with white trim, located at 929 Northeast 16th Terrace, and the curtilage thereof . . . .”

The marijuana was in fact discovered, upon an execution of the warrant, in the residence located at the back of the described house.

It is apparent that the warrant did not adequately or sufficiently describe the premises which were searched and in which the cannabis was actually found. The entirely separate cottage in which these events occurred was not specified in the warrant and cannot properly be regarded as within the “curtilage” of the larger house which was described. State v. Gordillo, 245 So.2d 898 (3 DCA Fla.1971); Fance v. State, 207 So.2d 331 (3 DCA Fla.1968); Dunnavant v. State, 46 So.2d 871 (Fla.1950); Fla. Stat., Secs. 933.02, 933.18; cf. Joyner v. State, 303 So.2d 60 (1 DCA Fla.1974).

On appeal, however, the state attempts to justify the search on grounds unrelated to the thus ineffective warrant. It claims that it was either undertaken incident to a valid arrest (the police, as they put it, “froze” the occupants of the larger house and did not permit them to leave that structure for an hour or more while waiting for the search warrant to arrive), or that it was a permissible “emergency search.” Neither contention may be accepted.

As to the former, we need not decide whether we agree with the Attorney General that reasonable cause existed for a war-rantless arrest of the defendants or with the police officers who were themselves unwilling to characterize their otherwise utterly unjustified “freeze” as an arrest at all because they felt they had no lawful basis for making one. This is so because, even if a valid arrest took place, the search of a building entirely separated from the one in which the persons arrested were being detained was plainly not properly incidental to it. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).

And a mere speculative claim, particularly one made only at the appellate level, that the contraband “might” have been removed if it had not been seized without a valid warrant, is just as plainly an insufficient basis upon which to justify the search as arising out of an “emergency” or from “exigent circumstances.” Hannigan v. State, 307 So.2d 850, 852 (1 DCA Fla.1975); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Since that is the only ground suggested for the state’s theory in this regard, this contention must be rejected as well.

REVERSED AND REMANDED, with directions to grant the motion to suppress.

DOWNEY, J., and MORROW, RUSSELL O., Associate Judge, concur.


text:
    D. A. D., INC., a Florida Corporation, and J. W. Dickson, Appellants, v. David BROWN and Essie Mae Brown, his wife, Appellees.
    No. 76-35.
    District Court of Appeal of Florida, Fourth District.
    Oct. 8, 1976.

      Norman F. Solomon, of Law Offices of Norman F. Solomon, Miami, for appellants.
    No appearance for appellees.
   PER CURIAM.

The order appealed from is affirmed. See Latin-American Bank v. Rogers, 87 Fla. 147, 99 So. 546, and Hartford Fire Insurance Co. v. Brown, 119 Fla. 610, 160 So. 657.

MAGER, C. J., and CROSS and DOW-NEY, JJ., concur.


author: DOWNEY, Judge.

text:
    SANTINI BROTHERS, INC., and Insurance Company of North America, Petitioners, v. Melvin GROVER et al., Respondents.
    No. 76-543.
    District Court of Appeal of Florida, Fourth District.
    Oct. 8, 1976.
    Frank E. Maloney, Jr., of Fleming, O’Bryan & Fleming, Fort Lauderdale, for petitioners.
    Steven R. Berger of Carey, Dwyer, Austin, Cole & Selwood, Miami, for respondents.
   DOWNEY, Judge.

Petitioner as a third party defendant in the trial court seeks review by certiorari of an order denying petitioner’s motion to dismiss the third party complaint.

We see no reason to grant the petition in this case and rule on the merits of the question presented unless we propose to allow certiorari review in every action formerly cognizable at law when a defendant is aggrieved by the trial court’s failure to grant a motion to dismiss the complaint. No one has yet demonstrated a valid reason for allowing interlocutory appeals in matters formerly cognizable in equity but refusing to allow such in law actions. But we have the rule and until changed it should be honored.

The cases are legion that hold that in actions formerly cognizable at law certiora-ri will be granted only in those cases in which it clearly appears that the trial court is acting in excess of its jurisdiction or where an interlocutory order does not conform to the essential requirements of law and to proceed without immediate review may reasonably cause material injury throughout the subsequent proceedings for which the remedy by appeal is inadequate. Wright v. Sterling Drugs, Inc., 287 So.2d 376 (Fla. 3 DCA 1973); Pullman Company v. Fleishel, 101 So.2d 188 (Fla. 1 DCA 1958). And it has long since been decided that having to experience the rigors and expense of a trial are not such material injury which cannot be remedied by plenary appeal. As this court stated in Siegel v. Abramowitz, 309 So.2d 234 (Fla. 4 DCA 1975):

“Petitioner contends that he will not have a full, adequate and complete remedy after final judgment because he will have gone through a trial under the burden of the order complained of, incur substantial expenses for experts, etc., and because resolution of the issue now on appeal might preclude the necessity of a second trial. To paraphrase petitioner’s argument, it would be expedient for this court to resolve the question now and save everyone a great deal of time and expense. On its face that is a very compelling argument! However, acceptance of such an argument would surely lead to a further inundation of the appellate courts of this state with petitions for certiorari in cases previously cognizable at law and would thereby create greater detriments than benefits to an already overloaded judicial system. One can hardly envision a case wherein the loser on an interlocutory motion would not feel an immediate appellate determination of the issue would facilitate the handling of the remainder of the case, and save time, effort and expense. For this reason such grounds constitute an insufficient basis for obtaining a writ of certiorari to review an interlocutory order in an action formerly cognizable at law. See Pullman Company v. Fleishel, Fla.App.1958, 101 So.2d 188.”

As we see it, this petition is but another example of an effort to review an interlocutory order in a law action, which review if successfully prosecuted would obviate the necessity of the petitioner contending further with this litigation, yet the same order could be adequately reviewed by an appeal from the final judgment if petitioner should be aggrieved thereby.

In fairness to petitioner it must be recognized that there seems to be a division- of authority on the question. Some courts holding such an order cannot be reviewed by certiorari, others holding certiorari will lie, and other courts holding both ways. In Patten v. Daoud, 152 Fla. 448, 12 So.2d 299 (1943), the Supreme Court denied certiorari to review a trial court order overruling a demurrer to a declaration in a law action. In The Pullman Company v. Fleishel, supra, the First District refused to grant certiorari to review an interlocutory order in a law action. But in Beta Eta House Corporation v. Gregory, 230 So.2d 495 (Fla. 1 DCA 1970), the same court granted certiorari review of an order denying a motion to dismiss a complaint in a law action. In the latter case the court reasoned that if the order in question was erroneous it would constitute a departure from the essential requirements of law. This court has on numerous occasions refused to grant certiorari to review such orders. Siegel v. Abramowitz, supra; Solitron Devices, Inc. v. Reiland, 311 So.2d 729 (Fla. 4th DCA 1975). But in Stuart v. Hertz Corporation, 302 So.2d 187 (Fla. DCA 1974), following Beta Eta House, supra, this court granted certiorari to review an order denying a motion to dismiss a third party complaint in an action formerly cognizable at law. I would distinguish Stuart v. Hertz Corporation, supra, from Siegel and Soli-tron Devices on the basis that in Stuart this court found that the trial court’s denial of petitioner’s motion to dismiss the third party complaint “would cause material injury to the petitioner throughout the remainder of the proceedings from which there will be no adequate remedy by appeal.” The court did not articulate what that injury might be, and the writer is unable to envision any irreparable injury which would befall the petitioner. However, that was the holding of the court in that case. In Siegel and Solitron Devices, on the other hand, we denied certiorari because it was clear to us that no material injury would inure to the petitioner which could not be remedied by plenary appeal.

For the reasons stated in Pullman, Siegel, and Solitron it is our view that we should once again exercise our discretion to deny the petition for writ of certiorari.

Accordingly, for the foregoing reasons the petition for writ of certiorari is

DENIED.

CROSS and ALDERMAN, JJ., concur.


author: PER CURIAM. MAGER, C. J.,

text:
    Mabbie IGLEHEART, Petitioner, v. Muriel JAYNE, Respondent.
    No. 76-763.
    District Court of Appeal of Florida, Fourth District.
    Oct. 8, 1976.
    Rehearing Denied Oct. 29, 1976.
    Arthur M. Wolff of Wolff, Gora & Panza, Fort Lauderdale, for petitioner.
    Muriel Jayne, in pro. per.
   PER CURIAM.

Certiorari denied.

CROSS and ALDERMAN, JJ., concur.

MAGER, C. J., dissents, with opinion.

MAGER, C. J.,

dissenting:

In my opinion, the denial of petitioner’s motion for relief from final judgment pursuant to rule 1.540(b), Fla.R.Civ.P., constitutes a departure from the essential requirements of law for which certiorari should lie. White v. Spears (Fla. 3d DCA 1960), 123 So.2d 689.

The cases are legion for the proposition that if there is any reasonable doubt in the matter of vacating a default, it should be resolved in favor of granting the application and permitting a trial on the merits of the case. North Shore Hospital, Inc. v. Barber, 143 So.2d 849 (Fla.1962); Kern v. Kern, 291 So.2d 210 (Fla. 4th DCA 1974).

In my view, there is sufficient evidence in the record demonstrating mistake, inadvertence or an excusable neglect within the contemplation of Rule 1.540(b), supra. Although it is recognized that a motion to vacate is addressed to the sound discretion of the trial court, the circumstances indicate, most respectfully, that the motion herein should have been granted by the county court; having so failed to do such order should have been reversed by the circuit court sitting in its appellate capacity-

Based upon the policy of leniency and liberality in setting aside defaults, it is my opinion that certiorari should be granted and the lower court’s decision vacated and set aside with directions to the trial court to allow a hearing on the merits of the case.


text:
    STATE of Florida, Appellant, v. Donald Jeffery FARRINGTON, Appellee.
    No. 76-1201.
    District Court of Appeal of Florida, Fourth District.
    Oct. 8, 1976.

      David H. Bludworth, State Atty., and John Scarola, Asst. State Atty., West Palm Beach, for appellant.
    J. Brian Brennan, West Palm Beach, for appellee.
   PER CURIAM.

Upon review of the briefs and record on appeal we are of the opinion that the facts' and circumstances of this case are controlled by this court’s decision in State v. Yenke, 288 So.2d 531 (Fla. 4th DCA 1974); and accordingly the trial court erred in granting appellee-defendant’s motion to suppress. In particular, the extensive findings of fact set forth in the trial court’s amended order clearly reflect actual physical possession of the marijuana (by Officer Warmack) at the time of the unannounced entry of the police officers as in State v. Yenke, supra, and unlike State v. Roman, 309 So.2d 12 (Fla. 4th DCA 1975). Accordingly, the amended order is vacated and set aside and the cause remanded for further proceedings consistent herewith.

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


author: GRIMES, Acting Chief Judge.

text:
    Kenneth HEMMERLE et al., Appellants, v. FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF DESOTO COUNTY, a Banking Corp., et al., Appellees.
    Nos. 76-62 to 76-64.
    District Court of Appeal of Florida, Second District.
    Oct. 8, 1976.

      Nancy Little Hoffman, of Druck, Grim-mett, Norman, Weaver & Scherer, and Carl J. Zarcone, Fort Lauderdale, for appellants.
    David C. Holloman, Arcadia, for appellee First Federal.
   GRIMES, Acting Chief Judge.

This is an appeal from a judgment of mortgage foreclosure.

The appellants/lot owners borrowed money from the appellee/lender for the purpose of building homes on their properties. Incident to the loan, they signed promissory notes secured by mortgages on their lots and also construction loan agreements. The notes went into default before the construction was completed, and foreclosure proceedings were commenced. A number of materialmen who had filed mechanics’ liens were also joined as party defendants. The cases were consolidated for trial. During the course of the proceedings, the lender obtained an order permitting it to expend undisbursed loan funds for the completion of construction pursuant to the plans and specifications. However, by the time of foreclosure the homes were still unfinished and the lender still retained un-disbursed loan funds. Nevertheless, the mortgages were foreclosed at the face amount of the notes. The amount of the foreclosure judgment and the undisbursed loan funds with respect to each lot are set forth below:

FORECLOSURE UNDISBURSED
LOT JUDGMENT LOAN FUNDS
No. 27 $51,392.49 $ 6,316.03
No. 28 $52,678.29 $ 6,584.26
No. 29 $71,782.70 $23,654.48

At the time of the foreclosure hearing, the court, with the concurrence of the parties, deferred adjudication on the validity of the claims of lien because it was conceded that even if valid these lien claims were inferior-to the liens of the mortgages. It was felt that unless the foreclosure sales brought a surplus from which the lien claimants might be satisfied, there would be no need to go to the trouble of litigating over the lien claims. The properties were ultimately bought by the lender at the foreclosure sales for a bid price which in each instance was approximately $1,000 less than the amounts of the foreclosure judgments.

The thrust of appellants’ arguments on this appeal is that the court erroneously entered foreclosure judgments predicated upon the face amount of the notes when, in fact, substantially less than these amounts had actually been advanced by the lender. We find the appellants’ contentions to be well taken.

Each of the construction loan agreements contained the following provision:

“3. That the Association may, at any time, without consent of the undersigned, if in its opinion it becomes necessary so to do, pay bills and/or complete said building or buildings in accordance with plans and specifications, etc., on file with it, using for such purposes, including therein the unexpended net proceeds of this loan, upon which funds the Association shall have a first lien for any one or more such purposes, but nothing herein contained shall be in any way construed as a covenant on the Association’s part to so pay or complete.”

This provision gave the lender the right to use the undisbursed loan funds to complete the houses. Pursuant to the court order, the lender had spent small amounts of money to this end, but by the time of the foreclosure, the houses were still unfinished and there were still substantial amounts of undisbursed loan funds.

The lender takes the position that it was entitled to foreclosure judgments based upon the total amount of the loan commitments as reflected by the promissory notes because it would have to complete the houses when it bid in the properties. The lender postulates that if there was any money left over after the houses were finished, this would then be divided among the successful lien claimants and the balances, if any, would go back to the property owners. All of this presupposes that the lender was the successful bidder. If the lender were not the successful bidder, it would be in the position of having a windfall unless the undisbursed loan funds were then transferred to the new bidder. While we have no doubt that this lender would follow through on its moral commitment, none of this is set forth in the final judgment.

The main vice in this procedure is that it had the potential of chilling the bidding at the foreclosure sale. Any outside bidders were faced with having to make a bid high enough to exceed the amount of the judgment which the lender could be expected to bid in. Yet, since the lender had never advanced the full amount of the monies upon which the judgment was based, the property had not been enhanced to the extent it should have been had the total loan been made, because the construction loan agreement required all advances to be incorporated into the property. By virtue of permitting a judgment to be entered upon the basis of an.amount in excess of the funds actually paid out by the lender, there was much less chance of having a surplus from the foreclosure sale, and since the landowners were disputing the validity of the lien claims, they had a legitimate interest in the creation of a surplus.

The foreclosure judgments were also in error in another respect. They included an award for the lender’s attorney’s fees, even though no testimony was taken concerning the amount of a reasonable fee, and there was no stipulation that a fee could be set in the absence of testimony. Nivens vNivens, 312 So.2d 201 (Fla.2d DCA 1975).

Accordingly, the foreclosure judgments and the sales must be set aside. At the new foreclosure hearing, the lender should submit an accounting of all funds expended by it to date for the construction of the homes. The foreclosure judgments should be based on the total of the monies actually advanced on the loan and properly expended by it toward construction. Then, if the lender is the successful bidder at the foreclosure sale, it will then have the balance of the undisbursed loan funds to assist in the completion of construction. If there is a surplus at the foreclosure sale, it can be divided among the successful lien claimants with the balance, if any, to be paid to the owners.

REVERSED.

SCHEB, J., and BENTLEY, E. RANDOLPH, JR., Associate Judge, concur.


text:
    James Earl EDWARDS, Appellant, v. STATE of Florida, Appellee.
    No. AA-166.
    District Court of Appeal of Florida, First District.
    Oct. 13, 1976.

      Richard W. Ervin, III, Public Defender; Louis Carres, Asst. Public Defender; and David J. Busch, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for appellee.
   McCORD, Judge.

Appellant was charged by the first count of an amended information with assault with intent to commit murder in the second degree and by the second count with possession of a weapon by a state prisoner. The jury returned a verdict of guilty to assault and battery under the first count and guilty under the second count. Appellant appeals the convictions. He contends that the evidence was insufficient to support his conviction of assault and battery in that the state failed to show that the victim had a well-founded fear of imminent violence; that his conviction of assault and battery must be reversed under the Supreme Court’s ruling in State v. White, 324 So.2d 630 (Fla.1975). The state in its brief agrees and we also agree. The evidence shows that the victim was stabbed in the back by appellant with a piece of broken bottle as he was leaving appellant’s prison cell. The victim did not see the weapon and, as far as is shown by the evidence, had no knowledge that he was about to be stabbed.

We have considered appellant’s contention with regard to his conviction of possession of a weapon by a state prisoner and find it to be without merit. That conviction is affirmed, but the conviction of assault and battery is reversed and this cause is remanded to the trial court with directions to enter a judgment of guilty to the lesser included offense under Count I of an attempt to commit assault and battery.

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