author: DOWNEY, Judge.

text:
    In re ESTATE of Parris JERRIDO, Deceased.
    Nos. 74-788, 74-1524.
    District Court of Appeal of Florida, Fourth District.
    Oct. 22, 1976.
    Rehearing Denied Dec. 14, 1976.

      Cecil T. Farrington, of Farrington & Far-rington, Fort Lauderdale, for appellant, Ruth Jerrido.
    Robert P. Kelley, of Redfearn & Simon, Miami, and Raleigh Rawls, Fort Lauder-dale, for Rebecca Smith, Administratrix, and G. H. Martin, Fort Lauderdale, Guardian Ad Litem for minor children, appellees.
    Alcee L. Hastings, Fort Lauderdale, for unknown heirs.
   DOWNEY, Judge.

We have for review two consolidated appeals arising out of the administration of the Estate of Parris Jerrido. The appellant in both cases is Ruth Jerrido, who claims to be the widow of the deceased by virtue of a common-law marriage. The appellees are Rebecca Smith, as administratrix of the Estate of Parris Jerrido, and G. H. Martin, as guardian ad litem of five children of Rebecca Smith who claim to be illegitimate children of the deceased.

Case No. 74-788 involves an appeal from an order dated May 15, 1974, wherein the trial court allowed the administratrix to pay $1,528.80 as administration expenses for a transcript of testimony and for an appraiser’s fee. We have considered appellant’s contentions and found them to be without merit.

Case No. 74-1524 is an appeal from an order entered October 7, 1974, determining that five children of Rebecca Smith are the children of Parris Jerrido and are entitled to inherit from his estate. Said order also confirmed a previous order of March 30, 1973, which determined that Ruth Jerrido is the widow of the deceased.

Appellees have cross-appealed from the order of October 7, 1974, assigning as error (a) the adjudication that Ruth Jerrido is the widow of Parris Jerrido, and (b) the revocation of letters of administration to Rebecca Smith and the issuance of letters of administration to Ruth Jerrido. Appellees also assign as error entry of the “interlocutory order dated March 30, 1973, in finding that Ruth Jerrido was the common-law wife of Parris Jerrido, deceased.”

The order of March 30, 1973, adjudicating appellant, Ruth Jerrido, to be the common-law wife of the deceased, determined Ruth Jerrido’s status relative to Par-ris Jerrido’s estate and was thus a final order subject to plenary appeal. Fla.R.P. & G.P. 5.100. Therefore, cross-appellants’ effort to have that question reviewed is untimely.

The issue before the trial court in Case No. 74-1524 was raised by petition to determine heirs and beneficiaries, filed by Rebecca Smith, as Administratrix, and the answer filed by appellant, Ruth Jerrido. The trial court found that the five children, Stephanie, Thomas, Debbie, Gwendolyn and Bernard, were the illegitimate children of Rebecca Smith and Parris Jerrido.

The evidence showed that Rebecca was married to Abraham Smith at the time the older three children were either born or conceived. Abraham divorced Rebecca in November 1958, and the youngest two children were conceived and born thereafter. Over objection, Rebecca was allowed to testify as to the non-access of her husband Abraham to her after the early part of 1954, the effect of which testimony was to bastardize the three oldest children. The general rule is that a mother is not competent to testify that her children, horn in wedlock, are actually illegitimate. Gossett v. Ullendorf, 114 Fla. 159, 154 So. 177 (1934); Kennelly v. Davis, 221 So.2d 415 (Fla.1969); Smith v. Wise, 234 So.2d 145 (3d DCA Fla.1970); Annot.—Rule as Regards Competency of Husband or Wife to Testify As To Nonaccess, 49 A.L.R.3d 212.

However, it appears to us that the Supreme Court has in effect changed that rule by holding that a woman who was married to one man when her children were born could sue another man to establish that the latter was the father of her children. Gammon v. Cobb, 335 So.2d 261 (Fla.1976). In view of the foregoing decision, Rebecca’s testimony as to the non-access of her husband was admissible.

Moreover, we find there was additional evidence to show that the five children in question were the illegitimate offspring of the deceased. Therefore, if the remaining proof meets the requirements of Section 731.29, Florida Statutes (1974), the five children, though illegitimate, are entitled to inherit from their father. Said statutory section provides:

“731.29 Illegitimate child as heir.
“(1) Every illegitimate child is an heir of his mother, and also of the person who, in writing, signed in the presence of a competent witness, acknowledges himself to be the father. Such illegitimate child shall inherit from his mother and also, when so recognized, from his father, in the same manner as if the child had been born in lawful wedlock. However, such illegitimate child does not represent his father or mother by inheriting any part of the estate of the parents’ kindred, either lineal or collateral, unless his parents have intermarried, in which event such illegitimate child shall be deemed legitimate for all purposes.”

This statute legitimatizing children is to be liberally construed to effectuate its purpose. In re Horne’s Estate, 149 Fla. 710, 7 So.2d 13 (1942); In re Estate of Hill, 294 So.2d 46 (3d DCA Fla.1974). And the written acknowledgment of parenthood need not assume any particular formality. In re Horne’s Estate, supra; Wall v. Altobello, 49 So.2d 532 (Fla.1950).

Appellant frames her last point on appeal as follows:

WERE PHOTO/COPIES OF LIFE INSURANCE APPLICATIONS SUFFICIENT ACKNOWLEDGMENTS OF PATERNITY TO ESTABLISH BASTARD HEIRSHIP OF DECEDENT UNDER § 731.29 F.S., WITHOUT EYE WITNESS TESTIMONY?

The applications in question upon acceptance by the life insurance carriers were incorporated into the policies the carriers issued and became part of those policies. Because of this incorporation, the applications became prima facie evidence of their own authenticity, including those portions of the applications bearing the signatures of witnesses. Section 671.202, Florida Statutes 1973. Appellant offered no evidence to show that Parris Jerrido had not signed the applications. Under these circumstances the trial court’s conclusion that the ap-pellees were Parris Jerrido’s offspring was proper. Cf. Locke v. Estate of Campbell, 305 So.2d 825 (1st DCA Fla.1975).

Accordingly we: (1) affirm the order of May 15,1974, which is the subject matter of Case No. 74-788; (2) affirm the order of October 7,1974, which is the subject matter of Case No. 74-1524, insofar as the appeal by Ruth Jerrido is concerned; (3) dismiss the portion of the cross-appeal concerning the status of Ruth Jerrido as Parris Jerri-do’s widow; and (4) affirm the order of October 7, 1974, insofar as the remaining point on cross-appeal is concerned.

MAGER, C. J., and BASKIN, NATALIE, Associate Judge, concur.

      . The legislature repealed this section, among others, in Chapter 74-106, Laws of Florida, effective July 1, 1975. However, Section 4 of Chapter 74-106 provides in material part that: “The substantive rights of all persons that have vested prior to July 1, 1975, shall be deter- • mined as provided in former chapters 731-737 and chapters 744-746, Florida Statutes, as they existed prior to July 1, 1975.”
      The decedent in this case died before July 1, 1975; so the substantive rights of the appel-lee’s offspring, vested (if at all) prior to July 1, 1975. Therefore § 731.29 applies to this case.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In re ESTATE of Michael R. BAKER, Deceased. Lois BAKER, Administratrix of the Estate of Michael R. Baker, Deceased, Appellant, v. Kathy BAKER, Appellee.
    No. 73-1444.
    District Court of Appeal of Florida, Third District.
    Oct. 26, 1976.
    Rehearing Denied Nov. 29, 1976.

      McCain & Browd, Miami, for appellant.
    Helliwell, Melrose & DeWolf and William E. Sadowski, Miami, for appellee.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

The appellant, Lois Baker, appeals from a final order granting a Petition for Removal of Administratrix entered by the Circuit Court, which removed her as administratrix of the estate of her deceased son, Michael R. Baker. The order, which is the principal object of this appeal, provides:

“This cause came on to be heard this date on petition for removal of administratrix and answer filed thereto, testimony having been heard and argument of counsel received it is the finding and order of this Court as follows:
Deceased, Michael R. Baker, died intestate in Dade County, Florida, on October 13, 1973. On October 15, 1973, his mother, Lois Baker, filed her petition for Letters of Administration and said Letters were granted to petitioner on the same day. The petition in part alleges as follows:
‘Second: That the said decedent left his surviving as next of kin and heirs at law the following:
“On November 1, 1973, the widow, Kathy Baker, filed her petition for removal of administratrix on the ground that the administratrix failed to issue citation to petitioner, as required under Section 732.-43, Florida Statutes 1971, and Rule 5.200, Florida Rules of Probate and Guardianship Procedure. Answer was filed to this petition by the administratrix. Adminis-tratrix also filed a motion to strike notice of hearing to remove administratrix.
“The Letters of Administration were granted by the undersigned Judge in the absence of The Honorable Frank B. Dowling in whose division this probate estate was assigned.
“On November 28, 1973, Judge Dowl-ing transferred this cause to the undersigned Judge for the reasons set forth in said order; consequently, on this date testimony was received and argument of counsel was heard.
“Section 732.43(3), Florida Statutes 1971, provides in part as follows:
‘ * * * before letters shall be granted to any person who is not entitled to preference, citation shall issue to all known persons qualified to act as administrator and entitled to preference over the person applying, unless those entitled to preference waive same in writing.’
Section 732.44 provides that the surviving spouse shall first be entitled to Letters.
“I find that citation was not issued or served on the surviving spouse in this cause, nor was there any waiver by the widow. Having failed to comply with this essential requirement, I find that the granting of the Letters of Administration to the administratrix, Lois Baker, was void, ab initio. See In re: Bush’s Estate, (Supreme Court 1955), 80 So.2d 673. It was verbally represented to the undersigned at the time the Letters were granted that the widow having been badly burned in an accident, which caused the death of her husband, was incapacitated and unable to act as administratrix; nevertheless, there is no explanation in the petition for letters attempting to justify or excuse the necessity for failure to serve citation in accordance with the statute.
“This Court was in error in granting the Letters of Administration on October 14, 1973.
“Argument was heard before this Court on the motion of the administratrix to strike notice of hearing to remove ad-ministratrix. This motion is denied.
“It is, accordingly,
ORDERED AND ADJUDGED as follows:
1. That the motion to strike notice of hearing to remove administratrix is hereby and herein denied.
2. The petition for removal of admin-istratrix is granted and that said Letters granted herein on October 15, 1973, are cancelled and rescinded and are void, ab initio.”

The appellant contends that the trial court erred in not granting her motion to strike the petition to remove her as admin-istratrix of her deceased son’s estate made at the end of the presentation of Kathy Baker’s case in that no evidence was proffered to show that a lawful marriage existed between Kathy and her son, Michael, at the time of Michael’s death. We hold that, upon the state of the pleadings before the trial judge, there was no question at issue as to a valid marriage between Michael Baker and Kathy Baker. The reason is that the appellant’s own Petition for Letters of Administration recited that “[K]athy Baker” was the “wife” ' of the decedent. Furthermore, the issue of Kathy’s marital status was not raised prior to the filing of the Petition for Removal. Cf. the general rule in Federated Mutual Hardware Ins. Co. v. Griffin, 237 So.2d 38 (Fla. 1st DCA 1970).

Appellant further claims that the court below erred in determining that the appointment of the appellant mother was void ab initio. We find that a voiding ab initio of the original issuance of the Letters was rightly based on the record as it stood at the time of their issuance. See In re Bush’s Estate, 80 So.2d 673 (Fla.1955), where the court held:

‡ $ # * * *
“The rights of the parties are determined at the time the Petition is filed, not by a subsequent waiver signed by Styles. Therefore, a serious and fatal omission had occurred at the time Sam Murrell, Jr., was appointed Administrator. The provisions of Subsection (3), Section 732.-43, supra, are mandatory, not permissive, and unless a citation is issued to those entitled to preference and whose whereabouts are known, the County Judge lacked an essential jurisdictional element over the person whose interest is affected.” 80 So.2d at p. 675.

Affirmed.

      . This cause returns for consideration by this court pursuant to an opinion and judgment of the Supreme Court of Florida filed February 5, 1976 (327 So.2d 205) quashing this court’s order dismissing this appeal, dated March 14, 1974 (292 So.2d 627).


text:
    Arthur JESTER, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1718.
    District Court of Appeal of Florida, Third District.
    Oct. 26, 1976.
    Rehearing Denied Nov. 29, 1976.

      Phillip A. Hubbart, Public Defender, Karen M. Gottlieb, Asst. Public Defender and James R. Wulchak, Legal Intern, for appellant.
    Robert L. Shevin, Atty. Gen., and Arthur Joel Berger, Asst. Atty. Gen., for appellee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Arthur Jester, defendant in the trial court, pled nolo contendere to an affidavit of violation of probation, and to a charge of possession of narcotics implements, reserving the right to appeal the denial of a motion to suppress. He was sentenced to six months in the Dade County Stockade on the violation of probation, and placed on probation for two years for the crime of possession of narcotics implements. The sole issue presented on this appeal is whether the trial court erred in denying the motion to suppress.

Generally, a trial court’s ruling on a motion to suppress comes to the appellate court with a presumption of correctness and, in testing the accuracy of the trial court’s conclusions, the appellate court should interpret the evidence and all reasonable inferences and deductions capable of being drawn therefrom in a light most favorable to sustain the trial court’s conclusion. Ponder v. State, 323 So.2d 296, 297 (Fla.3rd DCA 1975); Wigfall v. State, 323 So.2d 587 (Fla.3rd DCA 1975).

The record reflects that on the day in question, a City of Miami police officer encountered a lawfully parked automobile for the reason that it was a 1973 vehicle with a temporary license tag, and the police were . . having stolen cars with temporary tags. . . .” The officer asked the driver for identification, which was shown, and then asked the passenger, Arthur Jester, to produce his identification. When Jester failed to produce identification, the officer asked both men out of the car. As they were getting out, the officer walked around the car and noticed a balled up newspaper partially underneath Jester’s side of the car. Inspection revealed narcotics implements inside, and a red blood stain in the middle of the newspaper. The officer then placed Jester under arrest for possession of narcotics implements and asked him to roll up his sleeve, whereupon, the officer observed a “fresh track mark” on Jester’s arm.

On appeal Jester contends that the initial encounter by the officer with the car was unreasonable and unconstitutional, since the officer was not acting on probable cause: there was no indication that a crime had been committed in the vicinity; there was no reasonable indication that either the driver or Jester had committed, was committing or was about to commit a crime; Jester was merely seated in a lawfully parked car; and the officer was merely acting on suspicion of the temporary tag. Since the initial encounter was unjustified and unconstitutional, he argues, the subsequent detention, questioning, search and seizure were also unjustified and unconstitutional. He argues further that even had the initial identification check of the driver been lawful, the subsequent demand for identification of Jester, a passenger in the vehicle, was totally unjustifiable since the officer testified that he was satisfied with the driver’s identification. The ruling of the Florida Supreme Court in Bailey v. State, 319 So.2d 22, 26 (Fla.1975), supports this contention.

Although Jester’s position is a highly persuasive one, it is not determinative of this appeal, since the initial encounter in this case is not the test to use. The record reflects that the observation of the balled up newspaper while walking around the car gave the officer probable cause to detain Jester and inspect his arm, as he was lawfully in a position to see the newspaper. We therefore find merit in the State’s contention that the balled up newspaper containing the blood stain and the narcotics implements was in plain view lying partially underneath the car.

It is not a search to observe, and to seize what is so placed where it may be seen by a police officer who is where he has a legal right to be. State v. Ashby, 245 So.2d 225, 227 (Fla.1971); Atland v. State, 330 So.2d 85 (Fla. 1st DCA 1976). Observation by a police officer of an object in plain view when the officer has a legal right to be in the position to have that view is not a search and such object may be properly seized by the officer and introduced into evidence in a criminal proceeding. State v. Daniel, 319 So.2d 582, 583 (Fla.4th DCA 1975).

Having found ample evidence in the record to support the trial judge’s denial of the motion to suppress, we affirm.

Affirmed.


author: HOBSON, Acting Chief Judge.

text:
    R. J. WAMSER and Robert Wamser, a minor, by his next friend, R. J. Wamser, Appellants, v. CITY OF ST. PETERSBURG and Insurance Company of North America, Appellees.
    No. 75-1345.
    District Court of Appeal of Florida, Second District.
    Oct. 27, 1976.
    Rehearing Denied Dec. 9, 1976.

      John L. McFadyen, Lloyd & Henniger, St. Petersburg, for appellants.
    Michael S. Davis, St. Petersburg, for ap-pellees.
   HOBSON, Acting Chief Judge.

Robert Wamser, a minor, and his father sued the City of St. Petersburg and its insurance carrier for damages sustained by them as a result of a shark attack. The amended complaint alleged that Robert was severely injured when he was attacked by a shark while swimming in the waters of the Gulf of Mexico adjacent to a beach operated by the city on Treasure Island. Both parties moved for a summary judgment. The trial court granted defendants’ motion, holding that under the facts disclosed the city could not be held responsible as a tort-feasor for damages caused by a wild creature in its natural habitat.

The record, which was developed by extensive discovery procedure and affidavits, reflects that the attack occurred shortly after Mr. Wamser had joined Robert who was swimming about 25 feet from shore and approximately 15 to 20 feet north of the lifeguard stand. Before the attack the Wamsers were aware that there were sharks in the Gulf of Mexico, but had never heard that there were sharks at the city beach, nor had they received any specific warning that sharks inhabited the area directly around the beach.

The lifeguard on duty at the time of the attack had just received a report of a shark sighting south of the municipal beach and was going to investigate when he heard appellants’ screams. He helped pull the boy upon the sand, directed someone to call the rescue squad and requested the other lifeguard to apply a tourniquet to the boy’s leg. He then ordered all bathers out of the water.

There was no charge made by the city for the use of the beach. The District Recreation Supervisor for the city stated in his deposition that he had been connected with the city beach approximately 24 years and to his knowledge there had never been a shark attack at any of the city beaches in all those years. The two lifeguards, one of whom had worked at the beach for more than ten years, stated they had never seen a shark at the city beach. On several occasions they had received reports of sharks in the area but upon investigation, alleged shark sightings had proved to be sightings of porpoise.

In an affidavit submitted by appellants in support of their motion for summary judgment, a Marine Patrol captain of the Department of Natural Resources of Florida stated that prior to the attack in August, 1969, he had patrolled the waters along the beaches in the area and had observed that sharks inhabited the gulf waters off Treasure Island and that these sharks on occasion came within close proximity of the beach area at said location. In another affidavit filed by appellants, a commercial fisherman stated that he had observed sharks swimming up and down the beaches and sandbars in the waters adjacent to Treasure Island.

We have found no Florida case dealing with owners’ or possessors’ liability for injuries inflicted by wild animals in their natural habitat. The rule is that generally the law does not require the owner or possessor of land to anticipate the presence of or guard an invitee against harm from animals ferae naturae unless such owner or possessor has reduced the animals to possession, harbors such animals, or has introduced onto his premises wild animals not indigenous to the locality. Gowen v. Willenborg, Tex.Civ.App.1963, 366 S.W.2d 695; Williams v. Gibbs, 1971, 123 Ga.App. 677, 182 S.E.2d 164; Restatement of the Law of Torts, Ch. 20, § 508; 3A C.J.S. Animals § 174.

In the instant case there was nothing to indicate that the city had knowledge of a shark hazard. To the contrary, the record shows that the attack at a previously safe beach was unexpected. In the absence of reasonable foreseeability of the danger, there was no duty on the part of the city to guard an invitee against an attack by an animal ferae naturae, or to warn of such an occurrence. Williams v. Gibbs, supra; Rubenstein v. United States, N.D.Cal.1972, 338 F.Supp. 654; Cf. Claypool v. United States, S.D.Cal.1951, 98 F.Supp. 702. Nor was the city under a duty to obtain information from local agencies to determine the frequency with which sharks appeared in and around the beach area, since there was no attack on record in the history of the beach to indicate the necessity for obtaining such information.

The judgment appealed is AFFIRMED.

GRIMES and SCHEB, JJ., concur.


text:
    William E. MILES, Appellant, v. The STATE of Florida and the Honorable Ruhin O’D. Askew, Appellees.
    No. 75-1674.
    District Court of Appeal of Florida, Third District.
    Nov. 2, 1976.
    Rehearing Denied Nov. 24, 1976.

      Richard B. Marx, Miami, and Richard N. Krinzman, North Bay Village, for appellant.
    Richard E. Gerstein, State Atty., and John H. Lipinski, Asst. State Atty., for ap-pellees.
    Before HENDRY and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

This is an appeal by William E. Miles from an order discharging a petition for writ of habeas corpus from a rendition warrant issued by the Governor of the State of Florida for extradition to the State of California. *

William E. Miles was arrested in Dade County, Florida, on May 23, 1975, for a traffic infraction. Following a police check, Miles was taken into custody on the information that he was wanted for crimes allegedly committed in California. Miles was released on bond pending the issuance of a Governor’s warrant. On August 6, 1975, Miles was arrested pursuant to a Governor’s warrant which was defective in that it stated that Miles was wanted by the State of South Carolina. Subsequently, a second warrant was issued and Miles filed a petition for writ of habeas corpus alleging: that the application for requisition to the Governor of California was defective on its face in that it stated that Miles committed perjury in California on February 4, 1975, when, in fact, he was in Florida on and about that date; that the application for requisition to the Governor of California and its supporting papers were defective due to vagueness and lack of specificity, in that the requisition, complaint and affidavit fail to contain any information as to the caption, style or presiding judge of the California case in which Miles is alleged to have perjured himself; and that the affidavit filed in support of the complaint for perjury was at fatal variance with the complaint and did not support probable cause for the issuance of a warrant for the arrest of Miles for the crime of perjury. After oral argument, the trial judge denied the petition for writ of habeas corpus, and entered an order discharging the petition. This appeal ensued.

After having reviewed the briefs, the record and the points made by counsel at oral argument, we find that no error is shown on appeal. First, although the application for requisition states that the alleged perjury was committed on February 4,1975, the correct date, February 4, 1974, appears in several places in the record, and it is clear that this was merely a typographical error.

Second, Section 941.03, Florida Statutes (1975), provides in pertinent part:

. The indictment, information, or affidavit made before the magistrate must substantially charge the person demanded with having committed a crime under the law of that state; . (emphasis supplied)

Miles contends that the complaint is insufficient and fails to substantially charge a crime under applicable California law in that it fails to allege before whom the allegedly false oath was taken. We find this argument to be without merit as the complaint on its face states that he took

. an oath that he would testify truly before the Superior Court of the State of California in and for the County of Alameda, a competent tribunal, in a case in which an oath by law may be administered .

Neither do we find merit in the remaining point, that the complaint and its supporting affidavit fail to set forth probable cause. As stated in Kurtz v. State of Florida, 22 Fla. 36, 45, 1 Am.St.Rep. 173 (1886),

The courts in a Habeas Corpus proceeding of this kind, where the prisoner is arrested for extradition, cannot go into a trial of the merits of the cause. The proceeding is only an initiatory step to a trial in another State. As to the guilt of the prisoner, they are not allowed to inquire. Their judicial powers are limited to a determination on the sufficiency of the papers and the identity of the prisoner. . .

Affirmed.


author: NATHAN, Judge.

text:
    Julia E. PERRY, etc., et al., Appellants, v. KEY WEST STATE BANK, a Florida Banking Corporation, Appellee.
    No. 76-572.
    District Court of Appeal of Florida, Third District.
    Nov. 2, 1976.
    Rehearing Denied Dec. 3, 1976.
    Thompson, Wadsworth, Messer, Turner & Rhodes, Tallahassee, for appellants.
    Taylor, Brion, Buker & Green and Robert J. Paterno, Miami, for appellee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   NATHAN, Judge.

Appellants, defendants in the trial court, seek review by interlocutory appeal of an amended order denying their motion to dismiss plaintiff’s complaint or strike a portion thereof in a suit brought by plaintiff, Key West State Bank, to foreclose a mortgage on real property.

The sole point on appeal is whether the mortgage sought to be foreclosed was created for a term of more than five years, as contemplated by the Florida Balloon Mortgage Statute.

The complaint states that plaintiffs executed and delivered to plaintiff the mortgage and note on or about August 20,1973. The note, dated August 20, 1973, in pertinent part states:

“FOR VALUE RECEIVED, we promise to pay ... to the order of KEY WEST STATE BANK ... the principal sum of EIGHTY THOUSAND DOLLARS ($80,000.00) together with interest thereon at the rate of 8V2% per annum from date until fully paid, principal and interest payable in sixty (60) equal, consecutive monthly installments of NINE HUNDRED NINETY-ONE AND 92/100 DOLLARS ($991.92) each, and one (1) final installment of FORTY-EIGHT THOUSAND SIX HUNDRED EIGHTY-FIVE and 54/100 DOLLARS ($48,685.54) (each installment to be applied first to accrued interest with balance to reduction of principal), the first of said monthly installments of NINE HUNDRED NINETY-ONE AND 92/100 DOLLARS ($991.92) to become due and payable on the 25th day of September, 1973, and a similar installment to become due and payable on the 25th day of each and every calendar month thereafter until such principal sum and interest are paid in full by the payment of the final installment of FORTY EIGHT THOUSAND SIX HUNDRED EIGHTY-FIVE AND 54/100 DOLLARS ($48,685.54) on the 25th day of September, 1978.”

The complaint alleges that defendants defaulted under the terms of the mortgage by failing to make the payment due on October 25, 1974, and subsequent payments thereon. In response, defendants moved to strike plaintiff’s prayer for interest and attorney’s fees allegedly due, and further moved to have the complaint dismissed as premature on the ground that the mortgage was a “balloon- mortgage” which did not contain “the required stamped legend,” and that the maturity date should therefore be extended.

Florida Statutes § 697.05(2)(a) requires that “[ejvery mortgage in which the final payment or the balance due and payable upon maturity is greater than twice the amount of the regular monthly or periodic payment of the said mortgage” must have a printed or stamped legend in conspicuous type which states the final payment or amount due upon maturity. Section (2)(b) states that the legend is to appear on both the first page of the mortgage and immediately above the place for the mortgagor’s signature.

Florida Statutes § 697.05(3) & (4) provide penalties for failure of the mortgagee to comply with the mandatory provisions of the statute; the maturity date of the mortgage can be automatically extended and the entire interest charge forfeited. These provisions do not apply, however, where the mortgage falls within the exemption of Section 697.05(5)(c), which states that the section requirements concerning balloon mortgages do not apply to mortgages created “for a term of more than five years.”

We have not found any appellate decisions which address the question here involved. Defendants contend that the “term” of the mortgage must depend upon the pay-back arrangement, and that the “term” of the mortgage includes only the period over which regular payments are made, excluding the final balloon payment. If this rationale were applied to the instant case, it would result in a mortgage with a term commencing on September 26, 1973, and ending on August 25, 1978. Thus, the five year exemption would not apply. We cannot agree. Clearly, the most reasonable interpretation of the phrase “term” of the mortgage as used in Florida Statutes § 697.05(5)(c) is one which would exempt mortgages maturing more than five years from their date of execution and delivery. Using this construction of the statutory exemption, it may be seen that the final payment on the subject mortgage and note was due more than five years after execution and delivery thereof; the mortgage and note were dated and allegedly delivered on or about August 20, 1973, and by the terms of note, final payment will be due on September 25, 1978. Even if the balloon payment is not interpreted as part of the regular installment payments, the term of the mortgage is still more than five years, since the final regular payment is due on August 25th, which is more than five years from the date of execution and delivery. Hence, the trial court correctly denied defendant’s motion to dismiss and to strike.

Affirmed.

      . § 697.05, Fla.Stat. (1975).


text:
    Hazel Ruth SIMPSON, Appellant, v. Leonard Buford SIMPSON, Appellee.
    No. 75-1189.
    District Court of Appeal of Florida, Second District.
    Nov. 3, 1976
    Rehearing Denied Dec. 9, 1976.
    Ronald J. Hoffer, of Hoffer & Sheffey, Zephyrhills, for appellant.
    William F. Brewton, of Brewton & Council, Dade City, for appellee.
   PER CURIAM.

Appellant/wife timely appeals from an order dismissing her petition for dissolution of marriage. The trial court found that the wife had not resided in this state for six months immediately preceding the filing of her petition and that the appellee/husband was a resident of the State of Ohio.

The record on appeal does not include a transcript of the hearing on appellant’s petition. The record does include the statements made on February 20, 1976 by the trial judge who presided at that hearing stating his recollection of the testimony and findings of fact. The judge stated at that time that

[a]s a matter of law, I don’t think the husband and wife can live together and have — can maintain separate residences.

While this is a correct statement of the common law rule it is no longer the law in Florida, and the trial court applied an incorrect principle of law. Residence of a wife does not necessarily follow that of her husband but is to be determined according to the facts pertinent to her as an individual. See, e. g., Bowers v. Bowers, 287 So.2d 722 (Fla. 1st DCA 1973).

REVERSED and REMANDED for further appropriate proceedings.

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


author: ALDERMAN, Judge. MAGER, Chief Judge

text:
    Donald Dee FREDERICK, Appellant, v. STATE of Florida, Appellee.
    No. 75-1640.
    District Court of Appeal of Florida, Fourth District.
    Nov. 5, 1976.
    Rehearing Denied Dec. 14, 1976.
    Richard L. Jorandby, Public Defender, and Mitchell J. Beers, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Marsha G. Madorsky, Asst. Atty. Gen., West Palm Beach, for appellee.
   ALDERMAN, Judge.

Appellant had been placed on probation for the offense of breaking and entering with intent to commit a felony. His probation was subsequently revoked. The order of revocation of probation is now before the court for review.

Appellant was charged and found by the trial court to have violated the conditions of his probation in the following respect:

“Violation of Condition (h) which states, ‘Live and remain at liberty without violating any laws’, in that on 7-9-75, the aforesaid did admit to Mr. Charles L. Steen of the Florida Parole and Probation Commission, that he was arrested on 7-8-75 by the Orange County Sheriff’s Office for Breaking and Entering With Intent to Commit a Misdemeanor, he did, in fact, unlawfully gain entry to Pennington Grain and Seed Company and did, in fact, attempt to siphon gasoline from some of the company trucks.”

A careful reading of this allegation discloses that appellant was found to have violated his probation by making certain admissions to his probation officer, to wit: (1) that he had been arrested, (2) that he unlawfully gained entry to Pennington Grain and Seed Company, and (3) that he attempted to siphon gasoline from some of the company trucks. It should be noted that there is no allegation that appellant in fact committed any crime. Appellant’s alleged admissions to his probation officer may have been evidence of a crime but the admissions themselves do not constitute a crime.

As stated by this Court in Crum v. State, 286 So.2d 268 (Fla.4th DCA 1973) we do not know why appellant was not charged with the violations which apparently could have been so easily proven. However, fundamental due process requires that revocation of probation be based only on the violation alleged and after hearing. Crum v. State, supra, at 269. The alleged violation of probation for which appellant was found guilty is insufficient as a matter of law to justify a revocation of probation.

REVERSED.

CROSS, J., concurs.

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

MAGER, Chief Judge

(dissenting):

A review of the record of the proceedings below reflects a showing by the greater weight of the evidence of a substantial violation of the terms and conditions of probation giving rise to revocation and the correctness of the trial judge’s action in this regard. Singletary v. State, 290 So.2d 116 (Fla.4th DCA 1974)..

The appellant was charged with violating the condition of his probation that he “live and remain at liberty without violating any laws”. The evidence in the record reflects that the defendant, while in the company of two others, unlawfully gained entry to the premises in question in an attempt to siphon gasoline from some of the trucks located thereon and was subsequently arrested for and charged with breaking and entering with intent to commit a misdemean- or.

The fact that the amended affidavit of violation of probation reflected an “admission” by the appellant to his probation officer of the acts in question and that the subsequent probation hearing did not reflect evidence to support this “admission” was not dispositive of the issue of whether the terms of probation had been violated. As heretofore indicated, the condition of probation was that the defendant “[ljive and remain at liberty without violating any laws”. The evidence in the record of defendant’s prior relationship with the company whose premises was entered and the appellant’s prior relationship with the other participants in the unlawful entry was sufficient “to satisfy the conscience of the court” that the terms of defendant’s probation, i. e. “[l]ive and remain at liberty without violating any laws” were violated. Bowen v. State, 229 So.2d 272 (Fla.3d DCA 1969).

A review of the proceedings below as well as the record on appeal clearly indicates that the essence of the appellant’s position was the insufficiency of the evidence to support a finding of breaking and entering and the subsequent revocation of probation. The appellant did not, as the majority opinion seemingly has done, take issue with the sufficiency of the allegations of the amended affidavit; nor did appellant suggest a variance between what the amended affidavit alleged and what the evidence ultimately demonstrated. Cf. 17 Fla.Jur., Indictments and Informations, § 94. Defendant was charged with and put on notice of a violation of a condition of his probation; the fact that the state did not prove appellant’s “admissions” but, rather, presented other evidence the greater weight of which supported the occurrence of a substantial violation was more than enough to support and justify the trial court’s order of revocation.

Accordingly, I would affirm.


author: GRIMES, Judge.

text:
    Robert L. SHEVIN, Attorney General, Department of Legal Affairs, State of Florida, Petitioner, v. Lawrence I. THUOTTE and Phillip Shaw, d/b/a National Society of Published Poets, d/b/a Florida Society of Poets, d/b/a each of the Societies of Poets with any other state name preceding its Society designation, Respondents.
    No. 76-1408.
    District Court of Appeal of Florida, Second District.
    Nov. 5, 1976.
    Rehearing Denied Dec. 9, 1976.
    Robert L. Shevin, Atty. Gen., James D. Whisenand, Deputy Atty. Gen., and Martin S. Friedman, Asst. Atty. Gen., Tallahassee, for petitioner.
    No appearance for respondents.
   GRIMES, Judge.

The Attorney General has filed a petition for certiorari from an order temporarily enjoining him from taking certain action in relation to a suit he is prosecuting under Florida’s so-called “little FTC act.”

Pursuant to Chapter 501, Part II, Florida Statutes (1975), the petitioner representing the Department of Legal Affairs of the State of Florida brought a civil suit against the respondents charging them with conducting deceptive and unfair trade practices. The complaint alleged that the respondents, doing business as the Florida Society of Poets, ran advertisements in Florida newspapers advising that the Society was compiling a book of poetry and soliciting persons to submit poems to a selection committee for possible inclusion in the book. Would-be poets were later advised by mail that their poems had been selected for publication and that since the book was to consist only of poems of Society members it was necessary for the poets to send checks for $25 to cover membership in the Society. These letters indicated the book would be distributed statewide. After the poet became a Society member, he was then informed that the printing was about to take place but due to costs only the number of books presold would be printed. Therefore, each member was requested to prepay for all copies that he and his family and friends wanted.

The complaint asserted that the advertisements were deceptive in that there was no selection process and that virtually all submitted poems were accepted. There was no state Society, as such, nor were there any plans to actually market the book once it was printed. The complaint sought a variety of relief, including an injunction against deceptive advertising and an order requiring the offer of a refund to all persons who had become members of the Society-

Following a hearing, the court granted a temporary injunction against the respondents’ advertisements and also ordered a sequestration of the respondents’ assets pending a determination of the necessity of a refund. At the request of respondents, the court also entered a temporary injunction against the petitioner containing the following pertinent provisions:

“ORDERED AND ADJUDGED that the Plaintiff, ROBERT L. SHEVIN, Attorney General, Department of Legal Affairs, State of Florida, be and he is hereby enjoined and prohibited from disseminating defamatory literature, comments and remarks, and press releases concerning the Defendants until further Order of this Court. It is further
“ORDERED AND ADJUDGED that the Plaintiff, ROBERT L. SHEVIN, Attorney General, be and he is hereby enjoined from soliciting through press releases, literature and news media, or by any other means, members of the public to step forward and make complaints about the Defendant organization.”

The petition for certiorari is directed to the legality of these adjudications.

At the outset, we note that the record before us is exceedingly sparse, consisting only of copies of the complaint, the order for temporary injunction and sequestration of assets against the respondents and the temporary injunction to which this petition is directed. The temporary injunction states that testimony was taken, but we have none before us. We have not been favored with a brief on behalf of the respondents. At the request of the petitioner, the disposition of this case has been expedited.

Though the first-quoted paragraph of the injunction is susceptible of the interpretation that the word “defamatory” modifies only the word “literature,” we interpret it to mean that the only information which the petitioner is prohibited from disseminating about the respondents is defamatory information, regardless of its form. We doubt that the court could constitutionally restrain the petitioner from making public comments about the activities of his office as they relate to the respondents or from discussing the nature of the case. See Nebraska Press Ass’n v. Stuart, - U.S. -, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976). Clearly, there is nothing in this order which would prevent the petitioner from issuing general warnings concerning promotions of this kind which may have the effect of misleading the public.

We are confident that the petitioner has no intention to issue defamatory statements about the respondents. Yet, on the state of this record we cannot say that the court departed from the essential requirements of law by enjoining him from issuing statements of this type. It must be remembered that the Attorney General is at the same time both a party and an attorney in this proceeding. Therefore, the following statement by our Supreme Court in State of Florida ex rel. Miami Herald Publishing Company v. McIntosh, 340 So.2d 904 (Fla.1976) (Case No. 48,264, opinion filed July 30, 1976), which was a case involving a prior restraint against the press, is apropos:

“Limitations placed upon lawyers, litigants and officials directly affected by court proceedings may be made at the court’s discretion for good cause to assure fair trials. Muzzling lawyers who may wish to make public statements to gain public sentiment for their clients has long been recognized as within the court’s inherent power to control professional conduct. The constant spotlight of public attention focused upon public officials during litigation makes it imperative that they be more subject to judicial restrictions against inflammatory and prejudicial statements than other persons.

On the other hand, we must agree with the petitioner that the second-quoted paragraph of the injunction has the practical effect of enjoining him from lawfully performing certain of his statutory and constitutional duties. The petitioner has been designated by the Florida Legislature as the state official responsible for enforcing the little FTC act. Section 501.207, Florida Statutes (1975) authorizes him to bring an action on behalf of all consumers for damages caused by acts or practices performed in violation of the act. It has been said that the drafters of the act intended to place emphasis on civil enforcement because of the problems inherent in proving criminal intent on the part of those engaged in deceptive or unfair trade practices. See Department of Legal Affairs v. Roger, 329 So.2d 257 (Fla.1976).

At some point it may become necessary to ascertain the identity of all those who were induced to join the Florida Society of Poets in order to provide them with the right to a refund. In the meantime, a prohibition against seeking to find persons who submitted their poems or joined the Society could have the effect of hampering the petitioner in proving the gravamen of his complaint. At the trial witnesses will be required, and we know of no prohibition against a party or an attorney advertising for persons who may have knowledge of facts pertinent to his case.

Accordingly, the petition for certiorari is granted to the extent that the second-quoted paragraph of the injunctive order is hereby quashed.

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


text:
    John J. TIMMINS, etc., Appellants, v. GORE NEWSPAPERS COMPANY, etc., Appellees.
    Nos. 75-486 and 75-883.
    District Court of Appeal of Florida, Fourth District.
    Nov. 5, 1976.
    Rehearing Denied Dec. 14, 1976.
    John J. Timmins, in pro. per.
    Paul R. Regensdorf, Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellee Gore Newspapers.
   ON REHEARING

PER CURIAM.

Upon consideration of appellee’s petition for rehearing and further review of the record on appeal we are of the view that the order dismissing count one of appellant’s amended complaint with prejudice for failure to state a cause of action was improvidently reversed. The instant allegation of libel is based upon the republication of a photograph which already has been found by this court to be not libelous. Timmins v. Gore Newspapers Company, 267 So.2d 891 (Fla. 4th DCA 1972). The doctrine of estoppel by judgment therefore precludes appellant from further litigating the issue. E. g., Shearn v. Orlando Funeral Home, 88 So.2d 591 (Fla.1956).

Accordingly, the opinion filed by this court on August 31, 1976 is vacated and withdrawn and the appealed order is affirmed.

AFFIRMED.

MAGER, C. J., and TROWBRIDGE, C. PFEIFFER, Associate Judge, concur.

CROSS, J., dissents.


author: PER CURIAM. MILLS, Judge,

text:
    Boggan R. WRIGHT, Appellant, v. Ouida WRIGHT, Appellee.
    No. Z-426.
    District Court of Appeal of Florida, First District.
    Nov. 9, 1976.
    Rehearing Denied Dec. 9, 1976.
    Joe J. Harrell, of Harrell, Wiltshire, Stone & Swearingen, Pensacola, for appellant.
    David H. Levin, of Levin, Warfield, Mid-dlebrooks, Graff, Mabie, Rosenbloum & Ma-gie, Pensacola, for appellee.
   PER CURIAM.

That portion of the final judgment which awards to appellee $1,000.00 on account of & reasonable fee for the services of her attorney is vacated. Spears v. Spears, 311 So.2d 397 (Fla.App. 4th, 1975). The judgment is otherwise

AFFIRMED.

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

MILLS, J., concurs in part and dissents in part.

MILLS, Judge,

concurs in part and dissents in part:

I agree with the majority that the $1,000.00 attorney’s fee awarded appellee should be vacated.

I disagree with the majority that the $400.00 a month permanent alimony awarded the appellee should be affirmed. Based on the facts presented to us and the applicable law, I would reverse this part of the judgment because the trial court abused its discretion. I would reduce the permanent alimony to $200.00 per month.

Affirmed in part and reversed in part.


text:
    Samuel Lee BRITTON, Appellant, v. STATE of Florida, Appellee.
    No. AA-410.
    District Court of Appeal of Florida, First District.
    Nov. 9, 1976.
    Rehearing Denied Dec. 9, 1976.

      David J. Busch and Michael M. Corin, Asst. Public Defenders, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

Appellant’s conviction of robbery must be reversed for the trial court’s failure upon request to charge the jury concerning the offense of attempted robbery. Rule 3.510, R.Cr.P.; Brown v. State, 206 So.2d 377 (Fla.1968). There are no circumstances present which would enable us to treat the error as harmless on authority of Spigner v. State, 304 So.2d 496 (Fla.App.1st, 1974). The federal question raised by the State under the doctrine of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), which if sustained would require partial overruling of Brown and modification of Rule 3.510, R.Cr.P., is more appropriately presented to the Florida Supreme Court.

REVERSED.

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


text:
    Fred WIND and Roslyn Maurer, Appellants, v. BUCKLEY TOWERS CONDOMINIUM, INC., a non-profit Florida Corporation, Appellees.
    No. 75-1038.
    District Court of Appeal of Florida, Third District.
    Nov, 9, 1976.
    Rehearing Denied Dec. 3, 1976.

      Herbert Buchwald, Miami Beach, for appellants.
    Joseph S. Paglino, Miami, for appellees.
    Before HENDRY and HAVERFIELD, JJ., and LESTER, M. IGNATIUS, Associate Judge.
   PER CURIAM.

Appellants brought suit as a class action on behalf of themselves and a class similarly situated for declaratory judgment against appellee, Buckley Towers Condominium, Inc., as to appellee’s right to assess a fee of 1% as a precondition to obtaining its approval of the right to transfer or lease apartments owned by the appellants.

Upon motion of the appellee the original and amended complaints were dismissed. The third amended complaint was dismissed without leave to amend. This appeal is from the final order of dismissal.

We have considered the question of the sufficiency of the allegations of the third amended complaint to show a right to a class action for declaratory judgment and have concluded that such a cause of action was stated. See Frankel et al., d/b/a Roney Plaza Apartments v. City of Miami Beach, Fla.1976, 340 So.2d 463.

Reversed and remanded for further proceedings.


text:
    Jose F. FONT and Carmen G. FONT, his wife, Appellants, v. LAZARUS HOMES CORPORATION, Appellee.
    No. 75-1783.
    District Court of Appeal of Florida, Third District.
    Nov. 9, 1976.
    Rehearing Denied Nov. 29, 1976.
    Frishman & Clyman, for appellants.

      Freidin & Goldfarb, Miami, for appellee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Purchasers seek reversal of an adverse summary judgment in their action for return of a $5,301 deposit placed with the defendant seller pursuant to an agreement for purchase of a new home.

Plaintiffs, Mr. and Mrs. Font, and defendant, Lazarus Homes Corporation, entered into a deposit receipt agreement whereby the Fonts agreed to purchase from Lazarus a residence for $54,171 and paid a $5,301 deposit. The agreement provided that the Fonts would make application for a first mortgage with First Federal Savings & Loan Association and in the event they failed to qualify, Lazarus had the option of returning the deposit and terminating the agreement; in the event plaintiffs were qualified by the mortgagee, but did not close, the deposit would be retained by Lazarus as liquidated and agreed damages. Plaintiffs were approved by First Federal; however, plaintiffs subsequently requested First Federal to disqualify them because Mr. Font had been furloughed by his employer. First Federal granted their request. Thereafter, Lazarus as mortgagor obtained a permanent mortgage on the house which was assumable by the Fonts. The Fonts upon being so advised refused to close and Lazarus retained their $5,301 deposit. Plaintiffs filed suit for return of the deposit and summary judgment was entered for Lazarus. We affirm.

Where the determination of a lawsuit depends upon a written instrument and the legal effect to be drawn therefrom, the question is essentially one of law and ordinarily would be determinable by entry of summary judgment by the trial judge. Rochan v. American Fire and Casualty Company, 200 So.2d 213, 220 (Fla.2d DCA 1967); Shafer & Miller v. Miami Heart Institute, 237 So.2d 310 (Fla.3d DCA 1970).

It is uncontested that Lazarus obtained a permanent mortgage assumable by the plaintiffs and, in effect, plaintiffs qualified for the financing required by the deposit receipt agreement. Thus, plaintiffs’ failure to close constituted a breach of contract and they forfeited the $5,301 deposit.

Affirmed.

      . First Federal was the mortgagee. This mortgage obtained by Lazarus was in the same principal amount as the mortgage applied for by the plaintiffs and initially approved by First Federal.


text:
    CITY OF MIAMI, Appellant, v. Phyllis GRABLE and Bertha Flood, Appellees.
    No. 75-1840.
    District Court of Appeal of Florida, Third District.
    Nov. 9, 1976.
    Rehearing Denied Dec. 3, 1976.

      George F. Knox, Jr., City Atty., and Michel E. Anderson, Asst. City Atty., for appellant.
    Korner & Partridge and Michael Paul Shienvold, Coral Gables, for appellees.
    Before PEARSON, HENDRY and NATHAN, JJ.
   PER CURIAM.

This is an appeal by the City of Miami from an order permanently enjoining the City from enforcing a zoning classification on the appellees’ property which is more restrictive that R-4 zoning as defined at the time of the appellees’ application for a change in zoning classification. Appellees, Phyllis Grable and Bertha Flood, originally filed an application with the City’s Department of Administration for Planning and Zoning Boards to have a portion of their land rezoned from R-l Single-Family to R-4 Medium Density Multi-Family. The property in question borders on N.E. 83rd Terrace, just west of East Dixie Highway. When their request was denied by the City Commission, the appellees filed a Petition for Writ of Certiorari in the Dade County Circuit Court. By stipulation of the parties, the Writ was dismissed and the cause proceeded as a Complaint for Injunctive Relief. The trial court found for the appellee-prop-erty owners, holding that the R-l classification was unreasonable and arbitrary. The trial court’s order notes the following pertinent facts: that dramatic changes have occurred in the areas surrounding appellees’ property since it was first zoned R-l and that these changes have an adverse effect upon property zoned for single-family use; that the areas to north and west of the subject property are zoned for apartment uses (R-4) and that large apartment complexes are presently located on the same block and in close proximity to the appel-lees’ property; that most single-family dwellings to the north and west are non-owner occupied rental homes; that the property on three sides of the appellees’ plot is primarily being used for rental purposes; that single-family development has been almost nonexistent in the area during recent years; that the character of the area is clearly appropriate for rental and apartment use but not for single-family use; and, finally, that there is a sufficient buffer zone between the appellees’ property and the residential area to the east (which is on the other side of East Dixie Highway) to negate any adverse effects to the residential area which might be caused by apartments on the subject property. At the same time, however, no such buffer exists between the appellees’ property and the multi-family zones to the north and west.

The findings of the trial court are well supported by the record in this case. Given the compelling nature of the facts as presented, we find that no “fairly debatable” question exists herein concerning the validity of single-family zoning for appel-lees’ property. City of Miami Beach v. Lachman, 71 So.2d 148 (Fla.1953). Considering the character of the surrounding area and the fact that the entire street frontage of the subject property faces a multi-family zone which is already bristling with apartment houses, the trial court correctly found that single-family zoning in this case is arbitrary and capricious and that the City Commission had improperly denied the appellees’ request to have their property rezoned as an R-4 multi-family area. See City of Miami v. Schutte, 262 So.2d 14 (Fla. 3rd DCA 1972). We therefore affirm the final judgment of the trial court.

Affirmed.


text:
    William Lester McCLEARY, Appellant, v. Florence V. JONES, as Guardian of the person and property of Violet Elizabeth Davis, an incompetent, Appellee.
    No. 75-1883.
    District Court of Appeal of Florida, Third District.
    Nov. 9, 1976.
    Robert V. Shea, Coral Gables, for appellant.
    Robert Gerard Tardif and Dan A. Hames, Miami, for appellee.
    Before PEARSON, HENDRY and HAV-ERFIELD, JJ.
   PER CURIAM.

Affirmed. See Rich v. Hallman, 106 Fla. 348, 143 So. 292 (1932); Garcia v. Washington Fed. S. & L. Ass’n of Miami Beach, 285 So.2d 683 (Fla.3d DCA 1973).


text:
    Rose FEIN and Philip Fein, Appellants, v. METROPOLITAN DADE COUNTY TRANSIT AUTHORITY et al., Appellees.
    No. 75-1937.
    District Court of Appeal of Florida, Third District.
    Nov. 9, 1976.
    Ainslee R. Ferdie, Coral Gables, for appellants.
    Weinstein & Bavly and Arthur J. Mor-burger, Miami, for appellees.
    Before PEARSON, HENDRY and NATHAN, JJ.
   PER CURIAM.

Reversed. See Anderson v. Aamco Transmissions of Brevard, Inc., 265 So.2d 5 (Fla.1972), and Helms v. Sims, 330 So.2d 71 (Fla. 3rd DCA 1976).


text:
    Jerome S. SUGERMAN, et al., Appellants, v. Harlan STREET and Leo Greenfield, Appellees.
    No. 75-1938.
    District Court of Appeal of Florida, Third District.
    Nov. 9, 1976.
    Jules R. Israel, Opa Locka, for appellants.
    Leo Greenfield, North Miami, Lawrence R. Heller, Miami, for appellees.
    Before PEARSON, HENDRY and NATHAN, JJ.
   PER CURIAM.

Reversed on the authority of National Car Rental System Inc. v. Sonesta International Hotels Corp., 313 So.2d 108 (Fla. 3rd DCA 1975); Southern Pine Isle Corp. v. Capital National Bank, 324 So.2d 112 (Fla. 3rd DCA 1975), and remanded with directions to proceed to a hearing on the merits.


author: PER CURIAM. BARKDULL, Chief Judge

text:
    Sidney WINIKOFF, Appellant, v. Margarita WINIKOFF, Appellee.
    No. 75-1987.
    District Court of Appeal of Florida, Third District.
    Nov. 9, 1976.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl, and James E. Tribble, Miami, for appellant.
    High, Stack, Davis & Lazenby, Miami, for appellee.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

The appellant husband appeals from certain financial provisions of the final judgment of dissolution of marriage and supplemental orders amending the final judgment awarding attorney’s fees.

The trial judge, in his final judgment of dissolution of marriage and subsequent orders, granted the following relief to the appellee wife: rehabilitative alimony of $2,000 per month for 18 months, lump sum alimony consisting of the husband’s interest in the marital home and $150,000 cash, ownership of all art objects and antiques, $45,-000 in attorney’s fees and $880.83 in costs. The final judgment also provided that at the end of the 18 month period for the payment of rehabilitative alimony “. either party may petition the Court with respect to additional rehabilitative alimony . ” Furthermore, in an order amending the final judgment, the court required the husband to continue to pay the tuition and educational benefits previously ordered by a Pennsylvania court for the education of the 22 year-old son of the appellee wife by a former marriage, who had been adopted by the appellant husband during the marriage. Another provision of the order provided that the court retain jurisdiction to see that the educational needs of the adopted son be carried out by the husband.

Appellant, in effect, asks this court to re-evaluate the evidence before the trial court concerning his ability to make the payments and to look into the propriety of the amounts of allowances provided for by the chancellor. We find, however, that we are precluded from such action by Shaw v. Shaw, 334 So.2d 13 (Fla.1976). As stated in Shaw:

* 5k * * * *
“It is not the function of the appellate court to substitute its judgment for that of the trial court through re-evaluation of the testimony and evidence from the record on appeal before it. The test . is whether the judgment of the trial court is supported by competent evidence. Subject to the appellate court’s right to reject ‘inherently incredible and improbable testimony or evidence,’ it is not the prerogative of an appellate court, upon a de novo consideration of the record, to substitute its judgment for that of the trial court.”

We believe that the judge erred when he provided that at the end of the 18 month period for the payment of rehabilitative alimony, “. . either party may petition the Court with respect to additional rehabilitative alimony . . ” Inasmuch as adequate provision is made for the appellee in the lump sum award, it is not necessary for the court to retain jurisdiction and there is no basis in the record for so doing. As this court stated in Frischkorn v. Frischkorn, 223 So.2d 380 (Fla.3d DCA 1969), “The purpose of the lump sum alimony is to discharge the husband from any further obligation to the wife after the date final judgment is entered.”

We also find that it was error for the chancellor to order the husband to continue to make payments for the educational expenses of his adopted son. Such provision was in accordance with a previous provision by a Pennsylvania court. However, Florida law dearly holds that a parent’s duty to support an adult child’s education terminates at the age of 21. See Finn v. Finn, 312 So.2d 726 (Fla.1975). The question of comity between states, with one state upholding the provisions of the judgments of another state, does not enter into this case inasmuch as the entire matter of the dissolution of the marriage and the obligations of the parties arising from the dissolution has been submitted to the court in Florida by the parties. The Florida policy on support of adult children is very strong as is the policy in general with regard to actions involving family matters. Cf. the rules in Herron v. Passailaigue, 92 Fla. 818, 110 So. 539 (1926).

Therefore, we hereby strike that provision of the final judgment providing for the parties to return to the court at the end of the 18 month period to petition for additional alimony; we strike that portion of the judgment concerning the college education of the adopted son; and we affirm the judgment as so modified.

BARKDULL, Chief Judge

(concurring in part; dissenting in part).

I concur with the majority opinion, except the affirmance of the award to the wife of one-half of the interest in the home premises as lump sum alimony in addition to the award of $150,000.00 in cash as lump sum alimony, and would strike from the final judgment the award of one-half of the husband’s interest in the residence to the wife.


text:
    Silverio DIAZ, Appellant, v. The STATE of Florida, Appellee.
    No. 76-3.
    District Court of Appeal of Florida, Third District.
    Nov. 9, 1976.
    Phillip A. Hubbart, Public Defender, and Karen M. Gottlieb, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before BARKDULL, C. J., and HENDRY and NATHAN, JJ.
   PER CURIAM.

Affirmed. See Noeling v. State, 40 So.2d 120 (Fla.1949); Richardson v. State, 246 So.2d 771 (Fla.1971); Reis v. State, 248 So.2d 666 (Fla.3d DCA 1971); Crum v. State, 281 So.2d 368 (Fla.2d DCA 1973).


text:
    Cherry WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 76-47.
    District Court of Appeal of Florida, Third District.
    Nov. 9, 1976.
    Phillip A. Hubbart, Public Defender, and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Sidney M. Pertnoy and Ira N. Loewy, Asst. Attys. Gen., for appellee.
    Before PEARSON, HENDRY and HAV-ERFIELD, JJ.
   PER CURIAM.

Affirmed. See Lowe v. State, 90 Fla. 255, 105 So. 829 (1925); Amato v. State, 296 So.2d 609 (Fla.3d DCA 1974) and Giamo v. State, 245 So.2d 116 (Fla.3d DCA 1971); Gavin v. State, 259 So.2d 544, 547 (Fla.3d DCA 1972).


author: HENDRY, Judge.

text:
    Charlie JACKSON, Petitioner, v. STATE of Florida, DEPARTMENT OF HEALTH & REHABILITATIVE SERVICES, DIVISION OF SOCIAL AND ECONOMIC SERVICES, Respondent.
    No. 76-321.
    District Court of Appeal of Florida, Third District.
    Nov. 9, 1976.

      Suanne Pierce, North Miami, for petitioner.
    Duane N. Ivester, Jacksonville, for respondent.
    Before BARKDULL, C. J., and HENDRY and HAVERFIELD, JJ.
   HENDRY, Judge.

Petitioner, a recipient of Aid to Families with Dependent Children (A.F.D.C.), received a notice in January, 1975, from Respondent, State of Florida, Department of Health and Rehabilitative Services, Division of Social and Economic Services (D.S.E.S.), stating that her A.F.D.C. benefits would be cancelled in February, 1975. Petitioner requested an administrative hearing to challenge this termination. The hearing, before the hearing officer, was held on May 21, 1975. Petitioner received a favorable decision which was issued on August 21, 1975, as amended by the hearing officer’s statement dated June 11,1976, submitted to this court. Despite this favorable decision, respondent refused to pay petitioner the benefits authorized by the hearing officer’s decision, as amended. On January 26, 1976, more than five months after his original decision dated August 21, 1975, the hearing officer issued a revised decision dated January 26,1976, reversing his original determination in favor of petitioner.

Petitioner originally brought this petition for writ of certiorari to review the revised decision of the hearing officer. In her petition, petitioner argued that (1) it was error for the hearing officer to reopen and modify the final decision dated August 21, 1975, which was binding on the parties, and (2) that the revised decision entered by the hearing officer dated January 26, 1976, should be reversed because it was not based upon competent substantial evidence.

Since the filing of her petition, respondent replied in its brief and agreed with the conclusions of petitioner, set forth in her brief, that the decision of August 21, 1975, was a final decision, that respondent did not exercise its right to appeal this decision and the time for such appeal has expired, and that this court should reverse the January 26, 1976, decision and then order that the original decision be reinstated.

Respondent’s replies in its brief would seem to moot the questions raised in this petition, except for the fact that respondent goes on to argue in its brief that petitioner is not entitled to the relief requested and, in the alternative, that the decision of August 21, 1975, was void because of the lack of jurisdiction in the hearing officer to hear the original appeal, because petitioner failed to give timely notice of appeal to respondent of the termination of her A.F. D.C. grant.

Petitioner in her reply brief responds to the points raised by respondent in its brief and argues that (1) this court has jurisdiction to hear the matter, (2) a writ of mandamus or certiorari should issue to compel respondent to comply with the August 21, 1975, decision of the hearing officer, as amended by his statement to this court dated June 11, 1975, (3) that respondent acted illegally by ignoring the hearing officer’s decision, and (4) there are no questions, as to the jurisdiction of the hearing officer to hear petitioner’s appeal, properly before this court.

We have carefully reviewed the file in this matter, including the extensive briefs of the parties, and, after hearing oral argument, have concluded that, in the light of the prevailing principles of law, the August 21, 1975, decision of the hearing officer, as amended by his statement to this court dated June 11, 1976, should be reinstated with prejudice to respondent. Further, we have decided that, based on the particular facts of this case, no useful purpose would be served in our discussing the individual points raised by petitioner and respondent.

Certiorari granted with directions.


text:
    Willern KOBLINSKI, Appellant, v. Carol KOBLINSKI, Appellee.
    No. 76-345.
    District Court of Appeal of Florida, Third District.
    Nov. 9, 1976.
    Alden Sanford Tarte, Miami, for appellant.
    Mathew A. Gissen and Bruce A. Lam-chick, Miami, for appellee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Affirmed on the authority of Gleim v. Gleim, 176 So.2d 610 (Fla. 3rd DCA 1965); Bostwick v. Bostwick, 201 So.2d 779 (Fla. 4th DCA 1967); Carroll v. Allen, 219 So.2d 69 (Fla. 1st DCA 1969); Long v. Long, 304 So.2d 483 (Fla. 1st DCA 1974); Cohen v. Cohen, 321 So.2d 97 (Fla. 4th DCA 1975).


author: PEARSON, Judge.

text:
    Leo MARTIN and Gloria Martin, his wife, Appellants, v. Irwin N. PASKOW and Joan B. Paskow, his wife, Appellees.
    Nos. 76-353, 76-456.
    District Court of Appeal of Florida, Third District.
    Nov. 9, 1976.
    Rehearing Denied Dec. 3, 1976.

      Horton, Perse & Ginsberg, Eugene P. Spellman, Miami, for appellants.
    Noriega, Bartel, Chopp, Sehatz, Levine & Shuford, Miami, for appellees.
    Before BARKDULL, C. J., and PEARSON and HAVERFIELD, JJ.
   PEARSON, Judge.

The appellants, Leo Martin and Gloria Martin, his wife, were the defendants in an action for rescission of a real estate transaction in which their fifty-two unit apartment building was exchanged for vacant land owned by Irwin N. Paskow and Joan B. Paskow, his wife. The Paskows were the plaintiffs and are appellees here. The judgment appealed held that the Martins were guilty of substantial fraud and concealment in the transaction so that the plaintiffs were entitled to the remedy of rescission.

On this appeal, the defendants’ primary thrust for reversal is the argument that even though there is evidence in the record to support the finding of fraud, there is not sufficient evidence to support the remedy of rescission because the manifest weight of the evidence demonstrates that the plaintiffs did not have a right to rely upon the representations which induced the transaction. We have examined the record in the light of this argument and have reached the conclusion that the defendants are, in this regard, asking us to re-evaluate the evidence which was accepted by the trial judge. We hold that there is sufficient evidence in the record to support the finding of the trial court that the plaintiffs had a right to rely upon the fraudulent representations which were made to them. Where the record shows that positive representations are made for the purpose of inducing a plaintiff to act to his detriment, the defendant cannot complain that the plaintiff did, in fact, rely upon the representations made. See Board of Public Instruction of Dade County v. Everett W. Martin & Son, 97 So.2d 21 (Fla.1957); and Alepgo v. Pozin, 114 So.2d 645 (Fla. 3d DCA 1959). Therefore, because the record supports the finding of the trial judge and because the law supports the remedy in situations such as this, we find no error upon the granting of the remedy of rescission.

Two other points raised by the appellants require discussion. The first of these is directed to the allowance of an attorney’s fee to the plaintiffs in the amount of $40,000 as an element of damages. The trial judge found:

“THIS CAUSE came on before the Court for assessment of attorneys’ fees in favor of Plaintiffs and against Defendants. This Court has found, as the trier of fact, sitting in equity, that malice and fraud have been established by specific, certain and conclusive evidence and that the within Plaintiffs, ancillary to obtaining restitution, by way of rescission, are entitled to attorneys’ fees as an element of their damages. Codomo vs. Emanuel, Fla.1956, 91 So.2d 653; Baya vs. Central & Southern Florida Flood Control District, Fla.App. 2nd Dist.1966, 184 So.2d 501; Weisenberg vs. Carlton, Fla.App. 2d Dist.1970, 233 So.2d 659; Upchurch vs. Mizell, 50 Fla. 456, 40 So. 29, at 32 (1905); Schlein vs. Smith [82 U.S.App.D.C. 42], 160 F.2d 22 (D.C.Cir.1947); Cf. Milohnich vs. First National Bank of Miami Springs, Fla.App. 3d Dist.1969, 224 So.2d 757 [759].”

We hold that the cases cited do not authorize the allowance of an attorney’s fee as an element of damages in this cause. It is frequently stated that an attorney’s fee is allowed in Florida only where provided by statute, contract or the equitable nature of the action so that full relief cannot be granted except by the allowance of such a fee. See Bieley v. Jennings Construction Corporation, 212 So.2d 809 (Fla.3d DCA 1968). Appellees urge that while there is not, and should not, be a rule that attorneys’ fees are an element of damages in every fraud case, such fees should be allowed in cases where the proof of fraud is specific, certain and conclusive. The application of such a rule to fraud cases would be impractical in that it would allow the assessment of additional damages on the discretion of the trial judge without a set of standards or guidelines for the ascertainment of the right to this element of damages. A review of the record in the light of the briefs and oral argument does not demonstrate that the allowance of an attorney’s fee is any moré necessary in this case to the granting of complete relief or the placing of the plaintiffs in the status quo than the allowance of an attorney’s fee would be in any other fraud case. We, therefore, hold that the law does not support the award of an attorney’s fee to the plaintiffs in this case.

The last point raised for us to consider is appellants’ contention that the trial court erred in awarding money damages against the defendant before considering possible set-offs against said damages. The court specifically reserved jurisdiction to consider adjustments between the parties as to improvements, costs and mortgage payments made by the respective parties. Inasmuch as the court has determined that further hearings on damages are necessary, we hold that an award of a specific money judgment prior to said hearing was error and that, therefore, the determination that the amount found to be due the plaintiffs must be taken as a determination of the amount due for the items set forth in paragraph 7 of the judgment, and that the judgment is amended to provide that said sums are not payable until the final determination of the respective set-offs between the parties.

We have considered the other points presented and find that they do not demonstrate reversible error.

Accordingly, the judgment is affirmed as to the finding that the plaintiffs are entitled to the remedy of rescission, reversed as to the allowance of an attorney’s fee, and amended to provide that the sum found to be due the plaintiffs shall be payable only after the ascertainment of the set-offs between the parties following the hearing contemplated by the trial court in its judgment.

Affirmed in part, reversed in part and remanded.


text:
    Marshall H. ADER, as Executor of the Estate of Sarah Shaw, Petitioner, v. TEMPLE NER TAMID, a non-profit religious organization, Respondent.
    No. 76-472.
    District Court of Appeal of Florida, Third District.
    Nov. 9, 1976.

      Joseph Teichman, Miami, for petitioner.
    Stanley H. Apte, Miami Beach, for respondent.
    Before HENDRY and HAVERFIELD, JJ., and LESTER, M. IGNATIUS, Associate Judge.
   HENDRY, Judge.

Petitioner, defendant in the court below, brings his petition for writ of certiorari to quash an order of the trial judge striking various affirmative defenses as insufficient and redundant and striking part of petitioner’s answer as sham.

Respondent, plaintiff below, filed a complaint against petitioner, as executor of the estate of Sarah Shaw. The complaint basically alleges that the decedent had guaranteed the balance of her late husband’s unfulfilled pledge to the respondent. In reliance upon that pledge, the respondent settled a claim it had against decedent’s late husband’s estate. Subsequently, decedent died failing to pay the balance of her late husband’s pledge.

On August 8, 1975, the petitioner filed a motion to dismiss for failure to state a cause of action and for failure to state grounds for said motion. Pursuant to Fla. R.Civ.P. 1.140(b) the motion was properly denied. Thereafter, on September 10,1975, petitioner filed his answer, affirmative defenses, and second motion to dismiss. The answer denied twelve of the fourteen paragraphs of respondent’s complaint and as affirmative defenses alleged that (1) the action was barred by the statute of frauds, (2) the action fails for lack of consideration, (3) the action fails because an oral promise to answer for the debt of another is unenforceable, (4) laches, (5) payment in full by the deceased’s husband’s estate, and (6) compromise and settlement of respondent’s claim.

On October 1, 1975, respondent moved to strike as sham parts of petitioner’s answer and moved to strike petitioner’s affirmative defenses as insufficient and redundant under Fla.R.Civ.P. 1.140(b). On February 27, 1976, the trial judge entered his order striking as sham four of the petitioner’s denials and allowing him 20 days to file an amended answer. The trial judge also struck five of petitioner’s affirmative defenses and his motion to dismiss with prejudice. This petition for certiorari follows from that order.

Petitioner contends that the trial court erred when it struck his affirmative defenses for the reason that petitioner had not included them as grounds in his bare motion to dismiss. Fla.R.Civ.P. 1.140(b), provides, inter alia:

“The grounds on which any of the enumerated defenses are based and the substantial matters of law intended to be argued shall be stated specifically and with particularity in the responsive pleading or motion. Any ground not stated shall be deemed to be waived except any ground showing that the court lacks jurisdiction of the subject matter may be made at any time. No defense or objection is waived by being joined with other defenses or objections in a responsive pleading or motion.”

Respondent argues that the order in question does not constitute a departure from the essential requirements of law and that it was not fundamental error. He continues by stating that petitioner waived his rights to assert affirmative defenses by his failure to plead them in his motion to dismiss.

Florida R.Civ.P. 1.140(b) provides, inter alia, that affirmative defenses may be raised in a responsive pleading or by motion. Petitioner, while failing to assert his affirmative defenses in his motion to dismiss, did state them in his answer. Therefore, based on the record in the instant case, we believe that the trial court erred in striking the affirmative defenses set forth in petitioner’s answer.

Petitioner also contends that the trial court erred in striking as sham certain denials found in his answer. In order for a pleading to be stricken as “sham” pursuant to Fla.R.Civ.P. 1.150(a) we have stated that the pleading must appear clearly false, as a mere pretense set up in bad faith, and without color of fact. Sapienza. v. Karland, Inc., 154 So.2d 204 (Fla.3d DCA 1963). In light of this rule and based upon the pleadings in this case, we do not feel that the trial court was justified in striking the denials as sham.

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 and discussed, petition for certiorari is granted and the order of the trial court entered February 27, 1976 is quashed.


text:
    DEPARTMENT OF TRANSPORTATION of the State of Florida, etc., Appellant, v. Jose M. MARQUEZ et al., Appellees.
    No. 76-839.
    District Court of Appeal of Florida, Third District.
    Nov. 9, 1976.
    Ronald W. Brooks, Tallahassee, for appellant.
    Spence, Payne & Masington, Podhurst, Orseck & Parks, Miami, for appellees.
    Before PEARSON, HENDRY and HAV-ERFIELD, JJ.
   PER CURIAM.

Affirmed. See State, Department of Transportation v. Chothen, 328 So.2d 574 (Fla. 3d DCA 1976).


text:
    CITY OF MIAMI et al., Appellants, v. Joseph H. BUTCHER et al., Appellees.
    No. 76-850.
    District Court of Appeal of Florida, Third District.
    Nov. 9, 1976.
    Rehearing Denied Dec. 3, 1976.
    George B. Knox, Jr., City Atty. and James T. Schoenbrod, Asst. City Atty., for appellants.
    Kaplan, Dorsey, Sicking & Hessen and Joseph C. Segor, Miami, for appellees.
    Before PEARSON, HENDRY and HAV-ERFIELD, JJ.
   PER CURIAM.

Affirmed. See the rule in North Shore Hospital, Inc. v. Barber, 143 So.2d 849 (Fla.1962).


text:
    STATE of Florida ex rel. Richard E. GERSTEIN, State Attorney for the Eleventh Judicial Circuit of Florida, Relator, v. The Honorable H. Paul BAKER and the Honorable Herbert M. Klein, as Judges of the Circuit Court of the Eleventh Judicial Circuit of Florida, Respondents.
    No. 76-1720.
    District Court of Appeal of Florida, Third District.
    Nov. 9, 1976.
    Richard E. Gerstein, State Atty., and Kurt Marmar, Asst. State Atty., for relator.
    George Nichols, Miami, for respondents.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

On September 9, 1976, the relator, Richard E. Gerstein, State Attorney of the Eleventh Judicial Circuit of Florida, filed a suggestion for writ of prohibition seeking to prohibit the respondents, judges of the Circuit Court of the Eleventh Judicial Circuit of Florida, from exercising jurisdiction of a cause without a jury where the State had not consented to such proceeding.

Florida R.Crim.P. 3.260, Waiver of Jury Trial, provides in toto:

A defendant may in writing waive a jury trial with the consent of the State. [Emphasis added.] 34 Fla.Stat.Ann. 38 (1975).

This rule was recently interpreted by us in Thomas v. State, 328 So.2d 545 (Fla. 3d DCA 1976), and we follow our holding in that decision, to-wit: the state must consent to a waiver of a jury trial sought by a defendant.

We therefore order that the writ of prohibition sought by the relator be issued and made absolute.


author: McNULTY, Chief Judge.

text:
    GOODBODY & CO., INC., a Delaware Corporation, Appellant, v. Roy A. RIGEL, Appellee.
    No. 75-1550.
    District Court of Appeal of Florida, Second District.
    Nov. 10, 1976.
    Rehearing Denied Dec. 14, 1976.
    Wm. Fletcher Belcher of Belcher & Fleece, St. Petersburg, for appellant.
    James W. Bauman of Gormin, Geoghe-gan, Easley, Gránese & Bauman, P.A., Clearwater, for appellee.
   McNULTY, Chief Judge.

Appellant corporation appeals an adverse summary judgment entered on a two-count complaint filed by appellee Rigel. Count I sought rescission under the Florida Blue Sky Laws for the sale of unregistered securities, and Count II was an action in negligence for damages. We reverse.

In May of 1969 appellee purchased certain shares of Crown Western Investments, Inc., Dallas Fund, through his stockbroker Goodbody & Co., a limited partnership, the predecessor of appellant corporation. These shares were not registered either with the State of Florida or with the SEC. The instant suit, filed only against the corporation and not joining the partnership, was instituted in February 1971, within two years of the purchase date of the shares, so is timely with respect to the rescission count.

The negligence count is predicated on the fact that while Rigel’s shares of the aforesaid Fund were still held to his account in Goodbody & Co.’s (the partnership’s) “street account” pending transfer into his name (which was accomplished in due course) the Dallas Fund made a voluntary rescission offer under which shareholders could obtain redemption for the full purchase price. Rigel alleges that Goodbody & Co. negligently failed to advise him of the rescission offer, for which he claims resultant damages.

Only one point on appeal merits discussion, that relating to whether, assuming the truth of everything complained of by Rigel, his cause of action lies against appellant corporation as successor to Goodbody & Co., the limited partnership. As to this, it is undisputed that appellant corporation is a Delaware corporation chartered in November 1970, about a year and a half after the unregistered shares were acquired by Rigel and about the same length of time after the alleged negligence. The corporation is a wholly owned subsidiary of Merrill Lynch, Pierce, Fenner & Smith, Inc. and was formed to purchase the Goodbody partnership, which, at that time, was apparently in some financial difficulty and under a mandate from the New York Stock Exchange to refinance. The record is devoid of any evidence, or for that matter of any allegations, of any interconnecting directorship or control between appellant corporation and the partnership or between Merrill Lynch, Pierce, Fenner & Smith and the partnership. Rigel’s pursuit of appellant, in fact, is predicated on an “INSTRUMENT OF ASSUMPTION OF LIABILITIES” in which, he argues, appellant corporation assumed responsibility for his claims against the partnership. This instrument provides in material part as follows:

“KNOW ALL MEN BY THESE PRESENTS, that:
“WHEREAS, Goodbody & Co., a New York limited partnership (The ‘Partnership’) entered into a certain Financing Agreement dated November 5, 1970 with Merrill Lynch, Pierce, Fenner & Smith Incorporated, a Delaware corporation (‘Merrill Lynch’), whereby the Partnership is to convey, assign, transfer, deliver and set over to Goodbody & Co. Incorporated, a Delaware corporation (the ‘Corporation’), certain assets and properties, and the Corporation is to assume these liabilities of the Partnership existing on this date [December 11, 1970] hereinafter set forth, all under the terms and in accordance with the provisions of the said Financing Agreement;
“NOW, THEREFORE, in consideration of the premises and in accordance with the provisions of said Financing Agreement, and for other good and valuable considerations, receipt of which is hereby acknowledged, the Corporation does hereby assume and undertake to pay or discharge when due, and thereafter hold the Partnership harmless with respect to, the following liabilities of the Partnership as they exist at the close of business on the date hereof:
it* * *
“c. All of the Partnership’s obligations and liabilities for open securities and commodities transactions made in the ordinary course of its business for the Partnership’s own account.” (Italics ours.)

None of the listed class of liabilities assumed in the instrument even remotely resembles the claims made by Rigel, except perhaps those referred to in the quoted paragraph c., and that expressly relates to transactions made for the partnership (i. e., Goodbody’s) account — not for their clients’ former accounts. Therefore, Rigel can find no support in the quoted instrument itself.

With respect to the “Financing Agreement” referred to in the quoted instrument, that agreement, after providing for the whys and wherefores of the purchase by Merrill Lynch, Pierce, Fenner & Smith of the Goodbody Partnership, also provides for the assumption by Merrill Lynch of certain described liabilities of the partnership. But, again, none of them embraces a claim either for rescission or for negligence under the circumstances alleged herein by Rigel. The financial agreement then provides as follows:

“This Agreement is not intended to, and shall not under any circumstances create any enforceable right or benefit in any person whatsoever, other than the Partnership, the Corporation, or its Des-ignee, nor shall any other person whatsoever be entitled to base any cause of action on the existence of this Agreement.”

Clearly, the agreement repudiated any third-party claims.

The matter therefore devolves to this. Appellant corporation was totally nonexistent at the time Rigel’s claimed causes of action arose. There is no allegation or evidence of a fraudulent conveyance by the partnership to the corporation nor can one fictitiously be constructed from the allegations or proof. The appellant corporation was neither the issuer nor seller of the unregistered securities, nor the agent of either, and was not in privity with Rigel in any way at any time. Accordingly, neither the rescission count nor the negligence count can stand in the face of these facts alone.

Additionally, it cannot be found in allegations or proof that appellant corporation ratified any actions of the partnership or assumed any of its obligations to Rigel. Not only was such assumption of liability limited in both of the aforesaid agreements to certain specific obligations, not including those as claimed by Rigel, but the “Financial Agreement” expressly limited the scope of the agreements so as to deny their effect as a predicate for a cause of action to any and all save the immediate parties thereto.

In summary, we recognize and apply the clear general rule that absent an express or implied assumption of liability, a corporation is not liable for the contractual or tort liabilities of a preexisting partnership. There is no such express or implied assumption here.

The trial court was therefore in error in awarding summary judgment to Rigel. More than that, since summary judgment was also moved for by appellant corporation, the court erred in not granting its motion for summary judgment. The record affirmatively demonstrates that there is no material issue of fact a resolution of which would entitle Rigel to recovery.

In view whereof, the judgment appealed from should be, and it is hereby, reversed; and the cause is remanded with directions that summary judgment be entered in favor of appellant.

BOARDMAN and GRIMES, JJ., concur.

      . Sec. 517.21, Fla.Stat.

      . See, e. g., 18 C.J.S. Corporations § 143c, pp. 544, 546.


text:
    John D. SOLLAZZO, Appellant, v. STATE of Florida, Appellee.
    No. 75-673.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 1976.
    Roger A. Beach, Associate to Robert L. Saylor, North Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Basil S. Diamond, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

We have fully considered the numerous points raised by appellant in his brief and find that reversible error has not been demonstrated. Accordingly, the judgment and sentence appealed from are affirmed.

CROSS and DOWNEY, JJ., and FOGLE, HARRY W., Associate Judge, concur.


text:
    Ladell SPANN, Appellant, v. STATE of Florida, Appellee.
    No. 75-1084.
    District Court of Appeal of Florida, Second District.
    Nov. 12, 1976.
    Rehearing Denied Dec. 9, 1976.
    Jack 0. Johnson, Public Defender, and Steven H. Denman, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

The only meritorious point raised on appeal is whether the testimony by a state’s witness that appellant did not make a statement to the police officer after he was advised of his rights constituted fundamental error. There was no objection to the testimony at trial. On the basis of Clark v. State, 386 So.2d 468 (Fla.2d D.C.A.1976), we hold that it was not fundamental error.

AFFIRMED.

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


text:
    SOUTHEAST FIRST NATIONAL BANK OF MIAMI, Appellant, v. Harold Z. TAINES and Sue Taines, his wife, et al., Appellees.
    No. 75-1333.
    District Court of Appeal of Florida, Third District.
    Nov. 16, 1976.
    Rehearing Denied Dec. 3, 1976.

      Friedman & Britton, Miami, for appellant.
    Irving Mark Wolff, Burton Harrison, Miami, Andrews & Lubbers, Fort Lauderdale, for appellees.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Plaintiff, Southeast First National Bank of Miami, appeals a final judgment directing it to return $160,000 to defendant Miami Mortgage Services, Inc.

Southeast First National Bank of Miami loaned $2,000,000 to Robin Brown, Roger Terrell and six other individuals. A payment of $443,000 was due on December 31, 1974. In December negotiations were entered into for an 18-month extension of the due date and the Bank required as one of the conditions that Terrell-Brown & Company execute a note secured by a mortgage for $443,000. In a letter dated December 31, 1974, Terrell-Brown sent the Bank the requested mortgage and a check for $160,-000 drawn on the account of appellee Miami Mortgage Services, Inc., a totally owned subsidiary of Terrell-Brown. The letter specifically stated that if the Bank did not accept all of the terms and conditions of the extension request, then the $160,000 check was to be returned. The Bank kept the check, refused to extend the December 31, 1974 due date, declined demands for return of the $160,000 and sued all eight defaulting guarantors. Miami Mortgage Services was added by the trial judge as a party defendant and it counterclaimed for return of the $160,000 on the grounds that it was a complete stranger to the financial dealings between the parties and that it had paid the money to secure an 18-month extension for Terrell-Brown, but the Bank had neither granted the extension nor returned the money. The Bank argued that it had applied the check to the debt of the eight borrowers and that it was they who had breached the extension agreement by furnishing an invalid mortgage along with the $160,000 check. Subsequently, the trial judge entered summary final judgment ordering the Bank to return the $160,000 to Miami Mortgage Services, Inc. We affirm.

The letter of December 31, 1974 clearly stated that retention of the $160,000 check drawn on the account of Miami Mortgage Services was conditioned upon the Bank’s acceptance of Terrell-Brown’s extension request. The Bank having declined the request to extend the December 31 deadline became bound to return the check. See Citizens Bank of Ft. Myers v. First National Bank, 101 Fla. 908, 132 So. 478 (1931); Southern States Power Co. v. Pittman, 122 Fla. 758, 165 So. 893 (1936); Faircloth v. Kausch, 63 So.2d 503 (Fla.1953) and 7 Fla.Jur. Contracts § 184 (1956).

Neither are we persuaded by the Bank’s argument that since Miami Mortgage Services is a stranger to the financial dealings between the parties, it must look to the individual borrowers for repayment of the $160,000 because payment of an instrument may be made or given by any person including one who is a stranger with the consent of the holder. Colonial Press of Miami, Inc. v. Sanders, 264 So.2d 92 (Fla.3d DCA 1972). Under the circumstances, Miami Mortgage Services, not being indebted to the Bank, cannot be required to contribute $160,000 for the debt of another.

Affirmed.

      . Pursuant to Fla.R.Civ.P. 1.120(a).