text:
    Elaine B. RENDEL, Appellant, v. Jerold S. RENDEL, Appellee.
    No. 76-1854.
    District Court of Appeal of Florida, Fourth District.
    Dec. 17, 1976.
    John M. Cain, Orlando, for appellant.

      Donald P. Ewald of Gierach & Ewald, Orlando, for appellee.
   ALDERMAN, Judge.

This is an interlocutory appeal from an order of the Circuit Court of Orange County, Florida, pursuant to Fla.App. Rule 4.2.

Appellant filed suit against her husband seeking dissolution of their marriage. During the course of pre-trial proceedings she sought to discover her husband’s assets. On April 20, 1976 appellee testified on deposition that he had deposits totaling approximately $141,000 in three banks in the Grand Cayman Islands during 1974 and 1975, but denied having any records or other evidence of these accounts. At a temporary hearing before the trial court on the same day he testified that he removed $141,413.25 from these accounts on November 28, 1975; that he never had more money than that in the Grand Cayman Islands and that he had none of that money left. In another deposition on May 17, 1976, appellee again testified in detail concerning the three bank accounts in the Grand Cayman Islands, but denied having any records. On July 2, 1976, appellee, in answers to interrogatories, again admitted having had money in the three Grand Cayman Islands banks, but denied that he had any current balances there and denied having any records of these accounts.

Appellant then filed a motion asking that appellee be required to authorize the banks in question to provide to appellant their records of these accounts. The trial court on June 18, 1976 granted the motion. Ap-pellee refused to comply, claiming a constitutional protection against self-incrimination. Subsequently, on July 21, 1976, the trial court entered another order finding appellee had the constitutional right to claim and invoke the right against self-incrimination without penalty or sanction. This appeal is from that order. From our review of the record and briefs in this ease we respectfully disagree and reverse.

This is a situation where appellee cannot rely upon the constitutional privilege against self-incrimination. He is not being required to give incriminating testimony against himself or to produce incriminating documents which are in his possession. He has already testified on several occasions in detail about his bank accounts in the Grand Cayman Islands. However, he consistently denies having any records concerning these foreign accounts. If the records of Florida banks were involved there is no doubt that under Fla.R.Civ.P. 1.410, appellant could obtain the relevant bank records from the banks by subpoena. Appellant could not prevent the banks from producing their records pursuant to subpoena upon the ground that the bank records were incriminating. The privilege against self-incrimination is a personal privilege which adheres basically to the person and not to the information which may incriminate him. Couch v. United States, 409 U.S. 322, 93 S.Ct. 611, 34 L.Ed.2d 548 (1973). The privilege against self-incrimination prohibits compelling a person to bear witness against himself: it does not proscribe incriminating evidence elicited from another. It is the extortion of information from the person himself that offends our sense of justice and triggers the privilege against self-incrimination.

All that is required of appellee in this case is that he give the necessary authorizations for the foreign banks to release their records. The fact that these accounts existed is not disputed. On several occasions appellee has testified that he had deposits with the three Grand Cayman Islands banks. Appellee may not prevent the banks from producing their records concerning these accounts upon the ground that the banks’ records may be incriminating to him. The authorizations to release the bank records would not in themselves be incriminating. They might be considered as an acknowledgement by appellee that the accounts in fact existed, but that fact has already been admitted by appellee. That the banks’ records may be incriminating to appellee does not mean that he may block their production by refusing to authorize their release by the banks. Appellee wants “to have his cake and eat it too.” He has testified in detail about his foreign bank accounts but when appellant seeks to obtain the banks’ records to verify his testimony, appellee tries to block her discovery by use of the constitutional privilege against self-incrimination. This he may not do.

The order of the trial court which is the subject of this appeal is reversed and the case is remanded for the entry of an order requiring appellee to provide the necessary written authorizations for appellant to obtain from the three banks in the Grand Cayman Islands, copies of the banks’ records of appellee’s accounts with these banks. The trial court may enforce its order by the use of such appropriate sanctions as are provided by Fla.R.Civ.P. 1.380(b)(2).

REVERSED and REMANDED for further proceedings consistent with this opinion.

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


source: Caselaw Access Project

author: ALDERMAN, Judge.

license: Public Domain

text:
    MOORE HANDLEY, INC., a Foreign Corporation, Appellant, v. MAJOR REALTY CORPORATION, a Foreign Corporation, Appellee.
    No. 76-2076.
    District Court of Appeal of Florida, Fourth District.
    Dec. 17, 1976.
    James F. Page, Jr., of Page & White, Orlando, for appellant.
    No appearance for appellee.
   ALDERMAN, Judge.

This is an interlocutory appeal by the plaintiff below, Moore Handley, Inc., from an order denying its motion to dismiss both counts of the defendant’s counterclaim. The appellant brought the original action to foreclose a mechanic’s lien. Appellee Major Realty’s counterclaim made the following allegations of fact:

Major Realty was informed by R & D Framing Contractors that Moore Handley was to be the supplier of certain materials for Major Realty’s Cypress Creek Condominium Phase II project. R & D requested that payments be made jointly to it and Moore Handley.

R & D subsequently submitted three invoices to Major Realty for materials allegedly purchased from Moore Handley for the Cypress Creek Project; Major Realty responded with three drafts jointly payable to R & D and Moore Handley. R & D presented two of the drafts, for $67,754.67 and $57,603.96 respectively, to Moore Hand-ley, who (Major Realty alleges) had at that time delivered only $73,332.20 worth of materials to the Cypress Creek project. Both Moore Handley and R & D endorsed the two drafts; R & D deposited them in its own account and, in the words of the counterclaim,

“Moore Handley Lumber Company, Inc. did accept from R & D Framing Contractors, Inc. some of the proceeds of those checks and did apply some of the proceeds to the Cypress Creek account and other proceeds to other accounts that R & D . . . was maintaining with Moore Handley ... for other jobs, and by doing so did wrongfully apply the monies paid by Major Realty Corporation to debts other than the debt due and owing on the Cypress Creek account.”

The first count of the counterclaim seeks a judgment for monies wrongfully received by Moore Handley, and in our opinion that count successfully states a cause of action, whether one labels it with the terminology of the old common count “for money had and received” (indebitatus assumpsit) or the more current “restitution” to prevent “unjust enrichment.”

“An action for money had and received may, in general, be maintained whenever one has money in his hands belonging to another, which in equity and good conscience, he ought to pay over to that other.” Love v. Brown Development Co. of Michigan, 100 Fla. 1373, 131 So. 144, 147 (1930).

There can be no strict rule as to what constitutes unjust enrichment, nor can an exhaustive list be given of elements which must be alleged in a pleading in order to state a cause of action for restitution. Everything depends on the circumstances of the individual case and whether or not the pleader has alleged facts which show that an injustice would occur if money were not refunded. See Cullen v. Seaboard Air Line By., 63 Fla. 122, 58 So. 182, 184 (1912). In the present case, at the very least a failure of consideration has been alleged.

As for the second count of the counterclaim, it purports to state a cause of action for fraud, and we hold that it fails to do so. All of the alleged unjust machinations on the part of the appellant occurred after Major Realty had been presented with invoices by R & D and had thereby been induced to make out checks payable jointly to R & D and the appellant. It is not alleged that R & D intentionally misrepresented any past or existing fact when it presented the invoices to Major Realty, and there is no indication that any further representations of any kind were made to Major Realty after it had delivered the checks. Thus we cannot even say that subsequent misrepresentations may have induced injurious inaction.

We find that Count I states a cause of action but Count II does not. That portion of the trial court’s order denying appellant’s motion to dismiss Count II is hereby reversed, with leave to the appellee to amend Count II.

REVERSED in part, AFFIRMED in part.

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


author: GRIMES, Judge.

text:
    AFFILIATED MARKETING, INC., a Florida Corporation, Appellant, v. DYCO CHEMICALS & COATINGS, INC., a Florida Corporation, Appellee. DYCO CHEMICALS & COATINGS, INC., a Florida Corporation, Appellant, v. AFFILIATED MARKETING, INC., a Florida Corporation, Appellee.
    Nos. 76-152, 76-1405.
    District Court of Appeal of Florida, Second District.
    Dec. 17, 1976.
    Rehearing Denied Jan. 24, 1977.
    Robert C. Burke, Jr., of Korones & Burke, P. A., Clearwater, for Affiliated Marketing, Inc.
    John T. Allen, Jr., P. A., St. Petersburg, for Dyco Chemicals & Coatings, Inc.
   GRIMES, Judge.

Customarily, the parties to a contract agree to submit their disputes to arbitration in order to save time and money. No doubt this result is often accomplished, but this is an instance in which the parties went to arbitration and saved neither time nor money-

Affiliated Marketing is a consulting firm which promotes the sale of package franchises. In September 1975, Affiliated and Dyco Chemicals & Coatings, Inc. entered into a written agreement whereby Affiliated would act as the exclusive representative of Dyco for the marketing of Dyco’s commercial decorator paint store franchises. The contract contained a provision providing for arbitration of any disputes arising under the agreement.

Subsequently, Dyco unilaterally terminated the contract by giving written notice to Affiliated. As a consequence, Affiliated requested arbitration. Following a hearing, the arbitrator awarded Affiliated the sum of $14,237.03. Affiliated then filed an application for confirmation of an award of arbitration, and Dyco filed an application for vacation and/or motion for modification of arbitration award before Circuit Judge Charles Phillips.

Judge Phillips vacated the award and directed the arbitrator to set a rehearing to take additional evidence and testimony to corroborate the claims of Affiliated. The arbitrator held a rehearing, but he did not adhere to the guidelines set forth by Judge Phillips. A new award in favor of Affiliated was entered in the sum of $11,267.90.

Affiliated filed its second application for confirmation of an award of arbitration in the same case filed before Judge Phillips, and Dyco also filed its application for vacation and/or motion for modification of arbitration award with Judge Phillips. Dyco also filed a duplicate of its application in a new proceeding assigned to Circuit Judge Elizabeth Kovachevich. When Affiliated failed to respond in the proceeding before her, Judge Kovachevich entered a default judgment in favor of Dyco. Later, Affiliated filed a motion to vacate the default judgment on the ground that jurisdiction over the arbitration proceeding had been retained by Judge Phillips and further asserting that its failure to respond in the new proceeding was because of excusable neglect in assuming the matter would be disposed of before Judge Phillips. Judge Kovachevich then transferred the case before her to Judge Phillips for disposition.

Judge Phillips vacated the default judgment as being void on the premise that he had retained jurisdiction over the ease. Dyco has filed an interlocutory appeal from the vacation of the default judgment. In the case previously pending before him, Judge Phillips entered a final judgment for Dyco in which the new arbitration award was vacated, holding that it was procured by undue means “in that the arbitrator received insufficient and inappropriate evidence to sustain the arbitration award.” The judge further observed in the final judgment that the arbitrator had evidenced partiality for Affiliated in the arbitration proceedings. Affiliated has appealed from this final judgment.

The two appeals were consolidated in this court. Dyco’s appeal concerning the vacation of the default judgment can easily be rejected. The case was before Judge Phillips at the outset. His first order vacating the arbitration award was sufficient to retain jurisdiction over the matter. Cf. Carner v. Freedman, 175 So.2d 70 (Fla.3d DCA 1965). Indeed this was recognized by Dyco, since in addition to the filing with Judge Kovachevich, it also filed before Judge Phillips a duplicate application to vacate the award.

We turn now to the vacation of the arbitration award for Affiliated. The order vacating the first award read as follows:

“The entitled cause having come on for trial upon the petition of Affiliated Marketing, Inc. for confirmation of award of Arbitrator and the Court having received testimony, demonstrative evidence, and heard argument of counsel and been duly advised in the premises finds that the central question presented for decision was whether or not the testimony and evidence received by the Arbitrator constituted fraud. On the one hand, bills were presented which, if they remained unexplained, would indicate that Affiliated Marketing, Inc. made claim for these items for which it was not entitled to be compensated. On the other hand, the explanations offered by Affiliated Marketing, Inc., if true, would show careless bookkeeping or unwise business practice but would negate the allegation of fraud.
“The Court finds that the Arbitrator believed the explanations offered by Affiliated Marketing, Inc. and based his award on such explanations. If the explanations are true, Affiliated Marketing, Inc. is entitled to the award. If they are not true, the award should be overturned and Dyco Chemicals & Coatings, Inc., should prevail.
“The Court feels that the only possible way to reach a just conclusion is to examine the verity of the explanations. The only way to prove or disprove such explanations is to receive corroborative testimony and proof from disinterested parties. It is thereupon,
“ORDERED AND ADJUDGED as follows:
“That the award of the Arbitrator be and the same is hereby set aside and vacated pursuant to F.S. 682.13(e)(3) and a rehearing before the Arbitrator is hereby ordered for the purpose of taking testimony and other proof from the suppliers of goods and services upon which the case is based to determine the extent to which the claims are thus corroborated and for the Arbitrator in this cause to then make an award based upon such additional testimony as heard by him pursuant to law.
“DONE AND ORDERED in Chambers at Clearwater, Pinellas County, Florida this 2nd day of December, 1974.”

A high degree of conclusiveness attaches to an arbitration award because the parties themselves have chosen to go this route in order to avoid the expense and delay of litigation. Johnson v. Wells, 72 Fla. 290, 73 So. 188 (1916). The arbitrator is the sole and final judge of the evidence and the weight to be given to it. Bankers & Shippers Insurance Company v. Gonzalez, 234 So.2d 693 (Fla.3d DCA 1970). The proceedings before an arbitrator are not generally to be examined by the court for the purpose of determining how the arbitrator arrived at his award. Weeki Wachee Orchid Gardens v. Florida Inland Theatres, 239 So.2d 602 (Fla.2d DCA 1970).

The Florida Arbitration Code specifically states when a court may vacate an arbitration award. Thus, Section 682.13, Florida Statutes (1973) provides:

“682.13 Vacating an award.—
(1) Upon application of a party, the court shall vacate an award when:
(a) The award was procured by corruption, fraud or other undue means;
(b) There was evident partiality by an arbitrator appointed as a neutral or corruption in any of the arbitrators or umpire or misconduct prejudicing the rights of any party;
(c) The arbitrators or the umpire in the course of his jurisdiction exceeded their powers;
(d) The arbitrators or the umpire in the course of his jurisdiction refused to postpone the hearing upon sufficient cause being shown therefor or refused to hear evidence material to the controversy or otherwise so conducted the hearing, contrary to the provisions of § 682.06, as to prejudice substantially the rights of a party; or
(e) There was no agreement or provision for arbitration subject to this law, unless the matter was determined in proceedings under § 682.03 and unless the party participated in the arbitration hearing without raising the objection;
But the fact that the relief was such that it could not or would not be granted by a court of law or equity is not ground for vacating or refusing to confirm the award.”

Measured against the statute and the applicable case law, it is evident that the grounds upon which the first award was vacated were legally insufficient. While the court indicated that Affiliated may have perpetrated a fraud in the arbitration proceedings, it was also acknowledged that if the explanation offered by Affiliated were true, Affiliated was entitled to the award. Despite the fact that the order points out that the arbitrator apparently believed the explanation, the award was vacated with directions to the arbitrator to seek corroboration of the verity of the explanation.

The court may well have been correct in concluding that in a court of law the evidence presented to the arbitrator would have been insufficient to support the award. The point is that the parties were not in a court of law. When the parties agreed to arbitration, they gave up some of the safeguards which are traditionally afforded to those who go to court. One of these safeguards is the right to have the evidence weighed in accordance with legal principles.

Since the original award should not have been set aside, the proceedings thereafter were, in essence, a nullity. If these proceedings had in fact developed that the arbitrator had been partial to Affiliated, this might constitute the basis for an attack on the first award. However, as we view the record, the conduct of the arbitrator occurring after the first award was vacated was at the most acts of pique precipitated by what the arbitrator must have viewed as an unwarranted invasion into his prerogatives. The record does not reflect any of the statutory grounds for setting aside an arbitration award.

The order vacating the default judgment is affirmed. The final judgment is reversed with directions to reinstate the first arbitration award and to enter a judgment confirming this award.

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


text:
    SEVILLE CONDOMINIUM # 1, INC., et al., Appellants, v. CLEARWATER DEVELOPMENT CORPORATION et al., Appellees.
    No. 76-913.
    District Court of Appeal of Florida, Second District.
    Dec. 17, 1976.
    Rehearing Denied Jan. 27, 1977.

      Steven A. Anderson, of Anderson, Thorn, Grose & Quesada, Tampa, for appellants.
    Gilbert P. Macpherson and Howard C. Batt of Robinson, Macpherson, Johnson & Harper, Clearwater, for appellees.
   GRIMES, Judge.

This interlocutory appeal involves a dispute between eight condominium associations at the Seville Condominium complex in Pinellas County on the one hand (hereinafter called the Associations) and the developer and the management corporation for the complex on the other (hereinafter called the Management Corporation).

The Associations had previously entered into contracts with the Management Corporation providing for the maintenance and management of the condominiums, their recreational facilities and the common areas. In 1975, the parties fell into an acrimonious dispute. The Management Corporation notified the Associations that it was raising its fees pursuant to an escalation clause in the contracts. The Associations contended that the Management Corporation had no right to raise the fees and further that it was not properly performing the services required of it under the contracts.

Most of the residents of the Associations did not pay the increased maintenance fees. Premised upon the view that the Management Corporation was not properly performing its contracts, the Associations recommended to their members that no fees be paid whatsoever. Further, the Associations took steps toward bringing in a new management corporation. At this point, the Management Corporation brought suit seeking to enjoin the Associations and their principals from interfering with the collection of maintenance fees and seeking damages on a theory of tortious interference of contract. Two weeks later the court entered a temporary injunction directing that all management fees be paid according to the contract documents until further order and providing for an escrow of certain disputed payments.

In the meantime, the Associations had brought a class action on behalf of all the condominium residents against the Management Corporation. This suit was filed several hours after the Management Corporation’s suit and requested a variety of relief including the cancellation of the management contract, an accounting of the maintenance fees and damages. Upon motion of the Management Corporation and with the concurrence of the Associations, the two suits were consolidated by an order entered a week after the entry of the temporary injunction. Ten days later the Management Corporation filed motions to dismiss the Associations’ complaint. The following day the Management Corporation filed a motion to compel arbitration in the suit brought by the Associations. The court entered an order granting this motion, and one of the points on this appeal involves the propriety of this order.

While conceding that the subject matter of their complaint is within the scope of the arbitration provision of the contracts, the Associations insist that the Management Corporation waived its right to arbitration. Our analysis of this complicated proceeding compels us to agree.

In an exchange of correspondence which took place over a period of several months before the suits were filed, both sides through their attorneys had demanded arbitration of certain disputes pursuant to the arbitration clause in the contracts. At the same time both sides dragged their feet with respect to implementing the arbitration proceedings, and each side contended that only certain of the disputes were arbi-trable. In essence, both sides took positions either in support of or opposing arbitration depending upon when and under what circumstances it was deemed to be in their own best interests.

At one point the Management Corporation’s attorney unequivocally stated that the relief requested by the Associations was not arbitrable. The fact that the Associations also sometimes took positions inconsistent with arbitration is not important because the Associations are not now seeking arbitration. Our concern is whether the actions of the Management Corporation were so inconsistent with arbitration as to constitute a waiver. If there was any doubt, we think this was resolved when the Management Corporation was first to initiate legal action concerning the subject matter of the dispute and sought nothing by way of arbitration. Admittedly, some of the relief prayed for was beyond the scope of arbitration, but some of the issues which will have to be decided in that suit appear to be within the scope of arbitration provision. It is significant to note that the Management Corporation’s complaint contained no prayer for arbitration of any matters deemed to be arbitrable, but simply sought a miscellany of relief from the court. Cf. Ojus Industries, Inc. v. Mann, 221 So.2d 780 (Fla. 3d DCA 1969).

The first time in either suit that the Management Corporation made any contention that arbitration should apply was after the injunction had been granted, after the two suits had been consolidated, and after its motion to dismiss the Associations’ suit had been filed. At no time was any request for arbitration filed in the Management Corporation’s suit. The Management Corporation apparently wants to have the Associations’ suit determined by arbitration and its own suit determined by the court. Be that as it may, we think that the posture of this case and the inconsistent positions taken by the Management Corporation require that the order referring the case to arbitration be set aside.

It is well settled that a party may waive its right to arbitration by inconsistent conduct. Mike Bradford & Co. v. Gulf States Steel Co., 184 So.2d 911 (Fla. 3d DCA 1966); 6 Williston, Contracts, § 1921A (Rev. Ed.1938); 5 Am.Jur.2d, Arbitration, § 51. The prosecution or defense of a lawsuit on issues subject to arbitration may constitute a waiver. Gettles v. Commercial Bank at Winter Park, 276 So.2d 837 (Fla. 4th DCA 1973); Mike Bradford & Co. v. Gulf States Steel Co., supra. In both of the foregoing cases the party who was deemed to have waived arbitration had proceeding much further in a lawsuit than the Management Corporation in this case. Nevertheless, when the actions of the Management Corporation in connection with the suits are considered together with the positions it took during pre-suit skirmishing, we conclude that a waiver occurred.

The other order attacked in this appeal relates to the request for notice to be given to all of the condominium residents in order for the court to make a final class determination and to provide appropriate proceedings for class representation and organization. We find no error in the entry of this order.

AFFIRMED IN PART, REVERSED IN PART.

BOARDMAN, Acting C. J., and GREEN, OLIVER L., Associate Judge, concur.


author: PER CURIAM.

text:
    Al PORCO and Tom Werner, Appellants, v. David R. LOVE et al., Appellees. Al PORCO and Tom Werner, Appellants, v. Richard H. KEES et al., Appellees.
    Nos. 75-1733, 75-1734.
    District Court of Appeal of Florida, Third District.
    Dec. 20, 1976.
    Rehearing Denied Jan. 12, 1977.

      Noriega, Bartel, Chopp, Schatz, Levine & Shuford, Miami, for appellants.
    Magill & Sevier, Taylor, Brion, Buker & Greene, Miami, for appellees.
    Before HENDRY and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Appellants Porco and Werner appeal from an adverse final judgment awarding the appellees Kees and Love damages for the conversion of fill which was taken from the appellees’ property. Appellants assert as error the fact that the appellee-plaintiffs failed to show that they owned the fill, specifically urging that the trial court should not have ruled on the question of ownership without having heard testimony relative to that issue by appellants’ expert witness. Appellants also claim that the damage award was not supported by the evidence and that counsel for the adverse parties made improper appeals to the jury during their closing arguments.

The fill in question was deposited on the appellees’ land by the Central and Southern Florida Flood Control District pursuant to an easement from the original owner of the property, Arvida Corporation. The Flood Control District was in the process of digging a canal across a strip of land which bordered on Arvida’s property. According to the terms of the easement, Arvida was to keep “all dredged or excavated materials” placed upon the land which were not needed for the project. The canal excavation was completed by 1968.

In 1966, Arvida conveyed title to the property bordering on the canal to Pan American Citrus Corporation. Pan American subsequently transferred portions of its parcel to the appellees Love and Kees.

In late December 1972 or early January 1973, Frisa Corporation (an appellee herein and defendant below) contacted Porco concerning Frisa’s need for land fill for a development project. Porco contacted Wer-ner, who advised that he owned property along the canal and that he was interested in selling fill to Frisa. In addition, he offered to check as to the willingness of other property owners in the area to sell fill.

Frisa began extracting fill from the land along the canal in 1973, pursuant to an agreement with Werner. Porco was to collect payment from Frisa for removed fill at a purchase price of twenty-two cents per cubic yard. Of that price, Porco and Wer-ner were to receive six cents apiece for their labor and services, with the balance going to the various real property owners.

Frisa began removing fill from the property of Kees and Love in April of 1973. Kees complained to Werner, since no one had obtained consent to remove fill from the property of either Kees or Love. After discussing the matter with Frisa and Porco, Werner offered to pay Kees and Love ten cents per cubic yard for any fill which had been removed. Frisa admitted to having removed 24,000 cubic yards of fill from the appellees’ property. There is some dispute as to whether Kees and Love agreed to the purchase price, but they did not in fact accept the checks which were proffered by Porco.

Thereafter, independent lawsuits were filed alleging conversion of the fill. The suits were consolidated, and the appellants were ultimately held liable for conversion of the fill and for breach of the 1973 agreement with Frisa.

Appellants’ argument concerning title to the fill in question cannot be successful under the facts of this case. It is not disputed that the fill was actually removed from property belonging to Kees and Love, and that the latter held legal title to the land. Whether they actually held title to the fill itself is not relevant, for the fact remains that the fill was in their possession while it was on their property; in addition, Porco and Werner did not allege that they had title to the fill, but rather that ownership rested in Arvida Corporation. Under these circumstances, we feel that the Florida Supreme Court’s decision in Skinner v. Pinney, 19 Fla. 42 (1882), is controlling, and that the appellees Love and Kees could successfully bring an action for conversion of the land fill.

Since we have stated our belief that the question of ownership was not critical to the appellee’s suit, and further that the appellants could not assert ownership of a third party as a defense to the conversion action, we find that the trial court’s ruling as to ownership did not constitute reversible error.

As to the damage award, we find that the verdict was supported by substantial competent evidence. Appellant’s final point is without merit.

Affirmed.


text:
    Michael WEINER, M.D., Appellant, v. LOZMAN AND WEINBERG, P.A., and Harvey Lozman, Individually, Appellees.
    No. 75-1797.
    District Court of Appeal of Florida, Third District.
    Dec. 20, 1976.
    Rehearing Denied Jan. 12, 1977.
    Krongold & Bass and Theodore R. Bayer, Miami, for appellant.
    Noriega, Bartel, Chopp, Schatz, Levine & Shuford, Miami, for appellees.

      Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Appellant seeks reversal of the trial court’s order dismissing his complaint with prejudice.

The complaint alleged that the defendants, Lozman and Weinberg entered into and breached a written employment agreement with the plaintiff and that defendant, Harvey Lozman tortiously interfered with such agreement.

Attached to the complaint was a copy of the alleged contract which showed on its face that it was not signed by all of the parties charged.

The defendants moved to dismiss the complaint on the grounds that it failed to state a cause of action upon which relief could be granted. The court granted their motion to dismiss with prejudice.

Appellant contends that the trial court erred in dismissing the complaint for failure to state a cause of action. We find this contention to be without merit. However, there is merit in appellant’s contention that the trial judge should not have dismissed the complaint with prejudice. He should have been given leave to amend. Town of Micanopy v. Connell, 304 So.2d 478 (Fla. 1st DCA 1974).

Affirmed in part and reversed in part, with directions to allow plaintiff to amend his complaint.


text:
    CITIES SERVICE OIL COMPANY, a corporation, Appellant, v. The LEGATO CORPORATION, a corporation, and Thomas Legato, Appellees.
    No. 75-1812.
    District Court of Appeal of Florida, Third District.
    Dec. 20, 1976.
    Rehearing Denied Jan. 12, 1977.
    Fleming, O’Bryan & Fleming, Fort Laud-erdale, for appellant.
    Krongold & Bass, Miami, for appellees.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

The point on appeal is whether the circuit court erred in granting appellees’ motion for final summary judgment in their suit against appellant for specific performance of a contract to convey a certain parcel of real estate to appellee, The Legato Corporation.

We have concluded, after a careful examination, that the record on appeal establishes the absence of any genuine issues of material fact and that appellees were entitled to a summary final judgment as a matter of law. The judgment appealed is accordingly affirmed.

Affirmed.


author: PEARSON, Judge.

text:
    Bobby L. PAUL, Appellant, v. The STATE of Florida, Appellee.
    No. 76-316.
    District Court of Appeal of Florida, Third District.
    Dec. 20, 1976.
    Rehearing Denied Jan. 12, 1977.
    Phillip A. Hubbart, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before PEARSON and HENDRY, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PEARSON, Judge.

The defendant appeals his conviction by the court, without a jury, and a sentence of seven years in the state prison for the crimes of 1) breaking and entering with intent to commit grand larceny and 2) grand larceny. Three points are presented. The first urges reversible error because of the admission into evidence of defendant’s confession made upon interrogation by police officers after defendant’s arrest that he had been involved in seventeen specific cases of burglary. The second urges denial of a motion to suppress “all written and oral statements made by the Defendant.” The third urges error for the imposition of a general sentence upon the finding of guilt of the two separate crimes.

We dispose of the second point first. No violation of defendant’s constitutional rights under the Fifth, Sixth or Fourteenth Amendment of the Constitution of the United States appears in this record.

The sole factor to be considered upon the admission of the confession of involvement in other burglaries is whether the evidence was relevant to the charge in this case. The rule has been stated in Ashley v. State, 265 So.2d 685 (Fla.1972):

“It is well settled in this state that evidence of other crimes is admissible if it casts light on the character of the act under investigation by showing either motive, intent, absence of mistake, common scheme, identity or a system or general pattern of criminality so that the evidence of such other crimes would have a relevant or material bearing upon some essential aspect of the offense then being tried.”
******

The record in the present case shows that after the arrest, the defendant was taken into a room where the folders containing information on seventeen unsolved burglaries were laid out on the table. He was asked about his involvement in these cases. The officers testified that the defendant admitted that he committed the burglaries and kept saying, “Let me go. I did it. Let me go. Set me free.”

We find that as to the crime for which the defendant was tried, there is no relevance in the testimony of the police officers that the defendant admitted involvement in the unsolved crimes. It is evident defendant is a habitual criminal and that he frequently commits burglaries. There is no doubt that this admission would go far to convince men of ordinary intelligence that the defendant was probably guilty of the crime charged. But, the criminal law departs from the standard of the ordinary in that it requires proof of a particular crime. Where evidence has no relevancy except as to the character and propensity of the defendant to commit the crime charged, it must be excluded. Williams v. State, 110 So.2d 654 (Fla.1959). We conclude that the erroneous admission of the damaging evidence may have deprived the defendant of a fair trial, and we will reverse his conviction with directions that he be granted a new trial.

Defendant’s third point urging error in a general sentence upon two separate crimes would appear to be moot at this time. Nevertheless, we point out that, in our opinion, such a sentence is contrary to the rule stated in Darden v. State, 306 So.2d 581 (Fla.2d DCA 1975).

Reversed and remanded with directions to grant the appellant a new trial.

      . This practice is testified to be an aid in police work so that cases may be moved from an open or unsolved category to a closed category.


text:
    The STATE of Florida, Appellant, v. William Stanley ELBERTSON, Appellee.
    No. 76-993.
    District Court of Appeal of Florida, Third District.
    Dec. 20, 1976.

      Richard E. Gerstein, State’s Atty., and George Volsky, Asst. State’s Atty., for appellant.
    Richard G. Taylor, Miami, for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PEARSON, Judge.

The State has appealed an order granting the defendant’s motion to suppress marijuana plants seized at the time of his arrest for the possession of a controlled substance. The trial judge has set forth the facts found to have been established at the hearing on the motion.

“1. The arresting officers went to the residence of the Defendant at night as a result of a report of a burglary in progress. They also were to serve a warrant on another individual on charges unrelated to the charges against this Defendant. The other individual was not at the residence.
“2. The officers established that no burglary was in progress by examining Defendant’s driver’s license and other papers.
“3. As the officers prepared to leave the premises, they went to the rear of the residence and flashed a light through spaces in the high wooden fence, observing marijuana plants inside Defendant’s yard. The officers opened the gate.
“4. The officers then proceeded to the patio door of the residence and knocked. When the door was opened by the Defendant, who was accompanied by an officer who was inside the residence, marijuana was observed inside the door.”

We hold that the facts recited and the evidence received upon the motion do not support the order suppressing the evidence. The search was not illegal where the contraband was in plain view. See Harris v. U. S., 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968). The fact that the contraband was seen through a fence and with the aid of a flashlight is not a bar to the “plain view” rule. See Marshall v. U. S., 422 F.2d 185, 189 (5th Cir. 1970).

Reversed and remanded.


text:
    Randy L. FREEMAN, Appellant, v. STATE of Florida, Appellee.
    No. 76-872.
    District Court of Appeal of Florida, Second District.
    Dec. 22, 1976.

      Jack 0. Johnson, Public Defender, Bar-tow, and Douglas A. Wallace, Asst. Public Defenders, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant’s probation was revoked. The trial court adjudicated him guilty of the underlying offenses and sentenced him to terms of imprisonment within the statutory limits.

The trial court gave him credit of only 62 days for time previously served. Yet, the record shows that the appellant had served approximately six months in the county jail as a condition of his probation. Pursuant to State v. Jones, 327 So.2d 18 (Fla.1976), the appellant was entitled to credit on his new sentence for that time which he had served in the county jail as a condition of his probation, provided that he had not already been given credit on a different sentence for that time period. We cannot tell whether any portion of the time he spent in jail was credited to a different sentence.

The judgment is affirmed, but we remand this case to the trial court for reconsideration of appellant’s credit for time served in light of State v. Jones, supra. If upon reconsideration the court finds appellant entitled to further credit, the sentence shall be reduced accordingly. The appellant need not be present at the reconsideration proceeding.

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


author: BOARDMAN, Acting Chief Judge.

text:
    Kenneth G. GUNDERSEN d/b/a Gundersen’s Service Afloat, Appellant, v. Robert M. POWELL, Appellee.
    No. 76-1276.
    District Court of Appeal of Florida, Second District.
    Dec. 22, 1976.

      Robert Payne Summers, Law Offices, of W. R. Scott, Stuart, for appellant.
    Donald W. Belveal, Tampa, for appellee.
   BOARDMAN, Acting Chief Judge.

This is an interlocutory appeal from an order entered by the Hillsborough County Circuit Court setting aside its prior order transferring venue to the Martin County Circuit Court and directing that all future proceedings in the case be conducted in the Hillsborough court.

The trial judge found that appellant/defendant had not satisfied the requirements of Section 47.191, Florida Statutes, because he failed to pay the costs which had accrued in the Hillsborough County action and that thereby the order transferring venue was ineffective.

The suit was originally filed in Hills-borough County. The appellant filed a motion to abate for improper venue because the suit was not brought in the county where the appellant resided, where the cause of action accrued or where any property in litigation was located. Both parties then stipulated and requested that the action be transferred from Hillsborough County to Martin County. On April 20, 1976, the court entered an order transferring venue to Martin County. The order was silent with respect to the payment of any costs. Acting upon the April 20, 1976 order the clerk for Hillsborough County transferred the files of the action to Martin County as directed, and appellant paid the filing fee in the Martin County court on May 17, 1976.

Section 47.191, Florida Statutes, states that:

No change of venue shall be granted except on condition that the movant shall pay all costs that have accrued in the action. No change is effective until the costs are paid.

Appellee/plaintiff contends that the change in jurisdiction was not effective because appellant did not reimburse him for the amount of the initial filing fee in the Hills-borough County court nor the cost of the sheriff’s service of process on appellant. We do not construe and interpret the statute as requiring the appellant to reimburse the appellee for the cost of the filing fee and service of process before the case could properly be transferred when under the venue statutes the appellant had the privilege of not being sued in Hillsborough County in the first place. In Swepson v. Call, 13 Fla. 337 (1871), relied upon by ap-pellee, the parties required to pay the costs in order to effect a change of venue were seeking the change on grounds of disqualification of the judge and not because they had been sued in the wrong county.

Under the facts presented in this case we hold that jurisdiction had effectively vested in Martin County when the file was forwarded to the clerk of the circuit court in Martin County and appellant’s counsel paid the filing fee. Therefore the Hillsborough County Circuit Court was without jurisdiction to make any further order or take any action in the case. Ven-Fuel v. Jacksonville Electric Authority, 332 So.2d 81 (Fla.3d DCA 1975). See also Kern v. Kern, 309 So.2d 563 (Fla.2d DCA 1975).

Accordingly we reverse the order appealed and remand for further proceedings consistent with this opinion.

REVERSED and REMANDED.

GRIMES, J., and GREEN, OLIVER L., Associate Judge, concur.


text:
    Carl ROBINSON, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1740.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 1976.
    Rehearing Denied Jan. 12, 1977.
    Jesse J. McCrary, Jr., Mitchell M. Goldman, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Linda C. Hertz, Asst. Atty. Gen., for appellee.
    Before BARKDULL, C. J., and HAVER-FIELD and NATHAN, JJ.
   PER CURIAM.

Affirmed. Mackiewicz v. State, 114 So.2d 684 (Fla.1959); Lynch v. State, 293 So.2d 44 (Fla.1974); Spinkellink v. State, 313 So.2d 666 (Fla.1975). Accord McCutchen v. State, 96 So.2d 152 (Fla.1957).


text:
    Muriel KAFKA, Appellant, v. Myron J. KAFKA, Appellee.
    No. 75-1936.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 1976.
    Rehearing Denied Jan. 13, 1977.
    Sinclair, Louis, Siegel & Heath and Leonard H. Rubin, Miami, and John L. Zavert-nik, North Miami, for appellant.
    Aronovitz & Weksler, Miami, for appel-lee.
    Before PEARSON, HENDRY and NATHAN, JJ.
   PER CURIAM.

Affirmed. See Shaw v. Shaw, 334 So.2d 13 (Fla.1976).


text:
    The KEYES COMPANY, Appellant, v. FLORIDA NURSING CORPORATION, Appellee.
    No. 75-1961.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 1976.

      Sager & Burns and Joseph Pardo, Miami, for appellant.
    John R. Farrell and M. Sue Barrett, Miami, for appellee.
    Before PEARSON, HENDRY and HAV-ERFIELD, JJ.
   PER CURIAM.

This is an appeal from a summary final judgment for the defendant, Florida Nursing Corporation, in an action where the plaintiff, Keyes Company, sought to recover a real estate commission. The court has given us the benefit of its reasoning by a full opinion set out as follows:

“This cause came before the Court upon the Defendant’s Motion for Summary Judgment and for Dissolution of Temporary Injunction, and upon the Plaintiff’s Motion for Summary Judgment.
“Previously, the Court heard argument on Defendant’s Motion for Judgment on the Pleadings, during which argument the parties stipulated as follows to the only two possible disputed factual issues, to wit:
“(1) That as of the date of execution of the agreement upon which the Plaintiff bases its action, that property commonly known as Live Oaks Nursing Home, 2200 N.W. 26th Street, Miami, Florida constituted the entire corporate assets of the defendant corporation;
“(2) That an inventory of furnishings and equipment was not attached to that instrument captioned option, a copy of which is attached to Amended Complaint as Plaintiff’s Exhibit A, at the time of execution of said instrument. .
“The parties agreed that there is no dispute as to other material facts and that the only issues to be determined in this cause are issues of law. The Court concurs. Upon consideration of memo-randa, pleadings, depositions, affidavits and matter of which the Court has taken Judicial notice, the Court finds that there is no material factual issue to be determined in this cause.
“The undisputed facts in this cause clearly establish that title to that property of the Defendant, passed to and vested in Dade County solely as a consequence of the County’s exercise of its powers of eminent domain and not as the result of a voluntary sale between the Defendant and Dade County.
“Upon consideration of the foregoing, the Court concludes as a matter of law that condemnation of the Defendant’s property by Dade County is not tantamount to a sale so as to entitle the Plaintiff to a broker’s commission. Wilson v. Frederick R. Ross Investment Co., 161 [116] Colo. 249, 180 P.2d 226 (1947); Haigler v. Ingle, [119 Colo. 145,] 200 P.2d 913 (Colo., 1948); Shaw v. Avenue D. Stores, Inc., [Sup.,] 115 N.Y.S.2d 194 (1952).
“The Court further concludes as a matter of law that according to the terms of the agreement upon which Plaintiff bases its claim, the Defendant clearly reserved unto itself the right to withdraw the subject property at any time prior to consummation of a sale without incurring liability to the Plaintiff for a broker’s commission. Curran & Mac Donnell v. Pearre, 212 [202] So.2d 858 (1st D.C.A. Fla., 1967); Fenton v. Teichman, 277 So.2d 562 (3rd D.C.A. Fla., 1973); affirming Summary Judgment in Dade Circuit Case No. 72-12583; and Warter v. Bancroft Hotel Associates, Inc., 285 So.2d 676 (3rd D.C.A. Fla., 1973). Also generally Hanover Realty Inc. v. Codomo, 95 So.2d 420 (Fla., 1957).
“The Court finds it unnecessary to reach the other issues of law raised by the parties as the foregoing determinations are fully dispositive of the rights and liabilities of the parties herein.”
* * Sfc * * >¡S

On this appeal, appellant argues that summary judgment was wrongfully entered for the defendant and should have been entered for the plaintiff. Upon an examination of the record before us, we hold that summary judgment was wrongfully entered but that the issues presented by the pleadings were proper subjects for a trial in this cause.

The facts may be briefly stated. Dade County, the governmental authority, sought the assistance of Keyes Company in finding a property to be used as a rehabilitative center for chronic alcoholics. There was no agreement of Dade County to pay a brokerage commission. The plaintiff found the property of the defendant Florida Nursing Corporation and secured from it an option agreement whereby Dade County could purchase the property. At the same time, plaintiff secured from the defendant property owner an agreement to pay a brokerage commission. The agreement in full is as follows:

“January 9, 1973

In consideration for finding a purchaser — Metropolitan Dade County, Florida— for property located in Dade County, Florida and legally described as Tract A and N 77.1 feet of Tract B, Zipes Sub-Division, PB 78 — page 54, AKA Live Oaks Nursing Home, AKA 2200 N.W. 26th Street, Miami, Florida, - the undersigned jointly and severally agree upon completion of this sale to pay to THE KEYES COMPANY, Broker, as a commission for finding said purchaser of the above property the sum of-6% of the purchase price $102,000. Commission payable only when, as and if transaction is fully consummated.” [Emphasis supplied]

Dade County accepted the option agreement although, as noted by the trial court in its opinion, an inventory of the furnishings and equipment of the property to be sold was not completed. The defendant then refused to go forward with the sale because of a change in management.

Dade County was under an immediate necessity to acquire the facility because of a requirement of a state statute. When the defendant refused to proceed under the option agreement, Dade County began eminent domain proceedings. During the progress of these proceedings, the parties agreed to a price and conditions of a judgment of condemnation and Dade County took over the property.

Appellee’s position is that the agreement to pay a commission was conditioned “ . upon completion of this sale . . . ” It is, thereupon, urged that an eminent domain proceeding is not a sale. This position is well-supported by the cases cited by the court in its opinion. See Wilson v. Frederick R. Ross Inv. Co., 116 Colo. 249, 180 P.2d 226, 170 A.L.R. 1410 (1947); Haigler v. Ingle, 119 Colo. 145, 200 P.2d 913 (1948); and Shaw v. Avenue D. Stores, Inc., Sup., 115 N.Y.S.2d 194 (1952).

If the letter agreement is given force as a promise to pay a commission for the finding of a purchaser as is indicated in the opening line thereof, then appellant’s position is supported by those cases holding that a seller may not, after a broker has become entitled to a commission for the finding of a purchaser, frustrate the broker’s right to a commission by its own wrong in refusing to proceed with the sale. See Hutchins & Co. v. Sherman, 82 Fla. 167, 89 So. 430 (1921); Walker v. Chancey, 96 Fla. 82, 117 So. 705 (1928); Hart v. Pierce, 98 Fla. 1087, 125 So. 243 (1929); and Miller v. Moylan, 12 So.2d 380 (Fla.1954).

The language of the agreement that “[cjommission payable only when, as and if transaction is fully consummated” does not refer to a sale, and an issue to be tried might well be whether, in fact, the eminent domain proceeding was a consummation of the transaction. It is suggested by the appellant that the facts of the transaction are readily susceptible to a finding by a jury that the eminent domain proceedings were a continuation of the negotiations initiated by the Keyes Company after it performed the. duty of finding a purchaser. It is pointed out that the failure of the initial proposal for sale embodied in the option agreement was caused entirely by the seller’s refusal to proceed.

We conclude that an issue remains upon the allegation that the plaintiff found a purchaser and the defendant frustrated the sale by its own actions. We reverse the summary final judgment for the defendant and remand the case for a trial of the other issues raised by the pleadings.

Reversed and remanded.


text:
    David GOLTZER, Appellant, v. Linda C. GOLTZER, Appellee.
    No. 75-1983.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 1976.
    Appeal from Circuit Court, Dade County; Jack M. Turner, Judge.
    Edwin A. Willinger, Miami Beach, for appellant.
    Moore, Kessler, Roth & Beckerman, Miami, for appellee.
    Before BARKDULL, C. J., and HENDRY and NATHAN, JJ.
   PER CURIAM.

Affirmed. Firestone v. Firestone, 263 So.2d 223 (Fla.1972); Bosem v. Bosem, 279 So.2d 863 (Fla.1973); Schalk v. Schalk, 285 So.2d 39 (Fla. 4th D.C.A.1973); Horne v. Horne, 289 So.2d 39 (Fla. 2nd D.C.A.1974).


text:
    Robert FORT, a minor, by and through his mother and next friend, Janice Fort, and Janice Fort, Individually, Appellants, v. Thomas O’STEEN and Allstate Insurance Company, Appellees.
    No. 76-7.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 1976.
    Robert E. Brandt, Miami, for appellants.
    Weinstein & Bavly, Miami, for appellees.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Reversed on the authority of Holl v. Tal-cott, 191 So.2d 40 (Fla.1966); Visingardi v. Tirone, 193 So.2d 601 (Fla.1967) and Sorrells v. Mullins, 303 So.2d 385 (Fla. 3rd DCA 1974).


text:
    INDUSTRIAL FIRE AND CASUALTY INSURANCE COMPANY, Appellant, v. Paula BEEBE, Appellee.
    No. 76-63.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 1976.

      Robyn Greene, Goodhart & Rosner, Miami, for appellant.
    Salomon & Chaffin, Miami, for appellee.
    Before PEARSON and HENDRY, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

This appeal by Industrial Fire and Casualty Insurance Company, the defendant below, is from an adverse summary judgment. The plaintiff, Paula Beebe, was an insured under an automobile indemnity policy issued by the defendant to Russell Beebe which included uninsured motorist coverage. The appellant challenges the correctness of the holding that an exclusionary clause in the policy, which would have precluded recovery thereunder by the plaintiff, was against public policy, and ordering the defendant to proceed to arbitration.

Paula Beebe was injured in an automobile accident, a two car collision. Paula was insured under a policy issued by Gateway Insurance Company. The other party to the accident was insured by Resources Insurance Company. Because of the insolvency of those two insurance companies, Paula sought recovery under the uninsured motorist provision of the policy issued by the defendant to Russell Beebe. She was an insured under the provisions of that policy as a member of the family and living in the household of the named insured.

Disclaimer of such coverage by the defendant insurer prompted the filing of this action by Paula against said insurer to establish coverage and compel arbitration. The defendant answered, averring plaintiff was not entitled to coverage under its policy issued to Russell Beebe, and pleading, as the basis therefor, an exclusionary clause in its policy which provided that the policy would not apply to the principal named insured or his relatives while occupying or struck by an automobile owned by an insured named in the Declarations or his relatives.

Plaintiff filed a motion for summary judgment, which she supported with certain evidentiary matter. The defendant did not present any affidavits or evidence in opposition. The proceedings before the court on the motion for a summary judgment were not transcribed, and are not shown in the record. The summary judgment, ruling as stated above, was entered in favor of the plaintiff.

The first point on this appeal deals with the exclusionary clause. The trial court correctly held the exclusion was not effective to deprive the plaintiff of the benefit of the uninsured motorist coverage of the policy. Mullis v. State Farm Mutual Automobile Insurance Company, 252 So.2d 229 (Fla.1971); Salas v. Liberty Mutual Insurance Company, 272 So.2d 1 (Fla.1973).

A second contention by the appellant was that by making a claim against Florida Insurance Guaranty Association, for benefits provided under the policy which had been issued to her by her insolvent insurer, as provided for in Section 627.727, Florida Statutes (1975), the plaintiff Paula had made an election of remedies which operated to bar her from seeking recovery under the uninsured motorist provision of the policy issued by the defendant to Russell Beebe.

On consideration of the record and briefs, we find no reason to disturb the ruling of the trial court which rejected that contention of the appellant. As pointed out by the appellee, evidence that such a claim was made by the plaintiff is not shown in the record. Nor does the record show the result or outcome of such a claim, if in fact it was made. Moreover, that stated action by the plaintiff would not appear to be such as would constitute an effective election of remedies. Cooley v. Rahilly, 200 So.2d 258 (Fla. 4th DCA 1967); Klondike, Inc. v. Blair, 211 So.2d 41 (Fla. 4th DCA 1968).

The summary judgment is affirmed.


text:
    Joyce D. SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 76-367.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 1976.
    Carling Stedman and Stephen L. Raskin, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen. and Harold Rosenfeld, Legal Intern, for appellee.
    Before BARKDULL, C. J., and HENDRY and NATHAN, JJ.
   PER CURIAM.

The appellant-defendant was found guilty of possession of controlled substance, to-wit: heroin.

This appeal is from the judgment and sentence of three years probation.

We have carefully considered the record on appeal, briefs and arguments of counsel and conclude that no reversible error has been shown. Therefore, the judgment appealed is affirmed.

Affirmed.


text:
    Thomas PANNIER, Appellant, v. The STATE of Florida, Appellee.
    No. 76-452.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 1976.

      Phillip A. Hubbart, Public Defender and Karen M. Gottlieb, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Sidney M. Pertnoy, Asst. Atty. Gen., for appellee.
    Before PEARSON, HENDRY and HAV-ERFIELD, JJ.
   PER CURIAM.

Defendant was found guilty of assault with intent to commit robbery and assault with intent to commit rape. He was sentenced to two fifteen year sentences to be served concurrently. On this appeal, the single point presented urges that the court erred in sentencing the defendant for both assault with intent to commit robbery and assault with intent to commit rape because both charges arose out of the same transaction. See Yost v. State, 243 So.2d 469 (Fla.3d DCA 1971). The cited case is inapplicable to the facts of the instant case in that the record clearly shows two separate assaults. Therefore, the defendant may be sentenced for the separate offenses. See Booth v. State, 332 So.2d 157 (Fla.lst DCA 1976); and Amerson v. State, 303 So.2d 377 (Fla.lst DCA 1974).

Affirmed.


text:
    Myron L. RADLIN, Appellant, v. AERO SYSTEMS, INC., a Florida Corporation, Appellee.
    No. 76-719.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 1976.
    Underwood, Gillis, Karcher, Reinert & Gordon, Miami, for appellant.
    Batchelor, Brodnax, Guthrie & Primm, Miami, for appellee.
    Before BARKDULL, C. J., and PEARSON and NATHAN, JJ.
   PER CURIAM.

This appeal is from an order denying a motion to dismiss for lack of jurisdiction over the person. The sole question is whether or not the appellant had sufficient minimum contact to entitle the appellee (plaintiff) to perfect substituted service of process, pursuant to § 48.181, Fla.Stat.

The appellant has provided this court with a copy of the sworn complaint, the exchange agreement, plan of reorganization, and release and acknowledgement of warranty payable. These documents, along with the order appealed, constitute the entire record on appeal. The court was not provided with a copy of the motion to dismiss. The complaint and documents related to a corporate stock exchange. The appellant was a party to these contracts in Florida, visited the area relative to the business of the corporations, executed subsequent modification contracts. These were all for his pecuniary benefit.

Therefore, it would appear that the order under review should be affirmed on the authority of McCarthy v. Little River Bank and Trust Company, 224 So.2d 338 (Fla. 3rd D.C.A. 1969); DeVaney v. Rumsch, 228 So.2d 904 (Fla.1969); 4th Dimension Interiors, Inc. v. Decorator Services, Ltd., 256 So.2d 571 (Fla. 3rd D.C.A. 1972); Elmex Corporation v. Atlantic Federal Savings & Loan Association of Fort Lauderdale, 325 So.2d 58 (Fla. 4th D.C.A. 1976).

Affirmed.


text:
    Gregory LATIMORE, a minor child, by and through his mother and next friend, Pearline Latimore, and Pearline Latimore, Individually, Appellants, v. Clifford MATTHEWS, Individually and in his official capacity as Principal of Lillie C. Evans Elementary School, and Edward Whigham, Individually and in his capacity as Superintendent of the Dade County School System, Appellees.
    No. 76-1269.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 1976.
    Stephen T. Maher, Miami, for appellants.
    Leland E. Stansell, Jr., and Robert A. Glassman, Frank A. Howard, Jr., Miami, for appellees.
    Before BARKDULL, C. J., and PEARSON and NATHAN, JJ.
   PER CURIAM.

By this appeal, plaintiffs question the correctness of a trial court’s dismissing their cause for failure to prosecute.

The record on appeal reveals the following: A complaint was filed in November of 1973. Discovery was taken and, in March of 1975, interrogatories were propounded to the defendant. These were answered on May 9,1975. Original counsel of record for the plaintiffs died in August of 1975. In April of 1976, a motion for substitution of counsel for plaintiffs was filed and a motion to permit discovery by other than stenographic means were filed, pursuant to Fla. R.Civ.P. 1.310(b)(4). These motions were scheduled for hearing on May 28, 1976. Thereafter, the defendants filed a motion to dismiss for failure to prosecute and set this motion at the same time, on May 28, 1976. The court, upon a review of the record, granted the motion to dismiss. This appeal ensued. We reverse.

It has been held that the filing of a deposition by a court reporter constitutes affirmative action in a cause. Licausi v. Airport Transportation Service, Inc., 252 So.2d 835 (Fla. 4th D.C.A. 1971); Musselman Steel Fabricators, Inc. v. Radziwon, 263 So.2d 221 (Fla.1972). If this be so, then the filing of answers to interrogatories should be similarly treated. Therefore, the date from which the one-year period would commence to run would be May 9, 1975. Counsel for appellee contends that the motion to substitute counsel does not constitute affirmative action, citing Florida Power & Light Company v. Gilman, 280 So.2d 15 (Fla. 3rd D.C.A. 1973); St. Anne Airways Corp. v. Larotonda, 308 So.2d 129 (Fla. 3rd D.C.A. 1975). He also contends that the motion to have discovery by other than stenographic means did not constitute affirmative action in the cause.

We may agree with the first position, but with the second we do not. We hold that this motion, pursuant to' Fla.R. Civ.P. 1.310(b)(4), did constitute such action as would successfully prevent a dismissal for want of prosecution. Counsel for the appellee further urges, in support of the order, that the trial court was correct in dismissing the matter under his inherent power to control his docket. There was no finding by the trial court that the plaintiff was wilfully delaying prosecution of the matter and, therefore, under the recent decision in Kenet v. Stein, 326 So.2d 36 (Fla. 3rd D.C.A. 1976) this is not a good basis to support the trial court’s ruling.

The Order be and the same is hereby reversed, with directions to the trial judge to reinstate the cause.

Reversed and remanded, with directions.


text:
    Leo HENZEL, Appellant, v. Richard K. FINK and Sydney L. Syna, Appellees.
    No. 76-19.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 1976.

      E. C. Watkins, Jr., Michael L. Kinney, Tampa, for appellant.
    Carey, Dwyer, Cole, Selwood & Bernard, and Steven R. Berger, Miami, for appellees.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

This cause arose as a malpractice action, instituted by the appellant Leo Henzel in 1973, wherein he alleged that the appellee-attorneys had negligently performed their duties while defending him against criminal charges in 1966. Appellant asserted that numerous errors had been committed during the course of the trial and that the appellees had failed to timely file a docket fee in the Fifth Circuit Court of Appeals, causing an appeal from the criminal conviction to be dismissed.

The appellees raised the statute of limitations as a defense to the appellant’s claims concerning the manner in which his trial was conducted. Appellees further alleged that they were in no way legally responsible for the docket fee which was not timely filed.

The appellee-defendants filed a motion for summary judgment, which was granted by the trial court. Appellant thereafter filed this appeal, claiming that summary judgment was improper, since a genuine issue of fact existed as to when the appellant first learned of his attorneys’ purported negligence.

After examining the record, we feel that we must affirm the trial court’s decision. The Supreme Court of Florida has stated that the statute of limitations in a malpractice action against an attorney begins to run when the injured party has notice or knowledge that a cause of action has accrued in his favor. Edwards v. Ford, 279 So.2d 851 (Fla.1973). The Edwards court cited with approval the following language from an earlier First District opinion:

“ ‘We find it impossible to rationalize how an injured client can be required to institute an action within a limited time after his cause of action accrues if he has no means of knowing by the exercise of reasonable diligence that the cause of action exists. It occurs to us that one should be held in fault for failing to timely exercise a right only if he knows, or by the exercise of reasonable diligence should have known, that such right existed.’ ”

Edwards, supra, 279 So. at 853, citing Downing v. Vaine, 228 So.2d 622 (Fla. 1st DCA 1969).

In the instant case, the appellant admitted by way of deposition that he was aware of numerous serious “errors” which were committed at the time of the trial. He stated that one of the adverse witnesses lied on the stand, and, further, that he had so informed Mr. Fink’s co-counsel, who was actively conducting the appellant’s defense. Appellant further stated in his deposition that a necessary witness was not called to testify and that certain crucial documentary evidence was not presented which was essential to proving the appellant’s innocence. By his own words, appellant concedes that he was “shocked” to learn that critical witnesses had not been called and that he was “doubly shocked” to hear that the State had proceeded with his case on a day when he was not present in court. Despite these and other “obvious” errors which the appellant was aware of at the time of his trial, he did nothing until 1973, seven years after he was convicted. Under these circumstances, we feel that the appellant was chargeable with notice of the alleged errors. Had the appellant pursued the matter with any kind of reasonable diligence, he could have been fully apprised of his rights against his attorneys. While knowledge or notice of an attorney’s alleged acts of negligence is ordinarily a jury question, Schetter v. Jordan, 294 So.2d 130 (Fla. 4th DC A 1974), we feel that under the facts of this case, the trial judge properly found that no genuine issues of material fact existed as to the alleged negligence at the trial and the appellant’s knowledge or notice thereof.

As far as the docket fee is concerned, there appears to be no question that the appellees had at best a moral obligation to pursue what was at that point the latest in a long line of appeals which were filed in the appellant’s behalf. The appellant himself was unsure as to whether or not he had engaged the appellee-attorneys to handle his appeal before the Fifth Circuit Court. In fact, it appears that another attorney was handling that appeal. At the same time, Richard Fink stated in his deposition that he had informed the appellant that he wished to have nothing further to do with the criminal proceedings for numerous reasons. In view of these facts, we feel that the trial judge had no choice but to rule that no question of material fact remained concerning the allegedly negligent failure to file the docket fee.

For these reasons, we affirm the trial court’s order granting the appellees’ motion for summary judgment.

Affirmed.

      . The record clearly indicates that the appellees were predominantly involved in handling civil matters for Mr. Henzel over a number of years. Criminal proceedings were generally handled by other attorneys, with the appellees serving merely in an advisory capacity, if at all, as co-counsel of record. While Mr. Fink was never officially removed as co-counsel of record during the criminal trial in 1966, he withdrew from active participation at an early stage of the proceedings after it was determined that he would be called as a witness.


author: SMITH, LARRY G., Associate Judge.

text:
    Mordecai ROSENHOLZ and Freda Rosenholz, Appellants, v. PERRINE DEVELOPMENT COMPANY, a Florida Corporation, et al., Appellees.
    No. 75-1313.
    District Court of Appeal of Florida, Fourth District.
    Dec. 24, 1976.

      Joel Miller of Miller & Squire, P. A., Fort Lauderdale, for appellants.
    James W. Geiger of Devitt, Geiger, O’Neal & Booth, Fort Lauderdale, for ap-pellee Perrine Development Co.
   SMITH, LARRY G., Associate Judge.

Appellants Mordecai and Freda Rosen-holz, defendants in a mechanic’s lien action, appeal from a final judgment awarding a mechanic’s lien of $12,400.00 to appellee Perrine Development Company.

Defendants Rosenholz entered into a written contract to sell the property upon which the lien was imposed to Defendant Raleigh James, d/b/a Florida Quarries. Under the contract, James was authorized to have possession of the property for the purpose of excavation and removal for sale of rock and soil for which payment was to be made to the sellers at twenty cents per yard. The purchase price for the land, $27,-500.00, was due and payable in eighteen months, with all payments for rock and soil removed in the interim to be deducted from purchase price. James proceeded with the excavation and removal of rock using equipment rented from Appellee Perrine Development Company, who was plaintiff below. James subsequently defaulted on the purchase agreement, and Rosenholz resumed ownership and possession. James also failed to pay the equipment rental as agreed upon, whereupon Appellee Perrine filed suit seeking judgment against James and his partners, and enforcement of a mechanic’s lien for improvements to the property of Appellants Rosenholz. We find that the Court erred with respect to the amount of the mechanic’s lien awarded to Appellee Perrine.

We agree with Appellants’ first point, which is that amounts charged by Perrine for a rock crusher, with operator, cannot be included in the mechanic’s lien awarded against the Rosenholz property. The theory upon which plaintiff sought and was awarded a lien was that the excavation of a hole, which would fill with water, formed “lake front” property, enhancing the value of Rosenholz’ remaining lands. The record discloses that a 703 Lima drag-line was used for excavation, and a 22B dragline was used for loading of the rock and material for hauling away from the site. There is a total absence in the record of any evidence that the rock crusher contributed in any way to construction of the alleged improvements. The rock crusher rental, amounting to a total of $5,000.00 for the two month period, was therefore improperly included in the computation of the mechanic’s lien.

Appellants also complain that the trial Court, in determining a reasonable rental value for the two draglines, erroneously accepted evidence of the contract rental price agreed upon by plaintiff Perrine, lessor, and defendant James, lessee of the equipment. Florida Statutes, Section 713.-01(6) specifically provides that with respect to machinery rentals the reasonable rental value is not determinable by the contract for rental, unless the owner is a party thereto. Defendants Rosenholz were not parties to the rental contract in question.

Plaintiff Perrine presented evidence only as to the contract rental price agreed upon. Defendants Rosenholz presented no evidence whatever to contest the contract rental, and failed to interpose necessary objections to testimony concerning the contract prices at the final hearing. Under these circumstances we would ordinarily be inclined not to disturb the finding of the trial judge on this point. However, there is a total lack of evidence to form the basis for a finding as to the “reasonable rental value” of the equipment used in relation to the excavation actually made on defendant’s land. In other words, even though the trial judge might have been justified in accepting plaintiff’s rental figures as reasonable for the equipment in question, it does not follow that the full amount of such rental was necessarily expended in making the excavation itself. If the same amount of work could reasonably have been performed, for example, in one month rather than two, then plaintiff cannot recover a lien for two months rent. Unfortunately, plaintiff presented no evidence whatever concerning the amount of operating time reasonably required for the work actually done on the land. Of course, any reduction in the amount of the mechanic’s lien on this account would have no bearing upon the amount of judgment recovered by Perrine against James, the actual lessee of the equipment.

Appellants have filed notice of reliance upon the case of Harden v. Harvey, 138 So.2d 98 (Fla. 3rd DCA 1962), in which a mechanic’s lien was denied to a subcontractor who performed excavations for removal and sale of materials from the land. While we acknowledge a certain degree of factual similarity, we do not think the Harden case would apply here.

Although there was no direct evidence that Appellants’ land was enhanced in value by virtue of the excavations, a witness for plaintiff testified that he was familiar with excavations of this kind and was permitted to express his opinion that the general effect of such excavations would be to enhance the value of the remaining land by creating “lake front” property.

Defendant Mordecai Rosenholz on his deposition testified that defendant James removed approximately twenty five thousand yards of material, leaving a hole of approximately three acres in which there was water. He further testified that because of the shallowness of the excavation it would be impractical to use the remainder as water front property. However, he testified further that the property should be either reclaimed by refilling, or the excavation should be “dug deeper”. According to his testimony either alternative would be available to the land owner.

The trial Court specifically found that the machinery furnished by Perrine was used in construction of an improvement on the property sufficient to create a lien under the mechanic’s lien law. We are not inclined to disturb the trial judge’s finding on this point, even though we might have been inclined to find otherwise if we had been sitting as triers of the facts. It is clear that James, the purchaser, had authority under his written contract with Rosenholz to excavate rock and materials from the property. Appellants concede in their brief that if in doing so an improvement or enhancement in value of the property occurred, the property became subject to a lien for the reasonable rental value of the equipment used in making the excavation. We cannot say that there was no evidence of an improvement to the property, and we observe that defendants furnished no evidence that the property did not undergo improvement. Defendant Mordecai Rosenholz did not deny that improvement did occur. His testimony that the hole should be “dug deeper”, considered in the light of the other evidence, in itself furnishes a fair inference that improvement or enhancement of the property at least to some extent had begun, although whether the excavation should be continued to completion or the property refilled would at that point be a choice to be made by the owner.

In E & E Electric Co. v. Gold Coast Seventy Second Street Diner, Inc., 116 So.2d 660 (Fla. 3rd DCA 1959), the Court discussed the test to be applied in determining whether there has been “improvement” under the mechanic’s lien law, as follows (Opinion page 63):

. It is not the duty of the court to weigh the relative advantage to the fee owner of each structure erected. It is entirely possible that through mistakes in judgment it may happen that there are erected buildings which it would have been better not to build. However, the materialmen and other lienors who furnish material and services for the erection of these structures are not charged with another’s mistake in judgment. It is apparent that if the work is an addition to the fee that it must, for the purpose of the mechanics’ lien law, be considered an improvement thereon.

We adopt the Third District’s concept of “improvement”, under the mechanic’s lien law (Section 713.01(8)) as above stated. Although admittedly the improvement was not complete, the trial Court did not err in finding in this case that a three acre hole in the ground, with water in it, constituted an improvement to the real estate.

Accordingly, the judgment is affirmed in part, and reversed in part, and this cause is remanded to the trial Court for reduction of the mechanic’s lien award by eliminating the item of $5000.00 for rental of the rock crusher, and for further proceedings to determine the reasonable rental value of the two draglines for the time required for making the excavation.

Affirmed in part, reversed in part, and remanded to the trial Court with directions.

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


author: DOWNEY, Judge.

text:
    REIF DEVELOPMENT, INC., et al., Appellants, v. WACHOVIA MORTGAGE COMPANY, etc., et al., Appellees.
    No. 76-124.
    District Court of Appeal of Florida, Fourth District.
    Dec. 24, 1976.

      Leo Greenfield, of the Law Offices of Leo Greenfield, North Miami, for appellants.
    Patrick G. Kelley, of Kelley, Thompkins, Frazier & Kelley, Fort Lauderdale, for ap-pellees.
   DOWNEY, Judge.

This case involves an interlocutory appeal from an order of the trial court striking as sham pleadings appellant’s answer, affirmative defenses and counterclaim.

Appellee had sued appellants to foreclose a $4,000,000 construction mortgage due to alleged defaults by appellants. Appellants denied the defaults and alleged affirmatively that appellee had breached the construction loan agreement and other loan documents in numerous respects which rendered appellants unable to perform their responsibilities under the contracts. As a result appellants alleged appellees were estopped to foreclose. Appellants also filed a counterclaim asserting various causes of action based upon the same asserted breaches by appellees.

Upon appellees’ motion the trial court struck appellants’ answer, affirmative defenses, and counterclaim as sham pleadings.

We have read the deposition, the affidavit, and other proof which the trial judge had for consideration on the motion to strike and are unable to conclude that the stricken pleadings are a “plain fiction” or “undoubtedly false”. It may well be that, upon subsequent proceedings, it can be demonstrated by the greater weight of the evidence that appellants’ defenses and counterclaim lack merit and that appellees should prevail. But in the present posture of this case neither we nor the trial court are authorized to weigh issues and resolve conflicts. Rather, in a hearing upon a motion to strike, pursuant to Rule 1.150(a), Fla.R.Civ.P., the court is:

“. . . not to try the issues but to determine whether there are any genuine issues to be tried. In order to justify the striking of a pleading for being false or sham, it must be so undoubtedly false as not to be subject to a genuine issue of fact. In other words, a pleading may be stricken as a sham only where it is shown to be a plain fiction; the fact that the court may perceive of the little prospect of the success of the alleged sham pleading, is not sufficient ground to grant a motion to strike.” 25 Fla.Jur., Pleadings, § 133.

As the Supreme Court said in Rhea v. Hackney, 117 Fla. 62, 71, 157 So. 190, 193 (1934):

“But a pleading cannot be stricken out as sham unless the falsity thereof clearly and indisputably appears. As otherwise expressed, to warrant the rejection of a pleading as sham, it must evidently be a mere pretense set up in bad faith and without color of fact. The rule cannot be applied to any case except where the defense is shown to be a plain fiction.”

Accordingly, the order appealed from is reversed, and the cause is remanded for further proceedings.

REVERSED AND REMANDED.

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


text:
    NATIONAL BEN FRANKLIN INSURANCE COMPANY, Appellant, v. Grover HALL et al., Appellees.
    No. 76-685.
    District Court of Appeal of Florida, Fourth District.
    Dec. 24, 1976.
    Michael B. Davis, of Walton Lantaff Schroeder & Carson, West Palm Beach, for appellant.
    J. J. Goodmark, of Goodmark & Good-mark, West Palm Beach, for appellees.
   ALDERMAN, Judge.

This is an appeal from a final order granting equitable distribution on a Workmen’s Compensation lien. Appellee, Grover Hall, was injured when a tire exploded while he was inflating it. He filed suit against a third party. Appellant, National Ben Franklin Insurance Company, filed a notice of lien for payments made by it to appellee under the Workmen’s Compensation law for injuries arising out of the same incident. Appellee’s claim against the third party was settled for $45,000. Appellee filed a motion for equitable distribution of the settlement proceeds between himself and appellant. The trial court entered the order which is the subject of this appeal awarding to appellant $1,891.89.

At the hearing on the motion for equitable distribution it was established that ap-pellee received, or was entitled to receive, Workmen’s Compensation payments totaling $28,600. The full value of the damages sustained by appellee was at least $200,000. Appellee did not recover the full value of the damages sustained by him because of his comparative negligence and because of limits of insurance coverage and collectibility. It was established that appellee was 50% negligent and that there was a liability insurance limit of $50,000. The net amount received by appellee, after payment of his attorney’s fees and other costs, was $26,481, which equalled 58.8% of the settlement. The trial court used the following formula to determine the amount of equitable distribution: 58.8% X 1/2 X 45/200 X $28,600 = $1,891.89 The controlling statute is Section 440.39(3)(a), Florida Statutes (1975), the relevant portion of which provides:

“ . . . Upon suit being filed the employer or the insurance carrier, as the case may be, may file in the suit a notice of payment of compensation and medical benefits to the employee or his dependents, which said notice shall be recorded and the same shall constitute a lien upon any judgment recovered to the extent that the court may determine to be their pro rata share for compensation benefits paid or to be paid under the provisions of this law. The employer or carrier shall recover fifty percent (50%) of what it has paid and future benefits to be paid unless the employee or dependent can demonstrate to the court that he did not recover the full value of damages sustained because of comparative negligence or because of limits of insurance coverage and collectibility. The burden of proof will be upon the employee. Such proration shall be made by the judge of the trial court upon application therefor and notice to the adverse party. . . . ”

It is clear from the terms of this statute that unless appellee demonstrates that he did not recover the full value of the damages sustained by him because of comparative negligence or because of limits of insurance coverage and collectibility, appellant would be entitled to recover 50% of what it paid. That would be 50% of $28,-600, or $14,300. However, the record in this case establishes that appellee did not recover the full value of his damages. The provision of the statute allowing appellant to recover 50% of what it has or will pay is therefore not applicable in this case. The only issue is whether the trial court applied the correct factors to determine the amount of equitable distribution.

The formula used by the trial court in this case was incorrect in one respect. As previously stated the provision of § 440.-39(3)(a), allowing the employer or carrier to recover 50% of what it has paid or will pay, is not applicable to the facts of this case. Therefore the trial court should not have included this factor in its formula. The effect of this error was to reduce the base amount of compensation subject to proration from $28,600 (the amount the carrier actually paid or will pay) to $14,300 (50% of the amount the carrier actually paid or will pay).

When an employee, in accordance with § 440.39(3)(a), establishes that his recovery is for less than the full value of his damages, the 50% of benefits factors is inapplicable. The pro rata share of the employer or insurance carrier may then be properly calculated by the following formula: (percentage of recovery actually received by employee) X (actual recovery as reduced from full value of damages sustained because of comparative negligence or because of limits on insurance coverage and eollecti-bility/full value of damages sustained) X (amount paid and future benefits to be paid by employer or carrier) = equitable distribution due to employer or carrier. Applying this formula in the present case the correct calculation is as follows: 58.8% X 45/200 X $28,600 = $3,782.78.

We have considered the other issues raised by appellant, and except as stated above, we find that the trial court did not abuse its discretion.

REVERSED and REMANDED with instructions that appellant be allowed equitable distribution in the amount of $3,783.78.

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

      . Except that the employer or carrier would not be entitled to receive more than 50% of what it has paid and future benefits to be paid.


text:
    CITY OF CORAL SPRINGS, a Municipal Corporation existing under the laws of the State of Florida, Appellant, v. FLORIDA NATIONAL PROPERTIES, INC., a Florida Corporation, Appellee.
    No. 76-1843.
    District Court of Appeal of Florida, Fourth District.
    Dec. 24, 1976.
    Paul J. McDonough, Coral Springs, for appellant.
    H. T. Maloney, of Patterson, Maloney & Shankweiler, Fort Lauderdale, for appellee.
   ALDERMAN, Judge.

The determinative question on this interlocutory appeal is whether or not Count II of the appellee’s amended complaint should have been dismissed for failure to state a cause of action for injunctive relief. The trial court denied the appellant’s motion to dismiss, and issued a temporary injunction which permitted the appellant City to collect a disputed “public service fee” but ordered that any fee collected be segregated and not used until it was determined that the ordinance establishing the fee was valid, or until further order of the court.

The amended complaint alleged that the plaintiff/appellee owned real property in Coral Springs and had already paid under protest a $19,040.22 “public service fee” on a certain parcel of such property. It also alleged that “there are approximately one thousand parcels of property located within the City of Coral Springs which are subject to the payment of the ‘public service fee,’ ” and stated that the action was being brought on behalf of all property owners “whose real property is affected by the ordinance.”

Count I sought declaratory relief, Count II asked for injunctive relief, and Count III alleged a right to damages. The relevant portion of Count II reads as follows:

“The Plaintiff has paid the ‘public service fee’ sought to be imposed by the City of Coral Springs under protest. The Plaintiff has suffered irreparable harm in that it has been required to pay the fee under the threat of a lien on its property which will affect the marketable title of the same. The Plaintiff may be required to pay • additional fees under the ordinance during the pendency of this law suit and, therefore, requires a temporary injunction prohibiting the City of Coral Springs from requiring the payment of the ‘public service fee’ and, further enjoining it from placing a lien upon the Plaintiff’s property for the nonpayment of such fee.”

It is a truism of equity that an injunction is an extraordinary remedy which will issue only to prevent irreparable injury — that is, injury for which there is no adequate remedy at law. By its very nature an injunction will lie only to restrain the commission of a future injury, since it is impossible to prevent what has already occurred. Appellee’s allegation of past payment of a “public service fee” is no ground for an injunction. What remains is the bare statement that payment of additional fees may be required during the lawsuit. We find that those words, even when considered along with all the other allegations of the amended complaint, comprise no definite allegation that an irreparable injury will occur. To be the subject of an injunction, a prospective injury must be more than a remote possibility; it must be so imminent and probable as reasonably to demand preventive action by the court. Furthermore, the amended complaint under consideration does not plead facts to show that any injury to the appellee would be irreparable if it did occur.

We therefore hold that Count II of the appellee’s amended complaint did not state a cause of action for injunctive relief, and that the appellant’s motion to dismiss should have been granted. We cannot agree with appellee’s contention that the essential requisites for an injunction are any different when a question of taxation is involved than under other circumstances; the complaining taxpayer must show that he has no adequate remedy at law. City of Sarasota v. Skillin, 130 Fla. 724, 178 So. 837, 838 (1937); State v. City of Avon Park, 108 Fla. 641, 149 So. 409, 417 (1933). Likewise, the provision of Section 86.111, Florida Statutes (1975), that “The existence of another adequate remedy does not preclude a judgment for declaratory relief,” does not dispense with the usual requisites for an injunction, temporary or permanent, which is sought in an action which also prays for declaratory relief.

A complaint must, standing alone, state a cause of action; an insufficient complaint cannot be saved from a motion to dismiss by testimony at a hearing.

“It has been consistently held that in order to support the granting of a temporary restraining order, the allegations of the complaint must be clear, distinct, and unequivocal. The plaintiff by his complaint must likewise clearly demonstrate that irreparable injury would follow the denial of the injunction.” (Emphasis added.) Cramp v. Board of Public In struction of Orange County, 118 So.2d 541, 544 (Fla.1960).

REVERSED and REMANDED with directions that the temporary injunction be dissolved with leave to the appellee to amend Count II of the amended complaint.

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


text:
    Andrew RUSSO, Appellant, v. STATE of Florida, Appellee.
    No. 75-1278.
    District Court of Appeal of Florida, Fourth District.
    Dec. 24, 1976.
    Richard L. Jorandby, Public Defender, and Henry S. Prettyman, Sp. Asst. Public Defender, West Palm Beach, for appellant,
    Robert L. Shevin, Atty. Gen., Tallahassee, and Paul H. Zacks, Asst. Atty. Gen., West pajm Reach, for appellee.
   ON PETITION FOR REHEARING

DOWNEY, Judge.

Appellant was charged with and convicted of buying or receiving or aiding in the concealment of stolen property knowing the same to have been stolen. The judgment and sentence appealed from adjudicated appellant “GUILTY OF BUYING OR RECEIVING OF [sic] AIDING IN CONCEALMENT OF STOLEN PROPERTY, AS CHARGED IN THE INFORMATION.” The information alleged that Russo knew the property had been stolen.

The opinion of this court, published November 19, 1976, reversed and remanded this cause for entry of a proper judgment because the judgment failed “to recite knowledge on the defendant’s part of the stolen character of the property.”

On petition for rehearing the State correctly points out that such a judgment is not defective, relying upon Hambrick v. State, 80 Fla. 672, 86 So. 623, 14 A.L.R. 987 (1920), and Caston v. State, 58 So.2d 694 (Fla.1952).

In Hambrick, supra, the Supreme Court stated the rule applicable herein as follows:

“ ‘. . . [w]hen the record in a criminal case shows fully the crime for which the prisoner was indicted and all the proceedings thereon, through trial and verdict up to conviction and sentence, the failure in the sentence to name the crime for which the prisoner is sentenced may be supplied by reference to the rest of the record.’ ”
******
“The entire record may be looked to in ascertaining the offense for which the accused is sentenced, and an erroneous recital or statement of the offense by the court in pronouncing sentence, or of the clerk in recording in the minutes of the proceedings kept by him the judgment imposed, will not vitiate the judgment when the accused was indicted, tried and convicted. In such case the record furnishes a complete protection against another prosecution for the same offense.” Hambrick v. State, 80 Fla. at 674, 86 So. at 624.

Accordingly, our opinion published November 19, 1976, is vacated and withdrawn, and the judgment and sentence appealed from are affirmed.

ALDERMAN, J., concurs.

CROSS, J., dissents, without opinion.


text:
    Lee FISHMAN and J. B. Fishman, as parents and next friends of Tara Fishman, a minor, Appellants, v. George CRANE, M.D., et al., Appellees.
    No. 76-1509.
    District Court of Appeal of Florida, Fourth District.
    Dec. 31, 1976.
    Harvey M. Goldstein of Goldstein & Gold-stein, Miami, for appellants.
    James E. Tribble of Blackwell, Walker, Gray, Powers, Flick & Hoehl, Miami, for appellees.
   PER CURIAM.

The trial court, relying upon the opinion of the Second District in Foley v. Morris, 325 So.2d 37 (Fla.2d DCA 1976), entered summary final judgment in favor of appel-lees. Thereafter, the Florida Supreme Court reversed the decision of the District Court. Foley v. Morris, 339 So.2d 215 (Fla.1976). The statute of limitations defense which was the basis for the summary judgment below is no longer tenable.

REVERSED and REMANDED with instructions that the summary final judgment be vacated.

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


text:
    Janet NORIMOTO, Petitioner, v. INDUSTRIAL RELATIONS COMMISSION and Bernard M. Korkland, Respondents.
    No. 76-1647.
    District Court of Appeal of Florida, Fourth District.
    Dec. 31, 1976.
    Rafael Santana, Miami, for petitioner-appellant.
    Kenneth H. Hart, Jr., General Counsel, Tallahassee, and James R. Parks, Miami, for respondent-Division of Employment Security.
   PER CURIAM.

Petitioner has filed an inadequate Petition for Writ of Certiorari and an improper brief in support thereof. However, we have considered both together with the transcript of the proceedings before the Division of Employment Security and find that there is competent substantial evidence to support the final agency order which petitioner seeks to review, and no departure from the essential requirements of law have been demonstrated.

Accordingly, the Petition for Writ of Cer-tiorari is DENIED.

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