author: SMITH, Judge. BOYER, Chief Judge

text:
    Barton T. McLEAN, Appellant, v. Beverly A. McLEAN, Appellee.
    Nos. Z-187, Z-245.
    District Court of Appeal of Florida, First District.
    Dec. 3, 1976.
    Richard O. Donovan, Coral Gables, and Susan Goldman, Miami, for appellant.
    Fred W. Baggett, and Sam Spector, Tallahassee, for appellee.
   SMITH, Judge.

By these consolidated appeals, Barton McLean complains of (1) the trial court’s interlocutory order denying continuance of the final hearing on his petition for modification of the judgment awarding appellee, his former wife, custody of their young daughter, and (2) the trial court’s final order, entered while the interlocutory appeal was pending, denying appellant’s petition for modification of custody.

Following dissolution of the marriage in May 1973, the court entered a supplemental judgment August 20, 1973, awarding primary custody and control of the child to the appellee. More than a year later, on September 30, 1974, the appellant father petitioned for modification of the judgment to award him primary custody of the child on the ground that continued custody by ap-pellee was inimical to the child’s welfare. Then followed discovery on the issue and at least five successive schedulings of the hearing on the merits which was finally reset on June 17,1975, for June 30. At that hearing, appellant sought yet another continuance on the ground that the deposition of an essential witness had not been obtained, due allegedly to the intervention of ap-pellee.- The chancellor denied that motion and called on appellant to proceed with evidence on the merits of his modification petition. Appellant’s counsel announced a purpose to seek interlocutory review of the order denying continuance and declined to go forward with proof. On July 24, appel-lee filed a motion to dismiss the modification petition, with a notice of hearing, and after hearing argument on July 31 the court denied the petition for modification nunc pro tunc June 30,1975, for appellant’s refusal to proceed on the merits.

The trial court acted well within the proper limits of his discretion in denying the continuance sought on the day of the final hearing. Appellant made no substantial showing that appellee had caused any witness to resist or evade service of process. The assertion that appellee had instructed witnesses not to cooperate was based largely on double hearsay. Appellant made no showing that his unavailing effort to subpoena the needed witness was all that could reasonably be required of him. He made no showing that the witness would or could testify to matters which could not otherwise be established. In fact, the deposition of that witness, obtained after the interlocutory appeal was taken but before the modification petition was denied, gave no significant corroboration of appellant’s contentions on the merits. The court did not err in denying a further postponement of a final hearing already postponed several times over a period of nine months. Rule 1.460, R.C.P.; In re Gregory, 313 So.2d 735 (Fla.1975); Williams v. Gunn, 279 So.2d 69 (Fla.App. 1st, 1973). The interlocutory appeal will therefore be dismissed for want of substantial merit. Rule 4.2 c, F.A.R.

When appellant’s last motion for continuance was denied at the final hearing, appellant effectively elected to take his chances on interlocutory appeal rather than proceed on the merits. The question therefore arises whether his interlocutory appeal deprived the trial court of jurisdiction to deny his petition for his refusal to proceed with the proof. We are of the view that the trial court had authority to deny the petition on the ground stated notwithstanding the pendency of the interlocutory appeal. The interlocutory appeal did not operate as a supersedeas. Rather, it vested jurisdiction in this court in respect to the matter under review and prevented the trial court from taking any action in the case which would deprive this court of its review power. Willey v. W. J. Hoggson Corp., 89 Fla. 446, 105 So. 126 (1925). The trial court’s final order on July 31 denying the modification petition did not affect this court’s power to review the interlocutory order denying continuance on June 30. The effect of the order entered July 31 was simply to deny the petition subject to this court’s determination of the prior and pending interlocutory appeal.

If we were now to hold that the continuance was improperly denied, the trial court’s final order would of course fall. But if as we conceive the continuance was properly denied in the trial court’s discretion, the chancellor’s subsequent denial of the petition now becomes unqualifiedly effective by our dismissal of the interlocutory appeal. Although labelling the July 31 order as entered “nunc pro tunc” June 30 was ineffective, for the reasons stated in Chief Judge Boyer’s dissent, that did not deprive the order of efficacy on July 31. If we were to hold otherwise, we would effectively grant appellant the continuance he groundlessly sought; and appellant, though he failed to demonstrate error in the chancellor’s decision that the merits would be determined on June 30, 1975, would be restored 16 months later to a trial on the merits that he once abjured and now is ready for at long last. See Hirsch v. Hirsch, 309 So.2d 47, 50 (Fla.App. 3d, 1975):

“To permit a party to willfully ignore or violate a court order by interlocutory appeal without supersedeas would strip the trial court of its ability and power to enforce its orders pendente lite.”

It has been held in other contexts that, pending an interlocutory appeal taken without supersedeas, the trial court is without jurisdiction finally to dispose of a case on the merits. De La Portilla v. De La Portil- la, 304 So.2d 116, 118 (Fla.1974). Whatever may be the precise meaning of that doctrine in contexts not before us now, the mischief attending its mechanical application in the present situation is, we think, evident. The true rule was stated most meaningfully for present purposes in the Willey decision, supra, on which De La Portilla was predicated:

“[E]ven though in the absence of a supersedeas the trial court had the power to permit or require other proceedings in the cause that would not tend to impair or interfere with the appellate jurisdiction and power of the Supreme Court, or to defeat the efficacy of the appellate proceedings already duly taken, yet the dismissal of the bill of complaint by the lower court was subject to the result of the interlocutory appeal theretofore duly taken, otherwise the trial court would by such dismissal finally determine the merits of the cause which is the only matter involved in the appeal taken and then pending in the Supreme Court.
“When the appellate court acquires jurisdiction of a cause, no order of the trial court can legally impair or interfere with the power of the appellate court to make its jurisdiction in the premises effective. An order of the trial court dismissing a bill of complaint, made after the appeal was duly taken, does not affect the jurisdiction of the appellate court. See Holland v. State, 15 Fla. 549. Should an interlocutory order appealed from be reversed, the decree and mandate of the appellate court is effectual to restore the dismissed case to the docket of the trial court. If an interlocutory order appealed from is affirmed, the dismissal of the cause in the trial court is not of material consequence.” 89 Fla. at 452, 105 So. at 129.

The interlocutory appeal is DISMISSED. The final order denying appellant’s petition for custody modification is AFFIRMED.

MILLS, J., concurs.

BOYER, C. J., dissents.

BOYER, Chief Judge

(dissenting).

I respectfully dissent. As this case demonstrates, only chaos will result from simultaneous litigation of the same case in the trial court and the appellate court. Further, the fact that an extension of time may be gained by an appeal is no reason to deny relief by appeal if the sought review is timely and not frivolous.

As stated in the majority opinion, appellant challenges two orders of the trial court. First he attacks by interlocutory appeal the trial court order denying his motion for a continuance of final hearing on his petition for modification of supplemental judgment on award of child custody. Second, he raises by direct appeal the correctness of the trial court’s nunc pro tunc order denying his petition for modification which was rendered subsequent to the filing of the notice of interlocutory appeal seeking review of the denial of his motion for continuance. The central issue in the interlocutory appeal is whether the trial court abused its discretion in denying the motion for continuance while the main issue in the direct appeal relates to the propriety of the nunc pro tunc order.

The petition for modification was filed September 30, 1974. Thereafter, the petition was noticed for final hearing on four separate occasions. After the last such notice, appellant filed a motion for continuance which was granted by the trial court continuing the final hearing from June 20, 1975, to June 30, 1975.

On June 30, appellant submitted another motion for continuance which is the subject of the instant interlocutory appeal. The trial court was informed by appellant’s counsel that the motion was based upon the unavailability of witnesses, specifically and most importantly, Mr. Barry Peterson, whose unavailability was allegedly caused by the intervention of appellee. A copy of Mrs. Lyles’ deposition, which was presented to the trial court but not considered because it had not been received by the Clerk of the Court and placed in the court file, contained testimony indicating why it appeared to be necessary to secure the testimony of Barry Peterson. The deposition of the Division of Family Services social worker, Donna Silverman, further revealed the apparent importance of Mr. Peterson’s testimony relative to the issue of child custody. The record which was available to the trial court indicates that several attempts were made to serve Mr. Peterson, but all such attempts were unsuccessful as of the date of the final hearing.

As to the issues presented by the direct appeal; the Florida Supreme Court has recently held that “. . . where an appeal is duly taken whether with or without supersedeas, jurisdiction of the cause is transferred to the appellate court, thereby depriving the trial court of the power to finally dispose of the cause by dismissal or otherwise.” Quite obviously, the trial court’s order of July 31, 1975 finally disposed of the case, notwithstanding the pendency of the interlocutory appeal. I am therefore of the view that at the time the trial judge entered his order of July 31, 1975 denying appellant’s Petition for Modification after appellant had filed his notice of interlocutory appeal from the court’s order denying his Motion for Continuance the trial court was without jurisdiction and that the case should be reversed for that reason and remanded for further proceedings on the merits.

I am further of the view that the nunc pro tunc order of July 31, 1975 should be reversed for still another reason. The purpose of nunc pro tunc orders is to correct clerical, as distinguished from judicial, errors. However, “. . .if the proposed amendment is a mere afterthought, something not really intended at the time, and which formed no part of the judgment or order as originally intended and pronounced, it cannot after the expiration of a term be brought in by way of amendment nunc pro tunc or otherwise.” It is clear that the trial judge did not intend to correct a mere clerical error in his nunc pro tunc order, but rather sought to remedy a judicial oversight.

Our sister court of the Second District has recently had occasion to consider a similar factual situation in DeBaun v. Michael, Fla.App. 2d 1976, 333 So.2d 106, wherein it said:

“It has long been settled that the function of an entry nunc pro tunc is to correct the record to reflect a prior ruling made in fact but defectively recorded. This indeed is the underlying rationale of Rule 1.540(a), supra. However, where an order does not merely correct clerical errors or omissions, but actually modifies the substance of a prior ruling or of itself constitutes a ruling not previously made in fact, it should not be given retrospective effect.” (333 So.2d at page 108. Citations omitted)

As to the interlocutory appeal, it appears to me that the learned trial judge again erred, under the peculiar circumstances of this particular case, in refusing to grant appellant’s continuance.

It is axiomatic that the best interests and welfare of a child are the primary concern in custody proceedings. In dissolution proceedings and in custody proceedings the State has an interest apart and separate from the interest of the parties. In such proceedings, the general requirements for a continuance need not be strictly enforced. It is clear, it seems to me, that the evidence available to the trial judge at the time he denied appellant’s Motion for Continuance clearly revealed the importance of the testimony of Barry Peterson who had, to say the least, been elusive. Bearing in mind that the welfare of the innocent child is the polestar of custody proceedings, every effort should have been made to assure the availability of all relevant evidence touching upon the then fitness of the respective parents as custodian of their child Tiffany.

I would reverse and remand for further proceedings on the merits.

      . A final judgment dissolving the marriage between Barton T. McLean and Beverly A. McLean was entered on May 14, 1973. Determination of custody of the parties’ daughter, Tiffany, then age two, was deferred pending a home and background study by the State of Florida, Department of Family Services. A supplemental judgment was entered on August 17, 1973, in which both parties were found to be suitable and fit parents and custody was awarded to the mother, Mrs. McLean. On September 30, 1974, Mr. McLean filed a petition for modification of the custody provision.

      . The record reveals that when the trial court orally denied appellant’s motion for a continu-anee, appellant’s counsel stated: “Okay, your Honor, at that point we would like to exercise our appellate rights.”, to which the trial judge responded: “Be my guest.” The trial judge thereupon dictated certain matters into the record relative to his denial of the motion for a continuance concluding “But counsel for the plaintiff has indicated a desire to exercise appellate rights and the court will stay any further proceedings pending processing of such appellate procedures if plaintiff desires to pursue same. * * * ” After an off-the-record discussion, the trial judge stated: “Strike out that part about anything stayed. Just leave— let whatever the effect is.” He subsequently stated: “Alright, then put this in the record. The statement of the court staying further proceedings was intended no more than to recognize whatever would be the effect in the trial court of the steps toward an interlocutory appeal”. Following a short exchange between counsel and the trial judge, the hearing was concluded. A written order denying the motion for continuance was entered on June 30, 1975, but was not recorded until July 23, 1975. A notice of interlocutory appeal seeking review of that order was filed on July 28, 1975. Prior to the filing of the notice of interlocutory appeal, viz: On July 24, 1975, the respondent Mrs. McLean, appellee here, filed in the trial court a Motion to Dismiss. On July 31, 1975, the trial judge entered the following “nunc pro tunc order”:
      “This cause came on for hearing on the motion of Beverly A. McLean to dismiss the petition for Barton T. McLean for Modification of the Supplemental Judgment pertaining to child custody, and the Court having considered same and having heard argument of counsel for the parties, and the Court being otherwise advised, it is
      “ORDERED AND ADJUDGED:
      “1. A hearing was scheduled on Mr. McLean’s petition on July‘30, 1975 at which time counsel for Mr. McLean filed a Motion for Continuance which was denied by the Court and an Order to that effect entered on said date. Counsel for Mr. McLean announced he would take an interlocutory appeal and would not go forward with proofs in support of the Petition for Modification.
      “2. In view of the Court’s denial of Motion for Continuance and the absence of any evidence in support of the petition, the Court should have entered a denial of the petition for modification, otherwise, the effect is to grant the continuance.
      “3. Accordingly, the said Petition for Modification is denied, nunc pro tunc June 30, 1975.
      “4. Ruling on petition for attorneys fees and costs and other relief, filed by Mrs. McLean, and any other procedures herein are deferred until disposition of appellate procedures now in progress. * * * ”

      . Mr. McLean’s motion for continuance seeking to have continued the hearing scheduled for Monday, June 30, 1975, alleges, inter alia, that due diligence had been exercised attempting to contact one Barry Peterson, whose testimony was alleged in the motion to be essential regarding the fitness of Beverly McLean as a mother and custodian of the parties’ minor child. The motion alleged that Mr. Peterson had been deliberately avoiding service of process and that testimony taken of one Bobbi Lyles indicated that Mrs. McLean had instructed witnesses not to cooperate and to impair the service of subpoenas for depositions. Attached to the motion was an affidavit relating to numerous attempts to serve Barry Peterson. Bobbi Lyles deposed in her deposition which was taken June 19, 1975, and filed July 2, 1975, that in a conversation with one Barbara Acton, whose deposition was also taken, Mrs. McLean had instructed Barbara not to cooperate and had also instructed Mr. Lyles, when difficulties were being encountered in contacting him, “Don’t make it easy for him”.
      The transcript of the proceedings at the hearing before the trial judge on June 30, 1975, reveals that appellant’s attorney sought the continuance “occasioned by the unavailability of the witnesses” further urging “it is our contention that the unavailability of Mr. Barry Peterson (the unavailable witness) had been caused by the intervention of Beverly McLean.” He further informed the court of the taking of depositions of Bobbi Lyles and Jimmy Lyles which depositions had been mailed by the court reporter to the Clerk of the Circuit Court in Tallahassee but had apparently been delayed in the mail and had not been filed. However, copies were in the possession of appellant’s attorney and were offered in support of appellant’s contention as to the relevancy of the testimony of the potential witness, Barry Peterson.

      . In her answers to interrogatories which were filed January 8, 1970, Mrs. McLean made certain admissions which related to parental fitness.
      Barton McLean’s deposition taken November 18, 1974 and filed January 9, 1975, the deposition of Bobbi Lyles (sister of Mrs. McLean) taken June 19, 1975 and filed July 2, 1975, and the deposition of Jimmy Lyles taken June 19, 1975 and filed July 2, 1975 all tended to corroborate one another and contained testimony which was material to custody as well as appellant’s request for continuance.

      . The deposition of Donna Silverman, an employee of the Division of Family Services, was taken on January 20, 1975, and filed on April 11, 1975. Her testimony strongly suggested that Barry Peterson should be, or could be, a material witness. She also, in many details, corroborated the testimony of Barton McLean and Bobbi Lyles.

      . See Footnote 3 above.

      . De La Portilla v. De La Portilla, Sup.Ct.Fla. 1974, 304 So.2d 116, 118. See also Walker v. Senn, Fla.App. 1st 1976, 340 So.2d 975, opinion filed September 10, 1976, Case No. BB 28 not yet reported.

      . 19 Fla.Jur., Judgments and Decrees, § 65.

      . Sawyer v. State, Sup.Ct.Fla. 1927, 113 So. 736, 738.

      . The recitations of the order, quoted in full in Footnote 2, supra, lead to no other conclusion.

        . Brust v. Brust, Sup.Ct.Fla.1972, 271 So.2d 142 and Dinkel v. Dinkel, Sup.Ct.Fla.1975, 322 So.2d 22.

      .7 Fla.Jur.,.Continuances, Section 5.

      .Please see Footnotes 2, 3, 4 and 5, supra.


source: Caselaw Access Project

author: RAWLS, Acting Chief Judge.

license: Public Domain

text:
    Sylister Ed WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. BB-441.
    District Court of Appeal of Florida, First District.
    Dec. 3, 1976.
    Rehearing Denied Jan. 12, 1977.
    Richard W. Ervin, III, Public Defender, and Michael J. Minerva, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellee.
   RAWLS, Acting Chief Judge.

Reserving the right to appeal the denial of his motion to suppress, Williams entered his plea of nolo contendere to the offense of possession of less than five grams of cannabis and possession of barbiturates. Williams now appeals from the judgment of guilty and sentence imposed.

The sole point on appeal is that the motion to suppress tangible evidence should have been granted, because the search and seizure was the direct result of an arrest based upon a city ordinance which is unconstitutional on its face and as construed.

At approximately 11:30 p.m., November 25, 1975, in response to a report that a fight was in progress, two Tallahassee police officers went to an apartment complex located within the city limits. They found Williams outside an apartment “banging” on an entrance door in an effort to gain entry. The police officers entered the apartment. Williams remained outside. An occupant of the apartment advised the officers that he did not desire to place charges, but he did desire that Williams leave the area. The officers, after advising Williams they were not going to arrest him, urged that he leave the area. As the officers departed, they looked back and again saw Williams “banging” on the door and creating a disturbance. The officers returned immediately, placed Williams under arrest, and charged him with disturbing the peace. An immediate search of Williams produced the contraband found on his person for which he was subsequently charged and convicted.

Williams’ primary contention is that the city’s disorderly conduct ordinance purports to regulate speech but fails to do so with the requisite narrow specificity. He further contends that the trial judge bypassed the opportunity to give this ordinance a narrowing construction which might have saved it. The thrust of Williams’ argument, as we view it, is that because the trial court held that the ordinance was neither vague nor overbroad, but was a useful tool in law enforcement and “preventive in nature”, we must strike it down. Such is not our understanding of White v. State, supra. There, the Supreme Court specifically held:

“Whether the statute is constitutional on its face against a challenge for over-breadth and vagueness is a question requiring more deliberate examination we hold the statute constitutional subject to our limited construction. “In determining the narrow line between constitutionally protected speech and that which is unprotected, it is imperative to consider the circumstances in which the words were uttered. . . . ” (emphasis supplied)

Repeated banging on a door in an apartment complex at approximately 11:30 in the nighttime, thus creating a disturbance, is not such freedom of using mere words as a tool of communication that is constitutionally protected. Such conduct constitutes probable cause to justify the arrest of Williams for violation of the subject ordinance. Again, quoting from White v. State, supra: “The gravamen of his offense was not words, but the acts which accompanied his words.” And the fact that the trial court did not enunciate a “limited construction” does not alter the uncontradicted testimony that “they were yelling at each other”, “there were people standing in the doorways and such”, and “yelling and stomping and shuffling around and such”. This conduct reflects a “commotion” which would have breached the public order. The ultimate question is: Can the ordinance stand constitutional muster upon the particular factual circumstances in a given case? Under the facts disclosed in this record, the subject ordinance is not facially incompatible with the state or federal constitutions..

AFFIRMED.

MILLS and SMITH, JJ., concur.

      . The subject ordinance is strikingly similar to the state’s disorderly conduct statute, Sec. 877.03, F.S., which was recently upheld in White v. State, 330 So.2d 3 (Fla.1976), by the Florida Supreme Court which observed a limited construction of the statute.

      . Cf. Spears v. State, Florida Supreme Court Case No. 48, 776, 337 So.2d 977, opinion filed September 23, 1976, not yet reported; also see Moffett v. State, Florida Supreme Court Case No. 48,260, 340 So.2d 1155, opinion filed October 14, 1976.

        .State v. Saunders, Supreme Court Case No. 48,438, 339 So.2d 641, opinion filed November 12, 1976, not yet reported.

      . Wiegand v. Seaver, 504 F.2d 303 (5th Cir. 1974), cert. den. app. dism. 421 U.S. 924, 95 S.Ct. 1650, 44 L.Ed.2d 83 (1975).

      . State v. Saunders, supra.


author: DOWNEY, Judge.

text:
    John D. MacARTHUR, Petitioner, v. Adeline K. MOFFETT, Respondent.
    No. 76-1648.
    District Court of Appeal of Florida, Fourth District.
    Dec. 3, 1976.
    Rehearing Denied Jan. 11, 1977.
    C. Robert Burns of Burns, Middleton, Farrell & Faust, Palm Beach, for petitioner.
    Joel T. Daves III of Burdick & Daves, West Palm Beach, and Haines & Penrose, North Palm Beach, for respondent.
   DOWNEY, Judge.

Petitioner seeks review by writ of certio-rari of an interlocutory order involving discovery proceedings in an action formerly cognizable at law.

Respondent sued petitioner for compensatory and punitive damages. In order to determine petitioner’s net worth in aid of her punitive damage claim, respondent filed interrogatories and asked petitioner, among other things, to “please state your net worth as of this date.” Petitioner answered:

“ANSWER: I do not know my net worth as of this date, nor do I know any person who can furnish my net worth. It would require many weeks of intense work by accountants and expert assistants to formulate such a figure and the cost of having such work done would be an extremely heavy one. As stated heretofore under oath herein, I have never given a financial statement to anyone and I’ve never engaged accountants or any other person to prepare one.”

Upon receipt of the foregoing answer, respondent moved the court to compel petitioner to provide a better and more complete answer to said interrogatory. The court, thereupon, entered the order under review, stating in pertinent part:

“The Court is of the view that the answer as given by the defendant is insufficient and that the plaintiff, in a case such as this, is entitled to obtain from the defendant a reasonable, realistic representation of what the defendant’s net worth is even though the figure given is an estimated or approximated one, and even though in the process of arriving at such estimate or approximation, the defendant must engage the services of expert assistance.
“Therefore, upon consideration thereof, said motion be and the same is hereby granted and the defendant shall on or before August 20, 1976, serve herein his amended answer to the aforesaid Interrogatory No. 1 consistent with the views of the Court expressed above.”

The thrust of the petition is that petitioner will have to incur expenses and do research to determine his net worth or in order to make a reasonable estimate thereof in accordance with the court order. Petitioner relies upon Bahebre v. Anderson, 294 So.2d 701 (Fla.3d DCA 1974) and Fryd Construction Corporation v. Freeman, 191 So.2d 487 (Fla.3d DCA 1966), for the proposition that the court may not require one to produce something that does not exist or which is not in the possession of the answering party. We find those cases to be inapposite to the point involved here.

Petitioner’s only point which warrants mention at this stage of the proceeding is that it will require considerable time and expense to determine his net worth. This imposition may be remedied by the taxation of costs which in turn is reviewable on plenary appeal. Accordingly, review by writ of certiorari is not available to petitioner.

Petition for writ of certiorari is

DENIED.

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


author: PER CURIAM. PEARSON, Judge

text:
    KRESSLEY-DAVIS, INC., a Florida Corporation, Appellant, v. WINN-DIXIE STORES, INC., a Florida Corporation, Appellee.
    No. 75-1712.
    District Court of Appeal of Florida, Third District.
    Dec. 7, 1976.

      Knight, Peters, Hoeveler, Pickle, Niem-oeller & Flynn, Jeanne Heyward, Miami, for appellant.
    Magill & Sevier and Victor H. Womack, Miami, for appellee.
    Before BARKDULL, C. J., and PEARSON and HAVERFIELD, JJ.
   PER CURIAM.

This appeal has been perfected by Kress-ley-Davis, Inc. to review the final judgment finding that appellee Winn-Dixie Stores is entitled to contractual indemnification from Kressley-Davis.

Winn-Dixie Stores, Inc. contracted with appellant Kressley-Davis, Inc. to remodel one of its stores. Subsequently the parties entered into a “General Public Liability Agreement” which contained the following provision:

“In consideration of your permitting us or our servants, agents, employees and representatives from time to time to enter upon or to place or maintain equipment upon premises owned or controlled by you for the purpose of servicing our account, we agree to indemnify and hold you harmless from any claim or loss arising in any manner out of the presence or activity of the undersigned or any of our servants, agents, employees and representatives or out of the presence of such equipment, when such persons or equipment are on your premises for the purpose of performing services, delivering or displaying goods or otherwise transacting business or dealing with you in the interest or on behalf of the undersigned and not withstanding such accident or damage may have been caused in whole or part or negligence of you or any of your servants, agents or employees.” [Emphasis Supplied]

While the store was being remodeled, plaintiff Adeline Braik slipped and fell on a piece of peg board in the store’s parking lot. She filed an action against Winn-Dixie and Kressley-Davis to recover damages for the injuries sustained from her fall and charged both of them with having negligently caused and allowed building materials and other debris to accumulate and remain along the sidewalk and other areas around the store. Winn-Dixie filed a cross-claim for indemnity against Kressley-Davis based upon the above agreement. The cross-claim was reserved for post trial determination by the court. The jury returned a verdict in favor of Ms. Braik and against Winn-Dixie. Thereafter, the court entered a final judgment for Winn-Dixie on its cross-claim based upon the General Public Indemnity Agreement. Kressley-Davis appeals.

Under the terms of the agreement set out above, it is clear that Kressley-Davis agreed to indemnify Winn-Dixie from any claim or loss arising in any manner out of the activity of Kressley-Davis on Winn-Dixie’s premises, even if such claim or loss may have been caused in whole or in part by the negligence of Winn-Dixie or its employees. Thus, the trial judge was eminently correct in finding as a matter of law and fact that Winn-Dixie was entitled to contractual indemnification from Kressley-Davis under the terms of the indemnity agreement. See Maule Industries, Inc. v. Central Rigging & Con. Corp., 323 So.2d 631 (Fla.3d DCA 1975).

Affirmed.

PEARSON, Judge

(dissenting).

At the trial of the issue of negligence between the plaintiff and the defendants, a final judgment based upon a jury verdict was entered in favor of the plaintiffs against Winn-Dixie Stores, Inc., and a final judgment in favor of Kressley-Davis, Inc., against the plaintiffs was also entered. It, therefore, appears that the jury determined that no negligence of Kressley-Davis, Inc., contributed to plaintiff’s injury. The evidence fully supports such a holding.

A subsequent holding by the court that the accident arose out of “the presence or activity of the undersigned [Kressley-Davis] or any of our servants, agents, employees and representatives or out of the presence of such equipment, when such persons or equipment are on your premises . . . ” is not supported by the evidence in this cause.

I would, therefore, hold that the judgment against Kressley-Davis is not supported by the evidence on this record. Cf. University Plaza Shopping Center v. Stewart, Inc., 272 So.2d 507 (Fla.1973).


author: HENDRY, Judge.

text:
    CENTRAL BANK AND TRUST COMPANY, Trustee, and Walter Sonnenreich, Trustee, Appellants, v. BOARD OF COUNTY COMMISSIONERS OF DADE COUNTY, Florida, et al., Appellees.
    No. 75-1760.
    District Court of Appeal of Florida, Third District.
    Dec. 7, 1976.
    Rehearing Denied Jan. 6, 1977.
    Reiseman, Buchbinder & Elegant, Miami, for appellants.
    Stuart L. Simon, County Atty. and St. Julien P. Rosemond, Asst. County Atty., for appellees.
    Before HENDRY and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   HENDRY, Judge.

Appellants, petitioners below, appeal a final judgment and an amended final judgment dated October 16, 1975, and October 23, 1975, respectively. In substance, both final judgments denied appellants’ petitions for writ of certiorari which sought review of the Dade County Commission’s decision to rezone appellant’s land. Appellee, respondent below, is the Board of County Commissioners of Dade County, Florida, the administrative body which rezoned appellants’ land.

This matter arises out of an application for rezoning made by the directors of the Metropolitan Dade County Building and Zoning Department and Planning Department. The application for rezoning sought a change from an RU-4 (apartments — 50 units per acre) classification to an RU-3M (minimum apartment house — 12.9 units per acre) classification. The property subject to this application comprises approximately 24 acres bordered along its outermost boundaries by S.W. 57th Avenue (Red Road) to the west, S.W. 54th Avenue to the east, S.W. 74th Street to the north, and S.W. 80th Street to the south. The City of South Miami is located west of the subject property, directly across Red Road, and the City of Coral Gables is located one block north of the subject property across Sunset Drive.

The subject property is entirely developed by apartments having an average density of 17 units per acre. Completely surrounding the property to the north, east and south is RU-1 (single-family) zoning. Directly west of the subject property (Red Road) are professional offices and new buildings of the two story type.

Prior to the hearing of July 10, 1973, before the Board of County Commissioners of Metropolitan Dade County, many residents, individually and through their respective associations, requested the County Manager’s office to impose a building moratorium on the area. At that time, the directors of both the Building and Zoning Department and Planning Department had already initiated an application for the rezoning of the subject property. The directors were aware of the fact that several of the property owners had intended to raze some of the existing apartment buildings and construct apartment buildings in accordance with the RU-4 zoning (50 units per acre). Concerned that the density of 50 units per acre would be incompatible with the surrounding single family neighborhood, the directors filed their application with recommendations to the Board of County Commissioners.

The recommendation of the planning director stated that the possible density of 50 units per acre allowed by the RU-4 zoning would be “grossly incompatible with the surrounding developed neighborhood of single family homes.” In addition, the zoning director recommended that “the RU-4 zoning which now exists on the subject property is completely out of character with the development and zoning in the area,” however, “the recommended RU-3M would be compatible and in character with the entire neighborhood.”

At the hearing before the County Commissioners on July 10, 1973, the above recommendations were reiterated. The Commissioners also heard the statements of various residents whose testimony reflected their concern over increased traffic, congestion, sewage disposal, etc., which would arise from new construction under the RU-4 zoning classification. At the same time, opponents of the directors recommendations, the land owners, testified that under RU-3M zoning, it would be economically unfeasible to tear down the old apartments and build new units.

By resolution, the Board of County Commissioners granted the requested district boundary change to RU-3M and rezoned the property accordingly. From this resolution, appellants filed their consolidated petition for a writ of certiorari in the Circuit Court of Dade County. By order dated October 16, 1975, the lower court entered a final judgment against Central Bank and Trust Company, Trustee, as one of the landowners. Subsequent to the entrance of the above order, the lower court entered an amended final judgment on October 23, 1975. The amended final judgment added Walter Sonnenreieh, Trustee, the other landowner affected, to the order.

Both orders denied appellants’ petitions for writs of certiorari and held that the zoning issue was “fairly debatable” and that appellants had not sustained their burden by showing that the zoning was unreasonable, capricious, arbitrary or improper. Appellants bring this appeal from the entrance of the aforementioned orders denying review by certiorari.

Appellants basically contend that the lower court erred in failing to quash the zoning resolution in that there was no evidence of any changed conditions of the area offered by the directors of the Department of Building and Zoning and Planning. As such, appellants state that the lower court departed from the essential requirements of law in denying their consolidated petition for certiorari.

Appellees argue that appellants failed to carry their burden of demonstrating that the rezoning classification was not “fairly debatable” and thus are not entitled to a reversal of the lower court’s decisions refusing to issue a writ of certiorari.

After carefully reviewing the record of the proceedings before the County Commissioners, we must hold that the zoning classification enacted by the commissioners was “fairly debatable”, i. e., reasonably subject to disagreement, and as such, should not be interfered with by this court. Metropolitan Dade County v. Crowe, 296 So.2d 532 (Fla.3d DCA 1974).

The testimony before the County Commissioners included recommendations from both the Director of Zoning and Building and Director of Planning, plus testimony of various individual residents of the neighborhood. We believe the above was sufficient to establish the fairly debatable character of the zoning decision. Metropolitan Dade County v. Fletcher, 311 So.2d 738 (Fla.3d DCA 1975).

Appellants’ contention concerning a change in character of the community as a prerequisite to a zoning change is not well-founded based upon the Florida Supreme Court case of Oka v. Cole, 145 So.2d 233 (Fla.1962). In that case, the court stated that:

“While such change [in the character of an area] is often the predicate for an amendment, we find no authority in our decisions or elsewhere to the effect that it is indispensable ... or that ordinances altering zoning restrictions are to be tested by any standard other than that applicable to zoning classifications generally, i. e. that the restriction imposed shall not be arbitrary but reasonably related to the public health, safety or welfare.” Oka v. Cole, supra, at 235.

In Miles v. Dade County Board of County Commissioners, 260 So.2d 553 (Fla.3d DCA 1972), we held that the validity of amenda-tory zoning legislation must depend upon the facts and circumstances of each case and that needs arising from shifts in population may become a basis for amendatory zoning legislation.

In the case at bar, the testimony presented to the Board of County Commissioners, which in effect, warned of the possible consequences of an increased population under RU-4 zoning, was sufficiently reasonable to warrant the Commissioner’s rollback to RU-3 zoning under the “fairly debatable” test.

With the aforementioned in mind, we do not believe that appellants, as the parties attacking the rezoning, met their burden in the lower court to show that the amendato-ry zoning legislation was either arbitrary or unreasonable, i. e., not fairly debatable. Miles v. Dade County Board of County Commissioners, supra. As such, we believe that the lower court did not depart from the essential requirements of law in denying appellants’ petitions for certiorari. Compare Aronovitz v. Metropolitan Dade County, 290 So.2d 536 (Fla.3d DCA 1975).

We have considered the record, all points in the briefs and arguments of counsel in the light of the controlling principles of law, and have concluded that no reversible error has been demonstrated. Therefore, for the reasons stated and upon the authorities cited and discussed, the judgments appealed are affirmed.

Affirmed.


author: PER CURIAM.

text:
    In re ESTATE of Herman L. SHAW, Deceased.
    No. 75-1970.
    District Court of Appeal of Florida, Third District.
    Dec. 7, 1976.
    Rehearing Denied Dec. 23, 1976.
    Pettigrew & Bailey and Thomas A. Grib-bin, Miami, for appellant.
    Marshall H. Ader, Joseph Teiehman, Miami, Nelson, Féldman & Davidson, Miami Beach, for appellant.
    Before PEARSON, HENDRY and HAV-ERFIELD, JJ.
   PER CURIAM.

Appellant creditors seek to review an order denying their motion to aid in execution of judgment against the estate of Herman L. Shaw, deceased.

Prior to his death, a judgment was entered against Herman L. Shaw in favor of the plaintiff-appellants, Howard Dunn and Sidney Zuker. On September 5, 1972 Shaw filed a notice of appeal and in lieu of a supersedeas bond, the parties agreed to Shaw posting negotiable bonds to be held in escrow for the appeal. Shaw died while the appeal was pending, and his estate continued with the appeal. The estate was represented by Shaw’s counsel, who, in pleading before the court, stated that “the failure to substitute the estate of the defendant is not fatal to any aspect of these proceedings.” After all appellate remedies were exhausted, the total judgment against the deceased was $35,182.30 — $28,780.05 of which had been satisfied by the negotiable bonds, leaving a deficiency of $6,547.43. On May 15, 1973 after hearing argument of counsel the trial judge entered an order directing Shaw’s estate to satisfy the deficiency. Thereupon, plaintiffs filed a motion to aid in execution of judgment and the probate judge denied the motion on the ground plaintiffs failed to file a claim against the estate as creditors pursuant to Section 733.-16(1), Florida Statutes (1971). This appeal from the denial ensued.

We believe the facts in this ease fall within the purview of Section 733.16(l)(a), Florida Statutes (1971), which provides the following exception to the prerequisite of filing a claim or demand:

“(a) Provided, however, that if suit upon any such claim or demand is filed and service of process therein had upon such personal representative within six months from the time of the first publication of the notice to creditors, the claim or demand asserted by such suit shall not be impaired or affected by failure to file in the office of the county judge granting letters a claim or demand in manner and forms as hereinabove provided, but such failure shall operate to preclude the plaintiff in such suit from recovering any suit costs or attorneys fees as an incident thereto; and the personal representative shall file in the office of the county judge granting letters a suggestion of the pend-ency of such suit and the same shall be entered on the claim docket.”

While his appeal was in progress, Herman Shaw died on December 8, 1972 and first publication of notice to creditors appeared on December 19. Shaw’s estate retained counsel to continue with the appeal and he, along with counsel for plaintiffs filed an affidavit on February 14,1973 setting forth the understanding of the parties that as of that date the bonds were in lieu of superse-deas. The estate’s counsel stated to the court that the failure to substitute the estate was not fatal to any aspect of the proceedings. Through the above acts, the estate made a general appearance and the court acquired jurisdiction. In such cases the necessity of a formal substitution of parties is dispensed with and the appearance is legally conclusive that the estate had notice of the demand sued on well within the six months from the time of the first publication of the notice to creditors. See Sternberg v. Sternberg, 139 Fla. 219, 190 So. 486 (1939); 3 Fla.Jur. Appearances § 12 (1955) and cases cited therein.

Reversed and remanded.

      . including interest

      . "733.16 Form and manner of presenting claims; limitation.—
      “(1) No claim or demand, whether due or not, direct or contingent, liquidated or unliquidated, or claim for personal property in the possession of the personal representative or for damages, including but not limited to actions founded upon fraud or other wrongful act or commission of the decedent, shall be valid or binding upon an estate, or upon the personal representative thereof, or upon any heir, legatee or devisee of the decedent unless the same shall be in writing and contain the place of residence and post-office address of the claimant, and shall be sworn to by the claimant, his agent or attorney, and be filed in the office of the county judge granting letters. Any such claim or demand not so filed within six months from the time of the first publication of the notice to ■ creditors- shall be void even though the personal representative has recognized such claim or demand by paying a portion thereof or interest thereon or otherwise; and no cause of action, at law or in equity, heretofore or hereafter accruing, including but not limited to actions founded upon fraud or other wrongful act or omission, shall survive the death of the person against whom such claim may be made, whether suit be pending at the time of the death of such person or not, unless such claim be filed in the manner and within the said six months as aforesaid.”


text:
    In re ESTATE of Floretta VAN HORNE, Deceased. Richard W. LONGABAUGH, Appellant, v. John C. VAN HORNE and Walter Shikany, Appellees.
    No. 75-2013.
    District Court of Appeal of Florida, Third District.
    Dec. 7, 1976.

      Hancock & Abies, Sebring, for appellant. Shutts & Bowen and Karl V. Hart, Miami, John L. Hartnett, Coral Gables, for appellees.
    Before BARKDULL, C. J., and HENDRY and NATHAN, JJ.
   PER CURIAM.

Subsequent to our opinion in In Re: Estate of Van Horne, 305 So.2d 46 (Fla.3d DCA 1974), the matter reoccurred in the trial court upon a petition of construction of the will of Floretta Van Horne and a codicil thereto. The trial court disposed of the petition by the following order:

ORDER DENYING PETITION FOR CONSTRUCTION OF WILL “This cause came on to be heard on petition for construction of will filed by petitioner, Richard W. Longabaugh, nephew of decedent, contending that the Last Will and Testament of decedent dated April 3, 1969, and the Codicil thereto dated November 28,1971, contained ambiguities as to the identity of the residuary legatee and furthér petitioning the court to consider documents and evidence outside the aforesaid will and codicil to clarify said ambiguities. Response to this petition was filed by the executor of the estate generally denying the existence of any ambiguities and, therefore, the need for consideration of any documents or evidence outside the four corners of the two testamentary instruments.
“The will admitted to probate provides in ARTICLE VI as follows:
‘ARTICLE VI
‘All the rest and residue of my estate of whatsoever kind and nature and wheresoever situate I give, devise and bequeath to my brother, JOHN C. VAN HORNE of Jersey City, New Jersey. In the event my brother, JOHN C. VAN HORNE, predeceases me, then I give my entire estate in equal shares to my cousin, A HARLES THORNE of Spencer, Indiana; RICHARD LON-GABOUGH; LAFAYETTE DUTCH REFORM CHURCH; ALBERTS ROLLE and WALTER R. SHIKANY.’
“The Codicil dated November 28, 1971, provides in part as follows:
‘First
‘Artivle (Sic) VI — I wish to delete Alberta Rolle from sharing in my residu (Sic) of my estate, thus giving my entire estate in equal shares to the two remaining individuals Richard Longa-bough and Walter R. Shikany.’

“By Order of this Court dated October 19, 1973, Walter R. Shikany was deleted as a contingent beneficiary for reasons set forth in said order. This was affirmed by the Appellate Court.

“At the outset of this hearing on petition for construction of will respondent moved that said petition should be dismissed and objected to the introduction of any oral or documentary evidence with regard to the intentions of testatrix as set forth in the will and codicil amitted (sic) to probate on the ground that there did not exist any ambiguities and therefore it would be improper to receive any oral or documentary evidence outside of the testamentary instruments to determine the intention of the testatrix. The court deferred ruling on this motion and conditionally heard oral testimony and received documentary evidence proferred by petitioner.

“It is clear that testatrix’s brother, John C. Van Horne, was named the residuary beneficiary provided he did not predecease testatrix. All parties concede that John C. Van Horne did survive the testatrix; therefore, the remainder of ‘ARTICLE VI’ of the will referring to contigent (sic) beneficiaries is inoperative. The Codicil of November 28, 1971, refers to contingent beneficiaries and makes no reference whatsoever to John C. Van Horne. The will of April 3,1969, and the codicil of November 28,1971, admitted to probate, do not create any ambiguities. These documents clearly express that John C. Van Horne was to be the residuary beneficiary provided he survived the testatrix. Consequently, it is improper and this Court has no authority to consider other testimony outside the four corners of the two testamentary documents in determining the intention of the testatrix with regard to who should share her estate as the residuary beneficiary. Accordingly, it is

“ORDERED:
1. The objection is sustained as to all testimony proffered outside the will dated April 3, 1969, and the codicil of November 28, 1971, admitted to probate, on the ground that there does not exist any ambiguities as to the intention of the testatrix designating the residuary beneficiary.
2. The petition for construction of will is hereby and herein dismissed with prejudice.
3. That the residuary beneficiary of the will of deceased, Floritta (sic) Van Horne, is John C. Van Horne, as set forth in testatrix’s will dated April 3, 1969.”
* * * * * *

The appellant, Longabaugh, has appealed and urges that the trial court erred when it held there was no ambiguity between the will and the codicil; refused to consider evidence outside the will and the codicil; when it failed to hold that Richard W. Longabaugh was the sole beneficiary of the estate; and in not permitting the testimony of the witness, Walter Shikany.

We affirm. The will and the codicil can be reconciled without resort to evidence outside the will and, therefore, it was appropriate for the trial judge to deny the proffer of same and to exclude the testimony of Shikany, even though he may have been right in the latter instance for the wrong reason. In Re: Block’s Estate, 143 Fla. 163, 196 So. 410 (1940); In Re: Estate of Cohen, 196 So.2d 447 (Fla.3d DCA 1967); In Re: Estate of Yohn, 238 So.2d 290 (Fla.1970); Firestone v. Firestone, 263 So.2d 223 (Fla.1972). It appears to us that it was the intention of the testatrix, in the introduction to the codicil dated November 28,1971, to change only the second section of Article VI, because she clearly indicated that she was not giving anything by the codicil; she was merely deleting an individual, and the language “thus giving my entire estate in equal shares” tracts identically the language in the second sentence in the original Article VI.

Therefore, the order under review is affirmed.

Affirmed.


text:
    Alfred MANNARINO and Margaret Mannarino, his wife, Appellants, v. MOUNT SINAI HOSPITAL and Argonaut Insurance Company, Appellees.
    No. 76-6.
    District Court of Appeal of Florida, Third District.
    Dec. 7, 1976.
    Jon E. Krupnick and R. B. Culver, Fort Lauderdale, for appellants.
    Preddy, Haddad, Kutner, Hardy & Josephs and John A. Thompson, Fort Lauder-dale, for appellees.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Affirmed. Roth v. Dade County, 71 So.2d 169 (Fla.1954); Traurig v. Spear, 102 So.2d 165, 170 (Fla.3rd DCA 1958); Brooks v. Plant, 296 So.2d 71 (Fla.2nd DCA 1974); Anderson v. Gordon, 334 So.2d 107 (Fla.3rd DCA 1976).


text:
    Norman K. SCHWARZ, Appellant, v. Roy I. SPOUTZ et al., Appellees.
    No. 76-65.
    District Court of Appeal of Florida, Third District.
    Dec. 7, 1976.
    Joseph Teichman, Miami, for appellant.
    Joseph C. Brannen, Sam Daniels, Miami, for appellees.
    Before PEARSON and HENDRY, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See City of Miami Springs v. Carr, 319 So.2d 184 (Fla.3d DCA 1975).


author: HENDRY, Judge. PEARSON, Judge

text:
    Oscar GUARDADO and Milagros Guardado, Appellants, v. GREYHOUND RENT-A-CAR, INC., Appellee.
    Nos. 76-157, 76-405.
    District Court of Appeal of Florida, Third District.
    Dec. 7, 1976.
    Rehearing Denied Jan 6, 1977.

      Luis Stabinski & Associates and Martin Levine, Miami, for appellants.
    Preddy, Haddad, Kutner, Hardy & Josephs and T. G. Anagnost, Miami, for appel-lee.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   HENDRY, Judge.

Appellants were the plaintiffs in the court below and appellee was the defendant.

Appellants bring two separate appeals from the entry of two separate orders of the trial court dated December 23,1975 and February 4, 1976, respectively. The first order dismissed Count I of appellants’ complaint, which sought a declaratory judgment as to uninsured motorist coverage under Section 627.727, Florida Statutes (1975). The second order, addressing itself to appellants’ amended complaint, dismissed with prejudice the same Count I found in appellants’ complaint. In addition, the second •order also stayed proceedings as to Count II of the amended complaint, which sought personal injury protection benefits (p. i. p.), until such time as the Florida Supreme Court granted or denied certiorari in the dispositive case of Greyhound Rent-A-Car, Inc. v. Carbon, 327 So.2d 792 (Fla.3d DCA 1976). By order of this court, dated March 30, 1976, these appeals were consolidated.

On November 27, 1972, appellants were involved in an automobile accident caused by the negligent driving of an uninsured motorist. Appellants had rented their vehicle from appellee and sought uninsured motorist benefits from appellee, pursuant to Section 627.727(1), Florida Statutes (1975). The rental agreement signed by appellants provided for collision insurance coverage, but made no mention of uninsured motorist coverage. Appellee, which had qualified as a self-insured under Section 324,171, Florida Statutes (1975), denied that appellants were due any benefits, claiming that it had unilaterally rejected said coverage by the execution of a waiver.

Appellants also sought personal injury protection benefits (p. i. p.) under the Florida Automobile Reparation Reform Act (No Fault Law). Appellee denied said benefits, taking the position that it was not subject to the provisions of the No Fault Law. Appellee based its position on the contention that a rental car is not a “motor vehicle” as defined in Section 627.732(1), Florida Statutes (1975).

Appellants contend that, as far as Count I is concerned, the trial court erred in grafting appellee’s motion to dismiss with prejudice. In support of their contention, appellants point to the terminology of Section 627.727(1), Florida Statutes (1975), (the statutory section that deals with uninsured vehicle coverage) which provides in part:

“ . . . that the coverage required under this section shall not be applicable when, or to the extent that, any uninsured named in the policy shall reject the coverage; . . . ”

Appellants’ basic contention is that appellee could not have effectively rejected the aforementioned uninsured motorist coverage because it was not an “insured named in the policy.” Appellants, adhering to a literal interpretation of the above statute, argue thwat appellee, being a self-insured, had no policy of insurance per se, and without a policy of insurance naming appellee as the insured, there could be no effective waiver of coverage.

Appellee responds by stating that the trial court did not err in dismissing appellants’ first count in light of our decision in Kohly v. Royal Indemnity Company, 190 So.2d 819 (Fla.3d DCA 1966). The facts of Kohly, supra, are almost identical to the case sub judice. In that case, a lessee of a rental automobile, involved in an auto accident with an uninsured motorist, sought a declaratory judgment as to whether or not he was covered by uninsured motorist insurance. This court held that the rental agent, who was the insured under the policy of insurance in effect at the time of the accident, had rejected uninsured motorist coverage offered by the carrier and that the rejection was effective against the lessee. As in the case sub judice, the rejection had not been communicated to the lessee of the vehicle.

Appellants’ attempt to distinguish Kohly, supra, from the instant case, on the sole ground of appellee’s status as a self-insured is a good effort to circumvent what is admittedly a sore spot in the law. In fact, appellants admit in their brief that, but for appellee’s status, the facts of Kohly, -supra, would be identical to the instant case and would control.

We cannot, however, accept appellants’ distinction. Section 324.171, Florida Statutes (1975), allows those who can financially qualify to become a self-insured. To follow appellants’ line of reasoning, we would have to rule that a self-insured could never effectively waive uninsured motorist coverage, because he was not a named insured in a policy of insurance pursuant to Section 627.-727, Florida Statutes (1975).

Appellants’ real argument is that of public policy and we have so held that this particular statute must be broadly construed to maximize public protection. Weathers v. Mission Insurance Company, 258 So.2d 277 (Fla.3d DCA 1972). However, we have also stated that this very problem of uncommunicated waivers of uninsured motorist- protection must be dealt with by legislative action and not judicial fiat. Kohly, supra, 190 So.2d at 822. We must therefore hold that appellee’s uncommuni-cated waiver of uninsured motorist protection was an effective means of denying appellants’ coverage under Section 627.727, Florida Statutes (1975).

Turning now to Count II, we find that subsequent to the filing of briefs in this cause, the Supreme Court of Florida denied certiorari in the case of Greyhound Rent-A-Car, Inc. v. Carbon, 327 So.2d 792 (Fla.3d DCA 1976), cert. denied 336 So.2d 1182 (1976) (Fla.1976). Therefore, the appeal brought from the order staying Count II is moot and we relinquish jurisdiction to the trial court for an assessment of appellants’ costs, interest and áttornéys’ fees incurred in the pursuit' of p. i. p. benefits.

After having carefully considered the record, all points in the briefs and arguments of counsel in the light of the controlling principles of law, we conclude that no reversible error has been demonstrated. Therefore, for the reasons stated and upon the authorities cited and discussed, the orders appealed from are affirmed.

Affirmed and remanded to the trial court for assessment of interest, costs and attorneys’ fees.

PEARSON, Judge

(dissenting).

I would not hold Kohly v. Royal Indemnity Company, 190 So.2d 819 (Fla.3d DCA 1966) controlling as to uninsured motorist coverage for a lessee from a self-insured rental company. It would seem that an automobile rental company which purports to offer liability insurance coverage to its customers should be estopped to deny the opportunity for such coverage to the customer. Cf. J. S. Michael Company v. Rayonier, Incorporated, 212 So.2d 824 (Fla. 1st DCA 1968).


text:
    Douglas M. JOHNSON, M.D., Appellant, v. F. A. McLAIN, Appellee.
    No. 76-265.
    District Court of Appeal of Florida, Third District.
    Dec. 7, 1976.
    Rehearing Denied Jan. 6, 1977.
    Richard B. Bergstresser, Miami, for appellant.

      Robert S. Appleton, Marathon, for appel-lee.
    Before HENDRY, HAYERFIELD and NATHAN, JJ.
   PER CURIAM.

Affirmed. See Knowles v. Henderson, 156 Fla. 81, 22 So.2d 384 (1945); Keyes Company v. Moscarella, 223 So.2d 83 (Fla.3d DCA 1969); Chastain v. Carroll, 307 So.2d 491 (Fla.2d DCA 1975).


text:
    LAZARUS HOMES CORP., a Florida Corporation, Petitioner, v. Paul M. GUSTMAN and Marilyn F. Gustman, his wife, Respondents.
    No. 76-429.
    District Court of Appeal of Florida, Third District.
    Dec. 7, 1976.
    Freidin & Goldfarb, Miami, for petitioner.
    Stephen Bronis, Miami, and Burnett Roth, Miami Beach, for respondents.
    Before PEARSON, HENDRY and HAV-ERFIELD, JJ.
   PER CURIAM.

Defendant, Lazarus Homes Corporation, by way of this interlocutory appeal seeks review of an order granting plaintiffs’ motion to compel it to answer an interrogatory.

At the onset, we note that this appeal was improperly brought as being interlocutory in nature. However,'we will treat it as a petition for common law certiorari. Cf. Sanders v. Impellitier, 291 So.2d 68 (Fla. 4th DCA 1974).

Plaintiffs, Paul and Marilyn Gustman, filed a breach of contract action against Lazarus and essentially alleged in their complaint that Lazarus had sold them a home with a swimming pool which was defective in that it was lacking in depth, i. e. 4V2 feet deep instead of six feet, and the depth of 4V2 feet was not in accordance with the terms of the contract or the standards in the community. Lazarus answered that the pool was built in accordance with acceptable standards, i. e. as to price, location (particularly in Saga Bay) and the water table. During pretrial discovery the Gustmans propounded interrogatory number 11 to Lazarus:

“List the address of each swimming pool constructed by you in Saga Bay other than plaintiffs’ pool and the model pool.” Lazarus objected to this interrogatory on the grounds of relevancy. The trial judge overruled the objection and entered the herein appealed order compelling Lazarus to answer. Lazarus contends that the status of other pools is in no way relevant to this lawsuit and the effect of this interrogatory will be to stir up litigation.

The right of discovery by use of interrogatories is to be liberally construed to the end that any matter not privileged and which is relevant to the subject matter involved in the pending action must be disclosed. Marine Investment Company v. Van Voorhis, 162 So.2d 909 (Fla. 1st DCA 1964); Jones v. Seaboard Coast Line Railroad Company, 297 So.2d 861 (Fla. 2d DCA 1974).

Contrary to Lazarus’ contention, we find this interrogatory is relevant because it is designed to reveal other pools built by Lazarus in the same area. Lazarus admits some of these pools are six feet deep and, therefore, proof of the location and depth of these pools is relevant to defeat Lazarus’ defense.

Certiorari denied.


text:
    Grinnel MORRIS and McChesney Goodall, Appellants, v. George V. R. MULLIGAN and Harold P. Koenig, Appellees.
    No. 76-1000.
    District Court of Appeal of Florida, Third District.
    Dec. 7, 1976.
    Richard R. Booth, Miami, Curtis, Mallet-Prevost, Colt & Mosle, New York City, for appellants.
    Nicholson, Howard, Brawner & Lovett, Bradford, Williams, McKay, Kimbrell, Hamann & Jennings, Miami, Sullivan & Cromwell, New York City, for appellees.
    Before BARKDULL, C. J., and PEARSON and NATHAN, JJ.
   PER CURIAM.

Affirmed. See Odell v. Signer, 169 So.2d 851 (Fla.3d DCA 1964).


author: PEARSON, Judge.

text:
    FORTE TOWERS, INC., etc., et al., Appellants, v. CITY OF MIAMI BEACH, etc., et al., Appellees.
    No. 76-1103.
    District Court of Appeal of Florida, Third District.
    Dec. 7, 1976.

      Storace, Hall & Hauser, Miami, for appellants.
    Joseph A. Wanick, Miami Beach, John A. Ritter, Coral Gables, Richard Kanner, Miami, for appellees.
    Before BARKDULL, C. J., and PEARSON and NATHAN, JJ.
   PEARSON, Judge.

The defendant appeals an order which dissolved a temporary injunction and, in addition, required the plaintiff to pay certain monies to its tenants:

“1. The temporary injunction heretofore entered by the various orders of this court be and the same is hereby dissolved.
“2. The plaintiffs in this cause shall within ten days return to the tenants living in their separate apartments, all rentals collected by the plaintiff in excess of the rents allowed by the ordinance on the freeze date of October 16, 1974.
“3. The bonds posted by the plaintiff in this cause shall be forfeited and paid to the registry of the court for the use and benefit of all of the individual tenants living in the apartment buildings owned by the plaintiff in the event the plaintiffs have not complied with this order.”

The record supports the trial judge’s discretion upon the dissolution of the temporary injunction. See Shaw v. Palmer, 54 Fla. 490, 44 So. 953 (1907).

That portion of the order which ordered the return of rents paid was premature in that it determines the merits of the cause. A trial of the cause has not yet been had, nor does the order appealed determine that the injunctive order was improvidently entered. Therefore, we affirm the dissolution of the injunction and reverse paragraphs numbered 2 and 3 of the order.

Affirmed in part, reversed in part and remanded.


text:
    Warren FLAXMAN, Appellant, v. METROPOLITAN LIFE INSURANCE COMPANY, Appellee.
    No. 76-1206.
    District Court of Appeal of Florida, Third District.
    Dec. 7, 1976.

      Koltun & Tobias, Coral Gables, for appellant.
    Shutts & Bowen and William J. Kendrick, Miami, for appellee.
    Before BARKDULL, C. J., and PEARSON and NATHAN, JJ.
   PER CURIAM.

This interlocutory appeal is from an order setting aside a default and final judgment upon the motion of the defendant. The discretion of the trial court upon such an order is well-established. See North Shore Hospital, Inc. v. Barber, 143 So.2d 849 (Fla.1962); Holiday Ranch, Inc. v. Roudabush, 171 So.2d 558 (Fla.2d DCA 1965); Gacl, Inc. v. Zeger, 276 So.2d 552 (Fla.3d DCA 1973). The instant case has the additional factor that the cause had proceeded to final judgment.

The trial judge’s exercise of discretion in this case is supported by the fact that the defendant explained the loss of the summons and complaint and tendered an affidavit of good defense. See Renuart-Bailey-Cheely Lumber and Supply Co. v. Hall, 264 So.2d 84 (Fla.3d DCA 1972); and North Shore Hospital, Inc. v. Barber, 143 So.2d 849 (Fla.1962). A further equitable consideration appears from the fact that the plaintiff’s attorney was actively in contact with the defendant, relative to the claim, after he had filed suit, and the fact of the filing of the suit was not disclosed to defendant. In addition, the plaintiff, at trial, amended his complaint on the damage issue in order to increase the damages allowable.

Affirmed.


text:
    Thomas COLLINS, Appellant, v. STATE of Florida, Appellee.
    No. 75-1858.
    District Court of Appeal of Florida, Fourth District.
    Dec. 10, 1976.
    Rehearing Denied Dec. 30, 1976.
    Richard L. Jorandby, Public Defender, and James R. Bean, III, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Harry M. Hipler, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

It is the defendant’s contention in this appeal that the following colloquy between the prosecutor and the arresting officer constituted an impermissible comment on the defendant’s silence after Miranda warnings:

“BY MR. KERN (the prosecutor):
Q Recite what you told the Defendant when you arrested him.
A Okay. I advised him, ‘You have a right to remain silent and refuse to answer questions. Do you understand?’
The subject replied, ‘Yes.’
‘Anything you do say will be used against you in a Court of law. Do you understand?’
The subject replied, ‘Yes.’
Q When you say ‘the subject,’ you are talking about Thomas Collins?
A Yes, sir.
‘You have a right to consult an attorney before speaking to the police or have an attorney present during any questioning now or in the future. Do you understand?’
Mr. Collins replied, ‘Yes.’
‘If you cannot afford an attorney, one will be provided for you without cost. Do you understand?’
He replied, ‘Yes.’
‘If you decide to answer any questions now without an attorney present, you still have the right to stop answering at any time until you talk to an attorney. Do you understand?’
He replied, ‘Yes.’
‘Now that I have advised you of your rights, are you willing to answer questions without an attorney present?’
Mr. Collins replied, ‘No.’
MR. KERN: No questions.
THE COURT: All right.” (Emphasis added.)

Although defendant failed to object to the admission of this testimony at trial it is our understanding from a reading of the recent decisions of the Supreme Court of Florida, in Bennett v. State, 316 So.2d 41 (Fla.1975), and Shannon v. State, 335 So.2d 5 (Fla.1976), that any comment on defendant’s exercise of his right to remain silent constitutes fundamental error, i. e. an error of such constitutional proportion that neither an objection nor admonition could correct. See also Martin v. State, 334 So.2d 841 (Fla. 4th DCA 1976).

Accordingly, judgment of conviction and sentence is reversed and the cause remanded for a new trial. Because of the frequency with which this issue has arisen and the apparent likelihood of future appellate review of similar issues and because of what appears to be a divergence of views among the district courts of this state concerning the proposition of whether a comment on an accused’s right to remain silent is either harmless error or fundamental error it is our intention to certify as a matter of great public interest the following questions to the Supreme Court of Florida:

1. Are comments on a defendant’s exercise of his right to remain silent fundamental reversible error?
2. Is a comment on an accused’s unwillingness to answer questions without the presence of an attorney a comment on the witness’s right to remain silent?
3. If the State presents testimony that a defendant, at the time of his arrest, declined to answer questions without an attorney being present, but subsequently at the police station the defendant makes a voluntary confession, would the subsequent voluntary confession dissipate any prejudice which might have resulted from earlier testimony relative to his silence, thereby allowing application of the principle of harmless error?

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

CROSS, J., dissents, without opinion.

QUESTIONS CERTIFIED TO SUPREME COURT

ORDERED that appellee’s December 13, 1976 Petition for Rehearing is hereby denied; and further,

ORDERED upon application by the ap-pellee the following questions passed upon in this court’s opinion filed December 10, 1976 are certified to the Supreme Court of Florida as questions of great public interest, to wit:

1. IS TESTIMONY ON AN ACCUSED’S FAILURE TO ANSWER QUESTIONS WITHOUT THE PRESENCE OF AN ATTORNEY A COMMENT ON THE WITNESS’ RIGHT TO REMAIN SILENT?
2. IS TESTIMONY ON A DEFENDANT’S EXERCISE OF HIS RIGHT TO REMAIN SILENT FUNDAMENTAL REVERSIBLE ERROR?
3. IF THE STATE PRESENTS TESTIMONY THAT A DEFENDANT, AT THE TIME OF HIS ARREST, DECLINED TO ANSWER QUESTIONS WITHOUT AN ATTORNEY PRESENT, BUT SUBSEQUENTLY AT THE POLICE STATION THE DEFENDANT MAKES A VOLUNTARY CONFESSION, WOULD THE SUBSEQUENT VOLUNTARY CONFESSION DISSIPATE ANY PREJUDICE WHICH MIGHT HAVE RESULTED FROM EARLIER TESTIMONY RELATIVE TO HIS SILENCE, THEREBY ALLOWING APPLICATION OF THE PRINCIPLE OF HARMLESS ERROR?


text:
    WINTER HAVEN HOSPITAL, Appellant, v. Donnie B. MILTON, Appellee.
    No. 76-413.
    District Court of Appeal of Florida, Second District.
    Dec. 10, 1976.
    Rehearing Denied Jan. 10, 1977.
    Chris W. Altenbernd and Edward M. Waller, Jr., of Fowler, White, Gillen, Boggs, Villareal & Banker, P. A., Tampa, for appellant.
    A. J. Melkus and Clifford J. Schott, Lake-land, for appellee.
   PER CURIAM.

The order granting new trial is affirmed. However, the appellee’s cross assignments of error are hereby stricken upon the authority of Dorr-Oliver, Incorporated v. Parnell, 334 So.2d 629 (Fla. 2d DCA 1976), and Osteen v. Seaboard Coast Line Railroad Company, 283 So.2d 379 (Fla. 1st DCA 1973).

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


author: GRIMES, Judge.

text:
    Gerald W. YOUNG and Carlie Young, husband and wife, Appellants, v. George A. POTTINGER and Ludmila F. Pottinger, husband and wife, Appellees.
    No. 76-639.
    District Court of Appeal of Florida, Second District.
    Dec. 10, 1976.
    Rehearing Denied Jan. 10, 1977.

      George 0. Kluttz of Pavese, Shields, Garner, Haverfield & Kluttz, Fort Myers, for appellants.
    Julian D. Clarkson, Fort Myers, for appel-lees.
   GRIMES, Judge.

This is an appeal from an order dismissing the plaintiffs/appellants’ fourth amended complaint with prejudice.

According to the complaint, in June of 1964 the plaintiffs entered into a written option to purchase certain real property from Mr. and Mrs. Sandberg. The period of the option was four years. Prior to its expiration in 1968, the plaintiffs and the Sandbergs entered into a written agreement extending the period within which the option could be. exercised until June 15, 1970. Just before the end of the extended period, the plaintiffs exercised their option to purchase the property by notifying the Sandbergs in writing. It is alleged that the Sandbergs then requested the plaintiffs to delay closing because they were elderly and desired to continue residing on the property. The plaintiffs state that they agreed to this delay.

According to the complaint, Mr. Sandberg was blind and Mrs. Sandberg was in poor physical and mental condition. It was alleged that with knowledge of the plaintiffs’ validly exercised option to purchase, the defendants/appellees procured the execution of a deed of the property by the Sand-bergs without explaining to the Sandbergs that they were conveying their property to the defendants. Asserting a malicious interference with the contractual relationship between themselves and the Sandbergs, the plaintiffs sought damages and the imposition of a trust upon the property.

The sole basis upon which the defendants support the entry of the order below is that the complaint affirmatively shows that the plaintiffs were relying upon an oral extension of an agreement to convey real property in violation of the statute of frauds. This position is untenable for two reasons.

First, the defendants were not parties to the contract between the plaintiffs and the Sandbergs. Therefore, they are not in a position to raise the defense of the statute of frauds against this suit for tor-tious interference. It is irrelevant to this suit whether the Sandbergs could have sue-cessfully raised the defense of the statute of frauds had the plaintiffs chosen to sue them. In Allen v. Leybourne, 190 So.2d 825 (Fla. 3d DCA 1966), the court held that the fact that there is not a right of action against the person who was induced or influenced to refuse to perform his agreement is not of itself a bar to an action against a third person who maliciously and wantonly procures the termination of or the refusal to perform the agreement. In explaining the rule, the court referred to Prosser on Torts, § 106, at pages 725, 726 (Second Edition 1955), and stated:

“Dean Prosser, in discussing the tort of interference with contractual relations states that:

‘The agreement need not, however, be enforceable by the plaintiff as a contract * * * The law of course does not object to the voluntary performance of agreements merely because it will not enforce them, and it indulges in the assumption that even unenforceable promises will be carried out if no third person interferes. Accordingly, it usually is held that contracts which are voidable by reason of the statute of frauds, formal defects, a lack of consideration, lack of mutuality or even uncertainty of terms, still afford a basis for a tort action when the defendant interferes with their performance.’ (Emphasis supplied)”

While that case involved a contract unenforceable because of lack of consideration, the principle would be the same with respect to the defense of the statute of frauds. See also Chipley v. Atkinson, 23 Fla. 206, 1 So. 934 (1887); and Franklin v. Brown, 159 So.2d 893 (Fla. 1st DCA 1964).

In the second place, even if the defendants had standing to raise the statute of frauds, we think the plaintiffs have pled themselves around this defense. The option agreement did not specify when closing should take place in the event the option was exercised. Therefore, it would be necessary to superimpose a requirement that the closing should take place within a reasonable time and consider this as a condition precedent to the consummation of the purchase. Even with the benefit of these assumptions, the defendants would still not prevail. This is well explained in 2 A. Cor-bin, Corbin on Contracts, § 310 (1950), which states in part:

“§ 310. Oral Waiver of Conditions and Estoppel to Assert Them — Effect of a Substituted Performance by the Plaintiff
The more difficult cases are not those where a substituted performance is being set up as a defense in an action for not performing as the previous writing required, but are those where the plaintiff has failed to perform some condition by reason of the defendant’s conduct or has rendered a substituted performance with the defendant’s oral consent and is nevertheless trying to enforce the defendant’s promise of compensation.
Cases must first be distinguished where the plaintiff has failed to perform exactly as he promised, but where the part not performed did not go to the essence— that is, where the performance that did not occur was not a condition precedent (express, implied, or constructive) to the defendant’s duty to perform his part of the written contract. The defendant’s promise may have been wholly independent and unconditional; or it may have been conditional only upon performances that have in fact taken place and not at all upon that which did not take place and for which some different performance may orally have been substituted.
If the plaintiff has failed to perform some condition precedent (express, implied, or constructive) to the defendant’s duty under the written contract, and that failure was caused by the defendant himself, can the plaintiff get judgment on the written contract without performing the condition? The answer is clearly yes; and the cases generally support the answer. Where ‘time was of the essence’— that is, where performance by the plaintiff within a specified time was a condition precedent to the defendant’s duty to perform his part — if the plaintiff has been caused to delay his performance beyond the specified time by the request or agreement or other conduct of the defendant, the plaintiff can enforce the contract in spite of his delay. This assumes that the non-performance of the condition was not caused by the plaintiffs own inability to perform, and that but for the defendant’s request, agreement, or other conduct, the plaintiff would have performed the condition. If the defendant later repudiates or otherwise breaks the contract, he cannot use the plaintiff’s failure to perform on time as a defense.
* * * * i{! *
It is obvious that in these cases of waiver and estoppel the parties have materially affected the legal operation of their written contract; and in some instances this has been partly brought about by an oral agreement for a substituted performance. It should be observed, however, that such an oral agreement is not enforceable as an executory contract. It is merely a part of the facts upon which the estoppel of the defendant is based. Some courts have failed to observe this distinction and have failed to recognize an estoppel where the party’s conduct clearly called for one. .The oral agreement does not itself create such an estoppel; there must always be a change of position in reliance upon it. Even then, the party estopped is merely held to his written promise, but on different conditions. The performance required of him is that promised by him in writing and not something new that he has promised orally.”

The application of these principles is illustrated in the case of Warren v. Dodge, 83 N.H. 47, 138 A. 297 (1927), in which the court said:

“The plaintiff here, having relied upon the oral extension of time given by the defendants, is in the position of a party who has performed his part of the contract. She did all that they required her to do, and, if they accepted less or other than the contract called for, they may not say, after she has taken them at their word and acted thereon, that she thereby lost her rights under the contract. Enforcement of the doctrine of estoppel in such a situation is no limitation or qualification of the statute of frauds. The written contract remains unchanged, but the defendants, by reason of the situation brought about by reliance upon their own words and conduct, may not be heard to say that the plaintiff has not lived up to it. So far as they made a present to her of further time, and so far as she received and acted on it, it was a concession of their rights under the contract. The concession did not alter the terms of the contract. That the result would be the same if the extension had been by written contract does not mean the validation of the extension as an oral contract. The result comes about from action taken upon the extension, and the effect of such action the statute does not undertake to determine.”

See also Gilman v. Butzloff, 155 Fla. 888, 22 So.2d 263 (1945); cf. Ginsburg v. Motsinger, 290 So.2d 509 (Fla. 2d DCA 1974).

The complaint stated a cause of action for tortious interference with the contract to purchase. The reasons for the delay in closing or whether the contract was abandoned are matters which can be developed by the testimony. For purposes of this appeal, the order of dismissal must be

REVERSED.

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


text:
    Francesca MENENDEZ, Appellant, v. Ramon RODRIQUEZ and Irela Rodriquez, his wife, appellees.
    No. 76-98.
    District Court of Appeal of Florida, Third District.
    Dec. 14, 1976.
    Ernest W. Sardinas & Associates, Coral Gables, for appellant.
    Pyszka, Kessler, Adams & Solomon, Richard M. Gale, Miami, for appellees.
    Before PEARSON, HENDRY and HAV-ERFIELD, JJ.
   PER CURIAM.

Appellant quéstions the correctness of a summary final judgment rendered in favor of the appellees in an action for damages arising out of injuries sustained by appellant, an invitee, when she fell as she was taking some small aluminum tables through the door on to the patio of appellees’ home. Appellant thought she fell over a small metal table near the door which had been placed there without her knowledge.

We have carefully examined the record on appeal, briefs and exhibits, and have concluded that no reversible error has been made to appear.

Affirmed.


text:
    G. A. D., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 76-223.
    District Court of Appeal of Florida, Third District.
    Dec. 14, 1976.
    Phillip A. Hubbart, Public Defender, and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen., for appel-lee.
    Before BARKDULL, C. J., and HENDRY and NATHAN, JJ.
   PER CURIAM.

G.A.D., a juvenile, appeals from adjudication of delinquency of larceny of a motor vehicle.

The record on appeal reveals that a petition for delinquency was filed, charging the juvenile with larceny of a motor vehicle. At the trial, Officer Homan testified that while on routine patrol he observed a few black males pushing a 1965 Pontiac down a two-track road. He observed the defendant as one of the juveniles pushing the car. The officer testified that he observed the subjects look in his direction and flee into a wooded area. He immediately broadcasted the physical description of the subjects over his radio and, subsequently, the defendant was apprehended by another officer. Officer Homan further testified that he recorded the Pontiac’s identification and license tag numbers and ran a record check on the car. He stated that he turned the Pontiac over to a person named Joyce McGee who, in turn, produced a vehicle registration and title. Joyce McGee did not testify nor did the State prove that McGee did not give the juveniles permission to use the car. The court denied a motion for judgment of acquittal and adjudicated the juvenile delinquent. This appeal followed.

The appellant contends the trial court erred in finding that he committed auto theft and in adjudicating him delinquent, because the State failed to adduce any evidence as to the material elements of non-consent and intent to permanently deprive. Therefore, the juvenile’s right to due process of law was violated. See: Albritton v. State, 81 Fla. 684, 88 So. 623 (1921); Davis v. State, 92 Fla. 209, 109 So. 301 (1926); Bowles v. State, 153 Fla. 219,14 So.2d 269 (1943); Caves v. State, 302 So.2d 171 (Fla. 2d DCA 1974); Austin v. Wainwright, 305 So.2d 845 (Fla. 4th DCA 1975); Risebrough v. State, 313 So.2d 48 (Fla. 4th DCA 1975); Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960). The appellant also urges that the only evidence adduced was merely flight by him from the scene and that this, in and of itself, will not support the conviction. See: State v. Young, 217 So.2d 567 (Fla.1968).

The State responds and contends that more than flight was established and that, therefore, from the totality of the circumstances as described in the evidence the appellant was guilty as charged, citing Ackerman v. State, 292 So.2d 433 (Fla. 3rd DCA 1974).

We concur with the appellant. The mere showing that an individual flees from a scene is not sufficient to establish criminal conduct at or about the scene. The case relied on by the State had the additional element of evidence which showed that the automobile was, in fact, stolen. There was no evidence in the instant record that showed that the Pontiac was, in fact, stolen.

Therefore, the adjudication of delinquency here under review be and the same is hereby reversed, with directions to discharge the appellant.

Reversed and remanded, with directions.


text:
    Alfred WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 76-241.
    District Court of Appeal of Florida, Third District.
    Dec. 14, 1976.
    Rehearing Denied Jan. 6, 1977.
    Marvin J. Emory, Jr., Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Brian H. Leslie, Asst. Atty. Gen., for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Defendant Alfred Williams appeals from an order of revocation of probation upon the basis that the evidence was insufficient to show that he had violated the terms of his probation. The record reveals substantial evidence sufficient to sustain the holding of the trial court, and the revocation of probation is thereupon affirmed. See the rule in Ivey v. State, 308 So.2d 565 (Fla.2d DCA 1975).

Affirmed.


text:
    Alva OLSEN, Appellant, v. PALM SPRINGS GENERAL HOSPITAL, a Florida Corporation, Appellee.
    No. 76-431.
    District Court of Appeal of Florida, Third District.
    Dec. 14, 1976.
    Guión T. DeLoach, Naples, for appellant.
    Sinclair, Louis, Siegel & Heath, Miami, for appellee.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

Affirmed. See Moore v. McCann Plumbing Co., 139 So.2d 202 (Fla.3d DCA 1962).


text:
    Roy M. SPEER, Appellant, v. M. Barry WOODDELL, Appellee.
    No. 76-652.
    District Court of Appeal of Florida, Third District.
    Dec. 14, 1976.
    A. Jay Cristol and Steven Mishan, Miami, for appellant.
    Walter F. McQuade, Miami, for appellee.
    Before BARKDULL, C. J., and HENDRY and NATHAN, JJ.
   PER CURIAM.

This is an interlocutory appeal by plaintiff from an order of the Circuit Court of Dade County quashing service of process on defendant.

Substituted service was had upon the defendant Wooddell by leaving a copy of the complaint and summons with one Robert Cherry at Wooddell’s residence. The record shows that at the time of the service of process, the residence at 401 Amalfi Avenue, Coral Gables, Florida was owned by and the permanent abode of Wooddell and that at said time it was the permanent abode of Robert Cherry, who had resided there for approximately one year prior to the date of service. He was twenty-seven years of age at the time of service. Upon receipt of the papers he left them for Wooddell on the desk in their home and informed him thereof.

Based upon these facts, the trial judge entered an order granting defendant’s motion to quash process. The reason stated by the court in its order of quashal was that: “Robert Cherry is not a ‘person of the family’ within the purview of the Substituted Service Statute. It is the opinion of this court that the plain language of the Florida Statute 48.031 requires service upon a ‘member of the family’ and that the Legislature did not intend to extend the acceptance of substituted service under Florida Statute 48.031 to a person other than a member of the family and if they had intended otherwise, they would have used the term ‘individual’ rather than ‘member of the family’.”

It is appellant’s contention that the trial court erred in construing the language of the statute, “some person of the family” to require kinship by blood or marriage between the person to be served and the person served. We find merit in appellant’s contention and reverse.

In Couts v. Maryland Casualty Company, 306 So.2d 594 (Fla. 2nd DCA 1973), it was held that kinship by blood or marriage is irrelevant. This holding followed an earlier pronouncement by our Supreme Court in Pyles v. Beall, 37 Fla. 557, 20 So. 778 (1896).

The trial court erred in not construing the language of the statute in question in accordance with the holdings in Pyles and Couts, supra.

Reversed.


text:
    Ben L. DAVIS, Jr., Appellant, v. TEW LAND & CONSTRUCTION CO., Appellee.
    No. Z-239.
    District Court of Appeal of Florida, First District.
    Dec. 15, 1976.
    Rehearing Denied Jan. 13, 1977.
    Allen W. Lindsay, Jr. of Beall, Lindsay & Lindsay, Milton, Grover C. Robinson, Jr. of Robinson & Robinson, Pensacola, for appellant.
    Joe J. Harrell of Harrell, Wiltshire, Stone & Swearingen, Joe C. Hosner, Pensacola, for appellee.
   PER CURIAM.

Appellant, plaintiff in the trial court, instituted an action for specific performance. The trial judge before whom the case was tried entered final judgment adverse to the plaintiff, thus this appeal. The final judgment contained extensive findings of fact. Appellant urges that the trial judge erred in lending credence to the testimony of appellee’s president. The credibility of witnesses is peculiarly the prerogative of the trier of fact and ordinarily will not be disturbed on appeal. Pertinent also is the fact that although both parties were represented by eminent counsel throughout the life of the contract which the plaintiff sought to have specifically performed, they nevertheless frequently engaged in communications and agreements between themselves (the corporate party acting by and through its president) without the knowledge of their respective attorneys. Our examination of the record reveals that there was ample competent evidence to support the trial judge’s findings of fact and that those findings support the final judgment appealed.

AFFIRMED.

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


author: McCORD, Judge.

text:
    ROYAL INDUSTRIES, INC., and Buck Equipment Corp., Appellants, v. John BIRDSONG, et al., Appellees.
    No. CC-442.
    District Court of Appeal of Florida, First District.
    Dec. 15, 1976.
    Rehearing Denied Jan. 13, 1977.
    Sutton G. Hilyard, Jr., of Pitts, Eubanks, Ross & Rumberger, Orlando, for appellant.
    C. Anthony Schoder, Jr., of Hoffman, Hendry, Parker & Smith; and David R. Miller, of Smalbein, Eubank, Johnson, Rosier & Bussey, Daytona Beach, for appellees.
   McCORD, Judge.

This is an interlocutory appeal from an order denying motions of appellants, Royal Industries and Buck Equipment Corporation, to quash service of process, and denying Royal’s motion to quash service of cross-claim of appellee, Desa Industries, Inc., against Royal.

Appellees John Birdsong and wife filed a complaint against foreign corporations Buck, Royal, and Desa for personal injuries. Following service of process, (or attempted service of process) on Royal, Buck, and Desa, Desa filed an answer and cross-claim against Royal. On March 4, 1975, a “notice of appearance” was filed by attorneys for Buck and Royal. Subsequently, on March 30,1976, Buck and Royal filed the aforesaid motions to quash service of process contending that the service was defective and the court did not have personal jurisdiction over them.

The initial question is whether or not the appearance filed on March 4 was a general appearance which subjected Royal and Buck to the jurisdiction of the court and precluded a later contest as to the validity of the process or service thereof. Appellants contend that in 1952 when the Supreme Court adopted Rule of Civil Procedure 1.11(b) [the predecessor of present Rule of Civil Procedure 1.140(b)] the distinctions between general and special appearances were abolished. Present Rule 1.140(b) which in pertinent part is in material respects the same as old rule 1.11(b), provides as follows:

“Every defense in law or fact to a claim for relief in a pleading shall be asserted in the responsive pleading, if one is required, but the following defenses may be made by motion at the option of the pleader: (1) * * *, (2) lack of jurisdiction over the person, (3) * * *, (4) insufficiency of process, (5) insufficiency of service of process, (6) * * *, (7) * * *. A motion making any of these defenses shall be made before pleading if a further pleading is permitted . . ”

It is clear that prior to the adoption of the aforesaid Rule of Civil Procedure, an appearance which did not attack jurisdiction constituted a general appearance submitting the party filing same to the jurisdiction of the court. The Supreme Court in Sternberg v. Sternberg, 139 Fla. 219, 190 So. 486 (1939), stated as follows:

“If the defendant takes some step in the proceedings which amount in law to a submission to the Court’s jurisdiction, the fact that the defendant insists that he never intended so to do, or to otherwise admit the jurisdiction of the court over his person, or that he contends that he appeared specially and not generally, is not sufficient to preclude the court from considering and holding that the defendant appeared generally in contemplation of law. See Rorick v. Stilwell, 101 Fla. 4, 133 So. 609.”

While Rule of Civil Procedure 1.140 now allows a defendant to attack the jurisdiction of the court either in his responsive pleading or by motion and therefore no longer requires that he make a special appearance for such purpose, it does not follow that a defendant may now make a general appearance and later repudiate it by attacking the court’s jurisdiction over him. Appellants find comfort in two opinions of the District Court of Appeal, Third District, which though not in point with the case sub judice, contain statements that the intent of the aforesaid Rule of Civil Procedure was to abolish the former distinction between general and special appearances. Greenberg v. Greenberg, 101 So.2d 608 (3 DCA 1958), and Paulson v. Faas, 171 So.2d 9 (3 DCA 1965). Subsequent to the statements in Greenberg and Paulson, however, the same court in McKelvey v. McKelvey, 323 So.2d 651 (3 DCA 1976), recognized the continued existence of general appearances. It there ruled that a general appearance ordinarily will be effected by making a motion involving the merits of plaintiff’s claim and his right to maintain the suit and secure the relief sought; that a motion for protective order which was in effect a motion to dismiss for failure to state a claim upon which relief could be granted, constituted a general appearance by the defendant, thus giving the court general jurisdiction over him.

Appellants also cite Jones v. Denmark, 259 So.2d 198 (3 DCA 1972), which holds that the joining of a motion to transfer the cause with a motion to dismiss for lack of jurisdiction did not constitute a general appearance or waiver of jurisdictional challenge by the defendant. Had appellants in the case sub judice joined or filed with their appearance a motion attacking the court’s jurisdiction over them, we would have a situation analogous to Jones v. Denmark. Here, however, appellants filed a general appearance without making a simultaneous attack on the court’s in personam jurisdiction.

In Krasnosky v. Krasnosky, 282 So.2d 186 (1 DCA 1973), this court stated as follows:

“As to the question of waiver of jurisdiction by pleading, this has been long ago settled by our Florida Supreme Court. If the defendant takes some step in the proceeding or files a pleading to the merits of the cause, defects in service or jurisdictional defects are waived.” (Emphasis supplied.)

The filing by appellants of a general appearance was a step in the proceeding which waived defects in service and subjected them to the jurisdiction of the court.

As to Royal’s motion to quash service of Desa’s cross-claim, it was grounded upon the contention that the court did not have in personam jurisdiction over Royal. Thus, the trial court was correct in not quashing service of the cross-claim.

Appellants’ other contentions on this appeal related to alleged defects in service of process upon them. Since we find that they submitted themselves to the jurisdiction of the court by their appearance, these remaining points are moot.

AFFIRMED.

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