text:
    Emanuel SCHATTEN, d/b/a Schatten Associates, Appellant, v. C. I. T. CORPORATION, a New York Corporation, Appellee.
    No. 76-261.
    District Court of Appeal of Florida, Third District.
    June 22, 1976.
    Rehearing Denied Aug. 10, 1976.
    Myers, Kaplan, Levinson & Kenin and Peter H. Leavy, Miami, for appellant.
    Thompson & Freyer, Miami, for appel-lee.
    Before BARKDULL, C. J., and PEARSON and HAVERFIELD, JJ.
   PER CURIAM.

In this appeal by the defendant from a summary final judgment, it is argued that there was a genuine issue of material fact as to whether the collateral for the debt was sold in accord with reasonable commercial practice. See Fla.Stat. § 679.-507(2). The facts appearing without conflict show an earnest effort to secure the highest price that the market would bear for the collateral (a used construction machine). We think the plaintiff carried its burden of establishing compliance with the requirements of the law. The discovery and affidavits relied upon by the defendant fail to show any contrary fact. See Connolly v. Sebeco, Inc., Fla.1956, 89 So.2d 482; Harvey Building, Inc. v. Haley, Fla. 1965, 175 So.2d 780.

Affirmed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    John A. PACHIVAS, Appellant, v. The CASTAWAYS RESORT MOTEL, INC., and the Castaways, Inc., Appellees.
    No. 75-1489.
    District Court of Appeal of Florida, Third District.
    June 22, 1976.
    Rehearing Denied Aug. 10, 1976.
    Feldman & Abramson and Jose Smith, Miami, for appellant.
    Adams, George, Wood, Lee & Schulte and David L. Willing, Miami, for appel-lees.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   PER CURIAM.

This is an appeal from a summary final judgment. The trial court found that there

was no genuine issue of material fact upon the essential allegation of the plaintiff that the defendants Hart and Werth were the agents or employees of the defendant, The Castaways, Inc., or the agents or employees of Castaways Resort Motel, Inc. Thereupon, the court entered the summary judgment for the last named defendants.

The court had before it only the pleadings and the affidavits of defendants. The affidavits were not sufficient to meet the standards set by the Supreme Court of Florida in Holl v. Talcott, Fla.1966, 191 So. 2d 40; cf. Tuberville v. Concrete Construction Company, Fla.App.1972, 270 So.2d 431.

Reversed and remanded.


text:
    Edward LILLIS, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1720.
    District Court of Appeal of Florida, Third District.
    June 22, 1976.
    Rehearing Denied Aug. 10, 1976.
    Phillip A. Hubbart, Public Defender, Mark King Leban, Asst. Public Defender, and Thomas Murray, Legal Intern, for appellant.
    Robert L. Shevin, Atty. Gen., Margarita Esquiroz, Asst. Atty. Gen., and Sidney M. Pertnoy, Legal Intern, for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Affirmed. See Hutchinson v. State, Fla. App.1967, 201 So.2d 485 and United States v. Vargas, 9th Cir. 1971, 436 F.2d 1280.


text:
    BLEAUFONTAINE, INC., a Florida Corporation, and Ben Novack, Appellants, v. HARRY P. LEU, INC., Appellee.
    No. 75-1451.
    District Court of Appeal of Florida, Third District.
    June 22, 1976.
    Rehearing Denied Aug. 10, 1976.
    Marx & Squitero and Richard N. Krinz-man, Miami, for appellants.
    Friedman, Britton & Stettin and W. John Gundlach, Jr., Miami, for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Affirmed. See Andrews v. Midland National Insurance Co., Fla.App.1968, 208 So.2d 136; and Tri-County Produce Distributors, Inc. v. Northeast Production Credit Association, Fla.App.1963, 160 So.2d 46.


text:
    Secundino DIAZ, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1643.
    District Court of Appeal of Florida, Third District.
    June 22, 1976.
    Rehearing Denied Aug. 10, 1976.
    Manners & Amoon and Harold Mende-low, Albert L. Carricarte, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen., for ap-pellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Secundino Diaz was charged by indictment with second degree murder. Upon entering a plea of guilty he was found guilty as charged. Before sentence was entered, however, defense counsel filed a motion to withdraw the guilty plea on the basis of newly discovered evidence, and to proceed with a jury trial. After entertaining defense counsel’s proffer of the newly discovered evidence, the court requested and heard the testimony of the newly discovered witness. The motion was denied and Diaz was sentence to 15 years in the state penitentiary. No appeal was taken from the judgment and sentence or from the denial of the motion to withdraw guilty plea.

Subsequently, defense counsel filed a motion to vacate the judgment and sentence pursuant to Rule 3.850, RCrP, on the basis that the State concealed from the court at the time of the taking of the guilty plea the fact that there was a possible defense to the charge. The motion alleges that this was a violation of Brady v. Mayland, 373 U.S. 83, 83 S.Ct. 1194, 10 L. Ed.2d 215, and the defendant’s right to due process. The trial judge denied the motion and this appeal ensued.

After having studied the record on appeal, we find that the evidence which the defendant claims the State withheld was not withheld, and was, in fact, adduced from State’s witnesses at the preliminary hearing some three weeks after the occurrence of the crime. The defendant’s contention that his constitutional rights were violated has not been demonstrated in the record on appeal. Accordingly, the order denying the motion to vacate judgment and sentence is

Affirmed.


text:
    Guillermo MIGUEL and Dade County, a political subdivision of the State of Florida, d/b/a Metro Transit Authority, Appellants, v. Sarah H. RICHARDSON et al., Appellees.
    No. 75-630.
    District Court of Appeal of Florida, Third District.
    June 8, 1976.
    Rehearing Denied Aug. 10, 1976.
    Sam Daniels, John E. Finney, Miami, for appellants.
    Horton, Perse & Ginsberg, George P. Telepas, Miami, for appellees.
    Before BARKDULL, C. J., HAVER-FIELD, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

This appeal arises out of personal injury litigation that commenced in the trial court by a passenger on a bus, operated by Dade County, suing the County, the driver of the bus, and the driver of an automobile, which automobile allegedly cut in front of the bus causing the bus to strike the rear of the automobile. There were various crossclaims filed, one of which is pertinent to this appeal.

At the time the matter was submitted to the jury, the plaintiff had a cause of action against the County for a breach of duty as a public carrier, and a cause of action against the driver of the automobile for simple negligence.

The appellants complain of prejudicial error incurred by the trial judge submitting defective verdict forms to the jury. The specific claimed defect seems to be the allegation that under said verdict forms, if the jury were to find in favor of the bus passenger (plaintiff) against the appellants (defendants, cross-defendants, and counter-plaintiff) it must also find in favor of the appellee, Angel Segurado (defendant, cross-plaintiff, and counter-defendant), on his crossclaim seeking damages for simple negligence. Segurado was the driver of the vehcile struck from the rear by the appellant’s bus. It is to be noted that the appellants admit the jury was properly charged on the duty of care the respective parties owed to each other. The appellee urges that the appellants waived this objection by not noting same on the record prior to the submission of the verdict forms to the jury, citing Kent v. Polk Grocery Co., 131 Fla. 139, 179 So. 136; Crawford v. Dimicco, Fla.App.1968, 216 So.2d 769; Town of Medley v. Scott, Fla.App.1973, 285 So.2d 663.

An examination of the record shows that immediately upon the judge giving the verdict forms to the jury, counsel for the appellants objected. This is the first indication in the record as to the knowledge that counsel for the appellant had as to the forms that were to be given by the court. Therefore, we hold that the objection was timely made. See: Louisville & Nashville Railroad Company v. Flournoy, Fla.App.1961, 136 So.2d 32. The jury should be submitted forms of verdict which permit it to arrive at a verdict or verdicts consistent with the claims of the plaintiff and cross-plaintiff and the defenses addressed thereto. Southern Express Co. v. Stovall, 71 Fla. 122, 70 So. 939; Morrison v. Hansen, Fla.App.1968, 213 So.2d 306. The verdict forms submitted to the jury are not included in the record on appeal and, while our research fails to reveal any Florida authority to support it, we are of the opinion that failure to include said form verdicts in the record is a fatal defect. Furthermore, it does appear from the record that subsequent to charging the jury, the trial court discussed the verdict forms and, from this discussion, we can discern the following:

The trial judge submitted three sets of forms to the jury and instructed it to execute the verdicts in one set of the forms. In Group 1, there was a verdict for the plaintiff against all of the defendants; a verdict for Segurado against the appellants for his claim for damages occasioned by his injuries; and a verdict for the appellants against Segurado on the appellants’ counterclaim for damages to the bus.

In Group 2, there was a verdict for the plaintiff against Segurado and his insurer; a verdict for Segurado against the appellants on Segurado’s crossclaim; a verdict for the appellants against Segurado on his crossclaim; and a verdict for the appellant-County against Segurado on the County’s counterclaim.

In Group 3, a verdict for the plaintiff against the appellants herein; and a verdict for Segurado against the appellants on his crossclaim.

Breaking this down, we find the jury had the following verdicts. On plaintiff’s claim: In favor of the plaintiff against appellants, Segurado and his insurer; in favor of the plaintiff against Segurado and his insurer; and in favor of the plaintiff against the appellants. On Segurado’s crossclaim: In Segurado’s favor against the appellants; and in favor of the appellants against Segurado. On the County’s counterclaim: In favor of the County against Segurado.

The jury returned a verdict in favor of the plaintiff in the amount of $21,000.00 against all defendants; in favor of Segur-ado against the appellants in the amount of $19,000.00 on the crossclaim; and in favor of the County against Segurado in the amount of $426.24 on the County’s counterclaim. The award to Segurado was substantially less than his claim for $40,000.-00/$S0,000.00. The award to the County for damages to the bus was the amount requested in closing argument; however, this request does not agree with the bill for repairs, which was in the amount of $952.49.

Based on the foregoing, we can see that while the verdict forms, as ascertained from the record, may be confusing (the confusion probably being attributed to lack of the forms), the jury did in fact have in its possession a verdict in favor of the appellants against Segurado on his cross-claim. We cannot say that the jury verdict was the result of confusion on its part;' there is nothing to show that the verdicts were not, in fact, those intended by the jury. Therefore, no merit is found in this alleged error.

We have examined the other points urged for reversal and find them to be without merit. See: Upton v. Hutchison, Fla.1950, 46 So.2d 20; Loftin v. Wilson, Fla.1953, 67 So.2d 185; Talcott v. Holl, Fla.App.1969, 224 So.2d 420; Seaboard Coast Line Railroad Company v. McKelvey, Fla.1973, 270 So.2d 705; Miami Shores Village v. Brown, Fla.App. 1973, 286 So.2d 589.

Therefore, for the reasons stated, the final judgment be and the same is hereby affirmed.

Affirmed.


text:
    Elizabeth LaROSSA, Appellant, v. Jay GLYNN et al., Appellees.
    No. 75-1228.
    District Court of Appeal of Florida, Third District.
    June 8, 1976.
    Rehearing Denied Aug. 10, 1976.
    Highsmith, Strauss & Nelson, Miami, for appellant.
    Pallot, Stern, Proby & Adkins, Miami, for appellees.
    Before BARKDULL, C. J., and HEN-DRY and NATHAN, JJ.
   PER CURIAM.

Affirmed. Hohweiler v. Hohweiler, Fla. App.1964, 167 So.2d 73; LaRossa v. Glynn, Fla.App.1974, 302 So.2d 467.


text:
    Stanley F. WHITMAN et al., Appellants, v. PET INCORPORATED et al., Appellees.
    No. 75-1377.
    District Court of Appeal of Florida, Third District.
    June 8, 1976.
    Rehearing Denied Aug. 10, 1976.

      Therrel, Baisden, Peterson, Stanton & Stillman and Howard A. Setlin, Miami Beach, for appellants.
    Cassel & Benjamin and Gubman & Sito-mer, Miami, for appellees.
    Before HENDRY and HAVERFIELD, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Defendant lessors appeal final judgment enjoining them from terminating their lease with the plaintiff in this action to declare a notice of termination of lease between the parties null and void.

Defendant-appellants (hereinafter referred to as Bal Harbour) are the developers, owners, and managers of a shopping center known as The Bal Harbour Shops which leases space only to merchants with outstanding reputations for furnishing top quality merchandise and services. In 1966 Bal Harbour entered into a 20 year lease with Frank G. Shattuck Company to occupy premises in the shopping center for the operation of a “Schrafft’s” restaurant which enjoyed a reputation for good food and service. In 1972 Frank G. Shattuck Company became part of Pet Incorporated and Bal Harbour consented to assignment of the lease to plaintiff-appellee Pet Incorporated. In 1973, pursuant to the below quoted provision of the lease between the parties, Pet notified Bal Harbour that it was negotiating with the Riese brothers of New York for the sale of its Schrafft’s restaurants and requested consent to the assignment of its lease. After investigation, Bal Harbour learned from various sources that the Riese brothers were not considered quality food operators and refused to consent to the assignment. Pet then entered into a management agreement with Riese brothers to take over the operation'of the restaurant and the quality of the food rapidly declined. By letter dated December 21, 1973 Bal Harbour notified Pet of termination of the lease as of January 10, 1974 because Pet, in effect, had transferred the lease to Riese brothers without Bal Harbour’s consent. The lease contained the following pertinent provision:

“Section 11.9 Successors and Assigns— Tenant shall not have the right to sell, assign, transfer, mortgage, pledge, sublease or in any manner dispose of this lease or any estate or interest therein without the previous written consent of the Landlord, which consent shall not be unreasonably withheld and provided it is assured that substantially the same type, class, nature and quality of business, merchandise, services and management, including, without limiting the generality of foregoing, similarity and nature, type, quality, retail price structure, and volume of merchandise sold or offered for sale, and prestige, reputation and financial soundness of ownership and management, is maintained and will continue to be furnished in a manner compatible with the high standards contemplated by this lease, and, provided, further, that each and every covenant, condition or obligation imposed upon Tenant by this lease and each and every right, remedy or benefit afforded Landlord by this lease, is not thereby impaired or diminished. Consent by Landlord to one or more assignments of this lease or to one or more subletting of said premises shall not operate to exhaust Landlord’s rights under this paragraph.”

Pet then filed a complaint seeking (1) to have the notice of lease termination declared void, (2) to enjoin Bal Harbour from terminating the lease, (3) to compel consent of the assignment to the Riese brothers or their corporate designee, Bal Harbor Restaurant Corp., and (4) to recover damages for unreasonably withholding consent to assignment. Pet obtained an injunction enjoining Bal Harbour from terminating the lease until further order of court. Bal Harbour counterclaimed alleging Pet to be in default of the lease in that it did not have the capability of operating the demised premises as required thereunder, and that Pet had assigned the lease in a manner not permitted by its terms. Bal Harbour prayed that (1) the lease be declared terminated, (2) the assignment be declared void, (3) Riese brothers or their corporate designee be enjoined from using the premises, and (4) damages be awarded for Pet’s failure to quit the premises.

After close of all evidence, the trial judge found that Bal Harbour unreasonably withheld consent to an assignment of the lease, and neither Pet nor the Riese brothers have in any way violated the terms of the lease. Thereupon, he ordered Bal Harbour be restrained from terminating the lease and that they consent in writing to an assignment of the lease. Pet’s claim for damages and Bal Harbour’s counterclaim were denied.

Bal Harbour contends the trial judge erred in finding that they unreasonably withheld consent to assignment of the lease, and Pet had not violated the terms of the lease which would require the lease to be declared void. We find these points well taken.

Generally, an appellate court will not set aside the findings of fact by the trial court in a non-jury case unless there is no substantial evidence to sustain them, or they are contrary to the manifest weight of the evidence or the legal effect of the evidence, or are induced by an erroneous view of the law. Holland v. Gross, Fla.1956, 89 So.2d 255; Richards v. Dodge, Fla.App.1963, 150 So.2d 477; Dixson v. Kattel, Fla.App.1975, 311 So.2d 827.

First, contrary to the view held by the trial court, the burden was upon Pet to prove that Bal Harbour had unreasonably withheld their consent to assignment of the lease and not upon Bal Harbour to: show that their refusal to consent was reasonable. See Johnson v. Jaquith, Fla.App.1966, 189 So.2d 827. Second, the overwhelming evidence is that although Riese brothers may be financially sound, they are not quality food operators and are not operating the restaurant in Bal Harbour Shops on a par with that traditionally associated with Schrafft’s when it was owned and managed by Pet and its predecessor, the Shattuck Company. In fact, the former manager of Schrafft’s testified that he had investigated the current operations and determined it to be a third class restaurant serving very bad food even though when he left, it was a fine restaurant serving excellent quality food and giving good service. In addition, the current manager testified that Riese brothers required that he spend only 30% of their expense dollar for food, paper and plastics, so that he was forced to consider price rather than quality and customers complained that the restaurant was not as it used to be.

We, therefore, find that Pet failed to demonstrate that Bal Harbour unreasonably withheld their consent to an assignment of the lease to Riese brothers. The judgment entered in Pet’s favor is reversed and the cause remanded to the trial court to enter judgment for Bal Harbour on their counterclaim and to determine the amount of damages, if any, to which Bal Harbour is entitled for Pet’s failure to quit the premises upon receipt of Bal Harbour’s notice of termination.

In light of the above disposition, it follows that Pet’s cross-appeal directed to the denial of its claim for damages is without merit.

Reversed and remanded.


text:
    The STATE of Florida, for the Use and Benefit of DADE COUNTY, Appellant, v. Eddie BURKE and Public Service Mutual Insurance Company, a New York Corporation, Appellee.
    No. 75-1647.
    District Court of Appeal of Florida, Third District.
    June 8, 1976.
    Rehearing Denied Aug. 10, 1976.
    Richard E. Gerstein, State’s Atty., and Milton Robbins, Asst. State’s Atty., for appellant.
    Benjamin R. Alter, Miami, for appellee.

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

Plaintiff, the State of Florida, appeals an order vacating final judgment of forfeiture on an appearance bond against the defendant surety.

Eddie Burke was informed against for issuing a worthless check and was released on a $1,000.00 appearance bond. Burke failed to appear in court and on August 24, 1973 an order of forfeiture, followed by a final judgment on November 20, was entered against him and his surety, Public Service Mutual Insurance Company, defendant-appellee herein [§ 903.26(4) (a), Fla.Stat.]. The surety moved to vacate this judgment on the ground it had produced Burke on December 7, 1973. This motion was denied on February 25, 1974 and the surety appealed. Meanwhile, the criminal division of the circuit court entered an order vacating the August 24, bond forfeiture. During the pendency of the appeal, the surety again moved the court (civil division) to vacate the final judgment on the ground that Burke had made restitution. On August 12, 1974 the court entered an order vacating the November 20, 1973 final judgment. The surety’s appeal from the February 25 order was dismissed and the second appeal was filed by the State from the order of August 12, 1974 vacating the final judgment of forfeiture. This court held it was error to vacate this judgment while the surety’s appeal directed to the order of denial of February 25 was pending in this court. See State v. Public Service Mutual Ins. Co., Fla.App.1975, 311 So.2d 123. After receipt of this court’s mandate reinstating the final judgment of forfeiture, the circuit court again entered its order vacating final judgment and the State appeals. We reverse.

This cause having been appealed twice to this court (300 So.2d 92 and 311 So.2d 123), the trial court was without jurisdiction to enter the appealed order vacating finai judgment of forfeiture.

Reversed and remanded to the trial court to reinstate the final judgment.

So ordered.

      . This action was ineffectual because it was not timely, § 903.26(5) (d), Fla.Stat.


author: HENDRY, Judge.

text:
    CENTRAL BANK OF NORTH DADE, a Florida Corporation, Appellant, v. PRIME LAND DEVELOPMENT CORPORATION, a Florida Corporation, etc., et al., Appellees.
    No. 75-1942.
    District Court of Appeal of Florida, Third District.
    June 8, 1976.
    Rehearing Denied Aug. 10, 1976.

      Pallot, Poppell, Goodman & Slotnick, Miami, for appellant.
    Storace, Hall & Hauser and Andrew Leinoff, Miami, for appellees.
    Before HENDRY and HAVERFIELD, JJ„ and CHARLES CARROLL (Ret.), Associate Judge.
   HENDRY, Judge.

Appellant, plaintiff below, brings this interlocutory appeal from an order of the Circuit Court of Dade County granting ap-pellees’, defendants below, motion to transfer the cause to the Circuit Court of Bro-ward County.

Appellant filed its complaint alleging, among other things, that appellee Prime Land Development Corporation executed and delivered a promissory note to it in Dade County, Florida, and that all of the other appellees personally guaranteed the note and the indebtedness. The note provided for payment by the maker or the guarantors to be made at the Central Bank of North Dade in Dade County, Florida. The complaint further alleged that a default in payment on the note occurred and, although a demand for payment pursuant to the default was made, none of the appel-lees have .made the demanded payments.

After the complaint was filed, appellees moved to transfer the cause to the Circuit Court of Broward County in view of a subsequently filed action pending in that court. On November 21, 1975, the trial court heard argument of counsel and determined that the entire case should be transferred. Thereafter, an order of transfer was entered from which appellant brings this interlocutory appeal.

Appellant argues that in an action on a note and guarantees, wherein the note was executed in Dade County and the note and guarantees provided that payment shall be made in Dade County, the Circuit Court of Dade County may not properly transfer the cause to the Circuit Court of Broward County, without plaintiff’s consent, upon a motion by defendants alleging that in a subsequently filed action in Broward County, which action was not instituted by the plaintiff, all the issues and facts could be heard and determined. Also, the suit in Broward County was filed by a party who is not a party to the instant action.

Our review of the record, all points in the briefs, and arguments of counsel in the light of the controlling principles of law leads us to agree with appellant’s contention that venue was properly in Dade County and that the trial court should not have transferred the cause to Broward County. See Mann v. Goodyear Tire and Rubber Company, Fla.1974, 300 So.2d 666; First International Realty Investment Corporation v. Cochran, Fla.App.1975, 314 So. 2d 214; Equilease Corporation v. Clifford, Fla.App.1971, 251 So.2d 40; and §§ 47.061, 47.122, and 47.163, Fla.Stat., 2 F.S.A. Therefore, for the reason stated and upon the authorities cited, the interlocutory order appealed is reversed.

Reversed.


text:
    Robert Chester KEEN, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1729.
    District Court of Appeal of Florida, Third District.
    June 22, 1976.
    Rehearing Denied Aug. 11, 1976.
    Phillip A. Hubbart, Public Defender, and Yale T. Freeman, Special Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and William Grodnick, Asst. Atty. Gen., for appel-lee.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   PER CURIAM.

Defendant claims that the evidence upon which he was found guilty by a jury of breaking and entering with intent to commit grand larceny was legally insufficient because it was circumstantial and did not preclude the reasonableness of his own explanation for his presence at the scene. A review of the evidence not only shows glaring inconsistencies in defendant’s story, but also completely fails to explain his exit from the house with a pillowcase filled with articles which the jury could reasonably have believed were removed from the premises. See Hernandez v. State, Fla.App.1974, 305 So.2d 211.

Affirmed.


text:
    GOVERNMENT EMPLOYEES INSURANCE COMPANY, Appellant, v. Walter J. DAMMERT and Mary Jo Dammert, Appellees.
    No. 75-1201.
    District Court of Appeal of Florida, Third District.
    May 25, 1976.
    Rehearing Denied Aug. 11, 1976.
    Bradford, Williams, McKay, Kimbrell, Hamann & Jennings and W. H. Toothman, Miami, for appellant.
    Chambers & Hayes, Homestead, for ap-pellees.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Government Employees Insurance Company brings this appeal from a declaratory judgment which held that the provisions in a policy upon two automobiles against stacking of uninsured motorist coverage were ineffective. The uninsured motorist coverage in these policies was the same as that dealt with in Government Employees Insurance Co. v. Farmer, Fla.App.1976, 330 So.2d 236. See also State Farm Mutual Automobile Insurance Company v. Anderson, Fla.App.1976, 332 So.2d 623 (released April 23, 1976).

Based upon the reasoning of the Supreme Court of Florida in Tucker v. Government Employees Insurance Company, Fla.1973, 288 So.2d 238, and the above cited cases, the judgment is affirmed.

Affirmed.


text:
    Dwight Leon ORR, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1763.
    District Court of Appeal of Florida, Third District.
    July 27, 1976.
    Phillip A. Hubbart, Public Defender, and Paul Morris, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen., for ap-pellee.
    Before BARKDULL, C. J., and HAV-ERFIELD and NATHAN, JJ.
   PER CURIAM.

Affirmed.

See: Franklin v. State, Fla.App.1969, 226 So.2d 461; Bernhardt v. State, Fla. 1974, 288 So.2d 490; Randolph v. State, Fla.App.1974, 292 So.2d 374.


author: HAVERFIELD, Judge.

text:
    Ferando MUNILLA and Norka Munilla, his wife, Appellants, v. Armando PEREZ-COBO, Appellee.
    No. 75-1442.
    District Court of Appeal of Florida, Third District.
    June 15, 1976.
    Rehearing Denied Aug. 10, 1976.

      Shorenstein & Lewis, Miami Beach, for appellants.
    A. Jay Cristol and Michael V. Blumen-thal, Miami, for appellee.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   HAVERFIELD, Judge.

Defendants seek reversal of a final summary judgment for plaintiff in this mortgage foreclosure action.

Pursuant to the terms of a participation agreement on the construction and sale of houses, plaintiff, Armando Perez-Cobo, was to receive a guaranteed profit from the sale in consideration for advancing loans totalling $20,000 at an interest rate of 8% per annum to the Los Angeles Building Corporation controlled by the family of the defendants. When the loans became due the corporation defaulted and plaintiff filed a complaint seeking to obtain a judgment for $17,000 plus interest. In exchange for the execution of a $6,000 note and mortgage by the corporation and $11,725 note and mortgage by defendants Fernando and Norka Munilla individually, plaintiff agreed to forbear from pursuing this lawsuit. The court approved the settlement, the suit was dismissed, all the rights of plaintiff to the participation agreement were cancelled and plaintiff consented to look only to the new notes, mortgages and makers. Thereafter, the corporation defaulted on the $6,000 note. Plaintiff filed suit and when the parties reached a settlement it was dismissed. Defendants defaulted when the $11,725 note reached maturity and plaintiff filed the instant mortgage foreclosure action. Defendants answered alleging as affirmative defenses usury, lack of consideration and duress. Subsequently, plaintiff filed a motion for summary judgment which was granted and defendants appeal.

In the instant case Gunn Plumbing, Inc. v. Dania Bank, Fla.1971, 252 So.2d 1 is controlling and enunciates the following principles of law: (1) If the first loan contracted charged to be usurious is abandoned and the obligor assents to a new or substituted contract in which he voluntarily agrees to pay the obligation with lawful interest, the new contract will be enforceable; (2) usury is a purely personal defense which may be waived by the borrower in several ways including the execution of a written stipulation, the effect of which is binding upon the parties and may be recognized in another proceeding; (3) in order to obtain relief against stipulations, the regular course is not to ignore or attempt to evade it, but to make a seasonable and affirmative application by formal motion to the court, on notice and supported by affidavit for its withdrawal or revocation.

In light of the above principles of law, we have determined that the $11,-725 note and mortgage is valid and enforceable. Pursuant to the terms of the stipulation, plaintiff cancelled all his rights in the original agreement and defendants voluntarily assented to the execution of the instant note and mortgage at a lawful rate of interest. Defendants also are estopped from asserting any set-off, counterclaim or defense, including usury, which arose prior to the execution of the stipulation. Defendants took no affirmative action to rescind, reform or void the terms of the stipulation; they accepted its benefits and were represented by counsel in the prior suit which resulted in the stipulation that was supported by a good and valuable consideration and was acted upon by the parties.

Defendants’ remaining affirmative defenses being legally insufficient, the cause was ripe for summary adjudication. See Tippett v. Frank, Fla.App.1970, 238 So.2d 671, 673.

Affirmed.

      . $3,000 had been repaid.

      . See Gabel v. Drewrys Limited, U.S.A., Inc., Fla.1953, 68 So.2d 372.


text:
    Clemistine STEELE, Appellant, v. ROYAL CROWN COLA BOTTLING CO., a Florida Corporation, Appellee.
    No. 75-1029.
    District Court of Appeal of Florida, Third District.
    June 22, 1976.
    Rehearing Denied July 29, 1976.
    See also Fla.App., 335 So.2d 589.
    Wolfson, Diamond & Logan, Miami Beach, Podhurst, Orseck & Parks, Miami, for appellant.
    Wicker, Smith, Blomqvist, Davant, Mc-Math, Tutan & O’Hara and Richard A. Sherman, William John Mason, Miami, for appellee.

      Before PEARSON, HENDRY and NATHAN, JJ.
   HENDRY, Judge.

This is an appeal by plaintiff, Clemistine Steele, from a final judgment entered by the circuit court, pursuant to a directed verdict at the close of her case during a jury trial, in favor of defendant, Royal Crown Cola Bottling Company, Inc., of Miami, Florida (Royal Crown).

The underlying products liability personal injury action arose out of the explosion on December 1, 1972, of a bottle of Royal Crown Cola which had been standing on the check-out counter of Neal’s Grocery and Market in Miami, Florida. Plaintiff, a customer in the store, was checking out some goods when she picked up the bottle of Royal Crown Cola to separate it from her own purchases. Upon picking it up, the bottle shattered in her hand propelling pieces of glass into her left eye, permanently damaging it. Plaintiff, by her amended complaint, sued Royal Crown, the bottler of the soft drink, and Neal Adams, d/b/a Neal’s Grocery & Market, the retailer, alleging that the product was not safe for its intended purpose and that defendants were guilty of negligence.

The matter proceeded to a jury trial and, at the conclusion of plaintiff’s case, the trial court granted Royal Crown’s motion for a directed verdict, but denied a similar motion by Neal Adams. Prior to submission to the jury of the case, plaintiff voluntarily dismissed her complaint against Neal Adams. Pursuant to the directed verdict, a final judgment was entered in favor of Royal Crown. From the final judgment, plaintiff appeals.

Appellant contends that the trial court erred in directing a verdict in favor of Royal Crown and in holding that no jury question was presented on either a theory of res ipsa loquitur or breach of implied warranty. Appellee contends that the directed verdict was proper because appellant did not affirmatively show that the bottle was not mishandled after leaving the control of appellee, which showing was necessary for the doctrine of res ipsa loquitur to apply. Appellee also contends that appellant was a bystander and, therefore, could not bring suit on a theory of implied warranty because she lacked privity with appellee.

The Florida Supreme Court in Groves v. Florida Coca-Cola Bottling Co., Fla.1949, 40 So.2d 128, stated as follows:

“It is recognized by the decisions of this court that a manufacturer of bottled beverages may be held liable for injuries resulting from exploding beverage bottles after they have passed from the possession and control of the manufacturer, even though the injured person may fail to offer any direct proof of negligence on the part of the manufacturer. Before the duty devolves upon the manufacturer [as defendant] of going forward with the evidence in such a case, however, the injured person must make an affirmative showing that after the bottle left the possession and control of the bottler it was not subjected to any unusual atmospheric changes or changes in temperature such as might have been reasonably calculated to render the bottle defective or otherwise to cause an explosion and that it was not handled improperly from the time it left the possession of the bottler up to the time of the explosion.”

In applying res ipsa loquitur to “exploding bottle” cases, the Supreme Court in Groves, supra at 130, stated further as follows:

“While it is true that the law requires an affirmative showing to be made by the injured party that due care was used in the handling of a bottled beverage after it has left the possession and control of the manufacturer before the rule of res ipsa loquitur will be applicable, the law does not require that the injured person eliminate each and every remote possibility of injury to the bottle up to the time of the explosion. It is enough if the evidence is such as to permit a reasonable inference in light of all the circumstances that the bottle was not accessible to extraneous harmful influences after it left the possession of the bottler and that it was handled in a reasonably careful manner by the injured person and others who may have had reason to move or touch it. (Citation omitted) When such evidence has been produced a prima facie case of negligence has been established sufficient to place the burden on the manufacturer of rebutting the presumption raised by the evidence that the explosion was the result of some defect in the bottle, improper charging or mixing of its contents, or negligent manner in its handling while in possession and control of the manufacturer.”

See Burkett v. Panama City Coca-Cola Bottling Company, Fla.1957, 93 So.2d 580; Miami Coca-Cola Bottling Company v. Reisinger, Fla.1953, 68 So.2d 589; and Coca-Cola Bottling Company v. Clark, Fla. App.1974, 299 So.2d 78.

The basic question in the instant appeal is whether the trial court properly granted appellee’s motion for a directed verdict at the close of appellant’s case. The answer to that question depends upon whether or not appellant adduced sufficient evidence during the presentation of her case to invoke the doctrine of res ipsa loquitur.

Upon a motion for directed verdict made at the close of a plaintiff’s case, the moving party admits not only the facts adduced, but every conclusion favorable to his adversary fairly and reasonably inferable therefrom. McCabe v. Watson, Fla.App. 1969, 225 So.2d 346; Chowning v. Pierce, Fla.App.1965, 174 So.2d 42; and Deese v. White Belt Dairy Farms, Inc., Fla.App. 1964, 160 So.2d 543. Applying this rule to the circumstantial evidence adduced by appellant, particularly in regard to her affirmatively showing that the bottle which exploded was not improperly handled after it left the possession and control of appel-lee, we are of the opinion that it was sufficient to call into play the doctrine of res ipsa loquitur. For res ipsa loquitur to be applicable, all that is needed is evidence from which reasonable persons could say that on the whole it is more likely that there was negligence associated with the cause of the exploding bottle than there was not.

In the instant case, we are of the opinion that appellant introduced sufficient evidence to preclude the trial court from saying that the jury could not reasonably infer such a conclusion. As pointed out in Groves, supra, a plaintiff is not required to do the impossible by accounting for every moment of a bottle’s existence from the time it leaves a defendant manufacturer’s possession and control; it is enough if he produces sufficient evidence of careful handling in general, and of the absence of unusual incidents, to permit reasonable persons on the jury to conclude that, more likely than not, the explosion was due to the defendant’s negligence.

Because we have decided that the doctrine of res ipsa loquitur applies in the instant case, we are led to the conclusion that the trial court erred in granting ap-pellee’s motion for a directed verdict at the close of appellant’s case. However, this opinion should not in any way be construed as commenting on the ultimate outcome of this matter. Further, having reached this decision, it is unnecessary for us to consider the other points raised on appeal by appellant.

We have considered the record, all points in the briefs, and arguments of counsel in the light of the controlling principles of law and have concluded that reversible error has been demonstrated. Therefore, for the reasons stated and upon the authorities cited, the final judgment appealed is reversed.

Reversed.


author: HENDRY, Judge. BARKDULL, Chief Judge

text:
    Betty LAUCK and Jerry Lauck, her husband, Appellants, v. PUBLIX MARKET, INC., a Florida Corporation, et al., Appellees.
    No. 75-1102.
    District Court of Appeal of Florida, Third District.
    June 22, 1976.
    Rehearing Denied Aug. 10, 1976.
    Podhurst, Orseck & Parks, Spence, Payne & Masington, Miami, for appellants.
    Preddy, Haddad, Kutner & Hardy, Blackwell, Walker, Gray, Powers, Flick & Hoehl, Walton, Lantaff, Schroeder, Carson & Wahl, Miami, for appellees.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   HENDRY, Judge.

Appellants, plaintiffs below, appeal from a summary final judgment in favor of ap-pellees, defendants below, granted by the trial court at a pre-trial conference.

This cause was commenced when appellants filed their complaint for damages for injuries suffered by appellant Mrs. Betty Lauck when a bottle of Canada Dry Gin-gerale which she had purchased from ap-pellee Publix Market, Inc., exploded in her hand. The complaint contained counts for negligence, including a theory of res ipsa loquitur, and for breach of implied warranties. After extensive discovery, the trial court at a pre-trial conference granted ap-pellees’ motion for summary judgment. From this final summary judgment, appellants appeal.

Appellants raise the following point on appeal: whether the trial court corectly determined that the record conclusively demonstrated the absence of liability on the part of appellees Canada Dry Bottling Co. of Florida, Inc., and Publix Market, Inc.

Appellants’ point on appeal can be resolved by an examination of Rule 1.510, Florida Rules of Civil Procedure, 31 F.S. A., relating to summary judgments, and our recent decision in Steele v. Royal Crown Cola Bottling Co., Fla.App. 1976, 335 So.2d 586 (Opinion filed June 22, 1976). Rule 1.510 provides, inter alia, that a summary judgment shall be entered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Also, in considering an order granting a summary judgment, which is in essence a directed verdict, the facts must be viewed in the light most favorable to the party against whom the judgment was granted. See, e. g., McGahee v. Dade County Board of Public Instruction, Fla.App.1973, 279 So.2d 87; and Mimaroe, Inc. v. Sanitary Service Co., Fla.App.1966, 185 So.2d 177.

In light of these two rules, we believe that, in the instant appeal, the basic question for us to decide is whether or not, based on the record at the time of the pre-trial conference, there existed any genuine issue as to any material fact.

As set forth in the Steele case, supra, the doctrine of res ipsa loquitur can apply to exploding bottle cases. Appellants relied upon this doctrine as one of the theories in their complaint and, therefore, at the time of the pre-trial conference, any facts shown in the pleadings, depositions, answers to interrogatories, etc., tending to show the requisite elements for res ipsa lo-quitur to apply would be material. In our opinion, the record discloses that, at the time the trial court granted appellees’ motion for summary judgment, there did exist genuine issues of fact which, if resolved in favor of appellant, could have permitted res ipsa loquitur to apply. Thus, it was premature for the trial court, at the pretrial conference, to grant the motion. This opinion should not in any way be construed as commenting otherwise on the merits of the cause.

We have considered the record, all points in the briefs, and arguments of counsel in the light of the controlling principles of law, and have concluded that reversible error has been demonstrated. Therefore, for the reasons stated and upon the authorities cited, the final summary judgment appealed is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

BARKDULL, Chief Judge

(dissenting).

I respectfully dissent from the majority opinion and would sustain the summary judgment under review.

The appellants were plaintiffs in the trial court. They brought an action against a retailer, the bottler, and the manufacturer of a bottle of Canada Dry soda. The matter came on for pretrial conference and at that time, from the pleadings, depositions, and admissions, it appeared that the plaintiff (Betty Lauck) had purchased four bottles of Canada Dry soda from Publix Market, Inc., taken them to her home, picked them up the next morning at which time one of the bottles exploded and cut her finger. The time lapse between the purchase and the accident was approximately fourteen hours. She testified that no untoward incident occurred which would contribute to a bottle exploding or collapsing.

At the time of pretrial conference, counsel for the plaintiffs admitted that he did not intend to introduce testimony of an expert to establish a defect in the soda bottle, but rather chose to rely solely on the doctrines of res ipsa loquitur and implied warranty. Upon this admission, the trial judge entered a summary judgment and this appeal ensued.

The appellants state the following in their reply brief:

* * * * * *
“ * * * q'jjg mere fact of the explosion, of course, sufficiently establishes enough of a defect, for purposes of res ipsa loquitur, as is shown by GROVES, supra; STARKE, supra; and MA-RINI. * * * ”
******

These cases did not involve bottles exploding in a home. We find only two cases cited by the appellants which involve exploding bottles in the home. They are Coca-Cola Bottling Company v. Clark, Fla.App.1974, 299 So.2d 78 and Hughs v. Miami Coca Cola Bottling Company, 155 Fla. 299, 19 So.2d 862. In both cases relief to the plaintiff was denied. The only other Florida case we have found involving the explosion of a bottle in a home is Henning v. Thompson, Fla.1959, 45 So.2d 755, where the plaintiff’s claim was again denied. We find no case in Florida which has allowed recovery on the facts that exist in this case upon a theory of res ipsa loquitur.

The appellant, Betty Lauck, and her family had exclusive control of the four bottles purchased for some fourteen hours prior to the accident. She was removing two bottles at the same time from a bag on the floor of her kitchen. When her son spoke to her, she turned her head and one of the bottles exploded. Based on the appellant’s recitation, purporting to negate unusual events, we are asked to infer that nothing occurred to the bottles from the time of purchase to the time of the accident. We are asked to further infer that no action of the appellant caused the explosion. The Supreme Court of Florida has addressed itself to the very contentions made by the appellants here. There has been no contrary rule announced by that court and the case of Henning v. Thompson, Fla.1950, 45 So.2d 755, controls on the point of law directly involved here.

* * * * * *
“The appellant is a five year old child whose left eye was destroyed as the result of flying glass from an exploding Coca Cola bottle.”
“The pertinent facts of the case are:
“Appellant’s mother purchased several cases of Coca Cola from defendant to serve as refreshments for a Sunday School Class party. An affirmative showing of proper handling was made from the time of the purchase until the time of the party. It is admitted, however, by the mother, that at the party some sixteen to twenty children got their own bottles from the tub in which the drinks were iced down. There is a complete absence of evidence to show that nothing happened during the progress of the party which contributed to or caused the explosion and the resulting unfortunate injury. We hold that it was necessary for the plaintiff to exclude the possibilities of injury to the bottle which possibilities were obviously not remote when a goodly number of frolicking youngsters may have in some way damaged the bottle. In other words, the plaintiff has failed to negate the possibility of an intervening force which must be done before the doctrine of res ipsa loquitur can be called into play.” (emphasis supplied)
******

Without proof of a defect, no cause of action for breach of implied warranty can be maintained. Cromarty v. Ford Motor Company, Fla.App. 1975, 308 So.2d 159; Mattes v. Coca Cola Bottling Co. of Miami, Fla.App.1974, 311 So.2d 417; Lash v. Noland, Fla.App.1975, 321 So.2d 104.

      . Starke Coca-Cola Bottling Company v. Carrington, 159 Fla. 718, 32 So.2d 583; Groves v. Florida Coca-Cola Bottling Company, Fla. 1949, 40 So.2d 128; Vitale Fireworks Manufacturing Co., Inc. v. Marini, Fla.App.1975, 314 So.2d 176.


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    Jiri BEREZOVSKY, Appellant, v. The STATE of Florida, Appellee.
    No. 75-490.
    District Court of Appeal of Florida, Third District.
    May 18, 1976.
    Rehearing Denied Aug. 10, 1976.
    Phillip A. Hubbart, Public Defender, Karen M. Gottlieb, Asst. Public Defender, and John Coleman, Legal Intern, for appellant.
    Robert L. Shevin, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen., for ap-pellee.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   PER CURIAM.

Defendant seeks reversal of his conviction for rape and sentence to 30 years in the state penitentiary after trial by jury. He first argues that the evidence was insufficient to establish the elements of force and lack of consent pursuant to § 794.01, Fla.Stat., F.S.A.

We are guided by the well established principles of law that (1) the carnal act on which the charge of rape is based must have been committed against the woman’s will, the importance of which is to establish lack of consent on the part of the prosecutrix; (2) resistance is a relative term and must be considered in accordance with the special circumstances surrounding each and every case, such as the strength of the parties and the evidence or lack of evidence of injuries and other such relevant factors; (3) the consent of a woman obtained by actual violence, duress or threats is not such a consent as will shield the offender. See Green v. State, 135 Fla. 17, 184 So. 504 (1938); Flowers v. State, 152 Fla. 649, 12 So.2d 772 (1943); Thomas v. State, Fla. 1964, 167 So.2d 309; Paramore v. State, Fla.1970, 238 So.2d 604 and Jackson v. State, Fla.App.1958, 107 So.2d 247.

We point out that only the pros-ecutrix and the defendant had knowledge of the facts surrounding the incident involved and, as in so many rape prosecutions, the defendant chose not to testify. Thus, with respect to the crucial elements of force and resistance we have only the prosecuting witnesses’ testimony upon which a conviction may be sustained without independent corroborating evidence if such testimony is clear and convincing and not materially discredited or impeached. Furthermore, this testimony must be rigidly scrutinized to avoid an unmerited conviction for rape and the jury was so instructed. Doyle v. State, 39 Fla. 155, 22 So. 272 (1897); Truluck v. State, Fla. 1959, 108 So.2d 748; Thomas v. State, Fla.1964, 167 So.2d 309; Johnson v. State, Fla.App.1960, 118 So.2d 806.

The testimony of prosecutrix reflects that on the night in question the defendant threatened and used physical violence before he penetrated her; she screamed and physically resisted defendant. The ensuing doctor’s examination of prosecutrix revealed that (1) well formed live spermatozoa were present in the vagina and (2) there were bruises on her right upper arm and thigh.

The questions of consent, force, resistance and fear were particularly within the province of the jury to determine. See State v. Smith, Fla.1971, 249 So.2d 16.

We find that there was sufficient evidence to support the jury’s verdict. We find no basis for reversal (1) where the testimony of the prosecutrix, who is not shown to be of bad character for veracity and who was a stranger to the defendant and, therefore, not likely to be influenced by motives of animosity toward him, appears to have been given in a spirit of truth and sincerity; (2) when a jury of defendant’s peers, whose province it was to pass upon it, have said it was credible, and when their verdict has received the sanction and approval of the judge who presided at the trial. See Doyle v. State, supra.

The point as to the sufficiency of the evidence can be best disposed of by the following quote from State v. Smith, supra:

“Authorities are too numerous to cite which define the function of the jury and that of the appellate court in cases such as the one before us. The rule is well stated in McKee v. State [159 Fla. 794, 33 So.2d 50], a rape case . . , as follows:
“ ‘Under our scheme of administering justice, the jury resolves factual conflicts, a function quite as important as any single function performed by the court. They take an oath to perform that function no less solemn than that taken by the court to perform its function. When it is shown that they have performed that duty faithfully and honestly and reached a conclusion that squares with reason and their theory of the evidence, it takes more than mere difference in opinion as to what the evidence shows, for this court to reverse them. We find no basis whatever for reversal here, except a possible difference of opinion as to what the facts before the jury reveal.’ ”

We also examined defendant’s second point on appeal and find it is without merit. See § 775.082(4) (a), Fla.Stat., F.S.A. and O’Donnell v. State, Fla.1975, 326 So.2d 4.

Affirmed.

      . “794.01 Rape and forcible carnal knowledge; penalty

      “Whoever ravishes and carnally knows a female of the age of ten years or more, by force and against her will, or unlawfully or carnally knows and abuses a female child under the age of ten years, shall be punished by death, unless a majority of the jury in their verdict recommend mercy, in which event punishment shall be by imprisonment in the state prison for life, or for any term of years within the discretion of the judge. It shall not be necessary to prove the actual emission of seed, but the crime shall be deemed complete upon proof of penetration only.”


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    Claude D. ADAMS et al., Appellants, v. The COUNTY OF DADE, Appellee.
    No. 75-608.
    District Court of Appeal of Florida, Third District.
    May 18, 1976.
    Rehearing Denied Aug. 10, 1976.

      Ellis Rubin, Miami, for appellants.
    Stuart Simon, County Atty., and William W. Gibbs, Asst. County Atty., Miami, for appellee.
    Before BARKDULL, C. J., and HEN-DRY and HAVERFIELD, JJ.
   PER CURIAM.

Plaintiffs, homeowners in Miami’s Grape-land Heights area, seek reversal of that portion of a final judgment denying their claim for more than seven million dollars in damages against Dade County for excessive flight noise from neighboring Miami International Airport in this inverse condemnation action. Defendant Dade County cross-appeals those provisions of the judgment ordering it to implement the recommendations of the Miami International Airport Compatibility Study for noise reduction, and retaining jurisdiction to possibly award plaintiffs damages in the future.

On January 17, 1972 plaintiffs filed a complaint for inverse condemnation against Dade County and sought damages for an alleged taking of air navigational (aviga-tional) easements over and near their respective properties by the County as owner and operator of Miami International Airport. In essence the complaint alleged that their properties are located from 1/2 to 2 miles from the eastern edge of two of the three runways and as a result of the operation of jet aircraft at relatively low altitudes in landing and taking off over and near their properties, plaintiffs have been adversely affected. Dade County answered specifically denying that any alleged taking had occurred. At trial testimony of the plaintiffs, engineering and architectural consultants, FHA and HUD supervisors and real estate appraisers was heard. In addition, abundant documentary evidence was introduced including the Miami International Airport Compatibility Study (MIA) for noise reduction. After conclusion of trial, the judge made lengthy findings of fact in which he determined that plaintiffs have been subjected constantly to at least 100 decibels on the relative scale of intensity of sound as well as vibrations, odors, noxious fumes and other exhaust pollutants from low flying jet aircraft. He then held that for plaintiffs to be entitled to relief they must show that the direct and substantial invasion of their property rights is of such magnitude that they are deprived of the practical enjoyment of their property and such invasion results in a definite and measurable diminution of the market value of the property. Concluding that plaintiffs failed to demonstrate such a definite and measurable diminution, the judge denied their claim for damages. Nevertheless, the judge ordered defendant to begin the implementation and effectuation of the MIA Study Standards, and retained jurisdiction to allow plaintiffs at some future date to petition the court for a hearing to determine whether or not substantial diminution of property values has occurred so that damages, if any, may be determined at that time.

Plaintiffs primarily contend that the trial court erred in holding that they were required to prove diminution of property market value in order to obtain relief-.

The leading case with respect to aviga-tional easements is City of Jacksonville v. Schumann, Fla.App.1967, 199 So.2d 727, cert. denied Fla., 204 So.2d 327 in which the court held that Florida is committed to the view adopted in Martin v. Port of Seattle, 64 Wash.2d 309, 391 P.2d 540 (1960); U. S. v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206 (1945); Griggs v. Allegheny County, 369 U.S. 84, 82 S.Ct. 531, 7 L.Ed. 2d 585 (1962). These cases clearly hold that in order to be entitled to relief in an inverse condemnation suit for an aviga-tional easement, a plaintiff must establish that there was a diminution in value to the property and that the frequent, low-level flights were the direct and immediate cause. As explained in Martin v. Port of Seattle, supra, the individual in this type of action seeks no recovery for his individual suffering, damage, loss of quiet or other disturbance, but rather, the measure of recovery is injury to market value, and that alone. See Annot. 77 A.L.R.2d 1355 (1961).

There being substantial evidence demonstrating that not only has there been no diminution of the value of the property, but, in fact, an increase in the value, the trial judge was eminently correct in denying plaintiffs’ claim for damages.

Plaintiffs’ remaining points on appeal do not present reversible error.

On cross-appeal, defendant first argues that the trial court erred in retaining jurisdiction of this case.

The parties stipulated to January 17, 1972 as the date on which a determination was to be made by the court of whether a taking of plaintiffs’ properties had or had not occurred. In his final judgment the trial judge held that as of that date the plaintiffs had failed to establish a diminution in the market value of their properties and lacking this requisite element, they could not prevail on their claim for damages. At this point, plaintiffs’ cause of action terminated and the judge erred in his retention of jurisdiction to allow plaintiffs to seek possible damages in the future. We, therefore, reverse that portion of the judgment.

Defendant also urges as being erroneous that part of the judgment ordering it to begin the implementation of the MIA study.

The only issue before the trial court was whether or not plaintiffs were entitled to the damages which they were seeking in this inverse condemnation action. This issue having been determined adversely to the plaintiffs, the trial court exceeded the bounds of its jurisdiction by going beyond this sole issue and ordering implementation of the MIA study, clearly a matter for legislative determination by the Dade County Board of County Commissioners. Accordingly, this provision of the final judgment is reversed.

Before concluding, we wish to point out that because plaintiffs have failed to prove a diminution in the value of their properties as of January 17, 1972, they are not precluded by this opinion from bringing another inverse condemnation action at some future date.

Affirmed in part, reversed in part.


text:
    Milton STEINFELD, Appellant, v. CREATIVE HORIZONS, INC., et al., Appellees.
    No. 75-1668.
    District Court of Appeal of Florida, Third District.
    May 18, 1976.
    Rehearing Denied Aug. 10, 1976.
    Weithorn & Mazloff, Coral Gables, for appellant.
    Nicholson, Howard, Brawner & Lovett, Joe N. Unger, Miami, for appellees.
    Before BARKDULL, C. J., and HAV-ERFIELD and NATHAN, JJ.
   PER CURIAM.

Affirmed on authority of National Bank of St. Petersburg v. Peters, Fla.App.1965, 175 So.2d 54; Holl v. Talcott, Fla.1966, 191 So.2d 40; Fried v. Easton, Fla.App.1974, 293 So.2d 87, and compare Belcher v. Schilling, Fla.App.1975, 309 So.2d 32, cert. den., Fla., 318 So.2d 404.


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    Annette Meador EDWARDS, Appellant, v. Dora Hughes PRATT and Robert A. Claiborne, Admr. C.T.A., Appellees.
    No. 75-847.
    District Court of Appeal of Florida, Third District.
    May 18, 1976.
    Rehearing Denied Aug. 10, 1976.
    Edward C. Vining, Jr., Miami, for appellant.
    Starr W. Horton, Miami, for appellees.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Appellant-petitioner seeks review of an order denying her petition for revocation of probate of will in that she was deprived of a fair hearing upon the denial of her second motion for continuance.

H. Harris Meador, deceased, executed a will on July 29, 1974 leaving all his real and personal property to his fiancee, Dora Pratt. On August 21 Mr. Meador died and the will was admitted to probate. On December 26 a petition to revoke was filed on behalf of appellant, Annette Edwards, Mr. Meador’s sole heir-at-law, on the ground that through the exercise of undue influence, Dora Pratt procured the execution of the July 29 will by Meador who lacked testamentary capacity at the time. Appellant, a resident of North Carolina, employed a North Carolina attorney, Mr. Griffin, to represent her. He, in turn, retained a local firm to file the petition. Dissatisfied with its slow progress, in March 1975 Griffin discharged that firm and hired present counsel. On March 25 appellant moved for a continuance of the final hearing set for April 1. The continuance was granted and the hearing rescheduled for April 24. On April 17 appellant again filed a motion for continuance which was denied. After final hearing the judge entered the order denying the petition for revocation.

Appellant primarily contends the judge committed reversible error in denying her a second continuance since she changed local counsel and as a result her present attorney did not have enough time to adequately prepare for the final hearing.

The granting or denying of a motion for continuance is within the discretion of the trial judge and a gross or flagrant abuse of this discretion must be demonstrated by the complaining party before this court will substitute its judgment for that of the trial judge. S & S Pharmaceuticals, Inc. v. Hirschfield, Fla.App. 1969, 226 So.2d 874; Williams v. Gunn, Fla.App. 1973, 279 So.2d 69. Further, requests for a second continuance are seldom favored. McWhorter v. McWhorter, Fla.App. 1960, 122 So.2d 504.

In view of the facts that (1) appellant, after new local counsel was retained, was granted a continuance rescheduling the final hearing from April 1 to April 24; (2) appellant’s North Carolina attorney remained on the case throughout the entire proceedings so there was a continuity of representation for the appellant, we find no abuse of discretion in the denial of the second motion for continuance.

Affirmed.


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    I. R. E. FINANCIAL CORPORATION, Appellant, v. Marwin S. CASSEL, as Trustee, Appellee.
    No. 76-76.
    District Court of Appeal of Florida, Third District.
    May 18, 1976.
    Rehearing Denied Aug. 10, 1976.

      Pettigrew & Bailey, Miami, for appellant.
    Cassel & Benjamin, Miami, for appellee.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   HAVERFIELD, Judge.

Defendant seeks reversal of an adverse summary final judgment awarding plaintiff twice the amount of interest charged in this usury action.

Plaintiff, Marwin S. Cassel, as trustee, filed this suit for usury and alleged that a certain purchase money mortgage note for $1,300,000 was in fact a loan of $286,000 resulting in a usurious transaction.

At the time I.R.E. Financial Corporation submitted the property in question to Mar-win S. Cassel and the various persons who became beneficial owners of this trust, it did not own the property and was to have no part in the sale except as broker. The investors would not purchase the property unless the financing was structured in a way where the purchasers could assume a second lien in the principal amount of $1,300,000 which would permit them to prepay interest on this entire mortgage amount for tax shelter purposes. To accomplish this purpose, I.R.E. would take title to the property and simultaneously re-convey to Cassel, as trustee. Based on this understanding Cassel, as trustee, on December 20, 1974, purchased from defendant, I.R.E., the Bedford Gardens Apartments for $1,310,000. According to the terms of the sale, Cassel executed a purchase money mortgage in the amount of $1,300,000 which was inferior to an existing first mortgage in the amount of $1,035,000 and a second mortgage of $100,000. These prior liens remained the sole obligation of I.R.E. as they were not assumed by Cassel nor was the property purchased “subject to” them. Only in the event of a default in the payment of these prior liens by I.R. E. did Cassel have the right to make such payments due and the amounts of any funds expended in such payments would be considered a payment and credit on the Cassel purchase money mortgage note. At closing Cassel paid $10,000 down, closing costs of $123,500 (points prepaid at 9]/2%), plus $110,000 representing the voluntary prepayment of interest for the first year (at 8i/¿%).

About a year later plaintiff brought this usury action alleging that the $1,300,000 mortgage was a loan in the amount of $268,000 (which constituted the difference between the purchase price, existing loans and the amount required to be paid by plaintiff on December 14, 1983) for which he paid $234,000 in interest. Defendant denied (1) the transaction was usurious, and (2) it intended to charge interest in excess of that permitted by law, and further contended that the agreement plaintiff alleges is usurious was structured by purchasers for their own tax benefits. Both parties filed motions for summary judgment. The trial judge entered final summary judgment finding the transaction to be usurious and awarding plaintiff $468,000 (twice the amount of interest exacted), plus costs and reasonable attorney’s fees. We reverse.

Usury is largely a matter of intent and is not fully determined by the fact that the lender actually receives more than the law permits, but is determined by the existence of a corrupt purpose in the lender’s mind to get more than the legal interest for money lent. Further, one who alleges usury to avoid or defeat an obligation to pay money must establish his charge by clear and satisfactory evidence. See Dixon v. Sharp, Fla.1973, 276 So.2d 817.

We conclude that under the circumstances there are genuine issues of material fact as to whether the actual payments of interest rendered in the transaction are usurious and, if so, whether the existence of the requisite corrupt intent on the part of the defendant to charge more than the legal rate of interest is present.

Accordingly, the summary final judgment is reversed and the cause remanded to the trial court for further proceedings.


text:
    LATOUR AUTO SALES, INC., and Luis Latour, Appellants, v. STROMBERG-CARLSON LEASING CORPORATION, f/k/a Arcata Leasing Corporation, a corporation, Appellee.
    No. 75-998.
    District Court of Appeal of Florida, Third District.
    June 2, 1976.
    Rehearing Denied Aug. 10, 1976.

      Shalle Stephen Fine and Steven R. Brownstein, Miami, for appellants.
    Cunningham & Weinstein and Alan L. Weisberg, Miami, for appellee.
    Before PEARSON, HENDRY and NATHAN, JJ.
   PER CURIAM.

This is an appeal by Latour Auto Sales, Inc., and Luis Latour, defendants in the trial court, from a summary final judgment in favor of the plaintiff, Stromberg-Carlson Leasing Corporation, f/k/a Areata Leasing Corporation, for the sum of $44,263.13, (Forty Four Thousand Two Hundred Sixty Three and 13/100 Dollars), in a breach of contract action.

Stromberg-Carlson sued Latour Auto Sales, Inc., and Louis Latour individually for damages growing out of a 120-month lease for certain equipment, including amplifiers, speakers and a paging adapter, at a rate of $404.82 (Four Hundred Four and 82/100) per month plus a deposit in the amount of $842.02 (Eight Hundred Forty Two and 02/100) to cover the first and last payments. The equipment lease agreement was entered into by and between the plaintiff and Latour Auto Sales, Inc., and a “continuing- guaranty agreement” was entered into by and between the plaintiff and Louis Latour, individually. The defendants defaulted without making any payments (except the deposit), whereupon Stromberg-Carlson repossessed the equipment and sold it for $4,363.83 (Four Thousand Three Hundred Sixty Three and 83/100). It then filed a complaint for damages under the lease. The defendants’ answer generally denied the allegations in the complaint and asserted that the amount of damages claimed was excessive. The trial court entered summary final judgment for the plaintiff for the accelerated monthly payments, deducting only the amount recovered in the sale of the equipment.

On appeal, the defendants contend that there were genuine issues of material fact which precluded summary judgment. The record reflects, however, that the defendants failed to present affidavits or any other evidence in the trial court raising the matters they now assert, in opposition to summary judgment. On motion for summary judgment, if the movant sustains his initial burden of proof, the opponent then has the burden of coming forward with evidence establishing genuine material factual issues. Where as here the opponent fails to come forward with any affidavit or other proof in opposition to the motion for summary judgment, the movant need only establish a pri-ma facie case, whereupon the court may enter its summary judgment. Harvey Building, Inc. v. Haley, Fla.1965, 175 So. 2d 780.

As their second point on appeal, the defendants contend that the plaintiff had no right to repossess and sell the merchandise and then recover the full amount under the lease less only the amount received from the sale. The contract in question states in paragraph 12, that in the event of a default by the lessee,

“(iii) Lessor may repossess any or all of the Equipment without prejudice to any remedy or claim hereinbefore referred to and Lessor may enter any premises to do so with or without legal process all without liability for trespass or other damages.
Any such repossession of the Equipment shall not terminate this Agreement, but Lessor shall have the right to dispose of Equipment for Lessee’s account free and clear or any claim of Lessee and use the proceeds to discharge the obligation of Lessee to Lessor hereunder. Lessee shall be liable for any deficiency. . . . ”

The record reflects that the defendants did not return or offer to return the leased merchandise after default. Therefore, the plaintiff acted properly in attempting to mitigate its damages pursuant to the procedure provided by the terms of the lease agreement. The defendants cite this court’s decision in Monsalvatge & Company of Miami, Inc. v. Ryder Leasing, Inc., Fla.App.1963, 151 So.2d 453, as authority for the proposition that it would be inequitable and unjust to allow the plaintiff to have payment of all sums due under the lease and at the same time have the use and benefit of the leased property. We find that Monsalvatge is clearly distinguishable on its facts.

On the matter of damages, however, there were no affidavits filed by the plaintiff as to reasonable value of the equipment which it repossessed and sold for the account of the defendants. In addition, the defendants’ remaining point, that the court was required to reduce to “present money value” the amount of its award, is conceded by the plaintiff and is well taken by this court. Accordingly, we hold that the plaintiff is entitled to full damages, present and prospective, which were the necessary and direct result of the breach, reduced to present worth. We reverse the summary final judgment as to the amount of damages, and remand the cause to the trial court with directions to take testimony with reference to the award of damages.

Affirmed in part, reversed in part and remanded with directions.


text:
    Estelle SAUNDERS et al., Appellants, v. Julian BALMORI, Appellee.
    No. 75-944.
    District Court of Appeal of Florida, Third District.
    June 22, 1976.
    Rehearing Denied Aug. 10, 1976.
    Walton, Lantaff, Schroeder, Carson & Wahl and George W. Chesrow and Wayne T. Gill, Miami, for appellants.
    Kaplan, Dorsey, Sicking & Hessen and Joseph C. Segor, Miami, for appellee.
    Before HENDRY and NATHAN, JJ., ano LESTER, M. IGNATIUS, Associate Judge.
   PER CURIAM.

Affirmed. See Florida East Coast Ry. Co. v. Lassiter, 58 Fla. 234, 50 So. 428 (1909).


text:
    Paul Forrest GARRARD, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1340.
    District Court of Appeal of Florida, Third District.
    June 2, 1976.
    Rehearing Denied Aug. 10, 1976.
    Engel & Mishkin and Mitchell Aronson, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Paul Forrest Garrard was charged by information with making a lewd, lascivious or indecent assault upon a male minor under the age of 14 years, in violation of § 800.04, Fla.Stat. He was tried by jury, found guilty, convicted and sentenced to 5 years in the state penitentiary with credit for time to be spent in the custody of the Division of Mental Health for treatment and rehabilitation as a mentally disordered sex offender.

Gerrard contends as points on appeal (1) that the alleged victim, an 11-year-old child and the State’s sole witness to the act charged in the information, was incompetent to testify, and (2) that the court erred in not suppressing the in-court identification by the alleged victim. A third point raised by the defendant is without merit and will not be discussed.

The record reflects that the young alleged victim in this case was somewhat slow, that he had difficulty in answering some of the questions asked of him and that he had a (Spanish/English) language problem. However, a decision upon the competency of a child to testify is one peculiarly within the discretion of the trial judge because the evidence of intelligence, ability to recall, relate and to appre-date the nature and obligations of an oath are not fully portrayed by a bare record. Clinton v. State, 1907, 53 Fla. 98, 43 So. 312; Swain v. State, Fla.App.1965, 172 So.2d 3; Davis v. State, Fla.App.1972, 264 So.2d 31; Fernandez v. State, Fla.App. 1976, 328 So.2d 508. Furthermore, the prime test of testimonial competency of a young child is intelligence rather than age. Bell v. State, Fla. 1957, 93 So.2d 575, 577; Swain v. State, supra; Davis v. State, supra; Fernandez v. State, supra. From the totality of the record, including voir dire examination and the child’s answers to the questions of the prosecutor, defense counsel and the court, we find that there was sufficient evidence to warrant the court’s judgment that the child was competent to testify. After the child was approved by the trial court to testify, he became more articulate and gave a specific account of the incident in question.

Garrard bases his second point of appeal, that the court erred in not suppressing the in-court identification, on the fact that when the prosecutor showed the alleged victim a single picture of the defendant just prior to trial for identification purposes, this was tantamount to a show-up, and was impermissibly suggestive. The record reflects that the victim first identified Garrard as the person who assaulted him, at a shopping center a few days after the incident, when he pointed Garrard out to his mother. Based on this identification, the mother called the police, which resulted in the arrest of the defendant. Thus, the child had made an independent identification of Garrard as the perpetrator of the crime long before he was shown the photograph by the prosecutor. Where the in-court identification had a source completely independent of the questioned lineup or other identification confrontation, as in this case, a show-up, the admission of the identification testimony was proper. Anderson v. State, Fla.App.1968, 215 So. 2d 618.

Affirmed.


author: CHARLES CARROLL, Associate Judge.

text:
    Allan H. APPLESTEIN and Continental Casualty Insurance Company, Appellants, v. Douglas PRESTON, Appellee.
    Nos. 75-1000, 75-1001 and 75-1563.
    District Court of Appeal of Florida, Third District.
    June 2, 1976.
    Rehearing Denied Aug. 10, 1976.

      Carey, Dwyer, Austin, Cole & Selwood, Miami, for appellants.
    Bolles, Goodwin, Ryskamp & Welcher and Arthur M. Simon, Alfred Gustinger, Jr., Miami, for appellee.
    Before BARKDULL, C. J., and HA-VERFIELD, J., and CHARLES CARROLL (Ret.), Associate Judge.
   CHARLES CARROLL, Associate Judge.

The appellants seek reversal of a judgment for compensatory and punitive damages entered on a jury verdict in favor of the plaintiff in an action for malicious prosecution.

Appellants contend that court erred in denying the motion for the defendant Allan H. Applestein for a directed verdict.

The record discloses the following facts. In June of 1969, the appellee Douglas Preston, at the request of Applestein, performed certain repairs on a boat owned by a corporation of which Applestein was the president. Payment for the repair charges of $34.18 was refused on the ground that the work was unsatisfactory. The repairs then were made or completed by another person. Approximately two months later, at a time when the boat was docked at the waterfront premises of Applestein in the City of Coral Gables, Preston approached by boat, and entered the premises. He went to the house, and asked defendant’s wife for payment which she advised she could not make. Plaintiff then went to the dock and was seen (by defendant who was on a sundeck of the house) to take a fishing rod and reel from the boat on which he had worked. Defendant called out to the plaintiff who went to his boat and departed with the items taken. Apple-stein was informed by the city police that in order for any action to be taken by the police it would be necessary for him to swear out a warrant for the arrest of Preston. Applestein related the facts to his attorney, who then advised him to swear out the warrant. Thereafter Applestein talked by telephone with Preston to see if Preston would return the items. Preston informed Ap-plestein he would not, unless the bill was paid. Applestein then filed a required affidavit, and a warrant was issued for the arrest of Preston. The arrest was made, and Preston posted an appearance bond. Preston assumed, mistakenly, that he could properly take and hold the items as a lien for payment of his bill. Applestein and his attorney believed the taking of the items was unlawful. On trial of the matter in the municipal court Preston was acquitted.

Preston filed a complaint alleging Ap-plestein caused his arrest maliciously and without probable cause; alleged his exoneration by the municipal court; that his good name was injured and his feelings wounded; and that he sustained business loss as a result of the arrest.

Applestein answered averring he acted on probable cause and on advice of counsel. On trial of the action the jury rendered a verdict for the plaintiff. The trial court entered a judgment thereon. Thereafter the court entered a remittitur of a portion of the punitive damages as an alternate to granting a new trial. Plaintiff filed an acceptance of the remittitur. Applestein appealed.

On consideration of the record, briefs and argument, we hold the trial court erred in denying the defendant’s motion for a directed verdict. A directed verdict in favor of the defendant Applestein should have been granted because of the absence of proof of want of probable cause and because the defendant acted on advice of counsel.

To succeed in an action for malicious prosecution the plaintiff has the burden of establishing by a preponderance of the evidence the presence or existence of six elements. Tatum Bros. Real Estate & Investment Company v. Watson, 92 Fla. 278, 109 So. 623; Duval Jewelry Co. v. Smith, 102 Fla. 717, 136 So. 878; Rest v. Nathanson, Fla.App.1969, 216 So.2d 233, 235; Kelly v. Millers of Orlando, Inc., Fla.App.1974, 294 So.2d 704; American Salvage and Jobbing Co., Inc. v. Salomon, Fla.App. 1974, 295 So.2d 710. Those elements, as repeated in the decisions, were stated in Tatum Bros, by the Supreme Court, speaking through Justice Whitfield, as follows:

“An action for maliciously putting the law in motion lies in all cases where there is a concurrence of the following elements: (1) The commencement or continuance of an original criminal or civil judicial proceeding. (2) Its legal causation by the present defendant against plaintiff who was defendant in the original proceeding. (3) Its bona fide termination in favor of the present plaintiff. (4) The absence of probable cause for such proceeding. (5) The presence of malice therein. (6) Damage conforming to legal standards resulting to plaintiff. If any one of these elements is lacking, the result is fatal to the action.”

Probable cause was defined by the Supreme Court in Goldstein v. Sabella, Fla. 1956, 88 So.2d 910, 911, 58 A.L.R.2d 1418, as follows:

“Probable cause is defined as ‘A reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense with which he is charged.’ Dunnavant v. State, Fla., 46 So.2d 871, 874. This, as well as other acceptable definitions of the term, indicates that one need not be certain of the outcome of a criminal or civil proceeding to have probable cause for instituting such an action.”

See to the same effect Gallucci v. Milavic, Fla. 1958, 100 So.2d 375, 377, 68 A.L.R.2d 1164; Kelly v. Millers of Orlando, Inc., supra.

The evidence presented in this case failed to show want of probable cause. The circumstances were sufficient to warrant a belief the accused was guilty of the offense charged. The taking of the articles from the boat by the plaintiff was seen by the defendant, from some distance. The defendant reported the facts to his attorney and was advised to file the required affidavit for issuance of a warrant for the arrest of the plaintiff. Before doing so the defendant contacted the plaintiff, seeking return of the property. The plaintiff refused. Thereafter the defendant, as advised by his counsel, caused the warrant to be issued. A return of the property by the plaintiff to the police department took place after issuance of the warrant, and it was not shown that the defendant knew thereof prior to action by the police on the warrant.

When want of probable cause was not established, the existence thereof could not be inferred from malice, if malice was proved. Although malice may be inferred from want of probable cause, want of probable cause cannot be inferred from malice. Ward v. Allen, 152 Fla. 82, 11 So.2d 193; Duval Jewelry Co. v. Smith, supra; Gallucci v. Milavic, supra; Thompson v. Taylor, Fla.App. 1966, 183 So.2d 16.

Nor could the plaintiff rely on his acquittal, as establishing want of probable cause. Acquittal of a person tried for violating law is not sufficient to establish absence of probable cause for instituting criminal proceedings. Ward v. Allen, supra; Sponder v. Brickman, Fla.App.1960, 214 So.2d 631.

Additionally the evidence that the defendant proceeded on advice of counsel constituted a defense to the action. Here there was a showing of the requisite disclosure by the defendant to his attorney, upon whose advice the defendant acted. Duval Jewelry Co. v. Smith, supra; Paulk v. Buczynski, Fla.App.1958, 106 So.2d 100, 102; Herbeck v. Holdeman, Fla.App.1964, 163 So.2d 766. In Duval Jewelry Co. the Supreme Court said:

“The record further discloses that prior to instituting the prosecution out of which this cause grew plaintiff in error sought and acted on the advice of counsel. The rule seems to be general that acting on the advice of counsel is a complete defense to an action for malicious prosecution either of civil or criminal actions, where it appears that the prosecution was instituted in reliance in good faith on such advice, given after a full and fair statement to the attorney of all the facts, and the fact that the attorney’s advice was unsound or erroneous will not affect the result. 18 R.C.L. 45.”

For the reasons assigned, the judgment is reversed.

      . With reference to the appeal filed by Continental Casualty Insurance Company, No. 75-1663, the brief of the appellants stated as follows:
      “The appellant, Continental Casualty Insurance Company, was not a party in the court below until its inclusion in the final judgment. The Appellant is not opposing this action by the trial court due to an earlier summary judgment for the appellant, Allan H. Applestein, requiring appellant, Continental, to insure as to any compensatory damages.”


author: GRIMES, Judge.

text:
    Elliot KATZ, Appellant, v. STATE of Florida, Appellee.
    No. 75-1126.
    District Court of Appeal of Florida, Second District.
    July 9, 1976.
    Jack O. Johnson, Public Defender, Steven H. Denman, Asst. Public Defender, and David S. Bergdoll, Research Asst., Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

The issue presented by this appeal is whether the court has the power to increase a previously entered sentence upon the ground that the defendant perpetrated a fraud upon the court during the sentencing hearing.

Appellant pled guilty to auto theft. At the sentencing hearing, appellant and his wife made various false statements which clearly influenced the judge to give appellant a light sentence. A written sentence of six months to two years was entered.

Shortly thereafter, it came to the court’s attention that certain statements made by appellant and his wife at the sentencing hearing were false and misleading. The following day, the judge brought appellant back before him, stating that he was reconsidering the sentence imposed. Expressing the belief that the appellant’s behavior constituted a fraud upon the court, the judge imposed a new sentence of six months to four years. This is an appeal from the increased sentence.

The U.S. Supreme Court has held resen-tencing on the same charge to be a violation of the double jeopardy clause of the U.S. Constitution; Ex Parte Lange, 1874, 85 U.S. (18 Wall.) 163, 21 L.Ed. 872; United States v. Benz, 1931, 282 U.S. 304, 51 S.Ct. 113, 75 L.Ed. 354. The Florida Supreme Court expressly followed these opinions in Troupe v. Rowe, Fla.1973, 283 So.2d 857. The court quoted in part from Benz, stating:

‘The distinction that the court during ¡ the same term may amend a sentence so as to mitigate the punishment, but not so: as to increase it, is not based upon the ground that the court has lost control of the judgment in the latter case, but upon the ground that to increase the penalty is to subject the defendant to double pun-' ishment for the same offense in violation of the Fifth Amendment to the Constitution, which provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb”. This is the basis of the decision in Ex Parte Lange, supra.

It should be noted that RCrP 3.800 permits the reduction of a sentence within a limited period of time, but the rule does not purport to give the court the authority to increase a sentence. Once appellant began to serve his sentence, the court had no authority to resentence him to a longer prison term. Beckom v. State, Fla.App.2d, 1969, 227 So.2d 232. When the judge discovered the appellant’s misrepresentations, the proper course to take was to hold him in contempt, or if the statements were made, under oath, to recommend a charge of perjury. See Martin v. Case, Fla.App. 4th, 1970, 231 So.2d 279.

The sentence from which this appeal is taken is hereby vacated, and the case is remanded for the reinstatement of the original sentence.

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


author: PER CURIAM,

text:
    Kenneth GARBER, Appellant, v. STATE of Florida, Appellee.
    No. 75-762.
    District Court of Appeal of Florida, Second District.
    July 30, 1976.
    E. G. Couse of Grace, Falbey and Couse, Fort Myers, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM,

Appellant attorney was held in direct criminal contempt for conduct which occurred during the criminal trial of his client. We reverse.

The record reveals that while appellant was vigorously defending his client the court overruled one of appellant’s objections and warned him not to contest the ruling any further or he would be held in contempt. Appellant made a further remark which the court construed as an argument with the ruling, and the court announced:

“THE COURT: That just cost you $50, Mr. Garber. You are hereby fined $50 for contempt of court. You may pay the Clerk. You may pay him at the end of the trial, or you will stay in the County Jail until you do pay him.”

We have considerable doubt that the conduct of the attorney was contemptuous. However, it is unnecessary to reach that issue. Here the court failed to comply with the requirements of RCrP 3.830 which requires that prior to the adjudication of guilt the judge shall inform the defendant of the accusation against him and inquire as to whether he has any cause to show why he should not be adjudged guilty of contempt. The rule also requires the defendant be given the opportunity to present evidence of excusing or mitigating circumstances. We have held on several occasions that compliance with this rule is mandatory. Mathis v. State, Fla.App.2d 1975, 317 So.2d 778; Speller v. State, Fla.App.2d 1974, 305 So.2d 231.

Accordingly, the judgment and sentence of the trial court is REVERSED.

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


author: BOYER, Chief Judge.

text:
    Doris Walker WISE, Appellant, v. Carl Edward WISE, Appellee.
    No. Z-333.
    District Court of Appeal of Florida, First District.
    July 30, 1976.
    Richard B. Davis, Jr., Jasper, for appellant.
   BOYER, Chief Judge.

Being cognizant that findings by a trial judge are presumed to be correct, are entitled to the same weight as a jury verdict and may not be disturbed on appeal unless there is a lack of substantial evidence to support same, and an examination of the record in this case having revealed a basis for the conclusion' reached by the trial judge, the final judgment here appealed is

AFFIRMED.

RAWLS and MeCORD, JJ., concur.

      . Strawgate v. Turner, Sup.Ct.Fla.1976, Case No. 47,136, Opinion filed June 30, 1976, not yet reported, and cases cited therein.

      . See Ball v. Ball, Sup.Ct.Fla.1976, 335 So.2d 5.