author: DANAHY, Judge. PER CURIAM.

text:
    GENERAL DEVELOPMENT CORPORATION, Appellant, v. JOHN H. GOSSETT CONSTRUCTION CO., INC., Appellee.
    No. 78-159.
    District Court of Appeal of Florida, Second District.
    Jan. 31, 1979.
    Rehearing Denied May 2, 1979.

      E. David Johnson and Leo Wotitzky of Wotitzky, Wotitzky, Johnson, Mandell & Batsel, Punta Gorda, for appellant.
    Charles R. Holley and Ronald L. Napier, Naples, for appellee.
   DANAHY, Judge.

This is an appeal by the defendant, General Development Corporation (GDC), from a final judgment for plaintiff, John H. Gos-sett Construction Co., Inc. (Gossett), entered after a nonjury trial. We find error in part.

Gossett and GDC entered into a contract under which GDC employed Gossett to build houses for customers of GDC in GDC developments on the west coast of Florida. The contract provided that GDC would issue a field purchase order (FPO) for each house to be constructed under the contract.

Pursuant to the contract, Gossett received and accepted FPOs for approximately 254 houses. Unfortunately, the relationship between the parties began to deteriorate and after less than half these houses were completed, GDC declared an end to the contractual arrangement. As a result, Gossett brought these consolidated suits against GDC seeking foreclosure of a mechanics’ lien and claiming damages for breach of contract, tort, and unjust enrichment. GDC filed counterclaims, asserting that Gossett was guilty of a breach of contract. The issues thus presented to the trial judge for determination were complex and a great deal of testimony and documentary evidence was submitted by both sides.

The final judgment awarded damages to Gossett on each of its claims for damages and determined that GDC was not entitled to recover on its counterclaims. On the mechanics’ lien issue, the trial judge found against Gossett and in favor of GDC. Attorneys’ fees were awarded to GDC on the theory that it was the prevailing party in the mechanics’ lien proceedings and entitled to an award of attorneys’ fees pursuant to Section 713.29, Florida Statutes (1977).

GDC has presented several points on this appeal directed to the question whether the evidence supports those parts of the judgment awarding damages to Gossett. Gos-sett, on the other hand, argues that the trial judge was incorrect in denying foreclosure of a mechanics’ lien on behalf of Gosett and, in any event, erred in awarding attorneys’ fees to GDC on the mechanics’ lien issue.

After consideration of the several points on appeal in the light of the voluminous record in this case, we find merit in one point raised by Gossett and one point raised by GDC.

Gossett is correct in its position that the award of attorneys’ fees to GDC was error. This court has previously held that when a contractor fails to establish a mechanics’ lien but obtains a money judgment, in the same case, for labor or materials, or both, furnished for the landowner’s benefit, the landowner is not entitled to an award of attorneys’ fees under Section 713.29. Emery v. International Glass & Mfg., Inc., 249 So.2d 496 (Fla.2d DCA 1971). The Fourth District Court of Appeal applied the same reasoning to a situation in which the contractor claimed both foreclosure of a mechanics’ lien and damages for breach of contract, and prevailed only on the breach of contract claim. First Atlantic Bldg. Corp. v. Neubauer Const., 352 So.2d 103 (Fla.4th DCA 1977). The court in that case concluded that the landowner could not be considered the prevailing party for purposes of awarding attorneys’ fees. We agree.

Accordingly, we reverse that part of the final judgment awarding attorneys’ fees to GDC.

GDC asserts that in determining the amount of damages due Gossett for breach of contract, the trial judge erred in his treatment of charges for water or sewer tap-in. GDC was to initially arrange for and pay charges for the water and sewer tap-ins. The charges were the same in each case — $325 for water tap-in and $600 for sewer tap-in. The trial judge felt that the field purchase orders or FPOs were ambiguous and accepted testimony on behalf of Gossett that charges for water and sewer tap-ins on all the contracts should be included in the compensatory damages awarded to Gossett. GDC argues that the FPOs are clear as to how those charges were to be treated and we agree.

The first group of FPOs, numbered 65 or below, are different in form from the second group, numbered 66 or higher. Each of the FPOs in the first group shows one contract price. Each contains a list of items to be furnished by the contractor. The first item in each case reads “sewer-water-septic tank-well” with strike-outs to indicate in each case the appropriate combination by which utilities were to be supplied; that is, by water and septic tank, by water and sewer, by sewer and well, or by septic tank and well. In our view, the listing of this first item can have only one meaning as a matter of contract interpretation; the contract price was to include the charge for sewer tap-in or water tap-in whenever those charges applied. Indeed, the schedule of payments on the contract price as to each FPO in this first group reflects that GDC was given credit for the water and sewer tap-in charges.

The FPOs in the second group are more specific. Where appropriate, items to be furnished include “water tap by GDC (deduct)” and “sewer tap by GDC (deduct).” Each of these FPOs contains two figures, either of which could be considered the contract price. There is an amount shown at the top of the FPO and a smaller amount at the bottom reflecting a deduction from the higher figure of the water tap-in charge and sewer tap-in charge where appropriate. It is clear that in determining the balance due with respect to each FPO in the second group, the court used the larger contract figure. Yet, the smaller contract price should have been used because it was obviously contemplated that Gossett would be paid less on these contracts since, unlike the case of the FPOs in the first group, Gossett was not expected to bear the ultimate cost of the tap-ins.

Gossett prepared a summary, introduced in evidence as exhibits 18, 19 and 20, showing Gossett’s calculation of the balance due as to each FPO. That summary was the basis upon which the trial judge determined the amount of damages which he awarded to Gossett for breach of contract. (Several adjustments were made to reflect deductions which Gossett conceded to be appropriate during the course of the trial).

In the summary, each FPO is listed. As to each, there is an entry under “contract price” and an entry under “paid on contract.” In accordance with our determination as to the proper treatment of the charges for sewer and water tap-ins, those charges for FPOs numbered 65 or below should be included in the amounts described as “paid on contract.” It appears that they are not. As for FPOs numbered 66 and above, the tap-in charges have been properly left out of the “paid on contract” column, but the larger rather than the smaller contract figure has been included in the “contract price” column. Accordingly, we reverse that part of the final judgment awarding compensatory damages to Gossett for breach of contract to the extent that the case is remanded with directions that the amount of the award be redetermined according to the dictates of this opinion.

Except as to the award of attorneys’ fees to GDC and the award to Gossett of damages for breach of contract, the final judgment is affirmed.

Affirmed in part, reversed in part, and remanded.

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

PER CURIAM.

ON PETITION FOR REHEARING

Evidence was introduced during the trial that a number of Gossett’s subcontractors had filed claims of lien against GDC’s property for unpaid work performed for Gos-sett. GDC obtained the release of a number of these lien claims by paying the subcontractors at a discount. GDC now expresses concern over the fact that the final judgment in favor of Gossett makes no allowance for GDC’s payment of some of Gossett’s obligations and says, in essence, that the judgment includes payments to Gossett on jobs for which GDC was forced to pay Gossett’s subcontractors when Gos-sett failed to pay them.

Perhaps because there were still several subcontractors’ lien suits pending at the time of the trial, the court never specifically passed upon the question of set-off. Therefore, when the court resolves the issues concerning the water and sewer tap-ins it should also consider the extent of the set-off, if any, to which GDC may be entitled by reason of paying Gossett’s subcontractors monies owed them by Gossett.

Except as expressed herein, the petition for rehearing is denied.

GRIMES, C. J., and HOBSON and DAN-AHY, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Leigh DETKO/ROBERTS, Petitioner, v. Honorable Graham W. STIKELETHER, Circuit Court Judge of the Nineteenth Judicial Circuit, Respondent. Leigh DETKO/ROBERTS, Appellant, v. George DETKO, Appellee.
    Nos. 78-1623, 78-1683.
    District Court of Appeal of Florida, Fourth District.
    March 7, 1979.
    On Rehearing April 18, 1979.
    Edna L. Caruso and Montgomery, Lytal, Reiter, Denney & Searcy, West Palm Beach, for appellant-petitioner.
    William M. Cobb, of Sullivan & Cobb, Vero Beach, for appellee.
    Martin S. Friedman, Asst. Atty. Gen., Tallahassee, for respondent.
   PER CURIAM.

Leigh Detko Roberts petitions this Court in Case No. 78-1623 for a Writ of Prohibition directed to The Honorable Graham W. Stikelether, Circuit Judge of the 19th Judicial Circuit, and to quash respondent’s order of July 19, 1978, determining the Circuit Court of the 19th Judicial Circuit has jurisdiction of the subject matter of this litigation and granting other relief.

Petitioner has also filed an interlocutory appeal in Case No. 78-1683 to review said order of July 19, 1978.

From the factual background it appears that Leigh and George Detko were divorced in the 19th Judicial Circuit on September 3, 1976, and Leigh was awarded custody of their 13 month old daughter. Leigh and the child returned to Alabama where the parties were from and where their relatives continued to live. In April 1977 George filed a petition for determination of visitation rights in the Circuit Court of the 19th Judicial Circuit. Leigh appeared and contested the petition. The court entered an order setting the fathers visitation rights at two weeks every two months.

Leigh returned to Alabama and filed an action thereon May 23, 1977, wherein she successfully sought the protection of the Alabama court to prevent the child from being taken to Florida every two months. The Alabama court found it was not to the child’s best interests to be shuttled back and forth as provided in the Florida decree.

Thereafter, George appeared in the Alabama proceeding, moved to dismiss Leigh’s complaint and requested that visitation rights be fixed. The Alabama court denied the motion to dismiss and set a final hearing to determine visitation rights. However, before the final hearing George took the child and returned with her to Florida.

On June 20, 1978, George filed a petition in the Circuit Court of the 19th Judicial Circuit to modify the Final Judgment of Divorce and grant him custody. Leigh countered with a petition for Writ of Habe-as Corpus seeking return of the child and a motion to dismiss George’s petition for modification. The trial court denied the petition for Writ of Habeas Corpus and on the petition for modification he held on July 19, 1978: a) the court had jurisdiction of the subject matter and the parties, b) there were no changes in circumstances justifying a change in custody, c) the mother was not entitled to fees or costs and d) visitation rights were to remain as previously fixed by the Florida Court. The foregoing action of the trial court is the subject of these consolidated cases.

Initially, we would dispose of the Petition for Writ of Prohibition by pointing out that the judicial act sought to be prohibited has already taken place. Thus, prohibition does not lie. English v. McCrary, 348 So.2d 293 (Fla.1977). The same question is involved in the interlocutory appeal which we consider on the merits.

Our study of the record convinces us that the trial court erroneously exercised its jurisdiction in proceeding with the petition for modification. The proceedings in the trial court with regard to the child custody issue and the jurisdiction of the Florida and Alabama courts are controlled by Chapter 61 of the Florida Statutes (1977). First, Sections 61.1302-1348, the Uniform Child Custody Jurisdiction Act, became effective in Florida on October 1, 1977. This date is significant because the Motion and Order thereon now being reviewed were the first pleadings filed by George in Florida subsequent to the adoption of the Uniform Act. George filed his Petition for Modification of the Final Judgment in June of 1978, praying that custody be transferred from Leigh to him. The question we need to resolve is whether the trial court had jurisdiction under the Uniform Act.

Section 61.1308, Florida Statutes (1977), sets forth the prerequisites in order for a court of this state to exercise jurisdiction in a child custody matter as follows:

“61.1308 Jurisdiction
“(1) A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
“(a) This state:
“1. Is the home state of the child at the time of commencement of the proceeding, or
“2. Had been the child’s home state within 6 months before commencement of the proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state;
“(b) It is in the best interest of the child that a court of this state assume jurisdiction because:
“1. The child and his parents, or the child and at least one contestant, have a significant connection with this state, and
“2. There is available in this state substantial evidence concerning the child’s present or future care, protection, training, and personal relationships;
“(c) The child is physically present in this state and:
“1. The child has been abandoned, or
“2. It is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected; or
“(d) 1. It appears that no other state would have jurisdiction under prerequisites substantially in accordance with paragraph (a), paragraph (b), or paragraph (c), or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child, and
“2. It is in the best interest of the child that a court of this state assume jurisdiction.
“(2) Except under paragraph (c) or paragraph (d) of subsection (1), physical presence in this state of the child, or of the child and one of the contestants, is not alone sufficient to confer jurisdiction on a court of this state to make a child custody determination.
“(3) Physical presence of the child, while desirable, is not a prerequisite for jurisdiction to determine his custody.”

The evidence in this case demonstrates that at the time the Circuit Court in Florida commenced dealing with the post divorce visitation rights and custody, Leigh and the child were residents of Alabama and had been for more than six months; thus section (l)(a) is inapplicable and none of the other provisions of the above mentioned statute appear to warrant the Florida court’s assuming jurisdiction.

It is clear that neither party is completely free from fault in this proceeding. Both parties voluntarily litigated in one forum; suffered an adverse ruling and then retreated to the home state in the hopes of a different result. The husband’s conduct in this regard is of particular importance. On June 27, 1977, he appeared in the Alabama proceeding. His motion to dismiss was denied in Alabama by order of November 4, 1977. Husband’s requests for limited visitation were, however, granted by Alabama. Before a final hearing occurred in Alabama the husband proceeded for one year to apply on numerous occasions for periodic visitation. These requests were granted and, in effect, the Alabama Court was supervising custody of the child. A visitation occurred in mid June of 1978, and a final hearing was scheduled for June 30, 1978. Twelve days before the hearing and in violation of both the Alabama and Florida court orders the husband took the child to Florida and filed a petition for modification on June 20, 1978. Then the husband proceeded to appear at the Alabama final hearing on June 30, 1978. Alabama found against the husband who, in turn, simply disregarded the Alabama order and proceeded to litigate in Florida anew. This is exactly the kind of conduct which Chapter 61 was designed to prevent.

In view of the foregoing it is our opinion that jurisdiction of the custody feature of this case properly belongs in Alabama. Chapter 61, Florida Statutes (1977).

Accordingly, the judgment appealed from in the interlocutory appeal, Case No. 78— 1683, is reversed and the cause is remanded with directions to dismiss appellee’s petition for modification and for such further proceedings as may be appropriate consistent with this opinion.

The Petition for Writ of Prohibition in Case No. 78-1623 is denied.

DOWNEY, C. J., and LETTS and BERA-NEK, JJ., concur.

ON PETITION FOR REHEARING

Petitioner’s Petition for Rehearing is granted. We overlooked appellant’s second point regarding the trial court’s refusal to award petitioner attorney’s fees and costs. In view of our reversal of the trial court’s order, it appears petitioner may be entitled to attorney’s fees pursuant to Section 61.-1318(3), Florida Statutes (1978). Accordingly, on remand the trial court should determine if petitioner is entitled to attorney’s fees and expenses under that statute and, if so, assess them.

DOWNEY, C. J., and LETTS and BERA-NEK, JJ., concur.


author: BOARDMAN, Judge. BOARDMAN, Judge.

text:
    STATE of Florida, Appellant, v. Delbert Lee TIBBS, Appellee.
    No. 78-1598.
    District Court of Appeal of Florida, Second District.
    March 28, 1979.
    Rehearing Denied April 25, 1979.
    Jim Smith, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellant.
    Louis R. Beller, Miami Beach, and Jerry Paul, Durham, N.C., for appellee.
   BOARDMAN, Judge.

Appellee Tibbs’ original conviction for rape and first-degree murder was reversed for a new trial by the Supreme Court of Florida. Tibbs v. State, 337 So.2d 788 (Fla. 1976). On remand the trial court concluded that to retry Tibbs would violate the double jeopardy clause of the fifth amendment to the United States Constitution and, therefore, granted his motion to dismiss the indictment against him. This appeal followed timely. We reverse.

The applicable law at the time the supreme court’s decision was rendered was that where a defendant successfully sought reversal of a conviction, there was no double jeopardy upon a new trial. See Forman v. United States, 361 U.S. 416, 80 S.Ct. 481, 4 L.Ed.2d 412 (1960); Bryan v. United States, 338 U.S. 552, 70 S.Ct. 317, 94 L.Ed. 335 (1950). However, in June of last year, the United States Supreme Court held in two separate cases that where an appellate court reverses a conviction solely on the ground of insufficiency of the evidence, the double jeopardy clause prohibits retrial. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). That rule was applied to the states in Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978), a ease arising from a Florida prosecution.

However, because of the varying interpretations that could be placed on the Florida Supreme Court’s opinion reversing Greene’s conviction, reported as Sosa v. State, 215 So.2d 736 (Fla.1968), the United States Supreme Court did not discharge defendant Greene, but remanded the case to the United States Circuit Court of Appeals for reconsideration in light of its opinions rendered in Greene and Burks. At this writing Greene is still pending before the Fifth Circuit.

The sole point on this appeal is whether the principles enunciated in Greene and Burks bar reproseeution of appellee on the ground of double jeopardy. Based upon careful review of the complete record, including the-briefs filed by the attorneys for the parties, we answer the point in the negative.

Our supreme court has reversed a number of convictions where it found the weight of the evidence to be insubstantial, although not technically insufficient. For instance, in the case of Williams v. State, 58 Fla. 138, 50 So. 749 (1909), the Supreme Court of Florida weighed the evidence against the three defendants and concluded that the evidence strongly indicated that the jury must have been influenced by considerations outside the evidence as to two of the defendants. Significantly, the court went on to hold that while the evidence appeared to support the verdict as to the third defendant, reversal of the codefendants’ convictions required a new trial for the third defendant as well to meet the “ends of justice.”

In McNeil v. State, 104 Fla. 360, 139 So. 791 (1932), the court pointed to the serious nature of the penalty (life imprisonment) and ordered a new trial where although there was direct evidence identifying the defendant as the perpetrator of the crime, this evidence was “not satisfactory to the appellate court.” 139 So. at 792. In Woodward v. State, 113 Fla. 301, 151 So. 509 (1933), the court, pointing to the weakness of the evidence, reversed the conviction and remanded for a new trial by another jury in order to serve the “ends of justice.”

In Skiff v. State, 107 Fla. 90, 144 So. 323 (1932), the supreme court found that the evidence as to the previous chaste character of the victim was unconvincing and held that justice demanded a new trial. In Fuller v. State, 92 Fla. 873, 110 So. 528 (1926) the supreme court awarded a new trial on the ground that while there was some evidence pointing to the defendant as the guilty party, the evidence of identity taken as a whole was such that it was “considered just and right that another jury should pass upon the issues made.” See also Nims v. State, 70 Fla. 530, 70 So. 565 (1915).

Perhaps the most succinct statement of this standard of review is: “Where the evidence is sufficient to sustain the verdict a new trial should not be granted unless it is clear that injustice will result if not granted.” State v. Coles, 91 So.2d 200 at 202 (Fla.1956). This standard of review was recognized by this court in Sosa v. Maxwell, 234 So.2d 690 (Fla.2d DCA 1970), cert. denied, 240 So.2d 640 (Fla.1970), cert. denied, 402 U.S. 951, 91 S.Ct. 1635, 29 L.Ed.2d 121 (1971). After the Supreme Court reversed the convictions of Greene and Sosa and remanded for new trial, the defendants filed in this court a suggestion for writ of prohibition seeking to prohibit a retrial for murder in the first degree. In denying relief the court stated:

Indeed, it would constitute an anomaly in law if an appellate court could not reverse and remand for a new trial if it was of the opinion that the evidence, while legally sufficient to support the jury’s verdict, was so far from convincing as to require a new trial in the interest of justice.

Id. at 692.

In Lowe v. State, 154 Fla. 730, 737, 19 So.2d 106, 110 (1944), where the only evidence of the defendant’s guilt of the rape charge came from the victim’s testimony, in reversing and remanding for a new trial, our supreme court stated:

We have held in many cases if, after a full and careful consideration of the entire record, the ends of justice will be best subserved in granting a new trial because of the inconclusiveness of the testimony offered to establish the essential facts necessary to constitute the crime, then, and under these conditions and circumstances, it becomes the duty of this Court to reverse the cause for a new trial.

In the instant case, where the only testimony against Tibbs was that of a former cellmate, who testified that Tibbs had admitted the charged crimes, and that of the rape victim who testified that Tibbs was her assailant, the Florida Supreme Court examined the credibility of the witnesses in light of the remaining evidence and concluded: “Rather than risk the very real possibility that Tibbs had nothing to do with these crimes, we reverse his conviction and remand for a new trial.” 337 So.2d at 791.

We are aware of Justice Boyd’s specially concurring opinion in Tibbs in which is stated: “I base this conclusion [vacating the conviction and sentence and requiring a new trial] upon the weakness and inadequacy of the testimony against appellant given in the trial court.” 337 So.2d at 792. This statement notwithstanding, we believe that the other members of the court who joined in the majority opinion reviewed the entire record, as they are mandated to do by statute, and undertook to determine whether the testimony of the victim of the rape and Tibbs’ cellmate was believable and substantial in character. The majority concluded that their testimony was not believable and not substantial in character. In our judgment the court was considering the weight of this testimony and not its technical sufficiency. The concluding language of the opinion set out previously tends to indicate to us that the reversal was ordered “in the interests of justice” rather than on the basis that the evidence was totally and completely insufficient to support Tibbs’ conviction of first-degree murder and rape. Had the court intended to predicate its ruling on the ground of the insufficiency of the evidence it could have and we think it would have so stated. Former Chief Justice Roberts writing the dissenting opinion which was concurred in by two other justices of the Tibbs' court stated that “no reversible error is made to appear and the evidence in the record before us does not reveal that the ends of justice require that a new trial be awarded.” (Emphasis supplied). 337 So.2d 796-97.

We hold that Tibbs may be retried for the offenses for which he was convicted and that the double jeopardy clause of the fifth amendment would not in this case bar a second prosecution. The reversal of his conviction was not on the basis of pure insufficiency of the evidence but rather was bottomed upon the majority’s view that the evidence was inherently weak and seriously contradicted, and that Tibbs should be accorded the opportunity to be tried before another jury in the interest or ends of justice. Therefore, we do not believe that the decisions of the United States Supreme Court rendered in Greene v. Massey and Burks v. United States require that this court affirm the ruling of the trial court granting Tibbs’ motion to dismiss the indictment. Accordingly, we reverse the trial court’s order granting Tibbs’ motion to dismiss, and we remand for further proceedings.

REVERSED and REMANDED.

GRIMES, C. J., and RYDER, J., concur.

ON PETITION FOR REHEARING

BOARDMAN, Judge.

We have reconsidered this case in light of the recent Supreme Court of Florida case McArthur v. Nourse, 369 So.2d 578 (Fla. 1979). In McArthur the court held that where the evidence is legally insufficient to support a guilty verdict, retrial of the defendant is prohibited by the fifth amendment.

McArthur is not on point. In that case the conviction was clearly reversed for insufficiency of evidence. In the case before us the rationale for reversal of the conviction was weight of the evidence. The supreme court stated in McArthur that “[w]e specifically decline to rule upon the double jeopardy implications of appellate reversals based upon considerations of evidentiary weight.” McArthur, supra, at 581, n.ll.

Petition for rehearing DENIED.

GRIMES, C. J. and RYDER, J., concur.

      . “Under Section 921.141(14), Florida Statutes (1975), and Fla.App. Rule 6.16(b), it is our obligation to review a conviction for which the death sentence has been imposed to determine if the interests of justice require a new trial.” Tibbs v. State, 337 So.2d 788, 790 (Fla.1976).


author: BARKDULL, Judge.

text:
    Ronald D. NITZBERG, Appellant, v. Allan L. ZALESKY, and First Mortgage Investors, a Massachusetts Investment Trust, Appellees.
    No. 78-1701.
    District Court of Appeal of Florida, Third District.
    April 3, 1979.
    Rehearing Denied May 23, 1979.

      Vogler & Postman, Miami, for appellant.
    Rollins, Peeples & Meadows and Barbara L. Suhar, South Miami, Rollnick, Squitero & Katz, Michael D. Katz, Miami, for appellees.
    Before HENDRY, BARKDULL and HUBBART, JJ.
   BARKDULL, Judge.

This is an appeal by the plaintiff in the trial court from adverse summary judgments in favor of two defendants in causes of action sounding in tortious interference with a contractual relationship.

Ronald D. Nitzberg (hereinafter referred to as Nitzberg) filed a complaint against First Mortgage Investors (hereinafter called FMI) and Allan L. Zalesky (hereinafter referred to as Zalesky) inter alia, alleging tortious interference by them with contractual relations between Nitzberg and Caribbean International Corporation (hereinafter referred to as CIC). After the taking of depositions, both plaintiff and defendants (FMI and Zalesky) moved for summary judgments which were entered in favor of defendants. This appeal ensued.

FMI made a loan to CIC and its affiliate corporations, secured by first mortgage liens on four resort hotels and security interests in certain vacation license agreements. Subsequently, Nitzberg entered into an employment agreement with CIC. The agreement provided for a salary, various bonuses, and stock options and was to continue for a period of five years. The employment agreement was signed by ap-pellee Zalesky in his capacity as President of CIC; Zalesky was also a major stockholder of CIC. The relevant actions of Zalesky were made in a corporate capacity and not as an individual.

During the year 1973, CIC was in very poor financial condition and, in October 1973, FMI refused to advance additional funds unless CIC improved its financial condition. At this point, CIC was in debt in the amount of approximately $1,000,000.00. FMI required CIC to cut back on overhead. In response to this demand from FMI to tighten up on finances, all officers of CIC took salary cuts. Nitzberg’s salary was reduced from $75,000.00 per year to $50,000.00 per year. Nitzberg was not singled out for salary reduction; Zalesky and other officers also took a cut in salary. Nitzberg accepted the reduction as a pay deferment until things at the company “turned around”. The activities did not turn around, and the entire corporation was sold. Nitzberg demanded full payment of his salary, and Zalesky replied that the company did not have the money to pay him. Nitzberg left the employ of CIC, and filed his action in the trial court. The complaint consisted of four counts: Count I sought damages for breach of an employment contract; Count II sounded in quantum meruit, seeking to recover for services rendered to certain subsidiaries and/or affiliates of CIC; and Counts III and IV sought damages for tor-tious interference with a contractual relationship.

This court has most recently stated the elements of action of tortious interference with the business relationship in the case of International Funding Corporation v. Krasner, 360 So.2d 1156 (Fla. 3d DCA 1978), as follows:

“The elements of the tort of interference with a business relationship are (1) existence of a business relationship under which the claimant has legal rights, (2) intentional and unjustified interference with that relationship by defendant, and (3) damage to the claimant as a result of the breach of the business relationship.

360 So.2d 1157. Recent cases which support this include Lake Gateway Motor Inn, Inc. v. Matt’s Sunshine Gift Shops, Inc., 361 So.2d 769 (Fla. 4th DCA 1978); Sutton v. Stewart, 358 So.2d 119 (Fla. 1st DCA 1978); Serafino v. Palm Terrace Apartments, Inc., 343 So.2d 851 (Fla. 2d DCA 1976); Smith v. Ocean State Bank, 335 So.2d 641 (Fla. 1st DCA 1976).

The facts presented in the pleadings established a business relationship between Nitzberg and CIC; the first element. To establish the second element, there must have been an intentional and unjustified interference with the business relationship between Nitzberg and CIC by Zalesky and FMI. There is no question but that the activities of Zalesky and FMI were intentional; however, the appellant has failed to establish any indication of an unjustified interference with the business relationship. Since there was no unjustified interference, the third element of a test for tortious interference (damage) is not reached in this case.

The requirement of FMI that CIC reduce its overhead before additional operational funds were lent was reasonable and justified. Zalesky’s activities, carried out in order to save the corporation, are privileged under Florida law. The law recognizes that a contracting party has a privilege to interfere with a contractual or business relationship, where the interference is necessary to protect his own contractual rights provided that such interference is without malice. See: Serafino v. Palm Terrace Apartments, Inc., supra, wherein the Second District Court of Appeal cites, with approval the case of Petty v. Dayton Musicians Association, 153 N.E.2d 218 (Ohio Com.Pl.1958), where it was held that:

. . one who purposely causes a third person not to enter into or continue a business relationship with another in order to influence the other’s policy in the conduct of his business is privileged, if (1) the actor has an economic interest in the matter with reference to which he wishes to influence the policy of the other, (2) the desired policy does not illegally restrain competition or otherwise violate a defined public policy, and (3) the means employed are not improper.” (emphasis supplied)

If a person has a present existing economic interest to protect, such as ownership interest or a prior contract right of his own, he is privileged to prevent performance of a contract of another which threatens it. Babson Bros. Co. v. Allison, 337 So.2d 848 (Fla. 1st DCA 1976). In the cited case, the court said:

“[3] This case must be reversed for another reason. The Illinois corporation correctly contends that it was privileged to interfere with the contract between Allison and the Georgia corporation. The most recent draft of the Restatement of the Law of Torts states as follows:
“ ‘769 Privilege of One Having Financial Interest in Business of Person Induced. One who has a financial interest in the business of another is privileged purposely to cause him not to perform a contract with a third person, or not to enter into or continue a contractual relation with him, in the course of that business, if the actor (a) does not employ improper means, and (b) acts to protect his interest from being prejudiced by the contract or relation.’ Restatement (2d) of Torts § 769 (Tent.Draft No. 14 approved by the Institute 5/21/69).
“The financial interest which one must have to come within the privilege varies. In this regard, we find the following statement in Prosser, Law of Tort § 129, pages 944-45 (4th Ed. 1971):
‘Financial interest. The financial interest in another’s business requisite for the privilege stated in this Section is an interest in the nature of an investment. A part owner of the business, as for example, a partner or stockholder, has at least such an interest.’ Comment a, Restatement of Torts § 769 (1939).
“ ‘Where the defendant acts to further his own advantage, other distinctions have been made. If he has a present, existing economic interest to protect, such as the ownership or condition of property, or a prior contract of his own, or a financial interest in the affairs of the person persuaded, he is privileged to prevent performance of the contract of another which threatens it . . .
“It is clear that a controlling stockholder of a corporation falls within the privilege when he interferes with a contract between the corporation and a third person. See Covert v. Terri Aviation, Inc., 197 So.2d 12 (Fla. 3 DCA 1967), and Felsen v. Sol Cafe Mfg. Corp., 24 N.Y.2d 682, 301 N.Y.S.2d 610, 249 N.E.2d 459 (1969).

Although the Florida courts have not decided whether interest of a mortgage lender is that of a “financial interest” within the scope of the established privilege, such a conclusion follows from the decisions in Serafino and Babson, supra.

The record is devoid of any facts supportive of the contention that the actions of FMI in requiring its financially troubled borrower, CIC, to reduce its overhead expenses as a condition to additional funding from FMI amounted to an intentional and unjustified interference with appellant’s employment agreement with CIC simply because CIC required its officers to take salary cuts. It affirmatively appears from the record that the actions of FMI and Zalesky fall clearly within the privilege recognized under Florida law by the Babson and Seraf-ino, supra, decisions and further reflected in the Restatement of Torts, since FMI was acting to protect its clear financial interest as a mortgage lender.

Applying the law to the facts in this situation, it is clear that the trial court was correct in granting summary judgments in favor of Zalesky and FMI.

Therefore, the summary judgments here under review be and the same are affirmed.

Affirmed.

      . The case remains pending in the trial court against other defendants on other causes of action.


author: KEHOE, Judge.

text:
    Enrique CASTRO et al., Appellants, v. SUN BANK OF BAL HARBOUR, N. A., et al., Appellees.
    No. 78-439.
    District Court of Appeal of Florida, Third District.
    April 10, 1979.
    Rehearing Denied May 21, 1979.

      Prunty, Ross & Olsen and John W. Prunty, Miami, for appellants.
    Frates, Floyd, Pearson, Stewart, Richman & Greer and Larry S. Stewart, Miami, for appellees.
    Before HENDRY and KEHOE, JJ., and SCHULZ, GEORGE E. (Ret.) Associate Judge.
   KEHOE, Judge.

Appellants, plaintiffs below, bring this appeal from a summary final judgment entered by the trial court in favor of appel-lees, defendants below, in an action for declaratory and injunctive relief arising from alleged nuisance and zoning violations in regard to the proposed development of Fair Isle. We affirm.

In the summary final judgment appealed, the trial court found that the case of State v. Sailboat Key, Case No. 73-6449 (11th Judicial Circuit, Dade County, Florida, July 29, 1977), precluded the relitigation of the issues sought to be raised by appellants. Our review of the record compels us to agree with the trial court. The record shows that no new issues were presented by this cause, rather the issues which appellants seek to raise are the same ones which were determined in State v. Sailboat Key, cited above, which, even though involving a settlement agreement which was made a part of the final judgment, was decided on the merits. See, e. g., Mims v. Reid, 98 So.2d 498 (Fla.1957), and Warringer v. Fernandez, 310 So.2d 375 (Fla.3d DCA 1975). Further, the record shows that the trial court, at the time it entered the final judgment, had jurisdiction of the subject matter and all of appellants, except appellants Castros and Shaw who were not “interve-nors” in the action. However, in our opinion, these appellants were also bound by the final judgment. Appellants Castros and Shaw were citizens of the State of Florida and the City of Miami at the time of the litigation in State v. Sailboat Key, cited above. The City of Miami was a party defendant in that action and signed the settlement agreement incorporated in the final judgment. The City of Miami is also a party defendant in the instant action. Under these circumstances, the final judgment is binding on these appellants irrespective of whether they were formal parties to the original action. See, e. g., Young v. Miami Beach Improvement Co., 46 So.2d 26 (Fla. 1950); State v. Gessner, 157 Fla. 798, 26 So.2d 896 (1946), and City of New Port Richey v. State, 145 So.2d 903 (Fla.2d DCA 1962).

For the reasons set forth above and because no other reversible error has been shown, the summary final judgment appealed is affirmed.

Affirmed.

      . The name “Fair Isle” has been changed by appellees to “Grove Isle.”


text:
    CLIMATROL CORPORATION, a Florida Corporation, Appellant, v. Howard KENT and Shirley Kent, his wife, Appellees.
    No. 78-983.
    District Court of Appeal of Florida, Third District.
    April 10, 1979.
    Rehearing Denied May 23, 1979.
    Patton, Kanner, Segal, Zeller, King & Middelthon and Dennis G. King, Miami, for appellant.
    Pallot, Poppell, Goodman & Slotnick and Arvin Peltz, Miami, for appellees.
    Before BARKDULL, HUBBART and SCHWARTZ, JJ.
   BARKDULL, Judge.

This is an appeal, brought by the plaintiff in the trial court, from an order denying its claim for a mechanic’s lien pursuant to Chapter 713, Florida Statutes, and from an order assessing attorney’s fees and costs against it pursuant to Section 713.29, Florida Statutes (1977).

Appellees, Howard and Shirley Kent, owners of a home in Hialeah, Florida, decided to follow the Florida trend and install a swimming pool at their residence. In pursuit of this purpose, they made arrangements with University Federal Savings & Loan Association for a home improvement loan, whereby funds would be disbursed by checks payable, jointly, to Howard and Shirley Kent and New Enterprises, Inc., the contractor for the improvements.

Appellant, Climatrol Corporation, entered into a contract with New Enterprises on June 16,1977 to furnish a pool screen enclosure to the Kents’ home for a contract price of $1,655.00. Climatrol commenced its portion of the job by leaving materials on the site on June 27, 1977. The evidence is conflicting as to when the job was completed and the release of lien furnished by New Enterprises to the Kents; however, the release of lien is dated July 6, 1977 and the final payment check appears to have been endorsed July 7, 1977. Climatrol furnished its Notice to Owner, which was signed and receipted for on July 12, 1977. Climatrol filed a Claim of Lien on the Kents’ property on July 22, 1977. Suit was commenced by Climatrol on the Claim of Lien, seeking foreclosure thereof.

By amendment to their answer, the defendants filed a copy and asserted the benefits of a Release of Lien furnished to them by the general contractor.

The cause came on for final hearing before the court, who entered a final judgment denying the claim of lien and reserved jurisdiction to assess attorney’s fees and costs. Subsequently, the court entered a supplemental judgment awarding defendants costs and reasonable attorney’s fees pursuant to Section 713.29.

Appellant appeals from said judgments, contending that the trial court erred in holding the release of lien furnished by the contractor met the test of Section 713.-06(3)(d)(l), Florida Statutes (1977).

It is difficult for a court to enforce the lien law against a homeowner who has made improper payments and may thus be required to pay twice for improvements to his property. However, the mechanic s lien law is generally construed in favor of the lienor, and the homeowner who takes the statutory precautions can protect himself from such a situation.

In the instant cause, the homeowner was acting as the final disbursing agent for the funds on the job and failed to file a Notice of Commencement, thereby rendering all payments improper pursuant to the express language of the Mechanic’s Lien Statute. With respect to the obtaining of the release of lien, there is a ready and commonly known distinction between a release of lien and the contractor’s final affidavit. The Mechanic’s Lien Statute clearly and concisely sets forth the respective duties and liabilities of the various parties involved; the law is best served by requiring literal compliance with its terms.

The contractor’s affidavit provision must be construed to require what it says, to wit: that the contractor be required to swear under oath that he has paid his subcontractors who may have liens on the project. The countervailing benefit is that the owner can rely on this affidavit and protect himself from subsequent notices of claims which may be filed within the 45-day period of Section 713.06(2), Florida Statutes (1977), “Notice to Owner”, or within the 90-day period of Section 713.08(5), Florida Statutes (1977), “Claim of Lien”.

Section 713.35, Florida Statutes (1977) makes the furnishing of a false affidavit punishable as the crime of perjury. As is readily apparent, the contractor would not be guilty of perjury for executing the release of lien furnished to the homeowner in this instance, in that it does not recite that all lienors have been paid. In the case of Shaw v. Del-Mar Cabinet Co., 63 So.2d 264 (Fla.1953), the Supreme Court of Florida distinguished between a Release, or a General Release, and the Contractor’s Affidavit required by the statute. In the Shaw case, the court held that payment was improper where the affidavit was not obtained and that the materialmen could recover even though they filed no notices to owner at all. The court then discussed the difference between a General Release, or Release of Lien, and the Contractor’s Affidavit, as follows:

“. . . Section 84.08, supra, provides that the penalty of perjury shall attach to a false statement by the contractor (subject to the limitations mentioned therein). The subcontractor or materialman is entitled to the salutary effect of this statute on one who might be tempted to make a false statement. There is a vast difference in executing a general release to the owners with no criminal penalty attached and in executing a sworn statement of the type required by the Mechanics’ Lien Law. . . . ”

63 So.2d 267.

The Supreme Court held, in Shaw v. Del-Mar, supra, that there is a duty on the owner to comply with the statute in order to protect his property from liens, and that the obtaining of a release was not compliance with the requirement of a contractor’s affidavit designating that all lienors had been paid.

Appellant submits that this case is controlled by those principles of law recited in the case of Adams v. McDonald, 356 So.2d 864 (Fla. 1st DCA 1978).

Therefore, with reluctance, the judgments under review will be reversed with instructions to render a foreclosure in favor of the original plaintiff, because we are not privileged to reverse previous decisions of the Supreme Court of Florida. Hoffman v. Jones, 280 So.2d 431 (Fla.1973); State v. Dwyer, 332 So.2d 333 (Fla.1976); Reichold Chemicals, Inc. v. Omni-Vest, Inc., 352 So.2d 58 (Fla. 1st DCA 1977). However, we will certify this case to the Supreme Court of Florida as one involving a question of great public interest, in that it requires a home owner to meet the same strict requirements of the mechanic’s lien law as one engaged in a commercial business. The modern trend has been to protect the homeowner/consumer in the purchase of his home. Gable v. Silver, 258 So.2d 11 (Fla. 4th DCA 1972); Simmons v. Owens, 363 So.2d 142 (Fla. 1st DCA 1978). If this be so in the purchase of a home, it should likewise apply when he improves his home.

A homeowner may improve his home once or twice in a lifetime, whereas a subcontractor (as in the instant case) is making supplies for such improvements on a regular basis in its commercial business. The supplier has the expertise in the mechanic’s lien law because he deals with it daily; this is something the homeowner does not possess.

If I were authoring this opinion as a first impression in Florida, I would balance the interest to be protected under the mechanic’s lien law in favor of the homeowner and require strict compliance by a contractor or materialman dealing with him. Whereas here the homeowner did all reasonable under the circumstances, and the subcontractor, but for the improper contractor’s affidavit, would not have timely filed a notice to owner. I would, if this was an initial interpretation in Florida, hold in favor of the homeowner.

Therefore, because of the reasons above stated and following the previous decisions of the Supreme Court of Florida, the judgments under review be and the same are reversed and the matter returned to the trial court for the entry of a judgment in favor of the plaintiff, foreclosing the lien and awarding it reasonable attorney’s fees.

Reversed and remanded, with directions.

      . “RELEASE OF LIEN
      “KNOW ALL MEN BY THESE PRESENTS: “That the undersigned, for and in consideration of the payment of the sum of Ten and 00/100 Dollars ($10.00) paid by the owner receipt of which is hereby acknowledged, hereby releases and quit claims to the said property its successors and assigns, and the owner, all liens, lien rights, claims or demands of any kind whatsoever, which the undersigned now has or might have against the building on premises legally described as
      HOWARD KENT 7130 W. 12 LANE HIALEAH, FLA.
      on account of labor performed and/or material furnished for the construction of any improvements thereon. That all labor and materials used by the undersigned in the erection of said improvements have been fully paid for.
      “IN WITNESS WHEREOF, I have hereunto set my hand and seal this 6 day of July, 1977.
      New Enterprises Inc. (SEAL) by Norman Weinberg
      “STATE OF FLORIDA
      COUNTY OF DADE
      “I hereby acknowledge that the statements contained in the foregoing Release of Lien are true and correct.
      “Sworn to and subscribed before me this 29th day of June 1977.
      Marguerite Mero Notary Public State of Florida at Large
      “My Commission expires:
      “Notary Public, State of Florida at large My Commission Expires
      March 5, 1979
      Bonded by American Fire & C”

      . This was not reported at the time of the rendition of the original judgment in the trial court.

      . § 713.06(2)(a), Fla.Stat. (1977)
      “. . . This notice must be served before commencing or not later than 45 days from commencing to furnish his services or materials but in any event before the date of furnishing the affidavit under subsection (3)(d)l., of this section, or abandonment, whichever shall occur first. . . . ”


text:
    LIBERTY MUTUAL INSURANCE CO., a Foreign Corporation authorized to do business in the State of Florida, Appellant, v. Cynthia MARINO, Appellee.
    No. 78-1124.
    District Court of Appeal of Florida, Third District.
    April 10, 1979.
    Rehearing Denied May 21, 1979.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and Todd A. Cowart, Miami, for appellant.
    Kuvin, Klingensmith & Lewis and R. Fred Lewis, Coconut Grove, Groland, Brown & Huysman, Miami, for appellee.
    Before HENDRY and KEHOE, JJ., and SCHULZ, GEORGE E. (Ret.), Associate Judge.
   KEHOE, Judge.

Appellant, defendant below, brings this appeal from an adverse summary final judgment granting appellee’s, plaintiff below, motion for summary judgment and ordering appellant to submit to arbitration. We affirm.

In June of 1976, appellant issued an automobile owners insurance policy to Marie Low the mother of appellee, Cynthia Mari-no. The policy provided both uninsured and underinsured motorist coverage. The policy also carried an operator restriction endorsement which provided that the insurance afforded by the policy would not apply with respect to any claim or suit arising from accidents occurring while any automobile covered by the policy was being operated or used by Marino. In October of 1976, Mari-no, while operating a vehicle owned by Marc Reinig, was struck by an automobile driven by Richard A. Lamas and owned by Nancy Peters. As a result of the bodily injuries sustained by her in this accident, Marino made a claim against appellant under the uninsured motorist coverage of her mother’s policy. Appellant denied coverage stating that Marino was not entitled to uninsured motorist benefits. Thereafter, appellee filed a complaint for declaratory relief alleging that there was no policy of insurance applicable at the time of the accident with respect to ownership or use of the Peters’ vehicle, and requesting that appellant be ordered to submit to arbitration. Appellant answered and stated that by endorsement Marino was excluded from uninsured motorist coverage under the policy. Thereafter, appellee filed a motion for summary judgment. At the hearing on the motion, appellant argued that the insured, Low, had expressly rejected uninsured motorist coverage with respect to appellee by listing her on the operator restriction endorsement. After the hearing, the trial court entered an order granting appellee’s motion for summary judgment on the grounds that the operator restriction endorsement did not apply to the vehicle driven by Marino. Thereafter, appellant filed a motion for rehearing which was denied by the trial court; however, the trial court entered an amended order granting appel-lee’s motion for summary judgment, deleting the portion of its previous order which stated that Marino was struck by an uninsured motorist and adding that the defense raised in appellant’s amended answer was still at issue. Subsequently, appellee filed a second motion for summary judgment alleging that she was entitled to immediate arbitration regardless of whether the question of Lamas’ insurance coverage had been resolved. The trial court granted the motion and entered a summary final judgment in favor of appellee. The judgment also ordered appellant to submit to arbitration. From this summary final judgment, appellant brings this appeal.

In one of its points on appeal, appellant contends that the trial court erred in granting the summary final judgment and in ordering it to submit to arbitration when genuine issues of material fact existed as to the availability of automobile liability insurance and where the uninsured motorist endorsement provided that it was not obligated to make payment until after the limits of all applicable liability policies had been exhausted.

Based upon the principles set forth in Liberty Mutual Insurance Co. v. Beyer, 362 So.2d 390 (Fla. 3d DCA 1978), Apodaca v. Old Security Casualty Insurance Co., 348 So.2d 677 (Fla. 3d DCA 1977), and Arrieta v. Volkswagen, 343 So.2d 918 (Fla. 3d DCA 1977), in our opinion, this point is without merit.

In its other point on appeal, appellant contends that the trial court erred in granting a partial summary judgment on the grounds that the operator restriction endorsement excluding appellee from coverage was not applicable.

Based upon the authority of Mullis v. State Farm, 252 So.2d 229 (Fla.1971), we are further of the opinion, as was the trial court, that the operator restriction endorsement, under the facts of this case, did not operate to cut off uninsured motorist coverage to appellee. See Salas v. Liberty Mutual Fire Insurance Co., 272 So.2d 1 (Fla. 1973), and Butts v. State Farm Mutual Automobile Insurance Co., 207 So.2d 73 (Fla. 3d DCA 1968).

For the reasons set forth above, the summary final judgment appealed is affirmed.

Affirmed.


author:
      HENDRY, Judge. SCHWARTZ, Judge
      BARKDULL, Judge, specially

text:
    POINCIANA HOTEL OF MIAMI BEACH, INC., and 7149 Bay Drive Corporation, Appellants, v. Paul KASDEN et al., Appellees.
    Nos. 78-369, 78-370.
    District Court of Appeal of Florida, Third District.
    April 17, 1979.
    Rehearing Denied May 21, 1979.
    Joe N. Unger, Dresnick & Freeman, Miami, for appellants.
    Horton, Perse & Ginsberg and Mallory H. Horton, Miami, for appellees.
    Before HENDRY, BARKDULL and SCHWARTZ, JJ.
   HENDRY, Judge.

This is a consolidated appeal by the defendants in foreclosure proceedings in the lower tribunal. Plaintiffs/appellees’ complaint sought to foreclose two mortgages given by the corporate defendants/appellants to Kasden and Goldberg in regard to the purchase of the Poinciana Hotel by the Abravayas, principals of the appellant corporations.

Ultimately, the trial court decreed foreclosure of the two mortgages — one was the purchase money third mortgage on the Poinciana Hotel Property, and the other was directed against two apartment properties given as security by the 7149 Bay Drive Corporation to secure payment of a portion of the down payment on the purchase of the Poinciana Hotel.

In the final judgment against the Poinciana Hotel involving the purchase money third mortgage, the trial court granted foreclosure based upon: (a) default in payment of an installment on a note, and (b) anticipatory breach of the first and second mortgages, which triggered the acceleration clause in the third mortgage. The mortgage on the apartment buildings was foreclosed based upon: (a) default in payment on a note as well as (b) anticipatory breach of the other encumbrances giving rise to default under the cross-default provision of all the mortgages. Of course, the crucial element in any mortgage foreclosure proceeding to accelerate sums due under a note and underlying mortgage is an actual default. Kirk v. Van Petten, 38 Fla. 335, 21 So. 286 (1896) and Meredith v. Long, 96 Fla. 719, 119 So. 114 (1928).

In the instant ease, the record reflects that there was, indeed, default for non-payment on the notes secured by the third mortgage and interest was not paid when due; the mortgage instrument required mortgagor to pay the sums due “promptly on the days respectively the same severally come due.” When payment was clearly not forthcoming, the ap-pellees/third mortgagees filed the action.

The relevant documents reveal that on February 1, 1976 appellants were obligated to pay the principle and interest due under the outstanding first and second mortgages, each of which provided ten (10) days as the grace period. No payments were made on these senior mortgages. On February 11, 1976 the appellees herein filed the foreclosure action. The mortgagor contends that in light of the fact that the grace period contained in each of the senior mortgages was ten days, mortgagor was not in default under said mortgages on February 11, 1976, as the period would not expire until midnight on that date. Therefore, appellant asserts that since there were no actual defaults, the option to accelerate under the junior mortgage was not available to appellees. We must disagree.

Let us turn to the final judgments and quote from those portions which are directly pertinent:

“Under the circumstances of this case, taking into consideration the fact that the Defendant made it quite clear that it was not going to live up to the terms of the mortgages and other obligations, stated that it was contemplating bankruptcy; that the principal officer’s wife had taken money and gone to South America, the Court finds that Defendant made a clear and unequivocal repudiation of the demands for payment . . . due and that there was a default on the third mortgage securing the Poinciana Hotel property before the institution of the foreclosure proceeding .
“Whereas, generally, the Doctrine of Anticipatory Breach does not apply, under the circumstances of this particular case, the Doctrine of Anticipatory Breach should apply because it fulfills the basic purposes of the Doctrine as set forth and explained by Professor Corbin in his Treatise on Contracts, Second Edition .
“This would constitute an exception to the general rule. Ordinarily, the Doctrine of Anticipatory Breach does not apply when there is a unilateral contract, or when there is a contract for one party that has been fully performed and the only thing left to do is to pay money damages. Under that set of circumstances, there is no jeopardy; no additional jeopardy to the mortgagee other than the fact that he has to wait for his money.
“Under the circumstances of this case, I find there was additional jeopardy that should properly place this case under the rule where the Doctrine of Anticipatory Breach could apply . . .”

Although it is true that no actual default of the senior mortgages had yet occurred (since on the date appellees filed the foreclosure action there remained one more day before expiration of the grace periods under each of the original senior mortgage contracts), we are in accord with the learned trial judge’s finding that under the unique circumstances presented, the jeopardy to the interest of the mortgagees was abundantly clear and present so as to justify the application of the doctrine of anticipatory breach of the senior mortgage contracts. Notwithstanding the fact that the application of the doctrine when there is a unilateral contract does constitute a rare exception to the general rule, the mortgagor’s repudiation of his part of the mortgage contracts prior to the time fixed for his performance entitled the mortgagees herein to protect their interests.

The evidence clearly supports the trial court’s finding that the mortgagor, by way of words, actions and general conduct in dealing with the appellees/mortgagees made it clear that he had no intention of making the required payments on the mortgages. The record shows a lack of good faith on the part of the mortgagor which, all in all, indicated an unequivocal repudiation of all demands for payment and threatened the security of the mortgage.

The most noteworthy “threatening” circumstance surrounding the filing of the foreclosure action was the mortgagor’s repeated avowals that he was about to file bankruptcy proceedings. If a suit to foreclose a mortgage is commenced in a court of this state before a petition in bankruptcy is filed in a federal court, the foreclosure suit may be prosecuted in the state court without interference from the court of bankruptcy, and the first court to secure possession and custody of the property, through its officers, or whose jurisdiction has first attached to the res has exclusive jurisdiction to hear and determine all controversies in regard thereto. Appellants’ petition under Chapter XI of the Bankruptcy Act would operate as a stay of the mortgage foreclosure, thus precluding sale of the property for some time. See Heritage Family Pub., Inc. v. First Federal Savings & Loan Association, 315 So.2d 558 (Fla. 2d DCA 1975).

In the case sub judice, time was of the essence for appellees in protecting their interest against the inherently time-consuming exigencies of the threatened bankruptcy proceedings; even more importantly, appel-lees, as third mortgagees, could have become legally responsible for the entire financial obligation under the senior mortgages if they had failed to act promptly in protecting their security interests.

Therefore, under the singularly rare fact pattern of the case sub judice we affirm the foreclosure judgments.

Affirmed.

SCHWARTZ, Judge

(dissenting).

As the majority opinion makes clear, the appellants were not in violation of the express terms of the appellees’ mortgage when the foreclosure action was filed because the grace period provided in the senior mortgages had not yet expired. The court, however, decides that, under the “rare” circumstances of this case, the mortgagors should be deemed to have “anticipa-torily breached” the first and second mortgages. The majority reaches this conclusion only by creating an exception to the general, in fact well-nigh universal, rule that there may be no such “anticipatory breach” of a strictly unilateral obligation such as one merely to pay money in installments under a promissory note, including one secured by a mortgage. Roehm v. Horst, 178 U.S. 1, 20 S.Ct. 780, 44 L.Ed. 953 (1900); General American Tank Car Corp. v. Goree, 296 F. 32 (4th Cir. 1924); Garrett v. American Family Mut. Ins. Co., 520 S.W.2d 102 (Mo.App.1975); Wallace, Clark & Co. v. Acheson Industries, Inc., 422 F.Supp. 20 (S.D.N.Y.1976); Bird v. Computer Technology, Inc., 364 F.Supp. 1336 (S.D. N.Y.1973); 11 S. Williston, Law of Contracts § 1300 (3d ed. 1968); Restatement of Contracts § 318, comment e; 17 Am.Jur.2d Contracts § 455 (1964); see Hall v. Northern & Southern Co., 55 Fla. 235, 46 So. 178 (1908).

Of course, if they desired, the parties who are now before us could have specifically provided that the junior mortgage would be deemed in default if payments were not made on the senior mortgages by the due date, without regard to the grace period. Since they did not in fact so provide, I think that the court’s finding of an “anticipatory breach” in this situation and in this case alone, notwithstanding the clear rule to the contrary, amounts essentially to rewriting the parties’ mortgage contract by the judicial insertion of such a term. It is unnecessary to prolong the list of citations which establish that, however harsh or improvident the parties’ actual bargain or apparently desirable the resulting effect, the courts have no authority to engage in any such process. Home Development Corp. of St. Petersburg v. Bursani, 178 So.2d 113 (Fla.1965); Kirk v. Van Petten, 38 Fla. 335, 21 So. 286 (1896); Florance v. Johnson, 366 So.2d 527 (Fla. 3d DCA 1979); Saul J. Morgan Enterprises, Inc. v. 57th Ave. Development Corp., 305 So.2d 18 (Fla. 3d DCA 1974), cert. denied, 314 So.2d 586 (Fla.1975); International Expositions, Inc. v. City of Miami Beach, 274 So.2d 29 (Fla. 3d DCA 1973).

For these reasons, it is my view that the action was prematurely filed before default, Kirk v. Van Petten, supra, and that the mortgage was therefore erroneously foreclosed. Meredith v. Long, 96 Fla. 719, 119 So. 114 (1928). I would reverse.

BARKDULL, Judge, specially

concurring.

I not only concur with the opinion and decision authored by Judge Hendry, but I would also affirm the action of the trial judge because, in order to protect their security interest, the holders of the third mortgage not only were faced with the prospect of the third mortgagor going into bankruptcy and the property coming under the control of the bankruptcy court but they were also on notice that the holder of a superior mortgage would accelerate immediately upon default and would commence foreclosure proceedings. Therefore, if this mortgage became in default the third mortgagees would have to pay approximately $400,000.00 in order to protect their security interest. But, if they made the installment payment due on the superior mortgage before it became in default, they could protect their security interest with a payment of $6,583.33 and continue to make the installments as they matured.

The economics of the situation dictated that the holders of the third mortgage, both in order to protect the res from becoming involved in Federal bankruptcy litigation and to limit the amount they must pay out of their own pockets, were under economic duress to prevent the superior mortgages from coming into default.

It also appears, from an examination of the record, that if the third mortgagor had tendered payment to the first mortgage holder during the last day of the grace period, the first mortgagee would have accepted same and returned the payment made by the holders of the third mortgage as the check had been delivered with instructions to return it if the due installment was forthcoming from the third mortgagor. No tender was made by the third mortgagor within the grace period; in fact, no tender was ever made during the progress of the proceedings in the trial court. The most that the third mortgagor ever indicated was that it was ready, willing and able to make the payments. This is not sufficient. See: Jacobs v. Automotive Repair Center, Inc., 137 So.2d 263 (Fla. 1st DCA 1962); Kreiss Potassium Phosphate Co. v. Knight, 98 Fla. 1004, 124 So. 751 (1929).

      . Subsequently, two other individuals were properly permitted to intervene in the cause on the grounds that they were real estate brokers seeking to establish right to a brokerage commission in connection with the sale of the Poinciana Hotel, to-wit: each had received a duly executed promissory note secured by the third mortgage in payment of their respective commissions.

      . Actually, there are two acceleration clauses in the subject mortgage instrument. The first one does not specify time for acceleration, it gives the mortgagee at its option the right to immediately declare the mortgage and indebtedness due and payable. The second clause pertains to payments called for under the terms of the mortgage and the notes (which the mortgage secures); if payment is not made pursuant to the note and fifteen (15) days elapse, the mortgagee has the right to accelerate the total indebtedness.

      . All of the mortgages involved in this complex real estate transaction contained acceleration clauses providing that failure to pay any superior mortgage when due would be deemed a breach of the subordinate mortgage.

      . The note recited July 1, 1975 as the time payment was due, but it was waived since the closing had been deferred until November 1, 1975 — after which time however, the mortgagees made demand for payment, with increased vigor in early January of 1976.

      . First or “senior” mortgagee is not a “necessary party” to foreclosure proceedings by a junior mortgagee. Cone Bros. Const. Co. v. Moore, 141 Fla. 420, 193 So. 288 (Fla.1940).

      . Where time is to be computed from a particular day, or when an act is to be performed within a specified time or after a named date, the first day is excluded and the last day included. Klein v. City of New Smyrna Beach, 152 So.2d 466 (Fla.1963).

      . Mortgage foreclosure is the best recognized remedy in that the filing of such an action amounts to an exercise of that mortgagee’s option to declare the whole principal sum and interest secured by the mortgage due and payable. Liles v. Savage, 121 Fla. 83, 163 So. 399 (1935).

      . Although not specifically pleaded, in the trial court, it is interesting to note that under the U.C.C. a creditor/mortgagee/holder of note has a right to exercise an operative acceleration provision when there is debtor lack of good faith and the security is in jeopardy or impaired. See, Sections 671.1-203 and 671.1-208, Florida Statutes (1962). The institution of a suit for the whole debt is, of course, the most solemn form by which the holder can exercise his option.

      . Under these circumstances, if the payment had been made the foreclosure suit would have been subject to dismissal and the third mortgagee would have been responsible for any damages occurring as the result of a wrongful receivership.


author: PEARSON, Judge.

text:
    John S. MURPHY, Appellant, v. Mary Lou Ragen MURPHY, Appellee.
    Nos. 78-538, 78-737.
    District Court of Appeal of Florida, Third District.
    April 17, 1979.
    Rehearing Denied May 25, 1979.

      Buchbinder & Elegant and Harris J. Buchbinder, Miami, Sibley, Giblin, Levenson & Glaser and Marion E. Sibley, Miami Beach, for appellant.
    R. Stuart Huff, Miami, for appellee.
    Before PEARSON, HENDRY and KE-HOE, JJ.
   PEARSON, Judge.

These appeals are by the husband from the property provisions of a final judgment dissolving his marriage to the appellee and from a subsequent order holding him in contempt.

The parties were married to each other in 1965. The wife had four children by a prior marriage; the husband had one. Two children were born of the marriage. The wife was, at the time of the marriage, the owner of considerable property. The husband had very little. During the progress of the cause to final judgment, the parties entered into a stipulation providing for the custody and visitation rights for the two minor children of the marriage. The court provided for the husband to pay a portion of the support of the children. No point on appeal is directed to these provisions.

The basic conflict arises out of the wife’s claim of a special equity in the real and personal property in which the husband held a record interest. The basis of the wife’s claim was that she had provided the consideration for these properties from a source unconnected with the marriage. She claimed that she had periodically conveyed a portion of her record interest to the husband at his insistence. She alleged that she had never intended a gift of any interest to survive coverture.

The record shows that shortly after the marriage, the wife executed deeds to the husband making him a joint owner on all of her properties. Later, a residence was purchased in Coral Gables and title was taken in an estate by the entireties. During the marriage, the wife received other property in Florida from the estate of her parents. The wife executed a quit claim deed transferring title in this property to the parties’ joint names as tenants by the entireties.

The trial judge found as to the husband’s conduct during the marriage:

“11. The Court is of the opinion that the equities in this cause are with the Wife, and against the Husband. It appears that he was never gainfully employed, and made no recognizable effort to support his Wife and family by his own efforts. The Husband was well educated, and in good health, but apparently chose to liye on the monies received by his Wife from the estate of her first husband and from the estates of her deceased parents. The Husband will leave this marriage, some twelve years after its inception, better off financially than when he entered it. Virtually none of this improved status was achieved by his own efforts. Upon dissolution, this Court sees no reason to extend a lifetime of ease which he has done so little to earn.”

Throughout the marriage, the parties had disputes which revolved around the treatment of the children each had at the time of their marriage. They separated on several occasions and each, at times, consulted counsel. In 1973, the parties separated and upon reconciliation, entered into an agreement which is central to the trial court’s decision and appellant’s first point on appeal.

As to this agreement, the trial judge found:

“10. On July 11th, 1974, the parties entered into a written ‘Agreement’. On that date, the parties held record title to all of the aforedescribed properties as tenants by the entireties. That ownership existed by virtue of quit-claim deeds which had been prepared by the Husband and executed by the Wife. The Agreement provided, inter alia, that the parties would execute such deeds as were necessary to vest title in them as tenants in common, with the Wife owning an undivided 56% and the Husband owning an undivided 44% therein. The Agreement did not effect the title to the home at 525 Hardee Road. When suit was commenced, the parties had in fact executed the requisite deeds. The Wife testified that her intent in executing that Agreement was (1) to be able to dispose of certain property by will, independent of entireties ownership; and, (2) to satisfy her Husband’s insistence that she execute the Agreement. The Husband, and his former counsel at the time of the execution, testified that the Husband’s sole intent in entering the agreement was to placate his Wife, who was insisting upon the Agreement. The Court has carefully reviewed that Agreement. Considering both the express language of the Agreement, and the intent of the parties as testified to, the Court finds nothing therein which would bar the claim which the Wife has here asserted. The Court finds it unnecessary at this time to determine the validity or enforceability of that Agreement, having determined that there is nothing in that Agreement material to this suit. The Husband’s contention that the mere change in form of ownership from an entireties to a tenancy in common form, in itself, bars a special equities action, is without merit. It cannot be inferred from the Agreement that the Wife intended to relinquish any rights not expressly set forth therein. Davis v. Davis, 301 So.2d 154 (3rd DCA, 1974).” [Emphasis supplied].

As to the separate properties, the trial judge found:

1. The marital residence:

******
“Thus, it was impossible for any separate funds of the Husband’s to have been used in the acquisition of the Coral Gables property in September of 1967. Therefore, this Court must find that the entire consideration for the acquisition of this property was provided by the Wife. The Husband made no attempt to show that the Wife intended to gift his record interest in this property to him. The Wife has established her special equity in her Husband’s record interest to this home.”

2.The Florida Keys property:

****** “The Wife sustained her burden of establishing that the sole consideration for all of these properties was provided from her inheritance from the estates of her parent, James M. Ragen. The Wife clearly established that no cash consideration was paid for these parcels, but, rather, that she relinquished her interests in other estate properties to the remaining beneficiaries, as full consideration therefor. The evidence shows that each of these properties was originally deeded to the Wife, solely, in fee simple. There was testimony by the Husband that he provided some payment to one of the beneficiaries: Robert Ragen. That testimony by the Husband was vague and uncertain, and was unequivocably denied by Robert Ragen in his rebuttal testimony. It was admitted that the Husband himself prepared quit-claim deeds for the Wife to execute, vesting an interest in those properties in himself. The Husband made no attempt to show that the Wife possessed a gift intent in executing those conveyances. It should be noted that the record is devoid of any testimony as to services rendered by the Husband in and about the acquisition or maintenance of these specific properties. Therefore, the Wife has sustained her burden of establishing her special equity in the Husband’s record interest to those properties.” ******

3. A mortgage on lots on Ponce de Leon Boulevard, Coral Gables, Florida:

******
“The Wife sustained her burden of showing that this property was originally acquired from the estate of her mother, Ellen S. Ragen.
******
“The Wife has established her special equity in her Husband’s record interest to this property, which was a mortgagee’s undivided 44% interest at the time this suit was commenced.”

4. Bank deposits:

******
“There is no sufficient evidence before the Court upon which the Court could make an equitable determination as to the rights of the parties to these funds, and the Court will leave the parties as it found them.”

5. Purchase money mortgage on Chicago property:

******
“It was admitted by both parties that this property was received by the Wife, before this marriage, as an inter vivos gift from her mother, Ellen S. Ragen. No additional consideration was ever paid for the acquisition of this property. The Husband made no attempt to show that the Wife intended to gift a portion of her interest in this property to him, when any conveyance thereof was effected. Therefore, the Wife has established her special equity in this property, and in the mortgage thereon.”

Appellant-husband’s first point urges that the agreement of July 11, 1974, constituted a post-nuptial property settlement agreement and that, therefore, the agreement was binding upon the court so that the husband must be awarded a 44% interest in all of the jointly-owned property.

A considerable portion of appellant’s argument is directed to the position that this cause must be reversed because the trial judge found the agreement not to be material and, therefore, could not have considered it even to determine its relevancy. We think that a full reading of the trial judge’s findings reflects the fact that he did consider the agreement and found that it was not binding as to a declaration of special equities in the dissolution proceedings. We interpret the court’s finding to be as follows:

The court (1) has read the agreement, (2) because it is relevant to this case in light of the husband’s argument that its effect in changing the basis of ownership of the real property concerned from that of entireties to that of common tenancy bars an equitable distribution. However, the court (3) finds this contention to be without merit and (4) because the agreement, therefore, places no restrictions on the court’s equitably distributing the property, accordingly, (5) the court finds the agreement not to be material to this suit in this respect, and (6) finds it unnecessary to determine the validity and en-. forceability of the agreement.

We return to an examination of whether the court erred in failing to find the agreement binding as to special equities. The appellant relies upon the reasoning in Pos-ner v. Posner, 233 So.2d 381 (Fla.1970); Byrd v. Byrd, 324 So.2d 659 (Fla. 2d DCA 1975); Bailey v. Bailey, 300 So.2d 294 (Fla. 4th DCA 1974). These cases stand for the proposition that if a post-nuptial agreement is valid when tested by the stringent rules described in Del Vecchio v. Del Vecchio, 143 So.2d 17 (Fla.1962), and, if, in addition, it is made to appear that the dissolution is prosecuted in good faith and the agreement cannot be said to promote the procurement of a divorce, then it should be held valid with regard to conditions existing at the time the agreement was made.

These cases all concern the effect of a valid agreement to settle property rights of the spouses in the estate of the other upon death. In the present instance, there was evidence before the court upon which the court made a positive finding that the agreement was not for the purpose of settling the property rights of the parties but was for the convenience of the parties in dealing with their jointly-held property during coverture.

In Clark v. Clark, 79 So.2d 426 (Fla.1955), the court, in speaking of agreements between husband and wife, said:

* * * * * * “The law in this jurisdiction is well settled that property settlement agreements between husband and wife, made in good faith, are valid and legal and should be construed and interpreted as other contracts. * * * In this, as in other contracts, our concern is the determination of the intention of the parties from the language used, consideration of surrounding circumstances, the objects to be accomplished, the other provisions in the agreement which might shed light upon the question and the occasion and circumstances under which it was entered into.”

Following the law therein set out, the trial judge in this case considered the agreement of the parties and found that it was not a “property settlement” agreement in the normal sense that that phrase is ordinarily used in dissolution proceedings. The interpretation of a contract between the parties is a matter for the trial judge. See the principles of law in Shuford Development Company v. Chrysler Corporation, 449 F.2d 429, 432 (5th Cir. 1971); and cf. the facts and law in Adler v. Nicholas, 381 F.2d 168, 171 (5th Cir. 1967). The trial judge’s interpretation will not be reversed by an appellate court unless it is clearly incorrect and unsupported by the evidence in the cause. Here, the trial judge determined the intention of the parties in the making of the agreement and the appellant has failed to show wherein this determination of the intention of the contract is erroneous. Cf. Hall v. HaLl, 135 So.2d 432 (Fla. 3d DCA 1961).

Appellant-husband’s second point urges in general terms that the evidence does not support the final judgment. The argument under this point is directed to a review of the evidence of the mortgage upon the Ponce de Leon Boulevard property (item 3 of the finding as set out above). In order to overcome the trial court’s findings upon a sufficiency of the evidence point, it is necessary for an appellant to go beyond merely showing that the more reasonable view of the evidence, in his opinion, supports a contrary finding. Where there is competent, substantial evidence to support the trial court’s finding, it is not the province of this court to substitute its finding for that of the trial court. Bowles v. Mitcell Investments, Inc., 363 So.2d 1106, 1110 (Fla. 3d DCA 1978).

The third point urges that the parties exhibited a clear intent that each should have that portion of the property, i. e., 56% to the wife and 44% to the husband, without regard to the source of the money used to purchase the property. Faced with the July 11, 1974, agreement alone, the trial judge might well have made such a finding. We cannot hold that the agreement requires such a finding because of the testimony and evidence received and upon which the trial judge found that the parties did not intend by the agreement to make mutual gifts to each other. Appellant, in effect, reargues the issue presented in his first point which is, we think, determinative of the case.

The fourth point does not present error because of the holding of the Supreme Court of Florida in Ball v. Ball, 335 So.2d 5 (Fla.1976), where the court said:

“The premise that record title bespeaks an equal division is, of course, only the starting point for a property division. Either spouse has the right to attempt to establish a ‘special equity’ in the realty by reason of his or her extraordinary contribution toward its acquisition, either financially or through personal industry and service to the other party. The other party, of course, can negate the attempted showing or affirmatively attempt to show that a gift was intended. We are not now called upon to determine the range of circumstances which might create a special equity. Consistent with pri- or decisional law, however, we hold that a special equity is created by an unrebutted showing, as was developed here, that all of the consideration for property held as tenants by the entireties was supplied by one spouse from a source clearly unconnected with the marital relationship. In these cases the property should be awarded to that spouse, as if the tenancy were created solely for survivorship purposes during coverture, in the absence of contradictory evidence that a gift was intended.”

The fifth and sixth points urge reversal of the trial court’s order holding the husband in contempt. The order was entered after the final judgment. The judgment provides:

“H. John S. Murphy is ordered to forthwith make payment to Mary Lou Ragen Murphy, by cashier’s or certified check, or in cash, in the amount of $108,190.73, together with interest thereon at 6% per annum from the date of this Order. This payment represents the net proceeds received, as mortgage payments, by John S. Muprhy on the ‘Ponce’ purchase money mortgage from the day that suit was filed. This award of a special equity is computed as follows, to wit:
$14,722.78 as mortgage payments received by John S. Murphy for the months of May, June, July, and August.
$93,467.97 as proceeds received by John S. Murphy from the prepaid satisfaction of said mortgage, received in September, 1977.
“The Court specifically points out that this award reflects Petitioner’s equity in the existing asset, i. e., the said purchase money mortgage, which asset was intact at the time that suit was commenced, as distinguished from a recovery of monies received by the Husband from the Wife’s properties before suit was commenced. Rey v. Rey, 279 So.2d 360 (4th DCA, 1973).” [Emphasis supplied]

On March 14, 1978, the husband filed a notice of appeal from the final judgment but after the order setting supersedeas bond had been entered the husband did not post supersedeas. On March 29, 1978, the wife filed a motion for contempt citation. On April 10, 1978, the court entered an order on the wife’s application for contempt citation ordering the husband to pay the wife the sum of $108,190.73 together with interest thereon within ten days. The husband was ordered to appear for his deposition within seven days of April 4, 1978, for discovery and execution. The order carried a “self-executing” order for imprisonment. On April 28, 1978, the court entered its Order on Motion to Mitigate or Stay Order on Contempt and Order of Commitment without making any specific findings of the husband’s ability to pay and ordered the husband to deliver himself to the Dade County Jail on May 1, 1978. This court granted a stay on May 4, 1978.

Points five and six arise on an interlocutory appeal by the husband from the order of April 10, 1978, which is the order upon the wife’s application for contempt citation. This order provides, in pertinent part, as follows:

“2. The husband herein, JOHN S. MURPHY, shall have ten (10) days from April 4, 1978 in which to pay to MARY LOU RAGEN MURPHY, in cash or by cashier’s check, the sum of ONE HUNDRED EIGHT THOUSAND ONE HUNDRED NINETY and 73/100ths ($108,-190.73) DOLLARS, together with interest thereon through the date of payment.
“3. The Husband herein, JOHN S. MURPHY, shall submit to deposition in aid of execution by counsel for the Wife within seven (7) days of April 4, 1978.
“4. This Order shall be self-executing and should JOHN S. MURPHY fail to comply with the particulars hereof within the time allowed, he shall surrender himself to the Dade County Jail for a period of 10 (ten) days or a Writ of Bodily Attachment shall issue upon Affidavit and Notice of Non-Compliance.
“5. JOHN S. MURPHY may at any time during his incarceration, should it arise, purge himself of contempt by complying with the provisions of this Order.”

Appellant-husband’s points directed to this order urge first that the order is defective under the requirements for such an order as set forth in Adams v. Adams, 357 So.2d 264 (Fla. 3d DCA 1978). In that case, the court stated in reviewing a similar order:

“However, the commitment order is defective. The order fails to comply with the requirement that such an order include an affirmative finding that either the former husband presently had the ability to comply with the order, and willfully refused to do so, or that he previously had the ability to comply, but divested himself of that ability to frustrate the intent and purpose of the order.” * * * * * #

The appellee, in response, admits that the order is defective but maintains that the necessary findings are implicit in the order. We think that so serious a matter as the confinement in jail may not rest upon implications. Orders holding a person in contempt must show on their face the requisites for their validity and the record must support these elements. In the present instance, the direction to pay a large sum of money other than for alimony, child support or suit money within a short period of time upon the provision that failure to pay will result in confinement must be based upon a willful and continuing contempt of the authority of the court in order to avoid the stigma of imprisonment for debt. Cf. Corbin v. Etheridge, 296 So.2d 59 (Fla. 1st DCA 1974); and Howell v. Howell, 207 So.2d 507 (Fla. 2d DCA 1968).

Accordingly, for the reasons herein set forth, the final judgment is affirmed and the order of April 10, 1978, holding the appellant John S. Murphy in contempt is reversed.

Affirmed in part; reversed in part.

      . The trial judge found:
      “The Husband testified that he entered this marriage with approximately $30,000.00 in cash which he received from the estate of his first wife. From the sale of his real estate, referred to during the trial as the ‘Polk’ property, he received approximately $5,000.00. The proceeds of this sale, together with his original funds and other incidental accretions, and together with accumulated interest on the entire amount, totalled approximately $39,000.00 by March of 1967. This total represented virtually all of the Husband’s separate funds in this marriage at that time. On March 10, 1967, he deposited the sum of $39,000.00, in three separate accounts of $13,000.00 each, in his own name at Home Federal Savings and Loan Association of Chicago. These funds remained intact, without any withdrawals, until July 30, 1969.” # # ♦ >}t %

      . In full, appellant’s point is:
      “In an action for dissolution of marriage, where an agreement in the nature of a property settlement agreement has been entered into between the parties, that agreement is considered to be valid and binding upon the parties where it is not tainted by fraud, overreaching, or non-disclosure, whether it is necessary for the court to determine its validity or non-validity or its enforceability, particularly as to the matters contained in the agreement as to the property rights of the parties?


text:
    O. K. HOUSTON, Jr., Appellant, v. CAESARS WORLD, INC., f/k/a Lums, Inc., Appellee.
    No. 78-587.
    District Court of Appeal of Florida, Third District.
    April 17, 1979.
    Rehearing Denied May 21, 1979.
    Robert M. Brake, Coral Gables, for appellant.
    Smith, Mandler, Smith, Werner, Jacobow-itz & Fried and Patricia M. Silver, Miami Beach, for appellee.
    Before PEARSON, HENDRY and HUB-BART, JJ.
   PER CURIAM.

Affirmed. Aronovitz v. Stein Properties, 322 So.2d 74 (Fla.3d DCA 1975); Ruden v. Medalie, 294 So.2d 403 (Fla.3d DCA 1974); United States v. State of Florida, 179 So.2d 890 (Fla.3d DCA 1965). See also Syms v. Castleton Industries, Inc., 470 F.2d 1078 (5th Cir. 1972); City of Orlando v. Murphy, 77 F.2d 702 (5th Cir. 1935).


text:
    Eddy RUIZ, Jr., Eddy Ruiz, Sr., and Florida Insurance Guaranty Association, Appellants, v. Teresita FERNANDEZ, Appellee.
    No. 78-1495.
    District Court of Appeal of Florida, Third District.
    April 17, 1979.
    Rehearing Denied May 21, 1979.
    Preddy, Kutner & Hardy and Howard K. Cherna, Miami, for appellants.
    Carl M. Lambert, Miami, for appellee.
    Before BARKDULL, HUBBART and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed. Helman v. Seaboard Coast Line Railroad, 349 So.2d 1187, 1189 (Fla. 1977); Rivera v. Southern American Fire Insurance Co., 361 So.2d 193 (Fla.3d DCA 1978); Cooper v. Fenton Brace & Limb Co., 350 So.2d 1106 (Fla.3d DCA 1977); Trushin v. City of Miami Beach, 328 So.2d 27, 29 (Fla.3d DCA 1976).


text:
    STATE of Florida, Appellant, v. Ronald Eldredge PIERCE, Appellee.
    No. LL-155.
    District Court of Appeal of Florida, First District.
    April 19, 1979.
    Rehearing Denied May 21, 1979.

      Robert L. Shevin, Atty. Gen., and Lee Mandell, Asst. Atty. Gen., for appellant.
    Michael J. Minerva, Public Defender, and Thomas S. Keith, Asst. Public Defender, for appellee.
   PER CURIAM.

The State seeks review of an order discharging Pierce from prosecution because of an alleged violation of the speedy trial rule, Fla.R.Crim.P. 3.191. We reverse.

Pierce was taken into custody for unlawful possession of a controlled substance with intent to sell, Section 893.13(l)(a) 1, Florida Statutes (1977), on February 14, 1978. On August 18,1978, Pierce moved for discharge under Rule 3.191(a)(1), Fla.R.Crim.P. alleging that he had been continuously available for trial since his arrest and that more than 180 days had elapsed since he had been taken into custody as a result of the conduct giving rise to the crime charged. After a hearing on the motion wherein it was represented to the Court that there had been no continuances or delays attributable to Pierce, an order was entered granting Pierce’s motion for discharge. The next day, the State moved the Court to set aside the discharge order because at a previous hearing in the cause, Pierce had “waived” the operation of the speedy trial rule. The evidence presented at the hearing on the State’s motion revealed that the trial had originally been scheduled for the week of June 26, 1978. At the pre-trial conference held June 26, 1978, the following transpired:

The Court: Call the next case, Mr. Heeb-ner.
Mr. Heebner [Assistant State Attorney]: Your Honor, the State would call Ronald Eldredge Pierce, case number 289-CC.
Mr. Chester [Defense Counsel]: Your Honor, The Defendant will move for a continuance on that.
The Court: Okay. With a waiver?
Mr. Chester: Yes, sir.
The Court: Okay, get me a written motion on that.

The evidence further revealed that neither a written motion for a continuance nor a written waiver of the speedy trial rule was subsequently filed. The trial court denied the State’s Motion to Set Aside Discharge based on his determination that he was without jurisdiction to entertain such motion.

We find that the trial court had jurisdiction to entertain the State’s Motion to Set Aside Discharge. Although the Florida Rules of Criminal Procedure lack a specific provision authorizing a motion to set aside an order granting a motion for discharge, it is clear that relief from orders which are the product of fraud, collusion, deceit, mistake, inadvertence, etc. is obtainable. Cf. State v. Burton, 314 So.2d 136 (Fla.1975). Here, the trial court’s order was premised upon erroneous and misrepresented facts. The facts as revealed at the hearing on the State’s motion clearly demonstrate that the order granting Pierce’s motion for discharge was erroneous. We find that the transcript of the hearing June 26, 1978 reveals a continuance requested by Pierce and a waiver by him of the speedy trial rule. Brown v. State, 328 So.2d 497 (Fla.3d DCA 1976). Since Pierce had waived the speedy trial provisions, he was not entitled to discharge when he had not been brought to trial within 180 days from the time he had been taken into custody as a result of the conduct giving rise to the crime charged. Accordingly, the order discharging Pierce from prosecution is reversed and the cause is remanded for further proceedings.

McCORD, C. J., and MELVIN and BOOTH, JJ., concur.


text:
    B & L SERVICE, INC., et al., Petitioners-Appellants, v. NORTHWESTERN NATIONAL INSURANCE COMPANY, Respondent-Appellee.
    Nos. 77-2071, 77-2114 and 77-2115.
    District Court of Appeal of Florida, Fourth District.
    April 23, 1979.
    R. T. Shankweiler of Patterson, Maloney & Shankweiler, Fort Lauderdale, for petitioners-appellants.
    Don Lee Lacy, Fort Lauderdale, and Robert J. Kelly, Tallahassee, for respondent-ap-pellee.
   PER CURIAM.

This court’s decision of April 4, 1979, is hereby withdrawn.

This cause involves a petition for writ of certiorari and two appeals which have been consolidated for review. This court’s previous opinion of April 4, 1979, while denying the petition for writ of certiorari, did not make specific reference, except by case number, to the two pending appeals. The petition for writ of certiorari filed in Case No. 77-2071 is hereby denied. The orders appealed in Case Nos. 77-2114 and 77-2115 are hereby affirmed.

ANSTEAD and MOORE, JJ., concur.

CROSS, J., concurs only in conclusion.