author: KEHOE, Judge.

text:
    The BARSUE CORPORATION, INC., Appellant, v. CHARWEND, INC., et al., Appellees.
    No. 78-242.
    District Court of Appeal of Florida, Third District.
    Feb. 6, 1979.
    Rehearing Denied March 16, 1979.
    Guggenheimer & Untermyer and David M. Brodsky, New York City, Aaron H. Barken, Coral Gables, for appellant.
    Richard L. Lapidus, Miami, Lionel Bar-net, Miami Beach, Levine, Reckson & Reed and Robert S. Geiger, Steel, Hector & Davis and Patricia A. Seitz, Miami, Burnett Roth, Miami Beach, for appellees.
    Before HUBBART and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   KEHOE, Judge.

Appellant, defendant and counter-plaintiff below, brings this appeal from an adverse final judgment following a non-jury trial in two consolidated cases to determine the entitlement to the proceeds of certain fire insurance policies. We affirm.

Appellant The Barsue Corporation (formerly known as Kabar, Inc.), as lessor, entered into a lease agreement with appellee Charwend, Inc., as lessee, for the lease of certain commercial property. The particular provision of the lease in question provided, in pertinent part, as follows:

“IX. INSURANCE
“The Lessee covenants and agrees to keep, at his own expense, throughout the term of this lease, all personal property, including boilers and hot water heaters, or whatsoever character shown on the attached inventory or contained or used in connection with the demised premises, insured in the name and for the benefit of, and in case of loss payable to the Lessor against loss or damage by windstorm, fire, explosion, war damage or other casualty, in a minimum amount equal to the highest insurable value of the property so insured, in such insurance company or companies, and in such form or forms as shall be satisfactory to and approved by the Lessor, from time to time to deliver to the Lessor the original new insurance policies, at least twenty (20) days prior to the expiration of any of then existing policy or policies of such insurance, and to promptly pay the premiums for all such insurance as well as renewals thereof at the time said policies are issued. The parties mutually agree that the highest insurable value of said personal property of the Lessor to be insured by the Lessee under the terms hereof shall be, and it is hereby determined to be, a sum not less than Fifty Thousand Dollars ($50,000.00).
“It is covenanted and agreed that the Lessee may provide for similar insurance coverage for such personal property as it may have or bring on the premises, providing such coverage shall in no way diminish'the insurance coverage of Lessor’s property from its highest insurable value. The Lessee hereby covenants and agrees to store and insure, at its own expense, whatever equipment belonging to the Lessor it does not use. Said equipment shall be then under the exclusive control of the Lessor. The Lessor shall be required to carry fire, windstorm and extended coverage upon the premises located upon the aforedescribed property in an amount sufficient to represent the highest insurable value, and copies of said policies of insurance and extensions thereof during the term of this lease, shall be delivered to the Lessee within fifteen (15) days from the date of the execution hereof. Failure of the Lessor to pay such premiums for the policy or policies of insurance as above set forth shall constitute a breach of the lease on the part of the Lessor, and at the option of the Lessee, Lessee may pay such policy or policies of insurance and deduct from the next ensuing rental payment the cost of said premiums.”

After entering into this agreement, appel-lee Charwend, Inc., purchased certain insurance policies to cover the leased premises and its contents. Thereafter, on March 2, 1974, within the lease period, a fire destroyed all of the property insured by the policies. The insurance companies conceded that the full amount of each insurance policy was due and payable, but a dispute arose as to the proper payee of the insurance proceeds. The insurance companies then remitted the entire amount of the proceeds into the registry of the trial court. Subsequently, two actions both arising from the same facts were consolidated for a non-jury trial. These actions sought, basically, to determine the rights of appellant and appel-lee Charwend, Inc., (including its assignees), to the proceeds. At the conclusion of trial, the trial court entered a final judgment which provided in pertinent part, as follows:

“The Court finds and determines that the Plaintiff, CHARWEND, INC., had an insurable interest in all the personal property existing on the premises of 211 22nd Street, Miami Beach, Florida, at the time of the fire on March 2, 1974, and that the Defendant, KABAR, INC., had no insurable interest any of the contents therein. The Court further finds that the Defendant, KABAR, INC., failed to return to the Plaintiff, CHARWEND, INC., the security deposit previously paid in by the said Plaintiff, in the sum of $7,500.00. In addition thereto, the Court finds that each of the assignees of the said Plaintiff are entitled to recover, out of the proceeds of the three (3) fire insurance policies covering the contents of the above described premises, the sums introduced into evidence or which were stipulated to by the parties during the course of trial.
“Therefore, upon the evidence, it is, thereupon,
ORDERED, ADJUDGED, DECLARED and DECREED, as follows:
“1. That the Plaintiff, CHARWEND, INC., be and is declared entitled to recover the total amount of the proceeds of the three (3) insurance policies, in the aggregate sum of $55,000.00, subject to its indebtedness to each of the parties as assignees thereunder, as further set forth hereinbelow.
“2. That the Plaintiff, CHARWEND, INC., be and is hereby awarded judgment against the Defendant, KABAR, INC., in the sum of $7,500.00, and for which said sum let execution issue in accordance with the applicable rules of procedure.
“3. That the Counter-Claim filed on behalf of the Defendant KABAR, INC., and the claim of BARSUE CORPORATION, hereinbefore consolidated with the prior-filed complaint of CHARWEND, INC., be and the same are hereby dismissed, with prejudice.”

From this final judgment appellant brings the instant appeal. Appellant’s three points on appeal may be summarized as follows: (1) appellant should have been awarded the entire amount of the insurance proceeds in accordance with the terms of the lease; (2) the trial court erred in finding appellant liable for its failure to return the lease security deposit to appellee Charwend, Inc.,; and (3) the trial court erred in directing the payment of any of the insurance proceeds to appellee Charwend’s, Inc., creditors.

The basic consideration underlying the resolution of these contentions pertain to the application of Section 9 of the lease agreement, set forth above, to the facts of this case. One of the basic obligations of the lessee, pursuant to Section 9, was to insure the personal property of the lessor on the leased premises. This provision is clear. Likewise, the trial court’s finding in its final judgment is also clear that appellant had no insurable interest in any of the contents, i. e., personal property, on the leased premises which were destroyed by fire. Our review of the final judgment in conjunction with the facts in this case, as reflected by the record, show that tacit within the trial court’s determination appellant had no insurable interest in any of the contents was the fact that appellant had no personalty on the premises for which appel-lee Charwend, Inc., was responsible for insuring. Accordingly, contrary to appellant’s contentions numbers (1) and (3), the trial court properly entered final judgment in favor of appellee Charwend, Inc., and directing payment of part of the insurance proceeds to Charwend’s creditors.

In its second point on appeal, appellant contends that the trial court erred in finding it liable to appellee Charwend, Inc., for the amount of its security deposit, $7500, made pursuant to the lease agreement. Because of our determination of appellant’s contentions numbers (1) and (3), it follows that the trial court acted properly in awarding appellee Charwend, Inc., the amount of its security deposit, because it did not breach the lease agreement.

Affirmed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Lois AVIDOR, Appellant, v. Azi AVIDOR, Appellee.
    No. 78-463.
    District Court of Appeal of Florida, Third District.
    Feb. 6, 1979.
    Rehearing Denied March 9, 1979.

      Richard W. Wasserman, Miami Beach, for appellant.
    Frank M. Marks, Miami, for appellee.
    Before PEARSON, KEHOE and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed. See Herzog v. Herzog, 346 So.2d 56 (Fla.1977); and Shaw v. Shaw, 334 So.2d 13 (Fla.1976).


text:
    Leon STOLLER, Appellant, v. Samuel ZOROVICH, Appellee.
    No. 78-870.
    District Court of Appeal of Florida, Third District.
    Feb. 6, 1979.
    Rehearing Denied March 16, 1979.
    Leon L. Stoller, in pro. per.
    Bartel & Shuford and Robert A. Kanziger, Miami, for appellee.
    Before PEARSON, BARKDULL and HUBBART, JJ.
   PER CURIAM.

Affirmed. See Bland v. Mitchell, 245 So.2d 47 (Fla.1970), and Lesperance v. Lesperance, 257 So.2d 66 (Fla. 3d DCA 1971).


author: BERANEK, Judge.

text:
    STATE of Florida, Appellant, v. Kim BRAGG and Veronica DeWinkler, Appellees.
    No. 78-552.
    District Court of Appeal of Florida, Fourth District.
    Feb. 7, 1979.
    Rehearing Denied March 21, 1979.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellant.
    Roy E. Black, of Black & Denaro, P. A., and Flynn, Rubio & Tarkoff, Miami, for appellees.
   BERANEK, Judge.

The State appeals an order of dismissal by the Circuit Court pursuant to Criminal Rule of Procedure 3.191 governing speedy trial. Defendant was arrested for the felony of delivery of cannabis. The 180th day after arrest was December 12, 1977. The case was called for trial on that date. The defense announced it was ready to proceed. The State argued it was not prepared to go to trial because counsel had thought the defendant was going to accept an outstanding plea offer and defense counsel had (in the Judge’s words) “snookered” him into this erroneous belief. Although neither side made a formal motion, the trial court ordered the trial continued and that the continuance be “charged against the defendant” because defense counsel was “not fairly dealing with the State.”

Trial was reset in late February, 1977, but before it occurred, defendant moved for discharge based on an alleged violation of the speedy trial rule.

At the hearing on this motion, defense counsel argued the continuance of December 12, 1977, had been improperly charged against defendant because counsel had not misled the State and that the time for speedy trial had run when the State was unprepared to proceed with the trial as set on the 180th day. This was the same argument which had been previously made by defendant and previously rejected by the court when the continuance was ordered. The trial judge reversed himself and stated that although charging the continuance to the defendant had been proper, it would probably be reversed on appeal, and therefore, the motion for discharge would be granted. The trial judge strongly recommended that the State take an appeal.

We glean most of the above from a detailed study of the transcript of the various hearings. During these hearings counsel argued considerably about their own previous disagreements and the court made various statements about the overall lack of merit of Rule 3.191.

In viewing the case on appeal, we have no choice other than to look to the actual decision of the trial court rather than comments in colloquy between court and counsel. The only interpretation of the decision of the trial judge not leading to an inconsistency is that the continuance of December 12, 1977, should not have been charged to the defendant initially. Since this was in effect the court’s ruling and since the State has been unable to demonstrate legal error in this ruling, we have no alternative other than to affirm.

In light of this eventual ruling, the posture of the case was simply that it was called for trial on the 180th day and the State was not ready to proceed. The defendant was initially found to be responsible for this delay, but this ruling was later changed and reversed. There is no real question of waiver as was presented in State v. Kelley, 322 So.2d 581 (Fla. 1st DCA 1975) and Stuart v. State, 339 So.2d 659 (Fla. 3d DCA 1976). Had the trial court found a waiver based on participation in plea negotiations as was found in Stuart v. State, supra, the result might be otherwise.

We take this opportunity to comment upon the growing practice of “charging” continuances as they are granted. Certainly, a complete record must be made regarding the grant or denial of any continuance. Such a record showing the reasons for a continuance is an absolute necessity in deciding the problems oft presented by motions for discharge such as this. However, we stress that the true issue presented on a motion for continuance is whether the party requesting the continuance is entitled to it. The procedure (existing totally without basis in rule or statute) for “charging continuances” seems to foster rather than discourage the type of “speedy trial maneuvering” which the trial court so soundly condemned in his comments in the transcripts reviewed here. The order below is affirmed.

AFFIRMED.

DOWNEY, C. J., and DAUKSCH, J., concur.


author: DANAHY, Judge.

text:
    Willard MILLS, Appellant, v. STATE of Florida, Appellee.
    No. 78-147.
    District Court of Appeal of Florida, Second District.
    Feb. 9, 1979.
    Jack 0. Johnson, Public Defender, and W. C. McLain, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   DANAHY, Judge.

In this case we deal with the following questions:

Did the trial court err in admitting the opinion testimony of a nonexpert witness, and if it did, does the error require reversal of appellant’s convictions for first degree murder and aggravated battery? We answer both questions in the affirmative.

A Pinellas County Grand Jury indicted appellant for the first degree murder of James Wilson and Dorothy Moragne and the aggravated battery of Thomas White. At trial, the evidence showed that late in the afternoon of July 9, 1976, appellant stopped at the Little Club Tavern. While there, he engaged in a conversation with James Wilson which soon became an argument. Appellant left the bar, but returned several moments later, at which time he fired two shots at Wilson from a gun which he had carried in his pocket. The shots, both of which hit Wilson, killed him and Dorothy Moragne and wounded Thomas White.

Appellant relied on a theory of self-defense to relieve him of criminal responsibility for the two deaths and the one injury. He testified that when he returned to the tavern, Wilson saw him and told him to get out. According to appellant, Wilson then started toward him, placing his hand in his pocket. Appellant, fearing that Wilson had a weapon, began backing toward the rear door and pulled his own pistol from his pocket. He told Wilson to stay back and leave him alone. However, Wilson continued forward, making a thrust toward appellant as if he were going to dive at him. Appellant fired a shot and because Wilson continued toward him, he fired another. He then ran out of the tavern and drove home.

The state presented three eyewitnesses to the shooting incident whose testimony differed from appellant’s in varying details. Vanessa Williams, a barmaid at the tavern, saw appellant return to the tavern with his pistol already drawn. Moreover, she said that Wilson did not walk toward appellant. However, she did see appellant jump back just before the shooting began and she heard him say, “Leave me alone, don’t come toward me.”

Wallace Hines, Jr. testified that he first observed appellant standing in the center of the tavern pointing his pistol. Appellant fired the pistol and Wilson began walking toward appellant as appellant backed up. Appellant then fired a second shot.

The state’s third witness was Thomas White. He stated that he first saw appellant standing at the door to the tavern with his pistol drawn, but not pointing at anyone in particular. Wilson left the bar, where he had been standing, and walked directly toward appellant. Appellant fired, but Wilson continued after him. However, after appellant fired the second shot, Wilson fell. At this point, White noticed that he too was wounded.

At the end of the trial, the jury found appellant guilty as charged, and then recommended that he receive life sentences on the first degree murder counts. Following the jury’s recommendation, the court imposed two consecutive life sentences (twenty-five years mandatory) for the two murder counts and a consecutive fifteen-year sentence for the aggravated battery count. Subsequently, we granted appellant a belated appeal pursuant to Baggett v. Wainwright, 229 So.2d 239 (Fla.1969).

During the state attorney’s direct examination of Thomas White, the following exchange occurred:

Q. And what did he do with his hands as he approached Mills?
A. As far as I could see, they were down beside him at all times.
Q. Did you ever see him reach into his pockets or anything like that?
A. I did not.
Q. Did you see any weapons on James Wilson?
A. I did not.
Q. Did you see any weapons on anyone else?
A. I did not.
Q. Did it in any way appear to you that Willard Mills might have shot in self-defense?
MR. ROBBINS: Now, Your Honor, I’m going to object. Calls for a conclusion. He doesn’t know what is in the mind of the defendant.
THE COURT: I’m going to overrule the objection and allow this witness to testify as to what he observed.
MR. HIGHAM: Thank you, Your Honor. Q. Go head and answer, Mr. White. A. The question again?
Q. The question was, did it appear that in any way Willard Mills shot James Wilson in self-defense?
A. He did not.

The trial court erred in overruling defense counsel’s objection. A nonexpert witness may not express opinions or conclusions which the jury could draw from the facts to which he has testified. See, e. g., McGough v. State, 302 So.2d 751 (Fla.1974). This is particularly true when the opinion or conclusion reaches an ultimate issue in the case. McCormick on Evidence, Section 12 (2d ed. 1972). Here the state attorney’s question clearly called for an opinion and the witness gave one. Moreover, the answer dealt directly with the ultimate issue of whether appellant had acted in self-defense.

Having determined that the court’s ruling was error, we must decide whether it necessitates reversal. As we indicated at the outset of this opinion, we believe it does. The testimony of the several witnesses which we have set out in some detail presented the jury with a confusing picture of the incident in the tavern. Hence the jury may very well have been influenced by the clearly stated opinion of Thomas White that appellant did not act in self-defense. This being the case, we cannot say the error was harmless.

In view of our determination of this issue, we need not enter a lengthy discussion of the other two points which appellant raised. We do note, however, that absent the error discussed above, the evidence was sufficient to sustain the jury’s findings.

We reverse appellant’s judgments and sentences and remand the case for a new trial.

HOBSON, Acting C. J., and OTT, J., concur.


text:
    Ronald VORNDRAN, Appellant, v. Carson Bennett WRIGHT, Appellee.
    No. 77-2044.
    District Court of Appeal of Florida, Third District.
    Feb. 13, 1979.
    Rehearing Denied March 16, 1979.
    Podhurst, Orseck & Parks and Michael Olin, Miami, for appellant.
    Knight, Peters, Pickle, Niemoeller & Flynn and William Flynn, Jeanne Heyward, Miami, for appellee.
    Before PEARSON, BARKDULL and KEHOE, JJ.
   PER CURIAM.

We hold that a summary judgment was properly entered for an architect in an action brought by an employee of a subcontractor, who was injured on a construction job. The contract between the parties, in reference to the responsibility of the architect, reads in part as follows:

******
“Section 2.
“The Architect agrees to provide all architectural, engineering, consulting and decorating services as hereinafter described, except such field engineering services as may be employed and paid for by the Contractor. Architect shall provide all landscape design and services of a landscape architect in connection therewith. Architect’s services shall include all services already performed for owner in connection with said building and this agreement shall supersede and void all prior agreements by and between the parties hereto for architectural services in connection with said building.
“Section 3.
“Architect’s services shall include all plans, the preparation of preliminary studies, working drawings, specifications, large scale and full size scale drawings that may be required, supervision of the work and inspection during the guaranty period. * * *
****** “Section 8.
“Architect will advise Owner in writing of any omissions, substitutions, defects and deficiencies noted in the work of Contractor but does not guaranty the performance of the Contractor or any Sub-contractors. Supervision of Architect is to be distinguished from the continuous personal supervision to be obtained by a resident inspector. Architect or his agents shall visit the project once a week or oftener when the nature and progress of the work and the interests of the Owner require. During the guaranty period, Architect shall inspect the project for evidence of faulty material and workmanship. The project in general shall be inspected on or about the ninth month after completion and in addition, Architect shall make such other inspections and perform services as may be necessary and incidental to the requirement of the drawings and specifications.”
******
[emphasis added]

This did not impose a duty on the architect to supervise the day-to-day work or to determine whether or not safety regulations were complied with. It was the prime responsibility of the architect to determine that the construction was completed in accordance with the plans and specifications. Garden City Floral Co. Inc. v. Hunt, 126 Mont. 537, 255 P.2d 352 (1953); Day v. National U. S. Radiator Corporation, 241 La. 288, 128 So.2d 660 (1961); Clinton v. Boem, 139 App.Div. 73, 124 N.Y.S. 789 (1910); Cf. Miller v. DeWitt, 37 Ill. 273, 226 N.E.2d 360 (1967). It is generally the prime responsibility of the employer to comply with the safety regulations. Section 440.56, Florida Statutes (1971). The architect, therefore, would not normally be liable for the failure of the employer to comply with safety regulations, unless his contract of employment for supervision imposes upon him a duty and responsibility to supervise and/or control the actual method of construction utilized by the contractor. Greer v. Bennett, 237 So.2d 311 (Fla. 4th DCA 1970); Conklin v. Cohen, 287 So.2d 56 (Fla. 1973). In such a case his liability would be predicated on the negligent performance of his contractual duties. However, in the instant case, the architect’s contract of employment for supervision only obligates the architect to visit the construction site periodically to verify that the construction is in accordance with drawings and specifications. He has no control over the method of construction utilized and there is no showing that he attempted to do so. Based on these undisputed facts, the architect cannot be held liable for any failure of the contractor to comply with required safety regulations. Day v. National U. S. Radiator Corporation, supra; Clinton v. Boem, supra.

Therefore, the summary final judgment appealed herein is affirmed.

Affirmed.


author: SCHWARTZ, Judge. CHARLES CARROLL, Associate Judge

text:
    The HOME INSURANCE COMPANY, a foreign corporation, Appellant, v. Louis MENDELSON and Florence Mendelson, his wife, Appellees.
    No. 78-409.
    District Court of Appeal of Florida, Third District.
    Feb. 13, 1979.
    Rehearing Denied March 16, 1979.

      Blackwell, Walker, Gray, Powers, Flick & Hoehl and James E. Tribble, Miami, for appellant.
    Sams, Anderson, Gerstein & Ward, Greene & Cooper and Marc Cooper, Miami, for appellees.
   SCHWARTZ, Judge.

After a lengthy trial, at which both the facts and the inferences properly to be drawn from them were in hot dispute, the trial judge, sitting without a jury, found that the appellant-defendant, Home Insurance Company, had cancelled and then reissued a $1,000,000 excess liability insurance policy to the plaintiff-appellee Louis Men-delson, who was then a resident of Florida; he thereby rejected the defendant’s contrary contention that Home had merely continued the effectiveness of an already existing policy issued while Mendelson had been a resident of New York. Pursuant to this finding, the court held that Section 627.727, Florida Statutes (1975), was applicable and that, since Home had not offered Mendelson $1,000,000 in uninsured motorists coverage as the statute requires, the policy was deemed automatically to provide that coverage, notwithstanding the $25,000 UM limits stated on its face. See Aetna Casualty & Surety Co. v. Green, 327 So.2d 65 (Fla. 1st DCA 1976), cert, denied, 336 So.2d 1179 (Fla.1976).

We have carefully reviewed the extensive record below and have concluded that it contains competent, substantial evidence which supports the factual determination which formed the basis of the judgment below. See Atlantic & Gulf Properties, Inc. v. Palmer, 109 So.2d 768 (Fla.3d DCA 1959), 60 Am.Jur.2d, Payment, §§ 82-83. Since that is the case, the judgment rendered by the trial court acting as the finder of fact must be and is affirmed. Strawgate v. Turner, 339 So.2d 1112 (Fla.1976); Department of Transportation v. Morehouse, 350 So.2d 529 (Fla.3d DCA 1977), cert. denied, 358 So.2d 129 (Fla.1978); DeLalio v. Food Palace, Inc., 330 So.2d 835 (Fla.3d DCA 1976), cert. denied, 341 So.2d 1081 (Fla.1976); Courshon v. Fontainebleau Hotel Corp., 307 So.2d 901 (Fla.3d DCA 1975).

Affirmed.

CHARLES CARROLL, Associate Judge

(dissenting).

I respectfully dissent. Although handled in the form of a cancellation and reinstatement, that was not the legal effect of the transaction. The “cancellation” notice was not a cancellation, but by its terms and legal effect was a notice that the policy was cancelled unless certain premium payment should be made within a designated date. Timely payment was made to an agent of the insurer. When that occurred, the fact that the method employed by the insurance company to recognize and implement the continuance of the insurance was by “reissuing” the policy, instead of sending the insured a notice that because of the payment the policy continued, is not material. The payment for which the policy was “reissued” was not made as a payment of a premium for a new or separate policy, but was a payment of premium on the existing policy, and because of such payment, according to the terms of the “cancellation” notice, the policy never became cancelled. It is the substance of the transaction and not its shadow that determines its legal effect, which in this instance was the uninterrupted continuance of the policy. In my opinion, the judgment should be reversed.


text:
    Katie C. BISHOP, Mueller Christian Academy, and Preferred Risk Mutual Insurance Company, Appellants, v. Virginia WATSON and Donald Watson, Appellees.
    No. 78-740.
    District Court of Appeal of Florida, Third District.
    Feb. 13, 1979.
    Rehearing Denied March 16, 1979.

      Ligman, Martin, Shiley & McGee, Coral Gables, Jeanne Heyward, Miami, for appellants.
    William Huggett and Theodore M. Kraft, Miami, for appellees.
    Before KEHOE and SCHWARTZ, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

This is an appeal by the defendants below from an order granting a new trial. We find error, and reverse.

The appellees, Virginia Watson and Donald Watson, her husband, filed an action against Katie C. Bishop, Hialeah Christian Church, Inc., and Preferred Risk Mutual Insurance Company. The complaint alleged that Virginia Watson (herein referred to as the plaintiff) received permanent injuries caused by negligence of the defendant, Katie C. Bishop, while driving an automobile owned by the defendant church corporation. By a subsequent order entered on stipulation, Mueller Christian Academy was substituted for defendant, Hialeah Christian Church, Inc., as being the owner of the automobile, of which the defendant insurance corporation was alleged to be the indemnity liability insurer. The plaintiff, Donald Watson, sought derivative damages.

The defendant, Katie Bishop, filed a counterclaim against Virginia Watson and against her insurer, Main Insurance Company, joined as a third party counter-defendant. Therein Bishop alleged she received permanent injuries as a result of the negligent driving of an automobile by the plaintiff. The counterclaim was severed for separate subsequent trial, and the cause went to trial on the plaintiff’s action.

The accident was a collision of automobiles being driven by the plaintiff and the defendant Katie Bishop. It occurred in a street intersection at which traffic was controlled by traffic lights.

At the trial, each of the drivers testified she had the benefit of a green light. Each had two supporting eyewitnesses. The witnesses who testified that the defendant had the green light were telephone company employees who had been working in the area and whose names as witnesses were obtained by police investigating the accident. The witnesses who testified that the plaintiff had the green light had not given their names to the parties or police at the time of the accident, but appeared in response to a newspaper advertisement seeking witnesses to the accident, which advertisement had been placed more than a year after the occurrence.

As was its prerogative and duty, the jury resolved the conflicts in the evidence. The verdict rendered was in favor of the defendants. The plaintiffs timely filed a motion and supplemental motion for new trial.

The trial court considered two grounds presented in plaintiffs’ motions. One, stated in the motion for new trial, was as follows:

“3. The Court erred in failing to allow the Plaintiffs to cross-examine the Defendant, KATIE BISHOP, on the various doctors she had seen and the attention she had received when the subject of her injuries was raised initially by her attorney. The central issue of this case was credibility and this cross-examination goes directly to the credibility of the defendant.”

The other ground, stated in the supplemental motion, was the following:

“Defendant’s counsel made prejudicial, inflammatory and false statements in final argument. Some of these were objected to and sustained by the Court. The falsity and prejudicial nature of others were stated too quickly to and have become apparent upon hindsight.”

In the order granting new trial, the court held the ground relating to cross-examination was without merit. The situation underlying that ground was that when the defendant Katie Bishop appeared at the trial she was walking with the aid of two canes. On direct examination she testified that she had not had any problem in walking prior to the accident. The court precluded the plaintiff from cross examination relating to injuries of the defendant Katie Bishop, and as to her prior medical treatment, ruling such were not material in the plaintiff’s action for damages. We hold, as did the trial judge, that the above-mentioned ruling at trial did not constitute legal basis for the granting of a new trial.

Statements of defendants’ counsel in final argument which were basis of the other above-quoted ground were as follows:

“Remember, she wants $100,000 so she has got an interest in .this case. She doesn’t want anything. So, she is here. You remember now, she is looking for $100,000.”
******
“It’s a red light case. There’s four witnesses to be considered. I don’t consider her testimony to be really something that you should consider because she is looking for $100,000.
“But, to make the score even, let’s say that Katie Bishop had some interest in this case, but I can’t think of, but maybe she does. Let’s discount her testimony. We have supposedly four independent witnesses.”

From those statements inferences could be drawn that the interest of the defendant Bishop in the outcome of the case was less than that of the plaintiff, thereby implying greater credibility to the former as a witness. Those statements as to difference in interest of parties were not correct, because the defendant Bishop had filed her counterclaim for damages, which fact was not disclosed at the trial.

The trial court was of the view that by reason of those statements of her attorney in final argument, the defendant Katie Bishop gained a personal credibility advantage to an extent that required the granting of a new trial. We cannot agree.

At trial, plaintiffs’ counsel made no objection when those statements were made in argument by defendants’ counsel; nor did plaintiffs’ counsel move the court to instruct the jury to disregard the same. The trial court took no voluntary action with reference thereto. The question of the propriety of the statements or as to inaction of the court, raised first in moving for new trial, came too late.

Upon reading the order granting new trial, it is not clear upon what ground the court granted the new trial. In dealing with the ground of the motion relating to the statements of counsel for defendant in argument, the trial court’s order contains the following:

“This error relied upon in the Supplemental Motion for a New Trial is deemed to be without merit by the Court however, it will be relied upon in the hope that if this Order becomes the subject of appellate review, that the appellate court will address itself to the question of the trial judge initiating, without objection on the part of an attorney, such action as is necessary to admonish an offending attorney of improper questions to a witness or improper statements to a jury in closing argument. The Plaintiff in his Memorandum of Law suggests that it was the duty of this trial court to initiate, without objection on the part of counsel, such action when defense counsel’s argument was improper on this record. * * *
******
The contention by the Plaintiff that the Court should have, on its own initiative, admonished counsel for the Defendant with respect to those closing remarks he made to the jury in this case which were improper is rejected although, had objections been made by Plaintiffs’ counsel, they would have been sustained in many instances as is related to those portions of argument made by Defendants’ counsel which were complained of by the Plaintiff in his argument in support of his Supplemental Motion for New Trial.”

From the foregoing, it appears the trial court considered the plaintiffs’ claim of error based on the statements of defendants’ counsel in argument to be without merit, and that the court rejected the plaintiffs’ contention that on its own initiative the court should have admonished counsel for such statements made in argument.

It is important to note that no objection was made to the statements of defendants’ counsel when they were made at trial. To the extent that they may have presented an incorrect statement of fact, it was the duty of the court to give a cautionary instruction thereto, even in the absence of objection. But unless they should amount to fundamental error, which they did not in this instance, in the absence of timely objection thereto, and with the court having taken no action at trial with reference to the statements, they could not constitute basis for new trial, either on motion for new trial or on appeal.

Here, on motion for new trial, the error that was claimed by plaintiff (who did not object at trial) was that the trial court failed to admonish counsel for defendant, and the order of the court shows that if objections had been made to such statements of defendants’ counsel, the action which the court would have taken would have been to sustain the objections (and presumably to have given the jury a cautionary instruction to disregard).

If, for the making of such remarks by defendants’ counsel in his final argument the verdict would not have been set aside or otherwise affected if timely objection had been made or if the court voluntarily had taken action with reference thereto at trial, why should such remarks when complained of for the first time on motion for new trial be basis for setting aside the verdict and granting a new trial? According to the law, they should not. See citations in footnotes 1 and 3.

In Baggett v. Davis, 124 Fla. 701, 169 So. 372, 379 (Fla.1936), the Supreme Court, quoting from Akins v. State, 86 Fla. 564, 98 So. 609, 612 (1923), said:

“The law seems to be well settled that it is the duty of the trial judge, whether requested or not, to check improper remarks of counsel to the jury, and to seek by proper instructions to the jury to remove any prejudicial effect they may be calculated to have against the opposite party. A verdict will not be set aside by an appellate court because of such remarks or because of an omission of the judge to perform his duty in the matter, unless objection be made at the time of their utterance. This rule is subject to the exception that, if the improper remarks are of such character that neither rebuke nor retraction may entirely destroy their sinister influence, in which event a new trial should be awarded regardless of the want of objection or exception.”

The broad discretion of a judge in granting a new trial becomes limited and is drained of force when the question of the propriety of the granting of the new trial is one of law, and relates to the legal sufficiency of the ground or reason for granting the new trial. Boutwell v. Bishop, 194 So.2d 3, 6 (Fla. 1st DCA 1967); National Western Life Ins. Co. v. Watters, 216 So.2d 485 (Fla. 3d DCA 1968); City of Hollywood v. Jarkesy, 343 So.2d 886 (Fla. 4th DCA 1977).

This case was decided by a jury on conflicting evidence, and there is no contention that the evidence was insufficient to support the verdict. The statements of defendants’ counsel in final argument were not evidence, and twice in the court’s charges the jury was instructed that their verdict should be based on the evidence.

In moving for new trial, and in argument here, the plaintiff did not contend that such remarks of defendants’ counsel constituted fundamental error. Likewise, as revealed by the order granting new trial, the trial court did not regard the remarks as having created fundamental error, but only as being such as to have merited objection, and to have been deserving of a cautionary instruction to disregard. The failure of counsel for plaintiff to have objected to the questioned remarks of defendants’ counsel in argument, and, in the absence of objection thereto by counsel, failure of the court to have admonished defendants’ counsel therefor or to have instructed the jury to disregard such remarks were not legal basis to set aside the verdict and grant a new trial in this case. Baggett v. Davis, supra.

The order granting new trial is reversed, and the cause is remanded for entry of judgment on the verdict.

      . Miller v. Pace, 71 Fla. 274, 71 So. 276 (1916); Berger v. Nathan, 66 So.2d 278, 280 (Fla.1953); Omer Corporation v. Duke, 211 So.2d 48 (Fla. 3d DCA 1968); Rose’s Stores, Inc. v. Mason, 338 So.2d 1323, 1324 (Fla. 4th DCA 1976).

      . See citations in footnote 1.

      . Baggett v. Davis, 124 Fla. 701, 169 So. 372, 379 (1936); Smith v. Jackson County, 134 Fla. 354, 183 So. 738 (1938); Tyus v. Apalachichola Northern Railroad Company, 130 So.2d 580, 587 (Fla.1961); Carlton v. Johns, 194 So.2d 670, 674 (Fla. 4th DCA 1967); Dixie-Bell Oil Company, Inc. v. Gold, 275 So.2d 19, 21 (Fla. 3d DCA 1973).

      . “It is your duty as jurors to consider and weigh the evidence, to decide the disputed issues of fact, and to apply the law to the facts as you find them from the evidence.”
      —and—
      “Your verdict must be based on the evidence that has been received, and the law on which I have instructed you.”


author: SCHWARTZ, Judge.

text:
    Joyce ST. MARTIN, Individually, and as mother of Farley Wasserman, a minor, and Farley Wasserman, Individually, Appellants, v. ALLSTATE INSURANCE COMPANY and Edith Rosenblatt, Appellees.
    No. 78-763.
    District Court of Appeal of Florida, Third District.
    Feb. 13, 1979.
    Rehearing Denied March 16, 1979.

      Cohen & Cohen, Miami Beach, Kuvin, Klingensmith & Lewis and R. Fred Lewis, Coconut Grove, for appellants.
    Talburt, Kubicki & Bradley and Betsy E. Hartley, Miami, for appellees.
    Before PEARSON, KEHOE and SCHWARTZ, JJ.
   SCHWARTZ, Judge.

The minor plaintiff was a pedestrian struck by an automobile driven by the defendant Rosenblatt. We reverse the summary judgment entered below for the defendants because the movants did not conclusively establish either the non-existence of any genuine issue concerning the driver’s negligence and legal cause, or that the plaintiff’s conduct was the sole proximate cause of the accident. Proctor & Gamble Distributing Co. v. McGlamery, 341 So.2d 521 (Fla. 3d DCA 1976); Cunningham v. Romano, 278 So.2d 631 (Fla. 3d DCA 1973), cert. denied, 285 So.2d 19 (Fla.1973); Basden v. Lowery, 182 So.2d 265 (Fla. 3d DCA 1966). Since the case is governed by the principle of comparative negligence, our determination to this effect requires that the issue of the defendants’ liability be submitted to a jury. Wills v. Sears, Roebuck & Co., 351 So.2d 29 (Fla.1977); Petroleum Carrier Corp. v. Gates, 330 So.2d 751 (Fla.1st DCA 1976).

Reversed and remanded.


author: BARKDULL, Judge.

text:
    K/F DEVELOPMENT & INVESTMENT CORPORATION, a Florida Corporation and, the Zack Company, a Florida Corporation, Appellants, v. WILLIAMSON CRANE & DOZER CORPORATION, a Florida Corporation, Appellee.
    No. 78-949.
    District Court of Appeal of Florida, Third District.
    Feb. 13, 1979.
    Rehearing Denied March 16, 1979.

      Friedman, Britton, Cohen, Kaufman, Zin-kow, Benson & Schantz and John L. Brit-ton, Miami, for appellants.
    Glass, Schultz, Weinstein & Moss and Jeffrey Allan Hirsch, Coral Gables, for appel-lee.
    Before PEARSON, BARKDULL and HUBBART, JJ.
   BARKDULL, Judge.

Appellants appeal a joint and several judgment, awarding damages to Williamson Crane & Dozer Corporation for faulty roofing on a warehouse.

K/F Development and Investment Corporation built two warehouses. After completion of construction, Williamson Crane & Dozer Corporation purchased the warehouses from K/F Development and claimed that, at closing, the latter orally warranted that the warehouses had a “good ten-year roof”. Shortly after the closing, one of the roofs began to leak. K/F Development was notified and The Zack Company patched the roof. This pattern continued for about two years, until relations between the parties soured. About this time, Williamson Crane & Dozer Corporation was informed that a new roof was necessary. Suit was then filed, ultimately sounding in breach of warranty, express and implied, and in negligence. The evidence was in conflict as to whether the roof was installed at the time the building was constructed in accordance with the standards of the community for the building industry. The jury returned a plaintiff’s verdict; this appeal ensued.

The appellants contend that there could be no express oral warranty for a period of ten years, as this would be contrary to the Statute of Frauds, Section 726.01, Florida Statutes (1975) and, further, that the claims for implied warranty, if one exists in Florida, and negligence were barred by the Statute of Limitations [See: Section 95.-ll(3)(p), Florida Statutes (1975)], and that the Statute of Limitations was not tolled by the repairs. Therefore, the trial court should have directed a verdict for the defendants.

We concur with the appellants. The alleged contemporaneous agreement, which the plaintiff said constituted the express ten-year warranty, was made at the time of closing and not at the time of the agreement for purchase and sale, and therefore could not have been an inducement for the purchaser to enter into the transaction. See: Foster v. Copiah County Co-operative AAL, 246 Miss. 218, 148 So.2d 702 (1963); W. S. Job & Company v. Heidritter Lumber Company, 255 F. 311 (2nd Cir. 1918); Jackson v. Baldwin-Lima-Hamilton Corporation, 252 F.Supp. 529 (E.D.Pa.1966); 67 Am. Jur.2d, Sales, § 437; 77 C.J.S. Sales § 309. We hold that the four-year Statute of Limitations was applicable on the other claims and that the statute was not tolled by the repairs. Tomes v. Chrysler Corp., 60 Ill. App.3d 707, 18 Ill.Dec. 71, 377 N.E.2d 224 (Ill. 1st Dist.1978); Zahler v. Star Steel Supply Company, 50 Mich.App. 386, 213 N.W.2d 269 (1973); Bobo v. Page Engineering Company, 285 F.Supp. 664 (W.D.Pa. 1967); Binkley Company v. Teledyne-Mid America Corp., 460 F.2d 276 (8th Cir. 1972); Anno., 68 A.L.R.3d 1277). The evidence is clear that the purchaser knew or should have known of the alleged defect when the roof began to leak, and this was more than four years prior to the filing of the law suit. Plaintiff relies on Cunningham v. Frontier Lumber Co., 245 S.W. 270 (Tex.App.1922) for the proposition that repairs may toll a statute of limitation. This is an old case and the weight of authority and the better line of reasoning in this modern society is that people should exercise their rights within the limitations time set and that this time period should not be extended by good faith attempts to remedy a defect.

Therefore, for the reasons above stated, the final judgment be and it is hereby reversed with directions to dismiss the cause.

Reversed and remanded, with directions.

      . The roofing subcontractor.

      . Gable v. Silver, 258 So.2d 11 (Fla. 4th DCA 1972); Simmons v. Owens, 363 So.2d 142 (Fla. 1st DCA 1978); Greenburg v. Johnston, 367 So.2d 229 (Fla. 2d DCA 1979), which have found such a cause of action as to residences and condominiums. But, this opinion is not to be construed as finding such as to commercial buildings.


text:
    Charles McCOY and United Services Automobile Association, a Texas Corporation, Appellants, v. Andrew Frazier RUDD et al., Appellees.
    No. KK-308.
    District Court of Appeal of Florida, First District.
    Feb. 16, 1979.

      E. Harper Field of Keen, O’Kelley, Field & Ellis, Tallahassee, for appellants.
    Keith J. Kinderman and Rivers Buford, Jr., Tallahassee, for appellees.
   MASON (Circuit Judge, Retired), Associate Judge:

This is an appeal from a final judgment of the Circuit Court of Jefferson County based upon a jury verdict awarding appel-lees the sum of $75,000.00 with interest thereon from March 3rd, 1973, at six percent per annum, to date of verdict.

The facts are as follows: On March 3rd, 1973, a fire on appellees Rudds’ land destroyed three outbuildings and personal property therein. The buildings contained beehives, beehive equipment and cestain tools. Subsequently the Rudds filed suit against appellant McCoy, a neighbor, and McCoy’s insuror, appellant United Services Automobile Association, alleging that McCoy’s son, Mark, caused the fire by negligently igniting a rocket on the Rudds’ land which blasted off, the exhaust from which ignited grass on such land causing the fire to spread to the buildings burning the same and the contents therein. The Rudds claimed damages in excess of $100,000.00. In their complaint they lumped together their claims for loss to the buildings and for loss of contents. At trial they claimed $42,-336.00 as replacement costs of the buildings and $95,420.00 for loss of contents. The jury returned a general verdict for $75,-000.00, principal amount for such losses.

Appellants raise three points on appeal. The first point is that the trial court erred by admitting into evidence an estimator’s testimony as to costs of replacement of the buildings based upon an architect’s plans which were drawn at the owners’ request and who desired that the buildings be reconstructed exactly as they existed prior to the fire, and who informed the architect as to the size and nature of such pre-existing buildings and of the materials used in their construction. There was evidence that Mr. Rudd had actively participated in the acquisition of such materials and in the construction of such buildings. We hold that such evidence was not hearsay under the circumstances as related and that the court did not err in admitting it. Furthermore, on the question of damages there were two issues, one as to damage for loss of the building and one as to damage for loss of contents. There was testimony as to loss of contents that such loss was more than the amount of the general verdict rendered, so that if the claim for cost of reconstruction of the buildings is completely disregarded, the verdict for $75,000.00 has support in the evidence before the jury. We therefore find that Point One is without merit. See Colonial Stores, Inc. v. Scarbrough, Fla., 355 So.2d 1181.

The second point raised by appellants is that the trial court erred in instructing the jury as to the effect of F. S. 590.08 and 590.13 (1977) upon the issue of negligence of the appellant McCoy in the premises. F. S. 590.08 reads as follows:

“590.08. Unlawful burning of lands. It is unlawful for any person to willfully or carelessly burn or cause to be burned, or to set fire to or cause fire to be set to, any forest, grass, woods, wild lands, or marshes not owned or controlled by such person.”

F. S. 590.13 is as follows:

“590.13. Civil liability. Any person violating any of the provisions of this chapter shall be liable for all damages caused by such violation, which damages shall be recoverable in any court of competent jurisdiction. The civil liability shall obtain whether there be criminal prosecution and conviction or not.”

These statutes were in effect at the time of the fire in question.

We find that the court did not err in reading these statutes to the jury in the giving of his instructions and that Point Two is therefore without merit. In so doing we hold that the term “grass” as used in the statute is not limited to grass growing upon wild lands or marshes but encompasses grass growing upon improved lands, as was the case here.

The third point raised by appellants is that the trial court erred in allowing to stand the jury’s verdict for interest on the principal amount of its award from the date of the fire to date of verdict. We agree and reverse that portion of the final judgment awarding such interest. This was a tort action wherein the damages were un-liquidated and interest upon the principal award runs only upon entry of final judgment.

Where the judgment is for damages, interest may not be added to the principal award unless there can be a conclusive determination of an exact amount due and a date from which interest can be computed. See Bryan and Sons Corp. v. Klefstad, 265 So.2d 382, 385 (Fla. 4th DCA 1972). There was a dispute between the parties hereto not only as to fault but also as to the amount of appellees’ loss. This dispute was settled only by the jury. Assuming that the appellant, McCoy, was negligent from the outset of the dispute there was no way that he could have reasonably known with any degree of certainty or definiteness how much he owed the Rudds until the jury settled the issue by their verdict. The Rudds were claiming over $137,000.00. The jury found they were entitled to only $75,-000.00, a figure, by the way, which was more than the amount claimed for loss of buildings and less than that claimed for loss of contents. There is no way by looking at the jury’s figure of $75,000.00 of knowing that the award was limited to loss of contents, or partially for loss of contents and partially for loss of buildings. This is therefore a classic case of unliquidated damages. 9A Fla.Jur. (Damages, Section 88). We therefore reverse and remand with direction to the trial court to modify and amend the final judgment by striking therefrom the item of interest in the amount of $23,227.35.

Reversed and remanded for further proceedings in accordance with direction expressed in the last paragraph of this opinion.

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


text:
    Lou POLLER et al., Appellants, v. FIRST VIRGINIA MORTGAGE & REAL ESTATE INVESTMENT TRUST, etc., et al., Appellees.
    No. 78-1770.
    District Court of Appeal of Florida, Third District.
    Feb. 20, 1979.
    Rehearing Denied March 16, 1979.

      Leo Greenfield, North Miami, for appellants.
    Kelly, Black, Black, Wright & Earle, Miami, Tolbert, Smith, Fitzgerald & Ramsey and Peter K. Stackhouse, Arlington, Va., Kenny, Nachwalter & Seymour and Thomas H. Seymour, Miami, for appellees.
    Before HENDRY, KEHOE and SCHWARTZ, JJ.
   PER CURIAM.

The trial judge plainly did not abuse his discretion in denying the plaintiffs-appellants’ motion to enjoin the defendant-appel-lee First Virginia Mortgage & Real Estate Investment Trust from prosecuting Virginia state court actions in which it is the plaintiff and the appellants are defendants. Roberts Realty of the Bahamas, Ltd. v. Miller & Solomon (Bahamas), Ltd., 234 So.2d 417 (Fla.3d DCA 1970); Groff G.M.C. Trucks, Inc. v. Driggers, 101 So.2d 58 (Fla. 1st DCA 1958); Annot., Injunction by State Court against Action in Court of Another State, 6 A.L.R.2d 896 (1949). The order under review is therefore

Affirmed.


author: SMITH, CHARLES E., Associate Judge.

text:
    Millard Douglas MADDEN and Jack Wise, Appellants, v. Christine RODOVICH, Lou Wilcox, al., Appellees.
    No. 77-1620.
    District Court of Appeal of Florida, Fourth District.
    Feb. 21, 1979.
    Rehearing Denied March 21, 1979.

      Robert L. Shevin, Atty. Gen., and Thomas M. Beason, Asst. Atty. Gen., Tallahassee, for appellants.
    Ray Sandstrom of Sandstrom & Haddad, Fort Lauderdale, for appellee, Rodovich.
   SMITH, CHARLES E., Associate Judge.

In this case, plaintiffs-appellees sued all of the defendants, jointly and severally, on four (4) counts of false arrest, imprisonment, malicious prosecution, unlawful search, trespassing and assault and battery. The amended complaint drew no distinction in these causes of action against any of the defendants.

The plaintiffs-appellees entered into a stipulation for a $5,000.00 settlement with some of the defendants. Prior to the trial, orders of dismissal with prejudice were entered as to these defendants. Jury trial proceeded against the remaining defendants, and verdicts were rendered for $5,000.00 compensatory damages against both appellants, and $2,500.00 for punitive damages against appellant Madden.

Appellants moved for a set-off against the judgment based on the $5,000.00 settlement. The trial court denied the motion. Florida Statute 768.041 requires a set-off of any settlement against defendants that are jointly liable for a tort. Leisure Group, Inc. v. Williams, 351 So.2d 374 (Fla.2nd DCA 1977). Since there were no separate and different causes of action against the remaining defendants, a set-off of the settlement should have been allowed. Florida Statute 768.041 is clearly applicable.

The order dated June 23, 1977, denying defendants’ motion for reduction of the verdict is reversed. This cause is remanded with directions to reduce the final judgment in the amount of $5,000.00.

REVERSED AND REMANDED.

CROSS and BERANEK, JJ., concur.


text:
    U. S. Y. & T. INDUSTRIES, INC., f/k/a Union Stockyards & Transit Company of Chicago, Appellant, v. CHAROLAIS HERDS & RANCHES, INC., a Florida Corporation, Appellee. U. S. Y. & T. INDUSTRIES, INC., f/k/a Union Stockyards & Transit Company of Chicago, Appellant, v. CHAROLAIS HERDS & RANCHES, INC., a Florida Corporation, the Hartford Insurance Group, the Hartford Fire Insurance Co., Hull & Co., Inc., et al., Appellees.
    Nos. HH-435, II-319.
    District Court of Appeal of Florida, First District.
    Feb. 26, 1979.
    Robert M. Ervin and Brian S. Duffy, of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for appellants.

      Ernest A. Sellers, of Airth, Sellers & Lewis, Live Oak, for appellees.
   PER CURIAM.

This is an appeal seeking review of the orders and judgments of the Circuit Court of Suwannee County bearing dates of September 14, 1976, September 20, 1977, and December 3, 1977, all entered by the trial judge in a non-jury damage suit between the parties hereto. We have examined the transcript of the testimony taken at the trial, the exhibits received into evidence by the trial judge, the entire record herein, including the findings of fact found by the Court below in the final judgment of date September 20,1977, the final orders of the judge fixing attorney’s fee and taxing costs, we have heard oral argument of counsel for both sides and have read the briefs of both counsel. Based upon all of such record, argument and briefs, we conclude that the final judgment rendered by the trial court is supported by sufficient competent, substantial evidence. See Strawgate and Higier v. Turner (1976, Fla.S.Ct.) 339 So.2d 1112; Ross v. Florida Sun Life Ins. Co. (1960, Fla.App. D2) 124 So.2d 892; Bornstein v. Bornstein (1968, Fla.App. D4) 215 So.2d 60; Lowery v. Rosenberg (1962, Fla.App. Dl) 147 So.2d 321, cert, denied (Fla.S.Ct.) 153 So.2d 306; Bali, Inc. v. Sherwood’s Commercial Brokers, Inc. (1975, Fla. App. Dl) 326 So.2d 21; Duncanson v. Service First, Inc. (1963, Fla.App. D3) 157 So.2d 696.

We also find that the trial judge did not err in the taxation of costs and awarding of attorney’s fee as taxed and awarded in his post-judgment orders. We hold that the trial court as to these issues properly interpreted and applied the provisions of Rule 1.442, Florida Rules of Civil Procedure, taken in context with the provisions of Section 627.428, Florida Statutes (1977). See Miami Law Review, Vol. 31, page 887, and cases cited therein; Hernandez v. Travelers Insurance Company (1976, Fla.App. D3) 331 So.2d 329; Tucker v. Shelby Mut. Ins. Co. of Shelby, Ohio (1977, Fla.App. D1) 343 So.2d 1357.

We find the other assignments of error likewise to be without merit.

AFFIRMED.

MILLS, Acting C. J., MASON, ERNEST E., Associate Judge and MELVIN, J., concur.


text:
    Irene F. KLEIN and Joseph Theodore Klein, her husband, Appellants, v. ALLSTATE INSURANCE COMPANY, an Illinois Corporation, Appellees.
    No. JJ-57.
    District Court of Appeal of Florida, First District.
    Feb. 26, 1979.

      C. Chobee Ebbets, Daytona Beach, for appellants.
    Robert K. Rouse, Jr., Daytona Beach, for appellee.
   MITCHELL, HENRY CLAY, Jr., Associate Judge.

Appellants appeal an order of final judgment entered after the trial judge directed a verdict in favor of the Appellee Insurance Company.

Appellants filed suit against their uninsured motorist carrier, the Appellee. The Appellee denied coverage under its policy due to the failure of the Appellants to comply with the notice provisions in the policy. The notice provisions of the policy provided that an accident must be reported within twenty-four hours to the police or judicial officer or to the Department of Motor Vehicles of the State. Also, the Appellants must file with the insurance company a statement regarding the occurrence within thirty days.

At a pre-trial conference the jury issue was determined to be whether or not Appellants noncompliance with the policy provisions prejudiced the Appellee. That issue was tried separately from the issue of damages and negligence.

The rule to be applied to determine the effect of prejudice in delayed notice cases is that while prejudice to the insurer is presumed, if the insured can demonstrate that the insurer has not been prejudiced thereby, then the insurer will not be relieved of liability merely by showing that notice was not given within the provisions of the policy. See Tiedtke v. Fidelity & Casualty Company of New York, 222 So.2d 206 (Fla.1969).

The Appellants’ burden was to demonstrate through evidence that Appel-lee Insurance Company was not prejudiced by the failure to report and give notice. The trial court found that the facts adduced and reasonable inferences which could be drawn from these facts, even when considered in a light most favorable to Appellants below, could not as a matter of law form sufficient basis for finding that the presumption of prejudice was overcome. Our examination of the testimony actually admitted into evidence at the trial leads to the conclusion that the trial court was correct.

We have considered the other points on appeal raised by the Appellants and find that they are without merit. The judgment appealed is accordingly

AFFIRMED.

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


author: MILLS, Acting Chief Judge.

text:
    CITY OF BELLEVIEW, Appellant, v. BELLEVIEW FIRE FIGHTERS, INC., Appellee.
    No. KK-118.
    District Court of Appeal of Florida, First District.
    Feb. 26, 1979.

      John P. McKeever and Chester J. Trow, of Pattillo, MacKay & McKeever; Black, Landt & Appleget, Ocala, for appellant.
    C. John Coniglio, Wildwood, for appellee.
   MILLS, Acting Chief Judge.

The City of Belleview (City) appeals from a final judgment affirming the validity of an agreement between the City and Belle-view Fire Fighters, Inc. (Fire Fighters), and requiring the City to specifically perform its obligations under that agreement.

In July of 1971, the parties executed a 5-year agreement which required the City to provide fire equipment and operating funds to Fire Fighters which was to provide all fire fighting services in the City. The agreement contained a provision granting Fire Fighters the right to extend the term of the agreement for an additional 5 years. In 1976, Fire Fighters sought to extend the agreement. The City refused to recognize the validity of the attempted renewal on the grounds that Fire Fighters had failed to perform its obligations under the agreement, and that the agreement contravened public policy by unlawfully delegating the discretionary exercise of the City’s police power in the realm of fire fighting.

The case was tried before the trial court without a jury. The Fire Fighters’ representative testified that under the agreement, the Fire Fighters controlled the selection of firemen, had the authority to select the City’s representative to the fire department, and that the City’s sole participation in the entire fire fighting process was an after-the-fact review of expenditures. The City Councilmen and the City’s Mayor testified that Fire Fighters failed to submit proper budgets. The City Clerk testified that Fire Fighters had failed to submit budgets for the fiscal years 1976, 1977 and 1978. At the close of the evidence, the court ruled in favor of Fire Fighters.

The provision of fire protection by a city is both a municipal function and an exercise of the police power. The agreement between Fire Fighters and the City purported to provide for exercise of this function by division of responsibilities between the parties. Under the terms of the contract, the City was to provide the fire station, fire fighting equipment, funds sufficient for the operational expenses and maintenance of fire department equipment and operations. Ownership of the real and personal property was to remain in the City, but the parties would exercise joint control over the operating funds acquired by Fire Fighters. Fire Fighters had the exclusive right to operate the equipment and to determine the manner and method of providing fire protection for the City, including the selection of firemen and the setting of fire fighting policies. In effect, the City was powerless to direct the exercise of the police power in the fire fighting area. Upon execution of the agreement, the City lost all legal authority or ability to prevent, control or fight fires within its corporate limits.

The suit brought by Fire Fighters to enforce the contract raised the essential question of whether a municipality, by agreement with a private corporation, may contract away the authority, discretion and policy control over the exercise of its police power. In Harnett v. Austin, 93 So.2d 86 (Fla.1956), our Supreme Court stated that a municipality cannot contract away the exercise of its police powers. The Supreme Court has further stated that the exercise of the police powers includes the right to determine strategy and tactics for the deployment of those powers. Hernandez v. City of Miami, 305 So.2d 277 (Fla.3d DCA 1974). As a matter of law and public policy, the City should be permitted to reclaim the discretions and authorities inherent in the police power of government and the effective supervision and control of both the fire fighting equipment and the fire fighting function.

In paragraph 4 of its complaint, Fire Fighters alleged:

“The plaintiff tendered the services required of it to the defendant and requested funds as required by said contract.

In paragraph 5 of the complaint, Fire Fighters alleged:

“Plaintiff has performed under said contract and will continue to perform under said contract.”

In its answer, the City denied knowledge of the allegations of paragraph 4, expressly denied the allegations of paragraph 5 and pled, as an affirmative defense, the inadequacy of consideration to the City from Fire Fighters.

At the trial, Fire Fighters offered testimony that the corporation had fulfilled its obligation under the contract. However, the trial court denied the City the opportunity to refute Fire Fighters’ pleading and testimony with respect to Fire Fighters’ performance of the contract. The performance of the contract by Fire Fighters and the consideration to the City were issues of the trial. If the contract had been breached by Fire Fighters or if there was an absence of legal consideration as a result of deficient performance, then Fire Fire Fighters would not have the right to exercise the renewal option.

Fire Fighters did not favor us with a brief nor oral argument. Because of this, we do not have the benefit of Fire Fighters’ contentions.

The final judgment is reversed and this case is remanded to the trial court with instructions to enter final judgment in favor of the City.

SMITH, J., and MITCHELL, HENRY CLAY, Associate Judge, concur.


text:
    Bobby Earl LUSK, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1287.
    District Court of Appeal of Florida, Third District.
    Feb. 27, 1979.

      Bennett H. Brummer, Public Defender and Kurt Marmar, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen., for appellee.
    Before HENDRY and SCHWARTZ, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   SCHWARTZ, Judge.

Rejecting the defendant Lusk’s sole contention on appeal, we hold that the prosecutor’s request that the defendant speak so that a witness then on the stand could identify his voice, was not an improper comment on an exercise of his constitutional right against self-incrimination. Although the request was made while the jury was present, and although Lusk did not himself testify, the cases cited by the defendant, e. g., Gordon v. State, 104 So.2d 524 (Fla.1958), have utterly no application to this situation. Lusk’s fifth amendment rights were simply not involved at all, because the privilege of “silence” does not extend to nor include the furnishing of physical, non-testimonial evidence such as the revelation of the sound of one’s voice. United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Parkin v. State, 238 So.2d 817 (Fla.1970), cert. denied, 401 U.S. 974, 91 S.Ct. 1189, 28 L.Ed.2d 322 (1971); Joseph v. State, 316 So.2d 585 (Fla. 4th DCA 1975); Boyer v. State, 182 So.2d 19 (Fla. 4th DCA 1966), cert. denied, 388 U.S. 913, 87 S.Ct. 2118, 18 L.Ed.2d 1353 (1967); Higgins v. Wainwright, 424 F.2d 177 (5th Cir. 1970), cert. denied, 400 U.S. 905, 91 S.Ct. 145, 27 L.Ed.2d 142 (1970); Springer v. State, 372 N.E.2d 466, 472 (Ind.App. 1978); Doye v. State, 16 Md.App. 511, 299 A.2d 117 (1973).

Affirmed.


text:
    SELECT BUILDERS OF FLORIDA, INC., Appellant, v. James A. WONG, Sandra Wong and Richard P. Brinker, Appellees.
    No. 77-2457.
    District Court of Appeal of Florida, Third District.
    Feb. 27, 1979.

      Williams, Salomon, Kanner, Damian, Weissler & Brooks and Vincent E. Damian, Jr., Miami, for appellant.
    William J. Harte, Edward T. Joyce, Chicago, Ill., William P. Cagney, III and Martin Roth, Miami, for appellees.
    Before HENDRY, BARKDULL and HUBBART, JJ.
   BARKDULL, Judge.

■The question on appeal is whether the appellant had an absolute right to take a voluntary dismissal of its action, begun in the trial court.

Select Builders filed suit to expunge an Illinois Federal court injunction that was allegedly improperly filed in the Public Records of Dade County. The order stemmed from litigation between the parties in Illinois, Florida, and elsewhere. Part of the dispute between the parties involved a condominium development in Dade County, owned by Select Builders. As a result of the action of the appellees in filing the Federal court injunction, a cloud appeared on the title to the condominium development property. To remove the cloud from the property, the appellant sought to expunge the Federal injunction from the public records.

Legal skirmishes ensued between the parties, involving a procedural question regarding removal of the action to the Federal court in the Southern District of Florida. The case was never removed to the Federal court; instead, the trial court issued an order expunging the document from the public records, quieting title to the condominium property and enjoining the appel-lees from filing any like documents without domesticating them in Florida.

It later developed that the appellant may have perpetrated a fraud upon the trial court in obtaining the order expunging the document, and the trial court entered an order vacating its previous order. The ap-pellees then moved for sanctions against the appellant, contending that it misled the court and committed certain procedural irregularities. The trial court ordered that the appellant take immediate steps to place the parties and the real estate [the condominium development] in a status quo. The trial court also required the appellant to deposit certain monies that it received from the sale of the property to a third party. At this juncture, the appellant filed its notice of voluntary dismissal, dismissing the action pursuant to Fla.R.Civ.P. 1.420. Upon the appellees’ motion to strike the voluntary dismissal, the trial court entered an order striking the appellant’s notice of voluntary dismissal and retaining jurisdiction over the cause. The appellant now takes this interlocutory appeal from that order.

The trial court considered the motion for sanctions in the nature of a counterclaim and held this was a sufficient ground, pursuant to Section 1.420(a)(2) of the rule to prevent voluntary dismissal. Without reaching this point, we find the court to be correct in striking the voluntary dismissal and reinstating the matter to prevent a fraud on the court. The plaintiff had obtained the affirmative relief it sought, its actions in the cause in the trial court may have been fraudulent on the court and it certainly was within its inherent power [as an equity court] to protect its integrity. Columbus Hotel Corp. v. Hotel Management Co., 116 Fla. 464, 156 So. 893 (1934); Masilotti v. Masilotti, 158 Fla. 663, 29 So.2d 872 (1947); Ryan v. Ryan, 277 So.2d 266 (Fla.1973); 8 Fla.Jur., Courts, § 41. It is elementary that a trial judge may be right for the wrong reason. Choctawhatchee Electric Cooperative, Inc. v. Green, 132 So.2d 556 (Fla.1961); Saunders v. Saunders, 346 So.2d 1057 (Fla. 1st DCA 1977); New Magnolia Baptist Church, Inc. of Branford v. Ellerker, 353 So.2d 205 (Fla. 1st DCA 1978).

We have examined the following authorities cited by the appellant and find them not to be applicable. Rich Motors, Inc. v. Loyd Cole Produce Express, Inc., 244 So.2d 526 (Fla. 4th DCA 1970); Modular Construction, Inc. v. Owen, 270 So.2d 753 (Fla. 3d DCA 1972); Fears v. Lunsford, 314 So.2d 578 (Fla.1975). First, the plaintiff in the cited cases had not received affirmative relief from an equity court and, secondly, no question of fraud on the court was involved.

Therefore, for the reasons above stated, the order under review be and the same is hereby affirmed.

Affirmed.

      . See: Companion case between the appellees and a third-party plaintiff, Wong v. Wersebe, 365 So.2d 429 (Fla. 3d DCA 1978).


author: PER CURIAM!

text:
    Debra RILEY, Appellant, v. The STATE of Florida, Appellee.
    No. 78-575.
    District Court of Appeal of Florida, Third District.
    Feb. 27, 1979.

      Robrish, Major & Logan and Joel D. Robrish, Miami, for appellant.
    Jim Smith, Atty. Gen. and Susan Minor, Asst. Atty. Gen., for appellee.
    Before HENDRY and SCHWARTZ, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM!

The appellant Debra Riley, defendant below, was charged by information with the crimes of robbery (two counts), aggravated battery, unlawful possession of a firearm while engaged in a criminal offense, battery of a law enforcement officer and resisting a law enforcement officer with violence to his person. Defendant pled not guilty, and was tried before a jury on one robbery count and on the count charging aggravated battery. The other charges in the information were dismissed by the State prior to trial. The defendant was found guilty of aggravated battery, and on the robbery count was found guilty of the lesser included offense of grand larceny. Two concurrent three-year sentences were imposed thereon. The defendant appealed.

Upon consideration of the several contentions of error presented by the appellant, in the light of the record, briefs and argument, we hold no reversible error has been shown.

The reference in the testimony of an arresting officer to the several charges upon which the defendant was arrested was harmless error, in view of the curative instruction given by the court. It was not error to deny defendant’s motion for mistrial. Williams v. State, 327 So.2d 798 (Fla. 3d DCA 1976); Warren v. State, 270 So.2d 8 (Fla.1972); Burkhead v. State, 206 So.2d 690 (Fla. 3d DCA 1968); Perry v. State, 146 Fla. 187, 200 So. 525, 527 (1941).

On authority of State v. Abreau, 363 So.2d 1063 (Fla.1978), we hold the court did not commit error by refusing to include in the jury charges on lesser included offenses, the offense of assault with intent to commit robbery. The court charged the jury on robbery and on the lesser included offenses of attempted robbery, grand larceny and petty larceny. On the robbery count, the defendant was found guilty of the lesser offense of grand larceny, of which the offense of assault with intent to commit robbery was equal, but which, as was grand larceny, was two steps removed.

The court properly denied defendant’s motion for dismissal under the speedy trial rule, where a continuance properly had been charged to the defendant. No undue limit was placed on the defendant, as to presentation of evidence. The court did not abuse discretion by not permitting excursion into irrelevant and collateral issues.

Affirmed.


text:
    SAILBOAT KEY DEVELOPERS and American Advisory Corp. and Sailboat Key, Inc., Appellants, v. SUN BANK and Martin Z. Margulies, Appellees. SAILBOAT KEY DEVELOPERS, a co-partnership, American Advisory Corp., and Sailboat Key, Inc., Appellants, v. CITY OF MIAMI, a Municipal Corporation, Southeast First National Bank of Miami, as Trustee, Arkin Construction Company, Robert L. Turchin, Martin Z. Margulies and Sun Bank of Bal Harbour, N. A., as Trustee, Appellees.
    Nos. 78-606, 78-1052.
    District Court of Appeal of Florida, Third District.
    Feb. 27, 1979.
    Richard L. Lapidus, Miami, for appellants.
    George F. Knox, Jr., City Atty., and G. Miriam Maer, Asst. City Atty., Frates, Floyd, Pearson, Stewart, Richman & Greer and Jack M. Brumbaugh, Miami, for appel-lees.
    Before HENDRY and HUBBART, JJ., and EZELL, BOYCE F., Jr., (Ret.), Associate Judge.
   PER CURIAM.

Appellants take these consolidated appeals from separate summary final judgments adversely entered against them below. Appeal No. 78-606 arose from a summary final judgment in favor of appel-lees/defendants Sun Bank and Martin Z. Margulies in a replevin action initiated by the appellants in which they sought to recover possession of a houseboat. Appeal No. 78-1052 is taken from an adverse summary final judgment in an action to recover monies paid to the City of Miami for certain building permits originally issued to the appellants.

Both of the actions below represent a collateral attack by the appellants on a 1975 final judgment of foreclosure entered in the Circuit Court of the 11th Judicial Circuit. In that suit the appellants suffered foreclosure of a mortgage on Fair Island, a small island located in Biscayne Bay which they planned to develop. A houseboat was moored to the island. To further their development plans, the appellants obtained certain building permits from the City of Miami costing approximately $60,000.

The amount foreclosed on the appellants’ mortgage was $8,000,000 and among the property subsequently sold at the foreclosure sale were the houseboat and the building permits. Because of the amount involved after foreclosure, a deficiency judgment was sought by the purchasers at the foreclosure sale. That relief was ultimately denied by the trial court and affirmed on appeal. Spencer v. American Advisory Corp., 338 So.2d 62 (Fla. 3d DCA 1976), cert. denied 348 So.2d 953 (Fla.1977). The appellants also appealed the final judgment of foreclosure itself but voluntarily dismissed that appeal in August 1976.

Appellants brought these separate suits in September 1977 in order to recover the houseboat and the $60,000 that they paid for the building permits. They contended that neither the houseboat nor the building permits had been foreclosed by the earlier final judgment of foreclosure and that they were the true owners of the property. In the case represented by Appeal No. 78-606, they sought to replevin the houseboat from its present owners, the appellees Sun Bank and Martin Z. Margulies. In the case represented by Appeal No. 78-1052, the appellants sought to recover the money that they paid to the City of Miami for the building permits. The other appellees in this appeal represent successor interests to those building permits made parties below by the City’s third party complaint.

We agree with both courts below that the appellants’ actions were untimely and that they, in effect, seek to modify or vacate the final judgment of foreclosure. See Fla.R. Civ.P. 1.540. We, therefore, affirm the summary final judgments.

These collateral attacks on the 1975 foreclosure judgment should have been raised in the foreclosure suit and the appeal from that judgment. They are not appropriately raised in this proceeding. The final judgment of foreclosure is not subject to collateral attack where the trial court had jurisdiction of the subject matter and of the parties. Varnes v. Kirk, 251 So.2d 324 (Fla. 1st DCA 1971); Goldfarb v. Cantor, 123 So.2d 50 (Fla. 3d DCA 1960). The appellants voluntarily dismissed their appeal and chose not to raise any issues concerning the validity of the foreclosure sale of the houseboat and building permits.

The final judgment of foreclosure cannot now be modified or vacated more than a year later whether by motion pursuant to Fla.R.Civ.P. 1.540(b) or by collateral attack in the separate actions filed below. Cf. Seven-Up Bottling Co. v. George Construction Corp., 153 So.2d 11 (Fla. 3d DCA 1963) (decree of foreclosure could not be vacated on ground of newly discovered evidence when motion to vacate was filed more than one year later). Accordingly, the summary final judgments were properly entered against the appellants.

Affirmed.


author: HENDRY, Judge.

text:
    Annegret von DUNSER, Appellant, v. SOUTHEAST FIRST NATIONAL BANK OF MIAMI, an association organized under the laws of the United States, Appellee.
    No. 78-616.
    District Court of Appeal of Florida, Third District.
    Feb. 27, 1979.

      Kenny, Nachwalter & Seymour and James J. Kenny, Miami, for appellant.
    Friedman, Britton, Cohen, Kaufman, Zin-kow, Benson & Schantz and John L. Brit-ton, Miami, for appellee.
    Before HENDRY and HUBBART, JJ., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   HENDRY, Judge.

Appellant, Annegret von Dunser, seeks review of the order of summary final judgment in favor of Southeast First National Bank of Miami, the plaintiff in the lower tribunal. The bank had sued appellant’s estranged husband, as the maker, and the appellant, as the guarantor, on two promissory notes executed in June, 1976 and June, 1977, respectively, seeking a sum certain, plus interest, costs and attorney’s fees. Dr. von Dunser, the maker of the notes, who had left Dade County and resides in Zurich, Switzerland, was constructively served with process but did not answer or respond, therefore, a default was entered against the maker. No appeal has been taken from that order.

The appellant/guarantor did respond with an answer, containing an admission of execution of a guaranty; denial that the guaranty was executed for consideration; as well as raising affirmative defenses which included, inter alia, unjustifiable impairment of collateral by the bank. The cause progressed with discovery procedures, and, ultimately, the trial court ruled in favor of the appellee and granted its motion for summary judgment against the guarantor.

On appeal, Mrs. von Dunser contends that the summary final judgment should be reversed on the grounds that: (1) the promise of the guarantor was not supported by consideration, and (2) that the creditor/bank failed to deal with the debtor and the security in such a manner as to guard against “impairment of collateral.” We cannot agree.

We conclude that appellant’s first point is without merit since the law is clear that where the promise of a guarantor is shown to have been given as part of a transaction that included the creation of the guaranteed obligation, the consideration supporting the obligation will also support the contract of guaranty. Jones v. McConnon & Co., 100 Fla. 1158, 130 So. 760 (1930); Brandon v. Pittman, 117 Fla. 678, 158 So. 443 (1935); Anderson v. Trade Winds Enterprises Corp., 241 So.2d 174 (Fla. 4th DCA 1970), cert. denied, 244 So.2d 432 (Fla.1971).

The second point: to wit, that the bank has caused impairment of collateral, is an inadequate defense; by the express and unambiguous terms of the contract of guaranty appellant waived any duty on the part of the bank with respect to collateral held. The contract of guaranty provides in pertinent part:

“Guarantors further consent to the bank exchanging, surrendering, repledging or otherwise dealing with the aforesaid items without impairing this Guaranty and hereby waive notice thereof to or obtaining the consent therefor of the Guarantors. Guarantors hereby consent to the partial or total release of Borrower or other persons primarily or secondarily liable . . .No act of omission of any kind by the Bank shall affect or impair this guaranty and the Bank shall have no duties to Guarantors. Guarantors hereby agree that their obligations hereunder shall be absolute and primary and shall be complete and binding as to each Guarantor upon this guaranty being executed by him and subject to no conditions precedent or otherwise Guarantors agree to pay any deficiency remaining after the Bank realizes on any security (whether furnished by Borrower, Guarantor or a third party) but the Bank shall not be required to first proceed against any such security.”

Such contractual waivers of “duties” or “requirements” have been consistently upheld by the courts. Bryant v. Food Machinery and Chemical Corporation Niagara Chemical & Division, 130 So.2d 132 (Fla. 3d DCA 1961) and Anderson v. Trade Winds Enterprises Corp., supra. Also see, Fidelity National Bank of South Miami v. Melo, 366 So.2d 1218 (Fla. 3d DCA 1979).

Finally, a most persuasive argument against reversal in the instant cause is the well-established principle that under an absolute and unconditional contract of guaranty, as is the subject matter of this appeal, it is no defense that the creditor has lost security or has been negligent in regard to protection of the collateral. Fegley v. Jennings, 44 Fla. 203, 32 So. 873 (1902) and A & T Motors, Inc. v. Roemelmeyer, 158 So.2d 567 (Fla. 3d DCA 1964).

Accordingly, as no genuine issues of material fact were left unresolved, and as it affirmatively appears that appellee was entitled to judgment as a matter of law, the summary final judgment entered by the trial judge for appellee is hereby affirmed.

Affirmed.


author: HUBBART, Judge.

text:
    Pedro J. PESTANA, Personal Representative of the Estate of Nahim Amar B., Deceased, Appellant, v. KARINOL CORPORATION et al., Appellees.
    No. 78-626.
    District Court of Appeal of Florida, Third District.
    Feb. 27, 1979.

      Rohan & Rohan and Laurence J. Rohan, Miami, for appellant.
    Litman & Michaels and Marvin D. Mi-chaels, Coral Gables, for appellees.
    Before HUBBART, KEHOE and SCHWARTZ, JJ.
   HUBBART, Judge.

This is an action for damages based on a contract for the sale of goods. The defendant seller and others prevailed in this action after a non-jury trial in the Circuit Court for the Eleventh Judicial Circuit of Florida. The plaintiff buyer appeals.

The central issue presented for review is whether a contract for the sale of goods, which stipulates the place where the goods sold are to be sent by carrier but contains (a) no explicit provisions allocating the risk of loss while the goods are in the possession of the carrier and (b) no delivery terms such as F.O.B. place of destination, is a shipment contract or a destination contract under the Uniform Commercial Code. We hold that such a contract, without more, constitutes a shipment contract wherein the risk of loss passes to the buyer when the seller duly delivers the goods to the carrier under a reasonable contract of carriage for shipment to the buyer. Accordingly, we affirm.

A

The critical facts of this case are substantially undisputed. On March 4, 1975, Na-him Amar B. [the plaintiff Pedro P. Pesta-na’s decedent herein] who was a resident of Mexico entered into a contract through his authorized representative with the Karinol Corporation [the defendant herein] which is an exporting company licensed to do business in Florida and operating out of Miami. The terms of this contract were embodied in a one page invoice written in Spanish and prepared by the defendant Karinol. By the terms of this contract, the plaintiff’s Amar agreed to purchase 64 electronic watches from the defendant Karinol for $6,006. A notation was printed at the bottom of the contract which, translated into English, reads as follows: “Please send the merchandise in cardboard boxes duly strapped with metal bands via air parcel post to Chetumal. Documents to Banco de Commercio De Quintano Roo S.A.” There were no provisions in the contract which specifically allocated the risk of loss on the goods sold while in the possession of the carrier; there were also no F.O.B., F.A.S., C.I.F. or C & F terms contained in the contract. See §§ 672.319, 672.320, Fla. Stat.(1977). A 25% downpayment on the purchase price of the goods sold was made prior to shipment.

On April 11, 1975, there is sufficient evidence, although disputed, that the defendant Karinol delivered the watches in two cartons to its agent American International Freight Forwarders, Inc. [the second defendant herein] for forwarding to the plaintiff’s decedent Amar. The defendant American insured the two cartons with Fidelity & Casualty Company of New York [the third defendant herein] naming the defendant Karinol as the insured. The defendant American as freight forwarder strapped the cartons in question with metal bands and delivered them to TACA International Airlines consigned to one Bernard Smith, a representative of the plaintiff’s decedent, in Belize City, Belize, Central America. The shipment was arranged by Karinol in this manner in accord with a prior understanding between the parties as there were no direct flights from Miami, Florida to Chetumal, Mexico. Mr. Smith was to take custody of the goods on behalf of the plaintiff’s decedent in Belize and arrange for their transport by truck to the plaintiff’s decedent Amar in Chetumal, Mexico,

On April 15, 1975, the cartons arrived by air in Belize City and were stored by the airline in the customs and air freight cargo room. Mr. Smith was duly notified and thereupon the plaintiff’s decedent made payment on the balance due under the contract to the defendant Karinol. On May 2, 1975, Mr. Smith took custody of the cartons after a certain delay was experienced in transferring the cartons to a customs warehouse. Either on that day or shortly thereafter, the cartons were opened by Mr. Smith and customs officials as was required for clearance prior to the truck shipment to Chetumal, Mexico. There were no watches contained in the cartons. The defendant Karinol and its insurance carrier the defendant Fidelity were duly notified, but both eventually refused to make good on the loss.

The plaintiff Pedro P. Pestaña, as representative of the Estate of Nahim Amar B., deceased, filed suit against the defendant Karinol as the seller, the defendant American as Karinol’s agent freight forwarder, and the defendant Fidelity as the defendant Karinol’s insurer. The complaint alleged that the defendant Karinol entered into a contract to ship merchandise from Miami, Florida to Chetumal, Mexico with the plaintiff’s decedent, that the defendant American as freight forwarder and agent of the defendant Karinol accepted shipment of such merchandise, that the merchandise was lost, stolen or misplaced while in the care and custody of the defendant Karinol and the defendant American, that the defendants Karinol and American failed to make delivery to the plaintiff’s decedent at Chetumal, Mexico, and that there existed a liability policy with the defendant Fidelity for the benefit of the plaintiff’s decedent. The complaint sought damages together with court costs and reasonable attorneys fees. All the defendants duly filed answers to the complaint wherein liability was denied. The defendant Karinol filed a cross-complaint against the defendant American. The trial court after a non-jury trial found for all of the defendants in this cause. This appeal follows.

B

There are two types of sales conr tracts under Florida’s Uniform Commercial Code wherein a carrier is used to transport the goods sold: a shipment contract and á destination contract. A shipment contract is considered the normal contract in which the seller is required to send the subject goods by carrier to the buyer but is not required to guarantee delivery thereof at-a particular destination. Under a shipment contract, the seller, unless otherwise agreed, must: (1) put the goods sold in the possession of a carrier and make a contract for their transportation as may be reasonable having regard for the nature of the goods and other attendant circumstances, (2) obtain and promptly deliver or tender in due form any document necessary to enable the buyer to obtain possession of the goods or otherwise required by the agreement or by usage of the trade, and (3) promptly notify the buyer of the shipment. On a shipment contract, the risk of loss passes to the buyer when the goods sold are duly delivered to the carrier for shipment to the buyer. §§ 672.503 (Official U.C.C. comment 5), 672.504, 672.509(1), Fla.Stat.(1977); Electric Regulator Corp. v. Sterling Extruder Corp., 280 F.Supp. 550, 557 (D.C.Conn.1968); Eberhard Manufacturing Co. v. Brown, 61 Mich.App. 268, 232 N.W.2d 378 (1975).

A destination contract, on the other hand, is considered the variant contract in which the seller specifically agrees to deliver the goods sold to the buyer at a particular destination and to bear the risk of loss of the goods until tender of delivery. This can be accomplished by express provi-.' sion in the sales contract to that effect or by the use of delivery terms such as F.O.B. (place of destination). Under a destination contract, the seller is required to tender delivery of the goods sold to the buyer at. the place of destination. The risk of loss under such a contract passes to the buyer when the goods sold are duly tendered to the buyer at the place of destination while in the possession of the carrier so as to enable the buyer to take delivery. The parties must explicitly agree to a destination contract; otherwise the contract will be considered a shipment contract. §§ 672.-319(l)(b), 672.503 (Official U.C.C. comment 5), 672.509(1), Fla.Stat.(1977); Electric Regulator Corp. v. Sterling Extruder Corp., 280 F.Supp. 550, 557 (D.C.Conn.1968); Eberhard Manufacturing Corp. v. Brown, 61 Mich.App. 268, 232 N.W.2d 378 (1975); White and Summers, Uniform Commercial Code 140-43 (1972).

Where the risk of loss falls on the seller at the time the goods sold are lost or destroyed, the seller is liable in damages to the buyer for non-delivery unless the seller tenders a performance in replacement for the lost or destroyed goods. On the other hand, where the risk of loss falls on the buyer at the time the goods sold are lost or destroyed, the buyer is liable to the seller for the purchase price of the goods sold. White and Summers, Uniform Commercial Code 134 (1972).

C

In the instant case, we deal with the normal shipment contract involving the sale of goods. The defendant Karinol pursuant to this contract agreed to send the goods sold, a shipment of watches, to the plaintiff’s decedent in Chetumal, Mexico. There was no specific provision in the contract between the parties which allocated the risk of loss on the goods sold while in transit. In addition, there were no delivery terms such as F.O.B. Chetumal contained in the contract.

All agree that there is sufficient evidence that the defendant Karinol performed its obligations as a seller under the Uniform Commercial Code if this contract is considered a shipment contract. Karinol put the goods sold in the possession of a carrier and made a contract for the goods safe transportation to the plaintiff’s decedent; Karinol also promptly notified the plaintiff’s decedent of the shipment and tendered to said party the necessary documents to obtain possession of the goods sold.

The plaintiff Pestaña contends, however, that the contract herein is a destination contract in which the risk of loss on the goods sold did not pass until delivery on such goods had been tendered to him at Chetumal, Mexico — an event which never occurred. He relies for this position on the notation at the bottom of the contract between the parties which provides that the goods were to be sent to Chetumal, Mexico. We cannot agree. A “send to” or “ship to” term is a part of every contract involving the sale of goods where carriage is contemplated and has no significance in determining whether the contract is a shipment or destination contract for risk of loss purposes. Electric Regulator Corp. v. Sterling Extruder Corp., 280 F.Supp. 550, 557 — 58 (D.C.Conn.1968); Eberhard Manufacturing Co. v. Brown, 61 Mich.App. 268, 232 N.W.2d 378 (1975). As such, the “send to” term contained in this contract cannot, without more, convert this into a destination contract.

It therefore follows that the risk of loss in this case shifted to the plaintiff’s decedent as buyer when the defendant Karinol as seller duly delivered the goods to the defendant freight forwarder American under a reasonable contract of carriage for shipment to the plaintiff’s decedent in Che-tumal, Mexico. The defendant Karinol, its agent the defendant American, and its insurer the defendant Fidelity could not be held liable to the plaintiff in this action. The trial court properly entered judgment in favor of all the defendants herein.

Affirmed.

      . We have since dismissed the appeal solely as to the defendant Fidelity as the notice of appeal was untimely as to such defendant.


text:
    Teodoro R. SUAREZ and St. Paul Fire and Marine Insurance Company, Appellants, v. Ernest P. WITTE and Maria Witte, his wife, Appellees.
    No. 78-703.
    District Court of Appeal of Florida, Third District.
    Feb. 27, 1979.
    Horton, Perse & Ginsberg and Arnold R. Ginsberg, Iva W. Kay, Jr., Miami, for appellants.
    Walton, Lantaff, Schroeder & Carson and George W. Chesrow, Miami, for appellees.
    Before PEARSON, KEHOE and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed. See Duncan v. Laney, 202 So.2d 793 (Fla. 2d DCA 1967); and Sirmons v. Pittman, 138 So.2d 765, 770 (Fla. 1st DCA 1962).