author: ERVIN, Judge. BOYER, Chief Judge,

text:
    Fred M. JOHNSON, Appellant, v. Anna B. JOHNSON, Appellee.
    No. DD-355.
    District Court of Appeal of Florida, First District.
    May 18, 1977.
    Rehearing Denied June 22, 1977.

      Martha Blue, Flagstaff, Ariz., for appellant.
    E. LeDon Anchors, Fort Walton Beach, for appellee.
   ERVIN, Judge.

Appellant, Fred M. Johnson, seeks review of an order modifying the original final judgment of dissolution finding appellant owed certain arrearages in child support to the former wife and granting attorney’s fees to the attorney of the former wife. As to the points on appeal assigning error in the court’s order awarding arrear-ages for child support to appellee, we find them without merit and affirm. As to that portion of the order allowing attorney’s fees to appellee’s attorney, we reverse. None of the pleadings filed by the wife requested the court to award attorney’s fees. The former husband had no notice of the prayer before the entry of the order. It is true that Section 61.16, Florida Statutes (1975), does not prohibit the court of its own motion to order a party to pay a reasonable amount for attorney’s fees, however we do not interpret the statute to allow the court to do so without prior notice to the affected party. It has been a long standing rule that when attorney’s fees are authorized by a statute, they must be specifically claimed in the pleadings. E. g., Price v. Boden, 39 Fla. 218, 22 So. 657 (1897); United States Fire Ins. Co. v. Dickerson, 82 Fla. 442, 90 So. 613 (1921). In Price v. Boden, supra, Boden filed a bill to enforce a mechanic’s lien on a certain building and lot. His bill did not include a prayer for attorney’s fees. A decree pro confesso was entered against certain of the defendants, and other defendants filed answers and cross bills. Later a decree was entered against all defendants foreclosing the lien and ordering the sale of the property. Still later a deficiency decree was entered. The decrees affirming the sale and awarding deficiencies were affirmed, but that portion of the final decree of sale allowing attorney’s fees for enforcing the mechanics lien was reversed, the court stating:

“In the bill filed by appellee Boden to enforce his lien, there is no claim for attorney’s fees, and no allegation for such a demand against appellants. Under the default on the allegations of this bill, the' allowance of an attorney’s fee, was, in our judgment, improper, and should not have been allowed.” 22 So. at 658.

We believe that to allow attorney’s fees without specifically making a request for their allowance and without prior notice to the party affected would do violence to our modern rules of civil procedure requiring as they do notice to the opposing party of the claim alleged. The order awarding attorney’s fees is reversed. In all other respects it is affirmed.

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

BOYER, Chief Judge,

concurring specially-

I am in complete agreement with the foregoing opinion authored by my brother Judge Ervin. However, I would go even further. In my view, in order for attorney’s fees to be properly awarded there must first be a claim therefor in the pleadings (or the evidence must have been such as to justify an amendment of the pleadings to conform to the evidence in accordance with the Rules of Civil Procedure). Such is essentially the holding of the foregoing opinion. Further though, in domestic relations matters, the party claiming attorney’s fees must, in order that they be properly awarded, allege and prove financial inability to pay same himself or herself and financial ability of the other party to pay same. There must, of course, also be proof (unless specifically waived by the parties) that the attorney’s services were reasonably necessary and that the amount claimed is reasonable. As in other similar matters, the parties by agreement may waive such requirements and submit the issues to the trial judge without pleading or proof, but that may be done only by explicit agreement.

MILLS, J., concurs.

      . The request for fees might be drafted in the following manner: Petitioner has retained the firm of_to represent (her or him) in this action and has agreed to pay the firm a reasonable attorney’s fee. Petitioner is not financially able to pay (her or his) attorney or the costs of this action but respondent is able to do so.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Concepcion ORTEGA et al., Appellants, v. Roberta L. POSNER et al., Appellees.
    Nos. 76-67 to 76-69, 76-198.
    District Court of Appeal of Florida, Third District.
    May 24, 1977.
    Rehearing Denied June 24, 1977.
    Horton, Perse & Ginsberg, Ratiner & Glinn, Miami, for appellants.
    Richard M. Gale, Carey, Dwyer, Austin, Cole & Selwood, and Steven R. Berger, Talburt, Kubicki & Bradley, Stephens & Schwartz, Miami, for appellees.
    Before PEARSON and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See Stewart v. Cook, 218 So.2d 491 (Fla. 4th DCA 1969); cf. Decks, Inc. v. Nunez, 299 So.2d 165 (Fla. 2d DCA 1974); Morin v. Halpern, 139 So.2d 495 (Fla. 2d DCA 1962).


text:
    Jerome ATILUS, Appellant, v. The STATE of Florida, Appellee.
    No. 76-533.
    District Court of Appeal of Florida, Third District.
    May 24, 1977.
    Rehearing Denied June 24, 1977.
    Bennett H. Brummer, Public Defender and Karen M. Gottlieb, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Joel D. Rosenblatt, Asst. Atty. Gen., for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

The defendant appeals his conviction on five counts of issuing worthless checks. The judgment and sentence of the court was based upon defendant’s plea of guilty. On this appeal, defendant contends that his plea of guilty to three of the worthless check charges was not voluntary because his probation had just been revoked on a prior conviction. With regard to the question of voluntariness, the defendant argues that the trial court erred in accepting the guilty plea where the plea was not entered voluntarily and intelligently due to a language problem on his part. It is evident from a reading of the record, however, that the trial judge gave full consideration to this matter. Additionally, defendant argues that he might not have pled guilty had he not already been facing a prison term. This argument presumes that a defendant may create his own difficulty and then take advantage of that difficulty to secure a more favorable action in a subsequent violation of the law. We reject this reasoning and affirm the judgment and sentence.

Affirmed.


text:
    Ruben PEREZ, Appellant, v. The STATE of Florida, Appellee.
    No. 76-879.
    District Court of Appeal of Florida, Third District.
    May 24, 1977.
    Rehearing Denied June 24, 1977.

      Bennett H. Brummer, Public Defender, and Paul Morris, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and William M. Grodnick, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., and BARKDULL and NATHAN, JJ.
   PER CURIAM.

Affirmed. Mahone v. State, 222 So.2d 769, 772 (Fla.3d DCA 1969); Coppolino v. State, 223 So.2d 68, 70 (Fla.2d DCA 1969); Rodriguez v. State, 327 So.2d 903 (Fla.3d DCA 1976); Warren v. State, 332 So.2d 361 (Fla.3d DCA 1976).


text:
    Thomas P. CARLOS, as Trustee, and Lawrence M. Marks, as Trustee, Appellants, v. CONTEXT-MARKS CORPORATION, a Florida Corporation and Context Industries, Inc., a Florida Corporation, Appellees.
    No. 77-31.
    District Court of Appeal of Florida, Third District.
    May 24, 1977.
    Podhurst, Orseck & Parks and Michael S. Olin, Miami, for appellants.
    Cunningham, Albritton, Bee, Lenzi & Schiller, P.A., Marathon, for appellees.
    Before HENDRY, C. J., PEARSON, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

This is an interlocutory appeal from an order denying appellants-plaintiffs’ motion for leave to file an amended complaint.

Appellants filed a complaint alleging, inter alia, that a note and mortgage, executed by appellee Context-Marks Corporation and guaranteed by appellee Context Industries were in default. The complaint sought, in one count, a decree of foreclosure against the former and a money judgment enforcing the guarantee for any deficiency arising out of the foreclosure against the latter.

Defensive pleadings were filed including a motion to add necessary party plaintiffs. Various affirmative defenses were raised, and a counterclaim was asserted. Subsequently, the lower court granted appellees’ motion to add various parties as plaintiffs and thereafter, appellees began to effectuate service on said parties.

During the period of time in which service was being completed upon the new plaintiffs, appellants sought leave to file an amended complaint containing two counts. Count I sought foreclosure and a deficiency against the mortgagor, Context-Marks Corporation. Count II sought a money judgment against Context Industries on the guarantee. The amended complaint raised no new issues and did not seek to add any new parties. The only change found in the amended complaint, besides the change from one count to two counts, was the request that the cause of action on the guarantee be pursued before the foreclosure action on the mortgage.

Pursuant to a hearing on the matter, the chancellor denied the motion and this appeal follows.

After carefully considering the record, briefs and arguments of counsel, we are of the opinion that the chancellor abused his discretion in denying appellants’ motion to amend the complaint.

Initially, we note that leave to file the amended complaint was sought during the pleading stage and before all parties had actually been served. In addition, the amended complaint was based on the same specific transaction and occurrences between the parties as were alleged in the original complaint.

With the above in mind, and coupled with Fla.R.Civ.P. 1.190(a), which provides in part that leave to amend the pleadings “shall be given freely when justice so requires,” we are of the opinion that appellants should be allowed to file their amended complaint. See Haag v. Phillips, 333 So.2d 507 (Fla. 2d DCA 1976); Surette v. Galiardo, 309 So.2d 253 (Fla. 4th DCA 1975); Turner v. Trade-Mor, Inc., 252 So.2d 383 (Fla. 4th DCA 1971); Tucker v. Daugherty, 122 So.2d 230 (Fla. 2d DCA 1960).

While we are not unmindful of appellees’ contention that prejudice would result from the allowance of an amended complaint, we find such contention to be without merit.

Accordingly, the order appealed from is reversed and remanded with directions to allow appellants leave to amend their complaint.

Reversed and remanded with directions.


text:
    Hattie EYSMAN, Personal Representative of the Estate of Stella Ganz, Appellant, v. Warren W. MULLINS et al., Appellees.
    No. 77-295.
    District Court of Appeal of Florida, Third District.
    May 24, 1977.

      Stanley H. Spieler and Scott T. Eber, Miami, for appellant.
    No appearance by counsel for appellees.
    Before BARKDULL, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Defendant, Hattie Eysman, personal representative of the estate of Stella Ganz who held a recorded judgment against certain real property owned by Warren W. Mullins, appellee herein, appeals an order denying her motion to compel discovery.

Plaintiff Central Savings Bank (not a party to this appeal) instituted a mortgage foreclosure action against the subject property and named, among others, as defendants, appellee Warren Mullins by virtue of his ownership of the property and Stella Ganz by virtue of her recorded judgment. At the time this action commenced Mullins no longer resided in Florida and service was perfected on him in Georgia. He failed to answer and default was entered against him. Thereafter, pursuant to a summary final judgment of foreclosure against all defendants, the property was sold at a public sale and after plaintiff bank received the $11,557.63 due under the mortgage, a surplus of $4,116.74 remained. Defendant Ganz then filed a motion for an order directing the clerk to disburse $4,066.57 to her out of the surplus on the ground that she held a judgment lien for that amount which is superior to any claim or estate of any other defendant. Mullins then filed a motion for award of the entire surplus as owner of the subject realty for the reason that the premises constituted his homestead and, therefore, a judgment could not operate as a lien thereon. Thereafter Ganz noticed Mullins for the taking of his deposition and Mullins refused. Appellant, Hattie Eysman, as representative of the estate of Stella Ganz, filed a motion to compel discovery seeking to have Mullins submit to a deposition by oral examination. After a hearing, the trial judge denied the motion. We reverse.

Fla.R.Civ.P. 1.280(b), in effect, provides that discovery may be made of any matter as long as it is relevant to the subject matter of the litigation and, of course, not privileged.

Whether appellant or appellee will prevail on their respective motions for award of the surplus funds revolves around the determination of (1) whether the property was in reality homestead at all times prior to the foreclosure action, and (2) whether the funds retain their homestead character. We, therefore, conclude that the trial judge abused his discretion in denying appellant an opportunity to make inquiry and discovery with respect to the homestead status of the property. Cf. Orlowitz v. Orlowitz, 199 So.2d 97 (Fla.1967).

The order denying appellant’s motion to compel discovery is reversed and the cause remanded to the trial court with directions to grant the motion to compel discovery with any limitations which the trial judge in his discretion may deem necessary or proper.

Reversed and remanded.

      . Ganz did file an answer.

      . A question of fact. See Brady v. Brady, 55 So.2d 907 (Fla.1952).


author: ERVIN, Judge. MILLS, Judge,

text:
    Leonard Robert BOYETTE, Petitioner, v. STATE of Florida PROFESSIONAL PRACTICES COUNCIL, Respondent.
    No. DD-465.
    District Court of Appeal of Florida, First District.
    May 25, 1977.
    Rivers Buford, Jr., Tallahassee, and Phillip K. Beck, Lakeland, for petitioner.
    Thomas W. Lager and Ronald C. LaFace, of LaFace & Baggett, Tallahassee, for respondent.
   ERVIN, Judge.

This is a petition for review of an order of the State Board of Education revoking the teaching certificate of the petitioner, Leonard Robert Boyette, for a period of five years. A petition for revocation of Boyette’s certificate was filed by the Chairman of the Professional Practices Council in which it was alleged that during the 1973-74 school years, petitioner conducted himself in a manner “which seriously reduces his effectiveness as an employee of the school board.” Following a hearing held before a committee of the PPC, the committee entered its findings of fact, conclusions and recommendations. Its sole finding of fact was:

“During the 1973-74 school year Leonard Robert Boyette did commit forcible rape on a fellow school teacher who was a virgin, and thereby conducted himself in a manner which seriously reduces his effectiveness as an employee of the school board.”

Boyette then filed his objection to the committee’s recommendation before the State Board of Education, which entered an order directing that a hearing examiner be appointed from the Department of Administration to hear Boyette’s exceptions and promulgate recommendations to the Board. After hearing argument by counsel and reviewing the record, the hearing officer made his report and recommendations on Boyette’s objections. He made extensive findings of fact and concluded that the record of the proceeding did not contain competent, substantial evidence to support critical findings of fact as set forth in paragraph three of the PPC’s recommended order. It was thereupon recommended that the hearing committee’s findings of fact, conclusions and recommendations not be accepted and that a final order be entered dismissing the charges for failure of proof. The matter then came before the State Board of Education which, by a vote of four of the five members present, rejected the report and recommendations of the hearing examiner and revoked Boyette’s certificate for a period of five years.

Boyette was an assistant football and basketball coach, head track coach and instructor of physical education at Crystal River High School. He began there in the fall of 1973 and was granted a continuing contract in April, 1974. In December, 1973, he was involved in the incident which led to the revocation proceeding. A female elementary school teacher in nearby Inverness agreed to go on a blind date with Boyette. They went to his trailer for dinner. After dinner they sat on the couch in the living room and began kissing. At this point the testimony of Boyette and the teacher conflicts. Boyette testified that while his companion was at first reluctant to go with him into his bedroom, she nevertheless went freely and without resistance. There she engaged in intercourse with him freely and voluntarily and without the exertion of any force on his part, although he admitted to being persistent. The complainant, however, testified that Boyette pulled her off the living room couch and down the hall to the bedroom, and the more she resisted his advances, the more hostile and aggressive he became. It is significant to note, however, as the hearing officer observed, that the victim testified Boyette did not threaten her either verbally or with a weapon; however she found his demeanor threatening. She made a phone call from Boyette’s trailer to her roommate but said nothing of the incident. Following the phone call they engaged in intercourse again.

After being taken home by Boyette, she immediately told her roommate what had transpired and went to bed. No report was ever made to the police of the incident. Nor did she report the incident to the State Board of Education. The following October she was approached by a representative of the PPC and then gave her information concerning the event.

The hearing officer, after examining the transcription of the testimony before the PPC, concluded that it had not been established by a preponderance of the evidence before the PPC that Boyette committed the criminal offense of sexual battery as defined by the applicable Florida Statutes.

His recommendation to the Board stated that since there was no definition of the phrase “forcible sex” of which Boyette was found “guilty,” it was necessary to refer to the criminal statutes relating to sexual battery to determine whether such an offense occurred. He concluded, after referring to the statutes, the record did not establish that Boyette exerted such force as to put the prosecutrix in such fear that she was compelled to submit, nor did it establish that he threatened to use force or violence likely to cause serious personal injury to her, thereby forcing her to submit.

We agree with the hearing officer’s conclusions. While the courts will determine whether there is sufficient evidence to support administrative action which is attacked, and will determine the legal effect of the evidence, they will not ordinarily review conflicting evidence. The question of the weight of the evidence is usually one for the administrative agency and not for the courts, even though the court may have reached a different conclusion on the same testimony. E. g., Hammond v. Curry, 153 Fla. 245, 14 So.2d 390 (1943); Butler v. Carter, 123 So.2d 313 (Fla.1960); Florida State Board of Dental Examiners v. Feinglass, 166 So.2d 686 (Fla. 3rd DCA 1964). Still, our responsibility on review is to determine whether there is substantial competent evidence to sustain the agency’s action. Since the conduct complained of was “forcible rape”, reference to criminal cases where appellate courts have found it necessary to weigh the sufficiency of the evidence involving the offense of sexual battery is instructive.

In O’Bryan v. State, 324 So.2d 713 (Fla. 1st DCA 1976), this court reversed a conviction of rape when the evidence failed to show that any weapons were used, no threats were made and there was no evidence of any injury. We noted that in Bailey v. State, 76 Fla. 213, 79 So. 730 (1918), a conviction for rape was reversed even though the victim was seized by her arm, thrown on the bed and choked, where the evidence failed to show that she had made little or no resistance to the defendant’s advances. We concluded in O’Bryan:

“The offense of forcible rape is never established where the evidence presented by the state fails to show that the act was accomplished by force and against the will of the victim, but only shows that she protested. Bowden v. State, 152 Fla. 715, 12 So.2d 887 (1943).” 324 So.2d at 715.

In the recent opinion of Tibbs v. State, 337 So.2d 788 (Fla.1976), the Supreme Court reversed a conviction for rape and murder even though the victim of the rape identified Tibbs as the perpetrator. The court noted that while there need be no corroboration of the victim’s testimony in a rape case, nevertheless such testimony must be carefully scrutinized.

The Supreme Court quoted the following language from McNeil v. State, 104 Fla. 360, 139 So. 791, 792 (1932), as to the responsibility of an appellate court’s review of the weight of the evidence:

“ ‘While the weight of the evidence and the credibility of the witnesses is ordinarily a matter which is exclusively within the province of the jury to decide, and this court will as a rule not reverse a judgment based upon a verdict returned by the jury and approved by the trial judge, when there is substantial evidence to support the verdict rendered, it is also the rule that the evidence relied on to have this effect must be substantial in character.’ ” 337 So.2d at 791.

True, the above cases involved situations where a defendant’s liberty was at stake. However courts should be no less solicitous of setting aside agency action where an individual’s livelihood is jeopardized as a result of insubstantial or incompetent evidence.

In addition to requiring substantial and competent proof in support of the conduct charged, Section 231.28(1) also requires such proof supporting the conclusion that the commission of such conduct seriously reduced Boyette’s effectiveness as an employee of the school board. Three witnesses testified that Boyette’s effectiveness as a school teacher had been seriously reduced as a result of the incident. Two teachers, both close personal friends of the prosecutrix, who received the information directly from her, testified that they could not work with Boyette again. One of the two teachers was a roommate of the prosecutrix.

Charles Dean, administrative assistant to the superintendent of schools in Citrus County, was accepted as an expert witness on the subject of personal relationships of teachers and their ability to get along with others. A hypothetical question asked was to assume that a male teacher forcibly had intercourse with a female teacher against her will; that two other teachers in the same school system were told of the incident, as a result would such an incident reduce the effectiveness of the male teacher in the school system. Mr. Dean replied he thought it would have an effect. On cross-examination he was asked whether, notwithstanding the occurrence of the reported incident, the male teacher continued his performance as a school teacher and his performance was evaluated superior in every category and as a result thereof, the teacher was placed on continuing contract, would such facts alter his opinion. Mr. Dean qualified his answer by stating that the person’s effectiveness as a classroom teacher would not be reduced. On recross-examination Mr. Dean stated that the incident was community knowledge although he did not state when it did become widely known.

Earl Bramblett, head coach and athletic director at Crystal River High School, first learned of the incident when he was subpoenaed to attend a deposition in April, 1975. Later in August, 1975, he was informed that Mr. Boyette would not return as assistant coach. He stated that Boyette did an outstanding job during the 1973-74 school year, including the months following December, 1973. He joined in a recommendation that Boyette be placed on continuing contract.

William L. Hilliard, former principal at Crystal River High School, had no knowledge of the incident prior to his leaving his position in July, 1974. He recommended to the superintendent of schools that Boyette be placed on continuing contract. This recommendation was signed by the superintendent on March 8,1974. On April 9,1974, Hilliard evaluated Boyette superior in every category in the Citrus County teacher evaluation form, including the categories “responsible and dependable” and “morally upright”. On April 23, 1974, the Citrus County School Board granted him continuing contract.

We can only conclude from this record that the incident became community knowledge after an investigation had been launched by the PPC. Thus the agency’s action made it community knowledge and appears to be the sole motivating force in reducing Boyette’s effectiveness as a teacher. We cannot assume that the Citrus County School Board would have voted to place Boyette on continuing contract more than four months after the occurrence of the incident if indeed it was then community knowledge.

Here the second element of the charge, i. e., that Boyette’s effectiveness as a school teacher was seriously reduced as a result of the conduct complained of, was based almost entirely by the agency upon opinion testimony. As we recently recognized in McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977) where the ultimate facts of a hearing officer’s findings are dependent upon matters of opinion, “a reviewing court will give correspondingly less weight to the hearing officer’s findings in determining the substantiality of evidence supporting the agency’s substituted findings.” McDonald v. Department of Banking and Finance, supra, 346 So.2d 569, p. 579. This rule applies with equal force here where the PPC made certain findings which were recommended by a hearing officer to be rejected, but were accepted by the Board.

It was the responsibility of the agency, acting as trier of facts, to determine whether the complainant’s charge was supported by the necessary quantum of proof as to all the elements of the charge. While we may not substitute our judgment for that of the agency as to the weight of evidence on any disputed finding of fact, Section 120.68(10), nevertheless it is clearly our responsibility to determine whether the findings of fact and conclusions of law of the agency are supported by competent substantial evidence and to set aside or remand action which is not so supported.

For the reasons stated we have determined that the agency order revoking Boy-ette’s certificate was not supported by competent substantial evidence. Accordingly the order of the Board of Education revoking petitioner’s certificate is quashed with directions that the hearing officer’s recommendation that the final order be entered dismissing the charges for failure of proof be substituted therefor.

BOYER, C. J., concurs.

MILLS, J., dissenting.

MILLS, Judge,

dissenting:

I dissent. I would deny the petitioner’s petition for review because, in my judgment, the agency order revoking the petitioner’s teaching certificate is supported by competent substantial evidence which is reflected in the majority opinion.

      . § 794.01(2), Fla.Stat. (1973), which provides that whoever ravishes a person over 11 years of age by force is guilty of a life felony. § 794.-011(4)(b), Fla.Stat. (1975) provides that a sexual battery occurs when a person commits a battery upon another person without such person’s consent and coerces the victim to submit by threatening to use force or violence likely to cause serious personal injury.


text:
    GENERAL GUARANTY INSURANCE COMPANY, a Florida Corporation, Appellant, v. HANSEN ENGINEERING COMPANY, INC., Ralph M. Hansen, Sr., Florence M. Hansen, Ralph M. Hansen, Jr., and Patricia S. Hansen, Appellees.
    No. 76-485.
    District Court of Appeal of Florida, Second District.
    May 25, 1977.
    John W. Hamilton, Ware & Hamilton, St. Petersburg, for appellant.
    No appearance for appellees.
   PER CURIAM.

Appellant, surety company, obtained judgments for substantial damages against appellees as a result of having had to pay for the completion of a condominium when the construction thereof was abandoned by its principal, Hansen Engineering Company, Inc. In this appeal appellant complains that the court failed to award additional damages for certain corrective work accomplished after the completion of the project. Our review of the record indicates that there is competent substantial evidence to support the court’s conclusion that the contractor in whose shoes the appellant stood would not have been legally obligated to incur these additional expenses. Likewise, we find no error with respect to the amount of the award of attorney’s fees.

However, the court awarded appellant interest only from the date upon which this suit was filed. Since the appellant’s principal had abandoned the project, interest should have been computed from the dates of the several payments which appellant was required to make in order to complete the work.

The case is remanded for the recomputation of the interest award. In all other respects, the judgments are affirmed.

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


author: ERVIN, Judge.

text:
    H. O. DUNSON and Linda H. Dunson, Appellants, v. STOCKTON, WHATLEY, DAVIN & CO., Appellee.
    No. BB-407.
    District Court of Appeal of Florida, First District.
    May 27, 1977.
    Rehearing Denied June 24, 1977.

      M. J. Menge, Shell, Fleming, Davis & Menge, Pensacola, for appellants.
    Alan C. Sheppard, Theodore J. Troxel, G. Miles Davis, Nick Geeker, Charles C. Sher-rill, Pensacola, Judson M. Chapman, Tallahassee, Charles Edgar, Jr., for appellee.
   ERVIN, Judge.

This is an appeal by the Dunsons from a final judgment of foreclosure in favor of the mortgagee, Stockton, Whatley, Davin & Company. On January 29, 1973, the Dun-sons executed a contract to purchase a lot from Mr. and Mrs. Roy L. Campbell for $20,000.00. On April 20, 1973, the Dunsons entered into an agreement with Char Pal, Inc., a construction company, under the terms of which Char Pal was to construct a house, according to certain plans and specifications to be approved by the Veterans Administration, on the lot which the Dun-sons had contracted to purchase from the Campbells. The contract provided that Char Pal would have the completed house available for occupancy within 90 days from the start of construction. By the terms of the contract, the Dunsons would pay Char Pal $48,150.00 for the house, the cost of the lot and closing costs. Stockton was then furnished a copy of the construction contract.

On June 9, 1973, the warranty deed from the Campbells to the Dunsons was recorded, and on the same day the Dunsons executed a deed covering the same property to Char Pal. Mr. Charles Edgar, Jr., president of Char Pal, then executed a promissory note for $43,425.00 payable to Stockton, as well as a mortgage covering the property to secure the loan. The mortgage contained a future advance clause, not to exceed five years from date of execution, providing that the total amount of indebtedness would not exceed twice the principal amount stated in the promissory note. Pri- or to furnishing the construction loan to Char Pal, Stockton requested that the Dun-sons apply to the V.A. for a commitment that the V.A. would insure a permanent loan of $47,950.00 which Stockton intended to make to the Dunsons when the house was completed. In due time, the Dunsons and the plans and the specifications were approved by V.A. and the needed commitment was issued.

In the fall of 1973, Char Pal encountered financial difficulties and construction was delayed because Char Pal’s sub-contractors would not proceed with the construction of the house, or several other houses which Char Pal had under construction at the time, without some assurance that they would be paid. During the fall of 1973, it was necessary for Stockton to assume duties not usually associated with a mere mortgagee. From the latter part of 1973 to about the end of 1974, all checks written on Char Pal’s banking account had to be countersigned by Mr. Hugh Graham, manager of Stockton’s Pensacola office. It was not until January of 1974 that the construction of the house actually commenced. In October, 1974, Char Pal and Stockton decided that it would require an additional $5,000.00 above the amount initially loaned to Char Pal. On October 31, 1974, Char Pal executed a promissory note for $5,000.00 payable to Stockton and a mortgage modification agreement. The Dunsons had no actual knowledge of this note and the mortgage modification.

In November or December, 1974, Stockton assumed further control over Char Pal’s operation. Mr. Sid Gervin from Stockton’s Jacksonville office was moved to Pensacola and commenced operating out of Char Pal’s office. Charles Edgar, Jr., president of Char Pal, was placed on Stockton’s payroll and paid $500.00 per week to supervise construction of the Dunson’s house and the other houses Char Pal had under construction. All checks written on Char Pal’s banking account were signed by either Mr. Graham or Mr. Gervin of Stockton after December, 1974.

In December, 1974, Art Zachary and Sid Gervin from Stockton met with the Dun-sons at the site where the Dunsons’ house was being constructed. They advised the Dunsons that Stockton was taking over the construction of the house and that the Dun-sons could expect to move into the house by the end of January, 1975. After the house had been “dried in” the Dunsons began making certain improvements to the house over and above that which was required in the plans and specifications. The Dunsons expended approximately $8,000.00 of their own funds in making the fixed improvements to the property which they desired.

On March 24, 1975, Stockton wrote Char Pal a letter advising Char Pal that Stockton had advanced approximately $12,000.00 more to Char Pal than Char Pal would receive from the Dunsons through the sale of the house for $48,150.00. The purpose of the letter was to advise Char Pal that Stockton would require full payment of the sums borrowed by Char Pal at closing. A copy of the letter was forwarded to Mr. Dunson. On May 3, 1975, the Dunsons moved into the house, ostensibly to protect it from vandalism. The house was not completely furnished and, according to Mr. Sid Gervin, it would take from $800.00 to $2,000.00 to complete construction. The Dunsons offered to pay Stockton the amount owed to Char Pal under the contract, $48,150.00, but Stockton refused the offer.

On August 19, 1975, Stockton initiated foreclosure proceedings against the property. The court dismissed the Dunsons’ counterclaim against Stockton for damages and disallowed their claim for credit for improvements made to the property. In its order, the court stated that the affirmative defenses and counterclaim had no legal foundation because the Dunsons deeded the property involved to Char Pal for the express purpose of permitting Char Pal to obtain financing for the construction of a dwelling upon the property. The court concluded that the only right the Dunsons had in the litigation was the right of redemption. Later, the court entered a final judgment holding that Stockton’s lien on the property by virtue of the mortgage it held from Char Pal was superior to the interests of the Dunsons and that Stockton was entitled to foreclose its mortgage against all named defendants. However, the court forfeited all sums for interest payable to Stockton, holding that Stockton was chargeable with the delays by Char Pal in the completion of the house. The final judgment stated in part:

“(2) That because of its dealings with the property through its agents at the time of and subsequent to the making of said loan the plaintiff is chargeable with the delays by Char Pal, Inc., in the completion of the home upon said property the effect of which, in equity, requires a forfeiture of any sums for interest upon said construction loan and advances and any claim by the plaintiff for rentals for the use and occupancy of said premises by the defendants, Dunson, to this date;

Thus the court made a specific finding that Stockton was chargeable with the delays by Char Pal, Inc., because of its dealings with the property through its agents.

The Dunsons argue that since Stockton was fully aware of the contract between them and Char Pal prior to Char Pal’s execution of the mortgage to Stockton that Stockton’s rights as a mortgagee were inferior to those of the Dunsons. They argue: (1) That Char Pal’s interest in the property at the time it executed a mortgage to Stockton was no more than a naked legal title held as a security interest which by operation of law was transformed into a personal property right, and as a result Stockton acquired a security interest in Char Pal’s interest in the contract only— but did not acquire a lien against the real property. (2) That since Stockton knew the mortgagor, Char Pal, had previously contracted to sell the property, Stockton was then subject to the vendees’ right to purchase the property for the amount agreed upon with the mortgagor, and any lien it acquired on the property was inferior to such right to purchase.

The rule is that a purchaser under an executory contract of sale has only an equitable interest in the land, thus a subsequent grantee of the vendor will take free from that interest if he is entitled to protection as a bona fide purchaser. Marion Mortgage Company v. Grennan, 106 Fla. 913, 143 So. 761 (1932). However a person who takes a conveyance but is not entitled to protection as a bona fide purchaser takes subject to the interest of another under an earlier agreement by the vendor to convey. Tate v. Pensacola, Gulf, Land and Development Co., 37 Fla. 439, 20 So. 542 (1896). In such a situation, the subsequent grantee takes the land impressed with the trust in favor of the original vendee.

The Dunsons’ argument might have merit had they not conveyed the property by deed to Char Pal. They knew that Char Pal intended to obtain financing for construction of the home from Stockton. Mr. Edgar had informed the Dunsons that he required the deed in order to mortgage the property to Stockton to obtain financing. Moreover, their contract with Char Pal stated that the seller, Char Pal, would pay all costs in connection with interim construction loan financing.

It has long been an established rule of law that “one who assumes to convey an estate by deed is estopped, as against the grantee, to assert anything in derogation of the deed.” 12 Fla.Jur. Estoppel and Waiver section 13. Additionally, the fact that the Dunsons may not have had actual knowledge that advances were made by Stockton to Char Pal above the face amount stated in the contract to sell is beside the point. The Dunsons knew that a mortgage would be executed between Char Pal and Stockton. Once that mortgage was recorded they were on constructive notice of the contents of the mortgage, including the future advance clause allowing advances up to double the principal amount stated in the mortgage.

The Dunsons’ argument as to whether Stockton, because of its actions, should be estopped from claiming its interests were superior to the Dunsons’ in the property has more merit. During the latter part of 1973, the relationship between Stockton and Char Pal became more than that of merely mortgagee-mortgagor. Because of the increasing financial difficulties which Char Pal encountered, Mr. Graham of Stockton countersigned all checks written on Char Pal’s banking account. Stockton inspected the work and knew that Char Pal was not progressing satisfactorily with the job. In addition, the loan agreement between Stockton and Char Pal called for the dwelling to be completed within 180 days after construction commenced. Construction, however, did not actually commence until January, 1974. As of the date the foreclosure suit was filed by Stockton, August 19, 1975, the house still was not completed. Nevertheless Stockton encouraged the Dun-sons to keep their loan commitment alive with the Veteran’s Administration, and in fact on July 16,1974, Mr. Graham wrote the V.A. advising it the Dunsons wished to do so.

The court was understandably concerned by the delays involved, so much so that its final judgment of foreclosure precluded Stockton from charging any interest on the construction loan and specifically held that Stockton was chargeable with the delays caused by Char Pal. After Mr. Edgar had been placed upon Stockton’s payroll, the take-over of Char Pal’s operations by Stockton became complete. The separate identities of lending institution and construction company were extinguished and the identities merged into one, as did the identities of mortgagor and mortgagee.

While the Dunsons are estopped by the deed they executed to Char Pal, knowing that Char Pal would execute a mortgage to Stockton as a result of their conveyance, Stockton, once it assumed complete control of Char Pal’s operations, also became es-topped from disregarding the construction contract entered into between the Dunsons and Char Pal.

After Stockton took over Char Pal’s operations, it became subject to the terms of the construction contract to the same extent as Char Pal. And the contract’s provisions then became enforceable against Stockton. The contract under these circumstances may be considered an equitable mortgage. There are a number of situations in which instruments which are not effective at law are regarded as such at equity and are as binding on the parties as if mortgages in due form had been properly executed. 22 Fla.Jur. Mortgages section 11.

In Atlantic Federal Savings & L. Ass’n v. Kitimat Corp., 143 So.2d 719 (Fla.2nd DCA 1962), Mr. and Mrs. Elmer Green and Kiti-mat Corporation entered into an agreement to purchase in which it was provided that the Greens would reserve unto themselves possession of their residence until Kitimat, the seller, delivered an apartment ready for occupancy by the Greens. It was understood by the parties that the value of the Greens’ home was $59,000.00. The Greens, simultaneously with the execution of the agreement, conveyed by warranty deed and bill of sale the real estate and certain personal property to Kitimat. At the same time Kitimat gave a mortgage on the real estate it had obtained from the Greens to Atlantic Federal Savings and Loan Association in the amount of $33,000.00. The attorney who represented Kitimat in the Green transaction also represented Atlantic. Kitimat defaulted on its mortgage to Atlantic and a foreclosure suit followed. The trial court in its final decree of foreclosure held that the equities were with the Greens and that the Greens had a valid and existing equitable mortgage lien in the amount of $59,000.00 against the property. In affirming, the Second District Court of Appeal stated that the Greens’ interest in the property was that of an equitable lien. The court then quoted the following from Phelps v. Higgins, 120 So.2d 633, 635 (Fla.2nd DCA 1960):

“ ‘Equitable liens may arise, by operation of law from the conduct of the parties, from a variety of transactions to which equity will cause them to attach.’ ” Id. •at 722.

Compare Lawrence v. Cameron Savings and Loan Association, 395 S.W.2d 452 (Mo.1965), in which the court held that a constructive trust would be imposed in favor of the property holders, the Lawrences, who conveyed by deed 20 acres to a contractor with the oral understanding that the contractor, one Benson, would develop the property into a subdivision, construct houses thereon and obtain financing from the loan association. It was also agreed that the contractor would reconvey any unsold lots to the Lawrences. The loan association’s secretary-treasurer was aware of the terms of the oral agreement prior to advancing a loan to Benson, who in turn gave the association a note and a deed of trust on all lots in the subdivision as security for the note. Later, the contractor defaulted on the payments due and the deed of trust was foreclosed.

On appeal the Missouri Supreme Court affirmed the judgment of the lower court which held that a constructive trust would be imposed against the association in favor of the Lawrences. In answer to the association’s argument that the trial court’s judgment, finding that the Lawrences were the owners of nine lots which were not built upon, was contrary to the evidence since the property was conveyed to the contractor by warranty deed vesting in him a fee simple title without exceptions or reservations, the court replied:

“Under the facts in evidence, however, the deed conveyed only the bare legal title and the Bensons, and upon foreclosure the association, took the title subject to the equitable right of the grantors to be reinvested with the title upon the contingency agreed upon. Equity will impose a constructive trust in the unsold lots in favor of the original grantors who have been deprived of their property by the acts of the foreclosing mortgagee which, with full knowledge of all the surrounding facts and circumstances, wrongfully repudiated the arrangement and has sought to retain the property for its own use and benefit.” 395 S.W.2d at 459.

A significant California Supreme Court opinion held liable a savings and loan association, which had exercised extensive control over a home construction enterprise, to a purchaser of one of the homes constructed for consequences resulting from construction defects. In Connor v. Great Western Savings and Loan Ass’n, 69 Cal.2d 850, 73 Cal.Rptr. 369, 447 P.2d 609, 39 A.L.R.3d 224 (1968), the defendant savings and loan association was deeply involved in the development of a residential housing tract along with the contractor, Conejo Valley Development Company. The loan association had agreed to supply the funds necessary to enable the developer to purchase the land in return for the association’s right to make construction loans on the homes to be built and the right of first refusal to make long-term loans to the buyers of the homes.

The court rejected the buyers’ contention that the loan association and the developers comprised a joint venture, stating that there was no evidence of an agreement between the parties relating to a community of interest in a common business undertaking and an understanding as to the sharing of profits and losses and a right of joint control. Nevertheless, the court held that the association owed a duty to the home buyers in the development even though it was not in privity of contract with any of the buyers except as a lender. The court’s opinion holding the association subject to liability was based in great part to the extent of control which the association exercised over the developer. Observe the following:

“Even though Great Western is not vicariously liable as a joint venturer for the negligence of Conejo, there remains the question of its liability for its own negligence. Great Western voluntarily undertook business relationships with South Gate [another developer] and Cone-jo to develop the Weathersfield tract and to develop a market for the tract houses in which prospective buyers would be directed to Great Western for their financing. In undertaking these relationships, Great Western became much more than a lender content to lend money at interest on the security of real property. It became an active participant in a home construction enterprise. It had the right to exercise extensive control of the enterprise. Its financing, which made the enterprise possible, took on ramifications beyond the domain of the usual money lender. It received not only interest on its construction loans, but also substantial fees for making them, a 20 percent capital gain for ‘warehousing’ the land, and protection from loss of profits in the event individual home buyers sought permanent financing elsewhere.” 73 Cal.Rptr. at 376, 447 P.2d at 616.

From the record we find that Char Pal’s operations were taken over by Stockton after Charles Edgar was placed on Stockton’s payroll. This occurred in either November or December, 1974. Any advances made by Stockton after Mr. Edgar became an employee of Stockton were then subject to the terms of the construction contract and the Dunsons could then enforce those terms against Stockton as effectively as they could against Char Pal. The contract at that point became an equitable lien to which Stockton’s mortgage was subordinated. Consequently any advances made by Stockton to Char Pal after Stockton assumed control of Char Pal were also subordinate to the contract.

This cause is remanded to the trial court with directions that it modify its final judgment of foreclosure consistent with the views expressed in this opinion.

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


author: McCORD, Judge. SMITH, Judge,

text:
    Frank LEDLOW, Jr., Appellant, v. STATE of Florida, Appellee.
    No. DD-58.
    District Court of Appeal of Florida, First District.
    May 27, 1977.
    Thomas L. West, Robinson, West & Laud-erback, Daytona Beach, for appellant.
    Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellee.
   McCORD, Judge.

Appellant appeals the order of the trial court denying his motion filed under Fla.R. Crim.P. 3.850 seeking to have vacated the judgment and sentence for aggravated assault. We have considered the briefs and record as to the appeal from the court’s denial of appellant’s motion and find no error.

In addition appellant appeals his conviction for contempt of court and the four-month consecutive sentence therefor imposed by the trial judge at the conclusion of the hearing on appellant’s aforesaid motion. At the conclusion of the hearing on appellant’s motion, the trial court, without previous notice, stated as follows:

“It is further found by this Court, the defendant has filed pleadings that are misrepresentations of facts and possible perjury has been committed by this defendant in the testimony that he has given today; at the time of taking of his plea, as reflected by the record of January 5, 1976; and for the misrepresentations to this Court in his motion as filed; the representations that he made to the Court at the time the plea was taken; and his testimony taken under oath, today, finds this defendant in contempt and sentences him to four months in the County Jail, said four months to run consecutive to Docket Number 75-925-A, imposed upon this defendant on April the 12th, 1976.”

The state further points out that in Bartz v. State, 221 So.2d 7 (Fla. 2 DCA 1969), the District Court of Appeal, Second District, in remanding for an evidentiary hearing on a motion filed under Fla.R.Crim.P. 1.850 (the predecessor to Rule 3.850), stated:

“In our opinion there should be an evi-dentiary hearing on the instant motion to vacate, properly confined and restricted to the one proposition of alleged misapprehension herein discussed. In doing so, we repeat what we have previously said in similar cases, where we have reversed for an evidentiary hearing, that if the evidence at such hearing should develop, to the satisfaction of the trial Judge, that there was no basis or foundation in fact whatever for the sworn allegations as made, we would strongly recommend consideration by the trial court or the State Attorney of either prosecution for perjury or citation for contempt, or both.”

The state apparently contends that the trial judge in the case sub judice correctly followed the recommendations of the District Court of Appeal, Second District, in Bartz. There the court recommended a “citation for contempt.”

It appears that if appellant’s actions constituted contempt of court, such would fall under Fla.R.Crim.P. 3.830 — Direct Criminal Contempt. That rule provides as follows:

“A criminal contempt may be punished summarily if the court saw or heard the conduct constituting the contempt committed in the actual presence of the court. The judgment of guilt of contempt shall include a recital of those facts upon which the adjudication of guilt is based. Prior to the adjudication of guilt the judge shall inform the defendant of the accusation against him and inquire as to whether he has any cause to show why he should not be adjudged guilty of contempt by the Court and sentenced therefor. The defendant shall be given the opportunity to present evidence of excusing or mitigating circumstances. The judgment shall be signed by the judge and entered of record. Sentence shall be pronounced in open court.”

We do not at this point rule upon the question of whether or not appellant’s actions constituted contempt. The procedure required by the aforesaid rule was not followed by the trial court. It is necessary that such procedure be followed in order to afford due process to appellant. The judgment and sentence for contempt of court is therefore vacated.

Affirmed in part and reversed in part and remanded for further proceedings consistent herewith.

RAWLS, Acting C. J., concurs.

SMITH, J., dissents in part.

SMITH, Judge,

dissenting in part:

I do not conceive that appellant is summarily punishable for criminal contempt or that procedural compliance with Fla.R. Crim.P. 3.830 can result in such punishment. Appellant stated at various times that he had four, nine and eleven years of education and he testified his lawyer promised him probation on his plea of guilty, which his lawyer contradicted. Summary contempt proceedings cannot displace a prosecution for perjury, with attendant procedural guaranties for the accused, unless his false testimony had an obstructive effect and “there existed judicial knowledge of the falsity of the testimony.” Mitchell v. Parrish, 58 So.2d 683, 685 (Fla.1952). Here appellant is subjected to contempt proceedings because his testimony was not believed. That, in my view, is insufficient. I would vacate the contempt judgment without remand.


author: PER CURIAM. MILLS, Acting Chief Judge,

text:
    Wilmer H. McDONALD, Appellant, v. Edna Fay McDONALD, Appellee.
    No. AA-219.
    District Court of Appeal of Florida, First District.
    May 27, 1977.
    Rehearing Denied June 22, 1977.

      R. P. Warfield and Louis K. Rosenbloum of Levin, Warfield, Middlebrooks, Graff, Mabie, Rosenbloum & Magie, P.A., Pensacola, for appellant.
    Paul L. Cummings, Pensacola, for appel-lee.
   PER CURIAM.

AFFIRMED.

SMITH and ERVIN, JJ., concur.

MILLS, Acting C. J., concurring in part and dissenting in part.

MILLS, Acting Chief Judge,

concurring in part and dissenting in part:

I concur in part and dissent in part.

Mr. McDonald appeals from a final judgment dissolving the marriage between him and Mrs. McDonald. He contends the trial court erred in awarding Mrs. McDonald permanent alimony of $350.00 a month and in awarding her exclusive use and occupancy of the family home for two years. I agree.

The purpose of alimony is to provide nourishment, sustenance and the necessities of life to a former spouse who has neither the resources nor the ability to be self-sustaining. In determining a proper award of alimony, the court may consider any factor to do equity and justice between the parties. Davies v. Davies, 345 So.2d 817 (Fla. 1st DCA 1977), opinion filed, April 29,1977.

Mrs. McDonald is 39 years of age. She was married at 16 years of age. She has a seventh grade education. During the marriage, she worked as a waitress, supermarket clerk, school bus driver and nurse’s aide. Because of a limited education, she had difficulty holding these jobs. There are no minor children.

Mr. McDonald is employed at an hourly rate of $5.25. During the six months before the final hearing in this case, his gross wages were $872.50 a month. Prior to that time, he received gross wages of approximately $1,000.00 a month, including overtime. He anticipates his gross monthly wage will remain at $872.50 because of plant shutdowns and periodic layoffs.

Mrs. McDonald was awarded lump sum alimony of approximately $10,000.00 and was awarded an interest in real property of approximately $28,000.00. She had a savings account of almost $4,000.00.

Under the facts of this case and the applicable law, the award of $350.00 a month permanent alimony is excessive. However, in order to give Mrs. McDonald an opportunity to complete her éducation, to develop employment skills, to find employment and to provide her with adequate funds during this period, I would not disturb the $350.00 a month award, but I would find that it should be considered as rehabilitative alimony and limited to five years from the date of the final judgment rendered in this case.

Exclusive possession of jointly owned property can only be awarded to a mother with minor children in her custody or as lump sum alimony. Ranes v. Ranes, 311 So.2d 370 (Fla.2d DCA 1975); Saviteer v. McAdoo, 310 So.2d 28 (Fla.2d DCA 1975).

There were no minor children in this case nor was the exclusive use and occupancy of the marital home awarded to Mrs. McDonald as lump sum alimony. The court erred in its award of the use and occupancy of the home by Mrs. McDonald. It necessarily follows that the court has no authority under the facts of this case to restrain Mr. McDonald from partitioning the marital home which has now become a tenancy in common.

I would reverse the award of $350.00 a month permanent alimony to Mrs. McDonald and would reverse the award of exclusive use and occupancy of the marital home by Mrs. McDonald for two years. I would award Mrs. McDonald $350 a month rehabilitative alimony for five years from the date of the final judgment. In all other respects, I would affirm the judgment.

Affirmed in part and reversed in part.


author: HOBSON, Acting Chief Judge.

text:
    Ervin HAYGOOD, Appellant, v. ADAMS DRUGS, INC., a Florida Corporation, Robert L. Dennard, Thomas L. Knox, Carl Adams, Joseph F. Sacco, and James A. Stevens, jointly and severally, Appellees.
    No. 76-1088.
    District Court of Appeal of Florida, Second District.
    May 27, 1977.
    George W. Greer, Clearwater, for appellant.

      John D. Kiernan of Goldner, Reams, Mar-ger, Davis, Piper & Kiernan, St. Peters-burg, for appellees.
   HOBSON, Acting Chief Judge.

In this case plaintiff/appellant appeals an order granting defendants’ motion to dismiss with prejudice his amended complaint and complaint. The sole question on appeal is whether or not the allegations contained in the plaintiff’s amended complaint state a cause of action against the individual defendants for a violation in the sale of securities. We think the allegations were sufficient and vacate the order.

Plaintiff purchased ten shares of unregistered common stock of the defendant corporation on May 2, 1973. He was solicited to make these purchases by one Carl Adams, an officer and/or director of the corporation. Plaintiff subsequently received a certificate evidencing his ten shares of common stock. Thereafter the plaintiff learned that several disclosures concerning the corporation’s financial status had not been made known to him prior to his purchase of the stock. In essence, he believed that had the true financial arrangements been presented he would not have purchased the stock.

Plaintiff then filed a complaint against Adams Drugs, Carl Adams, James A. Stevens, Robert L. Dennard, Thomas L. Knox and Joseph F. Sacco, jointly and severally, seeking rescission from the corporate defendant (Count I) and rescission from the individual defendants (Count II) pursuant to Section 517.21(1), Florida Statutes (1975). Defendants Dennard, Knox, Sacco and Stevens moved to dismiss the complaint as to them for failure to state a cause of action. All asserted that the plaintiff failed to show that any of them “. . . personally participated or aided in any way in making the sale to the purchaser . . . ” as required by Section 517.21(1), Florida Statutes (1975). These motions were granted with leave to file an amended complaint as to Count II.

Plaintiff then filed an amended complaint, incorporating by reference the allegations as to Count I contained in the original complaint. Paragraph 15 of the amended complaint alleged -in substance that:

1) Defendant Adams personally solicited plaintiff to make the stock purchase;
2) Defendants Dennard, Sacco, Knox, Stevans and Adams knew on February 15, 1973 of a stock split in the corporation’s stock;
3) Defendant Dennard prepared the balance sheet on February 28, 1973 which contained no notation of the prior stock split even though Dennard was aware that buyers were being solicited to purchase said stock;
4) This omission of any reference to the stock split enhanced sales of the stock to the extent that had the proper notation been made plaintiff and others would not have purchased said stock;
5) Defendants Dennard, Sacco, Knox, Adams and Stevens as directors of the defendant corporation encouraged and directed said balance sheet to be approved by the corporation and distributed to plaintiff with the knowledge that it was incorrect;
6) Defendants Dennard, Knox, Adams, Sacco and Stevens became aware in mid-April of 1973 that the annual inventory of the stock in trade of the defendant corporation taken on or about March 31, 1973 evidenced a material shortage, which was the cause of a substantial loss not shown in the financial data.-
7) Defendants discussed this shortage in a corporate meeting in April 1973, but secreted such information until after plaintiff’s purchase;
8) Defendants did not update the balance sheet in the possession of plaintiff prior to his sale to reflect the inventory shortage;
9) Defendants knowingly concealed the inventory shortage after they collectively acted to produce a balance sheet for plaintiff and others as an inducement to buy said stock; and
10) The individual defendants were at all times acquainted with the true financial status of the defendant corporation, solicited sales with such knowledge, and used their positions to withhold the true financial condition from plaintiff and others.

Defendants Dennard, Knox and Sacco again moved to dismiss the amended complaint for failure to state a cause of action, asserting once more no demonstration of personal participation or aid in the sale to the plaintiff as required by the statute. The trial court granted this motion with prejudice.

Accepting the facts well pled as true, we find the amended complaint was sufficient to place in issue the role played, if any, by the individual defendants in the sale of the stock to the plaintiff under the auspices of Section 517.21(1), Florida Statutes (1975). In the early case of Nichols v. Yandre, 151 Fla. 87, 9 So.2d 157, 160 (1942) the Supreme Court held with respect to the language contained in Section 517.21(1), “That language implies some activity in inducing the purchaser to invest . .” (emphasis supplied)

Accord, Ruden v. Medalie, 294 So.2d 403 (Fla. 3d DCA 1974). Thus it was held in Nichols that directors who merely ratified a sale made by the president of the corporation, some five months after the sale, were not liable for any misconduct under this statute. A similar result was reached in Ruden where the defendant, an attorney, was held not personally liable for the sale of unregistered securities where his only participation in the transaction was to sign nine debentures in blank as an attesting witness and corporate secretary.

In Ruden, unlike Nichols and the case sub judice, the appeal was taken from a final judgment entered on a directed verdict for the defendant. In addition to factual differences, the posture of the case in Ruden is distinguishable. Here the presumption accorded the plaintiff on appeal from the order dismissing his complaint is such that all reasonable inferences arising from the facts will be admitted. Cf. Bond v. Koscot Interplanetary, Inc., 246 So.2d 631 (Fla. 4th DCA 1971). Plaintiff’s complaint, while not exact as to the role played, if any, by the defendants in the sale, is more than ample to place in issue: 1) knowledge on the part of some or all three defendants in their capacities as officers and/or directors as to the existence of the stock split and inventory shortages; 2) awareness that the composite (balance sheet, income statement, etc.), prepared by Dennard, would be issued and relied upon by prospective investors, despite alleged omissions as to the stock split and loss resulting from inventory shortages; and 3) acts to either conceal collectively or otherwise the existence of such financial data after issuance of the composite, the latter being utilized to induce purchasers to buy.

In essence, then, the plaintiff alleged that the sale was made to him in violation of the Florida Securities law. Moreover, the plaintiff’s demand for relief is clear, i. e., rescission. Thus the complaint was sufficient to withstand the motion to dismiss for failure to state a cause of action. Fla.R.Civ.P. 1.110.

Accordingly, the order below dismissing the amended complaint and complaint with prejudice is vacated and the cause reinstated. The case is remanded for proceedings consistent with the views expressed herein.

McNULTY and GRIMES, JJ., concur.

      . Although the order appealed from grants the motion to dismiss the amended complaint and complaint to defendants Dennard, Knox, Sacco and Stevens, the record fails to show any motion on behalf of James A. Stevens to dismiss said amended complaint. Furthermore, the briefs filed on behalf of the defendants/appel-lees reveals that Stevens is not included as an appellee for purposes of this appeal.

      . We find no merit with the defendants’ contention that plaintiff has failed to allege in either Count I or II that the subject stock transaction was not an exempt transaction under the statute. In fact we believe that all that is required to invoke the remedy under § 517.-21(1), for purposes of stating a cause of action, is some showing of a violation under the securities statute.
      While defendants correctly assert that plaintiff did not allege a specific violation of the securities law, we feel the particular facts set out in paragraph 15 of the amended complaint give rise to a strong inference that a violation has occurred. See e. g. § 517.301, Fla.Stat. (1975) (Fraudulent transactions; falsification of concealment of facts). On remand defendants may require plaintiff, by way of further pleadings, to specify the particular section violated.


author: OTT, Judge.

text:
    Jack E. PONELEIT, Appellant, v. REKSMAD, INC., and Joseph Damsker, Appellees.
    No. 76-238.
    District Court of Appeal of Florida, Second District.
    May 27, 1977.
    Robert H. Willis, Skelton, Willis & Jones, St. Petersburg, for appellant.
    Douglas J. Loeffler, Fox, George, Loef-fler & Downey, Clearwater, for appellees.
   OTT, Judge.

Plaintiff/appellant filed an action for damages against appellee/defendant based upon deceit and fraudulent representations in connection with the sale of a business. Appellees counterclaimed for the balance due on the purchase price of the business as evidenced by a promissory note. Appellant’s defense to the counterclaim was essentially the deceit and fraudulent representations alleged in the main complaint. The jury found for the appellant in the amount of $8,000 on the main claim. The jury also found for the appellant on the counterclaim.

Appellee moved for new trial. In its order on the motion the court found that:

1.) The evidence in this cause is insufficient to support the verdict rendered herein in favor of the plaintiff upon the counterclaim. .
2.) That the evidence in this cause is sufficient to support the verdict rendered herein in favor of the plaintiff and against the defendant upon the issue of liability.
3.) The sum of the verdict rendered in favor of the plaintiff reflects that the jury improperly compromised the amount of the plaintiff’s damages in consideration of the amounts owed upon the counterclaim.
4.) That the granting of a new trial upon the counterclaim alone would render substantial injustice to the plaintiff upon the issue of damages.

The trial court then went on to order a new trial on damages only on the appellant’s complaint and in the entirety on appellee’s counterclaim.

We disagree and therefore must reverse.

The parties negotiated the appellant’s purchase of the appellee’s ladies ready-to-wear business for $18,000. Appellant paid the appellee $12,000 in cash and executed a $6,000 purchase money note for the remainder. The appellant operated the business at a loss and finally closed the doors about a year after the purchase even though the lease term on the premises had not yet expired.

Appellant presented evidence that in the negotiations appellee presented the appellant with alleged sales and use tax returns and an income statement purporting to show the gross sales of the business to be approximately $60,000, gross profit to be approximately $25,500 and a net profit of approximately $7,500. The deal was closed and within the next five months appellant secured copies of the actual sales and use tax returns on file. The true gross sales were shown to be approximately $37,000 with appropriate reductions in gross and net profit.

The trial court instructed the jury that if they found the appellant established fraud and deceit to their satisfaction they should find for the appellant on his complaint and award him the damages they found the evidence supported. He further instructed the jury not to consider damages for the appellee if they found for the appellant on the counterclaim. When the court found the evidence to be sufficient to support a verdict for the appellant on the issue of liability on the main claim, it naturally follows that the jury verdict in favor of the appellant on the counterclaim could — and in this instance did — result. At least no inherent defect has been demonstrated. This is simply another way of saying that in the minds of both the jury and trial court, a case of fraud and misrepresentation had been proven by the appellant as well as his reliance thereon.

It is equally clear that as between the original parties to a negotiable instrument, fraud may be set up as a defense against liability on the instrument (except, of course, against a holder in due course). 4A FlaJur, Bills, Notes, Etc. § 410 (1969). Moreover, a party can successfully defend against liability on a claim by showing that he was fraudulently induced to enter into the contract or transaction upon which such liability is asserted. 14 Fla.Jur. Fraud and Deceit § 61 (1957). Cf., Mutual Finance Co. v. Martin, 63 So.2d 649 (Fla.1953); Heathcote v. Fairbanks, Morse & Co., 60 Fla. 97, 53 So. 950 (1910).

In essence, the jury concluded that the appellant was entitled to recoup $8,000 of the $12,000 he paid to appellee at closing and be relieved of his obligation on the note. The evidence amply supports this result. The trial court either misconceived or misapplied the law to the verdicts in question. The motion for new trial should have been denied and the verdicts together with the judgment thereon allowed to stand.

Reversed and Remanded.

McNULTY, Acting C. J., and GRIMES, J., concur.


text:
    WALTER HARVEY CORPORATION, a Florida Corporation, Appellant, v. Raymond T. O’KEEFE et al., Appellees.
    No. 76-357.
    District Court of Appeal of Florida, Third District.
    May 31, 1977.
    Nard S. Helman, Miami, for appellant.
    Greenberg, Traurig, Hoffman, Lipoff, Quentel & Wright and Alan S. Gold, Miami, for appellees.
    Before HAVERFIELD, NATHAN and HUBBART, JJ.
   PER CURIAM.

Appellant, Walter Harvey Corporation, seeks reversal of a final judgment of foreclosure and on guaranty in this action on a note and mortgage executed in favor of plaintiff Chase Manhattan Realty Trust.

On August 11,1972 the appellant entered into a loan agreement with the Chase Manhattan Realty Trust (hereinafter referred to as the trust) whereby the trust agreed to loan appellant $2,250,000 for the construction of a high-rise office building. Pursuant to the agreement, appellant executed a note and mortgage in that amount in favor of the trust. In addition, Walter B. Harvey, Jr. and his wife executed joint and several guaranties of payment. Thereafter, appellant became in need of additional funds to complete construction; and the parties on August 16, 1974 entered into a modification agreement whereby the trust agreed to loan appellant an additional $450,000 and appellant executed a second note therefor. Subsequently, appellant notified the trust that this amount was not adequate to complete the building. On October 4, 1974 the trust instituted the present action to foreclose on the two notes secured by the mortgage against appellant and Mr. and Mrs. Walter Harvey alleging that appellant was in default in that the trust had disbursed a total of $2,602,780.65, of which nothing had been repaid. Appellant answered admitting the execution of the above instruments and in its affirmative defense and counterclaim alleged the trust had failed and refused to fund the completion of the construction of the office building as agreed. On December 5, 1975 the trial judge found appellant and Mr. and Mrs. Harvey to be in default and entered summary judgment on the foreclosure complaint and appellant’s counterclaim in favor of the trust. The judge reserved ruling on the total amount due the trust. On January 30,1976 a final judgment of foreclosure and on the personal guaranty was entered determining the total amount due under the notes and mortgage was $3,616,765.88 and the trust holds a lien therefor superior to all other claims or encumbrances.

Appellant is contending that the trust is estopped to foreclose the mortgage because the trust had agreed to fund the project until its completion. We cannot agree.

The additional $450,000 was advanced by the trust on the consideration that the amount would be sufficient to complete the project. However, when appellant advised the trust of additional cost overruns which exceeded the $450,000 additional loan, the trust had the right to cease funding the project and exercise its rights under the notes and mortgage. Thus, we find no es-toppel or waiver by the trust of its right to foreclose. Cf. Palatka Federal Savings & Loan Ass’n v. Raczkowski, 263 So.2d 842, 845 (Fla. 1st DCA 1972).

Further, we find no abuse of discretion by the trial judge in denying appellant’s motions for rehearing and to stay foreclosure sale.

Affirmed.


text:
    Edwin R. LAKE and Sheryl Lake, his wife, Appellants, v. Brenda Sweeting COE, Donn A. Coe, and State Farm Mutual Automobile Insurance Company, Appellees.
    No. 76-595.
    District Court of Appeal of Florida, Third District.
    May 31, 1977.
    Vernis & Bowling, Coconut Grove, and Ronald J. Raffony, South Miami, for appellants.
    Kuvin, Klingensmith & Lewis, Coconut Grove, Gus Efthimiou, Jr., Miami, for appel-lees.
    Before HAVERFIELD and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Plaintiff, Edwin Lake, seeks reversal of an adverse final judgment entered pursuant to a directed verdict for the defendants Brenda Coe, Donn Coe and State Farm Mutual Automobile Insurance Company in this action to recover damages for personal injuries.

Brenda Coe was operating a car owned by Donn Coe when suddenly the car struck Edwin Lake. Lake sued Brenda Coe as operator, Donn Coe as owner and their liability insurer, State Farm Mutual Automobile Company. The evidence presented on behalf of Brenda at trial reflects that she was driving within the speed limit along the roadway when suddenly Lake’s body struck her windshield. Brenda testified that she did not see Lake until he was in actual contact with her vehicle. Lake, on the other hand, claimed that he was working on his motorcycle on the sidewalk when Brenda drove off the pavement and struck him. However, his actual testimony reflects that he had no personal recollection of how he sustained injuries or of any events related to the collision. He testified that the last thing he remembered was oiling the chain on his motorcycle and the next thing he remembered was waking up in the hospital. All the physical evidence presented on behalf of the defendants was in accord with Brenda’s testimony that the accident occurred on the roadway as Lake rode his motorcycle into the path of her vehicle. The investigating officers’ testimony was to the effect that the collision occurred on the roadway and there were no marks evidencing that Brenda’s vehicle left the paved road surface. Defendants’ accident reconstruction expert also corroborated Brenda’s version of the accident. At the close of plaintiff’s case and again at the close of all the evidence, defendants moved for a directed verdict. The motion was granted and judgment was entered for the defendants.

Plaintiff Lake contends the trial court erred in granting defendants’ motion for directed verdict because the evidence created an inference or question as to whether Brenda was maintaining a sharp and attentive lookout in order to keep herself prepared to meet an emergency as in the instant case. We cannot agree.

Plaintiff seeks to create an inference that Brenda left the roadway and struck him as he was working on his motorcycle. There is no question that plaintiff does not remember any of the details preceding the accident. The physical evidence presented corroborates Brenda’s version that the accident took place on the paved roadway surface and that she was driving within the speed limit. We conclude there was no reasonable inference to go to the jury and the trial judge at the close of the evidence correctly granted defendants’ motion for directed verdict. Cf. Baro v. Wilson, 134 So.2d 843 (Fla. 3d DCA 1961); Tranter v. Wible, 191 So.2d 595 (Fla. 4th DCA 1966); Bell v. A. A. Holiday Rent-A-Car, Inc., 304 So.2d 535 (Fla. 3d DCA 1974); Novitch v. Nu Way Auto Service, 315 So.2d 203 (Fla. 3d DCA 1975).

We also considered plaintiff’s remaining points on appeal and find no reversible error.

Affirmed.


text:
    Frank FREEMAN, Appellant, v. EQUILEASE CORPORATION, etc., Appellee.
    No. 76-768.
    District Court of Appeal of Florida, Third District.
    May 31, 1977.

      Lewis W. Miles, II, Miami, for appellant.
    Smith, Mandler, Smith, Werner & Jaco-bowitz, Miami Beach, and Jeffrey A. Sar-row, Joe N. Unger, Miami, for appellee.
    Before PEARSON, HAVERFIELD and HUBBART, JJ.
   PER CURIAM.

Appellant, Frank Freeman, seeks reversal of a final summary judgment entered for Equilease Corporation in this action to recover $28,366.67 due on a note executed by Transatlantic Airlines No. 2, Inc. in favor of Equilease and endorsed and guaranteed by Freeman.

Plaintiff-appellee, Equilease Corporation, filed a complaint against Frank Freeman to recover $28,366.67 due on the subject note after Transatlantic defaulted thereon. Freeman answered and raised as affirmative defenses lack of consideration and usury. He also filed a counterclaim for usury which was dismissed with leave to amend. Equilease established through discovery the execution and genuineness of the note and default and filed a motion for summary judgment. Freeman filed an affidavit in opposition to the motion alleging that the subject note was given to cover a “bonus” payment concerning the financing of an aircraft and this bonus was usurious. After a hearing, the trial court entered summary final judgment for Equilease. We affirm.

The record reflects that the subject note was valid on its face, and execution and default was admitted. Further, Freeman’s counterclaim for usury was dismissed with leave to amend; but Freeman failed to file an amended counterclaim. Last, Freeman’s affidavit in opposition to motion for summary judgment is insufficient since he merely alleged a conclusion of law without any supporting facts. Cf. Sherman v. Weintraub, 132 So.2d 421 (Fla.3d DCA 1961).

Affirmed.


text:
    Benjamin POLLOCK, Appellant, v. T & M INVESTMENTS, INC., et al., Appellees.
    No. 76-809.
    District Court of Appeal of Florida, Third District.
    May 31, 1977.

      George Schwartz, Miami Beach, for appellant.
    No appearance by counsel for appellee.
    Before HAVERFIELD, NATHAN and HUBBART, JJ.
   PER CURIAM.

Plaintiff, Benjamin Pollock, appeals a contempt order fining the defendant, T & M Investments, Inc., $500.

Pursuant to a May 20, 1974 final judgment, commencing August 1, 1974 T & M was directed to pay Pollock $175 per month. T & M failed to make the required monthly payments and on January 31,1975 an order of contempt was entered directing T & M to pay Pollock $575 plus costs and attorney’s fees. T & M still failed to make payments and on March 26, 1975 the court entered a second contempt order directing T & M to pay Pollock $875 now owing plus the sum of $575 due under the previous order of January 31 for a total of $1,450. In addition, T & M was ordered to pay a fine of $50 per day commencing 10 days after March 26 and to continue until such time as T & M complies with the March 26 order. T & M did not comply and on April 23,1976 a third order of contempt, which is the subject of this appeal, was entered fining T & M an additional $500 for its chronic failure to abide by the previous orders and ordering that Pollock recover from T & M the sum of $1,500 for unpaid monthly payments accrued through January 1976 plus unpaid attorney’s fees and court costs.

Pollock contends that the trial court erred in the entry of this April 23 order fining T & M only $500 because as of that date T & M was in arrears for approximately $23,000 based upon the previous contempt order of March 26, 1975, and the failure to require payment for that amount resulted in an improper abandonment of the previous March 26 contempt order. We cannot agree.

The appealed contempt order does not support this contention as the $500 fine was in addition to any other previously imposed fines and, therefore, in no way waives, abandons or changes the accrued payments under the previous contempt orders.

Affirmed.


text:
    FLORIDA EAST COAST RAILWAY COMPANY, Appellant, v. CITY OF MIAMI, Appellee.
    No. 76-913.
    District Court of Appeal of Florida, Third District.
    May 31, 1977.

      Shutts & Bowen, William P. Simmons, Jr. and Eric B. Meyers, Miami, for appellant.
    George F. Knox, Jr., City Atty. and Michel E. Anderson, Asst. City Atty., for ap-pellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Florida East Coast Railway Company (FEC), appellant, seeks reversal of an order of taking of three parcels of land by the City of Miami for use as a public park in an eminent domain proceeding initiated pursuant to the “quick taking” provision of Chapter 74, Florida Statutes (1975).

A brief history of this protracted litigation reflects that on June 18, 1971 the Miami City Commission adopted resolution no. 42,569 directing the city attorney to institute condemnation proceedings to acquire a 33-acre tract of land owned by the FEC located on the east side of Biscayne Boulevard for public purposes and, pursuant thereto, on September 3 the City filed a petition in eminent domain with a legal description of the 33-acre tract attached. On September 9 the city commission passed resolution no. 42,745 determining the necessity for the taking of the 33-acre tract for use as a public park and directing the condemnation of the property with a legal description attached. Then, on September 14 the City filed amendments to its eminent domain petition with the September 9 resolution no. 42,745 attached and a notice of lis pendens. In response, FEC on October 18 filed an answer and counterclaim contesting the City’s right to condemn the property. This issue was litigated to our Supreme Court which in the latter part of 1975 ruled in favor of the City. See Florida East Coast Railway Co. v. City of Miami, 321 So.2d 545 (Fla. 1975). After remand of the cause to the trial court, FEC in December 1975 filed a motion for leave to file an additional defense on subject matter jurisdiction. The motion was granted and on December 29 FEC filed an amended defense of lack of jurisdiction over the subject matter for the reasons that (1) the City in its petition in eminent domain filed September 3, 1971 failed to set forth the authority under which the property is to be acquired and the necessity of the public purpose for which that property is sought as required by law; and (2) the authorizing resolution (42,569) of the City attached to the petition was insufficient as a matter of law. The trial court dismissed the cause and granted the City leave to file an amended complaint within 10 days. No appeal was taken from this order and the City on January 23, 1976 filed an amended petition and attached the original June 18, 1971 authorizing resolution (no. 42,569) together with a legal description of the 33-acre tract sought to be taken. On January 28 FEC responded with a motion to dismiss for the failure of the City to attach to its petition a proper authorizing resolution in that the attached resolution of June 18, 1971 failed to adequately set forth (1) the necessity for the taking of the property, (2) for what public purpose the property is to be taken, (3) the estate and interest to be taken and (4) the legal description of the property. After a hearing the trial court denied this motion on March 4, 1976. Also, on March 4 the City of Miami Commission passed resolution no. 76-275 authorizing the city attorney to proceed with a declaration of taking only as to three non-contiguous parcels (designated as A, B and C respectively) of the original 33-acre tract with a legal description of the entire tract attached. On March 19 the City filed an amended declaration of taking seeking only parcels A, B and C with a legal description of each parcel and the March 4 resolution no. 76-275 attached. On April 8, 1976 a hearing was held on the March 19 amended declaration of taking and FEC again raised the jurisdictional question. Thereafter, on April 22, 1976 the trial court entered an order of taking as to these three parcels for the use of the City upon the City’s depositing the sum of $3,360,000 into the registry of the court. In this April 22 order the court expressly recited that it had jurisdiction of the proceedings. FEC appeals the order of taking.

FEC first contends that the trial court lacked jurisdiction over this cause because the City’s amended petition of January 23, 1975 fails to show the adoption of a proper resolution authorizing the action prior to the filing of the January 1976 petition and this jurisdictional defect could not be cured by the subsequently adopted resolution of March 4, 1976.

The established law is that a petition in condemnation must be accompanied by an authorizing resolution adopted prior to the initiation of eminent domain proceedings. See Section 73.021, Florida Statutes (1975); Tosohatchee Game Pres., v. Central & So. Fla. Fl. C.D., 265 So.2d 681 (Fla. 1972); Gulf Power Company v. Stack, 296 So.2d 572 (Fla. 1st DCA 1974); Salfi v. Division of Admin., State Dept. of Transp., 312 So.2d 781 (Fla. 4th DCA 1975). In addition, the authorizing resolution must set forth, inter alia, the use for which the property is to be acquired and that the property is necessary for that use, an adequate description of the lands sought to be taken, and the estate or interest in the property which the condemnation authority intends to acquire. See Section 73.021, Florida Statutes (1975), supra; City of Miami v. Wolfe, 150 So.2d 489 (Fla. 3d DCA 1963): Chalmers v. Florida Power & Light Company, 245 So.2d 285 (Fla. 1st DCA 1971). Resolution no. 42,569, passed and adopted by the City on June 18, 1971, attached to the City’s amended petition of January 23, 1975 reads in toto:

$ Sf! ijt S}{ Sfc Sfc
“RESOLUTION NO. 42569
“A RESOLUTION AUTHORIZING AND DIRECTING THE CITY ATTORNEY TO INSTITUTE CONDEMNATION PROCEEDINGS TO ACQUIRE FOR PUBLIC PURPOSES APPROXIMATELY 33 ACRES OF LAND OWNED BY THE F.E.C. RAILWAY COMPANY ON THE EAST SIDE OF BISCAYNE BOULEVARD IN THE DOWNTOWN AREA OF THE CITY OF MIAMI ,
“BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA:
“That the City"Attorney is hereby directed to institute condemnation proceedings to acquire for public purposes approximately 33 acres of land owned by the F.E.C. Railway Company on the east side of Biscayne Boulevard in the Downtown area of the City of Miami.
“PASSED AND ADOPTED this 18th day of June, 1971.”

This resolution is grossly inadequate as it fails to set forth the necessity for the taking of the property, the public purpose for which the property is to be taken, the estate or interest to be taken and a legal description of the property. Thus, the trial court lacked jurisdiction to entertain the instant condemnation proceeding and erred in denying FEC’s motion to dismiss. Further, this jurisdictional defect could not be cured by any subsequently adopted resolution (i.e. resolution no. 76-275 of March 4, 1976) in that a petition in condemnation must be accompanied by an authorizing resolution adopted prior to the initiation of the eminent domain proceedings. See Tosohatchee Game Pres., supra. The proper procedure would have been for the City on March 19, 1976 to have instituted an entirely new condemnation proceeding with the prior adopted authorizing resolution of March 4 attached. See Salfi, supra.

For the reasons stated, the appealed order of taking is vacated and the cause remanded to the trial court with directions to dismiss this proceeding.

Reversed and remanded.

      . This resolution is inadequate for the reasons which will be enumerated later herein.

      . FEC unsuccessfully attempted to appeal this denial order by writ of certiorari.

      . Consisting of approximately four acres in total.


text:
    George Thomas STANLEY, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1156.
    District Court of Appeal of Florida, Third District.
    May 31, 1977.
    Rehearing Denied June 24, 1977.
    Richard H. Belz, Gainesville, for appellant.
    Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., and PEARSON and HUBBART, JJ.
   PER CURIAM.

Affirmed. See: Stanley v. State, 124 So.2d 743 (Fla. 3d DCA 1960); Baxley v. State, 192 So.2d 510 (Fla. 1st DCA 1966); Houser v. United States, 508 F.2d 509 (8th Cir. 1974).


author: PEARSON, Judge.

text:
    Herman BISTRICER and Betty Bistricer, Appellants, v. Joseph W. EHRENREICH and Atlantic Coast Development Corp., etc., et al., Appellees.
    No. 77-43.
    District Court of Appeal of Florida, Third District.
    May 31, 1977.

      Levey & Rubenstein, P.A., Miami, for appellants.
    No appearance by counsel for appellees.
    Before PEARSON, HAVERFIELD and HUBBART, JJ.
   PEARSON, Judge.

The defendants, Herman Bistricer and Betty Bistricer, appeal an order denying their motion to dismiss for failure to acquire personal jurisdiction over them pursuant to Sections 48.161 and 48.181, Florida Statutes (1975). It affirmatively appears from the complaint filed that the plaintiffs do not allege that these defendants are non-residents of the State of Florida or, in the alternative, that they are concealing themselves.

The motion should have been granted pursuant to the rule set forth in Red Top Cab & Baggage Co. v. Holt, 154 Fla. 77, 16 So.2d 649 (1944). See also Chase Manhattan Bank v. Banco Del Atlantico, 343 So.2d 936 (Fla. 3d DCA 1977), and Nichols v. Seabreeze Properties, Inc., 302 So.2d 139 (Fla. 3d DCA 1974).

Reversed.

      . The appellees have failed to file a brief in support of the order that they received from the trial court.


author: HENDRY, Chief Judge.

text:
    L. R. BICKLEY and Colonial Penn Insurance Company, Appellants, v. Joan Bernard CASTILLO, Appellee.
    No. 77-146.
    District Court of Appeal of Florida, Third District.
    May 31, 1977.
    Rehearing Denied June 24, 1977.

      Blackwell, Walker, Gray, Powers, Flick & Hoehl and Robert G. Young and Bradford Swing, Miami, for appellants.
    Vogler & Postman, Miami, for appellee.
    Before HENDRY, C. J., and BARKDULL and NATHAN, JJ.
   HENDRY, Chief Judge.

Appellants, L. R. Bickley and his insurer, Colonial Penn Insurance Company, defendants below, take this interlocutory appeal from a final summary judgment on liability, rendered in favor of appellee, Joan Bernard Castillo, plaintiff below.

Appellant Bickley drove his automobile into a service station for repairs. He was met there by one Vincente Almeida, a mechanic for the service station. Almeida, who spoke little or no English, drove with Bickley to work and then returned the vehicle to the station. Later that morning, Almeida, assuming the vehicle was brought in to correct a prior stalling problem, road-tested the vehicle. In an attempt to simulate the stalling problem, Almeida lost the use of the power brakes, ran a red light at an intersection and struck appellee Castillo’s vehicle, causing her injuries and property damage.

After the initial pleadings were filed, which included, inter alia, crossclaims filed by the various defendant-insureds against such other relating to the issue of insurance coverage, the coverage issue was severed from the issue of the various defendants’ liability to the plaintiff.

Subsequently, appellee filed a motion for summary judgment against all defendants. Both Bickley and Colonial Penn thereupon filed their motions for summary judgment against appellee, as did other defendants. Summary judgment on the issue of liability was entered in favor of appellee and against all defendants, including appellants, with the exception of Almeida’s insurer. This interlocutory appeal follows.

The question to be determined by this appeal is whether the dangerous instrumentality doctrine applies to hold an owner of a vehicle liable for damages to a person injured by said vehicle on the public highway, as a result of the negligent road testing of the vehicle by a garage repairman, who maintained both control and custody over the vehicle. We hold that the above doctrine does not apply, and reverse.

The recent case of Harfred Auto Repairs, Inc. v. Yaxley, 343 So.2d 79 (Fla. 1st DCA 1977) is dispositive of the question. There, the court held that the owner of a vehicle who places his automobile in the custody of a repair shop for repairs, and has no knowledge of or control over the operation of the vehicle during that time, is not liable to a third person for injuries caused by the negligent operation of said vehicle by the repairman, absent negligence on the part of the owner, notwithstanding the fact that the negligent act occurred on the public highway.

The rationale for the above is founded upon the principle that the dangerous instrumentality doctrine as applied to automobiles is grounded exclusively upon re-spondeat superior (master-servant), and ga-ragemen and mechanics are generally independent contractors. Petitte v. Welch, 167 So.2d 20 (Fla. 3d DCA 1964); Harfred, supra, Annotation, 35 A.L.R.2d 804 (1954).

Accordingly, summary judgment is hereby reversed and the cause is remanded with directions to enter a summary judgment in favor of appellants Bickley and Colonial Penn Insurance Company.

Reversed and remanded with directions.

      . Both Almeida and the service station, G.M. Texaco, and their respective insurers were also defendants below, though not parties to this appeal.


text:
    Angel DOMINGUEZ, Appellant, v. Jack LOPEZ et al., Appellees.
    No. 77-236.
    District Court of Appeal of Florida, Third District.
    May 31, 1977.
    Shalle Stephen Fine, Miami, for appellant.
    Maurice M. Diliberto, Miami, for appel-lees.
    Before PEARSON, HAVERFIELD and HUBBART, JJ.
   PER CURIAM.

Angel Dominguez appeals an order discharging lis pendens in an action seeking dissolution of a partnership and an accounting.

Angel Dominguez filed a complaint for an accounting and dissolution of his partnership with Jack Lopez, appellee herein. Dominguez alleged that the partnership was formed for the purpose of purchasing and developing certain parcels of real estate and that he contributed substantial sums of money to the partnership. The gravamen of the complaint is that Lopez who formed the corporate defendants Happy Realty, Inc. and Sagitario Construction, Inc. diverted partnership funds into these corporations without according Dominguez his equitable right to 50% ownership therein and, further, acquired and developed certain described parcels of property in his own name or the names of these corporations with partnership funds thereby defrauding Dominguez. Dominguez filed a notice of lis pendens on the described real estate and Lopez filed a motion to discharge the lis pendens. This motion was heard without the benefit of argument of Dominguez’s counsel who did not appear. The trial court then entered an order discharging lis pendens on the ground that Dominguez’s initial pleading does not show that the action is founded on a duly recorded instrument or mechanic’s lien as required by Florida law. Dominguez’s counsel filed a petition for rehearing. After hearing on the petition, the trial court denied the petition and left standing the order discharging lis pendens. We reverse.

Where, as here, the initial pleading does not show the action is based on a duly recorded instrument or mechanic’s lien, the court may control and discharge the notice of lis pendens as the court may grant or dissolve injunctions. Section 48.23(3), Florida Statutes (1975).

With respect to injunctions, Fla.R.Civ.P. 1.610 provides in pertinent part:

“(c) Motion to Dissolve. Any party against whom an injunction has been granted may move to dissolve it at any time.
“(d) Evidence. Either party may present evidence at any hearing on an application for or motion to dissolve an injunction. On hearing the court may grant, dissolve or continue the injunction or may require bond.”

Dominguez was not given the opportunity to present evidence in opposition to the motion to dissolve the notice of lis pendens. Accordingly, the order discharging notice of lis pendens is reversed and the cause remanded to the trial court with directions to grant Dominguez the opportunity to present any evidence which he deems necessary in opposition to the motion to discharge notice of lis pendens.

Reversed and remanded.

      . He alleged he did not receive the notice of hearing.

      . “(3) When the initial pleading does not show that the action is founded on a duly recorded instrument, or on a mechanic’s lien, the court may control and discharge the notice of lis pendens as the court may grant and dissolve injunctions.”