text:
    DIVISION OF ADMINISTRATION, STATE of Florida DEPARTMENT OF TRANSPORTATION, Appellant, v. Richard S. DENMARK et al., Appellees.
    No. 77-987.
    District Court of Appeal of Florida, Fourth District.
    Jan. 4, 1978.
    Winifred Sheridan Smallwood and H. Reynolds Sampson, Gen. Counsel, State of Florida Dept, of Transp., Tallahassee, for appellant.
    Spencer B. Gilbert of Gilbert & Horowitz, P.A., Fort Pierce, for appellee, Sibyl Hayes.
   LETTS, Judge.

This is an interlocutory appeal from an award of $85,000 in attorneys fees in a condemnation suit which culminated in a verdict of $349,000 plus $16,600 in interest and $27,000 in costs taxed. We affirm.

The facts are that the State, all the way through trial, would only offer $117,000 for the land taken, claiming a special enhancement to the remainder of over $500,000. The property owner’s attorney, a lawyer of long standing and much experience in condemnation cases, secured an award of $365,-600 with no special enhancement deduction thereby benefiting his client by close to quarter of a million dollars over the highest offer. The fee amounted to some 35% of this benefit achieved.

The successful lawyer testified to over 200 hours actual legal work plus 50 more of outside preparation for a grand total of at least 250 hours, resulting in a fee of approximately $340.00 per hour. The only witness called on at the hearing on attorneys fees also testified that the case was worth a fee between $85,000 and $90,000. The judge awarded $85,000.

We are of the opinion that the fee was high, but find it difficult to reverse and remand as an abuse of the trial judge’s discretion. Section 73.092 of the Florida Statutes, recently enacted, provides as follows:

In assessing attorney’s fees in eminent domain proceedings, the court shall consider:
(1) Benefits resulting to the client from the services rendered.
(2) The novelty, difficulty, and importance of the questions involved.
(3) The skill employed by the attorney in conducting the cause.
(4) The amount of money involved.
(5) The responsibility incurred and fulfilled by the attorney.
(6) The attorney’s time and labor reasonably required adequately to represent the client.
However, under no circumstances shall the attorney’s fees be based solely on a percentage of the award.

This section clearly leaves the award of attorneys fees to the discretion of the court, within the above set parameters. In the case now before us, the client received an enormous benefit from the representation. The attorney must have used great skill (unless we are to assume that the State’s appraisal of value was a deliberate underestimate). Certainly $250,000 is a large amount of money involved. The lawyer also resolved an important question concerning the alleged special enhancement and demonstrably fulfilled his responsibility to the utmost. There can be no doubt as to the complexity of the suit which required the property owner to obtain three experts whose fees totalled nearly $27,000. (The appraiser alone received $16,627). Furthermore, the expenditure of 250 hours on one case, translates into six exclusive weeks of this practitioner’s time. Finally, although the statutory wording makes it clear that the award cannot be based “solely on a percentage of the award” (emphasis supplied), the very language employed reveals that the legislature contemplates that a fee based m part on a percentage, is a cognizable factor, even although the resulting fee in condemnation cases is certain rather than contingent.

On the other hand, the appellant cites several recent cases from other districts which, when compared to the case at bar, might mandate reversal. One such is Manatee County v. Harbor Ventures, Inc., 305 So.2d 299 (Fla. 2DCA 1975) in which a $70,000 fee for 135 hours work was found to be excessive although the attorney’s efforts resulted in a $300,000 increase in the award. In Manatee, the court noted that a fee per hour of $517.00 was too much. Yet another recent case, from the Third District, is Dade County v. Oolite Rock Company, 311 So.2d 699 (Fla. 3 DCA 1975). In Oolite Rock, a fee of $111,700 was awarded for 118 hours work despite the fact that the supporting expert testimony was challenged by the political subdivision which used an opposing witness who recommended quantum meruit fees based on $200.00 per hour. The Third District reversed the award as excessive noting that the fee was the equivalent of $946.00 per hour. However, the hearing on attorneys fees in Oolite Rock came about because of a voluntary dismissal prior to trial. Thus, the litigation was far from over.

As can be seen from the foregoing, there are substantial fact differences between the two cases discussed in the preceding paragraph and the case now before us. Notably, the fee here is $340.00 per hour, vis a vis $946.00 and $517.00, and the instant suit involved a full blown trial brought to a final conclusion at that level.

Notwithstanding, we are aware that compensation at the rate of $340.00 per hour is mind boggling to most Americans, especially when it is not realized that such represents gross income rather than net profit. Furthermore, such awards should always be sharply scrutinized when we consider that the frustrated taxpayer is, by statute, called upon to make this payment, not the particular client receiving the benefit.

It would appear that recent appellate decisions in condemnation cases are leaning towards an hourly rate without actually mandating one. This is evidenced by repeated comparison of the fee awarded with the number of attorney hours, resulting in reversal for excessiveness. The most recent of these, dubbed Oolite “Two” [348 So.2d 902 (Fla. 3 DCA 1977)] is part of the same Oolite case already referred to, before the Third District again for resolution of the same attorneys fees. The last visit to the Third District of this portion of Oolite “One” resulted in a fee of $60,000 for 66 hours, being declared excessive. Accordingly, upon remand the trial judge halved the fee to $29,000 for the same 66 hours. Reviewing this fee for a second time, a new panel held that while the fee should not “necessarily” be geared to an hourly rate, $439.00 per hour was still excessive for “the kind of work involved”. Absent the complete record we cannot say that we would not agree with the result, but the stated reasons for the fixing of the fee at $212.12 per hour instead, were not the yardsticks we would have used.

A blanket opinion that $212.00 per hour was gracious plenty, we could not argue with, but Oolite “Two” adopts the theory that the fee should be smaller because so much of the lawyer’s time was spent on pre-trial preparation. Thus, for example, the court reasoned that legal fees for a mere deposition should be less because it:

. . usually is handled by a junior member of a firm. If a senior partner . wishes to do such work himself, the fact that he does so does not raise its type level. (P. 904 of 348 So.2d).

Quite apart from the fact that astute deposing can be of paramount importance, we feel that such reasoning discriminates against the smaller law firms and punishes a senior partner if he happens to pay personal attention to the quality preparation of his client’s cause. Moreover, the court in Oolite "Two” made no mention of the applicable statute, first above quoted, and while it did refer to Canon 2 of the Code of Professional Responsibility [DR2-106(B)], there is no reference to the “results obtained” [Paragraph 5, DR2-106(B)].

The culmination of both Oolite cases was a voluntary dismissal after an answer filed challenged the necessity of the taking. (See Footnote 2, P. 701 of 311 So.2d, Oolite “One”). We are aware that this result obtained was not of the cash variety but it stopped the condemnation altogether, not often accomplished.

To us, the problem in commanding the trial court to set the fee by “so much per hour”, is that such may penalize more competent counsel. It is axiomatic that an attorney of great skill, experience and expertise in condemnation cases will require less time to achieve a better result for his client than an inferior inexperienced counterpart. Are we going to penalize the former for being superior?

We note that counsel in this case was experienced and somewhat modest about his estimate of time spent. (Both he and his witness testified that there must have been more time spent than reported). This case most probably would not have been appealed, had counsel indicated that he put in 500 hours work, which he might well have done had he been inexperienced, and the resulting fee calculated at $170.00 per hour instead of $340.00.

Finally, the case at bar reveals that the expert witness’ testimony as to the appropriateness of an $85,000 fee went unchallenged by the State except for routine cross examination which left his testimony unshaken. It is difficult to fault the trial judge for accepting same, although he is obviously not bound to do so. Oolite “One”, supra, 311 So.2d at 702. We are of the opinion that if the State wishes to successfully oppose such expert testimony it should produce contra evidence to bolster its position. It did not do so in this case, but instead is asking us to substitute our version of a justifiable fee for that of the trial judge who heard the case and was able to evaluate all the criteria set forth under the statute. Such a substitute of judgment is improper unless a clear abuse of discretion is shown. Canal Authority v. Ocala Manufacturing Ice and Packing Co., 253 So.2d 495 (Fla. 1DCA 1971); Division of Administration, State Department of Transportation v. Condominium International, 317 So.2d 811 (Fla. 3 DCA 1975).

In addition we would comment that political subdivisions would largely avoid much of these fees and costs, by making more realistic appraisals of the land to be condemned. In this case, they were 212% wrong, according to the verdict.

In conclusion, it is our view that if attorneys fees in condemnation suits are to be calculated only on an hourly basis, this should be clearly spelled out by the legislature. It should not be left to the courts to engraft mandatory hourly rates onto a statute which specifically does not restrict itself to same, unless the fee is blatant and outrageous as, for example, it clearly was in Oolite “One”, supra, (i. e. $946.00 per hour). In fact, we are of the opinion that if we set a mandatory hourly rate we are acting in derogation of the statute.

Rightly or wrongly, the public gorge is rising over the size of attorneys fees and the profession faces more and more politically attractive legislative curtailment of fees, unless restraint is exercised. Appellant’s counsel, in one of her characteristically well written briefs, cites an ancient proverb equating lawsuits to “fruit trees planted in a lawyer’s garden.” Lawyers had better have a care, or the lawmakers will expressly limit the amount of fruit which can be harvested from those trees.

We deny the appellee’s petition for further attorneys fees on appeal. He has been but defending his own already generous award at the trial level and ought to be happy to do so, for free, in the light of this result. We see no need to require the State to compensate him further.

AFFIRMED.

CROSS and DOWNEY, JJ., concur.

      . Note however, in Manatee, the case did n< go to trial and the value was arrived at by stipulation.

      . The answer, and preparation therefor, resulting in a dismissal by the plaintiff seems to us to be a classic example of the paramount importance of pre-trial expert preparation, which should not be downgraded.

      . If such be done, it is to be hoped that the other experts, including the appraisers be likewise required to account for their time, on an hourly basis, for one grows weary of only attorneys being type cast as buccaneers.


source: Caselaw Access Project

author: HUBBART, Judge.

license: Public Domain

text:
    FRED McGILVRAY, INC., Appellant, v. INTERNATIONAL BUILDERS OF FLORIDA, INC., Appellee.
    Nos. 76-490, 76-491.
    District Court of Appeal of Florida, Third District.
    Jan. 10, 1978.
    Rehearing Denied Feb. 8, 1978.

      Horton, Perse & Ginsberg, Donald M. Coon, Miami, for appellant.
    Harry A. Payton, Miami, for appellee.
    Paul & Thomson, Miami, for Air Conditioning Refrigeration, Heating and Piping Association, Inc., as amicus curiae.
    Before PEARSON, HENDRY and HUB-BART, JJ.
   HUBBART, Judge.

This is an appeal from two final judgments which inter alia contain a declaratory decree interpreting the rights of the parties under a construction contract between a general contractor and a subcontractor on a school construction project. The decree was entered in favor of the general contractor; the subcontractor appeals.

The issue presented for review is whether a general contractor or a subcontractor must bear the risk of loss as to vandalism damage on construction work required to be done by the subcontractor under a contract between the said parties where: (1) such contract has no provision covering the matter; and (2) the main contract between the owner and the general contractor requires the general contractor to take out vandalism insurance on the construction project. We hold that the general contractor under such circumstances bears the risk of loss on such vandalism damage and reverse.

On May 7, 1969, the Dade County School Board as owner entered into a contract with a general contractor, the defendant International Builders of Florida, Inc., for the construction of a certain school in Dade County, Florida. Among other things, this contract required International to take out vandalism insurance on the construction project.

On May 26,1969, the plaintiff subcontractor Fred McGilvray, Inc. entered into a contract with the defendant general contractor International calling for the installation by McGilvray of certain air conditioning equipment and piping systems in connection with the construction of the above school. This contract was silent on whether the general contractor International or the subcontractor McGilvray should obtain vandalism insurance on the air conditioning and other work called for in the contract.

During the course of construction, certain work completed by McGilvray was vandalized. McGilvray repaired the vandalized work and submitted bills to International for payment in the total amount of $21,-831.70 for the repair work done. International refused payment on such bills.

McGilvray instituted a lawsuit against International based on breach of contract as well as other causes of action for payment on the repair bills. International answered with a general denial and counterclaimed for a declaratory decree that it was not required under its contract with McGilvray to pay for the vandalism damage.

The trial court separated for trial purposes the plaintiff’s breach of contract claim from the other asserted causes of action. At trial on the breach of contract claim, the trial court directed a verdict in favor of International and thereafter entered a judgment thereon. In this judgment, the court also found for International on its counterclaim for a declaratory decree. Subsequently, the court also entered an adverse summary final judgment on the plaintiff’s remaining causes of action save for unjust enrichment. In the same judgment, the court also entered a declaratory decree in favor of International which states in part as follows:

“The Court further declares that by virtue of the contract between the parties the loss of damage to the work of FRED McGILVRAY, INC., was the responsibility of FRED McGILVRAY, INC. to repair and redo at its cost and expense.”

The plaintiff appeals from both of the above judgments and contends inter alia that the court erred in finding as a matter of law in its declaratory decree that McGil-vray was to bear the risk of loss for any vandalism damage on McGilvray’s completed work under his contract with International. We agree.

The law is clear that a general contractor bears the risk of loss as to vandalism damage on construction work required to be done by a subcontractor under a contract between the said parties where (1) such contract is silent on who is to bear the risk of loss for such vandalism damage, and (2) the main contract between the owner and the general contractor requires the general contractor to take out vandalism insurance on the construction project. Federal Insurance Co. v. Hillsborough County, 216 So.2d 487 (Fla. 2d DCA 1968).

In the instant case, the contract between International and McGilvray is silent on the issue of who was to bear the risk of loss for any vandalism damage caused to the subcontractor’s work under the said contract. In addition, the contract between the Dade County School Board and International required that International take out vandalism insurance on the construction project. Under such circumstances, it is clear that International must bear the risk of loss for any vandalism damage caused to McGil-vray’s completed work under the contract between International and McGilvray. Accordingly, McGilvray was entitled to a declaratory decree in its favor requiring International to pay for reasonable repair bills incurred by McGilvray on the aforesaid vandalism damage.

In view of the court’s ruling, it is unnecessary to consider the other points raised on appeal by the appellant. The judgment under review are reversed and the cause remanded for the entry of an appropriate declaratory decree in accordance with this opinion.

Reversed.


author: PER CURIAM.

text:
    Curtis TAYLOR, Donnelly Advertising Corp., a Florida Corporation, and Royal Globe Insurance Company, a Foreign Corporation, Appellants, v. Mabel Lee CRAIG and Sidney Paul Craig, her husband, Appellees.
    No. 76-2294.
    District Court of Appeal of Florida, Third District.
    Jan. 10, 1978.
    Rehearing Denied Feb. 10, 1978.
    Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O’Hara and Richard A. Sherman, Miami, for appellants.
    Robert M. Sussman, Hialeah, for appel-lees.
    Before PEARSON, BARKDULL and NATHAN, JJ.
   PER CURIAM.

Defendants challenge the amount of damages awarded in a personal injury case. The trial court denied a motion for a new trial or a remittitur, which decision indicates that the trial court did not feel that the verdict was excessive or such as to shock the judicial conscience.

We have examined the record and the evidence and considered the arguments and case law urged. It is our view that the damages awarded were within reasonable limits and amply justified by the evidence at trial. We are unable to determine any legal basis whereby this court would be entitled to disturb the jury’s decision to the amount of damages. The defendants, having failed to demonstrate reversible error, the verdict and judgment based thereon are affirmed. See Cleere v. Humphreys, 280 So.2d 23 (Fla. 1st DCA 1973); St. Vincent’s Hospital, Incorporated v. Crouch, 292 So.2d 405 (Fla. 1st DCA 1974); Popham v. Baker, 309 So.2d 222 (Fla. 3d DCA 1975).

Affirmed.


text:
    Cragg GOSS, Appellant, v. The STATE of Florida, Appellee.
    No. 76-2382.
    District Court of Appeal of Florida, Third District.
    Jan. 10, 1978.
    Rehearing Denied Feb. 10, 1978.
    Bennett H. Brummer, Public Defender and Kurt Marmar, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Ronald A. Dion, Asst. Atty. Gen., for appellee.
    Before PEARSON, BARKDULL and NATHAN, JJ.
   PER CURIAM.

Affirmed. See: Brown v. State, 328 So.2d 497 (Fla. 3d DCA 1976); Fla.R. Crim.P. 3.191(a)(1) and 3.191(b)(1).


text:
    Harold Clinton VAN SCYOC, Appellant, v. The STATE of Florida, Appellee.
    No. 77-749.
    District Court of Appeal of Florida, Third District.
    Jan. 10, 1978.
    Rehearing Denied Feb. 10, 1978.
    Black & Denaro, Miami, for appellant.
    Robert L. Shevin, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before PEARSON, HENDRY and BARKDULL, JJ.
   PER CURIAM.

Affirmed. Gordon v. State, 104 So.2d 524 (Fla.1958); Sands v. State, 202 So.2d 141 (Fla. 2d DCA 1967); State v. Davis, 203 So.2d 160 (Fla.1967); State v. Jones, 204 So.2d 515 (Fla.1967); DeRiggi v. State, 209 So.2d 714 (Fla. 3d DCA 1968); Koran v. State, 213 So.2d 735 (Fla. 3d DCA 1968); Powers v. State, 224 So.2d 411 (Fla. 3d DCA 1969); Chariott v. State, 226 So.2d 359 (Fla. 3d DCA 1969); Collins v. State, 227 So.2d 538 (Fla. 3d DCA 1969); Arrington v. State, 233 So.2d 634 (Fla.1970); Wimes v. State, 243 So.2d 443 (Fla. 3d DCA 1971); Wheeler v. State, 311 So.2d 713 (Fla. 4th DCA 1975); Willis v. State, 320 So.2d 823 (Fla. 4th DCA 1975); Barry v. State, 330 So.2d 512 (Fla. 1st DCA 1976); Howell v. State, 337 So.2d 823 (Fla. 1st DCA 1976); Ellison v. State, 349 So.2d 731 (Fla. 3d DCA 1977); Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Fla.R.Crim.P. 3.220(j)(l); Fla.R.Crim.P. 3.720.


text:
    John Harvin MARSHALL and Eddie Ruth Marshall, Petitioners, v. STATE of Florida, Respondent.
    No. 77-708.
    District Court of Appeal of Florida, Second District.
    Jan. 13, 1978.
    Rehearing Denied Feb. 16, 1978.
    Enrique Escarraz, III, St. Petersburg, for petitioners.
    E. J. Salcines, Jr., State Atty., and Thomas P. Fox, Asst. State Atty., Tampa, for respondent.
   PER CURIAM.

Petitioner Eddie Ruth Marshall was charged with driving a motor vehicle without a driver’s license and resisting arrest without violence. Petitioner John Harvin Marshall was charged with resisting arrest without violence, interfering with a police officer, and assault on a police officer. Both petitioners were tried by a jury in a joint trial in county court.

At the close of the state’s case, the court directed a verdict of acquittal on the charge of resisting arrest without violence against Mr. Marshall. The jury found the petitioners guilty as charged on the remaining counts. On appeal to the circuit court the judgments of guilt were affirmed. The petitioners seek review of the circuit court order by petition for certiorari.

Our standard for review on common law certiorari is whether there was a departure from the essential requirements of law. Clermont Marine Sales, Inc. v. Harmon, 347 So.2d 839 (Fla. 2d DCA 1977). Measured by this criterion, the convictions of Eddie Ruth Marshall must be quashed, but the convictions of John Harvin Marshall need not be disturbed.

Section 322.03, Florida Statutes (1975) specifies that no person shall drive a motor vehicle upon a highway in this state without a valid license as an operator or chauffeur. While there is nothing in this record to indicate that Eddie Ruth Marshall had a driver’s license, there was also no evidence whatsoever to prove that she ever drove a motor vehicle. The arresting officer observed her getting into a car and sitting down in the driver’s seat. He said nothing about the car having moved or the ignition having been turned on. Unlike Section 316.028, Florida Statutes (1975), to be in actual physical control of a motor vehicle is not enough to convict for driving without a license. Surely, the conviction of a crime without proof of an essential element must constitute a departure from the essential requirements of law.

Since the arresting officer had no warrant and there was no evidence that Eddie Ruth Marshall had committed even a misdemeanor in his presence, the arrest of Ms. Marshall was unlawful. Section 901.15, Florida Statutes (1975). At common law, one could resist an unlawful arrest with impunity. Burgess v. State, 313 So.2d 479 (Fla. 2d DCA 1975). However, in 1974 our legislature enacted Section 776.051 which prohibits the use of force in resisting an arrest by a person reasonably known to be a law enforcement officer regardless of the legality of the arrest. In view of the fact that Section 776.051, Florida Statutes (1975) proscribes only the use of force in resisting arrest, we must assume that the common law rule, long recognized in Florida, remains in effect with respect to the right to resist an unlawful arrest without resorting to the use of force. Eddie Ruth Marshall was charged with resisting arrest without violence, and there was no evidence that she used any force to resist her arrest. She simply ran off when her brother assailed the police officer for having placed her under arrest.

Certiorari is granted to the extent that the convictions of Eddie Ruth Marshall are hereby quashed; otherwise, the petition for certiorari is denied.

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


text:
    DON GREENE PROVISIONS, INC., Appellant, v. ROYAL TRUST BANK OF MIAMI, N.A. f/k/a International Bank of Miami, Appellee.
    No. 76-1009.
    District Court of Appeal of Florida, Third District.
    Jan. 17, 1978.
    Rehearing Denied Feb. 10, 1978.
    David Bercuson; Bartel, Levine & Shu-ford and Judy D. Shapiro, Miami, for appellant.
    Pallot, Stern, Proby, Adkins and Mark Pollack, Miami, for appellee.
    Before HAVERFIELD, C. J., and BARK-DULL and HUBBART, JJ.
   PER CURIAM.

Affirmed. Messeroff v. Kantor, 261 So.2d 553 (Fla.3d DCA 1972).


text:
    James M. KAUFMAN, Appellant, v. Louis F. HARDER, Realtor, Appellee.
    No. 76-1136.
    District Court of Appeal of Florida, Third District.
    Jan. 17, 1978.
    Rehearing Denied Feb. 10, 1978.
    Aronovitz & Weksler, Miami, for appellant.
    Herskowitz & Grossman, Miami, for ap-pellee.
    Before PEARSON, HENDRY and HUB-BART, JJ.
   PER CURIAM.

This is a suit for the recovery of a real estate broker’s commission in which judgment was entered for the broker after a non-jury trial. We reverse.

The facts are rather complex but it is clear from the record that the broker Louis F. Harder through his employee Harry Goldsmith performed no services for the defendant James M. Kaufman to which Harder was entitled to a commission for the sale of the Boskind parcel in Brevard County, Florida, as claimed in the complaint. James M. Kaufman bought the property as a partner with another real estate broker Mitchell Mark without any assistance from Harder or Goldsmith. Although Kaufman gratuitously agreed to pay Harder $25,000 on this transaction and did in fact pay Harder $12,500 pursuant thereto, it is clear that such promise was not based upon any consideration and was entirely unenforceable. The law is clear that there can be no indebtedness without legal consideration; and that a mere gratuitous promise of a future gift, lacking consideration, is unenforceable as a nudum pactum. Mt. Sinai Hospital of Greater Miami, Inc. v. Jordan, 290 So.2d 484, 486 (Fla.1974); Casa Marina Hotel Co. v. Barnes, 105 So.2d 204, 206 (Fla. 3d DCA 1958). Accordingly, there can be no recovery by Harder based upon Kaufman’s failure to completely honor his promise to pay.

The judgment appealed from is reversed and the cause remanded to the trial court for directions to enter a judgment for the defendant James M. Kaufman.

PEARSON, J., dissents.


text:
    Meyer KOTLER and Helen G. Rechtschaffer, Appellants, v. MORRIS KROOP, INC., Realtors, Appellee.
    Nos. 76-1721, 76-1738.
    District Court of Appeal of Florida, Third District.
    Jan. 17, 1978.
    Rehearing Denied Feb. 10, 1978.
    Nelson & Feldman, Miami Beach, Friedman & Britton, Miami, for appellants.
    Melvin A. Rubin and Frank Nussbaum, Miami, for appellee.
    Before HAVERFIELD, C. J., and BARK-DULL and HUBBART, JJ.
   PER CURIAM.

This is an appeal from a final judgment entered upon a jury verdict in favor of a real estate broker (Morris Kroop, Inc.) against a seller (Helen G. Rechtschaffer) and buyer (Meyer Kotler) of certain real estate for a brokerage commission allegedly due based on a sale of real estate, as well as for other claims grounded upon an alleged tortious interference with the broker’s contract to sell the realty in question. We reverse the judgment appealed from because the evidence is uncontradicted that the broker herein was in no way the procuring cause of the real estate sale. The sale was separately negotiated between the seller and the buyer with no assistance from the broker who had previously worked under an expired non-exclusive listing on the property which did not preclude such a transaction. Accordingly, the broker was not entitled to a commission or any recovery on his other causes of action. Shuler v. Allen, 76 So.2d 879 (Fla.1955); Dixson v. Kattel, 311 So.2d 827 (Fla. 3d DCA 1975); Symon v. Jay Rolfe Davis, Inc., 245 So.2d 278 (Fla. 4th DCA 1971). The judgment herein is reversed and the cause remanded to the trial court with directions to enter appropriate judgments in favor of the appellants herein.

Reversed.


text:
    James STEVENS, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1759.
    District Court of Appeal of Florida, Third District.
    Jan. 17, 1978.

      Bennett H. Brummer, Public Defender, and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Linda Collins Hertz, Asst. Atty. Gen., for appellee.
    Before PEARSON, HENDRY and NATHAN, JJ.
   PER CURIAM.

The single point presented on this appeal is as follows:

“Whether the trial court erred in denying a motion to suppress evidence seized from the defendant where such evidence was the product of an unreasonable and unlawful search and seizure.”

The defendant was stopped by police when he was getting into his car in what appeared to be an intoxicated condition. The incident occurred in a high crime area in the early morning hours. While checking his driver’s license, the defendant was observed making motions toward an object wrapped in a towel and concealed in the front seat. At the directions of the investigating officer, a second officer went to the other side of the car and discovered that the object was a short-barrel rifle. Defendant was arrested for carrying a concealed weapon and was sentenced to three years in prison for possession of a firearm by a convicted felon.

The defendant urges that the search was unlawful because the officers did not have reason to believe that a firearm was concealed in the car. While the officer did not articulate that he was fearful that the defendant had a weapon, the facts of the case are such that he was reasonably justified in conducting the search to protect his person. At oral argument, the defendant relied principally on Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968). We hold that Sibron is not applicable because that case concerned a search for heroin and no facts were brought out at that trial which would indicate that the policeman had knowledge reasonably supporting a belief that the defendant was in possession of a firearm.

We hold that the facts of the present case satisfy the function of Section 901.151, Florida Statutes (1975), and the pronouncements of the Supreme court of the United States in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). See also United States v. Tharpe, 536 F.2d 1098 (5th Cir. 1976). Cf. Phillips v. State, 284 So.2d 485 (Fla.3d DCA 1973); and Wigfall v. State, 323 So.2d 587 (Fla.3d DCA 1975).

Affirmed.


text:
    Robert G. WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 77-672.
    District Court of Appeal of Florida, Third District.
    Jan. 17, 1978.
    Brian R. McComb, Miami, for appellant.
    Robert L. Shevin, Atty. Gen. and Joel D. Rosenblatt, Asst. Atty. Gen., for appellee.
    Before PEARSON, HENDRY and BARKDULL, JJ.
   PER CURIAM.

The defendant, Robert G. Williams, appeals an adjudication of guilty of murder in the first degree and a sentence of life imprisonment. Williams was found guilty by a jury of having murdered one Ernest Hunter. On this appeal, two points are presented. The first urges that the trial court committed reversible error in allowing testimony of the alleged fact that Williams had previously robbed one Roosevelt Hunter, the brother of the deceased victim. The second point urges that the trial court erred in denying defendant’s motion for a mistrial after reference was made by a witness to the defendant’s having been in prison.

With regard to the second point, we have examined the record in the light of this contention and find that there was a full, curative instruction given by the court and that the inadvertent statement by the witness was not sufficient to require reversal for the failure to declare a mistrial. See the rule of law in Perry v. State, 146 Fla. 187, 200 So. 525 (1941); Kelly v. State, 202 So.2d 901 (Fla.2d DCA 1967); and Garcia v. State, 142 So.2d 318 (Fla.2d DCA 1962).

Turning to the more serious question presented by the first point, it is clear from the record that the State secured the agreement of the trial court to the admissibility of the objectionable evidence by a statement that it would present witnesses who would show that the robbery was relevant to the question of motive for the murder. The State urged in the trial court that its witnesses would show (1) that the defendant committed a robbery of the goods of Roosevelt Hunter, (2) that Roosevelt Hunter and his brother, Ernest Hunter, were known to be “looking for” Robert G. Williams concerning the robbery, and (3) that in order to protect himself, Robert G. Williams then killed Ernest Hunter.

We have carefully reviewed the record in the light of this contention and although we find that the State did not come forward with all of the evidence that it promised the court, nonetheless there was sufficient evidence in the record from which a jury could determine that the motive for the murder was an attempt by Williams to protect himself from the revenge which he had reason to anticipate from the victim, Ernest Hunter, and his brother, Roosevelt Hunter. We therefore, hold that the admission of the evidence was not error. See State v. State-wright, 300 So.2d 674 (Fla.1974); and Licht v. State, 148 So.2d 295 (Fla.3d DCA 1963). See also Williams v. State, 110 So.2d 654 (Fla.1959).

Accordingly, the judgment and sentence are affirmed.


text:
    Jorge V. DIAZ, Appellant, v. The STATE of Florida, Appellee.
    No. 77-717.
    District Court of Appeal of Florida, Third District.
    Jan. 17, 1978.
    Jorge V. Diaz in pro per.
    Robert L. Shevin, Atty. Gen., and Linda Collins Hertz, Asst. Atty. Gen., for appellee.
    Before PEARSON, HENDRY and BARKDULL, JJ.
   PER CURIAM.

The appellant, Jorge V. Diaz, was found guilty by a jury of first degree murder and of robbery in October of 1974. He was represented at trial by privately employed counsel. An appeal from the judgment and sentence was prosecuted. See 323 So.2d 289 (Fla.3d DCA 1975).

On February 16, 1977, Diaz filed a pro se motion to vacate the judgment and sentence. The main thrust of this motion appears to be that his privately employed counsel was so incompetent that the defendant did not receive a fair trial. The trial judge denied the motion without conducting an evidentiary hearing. This appeal is from that order.

The defendant argues that he was entitled to an evidentiary hearing. We do not agree. The motion did not present grounds for relief. See the rule in Cappetta v. Wainwright, 203 So.2d 609 (Fla.1967); Brown v. State, 223 So.2d 337 (Fla.3d DCA 1969); and Ford v. State, 210 So.2d 33 (Fla.2d DCA 1968).

Affirmed.


author: NATHAN, Judge.

text:
    BARNETT BANK OF MIAMI, Appellant, v. MUTUAL OF OMAHA INSURANCE COMPANY, Appellee.
    No. 76-602.
    District Court of Appeal of Florida, Third District.
    Jan. 18, 1978.
    High, Stack, Davis & Lazenby and Alan R. Dakan, Miami, for appellant.
    George V. Lanza, Coral Gables and John A. Finn, Sam Daniels, Ehrich & Zuckerman, Miami, for appellee.
    Before HENDRY and NATHAN, JJ., and CHARLES CARROLL (Ret.) Associate Judge.
   NATHAN, Judge.

Barnett Bank of Miami, third party defendant and lessee of parking lot, appeals from an adverse summary judgment establishing liability for indemnity in favor of its landlord, third party plaintiff Mutual of Omaha Insurance Company.

This suit was initially brought by an employee of Barnett against Mutual for personal injuries sustained when a guard rail fell on her. The employee’s complaint alleged active negligence by Mutual. Mutual’s third party complaint against Barnett alleged that Mutual was only passively negligent. At the time of the filing of this appeal the main action between the plaintiff-employee and Mutual was still pending.

Barnett, by lease with Mutual, agreed to indemnify Mutual for any loss, claim and attorneys fees arising out of any injury received in or about the premises and arising out of any failure of Barnett to comply with the terms of the lease, as well as costs and attorneys fees in any litigation in which Barnett caused Mutual without its fault, to become involved.

The general rule is that where each tortfeasor is chargeable with active negligence contributing to the injury for which recovery was had, neither is entitled to indemnity from the other. Armor Elevator Company, Inc. v. Elevator Sales & Service, Inc., 309 So.2d 44 (Fla.3d DCA 1975).

Barnett argues that it was solely negligent and that since the employee’s complaint alleges that Mutual was actively negligent and since the lease provides for indemnity for the acts of a passive tort-feasor only, summary judgment was improperly entered. We do not agree that Mutual is bound by the employee’s complaint against Mutual or what Barnett considers exculpatory terms of the lease agreement. A tortfeasor is not “locked in”' by allegations in the original complaint that it was an active tortfeasor. Central Truck Lines, Inc. v. White Motor Corporation, 316 So.2d 579 (Fla.3d DCA 1975).

The obligation to indemnify need not solely be based upon an express contract of indemnification, but may arise out of a liability imposed by law, Stuart v. Hertz Corporation, 351 So.2d 703, 705 (Fla.1977), and “ . . . has been said to exist whenever the relation between the parties is such that either in law or in equity there is an obligation on one party to indemnify the other, as where one person is exposed to liability by the wrongful act of another in which he does not join.” 41 Am.Jur.2d, Indemnity § 2, cited in Stuart v. Hertz Corporation, supra at 705.

Given the fact that Mutual alleged in its third party complaint that it was but a passive tortfeasor, and since the evidence adduced shows that there is a genuine issue of material fact as to whether an active/passive relationship of tortfeasors exists between Barnett and Mutual, summary judgment was precluded.

Earlier in the course of these proceedings, it was ordered by this court that ruling on this interlocutory appeal be reserved until determination of the main action. The main action was concluded by judgment entered in favor of plaintiff-employee against Mutual pursuant to an offer of judgment under Fla.R.Civ.P. 1.442, made by Mutual and accepted by the employee.

Barnett now contends that, not only should the summary judgment against it be reversed, but summary judgment should be entered in favor of Barnett because the offer of judgment and judgment thereon amounted to an admission and adjudication of Mutual’s liability for active negligence. We disagree. While counsel has failed to provide us with, and we have been unable to find a case on point under the Florida or Federal offer of judgment rules, we are of the opinion that where a non-litigated offer of compromise is accepted and judgment entered thereon pursuant to the offer of judgment rule, it does not operate as an estoppel by judgment or admission of the facts contained in a complaint in a suit not between the parties to the judgment. Cf. Seaboard Air Line Railroad Company v. George F. McCourt Trucking, Inc., 277 F.2d 593, 597 (5th Cir. 1960). The purpose of the offer of judgment rule is to induce or influence a party to settle litigation and obviate the necessity of a trial. Santiesteban v. McGrath, 320 So.2d 476 (Fla.3d DCA 1975); Hernandez v. Trav elers Insurance Company, 331 So.2d 329 (Fla.3d DCA 1976).

The summary judgment is reversed and the cause is remanded for trial on the third party complaint and answer thereto.

Reversed and remanded.


text:
    Michael GORCHOV, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1826.
    District Court of Appeal of Florida, Third District.
    Jan. 24, 1978.
    Bennett H. Brummer, Public Defender and Julian S. Mack, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Margarita Esquiroz, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and PEARSON and BARKDULL, JJ.
   PER CURIAM.

Michael Gorchov appealed a judgment of the circuit court providing for his involuntary hospitalization upon the ground that he is mentally ill. Two points were presented on the appeal. The first point urged that Section 394.467, Florida Statutes (1975), was unconstitutional as vague and overbroad and in violation of the due process clause of the United States Constitution and the Constitution of the State of Florida. The second point urged that the trial court erred in failing to apply the “beyond a reasonable doubt” standard of proof in the involuntary hospitalization hearing. The appeal was, on the motion of the appellant, transferred to the Supreme Court of Florida as one being within the jurisdiction of that court. The cause was reserved for disposition of the constitutional issue by the Supreme Court with several other appeals which also challenged the constitutionality of the cited section. Thereafter, the appeal was transferred to this court by an order which provided in part as follows:

“The constitutional issues having been resolved in our recent opinion In Re: Preer Beverly, Case No. 47,747, opinion filed January 27, 1977 [342 So.2d 481], it appears that the only substantial issue involved is within the jurisdiction of the District Court of Appeal, Third District; . . "
‡ $ sf: ‡ , ‡ $

We have proceeded thereupon to examine the second point presented. We find that this point has also been disposed of by the Supreme Court in the above cited opinion, In Re Beverly, 342 So.2d 481 (Fla.1977), wherein it is held:

“We agree with the New Mexico court and hold that the standard of proof to be applied in civil commitment proceeding is ‘clear and convincing evidence,’ which shall be applied in this and all future civil commitment proceeding. This standard of proof was defined and described in Allstate Insurance Co. v. Vanater, 297 So.2d 293 (Fla.1974).”

The constitutional issue having been determined and our examination of the record and briefs showing that the trial court properly applied the “clear and convincing evidence” standard, the judgment is thereupon affirmed.

Affirmed.


text:
    Brian MACKEY, Appellant, v. The STATE of Florida, Appellee.
    Nos. 76-317, 76-318 and 77-468.
    District Court of Appeal of Florida, Third District.
    Jan. 24, 1978.
    Bennett H. Brummer, Public Defender and Elliott H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., Arthur Joel Berger, Asst. Atty. Gen., and Robert Burlington, Legal Intern, for appellee.
    Before HAVERFIELD, C. J., and HEN-DRY, J., and DREW, E. HARRIS (Ret.), Associate Judge.
   PER CURIAM.

By these consolidated appeals, appellant seeks the reversal of (1) his conviction of three counts of robbery, (2) an order of revocation of probation and (3) an order denying post conviction relief.

Appellant has raised the following points on appeal, to-wit: that the trial court erred in failing to instruct the jury that intent to kill or maim if resisted is an element of the offense of robbery; that the trial court erred in denying appellant’s motion for continuance of the probation revocation hearing; and that the trial court erred in denying appellant’s motion for a new trial based upon newly discovered evidence.

We have carefully considered appellant’s contentions in the light of the record on appeal, briefs and arguments of counsel and have concluded that no reversible error has been demonstrated. Section 813.011, Florida Statutes (1973); Stevens v. State, 351 So.2d 1077 (Fla. 3d DCA 1977); Baker v. State, 336 So.2d 364 (Fla.1976); Lyles v. State, 312 So.2d 495 (Fla. 1st DCA 1975).

Affirmed.


text:
    Celso Aniceto CRUZ, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1397.
    District Court of Appeal of Florida, Third District.
    Jan. 24, 1978.

      Bennett H. Brummer, Public Defender and Elliott H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Anthony Musto, Asst. Atty. Gen., for appellee.
    Before NATHAN and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See Richardson v. State, 246 So.2d 771 (Fla.1971); and Ramirez v. State, 241 So.2d 744 (Fla. 4th DCA 1970).


text:
    Mario Perez CIMADEVILLA, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1784.
    District Court of Appeal of Florida, Third District.
    Jan. 24, 1978.
    Albert L. Carnearte, Miami, for appellant.
    Robert L. Shevin, Atty. Gen. and Anthony C. Musto & Ronald A. Dion, Asst. Attys. Gen., for appellee.
    Before NATHAN and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Shifrin v. State, 210 So.2d 18 (Fla. 3d DCA 1968); Garmise v. State, 311 So.2d 747 (Fla. 3d DCA 1975).


text:
    John Milton OWENS, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1806.
    District Court of Appeal of Florida, Third District.
    Jan. 24, 1978.

      Bennett H. Brummer, Public Defender and Paul Morris, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Joel D. Rosenblatt, Asst. Atty. Gen., for appellee.
    Before PEARSON, BARKDULL and NATHAN, JJ.
   PER CURIAM.

John Owens appeals a judgment of conviction entered after a non-jury trial on the charge of carrying a concealed firearm, and an order of revocation of probation. He was sentenced to two concurrent one-year terms of imprisonment. Two issues are presented on this appeal. The first is whether a probationer has standing to challenge the admissibility of evidence obtained as the result of an allegedly unreasonable search and seizure, in violation of the Fourth Amendment. The second issue is whether there was probable cause for the search and seizure.

The record contains testimony as to the entire incident, including the officer’s probable cause and the details of the search itself. The trial judge refused to hear argument on the defendant’s motion to suppress, stating on the record that as a probationer, the defendant had no standing to challenge the allegedly unlawful search and seizure. We do not agree. A defendant does not absolutely forfeit the protection of the Fourth Amendment’s prohibition against unreasonable searches and seizures merely by assuming the status of a probationer; and while evidence obtained in violation of the Fourth Amendment may be admissible against the probationer in a revocation hearing, such evidence cannot constitutionally be admitted at a criminal trial. Croteau v. State, 334 So.2d 577, 579 (Fla.1976). Therefore, the trial judge should not have refused to hear the motion to suppress at the criminal trial solely on the basis of the defendant’s status as a probationer. However, the denial óf the motion to suppress was proper on another ground.

Generally, if a trial judge’s order, judgment or decree is sustainable under any theory revealed by the record on appeal, notwithstanding that it may have been bottomed on an erroneous theory, an erroneous reason or an erroneous ground, the order, judgment or decree will be affirmed. Savage v. State, 156 So.2d 566 (Fla. 1st DCA 1963). While the trial court should have allowed argument on the motion to suppress, it was not error to deny the motion as the search was proper under the Fourth Amendment, and was bottomed on probable cause. See Pennsylvania v. Mimms, - U.S. -, 98 S.Ct. 330, 54 L.Ed.2d 331, opinion filed December 5,1977.

Affirmed.


text:
    Richard M. MERRILL, and James L. Rogel, Appellants, v. The STATE of Florida, Appellee.
    No. 76-2024.
    District Court of Appeal of Florida, Third District.
    Jan. 24, 1978.
    Winter & Zuelch and W. Randall Winter, Key West, for appellants.

      Robert L. Shevin, Atty. Gen. and Anthony Musto, Asst. Atty. Gen., John Moppert, Legal Intern, for appellee.
    Before HAVERFIELD, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

Defendants appeal from their convictions of three counts of forgery and one count of conspiracy to commit forgery.

We have carefully considered the record on appeal, briefs and arguments of counsel and have concluded that no reversible error has been demonstrated. Wetherington v. State, 263 So.2d 294 (Fla. 3d DCA 1972); Starling v. State, 263 So.2d 645 (Fla. 3d DCA 1972).

Affirmed.


text:
    Rickey BROWNLEE, Appellant, v. The STATE of Florida, Appellee.
    No. 76-2095.
    District Court of Appeal of Florida, Third District.
    Jan. 24, 1978.
    Bennett H. Brummer, Public Defender and Karen M. Gottlieb, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Arthur Joel Berger, Asst. Atty. Gen., for appellee.
    Before PEARSON and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The defendant Rickey Brownlee was charged by information with possession of cocaine (count 1), possession of heroin (count 2), and possession of not more than five grams of cannabis (count 3). The trial court granted defendant’s motion for judgment of acquittal for the State’s failure to establish a prima facie case on the count charging possession of cocaine and the count charging possession of heroin. The third count was submitted to the jury, which returned a verdict of guilty. Defendant was so adjudged and sentenced to nine months in the county jail. This appeal is from that judgment finding the defendant guilty of the misdemeanor of possession of less than five grams of marijuana.

The evidence viewed in the light most favorable to the jury verdict is that the small amount of marijuana was found in a plastic bag on a night stand located between the two beds in a bedroom which the defendant admitted was “his room.” A young female was in one of the two beds located in that room.

Inasmuch as the marijuana was not hidden in any way, and it is apparent from the record that the room and the area where the marijuana was found was occupied by the defendant and another person, we hold that the judgment must be reversed upon the rule stated in Torres v. State, 253 So.2d 450 (Fla. 3d DCA 1971), and authorities cited therein.

Accordingly, the judgment and sentence are reversed and the cause is remanded with directions to discharge the defendant.

Reversed and remanded.

      . “This is a case where the jury may have inferred from the evidence that appellant had custody of the apartment but the record does not contain sufficient facts to support that inference as the only reasonable inference from the evidence. Therefore the judgment and sentence must be reversed . . . ”


author: KEHOE, Judge.

text:
    Mary Lucille Turrell MOSELEY, Appellant, v. H. Patricia TURRELL, Appellee.
    No. 76-2148.
    District Court of Appeal of Florida, Third District.
    Jan. 24, 1978.
    Rehearing Denied Feb. 10, 1978.
    Stephen A. Freeman, Miami, for appellant.
    Horton, Perse & Ginsberg and Mallory H. Horton, Miami, for appellee.
    Before HAVERFIELD, C. J., and HEN-DRY and KEHOE, JJ.
   KEHOE, Judge.

Appellant, defendant below, brings this appeal from a summary judgment dated November 5, 1976, entered by the trial court in favor of appellee, plaintiff below. Appellant contends that genuine issues of material facts existed, at the time of the granting of summary judgment by the trial court, which, pursuant to Fla.R.Civ.P. 1.510, precluded the proper entry of summary judgment. We agree; therefore, the summary judgment appealed is reversed.

This action was instituted when appellee sought to quiet title to certain improved real estate in Dade County, Florida. During the course of the litigation, both appellant and appellee moved for summary judgment; after a hearing, the trial court granted appellee’s motion. The ensuing summary judgment is the subject of this appeal.

Appellant contends that the trial court improperly granted appellee’s motion for summary judgment because, at the time of its entry, there existed genuine issues of material facts, i. e., (1) whether Jerome A. Turrell received valuable consideration for the transfer of the subject property and (2) whether the execution of a certain deed and transfer of the subject property were procured by appellee under conditions of undue influence, duress, and coercion at a time when Jerome A. Turrell had insufficient legal capacity. These factual issues were put into contention by appellant’s answer and affirmative defenses to appellee’s second amended complaint.

In order to be entitled to summary judgment, it is incumbent upon the plaintiff, here appellee, to overcome any affirmative defenses by presenting evidence sufficient to demonstrate conclusively that the issues created by the affirmative defenses are dispelled. See, e. g., Johnson & Kirby, Inc. v. Citizens Nat. Bank, 338 So.2d 905 (Fla. 3d DCA 1976); First Mortgage Inv. v. Boulevard Nat. Bank of Miami, 327 So.2d 830 (Fla. 3d DCA 1976); Fernandez v. Cunningham, 268 So.2d 166 (Fla. 3d DCA 1972); Underwriters Insurance Company v. Sisung, 174 So.2d 461 (Fla. 3d DCA 1965); and Fla.R.Civ.P. 1.510. After examining the various pleadings, etc., before the trial court at the time that it granted the summary judgment herein, we can find no such contravention of the affirmative defenses raised by appellant as would dissipate them. In the absence of such a finding, we have concluded that the summary judgment was improperly entered; therefore, it is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.


text:
    Victor VILLA, Appellant, v. NATIONWIDE MUTUAL INSURANCE COMPANY, Appellee.
    No. 76-2288.
    District Court of Appeal of Florida, Third District.
    Jan. 24, 1978.
    Joe N. Unger, Miami, for appellant.
    Weinstein & Bavly and Arthur J. Mor-burger, Miami, for appellee.
    Before HUBBART and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The plaintiff Victor Villa appeals a final summary judgment in a personal injury action in favor of the alleged tortfeasor’s insurer, Nationwide Mutual Insurance Co., which was joined along with the tortfeasor as a defendant in this action. The plaintiff contends that the insurance policy previously issued by Nationwide Mutual Insurance Co. to the alleged tortfeasor defendant was in effect at the time of the automobile accident sued upon in this action; in particular, the plaintiff argues that the Hialeah Insurance Agency clothed with apparent authority to represent Nationwide Mutual Insurance Co. received from the alleged tortfeasor Shirley Morse and mailed to Nationwide the necessary premium to renew the said policy prior to the expiration date of said policy. Without deciding whether the evidence establishes this contention as a matter of law, we do agree with the plaintiff that a genuine issue of material fact exists with reference to the above contention making the summary judgment herein inappropriate based upon the following authorities: Brown v. Giffen Industries, Inc., 281 So.2d 897, 900 (Fla.1973); Milros-Sans Souci, Inc. v. Dade County, 296 So.2d 545, 548 (Fla.3d DCA 1974); Nationwide Mutual Insurance Co. v. Mason, 218 So.2d 185 (Fla. 4th DCA 1969); American Casualty Co. of Reading, Pennsylvania v. Castellanos, 203 So.2d 26 (Fla. 3d DCA 1967). Accordingly, the final summary judgment appealed from is reversed and the cause remanded to the trial court for further proceedings.

Reversed.


text:
    Larry JOHNSON a/k/a Michael T. Williams, Appellant, v. The STATE of Florida, Appellee.
    No. 76-2336.
    District Court of Appeal of Florida, Third District.
    Jan. 24, 1978.
    Bennett H. Brummer, Public Defender and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before PEARSON, BARKDULL and NATHAN, JJ.
   PER CURIAM.

The defendant, Larry Johnson, pleaded nolo contendere to an information charging him with burglary of a dwelling. A ruling denying defendant’s motion to suppress evidence was reserved for appeal. The point presented urges that the motion to suppress a fingerprint sample should have been granted because the sample was obtained as a result of an illegal arrest.

It affirmatively appears from this record that the defendant’s arrest was not for the purpose of obtaining his fingerprint as in Davis v. Mississippi, 393 U.S. 821, 89 S.Ct. 149, 21 L.Ed.2d 93 (1968). Defendant’s arrest was based upon an account of an eyewitness who provided specific information of defendant’s acts and a sufficient description of the defendant to support his identification as the culprit. The fact that this witness’ testimony would not, in the absence of other evidence, have been sufficient to convict the defendant does not make the arrest illegal. See State v. Outten, 206 So.2d 392 (Fla.1968); and cf. Martin v. State, 194 So.2d 291 (Fla. 3d DCA 1967). The point is without merit. See Paulson v. State, 257 So.2d 303 (Fla. 3d DCA 1972).

A second point presented does not show reversible error. See Berkman v. Miami National Bank, 143 So.2d 535 (Fla. 3d DCA 1962).

Affirmed.


text:
    Harry LAMB, Appellant, v. The STATE of Florida, Appellee.
    No. 77-20.
    District Court of Appeal of Florida, Third District.
    Jan. 24, 1978.
    Bennett H. Brummer, Public Defender and Karen M. Gottlieb, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before PEARSON, BARKDULL and NATHAN, JJ.
   PER CURIAM.

The single point presented on this appeal is that the trial judge erred in denying the defendant’s motion to strike “also, known as Robert Morgan” from the information. The appellant, Harry Lamb, was found guilty by a jury of burglary of a structure with intent to commit petit larceny and of petit larceny.

An information was filed which charged the defendant as “Harry Lamb also known as Robert Morgan.” The defendant pleaded not guilty at arraignment. Immediately prior to trial, he moved to strike the designated portion of the information. Defense counsel admitted that the defendant had used the name “Robert Morgan” at his preliminary hearing. The court denied the motion.

No Florida case has been cited which holds that the use of a second name in an information is reversible error. But see Fla.R.Crim.P. 3.140(d)(2). We recognize that there may be situations where the use of one or more “alias” names might tend to prejudice the defendant’s right to a fair trial. See the discussions in D’Allessandro v. United States, 90 F.2d 640 (3d Cir. 1937); United States v. Grayson, 166 F.2d 863 (2d Cir. 1948); and State v. Varner, 329 S.W.2d 623 (Mo.1959).

The present matter does not fall within the theory of such cases for several reasons. First of all, there was nothing inherently demeaning in the appellation used. Secondly, the word “alias” was not used. Also, the two names were relevant because the defendant acknowledged his double identity at the preliminary hearing. Cf. People v. Fognini, 47 Ill.2d 150, 265 N.E.2d 133 (1970); and see the point of law in Castle v. State, 305 So.2d 794, 797 (Fla. 4th DCA 1974). Therefore, no prejudice has been shown.

Affirmed.


text:
    The STATE of Florida, Appellant, v. Edward J. WARD, Jr., Appellee.
    No. 77-86.
    District Court of Appeal of Florida, Third District.
    Jan. 24, 1978.
    Janet Reno, State’s Atty. and Milton Robbins, Asst. State’s Atty., for appellant.
    Bennett H. Brummer, Public Defender and Beth C. Weitzner, Asst. Public Defender, for appellee.
    Before HAYERFIELD, C. J., and HEN-DRY and KEHOE, JJ.
   PER CURIAM.

The State of Florida appeals an order granting defendant, Edward J. Ward, Jr., a new trial following, his conviction for burglary of a structure.

The State argues that where the subject burglary information against Ward alleged ownership in the “Eagle Family Discount Stores, Inc.” and the evidence at trial showed ownership in “Eagle Family Discount Stores” and all other elements of the crime were proved, such a variance when considered in light of Fla.R.Crim.P. 3.140(o) is not so material as to require a new trial.

The State has misconceived the issue involved in the instant case. The above variance was not the ground for entry of the appealed order granting the new trial. The basis for this order was the insufficiency of the proof of ownership of the burglarized structure.

The well established law is that the ownership of the building alleged to have been burglarized is one of the material and substantive elements which must be proved to sustain a burglary conviction. Smith v. State, 96 Fla. 30, 117 So. 377 (1928); Sifford v. State, 202 So.2d 14 (Fla. 3d DCA 1967); Mitchell v. State, 317 So.2d 465 (Fla. 4th DCA 1975).

There is no evidence in the record which proved or tended to prove that the burglarized structure was owned by Eagle Family Discount Stores, Inc. or that it had any possessory interest therein. The proof with respect to the subject structure was descriptive only in that it was variously labeled the “Eagle Army-Navy Store”, “Eagle Department Store”, “Eagle Discount Store” and “Eagle Army-Navy”. Cf. Lopez v. State, 106 Fla. 361, 143 So. 303 (1932).

We, therefore, find that the trial court was eminently correct in granting Ward a new trial. See Sifford, supra.

Affirmed.


text:
    CONTINENTAL SOUTHEAST LAND CORPORATION, Appellant, v. Barbara RAYMOND, Appellee.
    No. 77-111.
    District Court of Appeal of Florida, Third District.
    Jan. 24, 1978.
    Lewison, Rayvis & Rapport, Miami, for appellant.
    Smith, Mandler, Smith, Werner & Jaco-bowitz and Patricia M. Silver, Miami Beach, for appellee.
    Before HAVERFIELD, C. J., and HEN-DRY and KEHOE, JJ.
   PER CURIAM.

Affirmed. See Polar Enterprises, Inc. v. Srednicki, 354 So.2d 419 (Fla. 3d DCA, opinion filed January 17, 1978).


text:
    Robert G. KRANTZLER et al., Appellants, v. BOARD OF COUNTY COMMISSIONERS OF DADE COUNTY et al., Appellees.
    No. 77-832.
    District Court of Appeal of Florida, Third District.
    Jan. 24, 1978.

      Richard N. Friedman, Miami, for appellants.
    Stuart Simon, County Atty. and Stephen P. Lee, III, Asst. County Atty., for appel-lees.
    Before HAVERFIELD, C. J., and NATHAN and HUBBART, JJ.
   PER CURIAM.

This is an appeal by citizens of Dade County, plaintiffs below, from an order dismissing, with prejudice, their suit against the Board of County Commissioners and other officials of Dade County. The case arises from the distribution by the county of a brochure which plaintiffs alleged proselytized in favor of the imposition of a sales tax to help fund mass transit in the county.

On October 5, 1976, the Board of County Commissioners, by resolution, authorized expenditures for the printing of “educational and informational materials concerning mass transit funding in an amount not to exceed $7,500.00.” Brochures were distributed prior to the elections of November 2, 1976, in which the voters of Dade County rejected a proposed one cent increase in the sales tax.

On December 12, 1976, plaintiffs filed their complaint in the Circuit Court for Dade County, invoking its equity jurisdiction and stating that they were citizens and residents of Dade County. The complaint sought, among other things, an injunction against future distribution of promotional brochures for passage of a sales tax, reimbursement to Dade County of the tax payers’ funds expended for the brochures, a designation of who was responsible for the printing of the brochures and the sources of information contained therein in any brochures still being distributed and in any future brochures, and a declaration that the pamphlet violated the Dade County Citizens’ Bill of Rights in that it omitted material facts and materially misrepresented other facts. Specific factual allegations of such misrepresentations and omissions were included in the complaint. Indeed, they covered several pages.

On December 27,1976, defendants filed a motion to dismiss, which was granted, with prejudice, on March 4, 1977. The circuit court found that plaintiffs could not, “under any circumstances, plead facts showing their standing to maintain this action, . or any circumstances sufficient to invoke this court’s equity jurisdiction.” We disagree and reverse the order of dismissal.

As to the question of whether plaintiffs could show standing to sue, we note that they did not allege that they were tax payers. Such failure should not be deemed fatal to the establishment of their right to sue. A suit by citizens and residents is well understood as being the substantial equivalent of a suit by tax payers. While such allegation may be necessary to maintenance of the suit, it is axiomatic that the right to amend should be freely granted in situations where trial has not yet begun and no harm is done thereby to the opposing side.

Assuming amendment is made, the question which remains is whether there are sufficient allegations in the complaint to justify a tax payers’ suit. A tax payer has the right to maintain an action

if the acts complained of were unauthorized and not within the powers of the board of county commissioners, and tended to produce a resultant injury to the complainant by increasing the burden of his taxes. The right of a citizen and taxpayer to maintain a suit to prevent the unlawful expenditure by public officials of public moneys, unless otherwise provided by legislative enactment, is generally recognized. The nature of the powers exercised by county commissioners who are vested by law with the power of levying taxes for county purposes and the expenditure of county funds, the danger of the abuse of such powers . and the necessity for prompt action to prevent their flagrant abuse and irremed-ial injuries flowing therefrom would seem to fully justify courts of equity in interfering upon the application of a county taxpayer and citizen. (Citations omitted.) The principle on which the right rests is that the taxpayer is necessarily affected and his burdens of taxation increased by any unlawful act of the county commissioners which may increase the burden to be borne by the taxpayers of the county, and no relief from such injury is obtainable elsewhere than in a court of equity. . . . The taxpayer’s injury specially induced by the unlawful act is the basis of his equity, and unless it is alleged and proved, there can be no equitable relief.

Rickman v. Whitehurst, 73 Fla. 152, 74 So. 205 (1917) at 207. See also Crampton v. Zabriskie, 101 U.S. 601, 25 L.Ed. 1070 (1880); Peck v. Spencer, 26 Fla. 23, 7 So. 642 (1890); Kathleen Citrus Land Co. v. City of Lakeland, 124 Fla. 659, 169 So. 356 (1936). See generally McQuillin, Municipal Corporations, ch. 52, §§ 52.01-08 (Third Ed., 1977 revised volume 18).

We acknowledge that the complaint before us is somewhat less than well pled. But complainants do allege facts which they contend show material misrepresentations and omissions in the brochures which were distributed. The Dade County Citizens’ Bill of Rights, which has been incorporated into the Metropolitan Dade County Home Rule Charter, states:

(A) This government has been created to protect the governed, not the governing. In order to provide the public with full and accurate information, to promote efficient administrative management, to make government more accountable, and to insure all persons fair and equitable treatment, the following rights are guaranteed:
2. Truth in government. No county or municipal official or employee shall knowingly furnish false information on any public matter, nor knowingly omit significant facts when giving requested information to members of the public.
(C) Remedies for violations. In any suit by a citizen alleging a violation of this article filed in the Dade County Circuit Court pursuant to its general equity jurisdiction, the plaintiff, if successful, shall be entitled to recover costs as fixed by the court. Any public official or employee who is found by the court to have willfully violated this article shall forthwith forfeit his office or employment. (D) Construction. All provisions of this article shall be construed to be supplementary to and not in conflict with the general laws of Florida. .

If a tax paying citizen of Dade County could not contest alleged violations of this Bill in a court of equity, he would have no recourse for misappropriations of his tax dollars, and the stated purposes of the Bill would be ignored. Thus we find that the trial court erred in ruling that plaintiffs could not, “under any circumstances” show standing to bring suit.

The next point we reach is whether, granting that plaintiffs have the right as taxpayers to bring suit under an amended complaint, the trial court was correct in its assertion that they could not show circumstances sufficient to invoke its equity jurisdiction. The complaint is drafted in such a way as to deal at length with wrongs alleged to have been committed in the past. Defendants contend that, since the monies have already been spent, the challenged act has already been completed, and injunctive relief is inappropriate. They also aver that plaintiffs have an adequate remedy at law for reimbursement, and equity jurisdiction will not lie if there is an adequate remedy at law.

The Supreme Court of Florida has held that

It is too well settled to be seriously questioned that a taxpayer has the right to maintain a suit against officers who have squandered or dissipated public funds, or who have unlawfully disposed of . public funds.
[I]t appears to follow, necessarily, that suit must be instituted and maintained in equity because as a taxpayer the claimant has no right to recovery in his own behalf against the defendant, but he must recover, if at all, a judgment or decree which will require the wrongdoer to return . that which such wrongdoer has misappropriated . . . from the public treasury. Certainly there can be no difference in basic principles upon which rests the right of a taxpayer to enjoin ultra vires acts of public officers . . and upon which rests the right of the taxpayer to require an accounting from and disgorgement by public officers

Armstrong v. Richards, 128 Fla. 561, 175 So. 340 (1937) at 341. On the facts before us, plaintiffs not only sought reimbursement of funds which they alleged were improperly spent, but also sought an injunction against future promotional brochures.

A plaintiff must establish his right to equitable relief by alleging facts, not conclusions or statements of opinion. Brandon v. County of Pinellas, 141 So.2d 278 (Fla.2d DCA 1962). But if his allegations show any grounds for equitable relief,, his pleadings should be regarded as sufficient, as against a motion for dismissal, Fleming v. State Road Department, 157 Fla. 170, 25 So.2d 373 (1946), and the complaint must be viewed most favorably to the pleader, Brandon, supra; Dawson v. National Home Insurance Company, 138 So.2d 356 (Fla.3d DCA 1962). Therefore, we find that the trial court erred in ruling that plaintiffs’ complaint was inadequate to invoke its equity jurisdiction.

Defendants contend that the central issue involved on this appeal concerns the extent of the county’s power to spend. We do not find this contention accurate. Since the case was dismissed with prejudice upon a finding of lack of standing and lack of jurisdiction, the issue of the county’s power to spend is not before us. It may well be controlling at trial of the cause, but this concern is premature in the present posture of the case. We do not reach either the issue of whether the contested brochure was in fact propagandist or misleading, nor that which asks whether Dade County has the authority to expend public funds to proselytize on issues concerning the public welfare as perceived by the Board of County Commissioners. We hold today only that the trial court erred in dismissing plaintiffs’ suit with prejudice. It should have been dismissed without prejudice to plaintiffs to amend their complaint.

Reversed and remanded for proceedings consistent with this opinion.


text:
    Dennis Robert HUGHES, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1111.
    District Court of Appeal of Florida, Third District.
    Jan. 24, 1978.
    Bennett H. Brummer, Public Defender and Warren S. Schwartz, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and BARK-DULL and NATHAN, JJ.
   PER CURIAM.

This is an appeal from a denial of a Fla.R.Crim.P. 3.850 motion. The motion was correctly denied. See: Clements v. State, 320 So.2d 44 (Fla. 3d DCA 1975), wherein the following is found:

sfc S}C * ifc * S(!
“ * * * Relief from a judgment of conviction under Rule 3.850 is not proper where the ground raised was presented on appeal or was properly presentable thereon. Reinard v. State, Fla.App.1972, 267 So.2d 88; Koedatich v. State, Fla. App.1974, 287 So.2d 738; Jenkins v. State, Fla.App.1972, 267 So.2d 886.”
% ¡‡: ¡j« sf: ü:

The appellant had a full appeal upon his conviction. The issues presented by the 3.850 petition either were or could have been presented in his appeal in chief, which was affirmed in Hughes v. State, 272 So.2d 21 (Fla. 3d DCA 1973), cert. denied Fla., 282 So.2d 877. Therefore, the order under review be and the same is hereby affirmed.

Affirmed.


text:
    UNITED RESOURCES, INC., a Florida Corporation, Appellant, v. HERBERT H. JOHNSON ASSOCIATES, ARCHITECTS, INC., a Florida Corporation, Appellee.
    No. 77-1234.
    District Court of Appeal of Florida, Third District.
    Jan. 24, 1978.
    Guy B. Bailey, Jr., and William Berger, Miami, for appellant.
    A. John Goshgarian, Miami, for appellee.
    Before PEARSON and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See: Mike Bradford & Co. v. Gulf States Steel Co., 184 So.2d 911, 913, 915 (Fla.3d DCA 1966); Hall v. Nationwide Insurance Company, 189 So.2d 224, 225 (Fla.4th DCA 1966); Ojus Industries, Inc. v. Mann, 221 So.2d 780, 782 (Fla.3d DCA 1969); Gettles v. Commercial Bank at Winter Park, 276 So.2d 837, 839-840 (Fla.4th DCA 1973); Seville Condominium # 1, Inc. v. Clearwater Development Corporation, 340 So.2d 1243, 1245 (Fla.2d DCA 1977).


author: HENDRY, Judge.

text:
    DADE COUNTY, a political subdivision of the State of Florida, Petitioner, v. Honorable Rhea P. GROSSMAN, Judge of the Circuit Court of the Eleventh Judicial Circuit, in and for Dade County, Florida, Lawrence Rodgers, and Essie Mae Green, Respondents.
    No. 77-1352.
    District Court of Appeal of Florida, Third District.
    Jan. 24, 1978.
    Stuart L. Simon, County Atty., and Clifford A. Schulman, Asst. County Atty., for petitioner.
    Horton, Perse & Ginsberg and Arnold R. Ginsberg, Brumer, Moss, Cohen & Rodgers, Miami, for respondents.
    Before HENDRY and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   HENDRY, Judge.

Dade County, by petition for writ of cer-tiorari, seeks review of a final judgment which ordered it to pay attorney’s fees and costs to a court-appointed attorney in a civil suit.

The subject suit, Herdisene Latanya Griffin, f/u/b/o Shelby Mutual Insurance Company v. Essie Mae Green, Case No. 74-22599, in the Circuit Court of the Eleventh Judicial Circuit, alleged a cause of action for subrogation of an insurance claim paid by Shelby and alleged due and owing through said subrogation from Green. Dade County, the petitioner herein, was not a party to the lawsuit.

Pursuant to an ore tenus motion from Ms. Green, the court determined that while she did not qualify for representation by Legal Services, she was nonetheless “indigent in terms of being able to afford the services of a private lawyer.” In response to said motion, counsel was appointed to represent Ms. Green in the subrogation action. By order, attorney’s fees and costs were to be paid by the county.

The lawsuit was subsequently settled by stipulation of counsel and final judgment entered by the court directing the county to pay attorney’s fees and costs to Green’s attorney. It is this final judgment which is now under review.

Initially, we note that certiorari proceeding is the proper method for review of, an order taxing costs and attorney’s fees entered against the county in a suit to which it was not a party. Dade County v. Baker, 237 So.2d 545 (Fla. 3d DCA 1970); Dade County v. McCrary, 260 So.2d 543 (Fla. 3d DCA 1972). With that in mind, our attention is now focused on the only question that need be addressed by this court, to-wit:

Whether the trial court departed from the essential requirements of law in taxing the county for costs and fees in a civil action (insurance subrogation) to which it was not a party.

For the reason that follows, we hold that the court did so depart from the essential requirements of law and quash the judgment.

It is well settled in Florida, that attorney’s fees may not be awarded in any matter unless specifically authorized by statute or agreement between the parties. Phoenix Indemnity Company v. Union Finance Company, 54 So.2d 188 (Fla.1951); In Re Field’s Estate, 121 So.2d 46 (Fla. 1st DCA 1960). As there was no agreement on behalf of the county to pay attorney’s fees herein, it was incumbent upon the court to base the award of fees and costs upon statutory authority. Dade County v. McCrary, supra. We find no such statutes authorizing the county to absorb court costs and legal fees in a civil insurance subrogation matter to which it was not made a party. See Bower v. Connecticut General Life Insurance Company, 347 So.2d 439 (Fla. 3d DCA 1977).

Accordingly, after carefully reviewing the record, briefs and arguments of counsel, it is our opinion that the trial court departed from the essential requirements of law and therefore, certiorari is hereby granted and the judgment of the trial court quashed.

It is so ordered.


text:
    The STATE of Florida, Appellant, v. J. C. BLACK, Appellee.
    No. 77-1512.
    District Court of Appeal of Florida, Third District.
    Jan. 24, 1978.
    Janet Reno, State’s Atty., and Howard S. Miller, Asst. State’s Atty., for appellant.
    Bennett H. Brummer, Public Defender, and Kurt Marmar, Asst. Public Defender, for appellee.
    Before PEARSON, BARKDULL and NATHAN, JJ.
   PER CURIAM.

Affirmed. See Hornblower v. State, 351 So.2d 716 (Fla.1977); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).


text:
    Shirley T. WESTBERRY, Appellant, v. GENERAL WATERWORKS CORPORATION, a Delaware Corporation, Aetna Life and Casualty Company, a Foreign Corporation and Michael Glynn Evans, Appellees.
    Nos. 77-1648, 77-2131.
    District Court of Appeal of Florida, Third District.
    Jan. 24, 1978.

      Vogler & Postman, Miami, for appellant.
    Rash & Katzen, South Miami, Prates, Floyd, Pearson, Stewart, Richman & Greer and John Brumbaugh, Preddy, Kutner & Hardy, Miami, for appellees.
    Before NATHAN and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See Jones v. Stoutenburgh, 91 So.2d 299 (Fla.1956); State v. Kelly, 76 So.2d 798 (Fla.1954); State v. Kelly, 71 So.2d 887 (Fla.1954); Gorchov v. State, 331 So.2d 346 (Fla. 3d DCA 1976); Strate v. Strate, 328 So.2d 29 (Fla. 3d DCA 1976); Biscayne Manufacturing Corp. v. Sandav Corp., 323 So.2d 315 (Fla. 3d DCA 1975); Holmes v. State, 311 So.2d 780 (Fla. 3d DCA 1975); Fernandez v. Arocha, 308 So.2d 45 (Fla. 3d DCA 1975); and Brizzie v. State, 120 So.2d 27 (Fla. 2d DCA 1960).


text:
    Johnnie S. CATCHES, Sr., Appellant, v. Barbara Ann CATCHES, Appellee.
    No. GG-331.
    District Court of Appeal of Florida, First District.
    Jan. 25, 1978.
    John L. Myrick, of Myrick & McKenzie, Pensacola, for appellant.
    W. H. F. Wiltshire, of Harrell, Wiltshire, Stone & Swearingen, Pensacola, for appel-lee.
   PER CURIAM.

Husband appeals the trial court’s permanent alimony award to wife in a dissolution proceeding. On consideration of the record, the briefs and the oral argument, we find that the award of permanent, as opposed to rehabilitative, alimony is justified in view of wife’s unrebutted testimony at trial that she was then being treated for a heart condition and had been instructed by her doctor to resign her employment. We note that the award is subject to modification if wife recovers and is able to work in the future. Husband’s other points are without merit.

Wife’s petition for an award of attorney’s fees incurred in defending this appeal will be granted provisionally in accordance with this court’s opinion in Dresser v. Dresser, 350 So.2d 1152 (Fla. 1st DCA 1977).

AFFIRMED.

SMITH, Acting C. J., and ERVIN and BOOTH, JJ., concur.


author: MILLS, Judge.

text:
    Jerry Douglas WOOD, Appellant, v. STATE of Florida, Appellee.
    No. GG-357.
    District Court of Appeal of Florida, First District.
    Jan. 25, 1978.
    Michael J. Minerva, Public Defender, Judith J. Dougherty, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., A. S. Johnston, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

The State filed an information charging Wood with willfully failing to appear for trial on felony charges contrary to Section 843.15(l)(b), Florida Statutes (1975). Wood pled guilty and was sentenced to five years in prison less 128 days time served. Wood now appeals and contends that he was confused as to whether he pled to a felony or a misdemeanor; that he was not permitted to consult with his attorney concerning his request to withdraw his guilty plea; that he was not granted additional time to present mitigating evidence prior to sentencing; • and that the allegations of the information were insufficient to support his adjudication of guilt. 0

Initially, Wood pled not guilty but later changed his plea to guilty. When this was done the trial court clearly informed Wood and his attorney that Wood was charged with a felony known as failure to appear at a court proceeding which was a felony of the third degree and punishable by a maximum sentence of five years. Wood stated that he had given his attorney sufficient information to enter the plea and that he agreed to the plea. Wood and his attorney understood he was pleading guilty to a felony.

It is clear from the record that Wood and his attorney understood that Wood was pleading guilty to a felony and that the attorney was close to trifling with the court when she asked for a moment to speak to her client about withdrawing his guilty plea when she had already had two months to do this.

Wood and his attorney had approximately two months to prepare his presentation of mitigating circumstances prior to sentencing but apparently did nothing. At the sentencing proceeding, the court properly denied Wood’s request for additional time.

The information alleged a violation contrary to Section 843.15(l)(b) when it should have alleged Section 843.15(l)(a). This is of no consequence however. The information charged Wood with a felony. The court informed him he was charged with a felony punishable as a third degree felony. Wood agreed to enter a plea of guilty to the felony charge. Fla.R.Crim.P. 3.140(d)(1) provides that an error in a citation shall not be a ground for reversal of a conviction based thereon if the error did not mislead the defendant to his prejudice. There has been no showing that Wood was misled or prejudiced. Tukes v. State, 346 So.2d 1056 (Fla. 1st DCA 1977).

The judgment and sentence are affirmed.

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


text:
    William N. BOAZ, Jr., Appellant, v. Elizabeth G. BOAZ, Appellee.
    No. GG-392.
    District Court of Appeal of Florida, First District.
    Jan. 25, 1978.
    Charles G. Felder, of Clayton, Duncan, Johnston, Quincey, Ireland, Felder & Gadd, Gainesville, for appellant.
    Stephen A. Rappenecker, Gainesville, for appellee.
   PER CURIAM.

The trial court’s award of the marital home to wife as lump sum alimony in this dissolution proceeding is affirmed. The award of her attorney’s fees is reversed; it is apparent from the record that she had substantial assets at her disposal. On the same basis, her cross-claim for permanent alimony will be denied.

AFFIRMED IN PART and REVERSED IN PART.

SMITH, Acting C. J., and ERVIN and BOOTH, JJ., concur.


text:
    Moses GREEN, Appellant, v. STATE of Florida, Appellee.
    No. GG-418.
    District Court of Appeal of Florida, First District.
    Jan. 25, 1978.

      Michael J. Minerva, Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and George R. Georgieff, Asst. Atty. Gen., for appellee.
   PER CURIAM.

This is an appeal from judgment and sentence of the Appellant for the offense of burglary, Section 810.02, Florida Statutes (1975). The jury found the Appellant guilty of burglary of a conveyance, and the Appellant was adjudicated guilty of the offense and sentenced to five years imprisonment. After having served one year of this term, Appellant was to be placed on probation for a period of five years.

The offense, herein charged, was a third degree felony punishable by imprisonment up to five years pursuant to Sections 810.-02(3), 775.082, Florida Statutes (1975). The Appellant was herein sentenced to combined terms of imprisonment and probation, which exceeded the maximum five year sentence by one year. As the State concedes, this was an illegal sentence. Moore v. State, 324 So.2d 690 (Fla. 1st DCA 1976); Troiano v. State, 347 So.2d 657 (Fla. 4th DCA 1977); Myers v. State, 347 So.2d 1053 (Fla. 4th DCA 1977). Accordingly, the Appellant’s sentence is modified to reduce the period of probation from five years to four years.

We have examined the remaining point on appeal and have found no reversible error.

Therefore, the judgment is affirmed and the sentence is affirmed as modified.

SMITH, Acting C. J., and ERVIN and BOOTH, JJ., concur.


author: HOBSON, Acting Chief Judge.

text:
    CITY OF ST. PETERSBURG, Florida, a Municipal Corporation, Appellant, v. VINOY PARK HOTEL COMPANY, a Florida Corporation, et al., Appellees.
    No. 77-617.
    District Court of Appeal of Florida, Second District.
    Jan. 25, 1978.

      Michael S. Davis, Chief Asst. City Atty., and Larry D. Brown, Asst. City Atty., St. Petersburg, for appellant.
    Charles P. Schropp of Shackleford, Farri- or, Stallings & Evans, Tampa, for appellees.
   HOBSON, Acting Chief Judge.

The City of St. Petersburg (City) filed an action in eminent domain to condemn land owned by the Vinoy Park Hotel Company (Vinoy Park) for waterfront park purposes. Vinoy Park answered, contending that there was a lack of necessity to condemn the land for park purposes. After trial on this issue the circuit court held in favor of Vinoy Park and entered final judgment.

The City filed a notice of appeal of the final judgment. While that appeal was pending in this court the circuit court entered an order assessing costs and attorney fees in the case.

The City appeals the order awarding costs and attorney fees and contends that the circuit court lost jurisdiction of the cause when the notice of appeal was filed to review the final judgment entered on the merits of the case.

This court in City of St. Petersburg v. Vinoy Park Hotel Co., 352 So.2d 149 (Fla. 2d DCA 1977) reversed the final judgment, holding that the City did show a public necessity and remanded the cause for further proceedings.

In the instant appeal the award of attorney fees was substantially based on the fact that Vinoy Park was successful in defeating the condemnation by showing that there was no public necessity. In view of the fact that the City prevailed on the appeal and the cause was remanded for further proceedings, we do not have to reach the question of whether or not the trial court lost jurisdiction in this cause to enter the order appealed.

The order assessing costs and attorney fees is reversed and the cause remanded for an appropriate order taxing costs and attorney fees after the entry of final judgment of condemnation.

GRIMES and OTT, JJ., concur.


author: GRIMES, Acting Chief Judge.

text:
    Pierce LIBERMAN and Mitchell M. Murch, Appellants, v. Jane KELSO, formerly known as Jane Heinselman, Appellee.
    No. 77-792.
    District Court of Appeal of Florida, Second District.
    Jan. 25, 1978.

      Frederick Charles Kramer, Marco Island, for appellants.
    John P. Cardillo of Monaco & Cardillo, Naples, for appellee.
   GRIMES, Acting Chief Judge.

This is an appeal from a summary judgment declaring certain property owned by appellee to be free of the appellants’ judgment lien.

The parties stipulated to the pertinent facts. The appellee was formerly married to William H. Heinselman. In 1971 the appellants obtained a judgment against Mr. Heinselman which remains unsatisfied. In connection with a suit for dissolution of marriage, the appellee and her husband entered into a property settlement agreement on August 22,1975. The agreement provided that appellee should have sole title to and possession of the marital home and that • Mr. Heinselman should convey to her all of his right, title, and interest thereto. The property upon which the home was located was owned as tenants by the entireties. The settlement agreement was approved by the court and incorporated into the final judgment of dissolution.

The following year, appellee sought to sell her home but the purchasers’ attorney raised the question of whether the appellants’ judgment was a lien on the property. Thereupon, the appellee filed this suit and obtained the judgment which is assailed in this appeal. The property appears to have been homestead, but in view of our disposition of the case, we need not consider the legal ramifications of the homestead status. The issue before us is whether Mr. Heinsel-man at any time acquired an undivided one-half interest in the property upon which the lien of appellants’ judgment could attach.

In Hillman v. McCutchen, 166 So.2d 611 (Fla. 3d DCA 1964), the husband had given a mortgage upon entireties property without the joinder of his wife. The property was later awarded to the wife as lump sum alimony when the parties were divorced. In a later suit to foreclose the mortgage, the court held that the mortgagee had a lien on an undivided one-half interest in the property. Referring to a familiar Bible passage, the court reasoned that when the parties were divorced, title to the property became vested in the husband as a tenant in common pursuant to Section 689.15, Florida Statutes (1963) for the “twinkling of an eye” thereby subjecting his interest to the mortgage lien before the wife obtained full title.

More recently, the court in State Department of Commerce, Division of Employment Security v. Lowery, 333 So.2d 495 (Fla. 1st DCA 1976), reached the opposite conclusion. There, a man against whom several judgments had been entered owned property with his wife as tenants by the entireties. In anticipation of divorce, they entered into a property settlement agreement in which the husband agreed to convey to his wife the property in dispute. The stipulation was incorporated into the final judgment. The deed was executed and delivered prior to the entry of the judgment of dissolution, but it was not recorded until several days thereafter. The wife later filed a suit seeking to quiet her title to the property against the claims of those who contended that their judgments against her former husband constituted liens upon the property. The court held that the conveyance of the husband’s interest to the wife had the same legal effect as if the husband had died, thus allowing the wife to take the entireties property free of the claims of the husband’s judgment creditors.

The Hillman case was not cited in Lowery. While the supreme court denied cer-tiorari in Lowery, we can see no meaningful way in which the two decisions can be harmonized. Considering the unique status of a title which is held as tenants by the entireties, there is merit in both views. On balance, we are inclined toward the position of the First District Court of Appeal in Lowery.

Clearly, the judgment against Mr. Heinselman was not a lien against the en-tireties property so long as the parties were married. Ohio Butterine Co. v. Hargrave, 79 Fla. 458, 84 So. 376 (1920). In the absence of fraud, there would have been nothing to prevent Mr. Heinselman from conveying his interest in the property to appel-lee free of appellants’ lien prior to their divorce. See Section 689.11, Florida Statutes (1975); cf. Meyer v. Faust, 83 So.2d 847 (Fla.1955). Of course, Section 689.15, Florida Statutes (1975) specifies that in the case of estates by the entireties,’ the tenants shall become tenants in common upon divorce. However, this statute has never been construed to prohibit a court in a dissolution proceeding from awarding full title to entireties property to one of the spouses. See Quick v. Leatherman, 96 So.2d 136 (Fla.1957). Thus, the judgment of dissolution, the very event upon which the appellants rely to make Mr. Heinselman a tenant in common, ordered that the appel-lee should have sole title to the property. We do not consider the fact that the deed was not actually executed until after the dissolution as relevant because we deem the judgment of dissolution to be controlling. In essence, we believe that the transfer of the husband’s interest to the wife pursuant to the judgment of dissolution was equivalent to the defeasance of the husband’s interest in the property which would have occurred had he predeceased his wife while the parties were still married.

Our holding would not preclude an attack on the transfer as being in fraud of creditors. See Trueman Fertilizer Co. v. Stephan, 111 Fla. 207, 149 So. 349 (1933). However, in this case no such claim has been made, and the stipulated record affirmatively appears to the contrary. Ap-pellee was not even aware of the existence of appellants’ judgment at the time of the divorce. The arm’s-length nature of the transaction is further buttressed by the fact that the settlement agreement required ap-pellee to convey her interest in certain other property to the husband.

The judgment is affirmed.

RYDER and DANAHY, JJ., concur.


author: SCHEB, Judge.

text:
    James H. CYR, Sr., Appellant, v. Shirley D. CYR, Appellee.
    No. 77-993.
    District Court of Appeal of Florida, Second District.
    Jan. 25, 1978.
    Clark A. Stillwell of Tucker, Hicks, Blanchard, Brannen & Stillwell, Inverness, for appellant.
    No appearance for appellee.
   SCHEB, Judge.

Appellant husband challenges provisions of a final judgment of dissolution awarding custody of the children (ages 8, 6, and just under 2 years) to appellee wife, and requiring him to pay $25 a week support for each child.

The trial judge included the following language in the final judgment:

This order shall be extended to any child at the time age 18 is attained, is currently enrolled or shortly thereafter shall be enrolled in any institution of higher learning not having been married, shall continue the child support payments until such time that the said child completes, terminates, marries, or is deceased or reaches the age of 21 years.

Appellant contends the trial court was without authority to require child support after the 18th birthday of each minor child. We agree. Kowalski v. Kowalski, 315 So.2d 497 (Fla.2d DCA), cert. dismissed, 319 So.2d 31 (Fla.1975). Of course, under Section 61.13, Florida Statutes (1975), the trial court retains continuing jurisdiction to modify the amount or terms of support payments for children. Whether a child is a dependent beyond the age of 18 years should be determined by the court, if requested, at the time of attainment of majority by each child. Baldi v. Baldi, 323 So.2d 592 (Fla.3d DCA 1975). See also Section 743.07(2), Florida Statutes (1975).

We have examined appellant’s other contentions and find them to be without merit.

Accordingly, the quoted language is hereby elided and, as amended, the final judgment is affirmed.

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