author: SMITH, Judge.

text:
    Arthur M. WILLIAMS, Appellant, v Katharina K. WILLIAMS and the United States of America, Appellees.
    No. CC-316.
    District Court of Appeal of Florida, First District.
    Oct. 13, 1976.
    Rehearing Denied Nov. 19, 1976.

      Joel M. Cohen, Pensacola, for appellant.
    James D. Swearingen, of Harrell, Wilt-shire, Stone & Swearingen, and Nicholas P. Geeker, U. S. Atty. and J. Worth Owen, Asst. U. S. Atty., Pensacola, for appellees.
   SMITH, Judge.

By interlocutory appeal, Mr. Williams complains of the circuit court’s order for writ of garnishment subjecting his United States retirement benefits to payment of $5,735.72, plus costs, to Ms. Williams, his former wife, in satisfaction of a Florida judgment for arrearages payable by Mr. Williams under a Texas divorce decree. The United States has consented to be sued for the enforcement of any legal obligation by Mr. Williams to “make alimony payments.” 42 U.S.C. § 659.

Mr. Williams, supported in his argument by the United States Attorney, urges that the payments required of him by the Texas divorce decree were not for “alimony.” As a community property state, he argues, Texas forbids alimony as against public policy. McBride v. McBride, 256 S.W.2d 250 (Tex.Civ.App.1953). In dividing the parties’ community property, the Texas decree provided:

“(3) The retired Pay Account of Petitioner, ARTHUR M. WILLIAMS, is hereby divided 19/48 to Respondent, KA-THARINA K. WILLIAMS, and 29/48 to ARTHUR M. WILLIAMS as to said Account and all future payments and benefits therefrom.
“If Federal Statutes or regulations prevent the direct payment to Respondent of her share in such retired pay account as and when payments are made, then, in that event, the Respondent is hereby awarded a sum of money equal to 19/48 of the gross monthly retired service pay of Petitioner, ARTHUR M. WILLIAMS, as and when monthly payments are received by him from said retired pay account as a money judgment against Petitioner, and for the recovery of which execution may issue in case of nonpayment; or enforcement of this award and judgment may be had in any manner provided by law . .

Like the well-known rose by another name, these postmarital benefits of the Texas decree are tantamount to alimony for the purposes of statutes of the United States securing the enforcement of state alimony awards. See In re Nunnally, 506 F.2d 1024 (5th Cir. 1975), in which the Court of Appeals held a similar Texas award of pension benefits was “alimony” within the meaning of § 17 of the Bankruptcy Act, 11 U.S.C. § 35(a), providing that debts “for alimony due or to become due” are not dischargeable in bankruptcy. For the same reasons, liquidated arrearages due Ms. Williams may be considered “alimony” for purposes of 42 U.S.C. § 659 notwithstanding that the “alimony” may be offensive to Texas policy.

Interlocutory appeal dismissed.

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Hamilton C. FORMAN, Appellant, v. WOMETCO ENTERPRISES, INC. d/b/a WTVJ Channel 4, Appellee.
    No. 75-1785.
    District Court of Appeal of Florida, Fourth District.
    Oct. 15, 1976.
    Rehearing Denied Nov. 19, 1976.

      Eric B. Meyers and William J. Kendrick of Shutts & Bowen, Miami, for appellant.
    Joan S. Buckley and Peter Nimkoff of August, Nimkoff & Pohlig; Miami, for ap-pellee.
   PER CURIAM.

Upon review and due consideration of the briefs, record ,on appeal and oral argument we are of the opinion that no reversible error has been made to clearly appear. Accordingly, the order appealed is AFFIRMED.

MAGER, C. J., CROSS, J., and SMITH, LARRY G., Associate Judge, concur.


text:
    Gale J. STERN, Petitioner, v. INDUSTRIAL RELATIONS COMMISSION, DEPARTMENT OF COMMERCE, State of Florida, Respondent.
    No. 76-383.
    District Court of Appeal of Florida, Fourth District.
    Oct. 15, 1976.
    Rehearing Denied Nov. 17, 1976.
    Robert E. Korn of Bernstein, Hodsdon & Tannen, Miami, for petitioner.
    Lloyd Herold, North Palm Beach, for respondent/employer.
   PER CURIAM.

Petition for Writ of Certiorari Denied.

MAGER, C. J., and CROSS and DOW-NEY, JJ., concur.


author: HAVERFIELD, Judge.

text:
    Barney GOLDRING et al., Appellants, v. Eduardo ESCAPA et al., Appellees.
    Nos. 75-813, 75-814, 75-815 and 75-1085.
    District Court of Appeal of Florida, Third District.
    Oct. 19, 1976.
    Rehearing Denied Nov. 12, 1976.

      Adams, George, Lee & Schulte, Jeanne Heyward, Miami, for appellants.
    Horton, Perse & Ginsberg, Welsh & Carroll, Bradford, Williams, McKay, Kimbrell, Hamann & Jennings, Hawkesworth & Schmick, Miami, for appellees.
    Before BARKDULL, C. J., and HAVER-FIELD and NATHAN, JJ.
   HAVERFIELD, Judge.

Defendants appeal a final judgment in favor of plaintiffs entered after a jury trial in this personal injury action.

On January 2, 1972 Eduardo Escapa with his wife Magaly and a second passenger Ana Alfonso was driving his vehicle in a southeasterly direction on U.S. 27 when it collided with another vehicle being driven in the opposite direction by Ronald Gold-ring. Ronald’s mother was killed as a result of the heavy impact to the right side of Goldring’s vehicle. Escapa’s vehicle was also damaged on the right side. Mr. and Mrs. Escapa and Ana Alfonso filed suit against Ronald and his father Barney Goldring, the owner of the vehicle, and their liability insurer, Allstate Insurance Company. Ana Alfonso also sued Eduardo Escapa and his insurer, Government Employees Insurance Company. - The actions were consolidated for trial, where a conflict in the evidence arose as to whether Esca-pa’s car had crossed over the center line of the road into Goldring’s lane of travel or Goldring’s car had crossed over into Esca-pa’s lane of travel. Mr. Dollar, Escapa’s expert witness testified that he could not resolve the question of which vehicle crossed over the center line of the road. The jury found for the Escapas and Ana Alfonso against Ronald and Barney Gold-ring and Allstate; for Ana Alfonso against Eduardo Escapa and GEICO. Appellants Ronald and Barney Goldring and Allstate perfected this appeal.

Appellants first contend that the trial court erred in excluding the testimony of their expert witness. We find this point well taken.

The salient facts with respect to this issue are that.during pretrial discovery plaintiffs propounded to the appellants interrogatories requesting the names of expert witnesses and the subject matter of their expected testimony. On February 14, 1974 appellants answered that they intended to call Frank Flanagan as an accident reconstruction expert, but they had not received his actual opinion. On February 22 plaintiffs filed a motion to compel discovery to limit testimony at the time of trial, wherein they sought Flanagan’s opinion be given to them 30 days before trial. After a hearing, on July 16 the trial judge entered an order requiring appellants to answer the interrogatories regarding the substance of Flanagan’s opinion 45 days prior to trial (set for January 27, 1975) and upon failure to comply, Flanagan would not be allowed to testify. On January 17 appellants filed answers to the interrogatories and set forth the substance of Flanagan’s anticipated testimony and opinion, and also moved to vacate the July 16, 1974 order on the grounds that previously they had been unable to obtain Flanagan’s report and opinion. After a hearing on the motion to vacate, the trial judge reset the trial date to February 24, 1975 but refused to vacate his order of July 16. Thereupon, appellants offered to produce Flanagan for deposition in Miami at their expense, but plaintiffs did not accept. Appellants again requested the trial judge to permit Flanagan to testify, but he refused and they were forced to try the case without the benefit of the testimony of their sole expert witness.

Where the testimony as so conflicting and a great reliance on the physical evidence was necessary to reconstruct the accident, the testimony of appellants’ expert witness was not only admissable, but would have advanced the ends of justice. Cf. Mills v. Redwing Carriers, Inc., 127 So.2d 453 (Fla.2d DCA 1961).

Further, we find that the trial judge did not find nor does the record reveal that appellants’ failure to comply with the July 16, 1974 order was deliberate; however, the record is susceptible to the interpretation that the failure to comply was due to circumstances beyond appellants’ control and, thus, we conclude the trial judge abused his discretion in refusing to allow Flanagan to testify. See Metro Sporting Goods, Inc. v. Mutual Employees Trademart, 176 So.2d 578 (Fla.3d DCA 1964); Swindle v. Reid, 242 So.2d 751 (Fla.4th DCA 1970).

In addition, we note that appellants answered the interrogatories concerning the substance of Flanagan’s opinion slightly under 45 days prior to the time of trial when the trial judge entered the order excluding his testimony. Plaintiffs themselves claimed no surprise, prejudice or unfair advantage if Flanagan had been allowed to testify, but relied upon the technical rules of civil procedure.

Appellants also urge as error the denial of their motion for mistrial when on the 4th day of trial one of the jurors appeared intoxicated by having alcohol on his breath, making grimacing motions, waving his hands and attempting to engage in conversation with the other jurors about the case during the reception of evidence which disturbed the jurors. Instead of declaring a mistrial, the judge simply removed the troublesome juror and put an alternate jur- or in his place. We find the failure to declare a mistrial erroneous. An excessive use of liquor by a juror during the trial is such misconduct as will vitiate the verdict. See 58 Am.Jur.2d New Trial § 81 at p. 273 (1971).

The final judgments are reversed and the cause remanded for a new trial.


text:
    William Ray WILLIAMSON, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1845.
    District Court of Appeal of Florida, Third District.
    Oct. 19, 1976.
    Rehearing Denied Nov. 12, 1976.

      Phillip A. Hubbart, Public Defender, and Mallory Horton, Special Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before BARKDULL, C. J., and HAVER-FIELD and NATHAN, JJ.
   PER CURIAM.

Defendant-appellant was informed against, tried by jury and found guilty of involuntary sexual battery, and possession of a firearm while engaged in a felony.

Defendant raises some seven points on appeal, only one of which is worthy of discussion, to wit: The trial court committed reversible error by not instructing the jury on the issue of consent and proof in the case. Defendant argues that since the testimony of the prosecutrix is not supported by other evidence, the trial judge should have specifically instructed the jury to rigidly examine her testimony, especially as it related to the nature and extent of the force used and as it related to the question of whether or not consent was ever given.

In 1974 the legislature passed a new statute abolishing the crime of rape and establishing the new crime of sexual battery. Section 794.011, Florida Statutes (1974). The standard jury instructions were amended with regards to this statute and the revised instructions no longer provide for the necessity of giving the jury a specific instruction that the testimony of the prose-cutrix must be rigidly examined. It is within the discretion of the trial judge to render such an instruction. See Fla.R. Crim.P. 3.985. The judge gave the applicable standard jury instructions approved by our Supreme Court and we can find no error in refusing to go beyond the standard instructions to those requested by the defendant. See Dean v. State, 277 So.2d 13 (Fla.1973).

Affirmed.


text:
    Douglas TUNSIL, Appellant, v. The STATE of Florida, Appellee.
    No. 75-996.
    District Court of Appeal of Florida, Third District.
    Oct. 26, 1976.
    Rehearing Denied Nov. 12, 1976.

      Hirschhorn & Freeman, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

Appellant, defendant below, appeals from a final judgment of conviction and sentence entered by the trial judge after a jury found him guilty of manslaughter pursuant to Section 782.07, Florida Statutes (1973) and sentenced him to ten years incarceration, five years being withheld with five years probation.

Appellant was charged in an information with manslaughter in the death of one John Romer. On April 27, 1975, appellant was parked on the street in front of a local “hangout.” Appellant contends that, while his friend approached the parked auto, an unidentified man jumped in appellant’s car, brandishing a gun, and ordered him to, “Get me out of here.”

Appellant further contends that, while speeding away, he eyed a police vehicle in his rear view mirror and, hoping to catch the police officer’s attention, made an illegal turn and continued racing past several stop signs. A high speed chase ensued climaxed by the appellant striking the victim’s auto. The alleged third passenger in the car, the man with the gun, escaped, eluding the police. After the accident, appellant and his friend were arrested.

The victim, John Romer, was subsequently taken to a hospital in a coma. There, as a result of his comatose state, the victim developed pneumonia. Two days before his death, he was visited by a resident physician at the hospital. By a physical examination, the physician found evidence of pulmonary infection in both of the victim’s lungs. The doctor, however, refrained from giving the victim any medication “until feasable.” He returned two days later to pronounce the victim dead.

During the trial, the Assistant Medical Examiner for Dade County testified that the autopsy showed “contusions or a direct injury to the brain itself.” The Medical Examiner further testified that the victim’s immediate cause of death was pneumonia brought on by the head injuries.

Appellant took the stand in his own defense offering his exculpatory version of the events. However, the arresting officers testified that, upon appellant’s arrest, no such story of a gun-wielding commando was ever communicated to them. At the end of the trial, appellant was convicted of manslaughter. A post-judgment motion for new trial was denied. Judgment and sentence were entered and this appeal follows.

Appellant seeks a reversal of his conviction for manslaughter on the grounds that the victim’s death could have been avoided through affirmative medical treatment. Appellant argues that the lack of affirmative medical treatment constituted an intervening cause relieving him of any criminal responsibility for the victim’s death.

In support of his argument, appellant attempts to distinguish those Florida cases holding that affirmative medical treatment will not break the chain of causation between a perpetrator’s act and his criminal responsibility for the victim’s death. See, e. g., Adams v. State, 310 So.2d 782 (Fla. 2d DCA 1975) and the cases cited therein.

We are of the opinion that appellant’s distinction between affirmative medical treatment and lack of affirmative medical treatment is without merit, and that, based on the facts appearing in the record on appeal, the case of Johnson v. State, 64 Fla. 321, 59 So. 894 (1912), is controlling. The record shows that appellant’s actions were the proximate cause of the victim’s initial injury, i. e., brain damage, and we find no intervening cause relieving appellant of the criminal responsibility for the victim’s death. Further, appellant’s other points on appeal are without merit.

We have considered the record, all points in the brief and arguments of counsel in the light of the controlling principles of law, and have concluded that no reversible error has been demonstrated. Therefore, for the reasons stated and upon the authorities cited, the judgment and sentence appealed are affirmed.

Affirmed.


text:
    ROYAL BAHAMIAN ASSOCIATION, INC., Appellant, v. Saul J. MORGAN et al., Appellees.
    No. 75-1516.
    District Court of Appeal of Florida, Third District.
    Oct. 26, 1976.
    Joseph S. Paglino, Miami, for appellant.
    Abrams, Anton, Robbins, Resnick & Schneider and Maurice M. Garcia, Hollywood, for appellees.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

This is an appeal by the plaintiff Royal Bahamian Association, Inc., a non-profit Florida condominium corporation. The Association is the lessee of a ninety-nine year recreational lease from lessor Saul J. Morgan, who was sued by the Association in his individual capacity and as trustee. Morgan was a principal of defendant Royal East, the developer of the Royal Bahamian Condominium. The ninety-nine year lease is an annexation of the Declaration of Condominium which was used to create the Royal Bahamian Condominium. Appellant’s original and amended complaint sought a declaration of rights and the amended complaint asked that certain of the leasehold properties be quieted in the appellant. The appel-lees moved to strike or dismiss all counts in the amended complaint, which motion the court granted, holding that the appellant was not entitled to a declaration of rights or interpretation of the contracts. This appeal followed.

Count 1 of the complaint states in part:

* * * * * *
“The plaintiff is in doubt as to and unsure of its rights, duties or obligations under [those contracts of common interest to all members of the Association, to wit: rights concerning common elements, a ninety-nine year recreational lease, the plaintiff’s rights and interests as a separate entity to bring this action pursuant to Fla.Stat. 711.12(2) and the vesting of certain real property interests in the plaintiff under the terms and conditions of the contract of seal], including the Declaration of Condominium contract, the leasehold contract and the provisions of Fla.Stat. 711 relating to common elements at condominiums generally and specifically as to the common elements at the Royal Bahamian Condominium.”

The count further expressed the belief of the Association

“. . . that its interest in the aforesaid 99 year leasehold was dedicated as a portion of the common elements of the Association for the term of 99 years as an estate for years in the said real property and therefore, Plaintiff is of the further belief that since its interest is a part of the common elements aforesaid, that it does not have to pay any rentals during the term of said dedication,”

but that lessor Morgan “. . . takes the position that he is entitled to receive rentals under the terms and conditions of the aforesaid instruments under seal and the Fla.Stat. cited herein.”

In count 2, the Association claims the right . .to have title to its estate for years in the aforesaid 99 year leasehold quieted in Plaintiff for the balance of the 99 year term since the leasehold interest of Plaintiff was dedicated as common elements pursuant to documents aforesaid.”

Count 3 asserts the Association’s belief that the monies it has paid to the defendant since December, 1968, as rental payments under the ninety-nine year lease were improperly paid by mutual mistake of the parties and, therefore, . . as a result thereof, Plaintiff is entitled to recover said money from the Defendant Saul J. Morgan, trustee.”

In count 4, the plaintiff goes on to assert that “. . . as a result of the foregoing, the Defendant ... did breach that duty owed to Plaintiff and its membership,” and “committed a fraud upon Plaintiff in that he intentionally placed into motion procedures which would guarantee the payment of monies to himself, as trustee, to which he was not entitled, [at] the expense and damage of Plaintiff herein.”

A review of the counts in the amended complaint compels us to hold, on the authority of Reibel v. Rolling Green Condominium A., Inc., 311 So.2d 156 (Fla.3d DCA 1975), that the court below was correct in dismissing the complaint. As stated in the Reibel case,

“Plaintiff associations further argue that this action is for a declaratory judgment as opposed to a suit to quiet title and, therefore, they have standing. We cannot agree for a party to be entitled to a declaratory decree must have an actual interest in the subject matter and the relief sought should not be merely legal advice by the courts or an answer to satisfy curiosity. Bryant v. Gray, Fla. 1954, 70 So.2d 581. Having determined that plaintiff-appellee associations are not the real parties in interest, we find that the court is without jurisdiction to entertain this action for declaratory judgment.”

In determining that the Association has no standing to bring this suit under the counts specified in its amended complaint, we would, nevertheless, point out that the individual members themselves are not precluded from proceeding in pursuit of their own rights.

Although we find that the dismissal was in order, we note that the judgment goes on to state:

“2. The Plaintiff Condominium Association shall within fifteen days from the date of this Order pay unto the Defendant, Saul J. Morgan, Trustee, all rentals due and owing under the terms and provisions of the 99 year lease from the period from January 1,1975 and thereafter as the same become due. The accrued rentals shall be forwarded to counsel for the Defendant, Saul J. Morgan, Trustee,”

We hold that this action taken by the judge requiring rental payments by the plaintiff to the defendant is a matter that goes beyond the jurisdiction of the trial court. Once the judge dismissed the complaint, he had no further jurisdiction to grant relief to either party and, more particularly, he had no jurisdiction to grant relief to a defendant who had not made a plea for affirmative relief. See Osborne v. Shell Oil Co., 104 So.2d 670 (Fla. 1st DCA 1958).

Other points presented on this appeal have been considered and found to be without merit.

Therefore, the judgment is affirmed as to the dismissal of the complaint, reversed as to that part of the order requiring rental payments by the plaintiff to the defendant, and the cause is hereby remanded for a correction of the judgment.


text:
    Hazel SMITH, as Administratrix, of the Estate of Raymond Smith, Appellant, v. METROPOLITAN DADE COUNTY d/b/a Jackson Memorial Hospital, Appellee.
    No. 75-1691.
    District Court of Appeal of Florida, Third District.
    Oct. 26, 1976.
    Rehearing Denied Nov. 12, 1976.
    Pelzner & Schwedock, Miami, for appellant.
    Fowler, White, Burnett, Hurley, Banick & Knight, L. David Llewellyn, Jackson F. McCoy and Martin S. Saxon, Miami, for appellee.
    Before HENDRY, HAYERFIELD and NATHAN, JJ.
   PER CURIAM.

Hazel Smith seeks reversal of an order dismissing her medical malpractice action against Dade County d/b/a Jackson Memorial Hospital on the grounds she is barred by the statute of limitations [Section 95.-11(6), Florida Statutes (1975)].

On September 30, 1974, appellant, Hazel Smith as the administratrix of the estate of her son, Raymond, brought a wrongful death action against Dr. Robert Willner. The alleged negligence occurred April 1 and April 6,1973. On March 28,1975 (just prior to the running of the statute of limitations), appellant moved for leave to amend praying to only add as defendants Dade County and Dr. Stanley Warren and attached to this motion her amended complaint. On May 29 the court granted the motion and the amended complaint was served on July 11. On July 21 Dade County moved to dismiss on the grounds the amended complaint was barred by the statute of limitations. After hearing argument of counsel, the trial judge dismissed the complaint.

Appellant basically contends that the filing of her motion for leave to amend along with the amended complaint tolled the two year statute of limitations and, therefore, this defense was not available to the defendant. We find this point has merit.

The better rule is that a motion for leave to amend with the amended complaint attached joining additional defendants filed within the statutory period stands in the place of the actual amendment which is filed with leave of court subsequent to the running of the statute of limitations. See Rademaker v. E. D. Flynn Export Co., 17 F.2d 15 (5th Circuit 1927). Plaintiff having filed her motion for leave to join additional parties before the running of the statute of limitations, it follows that the amended complaint related back to the time of the filing of her motion to amend so as to defeat a defense based on the statute of limitations relating to the time in which an action must be filed. Cf. Galuppi v. Viele, 232 So.2d 408 (Fla.4th DCA 1970).

Accordingly, the order of dismissal is reversed and the cause remanded to the trial court for further proceedings.

So ordered.

      . § 95.11(6), Florida Statute (1975).


text:
    Roger Howard ROACH, Sr., Appellant, v. Karen Ann ROACH, Appellee.
    No. 75-1709.
    District Court of Appeal of Florida, Third District.
    Oct. 26, 1976.
    Rehearing Denied Nov. 12, 1976.
    Kevin A. Anderson, Hialeah, Richard H. W. Maloy, Coral Gables, for appellant.
    Kuvin, Klingensmith & Lewis, Coconut Grove, for appellee.
    Before BARKDULL, C. J., and PEARSON and HAVERFIELD, JJ.
   PER CURIAM.

Affirmed. See Shaw v. Shaw, 334 So.2d 13 (Fla.1976).


author: NATHAN, Judge.

text:
    Jimmy L. HARRIS, Appellant, v. The STATE of Florida, Appellee.
    No. 76-4.
    District Court of Appeal of Florida, Third District.
    Oct. 26, 1976.

      Phillip A. Hubbart, Public Defender, and Julian S. Mack, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before BARKDULL, C. J., and HENDRY and NATHAN, JJ.
   NATHAN, Judge.

Jimmy L. Harris was charged in a three count information with I breaking and entering a dwelling and unlawfully assaulting a person therein, II involuntary sexual battery in violation of Section 794.011(3), Florida Statutes, and III robbery. At trial, the jury rendered verdicts of guilty as to counts I and II, and guilty of petit larceny as a lesser included offense of count III. The court so adjudicated Harris and sentenced him to consecutive terms in the state penitentiary of 30 years on count I, and 50 years on count II. Sentence was withheld on count III.

Two points are raised on appeal. The first point is that the court erred in denying the defendant’s request for an instruction pursuant to Section 794.011(5), Florida Statutes (sexual battery involving the use of force not likely to cause serious personal injury) where such offense is a necessarily included offense of Section 794.011(3) (Sexual battery involving the use of a deadly weapon or use of force likely to cause serious personal injury).

In Brown v. State, 206 So.2d 377 (Fla. 1968), the leading Florida case, Justice Thornall set out four categories of lesser included offenses: (1) crimes divisible into degrees; (2) attempts to commit offenses; (3) offenses necessarily included in the offense charged; and (4) offenses which may or may not be included in the offense charged depending on the accusatory pleading and the evidence. Clearly, in this case, we are not concerned with the first or second categories. Therefore, we must determine whether subsection 5 of Section 794.011, Florida Statutes, is a lesser included offense of subsection 3, pursuant to either the third or the fourth category.

Subsection 3 of Section 794.011, with which Harris was charged, provides that:

A person who commits sexual battery upon a person over the age of 11 years, without that person’s consent, and in the process thereof uses or threatens to use a deadly weapon or uses actual physical force likely to cause serious personal injury shall be guilty of a life felony . (Emphasis supplied)

Subsection 5, which Harris contends is a lesser included offense of subsection 3, provides that:

A person who commits sexual battery upon a person over the age of 11 years, without that person’s consent, and in the process thereof uses physical force and violence not likely to cause serious personal injury shall be guilty of a felony of the second degree . . (Emphasis supplied)

The record reflects that during the involuntary sexual battery, the defendant held a knife or a metal object similar to a knife with a very sharp blade, to the victim’s neck.

A necessarily included offense under the third category must be an essential aspect of the major offense, such that the burden of proof of the major crime cannot be discharged without proving the lesser crime as an essential link in the chain of evidence. Brown v. State, supra, at 381, 382. Instructing on an offense in this category is required by statute, and is not a matter of the trial judge’s discretion. Brown, supra. In our opinion, subsection 3 is not a necessarily included offense because the burden of proof of the major offense can be discharged without proving the lesser crime as an essential link in the chain of evidence. The “or” in subsection 3 means that it is a life felony to commit a sexual battery upon a person over age 11, without consent, when the perpetrator uses or threatens to use a deadly weapon or in the alternative, uses actual physical force likely to cause serious personal injury. The Florida courts have long recognized the difference between cases where the commission of the offense was accompanied by a display or use of a deadly weapon. See, for example, Doyle v. State, 39 Fla. 155, 22 So. 272, 273, 274 (1897); Green v. State, 135 Fla. 17, 184 So. 504, 508 (1938); Thomas v. State, 92 So.2d 621 (Fla.1957); Dean v. State, 265 So.2d 15 (Fla.1972). From the wording of subsection 3, it is clear that the legislature intended that it apply to two situations, one of which involves sexual battery with the use or threat of use of a deadly weapon. When a defendant is charged under this provision, it is unnecessary for the State to allege or prove the use of actual physical force in any degree. Want of consent under such circumstances stems from fear created by display of the deadly weapon, and not from physical force. We recognize that an instruction on 5 might be appropriate in a case where the defendant used actual physical force likely to cause serious personal injury against the victim, without using or threatening to use a deadly weapon. 'However, under the facts presented in this case, the element of actual physical force was neither alleged nor proved, and the conviction on Section 794.011(3), is supported by proof of use or display of a deadly weapon.

We next consider whether subsection 5 may be classified in the fourth category as an offense which may or may not be included in the offense charged depending on the accusatory pleading and the evidence. The information charges Harris with involuntary sexual battery, and in the process, using “a deadly weapon, to wit: A KNIFE, RAZOR, or similar object.” The element of actual physical force whether likely or not to cause serious physical injury is totally lacking from the charging instrument. A defendant may be convicted of a lesser offense, which, although not an essential ingredient of the major crime, is spelled out in the accusatory pleading in that it alleges all of the elements of the lesser offense and the proof at trial supports the charge. State v. Anderson, 270 So.2d 353, 356 (Fla.1972); and see Gilford v. State, 313 So.2d 729 (Fla.1975). In this case, the element of actual physical force, a necessary element of subsection 5 is not alleged in the information; it was not necessary for the State to prove it, and it was not proved. Accordingly, neither the alle-gata nor the probata supported a charge to the jury on subsection 5 as a lesser included offense, and the requested instruction was properly refused.

The second point raised on appeal is that the court erred in imposing consecutive sentences on counts I and II where both stem from the same criminal transaction. Where an information contains more than one count, but each is a facet or phase of the same transaction, only one sentence may be imposed; and the sentence which should be imposed is for the highest offense charged. Yost v. State, 243 So.2d 469, 471 (Fla.3rd DCA 1971). Where, as here, however, the offenses are violations of separate statutes, and not different sections of the same statute, although committed in one criminal episode, the Yost principle is not applicable. A separate sentence may be imposed upon conviction of each separate offense. Steele v. Mayo, 72 So.2d 386 (Fla. 1954); Tarpley v. State, 258 So.2d 301 (Fla.3rd DCA 1972); Estevez v. State, 313 So.2d 692 (Fla.1975). Therefore, we find no error on this point.

Affirmed.


text:
    Edward W. WHITE, Appellant, v. M. Carole WHITE, Appellee.
    No. 76-55.
    District Court of Appeal of Florida, Third District.
    Oct. 26, 1976.
    Rehearing Denied Nov. 12, 1976.
    Aschenbrenner & Cogen, Miami, for appellant.
    Mershon, Sawyer, Johnston, Dunwody & Cole and H. Michael Madsen, Miami, for appellee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   HAVERFIELD, Judge.

Edward White seeks reversal of an order denying his petition to modify the alimony provision of a property settlement agreement.

In November 1971, Carole White filed a petition for dissolution of marriage to Edward and alleged a special equity in certain jointly held properties. Subsequently, in May 1972 the parties entered into a property settlement agreement which provided that Edward pay as lump sum alimony $181,500, payable in $1,500 monthly installments commencing on June 1, 1972. The parties further agreed that the alimony award could not be modified regardless of any change in circumstances of either of the parties. The agreement also contained provisions dividing the parties’ real and personal property and in exchange therefor Carole released any and all claims against Edward. A dissolution of marriage judgment incorporating this agreement was entered on May 25, 1972. Edward paid the monthly installments through June 1973 and then, having suffered business reverses, in December 1973 filed a petition to modify property settlement which was amended in April 1975. The parties agreed to first place before the court the issue of whether these payments were subject to modification. After a hearing, the chancellor ruled that the alimony award was not modifiable and denied the petition as amended.

Edward basically contends that the chancellor committed error in holding that the agreement was not subject to modification pursuant to Section 61.14 Florida Statutes (1975). We cannot agree.

Despite the fact that the agreement uses the term alimony, it is not conclusive. Rather it is the substance and not the form which controls. Underwood v. Underwood, 64 So.2d 281 (Fla.1953). The terms of the agreement clearly reflect its character as a property settlement agreement between the parties whereby Carole, in exchange for a substantial sum of money and property, relinquished all claims against Edward. The agreement with respect to the lump sum alimony expressly bound Edward’s estate in the event of his death and the obligation to pay the monthly installments does not terminate even if Carole should remarry. It is evident that the parties effected a complete contractual settlement, transfer, division and sale of their properties for a consideration definitely fixed for an expressed period of time. See Howell v. Howell, 164 So.2d 231 (Fla.2d DCA 1964).

The rights which became fixed and vested under the provisions of this agreement should not be disturbed by the courts except upon proof which would justify modification or cancellation of a contract between strangers. See Sedell v. Sedell, 100 So.2d 639 (Fla.1st DCA 1958).

Thus, we find the chancellor was eminently correct in holding the agreement was not subject to modification. See Gilbert v. Gilbert, 312 So.2d 511 (Fla.3d DCA 1975).

Affirmed.


text:
    Ida LEAF, Appellant, v. Max KAPOLINSKY, d/b/a Ben Rose Apartment, et al., Appellees.
    No. 76-389.
    District Court of Appeal of Florida, Third District.
    Oct. 26, 1976.

      West, Friesner, Goldman & Major, Miami, for appellant.
    Cushman & Cushman, Horton, Perse & Ginsberg, P. J. Carroll, Iva W. Kay, Michael P. Weisberg, Miami, for appellees.
    Before PEARSON, HENDRY and NATHAN, JJ.
   PER CURIAM.

Ida Leaf, as plaintiff, sued Max Kapolin-sky, her apartment house operator, Packed Sanitation Services, Inc., a corporation which services the garbage removal from the apartment house premises through a contract with Kapolinsky, and the City of Miami Beach, whose employees are alleged to have created a dangerous condition by the negligent placing of the garbage container while resurfacing the alley-way, for injuries alleged to have occurred when she attempted to put garbage in the container. The jury returned a verdict for all the defendants after a trial. On this appeal of the final judgment, points are presented urging errors in the conduct of the trial and the instructions to the jury. After considering the record in the light of the arguments presented, we find no reversible error. See Sinclair Refining Co. v. Butler, 172 So.2d 499 (Fla.3d DCA 1965); Ruiz v. Cold Storage & Insulation Contractors, Inc., 306 So.2d 153 (Fla.2d DCA 1975); and see the general proposition in Bowen v. Manuel, 144 So.2d 341 (Fla.2d DCA 1962).

Affirmed.


author: BARKDULL, Chief Judge.

text:
    UNI-CHEM CORPORATION OF FLORIDA, INC., a Florida Corporation, Appellant, v. Ronald MARET et al., Appellees.
    No. 76-480.
    District Court of Appeal of Florida, Third District.
    Oct. 26, 1976.

      Friedman & Britton and Edward A. Kaufman, Miami, for appellant.
    Frates, Floyd, Pearson, Stewart, Richman & Greer and Sherryll Martens Dunaj, Miami, for appellees.
    Before BARKDULL, C. J., and HAVER-FIELD and NATHAN, JJ.
   BARKDULL, Chief Judge.

The appellant filed an action seeking temporary injunction and other relief against certain of the appellees, to enforce the provisions of a non-competitive agreement entered into at the time certain of the appellees were employed by the appellant as salesmen in the Miami area. The competitive provision of the contract read as follows:

“ * * * Accordingly, Representative agrees that during the term of his employment by Company, (under this agreement or any extension, renewal or reinstatement hereof) and for a period of eighteen (18) months immediately following the expiration or termination of such employment, regardless of the manner or reason for termination, Representative shall not directly or indirectly for himself or for any other person, persons, or corporation (excepting only Company) as owner, employer, partner, associate, principal, consultant, agent or otherwise, sell or offer for sale, advertise or solicit for any merchandise or products of the same or similar type of classification as any of the products sold by Company while Representative is employed by Company within the assigned territory set forth in Section 3 or to any customer or account in connection with which or to which Representative has sold, offered for sale, solicited or taken orders for any of Company’s products during the employment of the Representative by Company, or with which Representative has had any contact or dealings while employed by Company, nor will he advise, inform or furnish to any person, firm or corporation the names and addresses of any such customer accounts or any information relating thereto.”
* * * * * *

The contract also provided, in the event of its breach, as follows:

* * * * * *
“ * * * Further, in the event of a breach of the covenants of paragraphs 8, 9, and 10, by Representative, the injury to the Company resulting therefore will be substantial, but difficult of ascertainment, so that it is mutually agreed that in the event of any such violation by Representative he will pay to the Company the sum of $5,000.00 per salesman, or any other employee of Company, except that if the Representative has been under contract with the Company for a period of in excess of 1 year, the sum of $10,-000.00, as liquidated damages therefor, but not as a penalty, and it is hereby agreed that this provision of liquidated damages shall not reduce or interfere in any way with the right of the Company for injunctive relief, as outlined above.”
* * * * * *

In December of 1975, the salesmen terminated their employment with the appellant and immediately therefore went to work for a competitor, performing the same services in the same area which they had performed for the appellant during their course of employment with the appellant. The instant action was then brought, seeking a temporary injunction and, after taking evidence, the chancellor (finding that no actual damage had been shown by the appellant) denied a temporary injunction and this interlocutory appeal ensued.

The instant case deals with a request for temporary injunction and the order was entered after an emergency hearing. Notwithstanding statutory right to injunctive relief [see: § 542.12, Fla.Stat.], upon proof of a valid covenant not to compete said statutory provision does not negate the necessity of showing irreparable harm as a prerequisite to the granting of a temporary injunction. Wilson v. Sandstrom, 317 So.2d 732 (Fla.1975). The purpose of a temporary injunction is to maintain the status quo pending determination of the suit. North Dade Water Co. v. Adken Land Co., 114 So.2d 347 (Fla.3rd DCA 1959). Thus, in the instant case, it would appear that where the trial court found no irreparable damages the order appealed should be affirmed.

The appellant urges that this case is controlled by the decision of this court in Royal Services, Inc. v. Williams, 334 So.2d 154 (Fla.3rd DCA 1976) and that this decision mandates a reversal of this matter, with directions to the chancellor to entry a temporary injunction.

We first note that in Royal Services, Inc. v. Williams, supra, the matter came on for review after final hearing, and the opinion clearly states that the plaintiff therein had proved its case sufficiently to entitle it to injunctive relief and it was error not to grant said relief. In the instant case, we are dealing with a temporary injunction; the cause has not proceeded to full hearing, and all the evidence has not been tendered. The appellant also urges that Royal Services, Inc. v. Williams, supra, holds that delay caused by litigation could render enforcement of the contract by injunction moot as a practical matter. It would appear that this would not necessarily be true in all instances. In Capelouto v. Orkin Exterminating Co., 183 So.2d 532 (Fla.1966), the Supreme Court of Florida approved the imposition of an injunction for a period commencing subsequent to entry of the judgment, rather than from the time of termination of employment. Therefore, it would depend upon the facts of the individual case whether or not injunctive relief should be granted from the date of judgment.

Reviewing this record in its entirety and recognizing the discretionary right of a chancellor to decline to enter a temporary injunction [Sackett v. City of Coral Gables, 246 So.2d 162 (Fla.3rd DCA 1971); Muss v. City of Miami Beach, 312 So.2d 553 (Fla.3rd DCA 1975)], we affirm the order under review. If this opinion is not distinguishable on the facts of this case from Royal Services, Inc. v. Williams, supra, then we recede from any interpretation of the cited case which would mandate the issuance of a temporary injunction without permitting a chancellor to exercise his discretion in the matter of granting or denying same upon the record as may be made before him.

Our affirmance of this order is without prejudice to the plaintiff to make a subsequent request for temporary injunction at any time during the pendency of the trial court proceedings, and without prejudice to the trial court granting it in the event the evidence meets the test necessary to entitle the plaintiff to such relief. Stoner v. South Peninsula Zoning Commission, 75 So.2d 831 (Fla.1954); Tamiami Trail Tours, Inc. v. Greyhound Lines, Inc., 212 So.2d 365 (Fla.4th DCA 1968). We merely affirm the action of the trial court on the record as was then presented to him. Of course, at the conclusion of the final hearing in this matter, if the chancellor should determine that equity lies with the appellant he may, in his discretion, enforce the non-competitive agreement in accordance with the principles announced by the Supreme Court of Florida in Capelouto v. Orkin Exterminating Co., supra.

The application for constitutional writ, filed pending this appeal, be and the same is hereby denied.

Affirmed.


text:
    Arnold I. BARNETT and Alexander P. Rosin, Appellants, v. BARNETT BANK OF JACKSONVILLE, N.A., a National Banking Association, Appellee.
    No. CC-432.
    District Court of Appeal of Florida, First District.
    Oct. 27, 1976.
    Adam G. Adams, II, of Adams & Adams, Jacksonville, for appellants.
    James A. Bledsoe, Jr., of Mahoney, Had-low & Adams, and Barry L. Zisser, of Zisser & Robison, Jacksonville, for appellee.
   ON MOTION TO REVIEW STAY ORDER

SMITH, Judge.

The trial court entered a money judgment for appellee but granted appellants’ motion pursuant to Rule 1.550(b), R.C.P., to stay execution “for good cause” during the appeal. The court recited that the central issue is without controlling Florida precedent, that the issue “is of sufficient importance that it should be finally determined by the Appellate Court” and consequently that there is good cause to stay execution pending the appeal. The trial court enjoined appellants from disposing of their property. The main appeal to this court is pending at an early stage.

The appellee judgment creditor seeks review of the trial court’s stay order under Rule 5.10, F.A.R. We believe appellee’s position is correct. It is true that Rule 1.550(b), R.C.P., may be utilized to protect a judgment debtor briefly while he perfects his appeal and obtains supersedeas. Chapman v. Rose, 295 So.2d 667 (Fla.App. 2d, 1974). But Rule 5.2, F.A.R., provides for supersedeas of a judgment for the recovery of money not secured only by filing a super-sedeas bond conditioned as required by Rule 5.7. Even in a case such as this, in which the trial court obviously considered the central issue fairly debatable, the Rules of Civil Procedure should not be given effect to nullify the benefits to appellee of a su-persedeas bond required by the Florida Appellate Rules. Jenkins Trucking, Inc. v. Emmons, 207 So.2d 280 (Fla.App. 3d, 1968), cert. den., 210 So.2d 867 (Fla.1968).

The order staying execution is vacated.

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


author: BOARDMAN, Judge.

text:
    EXCHANGE NATIONAL BANK OF WINTER HAVEN, as Executor of the Estate of Richard D. Field, Deceased, Appellant, v. Annette Featherstone FIELD and Mary Michelle Field, Appellees.
    No. 76-302.
    District Court of Appeal of Florida, Second District.
    Oct. 27, 1976.
    Rehearing Denied Nov. 22, 1976.
    Paul Ritter, Winter Haven, for appellant.
    Thomas A. Smith of Smith & Carbonell, Tampa, for appellees.
   BOARDMAN, Judge.

Appellant, executor of the estate of Richard D. Field, deceased, filed this timely appeal from an order of the probate court granting appellees’ motion for an extension of time to file suits on their claims against the estate of the decedent.

Notice of creditors was published by appellant on January 14 and 21, 1975. On May 12 appellees filed their claims in the probate court, and on May 20 appellant filed objections to those claims furnishing copies thereof to appellees and their counsel. Appellant refused appellees’ June 17 request to settle their claims. The court granted appellant’s motion filed on July 9 extending the time for filing the inventory of the estate until September 1. The inventory was filed August 29. On December 5, 1975 appellees filed their motion for an extension alleging that they required additional time to file their actions.

A claimant is required to file suit on his claim within one month after receipt of service of the personal representative’s objection to that claim. Section 733.18, Florida Statutes (1973). In this case appel-lees were required to file their suits on or before June 27. We are aware that the probate code vests discretion in the court to extend the time for bringing suit upon good cause shown. Section 733.18, Florida Statutes (1973); In re Estate of Sale, 227 So.2d 199 (Fla.1969). The Florida supreme court has restricted good cause for an extension to “a substantial reason” which constitutes a legal excuse. In re Goldman’s Estate, 79 So.2d 846 (Fla.1955). Appellees’ contention that they delayed filing their suits until the inventory showed whether there were sufficient assets in the estate to satisfy their claims does not meet the standard established in In re Goldman’s Estate. In our judgment the absence of good cause to justify the extension of time is particularly apparent in that appellees did not file their suits until more than three months after the inventory was filed.

Accordingly we

REVERSE.

McNULTY, C. J., and HOBSON, J., concur.


author: BOARDMAN, Acting Chief Judge. GRIMES, Judge

text:
    Ozell VON STEPHENS, Appellant, v. The SCHOOL BOARD OF SARASOTA COUNTY, Florida, and Gene M. Pillot, as Superintendent of Schools for Sarasota County, Florida, Appellees.
    No. 75-1732.
    District Court of Appeal of Florida, Second District.
    Oct. 29, 1976.

      Stanley E. Marable, Law Offices of Frank & Meyer, Tampa, for appellant.
    C. Allen Watts, of Fogle & Watts, De-Land, for appellees.
   BOARDMAN, Acting Chief Judge.

Appellant/plaintiff, Ozell Von Stephens, timely appeals the dismissal with prejudice of his amended complaint against appel-lees/defendants, School Board of Sarasota County (Board) and the Superintendent of Schools for Sarasota County (Superintendent).

Appellant is employed by the Board as principal of Exceptional Child Education. During February, 1974, the position of principal of Tuttle Elementary School, another school in the Sarasota County public school system, became vacant; and appellant, among others, submitted his application for appointment. A screening committee appointed by the Board selected appellant for the vacancy, and the Superintendent recommended him to the Board for the position. On April 6, 1974, the Board rejected the Superintendent’s recommendation. The Sarasota County Teacher’s Association requested that a hearing be held to determine whether good cause existed for the rejection. On April 23, the Board agreed to said request for a hearing under the supervision of an impartial hearing examiner. At a subsequent meeting the Board rescinded by resolution its decision of April 23 stating therein, among other things, that appellant had been accorded all his legal rights and reaffirmed its rejection of the recommendation. The day following the filing of this action in the Circuit Court of Sarasota County, on June 20, 1974, the Superintendent withdrew his recommendation of appellant and advised the Board that a more qualified individual, who was not among the original applicants, had applied for the position. The trial judge dismissed appellant’s amended complaint finding that the complaint failed to state a cause of action and that the circuit court lacked subject matter jurisdiction. We reverse.

We agree with appellant’s contentions that the circuit court does have subject matter jurisdiction over the controversy, that good cause must be shown for the rejection of the recommendation, and that he does have a property right in the appointment.

Appellant’s amended complaint alleged that the circuit court had jurisdiction to determine the legality of the Board’s rejection of the recommendation and the Superintendent’s withdrawal of the recommendation. The appropriate forum for review of an agency action is determined by the nature and character of that action unless the statute which created the agency and defined the scope of its authority prescribes a specific procedure for review. Teston v. City of Tampa, Fla.1962, 143 So.2d 473. The Florida Administrative Procedure Act mandates that review of an agency’s quasi-judicial order is by writ of certiorari to the district court of appeal. Fla.Stat. § 120.31(1) (1973). Relief from an order which is not quasi-judicial is by original judicial proceedings in the circuit court. Teston v. City of Tampa, supra; Deen v. Tampa Port Authority, Fla.App.2d 1967, 201 So.2d 755, citing J. Hall & R. Canada, Florida Civil Practice After Trial, ch. 22 (1966).

The threshold question in the case before us is whether the actions of the Board and Superintendent are quasi-judicial. Generally, a quasi-judicial order is characterized by notice and a hearing pursuant to statutory requirements. West Flagler Amusement Co., Inc. v. State Racing Commission, 1935, 122 Fla. 222, 165 So. 64; 1 Fla.Jur., Administrative Law § 65 (1958, Supp.1976). This court has previously held that an agency decision is not quasi-judicial if it is predicated on an unilateral hearing without notice, an opportunity to cross-examine, a formal finding of fact, or an entry of a formal order stating its findings, and where the only evidence of any factual findings was in a letter stating a conclusion. Charbonier v. Wynne, Fla.App.2d 1973, 282 So.2d 171. Under the circumstances presented here, neither the Board’s rejection nor the Superintendent’s withdrawal can be characterized as quasi-judicial. See Teston v. City of Tampa, supra; Solomon v. Sanitarians’ Registration Board, Fla.1963, 155 So.2d 353.

In Board of Public Instruction of Dade County v. McQuiston, Fla.App.3d 1970, 233 So.3d 168, the dismissal of an employee by the school board on the ground that he did not meet the qualifications specified for his position was held an executive action. We regard the decision by the Board in this case to be of the same nature as that in McQuiston. Furthermore, the Supreme Court of Florida has held that mandamus is the proper remedy to compel a school board to appoint the person nominated, and it is well established that mandamus will issue solely to enforce the performance of a clear ministerial duty or function. State ex rel. Kelly v. Golson, 1943, 153 Fla. 469, 14 So.2d 793; 21 Fla.Jur., Mandamus § 33 (1958, Supp.1976). We hold that the actions complained of in the instant case are not quasi-judicial and that appellant properly brought this action in the circuit court.

The Board contended that the Superintendent recommended appellant for a transfer not an appointment and, therefore, it is not necessary to show good cause to reject the recommendation. We hold that the Board must appoint appellant absent legally sufficient cause to reject the Superintendent’s recommendation. The superintendent is directed to select and submit his nominations and recommendations for appointments and transfers to the school board. Fla.Stat. § 230.33(7)(b)(c)(d)(g) (1973). The school board is required to appoint those recommended or nominated unless good cause for rejection exists. Fla. Stat. § 230.23(5)(b)(e) (1973). Although the statute does not directly state that cause must be shown to reject a recommendation for transfer, it is elementary and particularly so in this case that to transfer personnel an appointment is necessitated, thereby activating the cause requirements in § 230.-23(5)(b)(c), Fla.Stat.

In our judgment the basis for the separate treatment of transfers and appointments in the school code is not to differentiate between them by the applicability of good cause but is to distinguish situations in which the school board can and cannot act on its own initiative. Section 230.23(5)(b)(c) authorizes the school board to select and appoint personnel in specific circumstances but does not give the board authority to transfer employees on its own motion. See Fla.Stat. § 230.23(5)(f) (1973).

Appellee argued that if good cause is required, legal grounds for rejection include failure to meet such subjective standards as suitability to the community and acceptable personality. We cannot agree. The responsibility of a school board has always been to appoint personnel recommended and nominated by the superintendent, not to select them. See State ex rel. Lawson v. Cherry, Fla.1950, 47 So.2d 768. Unless good cause is shown, that is failure of appellant to meet the criteria of Chapter 231, Fla.Stat., it is incumbent on the board to appoint and contract with the nominee. State ex rel. Kelley v. Golson, supra; State ex rel. Lawson v. Cherry, supra; Fla.Stat. § 230.23(5) (1973).

A nomination by the superintendent entitles the nominee to due process protections of his interest in the nomination. This “legitimate claim of entitlement” was created by the terms of Fla.Stat. § 230.23(5) which, as we have explained above, mandates appointment by the Board absent good cause. Cf. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). This “claim” entitles the nominee to notice and a hearing where grounds for deprivation of the right of appointment would be shown and could be challenged for legal sufficiency. See Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974); Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). Appellant’s interest is more than a mere subjective expectation in employment which would not be safeguarded by due process. Perry v. Sindermann, supra. Furthermore the Supreme Court of Florida spe-eifically established a property right in a nominee by its holding in Board of Public Instruction for County of St. Lucie, Florida v. Connor, 1941, 148 Fla. 364, 4 So.2d 382, that at the time a nomination is made to the board an implied contract arises between the school district and the nominee. That nomination is final unless the board finds that the nominee is morally or professionally disqualified. State ex rel. Lawson v. Cherry, supra.

A superintendent of course exercises his discretion in selecting and nominating school personnel. The Superintendent exercised this discretionary duty by submitting appellant’s name to the Board. It is clear to us that the interest of appellant was created and his right to due process vested at that time. Hence when the Board rejected the nomination appellant was entitled to a hearing to determine whether the Board acted according to the statutory requirement of good cause and was entitled to seek review of the action by the appropriate appellate procedure if necessary. To sanction the Superintendent’s withdrawal of the nomination after appellant initiated legal proceedings would extinguish a nominee’s right to due process safeguards of his interest and circumvent the statutory scheme provided by the legislature designed to afford due process. Under these somewhat peculiar facts, that is withdrawal of the nomination after the Board rejected it and refused to conduct a hearing and after appellant filed suit, the Superintendent could not withdraw his nomination without a showing of good cause for the reasons explained above. Moreover because the requirements of due process attach to a nominee’s interest in his appointment upon nomination by the superintendent it reasonably follows that good cause must be shown for withdrawal of that nomination. The school code does not provide for withdrawal of a superintendent’s nomination once submitted to the school board. However until the board appoints the nominee the nominee does not have an irrevocable right to the nomination, and the nomination may be withdrawn for good cause.

Accordingly we remand this cause to the circuit court for an adversary hearing to determine whether the Superintendent had good cause to withdraw his recommendation of appellant. If it is found that the withdrawal was supported by good cause, the question of appellant’s appointment is moot and the order of the circuit court is affirmed. If on the other hand it is found that the withdrawal is not so supported, the recommendation stands. In the latter event the circuit court must then direct the Board to conduct a hearing to determine if there is good cause to reject the Superintendent’s recommendation of appellant. Absent a showing of good cause, appellant is entitled to the appointment.

REVERSED and REMANDED for further proceedings consistent with this opinion.

SCHEB, J., concurs.

GRIMES, J., dissents with opinion.

GRIMES, Judge

(dissenting).

I concur with the conclusion of the majority opinion that the School Board could not reject appellant’s nomination without a showing of good cause. However, I know of no authority which would preclude the superintendent from withdrawing the nomination prior to the time it is accepted by the Board.

In my judgment, the superintendent had the same latitude to change his mind concerning appellant’s nomination as he did in nominating appellant in the first place. Upon his nomination, the appellant may have had something in the nature of a property right vis-a-vis the School Board because as we interpret the statute the School Board could only reject him for good cause. However, there is nothing in the statute that limits the superintendent either in making the nomination or in withdrawing it. I cannot see how the mere submission of his name in nomination had the effect of elevating appellant’s rights to the point where the nomination could not thereafter be withdrawn except upon a showing of good cause.

The superintendent is a constitutional officer charged with the responsibility of recommending the person he believes best qualified to fill the important position of school principal. Since for reasons best known to him the superintendent saw fit to withdraw appellant’s name from nomination before it was accepted, I believe the issue became moot and that appellant no longer had a cause of action. Therefore, I must respectfully dissent.

      . Chapter 230 of the Florida Statutes which establishes the district school system does not set out such a procedure.

      . This suit was initiated prior to January 1, 1975, the effective date of the current, revised APA.

      .The attorney general has determined that the good cause requirement for rejection of recommendations and nominations was applicable to transfers. Atty.Gen.Op. 061-136. The attorney general relied on Fla.Stat. § 231.35 (1961), appointment of personnel, which has been transferred to Fla.Stat. § 230.23(5)(b) (1973), appointment of noninstructional personnel. Yet the underlying rationale that a transfer necessitates an appointment remains sound. Furthermore we are not impressed by appel-lee’s argument that good cause attaches to the superintendent’s nominations but not to his recommendations. Although in some circumstances there may be a legitimate distinction between the terms, they have been loosely used in the school code. See Fla.Stat. § 231.35 (1941); Fla.Stat. § 230.23(5)(b) (1973). Compare Fla.Stat. § 230.33(7)(e) (1941) with Fla. Stat. § 230.23(7)(b) (1941).

      . The school code at one time provided that the superintendent submit recommendations for personnel to the trustees who in turn submitted nominations to the school board for appointment. Fla.Stat. § 230.23(7)(c)(d), ,33(7)(c)(d), .43(1)(2) (1941). The superintendent was specifically directed to consult the trustees in reference to selecting those to be nominated teachers. Fla.Stat. § 230.33(7)(d) (1941). The Board suggested that the school board has succeeded to the position once occupied by the trustees in the selection of personnel. The decisions in State ex rel. Pittman v. Barker, 1935, 118 Fla. 380, 160 So. 362, and Board of Public Instruction for St. Lucie County v. Connor, 1941, 148 Fla. 364, 4 So.2d 382, indicate that the courts allow the trustees to weigh discretionary and intangible factors to determine whether to nominate a teacher recommended by the superintendent. We point out that the trustees were made responsible for selecting and nominating personnel by the statute organizing the school system. See Fla.Stat. § 230.33(7)(d), .42, .43(1)(2) (1941); State ex rel. Lawson v. Cherry, Fla.1950, 47 So.2d 768. Furthermore, these decisions were reached prior to the expansion of due process and equal protection safeguards which guide the courts today. When the school system was reorganized and the statute amended, the superintendent, not the school board, was assigned this responsibility. Compare § 230.23(5)(c) (1973) with § 230.23(7)(c) (1941). We acknowledge that Fla.Const., art. IX, sec. (4)(b) gives the school board supervisory powers but do not agree that limiting the school board to rejection of recommendations and nominations for good cause restricts that constitutional power. See State ex rel. Kelley v. Golson, 1943, 153 Fla. 469, 14 So.2d 793.


text:
    Harold C. WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 76-138.
    District Court of Appeal of Florida, Second District.
    Oct. 29, 1976.
    Jack 0. Johnson, Public Defender, and Robert H. Grizzard, II, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie King, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

The supplemental record on appeal disclosing that the appellant Williams has been discharged by the Department of Health and Rehabilitative Services, Division of Mental Health, this appeal is moot. Therefore, the appeal is dismissed.

McNULTY, C. J., and HOBSON and BOARDMAN, JJ., concur.


author: SCHEB, Judge.

text:
    Francisco VELEZ, Appellant, v. MELL D. LEONARD & ASSOCIATES, INC., a Florida Corporation, Appellee.
    No. 76-183.
    District Court of Appeal of Florida, Second District.
    Oct. 29, 1976.

      B. Lee Elam, Brandon, for appellant.
    Warren H. Petersen, Orlando, for appel-lee.
   SCHEB, Judge.

Appellant/plaintiff filed suit against the appellee/defendant in the circuit court in Hillsborough County. The trial court, citing Sections 47.011 and 47.051, Florida Statutes, dismissed plaintiff’s complaint without prejudice to refiling in the county of proper venue. This appeal ensued. We reverse.

The gravamen of the plaintiff’s complaint is that he has been defamed through certain verbal and written contacts made by the defendant to his employer in Hillsborough County.

Defendant supported its motion to abate and transfer the cause to Orange County with an affidavit of its president, Mell Leonard. Leonard referred to an employment contract between the plaintiff and defendant with certain sums payable to the defendant in Orange County where it maintains its sole offices. Affiant further stated that since the corporation does not maintain an office in Hillsborough County and all of defendant’s witnesses reside in Orange County, that it would be a hardship for the defendant to defend the instant action in Hillsborough County.

Sections 47.011 and 47.051, Florida Statutes, each permit institution of a suit “where the cause of action accrues.” The plaintiff has the right initially to select venue, and the burden of pleading and proving that venue is improper is upon the defendant. See Tribune Co. v. Approved Personnel, Inc., 115 So.2d 170 (Fla. 1st DCA 1959).

Here, the plaintiff’s complaint alleged a tort action for defamation of the plaintiff at plaintiff’s place of employment in Hillsborough County. It was incumbent on the defendant to establish all matters which would negative the plaintiff’s initial selection of venue. See Inverness CocaCola Bottling Co. v. McDaniel, 78 So.2d 100 (Fla.1955). Yet, defendant’s affidavit, while relating to contractual negotiations between the parties concerning an employment contract, makes no reference to any communications between it and plaintiff’s employer. Thus, the defendant’s affidavit in no way negates the plaintiff’s allegations that the cause of action here sued upon accrued in Hillsborough County.

As stated by Judge Walden, speaking for the Fourth District, in Stolley & Associates v. Lawrence, 243 So.2d 446 (Fla. 4th DCA 1971):

“The burden of pleading and proving that venue is improper is upon the defendant. And if defendant fails to sufficiently assert a venue objection, it is the defendant who must bear the consequences. Such venue objection should contain specific averments negativing the plaintiff’s right to bring the suit where brought and should contain specific averments as to where the cause of action accrued (if that be the critical issue) with such degree of certainty as to exclude the idea that the suit was brought in the proper county.”

Finally, attempts by defendant to support the trial court’s ruling on the doctrine of “forum non conveniens” under Section 47.122, Florida Statutes, are not persuasive. While it is apparent that defendant’s witnesses reside in Orange County, it is just as obvious that the plaintiff’s witnesses are in Hillsborough County. Therefore, defendant’s reliance on England v. Cook, 256 So.2d 403 (Fla. 3d DCA 1972), is misplaced for in England it was clear that no witnesses lived in the transferor forum.

Accordingly, the order appealed is reversed and the cause remanded to the trial court for further proceedings consistent with this opinion.

McNULTY, C. J., and NORRIS, WILLIAM A., Jr., Associate Judge, concur.


author:
COX, JOHN S., Associate Judge.
      BOYER, Chief Judge

text:
    David R. BARNES, Appellant, v. The LINCOLN NATIONAL LIFE INSURANCE COMPANY, Appellee.
    No. U-375.
    District Court of Appeal of Florida, First District.
    Nov. 2, 1976.
    Roderic G. Magie, of Levin, Warfield, Middlebrooks, Graff, Mabie, Rosenbloum & Magie, Pensacola, for appellant.
    Robert P. Gaines, of Beggs, Lane, Daniel, Gaines & Davis, Pensacola, for appellee.
   COX, JOHN S., Associate Judge.

This case was originally before this court on an appeal from a Summary Final Judgment entered in favor of the Appellee by the trial court on November 9, 1973. By its opinion filed February 25, 1975, this court affirmed said Summary Final Judgment. Barnes v. Lincoln National Life Insurance Co., Fla.App. 1st, 1975, 330 So.2d 119.

However, on Petition for Rehearing filed by the Appellant, this court entered its Order on April 15, 1975, temporarily remanding the cause to the trial court for “its determination of whether or not its final summary judgment should or should not be modified” in view of the Appellant’s newly raised contention in the petition for rehearing calling attention of the Court for the first time to the “Incontestable” clause of the policy in controversy, which clause reads as follows:

“(b) No claim for benefits provided by this policy as a result of disability commencing after two years from the Policy Date hereof shall be reduced or denied on the ground that a disease or physical condition, not excluded from coverage by name or specific description, which caused or contributed to the disability had existed prior to the effective date of this policy.”

Because of this “Incontestable” clause, the Appellant raised the point for the first time before this Court on Petition For Rehearing that since the Appellant’s disability (for which 60 months of $200.00 monthly benefits had been paid by Appellee under the policy) commenced more than two years after the issuance of the policy on February 24, 1965, lifetime monthly benefits cannot be denied or reduced on the ground that a disease or physical condition, not excluded from coverage by name or specific description, which caused or contributed to the disability had existed prior to the effective date of the policy.

Even though the assertion of this new ground or position was in direct violation of Rule 3.14(b) Florida Appellate Rules, this Court, as aforesaid, “temporarily” remanded the cause to the trial court for its consideration of the new ground or contention and for its supplemental order indicating whether or not the trial court had considered this position and contention before entry of the Summary Final Judgment appealed from.

Upon such “temporary” remand the trial court, on September 2, 1975, entered its “Order Granting Plaintiff’s Motion For Summary Judgment Upon Reconsideration Following Appeal”. The first sentence of said Order reads:

“This cause is now before this Court after reversal by the District Court of Appeal (1st District) of this Court’s summary judgment entered herein in behalf of the defendant, Insurance Company, dated November 9, 1973. * * * ” (Emphasis supplied)

Thus it is apparent that the trial court considered this Court’s Order of April 15, 1975 on the Appellant’s Petition For Rehearing as a reversal of the Summary Final Judgment of November 9, 1973. Such impression is perhaps understandable, but this Court’s temporary remand and request for a supplemental order from the trial court was certainly not Intended as a reversal of the Summary Judgment of November 9, 1973. Such action was taken solely to ascertain if the new contention had been presented to the trial court and if the trial court had considered the same prior to the entry of the Summary Final Judgment appealed from.

Apparently taking the April 15, 1975 Order of this Court on Petition For Rehearing as an implied mandate indicating this Court’s conclusion that the “Incontestable” clause would control the outcome of the case, the trial court on September 2, 1975 completely reversed its position and entered Summary Final Judgment for the Appellant and against the Appellee, predicating that judgment upon said “Incontestable” clause.

The parties have submitted supplemental briefs and the cause has been reargued before this Court pursuant to this Court’s Order of February 2, 1976 scheduling second oral argument.

Even though Appellant’s new contention concerning the applicability of the “Incontestable” clause of the policy was untimely raised and is violative of the specific provisions of Rule 3.14(b) Florida Appellate Rules, this Court must now pass on the contention since we, in effect, waived the rule by the entry of our Order of April 15, 1975 on the Appellant’s Petition For Rehearing. The fact that we now rule on that contention which was first raised in the Petition For Rehearing shall not be considered or construed as precedent for the proposition that this Court will at any time in the future allow new points or contentions, not previously assigned as error, briefed or argued, to be raised on Petition For Rehearing.

The basic insurance policy issued February 24, 1965 and here in controversy insures the Appellant against

“(1) disability as a result of accidental bodily injury sustained while this policy is in force and causing total disability which commences while this policy is in force (herein called “such injury”); and “(2) disability from sickness originating after the Policy Date of this policy and causing total disability which commences while this policy is in force (herein called “such sickness”).”

The basic coverage of the policy also provides that

“Any disability which is caused or contributed to by (a) sickness or disease or medical or surgical treatment therefor or diagnosis thereof**** shall be indemnified only as a disability due to sickness, except that disability which is caused by bacterial or other infection which shall occur through and as a result of a visible wound caused by accidental bodily injury shall be indemnified as a disability due to an accidental bodily injury.”

(Emphasis supplied)

The so-called “Incontestable” clause, which is quoted earlier in this opinion, is contained in the “Policy Provisions” of the basic policy and prohibits the Appellee from denying or reducing coverage (after the policy has been in effect for two years) on the ground that “a disease or physical disability * * which caused or contributed to the disability had existed prior to the effective date of this policy”.

The benefits payable for total disability from either sickness or injury under the basic coverage of the policy consist of monthly payments of $200.00 each for a maximum of 60 months.

The “Lifetime Accident Indemnity During Total Disability”, for which the Appellant contends entitlement, is attached to the basic policy as a “rider” or “endorsement” and in its pertinent parts reads as follows:

“(a) Subject to the terms and conditions of the policy respecting the time and conditions under which the Monthly Indemnity shall become payable for total disability caused solely by accidental bodily injury, the time limit placed by the policy on the payment of the Monthly Indemnity is hereby removed so that if, pursuant to the terms of the policy, the Insured shall become entitled to the payment of the Monthly Indemnity for total disability caused solely by accidental bodily injury, the Company will pay the Monthly Indemnity periodically during the continuance of such total disability.” (Emphasis supplied)

This rider or endorsement is restrictive in nature and applies only to total disability caused solely by accidental bodily injury sustained subsequent to the effective date of the policy.

Appellant claimed benefits under the policy in 1967 (more than 2 years after the effective date of the policy) for total disability stemming from a lower back condition which dated back to 1963 (prior to the issuance of the policy). Appellant, in his application for insurance, had revealed to Appellee the operation he had undergone in May of 1963 for a ruptured disc in the lower back. On April 6, 1965 (less than two months after the policy was issued) the Appellant reinjured his back while at work and in the process of lifting a 75-pound box, but he had been experiencing increasing pain and discomfort in his low "back, radiating to his right hip and leg from November, 1964 (before he applied for the policy of insurance in question) until the box-lifting incident on April 6, 1965. On July 7, 1965 Appellant underwent a surgical operation and it was found that he had a recurrent disc protrusion at the fourth lumbar level, which related back to the 1963 operation, together with spurring and disc protrusion at the fifth lumbar level. The recurrent disc protrusion at L-4 and the spurring and disc protrusion at L-5 were surgically removed. No claim was made under the policy for the claimed injury of April 6, 1965.

Then in June of 1966 Appellant had a recurrence of back difficulty requiring medical attention, claiming that while he was at work on June 6, 1966 and down on his knees in the process of getting up he “felt a stinging pain in the low back, followed by stiffness, pain in the back radiating in right hip and leg all the way to the foot.” After two weeks of treatment he was returned to work. Again, no claim was made under the policy for this episode.

Then on July 20,1967 the Appellant experienced a reoccurrence of pain in the low back while drying himself off after taking a bath. He had “bent over, had his right leg up on the side of the bathtub to dry his foot, and had a sudden sharp pain in the right lower hip and back”. On September 27, 1967 Appellant underwent further surgery at which time disc protrusion was removed on the left side of L-4, some small amount of recurrent disc and scarring removed on the right side of L-4, nerve decompression was performed and a bilateral spinal fusion at L-4 and L-5 levels was done. Appellant was never able to return to work after this last operation and had a re-fusion operation in April of 1969.

Appellant made claim for benefits under the policy for the 1967 incident and, after the 180-day waiting period prescribed in the policy had elapsed, he was paid benefits of $200.00 per month for a-total of 60 months by the Appellee.

The record which was before the trial court clearly shows that the 1965, 1966 and 1967 flare-ups were contributed to by the pre-existing disc trouble of 1963 and that the 1967 condition was additionally contributed to by prior surgery.

Even though the July 20, 1967 incident (which gave rise to the claim for disability benefits asserted in latter part of 1967) did not stem from “accidental bodily injury” within the meaning of the policy, still the Appellant was paid the maximum benefits of $200.00 per month for a full 60-month period. It is obvious from the record that these payments were made because of the “Incontestable” clause in the policy and that the benefits were paid not because of an “accidental bodily injury” suffered on July 20, 1967, but for “disability which is caused or contributed to by sickness or disease or medical or surgical treatment therefor or diagnosis thereof” which such disability is indemnifiable only as a disability “due to sickness” under the terms of the policy.

The “rider” or “endorsement” attached to the policy and providing for lifetime monthly benefits over and beyond the maximum 60 months provided for in the basic coverage is restrictive in nature and pertains only to total disability caused solely by accidental bodily injury. It is obvious from the record that Appellant’s total disability stemming from the July 20, 1967 incident was not caüsed solely by accidental bodily injury, but was caused or contributed to not only by the pre-existing back condition dating back to 1963 but also to prior surgical treatment to the same area.

Accordingly, thé “Incontestable” clause is ineffective to overcome the plain and restricted requirements of the “Lifetime Benefits” “rider” or “endorsement” and the Appellant has received all benefits to which he was entitled under the policy of insurance in controversy.

As said in this Court’s original opinion filed February 25, 1975:

“The trial court had before it the depositions of two physicians, who had previously treated Appellant, concerning the nature and cause of Appellant’s present disability. The testimony of each physician corroborated the other to the effect that Appellant’s present disability all relate back to his 1963 surgery for a disc disease. Thus, we find that the trial court was correct in entering summary judgment for Appellee on the basis that Appellant’s present disability did not result solely from accidental bodily injury occurring subsequent to the effective date of the policy — February 24, 1965.”

We now reaffirm that original opinion. Accordingly, the Summary Final Judgment entered November 9, 1973 is hereby affirmed and this cause is hereby remanded to the trial court with directions to vacate and set aside the “Order Granting Plaintiff’s Motion For Summary Judgment Upon Reconsideration Following Appeal” which was entered on September 2, 1975, and to reinstate the “Order Granting Defendant’s Motion For Summary Judgment” which was entered on November 9, 1973.

SMITH, J., concurs.

BOYER, C. J., specially concurs.

BOYER, Chief Judge

(specially concurring).

I concur in the result reached. I do not entirely concur with the historical recitations.

The second amended complaint for a declaratory judgment sought a construction of the entire policy of insurance issued by ap-pellee to appellant. After various pleadings, the learned trial judge entered an order granting a summary judgment in favor of the insurer. Appeal was taken to this Court and we affirmed. On Petition for Rehearing, appellant called to our attention a provision of the policy which had not been specifically relied upon in either the briefs or the oral argument and which had not been specifically considered by us in the rendering of our decision. Upon examining the order granting the defendant’s motion for summary judgment which had been entered by the trial judge, we could not determine whether or not the specific provision of the policy had been considered by him. Technically, appellant had not in fact broached a new position on Petition for Rehearing because his general contention had been throughout the entire proceedings in his pleadings in the trial court and before this Court that he was entitled to extended benefits under the policy. We, accordingly, improvidently using the language that “The Petition for Rehearing assumes a new ground or position” remanded to the trial court for further consideration in the event he had failed to consider, as had we, the specific provision of the policy recited in our per curiam opinion “On Petition for Rehearing”. (Please see Barnes v. Lincoln National Life Insurance Co., Fla.App. 1st 1975, 330 So.2d 119). We did not, either in our original opinion nor in our opinion On Petition for Rehearing, reverse the trial court. We were merely of the view that in all fairness, we should not consider arguments on appeal which perhaps had not been considered by the trial judge. Notwithstanding our recital in our opinion that “In the interest of justice, we temporarily remand this cause to the trial court for its consideration of appellant’s contention and its decision of whether or not its final judgment should or should not be modified”, the learned trial judge apparently misunderstood the intent of our opinion and, as recited in the majority, considered it as a reversal and thereupon entered the summary judgment in favor of appellant (plaintiff in the trial court) which we now consider.


author: McCORD, Judge. SCHLEGEL, LEW E., Associate Judge

text:
    R. Cary SLAUGHTER, Appellant, v. CITY OF JACKSONVILLE, Appellee.
    No. AA-14.
    District Court of Appeal of Florida, First District.
    Nov. 2, 1976.

      C. Ray Greene, Jr., Greene & Greene, Jacksonville, for appellant.
    Don A. Romanello, Gainesville, for appel-lee.
   McCORD, Judge.

Appellant, R. Cary Slaughter, appeals from a partial summary judgment entered in favor of appellee City of Jacksonville.

On October 12, 1964, Slaughter was employed by the Clerk of the Circuit Court of Duval County, his father, as Assistant Data Processing Manager where he worked continuously until he resigned July 29, 1974. His employment was covered by the Civil Service System and his salary in 1964 was $828 per month. By September 29,1969, he was classified in grade 30, step two, at a monthly salary of $888. Each civil service grade has a minimum and maximum salary for that grade and has five steps between the minimum and maximum amount. On December 16, 1969, an executive order was issued by the Mayor of the City of Jacksonville terminating a previous moratorium on merit raises effective January 1, 1970. The executive order stated that civil service rules provided that one step merit raises may be given by administrative officials without career service board action provided no merit raise has been given to the employee within the previous 12 months. Merit raises in the Office of the Clerk of Circuit Court required approval by the Clerk, the city budget officer and the personnel manager of the City. Pursuant to this executive order, 17 employees of the Clerk’s Office, including Slaughter, received merit raises. These employees represented substantially all of the employees of the office who qualified for consideration under the executive order. Slaughter’s increase took him from step two to step three within grade 30, increasing his salary from $888 to $932 per month. The City’s complaint was filed four days short of five years after the effective date of Slaughter’s increase and approximately six months after he left the employment. By the summary judgment, the trial court ruled that the pay increase to Slaughter violated § 116.111(2), Fla.Stat., and ordered recovery by the City from Slaughter of the sum of $2,601.84 with interest of $598.56.

The pertinent statute, § 116.111(2)(a), provides as follows:

“A public official may not appoint, employ, promote, or advance, or advocate for appointment, employment, promotion, or advancement, in or to a position in the agency in which he is serving or over which he exercises jurisdiction or control and individual who is a relative of the public official. An individual may not be appointed, employed, promoted, or advanced in or to a position in an agency if such appointment, employment, promotion, or advancement has been advocated by a public official, serving in or exercising jurisdiction or control over the agency, who is a relative of the individual.”

The foregoing statute was enacted and became law over 4V2 years after Slaughter was employed in the Clerk’s Office, and no contention is made here that his employment was in violation of the above statute.

Slaughter contends that a mere increase in salary of an employee, if not beyond the limit fixed for the pay grade in which such a position is classified, does not constitute a promotion or advancement within the meaning of the foregoing statute. The City contends that such increase is an advancement. The statute does not favor us with a definition of the term “advancement.” We have found little authority beyond that referred to in Opinion 070-76 of the Attorney General of Florida rendered on June 30, 1970, with regard to the meaning of promotion or advancement under the above statute. There, the Attorney General states:

“To ‘promote’ is to exalt in station, rank, or honor, according to McArdle v. City of Chicago, 172 Ill.App. 142 Webster’s Seventh New Collegiate Dictionary lists ‘advance’ as a synonym of ‘promote.’ Most of the decisions are in agreement that a mere increase in the salary of an employee that is not beyond the limit fixed for the grade in which such a position is classified does not constitute a ‘promotion.’ See Petition for Prendergast, [192 Misc. 376,] 80 N.Y.S.2d 739; 744; and Mandle v. Brown, [5 N.Y.2d 51, 177 N.Y.S.2d 482,] 152 N.E.2d 511, 515.”

Webster’s Third New International Dictionary defines advancement as the action of advancing or the state of being advanced; promotion or elevation to a higher rank or to a position of greater personal dignity or importance; furtherance or progression especially toward perfection or to a higher stage of development. Appellee correctly states that in the interpretation of the statute it will be presumed that the legislature intended every part thereof for a purpose and argues from this premise that the legislature did not intend for the terms “promotion” and “advancement” to be synonymous. Perhaps not, but had the legislature intended for the term “advancement” to include a salary increase without an increase in grade, it could very easily have said so. It is our view that it is only an increase in grade which elevates an employee to a higher rank or position of greater personal dignity or importance and is an advancement or promotion.

Reversed.

BOYER, C. J., concurs.

SCHLEGEL, LEW E., Associate Judge, dissents.

SCHLEGEL, LEW E., Associate Judge

(dissenting).

I respectfully dissent.

Although the record is clear that Defendant was only one of seventeen employees of the Clerk’s office who received a raise pursuant to an executive order issued by the Mayor of the City of Jacksonville allowing merit raises and that Defendant’s raise was approved by the City Budget office and the City personnel manager as well as Defendant’s father, and I acknowledge that I am disturbed by the fact that Plaintiff waited four years, 361 days to file this action, I am unable to distinguish the definition of the verb “advance” as given in Webster’s Third New International Dictionary (1961): “9: to raise in rate: INCREASE.”


author: McCORD, Judge.

text:
    Dewayne Frank NOBLE, III, Appellant, v. STATE of Florida, Appellee.
    No. CC-256.
    District Court of Appeal of Florida, First District.
    Nov. 2, 1976.

      Richard W. Ervin, III, Public Defender, and Michael M. Corin, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Charles W. Musgrove, Asst. Atty. Gen., for appellee.
   McCORD, Judge.

Appellant was convicted of larceny of an automobile and was given a five year split sentence, under § 948.01(4), Fla.Stat. (1975). The trial court ordered,

“After you have served three (3) years of said term, with no credit for good time or gain time the remainder of said sentence shall be stayed and withheld and you shall be placed on probation for a period of two (2) years under the supervision of the Florida Parole and Probation Commission.”

The notice of appeal filed by appellant recites that he appeals “the judgment and conviction.” Appellant’s brief raises no question regarding his judgment and conviction. The only question raised is whether or not the court erred in directing that appellant serve the first three years of his split sentence with no credit for gain time or good time. Furthermore, the record does not show that this question was ever raised in the trial court.

The “judgment and conviction” are affirmed without prejudice of appellant to test the legality of the sentence by filing in the trial court a motion under Fla.R.Crim.P. 3.850.

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


text:
    JOHNSON & KIRBY, INC., a Florida Corporation, Appellant, v. CITIZENS NATIONAL BANK OF FORT LAUDERDALE, now known as Atlantic National Bank of Fort Lauderdale, et al., Appellees.
    No. 75-1619.
    District Court of Appeal of Florida, Third District.
    Nov. 2, 1976.

      Quarles & Mills, South Miami, for appellant.
    Hulmes & Dreiling, Hollywood, for appel-lees.
    Before HENDRY and NATHAN, JJ., and SACK, MARTIN, Associate Judge.
   PER CURIAM.

Appellant, defendant and third party plaintiff in the court below, appeals from a final judgment entered by the trial court, subsequent to its granting appellee’s plaintiff below, motion for summary judgment as to the issue of liability.

Appellee, Citizens National Bank of Fort Lauderdale, now known as Atlantic National Bank of Fort Lauderdale, filed its complaint for replevin against appellant Johnson and Kirby, Inc., alleging that by virtue of a prior perfected security interest, appel-lee was entitled to possession of two boats held by appellant. Attached to the complaint were copies of two security agreements signed by Broadbill Marine Corporation, the manufacturer of the boats, in favor of the appellee bank. Subsequent to the bank’s perfection of the security interest, Broadbill sold the boats to appellant.

Appellant answered appellee’s complaint stating as an affirmative defense, inter alia, that it was a buyer in the ordinary course of business as defined in Fla.Stat.Ann., Sec. 671.201(9). On January 9, 1975 appellee filed a motion for summary judgment. Both appellant and appellee filed affidavits in support of their respective positions. On February 4, 1975, the trial court granted a summary judgment as to liability against the appellant and on September 19, 1975, a final judgment, based on the summary judgment was entered awarding damages to appellee. Appellants bring this appeal from the entry of this final judgment.

Appellant’s basic contention is that the trial court erred in granting the summary judgment as to liability because the evidence presented at the time of the hearing created a genuine issue of a material fact, i. e., whether appellant was a buyer in the ordinary course of business. Appellee contends that there were no genuine issues of material fact and it was entitled to a judgment as a matter of law and fact.

Rule" 1.510, Florida Rules of Civil Procedure, 31 F.S.A., pertaining to summary judgments provides, inter alia, as follows:

“The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”

As an affirmative defense, in its answer, appellant claimed the status of a buyer in the ordinary course of business. After examining the various pleadings, depositions, briefs and affidavits we can find no contravention of that allegation. As we stated in Underwriters Insurance Company v. Sisung, 174 So.2d 461 (Fla.3d DCA 1965), where a defendant pleads an affirmative defense and the plaintiff does not by affidavit contradict or deny that defense, the plaintiff is not entitled to a summary judgment.

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

Reversed and remanded.