text:
    Frank E. KUCERA, Appellant, v. Jane H. KUCERA, Appellee.
    No. 75-1005.
    District Court of Appeal of Florida, Fourth District.
    March 26, 1976.
    Edna L. Caruso, Howell, Kirby, Montgomery, D’Aiuto & Dean, West Palm Beach, for appellant.
    Philip J. Gouze, Law Offices of James P. O’Flarity, Palm Beach, for appellee.
   PER CURIAM.

Upon due consideration of the briefs and the circumstances reflected in the record on appeal we are of the opinion that the trial court erred in entering its order disbursing attorney’s fees to the appellant-husband’s additional counsel.

Appellant had previously deposited certain monies with his original counsel of record during the pendency of dissolution proceedings. As it appeared that original counsel was to be called as a witness at the final hearing appellant found it necessary to secure additional counsel. Subsequently, additional counsel filed a motion for relief of counsel and attorney’s fees. Pursuant thereto the trial court entered an order adjudicating the amount of the attorney’s fees and directing that such fees be paid from funds held by appellant’s original counsel.

According to the established case law in Florida, absent a claim of a charging-lien a lawyer’s disputed claim for fees must be prosecuted in a separate action at law. Cristiani v. Cristiani, 114 So.2d 726 (Fla.App.2d 1959); Chaachou v. Chaachou, 122 So.2d 24 (Fla.App.3d 1960); Worley v, Phillips, 264 So.2d 42 (Fla.App.2d 1972); Weksler v. Stamatinos, 314 So.2d 616 (Fla.App.3d 1975); see also 3 Fla.Jur., Attorneys at Law, § 69, et seq. Moreover, even where a charging lien is involved, in the absence of statute or contract providing otherwise, the lien attaches to the proceeds of a judgment or settlement or to any funds recovered by an attorney for his client so that disbursement is contingent upon such circumstances. 3 Fla.Jur., supra, §§ 76, 77.

Accordingly, the order disbursing attorney’s fees is vacated and set aside and the cause remanded for such other proceedings as are consistent herewith.

WALDEN, C. J., and CROSS and MA-GER, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    FIRST NATIONAL BANK OF POMPANO BEACH, Executor of Estate of E. Charles Conway, Deceased, et al., Appellants, v. JOSEPH C. MACKEY & COMPANY, Appellee. BATTLE, INC., REAL ESTATE, a Florida Corporation, Appellant, v. FIRST NATIONAL BANK OF POMPANO BEACH, Executor of Estate of E. Charles Conway, Deceased, Appellee.
    Nos. 74-423, 74-425.
    District Court of Appeal of Florida, Fourth District.
    April 2, 1976.
    James W. Geiger, of Devitt, Geiger, O’Neal & Booth, Fort Lauderdale, for appellants/appellee, First Nat. Bank of Pompano Beach, Executor of Estate of E. Charles Conway, deceased, Fairbanks Plaza, Inc., Gardens By The Sea Land Co. and Gardens By The Sea Development Corp.
    Bryson K. Lovejoy, Law Offices of George L. Moxon, Fort Lauderdale, for appellant, Battle, Inc., Real Estate.
    Carl Schuster, of Ruden, Barnett, Mc-Closky, Schuster & Schmerer, Fort Lauder-dale, for appellee, Joseph C. Mackey & Co.
   PER CURIAM.

Two suits, each seeking a real estate commission arising out of the same transaction, were consolidated for non jury trial. Broker-Joseph C. Mackey & Company was awarded the commission and the several defendants in that case have appealed (our Case No. 74-423). The unsuccessful broker, Battle, Inc., Real Estate, has filed a separate appeal (our Case No. 74-425). The appeals were consolidated.

Only two points raised on the consolidated appeals have merit. The judgment in favor of Joseph C. Maokey & Company was against E. Charles Conway, Fairbanks Plaza, Inc., Gardens By The Sea Land Company and Gardens By The Sea Development Corp., jointly and severally. It was error to enter judgment against Gardens By The Sea Land Company and Gardens By The Sea Development Corp. as there is no basis in the record upon which these two defendants are shown to be legally liable to Joseph C. Mackey & Company for commission on the transaction involving land beneficially owned by E. Charles Conway, title to which was held by Fairbanks Plaza, Inc. It was also error to omit, as part of the plaintiffs’ damages, interest on the debt from the date the same was due.

The judgment in Case No. 74-423 is reversed and the cause remanded for entry of a new judgment in favor of Joseph C. Mackey & Company consistent with the views herein expressed. The judgment in Case No. 74 — 425 is affirmed.

AFFIRMED in part, REVERSED in part, and REMANDED.

WALDEN, C. J., and OWEN and DOW-NEY, JJ., concur.


text:
    R. G. STONE, Appellant, v. Clyde A. LINGERFELDT and W. Carroll Dubose, Appellees.
    No. 75-1015.
    District Court of Appeal of Florida, Fourth District.
    April 2, 1976.
    Dennis L. Salvagio, of Lovett, Kreuter & Holmes, Orlando, for appellant.
    Arthur J. Ranson, III, of Robertson, Williams, Duane & Lewis, P. A., Orlando, for appellees.
   PER CURIAM.

Upon review of the record on appeal and consideration of the briefs of the parties we are of the opinion that a genuine issue of material fact exists with respect to the rights and liabilities of the parties under the written pre-incorporation agreement previously entered into by and between the parties. The written instrument in question contains provisions which are ambiguous (see paragraphs 6 and 11 of said agreement) casting doubt upon the intent of the parties to this instrument the determination of which intent must be made by the trier of fact and not by way of summary disposition. Westchester Fire Insurance Co. v. In-Sink-Erator, Fla.App.1971, 252 So. 2d 856; cf. Healy v. Atwater, Fla.App. 1972, 269 So.2d 753. See also Morton v. Morton, Fla.App.1975, 307 So.2d 835; Royal American Rlty. v. Bank of Palm Beach & Tr. Co., Fla.App.1968, 215 So.2d 336.

Accordingly, the summary judgment entered in favor of the defendants is reversed and the cause remanded for further proceedings consistent herewith.

WALDEN, C. J., and MAGER and DOWNEY, JJ., concur.


author: MILLS, Judge.

text:
    John Grant CASEY, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. X-529.
    District Court of Appeal of Florida, First District.
    Feb. 10, 1976.
    Richard W. Ervin, III, Public Defender, and Louis G. Carres, Special Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

The defendant appeals from a judgment of conviction and sentence based on a jury verdict which found him guilty of possession of hashish as charged in the information. The issue is whether the state proved the charge it made against the defendant. It did not.

The state charged the defendant with unlawful possession of hashish, a Schedule I controlled substance, in violation of Section 893.13(1) (e), Florida Statutes. Although the state proved that the defendant had possession of hashish, it failed to offer proof that hashish was a Schedule I controlled substance which was prohibited by Section 893.13(1) (e), Florida Statutes. Hashish is neither listed in Schedule I nor mentioned in Chapter 893, Florida Statutes. Although cannabis is listed in Schedule I as a controlled substance, and is defined in Section 893.02(2), Florida Statutes, in such broad and general terms that it includes every compound, manufacture, salt, derivative, mixture or preparation of the plant or its seeds or resin, the state failed to offer evidence that hashish was a derivative of cannabis. In addition, the record before us fails to show that the trial court took judicial notice that hashish is a derivative of cannabis. The trial court erred in the denial of the defendant’s motion for judgment of acquittal.

We are precluded from ruling on whether the information charged defendant with a crime because the record furnished us fails to disclose that the trial court ruled on defendant’s motion in arrest of judgment.

Reversed with directions to discharge the defendant.

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


author: SMITH, Judge. BOYER, Chief Judge

text:
    Bill N. DAVIS and Betty G. Davis, his wife, Appellants, v. Wesley R. HAGIN and Mabel P. Hagin, his wife, Appellees.
    No. Y-210.
    District Court of Appeal of Florida, First District.
    Jan. 16, 1976.
    John R. Weed, of Weed & Bishop, Perry, for appellants.
    Michael S. Smith, Perry, for appellees.
   SMITH, Judge.

Soon after this mortgage foreclosure action was at issue, the mortgagee gave notice that the case would be tried twenty-one days later. Rule 1.440(c), R.C.P., requires that thirty days fall between notice and trial. Not immediately, but only two days before trial, appellant’s counsel gave notice of an objection to the trial date. He made known his objection to the court on the day of trial. The court overruled the objection, tried the case and foreclosed the mortgage. The only point on this appeal is the propriety of the trial court’s action in trying the case twenty-one days after the notice.

The trial court acted within the proper limits of its discretion in disregarding a technical violation of the rules which was so tardily complained of. No substantial grounds supported appellants’ objection to the trial date and, for aught that ap-, pears, no prejudice resulted. See Rule 1.-010, R.C.P. We may assume that to sustain appellants’ objection when made would have been to delay the trial many more than nine days.

If the purpose of the tardy objection below was to delay the disposition of appellees’ claim while retaining the property in litigation, this Court has regrettably but unwittingly served that purpose by overlooking unauthorized and unexcused lapses in appellants’ advancement of this appeal. Out of this Court’s traditional deference to the lawyer’s struggle to meet competing demands for his time and strength, we denied appellees’ motion to quash or dismiss the appeal notwithstanding appellants’ failure to file timely directions to the clerk and a timely record under Rule 3.6j(l) and their failure to file a timely brief under Rule 3.7a. We will dispense with rehearing and issue the mandate forthwith.

Affirmed.

MILLS, J., concurs.

BOYER, C. J., dissents.

BOYER, Chief Judge

(dissenting).

I respectfully dissent.

The sole issue on this appeal relates to an initial construction of one of the Rules of Civil Procedure. On February 13, 1975, a complaint was filed alleging the defendants, appellants here, to be in default and seeking foreclosure of a mortgage held by appellees. On March 6, 1975, the defendants filed their answer. On March 14th, plaintiffs filed a Notice of Hearing stating that they would “bring up for final hearing the above entitled case * * * on April 4, 1975, at 9:00 A.M.”. On April 2, defendants’ attorney notified the plaintiffs’ attorney that he would move to strike the notice of hearing, and a motion bearing that date (but filed April 4, 1975) was served whereby the defendants moved “the court to strike the Notice of Trial filed herein since said notice is not in compliance with Florida Civil Procedure Rule 1.440”. Said motion to strike was heard and denied on April 4, final hearing was held on the same date and final judgment of foreclosure was entered.

Rule 1.440, R.C.P. provides as follows:

“(a) When At Issue. An action is at issue after any motions directed to the last pleading served have been disposed of or, if no such motions are served, 20 days after service of the last pleading. The party entitled to serve motions directed to the last pleading may waive the right to do so by filing a notice for trial at any time after the last pleading is served.
“(b) Notice for Trial. Thereafter any party may file and serve a notice that the action is at issue and ready to be set for trial. The notice shall include an estimate of the time required and whether it is to be tried by a jury or not. The clerk shall then submit the notice and the case file to the court.
“(c) Setting for Trial. If the court finds the action ready to be set for trial, it shall enter an order fixing a date for trial. Trial shall be set not less than thirty days from the service of the notice specified in subdivision (b). By giving the same notice, the court may set an action for trial on its own motion.
“(d) Applicability. This rule does not apply to actions to which Chapter 51, Florida Statutes 1967 applies.” (Emphasis added)

The rule clearly sets forth the procedure to be followed in setting a case for trial. It also clearly sets forth the time periods to be observed. Strict compliance with the rule may be waived by the parties. However, notwithstanding local customs to the contrary, a party is entitled to insist that the rules be complied with. There may well be instances in which for good cause shown strict compliance may be waived or dispensed with: However, no such cause appears sub judice. I do not conceive that Rule 1.010, R.C.P. was intended as a vehicle for carte blanche amendment of the other rules.

Although I am of the view that the foregoing remarks are applicable to any civil case, I particularly view them as being peculiarly applicable to mortgage foreclosure proceedings wherein one party is sought to be dispossessed of his property at the behest of another.

I would reverse.


author: McCORD, Judge.

text:
    Woody Floyd TAYLOR, Appellant, v. STATE of Florida, Appellee.
    No. X-392.
    District Court of Appeal of Florida, First District.
    April 8, 1976.
    Richard W. Ervin, III, Public Defender, and David J. Busch, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for ap-pellee.
   McCORD, Judge.

Appellant was found guilty by jury and adjudicated guilty of seven crimes — two counts of grand larceny, two counts of using a firearm while committing or attempting to commit a felony, two counts of robbery and one count of sexual battery. He was sentenced only on the two counts of robbery and the one count of sexual battery. The two counts of grand larceny were lesser included offenses of the two counts of robbery. It was error for the trial judge"to adjudicate appellant guilty of the two lesser included offenses (grand larceny) as they were a part of the higher robbery offenses for which appellant had been convicted. The judgments as to the grand larceny offenses are reversed and the judgments and sentences as to the remaining offenses are affirmed.

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


text:
    Warren L. HAHN, Administrator, Appellant, v. BENNETT’S REEF, INC., etc., Appellees.
    No. Z-314.
    District Court of Appeal of Florida, First District.
    March 25, 1976.
    Bruce C. Babbitt, Ft. Walton Beach, for appellant.
    John Fite of Barron, Redding, Boggs & Hughes, and Julian Bennett, of Welch, Hilton, Bennett, Logue & Burke, Panama City, for appellees.
   PER CURIAM.

AFFIRMED. Conklin v. Cohen, 287 So.2d 56 (Fla.1973).

BOYER, C. J., SMITH, J., and COX, JOHN S., Associate Judge, concur.


text:
    Wilbur G. MURRAY and Jeanette Murray, his wife, Appellants, v. L. J. McCRAY, Appellee.
    No. AA-449.
    District Court of Appeal of Florida, First District.
    April 8, 1976.
    George D. Gabel, Jr., of Wahl & Gabel, Jacksonville, for appellants.
    Duane E. Thomas, of Jopling, Darby, Peele & Page, Lake City, for appellee.
   PER CURIAM.

The trial court acted within its discretion in setting aside the default and judgment. The interlocutory appeal is therefore

DISMISSED.

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


text:
    Haydn W. WARKENTINE and his wife, Marcadell S. Warkentine, Appellants, v. Francis E. SNOW, and his wife, Blanche S. Snow, Appellees.
    No. Z-183.
    District Court of Appeal of Florida, First District.
    April 8, 1976.
    Young J. Simmons of Green, Simmons, Green & Hightower, Ocala, for appellants.
    Fred J. Krim of Savage, Krim & Simons, Ocala, and John F. Roscow, III, of Scruggs, Carmichael, Long, Tomlinson, Roscow, Pridgeon, Langdon & Helping, Gainesville, for appellees.
   PER CURIAM.

We have considered the briefs, record and arguments of counsel for the respective parties and find no error.

Affirmed.

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


author: PEARSON, Judge.

text:
    VICBAR, INC., a Florida Corporation d/b/a Vick’s Bar and Restaurant, Appellant, v. The CITY OF MIAMI et al., Appellees.
    No. 75-127.
    District Court of Appeal of Florida, Third District.
    March 23, 1976.
    Rehearing Denied April 27, 1976.
    Joe N. Unger, A. Jay Cristol, Miami, for appellant.
    John S. Lloyd, City Atty., and S. R. Sterbenz, Asst. City Atty., for appellees.
    Before PEARSON, HENDRY and NATHAN, JJ.
   PEARSON, Judge.

The appellant Vicbar, Inc., is the operator of a nightclub in downtown Miami. The appellee, City of Miami, after administrative proceedings pursuant to city ordinance, notified Vicbar that its nightclub license would not be renewed. Vicbar filed a complaint for declaratory judgment and a petition for certiorari, claiming an unconstitutional deprivation of its property rights. The trial court denied relief. This appeal is from that judgment.

The only substantial question involved here is whether the code provisions under which the City of Miami proceeded are constitutionally valid. We hold that the ordinance is fatally defective because under its provisions the City Manager has absolute and uncontrolled discretion to refuse to renew a nightclub license without the establishment of standards or guidelines for the exercise of that discretion. See State v. City of Tallahassee, 1937, 130 Fla. 418, 177 So. 719, 721; State v. City of Miami, Fla.App.1958, 107 So.2d 387; Amara v. Town of Daytona Beach Shores, Fla.App.1966, 181 So.2d 722.

There is no distinction at law between the revocation of a license and the refusal to renew that license. In each case, a private right is changed or taken away and due process of law is essential to the proceeding. Cf. Trader Tom’s Florida Fried Chicken, Inc. v. Wynne, Fla.App. 1974, 302 So.2d 153. An administrative determination to revoke a license constitutes the performance of a quasi-judicial function. See Robertson v. Industrial Insurance Company, Fla.1954, 75 So.2d 198, 45 A.L.R.2d 1292.

The ordinance under examination is triggered by the conviction of an agent or employee of a violation of the city’s regulations for nightclubs or a conviction for a violation of the alcoholic beverage laws of the State. The penalty is a refusal to renew the license but the penalty is conditional and is to be invoked only if the city manager, after a hearing, decides to enforce the penalty. If the refusal to renew in the first instance is regarded as automatic, then there is no provision for a hearing and the entitlement to a new license is in the absolute discretion of the city manager. If, on the other hand, the conviction is a prelude to the hearing, then the city manager has an absolute discretion as to the continuance of the business. In either case, it is necessary that the discretion of the revoking official be limited to guidelines having some reasonable relationship to the public health and welfare. State v. City of Miami, Fla.App.1958, 107 So.2d 387.

In Permenter v. Younan, 1947, 159 Fla. 226, 31 So.2d 387, the Supreme Court of Florida considered an appeal from an order for peremptory writ of mandamus issued by a circuit court to compel a city inspector to renew a city license for the sale of beer and wine. The court held:

“[1] The generally accepted rule is to the effect that an ordinance which vests in municipal authorities arbitrary discretion to grant or revoke a license to carry on an ordinarily lawful business, without prescribing definite rules and conditions for the guidance of the authorities in the execution of their discretionary power, is invalid. 38 Am.Jur., p. 26, Section 337; Anno., 12 A.L.R. 1436, 54 A.L.R. 1104, and 92 A.L.R. 401.
“[2] There is no inherent right in a citizen to sell intoxicating liquors, nor a privilege to a citizen of Florida or a citizen of the United States. Mears v. Stone, 151 Fla. 760, 10 So.2d 487.
“[3] So there is the exception to the ordinary lawful business rule where the business to be engaged in is a mere privilege, rather than a right. For example, dealing in intoxicating liquors falls within the exception category, because its character tends to be injurious.”

We believe, however, that the Supreme Court of Florida has receded from this view. In Cohen v. Schott, Fla.1950, 48 So.2d 154, that court stated:

“The law makes the sale of intoxicating beverages a legitimate business, imposes a high tax for the privilege of engaging in it and exacts a high degree of rectitude of those who do so. An inquisition into a charge of violating the conditions of one’s license is in no sense criminal but equitable in nature and should be adjudicated on equitable principles.”

For the application of federal standards, see Mayhue v. City of Plantation, 375 F.2d 447 (5th Cir. 1967). We conclude that in the light of more recent decisions, the right to a renewal of a license of a business dealing in intoxicating liquor must be judged by the constitutional standards applicable to a lawful business.

We are sympathetic to the desire of the City to regulate and supervise closely businesses which engender trouble for the police authorities. There is no reason that an ordinance may not provide that such businesses may lose their licenses when their actions are reasonably calculated to endanger the public. The thrust of this opinion is simply that such a decision must be made in conformity with established constitutional provisions for due process.

We find nothing in the conduct of the hearing provided which was improper or unlawful. Therefore, appellant’s second point fails to present reversible error. But, having found error in the trial court’s holding that the ordinance provided for a revocation of appellant’s license under due process of law, the judgment is hereby reversed with directions to quash the order of the City of Miami denying the application of Vichar, Inc., for a license.

Reversed and remanded.

      . The trial judge found:

      “Such cases as Sawyer v. City of Miami, Fla.App.1965, 172 So.2d 481, Cert. den’d., 177 So.2d 476, and Berman v. City of Miami, 17 Fla.Supp. 72 (11th Cir. 1960), affirmed, Fla.App.1961, 127 So.2d 683, and the treatise treatment of amusement houses, including night clubs, contained in 2 Fla. Jur. 200, Amusements, Sec. 8. Theaters, Public Halls, Etc., demonstrate the extent of the control municipalities have over the licensing and regulation of night clubs. It has not been shown that the plaintiff in this case is entitled to any relief from the December 13, 1974 letter order of City Manager P. IV. Andrews of the City of Miami.”

      . The portions of the ordinance relevant to this opinion are as follows :
      "Section 3-47.
      Refusal of renewal, etc., of license for certain convictions during preceding licensing year.
      “No night club license shall bo issued, reissued or renewed at the start of a new licensing year at the location of any previously licensed night club when the holder or any managing agent or employee of the holder of a night club license at such location has been convicted of a violation of this chapter, section 4-6 or the alcoholic beverage laws of the state during the city license year immediately preceding such new licensing year.

      “Any holder or former holder of, or applicant for, a night club license subject to the foregoing provision may request and obtain a hearing before the city manager, as a result of which hearing the city manager may authorize or deny the issuance, reissuance or renewal of a night club license to such holder, former holder or applicant after ‘hearing such evidence as may be presented concerning the previous and the proposed operation of such night club.”


author: SMITH, Judge.

text:
    David Alan McCRAW, Appellant, v. STATE of Florida, Appellee.
    No. X-523.
    District Court of Appeal of Florida, First District.
    Jan. 26, 1976.

      J. LaDon Dewrell of Dewrell & Kessler, Ft. Walton Beach, for appellant.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for ap-pellee.
   SMITH, Judge.

The trial of this case was delayed 104 days while the State responded listlessly to McCraw’s untimely notice, pursuant to Rule 3.210(b), R.Cr.P., that he intended to rely on the defense of insanity. After McCraw’s motion for discharge was denied and a jury was impaneled to try him on a charge of breaking and entering with intent to commit robbery, he pleaded nolo contendere, reserving the right to appeal the denial of his discharge. He was adjudicated guilty and sentenced to a term of imprisonment.

McCraw, 17 years of age, was taken in custody January 1, 1974. On November 12, 316 days later, his trial began. His motion to dismiss for denial of a speedy trial was filed October 16 and denied October 24.

During 46 days of the 316-day pretrial period McCraw was subject to the juvenile jurisdiction of the circuit court pursuant to ch. 73-231, § 23, Fla.Laws, which amended § 39.01(6), F.S.1973, to extend jurisdiction to 17 year-olds effective July 1, 1974. Those 46 days during which McCraw was unavailable for trial are therefore excluded in calculation of the 180-day period in which, pursuant to Rule 3.191, R.Cr.P., the State was obliged to bring the accused to trial. State v. Bryant, 276 So.2d 184 (Fla.App. 1st, 1973), dism, 280 So.2d 683 (Fla.1973).

At his February 4 arraignment McCraw pleaded not guilty and the trial was set for April 2. Not until March 19 did his counsel give notice of intent to rely upon an insanity defense. That notice was untimely, although not fatally so. Rule 3.-210(b) contemplates that the defendant notify the court before or at arraignment if he intends to rely on insanity as a defense but permits the introduction of evidence at the trial notwithstanding irregularities in the notice on good cause shown. The notice given March 19 in effect compelled the State to move for continuance of the trial set to begin 12 days later and, when the State made the motion for continuance, defense counsel acquiesced in the granting of it.

We previously have held that a defense motion for continuance extends the time limitations of Rule 3.191 for a reasonable period and that defense counsel’s acquiescence in a delay sought by the State has the same effect. State v. Earnest, 265 So.2d 397 (Fla.App. 1st, 1972); State v. Kelley, 322 So. 581 (Fla.App. 1st, 1975). In this case, waiver was accomplished by defense counsel’s filing of a Rule 3.210(b) notice, tardy by 44 days, which disrupted the orderly progression of the case to a trial then only two weeks distant. Appellant is in no position to insist on a formalistic application of the 180-day rule. See State ex rel. Butler v. Cullen, 253 So.2d 861 (Fla.1971).

It remains to be determined whether the delay of appellant’s trial for 193 days after the March 19 filing of his Rule 3.210(b) notice — disregarding the intervening 46-day period of juvenile jurisdiction — was unreasonable by the standards enunciated in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). See also State ex rel. Butler v. Cullen, supra, 253 So.2d at 863.

The record reveals that, after a March 25 hearing on the insanity defense notice, the State made an appointment for appellant to be examined by one of the two examining psychiatrists appointed by the court at the State’s request, that appellant kept the appointment and was examined on May 13, 1974, that appellant was never examined by the other psychiatrist and that, sometime after May 13, defense counsel notified the prosecuting attorney that the insanity defense would be dropped. Defense counsel did not, however, formally withdraw the Rule 3.210 notice filed March 19. The record contains no other information of the reason for the continued delay until July 1, when the trial court’s jurisdiction was divested by the intervention of the new juvenile law, ch. 73-231, § 23, nor any explanation of the further delay after August 16, when juvenile jurisdiction was waived, until October 16, when appellant’s demand for discharge was made.

The primary responsibility for bringing McCraw to a speedy trial rested squarely on the State. Dickey v. Florida, 398 U.S. 30, 37-38, 90 S.Ct. 1564, 1568-69, 26 L.Ed.2d 26, 31-32 (1970); Barker v. Wingo, supra, 407 U.S. at 527, 92 S.Ct. at 2190, 33 L.Ed.2d at 115. While the tardy filing of McCraw’s Rule 3.210 notice continued the trial and discontinued the 180-day counting, it did not shift to McCraw, in whole or in part, the State’s continuing responsibility to try McCraw speedily.

Although the delay following March 19 was sufficiently lengthy to require close consideration of the other factors bearing on the reasonableness of the delay, McCraw’s decision while at liberty on bond not to demand a speedy trial and his failure to demonstrate any significant prejudice negate his claim that the delay had an unconstitutional effect. Barker v. Wingo, 407 U.S. at 530, 92 S.Ct. at 2192, 33 L.Ed.2d at 117; King v. State, 303 So. 2d 389 (Fla.App. 3d, 1974), cert. den., 314 So.2d 775 (Fla. 1975).

McCraw was not denied the benefits of Rule 3.191, R.Cr.P., pertaining to speedy-trial, nor those of the Sixth Amendment, made applicable to the States by the Fourteenth Amendment. His conviction is

Affirmed.

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


text:
    CITY OF MIAMI BEACH, a municipality organized and existing under the Laws of the State of Florida, Appellant, v. Howard GROSS, etc., et al., Appellees.
    No. 75-775.
    District Court of Appeal of Florida, Third District.
    April 6, 1976.
    Rehearing Denied April 26, 1976.
    Joseph A. Wanick, City Atty., Miami Beach, for appellant.
    Katz & Merritt, Boca Raton, for appel-lees.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

This is an appeal from an order denying a petition for certiorari brought by the City of Miami Beach against the City of Miami Beach Zoning Board of Adjustment and Alexander Muss & Sons, Inc., d/b/a Seacoast Towers South.

In 1963, the Seacoast Towers building was constructed. Three hundred fifty one parking spaces were provided for two hundred thirty eight units. Seacoast concluded that fifty one of those parking spaces were not needed and subsequently tennis courts were built thereon by Seacoast without a building permit or a zoning variance from the City of Miami Beach. Thereafter, on April 28, 1972, Seacoast applied to the Zoning Board of Adjustment for a variance for the tennis courts. On July 1, 1972, the City of Miami Beach, pursuant to provision of its charter, issued its written certificate stating that the Seacoast request was for a variance and not for a change in zoning and, therefore, the matter was properly withing the jurisdiction of the Zoning Board of Adjustment for such action as it might deem appropriate. Ultimately, the Zoning Board of Adjustment heard testimony and granted the variance.

The City of Miami Beach then filed a petition for certiorari in the circuit court attacking the Board’s ruling and seeking to require Seacoast to remove the tennis courts. The trial court entered an order denying such petition and it is from this order that the City appeals. The City contends that its zoning board did not have jurisdiction to grant a variance “after the fact” (after violation of the Code of the City of Miami Beach requiring issuance of a permit or variance by the Zoning Board before construction). By charter, the City of Miami Beach has delegated to the Zoning Board of Adjustment jurisdiction to hear and decide all variances and further has provided that all decisions of the Board shall be final and there shall be no review except by a court of competent jurisdiction. The trial court found that the granting of the variance in question was fully supported by substantial competent evidence establishing that the strict application of the zoning ordinance to Seacoast would produce a unique or unnecessary hardship with reference to the property in question. The findings of fact of the trial court come here with a presumption of correctness.

The granting of the conditional variance in this case was, as a matter of law, a proper exercise of the City of Miami Beach Zoning Board of Adjustment’s authority. The denial of the petition for cer-tiorari is, therefore, affirmed. Cf. Aitkins v. Atwood, Fla.App.1960, 124 So.2d 31.

      . The Zoning Board of Adjustment granted the variance on the condition that, “. . .if the City determines that they need the spaces because they are lacking spaces to cover the people that are either visiting or living there, the City shall send them notice to cease and desist as far as the use of the tennis courts are concerned, and to convert the tennis courts into the adequate parking spaces.”


text:
    Lawrence J. DONLYUK and James W. Donlyuk, Appellants, v. STATE of Florida, Appellee.
    No. Z-108.
    District Court of Appeal of Florida, First District.
    March 19, 1976.
    Rehearing Denied April 27, 1976.

      Wilton R. Brinkley, Judge & Warren, Daytona Beach, for appellants.
    Robert L. Shevin, Atty. Gen., Carolyn M. Snurkowski, Asst. Atty. Gen., for ap-pellee.
   MELVIN, WOODROW M., Sr., Associate Judge.

The parties to this appeal will be designated as they were in the trial court.

The Defendants, each with no prior felony conviction, entered their plea of guilty to the offense of armed robbery. Upon request of counsel, the trial court, on January 7, 1974, ordered a pre-sentence investigation report for each of them. Thereafter, on January 11, 1974, the trial court, advising that the court had received a verbal pre-sentence investigation report, proceeded to sentence each Defendant to the State prison for a period of twenty years.

The single question for determination here is whether, under the provisions and purposes of Rules of Criminal Procedure 3.710, 3.712 and 3.713 relating to pre-sen-tence investigation reports, such reports are required to be in writing.

Although the rules do not specify that such reports shall be in writing, we find such to be the purpose and spirit of the rules. If the report be not in writing, then the provisions of Rules of Criminal Procedure 3.712(b), (c) and (d), authorizing the court to make the report available to persons or agencies having a legitimate professional interest in the information contained in the report, making the report available to reviewing courts, and requiring the judge to make available all factual material contained therein to the Defendant and the State a reasonable time before imposing sentence, would have no practical field of operation. We, therefore, hold that pre-sentence reports contemplated by the applicable rules must be in writing.

We reverse with direction that the sentence imposed on each Defendant be vacated and a pre-sentence written report be requested by the Court.

RAWLS, Acting C. J., and BARK-DULL, THOMAS H., Jr., Associate Judge, concur.


text:
    Alvin GREENWOOD, Appellant, v. The STATE of Florida, Appellee.
    No. 75-297.
    District Court of Appeal of Florida, Third District.
    April 13, 1976.
    Alvin Greenwood, in pro. per.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

Affirmed. See: Arnold v. Wainwright, 5th Cir. 1975, 516 F.2d 964.


author: SCHEB, Judge.

text:
    FLORIDA DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, DIVISION OF MENTAL HEALTH et al., Petitioners, v. STATE of Florida and Arthur L. Williams, Respondents.
    No. 75-1047.
    District Court of Appeal of Florida, Second District.
    April 9, 1976.
    Mary Clark, Tallahassee, for State of Florida Dept, of Health and Rehabilitative Services.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for respondents.
   SCHEB, Judge.

Petitioners contend the trial judge erred in denying the State Attorney’s motion requesting payment of expert witness fees for staff members of the state hospital subpoenaed to testify as to competency of a defendant in a criminal case. We denied the Attorney General’s motion to dismiss on grounds the trial court’s order was not appealable and we elected to treat the notice of appeal as a petition for a writ of certiorari. Upon review of the record and briefs, we hold the trial court was correct in ruling that petitioners were entitled only to per diem and travel expenses and not to expert witness fees. We deny the petition.

The basic facts here are undisputed. On May 11, 1973, the State charged Arthur Lee Williams with second degree murder. On June 7, 1973, the trial court found the defendant Williams incompetent to stand trial and certified him to the State Mental Hospital in Chattahoochee where he received treatment. Upon his discharge on October 2, 1974, he was returned to the trial court which found him incompetent to stand trial and recommitted him to the hospital on November 5, 1974. Again, the defendant Williams was returned to the trial court by order entered April 22, 1975, following a letter from one of the circuit judges on March 19, 1975, informing the state hospital that testimony of certain of its staff members would be required at a prospective hearing under RCrP 3.210(a). The petitioners, Dr. Modesto F. Hevia, a psychiatrist, and Ms. Susan LaFehr, psychologist, testified under subpoena at that hearing. At the conclusion of the hearing the trial judge found Williams still incompetent to stand trial and ordered him returned to the state hospital at Chattahoochee. The State Attorney then moved for payment of costs of $596.02 to pay expenses and per diem of petitioners, including expert witness fees. The trial judge held that petitioners, as state employees, were subpoenaed and testified as part of their job assignment and were not entitled to reimbursement beyond per diem and travel expenses. We direct our attention to so much of that order as denied petitioners’ request for expert witness fees.

Petitioners Dr. Hevia and Ms. LaFehr contend they came within the scope of Fla.Stat. § 914.06 which provides for award of reasonable compensation to expert witnesses who testify in felony cases. Petitioners further cite Fla.Stat. § 918.11, which provides:

“Expert witnesses appointed by the court to determine the mental condition of a defendant in a criminal case shall be allowed reasonable fees for services rendered as witnesses, which shall be paid by the county where the indictment was found or the information or affidavit was filed. The fees shall be taxed as costs in the case.”

The State, on the other hand, contends the petitioners were representing the Florida Department of Health and Rehabilitative Services and that the records they produced and their testimony were all the result of services performed on behalf of the State in their course of employment.

We do not construe Fla.Stat. § 914.06 as mandating a trial judge to award expert witness fees to state employees testifying on state time in reference to matters for which they bear a direct and continuing responsibility, nor do we equate their appearance with an entitlement to a fee under Fla.Stat. § 918.11, which authorizes appointment of expert witnesses to determine the mental condition of a defendant in a criminal case. Here, the state hospital makes such a determination on a continuing basis, and the petitioners’ testimony was required because of their professional contact with the defendant Williams and their knowledge of his mental condition gained from their custodial and supervisory care of him during his hospitalization. Thus it was clearly within the scope of their duties to respond to the court subpoena, produce written records, and testify as to their professional conclusions.

The statutes referred to do not disqualify a state employee who appears as an expert witness from receiving a fee for his services. There may be situations where a state employee may either be subpoenaed in line of duty or otherwise called to testify as expert and entitled to fees for such services. We express no opinion, however, as to circumstances which may permit this and under what conditions the witness could retain such fees rather than turning them over to the state agency.

Accordingly, we find that the trial court’s order of June 29, 1975, denying petitioners’ expert witness fees was proper.

Certiorari denied.

BOARDMAN, A. C. J., and GRIMES, J., concur.

      . Ms. LaFehr was also served with a subpoena duces tecum requiring her to bring with her:
      “Any and all psychiatric evaluations, records of medications, records and minutes of staffing procedures concerning Arthur Lee Williams, available since the time he was first hospitalized at the Florida State Hospital, Chattahoochee, Florida.”


text:
    The ORLANDO UTILITIES COMMISSION et al., Appellants, v. ROSALIND HOLDING COMPANY, a Florida Corporation, a member of and representative of a class composed of all persons who are consumers of service including sewer, water and electricity furnished by the Orlando Utilities Commission, Appellees.
    No. 75-1211.
    District Court of Appeal of Florida, Fourth District.
    March 19, 1976.
    Rehearing Denied April 26, 1976.
    Thomas B. Tart, of Gurney, Gurney & Handley, P. A., Orlando, for appellant Orlando Utilities Commission.
    Robert L. Hamilton, Asst. City Atty., Orlando, for appellant City of Orlando.
    Richard W. Bates, of Richard W. Bates, P. A., Orlando, and Mateer & Harbert, County Attys., for appellant Orange County.
    Charles E. Davis and Stephen P. Kanar, of Fishback, Davis, Dominick & Simonet, Orlando, for appellees.
   PER CURIAM.

This is an interlocutory appeal from (1) an order denying the defendant-appellants’ motion to (a) dismiss appellee’s amended complaint for failure to state a cause of action, and (b) strike various portions of that complaint and (2) an order denying defendant Orange County's motion for severance.

Appellee’s amended complaint (which sought equitable relief), among other things, alleged that defendant Orlando Utilities Commission is charging all its consumers (including appellee) unreasonable rates. This allegation is sufficient to withstand appellants’ motions to dismiss and to strike. We therefore affirm the first order on authority of the cases set forth at 10 Fla.Jur., Dismissal, etc., § 33, p. 544, note 42.

Appellant Orange County has not demonstrated any abuse of discretion in the court’s ruling on its motion for severance. We therefore affirm the second order. See Compania Dominicana de Aviacion v. Knapp, Fla.App.1971, 251 So.2d 18, 19.

AFFIRMED.

WALDEN, C. J., DOWNEY, J., and ANDREWS, JOHN S., Associate Judge, concur.


author: BOYER, Chief Judge.

text:
    Delmer L. GLASS and Estell Glass, his wife, Appellants, v. Linda Glass ARMSTRONG, Appellee.
    No. Z-404.
    District Court of Appeal of Florida, First District.
    April 13, 1976.
    Clinton E. Foster, Panama City, for appellants.
    Russell R. Stewart, Panama City, for ap-pellee.
   BOYER, Chief Judge.

In 1973, appellants filed a petition for adoption of their three-year-old grandson which petition was denied. Two years later they filed another petition for adoption of the same child, in which latter petition they alleged the filing and denial of the prior petition, and further alleged a subsequent substantial change in circumstances. The mother of the child, appellee here, filed a motion to dismiss, alleging res judi-cata. The lea.rned trial judge thereupon entered the order here appealed in which he recited:

“THIS CAUSE having been heard before the undersigned upon the Respondent’s Motion to Dismiss and the Court having reviewed the file and pleadings and having taken judicial notice of the other proceedings in this judicial circuit involving the same parties and issues and having heard argument of counsel, it is therefore:
“ORDERED AND ADJUDGED that the amended complaint be and the same is hereby dismissed on the grounds of res judicata.”

Speaking to the propriety of a trial judge taking judicial notice of the records in other cases not introduced into evidence, the Supreme Court of Florida in Kostecos v. Johnson, Sup.Ct.Fla. 1956, 85 So.2d 594 said:

“Our consideration of the record on this appeal is complicated by the fact that in entering a summary judgment for the appellee, the trial judge took judicial notice of the records in the county delinquent tax proceeding and in the drainage district foreclosure proceeding. Apparently both parties agreed to this and the trial judge recited in his judgment that he had done so. Although no error is assigned on this proposition, both parties evidently agreeing that the procedure was correct, we are constrained to point out that the trial court is not authorized to take judicial notice of the records in a different case pending or disposed of in the same court but outside the record in the case before him. See Adams v. Adams, 126 Fla. 217, 170 So. 697, and Cassels v. Ideal Farms Drainage District, 156 Fla. 152, 23 So.2d 247. The case before us illustrates the sense of the rule.
“The judgment recites that the trial judge took judicial notice of the entire contents of the records in the two delinquent tax cases. Undoubtedly he could conveniently call upon the office of the clerk of the court to bring the records before him and make them available for his examination in arriving at a judgment. Upon appeal, however, this court is not similarly situated and we are, therefore, obviously without the information contained in the two records in the Circuit Court of Sarasota County which may or may not have properly constituted the basis of the summary judgment that was entered because these records do not constitute a part of the record on appeal unless they were appropriately introduced in evidence either in the original or by certified copy and then included in the record sent to this court for consideration.” (85 So.2d 596)

In Moskovits v. Moskovits, Fla.App. 1st 1959, 112 So.2d 875, this Court held a circuit judge to be without authority to judicially notice the records and proceedings in a County Judge’s Court in the same county.

The more important issue, however, is whether the defense of res judicata may be raised by motion to dismiss or whether it is an affirmative defense requiring pleading and proof.

Rule 1.140(b) RCP provides that except for seven enumerated exceptions which may be made by motion, defenses shall be asserted in responsive pleadings. Res ad-judicata is not one of the enumerated exceptions authorized to be raised by motion.

Rule 1.110(d) provides that res adjudica-ta is an affirmative defense to be raised as such, but that “Affirmative defenses appearing on the face of a prior pleading may be asserted as grounds for a motion or defense under Rule 1.140(b); . . .”

As above recited, appellants’ amended petition for adoption specifically alleged a substantial change in circumstances since denial of the prior petition, and enumerated those changes.

The controlling principle of law disposi-tive of this case is found in Moskovits v. Moskovits, supra, wherein Judge Wiggin-ton, speaking for the court, said:

“At the outset it must be borne in mind that in considering a motion to strike or dismiss a complaint, all matters well pleaded are admitted as true by the mov-ant. It is also fundamental that unless the complaint clearly shows by its allegations that the relief prayed for is barred by res ad judicata, estoppel by judgment or equitable estoppel, such defenses are not available by motion, but must be specifically pleaded as affirmative defenses to the complaint. Such defenses cannot, as was done in this case, be asserted by allegations of fact stated in the motions, nor can they be established by the introduction of extrinsic evidence at the hearing thereon.” (112 So.2d 878, footnotes deleted)

To the same effect is Chambers v. Chambers, Fla.App. 1st 1958, 102 So.2d 171.

Reversed and remanded for further proceedings consistent herewith.

SMITH, J, and COX, JOHN S., Associate Judge, concur.


text:
    Sylvester P. SMITH and Richard Person, Appellants, v. STATE of Florida, Appellee.
    No. Y-340.
    District Court of Appeal of Florida, First District.
    April 13, 1976.
    Richard W. Ervin, III, Public Defender, and David J. Busch, Asst. Public Defender, for appellants.
    Robert L. Shevin, Atty. Gen., and Andrew W. Lindsey, Asst. Atty. Gen., for ap-pellee.
   McCORD, Judge.

Appellants were charged with robbery and were tried on April 28, 1975. The court instructed the jury on the crime charged and the lesser included offenses of grand larceny and petit larceny. Appellants’ request for instructions to the jury on the penalties for the foregoing offenses was refused. The jury retired and, without requesting any additional instructions, returned verdicts of guilty of grand larceny against both appellants. The jury was discharged without being polled (there was no request for polling) and appellants were adjudged guilty of grand larceny and given maximum sentences — five years in the state prison. The following day, April 29, the Lake City Reporter published an article relating that “In a totally unexpected move,” the jury found appellants guilty “only of grand larceny, despite testimony they held guns to the throats of the victims.” The article further related that the judge was “all set to give [the appellants] life imprisonment if they were convicted of armed robbery,” the jury returned to “shock the courtroom with the grand larceny conviction.”

On May 2 the state attorney filed a petition alleging that the jury erroneously believed that grand larceny was the maximum offense available under the charge and requested that a hearing be held to determine the validity of its allegations. He asked that the court either allow the jury to reconsider its verdict or grant a new trial. Over the objection of appellants, the trial judge held a hearing on the same day and took the testimony of the jurors. All six jurors testified that they had unanimously voted to convict appellants of armed robbery, but that since there was no verdict form for armed robbery (only a form for robbery), they decided that grand larceny was the highest offense they could bring in, so they returned the verdict of guilty of grand larceny; that they realized their mistake when they read or heard about the newspaper article.

The court granted the state’s petition to set aside the order discharging the jury and directed the jury to reconsider its verdict. The jury then returned verdicts of guilty of robbery and appellants were sentenced to life imprisonment. Appellants’ motion to vacate the judgments and sentences was denied and this appeal was taken.

Although it was within the trial court’s discretion to grant or deny appellants’ motion to charge the jury on the penalties for robbery and the lesser included offenses, had the court granted rather than denied such motion, it would probably have eliminated the jury’s confusion and the jury’s error would thus probably have been forestalled. Also, had the state requested that the jury be polled when it returned to the courtroom with the grand larceny verdict, the jury’s error would probably have been forestalled. After the jury was discharged, however, (and judgments and sentences were pronounced) it thereafter was too late to make the correction. The jury could not be recalled to consider any matter which did not inhere in the verdict, such as that a juror did not assent to the verdict or that he misunderstood the instructions of the court. Marks v. State Road Department, Fla., 69 So.2d 771 (1954). As stated by our sister court, the District Court of Appeal, Second District, in State v. Smith, Fla.App. (2d), 183 So.2d 34 (1966):

“If the jury had been properly polled and the trial judge found that there was a dispute or disagreement as to the verdict returned, he could have sent the jury back to bring in a proper verdict. A jury should be polled before it is discharged, because upon discharge, its members lose their separate identity as a jury, and can be affected by extra-trial influences.”

Quoting from the opinion of the Supreme Court in Russ v. State, Fla., 95 So.2d 594 (1957), the Second District Court in State v. Smith went on to say:

“ ‘It is a long established and generally accepted doctrine that testimony or affidavits of jurors impeaching a verdict rendered by them will not be received and considered where the facts shown therein are such as to inhere in the verdict. Langford v. King Lumber & Mfg. Co., 1936, 123 Fla. 855, 167 So. 817; City of Miami v. Bopp, 1934, 117 Fla. 532, 158 So. 89, 97 A.L.R. 1035; Linsley v. State, 1924, 88 Fla. 135, 101 So. 273.’ ”

In addition, upon the trial court’s acceptance of the jury’s larceny verdicts and its pronouncing sentence thereon, former jeopardy attached under the Fifth Amendment of the United States Constitution and the sentence which had been imposed could not thereafter be increased nor could appellant be again tried for another offense based on the same criminal transaction. Troupe v. Rowe, Fla., 283 So.2d 857 (1973); Ray v. State, Fla., 231 So.2d 813 (1969).

The cause is reversed and remanded with directions to vacate and set aside the convictions and sentences of appellants for robbery and to reinstate the judgments and sentences for grand larceny.

SMITH, J., and FULLER, RICHARD S., Associate Judge, concur.


text:
    CHARLOTTE COUNTY, a political subdivision of the State of Florida, et al., Appellants, v. Walter L. FISHE et al., Appellees.
    No. 76-14.
    District Court of Appeal of Florida, Second District
    April 14, 1976.
    Leo Wotitzky of Wotitzky, Wotitzky, Johnson, Mandell & Batsel, Punta Gorda, for appellant Englewood Disposal Company, Inc.
    H. William Thompson, Punta Gorda, for remaining appellants.
    William R. Korp, Venice, for appellees.
   PER CURIAM.

In affirming the trial court’s denial of appellants’ motion for more definite statement and motions to dismiss, we are not passing on the constitutionality of the ordinance, No. 75-8. We are merely concluding that the amended complaint alleges sufficient ultimate facts to state a cause of action.

AFFIRMED.

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


text:
    Hal S. WEIDNER, Appellant, v. Waldron W. STANFIELD and Geneva M. Stanfield, his wife, Appellees.
    No. Z-300.
    District Court of Appeal of Florida, First District.
    April 13, 1976.
    Alan B. Fields, Jr., of Dowda, Hedstrom & Fields, Palatha, for appellant.
    John F. Sproull and Angus W. Harriett of Harriett & Sproull, Palatha, for appel-lees.
   PER CURIAM.

We have considered the briefs, record and oral argument of counsel for the respective parties and find no error in the trial judge’s entry of the partial summary judgment.

Interlocutory appeal dismissed.

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


text:
    Peter B. ATWOOD, Appellant, v. Melvin A. FISHER et al., Appellees.
    No. 75-782.
    District Court of Appeal of Florida, Third District.
    March 23, 1976.
    Rehearing Denied April 26, 1976.
    Devitt, Geiger, O’Neal & Booth, Ft. Lauderdale, Larry Klein, West Palm Beach, for appellant.
    Shutts & Bowen, Miami and Brenton Ver Ploeg, for appellees.
    Before BARKDULL, C. J„ and HEN-DRY and HAVERFIELD, JJ.
   PER CURIAM.

Plaintiff, Peter B. Atwood, Esq., seeks reversal of an order dismissing with prejudice his second amended complaint for recovery of a $25,000 loan.

Peter Atwood, an attorney, agreed to loan the defendants, who are treasure hunters, $25,000 for 30 days and on January 3, 1973 he drew up the loan agreement providing that in exchange for lending defendants $25,000 for a period of 30 days, he would be entitled to receive a gold doubloon (value not less than $1,000). In addition, defendants were required to deposit with him as security for the loan, three gold bars (supposedly minted in Mexico in 1659) worth $7,000 each. The agreement was ■ signed by both parties and Atwood tendered a $25,000 check to defendants, who in turn deposited the three gold bars. Defendants did not repay the loan and in June 1973 they left a second gold coin (supposedly of numismatic value of not less than $1,000) with Atwood to delay enforcement of the $25,000 debt. The defendants failed to repay the loan and plaintiff in August 1973 filed a complaint and eventually a second amended complaint for return of his $25,000. He alleged therein that the gold bars and coins were fakes and demanded punitive damages for fraud. Defendants filed a motion to dismiss the second amended complaint on the ground that the January 3, 1973 loan agreement is usurious in that it calls for a payment of a gold coin with a value not less than’$1,000, which is in excess of $12,000 per year (or annual interest rate of 48%) and, therefore, pursuant to Florida Statutes Chapter 687, plaintiff has forfeited both the interest and the principal. After hearing argument of counsel on this motion, the trial judge dismissed with prejudice plaintiff’s second amended complaint.

Plaintiff on appeal principally argues that the transaction is not usurious inasmuch as the gold doubloon in fact was worth far less than $1,000, and the $25,000 given to the defendants represented an investment, not a loan. We cannot agree.

There must exist an intent on the part of the lender at the time the loan agreement is executed to get more than the legal interest and if the agreement is usurious at that time no subsequent transaction will purge it. Further, the requisite intent is satisfactorily proved if the evidence establishes that the charging or receiving of excessive interest was done with the knowledge of the lender. See Dixon v. Sharp, Fla. 1973, 276 So.2d 817.

The undisputed evidence reflects that plaintiff drew up the January 3, 1973 agreement which expressly provides that it is a loan and the gold doubloon, which would have a value of not less than $1,000, would be the consideration for the making of the 30 day loan. Thus, the agreement is usurious on its face and plaintiff, an attorney and the preparer of the agreement, knew, or at the very least should have known, it to be usurious. See § 687.071, Fla.Stat, F.S.A.

We also considered plaintiff’s remaining points on appeal and find them to be without merit.

Affirmed.


text:
    CAL-U-SONIC et al., Appellants (Defendants), v. METRIC SYSTEMS CORPORATION, a Florida Corporation, Appellee (Plaintiff).
    No. Z-163.
    District Court of Appeal of Florida, First District.
    April 5, 1976.
    Rehearing Denied April 27, 1976.
    Robert J. Mayes of Levin, Warfield, Middlebrooks, Graff, Mabie, Rosenbloum & Margie, Pensacola, for appellants.
    D. Michael Chesser, Fort Walton Beach, for appellee.
   MILLS, Judge.

By interlocutory appeal, defendants seek reversal of an order denying their motion to set aside a default and final judgment entered against them.

Although the procedure followed by the plaintiff in obtaining the default and final judgment against the defendants is novel, as was the procedure followed by the defendants in moving to set aside the default and judgment, we cannot say that the trial court abused its discretion in denying defendants’ motion to set aside.

On 17 January 1975, plaintiff presented a motion for default against defendants, Cal-U-Sonic and Bruce, to the trial court, and the court recognized that plaintiff was seeking a default and a final judgment. Plaintiff adduced testimony in proof of the promissory note on which its action was based. At the conclusion of the proceeding, the plaintiff informed the court that it intended obtaining a default against defendant, Baumer, a few days later and at that time would ask the court to reaffirm the judgment against Cal-U-Sonic and Bruce, as well as enter a judgment against Baumer. The court agreed to this procedure.

On 27 January, the plaintiff filed motions for default against Cal-U-Sonic, Bruce, and Baumer with the clerk. The clerk entered defaults against these defendants.

By a final judgment dated 27 January but not filed until 31 January, the court ratified the defaults taken against the defendants and entered a judgment against them. The court certified that copies of the final judgment were furnished defendants Bruce and Baumer on 27 January. In addition to being an individual defendant, Bruce and Baumer were also officers of Cal-U-Sonic.

On 21 March 1975, the defendants served their motion to set aside, alleging that their failure to file answers was inadvertent and excusable neglect, and that they had a meritorious defense and compulsory counterclaim against plaintiff. The motion was not accompanied by affidavit setting forth facts to support the allegations of inadvertence and excusable neglect, nor an answer setting forth their meritorious defenses. The motion was set for hearing on 21 April.

Apparently, the hearing was not held. The record presented to us does not indicate why it was not held.

Subsequently, on 10 March and 13 May, Bruce served affidavits in support of defendants’ motion to set aside.

On 18 June, defendants delivered a copy of their answer and counterclaim to plaintiff.

On 27 June, the court entered its order denying defendants’ motion to set aside.

The facts presented by Bruce’s affidavits do not support the defendants’ claim of inadvertence and excusable neglect in their failure to file an answer. The facts in this case do show that defendants were dilatory in the filing of their motion to set aside and in the filing of the supporting papers. Defendants’ conduct showed no concern for a speedy determination of plaintiff’s claim.

Interlocutory appeal dismissed.

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


text:
    Anthony C. ALBURY, Appellant, v. The STATE of Florida, Appellee.
    No. 75-972.
    District Court of Appeal of Florida, Third District.
    March 23, 1976.
    Rehearing Denied April 26, 1976.
    Phillip A. Hubbart, Public Defender, and Paul Morris, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before BARKDULL, C. J., and PEARSON and NATHAN, JJ.
   PER CURIAM.

The appellant was informed against by a four count information, charging him with two counts of breaking and entering with intent to commit a felony therein, to wit: involuntary sexual battery and assault; and two counts of involuntary sexual battery. The matter proceeded to a jury trial, which resulted in a verdict of guilty as charged on all counts. Thereupon, the trial judge adjudicated the defendant guilty and sentenced him as follows: As to Count I, he sentenced him to life imprisonment; as to Count II, he sentenced him to 15 years at hard labor; as to Count III, he sentenced him to life imprisonment; and as to Count IV, he sentenced him to 15 years at hard labor.

This appeal ensued, the appellant contending it was error to impose separate sentences for each of the four convictions in that each breaking and entering count is, in fact, a facet of a single transaction, to wit: each involuntary sexual battery count, and as such the only sentence that could be imposed in each instance is for the highest offense. We disagree with this contention.

On two separate days the appellant committed two separate acts: (1) the act of breaking and entering, and (2) the act of involuntary sexual battery. Therefore, we affirm the sentences. See: Amerson v. State, Fla.App.1974, 303 So.2d 377; Estevez v. State, Fla. 1975, 313 So.2d 692: Slater v. State, Fla. 1975, 316 So.2d 539; Jenkins v. Wainwright, Fla. 1975, 322 So.2d 477.

The appellant has also urged other errors, which we find to be without merit. See: Miller v. State, Fla.App.1958, 102 So.2d 737; Matera v. State, Fla.App.1969, 218 So.2d 180; Harris v. State, Fla.App.1969, 229 So.2d 670; Wetherington v. State, Fla.App.1972, 263 So.2d 294; Roberts v. State, Fla.App.1975, 320 So.2d 832; Rule 3.390(d), RCrP.

Therefore, for the reasons above stated, the adjudication and sentences here under review be and the same are hereby affirmed.

Affirmed.


text:
    Richard W. GALEANO, Appellant, v. JACK ECKERD CORPORATION, a Florida Corporation, Appellee.
    No. 75-1168.
    District Court of Appeal of Florida, Third District.
    March 30, 1976.
    Rehearing Denied April 26, 1976.
    Weinsoff, Weinsoff & Carney, Miami, for appellant.
    Frank M. Marks, Miami, for appellee.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   PER CURIAM.

Appellant, plaintiff below, appeals orders of the trial court granting appellee’s, defendant below, motion for summary final judgment and denying appellant's motion for a rehearing.

Appellant filed a complaint in the circuit court seeking damages for accrued employee benefits allegedly due him pursuant to an oral employment contract with appel-lee by whom he was fired. Thereafter, ap-pellee filed a motion for summary judgment which, after a hearing, was granted by the trial court in an order dated April 10, 1975. Appellant’s motion for a rehearing was then denied by the trial court in an order dated June 19, 1975. From the orders, appellant brings this appeal.

Appellant contends that the trial court erred as a matter of law in granting summary judgment for appellee and by denying its motion for a rehearing.

Rule 1.510, Florida Rules of Civil Procedure, 31 F.S.A., provides, inter alia, that a summary judgment may be granted “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.” In reviewing the record, sub judice, in the light most favorable to appellant, we are of the opinion that appellee adequately carried the burden set forth in Rule 1.510 and that the trial court properly granted summary judgment in its favor. See, e. g., McGahee v. Dade County Board of Public Instruction, Fla.App.1973, 279 So.2d 87; Biscayne Constr., Inc. v. Wesley Constr. Co., Fla. App.1973, 276 So.2d 524; Brandeis v. Felcher, Fla.App.1968, 211 So.2d 606; Mimaroe, Inc. v. Sanitary Service Co., Fla. App.1966, 185 So.2d 177; and see 2 Fla. Jur., Appeals § 307.

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 no reversible error has been shown. Therefore, for the reasons stated and upon the authorities cited, the summary final judgment and the order denying the petition for rehearing are affirmed.

Affirmed.


author: PER CURIAM. NATHAN, Judge

text:
    Norma C. KIPNIS, Appellant, v. Jerome L. KIPNIS, Appellee.
    No. 75-1666.
    District Court of Appeal of Florida, Third District.
    March 30, 1976.
    Rehearing Denied April 27, 1976.
    Heller & Kaplan, Miami, for appellant.
    Horton, Perse & Ginsberg, Miami, for appellee.
    Before PEARSON, HENDRY and NATHAN, JJ.
   PER CURIAM.

Affirmed. See Hyman v. Hyman, Fla.App.1975, 310 So.2d 378; Becker v. King, Fla.App.1975, 307 So.2d 855; Klarish v. Klarish, Fla.App. 1974, 296 So.2d 497, and Farr v. Farr, Fla.App.1971, 249 So.2d 761.

NATHAN, Judge

(concurring in part and dissenting in part).

Appellant filed a petition for dissolution of marriage and alleged therein that the parties had been married for 25 years, 5 children were born of the marriage and that the husband and wife owned substantial property as an estate by the entireties. The wife answered and counterclaimed and claimed special equities in the husband’s property, and alimony. The trial court, upon motion of the husband, and over vigorous objection by the wife, entered an order setting only the dissolution of marriage issue of the cause for- trial, reserving and retaining jurisdiction on all other matters and issues, including property rights, until a later date at which time a hearing would be set by the court. It is from this order that the wife filed this interlocutory appeal contending in effect that the trial judge erred in entering the appealed order because if only the dissolution of marriage is granted, property rights between husband and wife will be fixed and that the proposed reservation of jurisdiction to later determine and adjudicate property rights in the future, will have no efficacy.

I concur in this court’s affirmance of the order by which the trial court made provision to .the extent that it would first hear the petition for dissolution of marriage and reserve jurisdiction thereafter to hear and dispose of other issues including those relating to property rights. Without such a reservation of jurisdiction to later deal with issues based on claims of one party against the other relating to property, a judgment of dissolution of marriage would bar subsequent litigation of such property rights between the parties. Fin ston v. Finston, 1948, 160 Fla. 935, 37 So.2d 423; McEachin v. McEachin, Fla.App. 1963, 154 So.2d 894; Simon v. Simon, Fla.App.1974, 293 So.2d 780; Sistrunk v. Sistrunk, Fla.App.1970, 235 So.2d 53.

The majority opinion cites the case of Hyman v. Hyman, Fla.App.1975, 310 So.2d 378, as reliance for affirmance of this case. In Hyman, supra, the court held that a trial court may enter an order which it terms interlocutory granting the dissolution of marriage and then reserving jurisdiction to determine property rights between husband and wife irrespective of § 689.15, Fla.Stat., which expressly provides that estates held by the entireties, upon dissolution of marriage, become tenancies in common. The rationale that § 61.-052(2) (b)3, Fla.Stat., is authority for an interlocutory judgment of dissolution which postpones the effect of § 689.15, Fla.Stat. falls wide of the mark.

I recognize the trial court, in administering a proceeding for dissolution of marriage which involves other incidental issues, has jurisdiction and power to grant a dissolution of marriage and later, based on a proper reservation of jurisdiction to try remaining issues, including those relating to certain property of the parties. In my opinion, that practice, which appears to have attained a degree of prevalence under the no-fault divorce law where seldom there is any substantial contest as to the dissolution of the marriage, is not advisable and should be limited to instances where it is not practicable to hear and dispose of all such issues or matters prior to entry of any judgment because of some compelling or sufficient reason other than for convenience of the court.

Too many circumstances can occur, detrimental to a party, between the time of entry of a judgment dissolving a marriage and the entry of a judgment some weeks or months later dealing with property rights.

A judgment of dissolution of marriage is final as to the marital status. There is no provision in the law of Florida, as there is in some states, for the entry of an interlocutory decree of judgment of dissolution of marriage, under which the dissolution of the marriage would not become effective until the lapse of some period, such as a year after the judgment.

For example, in the interval of time after the marriage has been dissolved by the entry of a judgment and prior to some later judgment relating to the parties’ property, one spouse could remarry and then die. There would then be involved the factor of dower of the second spouse. Or, one spouse, without having remarried, might die during such interval. That circumstance could needlessly prompt questions and further litigation as to the legal effect of death upon properties which the respective spouses had held as an estate by the entireties during coverture.

While the court has the power to proceed with a hearing on the dissolution of marriage, I am of the opinion that it would be error for the trial court to grant such dissolution in light of the objection of the wife in this case. Compare Farr v. Farr, Fla.App.1971, 249 So.2d 761.

To the extent that the majority opinion follows the holding in Hyman, supra, I respectfully dissent.

      . “. . . if, at any time, the court finds that the marriage is irretrievably broken, the court shall enter a judgment of dissolution of the marriage . . . ”


author: RAiWLS, Judge. BOYER, Chief Judge

text:
    Maureen HORTON, Appellant, v. Robert E. HORTON, Appellee.
    No. Y-34.
    District Court of Appeal of Florida, First District.
    April 2, 1976.
    Rehearing Denied April 27, 1976.
    C. Ray Greene, Jr., of Greene, Greene, Smith & Davenport, Jacksonville, for appellant.
    Alban E. Brooke, of MacLean & Brooke, Jacksonville, for appellee.
   RAiWLS, Judge.

On April 21, 1967, the Circuit Court of Duval County, in its final judgment of divorce between the parties provided, inter alia:

“7. The defendant [husband, Robert E. Horton] shall pay the first, second and third mortgages on the marital home, totalling approximately $164.00 per month, and said payments shall include taxes and insurance as required by the mortgages on said home.
“9. The plaintiff [wife, Maureen Horton] shall convey to the defendant all of her right title and interest into that certain hunting lodge in the Ocala National Forrest [sic], together with all contents contained therein.
“10. The parties hereto own a 1966 Pontiac automobile, in which plaintiff claims no interest, and shall execute any instrument necessary to convey title unto defendant. The parties hereto own a 1965 Pontiac automobile, in which defendant claims no interest, and shall execute any instrument necessary to convey title thereto unto plaintiff. The 1965 Pontiac automobile is encumbered in the approximate sum of $2,000.00, at the rate of $109.00 per month, for eighteen months subsequent to March 16, 1967. The defendant shall pay one half of the remaining payments by paying nine payments, commencing April 1, 1967, through and including payment due December 1, 1967, after which the balance owed shall be assumed and paid by plaintiff.
“11. Plaintiff shall execute any instrument necessary to relinquish any interest she may have in that certain corporation owned by the defendant in Cocoa Beach, Florida.
“12. If the conveyances to be made in paragraphs 6, 9, 10 and 11 hereinabove be not made within five days from date of this judgment, this judgment shall operate to transfer to the plaintiff all right, title and interest of the defendant in and to the property, and vice versa.”

In the instant proceeding, the trial judge provided in the order appealed, inter alia:

“It is uncontroverted that the plaintiff sold the home in January of 1973. At that time the only mortgage upon the home was the second mortgage and there remained an approximate balance due of $4,654.96. This second mortgage was being amortized by the payment of $40.00 per month. The plaintiff contends that the final judgment would require the defendant to pay $4,654.96 at the rate of $40.00 per month until amortized.
“The Court finds that the defendant complied with the final judgment and when the home was sold and the second mortgage was paid off (all monthly payments being current at that time and paid by the defendant) the defendant is discharged from liability under this paragraph.”

The final judgment entered on April 21, 1967, fixed the property rights of the parties. Sistrunk v. Sistrunk, 235 So.2d 53 (Fla.App. 4th 1970); Finston v. Finston, 160 Fla. 935, 37 So.2d 423 (1948); Knabb v. Duner, 143 Fla. 92, 196 So. 456 (1940); Town of Boca Raton v. Moore, 122 Fla. 350, 165 So. 279 (1936); Sedell v. Sedell, 100 So.2d 639 (Fla.App. 1st 1958); Strozier v. Strozier, 107 So.2d 134 (Fla.App. 1st 1958); and Fowler v. Fowler, 112 So.2d 411 (Fla.App. 1st 1959). A court has authority to modify a decree for “pure” alimony, meaning “nourishment” or “sustenance” or for support and maintenance in lieu of alimony, even where the decree is based on an agreement or stipulation, but it does not have the power to modify a provision settling property rights between the parties. 10A Fla.Jur., Dissolution of Marriage, Etc., §§ 304 and 305, and cases cited therein. The provisions of the final judgment are not ambiguous. The wife was required to convey vested property rights. The husband was directed to pay certain mortgages. To now discharge the .husband from liability as to the outstanding mortgage which the wife paid would deprive the wife of an approximate balance due of $4,654.96 amortized at the rate of $40.00 per month.

This judgment appealed is reversed with directions that the appellee-husband pay to the appellant-wife the sums in arrears on the outstanding mortgage and to pay the balance remaining thereon at the rate of $40.00 per month until amortized.

REVERSED.

MILLS, J., concurs.

BOYER, C. J., dissents.

BOYER, Chief Judge

(dissenting).

I cannot agree that the original final judgment is free of ambiguity nor can I agree that vested property rights are here involved. The only issue is whether appellee was required by the subject final judgment to pay off the mortgages on the property which he was required to convey to appellant or whether he was required to pay the monthly installments thereon.

The final judgment in question was entered by Judge A. D. McNeil (now deceased) in 1967. The appellant urges that the present trial judge incorrectly interpreted a provision of that judgment.

Paragraph seven of the final judgment is quoted in the majority opinion. It provides : “The defendant [husband] shall pay the first, second and third mortgages on the marital home, totaling approximately $164 per month, and said payments shall include taxes and insurance as required by the mortgages on said home.” (Emphasis added) When appellant sold the marital home in January of 1973, there was an unpaid balance on the second mortgage in the amount of $4,654.96, the first and third mortgages having been fully paid. After the sale appellant paid the balance on the second mortgage. When appellee refused to make restitution to appellant, she filed a petition for rule to show cause.

The trial court, in its order on the petition to show cause, refused to order appellant to pay the amount of the second mortgage outstanding at the time of the sale, reasoning that by appellee having complied with paragraph six of the final judgment (which required him to convey his interest in the marital home to the wife) and by having paid the monthly installments on the mortgage until the home was sold and the second mortgage paid off, ap-pellee was discharged from further liability.

Paragraph seven is patently ambiguous because it can be interpreted in at least two ways. Supporting the trial judge’s interpretation (who, as above noted, was not the author) is the fact that the language refers to monthly payments, rather than a lump sum. The interpretation urged by appellant is that it requires appellee to pay all three mortgages on the marital home without reference to termination of that obligation.

Apparently there was no effort by either party to aid the trial court in determining the meaning and intention of the original final judgment. (See Boynton v. Canal Authority, Fla.App. 1st 1975, 311 So.2d 412)

A review of the record-on-appeal reveals that it does not contain copies of either the trial transcript or the stipulation of facts, although the parties repeatedly refer to both. We have held that an appellate court may not consider a case unless the record reveals all evidence and proceedings which were before the trial court which are material to a resolution of the points on appeal. (Merritt v. Williams, Fla.App. 1st 1974, 295 So.2d 310; White v. White, Fla.App. 1st 1975, 306 So.2d 608) As there is no transcript of the hearing below bearing on the issue of the interpretation of paragraph seven of the final judgment of divorce I am of the view that this Court is unable to make a meaningful review of the trial court’s finding. Therefore, the order entered by the trial court should be affirmed.


text:
    Mildred I. HELMS and Cecil J. Helms, Appellants, v. M. David SIMS, M.D., Appellee.
    No. 75-723.
    District Court of Appeal of Florida, Third District.
    April 6, 1976.
    Rehearing Denied April 26, 1976.

      Leo Greenfield, Miami, for appellants.
    Walton, Lantaff, Schroeder, Carson & Wahl and George W. Chesrow and Michael Jenks, Miami, for appellee.
    Before BARKDULL, C. J., and PEARSON and NATHAN, JJ.
   PEARSON, Judge.

Mildred Helms was the plaintiff in a medical malpractice action against Dr. David Sims. Helms alleged negligence of Doctor Sims in the performance of a hysterectomy operation. After the taking of extensive discovery, it appeared without genuine issue of material fact that Mrs. Helms’s bladder was punctured during the performance of the hysterectomy, and that the repair surgery performed during the operation was unsuccessful. Doctor Sims submitted depositions and affidavits establishing as his defense that this injury was one of the ordinary risks involved in hysterectomy surgery. In addition, it appears without conflict that the plaintiff is without expert medical testimony that would tend to show that Doctor Sims departed from the standard of reasonable medical competence in the community in performing the operation in the way that he did. Based upon the affirmative showing that the plaintiff was without the ability to produce expert testimony to prove her allegation of negligence either in the operation or during the repair surgery, the trial judge entered a summary final judgment for Doctor Sims.

On this appeal from the summary judgment, Mrs. Helms urges that regardless of her inability to produce expert testimony of acceptable medical practice, a jury could find from the application of common knowledge that her bladder was needlessly pierced. Her reliance for reversal is based upon the holding of the Florida Supreme Court in Atkins v. Humes, Fla.1959, 110 So.2d 663, 81 A.L.R.2d 590. See also Montgomery v. Stary, Fla.1955, 84 So.2d 34; and Dohr v. Smith, Fla.1958, 104 So. 2d 29. In Atkins v. Humes, supra, the Supreme Court dealt with a summary judgment for a physician who was allegedly negligent in applying a cast to an infant’s arm so that a “pressure sore” resulted, and negligent in failing to heed the classic warnings of Volkmann’s contracture (a muscle contracture) while the child’s arm was in the cast. The Supreme Court reversed the judgment for the physician holding that the evidence did not conclusively demonstrate an absence of malpractice. In so holding, the court said that there was “sufficient evidence tending to prove the issue of proximate cause to require the submission of the case to the jury.” Here, there is no issue of proximate cause. The tendered issue is negligence. In addition, there is no issue of informed consent.

In Montgomery v. Stary, Fla.1955, 84 So.2d 34, a premature infant’s fingers and thumb were severely burned by a physician who applied steaming-hot towels to the infant’s left arm immediately after birth in order to treat for poor circulation. The Supreme Court held that a jury could have found, without expert testimony, that the fingers and thumb of the premature infant were burned off as a result of the physician’s negligence.

In Dohr v. Smith, Fla.1958, 104 So.2d 29, an anesthesiologist dislodged a bridge consisting of two teeth that became trapped in the patient’s right bronchus. The anesthesiologist knew she was required to ascertain whether any of the patient’s teeth were false before administering the anesthesia. The Supreme Court held that a jury could have found, without expert testimony, that negligence was involved.

Doctor Sims relies upon cases supporting the law stated in Holl v. Talcott, Fla.1966, 191 So.2d 40. See Page v. Staley, Fla. App.1969, 226 So.2d 129; and Rosen v. Parkway General Hospital, Inc., Fla.App. 1972, 265 So.2d 93. In Holl v. Talcott, supra, although the Supreme Court reversed a summary final judgment for the defendant in a medical malpractice case, the following principle was stated:

“ . . . the movant may meet his burden by showing conclusively that he is not guilty of the negligence charged against him. Conceivably he may also meet this burden by showing conclusively that the negligence charged, or any committed by him, was not causally related to the plaintiff’s injury. He might also do it by showing conclusively that the plaintiff is unable to present requisite proof of the negligence charged in the pleadings, as was done in Food Fair Stores, Inc. v. Patty, Fla. 1959, 109 So.2d 5.”

We hold that the facts of this case make applicable the holding in Visingardi v. Tirone, Fla.1966, 193 So.2d 601, which is as follows:

“We must acknowledge that there is some support for respondent’s position in our opinion in Food Fair Stores of Florida, Inc. v. Patty, Fla. 1959, 109 So.2d 5, also cited by him. However, that case is clearly distinguishable, in that it actually approved the grant of summary judgment for the defendant because the record affirmatively showed that the plaintiff could not possibly prove her case, and not because she had simply failed to come forward with evidence doing so. In any event, to the extent that our opinion therein can be read as supporting respondent’s position, as indicated by the above-quoted language, we hereby repudiate it.”

A genuine issue of material fact appears as to whether, when Doctor Sims was presented with the emergency situation of an adhesion between the uterus and the bladder, he properly proceeded at that time to attempt to separate the adhesion with a sharp instrument. There is an additional issue of whether, having made the puncture in the bladder, he properly proceeded with the exercise of ordinary medical skill to repair the puncture. There is no conclusive showing that the plaintiff is without evidence to support her allegations on these two issues. We, therefore, conclude that the trial court erred in entering summary judgment and that, upon this state of the record, triable issues are presented.

Reversed and remanded.


author: HOBSON, Judge.

text:
    Benton W. POWELL et al., Appellants, v. E. G. GREEN, Appellee.
    No. 75-1135.
    District Court of Appeal of Florida, Second District.
    April 2, 1976.
    Rehearing Denied April 28, 1976.
    ■ John R. Wood, Wood, Whitesell & Karp, P. A., Sarasota, R. Lawrence Storms, Winston & Strawn, Chicago, Ill., and David G. Bowman, Burket, Smith & Bowman, Sarasota, for appellants.
    T. Paine Kelly, Jr., Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellee.
   HOBSON, Judge.

Appellants appeal a final judgment entered in the trial court below in favor of the appellee-broker. The broker brought this action for damages against several of the appellants as owners and other appellants as their agents for refusal of the owners to enter into a formal contract for the sale of certain real estate with a purchaser that the broker had allegedly procured pursuant to an alleged oral offer to sell that had been made by an alleged authorized agent of the owners. The undisputed facts in the record show that the broker was to be paid his commission by the purchaser and that the owners did not agree to pay any commission or part thereof to the broker.

In the case of De Lucca v. Flamingo Corporation, Fla.App.3d 1960, 121 So.2d 803, our sister court held, under identical facts that appear in this record, that a broker under said facts is not entitled to damages from the owners. In De Lucca the court stated at page 804:

“It is sufficient for a decision of the case before us to point out that the undisputed facts preclude recovery. The testimony of the plaintiff himself upon a prior trial of this cause was that the owner did not promise to pay him anything. This lack of a contract by the defendant to pay the plaintiff any sum distinguishes this case from those where recovery has been permitted because of a contract by the owner to pay a broker all that is obtained over a stipulated amount. See cases collected at 88 A.L. R.299; 144 A.L.R. 921.
“It unmistakably appears from the record that the broker was acting for the purchaser, yet he claims a promise by' the owner to him that the former would sell to his customer for a certain price. Thus it is not a promise to pay a commission that the broker seeks to enforce, but a promise to convey. Under such circumstances, since the oral promise to convey real property could not be enforced because it comes within the purview of the Statute of Frauds, § 725.01, Fla.Stat., F.S.A., an action for damages for the breach thereof will not lie.”

■ For the foregoing reasons the final judgment appealed is REVERSED.

GRIMES, J., concurs.

McNULTY, C. J., concurs in conclusion only.


text:
    BANK OF HAWTHORNE, Appellant, v. Robert L. SHEPHERD and Charles O. Shepherd, d/b/a Shepherd Brothers Contractors, Appellees.
    No. Z-328.
    District Court of Appeal of Florida, First District.
    March 30, 1976.
    Rehearing Denied April 27, 1976.
    Philip A. DeLaney of Andrews & De-Laney, Gainesville, for appellant.
    David A. West of Canto, Salter, West, Doughtie & Feiber, Gainesville, for appel-lees.
   MILLS, Judge.

The question raised by this appeal is whether the trial court erred in the priority it established on three liens.

On 18 March, McGill Plumbing and Plumbing Supply delivered its writ of execution to the Sheriff of Alachua County where it was docketed.

On 7 April, Keystone State Bank executed and mailed its notice of lien to the Division of Motor Vehicles for notation on the certificate of title. On 10 April, the certificate of title was issued noting that the lien was filed on 7 April.

On 8 April, Bank of Hawthorne delivered its writ of execution to the Sheriff of Alachua County where it was docketed.

The trial court ruled that the priority of liens was (1) McGill, (2) Keystone, and (3) Hawthorne. This is incorrect. The correct priority is (1) McGill, (2) Hawthorne, and (3) Keystone.

An execution becomes a lien on personal property from the time the writ is delivered to the sheriff. Love v. Williams, 4 Fla. 126 (1850). Therefore, the writ of execution of McGill became a lien on 18 March, and the writ of execution of Hawthorne became a lien on 8 April.

A notice of lien becomes a lien on a motor vehicle on the date it is filed in the Division of Motor Vehicles. Section 319.27(2), Florida Statutes. Therefore, the notice of lien of Keystone became a lien on 10 April, which was the date it was received and noted on the certificate of title.

We have not overlooked Section 319.27(4), Florida Statutes, which provides that liens noted on a certificate of title take priority according to the order of time noted on the certificate. In our opinion, this section applies when more than one lien is noted on a certificate.

We affirm the priority of McGill’s lien (1) and reverse the priority of Keystone and Hawthorne liens. Hawthorne is (2) and Keystone is (3).

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