author: BOYER, Judge.

text:
    PROVIDENT NATIONAL BANK, a National Banking Association, Appellant, v. THUNDERBIRD ASSOCIATES, a General Partnership, Southern General Corporation, a corporation, and Southern Industrial Corporation, a corporation, Appellees.
    No. JJ-273.
    District Court of Appeal of Florida, First District.
    Nov. 8, 1978.

      Mary Patricia C. Fawsett of Akerman, Senterfitt & Eidson, Orlando, Frederic W. Clark of Ballard, Spahr, Andrews & Inger-soll, Philadelphia, Pa., for appellant.

      Arnold H. Slott of Glickstein, Crenshaw, Glickstein, Fay & Block, Jacksonville, for appellees.
   BOYER, Judge.

We here consider an issue contended by all the parties to be novel and without precedent in Florida or elsewhere. Although several points are argued in the excellent and exhaustive briefs, the essential issue upon which the case turns is whether a deficiency judgment following a mortgage foreclosure may exceed the difference between the amount adjudged and secured by the final judgment of foreclosure and the amount for which the mortgaged property was sold at the foreclosure sale.

On April 28, 1975 Provident National Bank (Provident) filed a complaint in the Circuit Court of Duval County naming as defendants Thunderbird Associates, a general partnership (Thunderbird); Southern General Corporation (Southern General) and Southern Industrial Corporation (Southern Industrial). The complaint alleged, inter alia, that Thunderbird was the owner of a certain motel property in Duval County which was encumbered by a first mortgage held by First Federal Savings and Loan Association of Jacksonville (First Federal) and a second mortgage held by Provident; that Southern General was the original mortgagor designated in said second mortgage held by Provident; that Southern Industrial “may have or claim to have some interest in the property” by virtue of a certain additional mortgage alleged in the complaint to be inferior to Provident’s second mortgage; that both the first and second mortgages and the notes secured thereby were in default; that substantial sums had been paid by Provident to cure defaults under the first mortgage held by First Federal and that “such sum together with all additional sums paid to cure defaults on said first mortgage and interest at the rate of fifteen per cent (15%) per annum are secured by plaintiff’s second mortgage.” The complaint prayed for the appointment of a receiver, an accounting and that if the sums found to be owing be not paid then Provident’s second mortgage be foreclosed and the property be sold under the direction of the Court and that “out of the proceeds of said sale, the amounts due the plaintiff may be paid, so far as the same will suffice, and that, if a deficiency occur, the plaintiff be granted a decree therefor against such of the defendants as may be found liable or responsible for the mortgage debt.”

In due course a final judgment was entered finding the plaintiff Provident to be entitled to $1,000,000.00 principal, interest to the date of the judgment, certain sums paid to First Federal to cure defaults under the first mortgage, interest on the latter amount, attorney’s fees and costs; for a total sum of $1,429,493.66. The final judgment further provided that “[i]f the total sum with interest at the rate prescribed- by law and all costs of this action accruing subsequent to this judgment are not paid within three days from this date” the property be sold by the Clerk “to the highest bidder” in accordance with F.S. 45.031.

Numbered paragraph four of the final judgment provided:

“Plaintiff, Provident National Bank, shall advance all subsequent costs of this action, including such fees and costs as this Court may subsequently award to the receiver, and plaintiff shall be reimbursed for them by the Clerk of this Court, if plaintiff is not the purchaser of the property at the sale. If plaintiff is the purchaser of the property, the Clerk of this Court shall credit plaintiff’s bid with the total sum, together with interest and costs accruing subsequent to this judgment, or such part of said amount as may be necessary to pay the bid in full.”

Provident was the only bidder at the foreclosure sale and bid the exact amount found to be owing by the final judgment, $1,429,493.66.

Following the foreclosure sale Provident filed a “motion for summary final judgment of deficiency”. After various motions, including a motion to add Red Carpet Inns, Inc. as an additional party defendant, a pleading entitled “amended complaint” was filed in the same proceeding (the foreclosure proceeding) wherein Provident was designated as plaintiff and Thunderbird and Red Carpet as defendants. Both defendants filed a “limited consent” consenting to the granting of Provident’s motion to add Red Carpet as a party and to amend its pleadings. In Count I of said “amended complaint” Provident alleged, inter alia, the foreclosure of the mortgage; the amount bid by Provident at the foreclosure sale; that the fair market value of the property on the date of foreclosure “was substantially less than the amount of the final judgment rendered in this cause in favor of plaintiff, and was insufficient to satisfy the debt, in whole or in part, heretofore adjudged by this court to be due and owing from defendant Thunderbird Associates to Plaintiff”; that plaintiff had incurred various fees, costs and expenses subsequent to entry of the final judgment of foreclosure “in this cause of action in order to collect the debt owed by defendant Thunderbird Associates to plaintiff” and that plaintiff was obligated to pay its attorneys reasonable fees for their services. The prayer of said first count demanded a deficiency decree against Thunderbird “for the sums remaining due, owing and unpaid to plaintiff pursuant to the final judgment previously entered in this cause, plus costs and reasonable attorney’s fees incurred by plaintiff pursuant to the terms of the second mortgage * * * The second count incorporated the allegations of the pertinent recitations in the first count and further alleged that Red Carpet had executed and delivered to Provident a guaranty agreement by which it unconditionally guaranteed to Provident the payment of principal, interest and other sums pursuant to the terms of the second mortgage note and to, indemnify Provident for all costs, expenses and reasonable attorney’s fees incurred in the collection or enforcement of said second mortgage note. It further alleged that in reliance on said guaranty Provident had advanced monies to or for the account of Thunderbird which Thunderbird had failed and refused to pay. The prayer of the second count demanded judgment against Red Carpet “for principal and interest and other sums due pursuant to the said second mortgage note and the second mortgage * * * for damages, costs and expenses, including reasonable attorney’s fees, interest as allowed by law, and such other relief as the court deems proper.”

In due course Thunderbird and Red Carpet filed answers and the case was set for trial before the court.

At the trial the parties stipulated that on the date of the foreclosure sale the property had a fair market value of $4,242,000.00 and that there was owing on the first mortgage in favor of First Federal a sum in excess of $3,000,000.00 and that accordingly the difference between the fair market value and the balance owing on the first mortgage was considerably less than the amount of the successful bid at the foreclosure sale which was made by Provident. Provident sought to introduce evidence of certain equities, including but not limited to: (1) How many payments were made to Provident under the second mortgage and note; (2) Testimony as to the condition of disrepair of the property at the time it was abandoned without notice; (3) Testimony as to the large expenditures by Provident prior to entry of the final judgment of foreclosure to preserve the property; (4) Evidence of a required payment under the first mortgage made by Provident subsequent to the judgment of foreclosure but prior to the foreclosure sale; (5) Testimony as to advances made by Provident for first mortgage payments, working capital and renovations in mitigation of damages; (6) Evidence showing that Provident did not receive any repayment of its loan except for the acquisition of the property at the foreclosure sale, which property was subsequently lost to the first mortgagee; and (7) Evidence that the defendants did not rely upon, suffer any detriment or change their position because of Provident’s bid at the foreclosure sale. The trial judge excluded that evidence as irrelevant and immaterial.

Provident sought a deficiency of $404,-927.22 and for costs and fees not reflected in the final judgment in the amount of $85,857.83.

The trial judge entered a final judgment finding that the difference between the fair market value of the foreclosed property on the date of sale and the balance owed on the first mortgage was less than the amount of Provident’s successful bid; that plaintiff’s reimbursable costs advanced pursuant to the final judgment amounted to $41,189.64; and that certain costs amounted to $49,874.07. He therefore concluded that there existed a deficiency in the sum of $49,874.07 since the date of sale and that said deficiency accrued interest at the legal rate of six per cent thereafter. Judgment was therefore entered against Thunderbird and Red Carpet, jointly and severally, for the sum of $49,874.07 plus interest from the date of sale to the date of said final judgment at the rate of six per cent per annum, plus attorney’s fees and costs which were fixed in accordance with a stipulation among the parties.

Provident appealed arguing three points.

The primary thrust of appellant’s first point is that the trial judge erred in rejecting the evidence above mentioned and, more importantly, in his holding that regardless of the actual fair market value of the property at the time of the foreclosure sale appellant was only entitled to a deficiency judgment for the difference between the amount owed on the mortgage and note as determined and secured by the final judgment of foreclosure and the amount for which the property sold at foreclosure sale.

Regarding the rejected evidence, we hold that the learned trial judge was imminently correct.

The law is so well settled as to require no citation of authority that the issues to be tried are fixed by the pleadings. Once so fixed the issues may be changed only by (a) stipulation of the parties, (b) consent or acquiescence of the parties, (c) motion and order or (d) by amendment express or implied to conform to the evidence. (See Rule 1.190 Fla.R.Civ.P.) An examination of the pleadings in this case, relevant portions of which have been hereinabove quoted or mentioned, reveals that there was no attempt to raise such issues prior to the entry of the final judgment of foreclosure nor was any proof offered to support such issues. No attack having been made on the final judgment of foreclosure, upon it becoming final the obligations between the parties, insofar as the mortgage foreclosed was concerned, became fixed. Perhaps had the pleadings or proofs prior to entry of the final judgment of foreclosure supported the claims belatedly urged and rejected by the trial judge at the trial on the deficiency claim, particularly the claim for “waste”, advances, etc., such items may well have properly been included in or secured by the final judgment of foreclosure. However, such was not the case. The final judgment, as already above observed, secured only the amount found thereby to be owing to the plaintiff, Provident, plus sums advanced for “costs of this action”, fees, receiver’s costs, documentary stamps and interest at the legal rate, all of which were taken into consideration and due credit given by the trial judge in fixing the amount of the deficiency judgment. The final judgment of foreclosure having become final, and no attempt to amend it having been made, the trial judge presiding at the deficiency trial would have been in error to have considered and taken into account matters which predated the final judgment of foreclosure, all of which were resolved upon the entry of the final judgment of foreclosure.

The more intriguing issue presented by appellant’s first point relates to the effect of appellant’s successful bid at the foreclosure sale. On that issue no authority from Florida nor elsewhere has been cited. Appellant cites numerous authorities from Florida and other jurisdictions holding that in post sale deficiency proceedings the amount for which the mortgaged property sold at foreclosure sale is only one element to be considered in determining its value. Resting on that foundation appellant argues that since sub judice the parties stipulated that on the date of sale the mortgaged property had an actual true market value of substantially less than the amount of appellant’s bid then in determining the amount of deficiency appellant should not be bound by the amount it bid and for which it purchased the property at the foreclosure sale, but that the true market value, rather than the foreclosure sale high bid, should be the benchmark.

We reject appellant’s thesis. The amount owed on the mortgage and note secured thereby to Provident was fixed by the final judgment of foreclosure. The amount for which a mortgaged property sells at foreclosure sale, whether to the mortgagee or to a stranger, is (less such costs and expenditures as provided in the final judgment of foreclosure) applied to the debt as fixed by the final judgment of foreclosure. Although the amount for which mortgaged property sells at a properly conducted foreclosure sale is not conclusive as to the value of the property nor the right to a deficiency judgment, the deficiency may not exceed the difference between the amount for which the property so sold and the amount of the indebtedness secured by the final judgment of foreclosure. Although, as already recited, we are acquainted with no precedent directly on point we find City Building Corporation v. Farish, 292 F.2d 620 (5th Cir. 1961) analogous and persuasive. That case involved a dispute between a trustee in bankruptcy and the purchaser of property sold at a distress sale under court order. The appellant (judgment holder and purchaser at the distress sale) advanced there the identical argument made by appellant here. Rejecting the argument, the court said:

“It urges that the only benefit to it was its realization upon the sale of the property and it should not be required to account for an amount in excess of the value which it received. No authorities are cited to support the rule for which the appellant contends. It urges that it should be relieved from the effect of what it claims was an overbid made in keeping with a custom of creditors to bid at execution sales the amount of the judgment plus costs. Plausible as this entreaty may, at first blush, appear, it cannot be sustained upon any legal theory. A creditor, who causes a debtor’s property to be sold, and becomes the purchaser at a judicial sale, stands in the same position at and after the sale of the property as would a stranger whose bid was accepted. City of Sanford v. Ashton, 131 Fla. 759, 179 So. 765. Since the creditor acquires the same rights as a high bidding stranger would acquire, it is proper to impose upon it the same duties and obligations as are east upon a third party successful bidder and to hold it to the amount of its bid. The appellant is saying in effect, that it did not get value received for its bid. Its contention is that the goods which it bought were an inadequate consideration for the amount which it bid. In the absence of fraud, misconduct, mistake, accident, surprise or irregularity, a judicial sale will not be set aside where the consideration for the property sold is inadequate. City of Sanford v. Ashton, supra; 33 C.J.S. Executions § 233, p. 492. We think the same principle should apply where the claim is made that the consideration for the bid price is inadequate.” (292 F.2d at pages 622-623)

In arguing its second point, Provident points out that after entry of the final judgment of foreclosure, but before the date of sale, it made a substantial payment to the first mortgagee to protect the security for its mortgage in order to avoid default in the first mortgage. It also points out that the terms of the second mortgage and note secure such payments. The trial judge at the deficiency trial rejected such evidence on the ground that such payment was not secured by nor contemplated by the final judgment of foreclosure and that therefore it could have no effect upon the amount of deficiency. We agree. As we have already said in discussing the preceding point, the amount owed under the foreclosed mortgage and note secured thereby was fixed by the terms of the final judgment of foreclosure. Provision was made in that final judgment for amounts theretofore paid to cure defaults in, and to avoid future defaults in, the first mortgage. There was no mention in that final judgment of any further payments to be paid to the first mortgagee, nor were same contemplated or secured thereby. Whether or not a motion to amend the final judgment of foreclosure to include the additional payment made by Provident to the first mortgagee prior to the date of sale would or should have been granted we need not now speculate because the record reveals no such undertaking. The learned trial judge did not err in rejecting that evidence and in failing to give credit for such payment in determining the amount of the deficiency judgment.

Finally, the trial judge found in the final judgment determining the deficiency that both Thunderbird and Red Carpet were liable only for interest at the legal rate, viz: Six per cent per annum. Provident urges that ruling as error.

The foreclosed mortgage and the note secured thereby provided for interest upon default at the rate of fifteen per cent per annum. Red Carpet, in order to induce Provident to make the loan secured by the note and mortgage, had entered into a guaranty agreement whereby it did “irrevocably and unconditionally guarantee to the Bank the prompt payment of the principal, interest and other sums payable under the * * * promissory note and mortgage * * * and observance by Thunderbird Associates of the terms, conditions, covenants, stipulations and agreements of the above identified mortgage * * * ”, The guarantor (Red Carpet) further agreed to “indemnify and save harmless the Bank from and against all reasonable costs, expenses and attorney’s fees that may be incurred by the Bank in connection with the collection or enforcement of said promissory note [and] * * * mortgage * * * ”. Harkening back to the “amended complaint” in which Thunderbird and Red Carpet were named as parties defendant. Red Carpet had not theretofore been a party and was not therefore a party to the action at the time of entry of the final judgment of foreclosure. Count I of the amended complaint was against Thunderbird only and recited in the first paragraph that “[t]his is an equitable action in a mortgage foreclosure proceeding for a deficiency decree * * * The prayer of that count likewise requested a deficiency decree only against Thunderbird. As between Provident and Thunderbird, the final judgment of foreclosure effectively resolved their controversy. It declared the amount of the debt and secured other obligations for which Provident was entitled to credit. The amount for which the property sold at foreclosure sale was equal to the amount of the adjudicated debt, therefore the only remaining amounts for which Provident was entitled to be compensated were those items referred to in and secured by the final judgment of foreclosure. The trial judge entered a deficiency judgment for those amounts plus interest at the legal rate of six per cent, which he was required to do since those sums had been reserved in and were secured by the final judgment of foreclosure. In so doing he did not err.

The second count of the amended complaint was against Red Carpet only. The first paragraph of that count recited that “[t]his is an action for damages which exceed $2,500.00.” The remaining paragraphs clearly reveal that that count was founded upon the guaranty agreement and the prayer, making no mention of a deficiency, demands judgment against Red Carpet “for principal and interest and other sums due pursuant to the second mortgage note and the second mortgage as supplemented, for damages, costs, and expenses, including reasonable attorney’s fees, interest as allowed by law, and such other relief as the court deems proper”. The allegations of that count are exactly the same as they would reasonably be expected to have been had the amended complaint been filed in an independent and separate action at law on the guaranty. The propriety of considering a two count complaint in a post judgment foreclosure action wherein each count purports to state separate and distinct causes of action against separate and distinct parties has not been presented as an issue in this appeal and will therefore not be addressed by us. Neither do we address the propriety of asserting a “pure law action” in a post judgment equitable foreclosure proceeding. We must, therefore, since no procedural issues are presented for resolution, consider the case in the light of the actual pleadings as reflected by the record. In so doing we again note that Red Carpet was not an original party to the action and that the claim against it is founded on its guaranty. The guaranty guaranteed, inter alia, payment of the second mortgage and note, both of which required the payment of interest at the rate of fifteen per cent per annum in the event of default. There was unquestionably a default. It necessarily follows therefore that as against Red Carpet, who was not a party to the final judgment of foreclosure, interest accrued at the rate of fifteen per cent per annum as to those items contemplated by the provisions of the guaranty agreement. We accordingly reverse and remand to the trial court for that determination.

In order to facilitate disposition of the case on remand, and to settle one of the arguments repeated in the briefs, we hold that Red Carpet, on its guaranty, cannot be held liable for any part of the indebtedness adjudicated by the final judgment of foreclosure for the simple reason that that sum was “paid” by the bid of the equivalent amount for which the property was sold at the foreclosure sale.

Neither may Red Carpet be held liable under the terms of its guaranty for the payments made by Provident to First Federal as payments on the first mortgage. Our reasoning in that regard as already recited in discussing the other points involved in this appeal are equally applicable to Red Carpet.

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

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

      . By reciting the various pleadings, the order thereof and the terms thereof this Court neither approves nor disapproves same. Such would be inappropriate since none of the points presented on this appeal directly relate to procedure. However, we are of the view that the pleadings herein mentioned together with the final judgment of foreclosure and the specific wording thereof are material either to an understanding of the issues or the resolution thereof.

      . Receiver’s fee; receiver’s bond, Clerk’s fee and accounting fee.

      . Costs secured by the final judgment, documentary stamps and interest from the date of final judgment to the date of sale.

      . The points as phrased by appellant are:
      Point One — The trial court abused its discretion by refusing to consider the equities between the parties and by technically allowing plaintiffs bid to satisfy its judgment.
      Point Two — The trial court committed reversible error in refusing to include as a reimbursable expense Provident’s July 31, 1975 payment on the first mortgage.
      Point Three — The trial court committed reversible error in refusing to allow interest at the rate of fifteen per cent as provided in the note and the guaranty on amounts found to constitute a deficiency.

      . The rejection of the evidence relating to a payment by Provident on the first mortgage after entry of the final judgment of foreclosure but before the sale is also the subject of appellant’s second point.

      . Sub judice, as already noted, Provident, the mortgagee, was the successful bidder at the foreclosure sale.

      . Indeed, to this very day no assault has ever been made upon the final judgment of foreclosure.

      . Including the amounts allegedly expended by Provident to preserve the property.

      . If secured by the mortgage.

      . We express no view as to whether or not the final judgment of foreclosure could, indeed, have been properly amended.

      . In the absence, of course, of fraud, collusion or some other such defense which has neither been suggested, alleged nor proved.

      . Provident, Thunderbird and Red Carpet entered into a joint stipulation that the unencumbered fair market value of the property on the date of the foreclosure sale was $4,242,000.00 and that after subtracting $3,217,433.56 being the amount due on the first mortgage on the date of sale, the value of the remaining equity received by Provident was $1,024,566.44. The difference between that equity value and the amount of the final judgment of foreclosure is $404,927.22.

      . Again, it is not necessary for us to here determine whether or not it would have been proper for the trial court, upon appropriate proceeding, to have amended the final judgment of foreclosure to include any of the sums (or all of them) now sought by appellants to have included in the deficiency judgment, because the record before us reflects no such proceeding nor attempted proceeding nor are the points on appeal so framed as to reasonably contemplate consideration of such an issue.

      . Due credits being given, of course, for any undetermined amounts reasonably secured by the final judgment of foreclosure to be determined by future order, including but not necessarily limited to, interest, attorney’s fees, receiver’s compensation, costs and such other sums as are secured by the terms of the mortgage or note, but specifically reserved by the terms of the final judgment of foreclosure for future determination.

      . Our task on review, and no doubt the task of the trial judge, has been complicated by virtue of the order and type of pleadings by which the issues in the trial court were framed.

      . See, however, F.S. 702.06.

      . $1,429,493.66.


source: Caselaw Access Project

author: PAUL, MAURICE M., Associate Judge.

license: Public Domain

text:
    Robert Leith LAWS, Appellant, v. Sandra Ayres LAWS, Appellee.
    No. 77-1766.
    District Court of Appeal of Florida, Fourth District.
    Nov. 8, 1978.
    Rehearing Denied Dec. 20, 1978.

      Joe Teague Caruso of Wolfe, Kirschen-baum, Caruso & Mosely, P.A., Cocoa Beach, for appellant.
    Benjamin Y. Saxon of Saxon & Richardson, P.A., Melbourne, for appellee.
   PAUL, MAURICE M., Associate Judge.

Appeal by the Husband from a final judgment of dissolution of marriage awarding the Wife, as special equity, (1) all of the Husband’s interest in certain real property theretofore held as a tenancy by the entire-ties, (2) the furniture and furnishings located in the real property, and (3) a 10% interest in stock of the Bendix Corporation and Facet, Inc., which was in the sole name of the Husband. The Wife has filed a cross appeal alleging error by the trial judge in awarding the Husband a 10% special equity in the real property and furniture and furnishings, plus the Court’s refusal to award her alimony of any description.

The parties were married in 1967, a little over ten years prior to the filing of the Petition for Dissolution of Marriage, and 174 days after the Wife was divorced from her former Husband. Under the terms of a “Separation, Custody, and Property Settlement Agreement”, the Wife received from her former Husband the real property which is the subject of this appeal, said property being described as “ . . . the residence of the parties and four rental units . . . ”. At the time of her prior divorce, the real property was encumbered by a $39,000.00 first mortgage, a $10,000.00 second mortgage, $1,410.76 owed on the furniture, a $1,996.25 swimming pool loan, and a $1,500.00 personal loan, with the former Husband assuming responsibility to pay the second mortgage ($10,000.00) and the $1,500.00 personal loan.

In the case sub judice, the parties moved into the home and rented the apartments, the rental proceeds going into a joint account to pay bills and the mortgage payment. The Wife was employed for a short time after the marriage and then again for a year in 1973 or 1974, becoming continuously employed for the last years prior to the instant dissolution. During the six years the Wife was unemployed, the Husband was the sole support of the family (including the Wife’s two children by the former marriage), his money being placed in the joint account and used to pay, among other things, the first mortgage payment on the property ($395.00 per month). During the marriage, the Husband considerably improved the landscaping of the property, performed the minor maintenance and repair work, and shared responsibility for collecting the rents and keeping the books.

At the time of the final hearing, the first mortgage balance was $28,400.00 (down from $39,000.00); the second mortgage balance was $2,600.00 (down from $10,000.00); the pool loan had been fully paid; the home and apartments were valued at $100,000.00.

The real property in question remained in the Wife’s former married name until January of 1968 when she, joined by the Husband, conveyed it to a strawman who, in turn, conveyed it back to the Wife, this time in her married name. At the time of this conveyance in January of 1968, the Wife executed a will leaving the property at her death to her Husband, Robert Laws. In December of 1968, the Wife, by warranty deed, conveyed the property to herself and her Husband, creating therein an estate by the entireties in and to the property here in question. The Wife testified that (1) she did not intend to make a gift of the property to her Husband, and (2) the deed was executed to put the property “ . . .in both of our names in the event something should happen to me, he would have a place to take care of my children.” and (3) “ . . . because I felt that we were married and that it wasn’t right that it was just left strictly in my name and I did that as a gesture of good faith in the marriage.” At the time of conveying the property to her husband and up until two months prior to the final hearing, the Wife’s will continued to name the Husband as sole beneficiary of the property.

The case of Ball v. Ball, 335 So.2d 5 (Fla.1976) and its progeny, is dispositive of the issue as to donative intent.

As stated in Ball, supra, at pages 7 and 8: “(1,2) We begin our resolution of these conflicting decisions with the premise that, in the absence of any showing by either spouse in the marriage dissolution proceeding as to why one should be awarded more than an equal proportion of real property held as tenants by the entireties, record title speaks for itself.” “(3,4) The premise that record title bespeaks an equal division is, of course, only the starting point for a property division. Either spouse has the right to attempt to establish a “special equity” in the realty by reason of his or her extraordinary contribution toward its acquisition, either financially or through personal industry and service to the other party. The other party, of course, can negate the attempted showing or affirmatively attempt to show that a gift was intended. . we hold that a special equity is created by an unrebutted showing, as was developed here, that all of the consideration for property held as tenants by the entireties was supplied by one spouse from a source clearly unconnected with the marital relationship. In these cases the property should be awarded to that spouse, as if the tenancy were created solely for sur-vivorship purposes during coverture, in the absence of contradictory evidence that a gift was intended.”
“(5) In using record title as the touchstone and requiring some evidentiary showing beyond that for an award other than an equal division, it becomes unnecessary to use judicially-created presumptions of any sort in these proceedings. All presumptions which the different status of the sexes required the courts to create prior to the constitutional change, and all presumptions developed by the courts since that date are now unnecessary.”

Clearly, the evidence establishes that the real property was acquired by the Wife prior to her marriage. This being so, the Husband must affirmatively attempt to show that a gift was intended at the time the property was placed in the joint names (emphasis supplied). The question of dona-tive intent is one of a preponderance of the credible evidence.

While it is true that “ a word or two of testimony by the recipient spouse, to the effect that the other intended a gift . . . does not obliterate “ . . . the special equity resulting from an unrebutted showing that the grantor spouse acquired the property from sources entirely independent of the marriage”, Merrill v. Merrill, 357 So.2d 792, 793 (Fla. 2d DCA 1978), neither is the simple denial of donative intent by the donor spouse disposi-tive of the question.

As stated by the Court in Merrill, supra, at 793: “The question of donative intent is one of a preponderance of the credible evidence . . . but the finding of the chancellor as to donative intent is not binding on the appellate court where “. . . there is no credible evidence of such intent below.” Bickerstaff v. Bickerstaff, 358 So.2d 590 (Fla. 1st DCA 1978).

All of the evidence relative to dona-tive intent, except the bald assertion of the Wife, clearly and unequivocally shows that the Wife did intend to make a gift to her husband of an interest in the property at the time she executed the deed creating an estate by the entireties in December of 1968. The Wife’s unsupported assertion that no gift was intended cannot refute the uncontradicted evidence in this record. Passage of time and the interest to be served have a way of coloring or changing a person’s recollections, but the documentary evidence is not subject to such imperfection and stands as immutable and irrefutable memorials to the true intent of the parties.

It is apparent that the trial court was attempting to do “equity” in the case, but in that quest for “equity”, the legal rights of the respective parties cannot be trammelled. Apparently the trial judge understood this for, at page 86 of the transcript, he told the Wife’s attorney, “Your client is lucky to save the property. I can assure you of that. She is now saving her property, unless she appeals. So, that is my ruling. That is my ruling.”, and at page 87: “No, I am trying to keep from causing an appeal and Mrs. Laws might lose her apartment house.”

What is here stated about the real property is also applicable to the award of an interest in the furniture and furnishings located therein.

Conversely, there are no facts which can support a finding that the Wife has a 10% special equity in the Husband’s stock which stands in his name alone. The stock in question was acquired as a result of a stock purchase agreement between the Husband and his employer, he contributing 12% of his salary each month and the company adding an additional 4%.

Lastly, the Wife’s appeal from a denial of alimony. Both parties are educated and gainfully employed, the Wife as a tax examiner with the Internal Revenue Service, the Husband as a supervisor with the Bendix Corporation. More important to this appellate point though, is that the Wife did not request alimony at the final hearing. Having advised the trial court she was not seeking an award of alimony, she cannot complain on appeal the failure to make such award.

Wife’s application for attorney fees is denied.

Final Judgment is REVERSED with directions to the lower court to enter judgment decreeing the parties to be tenants in common of the real property and furniture and furnishings in question and denying the Wife any “special equity” in the stock standing in the sole name of the Husband.

The denial of alimony is AFFIRMED.

CROSS, and MOORE, JJ., concur.


author: PER CURIAM.

text:
    WOODMERE NORTH INVESTMENT FUND LIMITED, Appellant, v. SLT WAREHOUSE et al., Appellees.
    No. FF-465.
    District Court of Appeal of Florida, First District.
    Nov. 14, 1978.
    Rehearing Denied Dec. 20, 1978.
    Dennis G. King, Miami, for appellant.
    Gary A. Bubb, of Toole, Taylor, Moseley, Milton & Joyner, Jacksonville, for appellees.
   PER CURIAM.

We have carefully examined the record-on-appeal and the briefs filed by able counsel and determine therefrom that appellant has failed to demonstrate that the trial court erred in the manner alleged. We further find that nothing will be added to the jurisprudence of this state by a meticulous recitation of the facts giving rise to this appeal nor by a discussion of the law applicable to those facts. The well reasoned and carefully articulated final judgment of the trial court which is here appealed is therefore

AFFIRMED.

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


author: MILLS, Judge. BOYER, Judge,

text:
    BAUMGARTNER CONSTRUCTION COMPANY, INC., a Florida Corporation, and George I. Baumgartner and Doris W. Baumgartner, his wife, Appellants, v. C. L. HARRELL, Appellee.
    No. JJ-280.
    District Court of Appeal of Florida, First District.
    Nov. 14, 1978.

      George F. Tubb of Jenkins & Tubb, Gainesville, for appellants.
    Anderson E. Hatfield, III, Gainesville, for appellee.
   MILLS, Judge.

CASE SUMMARY

The appellants (Baumgartners) appeal from a final judgment foreclosing a mechanics lien in favor of appellee (Harrell). We affirm in part and reverse in part.

FACTS

The Baumgartners contracted with “M” Enterprises (“M”) to make their real property suitable for improvements as defined in Section 713.04, Florida Statutes (1975). The contract for improvements to the subdivision was in the amount of $180,000. Harrell, and others not parties to this action, subcontracted under “M” for grading, filling and other work. On 14 March 1977, after having been paid $116,500, “M” abandoned the job. “M” ’s contract was completed by a third party but the Baumgart-ners did not file a notice of recommencement after the abandonment.

Harrell’s notice to owner was untimely filed and served but he timely filed his claim of lien which was foreclosed by the trial court.

The trial court made the following findings: (1) the payments made by the Baum-gartners in completion of the contract were improper payments as to Harrell because the Baumgartners failed to file a notice of recommencement; (2) the Baumgartners were estopped to claim setoff for the costs of completion after abandonment because these items were not pled by way of setoff; (3) Harrell’s untimely notice to owner did not bar his statutory claim of lien and foreclosure thereof because subdivision improvements do not require that a notice to owner be filed; (4) there exists a sufficient fund on the original contract ($63,500) to which Harrell’s lien attaches and which entitles Harrell’s lien to full satisfaction; (5) Harrell’s claim of lien was recorded prior to all others and as regards subdivision liens, priorities attach first in time, first in right.

ISSUES

First Issue. Whether a subdivision improvement lienor not in privity with the owner must file and serve notice to the owner in order to perfect his lien.

The Baumgartners (owners) contend that Harrell (subdivision improvement lienor) was not in privity with them and pursuant to Section 713.06(2), Florida Statutes (1975), and Booth v. Lombardi, Inc., 309 So.2d 51 (Fla. 2d DCA 1975), he was required to file and serve notice to owners in order to perfect his lien.

Harrell contends that pursuant to Section 713.04, Florida Statutes (1975), and American Fire & Cas. Co. v. Davis Water & Waste, 358 So.2d 225 (Fla. 4th DCA 1978), he was not required to file and serve a notice to owners in order to perfect his lien.

Second Issue. Whether a subdivision owner is required to file and post a notice of recommencement after abandonment by the general contractor in order for payments on the subsequent work to be proper.

The Baumgartners contend that pursuant to Section 713.07(4), Florida Statutes (1975), a subdivision owner is not required to file and post a notice of recommencement after abandonment.

Harrell contends that Tamarac Village, Inc. v. Bates & Daly Co., 348 So.2d 23 (Fla. 4th DCA 1977), requires the filing and posting of the notice of recommencement.

Third Issue. Whether Section 713.07(1), Florida Statutes (1975), affords the first subcontractor to file a lien against a subdivision a higher priority than that of other claimants under the same contract who timely file their claims.

The Baumgartners contend that the priority of Harrell’s lien is governed by Section 713.06(4), Florida Statutes (1975), rather than Section 713.07(1), Florida Statutes (1975).

Harrell contends the priority of his lien is established by Section 713.07(1) but priority is of no consequence here because the Baumgartners failed to plead or prove as a setoff against Harrell’s lien the necessary and proper payments made by them to complete the subdivision improvements.

DECISION

First Issue. We affirm. We adopt the reasoning of American Fire and Cas. Co., supra, and reject that of Booth. Notice to owners need not be given when the materials furnished relate to subdivision improvements.

Harrell (lienor) furnished materials for subdivision improvements to the Baumgart-ners (owners) with whom he was not in privity. Section 713.04 which applies to subdivision improvement lienors does not require notice to owners. Section 713.06(2) which applies to lienors not in privity with owners requires the notice to owners. However, only Section 713.04 applies here because its first sentence clearly states that it applies to lienors, regardless of privity, who furnish materials for subdivision improvements.

Second Issue. We reverse. A subdivision owner is not required to file a notice of recommencement after abandonment of subdivision improvements.

Section 713.13(1), Florida Statutes (1975), requires an owner to file a notice of recommencement after abandonment as does Section 713.07(4) which concludes that the notice be filed as provided in Section 713.13, Florida Statutes (1975). However, Section 713.13(4), Florida Statutes (1975), clearly states that Section 713 does not apply to an owner who is constructing improvements described in Section 713.04.

Third Issue. We affirm. Although the trial court was correct in its holding that under Section 713.07(1), Harrell’s lien being the first recorded, attached and took priority at that time, it would make no difference because the Baumgart-ners failed to plead and prove a setoff against Harrell’s lien.

Section 713.07(1) states that liens under Section 713.04 shall attach at the time of recordation and shall take priority at that time. Harrell’s claim was the first recorded. Section 713.06(4) is not applicable to the facts of this case because the other lienors were not parties nor were their claims proved at trial.

It is elementary that to obtain a setoff against Harrell’s lien the Baumgartners were required to plead and prove the payments made after recommencement were necessary and proper. Although not required to file a notice of recommencement, it was still necessary that the recommencement payments be pled and proved. See Melnick v. Reynolds Metals Co., 230 So.2d 490 (Fla. 4th DCA 1970), and Torres v. MacIntyre, 334 So.2d 59 (Fla. 3d DCA 1976).

JUDGMENT

We affirm in part and reverse in part as stated in the Decision section of this opinion, however, this will not affect the award made to Harrell in the final judgment which we affirm in all respects.

McCORD, C. J., concurs.

BOYER, J., dissents.

BOYER, Judge,

dissenting.

I am of the view that the applicable statutes were properly construed by our sister court of the Second District in Booth v. Lombardi, Inc., 309 So.2d 51 (Fla. 2nd DCA 1975), rejected by the majority here. I would hold in conformity with that opinion and reverse.


text:
    D. MITCHELL INVESTMENTS, INC., Miami Springs Construction Co., Inc., and the Chandelier of the Virginia Playhouse, Inc., all Florida Corporations, Appellants, v. Eugene P. SPELLMAN and Denis Dean, Court appointed receivers for the Virginia Plaza Office Buildings, Appellees.
    Nos. 77-951, 77-952 and 77-1017.
    District Court of Appeal of Florida, Third District.
    Nov. 14, 1978.
    Rehearing Denied Dec. 18, 1978.
    Leo Greenfield, North Miami, Charles W. Flynn, Joe N. Unger, Miami, for appellants.
    Frates, Floyd, Pearson, Stewart, Richman & Greer and Bruce A. Christensen, Miami, for appellees.
    Before HAVERFIELD, C. J., and HEN-DRY and HUBBART, JJ.
   PER CURIAM.

This consolidated appeal is taken from a summary final judgment and amended summary final judgment rendered in favor of appellees/plaintiffs/receivers in an action by which the receivers sought to collect rents due under two commercial leases.

As both judgments are substantially identical, we shall set forth the pertinent portions of the amended summary final judgment below.

“1. The Plaintiffs are receivers of an office building complex known as the Virginia Plaza and were appointed as receivers for the property by this Court upon the Motion of Baker Mortgage Company and other affiliated mortgagees (hereinafter referred to as ‘the mortgagees’) in a case styled Baker Mortgage Company, et al. v. D. Mitchell Investments, Inc., et al., Case No. 75-643(4), on June 6, 1975.
“2. Pursuant to this Court’s Order Appointing Receiver, dated June 6, 1975, Case No. 75-643(4), the Plaintiffs were vested with full authority to institute suits for the collection of rents.
“3. Plaintiffs entered the premises, have managed the same and have collected rents and instituted suits to collect rents.
“4. Upon entering the premises as receivers the Plaintiffs discovered that the restaurant located on the first floor of one of the three buildings, and occupying a substantial portion of the leased space, was paying no rent whatsoever on the premises it occupied and has not paid Plaintiffs any rental at all times material herein. This space occupied by the restaurant is the subject of two leases for which the Defendants, THE CHANDELIER OF THE VIRGINIA PLAYHOUSE INC. (hereinafter referred to as ‘CHANDELIER’), and MIAMI SPRINGS CONSTRUCTION COMPANY, INC. (hereinafter referred to as ‘CONSTRUCTION COMPANY’) are the lessees.
“5. The reason that no rental is being paid on the premises occupied by the restaurant, and leased to the Defendants CHANDELIER and CONSTRUCTION COMPANY, is that on or about July 25, 1973, D. MITCHELL INVESTMENTS, INC. (hereinafter referred to as ‘MITCHELL’), the mortgagor, owner and developer of the property, executed a document acknowledging an indebtedness to CONSTRUCTION COMPANY in the amount of $261,926.69, and in return for a reduction of that debt in the amount of $153,388.20 MITCHELL waived payment of rentals due under the Office Building Lease executed on August 2, 1973 with CONSTRUCTION COMPANY as lessee for the full five-year term of that lease. A similar agreement (the two agreements acknowledging the debt and waiving rentals are hereinafter referred to as ‘debt reduction agreements’), between MITCHELL and CHANDELIER was executed on July 30, 1973 wherein MITCHELL acknowledged an indebtedness to CHANDELIER in the amount of $59,-281.24 which indebtedness was cancelled in full in return for a similar reduction in rent on a five-year lease executed with CHANDELIER as lessee on August 2, 1973.
“6. The terms of the lease agreement between MITCHELL and CHANDELIER call for the payment of $1,048.00 in rent plus sales tax, each and every month for the term of the lease and does not call for any payments to be made in advance, except as noted in paragraph 5, above. Likewise, the lease entered into between MITCHELL and CONSTRUCTION COMPANY calls for the payment of monthly rental in the amount of $2,583.33 plus sales tax, and does not call for the payment of any rentals in advance, except as noted in paragraph 5, above.
“7. Prior to executing the debt reduction agreements and leases and on or about July 6, 1972, the Defendant MITCHELL entered into a construction loan agreement with the mortgagees, which loan was evidenced by various notes, mortgages and other security instruments. In conjunction with the aforesaid construction loan agreement MITCHELL executed a ‘Conditional Assignment of Rentals, Leases and Income’ (hereinafter referred to as ‘Assignment’) containing various assignments of rental income, which became operative in the event of a default, and containing the following covenant:
‘The Undersigned further covenants and agrees not to collect the rents of the subject premises in advance, other than as required to be paid in advance by the terms of any rental agreement, and further agrees not to do any other act which would destroy or impair the benefits to BAKER MORTGAGE COMPANY and its Assigns under this Assignment. (Conditional Assignment of Rentals, Lease and Income, p. 3; emphasis added.)’
This instrument was recorded, along with the other instruments evidencing the mortgage, on July 6, 1972, and was part of the Public Records of Dade County, Florida, prior to the execution of the agreements and leases referred to in paragraph 5 above.
“8. Plaintiff’s counsel has taken the depositions of Douglas Pierce (of MITCHELL), Jack Fitts (of CONSTRUCTION COMPANY and CHANDELIER), and Jim O’Nan, and the Court, in considering these depositions and the affidavits filed by Plaintiffs and Defendants and the pleadings and other matters of record in this case, finds that there is no genuine issue of material fact and particularly as to the factual matters more fully set forth above. Therefore, Summary Judgment is appropriate since there are no material factual matters outstanding to be determined at a trial by this Court.
ACCORDINGLY, the Court makes the following conclusions of law:
“1. The Plaintiffs, as receivers for the property, have the authority and standing to bring this action for cancellation of the debt reduction agreements which are preventing the Plaintiffs from receiving rental income from the Defendants, CONSTRUCTION COMPANY and CHANDELIER, and have the authority and standing to bring this suit to collect rentals due under the terms of the leases on which CONSTRUCTION COMPANY and CHANDELIER are lessees.
“2. The Plaintiffs, as receivers appointed at the behest of the mortgagees and with the full authority granted by this Court to collect rents on the premises due or overdue and otherwise marshall the assets for the mortgagees, have the authority and standing to invoke the covenant in the Assignment quoted in paragraph 7 above as a basis for this suit challenging the debt reduction agreements which cause the Plaintiffs to receive no rental income on the premises with which they are charged with managing.
“3. Since the covenant quoted in paragraph 7 above within the Assignments was of public record and pre-dated the debt reduction agreements, the later debt reduction agreements are subject to cancellation under the quoted provision of the Assignment because they constitute an act which destroys or impairs the benefits of the Assignment to the mortgagees, and to the receivers appointed at the behest of the mortgagees.
“THEREFORE, it is ORDERED AND ADJUDGED AS follows:
“1. The aforementioned debt reduction agreements between MITCHELL and CHANDELIER and CONSTRUCTION COMPANY, whereby rental payments for the leased premises are waived for the term of the leases, are hereby declared void and unenforceable as against the Receivers, as Plaintiffs in this suit for rent due under the leases with these Defendants.
“2. The Plaintiffs, as Receivers, are entitled to Final Judgment against CHANDELIER and CONSTRUCTION COMPANY for all rents due on the leased premises from the date the Certificate of Occupancy was issued for the premises and the lease term commenced, September 26, 1974. This date was subsequent to a default in the payment of the mortgage loan which in the case styled Baker Mortgage Company, et a 1. v. D. Mitchell Investment, et al., Case No. 75-643(4), which proceeding is the basis for the Receivership, the date of default of the mortgage on the subject premises was determined to be in May of 1974. Therefore, the Plaintiff Receivers are entitled to Final Judgment for all rentals for the months beginning September 26, 1974 and thereafter.
“3. Final Judgment is entered in favor of the Plaintiffs, EUGENE P. SPELLMAN, and DENIS DEAN, as Court appointed receivers for the Virginia Plaza Office Building, and against THE CHANDELIER OF THE VIRGINIA PLAYHOUSE, INC., in the amount of $32,697.60 as rental and sales tax for the period from September 26, 1974 through March 1977. Final Judgment is entered against MIAMI SPRINGS CONSTRUCTION COMPANY, INC. and in favor of the Plaintiff Receivers in the amount of $80,599.80 for rental and sales tax from September 26, 1974 through March, 1977.
“4. The Defendants, THE CHANDELIER OF THE VIRGINIA PLAYHOUSE, INC. and MIAMI SPRINGS CONSTRUCTION COMPANY, INC., shall have forty-five (45) days from the date of this Amended Final Judgment to pay all past due rentals, as set forth in paragraph 3 hereof, to the Plaintiff Receivers. Should these Defendants fail to pay such monies in full within the full forty-five (45) day period, then they shall vacate the premises and the Plaintiff Receivers may commence execution forthwith.
“5. Plaintiffs shall recover their costs upon motion.”

Appellants basically contend that genuine issues of material fact remain to be decided with respect to (1) whether or not appellees had standing to initiate this suit and (2) whether the debt reduction agreements actually violated the “assignment of rents” and covenant not to impair or destroy the rents. We find that these purported genuine issues of material fact raised by appellants amount to no more than smoke screens and are not material to the issues correctly decided by the trial judge in this proceeding.

Accordingly, as no genuine issues of material fact remain and, as it affirmatively appears that appellees are entitled to judgment as a matter of law, the judgments appealed from are hereby affirmed.

Affirmed.


author: CHARLES CARROLL, Associate Judge. BARKDULL, Judge,

text:
    R. D. JACKSON and Irene Jackson, his wife, Appellants, v. HARSCO CORPORATION, a Foreign Corporation, d/b/a Patent Scaffolding Company, a dissolved Florida Corporation, and Travelers Insurance Co., Appellees.
    No. 77-1385.
    District Court of Appeal of Florida, Third District.
    Nov. 14, 1978.
    Rehearing Denied Dec. 18, 1978.

      Feldman, Abramson, Smith & Magidson and Donald Feldman, Miami, for appellants.
    Adams, George, Schulte & Ward and Robert C. Ward, Miami, for appellees.
    Before HENDRY and BARKDULL, JJ., and CHARLES CARROLL (Ret.), Associate Judge.

       Hendry, J., participated in the decision in this case but did not hear oral argument.

   CHARLES CARROLL, Associate Judge.

R. D. Jackson, plaintiff in the trial court, appeals a final judgment entered upon a jury verdict finding Harsco Corporation not guilty of negligence in an action for damages arising out of Jackson’s near-fall from a scaffold.

R. D. Jackson was a plasterer employed by Acropolis, a general contractor. Acropolis entered into a contract with Harsco, by which Harsco agreed to supply Acropolis with scaffolding. Acropolis was to install the scaffolding according to directions supplied by Harsco. There was no device on the scaffold to prevent the beams from moving laterally and one day, while Jackson was plastering, the beams moved laterally and he was injured. Harsco’s expert testified the device was unnecessary, because the beams were to have been installed in a criss-cross manner to prevent lateral movement. The evidence conflicts as to whether Acropolis followed Harsco’s directions in installing the beams in this manner.

A regulation of the Florida Department of Commerce, Workmen’s Compensation Bureau, was read to the jury during trial. This regulation concerns the securing of the ends of the beams to prevent lateral movement. Jackson submitted a request for Florida Standard Jury Instruction No. 4.9 (violation of the regulation as negligence per se). The trial court denied this request. Jackson then requested Florida Standard Jury Instruction 4.11 (violation of the regulation as evidence of negligence). The trial court also declined to give this instruction. The question of a violation of the regulation was argued to the jury. The jury returned a verdict in favor of Harsco and this appeal ensued.

The appellants’ sole point on appeal is that the trial court erred in failing to give either of the Florida Standard Jury Instructions, contending that the regulation involved was of the same dignity as a statute or ordinance, as provided in the Florida Standard Jury Instructions, citing Florida Freight Terminals, Inc. v. Cabanas, 354 So.2d 1222 (Fla. 3d DCA 1978).

Florida Standard Jury Instruction 4.9, supra, was submitted by Jackson seeking to have the jury instructed that a violation of a regulation of the Florida Department of Commerce, Workmen’s Compensation Bureau [promulgated under the authority granted by Section 440.56, Florida Statutes (1973)] constituted negligence per se on the part of Harsco. However, under the facts of this case such a charge would not be applicable. Chapter 440, Florida Statutes (1973), was well as the regulation in question deal with workmen’s compensation and the employer/employee relationship. In this case the record clearly shows no employer/employee relationship between Harsco and Jackson. In fact, Jackson, by his pleading, recognized the lack of the employer/employee relationship under Count II of the complaint alleging negligence per se, wherein he stated: “At all times material, Defendants were vendors, suppliers, or lessors, and not a sub-contractor.” Thus, Harsco not being an employer herein does not come within the purview of Chapter 440, Florida Statutes (1973). Lindsey v. Willis, 101 So.2d 422 (Fla. 1st DCA 1958); Alford v. Meyer, 201 So.2d 489 (Fla. 1st DCA 1967). Where Harsco fails to come under the provisions of Chapter 440, Florida Statutes (1973), it certainly cannot be governed by regulations promulgated pursuant thereto. Therefore, as the requested charge has its basis on a law and or regulation not applicable to Harsco, the trial court did not err in refusing to give the charge.

The refusal to give Florida Standard Jury Instruction 4.11, supra, was not error for the same reasons advanced above. In addition thereto, the request for said instruction was not reduced to writing. Florida Rules of Civil Procedure 1.470(b) requires that parties shall file written requests for jury charges, and where a party fails to do so we will not find error. Ellis v. Golconda Corporation, 352 So.2d 1221 (Fla. 1st DCA 1977).

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

HENDRY, J., dissents.

BARKDULL, Judge,

concurring specially.

I concur in the opinion authored by Judge Carroll and the disposition of this matter. However, I would not want this concurrence to be considered as any indication of my agreement with the decision rendered in Florida Freight Terminals, Inc. v. Cabanas, supra. In my opinion this decision was erroneous. It marked the first time that an appellate court of this State had raised an administrative rule to the dignity of a penal statute or ordinance.

Administrative rules are normally promulgated by non-elected public officers or employees who are part of the executive branch of government, whereas penal statutes or ordinances are ordinarily enacted by elected representatives of the public acting in a legislative capacity. In the latter instance, the electorate has the power of the ballot to change the makeup of a legislative body that enacts a penal statute or ordinance and, possibly, thereby cause the repeal thereof. No such right exists as to those in charge of administrative agencies and who may have promulgated an administrative rule. If an administrative agency desires to have an administrative rule possess the dignity of a penal statute or ordinance, it should submit same for consideration to the elected legislative representatives of the applicable body that created the agency. The courts should not, by judicial fiat, raise an administrative rule to equal dignity with a penal statute or ordinance. Penal statutes and ordinances are to be strictly construed in their application and the public should not be burdened with considering whether administrative rules may make certain of their activities negligence per se.

      .“Violation of this [statute] [ordinance] is negligence. If you find that a person alleged to have been negligent violated this [statute] [ordinance], such person was negligent. You should then determine whether such negligence was a legal cause of the [loss] [injury] [or] [damage complained of].”

      . “Violation of a traffic regulation prescribed by [statute] [ordinance] is evidence of negligence. It is not, however, conclusive evidence of negligence. If you find that a person alleged to have been negligent violated such a traffic regulation, you may consider that fact, together with the other facts and circumstances, in determining whether such person was negligent.”

      . See: Schulte v. Gold, 360 So.2d 428 (Fla. 3d DCA 1978).


author: BARKDULL, Judge.

text:
    INDUSTRIAL FIRE & CASUALTY INSURANCE COMPANY, Appellant, v. Lucille G. COWAN, Appellee.
    No. 77-2663.
    District Court of Appeal of Florida, Third District.
    Nov. 14, 1978.
    Rehearing Denied Dec. 18, 1978.

      Goodhart & Rosner, Greene & Cooper and Sharon L. Wolfe, Miami, for appellee.
    Horton, Perse & Ginsberg, Ronald W. Ja-bara, Miami, for appellee.
    Before PEARSON, BARKDULL and KEHOE, JJ.
   BARKDULL, Judge.

Appellant, defendant in the trial court, seeks review of an order holding that the appellee (plaintiff) was entitled to recover $5,000.00 under the personal injury protection provision of an automobile insurance policy issued by the defendant.

The plaintiff purchased an automobile insurance policy from the defendant, which contained a $5,000.00 personal injury protection provision, pursuant to Section 627.-736, Florida Statutes (1975 and 1976). The policy contained the following language, providing a deductible as to the personal injury protection coverage: “This Policy Contains $1000 Deductible on Personal Injury Protection”. On February 24, 1977, plaintiff was involved in a vehicular accident, suffering injuries and incurred medical expense and lost wages of approximately $40,000.00.

The defendant denied the claim under the personal injury protection provision, and the instant suit was filed. During penden-cy of the suit, the defendant tendered an offer of judgment for $4,000.00, the difference between the $5,000.00 personal injury protection limits and the $1,000.00 deductible clause. The plaintiff thereupon moved for determination of coverage, contending she was entitled to the full $5,000.00 coverage, notwithstanding the deductible of $1,000.00, because her losses greatly exceeded the maximum amount of coverage. After hearing on the motion, the trial court held that, notwithstanding the deductible provision, the plaintiff was entitled to the full $5,000.00 because of the amount of ner damages. We disagree and reverse.

Section 627.739, Florida Statutes (1975 and 1976), reads in part as follows:

* * * * * *
“Each insurer * * * shall, at the election of the owner, issue a policy endorsement, * * * which endorsement shall provide that there shall be deducted from personal protection benefits that would otherwise be or become due to the policy holder * * * an amount of either two hundred and fifty dollars, five hundred dollars, or one thousand dollars, again as the policyholder elects, said amount to be deducted from the amounts otherwise due each person subject to the deduction. * * * ” [emphasis added]

The amount “otherwise due” under the policy is $5,000.00. Section 627.736(1), Florida Statutes (1975). The maximum liability of the company under these circumstances would be $4,000.00.

Reversed and remanded, with directions to enter a final judgment in accordance with this opinion.


text:
    Shirley THOMAS, as Administratrix of the Estate of Jimmie Thomas, Appellant, v. AMERICAN HOME ASSURANCE COMPANY and Tiny’s 22, Inc., Appellees.
    No. 78-140.
    District Court of Appeal of Florida, Third District.
    Nov. 14, 1978.
    Rehearing Denied Dec. 18, 1978.

      Goldstein & Goldstein and Caron Balka-ny, Miami, for appellant.
    Preddy, Kutner & Hardy, Greene & Cooper and Robyn Greene, Miami, for appel-lees.
    Before BARKDULL, HUBBART and KEHOE, JJ.
   PER CURIAM.

Affirmed. See: Murray v. Osenton, 126 So.2d 603 (Fla. 2d DCA 1961); Warner v. Florida Jai Alai, Inc., 221 So.2d 777 (Fla. 4th DCA 1969); Gottschalk v. Smith, 334 So.2d 102 (Fla. 3d DCA 1976).


text:
    Patrick M. REDMOND, Appellant, v. PROSPER, INC., a Florida Corporation, Appellee. PROSPER, INC., a Florida Corporation, Appellant, v. Thomas REDMOND, Appellee.
    Nos. 78-157, 78-373.
    District Court of Appeal of Florida, Third District.
    Nov. 14, 1978.
    Rehearing Denied Dec. 22, 1978.
    Horton, Perse & Ginsberg and Mallory H. Horton, Milton M. Ferrell, Miami, for Red-monds.
    Rosenberg, Rosenberg, Reisman & Glass, Jay A. Hershoff, Miami, for Prosper.
    Before BARKDULL and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

By Appeal No. 78-157, Patrick M. Redmond, one of the defendants below, seeks reversal of an adverse money judgment. By Appeal No. 78-373, Prosper, Inc., the Plaintiff below, contends the court erred in entering judgment in favor of defendant Thomas Redmond.

The action filed by Prosper was for damages for breach of a contract for sale of a restaurant business, by it to defendants. The defendants Patrick and Thomas Redmond answered. They denied the alleged breach of the sales contract, and by counterclaim alleged the plaintiff seller breached the contract, and claimed damages.

The judgment entered on non-jury trial awarded the plaintiff damages against the defendant Patrick Redmond, held that the plaintiff was not entitled to recover from defendant Thomas Redmond, and denied recovery on the defendants’ counterclaim. Those rulings in the judgment were based on findings made by the court that the seller complied with the conditions precedent and was ready, able and willing to perform; that the defendant Patrick Redmond had defaulted the contract; and, on conflicting evidence, that an offer which the seller had made to rescind had been accepted by the defendant, Thomas Redmond. Such findings, which we hold are supported by competent substantial evidence, are not to be disturbed on appeal. Shaw v. Shaw, 334 So.2d 13 (Fla.1976); Herzog v. Herzog, 346 So.2d 56 (Fla.1977); Burch v. Burch, 352 So.2d 552 (Fla.3d DCA 1977).

The trial court was not shown to have applied a wrong rule as to the damages. The measure used was the excess of the contract sales price over the market value as of the time of the breach, less the amount previously paid. Pembroke v. Caudill, 160 Fla. 948, 37 So.2d 538, 541 (1948); Hutchison v. Tompkins, 259 So.2d 129 (Fla.1972). That was supported by evidence of the amount for which the business subsequently was sold, with testimony relating to the nature of that sale, plus certain opinion evidence with regard to value.

No reversible error having been shown, the judgment is affirmed,


text:
    Jeffrey D. BOLLES, Appellant, v. Linda F. BOLLES, Appellee.
    No. 78-185.
    District Court of Appeal of Florida, Third District.
    Nov. 14, 1978.
    Rehearing Denied Dec. 18, 1978.

      Papy, DuVal, Poole & Usich and Harvie S. DuVal, Coral Gables, for appellant.
    Harrell, Wiltshire, Stone & Swearingen, Pensacola, Walton, Lantaff, Schroeder & Carson and N. James Turner, Miami, for appellee.
    Before BARKDULL and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   BARKDULL, Judge.

Appellant-husband filed a petition for dissolution of marriage, alleging the residence of appellee-wife to be Goldsboro, North Carolina. She was served by publication, per Chapter 49, Florida Statutes (1977).

The wife, by affidavit, claims her permanent residence is Escambia County and it has never been elsewhere. The husband’s affidavit alleges the parties were married in Pensacola on December 20, 1970 and resided there until August of 1971. They moved to North Carolina in October of 1973 and, in September of 1976, he moved to Miami where he now resides. The wife’s affidavit alleges that she is a bona fide resident of Escambia County; it has been her permanent home since birth; the parties were married in said County; it was the only County in Florida where the parties resided; that she is a registered voter in said County; that she is presently enrolled in East Carolina University near Goldsboro, paying an out-of-state fee as a student; that her car is licensed in Escam-bia County, bearing Escambia County plates; and that in September of 1976 the husband left North Carolina, where they had been living for three years, and moved to Miami. The wife filed a motion for change of venue to Escambia County Circuit Court, which was granted.

The husband now appeals and contends that the trial court erred in granting the change of venue, in that the appellee-wife is presently and has been physically residing in Goldsboro, North Carolina since August of 1973 and the parties have not resided in Escambia County, Florida since 1971.

Although domicile and residence may be in different places [see: Minick v. Minick, 111 Fla. 469, 149 So. 483 (1933); Campbell v. Campbell, 57 So.2d 34 (Fla.1952); Brown v. Brown, 123 So.2d 382 (Fla.2d DCA 1960)] a wife’s domicile generally follows that of her husband, at least during the period of the marriage when they reside together. Minick v. Minick, supra; Frank v. Frank, 75 So.2d 282 (Fla.1954). Therefore, during the time the parties resided in North Carolina, the wife’s domicile and residence was there. There was nothing before the trial judge that demonstrated that the wife had established a residence other than in North Carolina subsequent to the separation of the parties. It affirmatively appears, from the husband’s affidavit, that the wife continued a residence in North Carolina subsequent to the separation, and service of process by publication, pursuant to a statute that provides service on a non-resident, was appropriate. Venue is proper in Dade County because there were no facts alleged which showed that the wife established a domicile in Florida after the separation in North Carolina. There was no showing as to when she registered to vote, and mere licensing of an automobile plus the payment of a non-resident fee to a college in North Carolina does not make her domiciled in Florida. There is no showing of any place in Florida where she could have been validly served with personal process.

We have not overlooked Bowers v. Bowers, 287 So.2d 722 (Fla. 1st DCA 1973) or Simpson v. Simpson, 339 So.2d 250 (Fla.2d DCA 1976). In the former, the court held that a wife who had been physically present in the State for more than three years with the intention, during that period, to remain in Florida indefinitely could not (after her husband departed the State) be deprived of the court’s services of the State of Florida. In the latter, the court said that a wife’s residence might not necessarily follow that of her husband when he departed the State, but was to be determined according to the facts pertinent to her as an individual. Neither of these cases support the finding of a residency or domicile in Florida of this appellee, which would have materialized subsequent to the separation in North Carolina.

Therefore, the order under review be and the same is hereby reversed.

Reversed.


text:
    Espy E. WARD, Appellant, v. Kathryn Elliott WARD, Appellee.
    No. 78-193.
    District Court of Appeal of Florida, Third District.
    Nov. 14, 1978.
    Rehearing Denied Dec. 22, 1978.

      Martin D. Kahn, North Miami, and Ronald E. Dobelstein, Miami, for appellant.
    Harold M. Braxton, Miami, for appellee.
    Before HAVERFIELD, C. J., BARK-DULL, J., and CHARLES CARROLL (Ret.), Associate Judge.
   BARKDULL, Judge.

By this appeal, appellant questions a final judgment entered in a dissolution of marriage proceeding. The matter was duly set for final hearing by an order of the court, which read in part as follows:

* * * * * *
“All attorneys are directed to appear before the undersigned Judge, at the Dade County Courthouse, for the Call of the Calendar, 9:30 o’clock, A.M., Monday, November 7, 1977. Failure to appear may result in a dismissal of the Plaintiff(s)’ claim or the striking of the pleadings of the Defendant(s) and entry of a Default.”
* * * * * *

At the time set for hearing, counsel for the husband had a conflict but, because the husband desired for the matter to proceed, no motion for continuance was filed and neither the husband nor his counsel made an appearance at the final hearing.

After receiving the plaintiff’s evidence and reviewing the file, the trial judge entered an extensive final judgment of dissolution of the marriage and obligated the husband to pay the following: (1) $125.00 per week permanent periodic alimony; (2) cost of repairs to wife’s 1966 Dodge in the amount of $119.00; (3) all past doctor and hospital bills incurred by the wife, which are not or will not be covered by hospitalization insurance; (4) all remaining balances on accounts with Sears and Bank Americard; and (5) wife’s attorney’s fees and costs in the total amount of $1,192.20. He also awarded the wife, as lump sum alimony, the husband’s interest in the marital home which was titled in an estate by the entireties. This appeal ensued, the appellant now contending that the trial judge should not have gone forward with the final hearing and that the trial judge erred in the amount of periodic alimony awarded of $125.00 per week when the wife only sought $100.00 per week by her pleadings, and that the court erred in the award of the husband’s interest in the marital home as lump sum alimony.

We find no merit in the alleged error in the trial court proceeding with the final hearing. It was properly noticed; there was a clear order instructing all counsel to be prepared for the final hearing, and the rules provide a proper method by motion for continuance if a party is unable to attend. See: Putnam v. Putnam, 57 Fla. 503, 48 So. 629 (1909); 7 Fla.Jur., Continuances § 33; Florida Rules Civil Procedure 1.100 and 1.460. It is admitted that no motion for continuance was filed, and we find no error in the trial judge’s action in proceeding to final hearing in the matter.

This was a marriage of twenty-nine years. The wife had no assets other than her interest in the home; the husband was employed earning $250.00 a week net, with no substantial assets other than his interest in the home. The wife was not employed and had not been employed during the marriage. We affirm all the actions of the trial judge as being awards within his discretion [see: Shaw v. Shaw, 334 So.2d 13 (Fla.1976); Herzog v. Herzog, 346 So.2d 56 (Fla.1977); Jassy v. Jassy, 347 So.2d 478 (Fla.2d DCA 1977); Bender v. Bender, 361 So.2d 829 (Fla.3d DCA 1978)], except the award of $125.00 per week as permanent periodic alimony which we modify to $100.00 per week, because the husband had a right to rely on the claim in the pleading which was for $100.00 a week, and there was no testimony before the chancellor requesting an amendment to the pleadings nor evidence which sought an amount in excess of that sought by the pleadings.

This opinion is not to be construed as preventing a chancellor (when a party fails, to show up for a duly noticed final hearing) from entering an award which may be greater than that sought in the pleadings, but under the circumstances of the instant case (where there was nothing in the evidence to justify the increase in the periodic alimony from that sought in the pleadings) we think the husband had a right to rely on the pleadings and it was error for the chancellor to increase this amount.

Therefore, we affirm the final judgment here under review, except we modify the periodic alimony award as provided in Paragraph 4 of the final order of dissolution from $125.00 per week to $100.00 per week.

Affirmed as modified.


text:
    Alfredo HIDALGO, Appellant, v. The STATE of Florida, Appellee.
    No. 78-498.
    District Court of Appeal of Florida, Third District.
    Nov. 14, 1978.
    Rehearing Denied Dec. 18, 1978.
    Paul E. Gifford, Coral Gables, for appellant.
    Robert L. Shevin, Atty. Gen., and Paul Mendelson, Asst. Atty. Gen., for appellee.

      Before PEARSON and HENDRY, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The appellant, Alfredo Hidalgo, was found guilty of aggravated battery by a jury. On this appeal, reversal is urged upon two grounds: (1) that the court erred in refusing to instruct upon a claimed lesser-included offense of culpable negligence and (2) that the court’s charge upon the defense of self-defense was improper.

Our review of the record, including the accusatory pleading and the evidence before the trial court, establishes that the misdemeanor of culpable negligence was not, as contended by the appellant, a category four, lesser-included offense under the rule set forth in Brown v. State, 206 So.2d 377 (Fla.1968). Therefore, it was not error for the court to fail to charge on the misdemeanor. Further, the record demonstrates that there was no error in the charge to the jury on the burden of proof on the defense of self-defense. See the rule of law in Mathews v. State, 221 So.2d 431, 432 (Fla.2d DCA 1969).

Affirmed.


text:
    FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION and Florida Department of Natural Resources, Appellants, v. KEY HAVEN ASSOCIATED ENTERPRISES, INC., Appellee.
    No. 78-1257.
    District Court of Appeal of Florida, Third District.
    Nov. 14, 1978.
    Rehearing Denied Dec. 18, 1978.
    Terry Cole, Kent A. Zaiser, Tallahassee, for appellants.
    Horton, Perse & Ginsberg, Miami, David P. Horan, Key West, Robert J. Paterno, Miami, for appellee.
    Before HENDRY, HUBBART and KE-HOE, JJ.
   PER CURIAM.

The order under review is reversed and the cause remanded to the trial court with directions to transfer the venue for the trial of this cause to the Circuit Court for the Second Judicial Circuit in and for Leon County, Florida, on the authority of Carlile v. Game & Fresh Water Fish Commission, 354 So.2d 362 (Fla.1977); Department of Revenue v. First Federal Savings & Loan Ass’n of Ft. Myers, 256 So.2d 524 (Fla. 2d DCA 1971); Fla.R.Civ.P. 1.060(b).


text:
    Walter E. BOYD, Appellant, v. Jeannine A. BOYD, Appellee.
    No. 78-1372.
    District Court of Appeal of Florida, Third District.
    Nov. 14, 1978.
    Rehearing Denied Dec. 18, 1978.
    Horton, Perse & Ginsberg, Miami, for appellant.

      Don R. Livingstone, South Miami, for ap-pellee.
    Before PEARSON and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

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


author: ANSTEAD, Judge.

text:
    STATE of Florida, Appellant, v. Roy Lee THADDIES, Appellee.
    No. 77-1547.
    District Court of Appeal of Florida, Fourth District.
    Nov. 15, 1978.
    Joel M. Weissman, Asst. State Atty., West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender, and Jerry L. Schwarz, Asst. Public Defender, West Palm Beach, for appellee.
   ANSTEAD, Judge.

This is an appeal by the state from an order discharging the appellee, Roy Lee Thaddies, under the speedy trial rule.

Thaddies was arrested on May 28, 1976, for assault and battery in violation of a municipal ordinance of the City of Delray Beach. He was then released on bond and trial was scheduled in municipal court for July 9, 1976.

On June 15, 1976, Thaddies was arrested and incarcerated in the Palm Beach County jail on unrelated charges. He did not appear for his municipal court trial and was incarcerated through October 6, 1976. On December 20, 1976, the municipal court charge was sent to the state attorney’s office for review in preparation for the case’s transfer to the state courts because of the imminent abolition of the municipal court. No further action was taken to prosecute the municipal ordinance violation. However, on March 8, 1977, Thaddies was charged with aggravated battery for the same conduct that resulted in his arrest of May 28, 1976. He was arrested on March 16,1977. On May 17, 1977, Thaddies filed a motion for discharge, alleging that under Fla.R.Crim.P. 3.191 he should have been tried within 180 days of May 28, 1976. This motion was granted on July 6, 1977, in an order which found that Thaddies was continuously available for trial from May 28, 1976, until May 17, 1977.

This court lyis held that the speedy trial rule, Rule 3.191, does not apply to proceedings in municipal courts. State ex rel Savage v. Kaplan, 297 So.2d 868 (Fla. 4th DCA 1974). Accordingly, Thaddies had no rights under the rule on the charges filed against him in municipal court. It is true that in State v. Hendricks, 309 So.2d 232 (Fla. 4th DCA 1975), we held that a defendant waived his speedy trial rights under Rule 3.191 when he requested a transfer of pending traffic charges from municipal court to state court. But in Hendricks, Rule 6.13 of the Rules for Traffic Court specifically provided that Rule 3.191 would be applicable to traffic cases. No such rule is involved here.

In anticipation of the abolishment of municipal courts under Article V of the Florida Constitution, the Supreme Court enacted Transition Rule 22 which provides:

In prosecution of municipal ordinances violations the time under the speedy trial rule shall begin to run on January 3, 1977, or when actual custody begins, whichever is later.

Under this rule the earliest that the speedy trial time would start running on municipal charges transferred to the state court would be January 3, 1977, and not May 28, 1976.

However, Thaddies was not prosecuted in state court on the municipal ordinance violation. Instead, an information charging aggravated battery was filed. That charge was based on the same criminal episode that gave rise to the municipal ordinance violation. Rule 3.191(a)(1), Florida Rules of Criminal Procedure, provides:

The time periods established by this section shall commence when such person is taken into custody as a result of the conduct or criminal episode giving rise to the crime charged.

In similar circumstances this court has held that although earlier charges arising from the same incident are dropped, speedy trial time on charges later filed, but based on the same incident, is still measured from the date of arrest on the earlier charges. Clark v. State, 318 So.2d 513 (Fla. 4th DCA 1975). In Clark the defendant was still denied discharge because he was shown to have waived his speedy trial rights in the earlier proceedings. No such showing has been made here. In fact, the state has not challenged the trial court’s finding that Thad-dies was continuously available for trial between May of 1976 and May of 1977.

The First District, in a case on different facts, has ruled that speedy trial time does not commence running upon an arrest in which no charge is filed. Snead v. State, 346 So.2d 546 (Fla. 1st DCA 1976). While we express no view on the Snead holding, we note that here a charge was filed upon Thaddies’ initial arrest on May 28, 1976. In effect, as in Clark, supra, that charge was eventually dropped when the state decided not to prosecute Thaddies for the municipal offense of assault and battery.

Accordingly, this court’s opinion of May 31, 1978, is hereby withdrawn and the order of discharge is affirmed.

DOWNEY, C. J., and LETTS, J., concur.

      . In re Abolition of Municipal Courts Transition Rule 22, 339 So.2d 1119 (Fla.1976).


author: DAUKSCH, Judge.

text:
    Nathaniel INGRAM, Appellant, v. STATE of Florida, Appellee.
    No. 77-1096.
    District Court of Appeal of Florida, Fourth District.
    Nov. 15, 1978.
    Rehearing Denied Dec. 20, 1978.
    Richard L. Jorandby, Public Defender, Frank B. Kessler, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   DAUKSCH, Judge.

Appellant was tried and convicted of possession of a firearm by a convicted felon. He appeals the trial court’s denial of a motion to suppress the firearm. We reverse.

Two uniformed officers were staked out in a vacant apartment in West Palm Beach observing activity on the street. They observed appellant carrying a paper bag, stopping people on the street and having them look into the bag. The officers testified they suspected the bag contained contraband of some sort but did not testify they suspected it contained a gun. Appellant went inside a poolroom and the officers followed him there and asked him to come outside. After they were outside, one of the officers asked to look in the bag and appellant silently handed it to him while another officer held on to appellant’s belt, since appellant appeared to be “going west on 3rd Street.” There is no additional evidence as to the voluntariness of appellant’s actions in following the officers outside and turning over the bag. Since the officers did not have a search warrant, they could conduct a search only if the search was (1) incident to lawful arrest, (2) a consensual search, or (3) under the stop and frisk statute.

The parties stipulated that this was not a search incident to arrest. Under the Florida stop and frisk statute an officer may temporarily detain a person for questioning if the circumstances reasonably indicate that the person has committed, is committing or is about to commit a criminal violation. If the officer has probable cause to believe that the person he has properly detained or is about to properly detain is armed with a dangerous weapon and offers a threat to the safety of the officer, he may search the individual to the extent necessary to disclose and for the purpose of disclosing a weapon. If either the stop is improper or there is no probable cause to believe the subject is armed, then any evidence seized is not admissible at trial under the stop and frisk statute. In this case, “there is nothing in the officer’s testimony given at the time of the hearing upon the motion to suppress which would show that he had probable cause to believe that the appellant was armed with a dangerous weapon or that his safety was in danger”. Furthermore, the act of approaching people on the street and having them look into a brown paper bag is not, by itself, an act reasonably indicating criminal conduct. Therefore, the search was not permissible under the stop and frisk statute.

Consent, then, is the remaining basis for upholding the search and seizure, if it is to be upheld. The question is whether the defendant gave his consent to search the paper bag. Submission to the apparent authority of an officer is not necessarily consent to search and a mere showing of acquiescence without at least tacit consent is not sufficient to prove consent.

A distinction is recognized . . . between submission to the apparent authority of an officer and unqualified consent. Mere acquiescence in a search is not necessarily a waiver of a valid search warrant. Rather, for an occupant to waive his rights, it must clearly appear that he voluntarily permitted or expressly invited or agreed to the search.

Furthermore, the State has the burden of proving consent.

When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that consent was, in fact, freely and voluntarily given (cases cited). This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority.

When the officers asked the appellant to follow them outside and for a look into the bag and appellant silently complied, this was nothing more than submission to the apparent authority of the officer in the absence of any clear and convincing evidence affirmatively showing consent.

The order denying the motion to suppress is REVERSED.

DOWNEY, C. J., and LETTS, J., concur.

      . Brant v. State, 349 So.2d 674 (Fla. 3d DCA 1977).

      . Mobley v. State, 335 So.2d 880 (Fla. 4th DCA 1976).

      . Wilson v. State, 324 So.2d 700 (Fla. 4th DCA 1976).

      . § 901.15(2), Fla.Stat. (1975); Whitley v. State, 349 So.2d 840 (Fla. 2d DCA 1977).

      . § 901.15(2), Fla.stat. (1975); Baker v. State, 316 So.2d 657 (Fla. 1st DCA 1975).

      . § 901.15(6), Fla.stat. (1975); Whitley v. State, supra; Bennett v. State, 344 So.2d 315 (Fla. 1st DCA 1977).

      . § 901.15(5), Fla.stat. (1975); Bennett v. State, supra.

      . Bailey v. State, 319 So.2d 22 (Fla.1975); Tolavera v. State, 186 So.2d 811 (Fla.2d DCA 1966).

        . Mobley v. State, supra.

      . Bailey v. State, supra; Mobley v. State, supra.


author: BOARDMAN, Acting Chief Judge.

text:
    STATE of Florida, Appellant, v. Larry Dean HOUSER and Douglas Lee Kessler, Appellees.
    No. 78-900.
    District Court of Appeal of Florida, Second District.
    Nov. 17, 1978.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie King, Asst. Atty. Gen., Tampa, for appellant.
    No appearance for appellees.
   BOARDMAN, Acting Chief Judge.

The state contends that the trial court erred in granting appellees’ motion to suppress. We agree and reverse.

After a hearing, the trial court found the search warrant contained several defects: (1) the residence to be searched was stated as 6815 South Wall Street instead of 6813 South Wall Street which was actually searched; (2) the photographs of the residence were not attached to the warrant as was asserted in the informant’s affidavit; and (3) the statements of the confidential informant were uncorroborated and, therefore, there was no probable cause to justify the issuance of the warrant. The description of the property was recited in the warrant as follows:

ONE STORY CONCRETE BLOCK RE-SIDNECE (sic) BEING WHITE IN COLOR AND HAYING LIGHT BLUE TRIM ON WINDOW LEDGES AND ROOF MOLDING. SAID RESIDENCE HAVING IMITATION BRICK ON LOWER HALF OF WALL FACING EAST. SAID RESIDENCE TO BE SEARCHED HAVING AN OPEN CARPORT ON SOUTH SIDE OF STRUCTURE, AND SUPPORTED BY WHITE BEAMS. THAT SAID BEAM LOCATED ON SOUTHEAST CORNER OF SAID RESIDENCE HAVING NUMERALS 6815, BLACK IN COLOR AND AFFIXED IN A VERTICAL POSITION. ABOVE DESCRIBED RESIDENCE HAS A FOUR FOOT CHAIN LINK FENCE SURROUNDING SAID PROPERTY.
MORE SPECIFICALLY, THE RESIDENCE TO BE SEARCHED HAVING AN ADDRESS OF 6815 SOUTH WALL STREET, TAMPA, HILLSBOROUGH COUNTY, FLORIDA, AND BEING THE FOURTH RESIDENCE ON THE WEST SIDE OF SOUTH WALL STREET, NORTH OF PRESCOTT AVENUE.

It is conceded that the address is incorrect. Nevertheless, we believe that this mistake does not render the search warrant invalid. The description of the residence was sufficient to lead and indeed did lead the officers directly to the house to be searched. See State v. Gallo, 279 So.2d 71 (Fla.2d DCA 1973). The same reasoning can be applied to the absence of the photographs. In light of the specific description of the residence contained in the warrant, they would be mere surplusage.

In State v. Wolff, 310 So.2d 729 (Fla.1975) it was held that where the warrant contains information showing reliability of the confidential informant, his testimony standing alone can provide sufficient probable cause to uphold the validity of the search warrant. Since in this case the warrant did contain information which showed reliability of the confidential informant there was sufficient probable cause to issue the warrant.

Accordingly, the case is remanded to the trial court for further proceedings consistent with this opinion.

REVERSED and REMANDED.

OTT and DANAHY, JJ., concur.


author: SCHEB, Judge.

text:
    MASONS CONCRETE OF CRYSTAL RIVER, INC., a Florida Corporation, Appellant, v. CORBIN WELL PUMP & SUPPLY, INC., a Florida Corporation, Appellee.
    No. 78-1060.
    District Court of Appeal of Florida, Second District.
    Nov. 17, 1978.

      Fred J. Krim of Savage, Krim, Simons & Fuller, Ocala, for appellant.
    John F. Russell, Homosassa Springs, for appellee.
   SCHEB, Judge.

Appellant/defendant Masons moved under Fla.R.Civ.P. 1.540(b) to set aside a default entered against it in a suit in equity filed by appellee/plaintiff Corbin. The default was imposed by the trial court as a sanction for Masons’ failure to comply with one of the provisions of a pretrial order. The trial court denied relief and Masons appeals. We reverse.

In November 1977 Corbin filed suit to quiet title to certain real property in Citrus County. On March 15, 1978, after Masons filed its answer, the trial judge issued an order setting the cause for pretrial conference on May 1. Paragraph 2 of the order said:

Defendant shall have someone, with the authority to settle up to the amount of Plaintiff’s last demand, available in the waiting room of the Circuit Judge’s Chambers for consultation with their attorney immediately prior to and during the pre-trial conference, but shall not be present or participate at such conference. Plaintiff shall have someone with authority to settle down to the amount of Defendant’s last offer, available in the waiting room of the Circuit Judge’s Chambers for consultation with their attorney immediately prior to and during the pre-trial conference, but shall not be present or participate at such conference.

Paragraph 9 read:

That failure of any party or counsel to strictly adhere to this Order shall be grounds for this Court to dismiss the case or strike the pleadings or take such action as justice requires.

At the pretrial conference no representative on behalf of Masons was present to discuss settlement as required by Paragraph 2. However, Masons otherwise complied with the pretrial order.

On May 15 the trial court issued an order sua sponte striking Masons’ answer and entering a default against it for failure to comply with the pretrial order. Masons moved to set aside the default, but the court refused to do so.

Preliminarily, we have some doubts as to whether a directive such as the one contained in Paragraph 2 of the pretrial order is appropriate in a suit in equity where, as here, no money damages are sought. But, even assuming arguendo that such a directive was proper in this case, failure to comply with it did not warrant a sanction as severe as the one imposed by the trial court.

As we have stated before, when a party fails to comply with a pretrial order “the sanction imposed must be commensurate with the offense.” Travelers Insurance Co. v. Rodriquez, 357 So.2d 464, 465 (Fla. 2d DCA 1978). In Hart v. Weaver, 364 So.2d 524, at 525 (Fla.2d DCA 1978) we similarly said:

The imposition of the most severe sanctions contemplated by the rules should be reserved for those occasions where the violation is flagrant, persistent or willful or otherwise aggravated. There are many alternatives available to the trial court in securing proper respect for and compliance with its orders; i. e., imposition of costs or attorney’s fees or other demonstrable damages to the opposite party.

Applying this rationale to the instant case, we are constrained to hold that the trial court abused its discretion in striking Masons’ answer and entering a default against it.

Counsel for Masons acknowledged at the hearing on its motion to set aside the default that he was aware of the directive contained in Paragraph 2. However, he argued (and we think quite plausibly) that he thought it unnecessary to have someone present at the pretrial conference to discuss settlement offers since there had been no negotiations between the parties. Though counsel may not have been completely justified in making this assumption, we cannot conclude that his behavior was of such a “flagrant, persistent or willful” nature as to have furnished a basis for the court to strike his client’s answer and enter a default against it. This is especially true since there was no showing that Corbin was prejudiced in any way by Masons’ failure to comply with Paragraph 2. As was said by our supreme court in Beasley v. Girten, 61 So.2d 179, 180-81 (Fla.1952):

The court unquestionably has power to discipline counsel for refusal or failure to meet the requirements of the rule. Such refusal may warrant a citation for contempt or a lesser degree of punishment, but it is our view that the major punishment for such delicts should ordinarily be imposed on counsel rather than on the litigant. Dismissal “with prejudice” in effect disposes of the case, not for any dereliction on the part of the litigant, but on the part of his counsel.

See also Travelers Insurance Co. v. Rodriguez, supra, at 465.

Accordingly, the order refusing to set aside the default is reversed, and the cause is remanded for further proceedings consistent with this opinion.

GRIMES, C. J., and OTT, J., concur.


text:
    William Lee WILLIAMS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. LL-56.
    District Court of Appeal of Florida, First District.
    Nov. 21, 1978.
    Rehearing Denied Dec. 20, 1978.
    William Lee Williams, Jr., in pro per., for appellant.
    No appearance for appellee.
   PER CURIAM.

An appeal from a denial of a motion for post-conviction relief under Rule 3.850, Fla. R.Crim.P. The order of the trial court stated that all issues raised in the motion could have been and were raised on direct appeal. We AFFIRM. Ashley v. State, 350 So.2d 839 (Fla. 1st DCA 1977).

BOYER, Acting C. J., and MILLS and BOOTH, JJ., concur.