author: PEARSON, Judge. HENDRY, Judge,

text:
    CITY OF NORTH MIAMI BEACH, Appellant, v. EASTERN SHORES SALES COMPANY, Appellee.
    No. 75-1898.
    District Court of Appeal of Florida, Third District.
    Jan. 25, 1977.
    Rehearing Denied Feb. 10, 1977.
    Joseph Nazzaro, City Atty., North Miami Beach, for appellant.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and J. Frost Walker, III, Miami, for appellee.
    Before HENDRY, C. J., and PEARSON and NATHAN, JJ.
   PEARSON, Judge.

This appeal presents a question of whether the City of North Miami Beach is bound by the terms of an agreement made in 1956 by which the City agreed to annex certain lands now owned by the appellee and, in consideration for the annexation, agreed not to levy ad valorem taxes against any of said lands until, among other conditions, “. . . such time as buildings have been constructed on such property or revenue producing improvements have been placed upon said property.” Two other points must be dealt with, one of which raises the question of whether the tax assessor for Dade County was a necessary party in the suit below and the other is whether the City is estopped to seek a holding of the courts that the agreement is unlawful.

On December 31,1956, the appellant, City of North Miami Beach, and the predecessors in interest of the appellee, Eastern Shores Sales Company, entered into an agreement to annex and incorporate into the City certain lands, a portion of which is now owned by the appellee. In consideration of the annexation, the City agreed to provide police, fire, water, sewer and many other municipal services for the lands, most of which services have been provided during the last 19 years.

In addition, as part of the agreement, the appellant further agreed not to levy ad valorem taxes against any of said lands until “. . . such time as buildings have been constructed on said property or revenue producing improvements have been placed upon said property,” including “. parking purposes in connection with customer parking facilities connected with any of the business structures . . . ” The land was duly annexed to the City of North Miami Beach pursuant to Chapter 30111, Laws of Florida 1955.

The method of annexation and terms of the aforementioned agreement were approved by the Dade County Circuit Court in a judgment dated March 28,1957. Both the City and the property owner asked that the court declare the agreement to be constitutional, but several intervenors presented defenses, apparently arguing that it was not constitutional. The judgment held the agreement valid and enforceable.

On April 9, 1957, the appellant, by Ordinance No. 683, formally adopted and approved the agreement and the terms and conditions thereof.

The agreement was enforced by the circuit court in June of 1965 when a dispute arose concerning the application of the agreement to a portion of the property. The court held that the City was, at that time, in technical contempt of court for violation of the court’s judgment of March 28, 1957.

The remaining undeveloped portion of the land was placed on the tax rolls of the City of North Miami Beach by the Metropolitan Dade County Tax Assessor for the year 1973 and the ad valorem property Tax was made retroactive to the year 1970. Thereafter, the appellee, Eastern Shores Sales Company, intervened in the subject litigation with a Petition for Order Permitting Intervention, for Rule to Show Cause, and for Further Relief, the essence of which was a request that the City be prevented from violating the terms of the annexation agreement. At the request of Eastern Shores, the court entered an order on January 3, 1974, joining R. K. Overstreet, Dade County Tax Collector, as additional party plaintiff in the cause.

After a full trial, the judge made a determination contained in his “Final Order” of March 25, 1975, in which the City of North Miami Beach was held in technical contempt for violating the terms of the annexation agreement. The court found that no buildings or revenue-producing improvements within the meaning of the annexation agreement had been constructed upon the subject property. Furthermore, the court found that no annual application for exemption was necessary to obtain the benefits of the annexation agreement and that inasmuch as the judgment of March 28, 1957, held the terms of the annexation agreement to be valid and proper under the constitutions of the State of Florida and the United States of America, that the City was now estopped from asserting the unconstitutionality of said agreement which it had asked the court to uphold at the inception of this litigation.

We consider first appellant’s point which urges that the judgment appealed must be reversed because the appellee failed to include the tax assessor as a party to his petition for intervention, which, in effect, was a suit contesting the assessment already made on his property. Section 194.-181(2), Florida Statutes (1971) provides: “In any case contesting the assessment of any tax on property, the assessor of such tax shall be the party defendant.” The City responds that the petition for intervention had nothing to do with assessments but that the purpose and prayer of the action was to enforce a prior judgment of the Circuit Court in and for Dade County, Florida. We have examined the prayers contained in the pleading of the appellee, which is entitled “Petition for Order Permitting Intervention, for Rule to Show Cause, and for Further Relief” and find that the prayers contained therein relate exclusively to the enforcement by contempt or restraining order of the prior judgment of the circuit court. We conclude, therefore, that it was not necessary to join as a party the tax assessor, because the matter presented by the petition for intervention is not “contesting the assessment of any tax on property.”

We turn now to the question of whether the 1956 agreement not to tax the property now owned by appellee is an enforceable agreement. It has been held that the public policy against allowing cities to contract away their power to tax is of constitutional proportions and that such a limitation upon the taxing power of a city is so horrendous that an uncontested approval of it may not perpetually bind the city and the other taxpayers. See Watson v. City of Hallandale, 193 So.2d 195 (Fla.4th DCA 1966).

In the cited case, a property owner appealed an order dismissing his complaint, which sought to enforce an agreement that had been approved by a consent decree of the circuit court and which would bind the city to a promise made at the time of annexation of the property owner’s land not to increase the taxes on the land “ ‘until such time as the co-relators or their successors in title shall improve the property above described.’ ” The judgment appealed in that case dismissed the landowner’s petition to enforce a former agreement and consent decree. The District Court of Appeal, Fourth District, affirmed upon a holding that the trial court’s determination that the former decree was invalid and not enforceable was correct.

We think that this holding of the Florida courts is in accordance with the general holding of other states which have considered the problem. See 28 A.L.R.2d 1425 at 1428. We, therefore, hold that the trial court incorrectly determined that the prior judgment was valid.

Even though the prior judgment may be held to be invalid, the question remains whether the City may now seek the aid of a court in securing relief from its agreement and the prior judgment. Appel-lee urges that the City is now estopped, upon equitable grounds, to declare invalid its own agreement and an ordinance approving the agreement and the judgment it sought in the circuit court. It is urged that the City cannot sit idly by for 19 years accepting the benefits of its agreement and the holding of the circuit court, while 95% of the property in the division which was annexed was improved and developed and placed on he City tax rolls, and then unilaterally declare the agreement, its ordinance, and the judgment, invalid and then seek the aid of the circuit court in avoiding the effects of its agreement and its own pleadings in the circuit court. Appellee cites 6 Fla.Jur. “Constitutional Law” § 66 (Estop-pel), for the proposition that although it has been stated as a general rule that no estop-pel can arise under an unconstitutional act, it is a well recognized doctrine that parties may so conduct themselves with respect to the subject of unconstitutional legislation that they are estopped thereafter to deny its binding character. While this statement is not supported by a citation of a decided case, appellee cites McNulty v. Blackburn, 42 So.2d 445 (Fla.1949), where the court held that one who accepted reduced monthly payments under a revised pension law for more than six and a half years without complaint was held not to be entitled to challenge the constitutionality of the revised statute.

On the other hand, appellant urges that the principle that a municipality has no authority to exempt an individual or concern from all taxes as an inducement to advantages to the city is so important to the inherent scheme of taxation that a city itself cannot be said to be estopped from asserting this principle. In this connection, we are referred to the holding of the Supreme Court of Florida in St. Lucie Estates, Inc. v. Ashley, 105 Fla. 534, 141 So. 738 (1932), where the court held:

“The power of taxation inheres in the state as an attribute of sovereignty. The power to tax, to exempt from taxation, to remit taxes wrongfully collected, or to compromise taxes, may be delegated to a municipality, but none of these powers are inherent in it. The power to tax does not include the power to exempt, remit, or compromise taxes, as it is competent to confer such powers only for designated purposes such as those enumerated in section 1, article 9 [now Article 7], of the Constitution.”

The court went on to state that under Article 9 (now Article 7):

. . [T]he Legislature may empower incorporated cities and towns to assess and collect taxes for municipal purposes under principles established for state taxation which means uniformity, equality, just valuation, and similarity of treatment of the subjects of taxation. Any general power to make exemptions would be invalid because in derogation of uniformity and equality.”

We think that under the pronouncement of the Supreme Court it is clear that a vital element in the imposition of taxes is based on the right of the citizens of the State to fair and equal taxation. See Dundee Corporation v. Lee, 156 Fla. 699, 24 So.2d 234 (1946). We therefore hold that the appellant City was not estopped to assert the invalidity of the 1956 judgment which would have, pursuant to the City’s agreement, barred the assessment of taxes on appellee’s property until such time as appel-lee saw fit to improve it. It is true that the City has received benefits under its agreement, but it is also true that the property owner has received 19 years of non-taxation on his unimproved property and this is a considerable benefit.

The property owner suggests that if the provision against further taxation of his property is eliminated from the agreement and the judgment, it would become incumbent upon the courts to remove his property from the City inasmuch as the annexation was contingent upon his receiving these benefits. It appears from the record that originally the property owner whose lands were annexed owned some 600 acres and that the remaining portion of the property involved is a 28 acre tract of undeveloped property. Because the annexation was for the entire tract and there is nothing in this record to show that the relationship of the undeveloped tract to the City limits is such that it could be properly excluded from the City limits, we hold that it would be improper to require the exclusion of this 28 acres at this time. This holding in no way bars the property owner from seeking relief by the exclusion of his land from the City limits under any usual method for obtaining such relief.

We have considered other points raised by the appellant and find that they do not present reversible error. Having found that the judgment entered is contrary to public policy, we reverse the judgment and remand this cause for further proceedings not inconsistent with the views herein expressed.

Reversed and remanded.

HENDRY, Judge,

dissenting.

I must dissent. The city has for nineteen years benefited from this contract which it induced the property owners to enter into; moreover, it took legal action to have the contract and ordinances relating thereto approved and declared constitutional by the circuit court. I would hold that the city’s affirmative action with respect to the procurement of the contract and the court’s decree of approval, together with its acceptance of the benefits therefrom for the past nineteen years, has estopped it from raising the constitutionality of its acts. I would affirm.

      . Note that Section 194.181(2) was amended, effective May 28, 1973.


source: Caselaw Access Project

author: HENDRY, Chief Judge.

license: Public Domain

text:
    Jack YANKS and Ruth Yanks, d/b/a JRY Properties III, Appellants, v. TRULY NOLEN, INC., Appellee.
    No. 75-1949.
    District Court of Appeal of Florida, Third District.
    Jan. 25, 1977.
    Rehearing Denied Feb. 16, 1977.

      Rothenberg, Kogan, Kornblum & Benjamin, North Miami Beach, for appellants.
    Gus Efthimiou, Jr., Miami, for appellee.
    Before HENDRY, C. J., and PEARSON and HAVERFIELD, JJ.
   HENDRY, Chief Judge.

Appellants-lessors were the plaintiffs below and appellee-lessee was the defendant. This appeal is taken from a final judgment entered by the lower court which (1) rescinded a business lease entered into between appellants and appellee, (2) awarded appellee damages on its counterclaim against appellants for the breach of said lease and (3) awarded appellants damages on their claim against appellee for the reasonable rental value of appellants’ premises during appellee’s occupancy. The amounts awarded the respective parties for damages were of equal value and in effect, created a pecuniary “draw.”

On May 29, 1974, the parties entered into a lease agreement which conditioned the payment of rent by appellee on the completion of certain structural changes in the building to be rented. In part, the lease provided that:

“The lessor shall complete the improvements on the demised premises including the said changes required hereunder on or before June 17, 1974. The terms of this Lease shall not commence nor shall the Tenant be liable for rent until the improvements have been completed and the certificates of occupancy delivered to Tenant by Landlord.”

The due date passed without the agreed upon completion of improvements having been made or the certificate of occupancy furnished. Nevertheless and notwithstanding the incompletion, appellee went into partial occupancy of the warehouse portion of the property on July 3, 1974. Appellee, however, could not at this time occupy the office portion of the premises.

On October 3, 1974, the City of Miami notified appellants that there were building violations in the construction of said building by virtue of appellants’ failure to construct a firewall separating the office area from the warehouse. Appellants, claiming that the necessity of a firewall was brought about only because of the particular use to which appellee utilized the premises (said use allegedly being unknown to appellants at the time of the execution of said lease) refused to construct the wall. Under protest and in mitigation of any damages arising from a loss of business, appellee paid for the construction of said firewall.

On December 2, 1974, appellants filed a two count complaint, seeking both the rent due under the lease and the reasonable rental value of the premises. In response to the complaint, appellee filed its answer and counterclaim for both rescission of the business lease and damages.

On June 30,1975, approximately one year after it took possession of the warehouse, appellee vacated the premises. But for the first and last months rent paid at the time of execution of the lease, no rent had been paid by appellee to appellants. During ap-pellee’s occupancy, continual protests and demands were addressed to appellants concerning both the improvements to have been completed by virtue of the lease and the building of the firewall, necessitated by the building and fire safety code.

On September 30,1975, after taking testimony and receiving other evidence, the chancellor entered his final judgment, rescinding and cancelling the lease and awarding appellee damages incurred by appellants’ failure to complete the improvements. The court, however, in Solomon-like fashion, additionally awarded appellants the reasonable rental value of the building — said amount, in the court’s opinion, being of equal value to appellee’s damages.

From the above final judgment, appellants take this appeal.

Appellants raise many points on appeal, however, their basic contentions appear to be twofold. Initially, appellants argue that the chancellor abused his discretion in can-celling and rescinding the lease because ap-pellee failed to utilize this remedy in a timely manner and in fact, remained in possession for approximately one year after the alleged breach occurred.

Secondly, appellants contend that assuming arguendo that a breach in the lease attributable to appellants did in fact occur, by taking possession of the premises, appel-lee waived said breach. As such, appellants argue that any award of damages to appel-lee was error and that appellants were entitled to rent pursuant to the terms of the lease.

In reviewing the above contentions, we will initially address ourselves to appellants’ second point.

Appellants’ second contention is grounded upon much authority and can be classified as a general principle of law. That principle is, that upon possession by a lessee of premises to which a covenant to improve or repair has not been fulfilled on the part of a lessor, the defect is generally waived and rent under the lease is due. See 28 A.L.R.2d 446, Landlord’s Covenant to Repair § 6 (1953). The courts of this state have been in agreement with the above general principle. See Masser v. London Operating Co., 106 Fla. 474, 145 So. 79 (Fla.1932) and City of Miami Beach v. Ellis, 279 So.2d 335 (Fla.3d DCA 1973).

The case sub judice, however, has an additional factor involved which precludes the application of the above principle. This factor, heavily emphasized by appellee in its brief, can best be expressed by the following quotation:

“Of course, where the lease contains an express provision that the repairs are to be made by the lessor prior to the commencement of the term, and that no rent shall be charged until such repairs are made, the lessee is not liable for rent until the repairs are made, notwithstanding he enters into possession.” 49 Am.Jur.2d Landlord and Tenant § 614 (1970).

The previously quoted portion of the business lease entered into by both parties is just such a provision. By its own terms, rent under the lease was not due until such time as appellants timely completed the agreed upon improvements and furnished appellee with a certificate of occupancy.

The agreed upon improvements, however, were not completed on time. In fact, it was appellee, forced by economic pressures, that finally completed said improvements. In addition, the final certificate of occupancy was not issued until March 10, 1975, after the lawsuit had commenced.

Clearly, by its own terms, the lease was not in effect and therefore, it was not error to deny appellants rent under the terms of the lease. Nor was it error to award damages to appellee resulting from appellants’ breach of said lease. See City of Miami Beach v. Ellis, supra.

Despite the failure of the lease to govern the situation, appellee was not entitled to occupy the premises free of charge. In awarding appellants the reasonable rental value of the property for the period of time said property was occupied by appel-lee, we believe the court to have acted correctly. See Section 83.07, Florida Statutes (1973), Action for use and occupation.

This brings us to appellants’ first point which we now consider. Appellants’ basic contention here is that the equitable action of rescission must be utilized promptly and without delay. Because appellee had been in possession nearly one year before vacating the premises, appellants argue that (1) the lease was ratified by implication and (2) the remedy of rescission improper. Thus, appellants conclude, the chancellor abused his discretion in granting said remedy.

We, however, believe that the chancellor did not abuse his discretion for the following reasons. Though we agree with the general rule that rescission must be sought promptly, our Supreme Court has held that a delay which is not inequitable will not cut off the right to rescind an agreement, especially a delay which gives an adverse party opportunity to perform his part of the bargain. Berneeker v. Berneeker, 60 So.2d 399 (Fla.1952). This is especially true where the delay causes no prejudice or disadvantage. Southern Colonization Co. v. Derfler, 73 Fla. 924, 75 So. 790 (1917).

Here, the continual protests of appellee and its total refusal to pay rent throughout its period of occupancy amply affords us the evidence to hold that appellee did not impliedly ratify said lease. In addition, it appears that any delay in seeking the remedy was occasioned by appellee’s attempts to get appellants to perform their part of the agreement. Bernecker, supra. We also note that while appellee remained in possession for one year, appellee’s counterclaim for rescission was filed in response to appellants’ complaint, said complaint being filed five months after appellee initially took possession.

We are therefore of the opinion that where, as here, you have dependent covenants in a lease—i. e., the payment of rent dependent upon the completion of improvements, and the lessor has breached his covenant, the remedy of rescission is a proper one. Zambetti v. Commodores Land Co., 102 Fla. 586, 136 So. 644 (Fla.1931); Mease v. Warm Mineral Springs, Inc., 128 So.2d 174 (Fla.2d DCA 1961).

In order for the remedy of rescission to be granted, however, the parties must be able to be restored to their original positions. Ganaway v. Henderson, 103 So.2d 693 (Fla.1st DCA 1958). The chancellor was of the view that both the damages incurred by appellee and reasonable rental value due appellants were of an equal monetary value. In so ruling, the court more or less returned the parties to the required status quo. Ganaway, supra.

It is the facts of each individual case that must support the remedy of rescission, and after carefully reviewing the record, we believe there to be competent and substantial evidence to support the chancellor’s ruling that rescission was the proper remedy. Sutton v. Cast-Crete Corporation of Florida, 197 So.2d 556 (Fla.2d DCA 1967.)

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

Affirmed.


author: PER CURIAM.

text:
    Lawrence J. SPEIGEL, as personal representative of the Estates of Nereida Garcia, a minor, Deceased, on behalf of Carlos Garcia and Jesus Garcia and the Estates of Nereida Garcia and Ileana Garcia, Deceased, Appellants, v. SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY, a Foreign Corporation authorized to do business in Florida, and Florida Power & Light Company, a Florida Corporation, Appellees.
    No. 75-1958.
    District Court of Appeal of Florida, Third District.
    Jan. 25, 1977.

      Adams, George, Lee & Schulte and David L. Willing, Miami, for appellants.
    Frates, Floyd, Pearson, Stewart, Proenza & Richman and James D. Little, Miami, for appellees.
    Before HENDRY, C. J., and BARKDULL and NATHAN, JJ.
   PER CURIAM.

This is an appeal by plaintiffs from a final summary judgment entered in favor of the defendants in an action wherein the defendants were charged with negligently maintaining a light and telephone pole so near the highway that plaintiffs’ driver was fatally injured when her automobile collided with the pole.

In his summary final judgment, the trial judge set forth the following, in pertinent part:

“ORDERED AND ADJUDGED that a utility company is under no obligation to guard against extraordinary exigencies created when a vehicle leaves the traveled portion of a roadway out of control. Oram v. New Jersey Bell Telephone Company [132 N.J.Super. 491] 334 A.2d 343 (N.J.1975). The uncontradicted evidence in this case clearly shows that the plaintiff vehicle had left the roadway prior to impact with the utility pole involved herein. Summary Final Judgment therefore be and the same hereby is granted in favor of the defendants, and the defendants shall go hence without day.”

After careful consideration of the record on appeal, briefs and arguments of counsel we have concluded that the trial judge was correct in entering the judgment appealed.

Affirmed.


author: PEARSON, Judge.

text:
    Albert ROSS, Appellant, v. Sadie ROSS, Appellee.
    Nos. 76-50, 76-189.
    District Court of Appeal of Florida, Third District.
    Jan. 25, 1977.
    Rehearing Denied Feb. 18, 1977.

      Snyder, Young, Stern, Barrett & Tan-nenbaum and William L. Rogers, North Miami Beach, for appellant.
    Fine, Jacobson, Block, Goldberg & Semet and Mitchell R. Bloomberg, Miami, for ap-pellee.
    Before HENDRY, C. J., PEARSON, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PEARSON, Judge.

We are presented here with an appeal by the petitioner-husband, Albert Ross, in a dissolution of marriage action and a cross-appeal by the respondent-wife, Sadie Ross, in the same action. In the final judgment of dissolution, the trial judge found that the wife was entitled to both lump sum and periodic alimony. Accordingly, he awarded her, as lump sum alimony, the husband’s interest in the home of the parties (a condominium in Aventura, Dade County, Florida) including the personal property and furnishings therein, and provided, as well, that the husband purchase a new automobile for the wife at a cost of between $6,000 and $6,500, with title to be placed in the wife’s name. As periodic alimony, the judge awarded the wife $1,000 per month until her death or remarriage. Also, he awarded to the wife an equal division of all the stocks, bonds and bank accounts of the parties. Further, the New York apartment owned by the parties was to be held by them as tenants in common, the wife was to return to the husband his first wife’s diamond bracelet and flatware and the husband was to pay reasonable attorney’s fees and court costs. The husband has appealed, and the wife cross-appealed, from these provisions.

It is the husband’s position that the trial court abused its discretion by making findings of fact unsupported by the record, unfairly appraising the evidence before it, committing abuses of discretion in entering an award of alimony, costs and attorney’s fees not commensurate with the needs of the wife and the ability of the husband to pay and, finally, in making an award of periodic alimony that would be a charge against the husband’s estate where the husband neither stipulated nor agreed to have his estate so bound, and where the wife was possessed of substantial assets.

The wife’s cross-appeal questions the adequacy of the provisions for periodic alimony in view of her monthly needs and the continuing ability of the husband to provide for her in a manner reasonably commensurate with the standard of living he provided for her during the marriage. In addition, the wife alleges error in the trial court’s providing neither a monetary award of lump sum alimony nor requiring the husband to transfer his interests in the jointly-held stocks and bonds and joint savings account as additional lump sum alimony. Finally, the wife alleges error in the trial court’s ordering her to return to the husband the diamond bracelet and flatware.

The husband and wife are now 69 and 61 years of age respectively. This was the wife’s fourth marriage and the husband’s second. Each party has children by prior marriages and both parties have transferred assets to their own children. The wife, at the time of this present marriage, had assets somewhere between $60,000 and $64,-000. The parties were married in 1963 and maintained a high standard of living throughout their marriage. In 1972, they moved to Florida, taking up residence in a condominium in Aventura. The wife’s assets had dissipated by this time. In 1973, the husband sold two businesses to his sons, receiving promissory notes for $39,000 and $48,500. Up to 1973, the parties had a stable marital relationship. Thereafter, the husband was diagnosed as having cancer and underwent a colostomy operation. The result was a breakdown in the marriage whereby the husband found his wife assuming an attitude of harassment and constant nagging. The wife’s position was one of upset due to her belief that her husband’s assets were being transferred to his sons under the “undue influence” of the latter. To gain some relief, the husband executed a joint will with his wife by which all assets remaining at the death of either party would pass to the other with the survivor dividing the estate among his or her respective children from the former marriages. The wife, as of the date of the will, had divested herself of her solely-owned assets, a fact unknown to the husband at that time.

Ten months later, on March 13, 1975, Albert Ross moved out of the marital home. The next day, his wife, Sadie Ross, left for New York with a $10,000 bearer bond and jewelry that had previously belonged to the husband’s first wife. In New York, she opened a checking account with the proceeds of the bond. At the same time, on March 14, 1975, Albert Ross filed his petition for dissolution of marriage, which prayed for a temporary injunction without notice restraining the wife’s transfer, hy-pothecation or disposition of any assets held in the joint names of the parties. The same day, a temporary restraining order with regard to these assets was issued and was filed the following day. In answering the petition, the wife raised affirmative defenses and counterclaimed for temporary and permanent alimony, both lump sum and periodic, court costs and attorney’s fees, and for the periodic alimony “. . . to be charged against the Husband’s estate in the event he predeceases her.” Thereafter, the husband answered the counterclaim and replied to the affirmative defenses. Discovery was undertaken and pursuant to statements in the wife’s deposition, the husband sought an extension of the temporary restraining order to protect the funds remaining from the bearer bond. The court deferred ruling on the matter until the final hearing, which took place on November 26, 1975. At that final hearing, the court entered its final judgment of dissolution, made various awards as discussed above and dissolved the temporary restraining order, holding that because the wife has been without funds to live on since the husband moved out of the marital home, the proceeds from the $10,000 bearer bond were properly used by her for living expenses. The total of assets accruing to the wife from the date of the final judgment was a total of some $129,000. The final judgment, so entered, resulted in this appeal by the husband.

We are presented a total of six points addressed to the final judgment by the appeal and the cross-appeal. All of the points are, in essence, arguments either that the trial court abused its discretion in the amount of specified awards or that the evidence does not support that particular award. As to the points urging an abuse of discretion, we must be mindful of the holding of the Supreme Court of Florida in Shaw v. Shaw, 334 So.2d 13, 16 (Fla.1976), where the court, in quashing this court’s opinion, said:

* * * * * if!
“It is not the function of the appellate court to substitute its judgment for that of the trial court through re-evaluation of the testimony and evidence from the record on appeal before it. The test, as pointed out in Westerman, [ Westerman v. Shell’s City, Inc., 265 So.2d 43 (Fla.1972) ] supra, is whether the judgment of the trial court is supported by competent evidence. Subject to the appellate court’s right to reject ‘inherently incredible and improbable testimony or evidence,’ it is not the prerogative of an appellate court, upon a de novo consideration of the record, to substitute its judgment for that of the trial court.”

We have, therefore, reviewed this record to determine whether the various awards are “supported by competent evidence.” We hold that the awards which (1) ordered the husband (a) to transfer as lump sum alimony his interest in the Aventura condominium and the furnishings, and (b) to purchase a new car for the wife costing between $6,000 and $6,500 with the title to be placed in her name, (2) ordered jointly held stocks and bonds and bank accounts of the parties be equally divided, (3) ordered that title to the New York apartment remain in both parties’ names as tenants in common, (4) ordered husband to pay court cost, and (5) ordered the wife to return to the husband a diamond bracelet (wristwatch) and flatware are all supported by evidence which, if believed by the trial judge, is a sufficient support for the various awards and the amount awarded.

In two particulars, however, we find that the trial judge made awards which are not supported by the record. First, the award in the final judgment of attorney’s fees to the wife is not supported by the facts of the financial positions of the parties. The wife’s assets as of the final hearing were demonstrated to be as follows: (a) $38,500 representing her 50% interest in the joint stocks and bonds, (b) her 50% interest of $14,000 in the joint savings account and certificates of deposit, (c) the $4,000 equity (at 50%) of the Aventura condominium; (d) $5,000 representing her joint interest in the furniture and furnishings in the Aventura condominium, (e) $39,000 representing the $50 per week received by the wife from the estate of Harold Klahr multiplied by the wife’s life expectancy according to the mortality table read into evidence, (f) a $10,000 certificate of deposit in the name of Sadie Ross in trust for her three children at the Financial Federal Savings & Loan Association, (g) approximately $15,000 in the Jamaica Savings Bank in the wife’s name in trust for her son Leonard Klahr, (h) miscellaneous savings accounts at Financial Federal Savings & Loan Association in the wife’s name in trust for her grandchildren, totaling approximately $2,100, and (i) the $2,070.05 balance in the wife’s checking account in the Chase Manhattan Bank in New York. The foregoing assets of the wife total $129,670.05. The wife asserts that, properly viewed, these items total only $90,000. The purpose of the allowance of attorney’s fees in a final judgment dissolving a marriage is to preclude the possibility that one party, because of lesser financial resources, will be put in a disadvantageous position during the litigation. Mertz v. Mertz, 287 So.2d 691 (Fla.2d DCA 1973); cf. McFarlin v. McFarlin, 75 So.2d 580 (Fla.1954). In the instant case, where substantial wealth is possessed by each party, there is no need to require one party to pay the attorney’s fee for the other. We, therefore, reverse the award of attorney’s fees to the wife.

A second point on which the evidence does not support the judgment is the provision that the periodic alimony is to become a charge against the husband’s estate in event the husband shall predecease the wife. This provision is not spelled out in the judgment and may not have been intended by the trial judge but both parties argue that this is the result of the language of the judgment. Such an award is approved by the courts only when special circumstances enter into the settlement of the financial affairs upon the dissolution of a marriage. See First National Bank of St. Petersburg v. Ford, 283 So.2d 342 (Fla.1973); see also Plant v. Plant, 320 So.2d 455 (Fla.3d DCA 1975); and Aldrich v. Aldrich, 163 So.2d 276 (Fla.1964). Alimony is for the support of a former marriage partner and is in the place and stead of support that the partner would have received in marriage. See Simon v. Simon, 123 So.2d 41 (Fla.2d DCA 1960). Here, there is no evi-dentiary basis in the record for the continuation of support for the wife after the death of the husband. Accordingly, the judgment should be amended to provide that periodic alimony is to be paid only during the life of the husband.

In all other provisions except as provided in this opinion, the judgment is affirmed.

Affirmed in part, reversed in part and remanded for the entry of an amended judgment in conformity with the views expressed herein.

      . A notice of appeal was timely filed following the final judgment. However, a subsequent timely petition for rehearing by the wife prompted a second timely notice by the husband in order to protect his appeal. The two appeals were subsequently consolidated.


text:
    Charlie THOMPSON, Appellant, v. WARD ENTERPRISES, d/b/a, Big W Supermarket and Florida Farm Bureau Insurance Company, Appellees.
    No. 76-73.
    District Court of Appeal of Florida, Third District.
    Jan. 25, 1977.
    Rehearing Denied Feb. 10, 1977.
    Bradford, Williams, McKay, Kimbrell, Hamann & Jennings and Thomas E. Scott, Jr., Miami, for appellant.
    Fowler, White, Burnett, Hurley, Banick & Knight and A. Blackwell Stiegletz, Miami, for appellees.
    Before HENDRY, C. J., PEARSON, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PEARSON, Judge.

The plaintiff, a customer of a grocery' store, alleged that the store owner/operator was negligent in failing to provide reasonably safe premises. The plaintiff appeals from a final judgment entered pursuant to a directed verdict for the defendants. The single point on appeal presents the question of whether the plaintiff proved a prima facie case. The question centers upon the duty involved. We reverse upon a holding that the defendant owed the plaintiff a duty to exercise sufficient care to maintain the store premises, including the parking area, in a reasonably safe condition for the use of the store’s customers.

Trial testimony revealed the following: Ward Enterprises, doing business as Big W Supermarket, maintains and operates a food store located at 237 S. W. Sixth Avenue, Homestead, Florida. The store has been in operation since 1965. At the time of the plaintiff’s injury, there was one en-tranceway to the store which faces southwest. This area was open and unprotected with no form of physical barrier separating customers from automobiles. The sidewalk was level with the asphalt of the road surface. There was no raised curb. There was a “No Parking” sign immediately in front of the entranceway and the owner, of the store testified that most of the time the store would leave its truck parked at the entranceway. There were raised cement bumper stops on the sides of the building, but not in front of the building. On December 30, 1972, Charlie Thompson went to the store to purchase groceries. The store operated a grocery delivery truck for the benefit of its customers. Plaintiff exited the store and stood two or three feet from the front doors at the entranceway waiting for the defendant’s delivery truck to pick up his groceries and deliver them to his home. Several minutes passed. An automobile which was parked perpendicular to the entranceway started forward and struck the plaintiff’s grocery cart and drove the plaintiff back through the front door into the store, causing him injury. The automobile started forward without warning and .traveled four or five feet before striking the cart and the building.

Thompson called Courtland Collier, Assistant Professor of Civil Engineering, University of Florida, as an expert witness. Professor Collier testified that he had conducted studies on barriers next to curbs in parking lots, traffic flow, and the design of parking lots. In relevant part, Professor Collier testified as to the following: (1) a physical description of the parking area, (2) the predictability of accidents occurring in areas where automobiles and pedestrians mix, (3) types of physical protection which could be made available to protect pedestrians in areas where automobiles and pedestrians mix, and (4) the amount of protection such devices would afford.

The burden on an appellant in an appeal from a final judgment entered upon a directed verdict is to show that there is a proper view of the evidence under which the jury could have found for the appellant. In making such a determination, all reasonable inferences will be drawn in favor of the party against whom the judgment was entered. See Air Travel Associates, Inc. v. Eastern Air Lines, Inc., 273 So.2d 3 (Fla.3d DCA 1973). Further, appellee contends that this case is governed by the holding in Schatz v. 7-Eleven, Inc., 128 So.2d 901 (Fla.lst DCA 1961). We hold that Schatz v. 7-Eleven, Inc., is not controlling in the present case because in that case the breach of duty claimed by the business invitee was that the store failed either so to regulate the parking of motor vehicles in front of the store in such a manner that they would not be headed directly toward the interior of the store when in a parked position or, in the alternative, to provide an adequate curb barrier or wall. It was held in that case that where an automobile started forward and injured the plaintiff, who was inside the establishment, and where the automobile was parked as permitted, facing in toward the store, that the occurrence fell within the category of unusual and extraordinary and was, therefore, unforeseeable in contemplation of the law. Since the rendition of the opinion in Schatz, the courts of Florida have rendered several opinions holding that a jury question on foreseeability is presented under circumstances similar to the present case. See Johnson v. Hatoum, 239 So.2d 22 (Fla.4th DCA 1970). See also Carter v. Parker, 183 So.2d 3 (Fla.2d DCA 1966); and 62 Am.Jur.2d Premises Liability § 123.

In the present case, there was no curb nor was the plaintiff afforded the protection of the building inasmuch as he was standing outside of the supermarket on the sidewalk waiting for defendant’s delivery truck to pick up his groceries. This court has previously held that the duty of the operator of a store is to provide a reasonably safe method of ingress and egress to the premises. See Shields v. Food Fair Stores of Florida, 106 So.2d 90 (Fla.3d DCA 1958).

We, therefore, hold that the plaintiff presented a prima facie case, and that the defendant store owner/operator did have a duty to use reasonable care to provide a proper place for ingress and egress into the store.

Reversed and remanded.

      . See annotation at 45 A.L.R.3d 1428.


text:
    Edward LEEDS, Appellant, v. Roberto GAMBACH and Leon Breziner, Appellees.
    No. 76-169.
    District Court of Appeal of Florida, Third District.
    Jan. 25, 1977.
    Ginsberg & Goldman, North Miami Beach, for appellant.
    Shapiro, Fried, Weil & Scheer, Miami Beach, for appellees.
    Before HAVERFIELD and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See Kislak v. Kreedian, 95 So.2d 510 (Fla.1957); Wadlington v. Edwards, 92 So.2d 629 (Fla.1957).


text:
    Hoover C. JACKSON, Appellant, v. J. L. LESTER, M. D., Appellee.
    No. 76-335.
    District Court of Appeal of Florida, Third District.
    Jan. 25, 1977.
    Joseph T. Robinson, Miami, for appellant.
    Preddy, Haddad, Kutner, Hardy & Josephs and Michael J. Parenti, III, Miami, for appellee.
    Before HENDRY, C. J., NATHAN, J., and DREW, E. HARRIS (Ret.), Associate Judge.
   PER CURIAM.

This appeal questions the correctness of a summary final judgment entered in favor of appellee in a malpractice action arising out of a doctor-patient relationship. Appellant’s second point charges that the court erred in denying appellant’s motion to transfer the cause from Monroe County to Dade County contrary to a signed stipulation by the parties.

Upon careful consideration of the record on appeal, briefs and arguments of counsel we have concluded that the appellee-de-fendant has conclusively established the absence of a genuine issue of material fact and that he was entitled to a summary judgment as a matter of law.

We further hold that the trial judge did not abuse his discretion in refusing to transfer the cause to Dade County.

Affirmed.


text:
    Roy McDUFFIE, Appellant, v. STATE of Florida, Appellee.
    No. 76-460.
    District Court of Appeal of Florida, Second District.
    Jan. 26, 1977.
    Jack 0. Johnson, Public Defender, and Thomas A. Pobjecky, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant was convicted of breaking and entering and grand larceny in violation of Sections 810.01 and 811.021, Florida Statutes (1973). On this appeal, he contends the court erred in restricting his cross-examination of the chief prosecution witness. We agree and reverse.

The State’s case was based chiefly upon the testimony of one William Guthrie, who testified he saw the defendant leaving the victim’s home and carrying away the victim’s personal property.

On cross-examination, defense counsel was able to elicit that the defendant owed Guthrie some money, but was not able to further explore this issue. In particular, defense counsel was not allowed to inquire whether Guthrie had once threatened to “come up with something” to get the defendant put in jail unless the defendant paid off the debt. Counsel stated to the court, outside the presence of the jury, that he had reason to believe that Guthrie had made such a statement. The court ruled that such testimony would be improper as being beyond the scope of direct examination and that defense counsel would have to establish these facts in his own case. This would, of course, affect the order of closing argument, and the defense did not choose to present any testimony.

Bias or prejudice of a witness has an important bearing on his credibility and evidence showing such bias is relevant. Webb v. State, 336 So.2d 416 (Fla.App.2d DCA 1976). It is proper to elicit facts tending to show bias or prejudice of a witness in cross-examination of that witness. Davis v. Ivey, 93 Fla. 387, 112 So. 264 (1927). This becomes an important right to a defendant in a criminal case where the jury must know of any improper motives of a prosecuting witness in determining that witness’ credibility. See Roberts v. State, 164 So.2d 817 (Fla.1964); Stewart v. State, 58 Fla. 97, 50 So. 642 (1909); Kirkland v. State, 185 So.2d 5 (Fla.App.2d DCA 1966); Stradtman v. State, 334 So.2d 100 (Fla.App.3d DCA 1976); Simmons v. Wainwright, 271 So.2d 464 (Fla.App. 1st DCA 1973). It is a fundamental principle that matters tending to show bias or prejudice in a criminal prosecution may be inquired about even when they were not mentioned in direct examination. Wallace v. State, 41 Fla. 547, 26 So. 713 (1899). Cf. Gard, Florida Evidence, P. 747 (1967); 81 Am.Jur.2d, Witnesses, Section 548.

Under the present circumstances, we do not find that the limitations on cross-examination were harmless. While the jury did learn that the defendant owed the witness some money, we think elaboration was essential, particularly in light of the alleged threat to send the defendant to jail. See Webb v. State, supra. Guthrie’s testimony was not only uncorroborated, but was crucial to the State in obtaining a conviction. We are, therefore, compelled to reverse for a new trial. Webb v. State, supra; Stradtman v. State, supra; Roti v. State, 334 So.2d 146 (Fla.App.2d DCA 1976).

Accordingly, the judgments and sentences are reversed and the cause is remanded for a new trial.

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

      . While the court stated it would allow the defendant to call Guthrie as his own witness to establish these matters, defendant in so doing would have been wrongfully deprived of the concluding closing argument, and this alone may constitute reversible error. See Lyttle v. State, 320 So.2d 424 (Fla.App.2d DCA 1975).


author: MILLS, Judge.

text:
    Edward E. BRYANT, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. AA-440.
    District Court of Appeal of Florida, First District.
    Jan. 28, 1977.
    Richard W. Ervin, III, Public Defender, for appellant.

      Robert L. Shevin, Atty. Gen., Raymond L. Marky, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

A jury found Bryant guilty of knowingly obtaining goods, services, credit or money from U. D. Floyd, by means of an invalid, fictitious, forged, counterfeit, stolen or unlawfully obtained indicia of ownership of a motor vehicle, to wit: a manufacturer’s statement of origin of mobile home as charged in the information.

The sole issue raised by this appeal is whether the trial court erred in denying Bryant’s motion for judgment of acquittal based on the ground that the evidence was insufficient as a matter of law to go before the jury on the offense charged.

On 22 January 1975, Bryant sold to Floyd a mobile home for $3,850.00. Floyd was not present when the mobile home was delivered to a lot in his mobile home park, but when he returned to his office that evening, he found the manufacturer’s statement of origin (certificate) on his desk. The certificate stated that the mobile home was a 1974 Ridgewood, serial No. 25230. The front of the document indicated that it had been transferred from Ridgewood Mobile Homes to Valley Mobile Homes Sales in St. Augustine. The back of the document showed the first assignment to Bryant Mobile Home Sales in East Palatka. It was signed G. L. Williams, the President of Valley Mobile Homes, and notarized by Mrs. Tilghman. The certificate did not contain an assignment from Bryant to Floyd. This assignment was not made until sometime in June of 1975 when Floyd contacted Bryant and asked that he fill out the assignment to him. Bryant did this, but the assignment was dated 22 January, the day the trailer was actually delivered.

The mobile home which was bought by Floyd was not a Ridgewood, but. was a Kingston II mobile home, serial No. 25230. The mobile home had been manufactured by Brigadier and transferred to Bryant Mobile Homes along with a certificate. Bryant Mobile Homes sold the Kingston II to the Stephens. The certificate was sent along with an application for title to the Division of Motor Vehicles and title was issued to the Stephens. A short time thereafter, the Stephens realized they could not afford the mobile home and apparently it was repossessed. The mobile home then disappeared for awhile or at least there is nothing in the record concerning who had repossessed it or what had happened to it. At some point in this time period, Bryant sold his Bryant Mobile Home business in St. Augustine to G. L. Williams, and the Bryant Mobile Homes business in St. Augustine became Valley Mobile Homes. Bryant continued to operate his mobile home business in Palatka. The next time the Kingston II mobile home serial No. 25230 appears, it is being transferred from Bryant to Floyd with what is apparently a fictitious or invalid certificate. The fictitious certificate shows that it was assigned to Bryant from Valley Mobile Homes on 15 June 1974. Although Bryant had no interest in Valley Mobile Homes, Williams had brought some mobile homes over to Bryant and asked him to sell them for him.

The State argues that the business methods used clearly demonstrate that Bryant knew the certificate was fictitious because Bryant did not prepare an application for a certificate of title and forward that along with the certificate to the Division of Motor Vehicles. The State also contends that the way Bryant handled this matter indicated that it was not a normal business affair, therefore, one could infer that he knew the certificate was invalid. However, Floyd did not want to apply for title because then he would have to pay sales tax. Not only was Floyd a mobile home dealer, but Floyd and Bryant had done business together many times, both by Floyd buying from Bryant and also by Bryant selling for Floyd. Floyd found nothing unusual in the manner in which this business transaction was handled.

The facts in this case are complicated and confusing. Although it could be concluded that the certificate delivered to Floyd was fictitious or invalid, there is no evidence to show that Bryant had knowledge that it was invalid or fictitious.

The judgment and sentence are reversed.

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


author: PER CURIAM. ERVIN, Judge,

text:
    Edward Craig ROBERTS, Appellant, v. STATE of Florida, Appellee.
    No. CC-234.
    District Court of Appeal of Florida, First District.
    Jan. 28, 1977.
    Thomas Presnell, Quincy, for appellant.
    Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

AFFIRMED. Rebjebian v. State, 44 So.2d 81 (Fla.1949).

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

ERVIN, J., concurs with opinion.

ERVIN, Judge,

concurring.

Roberts broke into and entered a drugstore at night. While inside the drugstore, a silent alarm sounded and police arrived at the scene. Roberts and an accomplice were seen inside the drugstore and fleeing it. The police apprehended them just outside. At that time Roberts had on a pair of rubber gloves taken from the drugstore. He had tools in his possession necessary to force entry into the drugstore. Testimony was adduced that drugs of a value in excess of $100.00 were located inside the drugstore. Roberts admitted that he intended to take drugs from the drugstore.

The evidence clearly shows that Roberts stole property of less than the value of $100. In the absence of other evidence or circumstances, the best evidence of what a defendant’s intent to steal is what he in fact did steal. E. g., Guerrero v. State, 289 So.2d 396 (Fla.1974); Rumpb v. State, 248 So.2d 526 (Fla. 1st DCA 1971). Nevertheless the particular circumstances of this case support the conclusion that Roberts intended to steal property of more than the value of $100. In both Rebjebian v. State, 44 So.2d 81 (Fla.1949) and Magyari v. State, 317 So.2d 794 (Fla. 1st DCA 1975), the defendants entered structures in which property of more than the value of $100 was located and were apprehended before they had taken property in excess of $100. In both cases the defendants’ convictions for breaking and entering with intent to commit a felony were sustained.

The case below does not involve the type of situation present in Jalbert v. State, 95 So.2d 589 (Fla.1957), in which the defendant was found in possession of stolen property less than $50 several days following the burglary of the owner’s house. The owner did, however, testify that at the time of the illegal entry personal property worth several thousand dollars was inside the house. Jalbert’s conviction was also reduced to breaking and entering with intent to commit petit larceny. Thus, the critical element of flight was absent in Jalbert — unlike the situation in the case below.

The facts involving Roberts’ conviction can also be distinguished from those in Channell v. State, 107 So.2d 284 (Fla. 2nd DCA 1958), in which Channell’s conviction for breaking and entering a dwelling house with intent to commit grand larceny was reduced to breaking and entering with intent to commit a misdemeanor. Channell, like Rebjebian, was seen inside the house which he had illegally entered, then fled and was pursued. Unlike the facts in the instant case, there was no showing that defendant took anything from the structure which he burgled, and more importantly no showing of the value of the property within the house. If there were no proof either of flight or of value of the articles within the drugstore, it is my opinion that the judgment should be reduced to the lesser offense of breaking and entering with intent to commit petit larceny.


text:
    CIBA-GEIGY CORPORATION, Petitioner, v. The FLORIDA BOARD OF PHARMACY and the State Board of Medical Examiners, Respondents.
    No. EE-231.
    District Court of Appeal of Florida, First District.
    Jan. 28, 1977.
    John Radey and Wofford H. Stidham, of Holland & Knight, Tallahassee, for petitioner.
    Michael I. Schwartz, Tallahassee, for respondents.
   PER CURIAM.

We have considered each of petitioner’s contentions upon the briefs, record and oral argument. Chapter 76-47, Laws of Florida, does not violate Article III, Section 6 of the Florida Constitution because its subject is briefly expressed in the title. Though the title is not an exact summary of the contents, it gives fair notice and provokes inquiry into the body of the act. The negative formulary adopted by respondents in compliance with the Act is not invalid. The formulary promulgated is but a beginning, and the statute itself contemplates drugs may be added or deleted. Section 465.30(6), (7), Florida Statutes (Supp. 1976). The formulary promulgated at the outset need not have completely and accurately carried into effect all present medical knowledge concerning all drugs. Respondents did not abdicate their authority by seeking professional consultation concerning drugs to be included and excluded in the formularies. Excluding petitioner’s drug from the negative formulary, thus enabling substitution for it in keeping with the Act’s general purpose, is not shown to have been rationally baseless. No material error in procedure is demonstrated. The prayer of the petition for review is

DENIED.

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


author: SMITH, Judge.

text:
    Leona L. DOYLE, Petitioner, v. Honorable Reubin O’D. ASKEW, etc., et al., Respondents.
    No. BB-207.
    District Court of Appeal of Florida, First District.
    Feb. 1, 1977.
    Joseph C. Jacobs and Robert J. Angerer, of Ervin, Varn, Jacobs & Odom, Tallahassee, for petitioner.
    Robert L. Shevin, Atty. Gen., and Robert Levy, Asst. Atty. Gen., Tallahassee, for respondents.
   SMITH, Judge.

The issue is whether Section 193.461(3)(a), Florida Statutes (1973), which required applications for agricultural assessment to be filed before April 1 of each year, permits agricultural assessments to be made notwithstanding the absence of a timely application, if the taxpayer’s failure to apply was due to illness or other such cause. It does not. The statute is mandatory. By its terms failure to make timely application constitutes a waiver of the privileged assessment. The prayer of the petition for certiorari review is

DENIED.

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


text:
    Carol J. BELL, Appellant, v. Donald L. BELL, Appellee.
    No. 76-230.
    District Court of Appeal of Florida, Third District.
    Feb. 1, 1977.

      Arthur E. Huttoe, Miami, James L. Wall, Jr., Miami Springs, for appellant.
    George Baker Thompson, Miami, for ap-pellee.
    Before HENDRY, C. J., and NATHAN, J., and DREW, E. HARRIS (Ret.), Associate Judge.
   PER CURIAM.

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


text:
    LAND SERVICES, INC., Appellant, v. RESORT HOSTS INTERNATIONAL, INC., and 194th Street Corp., d/b/a Sheraton Beach Hotel, Appellees.
    No. 76-371.
    District Court of Appeal of Florida, Third District.
    Feb. 1, 1977.
    Pertnoy & Greenberg, Miami, for appellant.
    Myers, Kaplan, Levinson & Kenin and Thomas R. Spencer, Jr., Miami, for appel-lees.
    Before HAVERFIELD and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See Somerville v. Skidmore, 175 So.2d 575 (Fla. 3d DCA 1965); In re Trust of Aston, 245 So.2d 674 (Fla. 4th DCA 1971).


text:
    Harvey Lee JONES, Appellant, v. The STATE of Florida, Appellee.
    No. 76-417.
    District Court of Appeal of Florida, Third District.
    Feb. 1, 1977.
    Bennett H. Brummer, Public Defender and Paul Morris, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., and BARKDULL and NATHAN, JJ.
   PER CURIAM.

Affirmed on authority of Noble v. State, 338 So.2d 904 (Fla. 1st DCA 1976) without prejudice to test the legality of the sentence by filing in the trial court a motion under Fla.R.Crim.P. 3.850.