author: LETTS, Judge.

text:
    MURRAY VAN & STORAGE, INC., a corporation, Joseph E. Ferguson, L. H. Mitchell, Alfred J. Caccamo and Reuben Bergstrom, Appellants, v. John Philip MURRAY, Individually, and as Personal Representative of the Estate of F. W. Murray, Jr., a/k/a Fleming W. Murray, Jr., Appellee.
    Nos. 77-1674 and 77-1675.
    District Court of Appeal of Florida, Fourth District.
    Nov. 8, 1978.
    Edna L. Caruso and Montgomery, Lytal, Reiter, Denney & Searcy, West Palm Beach, and James H. Walden of Walden & Walden, Dania, for appellants.
    Earl Faircloth of Earl Faircloth Law Offices, Fort Lauderdale, for appellee.
   LETTS, Judge.

This appeal, which under all the circumstances we treat as plenary, stems from a trial judge’s grant of a summary judgment which held, as a matter of law, that a “buy-sell” agreement between stockholders was inferior to a testamentary disposition by a stockholder. We reverse.

The facts involve a point of law hitherto, undecided in Florida although the problem has been addressed in many other jurisdictions. See 61 A.L.R.3d 1090. Simply stated, a majority of the courts have held that any restriction on the alienation of stock is to be strictly construed and testamentary disposition thereof will not be defeated in the absence of express language in a stockholders agreement specifically addressing the disposition of the stock upon death.

We have no quarrel with the statement of the law set forth in the preceding paragraph but cannot equate it to the facts of the case at bar because the instant stockholders agreement does unquestionably contain language specifically addressing disposition upon death.

The pertinent part of the buy-sell agreement provides,

II.None of the stockholders shall sell, assign, or otherwise transfer or dispose of any or all of his corporate shares unless and until he has first offered the same to the Corporation which shall have thirty (30) days from the date of such offer in which to purchase such shares at a. price to be determined in the manner hereinafter set forth in Paragraph number IV. .
III. In the event of the death of any stockholder, nothing herein shall prevent the surviving spouse of such deceased stockholder from acquiring his interest in and to his corporate interest. In the event, however, that the surviving spouse is not entitled to the decedent’s interest in said stock, or in the event it becomes necessary for the personal representative of the decedent to dispose of said stock for the purpose of paying debts or making distribution, then in either event, said personal representative shall offer said stock first to the Corporation and thereafter to the surviving stockholders, all as set forth in Paragraph number II above.
IV. The price which the Corporation and the remaining stockholders shall be required to pay for shares of the deceased stockholder, or for the purchase of a stockholder’s interest as required under Paragraph . II above, shall be the price which is equal to the value of the shares being purchased as established by the books of the Corporation as at the close of business at the end of the last calendar month prior to the date of death. .

In the case now before us, it was the principal stockholder who died, without leaving any spouse him surviving. By a will, executed 10 years prior to the stockholders’ agreement, said deceased principal stockholder had in the most general terms left his entire estate by residuary clause to his two surviving sons. It is these children who successfully claimed ownership of the stock, and the right to retain it, in the court below, while it is the remaining stockholders and long-time company executives who now appeal, claiming the right to buy up the stock under the terms of the stockholders agreement.

In short, it is the position of the children that the quoted provisions of the agreement affecting testamentary disposition are not applicable in this case because they do not explicitly address themselves to the situation when the stockholder has no spouse surviving, but instead merely address themselves to the outcome where a spouse does survive. Pursuant to this, the children conclude that since the agreement does not so expressly address itself, the majority rule first above stated should apply and the testamentary disposition prevail over the agreement. We do not agree.

It is true that the language of this buy-sell agreement is inartfully drawn. Nonetheless we cannot but conclude that the quoted language encompasses the event of a dead, bachelor stockholder and specifically addresses itself to disposition upon death. We agree that under the majority rule the quoted paragraph II by itself would not suffice to inhibit testamentary disposition. In Re Estate of Martin, 15 Ariz.App. 569, 490 P.2d 14 (1971), Stern v. Stern, 79 U.S.App.D.C. 340, 146 F.2d 870 (1945), Taylor’s Admr. v. Taylor, 301 S.W.2d 579 (Ky.App.1957), Storer v. Ripley, 12 Misc.2d 662, 178 N.Y.S.2d 7 (1958). However the agreement by overwhelming language in the additional paragraphs III and IV does so.

For example, because the opening sentence of paragraph III specifically states that the buy-sell provisions shall not apply if a spouse does survive, it appears logical that the agreement would apply if a spouse did not survive. Such a deduction is further buttressed by the second sentence of paragraph III which sets forth an occasion upon which the buy-sell agreement would apply even when there is a surviving spouse. To suppose from the quoted language of the three paragraphs that the agreement was never intended to apply to a deceased bachelor stockholder, as the appel-lees contend, makes no sense in the light of the employed wording. Accordingly, although we recognize that contract ambiguity should normally be resolved by the trier of the fact at trial, Bankers Insurance Service Corporation v. Southeastern Home Mortgage Company, 363 So.2d 401, (Fla. 4th DCA, 1978) we do not deem that the inartful wording here employed, rises to the level of ambiguity. To us the obvious intent of the three paragraphs taken together is quite clear and inhibits testamentary disposition.

Although not necessary to our conclusion, we would further point out that this deceased principal stockholder was not in fact married in 1974 when the stockholders’ agreement was signed (other than by possible common-law marriage, a claim now withdrawn. See footnote 1). Thus if we were to accept the childrens’ argument, the agreement would be a complete non sequi-tur as to their father at the moment of execution and his signature thereon a sham. Such a conclusion cannot, in good common sense, be supported. Moreover the attorney responsible for the quoted wording, on deposition testified that the agreement was drawn by him with the intent that it would apply to a deceased bachelor stockholder.

We therefore reverse and remand with instructions to the trial judge to enter summary judgment in favor of the appellants.

REVERSED AND REMANDED.

CROSS, J. and PAUL, MAURICE M., Associate Judge, concur.

      . An issue that there was in fact a surviving common-law spouse is not deemed necessary of examination in this opinion because the attorney of record for the appellees stated at a hearing “That issue is out because she is withdrawing her claim to be the common-law wife by agreement with the boys.”

      . We conclude this latter eventuality envisages such as a prenuptial agreement because under normal circumstances a spouse would have a dower interest, even if excluded from any will.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Carol L. GUY, Appellant, v. Ralph J. GUY, Appellee.
    No. 77-2042.
    District Court of Appeal of Florida, Fourth District.
    Nov. 8, 1978.
    Bennett S. Cohn, Lake Worth, for appellant.
    Allan L. Hoffman, West Palm Beach, for appellee.
   PER CURIAM.

Upon consideration of the record and briefs of counsel for the respective parties, we determine the only error of the trial court was in directing partition of the real property not sold within ninety (90) days without proper pleadings as required by Chapter 64, Florida Statutes. Accordingly, the order is reversed and the cause remanded for further proceedings consistent with the views herein expressed.

Reversed and remanded.

DOWNEY, C. J., and CROSS and MOORE, JJ., concur.


author: ANSTEAD, Judge,

text:
    Mark DeFLIPPO, Petitioner, v. Honorable Kenneth M. LEFFLER, Circuit Judge, Seminole County, Florida, Respondent.
    No. 78-1222.
    District Court of Appeal of Florida, Fourth District.
    Nov. 8, 1978.
    Leon B. Cheek III, Altamonte Springs, for petitioner.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Glenn H. Mitchell, Asst. Atty. Gen., West Palm Beach, for respondent.
   Suggestion for Writ of Prohibition is hereby DENIED.

DOWNEY, C. J., and MOORE, J., concur.

ANSTEAD, J., dissents with opinion.

ANSTEAD, Judge,

dissenting:

Relying on In the Interest of J. W. H., 345 So.2d 871 (Fla. 1st DCA 1977), the petitioner contends that a petition alleging delinquency must be filed within 33 days from the date a juvenile is taken into custody. Sections 39.03(2) and 39.05(7), Florida Statutes (1975). The provisions of Section 39.-05(7) requiring a petition to be filed within 30 days from the date a complaint is 977). And although we have previously held that the provisions of Section 39.03(2) requiring a complaint to be filed within three days are not mandatory, we noted that our ruling might be different if prejudice were shown as it was in J. W. H. where speedy trial time was involved. In the Interest of R. C. P., 352 So.2d 75 (Fla. 4th DCA 1977). I believe prejudice has been shown here since the state has been able to avoid the provisions of Section 39.05(7) by delaying the filing of a complaint with the intake office. In this way the 30 day mandatory filing provisions are rendered virtually meaningless. I would grant the petition for writ of prohibition and rule that the petitioner is entitled to be discharged since the petition alleging delinquency was filed more than 33 days from his arrest.


text:
    David Lee LOCKHART, Petitioner, v. The Honorable Stanton KAPLAN, as Judge of the Seventeenth Judicial Circuit of Florida, and Edward J. Stack, Sheriff of Broward County, Florida, Respondents.
    No. 78-2171.
    District Court of Appeal of Florida, Fourth District.
    Nov. 8, 1978.
    Patrick C. Rastatter, of Glass, Rastatter, Stark & Tarlowe, Fort Lauderdale, for petitioner.
   PER CURIAM.

The petition for writ of habeas corpus is granted and the respondent, The Honorable Stanton Kaplan, is hereby directed to immediately act upon petitioner’s request for bail pursuant to this court’s opinion in Arthur v. Harper, Case No. 78-1512 (Fla. 4th DCA opinion filed October 6, 1978).

DOWNEY, C. J., and ANSTEAD and BERANEK, JJ., concur.


text:
    Dewey LIGHTSEY, Appellant, v. STATE of Florida, Appellee.
    No. 77-133.
    District Court of Appeal of Florida, Second District.
    Nov. 8, 1978.
    Jack 0. Johnson, Public Defender, W. C. McLain and Paul C. Helm, Asst. Public Defenders, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Dewey Lightsey appeals convictions and sentences for grand larceny and breaking and entering with intent to commit a misdemeanor. He predicates his appeal in part on the trial court’s denial of his motion for continuance. We find that this point has merit and reverse for a new trial.

Appellant was arrested on October 3, 1975. The information against him was not filed until February 27, 1976. Trial was set for March 29, 1976. On March 10, 1976, defense counsel filed a demand for discovery. On March 12, 1976, counsel filed a motion for a statement of particulars, which included a request for information regarding any Williams Rule evidence of which the state was aware. The state filed its initial discovery response on March 17, 1976 and a supplemental response listing five additional witnesses on March 22, 1976. Defense counsel made an oral motion for continuance on March 23, 1976, alleging, inter alia, that it would be virtually impossible for him to depose the five witnesses listed in the supplemental discovery response before the scheduled trial date.

A hearing upon defense counsel’s pretrial motions was held on March 23, 1976. The trial court denied the motion for continuance. Although the state offered no explanation for its 147-day delay in filing the information against appellant, the court noted that the state attorney’s office had had problems during the period in question — one assistant state attorney had committed suicide and assistants had been replaced at least twice. However, the court did comment: “I have a sneaking suspicion what they were doing was waiting to try to dig up some more.”

In explanation of the state’s late discovery responses, the prosecutor stated at the hearing that appellant had filed a written guilty plea on March 9, 1976, which caused some confusion, and appellant had to be re-arraigned.

At this same hearing, the trial court granted the portion of the motion for a statement of particulars requesting information regarding Williams Rule evidence. The state filed a supplemental discovery response on March 25, 1976 and hand delivered the response to appellant’s attorney on March 26. This response related five different occasions when boats were stolen and listed five witnesses who would testify concerning those five thefts.

Before appellant’s trial began as scheduled on March 29, 1976, defense counsel submitted an amended motion for continuance. In the amended motion counsel alleged that he had been unable to depose the five additional witnesses listed in connection with Williams Rule evidence in the supplemental discovery response furnished to him on March 26 or to adequately investigate testimony which might be brought out in any such depositions. Some of these names had been previously made known to defense counsel, but not in connection with the Williams Rule evidence. Furthermore, when counsel had tried to question these witnesses regarding their knowledge of any similar fact evidence at their original depositions, they refused to answer on the ground that there was a continuing investigation in progress.

After a hearing on the amended motion for continuance, the trial court denied the motion and the trial began as scheduled. Two of the five witnesses listed in the supplemental discovery response, John Howell and Detective Lanier, testified during the trial to Williams Rule evidence.

We conclude that the trial court abused its discretion in denying appellant’s motion for continuance. In Sumbry v. State, 310 So.2d 445 (Fla. 2d DCA 1975), the information was filed 171 days after the defendant’s arrest. Defense counsel filed a discovery demand on the 172d day. On the 178th day, the defendant was tried and convicted. Prior to trial the defendant moved to dismiss on the ground that the state’s delay in prosecuting deprived him of a reasonable time to prepare for trial. Defense counsel had learned of two potential witnesses and a fingerprint expert for the first time that morning and had not had the opportunity to depose them. The defendant declined to waive his speedy trial right by moving for a continuance. This court reversed the defendant’s conviction on the ground that he was denied due process when he was not given a reasonable opportunity to prepare his defense and granted a new trial.

In the instant case, the information against appellant was not filed until 147 days after his arrest. Due to the tardiness of the state’s responses to appellant’s discovery demand, appellant was unable to depose certain witnesses or to complete his investigation into the facts of the case prior to trial. The cause therefore must be and is reversed and remanded for a new trial.

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


author: DANAHY, Judge.

text:
    Sylvia WARD, Appellant, v. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, Appellee. Gregory C. JOHNSTON, Appellant, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, Appellee.
    Nos. 77-1690, 78-42.
    District Court of Appeal of Florida, Second District.
    Nov. 8, 1978.

      Robert M. Chambers and David J. Williams of Stanley, Wines, Roth, Williams & Smith, Auburndale, for appellants.
    A. H. Lane of Lane, Massey, Trohn, Clarke, Bertrand & Smith, Lakeland, for appellees.
   DANAHY, Judge.

These are separate suits for declaratory judgment involving the same issues. Plaintiffs appeal from orders dismissing their complaints with prejudice. The appeals have been consolidated.

Each plaintiff was injured in an automobile accident while occupying a motor vehicle covered by an insurance policy issued to the motor vehicle’s owner. Defendants are the respective insurers. Both plaintiffs were insured under the terms of defendants’ insurance policies by virtue of extension of coverage to passengers or permissive users of the insured automobiles.

In this state, owners of private passenger automobiles are required to obtain “no fault” insurance covering their vehicles as provided in the Florida Automobile Reparations Reform Act, Sections 627.730-627.741, Florida Statutes (1977) (the Act). Under Section 627.736, every insurance policy complying with the Act must provide personal injury protection (PIP) benefits to the extent of $5,000 covering medical expenses, disability (loss of earnings and loss of earning capacity) and $1,000 of funeral expenses. PIP benefits (“no fault”) cover largely the same items of medical expense covered before by optional medical payments coverage in automobile insurance policies.

Defendants’ policies provide PIP benefits. However, if an injured party is the owner of a motor vehicle required to be insured under the Act, he can recover PIP benefits only under his own policy — not the policy of the owner of the motor vehicle in which he is riding when injured. Section 627.736(4)(d) 4. At the time of the accident, each plaintiff in these cases owned a motor vehicle required to be insured but for which that plaintiff had no “no fault” insurance. Thus neither plaintiff had insurance providing PIP benefits and neither was entitled to PIP benefits under the owners’ insurance policies issued by defendants.

However, the insurance policy in each case also contained additional and optional medical payments coverage for which a separate premium was charged. Accordingly, plaintiffs demanded payment of their medical expenses from defendants under the medical payments coverage of the policies. Defendants denied coverage, and also asserted that plaintiffs are precluded from recovery by their failure to insure their automobiles as mandated by the Act.

With respect to medical payments coverage, defendant Nationwide’s policy provided:

We will pay benefits under this coverage only over and above any personal injury protection benefits that are paid or payable for the bodily injury under this or any policy, or would be payable except for a deductible.

Defendant United Services’ policy provided:

Any automobile medical payments insurance . . . afforded by the policy shall be excess over any personal injury protection benefits paid or payable or which would be available but for the application of a deductible.

The trial judges ruled that neither plaintiff could recover benefits under the medical payments provisions of the owners’ insurance policies until that plaintiff’s medical expenses, loss of gross income, and loss of earning capacity exceeded $5,000 (the measurement of PIP benefits then applicable). Since neither complaint showed this to be the case and plaintiffs declined to amend, the complaints were dismissed with prejudice. These appeals followed. We reverse.

The threshold issue in each case, of course, is whether coverage is precluded under the above quoted language of the respective insurance policy. If that issue is resolved in favor of coverage, then it will be necessary to consider the arguments asserted by defendants for denial of recovery nevertheless.

As always in determining questions involving the interpretation of insurance contracts, it is helpful to repeat those well established rules which we are required to apply in reaching our conclusions.

One such rule is that when there is no room for doubt, insurance contracts, like other contracts, are to be construed according to the sense and meaning of the terms which the parties have used, and, if clear and unambiguous, these terms will be taken and understood in their plain and ordinary sense. Goldsby v. Gulf Life Ins. Co., 117 Fla. 889, 158 So. 502 (1935). That rule, in our opinion, clearly dictates that there is medical payments coverage under the Nationwide policy, which refers to PIP benefits paid or payable under this or any policy. The emphasized words leave no room for doubt. There are no PIP benefits payable to the plaintiff in the Nationwide case under the Nationwide policy or any policy. By the clear terms of the Nationwide policy, therefore, there is medical payments coverage.

The United Services’ policy, however, omits the words “under this or any policy” and refers only to PIP benefits “paid or payable.” Obviously, there is no insurance policy under which PIP benefits have been paid or are payable to the plaintiff in the United Services case. However, it is argued that PIP benefits should be considered as paid or payable, regardless of the existence of an insurance policy affording those benefits, by reason of the following language found in Section 627.733, Florida Statutes (1977):

An owner of a motor vehicle with respect to which security is required by this section who fails to have such security in effect at the time of an accident . shall be personally liable for the payment of [PIP] benefits under Section 627.736. With respect to such benefits, such an owner shall have all the rights and obligations of an insurer under Sections 627.-730-627.741.

We are urged to interpret the statute as making the owner of an uninsured motor vehicle a self-insurer of PIP benefits to himself. Following that line of reasoning we should then conclude that there are PIP benefits paid or payable with respect to the owner of an uninsured motor vehicle, as is the plaintiff in the United Services case. We disagree.

Again, we revert to basic rules governing the interpretation of insurance contracts. Where there are two interpretations which may fairly be given to language used in a policy, the one that allows the greater indemnity will govern. Financial Fire & Casualty Company v. Callaham, 199 So.2d 529 (Fla. 2d DCA 1967). That rule is particularly applicable in the case of exclusions, since the burden rests on the insurer to phrase exceptions in clear and unmistakable language. California Compensation & Fire Co. v. Industrial Acci. Comm., 62 Cal.2d 532, 42 Cal.Rptr. 845, 399 P.2d 381 (1965).

The purpose of provisions in insurance contracts restricting coverage in terms of other insurance or benefits available from other sources is to avoid duplication of coverage. American Fire & Cas. Co. v. Marathon Aviation Mar., 196 So.2d 782 (Fla. 2d DCA 1967); Carroll v. Union Labor Life Insurance Company, 65 Wash.2d 513, 398 P.2d 164 (1965); annot., 42 A.L.R.2d 983 (1955). In each of the cited cases, the courts looked to that purpose and rejected interpretations proposed by the insurers which did not have the effect of avoiding double coverage, but would avoid coverage altogether. That would be the result if we were to accept the argument of United Services. An insurer will not be allowed, by the use of obscure terms, to defeat the purpose for which the policy was procured. Roberson v. United Services Automobile Association, 330 So.2d 745 (Fla. 1st DCA 1976).

We find an analogous situation in the case considered by the Supreme Court of the State of Washington in Carroll v. Union Labor Life Insurance Company, supra. There, a hospitalization insurance policy excluded payments to any person “entitled to benefits under the applicable Workmen’s Compensation Law.” The plaintiff in that case was eligible for workmen’s compensation coverage, but had failed to qualify for voluntary coverage under the Washington Workmen’s Compensation Act. The insurer said the exclusion should nevertheless apply, arguing that the injured party’s failure to apply for workmen’s compensation coverage was his own fault; he could have been entitled to benefits if he had simply chosen to qualify for coverage. The court rejected that argument, pointing out that the insurance company’s refusal to pay did not avoid duplicating or overlapping coverage, but would have avoided any coverage at all.

Applying the principles enunciated in the cases cited, we construe the words “PIP benefits paid or payable” as used in the United Services’ policy to mean benefits payable under an insurance policy. “PIP benefits paid or payable,” in our opinion, do not refer to personal liability for the payment of PIP benefits to one’s self. In that connection, we might mention that this court has held that the owner of an uninsured motor vehicle is not made an insurer himself, though he is given the rights and obligations of an insurer under Section 627.-733. Farley v. Gateway Insurance Company, 302 So.2d 177 (Fla. 2d DCA 1974).

Nationwide and United Services seem to be saying to us that they did not intend coverage in the situations here presented. That may be so, but they both have failed to express that intention and they are bound by the language which they have chosen to use. If an insurer intends to restrict coverage, it should use language clearly stating its purpose. 1 Couch On Insurance 2d, § 15.9 et seq. (1959). There would appear to be no objection to appropriate language clearly excluding from coverage those persons who could obtain PIP benefits coverage for themselves but fail to do so. Smitke v. Travelers Indemnity Company, 264 Minn. 212, 118 N.W.2d 217 (1962).

Having found that there is medical payments coverage under both policies here involved, we turn to the arguments advanced by the defendants to deny recovery notwithstanding. Defendants make much of the fact that the plaintiffs here have violated the provisions of the Act and vigorously contend that, therefore, recovery should be denied them on grounds of public policy, equity and good conscience. If plaintiffs are allowed to recover, say the defendants, they would in effect be rewarded for their own wrongdoing.

Not so. Plaintiffs’ failure to obtain insurance coverage for their automobiles is clearly unfair to themselves and to those other persons for whom they are required to obtain PIP benefits. But as between plaintiffs and defendants, there is nothing unfair in requiring defendants to make payment of benefits which they have contracted to pay under coverage for which they have been paid a premium.

It is absolutely inexcusable for any owner of a private passenger automobile in this state to ,fail to obtain the insurance coverage required by law. But the legislature has clearly spelled out the consequences of that dereliction of duty. Personal liability is imposed by Section 627.733 as well as the loss of no fault tort immunity. Penalties are prescribed in Section 627.735. Under that statute, any owner of a motor vehicle required to be insured who operates that motor vehicle or permits it to be operated in this state without the required insurance coverage shall have his operator’s license and registration suspended.

The legislature has provided for the consequences and the penalties. It is not the function of a private insurance company to impose an additional private penalty. In that vein, this state has aligned itself with the strong modern trend to find no public policy reasons for denying recovery of insurance proceeds even where death or injury of the insured is the consequence of the violation of a criminal law. Valley Forge Life Insurance Company v. Lawrence, 201 So.2d 449 (Fla.1967); annot., 43 A.L.R.3d 1120 (1972). It has been held that medical payments coverage cannot be avoided simply because an injured party suffered that injury as a consequence of the commission of a criminal act. Davis v. Detroit Automobile Inter-Insurance Exch., 356 Mich. 454, 96 N.W.2d 760 (1959). Where a state legislature has provided penalties for the violation of no fault legislation, it is not up to a court to engraft additional penalties. Ortiz v. Safeco Insurance Company, 136 N.J.Super. 532, 347 A.2d 26 (1975); modified, Ortiz v. Safeco Insurance Company, 144 N.J.Super. 506, 366 A.2d 695 (1976).

Reversed with instructions in each case to reinstate plaintiff’s complaint and for further proceedings not inconsistent with this opinion.

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

      . In 1977, Section 627.736 was amended to reduce PIP benefits to 80% of medical expenses and 80% of disability, subject to the same maximum.


author: GRIMES, Chief Judge.

text:
    Mary Gemma THOMAS, Appellant, v. Donald G. THOMAS, Appellee.
    No. 77-2075.
    District Court of Appeal of Florida, Second District.
    Nov. 8, 1978.

      John T. Allen, Jr., P. A., and G. Robert Bolton, St. Petersburg, for appellant.
    Joan LoBianco Walker, St. Petersburg, for appellee.
   GRIMES, Chief Judge.

We affirm the judgment of dissolution except as set forth below.

(1) The monthly alimony of $430, rather than rehabilitative for a period of four years, should be permanent. The parties were married twenty years, and the youngest of their four children is now twelve. Neither of the parties has appreciable assets save their respective tenancy-by-the-entireties interests in the marital home. The husband earns $45,000-$50,000 yearly as an insurance agent. Two years before the divorce, the wife obtained a teaching certificate and now earns $3,627.68 annually as a part-time teacher. She could earn about $9,000 as a full-time teacher but she has been unable to secure a full-time job because of the large number of elementary education applicants eligible for openings ahead of her. Even if she could get a full-time position her standard of living would still be substantially less than that which the parties enjoyed during the marriage. So long as the husband can afford it, and there is no appreciable increase in the wife’s earning potential, the husband should be required to supplement the wife’s earnings. In re Marriage of Jones, 357 So.2d 439 (Fla. 2d DCA 1978); Lash v. Lash, 307 So.2d 241 (Fla. 2d DCA 1975).

The fact that the husband must also pay substantial support for the three minor children is irrelevant to our conclusion. He is not contesting the amount of the support and alimony awards, and the additional alimony burden hereby imposed upon him will not take effect until his child support obligation has been reduced and is nearing its termination.

(2) The pleadings and the evidence were sufficient to warrant an order for the sale of the marital home and a division of the proceedá. However, the judgment should be amended so that the sale of the property shall proceed according to the partition requirements of Chapter 64, Florida Statutes (1977). Carlsen v. Carlsen, 346 So.2d 132 (Fla. 2d DCA 1977).

Affirmed in part, reversed in part, and remanded for proceedings consistent with this opinion.

GRIMES, C. J., and RYDER and DAN-AHY, JJ., concur.


text:
    Milton PEOPLES, Jr., et al., Appellants, v. FLORIDA INSURANCE GUARANTY ASSOCIATION, INC., Appellee.
    No. 78-29.
    District Court of Appeal of Florida, Second District.
    Nov. 8, 1978.

      William J. Switalski, Tampa, for appellants.
    Charles P. Schropp of Shackleford, Farri- or, Stallings & Evans, Tampa, for appellee.
   DANAHY, Judge.

Appellants brought this suit to enforce an alleged oral agreement for settlement of' their tort claim against appellee’s insured. The trial judge held that such an agreement is unenforceable unless it is in writing and entered a summary judgment for appellee. We affirm, not for the reason given by the trial judge, nor for any argument which has been advanced to us by appellee, but on the basis of a fundamental rule of law which is clearly applicable here. In fairness to the trial judge, we hasten to add that the dis-positive point in this case was not brought to his attention, nor was it argued in this court.

Appellee moved for summary judgment on the ground that Fla.R.Civ.P. 1.030(d) requires any settlement agreement to be in writing. That rule provides that “no private agreement or consent between parties or their attorneys shall be of any force unless the evidence thereof is in writing, subscribed by the party or his attorney against whom it is alleged.” At the time of the alleged oral agreement in this case, there was no pending litigation between the parties. Nevertheless, the trial judge found the rule applicable, citing Moore v. Gunning, 328 So.2d 462 (Fla. 4th DCA 1976).

This court has held that, under the provisions of the predecessor to Rule 1.030(d), settlement agreements need not be in writing. Coe v. Diener, 159 So.2d 269 (Fla. 2d DCA 1964). The Fourth District Court of Appeal in Moore v. Gunning was of the opinion that the result which we reached in Coe v. Diener is no longer viable in view of certain differences between the language of Rule 1.030(d) and its predecessor.

Appellant argues to us that, notwithstanding the opinion expressed in Moore v. Gunning, our decision in Coe v. Diener should hold firm. But, in any event, says appellant, Moore v. Gunning concerned an out-of-court settlement during the course of pending litigation. Appellant forcefully argues that while a settlement agreement in the course of litigation might be required to be in writing under the terms of Rule 1.030(d), that rule certainly cannot apply to a settlement agreement reached prior to the institution of litigation, as in this case. Appellant and appellee have treated us to extensive and interesting arguments on both sides of the question whether a prelitigation settlement agreement must be in writing.

Interesting though the question may be, the issue need not be resolved in this case for a very obvious reason. As set forth in appellee’s affirmative defense in the court below, subsequent to the date of the alleged oral settlement agreement, appellant brought suit against appellee and its insured on the tort claim which appellant now says had been previously settled. Appellee quite rightly feels that appellant should not now be allowed to go back to the prior settlement agreement and seek to enforce it. Appellee suggests to us the principles of res judicata, collateral estoppel, and waiver. Those principles are not applicable here.

The rule is fundamental; one cannot rescind a contract and subsequently have it enforced. Appellant’s action in bringing suit on the claim underlying the alleged prior settlement agreement constituted a rescission of that agreement which now bars appellant from recovery in this suit based on the agreement. Webb v. Houston & T.C.R. Co., 51 Tex.Civ.App. 230, 111 S.W. 171 (1908); Thompson v. Municipal Bond Co., 23 Cal.App.2d 402, 73 P.2d 274 (1937); Haluka v. Baker, 66 Ohio App. 308, 34 N.E.2d 68 (1941).

Affirmed.

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


author: RYDER, Judge.

text:
    Mary L. HANEY, Appellant, v. Spencer A. HOLMES and Barbara J. Holmes, his wife, Appellees.
    No. 78-1059.
    District Court of Appeal of Florida, Second District.
    Nov. 8, 1978.
    W. K. Zewadski and Radford W. Smith of Zewadski & Smith, St. Petersburg, for appellant.
    Clark A. Stillwell . of Tucker, Hicks, Blanchard, Brannen & Stillwell, P. A., In-verness, for appellees.
   RYDER, Judge.

Mary L. Haney, plaintiff below, appeals the trial court’s order granting appellees’ motion for judgment on the pleadings, the grounds for which were that appellant’s action was barred by the statute of limitations. We hold appellant’s claim was not so barred, and we reverse.

On September 3, 1976, appellant filed her complaint for foreclosure of an equitable lien on certain real property owned by ap-pellees. The complaint alleged that Ludie A. Haney, deceased, of whose assets appellant was sole beneficiary, had performed certain land clearing and maintenance work on appellees’ property, the last work having been done on or about February 27, 1975, pursuant to an oral agreement that appel-lees would reimburse him for his expenses and pay him a reasonable amount for his labor.

Ludie A. Haney died on March 11, 1975. An order of summary administration of his estate was entered on May 28, 1976, at which time appellant was awarded all of decedent Haney’s assets, including the instant claim against appellees.

In their answer to appellant’s complaint, appellees asserted that Section 95.11(5)(b), Florida Statutes (1975), was the applicable statute of limitations. Had it been applicable to appellant’s cause of action, Section 95.11(5)(b), which places a one year limitation on actions to enforce an equitable lien arising from the furnishing of labor, services or material for the improvement of real property, would have barred her claim. However, as appellees concede in their brief on appeal, upon Ludie A. Haney’s death, Section 95.11(5)(b) became inapplicable, and the applicable limitation period became that provided in the Florida Probate Code.

The probate code statute of limitations in effect at Ludie A. Haney’s death, Section 734.27, Florida Statutes (1975), provided:

If a person entitled to bring an action dies before the expiration of the time limited for the commencement thereof and the cause of action survives, the action may be commenced by his personal representative after such expiration and within twelve months from the granting of letters.

Section 734.27, Florida Statutes (1973), was subsequently renumbered and amended. The new law, Section 733.104(1), Florida Statutes (1975), effective January 1, 1976, provides:

If a person entitled to bring an action dies before the expiration of the time limited for the commencement of the action and the cause of action survives, the action may be commenced by his personal representative after the expiration and within twelve months from the date of the decedent’s death.

We must now decide which of these two statutes is applicable to appellant’s claim.

Appellant maintains that Section 734.27, Florida Statutes (1973), is the applicable statute of limitations, while appellees contend that Section 733.104(1), Florida Statutes (1975), applies. We agree with appellant.

It is well settled that a statute will not be given retrospective application unless the intent to do so is clear. Indemnity Insurance Co. v. Brooks-Fisher Insulating Co., 140 So.2d 613 (Fla. 2d DCA 1962). Neither Section 733.104, Florida Statutes (1975), nor any other section of the Florida Probate Code contains clear language evincing such an intent. Where there is reasonable doubt concerning legislative intention to provide for a shortened limitation period, the benefit of the doubt should be given to the plaintiff. Maltempo v. Cuthbert, 288 So.2d 517 (Fla. 2d DCA 1974).

If we were to find Section 733.-104(1), Florida Statutes (1975), applicable here, we would be holding that appellant’s cause of action expired before her right to the claim was determined. We hold that this result should not be obtained.

Accordingly, since appellant’s suit was filed within the period provided in Section 734.27, Florida Statutes (1973), the order granting appellees’ motion for judgment on the pleadings is vacated and the cause remanded for further proceedings not inconsistent with this opinion.

BOARDMAN, Acting C. J., and OTT, J., concur.

      . We are not unaware of § 731.011, Fla.Stat. (1975), which provides:
      The Florida Probate Code shall become effective on January 1, 1976. The substantive rights of all persons that have vested prior to January 1, 1976, shall be determined as provided in former chapters 731-737 and chapters 744 — 746 as they exist prior to January 1, 1976. The procedures for the enforcement of substantive rights that have vested before January 1, 1976, shall be as provided in this code.
      However, we do not feel that this section, which does not make specific reference to § 733.104, unequivocally indicates a legislative intent to retroactively shorten and, in some cases, eviscerate, the probate code limitation period.


author: PEARSON, Judge.

text:
    Arthur F. CHEATHAM, Appellant, v. The STATE of Florida, Appellee.
    No. 78-730.
    District Court of Appeal of Florida, Third District.
    Nov. 13, 1978.
    Rehearing Denied Dec. 4, 1978.
    Martin S. Saxon, Miami, for appellant.
    Robert L. Shevin, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before PEARSON, HENDRY and BARKDULL, JJ.
   PEARSON, Judge.

The appellant seeks review of the denial of his motion for relief pursuant to Fla.R. Crim.P. 3.850. The motion was denied after an evidentiary hearing. The motion alleged, and neither the record nor the evidence at the hearing refuted, that the appellant was tried and convicted of the crime of aggravated assault on March 31, 1976, while being represented by a legal intern who was assigned without the appellant’s knowledge or agreement. There is the additional allegation that the legal intern, who was not a member of The Florida Bar, was not supervised by a member of the bar during the trial. The evidence at the hearing does not adequately refute either the charge that the defendant was, unknown to him, represented by a person who was not an attorney nor, in our view, does it adequately support a finding that the intern was adequately supervised. See Integration Rule of The Florida Bar, Article XVIII, § 11(A) and (B) .

An indigent defendant charged with a felony is entitled to court-appointed counsel unless he understandingly and intelligently waives that right. We conclude that where the record does not refute, nor the evidentiary hearing disprove, the allegations of the appellant that he was unknowingly represented by a person not a member of The Florida Bar and that such person was not properly supervised, as provided by the rule, the motion must be granted.

The cause is, therefore, returned to the trial court with directions to strike the judgment finding the defendant guilty and to discharge the defendant from this cause.

In view of the fact that the defendant is presently and has been for some time incarcerated, the time for petition for rehearing of this decision is limited to three days from the date of the filing of this opinion.

Reversed.

      . “A. An eligible law student may appear in any court or before any administrative tribunal in this state on behalf of any indigent person if the person on whose behalf he is appearing has indicated in writing his consent to that appearance and the supervising lawyer has also indicated in writing approval of that appearance. In such cases the supervising attorney shall be personally present when required by the trial judge who shall determine the extent of the eligible law student’s participation in the proceeding.
      “B. An eligible law student may also appear in any criminal matter on behalf of the state with the written approval of the prosecuting attorney or his authorized representative and of the supervising lawyer. In such cases the supervising attorney shall be personally present when required by the trial judge who shall determine the extent of the law student’s participation in the proceeding.”


text:
    Frank O’CONOR and Alice O’Conor, his wife, Appellants, v. DEPARTMENT OF TRANSPORTATION of the State of Florida, a State Agency, Appellee.
    No. 77-1323.
    District Court of Appeal of Florida, Third District.
    Nov. 14, 1978.
    Rehearing Denied Dec. 8, 1978.

      Spence, Payne & Masington, Podhurst, Orseck & Parks and Walter H. Beckham, Jr., Miami, for appellants.
    Richard M. Welsh & Associates, Joe N. Unger, Miami, for appellee.
    Before PEARSON and HENDRY, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PEARSON, Judge.

Following a jury verdict for the injured plaintiff, awarding him $100,000, the trial judge entered an order granting the motion of the defendant Department of Transportation for a directed verdict. From the final judgment entered thereon, the injured plaintiff and his wife bring this appeal.

On July 11, 1974, shortly after 1:00 a. m., plaintiff Frank O’Conor was proceeding home from work on his motorcycle. He was proceeding eastward on the east-west portion of the Palmetto Expressway and had crossed the overpass of N.W. 42nd Avenue. At that time and place, a Department of Transportation dump truck, on a trash-cleaning detail, was proceeding eastward ahead of the plaintiff. The truck stopped in the right hand eastbound lane, the same lane in which the plaintiff was approaching, in order to pick up a stick a few feet ahead. Two of the three-man crew were about to get out of the truck when they heard a thump to the rear. The plaintiff had struck the rear of the truck and was thrown from his motorcycle and was knocked unconscious, sustaining various injuries including multiple fractures to both legs and to his shoulder.

As a result of the accident, plaintiff O’Con- or brought suit against the Department of Transportation for damages for the negligent operation of the Department’s truck. The suit was brought pursuant to Section 768.28, Florida Statutes (1973), in the circuit court for Dade County. His wife, Alice O’Conor, joined in the suit claiming derivative damages for the loss of consortium. In its answer, the defendant denied negligence and asserted an affirmative defense of sole contributory negligence or comparative negligence. The plaintiffs’ reply denied the affirmative defenses.

Following a four day trial in which the defendant moved for a directed verdict at the conclusion of the plaintiffs’ case and at the conclusion of all the evidence, with the trial court reserving ruling on both occasions, and following jury instructions on all pertinent issues of negligence, contributory-comparative negligence, legal causation and damages, the jury returned a verdict for the injured plaintiff in the amount of $100,-000 and a verdict for the plaintiff-wife in the amount of “zero” damages.

One day after the verdict, the trial judge entered an order granting the defendant’s motion for directed verdict, setting aside the jury verdict and reciting that the evidence, considered in the light most favorable to the plaintiffs, showed no basis or reasonable inference from which a jury could determine the issues of liability in favor of the plaintiffs. Final judgment was entered in the defendant’s favor, with the defendant being entitled to costs. This appeal followed.

The plaintiff, on this appeal, argues that the expressway was not well lit, that the flashing lights on the truck were inadequate to give proper notice to the plaintiff as he approached on his motorcycle, that the truck should not have been parked in the manner it was (i. e., actually on the expressway instead of on the shoulder), that the truck crew was aware that the rules and regulations of the Department of Transportation would not permit the type of stop made on the night in question, that the reaction time for a motorcycle driver on a high speed expressway would not provide the motorcycle driver with adequate time to avoid the stopped truck, that there was an adequate shoulder to the right side of the expressway on which the truck could have parked safely allowing other users of the expressway a clear passage, that the crew supervisor on the truck instructed the driver not to pull off onto the shoulder of the expressway, and finally, that the plaintiff motorcycle driver was proceeding home normally with his lights on and wearing his helmet and upon approaching the N.W. 42nd Avenue overpass, had no reasonable opportunity to avoid the Department of Transportation’s truck which was stopped in the right, eastbound lane on the downgrade of the overpass.

The Department of Transportation, on the other hand, points out that the night in question was a clear night with an unrestricted view of anywhere from 320 up to 1,000 feet from the crest of the hill to the point of impact, that the truck stopped in the right hand lane of the eastbound portion of the Palmetto Expressway to pick up some debris and that the left hand lane was completely open and clear and there was no other traffic in the vicinity, that the plaintiff motorcycle driver drove into the truck which was illuminated by lights, stripes and reflectors and that the accident could easily have been avoided by aiming into the left hand lane (the truck was equipped with four revolving strobe lights, two red flashing lights, head lights, break lights and a white license tag light), that expert testimony established that the strobe lights were elevated above the top of the truck and would have been visible to a motorcycle driver at a distance of 1,000 feet, that the entire truck would have been visible at a distance of a little over 500 feet, that at a speed of fifty miles per hour the motorcycle driver would first see the strobe lights some fifteen seconds prior to impact, and from the time the driver would be able to see the entire truck he would have adequate time to avoid the truck completely without having to break or slow down.

The defendant further points out that there was evidence in the record that the plaintiff may have been inattentive to his driving in that during the forty hours prior to the collision, he was recently out of jail, had worked two full shifts at his job and had had two doses of methadone drug substitute.

In considering this appeal, we would note that when a directed verdict comes to an appellate court, the record must show that under no reasonable view of the evidence could the plaintiff recover. See Petroleum Carrier Corporation v. Gates, 330 So.2d 751, 752 (Fla. 1st DCA 1976), where the court held: See also Republic National Life Insurance Company v. Valdes, 348 So.2d 566, 569 (Fla. 3d DCA 1977); and cf. Fountainhead Motel, Inc. v. Massey, 336 So.2d 397 (Fla. 3d DCA 1976).

“It is axiomatic that a directed verdict should be entered only where the state of the evidence is such that a jury of reasonable men could not reach a contrary result. Prior to the adoption of the comparative negligence rule by the Florida Supreme Court in Hoffman v. Jones, Fla.1973, 280 So.2d 431, numerous cases had held that the question of contributory negligence was ordinarily a matter for a jury’s determination. (E. g. Seibels, Bruce and Company v. Giddings, Fla.App. 3rd, 1972, 264 So.2d 103). Because of the very nature of the comparative negligence doctrine, situations in which directed verdicts will be appropriate will occur with even less frequency, particularly in cases where the plaintiff’s own negligence is in issue. We do not here express an opinion as to whether a directed verdict should ever be granted where the negligence of both parties is at issue. We do, however, believe that such cases will be extremely rare.”

The determinative question here is whether the facts as recited support the trial judge’s determination that a jury of reasonable men could find that plaintiff’s injuries were caused only by plaintiff’s own negligence in failing to see and avoid the stopped truck, lighted as it was. Questions of proximate cause are ordinarily for the jury. See cases cited at 23 Fla.Jur. Negligence § 133.

In Brightwell v. Beem, 90 So.2d 320 (Fla.1956), the court dealt with a dissimilar case but one in which the trial judge had directed a verdict for the defendant upon the ground that plaintiff’s injuries were proximately caused by her own negligence. In reversing the judgment, the Supreme Court said:

“Again, we are not intending to hold that this conduct on the part of these defendants constituted negligence as a matter of law. We do here intend to hold that under the circumstances related above it was a matter within the province of the jury to determine whether the proximate cause of this girl’s injury was her own negligence or carelessness in diving or whether it was the failure of the defendants below to warn her not to use the particular area of their amusement park for a purpose other than the admittedly intended purpose.”

In McCabe v. Watson, 225 So.2d 346 (Fla. 3d DCA 1969), this court dealt with a directed verdict for the defendant where the defendant had parked his automobile partially upon the driving portion of a street. The court held that the question of the proximate cause of the plaintiff’s injury was for the jury.

We hold that there is evidence in this record upon which a jury could find that the proximate cause of plaintiff’s injury was, at least in part, due to the defendant’s stopping its truck in a driving lane on a high speed highway, at night without sufficient warning to persons legally using the highway. Cf. Chowning v. Pierce, 174 So.2d 42 (Fla. 3d DCA 1965); see also Moyer v. Martin Marietta Corp., 481 F.2d 585 (5th Cir. 1973).

Accordingly, the judgment is reversed and the cause remanded with directions to enter judgment upon the verdict of the jury.

Reversed and remanded.

      . The defendant had moved for a directed verdict at the conclusion of the plaintiff’s case and at the conclusion of all the evidence. On both occasions, the trial judge reserved ruling.


text:
    ARLEN HOUSE EAST, INC., Appellant, v. Carlos LOWENSTERN and Bertha Lowenstern, his wife, et al., Appellees.
    No. 77-1630.
    District Court of Appeal of Florida, Third District.
    Nov. 14, 1978.

      Greenberg, Traurig, Hoffman, Lipoff, Quentel, Wright & Wolff and Robert M. Sondak, Miami, for appellant.
    Jack L. Herskowitz, Joe N. Unger, Miami, for appellees.
    Before HENDRY and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

This is an appeal by Arlen House East, Inc., defendant and counter-plaintiff below, from an adverse judgment rendered against it, following a jury verdict in favor of the plaintiffs.

Plaintiffs’ cause of action was for damages and a declaratory judgment arising out of an alleged breach of contract by the defendant.

Defendant denied the material allegations of the complaint and interposed a counterclaim charging the plaintiffs with breach of contract and bad faith.

Appellant contends that the judgment should be reversed. The grounds urged for reversal are that the court erred (1) in denying defendant the right to assemble evidence for use at trial; (2) in improperly excluding substantial competent material evidence offered by it on issues for determination; (3) in permitting an attorney for the plaintiffs to testify, over defendant’s objections, that defendant had breached the contract; (4) in failing to rule on the question of liquidated damages, and (5) in giving erroneous instructions to the jury.

All of the grounds relied upon for reversal have been carefully considered in the light of the record on appeal, briefs and arguments of counsel and, we have concluded that no reversible error has been demonstrated. The record discloses that the case was fully and fairly tried; that the verdict and judgment are supported by the evidence; and that the rulings of the trial court challenged by defendant did not, on the record and under the law, constitute harmful error. Warning Safety Lights, Inc. v. Gallor, 346 So.2d 92 (Fla. 3d DCA 1977). Therefore the judgment appealed is affirmed.

Affirmed.


text:
    Jack HUESTIS, Appellant, v. BLUE RIBBON LAUNDRY, INC., a Florida Corporation, Appellee.
    No. 77-2492.
    District Court of Appeal of Florida, Third District.
    Nov. 14, 1978.

      Schwartz, Klein & Steinhardt, North Miami Beach, for appellant.
    Bradford, Williams, McKay, Kimbrell, Hamann & Jennings and Richard T. Woulfe, Miami, for appellee.
    Before PEARSON, BARKDULL and KEHOE, JJ.
   PER CURIAM.

Appellant, plaintiff in the trial court, appeals a final judgment entered after an order setting aside a jury verdict and directing a verdict in appellee’s favor. In the alternative, the trial court granted a new trial because of the giving of an erroneous instruction in the event he was in error in directing a verdict.

We reverse the order granting the directed verdict, because there was evidence or a reasonable inference therefrom, viewed in a light most favorable to the plaintiff, to sustain a plaintiff’s jury verdict. See: Brookbank v. Mathieu, 152 So.2d 526 (Fla. 3d DCA 1963); Whitman v. Red Top Sedan Service, Inc., 218 So.2d 213 (Fla. 3d DCA 1969); Mathis v. Lambert, 274 So.2d 601 (Fla. 3d DCA 1973).

We do agree that the trial judge was correct in granting a new trial because of the giving of an erroneous instruction. See: Dade Underwriters Insurance Agency, Inc. v. Azif, 202 So.2d 809 (Fla. 3d DCA 1967); Shank v. Fassoulas, 304 So.2d 469 (Fla. 3d DCA 1974); Castlewood International Corporation v. LaFleur, 322 So.2d 520 (Fla.1976); Florida Rules Civil Procedure 1.530(d).

Therefore, the final judgment for the defendant in the trial court is reversed, and the cause is remanded for a new trial on all the issues.

Affirmed in part; reversed in part, with directions.


text:
    Norman SEGAL, Appellant, v. ARROW INDUSTRIES CORPORATION, Appellee.
    No. 77-2580.
    District Court of Appeal of Florida, Third District.
    Nov. 14, 1978.
    Chonin & Segor and Marilyn Sher, Coral Gables, for appellant.
    Virgin, Whittle, Garbis & Gilmour, Miami, for appellee.
    Before PEARSON and HENDRY, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The plaintiff filed a complaint seeking damages from his employer claiming a right of action for being wrongfully discharged from his employment where his employment was terminated because he filed a claim for workman s compensation benefits. The trial court dismissed the complaint, and we affirm.

Plaintiff admits that no Florida case supports a cause of action for retaliatory discharge of private employment where, as here, the employment was oral and terminable by either the employer or the employee at any time. Nevertheless, plaintiff asserts that the cause of action should exist and relies upon the reasoning in Frampton v. Central Indiana Gas Company, 60 Ind. 249, 297 N.E.2d 425 (1973); and Sventko v. Kroger Company, 69 Mich.App. 644, 245 N.W.2d 151 (1976). We decline to follow the reasoning of these cases and affirm upon authority of DeMarco v. Publix Super Markets, Inc., 360 So.2d 134, 136 (Fla.3d DCA 1978), and cases cited thereat.

Affirmed.

      . “Retaliatory discharge for filing a workmen’s compensation claim is a wrongful, unconscionable act and should be actionable in a court of law. Although, we know of no other cases in this or in any other jurisdiction holding that such a discharge is actionable, there has been a parallel development in landlord and tenant law. Courts in several jurisdictions have held that ‘retaliatory evictions’ offend public policy.” 297 N.E.2d 425 at 428.

      . * * * * * *
      “[W]hile it is generally true that either party may terminate an employment at will for any reason or for no reason, that rule is not absolute. It is too well-settled to require citation that an employer at will may not suddenly terminate the employment of persons because of their sex, race, or religion. Likewise, the better view is that an employer at will is not free to discharge an employee when the reason for the discharge is an intention on the part of the employer to contravene the public policy of this state.” 245 N.W.2d 151 at 153.


text:
    Sandra BALART, a minor, By and Through her father and next friend, Gilberto Balart, and Irene Balart, her parents, Individually, Appellants, v. MICHEL’S KARTWAY, INC., and All Star Insurance Corp., Appellees.
    No. 78-270.
    District Court of Appeal of Florida, Third District.
    Nov. 14, 1978.

      Michael P. Maguire, Coral Gables, for appellants.
    Robert M. Sussman, Hialeah, for appel-lees.
    Before HENDRY and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

This is an appeal by the plaintiffs below from a judgment for defendants, entered on a directed verdict granted at the close of the presentation of evidence by plaintiffs. We find error, and reverse.

The plaintiff, Sandra Balart, a minor, through her parents, and the parents individually, filed action against Michel’s Kart-way, Inc., and its insurer, All Star Insurance Corporation, for damages for personal injuries received by Sandra, and for derivative damages sustained by the parents. The plaintiffs alleged that Michel’s Kart-way, Inc., herein referred to as the defendant, operated a Go-Kart track facility; that on the day in question, Sandra was an invitee participating in riding a go-kart supplied by defendant; that in her operation thereof, the go-kart left the track and ran into a chain-link fence causing injuries to Sandra; that the defendant was negligent by not providing a means of protection to participants whose karts should leave the road or track.

The defendant answered claiming that by losing control of the kart and leaving the paved track, Sandra was guilty of negligence which was the sole proximate cause of her injuries, and alternatively pleaded that if the defendant was negligent, it was entitled to the benefit of the comparative negligence rule.

Applicable on the trial court’s consideration of the defendant’s motion for directed verdict was the established rule that the motion should not be granted unless it was clear that there was no evidence whatever adduced that could in law support a verdict for the plaintiffs. Chambers v. Loftin, 67 So.2d 220, 221 (Fla.1953); Cadore v. Karp, 91 So.2d 806 (Fla.1957); Guerriero v. Adams, 190 So.2d 432 (Fla. 3d DCA 1966); Lehrer v. Fontainebleu Hotel Corp., 285 So.2d 636 (Fla. 3d DCA 1973). On appeal, in considering the propriety of the directed verdict for the defendant this court is' required to evaluate the evidence in the light most favorable to the plaintiffs, disregarding conflicts in the evidence and indulging in the plaintiffs’ favor every reasonable in-tendment deducible from the evidence. Rodi v. Florida Greyhound Corp., 62 So.2d 355 (Fla.1952); Brightwell v. Beem, 90 So.2d 320, 322 (Fla.1956); Guerriero v. Adams, supra; Seigel v. Mt. Sinai Hospital of Greater Miami, Inc., 250 So.2d 332 (Fla. 3d DCA 1971); Chimeno v. Fontainebleau Corp., 251 So.2d 351 (Fla. 3d DCA 1971).

Because of the doctrine of comparative negligence, the direction of a verdict for defendants at the close of the plaintiffs’ case necessarily was predicated upon conclusion by the trial court that the evidence showed either that Sandra was negligent as a matter of law and that her own negligence was the sole proximate cause of her injuries, or that it was established by the evidence as a matter of law, that the defendant was not guilty of any negligence proximately causing or contributing to cause Sandra’s injuries.

The owner-operator of such a facility as a place of public amusement is not an insurer of the safety of his patrons, but he must exercise ordinary and reasonable care and prudence to have and maintain the place in a reasonably safe condition for all ordinary, customary and reasonable use to which it may be put by the patrons, and to use ordinary and reasonable care for the safety of his patrons, and may be liable for injury to a patron from breach of his duty. Brightwell v. Beem, supra; Schweikert v. Palm Beach Speedway, 100 So.2d 804 (Fla.1958); Gordon v. Hotel Seville, 105 So.2d 175 (Fla. 3d DCA 1958); Sparks v. Ober, 192 So.2d 81, 82 (Fla. 3d DCA 1966).

In this case, there was evidence from which the jury reasonably could have found that the defendant-operator of the premises was negligent by breaching its above outlined duty to the injured patron, by not having furnished some reasonable means to protect child patrons such as this ten year old girl, who well may lose control of a kart and leave the track on a turn. The defendant had knowledge that such had occurred, and therefore had reason to anticipate that such would occur from time to time.

We can take judicial notice of the distance per second that such a motor driven vehicle travels when proceeding at a speed of 25 miles per hour, and of the reaction time of a driver. See Rodi v. Florida Greyhound Lines, supra. At its speed of 25 miles per hour, the kart would travel approximately 37 feet per second, and the reaction time of an able adult driver is generally two-thirds to three-fourths of a second, and for an inexperienced child driver it would be reasonable to assume the reaction time would be longer. When Sandra “lost control” of the kart on a turn, and left the track headed for the fence, assuming the fence was 30 or 35 feet away at that point, she would strike the fence within one second. Assuming she could have reacted in three-fourths of a second, which would be where she was at a point 27 feet off the track, she would have been within 10 feet of the fence going at 20 or 25 miles per hour, on grass, when she could have attempted to apply such brakes as may have been available.

The track contained a series of curves, and some 90 degree and 180 degree turns. The fence which surrounded the track was a chain-link fence, the bottom of which reached to or slightly above the ground. The fence was not anchored to or into the ground, and the bottom edge consisted of unprotected wire ends. From photographs in evidence the fence appeared to be as close as approximately 10 feet from the track at certain places and further distances from the track at other places, and from the evidence it appears to have been 30 to 35 feet from the track at the point where Sandra was injured. When the kart Sandra was driving failed to negotiate a turn it carried her into and under the fence, cutting her face and arms.

Whether the defendant was negligent by failing to make the premises reasonably safe and afford reasonable protection to the kart drivers who could be expected to fail to negotiate a turn and leave the track, as did Sandra in this instance, was a question for the jury. Likewise, whether Sandra, a child 10 years of age, by failing to negotiate a turn and leaving the track in driving such a kart, should be charged with negligence, was a jury question. If both parties should be found to have been guilty of negligence contributing to proximately cause the injuries, the plaintiffs would be entitled to recover, under the doctrine of comparative negligence.

For the reasons stated above, the judgment is reversed and the cause is remanded for a new trial.


text:
    Linda Louise EVANS, Appellant, v. The STATE of Florida, Appellee.
    No. 78-454.
    District Court of Appeal of Florida, Third District.
    Nov. 14, 1978.
    Michael H. Blacker, North Miami Beach, for appellant.
    Robert L. Shevin, Atty. Gen., and James H. Greason, Asst. Atty. Gen., for appellee.
    Before PEARSON and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The appellant was charged by information with two counts of possession of a controlled substance, cocaine. Her tendered plea of nolo contendere to one count, with reservation of right of appeal from an order denying her motion to suppress, was accepted. No sentence was imposed. She was placed on probation for one year. The other count was nolle prossed.

Appellant argues that denial of her motion to suppress as evidence the cocaine found in her possession was error, contending the search upon which it was obtained was illegal.

A highway patrolman saw the appellant pull her car off the road and stop. He approached the vehicle, but was unable to gain her attention, although he observed that her eyes were open. The officer gained entry into the car. With the woman being unable to communicate, he examined her pocketbook to inspect her driver’s license. Two other officers arrived. A Rescue Unit was summoned. A search was made for any identifying device which would delineate a medical disability that could account for her condition [under Section 901.215, Florida Statutes (1977)], and in doing so, there was revealed the substance for possession of which she was charged and prosecuted.

We reject as unsound the appellant’s contention that such search was illegal. The search was not unreasonable in the exigent circumstances. Webster v. State, 201 So.2d 789 (Fla. 4th DCA 1967); Gilbert v. State, 289 So.2d 475 (Fla. 1st DCA 1974); United States v. Barone, 330 F.2d 543 (2d Cir. 1964). The denial of the defendant’s motion to suppress was not error.

The judgment is affirmed.


author: HENDRY, Judge.

text:
    Gladys MOLNE, Appellant, v. Augusto ALFONSO and Consuelo Alfonso, Appellees.
    No. 78-674.
    District Court of Appeal of Florida, Third District.
    Nov. 14, 1978.
    H. C. Starkweather, Miami, for appellant.
    Peter C. Clemente, North Miami, for ap-pellees.
    Before HENDRY, HUBBART and KE-HOE, JJ.
   HENDRY, Judge.

Appellant/defendant appeals from a summary final judgment on the issue of liability in a malicious prosecution action filed by appellees/plaintiffs. We reverse.

In 1973, appellant was involved in a lawsuit with appellees for specific performance. It was alleged by appellees in that suit that appellant executed a deposit receipt agreement to sell her apartment house to a prospective purchaser. Appellant denied executing the agreement and filed a cross-claim against appellees for forgery of her signature. Subsequently, by jury verdict, the forgery issue was determined in favor of appellees.

Appellees later filed a malicious prosecution suit against appellant arising out of the 1973 lawsuit. Appellant asserted by way of affirmative defenses (1) that in filing the cross claim in the prior action, she was acting under the express advice of counsel; (2) that she acted with probable cause; and (3) that she was telling the truth about the forgery. Appellees filed a motion for summary judgment on the issue of liability urging that the trial judge strike appellant’s affirmative defenses. The trial judge granted partial summary judgment and this appeal has been taken.

We hold that the court erred in entering partial summary judgment as there were clearly genuine issues of material fact left unresolved. Holl v. Talcott, 191 So.2d 40 (Fla.1966).

In a malicious prosecution action, there are six elements which must be proven: (1) the commencement or continuance of an original criminal or civil judicial proceeding; (2) its legal causation by the present defendant against the plaintiff, who was the defendant in the original proceeding; (3) the bona fide termination of the proceeding in favor of the present plaintiff; (4) the absence of probable cause for institution of such proceeding; (5) the presence of malice; and (6) damages. Applestein v. Preston, 335 So.2d 604 (Fla. 3d DCA 1976).

The issues of material fact raised by appellant’s affirmative defenses were not necessarily determined by the prior adverse judgment in the 1973 action. Burchell v. Bechert, 356 So.2d 377 (Fla. 4th DCA 1978). Accordingly, partial summary final judgment is reversed and remanded for further proceedings.

Reversed and remanded for further proceedings.


text:
    The STATE of Florida, Petitioner, v. Honorable Herbert STETTIN, Judge of the Circuit Court, Eleventh Judicial Circuit in and for Dade County, Florida, Respondent.
    No. 78-1526.
    District Court of Appeal of Florida, Third District.
    Nov. 14, 1978.
    Janet Reno, State’s Atty. and Milton Robbins, Asst. State’s Atty., for petitioner.
    Carl H. Lida, Miami, for respondent.
    Before PEARSON, BARKDULL and KEHOE, JJ.
   PER CURIAM.

The defendant, Carl J. Germaine, pleaded guilty to a misdemeanor charge in the Dade County Court in 1975 and was sentenced to pay a fine, which was paid. In 1978 he filed a petition for a writ of error coram nobis in the Circuit Court of the Eleventh Judicial Circuit and the circuit court entered a rule nisi directed to the State. Thereafter, the State sought a writ of prohibition in this court, contending that the circuit court, not being the original trial court, could not issue a writ of coram nobis. We issued a rule nisi in prohibition and upon a return consider the cause on the merits.

We find that the County Court of Dade is a constitutional court given jurisdiction over misdemeanor crimes, pursuant to Article V, Section 7, Florida Constitution, and Sections 34.01 and 900.03, Florida Statutes (1977).

Coram nobis originated at common law as a writ available in the original trial court. Lamb v. State, 91 Fla. 396, 107 So. 535 (1926); Leavitt v. State, 116 Fla. 738, 156 So. 904 (1934); House v. State, 130 Fla. 400, 177 So. 705 (1938); Russ v. State, 95 So.2d 594 (Fla.1957). We hold that the circuit court, not being the original trial court, was without jurisdiction to entertain the petition for writ of error coram nobis. It appears, by the wording of Section 900.-03, Florida Statutes (1977), that the County Court of Dade has the power to issue writs necessary to the exercise of its criminal jurisdiction.

Therefore, if it becomes necessary, we will make the rule nisi in prohibition, heretofore issued by this court, absolute.

      . “Courts vested with criminal jurisdiction; process.
      “(1) Original jurisdiction in criminal cases is vested in the circuit courts and county courts.
      “(2) Courts having criminal jurisdiction may issue writs and process necessary to the exercise of the criminal jurisdiction and the writs and process shall have effect through the state.”


text:
    Keelan T. MURRELL, Appellant, v. STATE of Florida, Appellee.
    No. 77-2206.
    District Court of Appeal of Florida, Fourth District.
    Nov. 15, 1978.
    Richard L. Jorandby, Public Defender, West Palm Beach, and Martin H. Colin, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Benedict P. Kuehne, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

This is an appeal from an order revoking probation. Appellant was charged and found guilty of violating two terms of probation, failing to make monthly written reports to his probation officer and failing to make monthly payments towards a public defender’s lien. Because there was no evidence that appellant was able to make the payments, revocation of probation for failure to pay the public defender’s lien was improper. Robbins v. State, 318 So.2d 472 (Fla. 4th DCA 1975). While it was shown that appellant had failed to file the required monthly reports, we cannot be certain whether the trial court would have revoked probation and imposed the same sentence solely upon that violation of probation. McKeever v. State, 359 So.2d 905 (Fla. 2d DCA 1978). Accordingly, the order of revocation is reversed for further proceedings consistent herewith.

ANSTEAD, DAUKSCH and MOORE, JJ., concur.


text:
    Shelia McCALLUM, Appellant, v. Rodney H. McCALLUM, Appellee.
    No. 77-2309.
    District Court of Appeal of Florida, Fourth District.
    Nov. 15, 1978.
    Karl F. Loucks, II, of Scott, Burk, Royce, Harris & Loucks, P. A., Palm Beach, for appellant.
    Walter N. Colbath, Jr., of Campbell, Col-bath, Kapner & Fine, West Palm Beach, for appellee.
   PER CURIAM.

This appeal involves the denial of the appellant/wife’s request for attorneys’ fees in a post-decretal domestic relations matter. The marriage was dissolved by final judgment of January 20, 1976. Subsequent thereto the wife filed a petition for modification but did not include in said petition a request for attorneys’ fees. The Court ruled on the petition for modification by order of April 4, 1977, and on August 5, 1977, the appellant/wife filed a motion to tax attorneys’ fees and costs. The motion for attorneys’ fees was filed after the rehearing and appeal time had run on the order entered granting the petition for modification. The trial court eventually dismissed the wife’s request for attorneys’ fees with prejudice. We find the trial court to have been completely correct in doing so. See, Frumkes v. Frumkes, 328 So.2d 34 (Fla. 3d DCA 1976), and Reardon v. Reardon, 355 So.2d 207 (Fla. 1st DCA 1978). Appellant argues that a reservation of jurisdiction regarding attorneys’ fees was contained in the initial final judgment and that this reservation requires a different result. This argument is without merit since the reservation in the initial final judgment related to past attorneys’ fees rather than future attorneys’ fees. Indeed, attorneys’ fees were eventually taxed for the services rendered on the securing of the final judgment of dissolution. The fees in question here relate to post-decretal matters only, and the absence of a request for the fees left the Court without jurisdiction to order same. The order below is therefore affirmed.

LETTS, MOORE and BERANEK, JJ., concur.


author: DAUKSCH, Judge.

text:
    In the Interest of Wendy Dee PETERSON, a child.
    No. 78-308.
    District Court of Appeal of Florida, Fourth District.
    Nov. 15, 1978.
    C. Lavon Ward, Fort Lauderdale, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and John C. Cecilian, Asst. Atty. Gen., West Palm Beach, for appellee.
   DAUKSCH, Judge.

This opinion revisits the matter we had before us In re Adoption of Wendy Dee Peterson, 344 So.2d 638 (Fla. 4th DCA 1977). The grandparents mentioned in that opinion have now suggested the child is a dependent child within the meaning of Section 39.01, Florida Statutes (1977) and seek to have the juvenile division of the circuit court declare her to be such a dependent child. When the petition was brought before the judge of the juvenile division of the circuit court he granted a motion to dismiss the petition. The order did not state a reason but the motion was grounded upon lack of jurisdiction and res judicata. The motion, which was filed by the natural father, said because another circuit judge of the same circuit, Jose A. Gonzalez, Jr., had entered an order in regard to the custody of the child and retained jurisdiction of the matter that this circuit judge had no jurisdiction to hear and determine the matter of the child’s dependency.

The circuit court has jurisdiction over all matters concerning the custody and welfare of children. All circuit court judges have the same jurisdiction within their respective circuits. A judge in the probate division or the juvenile division or the civil division or the criminal division has the authority and jurisdiction to hear cases involving child custody or dependency. The internal operation of the court system and the assignment of judges to various divisions does not limit a particular judge’s jurisdiction. Therefore the judge was in error when he dismissed the petition for lack of jurisdiction. See also, State ex rel. Hendricks v. Hunt, 70 So.2d 301 (Fla.1954).

When Judge Gonzalez, on July 2, 1974, determined the proper custody of the child and retained jurisdiction to enter other orders for the welfare of the child he later found it necessary to change custody to the natural father on June 1, 1976 by way of Final Judgment. It is noted he did not retain jurisdiction to himself in that final judgment but, as stated earlier, the circuit court always has jurisdiction over the welfare and custody of children.

Because Judge Gonzalez is much more acquainted with the parties involved and because we are not here to try to control the inner workings and case management of the trial courts we deem it best and proper to reverse the order dismissing the petition and remand this matter to the trial court. However, hearing on the petition for dependency is stayed until a proper petition for change of custody is filed and heard.

REVERSED and REMANDED.

DOWNEY, C. J., and ANSTEAD, J., concur.

      . Of course when a judge acts in the juvenile division he acts under certain rules and statutes peculiar to that area of the law and a “juvenile judge” may have exclusive jurisdiction within the limited areas governing juveniles. State v. Robinson, 336 So.2d 437 (Fla. 2d DCA 1976). That judge can act in the person of any judge of the circuit.


author: ERVIN, Judge.

text:
    Muhammed SIDDEEQ, Petitioner, v. TALLAHASSEE MEMORIAL HOSPITAL, Respondent. Bennie Mae BRADHAM, Petitioner, v. TALLAHASSEE MEMORIAL HOSPITAL, Respondent.
    Nos. JJ-83, LL-218.
    District Court of Appeal of Florida, First District.
    Nov. 15, 1978.

      Steven Seliger and Joyce Davis, Tallahassee, for petitioners.
    John D. Buchanan, Jr. and James R. English of Henry, Buchanan, Mick & English, Tallahassee, for respondent.
   ERVIN, Judge.

Petitioners contend that respondent Tallahassee Memorial Hospital is an “agency” within the meaning of Section 120.52(l)(c), Florida Statutes (1977), and erroneously denied their request for a Section 120.57 hearing to determine whether they had a right to uncompensated services of the hospital. We disagree and affirm.

The municipal hospital board of Tallahassee Memorial Hospital was created by special act of the legislature in Chapter 65-2299, Laws of Florida (1965). As part of the municipality, and because no general or special law mandates otherwise, the Board is not an “agency” within the meaning of Section 120.52(l)(c). Compare Amerson v. Jacksonville Electric Authority, 362 So.2d 433 (Fla. 1st DCA 1978), where we recently held the Jacksonville Electric Authority, a municipally-owned corporation, was not an “agency” subject to the Administrative Procedures Act.

AFFIRMED.

SMITH, Acting C. J., and MITCHELL, HENRY CLAY, Jr., Associate Judge, concur.


text:
    T. R., a child, Appellant, v. STATE of Florida, Appellee.
    No. JJ-285.
    District Court of Appeal of Florida, First District.
    Nov. 15, 1978.

      Michael J. Minerva, Public Defender, Janice G. Scott, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., Raymond L. Marky, Asst. Atty. Gen., for appellee.
   ERVIN, Judge.

Appellant, adjudicated below a delinquent child, argues the trial court erred in refusing to dismiss a petition charging him delinquent because (1) he was twice placed in jeopardy for the same offense, and (2) the state failed to file the petition within 30 days of the date the delinquency complaint was filed with the Division of Youth Services.

A juvenile report was filed on November 29, 1977, with the Division alleging appellant delinquent for stealing a package of glue from Woolco Department Store. The state filed a petition on December 28, 1977, alleging the same facts. Hearing on the petition was held February 15, 1978, at which time an employee in the automotive department at Woolco testified he saw appellant place a package of glue under his shirt on November 28, 1977. Testimony revealed that the employee-witness was not employed by Woolco but by Amron, an automotive supply company which leases space in Woolco, and that the glue belonged to Amron. When it was discovered that the petition incorrectly alleged Woolco the owner, the state moved to amend the petition, and appellant’s objection to the state’s motion to amend was sustained. Appellant moved for a judgment of acquittal, and the state moved to nolle prosequi. The trial judge granted the state’s motion.

Immediately after the hearing, the state filed a second petition, identical to the first except that Amron was named victim of the theft. Appellant moved to dismiss on the grounds previously stated, and the motion was denied. A second hearing was held, following which appellant was adjudicated delinquent.

Appellant first argues that the filing of the second petition after testimony had been taken exposed him to double jeopardy. We disagree with appellant. Former jeopardy attaches if a defendant has already been prosecuted in the same state for the same offense, if the parties in the second prosecution are identical to those in the first prosecution, and if the particular offense which was the subject of the first prosecution “was such an offense as to constitute a bar.” State v. Beamon, 298 So.2d 376, 379-80 (Fla.1974). The facts in Beam-on are similar to those in appellant’s case. An information charged Beamon with robbing a victim on November 26. Later, a bill of particulars stated the crime occurred on November 24. At trial, Beamon moved for and was granted a judgment of acquittal after the victim testified she was robbed on November 26. The next day the state filed an information and a bill of particulars charging Beamon with robbery of the same victim on November 26. The Supreme Court held that the second information did not place Beamon twice in jeopardy for the same offense. The bill of particulars in each information had the effect of limiting the state to proof that the crime occurred on a particular date, and proof of another date would not justify conviction. The Beamon court reaffirmed Le Rea v. Cochran, 115 So.2d 545 (Fla.1959), State v. Bentley, 81 So.2d 750 (Fla.1955), and State v. Cootner, 60 So.2d 734 (Fla.1952): “Each of those cases stand for the proposition that double jeopardy does not bar prosecution for an offense where a previous accusatory document mistakenly identified one of the essential elements of the offense and an acquittal under the prior accusatory document had been obtained.” Beamon, supra at 380.

Here, the first petition mistakenly identified the victim of the theft, and the charge was nolle prossed. “The offense charged in the first [petition] . . . was not the same offense as that charged in the second . .” Beamon, supra at 380.

In support of his argument that the prosecution under the second petition placed him twice in jeopardy, petitioner urges that the trial court erred when it refused to allow the state to amend the first petition because the variance was not material. Appellant is estopped from making such argument since he objected at the hearing that the variance was material. Beamon, supra at 378. Further, it is clear that the variance was material. Recently, in State v. Sobel, 363 So.2d 324 (Fla.1978), the court restated the test for determining whether a variance between the accusatory document and proof at trial is material and mandates dismissal or acquittal:

In deciding whether or not the variance is fatal, we must determine whether the information is “so vague, indistinct and indefinite as to mislead the accused and embarrass him in the preparation of his defense or expose him after conviction or acquittal to substantial danger of a new prosecution for the same offense.” (363 So.2d p. 328).

That test is based on Fla.R.Crim.P. 3.140(o), which is identical in all material respects to Fla.R.Juv.P. 8.110(d). Here, appellant was prejudicially misled by the variance. He was prepared to defend against the charge alleging he stole from Woolco. During the hearing, the state moved to amend the petition to charge a different offense than that which petitioner was prepared to defend. The trial judge did not err in allowing the state to nolle prosequi the petition. See also Crowell v. State, 238 So.2d 690 (Fla.3d DCA 1970).

We agree, however, with appellant’s second point that the later petition should have been dismissed because it was filed more than 30 days after the complaint had been filed with the Division of Youth Services. Section 39.05(7), Fla.Stat. (1977), states, “On motions by or in behalf of a child, a petition alleging delinquency shall be dismissed with prejudice if it was not filed within 30 days from the date the complaint was referred to the intake office.” The state responds that appellant was not prejudiced by the later filing, and the time was tolled by the filing of the first petition since both alleged the same offense. The statute, however, gives the trial court no discretion to deny motions to dismiss under § 39.05(7) when it is clear a petition is not filed within the designated 30 days. The statute, like § 775.15(5), describing the time within which criminal prosecutions must be commenced, gives a juvenile, upon an appropriate showing in a motion to dismiss, a substantive right to have the charges against him dismissed. S. R. v. State, 346 So.2d 1018 (Fla.1977). Compare, Waters v. United States, 328 F.2d 739 (10th Cir. 1964).

The state’s argument as to the second point, that the § 39.05(7) time period was tolled when the petition was first filed, is also without merit. Discussing the effect of Arizona’s criminal statute of limitations, the court in State v. Fogel, 16 Ariz.App. 246, 492 P.2d 742 (1972), stated that there are generally three types of such statutes: “(1) Statutes which provide that an indictment must be filed within a specified time, (2) statutes which provide that prosecution must commence within a specified time, and (3) statutes which provide that the statute of limitations is tolled if an indictment is quashed.” Id. at 744. Since only filing a petition will toll the time in § 39.05(7), and since the statute has no “savings clause” which would allow defective petitions to toll the time, it is a statute of the first type described by the Arizona court.

Fogel held the Arizona statute was also in the first category and that after three grand jury indictments were quashed because a disqualified attorney had presented evidence, three more indictments charging the same offenses and filed outside the statute of limitations were not saved by the timely filing of the three original indictments. The state’s argument that it had not stopped “diligently pursuing” the indictments was irrelevant. Id. at 744.

Here the defect in the first accusatory document was more than formal. The defect was material, charging a wholly different offense than that which the state sought to prove at the first hearing, and later, charged in the second document. Given these facts and the requirements of § 39.05(7), the 30 day period was not tolled when the state filed the first petition.

Appellant’s adjudication of delinquency is REVERSED.

SMITH, Acting C. J., and MITCHELL, HENRY CLAY, Jr., Associate Judge, concur.

      . Which provides:
      No petition or any count thereof, shall be dismissed, or any judgment vacated, on account of any defect in the form of the petition or of misjoinder of offenses or for any cause whatsoever unless the court shall be of the opinion that the petition is so vague, indistinct, and indefinite as to mislead the child, his parent(s), or custodian(s) and prejudice him (them) in the preparation of his (their) defense.

      . “An indictment . . for a felony . shall be found . . . within five years after its commission.” A.R.S. § 13-106(B) (1972). “Found” means “duly returned and presented by the grand jury in open court.” A.R.S. § 13-106(D) (1972).

      . Compare § 775.15(5), Fla.Stat. (1977), which states that a prosecution is commenced with the filing of an indictment or an information, but provides that indictments or informations dismissed or set aside because of formal defects toll the statute for three months. We extensively considered the effect of § 775.15(5) in State ex rel. Fla. Petro. Mktrs. Ass’n, Inc. v. McClure, 330 So.2d 239, 243-244 (Fla. 1st DCA 1976), as to criminal prosecutions and concluded: “[A] restorative indictment . . . , filed within three months of one timely filed but dismissed, is effective to continue the prosecution . .


text:
    WHITE ADVERTISING INTERNATIONAL, a division of Whiteco Industries, Inc., Appellant, v. FLORIDA DEPARTMENT OF TRANSPORTATION, Appellee.
    No. KK-46.
    District Court of Appeal of Florida, First District.
    Nov. 15, 1978.
    Clifton A. McClelland, Jr., of Nabors, Potter, McClelland & Griffith, Titusville, for appellant.
    John J. Rimes and H. Reynolds Sampson, Tallahassee, for appellee.
   ERVIN, Judge.

White appeals from DOT’s order finding its road sign in violation of § 479.07(1), Fla.Stat. (1977).

In 1969, White built a sign about 18 feet from the nearest right-of-way of 1-95 in Nassau County. The sign was lawfully in existence on December 8,1971, even though violative of § 479.11(2), because located within 660 feet of a portion of the interstate system, the sign was grandfathered in under §§ 479.23 and 479.24 and allowed to remain in place as long as the use remained non-conforming. The sign had a valid permit issued by DOT.

On about June 1, 1977, White changed the message from a Holiday Inn advertisement to a Days Inn advertisement. Subsequently, DOT ordered the sign removed as violative of § 479.07(1) because it had been altered to such an extent that it was in effect a new sign, and its use no longer non-conforming.

The hearing officer, whose recommended order was adopted by DOT, made the following findings: DOT did not consider the Holiday Inn star and chimney, which extended approximately seven feet above the top of the Holiday Inn sign, or the lattice work attached to its bottom, to be part of the sign face. The Holiday Inn sign face area was approximately 14 feet by 40 feet. When White changed the ad message on behalf of Days Inn, the star, chimney and lattice work were removed. The bottom of the Days Inn sign was about six feet higher from the ground than the bottom of the Holiday Inn sign. The Days Inn sign was the approximate height of the Holiday. Inn sign at the top of the star and chimney, and the hearing officer found it used approximately 240 square feet more air space than its predecessor. As a result, the visual impact on the traveling public was “greatly enlarged” because the wording on the Days Inn sign was projected six feet higher into the air than the wording on the Holiday Inn sign. Twenty-two new four-by-six vertical boards were placed behind the new sign face. The vertical boards cost $165.00; labor, $179.00; the new sign facing, $970.00.

The hearing officer concluded that White had erected a sign in violation of § 479.11, Fla.Stat. (1977), because the alterations were too extensive to be either “customary, maintenance or repair” of the existing sign or alterations incidental to a change in the sign’s advertising message.

Section 479.11(1) provides that no outdoor advertising sign “shall be constructed, erected, used, operated . . . within 660 feet ... of the right-of-way . of the interstate system . . .” Section 479.01(12) defines “erect” as follows:

[T]o construct, build, raise, assemble, place, affix, attach, create, paint, draw, or in any other way bring into or establish; but it shall not include any of the foregoing activities when performed as an incident to the change of advertising message or customary maintenance or repair of a sign structure.

A sign in violation of Chapter 479 is “a public and private nuisance and shall be forthwith removed, obliterated or abated by the [department] . . . .” Section 479.-17.

We do not agree with White that DOT’s construction of § 479.01(12) is erroneous or overbroad. A finding that raising the sign face several feet was more than incidental to a change in the advertising message is not inconsistent with the statute.

Furthermore, DOT is not required to promulgate a rule as a condition to its delegated authority permitting it to interpret a statute governing its regulatory power. See § 120.68(7), authorizing an agency to interpret law or policy within its exercise of delegated discretion. “While the Florida APA thus requires rulemaking for policy statements of general applicability, it also recognizes the inevitability and desirability of refining incipient agency policy through adjudication of individual cases. [E]ven the agency that knows its policy may wisely sharpen its purposes through adjudication before casting rules.” McDonald v. Dept. of Banking and Finance, 346 So.2d 569, 581 (Fla. 1st DCA 1977). Finally, we conclude that the findings of fact of both DOT and the hearing officer were based on competent, substantial evidence.

The order appealed from is AFFIRMED.

SMITH, Acting C. J., and MITCHELL, HENRY CLAY, Jr., Associate Judge, concur.


author: McCORD, Chief Judge.

text:
    Ralph R. CRABTREE, Appellant, v. Edward C. ROGERS and Julianne Rogers, his wife, and Clemmons Tractor Parts, Inc., Appellees.
    No. LL-120.
    District Court of Appeal of Florida, First District.
    Nov. 15, 1978.
    Alan B. Fields, Jr., of Dowda & Fields, Palatka, for appellant.
    Robert R. Perry of Miller & Perry and John D. Mussoline of Clark & Mussoline, Palatka, for appellees.
   McCORD, Chief Judge.

Appellees have filed a motion to compel compliance with the Florida Rules of Appellate Procedure and for sanctions directed against appellant. The appeal is from a final summary judgment in favor of appel-lees. No record has been filed in this proceeding. Appellant’s brief is supported only by an appendix prepared in accordance with Fla.App.R. 9.220. Appellant contends the appendix is all that is required under the rule and that since he has filed an appendix, a record is not necessary.

We have examined Fla.App.Rule 9.220, which pertains to the filing of an appendix and nowhere in it do we find that it eliminates the filing of a record. Rule 9.110 sets out the procedure for review of final orders of lower tribunals and paragraph (e) provides:

“Within 50 days of filing the notice, the clerk shall prepare the record prescribed by Rule 9.200 and serve copies of the index on all parties. Within 110 days of filing the notice, the clerk shall transmit the record to the court.” (Emphasis supplied.)

Thus it is apparent that the record prescribed by Rule 9.200 must be prepared and filed. Nowhere in that rule is an appendix authorized in lieu of a record. Paragraph (e) provides:

“The burden to ensure that the record is prepared and transmitted in accordance with these rules shall be on the petitioner or appellant. Any party may enforce the provisions of this rule by motion.”

Rule 9.220 permits the filing of an appendix with a petition, brief, motion or response but makes an appendix mandatory in certain proceedings enumerated therein. The filing of an appendix is in addition to and not in lieu of a record in appeal proceedings to review final orders of lower tribunals.

Appellees’ motion to impose sanctions is denied, but the motion to compel compliance by appellant with the Florida Rules of Appellate Procedure is granted and the time sequence set forth in Rule 9.110 shall begin anew for both parties from the date of this order in the same manner as though appellant’s notice were filed on the date of this order.

ERVIN and MELVIN, JJ., concur.