text:
    F & R BUILDERS, Lennar Corporation and Travelers Indemnity Company, Appellants, v. The LOWELL DUNN COMPANY and Liberty Mutual Insurance Company, Appellees.
    No. 77-2467.
    District Court of Appeal of Florida, Third District.
    Nov. 21, 1978.
    Rehearing Denied Dec. 18, 1978.

      Knight, Peters, Pickle, Niemoeller & Flynn, Miami, and Richard G. Daniels, Coral Gables, for appellants.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and James C. Blecke, Miami, for ap-pellees.
    Before BARKDULL, HUBBART and KEHOE, JJ.
   BARKDULL, Judge.

F & R Builders, Lennar Corporation, and Travelers Indemnity (third party plaintiffs in the trial court), seek review of a summary final judgment entered in favor of the Lowell Dunn Company and Liberty Mutual Insurance Company, third party defendants in the trial court.

The facts giving rise to the instant case are as follows: F & R Builders was building a shopping center on Marlin Road near U. S. Highway # 1. Other defendants in the trial court (not a party herein) were building a gasoline station in the vicinity. Dunn entered into a contract with F & R to pave the parking lot of the shopping center. Dunn also agreed as to some extras on an equipment rental basis, which included finish grading of the limerock base in the median on Marlin Road. Dunn’s written contract was completed March 10, 1972 and the extras on March 14, 1972. At that time inspection of the work revealed no noticeable defects in Marlin Road. Subsequent thereto, subcontractors building the gasoline station dug a ditch across Marlin Road to lay telephone wires and they paved a left-turn lane in Marlin Road. Dunn did no work in this area, nor did it have any of its equipment in the area. Thereafter, the exact time being unknown, a pothole appeared in Marlin Road near the area where the telephone lines were laid and the paving of the left-turn lane. The original plaintiffs, while driving on Marlin Road, struck this pothole, lost control of their vehicle, resulting in an accident wherein they received severe injuries.

The original plaintiffs filed suit against the appellants herein, the appellees and several others. As that cause progressed, the appellees herein, along with some others, were voluntarily dismissed as party defendants. Thereupon, appellants herein filed a third party complaint, seeking indemnification from the appellees based on common law indemnification and/or an alleged oral agreement of indemnification. After dismissal of the third party complaint with leave to amend, a belated amended third party complaint was filed and the third party action was severed from the original negligence action. The remaining defendants in the original action settled that case, and the appellants herein proceeded on their third party complaint seeking indemnification and suffering the adverse summary judgment appealed herein.

We affirm the trial court. In order to obtain indemnification there must be some showing, either actual or by inference, that Dunn created the pothole giving rise to this claim. Holl v. Talcott, 191 So.2d 40 (Fla.1966); Firestone Tire & Rubber Company v. Thompson Aircraft Tire Corporation, 353 So.2d 137 (Fla. 3d DCA 1977); Spring Lock Scaffolding Rental Equipment Company v. Charles Poe Masonry, Inc., 358 So.2d 84 (Fla. 3d DCA 1978). Absent such a showing, Dunn could not be held negligent in any way, so as to permit indemnity. There is a total lack of proof on this issue. All of the evidence clearly shows that Dunn operated no equipment in the vicinity where the pothole appeared and that the pothole did not, in fact, come into existence until subsequent to the departure of Dunn from the area. While it is true there is evidence to the effect that the hole was caused by a tracked vehicle or a back hoe, without something to tie the cause to Dunn it is insufficient to preclude entry of the summary judgment appealed herein. Food Fair Stores of Florida v. Patty, 109 So.2d 5 (Fla.1959); Holl v. Talcott, supra; Connell v. Sledge, 306 So.2d 194 (Fla. 1st DCA 1975). The appellants’ contention that they are entitled to a trial on the issues because of their assertion that Dunn was responsible for creation of the pothole because it was caused by heavy equipment is a mere paper issue, there being nothing in the record to support a genuine issue of material fact on this issue. Bared v. Miami Professional Sports, Ltd., 353 So.2d 167 (Fla. 3d DCA 1977). Issues of fact do not arise merely because a party disagrees with the facts established by competent evidence submitted by the moving party in a summary judgment proceeding, nor merely because the party moved against would like the opportunity of having a jury pass upon such facts and make an independent determination as to the correctness thereof. Robinson v. Loyola Foundation, Inc., 236 So.2d 154 (Fla. 1st DCA 1970).

Therefore, as there is nothing to connect the appellee to creation of the condition giving rise to the original negligence action, we find the trial court properly entered the summary final judgment in favor of the appellees herein.

In light of our finding that no negligence of any kind can be attributed to the Lowell Dunn Company, we find the other points raised by the appellants to be without merit.

Based on the foregoing, the summary final judgment appealed herein is hereby affirmed.

Affirmed.

KEHOE, J., dissents.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Jose B. LATTI a/k/a Joe Bujan, Appellant, v. STATE of Florida, Appellee.
    No. 78-86.
    District Court of Appeal of Florida, Second District.
    Nov. 22, 1978.

      Jack 0. Johnson, Public Defender, Bar-tow, and Wayne Chalu, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant contends that the trial court’s instruction on the crime of grand larceny by false pretenses was inadequate. We agree.

The state charged appellant with grand larceny by false pretenses and at trial presented evidence to show that appellant had received several thousand dollars from Will Cagle, a race car driver, in return for his promise that Cagle would receive a $30,-000 racing contract from Tandy Corporation. Appellant did not deliver the contract and, according to the state’s witnesses, never had any agreement with Tandy concerning a sponsorship for Cagle. Appellant testified in his own behalf, denying that he ever accepted money from Cagle in return for a promise to secure a sponsorship.

Appellant requested the following instruction on grand larceny by false pretenses:

The essential elements of crime of larceny by color or aid of fraudulent or false representation or pretense which must be proved beyond a reasonable doubt before there can be a conviction in this case are that JOSEPH BUJAN did:
1. falsely represent a past or existing fact.
2. have knowledge of its falsity.
3. intend to defraud.
4. have a preconceived purpose to appropriate the money or property.
5. actually appropriate the money or property to his own use. and that WILL CAGLE:
6. relied on the misstatement by JOSEPH BUJAN.
7. surrendered property or money because of the representation of JOSEPH BUJAN.

The court denied appellant’s request and instead gave this instruction:

The essential elements of the crime of larceny which must be proved beyond a reasonable doubt before there can be a conviction in this case are:
1. The defendant did unlawfully and knowingly obtain from the possession and control of Will Cagle the sum of more than one hundred dollars.
2. That such possession was obtained from Will Cagle by color or aid of fraudulent or false representations or pretenses with reference to a past or existing fact.
3. At the time of obtaining possession of any such cash from the said Will Cagel the said defendant had an intent to permanently deprive said Will Cagle of the use of his property.
An essential element of every larceny is the intent of the offender to personally deprive the owner of the possession, use and enjoyment of his property and to convert that property to the use and enjoyment of some other person.

Recently in Koltay v. State, 360 So.2d 802 (Fla. 2d DCA 1978), this court held that in a case involving grand larceny by false pretenses the trial court must instruct the jury on the essential elements of the crime of false pretenses. These elements are 1) false representation of a past or existing fact, 2) knowledge of its falsity, 3) intent to defraud, 4) reliance on the misstatement by the other party, and 5) surrender by the other party of property because of the representation.

In the present case, a reading of the instructions we have set out above clearly shows that while appellant’s instruction contained the five elements of false pretenses, the trial court’s instruction did not. Consequently, we think that the court erred in refusing appellant’s instruction and in giving its own inadequate one.

There is one other point we should note. The trial court placed appellant on probation and as one of the conditions thereof ordered appellant to make restitution to Will Cagle. While a court may properly make restitution a condition of probation, it may not do so unless it gives the defendant notice of the proposed restitution order and an opportunity to be heard. Fresneda v. State, 347 So.2d 1021 (Fla.1977). Here, the court did not meet the notice and hearing requirement, and so the imposition of the restitution condition was error.

We reverse the order placing appellant on probation and remand the case for a new trial.

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


author: GRIMES, Chief Judge.

text:
    BAY AREA NEWS, INC., etc., et al., Appellants, v. William POE, etc., et al., Appellees.
    No. 78-206.
    District Court of Appeal of Florida, Second District.
    Nov. 22, 1978.

      J. Richard Rahter of Fox & Rahter, St. Petersburg, for appellants.
    Thomas K. Morrison, Tampa, for appel-lees.
   GRIMES, Chief Judge.

This is an appeal from an order of dismissal construing Tampa City Code § 20-65 as valid in the face of appellants’ first amendment attack.

Appellants are owners and operators of several “adult” bookstores and live nude model photo studios in the City of Tampa. Each held a city occupational license as of the close of business October 26, 1977. By resolutions passed at a meeting on October 27, 1977, the Tampa City Council revoked appellants’ city licenses because appellants or their employees had been convicted of crimes involving moral turpitude committed in the course of the licensed businesses. The council acted pursuant to § 20-65 of the City Code which reads as follows:

Sec. 20-65. Revocation of permit and license for conviction involving moral turpitude; reinstatement.
If at any time a person, during the course of engaging in the business or occupation for which he is licensed under this chapter, shall be guilty of any offense involving moral turpitude and is convicted thereof, upon the production of the due and proper record of such conviction to the city council, the council may forthwith revoke the permit and license of such person, in such occupation or business, and the same shall not be reinstated except by the city board, upon good assurance presented to the council at a public hearing by said person, whose license was revoked, said hearing to be set and held by the council within ten (10) days after the council is notified in writing by said person, that it desires such a hearing before the council. .

The resolutions revoking the licenses became effective immediately upon passage.

Appellants each requested a hearing before the council as envisioned by § 20-65. At the hearing appellants did not dispute the existence of the convictions giving rise to the council’s action, but generally opposed the council’s decision. The council, however, stood by its resolutions of October 27.

Appellants continued to operate their businesses without city licenses in violation of City Code § 20-2. They also filed suit in circuit court seeking both an injunction to prevent appellees from continually arresting their employees and a declaration that the ordinance and the resolutions revoking their licenses were unconstitutional restrictions on the freedom of expression guaranteed by the first amendment of the United States Constitution. Appellees answered and counterpetitioned to enjoin appellants from continuing to operate their respective businesses without valid city licenses. Contemporaneously, appellees moved to dismiss the complaint. The complaint was dismissed with leave to amend. Appellants filed an amended complaint which, upon appellees’ motion, was dismissed with prejudice. Subsequently, the court entered a preliminary injunction preventing the appellants from continuing to operate without city licenses.

Appellants contend that City Code § 20-65 is unconstitutional as applied to them because it acts as a prior restraint on their exercise of first amendment rights to free expression. Appellants argue that if they can be prevented from disseminating any publications simply because in the past they have distributed unprotected, obscene matter in violation of obscenity laws, their right to free expression has been wrongfully conditioned on the content of past expression. See Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931). We cannot agree.

The ordinance in question is quite narrow. Not only does revocation depend upon conviction of a crime involving moral turpitude, but the crime must have been committed in the course of engaging in the licensed occupation. Therefore, the purpose of § 20-65 as applied to appellants is not to restrain them from future dissemination of printed material but to call them to account for past abuses of the privilege of doing business in the city.

In 106 Forsyth Corporation v. Bishop, 362 F.Supp. 1389 (M.D.Ga.1972), the court rejected an argument that a city ordinance allowing the mayor and the council to revoke a motion picture theater business license because of the showing of an allegedly obscene film constituted a prior restraint of the theater owner’s first amendment rights. The court stated:

Of course if its [theater’s] license is revoked for twelve months . . . the result will be that it cannot do business in the City of Athens during such revocation period. The non-exhibition of films obscene or non-obscene during said period would not be the result direct or indirect of previous restraint, but would result incidentally from past abuses of immunity from previous restraint just as a person convicted and imprisoned for criminal libel might be incidentally and indirectly prevented and thus practically restrained from any and all publications during the period of incarceration.
106 Forsyth Corp., at 1397.

The same holds true in this case. The fact that appellants cannot sell books and magazines during the period of the license revocations is not the result of any prior restraint contained within City Code § 20-65, but is the direct result of appellants’ abuse of their licenses. Thus, we hold that City Code § 20-65 is constitutional with respect to the first amendment.

Appellants’ second attack on City Code § 20-65 alleges that, on its face, it violates the constitutional guarantee of procedural due process because it allows the city council to revoke licenses without notice to the licensees or an opportunity for them to be heard. Appellants admit, however, that the city council did hold a post-revocation hearing. While we recognize that an issue may exist as to when the city council must provide a hearing when it seeks to revoke licenses under the authority of City Code § 20-65, we need not reach that issue because it has not been properly preserved for appeal. Neither the complaint nor the amended complaint contained any allegation that § 20-65 was violative of due process. Appellants raised the issue for the first time during oral argument on the petition for rehearing. Yet, their petition for rehearing specifically stated that they were not raising any new points.

The order dismissing the amended complaint with prejudice is hereby affirmed.

SCHEB and RYDER, JJ., concur.

      . Appellants filed their notice of appeal to the court’s denial of the petition for rehearing rather than to the dismissal with prejudice. Normally, such an order is nonappealable; however, because an examination of the record reveals appellants’ clear intent to appeal the dismissal, and because the appellees have not been misled by the notice of appeal — indeed, they fully responded to all points raised by the appellants — we will treat the notice of appeal as sufficient to review the dismissal order. State ex rel. Poe v. Allen, 196 So.2d 745 (Fla.1967)

      . The notice of appeal is not sufficient to bring up for review the preliminary injunction. Poe v. Allen, supra, only allows us to treat an otherwise defective notice of appeal as sufficient if it does not alter the appeal time from the final order. Appellants’ petition to rehear the dismissal order was timely filed, and their notice of appeal was filed within thirty days of the denial of the petition. However, appellants neither filed a notice of appeal within thirty days of the preliminary injunction order nor petitioned the lower court to rehear that order. To allow an attack on the injunction to be raised on this appeal would alter the appeal time from the injunction order. In any event, our resolution of the validity of Tampa City Code § 20-65 moots the question of the propriety of the injunction.

      . In some respects, Tampa’s ordinance is more limited in scope than the ordinance passed by the City of Athens because it requires proof of a criminal conviction rather than a determination of the criminal nature of the licensee’s conduct by the city council.

      . This decision was affirmed by the United States Court of Appeals, Fifth Circuit. 106 Forsyth Corp. v. Bishop, 482 F.2d 280 (5th Cir. 1973). The court specifically noted in its opinion that the Athens city ordinance did not violate the first amendment.

      . Compare Bell v. Burson, 402 U.S. 535, 91 S.Ct. 158, 29 L.Ed.2d 90 (1971) with Jones v. Kirkman, 138 So.2d 513 (Fla.1962) and Dept. of Highway Safety and Motor Vehicles v. Argeros, 313 So.2d 55 (Fla. 4th DCA 1975).


text:
    Daisy Ann DURANT, Appellant, v. STATE of Florida, Appellee.
    No. 78-745.
    District Court of Appeal of Florida, Second District.
    Nov. 22, 1978.
    Paul Castagliola, St. Petersburg, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie King, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed. See Levin v. State, 348 So.2d 1189 (Fla. 4th DCA 1977).

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


text:
    MIDDLESEX MUTUAL INSURANCE COMPANY and Austin Ford, Inc., Appellants, v. Lorraine RADULSKI, Ellsworth Bratagar, Lumbermens Mutual Casualty Insurance Company, and State Farm Mutual Automobile Insurance Company, Appellees.
    No. 77-382.
    District Court of Appeal of Florida, Third District.
    Nov. 28, 1978.

      Bradford, Williams, McKay, Kimbrell, Hamann & Jennings and Michael K. McLe-more, Miami, for appellants.
    Talburt, Kubicki & Bradley and Betsy E. Hartley, Renta, McClellan & Haggard and L. Edward McClellan, Jr., Miami, for appel-lees.
    Before HUBBART, KEHOE and SCHWARTZ, JJ.
   PER CURIAM.

The final summary judgment under review is reversed and the cause remanded for further proceedings in the light of Insurance Company of North America v. Avis Rent-A-Car System, Inc., 348 So.2d 1149 (Fla.1977). It is so ordered.


author: PEARSON, Judge.

text:
    Martin I. VEINER, Appellant, v. Joyce S. VEINER, Appellee.
    Nos. 77-930, 77-972 and 77-1437.
    District Court of Appeal of Florida, Third District.
    Nov. 28, 1978.
    Rehearing Denied Dec. 18, 1978.
    A. John Goshgarian, Richard A. Kanner, Miami, for appellant.
    Buchbinder & Elegant and Harris J. Buchbinder, Miami, for appellee.

      Before PEARSON and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PEARSON, Judge.

These appeals all arise out of a final judgment of dissolution of marriage. The former husband, Martin I. Veiner, urges error in the final judgment in that the judgment awarded the wife, Joyce S. Vein-er, a special equity without specifying the property of the husband to which the equity attached. The former wife has appealed the judgment claiming error upon the court’s failure to award to her one-half of certain securities which were jointly held by the husband and wife prior to the dissolution. In addition, the wife urges that the award of $100 per week for support of the three children was an abuse of discretion. The husband has brought two interlocutory appeals, the first from the order allowing attorney’s fees and the second from a judgment awarded to the wife’s attorneys for the amount of the attorneys’ fees.

This case was bitterly contested between the parties with regard to all property matters. It is clear that the trial judge was trying to do equity between the parties. Nevertheless, we must hold, under the established law, that the allowance of a special equity in the assets of the husband without specifying the res and without support in the record showing a contribution to the res is error. See Elliott v. Elliott, 343 So.2d 904 (Fla. 4th DCA 1977); Rey v. Rey, 279 So.2d 360 (Fla. 4th DCA 1973); Steinhauer v. Steinhauer, 252 So.2d 825 (Fla. 4th DCA 1971).

The wife’s cross-appeals on the failure of the court to award her one-half ownership in certain jointly-held securities and her complaint that it was an abuse of discretion to award support of $100 per week for child support are not supported by the record. The judgments made by the trial court in the determination of disputed issues of fact will not be reversed by an appellate court where there is substantial support in the record for the finding of the trial court. See Herzog v. Herzog, 346 So.2d 56 (Fla.1977); and Shaw v. Shaw, 334 So.2d 13 (Fla.1976).

The husband’s interlocutory appeals from the judgment awarding a $12,-000 attorneys’ fee to the wife’s attorneys point out that the judgment was entered after the husband had lodged his appeal in this court from the order allowing the fee. As held by the Supreme Court of Florida in De La Portilla v. De La Portilla, 304 So.2d 116 (Fla.1974):

“It has long been held that where an appeal is duly taken, whether with or without supersedeas, jurisdiction of the cause is transferred to the appellate court, thereby depriving the trial court of the power to finally dispose of the cause by dismissal or otherwise. Willey v. W. J. Hoggson Corporation, supra [89 Fla. 446, 105 So. 126]; Moody v. Volusia County, supra [90 Fla. 864, 107 So. 185].”

Therefore, it was error for the trial court to enter the final judgment and proceed to enforce that judgment while an appeal challenging the amount of attorney’s fee was before this court. Accordingly, the judgment is reversed.

The husband’s interlocutory appeal challenging the amount of the attorneys’ fee does not present error on this record.

Affirmed in part, reversed in part and remanded.


author: BARKDULL, Judge.

text:
    Sergio FERNANDEZ and Doris Fernandez, d/b/a Fernandez Gulf Service, and Gulf Oil Corp., a Foreign Corporation, Appellants, v. Juan VALLE and Juana Valle, his wife, Appellees.
    Nos. 77-2469, 77-2611.
    District Court of Appeal of Florida, Third District.
    Nov. 28, 1978.

      Adams & Ward and Robert C. Ward, Taylor, Brion, Buker & Greene and Arnaldo Velez, Miami, for appellants.
    Feldman, Abramson, Smith & Magidson and Jose Smith, Miami, for appellees.
    Before BARKDULL and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   BARKDULL, Judge.

The appellants, Sergio Fernandez, Doris Fernandez [a/k/a Carmen Fernandez], and Gulf Oil Company, defendants in the trial court, appeal from a final judgment entered in favor of the appellees pursuant to a jury verdict in a negligence action.

This appeal challenges the trial court’s denial of a motion to direct a verdict in favor of the appellants. Juan Valle drove his automobile into a Gulf station operated by Sergio Fernandez. Although it was early in the morning, cars were already lining up for gas [this was during the height of the “energy crisis”]. Fernandez’ eleven-year-old son was assisting his father pumping gas. The boy was not a paid employee, but just rendered assistance upon occasion. While attempting to fill Valle’s car with gas, he accidentally squirted gas from the nozzle into Valle’s eyes. As a result of this accident, Valle sustained damage to his eyes.

Valle and his wife brought suit against Fernandez and his wife and against Gulf Oil for the injuries he sustained as a result of the careless action by the boy. In his claim against Gulf, Valle alleged that the defendants-Fernandez operated the service station in conjunction with Gulf and that Gulf exercised near complete control over the operations of the premises and the details of the work. Gulf denied that there was any master/servant or principal/agent relationship existing between it and Sergio Fernandez.

At the end of all the evidence, the appellants moved for a directed verdict. The motions were denied. The jury returned a verdict in favor of the appellees in the form of a special verdict interrogatory, in which the jury found the defendants [Fernandez] to be guilty of negligence and that Sergio Fernandez was an agent, servant or employee of Gulf Oil at the time of the accident. The appellants again moved for a directed verdict or, in the alternative, a new trial, both of which were denied by the trial court and judgment was entered in favor of the appellees. This appeal followed.

Appellant, Gulf Oil, contends: (1) that the trial court erred in failing to grant the motion for directed verdict or new trial, since the undisputed evidence established that Sergio Fernandez was an independent contractor under applicable law and not an agent, servant or employee of Gulf and, under the undisputed facts of this case, a directed verdict should have been granted pursuant to Gulf Refining v. Wilkinson, 94 Fla. 664, 114 So. 503 (1927); Cawthon v. Phillips Petroleum Co., 124 So.2d 517 (Fla. 2d DCA 1960); (2) that the trial court erred in allowing the mortality tables into evidence in support of the appellee’s damages and in giving instruction on damages for permanent injury, when there was no testimony relating to the injuries sustained by the appellee being permanent.

The appellants, Fernandez, contend that in addition to the second point raised by Gulf Oil the trial court erred in entering a judgment in behalf of the appellees against the appellant, Carmen Fernandez, when there is nothing in the record to show she had control or an interest of any kind in the service station in question.

As to Gulf Oil Corporation’s first point, we find its authorities not to be controlling because, among other things, the oil companies therein did not own the equipment or station in question; did not receive a rental thereon based upon a percentage of the sales; did not have any control with respect to operation of the station or equipment; did not make regular inspections of the premises and equipment, and did not control the hours when the station was open or the equipment used. Accordingly, it was proper to submit the instant cause to the jury on the issue of control by the oil company. Smith v. Quinn, 291 So.2d 264 (Fla. 4th DCA 1974); Sapp v. City of Tallahassee, 348 So.2d 363 (Fla. 1st DCA 1977); Frazier v. Continental Oil Company, 568 F.2d 378 (5th Cir. 1978). As to the second point raised by Gulf Oil and also raised by the appellants Fernandez, we find that the record in this ease reveals sufficient medical and lay evidence to warrant introduction of mortality tables. Gallub v. Del Vecchio, 301 So.2d 785 (Fla. 3d DCA 1974).

As to the point by the appellants Fernandez regarding entry of a judgment against Carmen Fernandez, we find that point to be without merit. Appellant, Carmen Fernandez, admitted in her answer the allegation contained in the appellee-plain-tiff’s complaint that she jointly operated the station in question as a partnership or joint venture with her husband. She is bound by that admission and the appellees were not required to offer proof at trial. Carvell v. Kinsey, 87 So.2d 577 (Fla.1956); Hart Properties, Inc. v. Slack, 159 So.2d 236 (Fla.1964).

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

Affirmed.

      . The lease and the contract of sale of petroleum products, executed concurrently by the parties herein, provides that:
      1. Gulf Oil owned the land, the building, and all the equipment involved in the handling of gasoline and the fixtures used for servicing automobiles.
      2. Gulf Oil owned the gasoline stored in its tanks on the subject property, said ownership only passing to the lessee upon passing through the pumps.
      3. The lessee could make no alterations or additions to the premises or equipment except with the consent of Gulf Oil.
      4. There shall be minimum hours of operation.
      5. The lessee was to purchase his gasoline from Gulf Oil.
      6. A Gulf Oil salesman would regularly check the volume of gas on hand and the overall running of the station.
      7. There was a minimum gasoline requirement.
      8. Gulf Oil could deliver gasoline when and in the amounts it sees fit.
      9. The rental was based, in part, on the amount of gasoline sold.
      10. If Gulf Oil has or should establish a minimum retail price under the terms of any Fair Trade Law, the lessee cannot sell gasoline for a price below said minimum.


text:
    SEGOVIA INVESTMENTS, INC., etc., Appellant, v. Spyros KATOGAS et al., Appellees. SEGOVIA INVESTMENTS, INC., etc., Appellant, v. EMERALD PLAZA WEST, INC., et al., Appellees.
    Nos. 77-2680, 78-558.
    District Court of Appeal of Florida, Third District.
    Nov. 28, 1978.
    Sidney B. Shapiro, Coral Gables, for appellant.
    Pertnoy & Greenberg and Leonard D. Pertnoy, Miami, for appellees.
    Before PEARSON, HENDRY and BARKDULL, JJ.
   PER CURIAM.

These appeals by the plaintiff are from the dismissal of a complaint and the dismissal of a counterclaim and third party complaint in a separate suit. The plaintiff concedes that if the complaint, which is the subject of the first appeal, was properly dismissed, the dismissal of the counterclaim and the third party complaint in the subsequent suit was proper.

The plaintiff claimed an interest in real property but was unable to produce a writing to support said claimed interest. The dismissal of the complaint was proper under Section 689.01, Florida Statutes (1977). See Anderson v. Tower Amusement Co., 120 Fla. 476, 163 So. 11 (1935).

Affirmed.


text:
    Ann SHERIDAN et al., Appellants, v. Woody KAISER, Appellee.
    No. 78-175.
    District Court of Appeal of Florida, Third District.
    Nov. 28, 1978.
    Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O’Hara and Richard A. Sherman, Miami, for appellants.
    Adams & Ward and Amy Shield Levine, Miami, for appellee.
    Before PEARSON, HENDRY and BARKDULL, JJ.
   PER CURIAM.

The appellants were defendants and third party plaintiffs in the trial court. Their appeal is from a summary final judgment for the third party defendant upon the appellants’ third party claim for indemnity or contribution.

The original complaint alleged that the appellants had procured and written a workmen’s compensation insurance policy for the plaintiff in which they negligently failed to include a specific provision requested. The third party claim by the appellants alleged that the appellee (third party defendant) was the referring broker and that he was negligent in failing to transmit the request for special coverage.

The evidentiary record before the trial court on the motion for summary final judgment shows genuine issues of material fact upon the disputed question of the extent of the plaintiff’s dealings with the two brokers and their responsibilities to the plaintiff under their referral arrangement. Accordingly, the summary final judgment is reversed upon authority of the rule stated in Deehl v. Sparks Construction Co., 191 So.2d 605, 607 (Fla. 3d DCA 1966).

Reversed.


text:
    Sylvia CULLEN and Charles Cullen, her husband, Appellants, v. BIG DADDY’S LOUNGES, INC., a Florida Corporation, Appellee.
    No. 78-200.
    District Court of Appeal of Florida, Third District.
    Nov. 28, 1978.

      Monty Jay Tilles, Hollywood, for appellants.
    Leland E. Stansell, Jr., South Miami, and Robert A. Glassman, Miami, for appellee.
    Before HAVERFIELD, C. J., HENDRY, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Plaintiffs take this appeal from a summary final judgment entered in favor of the defendant in a slip and fall action. The record discloses that at the time of the granting of the summary judgment plaintiffs had not completed their discovery and the court had not ruled upon plaintiffs’ motion to compel discovery.

In Commercial Bank of Kendall v. Heiman, 322 So.2d 564 (Fla. 3d DCA 1975), we held that:

“. . . [I]t was premature for the trial court to award the defendant a summary judgment when the plaintiff, through no fault of its own, had not completed its discovery.”

The summary judgment is reversed and the cause is remanded to the trial court for further proceedings which may include further motions for summary judgment by either side after all discovery is completed.

Reversed and remanded with directions.


text:
    INDIANAPOLIS MORRIS PLAN CORPORATION, a corporation, Appellant, v. Raul PORTELA and Vivian Portela, his wife, Appellees.
    No. 78-207.
    District Court of Appeal of Florida, Third District.
    Nov. 28, 1978.

      Sobo & Wellens, Fort Lauderdale, and Joseph M. Balocco, Hollywood, for appellant.
    Gus Efthimiou, Jr., Miami, for appellees.
    Before PEARSON, BARKDULL and KEHOE, JJ.
   PER CURIAM.

Appellant-lender seeks review of a final judgment in equity, refusing foreclosure of a mortgage but entering a money judgment for the amount of the loan less civil usury penalties. The appellees cross-assign error as to the entry of the judgment for the balance due. We affirm.

The appellant came, into a court of equity. The record supports a finding of usury and, therefore, he was without clean hands and the trial court did not abuse its discretion in refusing to lend equity powers to enforce the mortgage. Dale v. Jennings, 90 Fla. 234, 107 So. 175 (1925); Sahler v. Sahler, 154 Fla. 206, 17 So.2d 105 (1944); Brenner v. Smullian, 84 So.2d 44 (Fla.1955); Bella Isla Construction Corporation v. Trust Mortgage Corporation, 347 So.2d 649 (Fla.3d DCA 1977); Continental Mortgage Investors v. Sailboat Key, Inc., 354 So.2d 67 (Fla.3d DCA 1977).

The court also would have been right in declining to enforce the mortgage as being against the public policy of this State, having found civil usury. Sherbill v. Miller Manufacturing Company, 89 So.2d 28 (Fla.1956); Davis v. Ebsco Industries, Inc., 150 So.2d 460 (Fla.3d DCA 1963); Bond v. Koscot Interplanetary, Inc., 246 So.2d 631 (Fla.4th DCA 1971). We have not overlooked the case of Staros v. Avalon Shores, Inc., 249 So.2d 448 (Fla.1st DCA 1971), but by its very decision it indicates that a chancellor has the discretion to deny foreclosure.

We find no merit to the appellant’s assignments of error. We cannot reach the merit of the cross-assignment filed by the appellees because no point on appeal was filed in support thereof and, therefore, it is considered abandoned. Pittman v. Roberts, 122 So.2d 333 (Fla.2d DCA 1960); Time Insurance Company v. Arnold, 319 So.2d 638 (Fla.1st DCA 1975); Florida First National Bank of Jacksonville v. Dent, 350 So.2d 481 (Fla.1st DCA 1977); Florida Rules Appellate Procedure 3.7 i.

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

Affirmed.


text:
    Irwin WEINBERG, Appellant, v. Harvey LOZMAN, M.D., Harvey Lozman, M.D., P.A., f/k/a Lozman & Weinberg, P.A., a professional services corporation organized under the laws of the State of Florida, Appellees.
    Nos. 78-261, 78-262.
    District Court of Appeal of Florida, Third District.
    Nov. 28, 1978.

      Kurzban & Kurzban and Ira J. Kurzban, Miami, for appellant.
    Bartel & Shuford and Robert A. Kanziger, Miami, for appellees.
    Before PEARSON and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PEARSON, Judge.

The plaintiff in the trial court, Irving Weinberg, appeals an order dismissing his complaint for lack of jurisdiction. The order reads as follows:

“THIS CAUSE came on for hearing upon the motion of the various Defendants to dismiss. The Court has reviewed the file, heard argument of counsel and considered the applicable law. Plaintiff attempts to state causes of action for breach of contract and specific performance upon an alleged ‘Stipulation of Settlement’ entered into in the case of Weinberg v. Lozman, Case No. 75-27052. That case terminated by an Order of Dismissal entered August 26, 1977. The court finds that it is without the requisite jurisdiction to enforce the ‘Stipulation of Settlement’ entered into under the style of the terminated case, and that the document is further insufficient on its face to support-an independent contractual-cause-of action.- It is therefore . . ”

Plaintiff and defendant were members of a professional association. In the cause referred to in the trial court’s order as Weinberg v. Lozman, the present plaintiff sued for a dissolution of the professional association and a division of the assets. Thereafter, before the filing of defensive pleadings, the parties entered into what was either a settlement or an attempted settlement of their differences. This agreement was entered into in the presence of the court and recorded by a court reporter. See Florida Rule of Civil Procedure 1.030(d). It was orally approved by the trial court. Thereafter, no further proceedings were had in that cause. Subsequently, the cause was dismissed by the court for failure to prosecute.

The present action was brought by the same plaintiff, Weinberg, in an attempt to enforce what he describes as a settlement of the prior litigation. As pointed out in the above order, the trial court dismissed the complaint upon the sole ground of lack of jurisdiction to proceed. We hold that the trial court was in error in so doing. We note at this juncture that the trial court did not pass upon defendant’s allegation that the claimed settlement was insufficient to constitute a settlement of the first cause.

A settlement agreement is not only the basis upon which a judgment may be entered, but is also a contract between the parties. See Bohlman v. Big River Oil Company, 124 N.W.2d 835, 837 (N.D.1963); and Galusha v. Sherman, 105 Wis. 263, 81 N.W. 495, 497 (1900). Plaintiff’s complaint seeking to enforce the claimed settlement agreement is not an attempt to enforce a settlement which has been made a part of a final judgment. The validity of plaintiff’s action must be determined upon the basis of the laws of contract. If the defendant procured a cessation of activity in the cause upon the basis of an enforceable contract, then the fact that the cause was dismissed for lack of prosecution is not a bar to the enforcement of that contract.

Therefore, we reverse the order holding that the trial court did not have jurisdiction, and remand the cause for a determination by the trial court of whether the claimed stipulation constitutes a binding agreement between the parties which can now be enforced in a separate action.

Reversed and remanded.

      . This portion of the order, including the stricken words, . and that the document is further insufficient on its face to support an independent contractual cause of action,” appears here as it does in the original order.


text:
    Loran W. HARDIN, Appellant, v. CITY OF NORTH MIAMI BEACH, a political subdivision of the State of Florida, Appellee.
    No. 78-397.
    District Court of Appeal of Florida, Third District.
    Nov. 28, 1978.
    Rehearing Denied Dec. 22, 1978.
    Eugene P. Spellman and Denis Dean, Sr., Miami, for appellant.
    Sidney B. Shapiro, City Atty., for appel-lee.
    Before PEARSON and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The appellant, a former policeman of the City of North Miami Beach, appeals a final judgment on his petition for writ of certio-rari brought to review his dismissal by the City. The dismissal was upheld by the City’s Civil Service Board.

We are not reviewing here the correctness of the decision of the Civil Service Board, but rather the circuit court’s action in denying the petition for writ of certiora-ri, and in this regard we are limited to the question of whether the circuit court departed from established law in finding against the petitioner. See Nugent v. Florida Hotel and Restaurant Commission, 147 So.2d 606 (Fla.2d DCA 1962).

Within this narrow parameter of review, we find no reversible error. Although in our view, the judgment of the Civil Service Board was unduly harsh, we have no basis upon which to substitute our judgment for that of the circuit court.

Accordingly, the judgment is affirmed.


text:
    Ken HARDING, President, Island West Investment Corp., Appellant, v. FLORIDA DEPARTMENT OF COMMERCE, BOARD OF REVIEW, Appellee.
    No. 78-423.
    District Court of Appeal of Florida, Third District.
    Nov. 28, 1978.
    Mark King Leban, Miami, for appellant.
    Kenneth H. Hart, Jr. and Ollie Evans, Tallahassee, for appellee.
    Before PEARSON and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PEARSON, Judge.

This is an appeal of a final administrative order. See Florida Rule of Appellate Procedure 9.110. The order is from an unerm ployment compensation proceeding. The appellant is an employer whose record is charged “. . . with its proportionate share of benefits paid . . . ” The order appealed is a determination by the Florida Department of Commerce Board of Review and is as follows:

* * * * * *
“That portion of the Referee’s decision holding the employer’s record chargeable with its proportionate share of benefits paid in connection with this claim is affirmed.”

Claimant Petricia L. Kramar was a co-owner of Stadium Mobile Home Park, Incorporated, and was employed as manager of the mobile home park operated by the corporation. The business was sold to the appellant, with the claimant no longer continuing her employment. Thereafter, the claimant sought unemployment compensation. Initially, she was paid compensation because no response was made to her claim. Ultimately, she was held disqualified for benefits under a holding of the Board of Review:

“The claimant was in favor of selling her business. There is no indication that she was forced into the sale. By selling the business, in effect, she sold her job. The claimant voluntarily left her employment without good cause within the meaning of § 443.06(1), F.S.”

The record supports the finding of the appeals referee that:

“Hearing testimony further reveals that the employer did receive the FDC Form UCB-12, but chose to mail it to the predecessor corporation. The successor was or should have been aware that the Law provides when there is a succession of ownership that the successor acquires the experience rating of the predecessor. In addition, the successor, even though the acquisition occurred February 2, 1976, did not notify the Division of the change until May 13, 1976. The Notice to Base Period Employer of Valid Claim filed was mailed to the last known entity and address of employing unit (-325255). It is also noted that the successor has continued to operate under the same trade name as the predecessor. It was through the negligence of the successor that timely response to the FDC Form UCB-12 was not made. Even if the claimant had been separated under disqualifying circumstances the employer’s account would not be eligible for consideration of non-charging of benefits in connection with this claim. However, it is apparent from previously stated facts that the claimant did not voluntarily leave her employment without good cause attributable to the employer; the employer did not discharge the claimant for misconduct connected with work; the claimant did not fail without good cause to accept an offer of suitable work. There remains no basis for the employer’s account to be relieved of charges in connection with this claim.”

The affirmance of that finding by the Board of Review was based upon evidence in the record and no error of law has been shown.

Affirmed.


text:
    Gustav E. HULANDER, Appellant, v. SUNBEAM TELEVISION CORPORATION, a Florida Corporation d/b/a WCKT-TV, Mandel Kradish and Eagle, Inc., a Florida Corporation, Appellees.
    No. 78-510.
    District Court of Appeal of Florida, Third District.
    Nov. 28, 1978.
    Rehearing Denied Dec. 18, 1978.

      Schwartz, Klein & Steinhardt and Norman S. Klein, North Miami Beach, for appellant.
    Steel, Hector & Davis and Patricia A. Seitz, Miami, for appellees.
    Before BARKDULL, HUBBART and KEHOE, JJ.
   PER CURIAM.

The appellant brought a suit sounding in libelous slander against the appellees, Sunbeam Television Corporation, d/b/a WCKT-TY, Mandel Kradish and Eagle, Inc. The defendant-appellee, Sunbeam Television Corporation, filed a motion to dismiss alleging a failure to state a cause of action. Upon hearing thereon, the trial court granted the motion, and in said order dismissing the plaintiff’s action against Sunbeam with prejudice the following is found:

* * * * * *
“THIS CAUSE came on to be heard before me upon the Motion to Dismiss with Prejudice filed herein by the Defendant, SUNBEAM TELEVISION CORPORATION, a Florida corporation, d/b/a WCKT-TV. In support of the Motion the Defendant claims that the Plaintiff has failed to comply with the requirements of Section 770.01, Florida Statutes (1976) which is a prerequisite to instituting an action against a broadcaster for libel. Section 770.01, Florida Statutes, states:
‘Before any civil action is brought for publication or broadcast, in a newspaper, periodical or other medium of a libel or slander, the plaintiff shall, at least five days before instituting such action, serve notice in writing on the defendant, specifying the article or broadcast and the statements therein which he alleges to be false and defamatory.’ (Emphasis added)
“The statute requires specification as to the statements in the broadcast alleged to be false and defamatory. The purpose of the requirement is to enable the broadcaster to retract any false statement contended by the offended party to be false. In order to meet the requirements of the statute, the notice should specify with particularity the statements in the offensive broadcast which are alleged to be false and defamatory. Cooper v. Miami Herald Pub. Co. [159 Fla. 296], 31 So.2d 382 (Fla.1947); Adams v. News Journal Corporation, 84 So.2d 549 (Fla.1955); Gannett Florida Corp. v. Montesano, 308 So.2d 599 (Fla. 1st DCA 1975); cert. denied, 317 So.2d 78 (Fla.1975).
“The pertinent portions of the notice given were as follows:
‘We have been retained to pursue a libel action against you for the libelous material which you published on your September 1, 1977, 6:00 p. m. news broadcast wherein you published libelous statements to the effect that our clients had committed, the felony of extortion and bribery with regard to their dealings with a firm known as Eagle, Inc., and an individual known as Mandel Kradish . . .’ (Emphasis added)
‘The purpose of this letter is to give you an opportunity, within five (5) days, to retract said libelous statement by affording the injured parties an opportunity to present their statement, on the same news program, for the same amount of time, to the contrary, and for your station to issue a retraction of any allegations or innuendoes or intimidations of criminal conduct on the part of my clients.’ (Emphasis added)
“It is the opinion of the Court that the notice lacks the specificity required by the statute.
“WHEREFORE, it is
“ORDERED AND ADJUDGED that the defendant, Sunbeam’s Motion to Dismiss with Prejudice be and the same. is hereby granted, and that the Plaintiff take nothing by this action as against said Defendant and that the Defendant, SUNBEAM TELEVISION CORPORATION, a Florida corporation, d/b/a WCKT-TV, go hence without day and recover its costs upon further hearing.”
* * * * * *

This appeal ensued. We affirm.

The retraction letter served by the plaintiff’s counsel failed to advise the broadcasting company with particularity as to which statements were false, and called upon the company to retract “ * * * any allegations or innuendos or intimations of criminal conduct * * * Nowhere in the retraction notice were the allegations, innuendos or intimations identified. Therefore, we find the action of the trial judge, in dismissing the complaint with prejudice, to be correct. See: Cooper v. Miami Herald Publishing Company, 189 Fla. 296, 31 So.2d 382 (1947); Adams v. News-Journal Corporation, supra; Hevey v. News-Journal Corporation, 148 So.2d 543 (Fla. 1st DCA 1963); Gannett Florida Corporation v. Montesano, supra; Orlando Sports Stadium v. Sentinel Star Company, 316 So.2d 607 (Fla. 4th DCA 1975); Anderson v. Hearst Pub. Co., 120 F.Supp. 850 (S.D.Cal.1954).

Affirmed.


text:
    INDUSTRIAL FIRE & CASUALTY INSURANCE COMPANY, Appellant, v. Larry COLEMAN, a minor, by and through his mother and next friend, Ruth Coleman, Appellee.
    No. 78-520.
    District Court of Appeal of Florida, Third District.
    Nov. 28, 1978.
    Rehearing Denied Dec. 22, 1978.
    Goodhart & Rosner, Greene & Cooper and Sharon L. Wolfe, Miami, for appellant.
    Flinn & Jennings, Miami, for appellee.
    Before BARKDULL, HUBBART and KEHOE, JJ.
   PER CURIAM.

The order under review awarding attorneys fees to the appellee herein is reversed on the authority of Roberts v. Carter, 350 So.2d 78 (Fla.1977).


text:
    Belle Jackson WESSON, Appellant, v. EFLOW, INC., d/b/a Perrine Bingo Hall, Appellee.
    No. 78-619.
    District Court of Appeal of Florida, Third District.
    Nov. 28, 1978.
    Hawkesworth & Schmick and Andrew L. Waks, Miami, for appellant.
    Jesse W. Miller, North Miami, for appel-lee.

      Before HUBBART, KEHOE and SCHWARTZ, JJ.
   PER CURIAM.

The summary judgment entered below is reversed and the cause remanded for trial. The movant-defendant did not conclusively establish the absence of a genuine issue of material fact concerning its liability for the accident in which the plaintiff was injured. Holl v. Talcott, 191 So.2d 40 (Fla.1966); Wills v. Sears, Roebuck & Co., 351 So.2d 29 (Fla.1977).


text:
    A. Lionel BOSEM d/b/a Biscaya Hotel, Coronet Hotel and Pres. Madison Hotel, Appellants, v. A. R. A. CORP., d/b/a Dutch Country Paper And Syrup Mfg., Appellee.
    No. 78-667.
    District Court of Appeal of Florida, Third District.
    Nov. 28, 1978.
    Lionel Barnet, Miami Beach, for appellants.
    Avrach & Capps and Gerald N. Capps, Miami Beach, for appellee.
    Before HUBBART, KEHOE and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed. Bosem v. A.R.A. Corp., 350 So.2d 526 (Fla.3rd DCA 1977); Fla.R.Civ.P. 1.120(a).


text:
    Gary William SAYERS, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1948.
    District Court of Appeal of Florida, Third District.
    Nov. 28, 1978.
    Gary William Sayers, in pro. per.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before HAVERFIELD, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

Petitioner, pursuant to Fla.R.App.P. 9.140(g) having taken this appeal from the summary denial of his motion for post conviction relief under Fla.R.Crim.P. 3.850 and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed.


text:
    Samuel SHOWERS, Appellant, v. STATE of Florida, Appellee.
    No. 77-312.
    District Court of Appeal of Florida, Second District.
    Nov. 29, 1978.

      Jack 0. Johnson, Public Defender, and Paul C. Helm, Asst. Public Defender, Bar-tow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Chief Judge.

This appeal involves the application of the rule of sequestration of witnesses.

Appellant was charged with assault with intent to commit first-degree murder. At the conclusion of the state’s case the following occurred:

MR. MCCARTHY: Your Honor, before the jury returns my client has requested or would like to call Calvin Hightower to the stand. It’s my understanding that the rule is invoked. I invoked it. He informed me that he wanted to call Mr. Hightower at the recess. I am asking the indulgence of the Court to allow us to call him as a witness.
MR. PICKARD: The State would object on the basis that Mr. Hightower initially was in the courtroom when the rule was invoked and to my understanding he initially stood up to be sworn as a witness but was told by someone to sit down, that he wouldn’t be called, and he was in the courtroom during the entire proceedings and listened to everything that has gone on. And for that reason the State would object to Mr. Hightower being called as a witness.
THE COURT: Is this Mr. Hightower in the second row?
MR. MCCARTHY: Yes, Your Honor.
THE COURT: Well, the Court for the record would state that Mr. McCarthy did request that we invoke the rule and I did direct that all witnesses stand to be sworn. Mr. Hightower did stand. Mr. McCarthy then motioned for him to be seated and he was not sworn and did remain in the courtroom. Therefore, the Court has no other alternative than to sustain the objection.

Hightower’s testimony was not proffered. Appellant was ultimately convicted of assault with intent to commit first-degree murder.

Appellant contends that the court erred in excluding the testimony of Hightower for violation of the rule of sequestration without first conducting an inquiry according to the requirements of Dumas v. State, 350 So.2d 464 (Fla.1977). In Dumas our supreme court held that a defendant cannot be deprived of the right to call a witness who has violated the rule of sequestration unless the court determines that the witness acted with the “knowledge, consent, procurement or connivance of the defendant or defense counsel.” See Atkinson v. State, 317 So.2d 807 (Fla. 4th DCA 1975). The state responds by saying that the appellant is in no position to complain because he failed to proffer Hightower’s testimony. See Powers v. State, 224 So.2d 411 (Fla. 3d DCA 1969).

We deem it unnecessary to decide whether a proffer was required because we find that the record reflects sufficient compliance with the Dumas rule. From the colloquy, it is evident that appellant’s counsel originally weighed the desirability of Hightower’s testimony and concluded that he did not wish to call Hightower as a witness. Apparently, after the state presented its case his client prevailed upon him to seek to have Hightower testify. We suggest no evil motive on the part of appellant or his counsel, but it is obvious that both knew that Hightower was not going to be subject to the rule because they did not intend to call him as a witness. To allow them to change their minds during the course of the trial would have the practical effect of abrogating the purpose of the rule, which is to prevent potential witnesses from listening to testimony given by others prior to testifying. If there is any possibility that a person may be called as a witness, prudence dictates that counsel should keep him out of the courtroom once the rule is invoked.

The judge did not err in failing to make further inquiry because all the relevant circumstances were before him when he ruled.

AFFIRMED.

SCHEB and OTT, JJ., concur.


author: RYDER, Judge.

text:
    PASCO COUNTY, a political subdivision of the State of Florida, Appellant, v. TAMPA DEVELOPMENT CORPORATION, a Florida Corporation, Appellee.
    No. 77-1349.
    District Court of Appeal of Florida, Second District.
    Nov. 29, 1978.

      Gerald A. Figurski and David W. Ryn-ders, County Attys., Port Richey, for appellant.
    Tom Ross of Sumner, Tyner, Williams, McKnight & Ross, Dade City, for appellee.
   RYDER, Judge.

This is an appeal from a final judgment enjoining appellant Pasco County [hereinafter, county] from enforcing its restrictive zoning ordinance so as to preclude appellee Tampa Development Corporation [hereinafter, developer] from developing those portions of its development shown on its plat as multiple family and duplex lots. We reverse.

There is also a cross-appeal by appellee developer from that portion of the final judgment ruling that the proposed duplex and multiple family uses of the development were not “grandfathered in” under the county’s zoning ordinance. On the basis of the record and the authorities cited by both parties, we affirm this aspect of the final judgment without further discussion.

Turning now to the operative facts relevant to this appeal, the appellee is a developer who has been selling unimproved lots in its development in a rural area of central Pasco County. No plan or plat of these lots was submitted to the county for its approval or for any other purpose, although appel-lee developer had obtained an Order of Registration from the Division of Florida Land Sales on June 21,1972. This Order included appellee’s master plot plan. Further, appel-lee never requested multifamily or duplex zoning for any part of its property from the county.

Prior to the adoption of the ordinance at issue, 75-21, in November of 1975, effective January 1976, no zoning restrictions existed in Pasco County. With the adoption of this zoning ordinance, appellee’s property was zoned in an agricultural-residential category. Multiple family and duplex uses were prohibited. This ordinance was lawfully adopted after considerable study, appropriate notice and hearings.

By June 1976 appellee had expended over $400,000.00 on improvements (specifically, the construction of roads — not the construction of buildings or other facilities) to the property, as well as purchasing Quail Hollow Boulevard for an additional $150,000.00. By that same date, appellee had sold 185 of 237 planned duplex lots and 87 of 131 planned multiple family lots (as well as substantial numbers of single family and commercial lots, not restricted under the ordinance in question and thus not significant to this discussion). Appellee had also expended very large sums as its cost of making these sales (advertising, commissions, and the like) amounting to approximately $2,000,000.00 as of the date of the final hearing in this cause.

Subsequent to the adoption of the aforesaid zoning ordinance, holders of contracts for deed to lots in those portions of appel-lee’s property designated as multifamily and duplex in appellee’s master plot plan applied to appellant county for building permits for the construction of either multifamily or duplex dwellings, but the county refused to issue building permits on the basis of the zoning restrictions. The county is permitting the single family residential and commercial lots to be developed as planned.

In March of 1977 appellee filed this action contending that appellant county was equitably estopped from enforcing the zoning ordinance against appellee because of appel-lee’s good faith reliance on the absence of any zoning in the county prior to 1975. The trial court ruled in appellee’s favor and found that the doctrine of equitable estop-pel was controlling as to the facts of this case, on the authority of this court’s decision in Town of Largo v. Imperial Homes Corporation, 309 So.2d 571 (Fla. 2d DCA 1975). Accordingly, final judgment was entered enjoining appellant Pasco County from enforcing its zoning ordinance so as to preclude appellee from developing the multiple family and duplex lots in its development.

As noted at the outset, we disagree with the learned trial judge’s ruling in this regard. The trial court’s reliance on Town of Largo, supra, is misplaced because of a vital distinction between the present case and Largo; here, the county committed no act or omission upon which the developer could rely in good faith in making substantial changes in position or incurring extensive expenses so as to invoke the doctrine of equitable estoppel.

In Town of Largo, at the developer’s request, the Town rezoned the tract in question to a multiple family classification. The Town knew full well that the developer planned a multiple family development. The developer then relied on the Town’s action in rezoning the property (which in effect invited the developer onto the proverbial welcome mat) by expending large sums of money. Subsequently, of course, the Town rezoned the property to a more restrictive class, and that suit ensued, culminating in this court’s affirmance of the trial court’s ruling that equitable estoppel applied so as to prevent the Town from enforcing the later restrictive zoning.

Therefore, in Town of Largo, it may be seen that there was clear and definite affirmative action on the part of the local zoning authority upon which the developer there relied, and that act of the government is a prerequisite to applying the doctrine of equitable estoppel. Hollywood Beach Hotel Company v. City of Hollywood, 329 So.2d 10 (Fla.1976); Texas Co. v. Town of Miami Springs, 44 So.2d 808 (Fla.1950); Town of Largo v. Imperial Homes Corporation, supra. As stated by the trial judge in the final judgment affirmed by this court in Town of Largo, supra, 309 So.2d at 573, “One party will not be permitted to invite another onto a welcome mat and then be permitted to snatch the mat away to the detriment of the party induced or permitted to stand thereon. A citizen is entitled to rely on the assurances and commitments of a zoning authority and if he does, the zoning authority is bound by its representations, whether they be in the form of words or deeds . . .

The distinction between Largo and this case thus emerges. Here, there was no positive, affirmative act taken by the county as the local zoning authority upon which the developer could legitimately rely. We hold that the trial court erred under the facts of this case in finding that the appel-lee developer was entitled to and did rely upon the absence of any land use or zoning regulation of appellant. This was error because we noted even in Town of Largo, supra, that the Supreme Court of Florida has held that the mere purchase of land does not create a right to rely on existing zoning. City of Miami Beach v. 8701 Collins Ave., 77 So.2d 428 (Fla.1954).

We are aware that City of Miami Beach v. 8701 Collins Ave., supra, involved an amendment to an existing zoning ordinance so as to eliminate certain permitted uses, where the instant case involves the adoption of a new ordinance where no prior regulatory zoning ordinance had existed, but we do not view this as any meaningful difference within the present context. The mere existence of a present right to a particular use of land, whether derived from a less restrictive zoning ordinance or no zoning ordinance at all, is not a sufficient “act” of government upon which to base equitable estoppel.

Indeed, the Florida Supreme Court stated in City of Miami Beach v. 8701 Collins Ave., supra, at 430:

“This Court has never gone so far as to hold that a City will be estopped to enforce an amendment to a zoning ordinance merely because a party detrimentally alters his position upon the chance and in the faith that no change in the zoning regulations will occur. It is our view that such a doctrine would be an unwise restraint upon the police power of the government. All that one who plans to use his property in accordance with existing zoning regulations is entitled to assume is that such regulations will not be altered to his detriment, unless the change bears a substantial relation to the health, morals, welfare or safety of the public.”

We are also aware that this court’s opinion in Town of Largo stated that the doctrine of equitable estoppel could be invoked when a property owner relied in good faith upon some “omission” of the local zoning authority. Appellee contends that the absence of any zoning regulation on the subject property prior to January of 1976 constituted a “failure” of the zoning authority to act and, consequently, a sufficient “omission” upon which to base equitable estoppel. We reject this contention. In our view, just as the absence of zoning prior to 1976 is not a sufficient governmental act, neither is it a sufficient governmental omission under the law upon which to apply the doctrine of equitable estoppel. We consider it rudimentary law that an omission means a negligent or culpable omission where the party failing to act was under a duty to do so. Otherwise, silence or inaction will not operate to work an estoppel. In our view, the appellant county was under no lawful duty to act by way of zoning. Appellee is correct in pointing out that in Chapter 67— 310, Laws of Florida, the legislature gave all counties in Florida the authority to enact comprehensive zoning. This authority, however, is not tantamount to a duty to zone within the facts of this case. Our reading of the record reveals no “omission” within the meaning of the Town of Largo opinion sufficient to base the application of equitable estoppel in this case.

We also would note that appellee, as a landowner, itself had a duty to inquire of and confer with appellant county regarding the uses of the property that would be permitted. Indeed, the Order of Registration issued by the Florida Land Sales Board in June of 1972, upon which appellee places substantial importance in various portions of its argument, declares and advises appel-lee that questions about the zoning of the property should be directed to the Board of County Commissioners of Pasco County.

In short, then, we reaffirm our opinion in Town of Largo, supra, but the facts contained in the record of the case sub judice are so substantially distinguishable that Largo is simply not applicable herein.

Therefore, we reverse the final judgment appealed from with regards to its application of the doctrine of equitable estoppel and injunction of the appellant county from enforcing its zoning ordinance as aforesaid. As stated at the outset, as to the cross-appeal, we affirm the final judgment insofar as it ruled that the duplex and multiple family uses of appellee’s development were not grandfathered in by appellant’s ordinance 75-21.

Accordingly, the final judgment appealed from is REVERSED in part; AFFIRMED in part; and remanded with directions to enter final judgment for appellant/defendant Pasco County consistent with this opinion.

BOARDMAN, Acting C. J., and DAN-AHY, J., concur.


author: SCHEB, Judge.

text:
    CFW CONSTRUCTION COMPANY, INC., etc., and Aetna Casualty and Surety Company, Appellants, v. RICHARDSON ELECTRIC COMPANY, Appellee.
    No. 78-250.
    District Court of Appeal of Florida, Second District.
    Nov. 29, 1978.
    Michael F. Tew of Barr & Murman, Tampa, for appellants.
    Scott Charlton of Peavyhouse, Giglio, Grant, Clark, Charlton & Mount, Tampa, for appellee.
   SCHEB, Judge.

Appellants/defendants CFW Construction Company, Inc. and Aetna Casualty & Surety Company assail the trial court’s award of damages and an attorney’s fee to appellee/plaintiff Richardson Electric Company in a breach-of-contract action. We find that the trial court’s award of damages was supported by the evidence, and we therefore affirm on this point. And though we agree that Richardson was entitled to an attorney’s fee, we reverse as to the amount of the fee assessed.

By subcontract, Richardson agreed to perform the electrical work on a construction project in Riviera Beach where CFW was prime contractor. CFW posted a bond guaranteeing payment to the subcontractors, materialmen, and laborers on the project. Aetna was surety on the bond. After the project was finished a dispute arose as to the amount due Richardson under its subcontract, and Richardson brought suit against CFW and Aetna on the payment bond. The trial court entered judgment in favor of Richardson for $28,946.03, and additionally awarded Richardson an attorney’s fee of $6,500.

The authority for an award of an attorney’s fee in the instant case is found in § 627.756, Fla.Stat. (1975). Subsection (2) of this statute provides:

Section 627.428 (attorney fee) shall also apply as to suits brought by owners, subcontractors, laborers and material men against a surety insurer under payment or performance bonds written by the insurer under the laws of Florida to indemnify such owners, subcontractors, laborers and material men against pecuniary loss by breach of a building or construction contract; except, that the amount to be so recovered for fees or compensation of such a plaintiff’s attorney shall not be more than 12.5 percent of the amount which the judgment or decree awards such plaintiff under the bond (exclusive of the costs of suit and attorney fees or compensation) . . . (Emphasis supplied.)

By the plain language of this statute the legislature chose to limit assessment of an attorney’s fee to no more than 12V2% of the amount of the judgment. Here the attorney’s fee awarded by the trial court amounted to more than 22% of the judgment. Therefore, the award was excessive and must be reversed. Nello L. Teer Co. v. Hollywood Golf Estates, Inc., 324 F.2d 669 (5th Cir. 1963); see generally Continental Casualty Co. v. Krauss Air Conditioning, Inc., 184 So.2d 485 (Fla. 2d DCA 1966).

Accordingly, we affirm the judgment but reverse as to the amount of the attorney’s fee. We remand to the trial court for entry of an order awarding an attorney’s fee in an amount not to exceed 12x/2% of the judgment.

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

      . Of course this statute concerns itself only with the assessment of an attorney’s fee by the court, and does not restrict an attorney from contracting with his client for a fee in excess of the statutory amount.


author: OTT, Judge.

text:
    P. S. R. ASSOCIATES, a Limited Partnership, Appellant, v. ARTCRAFT-HEATH, a Division of W. Heath & Company, Inc., a corporation, Appellee.
    No. 78-550.
    District Court of Appeal of Florida, Second District.
    Nov. 29, 1978.

      Lynwood F. Arnold, Jr. of Albritton, Ses-sums & Didio, Tampa, for appellant.
    Howard P. Ross of Battaglia, Ross, Stolba & Forlizzo, St. Petersburg, for appellee.
   OTT, Judge.

The plaintiff/appellee — a Florida corporation — was owed money by the defendant/appellant — a nonresident partnership. Appellee filed suit in a Florida court alleging that appellant was doing business in this state and/or had breached a contract in this state. Service was attempted under one of the statutory options of service upon a nonresident. Appellant initially attacked — unsuccessfully—the jurisdiction of the trial court by motions to quash and dismiss and again — also unsuccessfully — at the conclusion of the appellee’s case by motion for directed verdict. We find merit in appellant’s attack on jurisdiction for the reasons hereafter stated.

Much attention has been given by the parties to the sufficiency of “minimum contacts” within the State of Florida by the appellant to establish it was “doing business” within the contemplation of Section 48.181(1) or 48.193(1)(a), Florida Statutes; also as to whether or not the failure of payment constituted a breach of contract within the purview of 48.193(1)(g), Florida Statutes. [See Note 2, supra.]

As stated by this court in several recent decisions the plaintiff must allege one or more of the grounds of long arm jurisdiction of a nonresident before he may proceed with one of the statutory methods of service. Upon proper controversion of this assertion — or prima facie showing — a question of fact is presented which the trial court must resolve. As in all such factual determinations the conclusion of the trial court must be supported by competent substantial evidence.

Since we reverse on other grounds we find it unnecessary to decide whether or not the prerequisites of “long arm jurisdiction” of a nonresident have been established by competent substantial evidence. On remand this will, of necessity, again be addressed by the trial court.

It should also be noted that this is not a case involving constructive service of process under Chapter 49, Florida Statutes.

The complaint alleges one or more of the grounds for long arm jurisdiction of the appellant under either Section 48.181 or 48.-193. At this point — particularly upon appropriate attack — the trial court must turn to the record for determination of whether service has been perfected as required by law.

The record establishes (in fact, the appel-lee concedes) that there was neither an affidavit of compliance by plaintiff or his attorney as required by Section 48.161 (including a return receipt of certified or registered mailing) nor was there an appropriate officer’s return showing service as alternatively authorized by Section 48.161 or as singularly required by Section 48.194. The record only shows that service of process was duly made and evidenced on the Secretary of State.

Jurisdiction of the Florida courts over a nonresident “doing business” in this state is authorized by either Sections 48.181(1) or 48.193(1)(a).

If the plaintiff chooses substituted service on the Secretary of State under Section 48.181(1), then perfection of such substituted service requires full compliance with one of the alternative methods provided by Section 48.161. Section 48.161 requires such substituted service be perfected and evidenced by either: (1) registered or certified mailing to the nonresident of both a notice of such substituted service and a copy of the process, evidenced by the filing of the nonresident’s return receipt and an affidavit of compliance by plaintiff or his attorney; or, (2) an appropriate officer’s return showing service on the nonresident within or without this state. Alternatively, the plaintiff may elect (in lieu of substituted service on the Secretary of State) to proceed by the perfection of personal service on the nonresident defendant and the proof thereof by the appropriate officer’s return, all as authorized in 48.193(2) and detailed in 48.194.

If jurisdiction of a nonresident is asserted under the provisions of 48.193(l)(g) [breach of a contract within this state] the perfection can only be accomplished by proceeding with personal service upon such nonresident pursuant to Section 48.194.

Since neither of the statutory methods was completed or complied with in this case, jurisdiction over appellant was not perfected and, therefore, not secured. See Atlas Van Lines, Inc. v. Rossmoore, 271 So.2d 31 (Fla.2d DCA 1972); Golconda Corp. v. Newton, 336 So.2d 433 (Fla.1st DCA 1976).

This decision is without prejudice to the right of the appellant to controvert and retry the grounds for long arm jurisdiction alleged in the appellee’s complaint once service of process is properly perfected.

The lower court erred in denying appellant’s motions to dismiss and quash service of process. The final judgment is therefore set aside and the cause remanded for further proceedings consistent herewith.

HOBSON, Acting C. J., and DANAHY, J., concur.

      . 48.181 Service on nonresident engaging in business in state.
      (1) The acceptance by any person or persons, individually, or associated together . . . who are residents of any other state of the privilege extended by law to nonresidents and others to operate, conduct, engage in, or carry on a business or business venture in the state . . . constitutes an appointment by the persons and foreign corporations of the secretary of state of the state as their agent on whom all process . may be served.

      . 48.193 Acts subjecting persons to jurisdiction of courts of state.
      (1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits that person ... to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following:
      (a) Operates, conducts, engages in, or carries on a business or business venture in this state .

        (g) Breaches a contract in this state by failing to perform acts required by the contract to be performed in this state.
      (2) Service of process upon any person who is subject to the jurisdiction of the courts of this state as provided in this section may be made by personally serving the process upon the defendant outside this state, as provided in § 48.194. . . .

      . See, e. g., Drake v. Scharlau, 353 So.2d 961 (Fla.2d DCA 1978); Hartman Agency, Inc. v. Indiana Farmers Mutual Insurance Company, 353 So.2d 665 (Fla.2d DCA 1978); Esberger v. First Florida Business Consultants, Inc., 338 So.2d 561 (Fla.2d DCA 1976).

      . 48.161 Method of substituted service on nonresident.
      (1) When authorized by law, substituted service of process on a nonresident ... by serving a public officer designated by law shall be made by leaving a copy of the process with a fee of $5.00 with the public officer or in his office or by mailing the copies by certified mail to the public officer with the fee. . . . Notice of service and a copy of the process shall be sent forthwith by registered or certified mail by the plaintiff or his attorney to the defendant, and the defendant’s return receipt and the affidavit of the plaintiff or his attorney of compliance shall be filed on or before the return day of the process ... or the notice and copy shall be served on the defendant, if found within the state, by an officer authorized to serve legal process, or if found without the state, by a sheriff or a deputy sheriff of any county of this state or any duly constituted public officer qualified to serve like process in the state or jurisdiction where the defendant is found. The officer’s return showing service shall be filed on or before the return day of the process .

      . Section 48.194 — Personal Service Outside State.
      Service of process on persons outside of this state shall be made in the same manner as service within this state by any officer authorized to serve process in the state where the person is served. . . . An affidavit of the officer shall be filed, stating the time, manner, and place of service.


author: DANAHY, Judge.

text:
    YORK INSURANCE COMPANY, Appellant, v. Pamela BECKER, a minor, by and through her natural father, Wayne J. Becker, Wayne J. Becker, Individually, and Sunnee H. Becker, Appellees.
    No. 78-835.
    District Court of Appeal of Florida, Second District.
    Nov. 29, 1978.

      Chris W. Altenbernd of Fowler, White, Gillen, Boggs, Villareal & Banker, Tampa, for appellant.
    John W. Frost, II, and Charles W. Dodson of Holland & Knight, Bartow, for appellees.
   DANAHY, Judge.

The Florida law requiring uninsured motorist coverage in automobile insurance policies was amended in 1973 to provide that uninsured motorist coverage shall also be underinsured motorist coverage. In the 1973 amendment the legislature provided that the amendment “shall take effect October 1, 1973, and shall be applicable to policies delivered, issued for delivery or renewed in this state with an inception date on or after October 1, 1973.”

The issue in this case is whether the 1973 amendment is applicable to a policy obtained by plaintiffs/appellees Becker from defendant/appellant York Insurance Company. There is no dispute as to the facts. The trial judge ruled that the amendment was applicable to the Becker policy and granted the Beckers’ motion for summary judgment. York appeals that order, which, though not final, is subject to interlocutory appeal as a non-final order determining the issue of liability in favor of a party seeking affirmative relief. Fla.R. App.P. 9.130(a)(3)(C)(iv). We reverse.

The Becker policy, containing uninsured motorist coverage, was issued and delivered in the spring of 1973 for an initial six-months period. When the policy premium came due for the second six-months period, Mr. Becker made timely payment. He received a new declarations page in November 1973 after the page had been countersigned by York’s agent on November 15, 1973. The declarations page described the policy period as being from September 30, 1973 until March 30, 1974. The automobile accident giving rise to this suit occurred on March 2, 1974.

The Becker policy provided that the initial and each successive policy period shall be the period stated in the declarations. It further provided that “this policy shall not be valid until countersigned by the duly authorized agent of the company.”

We have a basic question of statutory interpretation. In the version urged by York, the events in the fall of 1973 are described as a policy “renewal.” The Beck-ers, on the other hand, insist that those events constituted the “delivery” of a policy. In our view it is not significant whether there was a renewal of an existing policy or a delivery of a new one; the key words used by the legislature are “inception date.” We hold that “inception date” means the first day of the policy period as stated on the declarations page (or elsewhere in the policy), which in this case was September 30, 1973.

The Beckers have vigorously argued that the inception date should be considered the countersignature date of November 15, 1973 or at least the delivery date of the new declarations page. However, this court has previously held that the duration of an insurance policy, when fixed by clear and unambiguous language, will not be altered because some incident bearing upon the effectiveness of the policy, such as a countersigning or a premium payment, occurs on a nonconforming date. State Farm Mutual Auto. Ins. Co. v. Veenschoten, 272 So.2d 201 (Fla. 2d DCA 1973). That rule is applicable here. The events in November 1973 did not extend the policy period; neither did they delay its beginning for purposes of determining coverage.

The 1973 amendment not being applicable to the Becker policy, that policy does not provide underinsured motorist coverage and the Beckers are precluded from recovery in this suit.

Reversed with directions to enter judgment for appellant.

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

      .Currently § 627.727, Fla.Stat. (1977), as amended by Ch. 78-374, Laws of Fla., effective January 1, 1979.

      . Ch. 73-180, Laws of Fla.

      . Id. at § 5.


text:
    Leroy G. AZAR, Individually and as Trustee, Appellant, v. LEHIGH CORPORATION and First United Investors, Inc., a Florida Corporation, Appellees.
    No. 78-858.
    District Court of Appeal of Florida, Second District.
    Nov. 29, 1978.

      E. G. Couse of Grace & Couse, P.A., Fort Myers, for appellant.
    Thomas R. Spencer, Jr. of Myers, Kaplan, Levinson, Kenin & Richards, Miami, for ap-pellees.
   GRIMES, Chief Judge.

This is an appeal from a temporary restraining order filed pursuant to Fla.R. App.P. 9.130(a)(3)(B).

Appellee, Lehigh Corporation, is engaged in the business of developing and selling real property in a large development project in Lee County known as Lehigh Acres. Appellee, First United Investors, Inc., is a registered real estate broker and the sales agent in the State of Florida for Lehigh Corporation. The only motel in the community is owned and operated by Le-high. The motel is open to the public. Part of Lehigh’s promotional campaign for the sale of property is to bring prospective purchasers to Lehigh Acres where they are provided accommodations at Lehigh’s expense and given the opportunity to see Le-high’s property and to talk to salesmen regarding the property available for purchase.

Appellant was formerly an employee of Lehigh in the sales department. Since his termination, the appellant has pursued a practice of following prospective customers to the Lehigh Motel and persuading them to rescind their contracts with Lehigh for the purchase of property and to purchase property from him at a lower price. The appellees charged that appellant was surreptitiously obtaining customer lists from some of their employees, but appellant said he could spot their customers by following people down the street and observing whether they were carrying the big envelopes full of sales literature supplied by appellee. Appellant would then seek out the customer in his motel room and offer to handle the rescission of his contract if the customer would move out of the motel and buy a lot from appellant.

Following an evidentiary hearing, the court issued the following temporary restraining order, to wit:

IT IS HEREBY ORDERED AND ADJUDGED that the Defendant, Leroy Azar, is hereby restrained and enjoined from directly or indirectly contacting or soliciting the Plaintiff’s perspective [sic] or actual customers on the premises of the Lehigh Resort Motel or at the sales offices of the Plaintiffs if such purchasers are in Lee County as guests of the Plaintiffs. “Guests” of the Plaintiffs shall mean persons who have been invited by the Plaintiffs, either directly or indirectly, to view the Lehigh Acres community and real estate situate therein. “Invited” shall mean those persons who have come to the Lehigh Acres community as a result of any promotional activities of the Plaintiffs wherein some incentive of value has been given or offered to said persons. The “Defendant”, Leroy Azar, shall include any person or entity acting in the Defendant’s behalf or at the urging of the Defendant, Leroy Azar.

Appellant seeks review of this order.

The appellant asserts that appellees’ customers have a right under federal law to rescind their contracts within three days and that he is merely providing them with an opportunity to be relieved of their contract and to obtain comparable property for lower prices. He points out that the customers’ “vacation certificates” under which they obtain lodging at no cost or at reduced rates does not obligate them to buy or even to look at the lots offered for sale by Le-high.

The allegations of the complaint are broader in scope, but the theory upon which the appellees obtained the temporary restraining order was that the appellant was tortiously interfering with the advantageous business relationship between them and their customers.

In Symon v. J. Rolfe Davis, Inc., 245 So.2d 278 (Fla.4th DCA 1971), the court enumerated the elements of this tort as follows:

(1) the existence of a business relationship under which the plaintiff has legal rights, (2) an intentional and unjustified interference with that relationship by the defendant, and (3) damage to the plaintiff as a result of the breach of the business relationship. .

It is not essential, however, that the business relationship be founded upon an enforceable contract. Franklin v. Brown, 159 So.2d 893 (Fla.1st DCA 1964). Thus, in Calvary Church, Inc. v. Siegel, 358 So.2d 1134 (Fla.3d DCA 1978), the court affirmed a judgment against a corporation for interfering with the plaintiff’s agreement to purchase property from another even though the agreement was not necessarily enforceable against the seller. Moreover, proof of fraud is not required to sustain a cause of action for this tort. Smith v. Ocean State Bank, 335 So.2d 641 (Fla.1st DCA 1976).

There is a narrow line between what constitutes vigorous competition in a free enterprise society and malicious interference with a favorable business relationship. Under the- heading of “Interference with prospective advantage,” Prosser states:

Though trade warfare may be waged to the bitter end, there are certain rules of combat which must be observed. . W. Prosser, Law of Torts (4th ed. 1971) at 956.

He goes on to say that the courts have generally prohibited such activities as defamation of the competitor, disparagement of his goods and his business methods, and intimidation, harassment and annoyance of his customers. In the final analysis, the issue seems to turn upon whether the subject conduct is considered to be “unfair” according to contemporary business standards.

Keeping in mind the trial judge’s broad discretion to enter temporary restraining orders, we believe there is sufficient evidence in this record to support the court’s decision. North Dade Water Co. v. Adken Land Co., 114 So.2d 347 (Fla.3d DCA 1958). Moreover, we believe the terms of the order are precise enough for the appellant to understand what he cannot do. Considering appellant’s knowledge of Le-high’s operation, we are confident that he will have no difficulty in ascertaining which of the motel patrons constitute appellees’ guests as defined in the temporary restraining order.

AFFIRMED.

SCHEB and OTT, JJ., concur.

      . Before appellant took this appeal, appellees sought to expand the order to include another of appellant’s sales techniques. He would equip his automobile with a large sign advertising the sale of his lots and follow appellees’ tour bus full of prospective customers. However, we need not be concerned with this practice because appellees have not sought review of the court’s decision not to extend the restraining order.

      . We find the case of Lake Gateway Motor Inn v. Matt’s Sunshine Gift Shops, Inc., 361 So.2d 769 (Fla.4th DCA 1978), so strongly relied upon by appellant, substantially distinguishable in that the business relationship allegedly interfered with had already deteriorated to the point that it could hardly be considered mutually advantageous.


text:
    STATE of Florida, Appellant, v. M. L. BROOMFIELD, a/k/a M. L. Bronfield, Appellee.
    No. 78-897.
    District Court of Appeal of Florida, Second District.
    Nov. 29, 1978.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellant.
    Jack 0. Johnson, Public Defender, and W. C. McLain, Asst. Public Defender, Bartow, for appellee.
   DANAHY, Judge.

The state appeals from an order granting the appellee’s motion to suppress physical evidence. It contends that the trial court erred in finding that the inventory search of the car which appellee was driving was improper. We agree.

Trooper Taitón B. Dunn, Jr. of the Florida Highway Patrol, appellee, and appellee’s girlfriend, Voncille Owens, testified at the hearing on the motion to suppress. Their testimony did not conflict in any significant way and presented the following set of facts.

At about 6:00 p. m. on December 11,1977, Dunn stopped appellee for speeding on Highway 41 in Lee County. Dunn approached the car and asked appellee for his driver’s license and registration. Appellee told the officer he had neither, but identified himself as M. L. Broomfield. Dunn made a computer check in Florida and Mississippi, appellee’s home state, finding no record of a license or registration. He then arrested appellee for driving without a license and gave him the choice of leaving the automobile on the shoulder of the road or having it towed. Appellee decided to leave it along the road and personally re-parked the car ten to twelve feet off the road where it would not impede traffic flow.

While in the front seat of the patrol car, appellee said the car he was driving belonged to his girlfriend, Yoncille Owens. He also said that he had picked the car keys up from her dresser and that she might have reported the car stolen. Dunn transported appellee to jail and then began to try to locate Miss Owens. Appellee could not read or write, and so he could not tell Dunn where he and Miss Owens lived since he did not know the street address and could not draw an adequate map. Dunn found no outstanding auto theft warrant or complaint concerning the car. He had a jailer check the telephone directory for Miss Owens’ address, but she was not listed. A check of a tag number revealed an inaccurate address because appellee and Miss Owens had moved a month earlier.

Having been unable to find Miss Owens, Dunn informed appellee that he was going to tow in the car appellee had been driving. He did not ask appellee for his consent to this action and appellee did not give it. Dunn took a dinner break and, two hours after the initial stop, returned to the parked automobile. There he inventoried the vehicle in preparation for towing and found a .25 caliber pistol under the front seat.

We believe that on the basis of these undisputed facts, the trial court should have denied the motion to suppress. A law enforcement officer may impound a vehicle whenever a necessity for that action exists. Granville v. State, 348 So.2d 641 (Fla.2d DCA 1977); Altman v. State, 335 So.2d 626 (Fla.2d DCA 1976). Here there was such a necessity. Night had fallen and the vehicle was parked unattended along a rural highway where it would be easy prey for vandals. Moreover, Trooper Dunn was unable to locate the vehicle’s owner to inform her of the situation, and to ask her what she wished to do about it. Thus he had little choice but to impound the car in order to avoid possible liability in case the car was stolen or vandalized during the night.

Because the impoundment was proper, the inventory search which revealed the pistol was proper. Altman v. State, supra. Accordingly we reverse the order granting the motion to suppress and remand the case for further proceedings.

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


text:
    C. F. INDUSTRIES, INC., Petitioner, v. John Lee LONG, Jr., and Division of Employment Security of the Department of Commerce, State of Florida, Respondents.
    No. 78-960.
    District Court of Appeal of Florida, Second District.
    Nov. 29, 1978.

      Kelly B. Hardwick, III of Boswell, Boswell '& Conner, Bartow, for petitioner.
    Alex D. Littlefield, Jr., Tallahassee, for respondents.
   SCHEB, Judge.

An appeals referee held that an employee of petitioner was not entitled to unemployment compensation since he was properly discharged for misconduct. The Board of Review reversed. Petitioner now seeks our review of the Board’s action pursuant to § 443.07(4)(e), Fla.Stat. (1977). We reverse.

On July 13, 1977, petitioner C.F. Industries, Inc. terminated respondent John Lee Long, Jr.’s employment. Five days later Long filed a claim for unemployment compensation. A claims examiner and later the appeals referee denied the claim, holding that respondent had been properly discharged for misconduct connected with his work.

At the hearing before the appeals referee, petitioner’s personnel supervisor, Doug Paik, testified that he was familiar with Long’s employment record. He presented an abstract of that record showing twenty-two separate instances of excessive tardiness, excessive absenteeism, violation of safety rules, failure to report an accident involving injury, and unsatisfactory performance. In each case Long was given a warning or a layoff which in one case amounted to two weeks.

Mr. Paik also presented .a report by Long’s supervisor on the incident which apparently led directly to Long’s discharge. In that report, the supervisor stated that Long had falsified records of tests which he had been running and had lied when confronted with evidence of the falsification.

Respondent Long testified in his own behalf. He denied that he had falsified records or lied to the supervisor. He also stated that only one of the layoffs had been justified.

After the hearing, the referee entered an order affirming the decision of the claims examiner. He found that petitioner had failed to prove that Long had fabricated records but that the accumulated evidence was sufficient to justify Long’s discharge for misconduct. Long appealed this decision to the Board of Review which reversed, holding that petitioner would not have fired Long except for his final act of falsifying records and that since petitioner did not establish that Long had falsified records the evidence did not support a finding that petitioner discharged Long for misconduct connected with his work.

In deciding whether the Board of Review erred by reversing the decision of the appeals referee we must determine whether there was competent, substantial evidence to support the referee’s decision. If there was, then the Board of Review should have affirmed. Department of Commerce v. Dietz, 349 So.2d 1226 (Fla. 2d DCA 1977).

On several occasions we have approved the following definition of misconduct:

“Misconduct” ... is limited to conduct evincing such wilful or wanton disregard of an employer’s interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inad-vertencies or ordinary negligence in isolated instances, or good faith errors in judgment or discretion are not to be deemed “misconduct” within the meaning of the statute.

Wike v. Department of Commerce, 363 So.2d 1139, at 1140 (Fla. 2d DCA 1978); Hammett v. Department of Commerce, 352 So.2d 948, 949 (Fla. 2d DCA 1977); Fredericks v. Department of Commerce, 323 So.2d 286, 288 (Fla. 2d DCA 1975). Under this definition we believe that there was competent, substantial evidence to support the referee’s holding that petitioner discharged Long for misconduct connected with his work. See Bagwell Lumber Company v. Department of Commerce, 353 So.2d 1261 (Fla. 2d DCA 1978).

Accordingly, we quash the decision of the Board of Review and remand this case with directions that the Board reinstate the decision of the appeals referee.

HOBSON, Acting C. J., and DANAHY, J., concur.

      . § 443.06, Fla.Stat. (1977) provides:
      “An individual shall be disqualified for benefits . . . [when] he has been discharged by his employing unit for misconduct connected with his work . . .