author: PER CURIAM. ENGLAND, Chief Justice,

text:
    Nathaniel PRESSLEY, Petitioner, v. Louie L. WAINWRIGHT, Respondent.
    No. 42684.
    Supreme Court of Florida.
    Jan. 25, 1979.
    Bennett H. Brummer, Public Defender, and Paul Morris, Asst. Public Defender, Miami, for petitioner.
    Jim Smith, Atty. Gen., and Joel D. Rosen-blatt, Asst. Atty. Gen., Florida Regional Service Center, Miami, for respondent.
   PER CURIAM.

The motion for leave to apply belatedly for certiorari review is granted, and jurisdictional briefs shall be filed as follows: petitioner’s brief shall be served on or before ten days from the date of this order; respondent’s brief shall be served twenty days from the date petitioner’s brief is served; and petitioner’s reply brief shall be served ten days from the date respondent’s brief is served.

ADKINS, BOYD, OVERTON, SUND-BERG, HATCHETT and ALDERMAN, JJ., concur.

ENGLAND, C. J., dissents with an opinion.

ENGLAND, Chief Justice,

dissenting.

I dissent from the majority’s decision to entertain Pressley’s late-filed petition for certiorari, and I deem it essential to explain why.

The contentions in Pressley’s petition are, in essence, that because he expressed a desire for review in this Court, state-provided counsel (either the court-appointed attorney who represented him on his direct appeal or the office of the public defender which agreed to seek certiorari review in this Court) had a duty to file a petition within the thirty-day time limit prescribed by our 1962 Florida Appellate Rule 4.5(c)(6); that the failure to file the petition in a timely fashion resulted in a deprivation of his absolute right to seek such review; that this deprivation constitutes state action denying Pressley the effective assistance of counsel; and that this wrongdoing can only be remedied by our granting him a new trial or considering his late-filed petition for certio-rari review.

A federal district court and the Fifth Circuit Court of Appeals accepted Press-ley’s syllogism and have resolved to release Pressley from custody unless we either allow him to file his late petition or summarily grant him a new trial. In their written opinions, both courts stressed the fact that Pressley had expressed to counsel his desire to seek certiorari review of the state district court’s decision which affirmed his conviction, and that he had been assured that a petition would be filed on his behalf within the thirty-day period. Finding that Pressley’s failure to file the petition on his own was attributable to his reliance on that representation by his state-provided lawyer and to his own ignorance of the requisite filing period, the federal courts surmised that state action had deprived Pressley of the effective assistance of counsel and denied him due process and equal protection of the law. The United States Supreme Court has denied certiorari review of the Fifth Circuit’s decision, putting to rest any possibility of inquiring further into the basis for the determination that Pressley’s rights have been violated.

The fact that we are now powerless to unravel the legal predicate on which Press-ley’s rights hinge does not mean to me that our independent evaluation of those legal principles is now foreclosed. Nor does the fact necessarily compel the remedy which my colleagues have elected. Admittedly, the federal court has posed for conscientious jurists a difficult choice — either we give Pressley a new trial or permission to file a belated petition for certiorari, or the federal court will set him free. Nonetheless, this Court is the state’s highest judicial policymaker, and I believe we are obliged to evaluate the compelled alternatives in this case not only for their effect on Pressley, but as well for their precedential significance. My fundamental disagreement with the majority’s decision is its implicit concession that the resolution of Pressley’s peculiar problem is more important than the jurisprudence which his unique situation has engendered.

The issue of an indigent’s right to certio-rari review here after a Florida district court of appeal has affirmed a conviction on direct, plenary appeal is neither novel nor complex. We have previously addressed that issue, and in doing so we unflinchingly concluded that unrepresented criminal defendants enjoy the same right as every other party desiring certiorari review of a district court decision — that is, quite simply, the right to petition this Court within the period prescribed by our appellate rules. Moreover, I submit that the Fifth Circuit’s decision with regard to Pressley does not put us in the position of having to accord certiorari review or grant a new trial to one who has been duly convicted by a jury of first-degree murder and had his conviction affirmed by the only appellate court in which he has a right of direct review. We can decline both alternatives and allow the federal court to assume the responsibility for the consequence it has threatened — that is, Pressley’s release from custody.

I am troubled by the fact that my colleagues, by acceding to the federal court’s ultimatum and granting the relief requested, have simply fashioned a convenient result to prevent Pressley’s freedom, wholly ignoring in the process the significance of our precedents, the sanctity of our rulemak-ing authority under the constitution, and the practical consequences of abandoning both. My dissatisfaction with the majority’s position is best explained by reference to some well-heeled legal principles.

Under existing Florida law, litigants are only entitled to one appeal as a matter of right. Under existing Florida law, both the state and an indigent defendant have an absolute and equal right to petition this Court for certiorari review if done in compliance with the rules. Under existing Florida law, the thirty-day period of our appellate rules is for either party a “jurisdictional” requisite for certiorari review here. Under existing Florida law, clients are bound by the acts of counsel, even when those acts waive a constitutional right. Under both federal and Florida law, ignorance of the law does not excuse a failure to comply with it.

As legal justification for disregarding these principles, the federal courts have referenced Costello v. State, 246 So.2d 752 (Fla.1971); Baggett v. Wainwright, 229 So.2d 239 (Fla.1969); and Hollingshead v. Wainwright, 194 So.2d 577 (Fla.1967). None of those decisions, I submit, is relevant. Costello merely relies on Baggett. Baggett and Hollingshead were expressly predicated on the United ^States Supreme Court’s decision in Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), holding that an indigent defendant is entitled to appointed counsel for the purpose of a direct appeal which is available as a matter of right. Those cases, therefore, stand only for the proposition that the thirty-day filing requirement may be waived where state action has prevented the timely filing of an appeal as of right. Pressley, of course, was accorded both counsel and a timely appeal as of right. Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974), stands squarely for the proposition that there is no constitutional right to counsel for purposes of seeking discretionary certiorari review either in a court like ours or in the United States Supreme Court. If the right to counsel is not guaranteed, I fail to comprehend how a procedural omission of counsel has become a constitutional right.

Not only is there an absence of legal support for the majority’s decision, but there appear to be no policy reasons to sustain it. Surely the prevention of Press-ley’s freedom is no justification for a new policy as potentially sweeping as the one now adopted. The majority has not defined the limit of its new “late-petition right,” and I can only hope that their intent is to confine that new right to fact patterns such as that which the Fifth Circuit thought this record supports — that is, where a promise to petition for review within the thirty days allowed by our rule is communicated to an indigent by state-provided counsel. Otherwise, the majority will have created a behemoth which, like the proverbial whale when it met Jonah, will swallow the thirty-day rule.

This is not merely an instance of a hard case making bad law. This hard case has resulted in the Court’s casting aside a substantial body of good law. I had thought this Court would not change existing law to meet the hardships of individual cases. I had thought this Court had the exclusive authority to promulgate rules of practice and procedure for the courts of this state. And I had thought we were bound by the governmental scheme in article V of our constitution, which established the district courts as courts of final appellate jurisdiction. Apparently, all of these notions were inaccurate. Gone too, I fear, is the wisdom of Atlantic Coast Line R. Co. v. Mack, 64 So.2d 304, 307 (Fla.1952), where the Court said:

The reason for the [time limitation] rule is sound and has a definite purpose. Litigation must end sometime. It was never contemplated that the power, right, authority, or jurisdiction to consider a petition for . certiorari, or to issue the writ, could exist for an indefinite period, or in perpetuity, and thereby leave uncertain and undecided vital and important litigation until some of the parties got ready to move. Such a situation would lead to endless delay, uncertainty and confusion.

      . This time limitation for discretionary certiora-ri petitions to this Court has been carried forward into our present appellate rules. Fla.R. App.P. 9.120(b).

      . Pressley v. Wainwright, No. 75-420-CIV-JE (S.D.Fla.1975).

      . Pressley v. Wainwright, 540 F.2d 818 (5th Cir. 1976), cert. denied, 430 U.S. 987, 97 S.Ct. 1688, 52 L.Ed.2d 383 (1977).

      . Pressley v. State, 261 So.2d 522 (Fla.3d DCA 1972).

      . The Fifth Circuit’s statement that Pressley was “unaware of this filing time,” 540 F.2d at 820, is rather puzzling in view of its later observation that “[t]he record indicates . . that the Public Defender agreed to [undertake his representation] within the thirty-day period in question.” (Emphasis in original.) Id. at 821. Moreover, the record does not support the Fifth Circuit’s statement in this regard, as the only evidence available indicates that Pressley wrote within the thirty-day period. Nothing indicates when the public defender received his request or promised to file for him, and the filing itself, of course, was out of time.

      . The Fifth Circuit did not directly rule that Pressley had been denied due process or equal protection, but apparently adopted the federal district court’s conclusion to that effect. 540 F.2d at 821 n.11.

      . See Mobil Oil Corp. v. Shevin, 354 So.2d 372, 374 (Fla.1977).

      . Crawford v. Wainwright, 222 So.2d 188 (Fla.1969). See also State ex rel. Kovnot v. Ferguson, 313 So.2d 710 (Fla.1975).

      . See Lake v. Lake, 103 So.2d 639 (Fla.1958), which explains that in Florida every litigant is entitled to one appeal as a matter of right and that, unless the case is one which falls within our supervisory appellate jurisdiction under article V of the Florida Constitution, the district court is the final tribunal in which review as a matter of right may be obtained.

      . The obvious consequence of today’s action is that there is now a right to petition without compliance with the rules. If the timeliness rule is flexible despite precedents declaring it to be “jurisdictional,” no rule that we have adopted can operate other than as a suggestive procedural guideline. Our timeliness rule is already evenhanded. See State v. Harris, 136 So.2d 633 (Fla.1962). It is, of course, self-evident that our appellate rules provide procedural due process and do not in that sense to any degree deny due process of law.

      . See, e. g., Lake v. Lake, 103 So.2d 639, 642 (Fla.1958); Siegel v. State, 289 So.2d 764 (Fla. 3d DCA 1974); Frazee v. Frazee, 185 So.2d 484, 485 (Fla. 1st DCA 1966).

      . State v. Harris, 136 So.2d 633 (Fla.1962).

      . See Florida Admin. Comm’n v. District Court of Appeal, 351 So.2d 712, 715 (Fla.1977); Shevin ex rel. State v. Public Service Comm’n, 333 So.2d 9, 11 (Fla.1976); State ex rel. Kovnot v. Ferguson, 313 So.2d 710, 711 (Fla.1975); Lazenby v. Seaboard Life Ins. Co., 224 So.2d 288 (Fla.1969); Crawford v. Wainwright, 222 So.2d 188 (Fla.1969); Elliott v. Goodwill Industries, 220 So.2d 902 (Fla.1969); Walsh v. Marsh, 220 So.2d 897 (Fla.1969); Dave’s Auto Parts v. Westberry, 220 So.2d 364, 365 (Fla. 1969); Overstreet v. Davis, 219 So.2d 34, 34-35 (Fla.1969); Russom v. State, 109 So.2d 30, 31-32 (Fla. 1959); Central Truck Lines, Inc. v. Boyd, 106 So.2d 547, 549 (Fla.1958); Columbia Cas. Co. v. McFee, 81 So.2d 631, 632 (Fla. 1955); Wieczorek v. Williams, 71 So.2d 262 (Fla.1954); Atlantic Coast Line R. Co. v. Mack, 64 So.2d 304, 307 (Fla.1952); State Dept. of Highway Safety & Motor Vehicles v. Adams, 338 So.2d 542, 543 (Fla. 1st DCA 1976); Flinchbaugh v. Burton, 312 So.2d 827 (Fla. 4th DCA 1975); Hayes v. State, 151 So.2d 671, 672 (Fla.2d DCA 1963); Harris v. Condermann, 113 So.2d 235, 238 (Fla. 3d DCA 1959).

      . See, e. g., Wainwright v. Sykes, 433 U.S. 72, 91 n.14, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Estelle v. Williams, 425 U.S. 501, 512, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976); Faretta v. California, 422 U.S. 806, 820-21, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); Spenkelink v. State, 350 So.2d 85, 87 (Fla.) (England, J., concurring), cert. denied, 434 U.S. 960, 98 S.Ct. 492, 54 L.Ed.2d 320 (1977); State ex rel. Gutierrez v. Baker, 276 So.2d 470, 471-72 (Fla. 1973); State v. Abrams, 350 So.2d 1104, 1105 (Fla. 4th DCA 1977); Brown v. State, 328 So.2d 497, 498 (Fla. 3d DCA 1976); State v. Nelson, 320 So.2d 835, 836 (Fla. 2d DCA 1975); State v. Earnest, 265 So.2d 397, 400-01 (Fla. 1st DCA 1972).

      . Shevlin-Carpenter Co. v. Minnesota, 218 U.S. 57, 68, 30 S.Ct. 663, 54 L.Ed. 930 (1910). See generally, 21 Am.Jur.2d Criminal Law § 94 (1965); 9 Fla.Jur. Criminal Law § 402 (1972).

      . Pressley v. State, 261 So.2d 522 (Fla. 3d DCA 1972).

      . Jonah 1:17.

      . If the new right to petition is accorded more broadly on the ground that constitutional rights are triggered merely by a breach of an attorney’s ethical responsibility to inform indigent clients of this Court’s power to review district court decisions by certiorari, and of the time within which such review must be sought, the consequences are truly awesome. For example, if that right exists for indigents, can we say it does not exist for clients who pay their counsel? I think not, under the very due process, equal protection, and access-to-courts rationale on which the federal courts have relied. It would follow that all convicted felons (and perhaps misdemeanants as well) would be eligible for late-filed review if this duty to inform is breached. Then, of course, considerations of fairness (if not our Harris decision, note 12 above) would require that the state be afforded an equivalent right to file late petitions for certiorari. The thirty-day rule, I submit, simply would no longer apply in criminal proceedings brought to this Court from district courts of appeal.
      In addition to these legal considerations, a broader rule would have dramatic practical implications. Some of the more obvious are these: (1) We would now apparently have to presume that indigent defendants are ignorant of our rules, since nothing in the record supports the Fifth Circuit’s declaration that Press-ley did not know of our timeliness rule, and on that basis impose a duty on appointed counsel to inform them not only of their procedural rights, but of the time limits within which those rights should be exercised. Non-indigents, of course, should be accorded the same presumption on equal protection grounds. (2) We would have to consider how the state would respond to a motion for belated certiorari review which asserts a failure of counsel to inform, and how we would develop the evidence on which to base our decision to allow or reject a late petition. Among other things, this latter inquiry would require someone to determine factually whether the public defender (or other court-appointed counsel who represented the late-filing applicant) negligently or intentionally failed to file a notice of certiorari within the thirty-day period (assuming a different consequence would flow from that information). Since the policy reasons, if any, for abandoning a timeliness rule in all criminal cases are not apparent, I assume that the majority does not intend the enumerated consequences, and that the action taken today is designed solely to resolve Pressley’s peculiar situation.

      .See, e. g., Gentile Bros. Co. v. Florida Indus. Comm’n, 151 Fla. 857, 862, 10 So.2d 568, 571 (1942):
      It may be that such an interpretation will work a hardship in this case but individual cases should not be permitted to overthrow a long settled rule that the public has relied on and in a multitude of instances would be adversely affected by it if overthrown. Rules of law must be grounded on reason and justice rather than on what emotional impulse would dictate.

      . The Court has placed no limitation on the time within which a petition must be filed after the defendant learns of his right to seek discretionary review here. In this case the public defender in fact acted promptly to file out of time. I will indulge the further assumption that my colleagues consider prompt action to be indispensable to the new late-petition right. If not, some litigants would undoubtedly postpone their requests for certiorari purposefully, hoping to improve their chances of success by watching and waiting either for the publication of another decision which appears to create direct decisional conflict or for our granting of jurisdiction in an arguably similar case.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    HARDRIVES COMPANY, INC., and Liberty Mutual Insurance Company, Appellants, v. Arthur WELLS and the Hertz Corporation, Appellees.
    No. 76-2490.
    District Court of Appeal of Florida, Fourth District.
    Dec. 20, 1978.
    Frank E. Maloney, Jr., of Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellants.
    George B. Pomeroy of Pomeroy, Betts & Wiederhold, Fort Lauderdale, for appellees.
   PER CURIAM.

Our study of the briefs and record in this case convinces us that the trial court was correct in dismissing the amended third party complaint. However, since the third party plaintiff only had one opportunity to amend, we feel the third party plaintiff should be given a further opportunity to attempt to state a cause of action. Accordingly, the order appealed from is reversed.

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


text:
    In the Interest of S. L. W., a Juvenile.
    No. 77-2038.
    District Court of Appeal of Florida, Fourth District.
    Dec. 20, 1978.
    Richard L. Jorandby, Public Defender, Kathleen Kroll, Legal Intern, Denise Ban-javic, Legal Intern, and Tatjana Ostapoff, Chief, App. Division, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Glenn H. Mitchell, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

This cause is affirmed upon the authority of State v. Nelson, 320 So.2d 835 (Fla. 2d DCA 1975).

ANSTEAD and LETTS, JJ., and JOHNSON, THOMAS, Associate Judge, concur.


author: McCORD, Chief Judge.

text:
    CARTER OPTICIANS, INC., Appellant, v. Angela F. DAVIS, Appellee.
    No. II-350.
    District Court of Appeal of Florida, First District.
    Jan. 4, 1979.

      Stanley B. Gelman, Jacksonville, for appellant.
    Hal S. Castillo of Lewis, Paul, Issac & Castillo, Jacksonville, for appellee.
   McCORD, Chief Judge.

Appellant, Carter Opticians, Inc., appeals the trial court’s holding that a transaction between appellant and appellee Davis was a transaction where credit had been offered or extended to appellee from appellant and, therefore, it involved a “consumer claim” under Chapter 559, Florida Statutes (1975). We reverse.

The facts show that appellee Davis ordered from appellant a pair of prescription glasses, and appellant agreed to have the glasses ready later the same day. Appellant did not ask Davis for payment prior to actual delivery of the glasses. Later the same day, after the lenses had been prepared, Davis informed appellant that she no longer wanted the glasses. Appellant explained to her that the glasses could not be sold to anyone else since the lenses had been especially ground for her prescription and to fit the frames she selected. However, Davis refused to pay for the glasses. After Davis refused payment, appellant contacted Davis’ employer and informed him of Davis’ alleged debt to appellant. Appellant’s place of business is located in the same building as Davis’ employer, and appellant gave a discount on glasses to all of the employees of Davis’ employer.

Appellant filed a claim for payment against Davis in county court; Davis filed a counterclaim pursuant to §§ 559.72 and 559.77, Florida Statutes (1975), and the cause was transferred to circuit court. § 559.55(1), Florida Statutes (1975), provides that a “consumer claim” is a claim “arising out of a transaction wherein credit has been offered or extended.” § 559.72 provides:

“In collecting consumer claims . no person shall:
******
(4) communicate or threaten to communicate with a debtor’s employer . . . .”

The legislative act does not define “credit,” and the meaning of that term as applied to the facts of this case is the sole issue.

The trial court found that Davis was indebted to appellant for the sum of $35.15 for the glasses she ordered. On Davis’ counterclaim, the trial court concluded that appellant’s claim against Davis was a “consumer claim” in that the glasses were a consumer item made especially for Davis’ exclusive use and could not be sold to anyone else; that in not requiring Davis to pay for this exclusive item in advance, appellant extended credit to appellee for a few hours; that Davis did not give appellant permission to contact her employer regarding the debt and, thus, appellant violated § 559.72 when it so communicated with Davis’ employer. Pursuant to § 559.72(4) and § 559.77(1), Florida Statutes (1975), the trial court awarded Davis statutory damages in the amount of $500 and $750 attorneys’ fees.

Appellant argues that the payment arrangement at issue was simply a cash-on-delivery transaction and did not involve an “extension of credit.” Appellant contends that the trial court’s classification of this transaction as an “extension of credit” is overly broad and cites authorities which define “credit” as the antonym of “cash on delivery.” See Ballantine’s Law Dictionary 2d Ed.; 3 Am.Jur. Proof of Facts, Credit, p. 455; “Handling Consumer Credit Cases,” by Barkley Clark and John R. Fonseca [the Lawyers Cooperative Publishing Company (1972), plus supplements]; Regulation Z of the Federal Truth in Lending Regulations (12 C.F.R. 226), at § 226.2(q). On the basis of these authorities, appellant argues that when, as in this case, the item is to be paid for upon delivery, credit has not been extended.

Davis responds that she was liable and obligated to pay when the order was placed, but payment was deferred until the glasses were delivered. Thus, credit was extended for the period of time between the order and delivery.

We agree with appellant and find that the trial court erred in ruling this “cash on delivery” transaction to be a “credit” transaction. While appellant could have required advance payment as a condition to preparing the glasses in accordance with appellant’s prescription, its failure to do so does not convert this from a “cash on delivery” transaction to a credit transaction. Had Davis been extended credit upon delivery of the glasses, then, of course, it would have then become a credit transaction. Were we to construe this to have been a credit transaction merely because appellant did not require advance payment for work it was to yet perform, such construction would bring into the orbit of Chapter 559, Florida Statutes, a multitude of executory transactions in which advance payment pri- or to performance is not required. We do not believe the legislature intended to incorporate such transactions as credit transactions. Here there was no extension of credit. Davis simply refused to pay for the glasses she had ordered on a cash-on-delivery transaction. Under the facts presented here, credit was not extended, and, therefore, appellant’s claim against Davis is not within the definition of “consumer claim” under Chapter 559. The penalties of that statute do not apply to appellant. Consequently, the judgment below, insofar as it assesses damages and attorneys’ fees against appellant is

REVERSED.

SMITH and MELVIN, JJ., concur.


author: SCHEB, Judge.

text:
    James L. GREENBURG, Appellant, v. Brenda E. JOHNSTON and Fidelco Growth Investors, Appellees.
    No. 78-1337.
    District Court of Appeal of Florida, Second District.
    Jan. 5, 1979.
    Rehearing Denied Feb. 8, 1979.

      Louis Wienckowski, Clearwater, for appellant.
    Robert C. Burke, Jr., of Korones, Burke & Laursen, Clearwater, for appellee, Brenda E. Johnston.
    John R. Bush and Claude H. Tison, Jr., of MacFarlane, Ferguson, Allison & Kelly, Tampa, for appellee, Fidelco Growth Investors.
   SCHEB, Judge.

The trial court entered a final judgment in favor of appellees/defendants after denying appellant/plaintiff’s motion to amend his complaint. We hold that the trial court abused its discretion in not allowing appellant to amend, since it was apparent the proffered amendment would state a cause of action. We, therefore, reverse the final judgment.

Appellant brought suit against appellees, alleging that he was entitled to damages under the implied-warranty provisions of § 718.203, Fla.Stat. (1977) because the condominium he purchased was defective. Ap-pellees each moved for summary judgment and accompanied their motions with exhibits showing that construction of the condominium commenced prior to July 1, 1974, the operative date of the warranty provided in § 718.203(5), Fla.Stat. (1977). Appellant filed nothing in opposition. However, at the summary judgment hearing he presented a motion for leave to amend his complaint to allege a cause of action based on breach of common law implied warranty. The trial court granted appellees a summary judgment, and, after further deliberation, denied appellant’s motion for leave to amend and entered final judgment in favor of appellees.

On motion for summary judgment, appellees’ sole contention was that appellant had not stated a cause of action because construction commenced before the operative date of the statutorily imposed warranties. Appellant did not controvert the exhibit showing that construction had, in fact, commenced before the operative date of the statutory warranty. Hence, there was no genuine issue of any material fact in this regard, and the trial court properly entered a summary judgment as to appellant’s claim of breach of statutory warranty. Appellees did not, however, submit anything to controvert their status as developers, or that they sold a structurally defective new condominium to appellant. Florida law recognizes a common law cause of action for breach of an implied warranty of merchantability in the sale of new condominiums. Putnam v. Roudebush, 352 So.2d 908 (Fla.2d DCA 1977). From the facts alleged in appellant’s complaint, it appears that appellant may be able to plead a cause of action based on a common law theory. Appellant should not be deprived of his full day in court by summary proceedings, where, as here, the record indicates he may have a bona fide cause of action. Beckerman v. Greenbaum, 347 So.2d 141 (Fla.2d DCA 1977); see Hart Properties, Inc. v. Stack, 159 So.2d 236 (Fla.1963); Fla.R. Civ.P. 1.190(a).

While good practice dictates that a motion for leave to amend should be filed at an earlier stage; it is not necessarily untimely if filed at the hearing on a motion for summary judgment or even after the motion is granted. Of course, after a responsive pleading has been filed, leave to amend is discretionary with the court. Fla. R.Civ.P. 1.190(a). But where, as here, it becomes apparent that the plaintiff can state a cause of action, it is an abuse of discretion to deny the motion to amend. Gold Coast Crane Service v. Watier, 257 So.2d 249 (Fla.1971); Roberts v. Braynon, 90 So.2d 623 (Fla.1956).

Accordingly, we affirm the grant of summary judgment to appellees, but reverse the order denying appellant leave to amend. The final judgment is vacated and the trial court is directed to allow appellant to file an amended complaint alleging breach of a common law warranty.

HOBSON, A. C. J., and RYDER, J., concur.


author: MELVIN, Judge.

text:
    STATE of Florida, Appellant, v. Ray Bernard BOUTWELL, Appellee.
    No. KK-253.
    District Court of Appeal of Florida, First District.
    Jan. 11, 1979.
    Rehearing Denied March 1, 1979.
    Robert L. Shevin, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., for appellant.
    Michael J. Minerva, Public Defender, and Carl S. McGinnes, Asst. Public Defender, for appellee.
   MELVIN, Judge.

This appeal brings for consideration the contention of the State of Florida that the trial judge was in error when he granted the motion to suppress evidence in the case, such motion having been filed by the defendant Ray Bernard Boutwell.

We have carefully considered the record, and it is our view that the officer had just cause to stop the truck in question under the control of Ray Bernard Boutwell. The area where the officer stopped the track was a “high crime area” . alongside the railroad track behind a residential area, a residential area that the residents complained about these vehicles being down there because of burglary. And it’s a known area, we recovered several stolen vehicles in that area, we recovered vehicles used in armed robberies in that area,” according to the testimony of Deputy Suarez. When the officer stopped the truck, he lawfully observed in plain view dynamite in the back of the truck. See Lutz v. State, 354 So.2d 141 (Fla. 1st DCA 1978); State v. Brooks, 281 So.2d 55 (Fla.2d DCA 1973); State v. Miller, 267 So.2d 352 (Fla.4th DCA 1972); and State v. Stevens, 354 So.2d 1244 (Fla.4th DCA 1978). The defendant was charged with violating Section 790.161(3), Florida Statutes, relating to unlawful attempt to do damage to tracks of the Louisville and Nashville Railroad, and also was charged with violating Sections 552.101 and 522.22, Florida Statutes, by unlawfully possessing dynamite without a license or permit to do so.

. The order suppressing the evidence is reversed and the case remanded for further proceedings consistent with this opinion.

McCORD, C. J., and BOOTH, J., concur.


author: PEARSON, Judge.

text:
    MODINE MANUFACTURING COMPANY, Appellant, v. ABC RADIATOR, INC., Appellee. MODINE MANUFACTURING COMPANY, Appellant, v. BLIZZARD DIAGNOSTIC SYSTEMS, INC., Appellee.
    Nos. 77-1548, 77-1549.
    District Court of Appeal of Florida, Third District.
    Jan. 16, 1979.
    Rehearing Denied Feb. 28, 1979.

      Daniels & Hicks and Sam Daniels, Mark Hicks, Blackwell, Walker, Gray, Powers, Flick & Hoehl and James E. Tribble, Miami, for appellant.
    Dubbin, Sehiff, Berkman & Dubbin, Susan Goldman, Podhurst, Orseck & Parks and Walter H. Beckham, Jr., Miami, for appellees.
    Before PEARSON and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PEARSON, Judge.

Plaintiff-counterdefendant Modine Manufacturing Company brings these consolidated appeals from a final judgment on a counterclaim, entered upon jury verdicts, awarding to the defendants-counterplain-tiffs ABC Radiator, Inc., and Blizzard Diagnostic Systems, Inc., the appellees, extensive compensatory and punitive damages. The counterclaim was filed upon leave of the trial court following an appeal to this court, which affirmed in part, reversed in part and remanded with directions. To understand this present appeal, we will discuss this cause from its beginning.

On February 4, 1972, appellant Modine Manufacturing Company filed a complaint in replevin against the appellees, ABC Radiator, Inc., and Blizzard Diagnostic Systems, Inc. The non-jury action went to court on the issue of the right to possession of re-plevied merchandise, i. e., 1,544 radiators, and on June 7, 1973, resulted in a final judgment in replevin in favor of ABC and Blizzard, or in the alternative, a money judgment in their favor in the event they elected not to accept the return of the re-plevied goods. Modine’s post-judgment petition for rehearing or, alternatively, motion for new trial was denied. On August 6,1973, Modine appealed to this court. This resulted in a partial affirmance, see Modine Manufacturing Company v. Israel, 294 So.2d 369 (Fla. 3d DCA 1974), in which this court said, in part:

“This appeal is from judgments for the defendants after a trial before the court without jury in an action for replevin. The plaintiff-appellant urges: (1) that the evidence was not sufficient to support the finding that the appellees had the right of possession, and (2) that the money judgments were erroneous in that the amount assessed as the value of the property is not supported by the record. We affirm upon the first point and reverse upon the second.
“The plaintiff-appellant was the seller of the goods sought to be replevied. There was evidence before the court upon which the court determined that the goods were sold upon credit and that the agreed period for payment had not expired.
“The award of $39,805.65 to ABC and $6,773.41 to Blizzard, which represents the value of the goods at the time that they were replevied, cannot be sustained since neither appellee has ever paid for the goods. The record shows that each of the defendants has elected to take the money judgment.
******
“The judgment appealed is affirmed in part and reversed in part and the cause is remanded for a trial to determine the value of the defendants’ special equity in the goods replevied.”

Modine, thereafter, petitioned to the Florida Supreme Court for writ of certiorari. This petition was denied at 303 So.2d 644 (Fla.1974).

Upon remand, ABC and Blizzard sought leave on May 7,1975, to file a counterclaim, asserting a cause of action for compensatory and exemplary damages for wrongful replevin. Modine opposed the motion, which was granted, and the counterclaim was filed on July 2, 1975. Modine filed a reply on July 11, 1975, and on January 12, 1976, the trial court denied Modine’s motion to strike the counterclaim, determining that the issue of damages for wrongful replevin had not been litigated in the original re-plevin action and, therefore, could be litigated under the counterclaim or in a separate plenary action.

In February of 1976, Modine filed in this court a “Motion to Require Compliance with this Court’s Opinion and Mandate.” The motion was denied without opinion. A petition for writ of certiorari was thereafter denied in the Florida Supreme Court.

Subsequently, following replies to the counterclaim, a five-day jury trial commenced on March 28,1977, from which verdicts were rendered in favor of ABC and Blizzard for both compensatory and punitive damages. From the judgments entered thereon, Modine has appealed.

The series of events leading up to the February, 1972, replevin began with the developing and designing of a new concept of marketing radiators by ABC and by Blizzard. It was the intention of the appellees to use this marketing concept on a large scale through a national program with the Sears chain of stores. The Modine radiator which had a design that could fit five or six automobile models and which was lower priced than other radiators was the radiator that the appellees planned to use in the contemplated national marketing program with Sears. ABC was already a Modine distributor and its majority stockholder, Leonard Kaye, approached Robert Simm of Modine in 1970 and discussed with him Blizzard’s potential mass merchandising program through Sears. Kaye advised the Modine management that he enjoyed a good relationship with Sears and if Modine would assure continuous radiator supply, Kaye eventually could generate his program nationwide. Because of Blizzard’s expertise in the aftermarket radiator field, Modine was extremely interested. Pursuant to a January 8, 1971, letter agreement from Modine, assuring Blizzard of a continuous supply of radiators for the Sears program, Blizzard sought to activate its plan to obtain a national contract with Sears. Sears was enthusiastic about Blizzard’s national radiator program, but its one concern involved the assurance of an uninterrupted source of Modine radiators. Once Sears was assured of Modine’s complete knowledge of the Blizzard program and of the fact that there would be no shortages of radiators, the Blizzard program was implemented, mainly in the south Florida area, and proved to be successful. As a result, permission was obtained from Sears to proceed in nine states. Sears also gave indications to Blizzard that it planned to take the program nationwide.

The appellees argue that Modine, because of its optimistic national sales projections for the Blizzard-Sears program and because of its awareness of the actual success of the early stages of the program, began to think about changing its relationship with Blizzard so that it (Modine) would control the program. It is further argued that Modine decided upon an attempt to convert Blizzard into a manufacturers’ representative and that a proposed agreement based thereon was forwarded to Blizzard in October, 1971, but was rejected.

The appellees argue that this new strategy on the part of Modine led to a wrongful replevin of 1,544 radiators on February 4, 1972, and that as a direct result thereof, both ABC and Blizzard were unable to ship their orders and Blizzard, therefore, lost the Sears national program. On March 10, 1972, Sears formally notified Blizzard that the Blizzard program for Sears’s southern territory, as well as the proposed national Sears program, had been discontinued because of the serious problem that had arisen between Modine and Blizzard, that is, the February 4th replevin.

Following the replevin, the appellees had to pay a fifth to a quarter more for Modine radiators, and because of the increased cost and freight charges, it was not feasible for either appellee to operate its business outside the Miami area. Also, the appellees argue that ABC was unable to ship Modine radiators to two other customers from whom substantial orders had been negotiated following a national convention of bumper manufacturers in San Antonio, Texas.

The jury returned a verdict for Blizzard of $5,000,000 compensatory damages and $18,268.10 in punitive damages and a verdict for ABC of $106,000 compensatory damages and $21,838.67 punitive damages.

In its main brief, the appellant sums up the net result of the trial as follows:

“The net result of the trial below was that Modine was ordered to pay $5,106,-000.00 compensatory damages because it replevied radiators valued at $46,000.00, for which it had not been paid.” ******

Thus, the fundamental question presented is whether upon affirmance of a judgment for the defendants in a replevin action and a remand “. . . for a trial to determine the value of the defendants’ special equity in the goods replevied,” the trial court may permit the filing of a defendants’ counterclaim for damages upon a claim that the replevin was a part of an independent tort, i. e., wrongful interference with defendants’ business contracts. We hold that the trial court has departed from the directions of the mandate and tried a new and different cause of action.

At the outset, we must consider whether this court established the law of the case when it denied Modine’s extraordinary motion to require compliance with the mandate. Our present holding may be said to be inconsistent with a refusal to determine that the counterclaim was improper at the time it was filed. That inconsistency does not follow when the denied extraordinary motion is viewed in its true context. An appellate court will not ordinarily interfere by extraordinary writ with the actions of a trial court when the trial court’s orders are reviewable upon appeal. See Noble v. McNeal, 179 So.2d 126 (Fla. 1st DCA 1965). It follows that the denial of the motion to require compliance with the mandate was not a ruling upon the merits of Modine’s claim that the counterclaim was outside the directions of this court on the remand. The denial of the motion may well have been based upon a determination of the insufficiency of the motion or a determination that the interference with the trial court at the pleading stage was not warranted where there was a remedy by appeal. Cf. Allen v. City of Miami, 147 So.2d 566 (Fla. 3d DCA 1962); and Schayer & Co. v. Board of County Commissioners, 188 So.2d 871 (Fla. 3d DCA 1966).

In any event, the Supreme Court of Florida has held in Beverly Beach Properties v. Nelson, 68 So.2d 604, 608 (1953):

******
“We may change ‘the law of the case’ at any time before we lose jurisdiction of a cause and will never hesitate to do so if we become convinced, as we are in this instance, that our original pronouncement of the law was erroneous and such ruling resulted in manifest injustice. In such a situation a court of justice should never adopt a pertinacious attitude.”

In response to the appellant’s point that the trial of the new and independent cause of action constituted a departure from the decision of this court upon the first appeal, the appellees urge that the order of the trial court allowing the counterclaim in the replevin action was within the broad discretion of the trial judge. The general rule is that the judgment of an appellate court, where it issues a mandate, is a final judgment and compliance therewith by the trial court is a purely ministerial act requiring the consent of the reviewing court permitting the presentation of new matter affecting the cause. O. P. Corporation v. Village of North Palm Beach, 302 So.2d 130 (Fla. 1974) ; see also State ex rel. Dowling Co. v. Parks, 99 Fla. 1264, 128 So. 837 (1930); Rinker Materials Corporation v. Holloway Materials Corporation, 175 So.2d 564 (Fla. 2d DCA 1965), and Estate of Maxcy, 280 So.2d 10 (Fla. 2d DCA 1973).

The question is presented: Do the circumstances of this case warrant an exception to the rule? We hold that they do not. The route taken by the trial court on remand completely changed the nature of the case. On the first appeal, we had before us a case of the replevy of personal property only. The trial had been before the court without a jury because a jury trial was not demanded. The permitted counterclaim abandoned all claims as to the value of the property and proceeded upon a claim of damages by abuse of process in which the appellees claimed a conspiracy to destroy appellees’ business. A jury trial was demanded and was held on the new pleadings. It seems clear from decisions in this and other jurisdictions that when a non-jury matter is remanded for a partial retrial of a limited issue, a jury trial cannot be demanded upon remand. See Burleigh House Condominium, Inc. v. Buchwald, 328 So.2d 554 (Fla. 3d DCA 1976); and Spaulding v. Cameron, 127 Cal.App.2d 698, 274 P.2d 177 (1954). Our decision is not based upon the fact that there was a jury trial, but rather is intended as an illustration of the complete departure from the mandate.

The appellant argues convincingly that the record fails to establish that the replevin of 1,544 radiators worth $46,000.00 caused ABC and Blizzard to lose future profits of a twenty-five year contract of a present value of $5,106,000.00. The awards on the counterclaim simply exceed reason and should have been set aside by the trial court. See New Amsterdam Casualty Co. v. Utility Battery Mfg. Co., 122 Fla. 718, 166 So. 856 (1935). But this error would require only a new trial. Our reversal here is based upon those cases supporting the proposition that a trial court, upon a limited remand to determine the value of goods replevied, may not try another matter.

Accordingly, the judgments are reversed and the cause remanded for the purposes set out in our mandate of May 31, 1974.

Reversed and remanded.

      . This rule has been relaxed by the Supreme Court in the instance of proceedings under Florida Rule of Civil Procedure 1.540. See Ohio Casualty Group v. Parrish, 350 So.2d 466 (Fla.1977).


text:
    Juan CREMADE, Appellant, v. STATE of Florida, Appellee.
    No. 78-962.
    District Court of Appeal of Florida, Third District.
    Jan. 16, 1979.
    Rehearing Denied Feb. 28, 1979.

      Greene & Cooper and Sharon L. Wolfe, Miami, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before PEARSON, BARKDULL and HUBBART, JJ.
   PER CURIAM.

The appellant was convicted of robbery, aggravated battery, and the use of a firearm in the commission of a felony. He was sentenced to 20 years for the robbery, 15 years for the use of a firearm in the commission of a felony, and one year for aggravated battery; sentences to run concurrently-

The appellant urges that the trial court erred in the sentence on the conviction for possession of a firearm while committing a felony, because this crime was a necessarily included offense in the conviction for robbery and because the evidence disclosed that the firearm was used during the robbery.

We have examined Walton v. State, 360 So.2d 50 (Fla. 2d DCA 1978), compare: State v. Munford, 357 So.2d 706 (Fla.1978), and Section 775.021(4), Florida Statutes (1976), and determined that under the proof in this cause a firearm was involved in the robbery and the appellant was improperly given an enhanced sentence because of such possession. See: Section 812.13, Florida Statutes (1976). Therefore, we find that the trial court erred in the sentence on the firearm possession conviction.

The State relies heavily on this court’s opinion in Johnson v. State, 338 So.2d 556 (Fla. 3d DCA 1976). This is misplaced in light of the Supreme Court holding in Johnson v. State, 366 So.2d 418 (Fla.1978).

The other error urged, relating to the jury instruction on flight from the scene of the crime, has been examined and found to be without merit. Williams v. State, 268 So.2d 566 (Fla. 3d DCA 1972); Spinkellink v. State, 313 So.2d 666 (Fla.1975); Martinez v. State, 346 So.2d 1209 (Fla. 3d DCA 1977).

Accordingly, we remand this case to the trial court with directions to set aside the sentence imposed for possession of a firearm while committing a felony. Otherwise, the convictions, adjudications and sentences are affirmed. The appellant need not be present for this purpose.

Affirmed in part, reversed in part with directions.

      . In the jury verdict of guilt on this count, the jury specifically noted that the defendant did use a firearm.


author: DOWNEY, Chief Judge.

text:
    LOXAHATCHEE RECREATION, INC., Appellant, v. “Butch” HARRISON, etc., et al., Appellees.
    No. 77-1005.
    District Court of Appeal of Florida, Fourth District.
    Jan. 17, 1979.
    Rehearing Denied March 2, 1979.

      John R. Hargrove of McCune, Hiaasen, Crum, Ferris & Gardner, P. A., Fort Laud-erdale, for appellant.
    Joel T. Daves, III, of Burdick & Daves, West Palm Beach, for appellees.
   DOWNEY, Chief Judge.

The focal issue involved in this appeal is whether an exclusive concession contract between the United States of America, United States Fish & Wildlife Service, Department of Interior and appellant, Loxa-hatchee Recreation, Inc., is valid so as to preclude any other person from operating a concession in the geographical area covered by said exclusive contract. The question arose as a result of a suit for injunction and damages brought by appellant to enjoin appellee from acting as a concessionaire in an area which appellant claims is subject to its exclusive franchise. The trial court denied the relief prayed for and this appeal ensued. We reverse for the reasons hereafter set forth.

A somewhat detailed resume of the background of the case is necessary to a complete understanding of the controlling facts. Thus, in 1951 and 1952 an agency of the United States Department of the Interior entered into contracts with the predecessor of the South Florida Water Management District pursuant to which the Department, or one of its agencies, was granted a license for the use of Conservation Areas One and Two as a wildlife refuge or management area. Then in 1959 the federal agency and the Florida Game and Fresh Water Fish Commission entered into a contract entitled, “Cooperative Agreement,” which recited that in 1951 the federal agency obtained a license from the South Florida Water Management District for the use of Conservation Area One for a wildlife management area and in 1952 the Game and Fresh Water Fish Commission entered into a similar agreement with the South Florida Water Management District for the use of Conservation Area Two. The contract provided that the federal agency would enter into a joint concession agreement with a third party (subject to the approval of the State of Florida and the South Florida Water Management District), which would be exclusive within the designated area. Such authority providing for recreational facilities was derived from Chapter 25209, Laws of Florida (1949). Pursuant to this chapter the flood control districts were created for flood control, reclamation, conservation and allied purposes. Said “allied purposes” enabled the districts to cooperate with the United States providing for “public health and welfare, or for public safety, utility and benefit.” Thereafter in 1961 the federal agency entered into a contract with appellant which is the basis for this litigation. That contract granted appellant an exclusive right to operate recreational facilities, including food, drink, boating and fishing services and wildlife tours, in the designated area. It was specifically provided that no other parties would be granted concession rights therein during the period of the contract. Appellant was required thereunder to erect at its own expense buildings, parking facilities, boat ramps and numerous other improvements. For this franchise appellant agreed to pay a stated fee to the federal agency, plus a percentage of its annual gross income.

In August 1976 appellant brought this suit for injunction and damages against Ap-pellee-Butch Harrison, alleging, among other things, that appellant had a contract giving it the exclusive right to operate concessions in Conservation Areas I and II and that appellee without authority was also operating concessions in said areas. It was alleged that appellee was substantially interfering with appellant’s contract rights, depriving appellant of revenues and that appellant feared any attempt to prevent appellee from so operating might result in violence. After a trial by the court the judgment complained of was entered in which the court denied the request for injunction and damages on the ground that “the public agencies involved are subject to the principle that ‘the authority to grant exclusive franchises inherently creating monopolistic privileges vested solely in the sovereign may be delegated only by express terms or by necessary implication’ . and in the present case it is found that such authority was neither expressly granted nor necessarily implied.”

Appellant contends the trial court erred in refusing the injunction because the rule relied upon applies only to exclusive franchises granted for the exercise of governmental function. See Colen v. Sunhaven Homes, Inc., 98 So.2d 501 (Fla.1957), relied on by the trial court. Appellant argues, however, that the franchise involved herein is for the performance of a proprietary function and thus a different rule applies. See Miami Beach Airline Service, Inc. v. Crandon, 32 So.2d 153 (Fla.1947).

On the other hand, it is appellee’s position that the judgment is correct in holding the exclusive franchise invalid because the main functions of the governmental agencies involved are flood control and drainage, which are governmental functions, and the recreational facilities are merely incidental. Thus, appellee believes the court applied the correct rule of law to the factual situation. Appellee contends that no one has pointed to any authority, statutory or otherwise, authorizing the granting of the exclusive franchise involved herein.

The source of the authority for the contract in question is derived from specific federal and state statutes. The South Florida Water Management District is the authority designated by the Florida Legislature to operate and maintain the areas in question. Chapter 25214, Laws of Florida (1949). Pursuant to that authority the District created Conservation Areas One, Two and Three. Section 378.07, Florida Statutes (1951), authorized the District to enter into Cooperative Agreements with the United States, State of Florida, or any Agency or Department thereof, for carrying out the purposes of the Act. In 1951 and 1952 the District granted licenses to the United States Department of Interior or its agencies for use of Conservation Areas I and II as a wildlife refuge. In 1952 the District licensed the Florida Game and Fresh Water Fish Commission to establish a State Wildlife Refuge in said areas. Section 460K, U.S.C.A., authorized the Secretary of the Interior to provide recreational facilities in areas within the National Wildlife Refuge System. Finally, Section 378.07, supra, granted the Commission authority to enter into cooperative contracts with the United States to effectuate the purposes of that chapter. Armed with the foregoing legislative authority, State and Federal, the exclusive concession contract involved herein was negotiated.

In our opinion the foregoing demonstrates adequate legislative authority for the parties to enter into the exclusive contract in question if the subject matter thereof is proprietary rather than governmental. We would concede, as appellee contends, that the original purpose behind the establishment of the Water Management District was flood control, a governmental function. However, the secondary purpose of furnishing recreational facilities is just as clearly a proprietary function and we see no reason why the latter cannot be ancillary to the former.

If the foregoing conclusions are correct, the appellant was entitled to the assistance of the Court in protecting its exclusive contract and the trial court erred in denying its prayer for injunctive relief. Accordingly, we reverse the judgment appealed from and remand the cause to the trial court with directions to grant appellant injunc-tive relief and for further proceedings on the question of damages.

REVERSED AND REMANDED, with directions.

ANSTEAD and DAUKSCH, JJ., concur.

      . The Central & Southern Florida Flood Control District.

      .Other defendants, The United States of America, Florida Fish & Game Commission and Allen C. Clark, Tax Collector of Palm Beach County, though initially named were dropped prior to trial.

      . Conservation Areas I and II are a part of the National Wildlife Refuge System.

      . The policy and reasons therefor of the Congress of the United Sates are clearly set forth in Section 460K, U.S.C.A.:

        “In recognition of mounting public demands for recreational opportunities on areas within the National Wildlife Refuge System, national fish hatcheries, and other conservation areas administered by the Secretary of the Interior for fish and wildlife purposes; and in recognition also of the resulting imperative need, if such recreational opportunities are provided, to assure that any present or future recreational use will be compatible with, and will not prevent accomplishment of, the primary purposes for which the said conservation areas were acquired or established, the Secretary of Interi- or is authorized, as an appropriate incidental or secondary use, to administer such areas or parts thereof for public recreation when in his judgment public recreation can be an appropriate incidental or secondary use; . . 16 U.S.C.A. at p. 748.

      . Miami Beach Airline Service v. Crandon, 32 So.2d 153 (Fla.1947); St. Joe Natural Gas Co. v. City of Ward Ridge, 265 So.2d 714 (Fla. 1st DCA 1972); Panama City v. Seven Seas Restaurant, 180 So.2d 190 (Fla. 1st DCA 1965).


text:
    FLORIDA EAST COAST RAILWAY COMPANY, Appellant, v. STATE of Florida, DEPARTMENT OF REVENUE, Appellee.
    No. KK-237.
    District Court of Appeal of Florida, First District.
    Jan. 23, 1979.
    Rehearing Denied March 1, 1979.
    Frederick H. Kent, William L. Durden and George E. Ridge, of Kent, Sears, Dur-den & Kent, Jacksonville, for appellant.
    Robert L. Shevin, Att. Gen., and Harold F. X. Purnell, Asst. Gen., for appellee.
   PER CURIAM.

The Court has carefully considered the appeal of Florida East Coast Railway Company from the Order of the Department of Revenue wherein the Department upheld the validity of the assessment of a sales and use tax against said railway. The order of the Department of Revenue is free of error, and the same is AFFIRMED.

MILLS, Acting C. J., MELVIN, J., and MASON, ERNEST E., Associate Judge, concur.


author: SCHWARTZ, Judge.

text:
    Chester G. BROWN, Jr., Appellant, v. STANWICK INTERNATIONAL, INC., and the Stanwick Corporation, Appellees.
    No. 77-1126.
    District Court of Appeal of Florida, Third District.
    Jan. 23, 1979.
    Rehearing Denied Feb. 26, 1979.
    High, Stack, Lazenby & Bender and Alan R. Dakan, Miami, for appellant.
    Gilbride & Heller, Miami, for appellees.
    Before HENDRY, BARKDULL and SCHWARTZ, JJ.
   SCHWARTZ, Judge.

Chester Brown was injured when a motorcycle he was riding swerved to avoid colliding with a truck. One should not think, however, that this so-far commonplace situation gives rise only to routine issues of law. For one thing, the accident occurred in Iran; for another, this case involves a suit by Brown against his employer under the maritime law. We hold that Brown is entitled to a jury trial on his claim for maintenance and cure, but is precluded from recovery upon his claims for Jones Act negligence, unseaworthiness and breach of his contract of employment by a conclusive showing of a lack of legal relationship between his employer’s alleged wrongdoing and his injuries. Therefore, we affirm in part and reverse in part the summary judgment entered for his employer on all issues below.

In January, 1972, Brown, entered into a written employment contract with Stan-wick International, Inc., under which he was to be employed:

“. . .by Stanwick International Inc. aboard the Imperial Iranian ship Chah Bahar, a repair ship based at Bandar Abbas, Iran, for the purpose of performing operational watchstanding duties on IIS Chah Bahar for a period of one year commencing January 22, 1972, and ending January 21, 1973.
It is agreed that the above individual shall perform operational watchstanding duties, training of Iranian personnel, and such other assignments as may be made by Stanwick International Inc. . . . ”

The agreement also stated that Stanwick was to provide Brown with “living accommodations aboard the repair ship . . . ”

The Chah Bahar was a former U.S. Navy vessel which had been leased to the Iranian Navy on October 1, 1971. After that date, it had ridden in navigable waters at a dock at the naval base in Bandar Abbas. Although the navigational room was in full working order, its boiler room was inoperative so that it could not get under way on its own power and was capable only of being towed from place to place. While moored to the dock, it secured its power by a connection, the permanence of which was in dispute, with a shore-based electrical power source. It was, Brown said, “tied up just like any conventional ship would be.” When Brown first arrived in Iran soon after his employment, he began repair work on the ship’s boilers so as to attempt to make them and the vessel fully operational. Subsequently, he began the duties for which he was hired, that is, to aid in the functioning of the “repair ship.” The vessel was actually extensively used to repair other Iranian ships which came alongside, and acted as a means of training Iranian naval personnel in that pursuit. Despite the representation in the contract, it was immediately apparent that living accommodations were not available aboard the vessel; the presence of “vermin” rendered them uninhabitable. For a short time Brown and other Stanwick employees were billeted in officers’ quarters at the base; later they were moved to a “team house” located about ten kilometers away. Brown lived there and commuted to his duties on board the ship until June 27,1972. On that day, while working on the ship, he was instructed by his foreman to return to the team house to repair the boiler there. On his way, the accident occurred and Brown was seriously injured.

Claiming that he was a “seaman” engaged in the service of the vessel when the accident occurred, Brown sued Stanwick in the Dade County Circuit Court in a four-count complaint. One count sought to recover “maintenance and cure.” The three others prayed for personal injury damages on allegations of Jones Act negligence, unseaworthiness and breach of the employment agreement respectively. All three of these theories were in turn based upon the failure of the defendant to maintain habitable or “seaworthy” living quarters aboard ship as agreed in the contract. The trial judge granted the defendant a summary judgment as to all issues and Brown took this appeal.

The primaiy basis for the summary judgment seems to have been the conclusion that, as a matter of law, Brown was not a “seaman” at the time of the accident, thus establishing his inability to maintain an action for maintenance and cure, for negligence under the Jones Act, and for unseaworthiness. See Potashnick-Badgett Dredging Inc. v. Whitfield, 269 So.2d 36 (Fla. 4th DCA 1972), cert. denied, 272 So.2d 820 (Fla.1973). We hold to the contrary that, at the least, a jury question was presented as to the plaintiff’s legal status when the accident occurred.

In Offshore Co. v. Robison, 266 F.2d 769, 779 (5th Cir. 1959), the Fifth Circuit stated an often-cited and still viable formulation of the standards by which one’s status as a “seaman” is to be determined:

“. . . (1) if there is evidence that the injured workman was assigned permanently to a vessel (including special purpose structures not usually employed as a means of transport by water but designed to float on water) or performed a substantial part of his work on the vessel; and (2) if the capacity in which he was employed or the duties which he performed contributed to the function of the vessel or to the accomplishment of its mission or to the operation or welfare of the vessel in terms of its maintenance during its movement or during anchorage for its future trips.” (emphasis supplied)

In this case, it is clear that Brown had a “more or less permanent connection with the vessel,” see Wilkes v. Mississippi River Sand & Gravel Co., 202 F.2d 383 (6th Cir. 1953), cert. denied, 346 U.S. 817, 74 S.Ct. 29, 98 L.Ed. 344 (1953), and that the duties which he contracted to and did in fact undertake directly “contributed to the function of the vessel [and] to the accomplishment of its mission . . and were those traditionally performed by seamen. Potashnick-Badgett Dredging Inc. v. Whitfield, supra, at 269 So.2d 41. The real bone of contention therefore is whether the Chah Bahar itself was, as is also required, a “vessel . in navigation.” Warner v. Fish Meal Co., 548 F.2d 1193 (5th Cir. 1977); Salgado v. M. J. Rudolph Corp., 514 F.2d 750, 754 (2d Cir. 1975). We think this issue is properly for the jury.

There are, of course, numerous cases which have held the Jones Act and the unseaworthiness doctrine applicable to “special purpose structures” which are designed to float on water but which have no motive power of their own and do not perform the conventional functions of a vessel in carrying goods or passengers from place to place. E.g., Gianfala v. Texas Co., 350 U.S. 879, 76 S.Ct. 141, 100 L.Ed. 775 (1955) (submersible drilling barge); Senko v. LaCrosse Dredging Corp., 352 U.S. 370, 77 S.Ct. 415, 1 L.Ed.2d 404 (1957) (dredge); Butler v. Whiteman, 356 U.S. 271, 78 S.Ct. 734, 2 L.Ed.2d 754 (1958) (inoperable tug lashed to barge moored to wharf); Salgado v. M. J. Rudolph Corp., supra (floating crane); Offshore Co. v. Robison, supra (mobile drilling platform); Marine Drilling Co. v. Autin, 363 F.2d 579 (5th Cir. 1966) (submersible drilling barge). These cases establish that the requirement that a vessel be “in navigation” means only that it be actively performing a water-based marine function at the pertinent time. Potashnick-Badgett Dredging Inc. v. Whitfield, supra, at 269 So.2d 41, McKie v. Diamond Marine Co., 204 F.2d 132 (5th Cir. 1953). We think a jury could find that the Chah Bahar which, while riding in navigable waters, was actively functioning as a repair ship and naval training facility met this test.

In arguing otherwise, the appellee relies on several decisions in which formerly active vessels have been deemed no longer “in navigation.” All of these cases, however, are decisively distinguishable from this one. In each of them, the ship in question, unlike the Chah Bahar, had been totally removed from its water-based function, because it had been “mothballed,” West v. United States, 361 U.S. 118, 80 S.Ct. 189, 4 L.Ed.2d 161 (1959); converted to a grain storage facility, Roper v. United States, 368 U.S. 20, 82 S.Ct. 5, 7 L.Ed.2d 1 (1961); or pulled out of service into drydock for a lengthy period and for extensive repairs, Hodges v. S.S. Tillie Lykes, 512 F.2d 1279 (5th Cir. 1975); Johnson v. Oil Transport Co., 440 F.2d 109 (5th Cir. 1971), cert. denied, 404 U.S. 868, 92 S.Ct. 109, 30 L.Ed.2d 111 (1971). Moreover, since a “vessel in navigation” need have no power of its own to begin with, Gahagan Construction Corp. v. Armao, 165 F.2d 301 (1st Cir. 1948), cert. denied, 333 U.S. 876, 68 S.Ct. 905, 92 L.Ed. 1152 (1949), it can hardly be decisive that the Chah Bahar’s formerly operable boilers were no longer so. Finally, while the vessel was attached to a power source on the shore, this fact could not serve, as a matter of law, to turn it magically from what looked and acted simply like a ship moored to a wharf into a floating drydock or its equivalent. See Atkins v. Greenville Shipbuilding Corp., 411 F.2d 279 (5th Cir. 1969), cert. denied, 396 U.S. 486, 90 S.Ct. 105, 24 L.Ed.2d 96 (1970). Only a jury could say whether that transmogrification had taken place.

Brown was injured in the course of his employment and “in the service of the ship” while on his way at his employer’s instructions to make repairs at the crew’s living quarters. See Aguilar v. Standard Oil Co., 318 U.S. 724, 63 S.Ct. 930, 87 L.Ed. 1107 (1942); Central Gulf Steamship Corp. v. Sambula, 405 F.2d 291 (5th Cir. 1968). Should the jury determine that he was in fact a “seaman” when the accident occurred, he would therefore be entitled to the recovery of “maintenance and cure” (his medical expenses and a daily stipend until maximum medical improvement, Farrell v. United States, 336 U.S. 511, 69 S.Ct. 707, 93 L.Ed. 850 (1949)) from his employer, Stanwick International. Spinks v. Chevron Oil Co., 507 F.2d 216, 226 (5th Cir. 1975), and cases cited. The summary judgment as to this count therefore cannot be sustained.

We reach a different conclusion as to the other counts. Although we have held that Brown has the right to maintain an action against his employer under the Jones Act and for unseaworthiness, it is clear beyond question that he cannot recover on those claims. Unlike maintenance and cure, which is the general maritime law’s equivalent of workmen’s compensation, recovery under the Jones Act requires a showing of employer negligence; recovery for unseaworthiness, requires a demonstration of a breach of the warranty of vessel’s seaworthiness; both require a legally adequate causal link between the negligence or unseaworthy condition and the accident and injuries involved. Spinks v. Chevron Oil Co., supra, at 507 F.2d 222-223. It is the latter element which is totally lacking here.

Even assuming Brown could establish, as alleged, that the defendant negligently failed properly to maintain the ship’s living facilities and that their uninhabitability rendered the vessel unseaworthy, the only relationship between that condition and the accident is the suggestion that if proper living quarters had been available on board, Brown would not have had to go to the team house to fix the boiler and therefore would not have been at the place where the accident occurred. While it may be that “but for” the condition of the vessel, Brown would not have been injured, this connection is simply not sufficient to permit fixing responsibility for the accident upon the conduct of the defendant. See text and cases cited in W. Prosser, Law Of Torts § 41 (4th ed. 1971), at nn. 5-6. Pros-ser admonishes us that we should not deal with issues such as this in terms of causation but rather simply determine whether a particular cause is

“. . .so closely connected with the result and of such significance that the law is justified in imposing liability . . ” Prosser supra, p. 237.

This is essentially the test stated in the Restatement of Torts, 2d and applied to maritime tort law by the Fifth Circuit in Spinks v. Chevron Oil Co., supra, at 507 F.2d 223:

“. . . The elements of legal cause are negligence, and causal connection between the negligence and the injury, the invasion of a legally protected interest, and lack of a countervailing legally protected interest as a defense to liability. Restatement 2d Torts § 9. The defendant’s negligence must be a substantial factor in bringing about the harm, with no rule of law relieving the actor of fault. Id. § 431. ‘Substantial’ means more than ‘but for’ the negligence, the harm would not have resulted, (id. Com. a) and more than merely negligible negligence. Id. Com. b. The gist of it is that some responsibility for the effect must accompany the cause.” (emphasis supplied)

Even though the causal connection required under the Jones Act and for unseaworthiness does indeed approach the vanishing point, see Ferguson v. Moore-McCormack Lines, Inc., 352 U.S. 521, 77 S.Ct. 457, 1 L.Ed.2d 511 (1957); McCalley v. Seaboard Coast Line R. Co., 265 So.2d 11 (Fla.1972), it has not yet reached it. See Davis v. Burlington Northern, Inc., 541 F.2d 182, 185 (8th Cir. 1976), cert. denied, 429 U.S. 1002, 97 S.Ct. 533, 50 L.Ed.2d 613 (1976); Gwinett v. Albatross S.S. Co., Inc., 243 F.2d 8 (2d Cir. 1957), cert. denied, 355 U.S. 828, 78 S.Ct. 40, 2 L.Ed.2d 41 (1957). And whether we apply the Prosser-Restatement “legal cause” test or any of the more traditional ones, we have no difficulty in holding that Stanwick cannot be held liable for Brown’s accident. The Second Circuit’s statement in Petition of Kinsman Transit Co., 388 F.2d 821, 824-825 (2d Cir. 1968), is both apt and applicable:

“On the previous appeal we stated aptly: ‘somewhere a point will be reached when courts will agree that the link has become too tenuous — that what is claimed to be consequence is only fortuity.’ 338 F.2d at 725. We believe that this point has been reached with the Car-gill and Cargo Carriers claims. Neither the Gillies nor the Farr suffered any direct or immediate damage for which recovery is sought. The instant claims occurred only because the downed bridge made it impossible to move traffic along the river. Under all the circumstances of this case, we hold that the connection between the defendants’ negligence and the claimants’ damages is too tenuous and remote to permit recovery. ‘The law does not spread its protection so far.’ Holmes, J., in Robins Dry Dock, supra, 275 U.S. [303] at 309, 48 S.Ct. [134] at 135, [72 L.Ed. 290.]
In the final analysis, the circumlocution whether posed in terms of ‘foreseeability,’ ‘duty,’ ‘proximiate [sic] cause,’ ‘remoteness,’ etc. seems unavoidable. As we have previously noted, 338 F.2d at 725, we return to Judge Andrews’ frequently quoted statement in Palsgraf v. Long Island R. R., 248 N.Y. 339, 354-355, 162 N.E. 99, 104, 59 A.L.R. 1253 (1928) (diss-senting [sic] opinion): ‘It is all a question of expediency * * * of fair judgment, always keeping in mind the fact that we endeavor to make a rule in each case that will be practical and in keeping with the general understanding of mankind.”

For generally the same reasons, but based upon a perhaps more traditional analysis, Brown’s damage claim for breach of his employer’s contractual obligation to provide living quarters aboard ship is also barred. It is apparent, under the familiar rule of Hadley v. Baxendale, 9 Exch. 341, 156 Eng. Reprint 145 (1854), which is applicable in Florida, e.g., Tampa Union Terminal Co. v. Richards, 108 Fla. 516, 146 So. 591 (1933); Brock v. Gale, 14 Fla. 523 (1874); Evenson v. Miami Medical Center, Inc., 128 So.2d 626 (Fla.3d DCA 1961), that the damages Brown sustained in the accident were not

“. . . such damages as would naturally result from the breach of the contract, whether as the ordinary consequence of such a breach, or as a consequence which may, under the circumstances, be presumed to have been in the contemplation of both parties at the time they made the contract as the probable result of the breach of it . . ”

Poinsettia Dairy Products, Inc. v. Wessel Co., 123 Fla. 120, 166 So. 306, 310 (1936).

The summary judgment as to the plaintiff’s claim for maintenance and cure is reversed and the cause is remanded for a jury trial on that issue alone; the judgment below is otherwise affirmed.

Affirmed in part, reversed in part and remanded.

      . That task was never accomplished.

      . 46 U.S.C., § 688.

      . Davis v. Burlington Northern, Inc., supra; Gwinett v. Albatross S.S. Co., Inc., supra.

      . Dangovich v. Isthmian Lines, Inc., 327 F.2d 355 (2d Cir. 1964); D’Costa v. United States Lines Co., 227 F.Supp. 180 (S.D.N.Y.1964).


text:
    Herb BRIELER, Appellant, v. Stuart FEDER, Appellee.
    No. 78-331.
    District Court of Appeal of Florida, Third District.
    Jan. 23, 1979.
    Rehearing Denied Feb. 28, 1979.
    Horton, Perse & Ginsberg, Miami, for appellant.
    Buchbinder & Elegant, Miami, for appel-lee.
    Before KEHOE and SCHWARTZ, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   SCHWARTZ, Judge.

Briefer, a real estate broker, sued Feder, one of the purchasers of the property in question, for a commission. After the jury returned a verdict in his favor, the trial judge took it away and granted the defendant’s reserved motion for directed verdict. Fla.R.Civ.P. 1.480(b). We affirm the judgment thereupon rendered for Feder because the record contains no evidence that Briefer had been employed by Feder or was otherwise acting on his behalf with his consent in connection with the transaction involved in this case. See Michael Construction Co. v. Smith, 244 So.2d 563 (Fla. 3d DCA 1971), cert. denied, 247 So.2d 438 (Fla.1971). The most that can be said is that the broker— who had previously represented the seller, and later, another prospective buyer — provided the defendant with information which was helpful in completing the proposed purchase. Such a showing is plainly insufficient to demonstrate the agency relationship between the parties required to entitle the broker to a commission and thus to sustain the verdict. City Builders’ Finance Co. v. Stahl, 90 Fla. 357, 106 So. 77 (1925); Dixson v. Kattel, 311 So.2d 827 (Fla. 3d DCA 1975).

Affirmed.


text:
    Steven J. GREEN and Jerome C. Berlin d/b/a S & J Investments, a partnership, Appellants, v. Steven CASPER, Appellee.
    No. 78-1977.
    District Court of Appeal of Florida, Third District.
    Jan. 23, 1979.
    Rehearing Denied Feb. 28, 1979.
    Storace, Hall & Hauser and Richard F. O’Brien, III, Miami, for appellants.
    Ryan & Shahood, Dania, for appellee.
    Before PEARSON and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Green v. Casper, 346 So.2d 1204 (Fla.3d DCA 1977), cert. den. 353 So.2d 675 (Fla.1977).


text:
    BUCKLEY TOWERS CONDOMINIUM, INC., Appellant, v. Herbert BUCHWALD, Joseph Walan a/k/a Joseph Nawalaneic, Irene Walan, et al., Appellees.
    No. 78-1089.
    District Court of Appeal of Florida, Third District.
    Jan. 23, 1979.
    Rehearing Denied Feb. 28, 1979.
    Joseph S. Paglino, Miami, for appellant.
    Steel, Hector & Davis and Darry A. Davis, Miami, for appellees.
    Before HENDRY, BARKDULL and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed. Century Village, Inc. v. Wellington, E, F, K, L, H, J, M, & G Condominium Ass’n, 361 So.2d 128, 133-134 (Fla.1978).


text:
    Elaine P. CANAKARIS, Appellant, v. John M. CANAKARIS, Appellee.
    No. KK-241.
    District Court of Appeal of Florida, First District.
    Jan. 30, 1979.
    William M. Barr of Raymond, Wilson, Conway, Barr & Burrows, Daytona Beach, for appellant.
    Isham W. Adams, Daytona Beach, for appellee.
   PER CURIAM.

This matter is before the court upon an interlocutory appeal filed by Elaine P. Ca-nakaris seeking to overturn the order of the trial court of June 19, 1978, in which the trial court declined to grant to her additional temporary alimony during the pendency of her application before the Supreme Court for conflict certiorari addressed to the opinion of this court in the case of Canakaris v. Canakaris, 356 So.2d 858, rehearing denied April 17, 1978.

The court has considered the order complained of in light of the briefs filed by the parties. The order of the trial court of June 19, 1978, here reviewed is AFFIRMED. Appellant’s petition for attorneys’ fees is DENIED.

SMITH, Acting C. J., and ERVIN and MELVIN, JJ., concur.


text:
    Stanley Daniel CAIDIN, Appellant, v. Carol S. CAIDIN, Appellee.
    No. 78-382.
    District Court of Appeal of Florida, Third District.
    Jan. 30, 1979.
    Rehearing Denied Feb. 28, 1979.

      Horton, Perse & Ginsberg and Mallory H. Horton, Miami, for appellant.
    Tobias Simon and Jennifer Hurst, Miami, for appellee.
    Before HUBBART and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

This is an appeal by the husband from a judgment of dissolution of marriage. The parties were married in 1950. Four children were born of the marriage. At the time of the judgment, March 21,1977, three of the children had attained majority, and one was a minor 13 years of age. In her dissolution action, the wife sought custody of the minor child, child support, and temporary and permanent alimony, and claimed special equities in certain properties. The husband answered denying the wife’s claim of special equities, and by counterclaim alleged and claimed special equities in the properties and assets of the wife.

The court noted that the parties owned properties and assets, as listed in certain filed exhibits. The court held neither of the parties established a special equity in the property of the other. The wife was granted custody of the minor child, with child support of $60.00 per week, and was awarded possession and use of the marital home until she should remarry or the child should attain majority, with the wife being required to pay all expenses of the home property. The parties’ separate ownership of properties was preserved. The husband was ordered to pay the loan obligation of $20,000.00 for which certain stock of the wife had been pledged. As an award of alimony, by lump sum, the husband was ordered to convey to the wife his one-half interest in property designated as 1400 NW Third Street, in Miami.

On appeal, the husband contends the court erred in three respects, (1) by awarding the alimony, (2) by requiring him to pay the joint obligation for which stock of the wife was pledged and (3) in denying his claim of special equity in the wife’s interests in the jointly owned properties. On consideration thereof, we hold no reversible error has been shown.

The appellant argued there was no showing of need for alimony and, therefore, the award was improper, citing Gordon v. Gordon, 192 So.2d 514, 517 (Fla.1st DCA 1966); Cummings v. Cummings, 330 So.2d 134 (Fla.1976); and Gesford v. Gesford, 337 So.2d 1017, 1018 (Fla.4th DCA 1976). On the evidence the court concluded there was a showing of need for alimony and made the alimony award above described. We hold the evidence was sufficient to support that ruling, and that no abuse of discretion was shown. Several years prior to the dissolution proceeding, the husband, who is a lawyer, suffered illness which has resulted in his inability to earn any substantial amount from law practice. During that period, by training, the wife has become a respiratory therapist technician, and as such has obtained employment at a hospital, earning $450.00 per month. To the satisfaction of the trial court the wife made a showing that in addition thereto, and to other income she would receive, she had need for alimony for her support. The decision of the court to award alimony was made with awareness of the assets and financial circumstances of the parties. That matter was within the court’s discretion. Section 61.08, Florida Statutes (1977), authorizes the court to grant alimony, with further provision that when making an award of alimony “the court may order periodic payments or payments in lump sum or both,” and further that in determining a proper award of alimony the court may consider any facts necessary to do equity and justice between the parties.

An award of alimony to the wife in this case was not error, and in the circumstances relating to the husband, in our view, the court properly and wisely elected to provide for payment of the alimony by lump sum, rather than by ordering periodic payments to be made by the husband.

We reject as inapplicable to this case the argument of the appellant, relying on Ball v. Ball, 335 So.2d 5 (Fla.1976), that in a proceeding for dissolution of marriage the law does not permit the court to award to a wife a property or property interest of the husband unless the wife has established a special equity therein. In the instant ease the award to the wife of the husband’s interest in an apartment house property jointly owned by the parties was an award of property as alimony, in lump sum. An award of alimony, of that character, by lump sum, is not improper. Bezanilla v. Bezanilla, 65 So.2d 754 (Fla.1953); Banfi v. Banfi, 123 So.2d 52, 53 (Fla.3d DCA 1960); Steinhauer v. Steinhauer, 252 So.2d 825, 830 (Fla.4th DCA 1971); Collazo v. Collazo, 318 So.2d 164 (Fla.3d DCA 1975).

Appellant argues the court was without authority to award alimony in lump sum because the wife, in her petition for dissolution of marriage, did not “allege a claim for lump sum alimony,” citing Foxx v. Foxx, 357 So.2d 754 (Fla.1st DCA 1978), in which the court so stated. Here the wife’s petition alleged a claim for temporary and permanent alimony. It is true that the wife in her petition did not undertake to tell the court how to order the payment of such alimony as should be allowed, that is, as to whether the payment of alimony allowed should be ordered to be made by periodic payments or by lump sum payment or by both. However, authority to choose the method of payment of alimony was not granted by law to the petitioner but to the court, by Section 61.08, Florida Statutes (1977). To the extent that entitlement to alimony could be made to depend on a request for it by the wife in her pleading, she complied by her request therein for an allowance of alimony. Moreover, as noted in the brief of the appellant, the court permitted the wife to testify, at the hearing, for an award of the husband’s interest in the particular property, as lump sum alimony, for her support.

Appellant argues the alimony award was excessive, for the reason that the value of the property and its income were greater than shown for it on the property list, Schedule 1. The court was not misled in that regard. During testimony regarding the apartment building, the wife represented to the court that the income from said property would be approximately $1,000.00 per month. The matter of determining the amount of alimony to be awarded was one within the sound judicial discretion of the court, and no palpable abuse of discretion therein was shown.

We find no error in the court’s ruling requiring the husband to discharge the indebtedness for which certain stock of the wife was pledged. The evidence shows the wife did not receive the proceeds of the loan for which the stock was pledged. Also, we hold the court did not commit error in rejecting the claim of the husband to special equities in the wife’s interests in the jointly owned properties. That holding of the trial court is supported by competent substantial evidence.

For the reasons stated above, the judgment is affirmed.

      . Exhibit 1 listed six properties owned by the parties as tenants by the entireties, valued in aggregate at $111,200.00, supplying monthly income of $450.00. Included therein was the parties’ residence property given an equity value of $40,000.00. Exhibit 1 showed separate properties and assets of the wife, in approximate value of $134,700.00, yielding monthly income of $650.00. Included therein was $11,-200.00 in cash, and certain stock valued at $20,000.00 which had been pledged for a loan of the parties. Exhibit 1 listed properties and assets separately owned by the husband in approximate value of $254,000.00 (including $19,-000.00 in cash) with monthly income of $990.00 from such properties. Exhibit 2 listed numerous stocks and bonds owned by the parties.

      . That property was listed in Exhibit 1 as having an equity value of $30,000.00 and as producing income of $250.00 per month.


text:
    E. D. RIVERS, Jr., guardian of the person and property of Lucile Lashley Rivers, Deceased-Incompetent, Appellant, v. J. O. PHILLIPS, Appellee.
    No. 78-881.
    District Court of Appeal of Florida, Third District.
    Jan. 30, 1979.
    Rehearing Denied Feb. 28, 1979.
    E. D. Rivers, Jr., in pro. per.
    Bond, Woitesek & Davis, Miami, for ap-pellee.
    Before HAVERFIELD, C. J., and HUB-BART and KEHOE, JJ.
   PER CURIAM.

Appellant, E. D. Rivers, Jr., seeks reversal of an order awarding appellee, J. 0. Phillips, a $20,000 attorney’s fee as the reasonable value of his services rendered to Rivers in his capacity as guardian of the person and property of Lucile Lashley Rivers, deceased-incompetent.

On appeal Rivers contends that the evidence was insufficient to support the amount of the attorney’s fee award. We cannot agree.

After a review of the expert testimony (which ranged from $40,000-$50,000 as a reasonable fee) and documentary evidence, we find that there was competent substantial evidence to support the award of a $20,000 attorney’s fee. Accordingly, we must affirm that award. See 4 Fla.Jur.2d Attorneys at Law § 155 (1978).

Affirmed.


author: BERANEK, Judge.

text:
    STATE of Florida, Appellant, v. Oscoe NEWMAN, Appellee.
    No. 77-2531.
    District Court of Appeal of Florida, Fourth District.
    Jan. 31, 1979.
    Rehearing Denied March 7, 1979.

      Robert L. Shevin, Atty. Gen., Tallahassee, and Basil S. Diamond, Asst. Atty. Gen., West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender, and Marc E. Kirk, Asst. Public Defender, West Palm Beach, for appellee.
   BERANEK, Judge.

The State appeals an order dismissing an Information wherein defendant was charged with possession of heroin and sale of heroin. The Information was dismissed on due process grounds based on a finding that a pre-arrest delay of five months prejudiced the defendant because of his inability to remember the events in question. We reverse.

A delay between the date of a crime and a defendant’s eventual arrest therefor may constitute a due process violation under the 14th Amendment to the United States Constitution and Article I, Section IX, of the Florida Constitution. These principles were initially established in United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). The test to be employed is one of balancing the reason for the delay against the prejudice to the defendant. State v. Griffin, 347 So.2d 692 (Fla. 1st DCA 1977). Three elements are to be considered: (1) Actual prejudice to the defendant, (2) length of delay, and (3) reason for the delay. United States v. Titus, 576 F.2d 210 (9th Cir. 1978). Prejudice will not be presumed. Actual prejudice resulting from the delay is necessary. Furthermore, speculative allegations such as general allegations of loss of witnesses and failure of memories are insufficient to establish the requisite actual prejudice. United States v. Medina-Arellano, 569 F.2d 349 (5th Cir. 1978).

Delays of a pre-arrest nature may be for any valid purpose. Delays based upon a desire to maintain the confidential status of an undercover police agent or delay based simply upon the uncertainty as to the validity or strength of the prosecution’s case have been held valid. United States v. Revada, 574 F.2d 1047 (10th Cir. 1978), and State v. Freeman, 276 So.2d 546 (Fla. 4th DCA 1973).

In the instant case the delay of five months was due to the conscious desire on the part of the police authorities to preserve the confidentiality of an undercover police agent and another confidential informant so that these individuals could safely work on other drug cases in the same geographical area. There was no allegation, proof or suggestion that the delay was the result of any purposeful design to gain tactical advantage or to harass the defendant.

Although the trial court concluded that the defendant was prejudiced by the five-month delay herein, the only testimony actually supporting this finding was the brief statement of the defendant himself. We have reviewed this testimony and find it falls short of establishing the standard of actual prejudice necessary. This testimony was simply that the defendant was 66 years old and had difficulty remembering anything whether it was five months ago or five days ago. There was no showing of actual factual prejudice due to the delay. We stress again that a finding of actual prejudice is prerequisite to a finding of a due process violation. The United States Supreme Court in United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977), reiterated the necessity for proving actual prejudice. Here the evidence was not sufficient and the finding of actual prejudice is not supported. Therefore, no violation of due process was shown and the motion to dismiss should have been denied. The cause is remanded for further proceedings consistent herewith.

REVERSED and REMANDED.

DOWNEY, C. J., and DAUKSCH, J., concur.


author: MILLS, Judge.

text:
    Donald T. WEST, Appellant, v. William A. TROELSTRUP, Appellee.
    No. II-436.
    District Court of Appeal of Florida, First District.
    Jan. 31, 1979.

      J. Lawrence Johnston and E. C. Deeno Kitchen, of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., Martin S. Friedman, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

West appeals from an order dismissing his complaint against Troelstrup for failure to state a cause of action.

Count I of the complaint alleges that Troelstrup, the Executive Director of the Florida Department of Criminal Law Enforcement (FDCLE), conspired with others to maliciously and wrongfully interfere with West’s employment relationship with FDCLE, and, as a result of the conspiracy, West was terminated as an employee of FDCLE by Troelstrup.

Count II alleges that Troelstrup maliciously and unlawfully discharged West from his employment with FDCLE based on allegations of wrongdoing which were untrue and which Troelstrup knew to be untrue.

The complaint was brought against Troelstrup as an individual rather than in his official capacity as Executive Director of FDCLE.

The factual allegations to support the complaint are as follows:

West was continuously employed by FDCLE or its predecessor organizations from April of 1968 until 17 September 1977. In February of 1977, Troelstrup entered into a conspiracy with Curtis Golden, Clayton Frank Jernigan and others, whereby Troelstrup would cause West to be terminated from employment with FDCLE. It was agreed that Troelstrup would instigate administrative proceedings for the purpose of terminating West. The proceedings would be premised upon factual allegations of wrongdoing against West furnished to Troelstrup by Golden and Jernigan. The allegations of wrongdoing were untrue, and were known by Troelstrup and the others to be untrue. In furtherance of the conspiracy, Troelstrup did instigate administrative proceedings against West.

On 25 July 1977, Troelstrup sent West a letter stating that West was relieved of all official duties and was suspended without pay on the grounds that (1) West had willfully made nonconsensual recordings of wire communications in violation of FDCLE general orders and in violation of Section 934.03, Florida Statutes, and (2) West had capitalized upon confidential insider information for his own personal gain or benefit in violation of Section 112.313(8). The letter further stated that unless West came forward and successfully controverted the charges and sworn evidence he would be dismissed.

By letter dated 16 September 1977, Troelstrup terminated West from all employment with FDCLE as of 17 September. The letter stated that charge number two in the letter of suspension was withdrawn, and that West was being terminated on the basis of charge number one.

The trial court dismissed the complaint on the following grounds:

“1. That plaintiff has failed to state a cause of action for malicious interference with an advantageous business relationship or for conspiracy to effect such interference because defendant was either a party to the relationship or privileged to so act and because the stated cause of action is valid only against third parties external to the business relationship; and “2. That plaintiff’s prayer for relief being limited to monetary damages to recompense the tort here found invalid, and not including any requests for a hearing of any kind, especially under Ch. 112, Part VI, F.S., that therefore such allegations are surplusage insofar as they relate to a lack of hearing and do not invoke this court’s powers to order relief.”

Florida has long recognized the tort of malicious interference with contractual rights. See Chipley v. Atkinson, 23 Fla. 206, 1 So. 934 (Fla.1887). If a third party interferes with a contract between two parties by inducing one to breach the contract to the injury of the other, the injured party may maintain an action against the third party for malicious interference. Dade Enterprises v. Wometco Theatres, 119 Fla. 70, 160 So. 209 (1935). A cause of action for malicious interference with a contractual relationship exists only against persons who are not parties to the contractual relationship. Days v. Florida East Coast Railway Company, 165 So.2d 434 (Fla.3d DCA 1964). Thus, whether a cause of action has been stated against Troelstrup depends on whether Troelstrup can be considered a party to West’s employment relationship with FDCLE.

West argues that the only parties to West’s employment relationship were West and the FDCLE. Although West’s employment may have been with the FDCLE, the complaint itself alleges that it was Troelstr-up who terminated West’s employment, and the attached exhibits support this allegation. West does not allege that Troelstrup did not have the authority to take this action. Obviously, an entity such as the FDCLE must act through individuals. Troelstrup was the person through whom the FDCLE acted in dismissing West. As such he must be considered as a party to the employment relationship.

The nature of the tort supports the determination that Troelstrup was not a third party to the employment relationship. A third party interferes with a contract or business relationship by influencing, inducing or coercing one of the parties to the relationship to abandon the relationship or breach the contract, thereby causing injury to the other party. If Troelstrup was a third party, who did he induce to terminate West? There is no allegation that Troel-strup influenced or induced anyone to terminate West. It appears that the only person who could have been induced to terminate West was Troelstrup himself.

We agree with the trial court that Troelstrup was a party to West’s employment relationship and, therefore, the complaint does not state a cause of action against Troelstrup for malicious interference with an advantageous business relationship or for conspiracy to effect such interference.

We affirm the order appealed.

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


text:
    Harold Leroy ELLIOTT, Appellant, v. STATE of Florida, Appellee.
    No. 78-1142.
    District Court of Appeal of Florida, Second District.
    Jan. 31, 1979.
    Jack 0. Johnson, Public Defender, Bar-tow, and Karal B. Rushing, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed. See Martin v. State, 243 So.2d 189 (Fla. 4th DCA 1971).

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


text:
    STATE of Florida, Appellant, v. Willie James DRUMWRIGHT, Douglas Edward Schuler, and Huey Lee Williams, Appellees.
    No. 78-609.
    District Court of Appeal of Florida, Fourth District.
    Feb. 7, 1979.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Kenneth G. Spillias, Asst. Atty. Gen., West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellees.
   PER CURIAM.

Appellees were charged with attempted burglary of a structure in violation of Section 810.02 and Section 777.04(4)(c), Florida Statutes (1977). Upon appellees’ motions the trial court dismissed the information for lack of jurisdiction, relying upon our case of Bownes v. State, 345 So.2d 787 (Fla. 4th DCA 1977) and the State has appealed.

The trial judge considered the information charged a felony, but he felt obliged to follow the Bownes case in which this court stated such a charge was a first degree misdemeanor. Since Bownes we have twice receded from that statement and held in accord with the great weight of authority that attempted burglary is a felony of the third degree.

Accordingly, we reluctantly reverse the judgment appealed from and remand the cause for further proceedings consistent herewith.

DOWNEY, C. J., and MOORE and BER-ANEK, JJ., concur.

      . State v. Sudol, 357 So.2d 761 (Fla. 4th DCA 1978); Gray v. State, 356 So.2d 848 (Fla. 4th DCA 1978).