text:
    STATE of Florida, DEPARTMENT OF CITRUS, Appellant, v. C. V. GRIFFIN, Sr., and C. V. Griffin Groves, a Florida Corporation, etc., et al., Appellees.
    No. 75-171.
    District Court of Appeal of Florida, Second District.
    May 5, 1976.
    Rehearing Denied June 2, 1976.
    Monterey Campbell, of Campbell, Dunlap, Coward & Blakeman, Bartow, for appellant.

      Charles E. Davis and Stephen P. Kanar, of Fishback, Davis, Dominick & Simonet, Orlando, for appellees.
    Raymer F. Maguire, Jr., of Maguire, Voorhis & Wells, Orlando, for amicus curiae.
   McNULTY, Chief Judge.

This case involves an award of attorney’s fees in the amount of $333,000 to counsel for plaintiffs-appellees in a class action under the rationale of Tenney v. City of Miami Beach; that is to say, attorney’s fees allegedly due for services rendered to the benefit of members of the class and payable out of a fund allegedly preserved as a result of such services. We reverse.

The fees were awarded in a suit against appellant Department of Citrus challenging the Orange Stabilization Act, § 601.154, F.S.1967, and a “marketing order” promulgated thereunder. The act empowers the Department of Citrus, subject to referendum among citrus growers and processors, to issue marketing orders to establish and maintain orderly marketing of the orange crop. Pursuant to the act the Florida Department of Citrus, then called the Florida Citrus Commission, promulgated marketing order 105-3.01 in 1968 scheduled to become effective on February 1, 1969. The order set up an administrative committee for the purpose of preparing and operating programs aimed at securing a part of the federal school lunch program market. The committee was empowered, subject to the concurrence of the commission, to “underwrite or subsidize the development of expansion of packaging, dispensing, distributing and marketing techniques and materials best suited to the sale or distribution” of Florida orange products to schools for use by all grade levels. The committee was similarly empowered to underwrite or subsidize the development or expansion of the sale of surplus juices for distribution to schools. These activities were to be funded through an assessment or “tax” of five cents per box of oranges delivered into primary channels of trade. A referendum was held and the order was approved overwhelmingly by the growers and processors affected by the order.

Appellees, producers of citrus who were subject as a class to the tax, then filed an action in December 1968 against the Citrus Commission to contest the constitutionality of the tax, to enjoin the collection of the tax, to enjoin the operation of the order and to refund to the taxpayers the funds collected. They also contended that the composition of the Citrus Commission was illegal.

On June 27, 1969, the trial court entered a summary judgment holding the suit to be a proper class action, declaring the Orange Stabilization Act unconstitutional on grounds of unlawful delegation of legislative power and holding the marketing order invalid. The court then entered a stay order providing that the five cent tax be collected but not spent while the matter was on appeal to the Supreme Court. (These funds, together with accrued interest, now amount to approximately sixteen to seventeen million dollars.)

The ensuing direct appeal to the Supreme Court resulted in a reversal of the trial court on the constitutionality question. That court concluded its opinion as follows:

“As was pointed out earlier in this opinion, a multitude of issues were raised in the pleadings when appellees filed suit for declaratory judgment below. The trial court reserved judgment on many of these issues since the case was disposed of on constitutional grounds. Our opinion today is, therefore, limited to the issues raised on appeal.
“The judgment appealed from is hereby reversed, and this cause is remanded for further treatment consistent with this opinion.”

On remand the matter was set for trial on April 27, 1971, but was delayed by two unsuccessful interlocutory appeals taken by the Citrus Commission on discovery matters. The stay order entered by the trial court remained in effect all the while.

Meanwhile, the Citrus Commission proposed an amendment to the controversial marketing order on May 19, 1972. Following another successful referendum the amended order became effective on August 1, 1972. The amended order did not provide for any additional assessments, but neither did it provide that the money collected under the old marketing. order be returned to the growers.

Against this new order, on October 26, 1972 plaintiffs filed a “Complaint Re Amended Order 105-3.01,” alleging in part:

“Since most of the major premises upon which the [original] Order was adopted have turned out to be false and the Order unworkable, the Defendant has abandoned the purposes thereof and has arbitrarily and capriciously adopted the ‘New Order’ for the purpose of attempting to avoid the restoration of the tax funds to the taxpayers, although the purpose of the Order pursuant to which the taxes were collected has wholly failed, and the New Order seeks to delegate to the defendant entirely different usages of the funds from the purposes for which the funds were collected.
“ . . . The purpose of the New Order is not to remove surplus juice from the primary market to raise prices but rather to fix maximum prices by spending grower tax money to subsidize canners to reduce prices. Such price fixing is directly in violation of Florida Statute 601.154(19) and furthermore, the new purpose is exactly the opposite of the purpose for which the growers were taxed . . . This defeats the interests of the grower and constitutes the use of public funds to benefit certain private interests.”

They thereupon prayed that the new order be declared unconstitutional, illegal and void.

Yet, paradoxically, appellees now contend here that the situation under the new order is far superior to what it was previously, and the thrust of their argument on appeal is that the adoption of the new order and the preservation of the sixteen million dollar fund was a “victory” and was of great benefit to the orange growers and producers of this state. This necessarily must be their position, of course, if they claim the awarded fees for rendering “beneficial services”; but the logic is evasive.

In any case, subsequent events in this lawsuit were concluded by the trial court as follows:

“Finally, it appeared to this Court that there was a reasonable probability of working out a school marketing program then under study by the Defendant and other citrus organizations, which would not be objectionable, and that developing the necessary programs unhampered by the pendence of this lawsuit would be in the best interest of the parties and of the citrus industry generally. This was brought to the attention of the parties’ counsel and on June 18, 1973, the Plaintiffs filed a Motion for Voluntary Dismissal. On June 19, 1973, this Court entered its Order dismissing the case without prejudice and retaining jurisdiction of Plaintiffs’ Motion for Payment of Attorneys’ Fees.”

Testimony was thereafter taken on plaintiffs-appellees’ motion for attorney’s fees and the trial court held that the services of appellees’ attorneys had resulted in a benefit to the plaintiff class. He then awarded the fees here appealed. The Citrus Commission moved for rehearing and, when the rehearing was denied, filed its notice of appeal within thirty days from the order denying rehearing but more than thirty days from the order awarding the fees. Appellees filed a cross-assignment of error, alleging insufficiency of the award, and attack the timeliness of appellant’s appeal.

Considering first the question of timeliness of this appeal, it is argued by appel-lees that since the order awarding attorney’s fees was an interlocutory order following a final judgment within the purview of Rule 4.2(a), F.A.R., and considering that the Citrus Commission’s motion for rehearing was unauthorized by the rules, the time for taking the appeal was not stayed. The false premise here is that the order under review was an interlocutory one.

To begin with, we point out the order of dismissal entered on June 19, 1973 aforesaid was without prejudice. And we are aware that there is a line of authority that suggests an award of attorney’s fees following such a voluntary dismissal without prejudice is a nonfinal judgment reviewable only by certiorari (or, in a case formerly cognizable in equity, by interlocutory appeal pursuant to 4.2, F.A.R.). If this be so, we would agree that a motion for rehearing would not stay the appeal time. But we are of the view that this authority pertains only to matters ordinarily taxable as costs and we think the situation is far different when it applies to an award of attorney’s fees in a class action under the authority of Tenney, supra. We have located no Florida authority precisely on point, but the rule repeatedly announced by the United States Supreme Court since 1882 is that such an award supports a full appeal on its own merits even in the absence of a final judgment in the case in chief. While not bound, of course, by these decisions on matters of federal procedure we give them great persuasive weight, especially since two of these cases are the very authority relied upon in Tenney for establishing the right to recover attorney’s fees in Florida in a successful class action. Accordingly, we hold first that an award of attorney’s fees following the termination of a class action is a final matter and sufficiently substantive of itself to support a full appeal.

We turn now to the merits of the case.

The right to an award of attorney’s fees in a successful class action, where a party has established the claim of the members of the class to a common fund, has been established in both Florida as well as in the Federal system. This is an exception to the general rule that such fees cannot be awarded in the absence of contract or statute. But little purpose would be served- in reviewing the history of the concept here. Suffice it to say that the basis of the theory is that the plaintiffs’ successful litigation confers on the members of a class a substantial benefit in a fund. Here, we hold that even if there was a substantial benefit to the class, as the trial court held, such was clearly not the legal result of the litigation within the theory that allows recovery of plaintiffs’ costs.

Appellees vigorously contend that the amended marketing order represented a substantial change from the original order and, therefore, was a benefit to plaintiffs’ class. We reiterate, however, that we have serious reservations about plaintiffs’ standing to make this argument since, as noted earlier, they themselves had filed a complaint alleging that the same amended order was illegal and constituted a detriment to the class. But this point need not be dispositive, because even under appellees’ present theory of the case, the amended order and any potential further developments represent policy or political concessions rather than the resolution of legal rights in and to a fund within the confines of the issues which remained in plaintiffs’ lawsuit.

To be specific, plaintiffs-appellees originally contended the marketing order was unconstitutional. If they had prevailed on this argument thereby preserving the $16 million fund, their argument for entitlement to attorney’s fees would be strong, although we express no opinion on that point. But plaintiffs squarely lost the case on the constitutional issues when it was presented to the Supreme Court; and surely no entitlement to attorney’s fees accrued at the point of the Supreme Court decision reversing the trial court.

It becomes essential then, to examine the issues which remained to be tried in order to ascertain whether any aspect of plaintiffs’ lawsuit, in fact, “benefitted” the class within the rationale of Tenney, supra. In a memorandum to the trial court upon remand from the Supreme Court, plaintiffs-appellees submitted a list of fifteen issues which they contended remained for disposition by the trial court. An examination of this list, however, reveals that many of those issues had already been foreclosed by the Supreme Court decision. In fact, only two issues were left even reasonably viable: (1) that the composition of the Citrus Commission was unlawful, and (2) that the adoption of the marketing order was technically deficient because of procedural and referendum defects.

It was while these issues were still pending that the amended order was promulgated and the cause ultimately determined by the aforementioned voluntary dismissal. This sequence of events in no way demonstrates appellees’ entitlement to attorney’s fees. Our reading of the record convinces us that the amended order was not in fact a change with respect to the remaining issues presented by plaintiffs’ lawsuit. There is no showing at all that the amended order cured any of the procedural defects of the original order, nor that any improper or illegal composition of the Citrus Commission has been recognized or altered. Indeed, as noted, the complaint as against the amended marketing order made precisely the same attacks with respect to alleged legal deficiencies as those made against the original order. Additionally, not only did plaintiffs-appellees lose on the legal issues actually adjudicated but there has been no favorable resolution of the legal issues which had not been adjudicated.

Moreover, the apparent amicable settlement after the political change of heart on the part of the commission does not attain the dignity of the “favorable determination” of the cause within the rationale of Tenney, supra. Rather, it is clear that taking the view of the case most favorable to plaintiffs-appellees, they won a political victory not a legal victory in that during the time while the lawsuit was pending the commission ultimately became convinced of the economic wisdom of plaintiffs’ views; which, for ought that appears, would likely have occurred even in the absence of the lawsuit. We are aware of no authority that allows appellees’ attorneys to be awarded legal fees under such circumstances. Certainly Tenney is not such authority. To uphold such fees would engender a multitude of lawsuits against agencies such as the Department of Citrus with the plaintiffs attempting to take credit (and claiming attorney’s fees) for any change in the proposed spending of the taxpayers’ money. Furthermore, such a rule would discourage the agency ever to change a proposed course of action for fear that attorneys would claim the credit for the change and receive a share of the fund which had been supposedly preserved.

In the light of our disposition of this case, it is unnecessary to address the points raised on the cross-assignment of error in which appellees seek, as a matter of law, one million dollars in attorney’s fees.

In view whereof, the order appealed from should be, and it is hereby, reversed; and the cause is remanded with directions to enter an order denying an award of attorney’s fees payable to plaintiffs-appellees.

HOBSON and BOARDMAN, JJ., concur.

      . (1942), 152 Fla. 126, 11 So.2d 188.

      . See Griffin v. Florida Citrus Commission (1969), 32 Fla.Supp. 139.

        .See State, Department of Citrus v. Griffin (Fla.1970), 239 So.2d 577.

      . See Florida Citrus Commission v. Griffin (Fla.App.2d, 1971), 249 So.2d 42; State, Department of Citrus v. Griffin and Griffin v. State, Department of Citrus (Fla.App.2d, 1972), 257 So.2d 116; (cert. discharged (Fla.1972), 266 So.2d 36).

      . See Campbell v. Maze (Fla.App. 4th, 1975), 307 So.2d 234; Granoff v. Cherin. (Fla.App. 3d, 1972), 270 So.2d 430; Craft v. Clarembeaux (Fla.App. 2d, 1964), 162 So.2d 325. But cf. Giachetti v. Johnson (Fla.App. 2d, 1975), 308 So.2d 143. A similar rule applies to an order awarding costs after a declaration of mistrial, Lake Region Paradise Island, Inc. v. Graviss (Fla.App. 2d, 1975), 323 So.2d 610.

      . See Cohen v. Beneficial Industrial Loan Corp. (1949), 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528; Sprague v. Ticonic National Bank (1939), 307 U.S. 161, 59 S.Ct. 777, 83 L.Ed. 1184; Trustees of the Internal Improvement Fund v. Greenough (1882), 105 U.S. 527, 26 L.Ed. 1157.

      . Cf. Small v. Small (Fla.1975), 313 So.2d 749, 753 (concurring opinion of Justice England).

      . See Tenney v. City of Miami Beach, supra. The rule in Tenney has been frequently cited, but litigants have had little success in recovering attorney’s fees under this theory. See also City of Miami Beach v. Sterin (Fla.App. 3d, 1968), 214 So.2d 358; City of Miami v. Lehman (Fla.App. 3d, 1961), 134 So.2d 527; Larson v. Warren (Fla.1961), 132 So.2d 177; City of Ormond Beach v. Cook (Fla.1955), 81 So.2d 481.

      .For a discussion of the history of this concept in the federal courts, see Dawson, Lawyers and Involuntary Clients; Attorney Fees From Funds, 87 Harv.L.Rev. 1597 (1974); and Dawson Lawyers a/nd Involuntary Clients in Public Interest Litigation, 88 Harv.L.Rev. 849 (1975).

      . See Gachetti v. Johnson (Fla.App. 2d, 1975), 308 So.2d 143; Campbell v. Maze (Fla.App. 4th, 1975), 307 So.2d 234.

      . See Dawson, Lawyers and Involuntary Clients; Attorney Fees From Fund, n. 9, supra at p. 1626.

      . We think the plaintiffs’ view of their entitlement to legal fees was well summarized in the testimony of one of their attorneys, Mr. Davis, on the hearing on attorney’s fees:
      “Q. What have been the consequences of the litigation?
      A. Well, the effect of it was that we preserved the fund from expenditure under the original order. If the fund had been expended to subsidize the sale to the Federal government to give away to the schools, it would have in my opinion, have disrupted the orderly marketing of citrus products. That’s been, I think, the amendment of the order was the point at which we agreed, since under the amendment they could make sales other than for this lunch program. So I consider that through our efforts we preserved the fund, we have saved the market from a disastrous effort that would have been bad instead of good; we have gradually, I trust, through this accumulated interest on the fund, which now comes to about two and a half million dollars, and in the process of this litigation, maybe, I think we are entitled to more credit than we are, we have all come to a substantial meeting of the minds about the basic needs to solve the problem, and I believe that the solution of that problem is now being conducted by the Citrus Commission, and they have got the funds to do it with, which we preserved.”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    FARENWALD ENTERPRISES, Appellant, v. Richard G. PECK and Valerie A. Peck, his wife, Appellees.
    No. BB-332.
    District Court of Appeal of Florida, First District.
    May 12, 1976.
    Edna L. Caruso of Howell, Kirby, Montgomery, D’Aiuto & Dean, West Palm Beach, James M. McLean, Philip A. Webb, III, of Webb, Swain & Watson, Jacksonville, for appellant.
    J. Richard Moore of Corrigan, Werber & Moore, Jacksonville, for appellees.
   PER CURIAM.

Having considered the record, briefs and oral arguments of counsel, and finding that the interlocutory appeal is without substantial merit, it is dismissed pursuant to Rule 4.2c, Florida Appellate Rules. See AB CTC v. Morejon, Fla., 324 So.2d 625 (1976).

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


text:
    Marie DIXON, Appellant, v. ESTATE of James Wood DIXON, Deceased, Appellee.
    No. Y-10.
    District Court of Appeal of Florida, First District.
    May 12, 1976.
    Edna L. Caruso of Howell, Kirby, Montgomery, D’Aiuto & Dean; and Richard T. Stierer of Stierer & Parker, West Palm Beach for Appellant. Musleh & Gill and Howard B. Pearl, Ocala for Appellee.
   PER CURIAM.

We have considered the record and briefs and find there is competent substantial evidence to support the factual findings of the trial judge. We will not substitute our judgment for his. Rolland v. Thompson, Fla.App. (1st), 305 So.2d 239 (1975); Merritt v. Williams, Fla.App. (1st), 295 So.2d 310 (1974); Southern Convalescent Home v. Wilson, Fla., 285 So.2d 404 (1973).

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


text:
    Wiley GRANTHAM, Jr., Appellant, v. Beverly G. HUNTER, as guardian of Jessie Grantham, Appellee.
    No. Y-291.
    District Court of Appeal of Florida, First District.
    April 13, 1976.
    Rehearing Denied May 26, 1976.
    E. Coleman Madsen, Jacksonville, for appellant.
    Michael C. Bergen of Bergen & Roberts, Lake City, for appellee.
   PER CURIAM.

We have read the briefs and record in this cause and find competent and substantial evidence to support the findings of the trial judge.

Affirmed.

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


author: ROBERTSON, Justice, for the Court:

text:
    J. L. STAMPLEY, Executor of the Estate of Mrs. Gladys Gallagher Stampley, Deceased v. Joe E. GILBERT et al.
    No. 48655.
    Supreme Court of Mississippi.
    May 11, 1976.
    Thomas K. Holyfield, Meridian, for appellant.
    Singley, Minniece, Hamilton, Neville & Hamill, Meridian, for appelleees.
    Before GILLESPIE, ROBERTSON and LEE, JJ.
   ROBERTSON, Justice, for the Court:

J. L. Stampley, Executor of the estate of his deceased mother, Mrs. Gladys M. Gallagher Stampley, with court approval, brought suit in the Chancercy Court of Lauderdale County to remove as a cloud on the title of his mother’s home in Meridian, Mississippi, a written lease to Joe E. Gilbert, his wife, Mrs. Dorcas L. Gilbert, and his mother-in-law, Mrs. Ethel Humphrey.

When the complainant rested, the court sustained a motion to exclude the evidence and to dismiss the bill of complaint, thus holding in effect that the defendants had a right to perpetually renew the lease.

The original lease was entered into on February 12, 1971, between Mrs. J. R. Stampley, as lessor, and the Gilberts and Mrs. Ethel Humphrey, as lessees, at a time when Mrs. Stampley was in the Gatlin Nursing Home as a patient because she was mentally disturbed and could not look after herself physically.

When Joe Gilbert approached J. L. Stampley about renting his mother’s home for $50 a month, he was advised by.J. L. Stampley that his mother was in the nursing home, in no condition to negotiate a lease or to even discuss the matter. Thereafter Joe Gilbert carried on all the negotiations' with J. L. Stampley. When it appeared that Gilbert and Stampley had agreed on the terms of a one-year lease, Gilbert had his lawyer draw up the lease contract and he delivered the lease to J. L. Stampley.

J. L. Stampley, without reading the lease, took it to his mother in the nursing- home, told her she was renting her home for one year at $50 per month and advised her to sign it.

When asked if he read the lease to her, Stampley answered: “No, sir, because it wouldn’t do any good. She wouldn’t understand it if you read it to her.” At her son’s instance, she signed the lease and Robert J. Stampley, another son, stopped by the nursing home and signed as a witness.

The lease contained these provisions:

“2. It is understood and agreed that the above described real property is a residence located at 513 — 29th Avenue and that Lessor reserves and excepts from the operation and effect of this indenture of lease the small apartment consisting of two rooms and a bath located in the south part of said residence for as long as Lessor uses said apartment for her personal convenience. It is further understood and agreed that when Lessor no longer uses said apartment it shall revert to lessees under the same terms and conditions herein contained.
“3. The original term of this lease shall begin at 12:01 A.M. on March 1, 1971 and end at midnight on the last day of February, 1972. For the same consideration, Lessor agrees that Lessees shall have the option to renew said lease and extend the term thereof for an additional term of one year on the anniversary hereof and if so renewed and extended, Lessees shall have the same said option on every anniversary thereafter.
“4. The rental is hereby stipulated and agreed to be $600.00 per year for the primary term and for such options as are exercised thereafter payable by Lessees to Lessor in twelve monthly intallments of $50.00 each on or by the 5th day of each month.
“5. It is understood and agreed that Lessor or her heirs and assigns shall pay for all major repairs, taxes, insurance and any and all assesments made by the City or County on the property herein described and it is further understood and agreed that Lessees shall make all minor repairs except that said Lessees shall not be required to expend in excess of $15.00 for said repairs in any one month. It is also understood and agreed that the current appraisal value of the lease premses is $5,800.00.”

The lease was renewed for one year on February 19, 1972. When Gilbert attempted to renew the lease for another year in February, 1973, J. L. Stampley was advised by Gilbert that he had a right to a perpetual renewal of the lease. Stampley refused to have his mother sign the second renewal because there had never been any discussion nor any agreement about a right to perpetually renew. All Stampley had ever told his mother and all she ever understood was that she was renting her home for one year, and that she was renewing the lease for one more year.

On June 28, 1973, J. L. Stampley was appointed Conservator of the person and property of his mother, Mrs. J. R. Stamp-ley, the Chancellor finding in his decree that “Mrs. J. R. Stampley is physically and mentally incapacitated to look after her person and estate.”

After Mrs. Stampley’s death on August 10, 1973, Gilbert probated an itemized claim for repairs to Mrs. Stampley’s home in the total sum of $1,967.18 against both the con-servatorship and her estate. As authority for this claim, Gilbert attached to it a copy of the February 12, 1971, lease. Under paragraph 5 of the original lease, in addition to paying for all major repairs, Mrs. Stampley obligated herself, as lessor, to pay all “taxes, insurance and any and all assessments made by the City or County on the property”.

1971 taxes, with homestead exemption, amounted to $87.00; 1972 taxes to $91.50; and 1973 taxes to $92.00. Mrs. Stampley also paid $46.00 insurance premiums each year. Under the terms of the February 12, 1971, lease, Mrs. Stampley received $50 per month rent or a total of $600 for the year.

The testimony is uncontradicted that Mrs. Stampley, at the time she was placed in the Gatlin Nursing Home in October, 1970, was physically and mentally impaired, was mentally confused and could not look after her physical needs. J. L. Stampley, her son, Mrs. J. L. Stampley, her daughter-in-law, Robert J. Stampley, another son, Mrs. W. S. Hust, an older sister, and Mrs. Ethel Jenkins, an old friend, all testified to this. Mrs. Virgie P. Gatlin, the owner and operator of the nursing home, testified that she could not be trusted with her medicine, that she would take a whole bottle of Bufferin at one time and even take too much of her prescription medicine. Mrs. Gatlin, who observed her closely and constantly all the time, was firmly of the opinion that she was mentally incompetent and irresponsible, and not able to understand or transact any business the entire time she was in the nursing home.

Dr. Mayo Flynt, Mrs. Stampley’s doctor since 1964, testified that she had a chronic kidney disease, a chronic lung disease, and chronic arteriosclerotic heart disease when he treated her in Riley’s Hospital from August 7th to August 21st, 1970; that these diseases were progressive and affected her mental processes. When asked about her condition, Dr. Flynt responded: “Well, she was very mentally confused.”

On redirect examination these questions were asked and Dr. Flynt answered:

“Q Doctor, why was the lady placed in the nursing home?
A She wasn’t able to look after herself.
Q And why wasn’t she able to look after herself?
A Because she was chronically ill.
Q Was her condition progressive?
A Yes, sir.
Q And there was no hope for it to improve ?
A It was our opinion there was not.
Q And the fact is it did not, did it?
A No, sir.
Q If it’s progressive, then what happens?
A Well, she died.
Q She dies; and her symptoms become more acute as time passes; is that correct?
A Yes, sir.”

The testimony is overwhelming, in fact it is uncontradicted, that Mrs. Gladys M. Stampley (Mrs. J. R. Stampley) was in no mental condition to understand the terms of the lease entered into by her in February, 1971. She was a very sick woman, both mentally and physically. It is certainly clear and obvious that she did not intend to enter into a perpetual lease of her only home.

There is also the universal rule of construction that when the terms of a contract are vague or ambiguous, they are always construed more strongly against the party preparing it. Globe Music Corp. v. Johnson, 226 Miss. 329, 84 So.2d 509 (1956); Love Petroleum Co. v. Atlantic Oil Producing Co., 169 Miss. 259, 152 So. 829 (1934): In this case the lease was prepared by Mr. Gilbert’s lawyer at Gilbert’s instance.

Although this Court upheld the renewal terms of a standard oil and gas lease in Lloyd’s Estate v. Mullen Tractor & Equipment Co., 192 Miss. 62, 4 So.2d 282 (1941), we did state the attitude of the law as to perpetual leases in these words:

“It is true that the law does not favor perpetual leases and that the intention to give the right to perpetual renewals must appear in clear and unequivocal language, and that a lease will not be construed to create such a right unless the language employed clearly and unambiguomly indicates that it was the intention and purpose of the parties to do so; . . . .” 192 Miss. at 76-77, 4 So.2d at 285. (Emphasis added).

The intention to give the right to perpetual renewals certainly does not appear in clear and unequivocal language in the original lease, prepared by Gilbert’s attorney and submitted to Mrs. Stampley for her signature while she was in the nursing home.

In Blanks v. Sadka, 241 Miss. 821, 133 So.2d 291 (1961), this Court said:

“The rule is well settled that when at the conclusion of the complainant’s evidence the defendant moves to exclude the evidence and dismiss the bill, the court should assume as true all facts which the complainant’s evidence fairly tends to establish, together with all reasonable inferences to be deduced therefrom. [Citing numerous authorities].” 241 Miss. at 823, 133 So.2d at 292.

The chancellor did not observe this well-nigh universal rule in the case at bar. He erred when he sustained the motion to exclude the evidence and to dismiss the bill of complaint. The decree is reversed and this cause remanded for a new trial.

REVERSED AND REMANDED.

GILLESPIE, C. J., PATTERSON and INZER, P. JJ., and SMITH, SUGG, WALKER, BROOM and LEE, JJ., concur.


text:
    Jon S. MILLER, a/k/a Robert Christopher, Appellant, v. STATE of Florida, Appellee.
    No. 45689.
    Supreme Court of Florida.
    April 7, 1976.
    Rehearing Denied June 11, 1976.
    Robert T. Benton, II, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., for appellee.
   PER CURIAM.

This cause is before us on direct appeal from a conviction of murder in the first degree and sentence of death imposed upon appellant by the Circuit Court in and for Lee County, Florida. We have jurisdiction pursuant to Article V, Section 3(b)(1).

Appellant was indicted for murder in the first degree in that he from premeditated design did stab Alexandra Todd to death. The murder was committed while defendant was in the act of robbing and raping the victim. The victim was stabbed nine times. Arraignment was continued until the defendant could be examined by two psychiatrists and order was entered by the trial court on March 3, 1971, requiring that defendant be examined by Drs. Hoagland and Schlit. On March 23, 1971, after hearing, the trial court determined that defendant was incompetent to stand trial and ordered that he be confined to Florida State Hospital. On August 23, 1973, psychiatrists at Chattahoochee, by letter, notified the trial judge that it was the staff’s opinion that defendant was competent to stand trial and should be returned to the committing court. The trial judge by order dated August 22, 1973, ordered that defendant be released into the custody of the Sheriff of Lee County for purpose of trial on the offense charged and by order dated September 18, 1973, required that defendant be re-examined to determine whether he was competent to stand trial. After hearing held December 14, 1973, the trial court found appellant competent to stand trial. On December 17, 1973, appellant filed a notice of intent to rely upon the defense of insanity. Trial by jury commencing February 19, 1974, resulted in a jury verdict of guilty as charged. After a sentencing hearing, the jury recommended that defendant be sentenced to death. Prior to imposing sentence the trial court entered an “Order to Examine,” directing two named psychiatrists to examine defendant as to his contacts with reality, his intellectual ability, his rationality and memory, to determine whether or not he was competent to be sentenced. The psychiatrists agreed that appellant was sane and so notified the trial judge. The trial judge adjudicated defendant guilty of first degree murder and sentenced him to death. In his sentencing statement, the trial judge found as follows:

“A. As trial Judge, I find that the murder of Alexandra Todd (the woman taxi driver) was committed by the Defendant, JON STEVEN MILLER a/k/a ROBERT CHRISTOPHER, while the said Defendant was in the act of robbing and raping the victim, according to the Defendant’s own testimony, he, the said Defendant, committed the crime of rape upon the victim, Alexandra Todd, either before she died, or after she had expired.
“B. That the convicted Defendant committed the crime upon the victim in a most heinous, atrocious and cruel manner by stabbing the victim with a very deadly knife that he had purchased just prior to the murder.
“C. That the capital murder of the victim was committed for pecuniary gain, the robbery of the victim.
“There is evidence in the record that the convicted Defendant was involved in some trouble and was sentenced to serve time in another prison system of another State, however, as trial Judge, I felt that this was not sufficient to come into play under Section (5) of 941.141 [921.141], F.S.A.
MITIGATING CIRCUMSTANCES
“A. After a careful examination of all the mitigating circumstances enumerated in Section (6) of 941.141 [921.141], F.S.A., I do find that there may have been, remotely, one which would apply.
“However, after presiding over and carefully studying the testimony and reports of the several doctors who had this Defendant in charge, especially the testimony of Mordecai Haber, M.D. F.A. P. A., a very eminent doctor, I come to the conclusion that the Defendant, to use the words of the doctor, ‘Presented no distortion of and was in good contact with reality, exhibited no intellectual incapacity, was able to reason, and his memory was not impaired.’
“The Defendant demonstrated this when he testified and later when I, as trial Judge, permitted him to address the jury at the close of the trial in his own behalf.
“I am forced to arrive at the decision that the mitigating circumstances do not in the least consequence outweigh the aggravating circumstances and the advisory sentence of death found and presented by the jury should be meted out to the Defendant, JON STEVEN MILLER, a/k/a ROBERT CHRISTOPHER.
“The Defendant was asked why he used the names Marlowe and Christopher. It developed that he, the Defendant, was at one time a playwright. It may well be that he assumed the names Christopher and Marlowe because he was knowledgable with the contemporaries of the famous Shakespeare in English literature; and who wrote plays of tragedy, which always ended in violent death by stabbing.”

Appellant initially contends that he should have been discharged pursuant to Rule 3.-191(d)(3). However, the State responds that not only was appellant afforded a speedy trial under the rule but his trial was held well within the time requirements of Fla.Cr.R.P. 3.191.

December 22, 1970 Arrest of Appellant
March 3, 1971 At defense counsel's request, trial court ordered arraignment continued until psychiatric examination.
March 23, 1971 Trial Judge ruled appellant was not competent to stand trial and should be confined to state hospital.
August 2,1973 Staff at Florida State Hospital advised trial judge that appellant was now competent to stand trial.
August 22, 1973 Order requiring return of appellant to Sheriff's custody.
September 18, 1973 Order of re-examination to determine competency to stand trial.
December 14, 1973 Order appellant competent to stand trial.
February 19, 1974 Trial by jury.
February 23, 1974 Conviction.

Rule 3.191(d)(2), Fla.Cr.R.P. provides:

“ . . . A period of reasonable and necessary delay resulting from proceedings including but not limited to an examination and hearing to determine the mental competency or physical ability of the defendant to stand trial.”

We agree with the State’s argument that the order placing appellant in the custody of Florida State Hospital tolled the further running of the Speedy Trial time; that pursuant to Rule 3.-210(a)(3), trial judge was notified and returned appellant to State penal system August 22, 1973, and pursuant to Rule 3.210, the judge conducted a competency hearing; that from December 14, 1973, 65 days passed. This is clearly within Rule 3.191. See State ex rel. Butler v. Cullen, 253 So.2d 861 (Fla.1971). The State further argues that defendant exercised his right to defense of insanity to stand trial and upon initiating this defense, he was duty bound to follow proper procedure (Rule 3.210).

We find that the trial court did not err in failing to discharge appellant either pursuant to Rule 3.191(d)(3) or Rule 3.-191(b)(1), Fla.Cr.R.P.

Appellant’s contention that the imposition of the death penalty pursuant to Section 921.141, Florida Statutes, as punishment for a capital offense committed before December 8, 1972, is prohibited by Article I, Section 10, Constitution of Florida, prohibiting ex post facto laws is without merit. When appellant murdered Alexandra Todd on December 22, 1970, the crime he committed was a capital offense punishable by death. The sentencing of appellant to death by the trial court, sub judice, for the capital offense of murder in the first degree did not expose appellant to a greater penalty than that which originally could be imposed at the time of the commission of the offense. Accord, State ex rel. Manucy v. Wadsworth, 293 So.2d 345 (Fla.1974), Lee v. State, 294 So.2d 305 (Fla.1974).

Appellant raises several other points on appeal relative to the trial of his case, none of which we find to be meritorious so as to constitute reversible error. However, although having determined that appellant’s conviction resulted from a fair trial, and should be sustained, we find that the sentence of death was not properly imposed by the trial court pursuant to the specified safeguards set out in Section 921.141, Florida Statutes. The jury was deprived of testimony highly relevant to their evaluation of mitigating circumstances—the testimony of the psychiatrists, who had testified during trial, relative to whether Miller acted under the influence of extreme mental disturbance (Section 921.141 (6) (b)) or whether his ability to conform his conduct to the requirements of the law was substantially impaired (Section 921.141(6) (f)).

As reflected by the record, at 5 :48 P.M. on Saturday, February 23, 1974, the final day of trial, the jury retired to consider its verdict. It returned a verdict of guilty at 8:48 P.M. and thereafter the court recessed for dinner. Defense counsel moved the court to recess until Monday to allow subpoenas to be issued to witnesses available to testify regarding Miller’s mental and emotional condition at the time of the crime, factors specifically mentioned as mitigating in Section 921.141(6), Florida Statutes. Defense counsel indicated a desire to call the psychiatrists who had testified during the trial concerning Miller’s ability to distinguish between right and wrong in order to question them on the very different issues of whether Miller acted under the influence of extreme mental disturbance (Section 921.141 (6) (b)) or whether his ability to conform his conduct to the requirements of the law was substantially impaired (Section 921.-141 (6) (f)). The defense also indicated its intention to call a psychiatrist who had treated Miller for over two years between the time of his arrest and the trial. The trial judge refused to recess because he did not want to continue sequestration of the jury over the weekend. He also indicated that defense counsel could bring these psychiatric opinions to his attention after the jury rendered its advisory sentence. The sentencing portion of the trial was held that night, and the jury retired to consider its sentence at 11:28 P.M. It returned an advisory sentence of death at 11:39 P.M.

We have listened carefully to oral argument, examined and considered the record in light of the assignments of error and briefs filed, and we have also, pursuant to Rule 6.16(b), Florida Appellate Rules, reviewed the evidence to determine whether the interests of justice require a new trial, with the result that we find no reversible error is made to appear and the evidence in the record before us does not reveal that the ends of justice require that a new trial on the issue of guilt be awarded.

Accordingly, the judgment of guilty of murder in the first degree is affirmed. However, the cause is remanded to the trial court for purpose of conducting another sentencing hearing before a jury impaneled for that purpose at which hearing the psychiatric testimony improperly excluded may be considered. Cf. Messer v. State, 330 So.2d 137 (Fla.1976), opinion filed March 31, 1976.

It is so ordered.

OVERTON, C. J., and ROBERTS, ADKINS, BOYD, ENGLAND, SUNDBERG and DREW (Retired), JJ., concur.


text:
    Mary Alice FIRESTONE, Petitioner, v. TIME, INC., Respondent.
    No. 44207.
    Supreme Court of Florida,
    April 28, 1976.
    Rehearing Denied June 9, 1976.
   ORDER ON MANDATE

This matter recurs on a decision and mandate by and from the Supreme Court of the United States, 424 U.S. 448, 96 S.Ct. 958, 47 L.Ed.2d 154 which agreed in part and disagreed in part with the opinion and judgment of this Court under review, 305 So.2d 172, and which vacated the' opinion and judgment of this Court for further proceedings not inconsistent with the majority view expressed in its opinion.

That court left undecided the question of whether or not Time, Inc. was at fault in the matter as will appear by reference to the opinion.

Accordingly, the decision of the District Court of Appeal, Fourth District, 279 So.2d 389, which had been reviewed by this Court is likewise vacated with directions to the District Court to vacate the judgment of the trial court and for further proceedings in the trial court not inconsistent with the decision by the Supreme Court of the United States in this matter.

It is so ordered.

OVERTON, C. J., and ROBERTS, ADKINS, BOYD and ENGLAND, JJ„ concur.


author: ROBERTS, Justice. ENGLAND, Justice

text:
    George JOHNSEN, Appellant, v. STATE of Florida, Appellee. David W. BETHEL, Appellant, v. STATE of Florida, Appellee. Jesse Lee CAUSEY, Appellant, v. STATE of Florida, Appellee. Dennis VALDEZ, Appellant, v. STATE of Florida, Appellee.
    Nos. 46208, 45999, 45964 and 45965.
    Supreme Court of Florida.
    April 21, 1976.
    Rehearing Denied June 10, 1976.
    Albert S. C. Millar, Jr. and Gerald Ko-gan and Stephen J. Kogan, Miami, for appellants.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky and Frank Gomez, Asst. Attys. Gen., for appellee.
   ROBERTS, Justice.

This cause is before us on direct appeal to review judgments of the trial court impliedly upholding the constitutional validity of Section 800.02, Florida Statutes. We have jurisdiction pursuant to Article V, Section 3(b)(1), Florida Constitution. Harrell’s Candy Kitchen v. Sarasota-Manatee Airport Auth., 111 So.2d 439 (Fla.1959), Demko’s Gold Coast Trailer Park v. Palm Beach County, 218 So.2d 745 (Fla.1969), Ogle v. Pepin, 273 So.2d 391 (Fla.1973).

Appellants were indicted along with Frank Douglas Thomas by the Dade County Grand Jury. Thomas and Appellants Causey and Valdez were charged with the crimes of extortion, assault and battery, conspiracy to commit an unnatural and lascivious act and committing an unnatural and lascivious act. Bethel was charged with the crimes of assault and battery, conspiracy to commit an unnatural and lascivious act and committing an unnatural and lascivious act. Johnsen was charged with assault and battery and conspiracy to commit an unnatural and lascivious act. Thomas and appellants jointly filed a motion to dismiss based on the ground that Section 800.02, Florida Statutes, is unconstitutional. Another motion to dismiss was filed contending that the indictment failed to properly allege any offenses against the laws of the State of Florida. The motions to dismiss were denied by the trial court. Appellants Causey, Valdez and Bethel were found guilty of the crimes conspiracy to commit an unnatural and lascivious act and committing an unnatural and lascivious act and Johnsen was found guilty of the crime of conspiracy to commit an unnatural and lascivious act. Causey and Valdez were adjudicated guilty by the court and sentenced to 60 days in the county stockade with the provision that the remaining 30 days be suspended after 30 days has been served and two years reporting probation after serving the 30 days on the conspiracy count, and two years reporting probation to run concurrently with the above probation on count four of the indictment, commission of an unnatural and lascivious act. Bethel was adjudicated guilty and was sentenced to 30 days in the county stockade with the provision that it be served on weekends and upon the service of three weekends the remainder of the sentence to be suspended, and to two years probation. Johnsen was adjudicated guilty and sentenced to sixty days in the county stockade with the final 30 days thereof to be suspended upon serving of 30 days and to two years probation.

Appellants argue that Section 800.-02, Florida Statutes, is unconstitutionally vague and indefinite and that the acts for which they were convicted under counts 3 and 4 of the indictment are not a violation of Section 800.02, Florida Statutes, and that, therefore, the conviction should be reversed. Frank Douglas Thomas who was charged in the same indictment as appellants and who joined in their motions to dismiss before his motion for severance raised these same issues on appeal of his judgment of guilt to this Court in Thomas v. State, 326 So.2d 413 (Fla.1975), Case No. 46,416, filed December 3, 1975, Rehearing denied February 17, 1976, wherein we affirmed the judgment of the trial court, held that Section 800.02, Florida Statutes, is constitutional, and held that the acts committed by Thomas as charged in the indictment did constitute a violation of Section 800.02, Florida Statutes. As to these points, the judgment of the trial court is affirmed on the authority of Thomas v. State, supra.

Appellants contend that the closing argument of the prosecution contained several inflammatory and abusive remarks so as to constitute a violation of appellants’ fundamental rights to a fair and impartial trial and that, accordingly, the trial court erred in denying motions for mistrial. In Thomas v. State, supra, as to appellant’s contention that certain prosecutorial remarks made in closing argument were so prejudicial and inflammatory thereby warranting declaration of a mistrial, this Court opined:

“Wide latitude in the argument to a jury is permitted. This Court in Spencer v. State, 133 So.2d 729, at 731 (Fla.1961), explained:
“ ‘The only other point urged for reversal is the contention that the remarks of the Assistant State Attorneys during the closing arguments were of such an inflammatory nature as to influence the jury unduly to the prejudice of the appellant. We think no useful purpose would be served by analyzing in detail the comments of the prosecuting officers. The rule is that considerable latitude is allowed in arguments on the merits of the case. Logical inferences from the evidence are permissible. Public prosecutors are allowed to advance to the jury all legitimate arguments within the limits of their forensic talents in order to effectuate their enforcement of the criminal laws. Their discussion of the evidence, so long as they remain within the limits of the record, is not to be condemned merely because they appeal to the jury to ‘perform their public duty’ by bringing in a verdict of guilty. The prosecutors in the instant case remained within the bounds of the evidence. Washington v. State, 86 Fla. 533, 98 So. 605. In actuality, there is probably very little that the prosecutors themselves could have advanced which would have been any more damning of the conduct of this appellant than the gruesome evidence which was presented from the witness stand.’ (emphasis supplied)
“Further, we announced in Paramore v. State, 229 So.2d 855 (Fla.1969), that it will not be presumed that jurors are led astray to wrongful verdicts by impassioned eloquence and that, ‘It is well settled that the comments of counsel in the progress of a trial before a jury are controllable in the judicial discretion of the trial court, and an appellate court will not interfere with the exercise of such discretion unless a clear abuse thereof has been made to appear. See 6 F.L.P., Criminal Law, § 538. When an improper statement is made by counsel before it is practicable for the Court to prevent its utterance, the Court should visit upon such counsel prompt and fitting rebuke so as to impress on the jury the gross impropriety of being influenced thereby.’ The prosecutional remarks made sub ju-dice, to which the defense objected, do not warrant reversal of appellant’s conviction. Cf. Falcon v. State, 226 So.2d 399 (Fla.1969); Sherman v. State, 255 So.2d 263 (Fla.1971); Grant v. State, 194 So.2d 612 (Fla.1967). The comments made sub judice were not so prejudicial so that no cautionary instruction or retraction could destroy their harmful effect. The trial judge sustained the objections to both comments and specifically asked the jury to disregard the second comment. He acted properly within his discretion in not declaring a mistrial.”

We find that the trial court did not abuse his discretion in refusing to grant a mistrial in the instant cause. In Perry v. State, 146 Fla. 187, 200 So. 525 (1941), this Court stated:

“The granting of a mistrial should be only for a specified fundamental or prejudicial error which has been committed in the trial of such a nature as will vitiate the result. See C. W. Hunt Co. v. Boston Elevated Ry. Co., 217 Mass. 319, 104 N.E. 728; Illinois Oil Co. v. Grandstaff, 118 Okl. 101, 246 P. 832. When such a fundamental or prejudicial error has been committed as will necessitate the granting of a new trial later, it is within the province of the trial judge, upon proper motion, to grant a mistrial at that point. However, when an alleged error is committed which does no substantial harm and the defendant is not materially prejudiced by the occurrence, the court should deny the motion for a mistrial. See Daugherty v. State, 143 Fla. 578, 197 So. 501, certiorari denied, [311 U.S. 648] 61 S.Ct. 44, 85 L.Ed. 414. The granting of a mistrial effectively stops the proceedings when fundamental or prejudicial error has been committed, to save the time and expense of further procedure in the trial; but a mistrial should not be granted when the error committed is not prejudicial to the substantial rights of the defendant. Where improper questions are asked a witness by counsel in the presence of the jury, the proper procedure is for the defendant to request the court to instruct the jury to disregard such objectionable remarks, and not that a mistrial be entered by the court, unless the remarks are such that instructing the jury to disregard them would not cure the error. Morris v. State, 100 Fla. 850, 130 So. 582.” (Emphasis supplied)

Cf. Adkins v. Smith, 205 So.2d 530 (Fla.1968).

The objectionable remarks made by the prosecutor sub judice were not so prejudicial that no cautionary curative instructions given by the trial judge could negate their harmful effect.

We have carefully reviewed all other points raised on appeal and argued in the briefs submitted by appellants and find them to be without merit.

Accordingly, no reversible error having been made to appear, the judgments of the trial court are affirmed.

It is so ordered.

OVERTON, C. J., and ADKINS and BOYD, JJ., concur.

ENGLAND, J., dissents with an opinion.

ENGLAND, Justice

(dissenting).

I respectfully dissent. As the majority notes, appellants were charged in the same indictment as Frank Douglas Thomas and joined with him in the same motion to dismiss the charges based on the invalidity of Section 800.02, Florida Statutes (1973). Thomas’ conviction was upheld in a decision upholding that statute, from which I dissented. Thomas v. State, Case No. 46,416, opinion filed December 3, 1975. For the reasons I expressed in Thomas, I dissent here.

      . Thomas was charged in the same indictment for the crimes extortion, assault and battery, conspiracy to commit an unnatural and lascivious act and committing an unnatural and lascivious act. However, having moved for severance which motion was granted, he was tried separately, was convicted of the crimes charged, was adjudicated guilty by the trial court and was sentenced to a term of six months to three years in the state prison.

      . Section 924.33, Florida Statutes, provides: “When judgment not to be reversed or modified. No judgment shall be reversed unless the appellate court is of the opinion, after an examination of all the appeal papers, that error was committed that injuriously affected the substantial rights of the appellant. It shall not be presumed that error injuriously affected the substantial rights of the appellant.”


text:
    Johnnie Lee TAYLOR, Appellant, v. STATE of Florida, Appellee.
    No. Z-350.
    District Court of Appeal of Florida, First District.
    April 30, 1976.
    Richard W. Ervin, III, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty, Gen., for ap-pellee.
   PER CURIAM.

Affirmed. See Carter v. State, Fla.App. (1st), 292 So.2d 33 (1974).

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


author: BY THE COURT.

text:
    Willie ROBINSON, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. AA-29.
    District Court of Appeal of Florida, First District.
    May 5, 1976.
    Richard W. Ervin, III, Public Defender, and David J. Busch, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Charles W. Musgrove, Asst. Atty. Gen., for appellee.
   BY THE COURT.

Upon considering the briefs and record, we find no reversible error.

Accordingly, the judgment of conviction and sentence are affirmed.

BOYER, C. J., and MILLS and Mc-CORD, JJ., concur.


text:
    Vanny P. BENFORD, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. Z-345.
    District Court of Appeal of Florida, First District.
    May 5, 1976.
    Richard W. Ervin, III, Public Defender, and David J. Busch, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellee.
   BY THE COURT.

Upon considering the briefs and record, we find no reversible error.

Accordingly, the judgment of conviction and sentence are affirmed.

BOYER, C. J., and MILLS and Mc-CORD, JJ., concur.


text:
    Rickey McINTYRE, Appellant, v. STATE of Florida, Appellee.
    Nos. X-251, Y-312.
    District Court of Appeal of Florida, First District.
    April 14, 1976.
    Richard W. Ervin, III, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for ap-pellee.
   PER CURIAM.

Affirmed. See W. B. v. State, Fla., 313 So.2d 711 (1975).

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


text:
    Jordan W. GRANT and wife, Willodean R. Grant, Appellants, v. DEPARTMENT OF ENVIRONMENTAL REGULATION et al., Appellees.
    No. AA-252.
    District Court of Appeal of Florida, First District.
    April 14, 1976.
    Rehearing Denied May 18, 1976.
    Jerry W. Gerde of Davenport, Johnston, Harris, Gerde & Harrison, Panama City, for appellants.
    Gerald Holley, Chipley, Marion J. Menge, Edward F. Wicke, Pensacola, and William P. White, Jr., Tallahassee, for ap-pellees.
   PER CURIAM.

This interlocutory appeal, having been found to be without substantial merit, is

DISMISSED. Rule 4.2c, F.A.R.

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


text:
    Lee W. ROBERTS, Appellant (Petitioner), v. Anne B. ROBERTS, Appellee (Respondent).
    No. AA-176.
    District Court of Appeal of Florida, First District.
    April 19, 1976.
    Rehearing Denied May 18, 1976.
    S. LaRue Williams of Kinsey, Vincent, Pyle & Williams, Daytona Beach, for appellant.
    James N. Davis and Richard A. Schwartz, Daytona Beach, for appellee.
   BY THE COURT.

Interlocutory appeal dismissed. Remanded for further appropriate action.

BOYER, C. J., and MILLS and Mc-CORD, JJ., concur.


text:
    Allen Franklin FISHER, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. Y-72.
    District Court of Appeal of Florida, First District.
    April 15, 1976.
    Richard W. Ervin, III, Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellee.
   BY THE COURT.

Upon considering the briefs and the record, we find no reversible error.

Accordingly, the judgment of conviction and sentence are affirmed.

BOYER, C. J., and MILLS and Mc-CORD, JJ., concur.


text:
    James Lee COOPER, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. AA-199.
    District Court of Appeal of Florida, First District.
    April 15, 1976.
    Rehearing Denied May 18, 1976.
    Richard W. Ervin, Public Defender, and Douglas C. Kearney, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., for appellee.
   BY THE COURT.

Upon considering the briefs and the record, we find no reversible error.

Accordingly, the judgment of conviction and sentence are affirmed.

BOYER, C. J., and MILLS and Mc-CORD, JJ., concur.


text:
    CITIZENS BANK OF PERRY, Appellant, v. CASHWAY BUILDING PRODUCTS, INC., Appellee.
    Nos. Y-267, Y-268.
    District Court of Appeal of Florida, First District.
    April 19, 1976.
    Edwin B. Browning, Jr., Davis, Browning & Haydee, Madison, for appellant.
    Helen Carey Ellis, Keen, O’Kelley & Spitz, Samuel T. Adams and John K. Folsom, Folsom & Steinmeyer, Tallahassee, for appellee.
   PER CURIAM.

Having carefully considered the record, briefs and oral argument of counsel for the respective parties, the court finds that there has been no demonstration of error. Accordingly, the summary final judgment here appealed is

AFFIRMED.

BOYER, C. J., and MILLS and SMITH, JJ., concur.


text:
    Eugene EMERSON, Appellant, v. STATE of Florida, Appellee.
    No. 75-169.
    District Court of Appeal of Florida, Fourth District.
    May 14, 1976.
    Richard L. Jorandby, Public Defender, and James R. Bean, III, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Basil S. Diamond, Asst. Atty. Gen., and Marsha G. Madorsky, Legal Intern, West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. Kilbee v. State, 53 So.2d 533 (Fla.1951); Cordell v. State, 157 Fla. 295, 25 So.2d 885 (1946); Trowell v. State, 288 So.2d 506 (Fla.App.1st 1974).

WALDEN, C. J., DOWNEY, J., and ULMER, RAY E., Jr., Associate Judge, concur.


author: HOBSON, Judge.

text:
    Brandon TANKSLEY, Appellant, v. STATE of Florida, Appellee.
    No. 75-508.
    District Court of Appeal of Florida, Second District.
    May 12, 1976.
    Jack O. Johnson, Public Defender, Bar-tow, and Douglas A. Wallace, Assistant Public Defender, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   HOBSON, Judge.

Brandon Tanksley challenges the sufficiency of the evidence to sustain his conviction for possession of heroin.

Apparently in response to an informant’s tip relayed to them by radio, two uniformed St. Petersburg police officers went to the Little Club Tavern. Adjacent to the tavern was a litter-strewn, unpaved, parking lot measuring approximately 30 yards by 20 yards. Approximately ten to twenty people were on the lot when the officers arrived. Appellant and another man were seated on a couch in the lot. One of the officers asked the individuals in the area of the couch, “Who is holding today?” Appellant replied, “Not me, man.” The officers then proceeded to search the area. One officer's attention was attracted to a concrete block lying about 15 feet from the couch. Under it he found a brown paper bag. Inside the bag was part of an envelope which he could see contained some foil packets. The officers then left the lot. They noticed that appellant had begun to leave the area, but it was not unusual for people in that neighborhood to leave when a police cruiser appeared.

Laboratory tests showed that the foil packets contained heroin. Inside the piece of envelope a fingerprint was found which was later identified as appellant’s. The state’s fingerprint experts testified they could not determine how long the print had been on the envelope. While it was a “recent” print, it could have been made five days or more before. At the close of the state’s case appellant moved for a directed verdict on the basis of insufficiency of the evidence. The motion was denied. Appellant was found guilty and sentenced from 6 months to 3 years.

We agree with appellant’s contention that the evidence was insufficient to sustain the conviction for possession. To prove constructive possession the state had to show appellant knew of the presence of narcotics and had the ability to reduce it to his personal dominion. Spataro v. State, Fla.App.2d 1965, 179 So.2d 873. Appellant’s presence on the lot and his denial of possession of narcotics are not sufficient circumstantial evidence to indicate the requisite knowledge of the drugs. Nor is the presence of his fingerprint on the heroin-containing envelope sufficient evidence of appellant’s awareness of the drugs. In Arant v. State, Fla.App.1st 1972, 256 So.2d 515, the defendant’s fingerprint was found at his girl friend’s house on a potato chip can which contained a marijuana plant. The district court reversed his conviction for possession. Referring to the fingerprint, the court said:

“The fingerprint proves quite conclusively that appellant touched the can. It tells us nothing about when. It could have been before the plant was in the can or it could have been afterwards. Obviously the trier of fact thought it probable that the print was made after the plant’s presence in the can was manifest. But guilt cannot rest on mere probabilities.” 256 So.2d at 516.

Here it was possible that appellant had handled and discarded the envelope before the heroin was placed inside. More than the fingerprint and his proximity to the drug were required to prove possession. Compare Taylor v. State, Fla.App.2d 1975, 319 So.2d 114 with Amato v. State, Fla.App.3d 1974, 296 So.2d 609.

Since we find that the evidence was insufficient, we need not consider appellant’s other contention.

The judgment and sentence are reversed and the appellant discharged.

McNULTY, C. J., and GRIMES, J., concur.


text:
    James R. KELLY, Sr., as Administrator of the Estate of James R. Kelly, Jr., Deceased, Appellant, v. James E. TRAXLER and Volkswagen Insurance Company, a corporation, Appellees.
    No. Y-469.
    District Court of Appeal of Florida, First District.
    April 19, 1976.
    Arthur T. Boone and Gordon H. Lee of Boone & Lee, Jacksonville, for appellant.

      A. Craig Cameron of Gosney, Haas, Cameron & Parsons, Daytona Beach, for appellees.
   PER CURIAM.

AFFIRMED. Florida East Cost Railway v. Lawler, 151 So.2d 852 (Fla.App.3d 1963); Gavin v. Headley, 272 So.2d 843 (Fla.App.3d, 1973).

RAWLS, Acting C. J., SMITH, J., and SWIGERT, WILLIAM T., Associate Judge, concur.


author: WALDEN, Chief Judge.

text:
    In re ESTATE of Anthony Benjamin RASO, Deceased.
    No. 75-1530.
    District Court of Appeal of Florida, Fourth District.
    May 14, 1976.
    Susan Lebow Weinberg, Fort Lauder-dale, for appellants-Madeline Dudek, individually and as the parent and natural guardian of Madelyn Raso, a minor child, and Madelyn Raso.
    Steven A. Schorr and James A. Rydzel, Cabler & Anderson, Fort Lauderdale, for appellee-Rachel Raso.
   WALDEN, Chief Judge.

The trial court denied appellant, Madeline Dudek’s, motion to vacate a default judgment and she appeals. We reverse.

Appellee, decedent’s wife, filed a Petition for Determination of Heirs, listing as a possible heir the illegitimate child of appellant. The petition was served on appellant but she did not timely respond. Appellee moved for and was granted a default. The court entered an order determining the heirs to be the legitimate children of appellee. Appellant filed a motion to vacate the default judgment. This motion should have been granted. Empire Electric Co. v. R. J. Hunt Construction Co., 264 So.2d 114 (4th DCA Fla.1972). Appellant properly alleged facts demonstrating excusable neglect. These facts included that she had been extremely ill and had to be hospitalized; that she is on welfare and lives in New Jersey; and that she wrote a letter to the court explaining her difficulties, Jasson D. Radding, Inc. v. Coulter, 138 So.2d 380 (2d DCA Fla.1962). The appellant also alleged a meritorious defense — decedent was the father of her child, see Clark v. Roberto’s, Inc., 320 So.2d 870 (4th DCA Fla.1975); Cowen v. Knott, 252 So.2d 400 (2d DCA Fla.1971).

Therefore, we hold the court abused its discretion in denying appellant’s motion to vacate default judgment as appellant properly alleged excusable neglect and a meritorious defense. The final judgment is vacated and the case is remanded for further proceedings.

REVERSED AND REMANDED.

CROSS, J., arid SCHWARTZ, ALAN R., Associate Judge, concur.


text:
    Timothy DAWSON, a minor, by and through Robert Dawson, his father and next friend, and Robert Dawson, Individually, Appellants, v. BLUE CROSS ASSOCIATION et al., Appellees.
    No. Z-122.
    District Court of Appeal of Florida, First District.
    April 19, 1976.
    Paul R. Stern of Stern, Bernardini & LaRue, Daytona Beach, for appellants.
    J. Compton French of Landis, Graham, French, Husfeld, Sherman & Ford, Day-tona Beach, S. LaRue Williams, Daytona Beach, for appellees.
   PER CURIAM.

AFFIRMED. Aetna Life Insurance Company v. Deckard, Tex.Civ.App., 488 S.W.2d 487.

RAWLS, Acting C. J., SMITH, J., and SWIGERT, WILLIAM T., Associate Judge, concur.


text:
    HILLSBOROUGH PRINTING AND LITHOGRAPHING COMPANY, a Florida Corporation, Appellant (Plaintiff), v. FLORIDA DEPARTMENT OF REVENUE et al., Appellees (Defendants).
    No. Y-338.
    District Court of Appeal of Florida, First District.
    April 22, 1976.
    Theodore C. Taub and Sharon E. Selk, of Gibbons, Tucker, McEwen, Smith, Cofer & Taub, Tampa, for appellant.
    Stephen E. Mitchell, Tallahassee, for appellees.
   BY THE COURT.

Upon considering the briefs, the record and oral argument, we find no reversible error.

Accordingly, the judgment is affirmed.

BOYER, C. J., and MILLS and SMITH, JJ., concur.


author: DOWNEY, Judge.

text:
    William P. PLANES, Appellant, v. HONEYWELL INFORMATION SYSTEMS, INC., Appellee.
    No. 75-1044.
    District Court of Appeal of Florida, Fourth District.
    May 7, 1976.
    M. Ross Shulmister, Fort Lauderdale, for appellant.
    David R. Wellens, Fort Lauderdale, for appellee.
   DOWNEY, Judge.

Appellee filed its amended complaint against appellant seeking to recover approximately $18,333 plus interest. Issue was joined by appellant’s answer and ap-pellee’s reply.

On August 22, 1974, an order was entered allowing appellant’s counsel to withdraw. The order directed that future pleadings be served upon appellant “at his business address, Suite 1800, One Biscayne Tower, Miami, Florida.” Thereafter, between October 30, 1974, and January 17, 1975, appellee filed a motion for summary judgment, interrogatories to appellant, and a motion to compel; and the court entered an order setting the cause for trial and an order granting the motion to compel, (which order directed appellant to answer the interrogatories within three days).

In February 1975, the court entered (1) an order granting appellee’s motion for summary judgment, and (2) final judgment for appellee. Also in February appellant filed motions to: (1) set aside order granting the motion for summary judgment, and (2) vacate the final judgment for appellee.

On April 21, 1975, appellant filed a motion to strike and vacate appellee’s motions, the court’s orders, and the final judgment, alleging that he received none of those motions or orders until January 22, 1975, at which time he received the order granting the motion to compel answers to interrogatories.

It appears conceded in the record that the pleadings and orders filed between October 30, 1974 and December 19, 1974, had not been sent to appellant at the address designated in the court’s order of August 22, 1974, and appellant states in his motion to vacate that he received none of them. Thus, under the circumstances reflected by the record the trial court erred in refusing to set aside the judgment and allow appellant to answer the interrogatories.

Accordingly, the judgment appealed from is reversed and the cause is remanded with directions to vacate the judgment and allow appellant a reasonable time to answer appellee’s interrogatories and for further proceedings thereafter.

REVERSED and REMANDED, with directions.

WALDEN, C. J., and MORROW, RUSSELL O., Associate Judge, concur.


author: PER CURIAM. '

text:
    BARNETT BANK OF WINTER PARK, etc., Appellant, v. David L. ALFORD and Donna Alford, Appellees.
    No. Z-179.
    District Court of Appeal of Florida, First District.
    Feb. 5, 1976.
    Rehearing Denied May 18, 1976.
    C. Brent McCaghren, of Winderweedle, Haines, Ward & Woodman, Winter Park, and Charles W. Abbott, of Maguire, Voor-his & Wells, Orlando, for appellant.
    Peter Keating, Daytona Beach, for ap-pellees.
   PER CURIAM. '

Affirmed. See Vann v. First National Bank in Little Rock, Fla.App. (3rd), 324 So.2d 94, opinion filed December 16, 1975.

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


author: PEARSON, Judge.

text:
    VEN-FUEL, Appellant, v. JACKSONVILLE ELECTRIC AUTHORITY, a Florida Corporation, et al., Appellees. JACKSONVILLE ELECTRIC AUTHORITY et al., Petitioners, v. VEN-FUEL, INC., Respondent.
    Nos. 75-543 and 75-678.
    District Court of Appeal of Florida, Third District.
    July 22, 1975.
    Rehearing Denied Sept. 5, 1975.

      Blackwell, Walker, Gray, Powers, Flick & Hoehl and James E. Tribble, Miami, Fulbright & Jaworski, for Ven-Fuel, Inc.
    Harry L. Shorstein and William Lee Allen, Arnold, Stratford & Booth, Jacksonville, for Jacksonville Electric Authority, and others.
    Before BARKDULL, C. J., PEARSON, J., and DREW, E. HARRIS (Ret.), Associate Judge.
   PEARSON, Judge.

The Jacksonville Electric Authority and certain individual defendants were sued by plaintiff Ven-Fuel, Inc. The suit was brought in the Eleventh Judicial Circuit. Discovery proceedings were begun by the plaintiff. Thereafter, upon a motion of defendant Jacksonville Electric Authority, the trial judge entered an order transferring the cause to the Circuit Court in Du-val County, Florida. This interlocutory appeal by Ven-Fuel, Inc., is from that order.

The order of transfer provided that the parties could proceed with the discovery already begun. We must presume that this provision was inserted in the order because the trial court was aware that the order transferring the cause would be appealed. The Jacksonville Electric Authority has brought a petition for certiorari to review that portion of the order allowing the continuation of discovery.

We have consolidated the appeal and the petition and have heard oral argument thereon. We first consider the appeal.

The sole basis presented to the trial court for the transfer to the Circuit Court in Duval County was the assertion by the Jacksonville Electric Company that it is a governmental entity entitled to be sued in its home county under the rule stated in Williams v. City of Lake City, Fla.1953, 62 So.2d 732; City of St. Petersburg v. Earle, Fla.App.1959, 109 So.2d 388; Amelia Island Mosquito Control District v. Tyson, Fla.App.1963, 150 So.2d 246; City of Bradenton v. Finley, Fla.App.1968, 208 So.2d 675; Southern Gulf Utilities v. Mayo, Fla.App.1969, 239 So.2d 146; Garland v. Railway Express Agency, Inc., Fla.App.1970, 237 So.2d 787; Ringling Bros.-Barnum & Bailey Combined Shows, Inc. v. State, Fla.App.1974, 295 So.2d 314, and cases cited therein.

The viability of the rule is not questioned on this appeal. However, Ven-Fuel, Inc., urges that the trial judge erred in finding from the facts presented that the Jacksonville Electric Authority is a government entity entitled to the benefits of the rule. It would be of little purpose for us to review all the facts revealed by the record which support the trial judge’s finding that the Jacksonville Electric Authority is a governmental entity entitled to the benefit of the venue rule cited. The most telling fact appears to us to be that the authority is subject to governmental control of its budget and that tax monies may, if necessary, be used in its operation. When the activity is governmentally supervised and the taxpayer is financially interested, the indication is strong that the activity is governmental. We, therefore, affirm the order appealed.

Turning next to the petition for certiora-ri, we find that the Authority, as petitioner, argues that once a trial judge determines that he must transfer a cause, he then has no jurisdiction to make any other order. In this regard, the Authority relies upon Richard Bertram & Co. v. Barrett, Fla.App.1963, 155 So.2d 409, and Spalding v. Von Zamft, Fla.App.1965, 180 So.2d 208, and authorities cited in these opinions.

In a recently decided case, the District Court of Appeal, Second District, has held that a court, by transferring the cause “lost jurisdiction of the parties and the subject matter of the cause.” Kern v. Kern, Fla.App. 1975, 309 So.2d 563. We must respectfully decline to follow that holding in this case because, in our view, jurisdiction of the parties and the cause cannot, under our system of law, remain in limbo from the time of the signing of the order of transfer to the effective assumption of jurisdiction by the transferee court. We, therefore, hold as to the subject of discovery begun prior to transfer, that the control of discovery remains with the first court until the file is received and jurisdiction assumed in the second court. See Swepson v. Call, Fla.1871, 13 Fla. 337.

It is clear that a trial judge may not at the same time transfer a case and rule upon any aspect of the merits of the cause. Nevertheless, a trial judge does not lose jurisdiction of a cause until that jurisdiction is effectively vested in another court. Therefore, his order as to such continuing and procedural matters as discovery is not without jurisdiction.

The order is affirmed and the petition is denied.


text:
    SENTRY INDEMNITY COMPANY, Appellant, v. ANGEL & SON, INC., a Florida Corporation, et al., Appellees.
    No. 75-1341.
    District Court of Appeal of Florida, Fourth District.
    May 7, 1976.

      R. Edward Cooley, of Graham, Markel & Scott, Winter Park, for appellant.
    No appearance for appellees.
   DOWNEY, Judge.

This interlocutory appeal involves the propriety of the trial court’s order transferring this cause from Orange County to Broward County.

Appellee Angel & Son, Inc., entered into a contract to construct a sidewalk for the City of Fort Lauderdale in Broward County, Florida. Pursuant to that contract Angel & Son, Inc., furnished a performance bond with appellant as surety. As a condition precedent to the issuance of the bond the corporate appellee and the individual appellees executed an agreement to indemnify appellant for any loss accruing to appellant by virtue of its acting as surety.

One of the subcontractors recovered a judgment against both appellant and the corporate appellee for labor and materials furnished on the construction project, and in due course appellant satisfied the judgment. This suit for indemnity was then instituted by appellant in Orange County. Appellees moved to transfer the case to Broward County, asserting that the construction contract was entered into in Bro-ward County, the construction project was in Broward County, and the defendant-ap-pellees were all residents of said county. Plaintiff-appellant, a foreign corporation, countered the motion by affidavit stating that the regional office for the plaintiff is located in Orlando, Orange County, Florida. The trial court granted the motion and ordered the cause transferred to Bro-ward County.

Essentially appellant is suing appel-lees for money owed as a result of the indemnity contract. The contract does not provide for the place of payment; therefore payment (if due) is to be made where the payee resides or has an established place of business. Baruch v. W. B. Haggerty, Inc., 137 Fla. 799, 188 So. 797 (1939); Saf-T-Clean, Inc. v. Martin-Marietta Corporation, Fla.1967, 197 So.2d 8.

Under the rule set forth in the foregoing cases appellant’s cause of action (if any) accrued in Orange County. Venue therefore lies in Orange County, and the court erred in transferring the cause to Broward County.

For the foregoing reasons, the order appealed from is reversed and the cause is remanded for further proceedings.

WALDEN, C. J., and CROSS, J., concur.


text:
    Joan MARTIN, Plaintiff-Appellant, v. BROWARD GENERAL MEDICAL CENTER et al., Defendants-Appellees.
    No. 75-1535.
    District Court of Appeal of Florida, Fourth District.
    May 7, 1976.

      George A. Kokus of Cohen & Kokus, Miami, for appellant.
    James G. Mahorner, Chief Counsel for Litigation, State Department of Health and Rehabilitative Services, Tallahassee, for appellees.
   TROWBRIDGE, C. PFEIFFER, Associate Judge.

Plaintiff, after undergoing numerous examinations by private physicians, voluntarily committed herself to South Florida State Hospital. Defendant, Dr. Edmee Linares, an employee of the State Hospital, diagnosed Plaintiff’s condition as a hysterical neurosis of the conversion type. Plaintiff was thereafter treated in all respects as a psychiatric patient during her commitment.

Upon her discharge, Plaintiff continued to suffer from weakness and paralysis. Ultimately it was ascertained that her problem was not of a psychiatric origin, but rather from a neurological disease. She thereupon brought the instant suit against several doctors and hospitals including Dr. Edmee Linares. Recovery was sought against Dr. Linares only to the extent of the doctor’s privately obtained liability coverage.

The trial court dismissed the complaint as to Dr. Linares and the insurance carrier upon a finding of governmental immunity and the case of Loucks v. Adair, 312 So.2d 531 (1st DCA Fla.1973).

Plaintiff appeals claiming that Fla.Stat. § 394.459 establishes the doctor’s liability for negligence. This claim was found invalid in Loucks, supra, and we concur in the reasoning of our sister court.

The second theory of recovery is based upon the insurance coverage obtained by Dr. Linares. However, no general law of Florida waives the sovereign immunity of the State (not sued here) or of its employees acting within the course and scope of their official duties. Accordingly, the insurance policy is irrelevant to the issues here.

Affirmed.

CROSS and MAGER, JJ., concur.


text:
    CITY OF TAMARAC, a Municipal Corporation, and Daniel Salvucci, Appellants, v. Emil KALAFUT and Evelyn Kalafut et al., Appellees.
    No. 75-2089.
    District Court of Appeal of Florida, Fourth District.
    May 7, 1976.

      James C. Brady, of Zealy & Brady, Fort Lauderdale, for appellants.
    Robert T. Clelland, Jr., Pompano Beach, for appellees.
   DOWNEY, Judge.

Appellants seek review of an order granting a temporary injunction prohibiting them from proceeding against appellees by the Unsafe Structures and Housing Appeals Board of the City of Tamarac.

We glean from the briefs that the complaint was unsworn. No evidence was adduced before the trial court, although counsel had witnesses available to testify. Finally, though a temporary injunction was issued, no bond was required of appellees, as provided in Rule 1.610, RCP.

Since the cause must be reversed it would appear appropriate on remand for the court to hold an evidentiary hearing on appellees’ application for temporary injunction, at which time the court can determine whether or not appellees have exhausted their administrative remedies so as to justify their resort to the courts. If the court determines that a temporary injunction should issue, then a bond should be required, unless appellees are excused therefrom by the provisions of Rule 1.610, RCP.

Accordingly, the order appealed from is reversed and the cause is remanded for further proceedings.

WALDEN, C. J., and MORROW, RUSSELL O., Associate Judge, concur.


text:
    T. R. WILLIAMS, Appellant (Plaintiff), v. UNITED STATES FIDELITY AND GUARANTY COMPANY and St. Paul Fire and Marine Insurance Company, Appellees (Defendants).
    No. Z-432.
    District Court of Appeal of Florida, First District.
    May 10, 1976.
    Angus W. Harriett of Harriett & Sproull, Palatha, for appellant.
    John I. Todd, Jr., Jacksonville, Joe C. Wilcox, Coral Gables, for appellees.
   BY THE COURT.

Upon considering the briefs, the record and oral arguments, we find no reversible error.

Accordingly, the judgment is affirmed.

RAWLS, Acting C. J., MILLS, J., and AGNER, ROYCE, Associate Judge, concur.


text:
    SUPREME LUMBER & MILLWORK COMPANY, a Florida Corporation, Appellant, v. Michael GLANTZ et al., Appellees.
    Nos. 75-850, 75-1004.
    District Court of Appeal of Florida, Fourth District.
    May 14, 1976.
    F. Kendall Slinkman, of Farish & Farish, West Palm Beach, for appellant.
    Dan B. Guernsey, of Welbaum, Zook, Jones & Williams, Miami, for appellees-National Indemnity Co. and Summit Ins. Co. of New York.
    Mark Hicks, of Blackwell, Walker, Gray, Powers, Flick & Hoehl, Miami, for appellee-Parliament Ins. Co.
   PER CURIAM.

Appellant-plaintiff, Supreme Lumber and Millwork Company, appeals a final judgment entered in favor of appellee-defend-ants, Summit Insurance Company of New York and National Indemnity Company, Case Number 75-850; and a final judgment entered in favor of appellee-defend-ant, Parliament Insurance Company, Case Number 75-1004, in an action on an open account to recover damages. We consolidate these plenary appeals for the purposes of disposition.

Upon review of the record on appeal and upon consideration of the briefs and oral argument of counsel for the respective parties, we are of the opinion that the trial court abused its discretion in dismissing with prejudice appellant’s complaint as to appellees, Summit Insurance Company of New York, National Indemnity Company and Parliament Insurance Company, without leave to file an amended complaint.

Accordingly, the final judgments herein appealed are reversed and the cause is remanded, with directions to grant appellant leave to file an amended complaint.

Reversed and remanded, with directions.

CROSS and MAGER, JJ., and KEOUGH, LAWRENCE E., Associate Judge, concur.


author: BOYER, Chief Judge.

text:
    STATE of Florida, Appellant, v. Elijah THOMAS, III, Appellee.
    No. AA-498.
    District Court of Appeal of Florida, First District.
    May 18, 1976.

      Robert L. Shevin, Atty. Gen., Donald K. Rudser, Asst. Atty. Gen., for appellant.
    Thomas A. Larkin, Jacksonville, for ap-pellee.
   BOYER, Chief Judge.

By this interlocutory appeal review is sought of an order of the trial judge granting appellee’s motion to suppress certain evidence. The State urges that the order should be reversed because of the failure of the trial judge to recite therein his findings and reasons for issuance of the order, citing State v. Hysell, Fla.App.2nd 1973, 281 So.2d 417. Although such procedure is certainly desirable it is not a prerequisite to the legality of an order of suppression. It is axiomatic that orders of trial courts reach an appellate court clothed with a presumption of correctness. With the exception of certain orders which are required by law to contain recitations of findings or reasons, if there is sufficient evidence in the record to sustain the order of the trial court the judge will be presumed to have properly based his order on that evidence.

Finding, as we do, that appellant has failed to demonstrate error in the manner alleged, this interlocutory appeal is, pursuant to Rule 4.2c FAR,

DISMISSED.

MILLS and McCORD, JJ., concur.


author: CROSS, Judge.

text:
    CITY OF FORT LAUDERDALE, a Municipal Corporation, and Calvin Howe, Director of Building and Zoning for the City of Fort Lauderdale, Appellants, v. GULF & EASTERN DEVELOPMENT CORPORATION, Appellee.
    No. 74-354.
    District Court of Appeal of Florida, Fourth District.
    May 14, 1976.

      W. W. Caldwell, Jr., and James A. Thomas, Fort Lauderdale, for appellants.
    Terrence J. Russell of Ruden, Barnett, McClosky, Schuster & Schmerer, Fort Lauderdale, for appellee.
   CROSS, Judge.

Appellant-defendants, City of Fort Laud-erdale, Florida, a municipal corporation, and Calvin Howe, Director of Building and Zoning for the City of Fort Lauder-dale, appeal a final judgment entered by the circuit court declaring Fort Lauderdale City Ordinance C-73-45 invalid and permanently enjoining the City of Fort Lauderdale from enforcing said ordinance. We reverse.

On March 27, 1973, pursuant to Section 47-32.5 Code of Ordinances of the City of Fort Lauderdale, Florida, various individuals owning real property in proximity to a tract of land described as Parcel D, Harbor Beach Extension, filed an application with the Fort Lauderdale Planning and Zoning Department for the rezoning of Parcel D from R-4/RM60 to R-3-A/RM25. Public hearing on the rezoning proposal was held before the Fort Lauderdale Planning and Zoning Board on April 18, 1973. After the hearing the Planning and Zoning Board entered its recommendation to the Fort Lauderdale City Commission that Parcel D be rezoned from R-4/RM60 to R-3-A/RM25.

On May 15, 1973 the Fort Lauderdale City Commission held a public hearing on Ordinance No. C-73-45; this ordinance by its terms provided for rezoning of Parcel D, Harbor Beach Extension, in conformity with the planning and zoning board’s recommendation. Appellee-plaintiff, Gulf and Eastern Development Corporation, which had on April 6, 1973 purchased property situated within Parcel D, appeared at the city commission hearing and objected to the fact that it had not been notified by the city of the rezoning proposal and the April 18th planning and zoning board hearing thereon. Notwithstanding plaintiff’s objection, the city commission passed upon first reading Ordinance No. C-73-45. Ordinance No. C-73-45 was subsequently enacted by the city commission on June 19, 1973 after second and third readings of the ordinance.

On May 18, 1973 the plaintiff filed a complaint in circuit court seeking (1) to temporarily and permanently enjoin appellant-defendant, City of Fort Lauderdale, from rezoning plaintiff’s property, and (2) to require the City of Fort Lauderdale and appellant-defendant, Calvin Howe, the Director of Building and Zoning for the City of Fort Lauderdale, to issue plaintiff a building permit for use of his property consistent with R-4/RM60 zoning. The trial court denied plaintiff’s application for a temporary injunction.

After Ordinance No. C-73-45 was enacted by the Fort Lauderdale City Commission on June 19, 1973, the plaintiff, upon stipulation of the parties, filed a supplement to its complaint seeking to have Ordinance No. C-73-45 declared invalid and to have the City of Fort Lauderdale enjoined from enforcing said ordinance. The cause came on for final hearing. The circuit court found that the plaintiff had not been notified by the city of the rezoning proposal and the April 18th planning and zoning board hearing thereon as required by Section 47-32.7, Fort Lauderdale Code of Ordinances. Therefore, the circuit court entered final judgment declaring Ordinance No. C-73-45 invalid and permanently enjoining the City of Fort Laud-erdale from enforcing said ordinance. It is from this final judgment that defendants appeal.

Defendants’ primary contention on appeal is that Ordinance No. C-73-45 is valid and effective notwithstanding any failure on the part of the city to notify plaintiff of the rezoning’ proposal and the April 18th planning and zoning board hearing thereon. We agree with that contention.

It is undisputed that under the Fort Lauderdale City Charter (Chapter 57-1322, Laws of Florida) the Planning and Zoning Board has the duty to make recommendations to the City Commission as to proposals to rezone lands within the city. However, the Board has no power to enact a rezoning ordinance or any other ordinance; only the City Commission has the power to enact ordinances, including rezoning ordinances.

In F. P. Plaza, Inc., v. Waite, 230 Ga. 161, 196 S.E.2d 141 (1973), cert. denied 414 U.S. 825, 94 S.Ct. 129, 38 L.Ed.2d 59, the Supreme Court of Georgia was presented with a situation nearly identical to the one facing, us.

It appears in that case that the Fulton County Commission rezoned certain property pursuant to the application of F. P. Plaza, Inc., and others. Waite and othér owners or occupants of the property attacked the rezoning as invalid on the ground that they did not have notice of the proceedings before the Atlanta-Fulton County Joint Planning Board. The trial court granted relief upon the ground that the notice provisions as to the Planning Board hearings were unconstitutional.

In reversing the trial court’s judgment the Supreme Court of Georgia noted that the Planning Board had authority only to make recommendations; it had no authority to rezone property. The county commission alone had the power of rezoning. For this reason defective notice or lack of notice of the hearing before the Planning Board was not violative of procedural due process or equal protection so long as the affected owners had an opportunity to be heard by the county commission at- any time before the commission reached its rezoning decision:

“It is also significant, especially in relation to procedural due process and equal protection, that the planning commission has no authority to rezone property; the extent of the planning commission’s power is to make recommendations to the governing authority; and the power to rezone property is vested totally and exclusively in the governing authority of the county under the law.
“We therefore hold that defective notice or lack of notice of the preliminary hearing before the planning commission, which cannot rezone property so as to deprive a party of his property rights, is not violative of procedural due process or equal protection, provided such party has due and legal notice of the hearing on the matter of rezoning before the county governing authority, the body which can rezone land and thereby deprive a party of his property rights. Procedural due process is afforded if an affected party has an opportunity to be heard at any time before the rezoning decision is reached by the county governing authority.” 196 S.E.2d at 144.

In the present case appellee had notice of the meetings of the City Commission and was present at both meetings during which the City Commission — the body which had the power to rezone the land involved here — considered the proposed rezoning and then adopted Zoning Ordinance C-73^-5. It is therefore clear that appellee had the opportunity to be heard before the City Commission made the rezoning decision in question, and appellee was therefore afforded procedural due process.

Accordingly, the final judgment entered by the circuit court is reversed and the cause is remanded with directions to enter final judgment in favor of the defendants.

Reversed and remanded with directions.

MAGER and DOWNEY, JJ„ concur.