text:
    In re the ESTATE of Westley W. SILVIAN, Deceased.
    No. 75-2233.
    District Court of Appeal of Florida, Fourth District.
    May 20, 1977.
    Rehearing Denied July 22, 1977.

      Wallis E. Schulle, Simpson, Anstead & Brodbeck, West Palm Beach, for appellant-respondent-Frances A. Silvian.
    Bernard Arbuse, Palm Beach, for appel-lee-petitioner-Leonore Silvian.
   PER CURIAM.

The salient facts developed at the trial of the case at bar reflect that Westley W. Silvian, an attorney practicing in West Palm Beach, Florida, at the time of his death on January 6, 1973, left a will executed July 10, 1970 bequeathing “the rest and residue and remainder” of his property in equal shares to his wife, the appellant, Frances A. Silvian, and his sister, appellee, Leonore Silvian. The appellant, who was later constituted as a co-administrator, together with the appellee, began developing friction, leading to the ultimate discharge of appellant as co-administratrix. The dispute was in large measure attributable to the disagreement of the ownership of certain property and assets which appellant claimed belonged to her because of joint ownership with her husband at the time of death.

One piece of such property was Engle-wood, a shopping center located in Sarasota County on the west coast of Florida. The property was initially purchased by Westley Silvian and the appellant on January 26, 1966 by way of warranty deed from Sande Rocke and Mary Rocke. The purchase was financed through borrowing and through utilization of appellant’s individual funds.

Subsequent loans enabled the Silvians to construct the various improvements now located on the property.

Prior to Westley Silvian’s death, a one-half interest in Englewood was sold to R. W. Bartrum, III.

The record reflects that the initial warranty deed to the parties was taken in the names of:

. Westley W. Silvian and Frances A. Silvian, husband and wife, . . .”

The trial judge ruled that the one-half interest in the property retained by the Silvians was not held by them as tenants by the entireties, but rather as tenants in common and accordingly awarded a one-quarter interest in the property of the estate.

Case law supports appellant’s position. The language in the deed through which the property was acquired (“. to Westley.W. Silvian and Frances A. Silvi-an, husband and wife . . . ”) was sufficient to create a tenancy by the entirety. In Matthews v. McCain, 125 Fla. 840, 170 So. 323 (1936), it was held that estate by the entireties can be created where a conveyance is made to husband and wife “without expressly specifying how they are to take.” This, of course, is in the absence of an express contrary intent or language indicating that some other estate was intended. The Florida Supreme Court reiterated this common law rule in Losey v. Losey, 221 So.2d 417 (Fla.1969). See also First National Bank of Leesburg v. Hector Supply Co., 254 So.2d 777 (Fla.1971).

In Roger Dean Chevrolet, Inc. v. Fischer, 217 So.2d 355 (Fla. 4th DCA 1969), the Fourth District discussed the elements of a tenancy by the entirety and stated that if the necessary common law unities (interest, possession, title and time) are present, “an estate by the entireties is created even if the marital relationship is not mentioned in the deed” when the conveyance is to husband and wife.

It would be error to interpret § 689.-15, Florida Statutes, as abolishing or modifying the common law tradition which recognizes the creation of a tenancy by the entirety by the conveyance of property to a husband and wife. A careful reading of the statute indicates that its purpose is to abolish any presumption of a right of sur-vivorship in a joint tenancy unless the instrument creating the estate expressly provides for such a right. The statute expressly excludes estates by entirety from its provision.

The next issue raised relates to stocks which at the time of Westley Silvian’s death on January 6, 1973, were jointly held by them as joint tenants with right of sur-vivorship:

400 shares, Pa. P. & L., common
1000 shares, St. Joseph L. & P. Co., common
1200 shares, Cascade Natural Gas Corp. pfd.
200 shares, Armco Steel Corp.

The foregoing stocks were reissued to the appellant on January 18, 1973 through the brokerage firm of Riter, Pyne, Kendall & Hollister.

The trial judge, without comment, declared the stock to belong to the Estate of Westley Silvian, to which we disagree.

Florida specifically recognizes ownership of personalty by the entireties as reflected from § 689.15, Florida Statutes.

Even if it had been established at trial that the stocks in question had been purchased with Westley Silvian’s own funds, the legal ramifications would remain completely unchanged, inasmuch as a presumption of a gift to the wife arises when title is taken by the spouses jointly which can only be overcome by a clear, positive and unequivocal showing that no gift was intended.

This principle is set forth in Witlin v. Witlin, 153 So.2d 70 (Fla. 3d DCA 1963), a case specifically involving the ownership of stocks. For precedential authority the court in Witlin relied upon Anderson v. Anderson, 153 So.2d 24 (Fla. 3d DCA 1963); Lauderdale v. Lauderdale, 96 So.2d 663 (Fla. 3d DCA 1957); Powell v. Metz, 55 So.2d 915 (Fla. 1952); and Strauss v. Strauss, 148 Fla. 23, 3 So.2d 727 (1941). See also Kollar v. Kollar, 155 Fla. 705, 21 So.2d 356 (1945).

Leone v. Putnam, 466 F.2d 512 (5th Cir. 1972), constitutes a recent expression by the Fifth Circuit Court of Appeals upon this precise matter, the case involving specific performance of a contract for sale of stock by the husband alone where the stock was jointly held, viz:

“Under Florida law, when stock is held in the joint names of both spouses, even if purchased with the husband’s own funds, an estate by the entireties is created unless there is an expressed intention to the contrary.”

In having the stocks issued in their names as joint tenants with the right of survivor-ship, the parties clearly created an estate with survivorship characteristics in accord-anee with the requirements of § 689.15, Florida Statutes.

Another issue presented was whether the account at Security Exchange Bank, which was opened on October 11,1972, with a fully executed card signed by both West-ley Silvian and the appellant created a right of survivorship.

The signature card reflects the account to have been opened in the names of:

“W. W. or F. A. Silvian, 223 Monterey Road, Palm Beach, Fla., as joint tenants with the right of survivorship and not as tenants in common.”

During the course of the marriage this account was used as a general depository for the handling of office, business and personal affairs of both Westley Silvian and appellant.

Proceeds from the sale of appellant’s individual securities and proceeds from other accounts belonging to appellant were channeled into this account, together with sums accruing from their investments.

On January 10, 1973, after the death of her husband, appellant withdrew $10,000 from this account.

The trial court concluded that because appellant had never drawn checks, or otherwise personally utilized the account, the funds on deposit belonged to Westley alone at the time of his death. The $10,000 withdrawn by appellant was therefore held to belong to the Estate.

Prior to the death of Westley W. Silvian, a savings account had been established by Westley Silvian and appellant in the' Fidelity Federal Savings & Loan Association of West Palm Beach.

The signature card executed by both individuals reads in part as follows:

“. . . Silvian, Frances A. and Silvi-an, Westley W. as joint tenants with the right of survivorship and not as tenants in common . . .”

Both signature cards stated that the accounts were opened by decedent and appellant as “joint tenants with the right of survivorship and not as tenants in common.”

In First National Bank of Leesburg v. Hector Supply Co., 254 So.2d 777 (Fla.1971), the court discussed the appropriate standard to be applied in personalty matters to determine the type of estate created. This standard requires the presence of the unity elements plus intent. However, the court went on to hold that where the instrument (signature card), clearly states that the tenancy is one held by the entireties and also gives the spouses individual rights to withdraw funds, it is not necessary to prove an intent to create such a tenancy. It is presumed to exist.

The next transaction involved in this appeal reflects that on December 22, 1972 the Fidelity Federal, at the request of Westley Silvian, drew a check on the Bank of Palm Beach & Trust Co., chargeable to the joint account, and made payable to the First National Bank of Riviera Beach, Florida. The check was intended to be used at a scheduled closing of property contracted to be purchased by the deceased and one Edward Gibson. It was never used for this purpose nor otherwise negotiated because of the intervening illness and subsequent death of Westley Silvian. Appellant therefore returned the check to the Fidelity Federal where it was endorsed “not used for the purpose intended” and placed in another account held by appellant and her brother, William Arkin. It was not redeposited to Account No. 26359 because this account had been closed out by appellant in the interim.

The court below ruled that the $3800 belonged to the Estate of Westley Silvian, to which we disagree.

Section 671.201(20), Florida Statutes, defines a “holder” as a “person who is in possession of ... an instrument . drawn, issued, or endorsed to him or to his order or to bearer in blank.”

Since the instrument was not made payable to the decedent or otherwise endorsed to him, he did not qualify as a “holder” under the express provisions of the code. Neither did the First National Bank of Riviera Beach become a “holder” because it never obtained possession of the instrument. The estate could therefore acquire no rights in and to the $3800 because the funds never lost their character as jointly held funds.

Pertinent commentary upon this circumstance is contained in Polotsky v. Artisans Savings Bank, 7 W. W. Harr. 152, 37 Del. 142, 188 A. 63 (1936). After differentiating a banker’s check from a certified check, the court had this to say:

“Where a check in the ordinary form is drawn, whether by an individual or a bank, and the same is not certified, there is no transfer or assignment of the funds from the maker’s account to the credit of the payee. The check remains nothing but an order revocable at any time before acceptance.”

The transaction here was of no different effect than if Westley had not become ill, but had simply changed his mind and decided not to consummate the transaction and not delivered the check to the payee. In either case, the funds remained on account with the financial institution and subject to the terms of the contract entered into upon creation of the account.

Also in dispute was the Westfran Shopping Center in Lake Park, Florida. The dispute here is over the ownership of the corporate stock.

The corporate minutes of the organizational meeting reflect that 24 shares were subscribed to by Westley Silvian, 24 shares by appellant and 2 shares by Edna Van Trepp. Edna Van Trepp resigned as a director and assigned her two shares to West-ley W. Silvian and appellant as joint tenants with the right of survivorship, this being done at the specific direction of West-ley Silvian.

A stock certificate for 50 shares prepared at this meeting indicated that West-ley Silvian and appellant were holders of 50 shares as joint tenants with the right of survivorship. This certificate, while being impressed with the corporate seal was not signed by an appropriate corporate officer. The corresponding certificate stub and a subsequent entry in the stock transfer ledger both reflect decedent and appellant to be owners of the entire 50 shares as joint tenants with the right of survivorship. These entries were made by Mrs. Edna Van Trepp at the specific direction of decedent.

Upon these facts, the trial court held that 25 shares of the stock belonged to the Estate of Westley W. Silvian.

As to the stock, the evidence reflects that the Silvian Estate was entitled to one-half of the 50 shares of stock of Westfran, Inc. Petitioner’s Exhibit 3 was the only minutes of the corporation, and signed by appellant. It showed that Westley W. Silvian was to receive 24 shares, appellant 24 shares, and Trepp 2 shares. No stock of the corporation was ever issued, and we find ample basis for the court’s holding: “It is the opinion of the Court that no stock certificates were ever issued,” and therefore affirmed.

Reversed in part; affirmed in part, and remanded for further proceedings consistent with this opinion.

MAGER, C. J., ALDERMAN, J., and STOKES, ROBERT G., Associate Judge, concur.


source: Caselaw Access Project

author: LETTS, Judge.

license: Public Domain

text:
    William John HARDING, Appellant, v. STATE of Florida, Appellee.
    No. 76-21.
    District Court of Appeal of Florida, Fourth District.
    May 20, 1977.

      Richard L. Jorandby, Public Defender, and Craig S. Barnard, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Harry M. Hipler, Asst. Atty. Gen., West Palm Beach, for appellee.
   LETTS, Judge.

The judgment of the trial court convicting the appellant of three separate counts of grand larceny on separate occasions, is affirmed; however, a general sentence of five years imprisonment of which two and one-half years is to be served in jail, is not harmless error. Darden v. State, 306 So.2d 581 (Fla. 2nd DCA 1975).

Since a special sentence on each count should be entered rather than a general sentence on all three counts, the cause is remanded to the trial court with instructions to enter sentence on each of the counts for which the appellant was convicted. If the trial court enters split sentences on each count to run concurrently, no sentence should exceed five years in accord-anee with the rule set forth in Holmes v. State, 4th DCA 1977, 343 So.2d 632; Heatherly v. State, 4th DCA 1977, 343 So.2d 54, and the total prison time should not exceed two and one-half years. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).

CROSS and DOWNEY, JJ., concur.

      . Darden v. State, supra; Benson v. United States, 332 F.2d 288 (5th Cir. 1964).


author: PER CURIAM.

text:
    Vernon L. HUMPHREY, Appellant, v. STATE of Florida, Appellee.
    No. 76-208.
    District Court of Appeal of Florida, Fourth District.
    May 20, 1977.
    Richard L. Jorandby, Public Defender, and Steven H. Parton, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard P. Zaretsky, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

The total sentence imposed on the defendant exceeded the lawful maximum by one and one-half years. The sentence is hereby modified to the extent that the sentence of probation is reduced from five years to three and one-half years. Holmes v. State, 343 So.2d 632 (Fla. 4th DCA 1977).

Affirmed as modified.

MAGER, C. J., and ALDERMAN and ANSTEAD, JJ., concur.


author: DAUKSCH, Judge.

text:
    AIRE-LOK CO., a Florida Corporation, Appellant, v. M & S CONSTRUCTION COMPANY, INC., a Virginia Corporation, Appellee.
    No. 76-902.
    District Court of Appeal of Florida, Fourth District.
    May 20, 1977.
    Milton E. Grusmark, Grusmark, Jaffee & Karten, P. A., Miami, for appellant.
    Curtis R. Mosley, Wolfe, Kirschenbaum, Caruso & Mosley, P. A., Merritt Island, for appellee.
   DAUKSCH, Judge.

This appeal concerns a Final Judgment entered in favor of the Plaintiff upon its complaint against the Defendant. We have considered the briefs and the argument of counsel and upon a full reading of the transcript find that the Judgment which was entered for the Plaintiff upon its complaint is proper and should be affirmed.

However, there was a counterclaim filed by the Defendant against the Plaintiff and an answer to that counterclaim which raised certain issues about which testimony was taken at trial. The trial court failed to enter Judgment in regard to the counterclaim therefore this matter is remanded for entry of a Judgment in regard to the counterclaim.

AFFIRMED in part and REMANDED.

CROSS and ALDERMAN, JJ., concur.


author: DAUKSCH, Judge. ALDERMAN, Judge,

text:
    Charlotte V. SHIREY, Appellant, v. INSURANCE COMPANY OF NORTH AMERICA, a corporation, and Walt Disney World Company, a corporation, Appellees.
    No. 76-1015.
    District Court of Appeal of Florida, Fourth District.
    May 20, 1977.
    John B. Cechman, Goldberg, Rubinstein & Buckley, Fort Myers, for appellant.
    John O’Donnell and John H. Ward of Helliwell, Melrose & DeWolf, Orlando, for appellees.
   DAUKSCH, Judge.

This is an appeal from a Final Judgment granting judgment n. o. v. We have carefully reviewed the evidence presented to the jury and have determined as a matter of law there was sufficient evidence for the jury to have legally found for the Plaintiff, as it did. While we may agree the jury should have found for the Defendant we find the jury could have found for the Plaintiff and therefore reverse the Judgment of the trial court and remand for reinstatement of the jury verdict and judgment thereon. Heyman v. Weinstein, 333 So.2d 548 (Fla.3d DCA 1976).

CROSS, J., concurs.

ALDERMAN, J., dissents, with opinion.

ALDERMAN, Judge,

dissenting.

The trial judge in granting defendants’ motion for judgment n. o. v. concluded that the plaintiff had failed to adduce competent substantial evidence to support the allegations of her complaint. He stated that there was no evidence whatever adduced that could in law support a verdict for the plaintiff. I agree and would affirm.


text:
    Theodis MITCHELL, Appellant, v. STATE of Florida, Appellee.
    No. 76-1031.
    District Court of Appeal of Florida, Fourth District.
    May 20, 1977.
    Fred Haddad, Sandstrom & Hodge, Fort Lauderdale, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. See MacKenzie v. Hillsborough County, 288 So.2d 200 (Fla.1973).

CROSS, ALDERMAN, and ANSTEAD, JJ., concur.


text:
    Hillard Jerry LONDON, Appellant, v. STATE of Florida, Appellee.
    No. 76-1055.
    District Court of Appeal of Florida, Fourth District.
    May 20, 1977.
    Richard L. Jorandby, Public Defender, Frank B. Kessler and Tatjana Ostapoff, Asst. Public Defenders, and Jerry Schwarz, Legal Intern, West Palm Beach, for appellant.

      Robert L. Shevin, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Defendant seeks review of his conviction for unlawfully bringing cannabis upon the grounds of a penal institution in violation of Section 944.47, Florida Statutes (1975). The issue is whether the defendant was placed in double jeopardy because of his previous conviction for possession of the same cannabis in violation of Section 893.13, Florida Statutes (1975).

In determining whether a plea of double jeopardy can be sustained the test is whether the second prosecution places the defendant twice in jeopardy for the same offense, and not whether he has been tried before upon the same acts, circumstances or situation, the facts of which may sustain a conviction for a separate offense. State v. Bowden, 154 Fla. 511, 18 So.2d 478 (1944). To constitute double jeopardy, it is not enough that the second prosecution arises out of the same facts as the first, but the second prosecution must also be for the same offense. State v. Shaw, 219 So.2d 49 (Fla.2d DCA 1969). However, when a defendant is placed in jeopardy for a lesser degree of an offense and is thereafter charged with a higher degree of the same offense, he has been placed in double jeopardy and the subsequent prosecution is barred. Southworth v. State, 98 Fla. 1184, 125 So. 345 (1929); State ex rel. Landis v. Lewis, 118 Fla. 910, 160 So. 485 (1935); Greene v. City of Gulfport, 103 So.2d 115 (Fla.1958).

The defendant contends that possession of marijuana is a lesser included offense or lesser degree of the offense of bringing cannabis upon the grounds of a penal institution and therefore he had been placed in double jeopardy. We reject this contention and hold that each is a separate offense. Defendant’s prior conviction under Section 893.13 does not bar a subsequent prosecution under Section 944.47 based upon the same facts. Compare, State v. Bowden, supra, State v. Shaw, supra, and State v. Stiefel, 256 So.2d 581 (Fla.2d DCA 1972), State v. Heisterman, 343 So.2d 1272 (Fla.1977).

AFFIRMED.

DOWNEY and ALDERMAN, JJ., and GREEN, OLIVER L., Associate Judge, concur.


text:
    EMPLOYERS INSURANCE OF WAUSAU, Appellant, v. Ray Nelson MILLER and Ruth Arline Miller, Appellees.
    No. 76-1209.
    District Court of Appeal of Florida, Fourth District.
    May 20, 1977.
    Edna L. Caruso, Montgomery, Lytal, Re-iter, Denney & Searcy, West Palm Beach, for appellant.
    Hubert R. Lindsey, Farish & Farish, West Palm Beach, for appellees.
   PER CURIAM.

Reversed and remanded for further proceedings consistent with National Ben Franklin Insurance Co. v. Hall, 340 So.2d 1269 (Fla.4th DCA 1976).

REVERSED and REMANDED.

DOWNEY and ALDERMAN, JJ., and GREEN, OLIVER L., Associate Judge, concur.


author: ANSTEAD, Judge.

text:
    Edward T. CORACK, Appellant, v. TRAVELERS INSURANCE COMPANY, Appellee.
    No. 76-1439.
    District Court of Appeal of Florida, Fourth District.
    May 20, 1977.
    Frank Henry Molica, Merritt Island, for appellant.
    Barbara Kane, of Smalbein, Eubank, Johnson, Rosier & Bussey, P.A., Rockledge, for appellee.
   ANSTEAD, Judge.

The appellant, Edward T. Corack, is appealing from an adverse jury verdict claiming error by the trial court in denying pretrial discovery of surveillance films used as evidence by the appellee, Travelers Insurance Company. We find prejudicial error and reverse.

Corack filed suit against Travelers claiming benefits under a disability insurance policy. Prior to trial, a pretrial order was entered requiring the disclosure of all exhibits to be used at trial. Travelers listed 150 feet of surveillance films of Corack. Upon motion the trial court overruled an objection by Travelers that the film was work product and ordered the films produced for Corack’s counsel to inspect. Travelers then claimed the films did not really exist and none were produced.

Thereafter, the trial was continued and another judge assigned to the case. Both parties filed supplements to their original lists of exhibits but surveillance film was not listed again by Travelers. Approximately one week before trial Travelers’ counsel notified Corack’s counsel that he now had surveillance film which he intended to use at trial. Corack filed a motion seeking the production of said film before trial but the trial court denied the motion. Corack then made an oral motion in limine before the start of the trial seeking to exclude the film because it had not been previously disclosed on a pretrial list or produced for inspection. The trial court denied the motion and stated:

“Well, you see the Defendant has a little advantage there because he is entitled to impeach the credibility of witnesses and that is not substantive evidence, but he is entitled to rebut when it comes up in the trial depending on how the witness testified, either lay a predicate or impeaching material or not.”

Subsequently, the film was admitted into evidence over Corack’s objection, the trial court finding “that they meet the test of being a rebuttal not simply evidence which would have been found at some prior time.” The film and the private investigator who took it were the chief evidence presented and relied on by Travelers. The jury returned a verdict for Travelers.

At a hearing on a motion for new trial the trial judge observed that he probably would have granted a motion for continuance if Corack had asked since there was no question but that the film constituted surprise and was devastating to Corack’s case. The motion for new trial was denied.

We find that the trial court erred in failing to order the pretrial production of the surveillance film and that the error was prejudicial. We further find that Corack is not estopped to claim error by his failure to move for a continuance since he had already been denied pretrial discovery of the films on the basis that the films were “rebuttal” or “impeachment” evidence. A continuance would be of no avail if the films were not subject to pretrial discovery. These rulings by the trial court were contrary to this court’s decision in Spencer v. Beverly, 307 So.2d 461 (Fla. 4th DCA 1975) which ruled that the contents of surveillance films were subject to pretrial discovery. Judge Downey, in a special concurring opinion, set out the reasoning behind the ruling:

Much confusion exists as a result of the attempt to differentiate between substantive evidence and impeachment evidence. For example, here the movies are described by petitioner as impeachment evidence and therefore not subject to discovery. However, if they are at all effective will they not also be substantive evidence going directly to the petitioners’ injuries and damages? Thus, it seems to me it is time to articulate a rule everyone can understand and use as a guide, namely: if a party possesses material he expects to use as evidence at trial, that material is subject to discovery. Cf. Hughes v. Groves, 47 F.R.D. 52, 56 (W.D.Mo.1969). Of course, the converse of that is not necessarily true. If a party possesses matter that is relevant or material to the case but does not intend to use it at trial, it may or may not be the subject of discovery, depending upon whether it is privileged as work product.
The discovery rules were enacted to eliminate surprise, to encourage settlement, and to assist in arriving at the truth. Surf Drugs, Inc. v. Vermette, supra. If that be the acknowledged purpose of those particular rules, then any evidence to be used at trial should be exhibited upon proper motion. The weight of authority is that photographs and movies are not considered work product and are discoverable. Hughes v. Groves, supra; 4 Moore’s Federal Practice § 26.63; Martin v. Long Island Railroad Company, 63 F.R.D. 53 (E.D.N.Y.1974). In the Martin case the court reviewed some of the many cases going both ways on the subject. It found the weight of authority held that surveillance movies are subject to discovery if they are to be used at the trial for any purpose. This is the thrust also of the trial judge’s holding in this case.

Corack was entitled to the production of the films and was denied that right although a previous trial judge had ordered the production of the same type film. The prejudicial effect of the films is best established by the trial court’s comments at the hearing on the motion for new trial.

Accordingly, it is ordered that the final judgment is hereby reversed, and this cause is remanded for a new trial.

CROSS and DAUKSCH, JJ., concur.

      . Also see Reynolds v. Hofmann, 305 So.2d 294 (Fla.3d DCA 1974).


text:
    CITY OF LAUDERDALE LAKES et al., Appellants, v. FRATERNAL ORDER OF POLICE, LODGE # 100, et al., Appellees.
    No. 76-2118.
    District Court of Appeal of Florida, Fourth District.
    May 20, 1977.

      James C. Brady, Deutsch & Brady, Mar-gate, for appellants.
    Todd L. Smith, Michael G. Widoff, P.A., Fort Lauderdale, for appellees.
   PER CURIAM.

Upon consideration of the record on appeal and briefs of the respective parties, we determine the trial court erred in entering a temporary injunction as neither the complaint nor the evidence adduced in support thereof demonstrate facts tending to show irreparable harm of such a nature that it cannot be redressed in a court of law. State of Florida, Department of Health and Rehabilitative Services v. Artis, Fla.App., 345 So.2d 1109, Opinion filed April 7, 1977.

Accordingly, the order granting a temporary injunction is vacated and set aside, and the cause remanded for further proceedings.

Reversed and remanded.

MAGER, C. J., and CROSS and ALDERMAN, JJ., concur.


author: ALDERMAN, Judge.

text:
    REGAL WOOD PRODUCTS, INC., Appellant, v. FIRST WISCONSIN NATIONAL BANK OF MILWAUKEE, and Vistana, Inc., etc., et al., Appellees.
    No. 76-2475.
    District Court of Appeal of Florida, Fourth District.
    May 20, 1977.

      Peter H. Leavy, of Myers, Kaplan, Levin-son & Kenin, Miami, for appellant.
    R. L. Russell, of van den Berg, Gay & Burke, Orlando, for appellees Tuttle/White Constructors, Inc., and Federal Ins. Co.
   ALDERMAN, Judge.

This is a mechanics’ lien case in which a subcontractor appeals an order dismissing with prejudice its action against a general contractor and its surety. The subcontractor’s action on a Section 713.24, Florida Statutes (1975), Transfer bond was filed as part of an amended cross-claim two years after the subcontractor’s claim of lien was recorded. This was the first action by the subcontractor to enforce its claim of lien, although it had, within one year of recording its claim of lien, filed its original cross-claim seeking a money judgment against the general contractor for the amount of its claim. The determinative issue is whether the amended cross-claim, under Fla.R.Civ.P. 1.190 , relates back to the filing of the earlier cross-claim so as to satisfy the time requirement of Sections 713.21(3), 713.-22(1), 713.24(4), Florida Statutes (1975). We hold that it does not and affirm.

In this ease the subcontractor never filed an action to enforce its claim of lien against the owner. More than fifteen months after the subcontractor recorded its claim of lien, the general contractor caused the claim of lien to be transferred to a bond pursuant to Section 713.24, Florida Statutes (1975). Nine months later the subcontractor filed an amended cross-claim and third party complaint seeking to enforce its claim of lien against the bond.

The Mechanics’ Lien statute created for subcontractors a new right of action that did not exist in the common law, and expressly provided that no mechanics’ lien shall continue for a longer period than one year after the claim of lien has been recorded unless within that time an action to enforce the lien is commenced. Section 713.22(1). This is not like an ordinary statute of limitation affecting merely the remedy, but it enters into and becomes a part of the right of action itself, and if allowed to elapse without the institution of the action, such right of action becomes extinguished and is gone forever. Compare Fowler v. Matheny, 184 So.2d 676 (Fla. 4th DC A 1966). The subcontractor, having failed to bring an action to enforce its lien within one year after the claim of lien was recorded, no longer has a right of action on its claim of lien.

The subsequent Section 713.24 transfer bond provided by the general contractor does not change the situation. The condition of this bond was to “ . . . pay any judgment or decree which may be rendered for the satisfaction of the lien for which said claim of lien was recorded . . . This condition is not an assumption of a new and additional liability on the part of the general contractor and its surety. They agreed only to pay any judgment or decree which may be rendered for the satisfaction of the lien. There could be no such judgment in this case because as a matter of law the lien no longer existed. The Section 713.24 transfer bond did not give the lien claimant any additional rights; it simply created an alternate fund from which the claim of lien could be satisfied, if in fact it was a valid lien. Resnick Developers South, Inc. v. Clerici, Inc., 340 So.2d 1194 (Fla. 4th DCA 1976).

There is no way that the subcontractor can now foreclose its claim of lien against the owner, and since the liability of the general contractor and its surety under the Section 713.24 transfer bond is no greater than that of the owner for whose benefit the bond is provided, we conclude that the claim of lien cannot be resurrected by the application of Fla.R.Civ.P. 1.190(c).

AFFIRMED.

CROSS and DAUKSCH, JJ., concur.

      . Fla.R.Civ.P. 1.190(c) provides:
      When the claim or defense asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading, the amendment shall relate back to the date of the original pleading.

      . Section 713.21, Florida Statutes (1975), provides:
      A lien properly perfected under this chapter may be discharged by any of the following methods:
      (3) By failure to begin an action to enforce the lien within the time prescribed in this part I.

      . Section 713.22(1), Florida Statutes (1975), provides:
      No lien provided by part I of this chapter shall continue for a longer period than 1 year after the claim of lien has been recorded unless within that time an action to enforce the lien is commenced in a court of competent jurisdiction.

      .Section 713.24(4), Florida Statutes (1975), provides:
      If no proceeding to enforce a transferred lien shall be commenced within the time specified in s. 713.22 or if it appears that the transferred lien has been satisfied of record, the clerk shall return said security upon request of the person depositing or filing the same, or the insurer.


text:
    Robert C. SCHWEBKE, Appellant, v. Aveline C. SCHWEBKE, Appellee.
    Nos. 76-709, 76-710 and 76-937.
    District Court of Appeal of Florida, Third District.
    May 24, 1977.
    Rehearing Denied July 13, 1977.

      Rosenberg, Rosenberg, Reisman & Glass, Miami, for appellant.
    Miller & Podell, Miami Beach, for appel-lee.
    Before BARKDULL, HAVERFIELD and HUBBART, JJ.
   PER CURIAM.

In these consolidated appeals defendant, Robert Schwebke, former husband of the plaintiff, Aveline Schwebke, seeks review of an order denying his exceptions to the general master’s report and two orders ratifying the general master’s reports awarding Aveline $138.50 weekly alimony and $4,000 as reasonable attorneys’ fees in this contempt action.

In March 1962 a final divorce decree was entered between Aveline and Robert Schwebke incorporating a separation and property settlement agreement between the parties pursuant to which Robert deeded his interest in the marital residence to Aveline who then assumed responsibility for the mortgage payments. Robert further agreed to pay Aveline $175 per week alimony and at such time as the mortgage on the marital residence has been paid in full, the weekly alimony would be reduced to $100. Robert paid Aveline the $175 weekly alimony through July 1975; however, at the end of July he voluntarily paid off the mortgage, obtained a satisfaction and commencing August 1 tendered $100 per week alimony to Aveline who refused to accept. Ave-line then filed the instant motion for order adjudging Robert in contempt of court and to enforce the settlement agreement on the ground that since the mortgage would have been fully liquidated on April 1, 1982 as a result of the $146 monthly payments, Robert’s obligation to pay $175 per week alimony was definite in duration and for a determinable amount. Aveline also requested a judgment for the arrearages and attorneys’ fees. The trial judge referred the contempt issue to a general master who, after hearing argument of counsel, filed his report recommending that Robert be required to pay the $175 weekly alimony until the maturity date of the mortgage (March 1,1982). He further recommended that Robert be credited with the amount of his prepayment of the mortgage (i.e. a credit of $36.50 a week). The trial judge approved the master’s recommendation and ordered Robert to pay Aveline $138.50 per week alimony. Robert filed exceptions to the report which after a hearing were denied by order of March 19, 1976. The issues of attorneys’ fees and court costs were also referred to the general master who recommended that Aveline be awarded court costs and $4,000 as reasonable attorneys’ fees. By order of April 3, 1976 the trial judge ratified and approved this recommendation. We reverse.

First, a separation and/or property settlement agreement like any other agreement must be given a realistic interpretation based on its plain everyday meaning as conveyed by its terms unless its context unmistakably shows that the parties intended that it be given some peculiar interpretation not readily apparent on its face. Bergman v. Bergman, 145 Fla. 10, 199 So. 920 (1940). The agreement in this case clearly provides that upon the subject mortgage being paid in full, the weekly payments shall be reduced to $100. Robert paid the mortgage in full on July 28, 1975 and obtained a satisfaction from the mortgagee. Therefore, the weekly payments automatically were reduced to $100 per week. Cf. Gibson v. Gibson, 249 So.2d 446 (Fla. 1st DCA 1971).

Second, the issue involved was that of contempt which was referred by the trial judge to the general master. The general master correctly did not find Robert to be in contempt but did, in effect, modify the settlement agreement in his report by recommending that Robert pay $138.50 weekly alimony to Aveline. This recommendation and the trial judge’s order ratifying it were erroneous as Aveline did not request modification and the order of referral did not include the issue of modification. See Smithwick v. Smithwick, 343 So.2d 945 (3d DCA 1977). Accordingly, the order approving the master’s report and requiring Robert to pay $138.50 weekly alimony is reversed.

We also must reverse the order approving the general master’s report that Aveline be awarded court costs and $4,000 in reasonable attorneys’ fees because the master made no findings as to Aveline’s needs or Robert’s financial ability. See Darcy v. Darcy, 285 So.2d 59 (Fla. 4th DCA 1973); Mertz v. Mertz, 287 So.2d 691 (Fla. 2d DCA 1973). We, therefore, remand the cause to the trial court with directions to hold a new hearing on the issue of attorneys’ fees.

Affirmed in part, reversed in part and remanded with directions.


text:
    SANFISKET, INC., a Florida Corporation, trading and doing business as Sanitary Fish Market, Appellant, v. ATLANTIC COLD STORAGE CORPORATION, a Florida Corporation, Appellee.
    No. 76-724.
    District Court of Appeal of Florida, Third District.
    May 24, 1977.
    Rehearing Denied July 20, 1977.

      Dubbin, Schiff, Berkman & Dubbin and Jeffrey D. Rubinstein, Miami, for appellant.
    Jepeway, Gassen & Jepeway, Miami, for appellee.
    Before BARKDULL, HAVERFIELD and HUBBART, JJ.
   PER CURIAM.

Plaintiff, Sanfisket, Inc., appeals a judgment in its favor for $1,250 as computed under the terms of the warehouse receipt limiting the liability of defendant warehouseman for non-delivery of goods.

Atlantic Cold Storage Corporation stored 50 cases of frozen shrimp weighing 2,500 pounds for the account of Bill West Company. Sometime in May 1973 Sanfisket, Inc. purchased this shrimp from Bill West Company via a stock transfer for $5,500. Thereafter, on May 30, Atlantic issued to Sanfisket a non-negotiable warehouse receipt evidencing the shrimp transfer. In November Sanfisket demanded delivery; Atlantic was unable to locate the shrimp in its freezer, and notified Sanfisket of this fact. The president of Sanfisket alleged that at this point one of the principal officers of Atlantic orally advised him to replace the shrimp and that Atlantic would reimburse Sanfisket for the cost. Sanfisket purchased 2,500 pounds of shrimp for $8,000 and sent the invoice to Atlantic. Atlantic then tendered to Sanfisket a check for $1,175 representing Atlantic’s limit of liability of 50 cents per pound under the terms of the warehouse receipt less $75 for the unpaid storage charges from May — November, 1973. Sanfisket refused to accept the check and filed the instant action for conversion, breach of contract and negligence against Atlantic for non-delivery of the shrimp, and asked for $8,000 in damages. Atlantic counterclaimed for storage charges. After a non-jury trial, the judge entered final judgment in favor of Sanfisket for $1,250 based upon the following:

“1. Plaintiff purchased fifty (50) cases of shrimp (2,500 lbs.) which were stored with the Defendant corporation.
“2. The Plaintiff received a warehouse invoice (Plaintiff’s exhibit # 1). At no time did the Plaintiff seek an inventory of the goods he purchased, nor did he ask to increase the liability of the Defendant, pursuant to the warehouse receipt.
“3. The Plaintiff failed to sustain his burden of showing a subsequent oral agreement for payment by the Defendant to the Plaintiff for replacement of the goods. The Plaintiff did not offer proof of an offer, acceptance or consideration.
“4. The evidence does not support the contention that the Defendant converted the goods to its own use.
“5. Defendant did not sustain its burden as to storage charges due to the Defendant from the Plaintiff.
“6. The Court finds legally and factually that the warehouse receipt sufficiently notifies the Plaintiff of its limit of liability.”

Sanfisket basically argues that the trial court erred in finding the evidence did not constitute a conversion by warehouseman, Atlantic Cold Storage.

In order for Sanfisket to prove a conversion upon Atlantic’s failure to deliver the shrimp upon demand, Sanfisket must show that Atlantic had the shrimp at the time of the demand and was able to comply therewith. See D’Aloisio v. Morton’s, Inc., 342 Mass. 231, 172 N.E.2d 819 (1961). The record reflects that Atlantic had possession of the shrimp at the time of the issuance of the warehouse receipt on May 30 and when Sanfisket demanded the shrimp in November, Atlantic was unable to find it. None of the witnesses could explain the shrimp’s disappearance and to date the disappear-anee remains unexplained. This evidence only permits the finding of negligence on the part of Atlantic, not a conversion. Cf. Marine Office—Appleton & Cox Corp. v. Aqua Dynamics, Inc., 295 So.2d 370 (Fla.3d DCA 1974); Bean v. Security Fur Storage Warehouse, 344 Mass. 674, 184 N.E.2d 64 (1962). Atlantic admits that it was negligent. Thus, this point of appellant lacks merit.

Sanfisket also contends the trial court erred in failing to find that the terms of the warehouse receipt were insufficient to limit defendant’s liability because the language limiting liability was not conspicuous and Sanfisket was not notified thereof. We cannot agree.

Section 677.7-204(2), Florida Statutes (1973) nowhere provides that the clause or language limiting liability in a warehouse receipt in case of loss must be conspicuous. Considering the subject receipt contained a limit of liability clause (50 cents per pound) and Sanfisket did not seek an inventory of the shrimp or an increase in Atlantic’s liability pursuant to the terms of the receipt, we conclude the trial judge properly applied the 50 cents per pound limit of liability. See World Products, Inc. v. Central Freight Service, Inc., 222 F.Supp. 849 (D.C.N.J.1963).

On Sanfisket’s final point on appeal, we find no reversible error.

Affirmed.

      . “(2) Damages may be limited by a term in the warehouse receipt or storage agreement limiting the amount of liability in case of loss or damage, and setting forth a specific liability per article or item, or value per unit of weight, beyond which the warehouseman shall not be liable; provided, however, that such liability may on written request of the bailor at the time of signing such storage agreement or within a reasonable time after receipt of the warehouse receipt be increased on part or all of the goods thereunder, in which event increased rates may be charged based on such increased valuation, but that no such increase shall be permitted contrary to a lawful limitation of liability contained in the warehouseman’s tariff, if any. No such limitation is effective with respect to the warehouseman’s liability for conversion to his own use.”


text:
    BELLA ISLA CONSTRUCTION CORPORATION, a Puerto Rico Corporation, Appellant, v. TRUST MORTGAGE CORPORATION, a Puerto Rico Corporation, and First Chicago Corporation, a Delaware Corporation, Appellees.
    No. 76-873.
    District Court of Appeal of Florida, Third District.
    May 24, 1977.
    Rehearing Denied July 27, 1977.

      Turner, Hendrick, Guilford, Goldstein & McDonald and S. Alan Stanley, Coral Gables, for appellant.
    Mahoney, Hadlow & Adams and John K. Aurell, Mershon, Sawyer, Johnston, Dunwo-dy & Cole and H. Michael Madsen, Miami, for appellees.
    Before HAVERFIELD and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

In the action filed by Bella Isla Construction Corporation against Trust Mortgage Corporation and First Chicago Corporation, the plaintiff sought a judgment declaring a certain loan, made to it by Trust Mortgage Corporation, a Puerto Rico corporation, to be usurious under Florida law, and that the making of the loan in Puerto Rico was a device to evade the Florida usury law; and the complaint sought affirmative relief predicated thereon. On motions of the defendants to dismiss, an order was entered dismissing the cause with prejudice. The plaintiff appealed.

Appellant argues the court erred in holding the complaint failed to state a cause of action, and appellant assigned as error and argues the court erred in dismissing the cause with prejudice and in not allowing plaintiff to further amend. Appellant also contends to be error the holding (not stated in the dismissal order, but which would appear to be inherent therein) that the law of Puerto Rico (under which the loan would not be usurious) is controlling on the obligation, and that the loan as made did not constitute a contrivance or device to evade the Florida usury law. The order did not state the ground or grounds upon which the trial court based the dismissal with prejudice.

Appellees contend the dismissal with prejudice was correct because the complaint showed the loan was made, and was to be repaid in Puerto Rico, between corporations resident there, and recited choice of law of Puerto Rico, and therefore is controlled by the law of that jurisdiction, and because the facts alleged were sufficient, as a matter of law, to refute the claim alleged by the plaintiff that the Puerto Rican loan was a contrivance or device to evade the Florida usury law.

The plaintiff corporation was the borrower. The defendant Trust Mortgage Corporation, herein referred to as TMC, was the lender. The defendant First Chicago Corporation, a Delaware corporation, is the lender’s pledgee-assignee of the obligation and the security therefor, and was alleged to have taken such assignment with knowledge of the alleged infirmity.

It was alleged that Trust Chicago Corporation had extended credit of $5,000,000.00 to TMC for use by the latter in making loans secured by Florida property; and that such money was used in making the loan to plaintiff.

Summarized, the transaction alleged was the following. TMC is a corporation organized under the law of Puerto Rico, and has its principal office and place of business in Puerto Rico. It maintained a business office in Miami, Florida. An investor, Louis F. de la Cruz, in Miami, made arrangements to purchase a tract of land located in Dade County, Florida, for $1,250,000.00. Before making the purchase de la Cruz and TMC, in Miami, arranged for the loan to be made by TMC, for use in part payment for the land and for construction of improvements planned therefor. Prior to closing the sale it was required by TMC that de la Cruz should form a Puerto Rican corporation to which the title would be conveyed, and to which corporation TMC would make the loan, in the amount of $1,527,000.00. By a representative of TMC in Miami, de la Cruz was informed it would be necessary for him to proceed to Puerto Rico, at the expense of TMC, to effectuate the formation of a corporation in Puerto Rico, to which the loan would be made there. The documents for incorporation of the plaintiff corporation were prepared in Puerto Rico by attorneys of TMC, at the expense of TMC. On a one day trip to Puerto Rico, de la Cruz there signed the documents necessary in the formation of the plaintiff corporation, of which he became president and sole stockholder. At that time a promissory note evidencing the $1,527,000.00 loan was made by the newly formed plaintiff corporation to TMC. The note provided that payment thereof was to be made in Puerto Rico, and specified that the law of Puerto Rico would apply thereto, except that Florida law would apply to any needed foreclosure in Florida of mortgaged property to TMC as security for the loan. The note called for payment of interest at the rate of 15% per annum. However there were some additional requirements, including payment by the borrower of a $200,000.00 bonus whereby the interest charged exceeded 15% per annum. To comply with the bonus request plaintiff gave TMC a note for said sum, secured by a second mortgage on the property. As thus made the loan was not usurious under the law of Puerto Rico. On the same date the parties entered into a 15-page construction loan agreement in Puerto Rico. After formation of the plaintiff corporation and execution of the loan note and the construction loan agreement, a closing of the de la Cruz land purchase was held in the Miami office of TMC (at which de la Cruz was present and where he first met the seller) and thereupon title to the property upon which the improvement was to be made was taken in the name of the plaintiff corporation, which then gave the seller a purchase money mortgage of $800,000.00.

The complaint alleged the transaction constituted a contrivance or device to evade the Florida usury law, and, as stated above, sought a judgment so declaring.

The appellant recognizes that under the doctrine of conflict of laws Puerto Ri-can law would control the rights and obligations of the parties with respect to a note made there and to be performed there, with a recital of choice of the law of that place. But appellant contends the fact that a loan evidenced by such a note is so made in another state or country will not insulate the loan against a charge that it violates the usury law of Florida if in fact the loan transaction constituted a contrivance or device to evade the Florida usury law.

In May v. United States Leasing Corporation, 239 So.2d 73 (Fla.4th DCA 1970), in an action to recover on a written obligation for deferred payment incurred in connection with the purchase of certain furniture in Florida, in which the document involved specified the law of California would govern, the defendant pleaded usury. The basis of that defense was that the obligation (not usurious under California law, but which would be usurious under Florida law) was subject to the usury law of Florida because the transaction was a scheme to evade the Florida usury law. In reversing a summary judgment entered in favor of the plaintiff, which involved rejection of the defendant’s above-stated contention of usury, the appellate court stated that in entering summary judgment the trial court had to assume, as true, facts that were not substantiated by the evidence that was before the court. In May the Court said:

“The court erred in ruling as a matter of law that the entire transaction was governed by the law of California. In view of the admitted fact that the entire transaction took place in Florida, the court could not summarily rule that the contract was governed by foreign law. The court had to determine a question of fact. Was it a bona fide transaction, and did the parties act in good faith?
“ ‘Where the parties have expressly designated the governing law, the only question for the court is whether they acted in good faith or in bad faith for the purpose of evading the law of the place to which their contract is really referable. The qualification as to good faith narrows the choice of laws to those prevailing at the places which are the situs of one or more of the important elements or significant circumstances of the transaction. Effect will be given to the intention of the parties only so far as that intention is directed to the law of the place that has a real and vital, and not merely fictitious, connection with the transaction.’ 45 Am.Jur.2d, Interest and Usury, § 21.
“The court had to determine as a question of fact which state had a real and vital connection with the transaction. * * *>>

The May case would seem applicable here. Whether or not the loan was a good faith foreign undertaking or was one to evade the Florida usury law is a question to be determined upon the facts and circumstances applicable thereto. TMC was doing business in Florida. Appellant argues the facts alleged would permit inference that the Puerto Rican loan was a part of a Florida land purchase and development transaction which was put together in TMC’s Florida office. Whether having the investor go to Puerto Rico and there form a corporation and have it sign the note and loan papers there gave that jurisdiction “a real and vital, and not merely fictitious connection with the transaction”, was not a question that could be decided as a matter of law on motion to dismiss.

A question to be determined in this case is whether Puerto Rico had a real and vital, and not merely a fictitious connection with the land purchase and improvement transaction, so as to permit the making of the loan in Puerto Rico, rather than in Florida, to be viewed as having been done in good faith, or whether the making of the loan in Puerto Rico as an incident of the entire transaction should be viewed as having been made there in bad faith as a scheme or device to evade the Florida usury law.

Appellees argue the parties to a loan may choose for its control the law of another state or country, without such being a device to evade their state’s usury law, so long as the other jurisdiction bears a reasonable relationship to the contract, citing Seeman v. Philadelphia Warehouse Co., 274 U.S. 403, 47 S.Ct. 626, 71 L.Ed. 1123 (1927); National Surety Corp. v. Inland Properties, Inc., 286 F.Supp. 173 (E.D.Ark.1968) and Big Four Mills, Ltd. v. Commercial Credit Co., 307 Ky. 612, 211 S.W.2d 831 (1948). That proposition, as applied here begs the question. Decision of this case calls for an evidentiary factual determination. The complaint was not required to state evidence. The ultimate facts alleged were sufficient to withstand a motion to dismiss, and we hold it was error to rule, as the order of dismissal necessarily implies, that on the facts alleged, as a matter of law, the loan transaction was not a contrivance or device to evade Florida usury law.

Appellees argue the plaintiff’s allegation that the loan made in Puerto Rico was a scheme or device to evade the Florida usury law is stated as a legal conclusion, and therefore is insufficient. While that allegation is in the form of a conclusion, it is entitled to the support of the facts of the transaction as alleged.

Moreover, appellant argued the court erred in dismissing with prejudice and without allowing plaintiff to amend. Appellant’s reply brief states a number of facts not alleged in the complaint, such as could be added by amendment, elaborating on the facts alleged, as to the nature of the transaction. In this case the interest of justice would best be served by allowing the plaintiff to further amend the complaint.

The appellees argue additionally that the dismissal should be upheld on the grounds that the complaint did not present a case appropriate for declaratory judgment, and because the plaintiff sought a form of affirmative relief to which it would not be entitled under Florida law even if this corporate loan should be declared to be usurious. We find those grounds to be unfounded. At the time the complaint was filed the plaintiff was not in default. The transaction was not without complications creating uncertainties as to the status of the loan obligation under the Florida usury law, and the rights of the parties thereto were cast in doubt. The plaintiff was entitled to seek a declaratory judgment relating thereto. The inclusion in a prayer for relief of a request for relief that is not appropriate is not a basis for dismissal of a complaint which states facts upon which some relief may be granted. A complaint for declaratory judgment should not be dismissed unless the case is one which does not present a matter for determination within contemplation of the declaratory judgment act. Johnson v. Thoburn, 160 So.2d 729 (Fla.3d DCA 1964). Where declaratory judgment is properly invoked, the action should be disposed of by a judgment declaring the rights of the parties in the premises. Johnson v. Thoburn, supra; Broward County v. Lerer, 203 So.2d 672 (Fla.4th DCA 1967).

Appellees contend that even if Florida law was controlling on this loan, the dismissal of the cause was proper on the ground that by Section 687.11 Florida Statutes (1975) all penalties for a usurious loan made by a corporation were repealed (except for forfeiture of interest as therein provided for), and because by subsection (4) thereof, added in 1974, not even the forfeiture of interest provision is applicable to a corporate loan made in excess of 15% per annum where the amount of the loan is more than $500,000.00 The appellant contends otherwise. We refrain from choosing between the arguments of counsel as to whether thereby the legislature intended and provided that no usury law or penalty would be applicable to a corporate loan in excess of $500,000.00, regardless of how much interest was charged thereon. To the extent that such statute may be the basis for decision of this case, the construction and effect of the statute on this transaction should be determined initially by the trial court.

Accordingly the order of dismissal is reversed, and the cause is remanded to the circuit court for further proceedings, including granting leave to the plaintiff to further amend, if desired.


text:
    Julius SCHURKMAN d/b/a S & S Associates, Appellant, v. Alan D. STOLAR and Leonard U. Stolar, Individually and as partners in the firm of Stolar & Stolar, Appellees.
    No. 76-1048.
    District Court of Appeal of Florida, Third District.
    May 24, 1977.
    Rehearing Denied July 20, 1977.

      Albert J. Zemlock, Miami, for appellant.
    Carey, Dwyer, Cole, Selwood & Bernard and Steven R. Berger, Miami, Harold Heller, Miami, for appellees.
    Before PEARSON, HAVERFIELD and HUBBART, JJ.
   PER CURIAM.

Julius Schurkman appeals an adverse final summary judgment for the defendants, Alan and Leonard Stolar, individually and as partners in the law firm of Stolar & Stolar, in this action charging them with malpractice and fraud.

Plaintiff-appellant, Julius Schurkman d/b/a S & S Associates, engaged five investors to loan Caribbean Properties, Inc. $65,-000 in consideration for Caribbean executing a note in this amount with interest at 15% per annum and pledging as security a mortgage deed encumbering its leasehold interest in an office building. This note and mortgage was prepared by defendants who represented that the mortgage was only subject to a first mortgage held by Biscayne Federal Savings and Loan Association. Subsequently, Caribbean defaulted on the payments and Schurkman instituted foreclosure proceedings. After prolonged litigation it was determined that there was a prior recorded “option to mortgage” superior to Schurkman’s mortgage. See Feemster v. Schurkman, 291 So.2d 622 (Fla.3d DCA 1974). On January 30, 1975 Schurk-man in his individual capacity filed a complaint alleging malpractice and fraud on the part of Stolar & Stolar for deliberately and willfully withholding the fact that the prior recorded “option to mortgage” was superior to the Caribbean mortgage. After pretrial discovery, defendants moved for summary judgment and on April 6 the trial court entered an order granting summary judgment for the following reasons:

“1. The Defendants have demonstrated that the plaintiff, Julius Schurkman, had no standing to maintain this action.
“2. The Defendants have demonstrated that there are no genuine issues of material fact on the issue of whether the plaintiff, JULIUS SCHURK-MAN, sustained any damages as a proximate result of the alleged negligence of the Defendants, ALAN G. STOLAR and LEONARD U. STO-LAR, individually and as partners in the firm of STOLAR & STOLAR; and
“3. That the Defendants, ALAN G. STOLAR & LEONARD U. STO-LAR, individually and as partners in the firm of STOLAR & STOLAR, have demonstrated upon the facts and evidence, under the issues framed by the pleadings, that they are entitled to judgment as a matter of law.”

Summary judgment was entered and Schurkman filed a petition for rehearing seeking among other things leave to amend the complaint to reflect that he is bringing the action individually and in his capacity as trustee for the five investors. On May 11, 1976 the judge denied the motion for rehearing and to amend the complaint. We affirm in all respects save one, the denial of the motion for leave to amend the complaint.

Where summary judgment should be entered, yet the matters presented indicate that the unsuccessful party may have a cause of action or defense not pled, or a better one than that pled, the proper procedure is to enter the summary judgment with leave to amend. Hart Properties, Inc. v. Slack, 159 So.2d 236 (Fla.1963). The un-controverted evidence reflects that Schurk-man was acting as agent on behalf of the five investors at all times and while he has no standing to sue on his own behalf, he does have standing to bring an action arising out of the $65,000 loan on behalf of the investors..

We reverse that portion of the order of May 11, 1976 denying plaintiff’s motion to amend complaint, and remand the cause to the trial court to grant plaintiff leave to amend the complaint to reflect that he is instituting this action as trustee on behalf of the five investors who contributed the funds for the $65,000 loan to Caribbean.

Affirmed in part, reversed in part and remanded.


text:
    April BLUNDY, Appellant, v. STATE of Florida, Appellee.
    No. 75-1124.
    District Court of Appeal of Florida, Fourth District.
    May 27, 1977.
    Richard L. Jorandby, Public Defender, Frank B. Kessler, Asst. Public Defender, and James H. Burke, Jr., Legal Intern, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Marsha G. Madorsky, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Upon review and consideration of the briefs and record on appeal we are of the opinion that no reversible error has been clearly demonstrated, and the judgment and sentence is thereby affirmed except to the extent that reference in the sentence to imprisonment “at hard labor” is improper and is accordingly deleted. See McDonald v. State, 321 So.2d 453 (Fla. 4th DCA 1975).

AFFIRMED, as modified.

CROSS, DOWNEY and ALDERMAN, JJ., concur.


author: NEWELL, EMERY J., Associate Judge.

text:
    Alexander H. BRETHAUER and Donna Brethauer, Appellants, v. Richard D. BRASSELL, Hughes Supply, Inc., and Hartford Accident & Indemnity Company, a Foreign Corporation, Appellees.
    No. 75-1342.
    District Court of Appeal of Florida, Fourth District.
    May 27, 1977.
    Dennis J. Hightower, Whitaker & Koepke & Associates, Orlando, for appellants.
    Elmo R. Hoffman and Ronald M. Owen, Hoffman, Hendry, Parker & Smith, Orlando, for appellees.
   NEWELL, EMERY J., Associate Judge.

The plaintiffs, husband and wife, appellants herein filed a tort action against ap-pellees for damages. At the conclusion of all the evidence, the plaintiffs moved for a directed verdict as to liability which was denied. After the jury returned a verdict for the defendants, the plaintiffs filed their Motion for Judgment in Accordance with the Motion for Directed Verdict and Motion for New Trial. The appeal is prosecuted from the trial court’s denial of these post-trial motions.

The plaintiff had stopped his vehicle in the left-hand lane of southbound traffic behind two other vehicles who were also at a complete stop. All had stopped to await the passage of a vehicle making a left-hand turn in front of them. The highway at this point is two lanes southbound and two lanes northbound, with the north and southbound lanes being divided by a six foot asphalt median. It had rained and the road was damp. Defendant driver was driving a pick-up type truck, one to one and one-half tons in weight, when he struck the rear of plaintiff’s vehicle. In the words of defendant, he struck plaintiff’s vehicle “pretty close to square.”

Defendant’s only explanation for the accident was that he never saw the plaintiff’s stopped car until moments before impact because his attention was fixed upon a car immediately in front of him, which suddenly swerved and passed plaintiff’s vehicle by driving on the median strip. Defendant testified there was nothing wrong with the mechanical condition of his truck.

Appellees recognize the principle of law that the rear-ending of a plaintiff whu is lawfully stopped in traffic creates a re-buttable presumption of the defendant’s negligence upon which the plaintiff is entitled to prevail in the absence of an explanation by the defendant. Once the plaintiff establishes a rear-end collision when the plaintiff was lawfully stopped, the burden of going forward with the evidence shifts to the defendant. McNulty v. Cusack, 104 So.2d 785 (Fla.2d DCA 1958), and Gulle v. Boggs, 174 So.2d 26 (Fla.1965).

The question squarely presented in the instant case is whether the defendant has explained his inability to avoid the collision. We think not. A close examination of the language used by appellate courts in deciding similar eases reveals more definitive words than just “an explanation.” In Gulle v. Boggs, supra, the court said:

“When the defendant produces evidence which fairly and reasonably (emphasis ours) tends to show that the real fact is not as presumed, then the impact of ‘the presumption is dissipated.’ ”

In Kimenker v. Greater Miami Car Rental, Inc., 115 So.2d 191 (Fla.3d DCA 1959), we find this explicit finding:

“In the instant case the record is devoid of any substantial (again our emphasis) evidence to rebut the presumption of negligence.”

The defendant’s “explanation” in the case at bar is, at best, a mere description of the nature of his distraction. It does not offer any substantial or reasonable explanation for his failure to avoid the collision.

The judgment for the defendant is, therefore, reversed and the cause remanded to the trial court with directions to enter an order granting plaintiffs’ motion for a directed verdict upon the issue of liability and granting plaintiffs’ motion for a new trial upon the issue of damages.

REVERSED and REMANDED.

CROSS and ALDERMAN, JJ., concur.


author: CROSS, Judge.

text:
    Anthony TROIANO, Appellant, v. STATE of Florida, Appellee.
    Nos. 75-1689, 75-2009.
    District Court of Appeal of Florida, Fourth District.
    May 27, 1977.
    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 Marsha G. Madorsky, Asst. Atty. Gen., West Palm Beach, for appellee.
   CROSS, Judge.

Appellant-defendant, Anthony Troiano, appeals a judgment of guilty and imposition of sentence from a conviction for accepting unauthorized compensation.

Appellant was charged by information with the offense of accepting unauthorized compensation in connection with his employment as a State Automobile Inspector. After a trial, appellant was found guilty as charged, and was sentenced to five years imprisonment. After serving two and one-half years, appellant was to be placed on probation for a term of four and one-half years.

The sole question presented for our determination is whether the trial court had authority to impose probation beyond the period of maximum sentence.

It is now uniformly held that although a trial judge is permitted to enter a split sentence, the combined period cannot exceed the maximum period of time provided for that particular crime. Holmes v. State, 343 So.2d 632 (Fla. 4th DCA 1977); Heatherly v. State, 343 So.2d 54 (Fla. 4th DCA 1977); Magnin v. State, 334 So.2d 638 (Fla. 2d DCA 1976); Watts v. State, 328 So.2d 223 (Fla. 2d DCA 1976); Moore v. State, 324 So.2d 690 (Fla. 1st DCA 1976); Sherman v. State, 344 So.2d 870 (Fla. 4th DCA 1977).

The offense of accepting unauthorized compensation contrary to Section 838.016, Florida Statutes (1975), a third degree felony is punishable by imprisonment for up to five years pursuant to Section 775.082, Florida Statutes (1975). In the instant case, pursuant to a conviction for that crime appellant was sentenced to combined terms of imprisonment and probation, which exceeded the maximum five-year sentence by two years. Thus the error. Accordingly, appellant’s probation is reduced to two and one-half years. McBride v. State, 311 So.2d 752 (Fla. 4th DCA 1975).

Judgment and sentence affirmed, and probation modified.

ANSTEAD and LETTS, JJ., concur.


text:
    Carlwin Lavern HICKMAN, Appellant, v. STATE of Florida, Appellee.
    No. 76-194.
    District Court of Appeal of Florida, Fourth District.
    May 27, 1977.
    Richard L. Jorandby, Public Defender, and Mitchell J. Beers, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Harry M. Hipler, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

The only point raised in this appeal is the failure of the judgment and sentence to reflect with specificity whether defendant was adjudicated guilty of robbery under section 812.13(2)(b), Florida Statutes or under section 812.13(2)(c), Florida Statutes. Although defendant was charged with violation of section 812.13(2)(b), i. e., robbery with a weapon, it is asserted that there was no evidence of any weapon. The judgment and sentence merely makes reference to “robbery” and the sentence imposed does not give any indication as to whether the judgment and sentence was intended to reflect a violation of §§ 812.13(2)(b) or 812.-13(2)(c). Accordingly, this cause is remanded to the trial court for the sole purpose of correcting the judgment and sentence to specify the applicable degree of felony and is affirmed in all other respects.

MAGER, C. J., and DOWNEY and LETTS, JJ., concur.


text:
    Robert C. KAPLAN, Appellant, v. STATE of Florida, Appellee.
    No. 76-1491.
    District Court of Appeal of Florida, Fourth District.
    May 27, 1977.
    Edward M. Kay and Joseph A. Varón of Varón, Stahl, Kay & Roderman, P. A., Hollywood, for appellant.
    Robert L. Shevin, Atty. Gen., and Marsha G. Madorsky, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

The appellant, Robert C. Kaplan, challenges the sufficiency of an application for a search warrant made by a private citizen. We affirm.

Kaplan contends that a private citizen has no authority to apply for a search warrant. There is no Florida statute or rule restricting private citizens from signing applications for search warrants. Indeed, the firsthand quality of the information sworn to by a private citizen may be superior to hearsay statements presently allowed under the law to support search warrant applications. The same safeguards and other legal requirements for the issuance and service of search warrants apply regardless of who signs the application. We have also examined the contents of the application and find them sufficient to support the issuance of the warrant.

AFFIRMED.

MAGER, C. J., and ALDERMAN and ANSTEAD, JJ., concur.

      . State v. Crisp, 307 So.2d 454 (Fla. 4th DCA 1975); State v. Niles, 307 So.2d 455 (Fla. 4th DCA 1975).

      . Sections 933.04 and 933.07, Florida Statutes (1975).


author: DOWNEY, Judge.

text:
    Peter Joseph SALERNO, Appellant, v. STATE of Florida, Appellee.
    No. 75-1682.
    District Court of Appeal of Florida, Fourth District.
    May 27, 1977.
    Rehearing Denied July 25, 1977.

      Philip G. Butler, Jr., of Foley, Colton & Butler, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Harry M. Hipler, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

Appellant was charged in two informa-tions (73-2531 and 73-2557) with three counts of breaking and entering with intent to commit grand larceny. The informations were consolidated for trial. A jury found appellant guilty on all three counts and the court entered judgment pursuant to the verdict.

Initially, appellant complains that the trial court erred in denying his motion for new trial. The main contention in that motion was that an accomplice, who had been granted immunity by the State prior to trial testified for the State and denied that any promises had been made to him in return for his testimony, whereas, in fact, the witness had been granted immunity.

The State called Martin Stein as a witness who testified that he, and appellant, and Chuck Stanzione had burglarized the three homes referred to in the informations in question. He was the primary witness for the State. On cross-examination the defendant asked Stein what promises the State had made to him when he confessed and whether the State had granted him immunity. Stein steadfastly denied that any promises had been made. At the conclusion of the cross-examination counsel for defendant inquired of the State whether it had any “Brady materials regarding his [Stein’s] testimony.” The prosecutor then asked the court to excuse the jury, and, during a lengthy colloquy between counsel and the court, the prosecutor finally set the record straight. He rather belatedly advised defense counsel and the court that Stein had been granted immunity for some other burglaries which Stein admitted committing. The prosecutor also stated, “It is my understanding, because of Mr. Stein’s age and his willingness to testify, which he stated in being advised in the statement — I believe there is a statement that he would be willing to testify in a Court of law. It is my understanding that that is the reason that the charges were never filed against him.” The jury was then recalled and Stein testified he had been advised that he would not be prosecuted on the other burglaries to which he had confessed. Defense counsel concluded his cross-examination of Stein with the following question:

“Q. For your immunity you pointed out these houses, various houses to this prosecutor here?
“A. I guess you could call it that.” During closing argument defense counsel argued:
u * * *
“I don’t think that is the American way. I think that burglars ought to stand up and be counted, not get immunity to put it on somebody else. That’s the American way; stand up and be counted; be tried.
“What do you have in this case, ladies and gentlemen? What do you have? You have a liar, Martin Stein. .
“. . .1 hope you people can realize why Martin Stein is getting up and lying. Boy, I would sing and dance, if I was facing ten years, to get complete immunity for any charges; and actually drive you around and say, 'I hit this place. I hit this place,’ and the prosecutor standing there and saying, ‘Don’t worry. I am not going to charge you. I am not going to charge you.’
“I don’t think it is right. I really don’t.

In his closing argument on the question of immunity, the prosecutor stated:

“I submit to you that the practice of granting one criminal immunity is necessary to effective law enforcement. There was no other way to connect this man with Chuck Stanzione and those crimes. If you don’t approve of the practice, and it is a decision you have got to make, if you don’t approve of the practice, then you walk Pete Salerno out of here today. Thank you.”

We recognize the obligation of a prosecutor to assure a defendant a fair trial and not sit silently by while false or misleading evidence is adduced. Wolfe v. State, 190 So.2d 397 (Flalst DCA 1966). We also note that until defense counsel called upon him to divulge any “Brady Material” the prosecutor took no affirmative step to correct or clarify Stein’s initial testimony that no promises had been made to him. However, counsel for appellant, after the conference in the absence of the jury, was afforded an opportunity to apprise the jury of the true situation. -And as the record demonstrates, counsel did adduce testimony from Stein that he had in fact been granted immunity. While defense counsel could have explored the matter more fully, he chose not to do so. In our judgment the post conference cross-examination of Stein and the closing arguments of counsel could leave no doubt in the minds of the jurors that Stein had been given some very favored treatment in return for his testimony, and that is what the whole thing is all about! Therefore, we find no reversible error as to this appellate point.

The second point on appeal, which also arises as a result of inept prosecution, charges that the trial court erred by not granting a judgment of acquittal because the State failed to prove ownership of the houses burglarized.

One count charged appellant with “breaking and entering a dwelling house located at 3050 Northeast 44th Street, Lighthouse Point, Florida, the property of Robert J. Drummond.” A second count charged appellant with “breaking and entering a dwelling house located at 3030 Northeast 44th Street, Lighthouse Point, Florida, the property of John Crowe.” Neither Mr. Drummond nor Mr. Crowe testified. Jean Drummond and Sara Crowe testified that they lived at the respective addresses. Without question they showed, at the very least, that they were in possession and occupancy of the respective dwellings. During the course of their testimony each of the women referred to her “husband”— but not by name. In fact, nowhere in the evidence does the name of Robert J. Drum-mond or of John Crowe appear.

Quite obviously, the jury concluded that appellant broke into the above mentioned two dwellings, which were the property of persons other than the appellant, with intent to commit grand larceny. If that were all that is required, then the convictions on those counts should stand. But the Supreme Court of Florida has held repeatedly that the allegation of ownership of a building alleged to have been entered is material and must be proved as laid. In Smith v. State, 96 Fla. 30, 117 So. 377 (1928), the information charged the defendant with breaking into a dwelling “the property of Frank Heide.”, The proof at trial showed that the property was owned by H. Rich Mooney and that Heide was but the grounds keeper of the premises with the additional duty of opening the house occasionally for ventilation. Thus, the Supreme Court concluded:

“The judgment should be reversed because of the variance between the allegation and proof as to ownership. Under the statutes denouncing burglarious entering the allegation of ownership of the building alleged to have been entered is material and must be proved as laid.”

In order not to unduly extend this opinion, we would simply point out that there are numerous later cases following Smith v. State, supra, which indicate no deviation from the holding of that case. As recently as 1975 in Mitchell v. State, 317 So.2d 465 (Fla.4th DCA 1975), this court relied upon the Smith case and held that the testimony of Jeffery Coris that he lived in a certain house with his parents for 17 years was insufficient to prove that James Coris was the owner of the house, as alleged in the information. The State, of course, quotes from Judge Mager’s dissent, in the Mitchell case, but the dissent is not the opinion of the court. If the determination of the quantum of proof were solely up to us, we might well agree with Judge Mager’s conclusion; but as it was required to do, this court followed Smith in Mitchell, and it does so again in the present case. See Hoffman v. Jones, 280 So.2d 431 (Fla.1973).

The sole count of the information, # 73-2557, charged appellant with “breaking and entering a dwelling house located at 1001 A-l-A, Hillsboro Beach, Florida, the property of Iris J. Hartley.” Iris J. Hartley testified that she lived in the house at that address at the time of the crime and that she was a joint owner thereof with her husband. This was sufficient proof to support the charge.

Accordingly, the judgment and sentence in Circuit Court Case No. 73-2557 is affirmed, and the judgment and sentence in Circuit Court Case No. 73-2541 is reversed.

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

      . Stein was about 16 years old when the offenses were committed.


text:
    Earl R. GAMER, Petitioner, v. Manning I. KEEN, Respondent.
    No. 77-8.
    District Court of Appeal of Florida, Fourth District.
    May 27, 1977.
    Raymond E. Ford, Fort Pierce, for petitioner.
    F. Kendall Slinkman, Farish & Farish, West Palm Beach, for respondent.
   DAUKSCH, Judge.

Petition for Writ of Certiorari to the Circuit Court 15th Circuit is granted and we review the Order of that court compelling discovery.

This matter began below with the filing of a Complaint alleging injury by defamation and assault and battery. Compensatory and punitive damages are sought.

The parties come to us during the discovery stages of the proceedings after the Defendant was required to produce his income tax returns, all financial statements, and all bank books and accounts; all for the years 1973, 1974 and 1975. Further, the Defendant was required to answer in excess of one hundred interrogatories, all relating to his financial affairs except one asking for names of witnesses and another asking the names of persons who assisted him in preparation of the answers to interrogatories.

Since punitive damages are sought, evidence of the Defendant’s present financial worth is admissible at trial and therefore discoverable. Rinaldi v. Aaron, 314 So.2d 762 (Fla.1975). We see no relevant reason for discovery of his financial worth one, two or three years before or after the trial as the interrogatories are seeking.

A properly authenticated financial statement is sufficient proper evidence. Tallahassee Democrat, Inc. v. Pogue, 280 So.2d 512 (Fla.1st DCA 1973). Income tax returns are not. Id. See also Spencer Ladd’s, Inc. v. Lehman, 167 So.2d 731 (Fla.1st DCA 1964), affirmed in 182 So.2d 402 (Fla.1965).

The Order requiring production is quashed except as to the financial statements which have been furnished. The Order denying objections is affirmed as to the question in regard to “name and address of each person who has knowledge of any relevant facts concerning” the litigation and quashed as to all other questions.

MAGER, C. J., concurs.

CROSS, J., concurs only in conclusion.


text:
    Robert B. ESSIX, Appellant, v. The STATE of Florida, Appellee.
    No. 76-477.
    District Court of Appeal of Florida, Third District.
    May 31, 1977.
    Rehearing Denied July 8, 1977.
    Horton, Perse & Ginsberg and Arnold R. Ginsberg, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen., for appel-lee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Defendant, Robert Essix, appeals his conviction for first degree murder and robbery, and argues that the trial judge unduly restricted the length and scope of defense counsel’s voir dire examination of the prospective jurors. We find no merit in this argument.

The extent to which parties may be permitted to go in examining prospective jurors on voir dire is subject to the sound discretion of the trial judge, the exercise of which will not be interfered with unless it is clearly abused. Mizell v. New Kingsley Beach, Inc., 122 So.2d 225 (Fla. 1st DCA 1960); Barker v. Randolph, 239 So.2d 110 (Fla. 1st DCA 1970).

The record demonstrates that the trial judge not only permitted defense counsel to engage in extensive voir dire examination, but also granted him wide latitude with respect to the scope of that examination. Furthermore, defense counsel exhausted all peremptory challenges to which he was entitled and expressed to the trial judge his satisfaction with the jury which was ultimately sworn.

Affirmed.


text:
    William E. VAN POYCK, Appellant, v. The STATE of Florida, Appellee.
    No. 76-563.
    District Court of Appeal of Florida, Third District.
    May 31, 1977.
    Rehearing Denied July 20, 1977.
    Bennett H. Brummer, Public Defender and Julian Mack, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Linda Collins Hertz, Asst. Atty. Gen., for appellee.
    Before PEARSON, HAYERFIELD and NATHAN, JJ.
   PER CURIAM.

Defendant, William E. Van Poyck, appeals an order denying his motion to vacate sentence pursuant to Fla.R.Crim.P. 3.850.

Initially defendant pled not guilty to charges of breaking and entering and grand larceny (case # 71-10077); possession of stolen property (case # 71-10462); auto theft (case # 71-10703); and robbery (case # 72-992). However, on April 6,1972, pursuant to plea negotiations, defendant pled guilty to the first three charges and was sentenced to concurrent terms of 10 years, 5 years and 5 years respectively. After further plea negotiations, defendant on April 27 pled guilty to the robbery charge (case # 72-992) and was sentenced to 15 years to run concurrently with the above sentences. On February 13, 1976 the defendant filed a motion to vacate the judgments and sentences on the ground that the trial judge erred in accepting his guilty pleas. The motion to vacate was denied. We affirm.

Contrary to defendant’s contention, we are satisfied that his guilty pleas were made voluntarily with the understanding of the charges and the trial judge made adequate inquiry of the defendant with respect thereto.

Affirmed.


text:
    RANGER INSURANCE COMPANY, Appellant, v. Mary Louise SMITH, as surviving wife and widow of John E. Smith et al., Appellees.
    No. 76-580.
    District Court of Appeal of Florida, Third District.
    May 31, 1977.
    Rehearing Denied July 29, 1977.
    James V. Dolan and Frank R. Gramling, Fort Lauderdale, for appellant.
    Podhurst, Orseck & Parks, Spence, Payne & Masington, Dixon, Dixon, Lane & Mitchell, Walton, Lantaff, Schroeder, Carson & Wahl, Smathers & Thompson and Earl D. Waldin, Jr., Sams, Anderson, Alper & Post, Miami, for appellees.
    Before PEARSON and BARKDULL, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The incident which gave rise to this action was the crash of an aircraft near Savannah, Georgia, on a flight of which the point of departure was Homestead, Florida, and the intended destination was Hickory, North Carolina. The plane was a five-passenger Beechcraft Reg. No. N100DC. The occupants, owner-pilot Richard J. Conley, Ralph C. Jordan and John E. Smith, were killed. Minor children of Jordan, through their mother as next friend, filed a wrongful death action against the executors of the estate of Conley, and Ranger Insurance Company (Conley’s insurer), and (on products liability) against Beech Air Craft Corporation, Bendix Corporation and Skyteel Aviation, Inc., and against Dick Conley Chevrolet, Inc. A similar wrongful death action was filed by the widow of John E. Smith.

Ranger denied coverage, claiming exclusion because of lack of qualification of the pilot and improper operation of the plane, in the circumstances of the flight. Plaintiffs in the Smith action moved for a partial summary judgment as to the limit of coverage per person which was provided for in the policy, contending the $1,000,000 liability limit was available to an individual claimant, as opposed to $100,000 per person as contended by Ranger. Before deciding the disputed question of coverage, the court granted said motion for partial summary judgment, ruling as contended for by the movant. Later, after a non-jury trial on the issues relating to coverage, the court entered an order thereon which included the following findings:

“4. That the Court finds that the insured Dick Conley, was the pilot of the aircraft Beechcraft Baron N-100DC.
5. That the said Dick Conley had effective on the date of the accident a valid and effective pilot licence and medical certificate with an VFR rating.
6. That the said aircraft and pilot were insured by Ranger Insurance Company, policy number AC Al-150567.
7. That paragraph 7 of the Special Provisions Endorsement dated March 25, 1971, is not applicable to this policy.
8. That the denial of coverage by Ranger Insurance Company is based on paragraph 7 of the main policy known as the pilot clause.
9. That the said restriction of the pilot clause as interpreted by this Court, which prohibits a pilot and/or aircraft that was not properly certified for the flight involved to be excluded from coverage, is limited to the conditions at the time of flight.
10. That based on the exhibits and testimony, the pilot, Dick Donley, had the required ratings for the commencement of his flight on May 15,1971, and that the aircraft insured by Ranger Insurance Company was also properly certificated and maintained for said flight.
11. That the subsequent negligence, if any, of the pilot in his continuing flight is not excluded under the pilot clause.”

That order which held in favor of the plaintiffs on the question of coverage, repeated verbatim the holding which had been made earlier with reference to the coverage limits. In a further hearing, the court denied Ranger’s motion for rehearing and made an award of attorney fees in favor of the executors of the estate of Richard J. Conley for services of their attorneys incident to the litigation involving the coverage issues, with provision for payment thereof, and costs, by Ranger.

Appealing therefrom Ranger contends the court erred in the following respects: (1) by granting what in effect was an advisory opinion on the policy limits, before hearing and determining the issues relating to coverage under the policy; (2) by ruling thereon without evidence; (3) in the determination made as to the policy limits; (4) in holding there was coverage under the policy for the flight involved; (5) in refusing to allow expert testimony offered on the issue of coverage; and (6) in making an excessive award of attorney’s fees.

Following argument of the appeal, attorneys for appellees moved this court to delay decision of the appeal for a period because of certain pending settlement negotiations. We granted the motion, with direction to the attorneys for the movant to make a status report thereon to this court by a designated date. Such report was duly filed. It disclosed that settlement was made on the Smith case, making the appeal moot as to that party. Accordingly the appeal is dismissed as to the Smith plaintiff-appellee.

The report further showed that the matter of the amount of attorney’s fees to be paid by Ranger to the Conley executors was settled, and that Ranger had agreed to defend the Conley executors in the Jordan action.

By reason of those disclosures, there remains for consideration on this appeal only the questions relating to the rulings of the trial court on coverage and coverage limits as the same may be applicable in the Jordan case.

The contention of the appellant that it was error to rule on the policy limits before ruling on the question of coverage is without merit, since that earlier ruling was repeated in and made a part of the order entered after trial on the coverage issue. We also find to be without merit appellant’s contention the court erred in holding that under the facts and circumstances of the ill-fated flight the coverage of the policy was applicable. That ruling of the trial court has the support of competent, substantial evidence in the record. However, we are impelled to disagree with the ruling of the trial court on the policy limits. On reading the applicable provisions of the Ranger policy we observe no ambiguity therein which would justify or require a holding that the policy limit of $1,000,000 was applicable to any passenger. The policy provided for $100,000 limit per person. We so hold, reversing the different ruling thereon of the trial court. No useful purpose would be served by quoting at length the pertinent policy provisions and further discussion thereof.

The judgment appealed from is affirmed in part and reversed in part, as and in the respects hereinabove specified, and the cause is remanded for further proceedings.


text:
    The YASUDA FIRE & MARINE INSURANCE COMPANY OF AMERICA, a Foreign Corporation, Appellant, v. Rene RODRIGUEZ, Appellee.
    No. 77-17.
    District Court of Appeal of Florida, Third District.
    May 31, 1977.
    Rehearing Denied July 20, 1977.
    James V. Dolan and Frank R. Gramling, Fort Lauderdale, for appellant.
    H. C. Starkweather, Miami, for appellee.
    Before HENDRY, C. J., and PEARSON and HAVERFIELD, JJ.
   PER CURIAM.

Defendant insurance company seeks reversal of an adverse final summary judgment entered in favor of the plaintiff insured as to liability in this action to recover for the loss of a boat.

On November 5, 1975 Yasuda Fire and Marine Insurance Company of America issued an insurance policy to Rene Rodriguez covering his boat and trailer against loss due to theft. On December 19 plaintiff’s boat and trailer were stolen and he reported the theft to the local police and defendant insurance company. An adjuster for the defendant contacted plaintiff and subsequently alleged in his deposition that plaintiff was not cooperative. There also appeared to be some discrepancy as to the description of the boat’s engine given to the police and the description of the engine in the insurance policy. Nevertheless, after obtaining a picture of plaintiffs boat, the adjuster conducted an unsuccessful search. On the grounds of the engine discrepancy and the lack of cooperation on plaintiffs part, defendant refused to reimburse the plaintiff for his loss. Plaintiff then filed suit seeking damages for breach of the insurance contract. Pretrial discovery ensued and plaintiff filed a motion for summary judgment on the issue of liability. After argument of counsel, the trial judge entered summary judgment against defendant based on the following:

“1. That the Plaintiff in his Motion for Summary Judgment has successfully met his burden of clearly and conclusively proving a negative, i. e. the nonexistence of a genuine issue of material fact. The Plaintiff’s proof as demonstrated by an extensive record as above reflected is such as to overcome any and all reasonable inferences which may or could be drawn in favor of the Defendant.
“2. Having found that the Plaintiff has successfully met his burden as above set out, it is the further finding of this Court that the Defendant has failed to show that any issues remain to be tried

Defendant insurance company appeals and argues that issues of fact remained as to whether plaintiff misrepresented the description and value of the boat and whether he failed to cooperate with the company.

After a review of the record and consideration of the briefs and argument of counsel, in light of the controlling principles of law we conclude that no reversible error has been made to appear. See Holl v. Talcott, 191 So.2d 40 (Fla.1966).

Affirmed.


text:
    Charles MAIGE, Appellant, v. STATE of Florida, Appellee.
    No. 76-318.
    District Court of Appeal of Florida, Fourth District.
    June 3, 1977.
    Richard L. Jorandby, Public Defender, Frank Kessler and Tatjana Ostapoff, Marc Goldstein, Asst. Public Defenders, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard P. Zaretsky, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

The sentence imposed by the trial court is modified so as to eliminate therefrom the words “at hard labor”. See McDonald v. State, 321 So.2d 453 (Fla. 4th DCA 1975).

As modified the judgment and sentence appealed from are AFFIRMED.

AFFIRMED AS MODIFIED.

MAGER, C. J., and DOWNEY and LETTS, JJ., concur.


text:
    BROWARD COUNTY BOARD OF RULES AND APPEALS, Petitioner, v. RUSH HAMPTON INDUSTRIES, Respondent.
    No. 76-1907.
    District Court of Appeal of Florida, Fourth District.
    June 3, 1977.

      Charles G. Brackins of Rogers, Morris & Ziegler, Fort Lauderdale, for petitioner.
    Stuart L. Simon, County Atty., and James G. Roth, Asst. County Atty., Miami, for Dade County as amicus curiae.
    E. Hugh Chappell, Jr. of McCrory, Chap-pell, Brandt & Gore, P.A., Fort Lauderdale, for respondent.
   PER CURIAM.

Petition for Writ of Certiorari denied.

DOWNEY, ALDERMAN and AN-STEAD, JJ., concur.


text:
    TISDALE’S SANITARY SERVICE, INC., a Florida Corporation, Appellant, v. CITY OF BOYNTON BEACH, Florida, a Municipal Corporation, Appellee.
    No. 76-2023.
    District Court of Appeal of Florida, Fourth District.
    June 3, 1977.
    Wallace B. McCall, Johnson, Ackerman & Bakst, West Palm Beach, for appellant.
    Michael P. Smodish, Reed & Smodish, Boynton Beach, for appellee.
   PER CURIAM.

AFFIRMED on authority of North Shore Hospital, Inc. v. Barber, 143 So.2d 849 (Fla. 1962).

MAGER, C. J., and DOWNEY and ALDERMAN, JJ., concur.