author: BERANEK, JOHN R., Associate Judge.

text:
    Edmund C. MONELL, Appellant, v. GOLFVIEW ROAD ASSOCIATION, Appellee.
    No. 76-1918.
    District Court of Appeal of Florida, Fourth District.
    May 2, 1978.
    Rehearing Denied June 19, 1978.

      Thomas V. Close of Falcon & Villwock, Palm Beach, for appellant.
    James F. Cooney, Jr., of Coe & Broberg, Palm Beach, for appellee.
   BERANEK, JOHN R., Associate Judge.

This is an appeal from a final judgment denying appellant’s request for a mandatory injunction. The appellee is the “GOLF-VIEW ROAD ASSOCIATION” which is composed of most of the homeowners living on a private road in the Town of Palm Beach. Appellant is an individual homeowner living on this same private road, but who chose not to become a member of the Association. This case is a dispute over whether the Association should be required to remove four speed bumps constructed on the road by the Association over appellant’s objections.

The Association constructed the speed bumps to reduce traffic and speed and to maintain the “private” nature of the road. Appellant objected to the proposed construction before it was done. These objections were overruled. After construction appellant sought a mandatory injunction to have the speed bumps removed. The trial court denied the requested relief based on a “balancing of the relative conveniences of the parties.” We reverse.

Golfview Road is 1,200 feet long and has 15 residences and a private club located on it. Of the 15 residences, 13 are served by a private rear alleyway and need not traverse the road. Two residences, including appellant’s, have access only via the road itself. Thus the owners making up the Association need not traverse the road to get to their houses, but appellant must use the road and cross the speed bumps to arrive at his home.

Since installation of the speed bumps traffic has dramatically decreased. The bumps cause most people to simply avoid all use of the road.

The doctrine of balancing conveniences is an equitable principle. It is applicable where a technical encroachment of another’s rights is slight and the cost of removing the encroachment would produce great harm and where the resulting benefit is small. Johnson v. Killian, 157 Fla. 754, 27 So.2d 345 (1946). The classic application of the doctrine is seen in cases where a building is constructed in violation of the adjoining land owner’s boundaries. If a large building encroaches slightly on adjoining property and the misplaced location is accidental, a Court may balance the conveniences between the parties and deny injunc-tive relief if the actual encroachment is not substantial and removal would result in only slight benefit. In short, Courts will not lend aid to enforce the technical rights of a litigant against another where the good to be obtained is wholly disproportionate with the unintentional harm done.

Numerous factors must be considered and balanced. Of paramount importance is whether the encroachment is willful and intentional or accidental and unintentional. The neighbor who with full actual knowledge willfully places his building on the property of another may not use mere inconvenience as a defense to a demand for removal. Vigilance of one’s own rights is also to be considered and balanced. The doctrines of estoppel or laches are certainly applicable against a person who sits by and watches while his own rights or property are encroached upon.

In the present factual situation the balancing of the conveniences doctrine was simply not applicable. The uncontroverted evidence was that appellant’s right to the easement over the private road was substantially diminished. Appellant had the same right to this road as all other homeowners in the Association. The construction of the four speed bumps was shown by the evidence to have substantially and dramatically reduced traffic on the road. In short, no one wants to drive on the road and the road is no longer used to any great extent. This was the desired result for the members of the Association. On the other hand, appellant must traverse these speed bumps to get to his house and his right to use his easement on his private road has been substantially invaded. The doctrine of a non-material interference as stated in Robinson v. Feltus, 68 So.2d 815 (Fla.1953), has no application here.

The invasion by appellee was willful and intentional and appellant was not guilty of even slight delay in protesting. At every possible point he objected by writing letters, attending meetings and hiring lawyers. These protests were timely in every respect, and the doctrines of laches or es-toppel are totally inapplicable.

The rights of common owners of an easement are limited to the purpose for which the easement was established and may not be exercised in derogation of the rights of other common owners. Cartish v. Soper, 157 So.2d 150 (2d D.C.A., Fla. 1963); and Wilson v. Dunlap, 101 So.2d 801 (Fla.1958). It is also important to note that the Association even representing a majority of the easement holders had no right to substantially diminish the convenience of the roadway. See Killion v. Kelley, 120 Mass. 47 (1876); Stifel v. Hannon, 95 W.Va. 617, 123 S.E. 673, W.Va., 1924; Thompson on Real Property, Vol. 2, Easements, Sec. 428, p. 702.

Here the easement was for the purposes of a “private road.” The Association argues that the speed bumps were necessary to preserve the “private” aspect of the easement. We rule that a “private road” must first be a road and that the substantial violation of the plaintiff’s rights to the road are not cured by the fact that the violation increased the private nature of the way.

The balancing of the equities doctrine was inappropriately applied in this case. The Court should have granted an injunction requiring the removal of the four speed bumps. Clearly, appellant had no other remedy at law. McCorquodale v. Keyton, 63 So.2d 906 (Fla., 1953); and Zetrouer v. Zetrouer, 89 Fla. 253, 103 So. 625 (1925), later app., 95 Fla. 976, 117 So. 383. The action of appellee was intentional and effected a substantial violation of a meaningful right in appellant. The judgment below is therefore vacated. The matter is remanded to the trial court for entry of an appropriate order consistent with the views expressed herein.

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


source: Caselaw Access Project

author: LETTS, Judge.

license: Public Domain

text:
    CASTLEWOOD INTERNATIONAL CORPORATION, Appellant, v. Charles A. WHITMAN, Jr., as Administrator of the Estate of John Michael Whitman, Deceased, Clinton Jones, Ceotis Burgess, Appellees. CASTLEWOOD INTERNATIONAL CORPORATION, Appellant, v. James W. GIROT, Clinton Jones, and Ceotis Burgess, Appellees.
    Nos. 76-2479, 76-2480.
    District Court of Appeal of Florida, Fourth District.
    May 2, 1978.
    Rehearing Denied June 21, 1978.
    Marjorie D. Gadarian, of Jones, Paine & Foster, West Palm Beach, for appellant.
    Joel T. Daves, III, of Burdick & Daves, West Palm Beach, for appellees James W. Girot and Charles A. Whitman, Jr., as Administrator of the Estate of John Michael Whitman, deceased.
   LETTS, Judge.

This appeal stems from a jury instruction on the question of an agency relationship between the owners of a tavern and a sub, sub volunteer bouncer. We find no competent evidence of any agency relationship and reverse.

The Big Daddy’s Bar in Lake Worth, held a “twenty-five cents per drink” night every Tuesday and big crowds were customary. On the Tuesday night in question, at least two hundred noisy and boisterous patrons were in attendance, although the Lake Worth Fire Chief testified that the fire regulations limited the maximum occupancy to 87 persons.

Employed at the bar was an I.D. checker and bouncer whose main duty was to watch the door. Apparently, the bouncer had become friendly with a regular patron who on occasion took over the door duty while he (the bouncer) left his station, to use the rest room, and whatever. This regular patron was not employed by the bar, nor was he paid for his relief work, he just occasionally helped out his bouncer friend.

On this particular night, the regular patron was once more asked by the bouncer to watch the back door. At that point, although much of the evidence is conflicting, it appears that a bottle of whisky was discovered to be missing and the bartender supposedly shouted to the temporary volunteer door watcher, to stop anybody from leaving. Simultaneously with this shouted instruction, one of the customers, later shot dead, was attempting to leave by the back door, (He had not stolen the whisky and in fact, it was subsequently discovered, none had been stolen.) where he was stopped by the volunteer temporary door watcher. The customer protested, as did other patrons, some shoving took place and the temporary door watcher shouted to another friend who was his buddy and fellow drinking partner, to “go get his bazooka(s).” This buddy had never volunteered for, or done any, door watching or any other duty at the bar before, but he took off for the temporary volunteer door watcher’s car and emerged with two handguns. He then went berserk, ran back across the parking lot, fought off two bystanders who attempted to stop him, and while still out in the parking lot, began to fire indiscriminately. One shot hit and wounded one of the appellees, while another bullet struck and killed the other, whose exit had originally been prevented, but who, by this time, had managed to leave the tavern.

Pursuant to this scenario, the trial judge, inter alia, instructed the jury in the following manner:

If you find that Ceotis Burgess [the berserk murderer] was an agent of Defendant Castlewood [the tavern owner] at the time in question, and that the Defendant Jones [the occasional volunteer door watcher] played a direct and approximate [sic] role in the agency relationship between Ceotis Burgess and Castlewood, then your verdict should be against Cas-tlewood and Jones jointly. If you do not find that Jones played a direct and proximate role in the agency relationship between Castlewood and Burgess, but you do find that such agency relationship existed, and that Burgess was acting within the scope of such agency, then your verdict on this claim should be against Cas-tlewood only.

We believe this instruction was prejudicial error, and the point has been properly preserved for appeal.

There is no doubt that the bartender was a servant of the tavern owners. There is no doubt that the permanent bouncer was also. It is further arguable that the occasional volunteer temporary door watcher was an agent of the bar. At that point in the chain, however, we believe any agency stopped, under the facts of this case.

We note with approval, the case of Higgins v. Investors Acceptance Co. of Miami, 287 So.2d 724 (Fla. 3rd DCA 1974) in which a bill collector, deputized a helper, called at a debtor’s home and the helper, in a show of strength, sprayed the debtor with mace. The court held that such behavior was neither authorized nor expected by the bill collector’s employer. The case at bar is much more bizarre, for the defendant tavern owners could never be expected to have authorized, or expected, the back door to become a shoot out, never mind an indiscriminate “shoot ’em up” in the parking lot, in no way related to the prevention of people leaving the tavern. As one witness testified:

“He wasn’t really taking aim at anybody. He was just shooting.”

The appellees argue that there was an implied agency created by the presence of an emergency and cite Jacobi v. Nolan, 122 So.2d 783 (Fla. 1st DCA 1960). However, in that case, a car salesman employed a helper to go get customers cars for service, a normal function to be expected by the car agency employer, in no way comparable to the case now before us.

We would stress that we do not pass on the issue of whether the tavern owners were negligent, nor do we find that any of the other points on appeal constitute reversible error. There remains the fact that the jury verdict did not set forth the theory upon which it reached its verdict, and it may well have done so upon the agency relationship which we have found is not present under the facts of this case.

REVERSED AND REMANDED FOR A NEW TRIAL.

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


author: KEHOE, Judge.

text:
    Royal Odell WHITE, Jr., et al., Appellants, v. Oswaldo Tomas MARTINEZ et al., Appellees.
    No. 77-79.
    District Court of Appeal of Florida, Third District.
    May 2, 1978.
    Rehearing Denied June 2, 1978.

      Goodwin, Ryskamp, Welcher & Carrier, Miami, for appellants.
    Alldredge & Gray, Miami, for appellees.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   KEHOE, Judge.

Appellants, defendants below, bring this appeal from an order entered by the trial court granting appellees’, plaintiffs below, motion for a new trial for damages. The sole point on appeal is whether the trial judge abused his judicial discretion in entering the order granting a new trial. In our opinion, the trial judge did abuse his discretion in granting the motion for a new trial; therefore, the order appealed is reversed and the cause is remanded with directions to reinstate the jury verdict and to enter a judgment based on the verdict.

After a jury trial in this personal injury case, the trial judge entered an order granting appellees’ motion for a new trial on the issue of damages. The order reads, in pertinent part, as follows:

“The court, as a result of its close observation of the behavior and demeanor of the witnesses who testified in this cause, including the plaintiffs, Oswaldo Tomas Martinez and Nereida Martinez, his wife, and the testimony elicited from the medical witnesses, and because of its direct contact with the actual trial and its feelings as to the evidence and issues presented, and based on its knowledge and experience, is of the opinion that the verdict of $1,392.00 awarded to the plaintiffs in this cause was against the manifest weight of the evidence and was so inadequate under the facts presented in this particular case as to shock the judicial conscience of the court, and the damages were grossly inadequate and were obviously induced by some prejudice or passion or some misconception of the law or evidence.”

We note that the sum of appellees’ actual out-of-pocket medical expenses was $1,122; consequently, the jury verdict for damages in the amount of $1,392 was only $270 more than appellees’ actual medical expenses.

In considering the principles applicable to a trial judge’s consideration of a motion for a new trial, we know from the leading case of Cloud v. Fallis, 110 So.2d 669 (Fla.1959) [hereinafter cited as Cloud], that:

“When a motion for a new trial is made, it is directed to the sound, broad discretion of the trial judge, Pomdexter v. Seaboard Air Line R. Co., Fla., 56 So.2d 905; Mead v. Bentley, Fla., 61 So.2d 428, who because of his contact with the trial and his observation of the behavior of those upon whose testimony the finding of fact must be based is better positioned than any other one person fully to comprehend the processes by which the ultimate decision of the triers of fact, the jurors, is reached, . ” Id. at 673.

The Court further stated that it is the duty of a trial judge to grant a new trial when he “concludes that the verdict is against the manifest weight of the evidence,” or if he determines that the jury has been influenced by extra-record considerations or misled by the force and credibility of the evidence. Id. at 673. However, this “broad discretion” does not give a trial judge unbridled discretion to order a new trial. Consequently, to facilitate intelligent review of such orders so that appellate courts can ascertain whether a trial judge has abused his discretion, the reasons which produced the need for a new trial must be set forth in the order. Stewart Bonded Warehouse, Inc. v. Bevis, 294 So.2d 315, 317 (Fla.1974). This requirement gives rise to the question of what reasons must be contained in an order for a new trial to enable it to withstand appellate review. Beginning with Cloud and extending to the recent case of Wackenhut Corporation v. Canty, 359 So.2d 430 (Fla.1978) [hereinafter cited as Wackenhut], a consistent standard has emerged. In discussing this standard, the Court in Wackenhut at 8 stated as follows:

“Although an order for new trial need not incant language to the effect that the verdict is [1] against the manifest weight of the evidence or [2] was influenced by considerations outside the record, the order must give reasons which will support one of these two conclusions so that it will be susceptible of appellate review. See Thompson v. Williams, 253 So.2d 897 (Fla.3d DCA 1971). Orders granting motions for new trials should articulate reasons for so doing so that appellate courts may be able to fulfill their duty of review by determining whether judicial discretion has been abused.” [Emphasis added.]

Applying these principles to the instant case, we note that the order appealed sets forth both of the conclusions mentioned in the above quoted passage from Wackenhut. However, the order neither points to the record for support of the conclusion that the verdict was against the manifest weight of the evidence nor does it set forth any finding reasonably amenable to judicial review to support the conclusion that the jury was influenced by considerations outside the record. By not containing any finding in support of this latter conclusion, we have no basis upon which to review the order. With regard to the former conclusion, even though the order contains no direction to the record, we can at least make an independent review of the record in search of support for that conclusion.

In making this independent review of the record, we are aware of the fact that our courts have previously considered the problem presented when a jury verdict is the same as or slightly higher than the amount of a plaintiff’s special damages. For example, the court stated in Crutcher Resources Corporation v. Rayner, 283 So.2d 392, 393 (Fla.2d DCA 1973), as follows:

“The trial court is not precluded from disturbing a verdict which is so grossly inadequate that it shocks the conscience of the court. Roberts v. Bushore, Fla.1966, 182 So.2d 401. The test to be applied in determining the adequacy of the verdict is whether a jury of reasonable men could have returned that verdict. Griffis v. Hill, Fla.1969, 230 So.2d 143. However, plaintiff is not relieved of proving damages nor is the jury precluded from inquiring into the reasonableness and necessity of the medical expenses. Grossman v. Short, Fla.App.1970, 235 So.2d 11; Short v. Grossman, Fla.1971, 245 So.2d 217.
“In the case sub judice the verdict was larger than appellee’s special damages. The jury could have disbelieved appellee’s testimony regarding her pain and suffering, or attributed the pain to her congenital cervical rib. The medical testimony was in substantial conflict, and it cannot be said that the jurors as reasonable men could not have found the verdict they did. Clark v. Yellow Cab Company of Miami, Fla.App.1967, 195 So.2d 39; cf. Anastasio v. Summersett, Fla.App.1969, 217 So.2d 854.”

Further, the Supreme Court of Florida in City of Miami v. Smith, 165 So.2d 748, 750 (Fla.1964) said:

“. . The District Court concluded it was not reasonable to assume that a verdict for the exact amount of the medical bills ‘included a consideration of the evidence of pain and suffering.’ We disagree and express it as our view that, absent a showing of vitiating circumstance such as were enumerated in the Radiant Oil case, [Radiant Oil Co. v. Herring, 146 Fla. 154, 200 So. 376], supra, we must assume that the jury considered all elements of damage. In the instant case the jurors may well have concluded that although there was in fact no compensa-ble pain and suffering, the petitioner, nevertheless, had incurred medical expense and was to that extent entitled to recover.”

In the light of these cases and the other controlling principles of law, our review of the record in the instant appeal leads us to the conclusion that, even with all deference paid to the broad judicial discretion possessed by a trial judge in ruling on a motion for a new trial, the jury verdict was not against the manifest weight of the evidence. From the conflicting evidence presented to it, a jury of reasonable persons could have returned the verdict which it did in this case. Also, because the order appealed failed to contain any finding in support of the conclusion that the jury was influenced by any consideration outside of the record, we are of the opinion that the mere statement of such a conclusion fails to constitute an adequate basis upon which to grant a new trial.

Based upon these determinations, it follows that the trial judge abused his discretion in granting appellees’ motion for a new trial on the issue of damages. Therefore, the order appealed granting a new trial is reversed and the cause is remanded with directions to reinstate the jury verdict and to enter a judgment based on the verdict.

Reversed and remanded with directions.


author: PER CURIAM.

text:
    Kevin McCLOUD, Petitioner, v. Louie L. WAINWRIGHT, Director, Division of Corrections, Respondent.
    No. 75-1891.
    District Court of Appeal of Florida, Fourth District.
    May 9, 1978.
    Rehearing Denied June 21, 1978.
    Richard L. Jorandby, Public Defender, and Frank B. Kessler, Asst. Public Defender, and Charles D. Peters, Legal Intern, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Benedict P. Kuehne, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

The question on appeal is whether the judgment and sentence should be reversed and a new trial ordered because the court allowed the introduction into evidence of a confession without first having specifically found it to have been voluntarily and freely given. A hearing was held to determine the voluntariness of the confession and the Appellant testified he was coerced. The court denied his objection to the admission of the confession but the judge did not say he found the confession to have been freely and voluntarily given as is required in McDole v. State, 283 So.2d 553 (Fla.1973); Wilson v. State, 304 So.2d 119 (Fla.1974); Sims v. State of Georgia, 385 U.S. 538, 87 S.Ct. 639, 17 L.Ed.2d 593 (1967); Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964); Land v. State, 293 So.2d 704 (Fla.1974); Danahey v. State, 298 So.2d 444 (Fla. 4 DCA 1974).

REVERSED and REMANDED for new trial, including a hearing and proper order on Appellant’s objection to the introduction of the alleged confession.

CROSS, DOWNEY and DAUKSCH, JJ., concur.


author: SMITH, Acting Chief Judge.

text:
    Jimmy Floyd WRIGHT, Petitioner, v. Louie L. WAINWRIGHT, Secretary, Department of Offender Rehabilitation, Respondent.
    No. II-392.
    District Court of Appeal of Florida, First District.
    May 18, 1978.
    Michael J. Minerva, Public Defender, and Janice G. Scott, Asst. Public Defender, for petitioner.
    Robert L. Shevin, Atty. Gen., and Michael H. Davidson, Asst. Atty. Gen., Tallahassee, for respondent.
   SMITH, Acting Chief Judge.

Wright, a state prisoner, petitions for a writ of habeas corpus alleging that respondent Wainwright has taken his liberty, in the form of gain-time, without due process of law.

Wright escaped from a state road prison, was apprehended, and pleaded guilty to a charge of escape. The trial judge accepted his guilty plea, without informing him that he might lose his accumulated gain-time upon his return to prison, and sentenced him to serve one year and one day to run consecutively with his existing sentence. Wright alleges that, on returning to prison, officials told him he had “automatically” forfeited 260 days of gain-time on his prior sentence because of his escape and conviction. Wright seeks restoration of his forfeited gain-time because he was not given notice or a hearing to contest the forfeiture, which Wright urges is guaranteed by the due process clause of the fourteenth amendment to the United States Constitution.

Section 944.28(1), Florida Statutes (1977), provides that:

(1) If a prisoner is convicted of escape, or if the clemency or parole granted to him is revoked, the Department of Offender Rehabilitation may, without notice or hearing, declare a forfeiture of all gain-time earned and extra gain-time allowed such prisoner, if any, prior to such escape or his release under such clemency or parole, as the case may be.

The Florida Supreme Court recently held that Section 944.28(1) does not offend constitutionally guaranteed due process rights. Morgan v. Cook, 344 So.2d 577 (Fla.1977), followed by this court in Hanks v. Wainwright, 360 So.2d 783 (Fla. 1st. DCA 1978). Moreover, the statute’s express provision for forfeiture without notice or hearing forecloses any hearing remedy Wright might otherwise have under Section 120.57, Florida Statutes (1977), as a person whose substantial interests are determined by an agency. See Florida Dep’t of Offender Rehab. v. Jerry, 353 So.2d 1230 (Fla. 1st DCA 1978).

We do not pass on whether the potential forfeiture of gain-time, discretionary under the present statute but allegedly automatic in practice, is in law or in practice part of the minimum mandatory or maximum possible penalty contemplated by Rule 3.172(c)(i), Fla.R.Crim.P., of which the trial judge should have advised Wright before accepting his guilty plea. See Williams v. State, 316 So.2d 267, 271 (Fla.1975). That issue must be raised, if at all, by an appropriate attack on the judgment and sentence.

The petition is DENIED.

ERVIN and BOOTH, JJ., concur.


text:
    Jules J. DOSSICK, D. O., Petitioner, v. FLORIDA STATE BOARD OF OSTEOPATHIC MEDICAL EXAMINERS, Respondent.
    No. 77-1444.
    District Court of Appeal of Florida, Third District.
    May 23, 1978.

      Shalle Stephen Fine, Miami, for petitioner.
    Robert L. Shevin, Atty. Gen., David J. Baron and Joseph Lawrence, Asst. Attys. Gen., Tallahassee, for respondent.
    Before HAVERFIELD, C. J., and HEN-DRY and NATHAN, JJ.
   PER CURIAM.

Petitioner-appellant, Jules J. Dossick, D. O., filed the instant petition for writ of certiorari seeking review of an order of the Florida State Board of Osteopathic Medical Examiners revoking his license.

An administrative complaint was filed against Dossick for the alleged violations of subsections 2(m) and (n) of Section 459.14, Florida Statutes (1975). In essence the complaint alleged that Dossick, on four separate occasions, had given to his patients a prescription for Placidyl 750 mg. without inquiring into or substantiating any physical or psychological need for such drug and without inquiring into the patients’ past medical history. Extensive evidence was presented at several hearings held before a hearing officer. Based upon this evidence, the hearing officer entered a recommended order in which he set out his findings of fact and recommended that Dossick’s license be suspended for six months based upon the conclusion that he (Dossick) did not conform to the minimal community standards of acceptable and prevailing osteopathic medicine which requires a physical examination be given before Placidyl is prescribed for a patient. The hearing officer also found that Dossick’s motivation was not financial in that he spent upward of one-half hour with each patient for a $10 fee. Thereafter, a hearing was held before the Osteopathic Board of Medical Examiners which revoked Dossick’s license and Dossick filed the instant petition for writ of certiorari to review the revocation.

Although there was substantial, competent evidence contained in the record presented to the Osteopathic Board (and to this court) to support the findings of fact of the hearing officer, the complete record of the proceedings before the hearing officer was not before the Osteopathic Board. There being an incomplete record before the Board, we find that the Board erred in increasing the penalty recommended by the hearing officer by revoking Dossick’s license. See Section 120.57(1)(b)(9), Florida Statutes (1975).

Accordingly, the writ of certiorari is granted, the revocation order is reversed and the cause remanded to the Osteopathic Board to enter a new order suspending Dos-sick’s license for six months as recommended by the hearing officer.

Certiorari granted.

      . “(m) A finding by the board that the individual is guilty of immoral or unprofessional conduct. Unprofessional conduct shall include any departure from, or failure to conform to, the minimal standards of acceptable and prevailing osteopathic medical practice, without regard to the injury of a patient, or the committing of any act contrary to honesty, whether the same is committed in the course of practice or not.
      “(n) Violation of any statute or law of this state or any other state or territory of the United States or of any foreign country, which statute or law relates to the practice of medicine.”

      . “9. The agency may adopt the recommended order as the agency’s final order. The agency in its final order may reject or modify the conclusions of law and interpretation of administrative rules in the recommended order, but may not reject or modify the findings of fact unless the agency first determines from a review of the complete record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law. The agency may accept or reduce the recommended penalty in a recommended order, but may not increase it without a review of the complete record. In the event a court in reversing an agency’s order, finds that such agency action was done in bad faith or maliciously, the court may award attorney’s fees and costs to the aggrieved prevailing party.”


text:
    Thomas R. TAYLOR, as Personal Representative of the Estate of Thomas Calvin Taylor, Deceased, Appellant, v. Betty R. THOMPSON, Appellee.
    No. HH-486.
    District Court of Appeal of Florida, First District.
    May 25, 1978.
    Rehearing Denied June 23, 1978.
    Charles B. Lembcke, of Datz, Jacobson & Lembcke, P. A., Jacksonville, for appellant.
    A. Hamilton Cooke, of Alexander, Spraker, Cooke & Hand, Jacksonville, for appel-lee.
   PER CURIAM.

Appellant appeals the trial court’s judgment allowing appellee to recover $2,505.60 from the Taylor estate as restitution for sums she allegedly expended on behalf of the decedent during his lifetime. Appellee cross-appeals the trial court’s denial of her count seeking compensation for services she allegedly performed for the decedent. We affirm in part and reverse in part. Appellant’s argument, contesting the sufficiency of the proof on the restitution count and the admissibility of certain checks introduced by appellee, is without support in the record or the cases cited. There is merit, however, in appellee’s contention that the court erred in failing to award her compensation for her numerous personal services to the decedent. There was substantial un-contradicted testimony that appellee served as chauffeur, cook, laundryperson, housekeeper, companion, and nurse to the decedent over a four-year period without compensation before his death. As the court stated in Symon v. J. Rolfe Davis, Inc., 245 So.2d 278, 279 (Fla. 4th DCA 1971):

“. . . where services are rendered by one person for another which are knowingly and voluntarily accepted, the law presumes that such services are given and received in expectation of being paid for, and will imply a promise to pay what they are reasonably worth.”

The denial of appellee’s Count II is reversed and the case remanded for a determination of the reasonable value of appellee’s services. AFFIRMED in part and REVERSED in part.

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


text:
    EMPIREGAS, INC., OF PENSACOLA, Appellant, v. Harvey L. THOMAS, Appellee.
    No. II-35.
    District Court of Appeal of Florida, First District.
    May 26, 1978.
    Rehearing Denied June 22, 1978.
    Benjamin W. Redding, of Barron, Red-ding, Boggs & Hughes, Panama City, for appellant.
    Charles L. Hoffman, Jr., of Shell, Fleming, Davis & Menge, Pensacola, for appel-lee.
   PER CURIAM.

Appellant contends the trial court erred in failing to enforce a noncompetition clause in an employment agreement between it and appellee. We reluctantly agree and reverse. Section 542.12(2), Florida Statutes (1977), allows an employee to agree with his employer to “refrain from carrying on or engaging in a similar business and from soliciting old customers of such employer within a reasonably limited time and area.” The statute has been upheld by the Florida Supreme Court on several occasions. See Capelouto v. Orkin Exterminating Co. of Fla., Inc., 183 So.2d 532 (Fla. 1966), app. dism. 385 U.S. 11, 87 S.Ct. 78, 17 L.Ed.2d 10; Miller Mechanical, Inc. v. Ruth, 300 So.2d 11 (Fla. 1974). This court, construing the statute in Atlas Travel Service, Inc. v. Morelly, 98 So.2d 816 (Fla. 1st DCA 1957), stated:

“The permissory language of the statute, whereby agreements of the character in suit ‘may’ in the ‘discretion’ of the court, ‘be enforced by injunction’ does not imply that the court is vested with any absolute or arbitrary discretion, and is construed as requiring that the discretion shall be reasonably exercised to the end that the object of the statute may not be nullified.”

With these precedents in mind, it is clear that the trial court abused its discretion here in failing to give effect to the agreement. The proof was sufficient to justify an injunction. We do not find, however, that there was sufficient proof of damages.

The order is therefore REVERSED as to injunctive relief and AFFIRMED as to damages. The case is remanded for the entry of an injunction.

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


author: HOBSON, Acting Chief Judge.

text:
    Constantino GARCIA, Appellant, v. John Thomas DWYER, and Eva Ileta Dwyer, for the use and benefit of the Aetna Casualty & Surety Company and Federated Mutual Insurance Company, Appellees.
    No. 77-364.
    District Court of Appeal of Florida, Second District.
    May 26, 1978.
    Peter P. Behuniak, Tampa, for appellant.
    Thomas J. Ellwanger of Fowler, White, Gillen, Boggs, Villareal & Banker, Tampa, for appellees.
   HOBSON, Acting Chief Judge.

This is an appeal from the final judgment in a subrogation action brought by an automobile insurance carrier to recover for payments made to its insured. The claim arose from a collision involving a van for which appellant, Garcia, is financially responsible. On Garcia’s appeal from the trial court’s finding that Garcia was liable under the dangerous instrumentality doctrine, we find that Garcia has failed to demonstrate reversible error. On insurers’ cross-appeal, we find that the trial court improperly imputed the negligence of the driver of the insured vehicle to his passenger.

Mr. Dwyer, husband, was the driver of the insured vehicle. Mrs. Dwyer, wife, was a passenger in that vehicle. The Dwyers were injured when their vehicle was struck in the rear by the van. Insurers paid $6,500 to the Dwyers in settlement of their claims. The insurers then brought this subrogation action against Garcia to recover the $6,500. The case was tried without jury. At the close of the trial, the trial court found the husband to have been 40% negligent, and found that the damages totaled $6,500. The trial court entered judgment for the amount of total damages reduced by the amount of the husband’s negligence.

Insurers argue that reduction, of the total amount of damages paid to driver and passenger, by the amount of the negligence of the driver impliedly imputes the negligence of the driver to the passenger. We agree. Insurers contend that this imputation is improper in the absence of proof of vicarious liability of the passenger for the acts of the driver. Again, we agree. Acevedo v. Acosta, 296 So.2d 526 (Fla. 3d DCA 1974); Hammack v. Veillette, 233 So.2d 836 (Fla. 3d DCA 1970).

The trial court found that the total damages to plaintiffs were $6,500. The only evidence concerning the full allocation of these damages between the Dwyers was the testimony of an employee of one of the insurers. That testimony established that $4,000 was paid on wife’s claim and $2,500 was paid on husband’s claim. Garcia presented no evidence impeaching or rebutting the propriety of this allocation of the total damages. There was no evidence that wife was directly or vicariously responsible for the accident. Consequently, the trial court committed reversible error in including the damages paid on wife’s claim among the amount reduced by the degree of the husband’s negligence.

That portion of the final judgment finding Garcia liable for the damages incurred by plaintiffs is affirmed. That portion of the final judgment which includes the damages attributable to the wife’s injuries among the amount reduced by the 40% negligence of the husband is reversed. The case is remanded for entry of a final judgment awarding insurers 60% of the amount paid on the husband’s claim and 100% of the amount paid on the wife’s claim.

REVERSED IN PART; AFFIRMED IN PART.

OTT and DANAHY, JJ., concur.


text:
    Casimiro GARCIA, Appellant, v. STATE of Florida, Appellee.
    No. 77-1651.
    District Court of Appeal of Florida, Second District.
    May 26, 1978.
    Jack O. Johnson, Public Defender, and Susan G. Sexton, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant Casimiro Garcia was found guilty of possessing on March 14,1977 more than five grams of marijuana. On appeal he contends that the court erred in admitting, over timely objection, the testimony of one of the state s witnesses. We agree and, therefore, reverse his conviction.

Appellant took the witness stand in his own behalf. He testified that several days prior to the date on which the contraband was discovered in his automobile he had loaned the vehicle to a friend, that the man he had loaned the automobile to did not return it, that after a few days appellant found it abandoned between Naples and Immoklee, and that he hot wired it and drove it to Naples where his brother had an ignition key made. After the attorney for appellant announced that the defense rested, the state indicated that it would like to call as a rebuttal witness Officer Raymond Bass of the Collier County Sheriff’s Department who had testified in the state’s case in chief. Appellant’s counsel objected to the introduction of testimony proffered by the state pertaining to sale of marijuana in March 1976 by appellant which was wholly independent of and unrelated to the offense at issue. The trial court overruled the objection.

Such testimony cannot be said to be rebuttal testimony and did not rebut appellant’s testimony concerning the custody and control of the automobile in this case. The objectionable testimony showed only his propensity to sell marijuana and, therefore, it was inadmissible under the holding of Williams v. State, 110 So.2d 654 (Fla.1959). Furthermore, the state failed to demonstrate .that the evidence was relevant to any factual issue in the case. State v. Davis, 290 So.2d 30 (Fla.1974); Roche v. State, 326 So.2d 448 (Fla. 2d DCA 1976); Franklin v. State, 229 So.2d 892 (Fla. 3d DCA 1969); see Duncan v. State, 291 So.2d 241 (Fla. 2d DCA 1974).

Accordingly, the judgment and sentence are reversed and the cause remanded to the trial court for a new trial.

BOARDMAN, C. J., and RYDER and DANAHY, JJ., concur.


author: BOARDMAN, Chief Judge.

text:
    George C. MATTHEWS, Appellant, v. STATE of Florida, Appellee.
    No. 78-4.
    District Court of Appeal of Florida, Second District.
    May 26, 1978.
    Kristen Carlson Mander of Sawyer & Mander, St. Petersburg, for appellant.

      Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie King, Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Chief Judge.

Appellant George C. Matthews appeals the judgment of guilty and sentence of 30 days confinement in the county jail and a $500 fine for contempt of court.

The ruling of the trial court was predicated upon certain statements included in a complaint appellant filed against Judge Wehle and others. Appellant sought in-junctive relief and damages for alleged criminal acts committed against appellant, his wife, and others and denial of appellant’s constitutional rights. The complaint included the following allegations directed against Judge Wehle:

6.) On information and belief defendant Judge Wehle is over 75 years of age, has a malicious animosity to any person trying his own case or non-bar [sic] member, and is reputed to be “HATCHET JUDGE” to cover up illegal or unethical conduct for other judges, and the court’s “HIT MAN” of an adversary, and a judge other judges use to protect their, alleged reputation and avoid injury in political campaigns, and that on information and belief said judge has been holding secret meetings with adversaries of plaintiff outside the Twentieth Judicial Circuit to pre-determine [sic] certain cases that have been agreed upon by lawyers and county officials with said Judge, and on information and belief has already made derogatory remarks of what he would do to plaintiff.
7.) That on Information and belief, exchange of articles of value for the appointment of said Judge Victor 0. Wehle to dismiss plaintiff’s lawsuits selected by the defendants, and not to try cases filed against plaintiff, has occurred, with county officials involved.
AND, ON OR ABOUT October 1, 1977 on information and belief defendants Vega, Wenzel, Pickworth, Siesky, John Doe # 2, acting in cpncert [sic] and collusion, offered election campaign support and other articles of value unknown at this time to Defendant Boyd in return for the Assignment of defendant WEHLE, reputed “hatchet Judge” and “Hit man”, allegedly a SENILE and VINDICTIVE, capricious retired judge sans scruples and principles with a natural animosity against laymen pleading their own cases, and who is reputed to have made several statements of a highly uncomplimentary nature and threat averring what he would do to plaintiff, [sic] and his news paper [sic].

On the basis of these allegations Judge Wehle issued an order to appellant to show cause why he should not be held in contempt of court. At a hearing on the contempt charge appellant offered no defense other than that Judge Wehle was disqualified to preside over the contempt proceedings. Judge Wehle found that the making and publication of the statements “were directed against the authority and dignity of the Court acting judicially; and did unlawfully assail and discredit the Court. . . ."

According to the weight of authority, defamatory words published by parties, counsel, or witnesses in the due course of a judicial proceeding are absolutely privileged if they are connected with or relevant or material to the cause in hand or subject of inquiry. Myers v. Hodges, 53 Fla. 197, 44 So. 357 (1907); Goodman v. Goldstein, 145 So.2d 882 (Fla. 3d DCA 1962); 53 C.J.S. Libel and Slander § 104. The statements at issue here, however false or malicious they may in fact be, constitute the alleged facts underlying appellant’s claim against Judge Wehle. As such they are privileged. See Fair v. Lo Scalzo, 287 So.2d 327 (Fla. 2d DCA 1974).

The judgment and sentence are reversed and vacated and the cause remanded for further proceedings consistent with this opinion.

HOBSON and SCHEB, JJ., concur.


author: DANAHY, Judge.

text:
    Charles Richard LANIER, as Personal Representative of the Estate of Ralph Moore, Deceased, Appellant, v. Clayton T. POPPELL, Appellee.
    No. 78-218.
    District Court of Appeal of Florida, Second District.
    May 26, 1978.
    James P. Hahn, of Hahn, Breathitt, Roberts & Watson, Lakeland, for appellant.
    Jon H. Anderson, of Munson & Anderson, Lakeland, for appellee.
   DANAHY, Judge.

The question before us is the sufficiency of the allegations of an amended complaint seeking enforcement of an oral agreement to devise real property. The trial judge found the amended complaint sufficient to withstand a motion to dismiss. We reverse.

The following is a summary of the essential facts alleged in the amended complaint:

1. In 1947, appellee/plaintiff (Popped) entered into an oral agreement with his uncle, now deceased (the decedent), under which Popped agreed to render certain services to the decedent during the decedent’s lifetime in return for the decedent’s agreement to make a will so as to compensate Popped for these services in the amount of “½ section (320) acres of land, or the value thereof.”

2. From 1947 until the death of the decedent in 1976, Popped rendered the services as agreed upon, thus fulfilling his obligations under the agreement.

3. The decedent did not perform his obligations under the agreement in that he failed to execute a will devising the land or the value thereof to Popped.

Poppell's amended complaint demanded specific performance or, in the alternative, damages for breach of the agreement or, in the alternative, restitution. Appellant/defendant, personal representative of the decedent’s estate, filed a motion to dismiss Poppell’s amended complaint on the ground, inter alia, that the claim alleged in the amended complaint is barred by the Statute of Frauds, now found in Section 725.01, Florida Statutes (1977). The parties agree that this statute is applicable here.

In support of and in opposition to the motion to dismiss, the parties argued the applicability of Battle v. Butler, 138 Fla. 392, 189 So. 846 (1939). In that case, the supreme court followed a Texas case in adopting the rule that, in order to constitute part performance sufficient to take an oral agreement to devise real property out from under the Statute of Frauds, delivery of possession of the real property is required. In the case at bar, the trial judge specifically declined to follow the rule of the Texas case adopted in Battle v. Butler, stating that “the practical effect of this would be to effectively prohibit enforcement of any oral agreement for a will since inter vivos transfer of possession is ordinarily irrelevant to testamentary devise.”

With all due respect to the feeling of the trial judge that the rule of the Battle case is too restrictive, we must nevertheless reverse on the ground that the holding of Battle controls here. No case has been cited to us, nor can we find any, which recedes from the rule stated in Battle. On the contrary, this court has had occasion to expressly follow the Battle holding in a case involving an oral agreement to convey real property. Avery v. Marine Bank & Trust Company, 216 So.2d 251 (Fla. 2d DCA 1968). Battle and Avery tell us that, as far as the necessity of possession is concerned, there is no distinction between an oral agreement to convey real property and an oral agreement to devise real property. We are bound by those decisions, and hold that delivery of possession is essential in both instances.

Poppell has argued to us that he may be able to further amend his complaint so as to allege delivery of possession to him of the property in question by the decedent. This apparently is for the reason that the services rendered by Poppell concerned the operation of a ranch on that property. We think Poppell should be given an opportunity to further amend so as to include any such allegations, if he is able to do so. However, we caution that the necessary possession must be shown to have been with the acquiescence of the decedent and referable exclusively to the alleged agreement. Accord, Avery v. Marine Bank & Trust Company, supra, and cases cited therein; Binninger v. Hutchinson, 355 So.2d 863 (Fla. 1st DCA 1978).

Lastly, Poppell argues that he is at least entitled to stay in court to recover the reasonable value of the services which he rendered to the decedent. In this court, appellant/defendant agreed, and so do we. Avery v. Marine Bank & Trust Company, supra. However, the complaint should be appropriately amended to state clearly that basis for recovery.

Accordingly, this case is remanded with instructions to enter an order dismissing Poppell’s amended complaint with leave to file a further amended complaint in accordance with this opinion.

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

      . Former § 731.051, Fla.Stat. (1957), now incorporated in § 732.701, Fla.Stat. (1977), provided that no agreement to make a will or to give a legacy was binding or enforceable unless such agreement was in writing signed in the presence of two subscribing witnesses by the person whose executor or administrator was sought to be charged. That section, however, was applicable only to agreements made on or after January 1, 1958.

      . Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114 (1921).


author: PEARSON, Judge.

text:
    Stewart STEPHENS, Appellant, v. The STATE of Florida, Appellee.
    No. 76-2380.
    District Court of Appeal of Florida, Third District.
    May 30, 1978.

      Bennett H. Brummer, Public Defender and Karen Gottlieb, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Joel Rosenblatt, Asst. Atty. Gen., for appellee.
    Before PEARSON, NATHAN and KE-HOE, JJ.
   PEARSON, Judge.

The defendant pleaded nolo contendere to a charge of grand larceny pursuant to a negotiated plea and a reservation of right to appeal the denial of his motions for discharge under the speedy trial rule (Fla.R.Crim.P. 3.191).[] The right of a defendant to accept a negotiated plea of nolo conten-dere and reserve the right to appeal is not argued in this case and is not decided on this appeal.

It affirmatively appears from the record in this case that the defendant, at the call of the case prior to the expiration of the 180 day period, announced that the defense was not ready because of the failure of defense witnesses to appear for deposition. At that time, defense counsel announced a desire to enter a negotiated plea if such could be arranged and further that if a negotiated plea could not be arranged, the defense would request a continuance. The trial was continued and, subsequently, the negotiated plea was entered.

Defense counsel’s announcement of his reason for requesting a continuance was not binding on the court. If defendant had desired to stand upon the rights granted him under the speedy trial rule, he could have presented the alleged fault of the State as a basis for not going to trial on the scheduled date. If the court found that the continuance had been necessitated by the failure of the State to proceed properly, the defendant would have been entitled to discharge upon the expiration of the 180 day period. To hold otherwise would deprive the State of the opportunity to proceed under Fla.R.Crim.P. 3.191(d)(2) for a continuance not charged to the State.

We conclude, therefore, that this appeal is not governed by the rule in State ex rel. Wright v. Yawn, 320 So.2d 880 (Fla. 1st DCA 1975), but falls within the rule announced by the Supreme Court of Florida in Rubiera v. Dade County ex rel. Benitez, 305 So.2d 161 (Fla.1974).

Affirmed.

      . This appeal was first presented to this court upon a public defender memorandum brief pursuant to motion to withdraw. The court, finding an arguable point upon appeal, denied the motion and required full briefs by appellant and the State.


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    Hugh Lee WOOD, Sr., Appellant, v. Molly Roberts WOOD, Appellee.
    Nos. 77-577, 77-578.
    District Court of Appeal of Florida, Third District.
    May 30, 1978.
    Richard A. Burt and Thomas D. Wood, Miami, for appellant.
    Frates, Floyd, Pearson, Stewart, Richman & Greer and Scott D. Sheftall, Miami, for appellee.
    Before HENDRY and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Appellant/respondent/husband takes this consolidated appeal from a post dissolution of marriage “order on alimony, child support, attorneys’ fees and costs.”

The sole issue on appeal is whether the chancellor abused his discretion in entering an order which reserved jurisdiction to award permanent alimony to appellee/peti-tioner/wife. It is appellant’s contention that the chancellor abused his discretion in reserving jurisdiction in that said reservation was incorporated in the above order without giving appellant an opportunity to present evidence as to the wife’s need, if any, for such an award of alimony. It is our opinion, however, that no abuse of discretion has been shown.

The order appealed from was rendered after a judgment dissolving the marriage of the parties was entered. Said order, inter alia, awarded appellee lump sum alimony and found appellant presently incapable of paying periodic alimony. The chancellor, however, reserved jurisdiction to award permanent alimony.

Based upon our view of the record, appellant’s “notice” or “due process” argument appears to miss the mark, for the chancellor did not award periodic alimony to appellee; rather, he reserved jurisdiction to award same at such future date as appel-lee could demonstrate a material change in the circumstances of the parties as would warrant such an award. A reservation of jurisdiction for such a purpose is, of course, permissible. Marshall v. Marshall, 273 So.2d 107 (Fla. 3d DCA 1973); Poe v. Poe, 263 So.2d 644 (Fla. 3d DCA 1972). At such time when appellee does, in fact, petition the court for an award of permanent alimony, appellant will then be given the opportunity to present evidence in opposition to such an award.

Accordingly, no abuse of discretion having been shown, the order appealed from is hereby affirmed. .

Affirmed.


author: HENDRY, Judge.

text:
    Robert FOSS, d/b/a Hallandale Beach Citgo, Appellant, v. Gerald B. MOSKOWITZ and Liberty Mutual Insurance Company, Appellees.
    Nos. 77-783, 77-594.
    District Court of Appeal of Florida, Third District.
    May 30, 1978.
    Corlett, Merritt, Killian & Sikes, Miami, Greene & Cooper, Jacksonville, for appellant.
    Magill, Sevier & Reid and Kevin P. O’Connor, Miami, for appellees.
    Before HENDRY, BARKDULL and KE-HOE, JJ.
   HENDRY, Judge.

These consolidated appeals are taken from (1) a final judgment rendered pursuant to a directed verdict in favor of appel-lees, defendants and cross-defendants below, and against appellant, defendant and crossclaimant below, in an action for indemnification; and (2) from a final order of dismissal.

Stated briefly, the facts reveal the plaintiffs deceased husband was fatally injured when an automobile, driven by appellee Moskowitz, struck him at a car wash operated on appellant’s premises. Appellee and the deceased were waiting in line to use the car wash facilities when the former lost control of his auto and pinned the latter, who had just alighted from his vehicle, between automobiles.

Plaintiff subsequently filed a wrongful death action against appellee and his insurer and appellant alleging negligence. Appellant thereupon filed a crossclaim for indemnity against appellees claiming that, at best, he was passively negligent and enti-tied to indemnification from appellees, the active tortfeasors, for any damages ultimately awarded the plaintiff against him.

The case was tried before a jury. Before the jury retired, however, the trial court directed a verdict on the issue of liability against appellees in favor of the plaintiff. Thereupon, both appellees and appellant settled with the plaintiff for $400,000.00, the settlement providing that appellant retained the right to proceed against appel-lees on the crossclaim for indemnity.

Upon motion, the trial judge then directed a verdict in favor of appellees on the crossclaim. A final judgment on the cross-claim was then entered in accordance with the directed verdict. Pursuant to the settlement with the plaintiff, the parties executed a stipulation of dismissal embodied in a final order of dismissal. From the final judgment entered in accordance with the directed verdict and final order of dismissal entered pursuant to the stipulation, these consolidated appeals have been taken.

The sole point on appeal warranting discussion is whether the trial court erred in granting appellees’ motion for directed verdict on appellant’s crossclaim for indemnity. Appellant contends that, viewing the evidence and all inferences taken therefrom in his favor, a jury could have legally found that he was but passively negligent and entitled to indemnification from appellees. We disagree.

The record clearly reveals that appellant, who profited from the car wash facilities, was intimately involved in the day to day operation of the car wash, often assisting in the maintenance of order in the long lines of vehicles waiting to utilize the facilities. In addition, appellant, himself, testified that the heavy traffic situation at the gas station — car wash, when combined with the lack of warning signs directing patrons to proceed to designated waiting areas away from the line of traffic, amounted to a dangerous condition. Therefore, it can not be said that appellant lacked knowledge of the precarious situation, entitling him to the status of a passive tortfeasor. See Florida Power Corporation v. Taylor, 332 So.2d 687 (Fla.2d DCA 1976).

In sum, in that appellant possessed the knowledge of the negligent operation of the car wash facility, under the law, he was an active tortfeasor not entitled to indemnification. General Motors Corporation v. County of Dade, 272 So.2d 192 (Fla.3d DCA 1973); see also Winn-Dixie Stores, Inc. v. Fellows, 153 So.2d 45 (Fla.1st DCA 1963), affirmed as modified at 160 So.2d 102 (Fla.1964).

Accordingly, the final judgment and order of dismissal are hereby affirmed.

Affirmed.


text:
    Ira LIVINGSTON and Lillian Livingston, Appellants, v. Leah Gold FEIN, Appellee.
    No. 77-934.
    District Court of Appeal of Florida, Third District.
    May 30, 1978.

      Robert A. Shupack, North Miami Beach, for appellants.
    Sobo & Wellens, Fort Lauderdale and Lee B. Gartner, Jacksonville, for appellee.
    Before HENDRY, HUBBART and KE-HOE, JJ.
   KEHOE, Judge.

Appellants, defendants below, appeal an order denying their motion to set aside a default and to vacate a final judgment entered against them in an action for liquidated damages.

Our review of the record leads us to the conclusion that appellants failed to establish by clear and convincing evidence the invalidity of the service of process in this cause. Without such proof, the trial court had no basis upon which to set aside the default judgment. See, e. g., Winky’s Inc. v. Francis, 229 So.2d 903 (Fla. 3d DCA 1970); and Mitchell v. Brown, 114 So.2d 178 (Fla. 1st DCA 1959). Accordingly, the order appealed is affirmed.

Affirmed.


author: HUBBART, Judge.

text:
    Louis P. MANGANIELLO, Appellant, v. Elizabeth A. MANGANIELLO, Appellee.
    No. 77-1277.
    District Court of Appeal of Florida, Third District.
    May 30, 1978.
    Rash & Katzen, South Miami, for appellant.
    Charles J. Crowder, South Miami, for ap-pellee.
    Before HENDRY and HUBBART, JJ., and PARKER, J. GWYNN (Ret.), Associate Judge.
   HUBBART, Judge.

This is a post-judgment proceeding for contempt and modification brought by the wife in a divorce action in which the trial court ordered the husband to make certain child support payments to the wife in accord with a prior divorce decree. The husband appeals.

The central question presented for review is whether a divorce decree entered prior to July 1, 1973, requiring a husband to make child support payments to his wife without specifying a termination date therein obligates the husband to make such child support payments until the child reaches the age of twenty-one. We hold that such a pre-1973 divorce decree does impose such an obligation of support on the husband unless the husband is able to show on a motion to modify under Section 61.14, Florida Statutes (1977), that the child has become married or self-supporting prior to the child’s twenty-first birthday. We further hold that this result is in no way changed by Section 743.07, Florida Statutes (1977), lowering the age of majority to eighteen because the statute by its express terms does not operate retroactively to change or alter child support awards made prior to July 1, 1973, the effective date of the statute.

The facts of this case are substantially undisputed. On August 4,1970, the Circuit Court for the Eleventh Judicial Circuit of Florida entered a final judgment of divorce severing the marriage between the parties Louis and Elizabeth Manganiello. The divorce decree among other things awarded the wife Elizabeth Manganiello custody of the parties’ three minor children (ages 7-11) and ordered that the husband Louis Man-ganiello pay the wife a total of $540 a month in child support payments. The divorce decree did not specify when such child support payments would terminate.

On August 9, 1976, the parties’ eldest son became eighteen years of age and shortly thereafter entered the University of South Florida at Tampa, Florida, on a scholarship of an unspecified amount. The husband thereafter unilaterally terminated any child support payments for this son by reducing such payments by $180 a month, the pro-rata share of the child support award applicable to such son. The termination was based on the contention that the child support award under the prior divorce decree ended when the child became eighteen in view of. an intervening statute effective July 1, 1973, lowering the age of majority to eighteen. § 743.07 Fla.Stat. (1977).

On January 19, 1977, the wife filed a motion for contempt and modification against the husband seeking enforcement of the prior divorce decree as to arrearages in child support and an increase in child support thereafter because of an alleged change in circumstances. The husband filed no motion to modify or terminate any of the child support payments. After two separate evidentiary hearings, the trial court entered an order requiring the husband to pay $980 in child support arrearag-es and thereafter to make child support payments for the three minor children in accord with the prior divorce decree until such child becomes twenty-one, marries or enters upon full time employment. The motion to modify was not ruled upon by the trial court, but was continued for another hearing. The husband appeals.

The law is well-settled that a divorce decree entered prior to July 1, 1973, requiring a husband to make child support payments to his wife, either until majority or without specifying a termination date therein, obligates the husband on the face of the decree to make child support payments until the child reaches his twenty-first birthday. The only method by which a husband may absolve himself of such obligation of support prior to the child reaching twenty-one is if he files a motion to modify under Section 61.14, Florida Statutes (1977), and is able to show that the child has since become married or self-supporting. This result is in no way changed by Section 743.07, Florida Statutes (1977), lowering the age of majority to eighteen because the statute by its express terms does not operate retroactively to alter or change child support awards made prior to July 1, 1973, the effective date of the statute. Finn v. Finn, 312 So.2d 726 (Fla.1975); Daugherty v. Daugherty, 308 So.2d 24 (Fla.1975); Adams v. Adams, 340 So.2d 1290 (Fla. 3d DCA 1977); Field v. Field, 291 So.2d 654 (Fla. 2d DCA 1974). To the extent that Dwyer v. Dwyer, 327 So.2d 74 (Fla. 1st DCA 1976), reaches a different result, we decline to follow it as being contrary to the established law of this state.

Measured by these standards, it is clear that the trial court was eminently correct in enforcing the 1970 divorce decree herein as to child support payments until the children reach the age of twenty-one absent a showing that the children have become married or self-supporting. Although the husband contends that his eldest son is now self-supporting by virtue of his scholarship as a freshman at the University of South Florida in Tampa, Florida, the husband filed no motion to modify the child support payments based on such ground under Section 61.14, Florida Statutes (1977), and made no clear showing in the record that the son is now self-supporting by virtue of his scholarship. We do not foreclose the husband, however, from filing an appropriate motion to raise this issue in the trial court.

We have considered the other contentions raised by the husband upon this appeal and find them to be without merit. The judgment appealed from is therefore affirmed.

Affirmed.


text:
    Sheila HOLLAND, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1302.
    District Court of Appeal of Florida, Third District.
    May 30, 1978.

      Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before HENDRY and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The appellant Sheila Holland, when tried on an information charging her with the crime of second degree murder, was found guilty of the lesser offense of manslaughter. Upon adjudication of guilt thereof she was sentenced to imprisonment for a term of five years.

The appellant, using a knife, stabbed the victim in the chest. The wound became infected and the victim died five weeks after the incident. This court has considered the several arguments presented on behalf of the appellant and holds no reversible error has been shown.

The ruling of the court denying defendant’s motion for continuance made prior to trial was not an abuse of discretion in the circumstances of the case. Amendment of the information and bill of particulars during the trial with reference to the date of the offense, with leave of court, was not error. The information alleged the killing occurred on the date of the wounding of the victim, whereas the death occurred on a date some five weeks thereafter. The defense was not mislead. In State v. Clein, 93 So.2d 876, 879 (Fla.1957), the Supreme Court said: “And we have held that one date may be alleged and another proved, providing the proof shows the crime committed before the information was filed and within the time of the Statute of Limitations. Horton v. Mayo, 1943, 153 Fla. 611, 15 So.2d 327”. See also: Sparks v. State, 273 So.2d 74 (Fla.1973).

The court did not commit reversible error by sustaining objection by the State to a question by which the defense sought to elicit from an officer a certain statement made by the defendant in his presence. A proffer revealed that the testimony of the officer would be that while in a police car, in the presence of said officer, the defendant had stated that prior to the incident the victim came up behind her and said to defendant that she had a knife and was going to do something to her. It was argued that the exclusion of that testimony operated to the prejudice of defendant’s claim of self-defense. Another officer, as a witness for the State, had revealed an inculpatory statement which the defendant had voluntarily made to the police upon interrogation. Exclusion of the testimony sought from the officer was not harmful error. Substantially the same testimony as that which was excluded was later presented in evidence in the testimony of the defendant herself. See: Barton v. State, 72 Fla. 408, 73 So. 230 (1916); Denmark v. State, 95 Fla. 757, 116 So. 757 (1928); Branch v. State, 96 Fla. 307, 118 So. 13 (1928); United States v. Ashley, 555 F.2d 462 (5th Cir. 1977).

Denial of defendant’s motion to strike the testimony of the medical examiner expressing opinion that the death of the victim resulted from the knife wound inflicted upon her by the defendant, was not error. The witness explained the facts and circumstances upon which he based his opinion. Such an opinion of a medical expert usually involves probability to some degree. To be admissible, a medical expert’s opinion as to the cause of an injury or death may be so based, and is not required to be expressed as a certainty. Atkins v. Humes, 110 So.2d 663, 669 (Fla.1959). The evidence was admissible. The weight to be given to it was a matter to be determined by the jury. See: Vaillancourt v. State, 288 So.2d 216 (Fla.1974).

We find no merit in appellant’s contention that the court erred in denying her motion for directed verdict of acquittal made at the close of the case. The evidence was ample to present for jury decision the issue of self-defense, which is one that ordinarily is for jury determination. Scholl v. State, 94 Fla. 1138, 115 So. 43 (Fla.1927). As stated in Darty v. State, 161 So.2d 864, 873 (Fla. 2d DCA 1964): “It was of course the function of the jury to determine the credibility of the witnesses and the weight and sufficiency of the evidence” [with reference to the issue of self-defense there]. In Turner v. State, 298 So.2d 559, 560 (Fla. 3d DCA 1974), it was said: “It was the function of the jury to evaluate the appellant’s testimony and to decide whether or not to accept his evidence of self defense”. In J. Y. v. State, 332 So.2d 643, 644 (Fla. 3d DCA 1976), the court said: “The question of self-defense is ordinarily one of fact to be determined by the trier of fact".

No reversible error having been shown, the judgment is affirmed.


text:
    Jose A. MUNOZ, Appellant, v. The TRAVELERS INDEMNITY CO., Appellee.
    No. 77-1383.
    District Court of Appeal of Florida, Third District.
    May 30, 1978.
    Robert K. Estes, Coral Gables, for appellant.
    High, Stack, Davis, Lazenby & Bender and Alan R. Dakan, Miami, for appellee.
    Before PEARSON, HENDRY and KE-HOE, JJ.
   PER CURIAM.

The plaintiff, Jose A. Munoz, appeals a final judgment entered pursuant to a jury verdict. Munoz claimed he had coverage for an automobile accident under a policy with the defendant, The Travelers Indemnity Company. The issue tried was whether or not Munoz had complied with an offer to reinstate the policy by depositing in the mails a check for the premium prior to the date the offer would expire.

There is no contention that the policy was not properly cancelled for non-payment of premium and the record reveals that there was evidence before the jury upon which it did find that Munoz had not complied with the offer to reinstate by paying the premium prior to the expiration date of the offer. We hold that appellant’s reliance upon the rule stated in Morrison v. Thoelke, 155 So.2d 889 (Fla. 2d DCA 1963), is not well placed in view of the fact that it appears from evidence relied upon by the jury that the act to be accomplished was not the mailing of the letter, but rather the actual payment of the money for the premium.

Affirmed.

      . The portion of the letter relied upon as the offer for reinstatement provided: “Also at this time, Jose Munoz policy is still pending cancellation for non-payment of premium. If not paid by May 13, 1975, this claim will be denied as no coverage.”

      . In Morrison v. Thoelke, the Court quoted from Corbin, stating:
      * * * * * *
      “ ‘Unless it is clearly otherwise agreed, the mailing of a letter is not a sufficient notice to quit a tenancy, it is not actual payment of money that is inclosed, it does not transfer title to a check or other document; it will not ordinarily be sufficient notice required by a contract as a condition precedent to some contractual duty of immediate performance.’ ” [emphasis added]


text:
    LEISURE INTERNATIONAL VACATIONS, d/b/a Leisure International Incentives, Appellant, v. Timothy HOWE, B. F. Spohrer, Jim Woodman, Individually, d/b/a Airline Development Services and General Air Services, Inc., Appellees.
    No. 77-1384.
    District Court of Appeal of Florida, Third District.
    May 30, 1978.
    Mark Casper, Miami, for appellant.
    Batchelor,’ Brodnax, Guthrie & Primm and Timothy J., Armstrong, Miami, for ap-pellees.
    Before PEARSON, HENDRY and KE-HOE, JJ.
   HENDRY, Judge.

This appeal is taken by appellant/plaintiff from two orders of the trial court which dismissed with prejudice appellant’s amended complaint.

The gist of the amended complaint was that appellant, a wholesale travel tour agency, had been financially damaged by alleged faulty advice and misrepresentation furnished by appellees/defendants, consultants to the airline industry. Said advice centered around the legality and propriety of a certain plan whereby appellant would “cause an appropriate hotel in the Bahamas to lease an aircraft so that plaintiff could sell to the public a complete tour package that would include transportation and hotel accommodations for a package price.” The plan was found to be violative of certain Civil Aeronautics Board regulations which need not be discussed. By virtue of the Board’s rejection of the plan, appellant, having allegedly acted upon appellees’ “go ahead,” suffered financial detriment and lost profits.

The trial judge, upon motion, dismissed this amended complaint with prejudice on the ground that the cause of action, as alleged, did not comport with the contents of an attached exhibit (opinion letter) to the amended complaint. The trial judge was apparently of the view that the alleged faulty opinion expressed in the exhibit was offered in response to a plan which significantly differed from the scheme appellant had alleged in its amended complaint and had actually undertaken.

While we are in agreement with the trial judge that the amended complaint failed to state a cause of action, we are of the opinion that the court should have permitted appellant to amend its pleading a second time for the purpose of clarifying its cause of action and, if possible, conforming said cause of action with the attached exhibit. The allowance of a second amendment is in complete harmony with the liberality of Florida Rules of Civil Procedure 1.190 and, given the fact that appellant had not previously abused its right to amend, the denial of same by the trial judge amounted to an abuse of discretion. Bradham v. Hayes Enterprises, Inc., 306 So.2d 568 (Fla. 1st DCA 1975); Town of Micanopy v. Connell, 304 So.2d 478 (Fla. 1st DCA 1974).

Accordingly, the orders of dismissal with prejudice are reversed and remanded with directions to allow appellant the opportunity to file a second amended complaint.

Reversed and remanded with directions.


text:
    LOSAL CORPORATION, Appellant, v. BAYVIEW ASSOCIATES, INC., Appellee.
    No. 77-1573.
    District Court of Appeal of Florida, Third District.
    May 30, 1978.
    Herbert A. Warren, Miami, for appellant.
    Joel I. Keiler, Miami, for appellee.

      Before HUBBART and KEHOE, JJ., and PARKER, J. GWYNN (Ret.) Associate Judge.
   PER CURIAM.

The plaintiff Losal Corporation appeals an adverse final summary judgment in an action for specific performance, declaratory judgment, injunctive and other relief filed against its landlord, the defendant Bayview Associates, Inc., as the owner and operator of the Dupont Plaza Hotel in Miami, Florida. The plaintiff was locked out of his leased commercial premises at the Dupont Plaza Hotel by the defendant because the plaintiff allegedly breached a material provision of the applicable lease agreement between the parties providing that the lessee plaintiff could not sell products “in competition with existing tenants” at the hotel.

Our review of the record reveals that summary judgment was improperly granted by the trial court because there were genuine issues of material fact as to (1) whether the lease agreement between the parties prohibiting the lessee plaintiff from selling “products in competition with other tenants” refers to products in the same generic classification or more narrowly to products which are identical, and (2) whether the plaintiff did in fact sell such products as thus prohibited by the lease. Holl v. Talcott, 191 So.2d 40 (Fla.1966). See Storz Broadcasting Co. v. Courtney, 178 So.2d 40 (Fla. 3d DCA 1965); Norwood Shopping Center, Inc. v. MKR Corp., 135 So.2d 448 (Fla. 3d DCA 1961).

The judgment appealed from is reversed and the cause remanded for further proceedings.


text:
    STATE of Florida, Appellant, v. Floyd REESE and Fredrick Raymond Down, Appellees.
    Nos. 77-1731, 77-1732.
    District Court of Appeal of Florida, Fourth District.
    May 31, 1978.
    Michael J. Satz, State’s Atty., and Lisa Kline Goldstein, Asst. State’s Atty., Fort Lauderdale, for appellant.
    Alan H. Schreiber, Public Defender, and Stuart M. Lerner, Asst. Public Defender,. Fort Lauderdale, for appellee, Floyd Reese.

      Richard L. Jorandby, Public Defender, and Allen J. De Weese, Asst. Public Defender, West Palm Beach, for appellee, Fredrick Raymond Down.
   LETTS, Judge.

While awaiting trial on felony charges, the defense requested a continuance. Thereafter, in these consolidated appeals, the State requested, and received, 1 continuance in the first case and 3 in the second. In both cases the defendant moved for discharge more than 90 days after a State requested continuance and more than 180 days after the original taking into custody. The trial court granted the motion to discharge in both cases. We affirm.

To reach this conclusion the trial judge ruled that:

“Any continuance charged to the defense that occurred before the continuance charged to the state shall be of no consequence.”

We agree, because in these two cases the defendant gave no specific waiver of his right to speedy trial, nor did he file any further requests for continuances after the State did. The result therefore, is controlled by the Supreme Court holding in Negron v. State, 306 So.2d 104 (Fla.1974).

To us, Negron is exactly on point and affirmance of these two cases now before us would normally not merit an opinion. However, the State here argues that, neither the district courts, nor the Supreme Court, have followed Negron. To this end, the State eites State ex rel. Gadson v. Tyson, 334 So.2d 56 (Fla. 4th DCA 1976) and Coppola v. State, 318 So.2d 181 (Fla. 2nd DCA 1975) affirmed, 337 So.2d 779 (Fla.1976).

In Gadson, supra, we had a similar sequence of events to those now before us, except for the vitally important distinction that the motion for discharge was filed only 173 days after the custody date. We agree with and reaffirm Gadson, but by contrast in the consolidated cases at bar, the motions for discharge were filed after the passage of 180 days from custody. In Coppola, on the other hand, there was a specific waiver of the right to speedy trial under Rule 3.191(d)(2)(i) which is not so in the cases at bar. We thus distinguish them.

The State also argues that the Florida Supreme Court erroneously applied Fla.R. of Crim.P. 3.191(d)(3) in Negron, because that rule merely provides that the trial must commence within 90 days from the voiding of a motion to discharge and says nothing whatever about the trial having to commence within 90 days from a State continuance. We agree that the rule does not so state and admit to being perplexed at the wording of the opinion in Negron. However, we certainly cannot ignore the result and would point out that it appears to us that the Supreme Court, in Negron, borrowed the 90 day provision from Rule 3.191(d)(3) and adapted its time provision for use as a parallel, in conjunction with the general precepts set forth in the Constitution and in Butler v. Cullen, 253 So.2d 861 (Fla.1971), (see Negron at p. 107). In Butler the Supreme Court specifically held that even when the speedy trial rule has been specifically waived and the 180 day rule rendered inapplicable thereby, it is still incumbent upon the trial court to set the time for trial within the parameters of basic speedy trial constitutional guarantees.

We must conclude then that, in the event of a State continuance, whether or not it follows an earlier defense continuance, the basic constitutional time limit, for the commencement of trial, is no more than 90 days after any State continuance, which is uninterrupted by any further defense motions for continuance or waivers, PROVIDING that the requisite 180 days has also run under Fla.R.Crim.P. 3.191(a)(1).

AFFIRMED.

ANSTEAD, J., and MINER, Jr., Associate Judge, concur.

      . Similar misgivings were enunciated in our Gadson opinion (supra, at p. 58).


text:
    Gary E. SOUTHWORTH, Petitioner, v. James A. MAHER, Respondent.
    No. 77-1849.
    District Court of Appeal of Florida, Fourth District.
    May 31, 1978.
    Robert Lance Andrews, Hollywood, for petitioner.
    Jeff M. Brown of Lavalle, Wochna, Rutherford, Maher & Truesdell, Boca Raton, for respondent.
   PER CURIAM.

Petition for Writ of Certiorari is hereby

DENIED.

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


text:
    E. E. DEAN SNAVELY, INC., and the American Insurance Company, Appellants, v. WEATHERKING, INCORPORATED, Appellee.
    No. 77-2177.
    District Court of Appeal of Florida, Fourth District.
    May 31, 1978.
    See also Fla.App., 343 So.2d 58.
    Alan B. Fields, Jr., of Dowda & Fields, P. A., Palatka, for appellants.
    Jules S. Cohen, P. A., Orlando for appel-lee.
   PER CURIAM.

Appellants have filed an interlocutory appeal from the denial of its motion to dismiss Appellee’s complaint. The complaint alleges it seeks money damages on a surety bond. It seeks no relief except the money damages and therefore falls under the classification of an action at law. Upon a full consideration of the briefs and the record we find we have no jurisdiction to consider the question of whether the complaint is sufficient to allege an action at law. City of Deerfield Beach v. Ocean Harbor Association, 348 So.2d 1192 (Fla. 4 DCA 1977). See also Snavely v. Weatherking, 343 So.2d 58 (Fla. 4 DCA 1977).

Appeal DISMISSED.

ANSTEAD, DAUKSCH and LETTS, JJ., concur.


text:
    Sam KAYE and Sam Kaye, Inc., Petitioners, v. FLORIDA REAL ESTATE COMMISSION, an agency of the State of Florida, Respondent.
    No. 77-2483.
    District Court of Appeal of Florida, Fourth District.
    May 31, 1978.
    Larry Klein, West Palm Beach, for petitioners.
    Howard Hadley, Gen. Counsel, and Bruce I. Kamelhair, Orlando, for respondent.
   PER CURIAM.

Petition for Writ of Certiorari is hereby DENIED.

CROSS, DAUKSCH and LETTS, JJ., concur.


author: DAUKSCH, Judge.

text:
    Lana MELLOR and Robert W. Mellor, her husband, Petitioners, v. Jean A. ARAKGUI, M. D. and Robert E. Lockwood, Clerk of the Circuit Court in and for Broward County, Florida, Respondents.
    No. 78-215.
    District Court of Appeal of Florida, Fourth District.
    May 31, 1978.
    Linda Koenigsberg of Cohen & Kokus, Miami, for petitioners.
    Steven R. Berger of Carey, Dwyer, Cole, Selwood & Bernard, P. A., Miami, for respondents.
   DAUKSCH, Judge.

By their Petition for Writ of Mandamus, Petitioners request that the Clerk of the Broward Circuit Court be ordered to issue a court certificate terminating the jurisdiction of medical mediation panel.

No hearing was commenced within six months’ from the date Petitioners’ claim for medical mediation was filed. As we held in Green v. Broward General Medical Center, 356 So.2d 877 (Fla. 4 DCA, Opinion issued March 21, 1978), the jurisdiction of a medical mediation panel terminates if no hearing is held within six months from the date the claim was filed. Petitioners are now entitled to pursue their cause of action in the circuit court without further delay.

The Petition for Writ of Mandamus is granted and the Clerk of the Broward Circuit Court is hereby ordered to issue a court certificate terminating jurisdiction of the medical mediation panel.

ANSTEAD and MOORE, JJ., concur.


author: CROSS, Judge.

text:
    Thomas STANTON and Rita Stanton, his wife, Petitioners, v. COMMUNITY HOSPITAL OF SOUTH BROWARD et al., Respondents.
    No. 78-221.
    District Court of Appeal of Florida, Fourth District.
    May 31, 1978.
    Linda Koenigsberg of Cohen & Kokus, Miami, for petitioners.
    William D. Ricker, Jr. of Fleming O’Bryan & Fleming, Fort Lauderdale, for respondents, Dr. Edgar B. Bolton and Dr. Herbert Pardell.
    Joan S. Buckley of Walton, Lantaff, Schroeder & Carson, Miami, for respondent, Dr. Allen J. Fields.
   CROSS, Judge.

On petitioner’s suggestion for Writ of Prohibition in a medical mediation proceeding, we issued a Rule Nisi. Pursuant thereto, a return by respondents was filed. The matter is now before us for issuance of a Rule Absolute.

On July 5, 1977, Thomas Stanton and Rita Stanton, his wife, filed a claim for medical malpractice which initiated proceedings for mediation pursuant to § 768.44, Florida Statutes (Supp.1978). A motion to extend time for commencing hearing was timely filed and an order of the judicial referee was entered extending the period for commencing hearing from one hundred twenty days to six months. The final hearing was then scheduled to commence on December 20, 1977.

On December 5, 1977, one of several defendants in this matter moved for an order granting a continuance up until the expiration of the ten-month period established as the maximum period over which the medical mediation panel may retain jurisdiction. On January 3, 1978, the judicial referee entered his order granting the requested continuance and re-scheduling the final hearing for March 2 and 3, 1978. Upon expiration of the six-month period established for commencing the final hearing, the Stantons petitioned this court for a writ of prohibition directed to the judicial referee to prevent the commencement of the final hearing after expiration of the six-month period.

Recently, in Green v. Broward General Medical Center, 356 So.2d 877 (Fla.4th DCA opinion filed March 21, 1978), this court determined that since no hearing on the claim was commenced within six months from the date the claim was filed that the claimant was entitled to a termination of the medical mediation proceedings. Sub ju-dice, the record conclusively demonstrates that no hearing on petitioners’ claim has been commenced within six months from the date the claim was filed. Section 768.44(3), Florida Statutes (Supp.1978). Accordingly, jurisdiction of the medical mediation panel over petitioners’ claim has terminated. Green v. Broward General Medical Center, supra. See also Rule 20.190(c), Fla.R.Med.P.

In view of the above expressions, we deem it unnecessary, as a matter of respect, to make the Rule Absolute, and such Rule shall issue only on further application of the relators.

IT IS SO ORDERED.

ANSTEAD and MOORE, JJ., concur.


author: OTT, Judge.

text:
    In re the MARRIAGE OF Howard McDADE, Appellant, and Margaret J. McDade, Appellee.
    No. 77-1633.
    District Court of Appeal of Florida, Second District.
    May 31, 1978.
    John E. Swisher of Law Office of R. Bruce Akerson, St. Petersburg, for appellant.
    Wayne 0. Smith of Wallace & Smith, P. A., St. Petersburg, for appellee.
   OTT, Judge.

The appellant (ex-husband) appeals from an order which denied (in effect) his Petition for Disposition of Realty by Partition. We reverse.

In 1973 the appellant brought a proceeding for dissolution of marriage. In his complaint, he prayed, inter alia, for the following relief: “That the home place of the parties ... be sold and the proceeds therefrom be divided equally between the parties.” The wife filed an appropriate answer and counter-petition. After a hearing, the court entered a final judgment in which, as to the home, it awarded possession to the wife “ . . . until such time as she is no longer entitled to child support. At which time (meaning termination of child support) the Court shall entertain a petition for disposition of said property.”

In 1977, child support terminated. The ex-husband thereupon filed his Petition for Disposition of Realty by Partition. The petition set up jurisdiction pursuant to the express provision of the final judgment, set forth the location, description and specific ownership of the real property and further alleged:

The above-described property [the home] is so situated that it is impossible to equally divide it between the cotenants so that each can have his pro rata share thereof. The only way to equally divide the said property is to sell the same and divide the money proportionately among the cotenants as their interests in the same are determined to be.

The ex-husband’s petition alleged the employment of his attorneys to secure partition of the realty, that an accounting was necessary as to what was owed between the parties and complied with all the requirements of Chapter 64, Florida Statutes (1975). The petition prayed for an order of sale and a division of the proceeds as their respective rights and interests, including the status of the mortgage or other lien, were made to appear. In her response to the petition, the ex-wife filed a short denial of “each and every allegation” and asked for a dismissal of the petition.

A hearing was held at which no transcript was taken. The court’s order required that the ex-husband pay the ex-wife the sum of $1,745.29 and transfer his undivided one-half interest in the jointly owned property to the ex-wife. The court’s conclusion was based upon its findings that the ex-husband’s total debt to the ex-wife was $4,074 (undisputed); that the original amount of the mortgage on the property was $10,850 (undisputed); that the balance on the mortgage as of the date of the final judgment was $6,192 (undisputed); that the differential was $4,657.42 (undisputed) which the court described as the “equity” (disputed); that, accordingly, the ex-husband’s one-half equity in the home was $2,328.71 (disputed). In order to see that the ex-wife received the $4,074 the court took the value of the ex-husband’s one-half equity (as calculated above) in the home ($2,328.71) and required the ex-husband to supplement it with the cash payment of $1,745.29. The trial court totally ignored the procedures for partition provided for in Chapter 64, Florida Statutes (1975). Where a party, as here, properly pleads a request for partition, i. e., where the petition substantially complies with the requirements for partition as set out in Chapter 64, Florida Statutes (1975) then the trial court is obligated, in the absence of agreement of the parties, to proceed according to the procedures set forth therein. Carlsen v. Carlsen, 346 So.2d 132, 133 (Fla.2d DCA 1977); see Jones v. Jones, 357 So.2d 439 (Fla.2d DCA, filed March 29, 1978).

We reverse only that part of the order of the trial court that determines the value of the parties’ equity in the property and directs transfer of the ex-husband’s interest therein together with payment of cash differential. We remand for further proceedings in partition, consistent with Chapter 64, Florida Statutes (1975), in which the court may make appropriate disposition or provision for any debt owing from one of the parties to the other.

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


author: RYDER, Judge.

text:
    STATE of Florida, Petitioner, v. Terry W. ROBBINS, Respondent.
    No. 78-544.
    District Court of Appeal of Florida, Second District.
    May 31, 1978.

      Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie King, Asst. Atty. Gen., Tampa, and Larry Hart, Asst. State Atty., Clearwater, for petitioner.
    Charles J. Morachnick, Seminole, for respondent.
   RYDER, Judge.

The State petitions for certiorari to review the circuit court’s affirmance of the speedy trial discharge granted respondent by the county court. Respondent’s discharge was predicated upon the court’s conclusion that the speedy trial period began to run when respondent was originally detained, although he was released shortly thereafter with no formal charge being lodged against him at that time. Because we conclude that this analysis was incorrect, we grant the writ.

Respondent was charged by information filed August 3, 1977 with the misdemeanor of fleeing a police officer on June 1, 1977. On September 14, 1977 he filed his motion for discharge under the speedy trial rule, which was granted.

The pertinent facts of this case are as follows:

Officer David M. Glidden, in uniform, was on routine patrol in a marked police cruiser when he observed respondent’s automobile stopped at the end of a dead end street with its motor running and headlights burning at 3:00 a.m. on June 1, 1977. Because the vehicle was in an area where another officer had just received a complaint, Glidden reported the license tag by radio before approaching the car. Officer Glidden found respondent slumped down sideways in the front seat of the car. The officer awakened respondent, asked for identification, and was told by respondent that the CB microphone in respondent’s hand was his identification. Glidden had respondent turn off the engine of his vehicle and again inquired as to identification. Respondent, thereupon, started up his vehicle and drove the car into a nearby parking lot of an apartment building. Officer Glid-den walked over to respondent’s car and again asked for respondent’s driver’s license. Respondent handed the officer a dollar bill from his wallet and asked if that was enough identification. Patiently, Officer Glidden had respondent turn off his engine and requested identification but, again, received none.

At this juncture, Officer Glidden returned to his police cruiser and radioed for a backup. During this communication, Glidden glanced toward respondent and observed that respondent had once more started his car and this time was driving straight at Officer Glidden, who was standing behind the open door of his cruiser. Glidden jumped into his cruiser and closed the door to prevent respondent from striking him or the door. Respondent’s car passed within one foot of the police vehicle, although there was at least thirty feet of right of way for respondent’s use.

Officer Glidden pursued respondent with his blue light flashing, again stopped the respondent, drew his weapon and ordered respondent to shut down his engine and to exit the car. Respondent did neither, but rather grabbed for the officer’s arm as respondent’s car moved forward. Glidden pulled away and was knocked off balance, causing his gun to fire a round through the left rear window of respondent’s car. Respondent again drove off. Glidden made another radio transmission concerning the latest turn of events and continued the chase. Respondent’s car was stopped sometime thereafter by another pursuing police officer. Glidden then arrived at the scene.

Glidden did not issue a citation or inform respondent that he was under arrest. Neither did the officer who had finally stopped respondent. However, respondent was handcuffed momentarily.

An ambulance was called, as respondent related he had been shot and a small amount of blood was visible on his shoulder. Respondent was taken to a hospital for his alleged injury, however, he was allowed to leave the hospital after examination and treatment. A Detective McReynolds spoke with respondent at the hospital and again later in the day when respondent went to the police department to obtain his wallet, which had already been released to respondent’s wife. Respondent was not arrested or detained at that time. Respondent was not aware of any criminal charge arising from the incident until August.

Fla.R.Crim.P. 3.191(a)(1) (the speedy trial rule) provides in pertinent part:

Except as otherwise provided by this Rule, every person charged with a crime by indictment or information shall without demand be brought to trial within 90 days if the crime charged be a misdemeanor . . . The time periods established by this section shall commence when such person is taken into custody as a result of the conduct or criminal episode giving rise to the crime charged.

The issue before us now is whether respondent was “in custody” within the meaning of the speedy trial rule. We feel he was not. When an accused is stopped and temporarily detained, but is not placed in a cell or fingerprinted, and is allowed to leave without being placed under arrest, he has not been placed “in custody” within the meaning of Fla.R.Crim.P. 3.191(a)(1), although he has been placed “in custody” for purposes of the Miranda requirements. State ex rel. Dean v. Booth, 349 So.2d 806 (Fla. 2d DCA 1977). See also Snead v. State, 346 So.2d 546 (Fla. 1st DCA 1976), cert. denied, 348 So.2d 953 (Fla.1977).

Although respondent was temporarily detained on the night of the offense, he was not formally arrested or incarcerated. Moreover, it appears the police were merely attempting to establish the cause for respondent’s bizarre behavior and, acting out of humanitarian reasons, were patiently attempting to keep respondent from injuring himself. This is further supported by the fact that once respondent was taken to the hospital for medical examination and treatment, the police indicated no further custodial interest in him and he was allowed to leave without further ado.

The fact that the police had probable cause to arrest respondent at the time of his temporary detention and transport to the hospital does not change the result. The police may delay an arrest beyond the completion of their investigation, although an accused might be entitled to dismissal on the basis that he has been denied due process if he can demonstrate that he has been prejudiced by the delay. United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); State v. Griffin, 347 So.2d 692 (Fla. 1st DCA 1977).

The petition for writ of certiorari is granted. The circuit court’s order affirming the county court’s order discharging respondent is quashed. The cause is remanded with directions to vacate the order discharging respondent and for further proceedings consistent with this opinion.

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


text:
    Charles SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 77-772.
    District Court of Appeal of Florida, Second District.
    June 2, 1978.
    Jack 0. Johnson, Public Defender, Bar-tow, and Douglas A. Wallace, Asst. Public Defender, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We relinquished jurisdiction of this cause to the trial court. Smith v. State, 353 So.2d 205 (Fla. 2d DCA 1978). Upon resumption of jurisdiction we affirm the judgment and sentence of the trial court.

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