author: ROBERTS, Justice.

text:
    S. E. PYLANT et al., Appellants, v. ORANGE COUNTY, a political subdivision of the State of Florida, et al., Appellees.
    No. 47217.
    Supreme Court of Florida.
    Feb. 11, 1976.

      Elwood Phillips, Orlando, for appellants.
    Steven R. Bechtel, Mateer & Harbert, Orlando, for appellees.
   ROBERTS, Justice.

This cause is before us on direct appeal from a judgment of the Circuit Court in and for Orange County, Florida, upholding the constitutional validity of Chapter 63-1716, Section 13(b)(4), Special Acts, Laws of Florida, as amended by Chapter 71-795, Special Acts, Laws of Florida 1971. We have jurisdiction pursuant to Article V, Section 3(b)(1), Constitution of Florida.

Section 13(b), Chapter 63-1716 amended by Chapter 71-795, provides in pertinent part:

“. . . a special exception shall not be granted by the board of zoning adjustment unless and until . . .
(4) The board of zoning adjustment shall make a finding that it is empowered under the section of the zoning resolution described in the application to grant the special exception, and that the granting of the special exception will not adversely affect the public interest.
In granting any special exception, the board of zoning adjustment may prescribe appropriate conditions and safeguards, in conformity with the zoning resolution. Violation of such conditions and safeguards, when made a part of the terms under which the special exception is granted, shall he deemed a violation of this act, and at the discretion of the board of county commissioners, such special exception may be revoked. The board of zoning adjustment may prescribe a time limit within which the action for which this special exception is required shall be begun or completed, or both. Failure to begin or complete such action within the time limit shall void the special exception.”

Article V of the Orange County Planning and Zoning Resolution enacted pursuant to 63-1716 provides in Section 3 that:

“The following uses may be permitted as a special exception provided that any review and hearing of an application for a special exception shall consider the character of the neighborhood in which the proposed use is to be located and its affect on the value of surrounding lands and further the area of the site as it relates particularly to the required open spaces and off-street parking facilities.
2. Churches with their attendant educational buildings and recreational facilities.”

Appellees, plaintiff s-below, filed an amended complaint for injunction on September 26, 1974, seeking temporary and permanent injunctive relief against appellants who were attempting to construct a church building on property zoned R-1AA, according to Article V of the Orange County Planning and Zoning Resolution, owned by them in unincorporated Orange County and under the jurisdiction of appel-lees without obtaining a zoning or building permit from appellees in violation of Section 7 of Chapter 67-1828. The amended complaint alleged that Article V of the Orange County Planning and Zoning Resolution specifies the permitted uses to which such property may be put and such permitted uses do not include the construction of a church building without the owner of the property obtaining a special exception therefor and that no special exception was obtained.

By order dated September 27, 1974, the trial court temporarily enjoined appellants from constructing any building on the described property until further order of the court. Appellants filed an answer and counterclaim on October 16, 1974, alleging that they had obtained a special exception for construction of a church building by Order of the Circuit Court of Orange County but that said order is on appeal and alleging that Section 13(b)(4) of Chapter 63-1716, Laws of Florida, as amended by Chapter 71-795, Laws of Florida, were invalid and unconstitutional as applied by ap-pellee because the statute throws the burden of proof on the appellant as the applicant to prove to said administrative bodies that the granting of a “special exemption” shall not adversely affect public interest and this conflicts with Article 1, Section 3, prohibiting the penalizing of free exercise of religion and violates the First Amendment to the United States Constitution. In the counterclaim, appellants alleged that they were suffering irreparable injury due to their failure to secure a “special exception” from the Board of County Commissioners of Orange County in that they have no adequate or suitable place of worship. Accordingly, appellants prayed in their counterclaim that Chapter 63-1716 be declared unconstitutional and that the ap-pellees be ordered to issue a building permit.

Trial was held and the lower court entered final judgment ordering that the temporary injunction remain in force until the defendants receive an exception to their zoning and a building permit is issued either by the County Commission or by final order of the court, dismissing the counterclaim, and declaring 63-1716 as amended by 71-795 to be constitutional.

We agree with the trial court and accordingly the judgment is affirmed. Cf. Miami Beach United Lutheran Church of the Epiphany, Inc. v. City of Miami Beach, 82 So.2d 880 (Fla. 1955); Walker et al. v. City of Tampa, 93 So.2d 862 (Fla.1957).

It is so ordered.

ADKINS, C. J., BOYD, OVERTON, ENGLAND and SUNDBERG, JJ., and RUDD, Circuit Judge, concur.

      . In First Apostolic Church v. Board of County Commissioners of Orange County, #74-3412, First Apostolic filed application to the Orange County Board of Zoning Adjustment for a special exception in R-1AA (single family dwelling district) zone to construct a church. The application was brought pursuant to Section 13 of Chapter 63-1716, Laws of Florida, as amended by 71-795, the Orange County Planning and Zoning Act. The Orange County Board of Zoning Adjustment and the County Commission denied the request and found in accordance with the Act that the granting of the application would be adverse to the general public interest. Upon certiorari, the Circuit Court entered judgment ordering Orange County to grant the application for exception. However, on appeal, the District Court of Appeal, Fourth District, has reversed the Circuit Court and upheld Zoning Board.


source: Caselaw Access Project

author: McNULTY, Chief Judge.

license: Public Domain

text:
    George Vernon LUNDQUIST, Jr., Appellant, v. GULFSHORE TELEVISION CORPORATION, Appellee.
    No. 75-365.
    District Court of Appeal of Florida, Second District.
    March 3, 1976.
    As Modified on Denial of Rehearing March 26, 1976.
    Harvey B. Goldberg, Goldberg, Rubinstein & Buckley, Fort Myers, for appellant.
    William A. Keyes, Jr., Stewart, Stewart & Jackson, Fort Myers, for appellee.
   McNULTY, Chief Judge.

We decide this day the question of ownership of a majority of the stock in Gulf-shore Television Corporation, the owner and operator under an F.C.C. license of station WEVU-TV in Naples, Florida.

Appellee corporation received its certificate of incorporation on February 28, 1972. Thereafter, on March 20, 1972, pursuant to a “STOCK SUBSCRIPTION AND LOAN AGREEMENT” entered into by all stockholders, appellant Lundquist, a broadcasting expert and an original promoter and incorporator of the corporation, received 5,200 shares of stock representing some fifty-two per cent (52%) of the authorized issue. As agreed in that “agreement,” Lundquist paid for his 5,200 shares by executing a non-interest bearing promissory note for $39,000 (payable in ten years from annual bonuses due him under an employment contract), which sum was equal to the par value of his shares. One payment in the sum of $8,400 was made on the note and receipt thereof was acknowledged by the corporation on or about November 15, 1974.

Thereafter, a falling out occurred as between the minority shareholders and Lundquist. The Board of Directors, through corporate action, dismissed appellant as general manager of the corporation and relieved him of his overall management responsibilities. The corporation, again by Director action, then brought this suit seeking a declaratory judgment and cancellation of appellant’s majority stock alleging that such stock was illegally issued because there was no official action by the Board of Directors authorizing payment therefor in the form of the ten-year promissory note aforesaid. Both parties moved, with supporting documents, for summary judgment. Lundquist’s motion was denied and the corporation’s motion was granted. This appeal ensued. We reverse.

Both parties agree that § 608.15, F.S. 1971, read in pari materia with § 608.-16(2), F.S.1971, allows for the payment of subscribed shares of a corporation by a promissory note such as that executed by Lundquist here. The corporation insists, however, that the Florida corporation laws are “permissive” and that they may be modified by express provisions of the charter. In such case, it is argued, the charter provisions prevail. We can agree, at least arguendo as applied to the facts here.

Article III of the charter of appellee corporation provides:

“The amount of the total authorized stock of the corporation shall be 10,000 shares of common stock, háving a par value of Seven and 50/100 ($7.50) Dollars per share, fully paid and nonassessa-ble. Stock may be issued for cash, property, labor, services or goodwill as may be determined by the Board of Directors.”

Appellee contends, though we don’t agree, that this Article “prohibits” payment for appellant’s stock by note. Pursuant thereto “stock may be issued for cash, property, labor, services or goodwill,” but there is no express prohibition against accepting other forms of consideration. Additionally, it may well be argued that the promissory note, a chose in action, is sufficient “property,” if accepted as here, to constitute consideration within the contemplation of this Article.

In any case, it is clear from the record, particularly from the exhibits and documents of appellee corporation itself, that there are no material issues of fact and that as a matter of law appellant’s affirmative defenses of estoppel and/or acquiescence or ratification as against the corporation were established. First of all, as noted, all stockholders executed the stock subscription agreement of March 20, 1972 aforesaid which expressly provided for the promissory note involved herein. Clearly, at that time the minority stockholders did not feel prohibited by Article III of the charter from agreeing to accept that note from Lundquist for the full amount of the par value of the stock issued to him.

Secondly, it is virtually undisputed, and in fact established by the corporation’s own exhibits and minutes, that several completed forms, applications and/or clarifications thereof were forwarded at the instance of the corporate directors to the F.C.C. as an inducement (relying on Lundquist’s expertise), and in compliance with the commission’s “ownership” regulations and requirements, for the issuance of a broadcasting license. Each of these documents was attested to and represented that Lundquist was indeed the majority shareholder. Certainly, the Board of Directors and minority shareholders are in no position now to deny the status of Lundquist as such majority shareholder or the validity of his stock.

Thirdly, in reliance upon the aforesaid attested corporate representations concerning ownership, the F.C.C. did in fact issue the license under which the corporation is now operating. The corporation thus received the benefit of its inducements.

Finally, as late as November 15, 1974, the corporation accepted and receipted for the payment of $8,400 on the note. Can it now, in the face of all the foregoing, gain-

say the validity of the note as “consideration” for the stock ?

We ar.e of the view, therefore, and so hold, that as a matter of law from the record before us, and as between the parties hereto, that appellant Lundquist is the true owner of the 5,200 shares of stock in ap-pellee corporation now held by him, subject of course to the unpaid balance of his subscription agreement evidenced by his note, and that said shares of stock were and continue to be validly issued, “fully paid” and “nonassessable” within the purview of Article III of the charter, supra.

Accordingly, the summary judgment appealed from should be, and it is hereby, reversed; and the cause is remanded with directions to enter judgment in favor of appellant.

HOBSON and GRIMES, JJ., concur.

      . Cf. Redstone v. Redstone Lumber & Supply Co. (1931), 101 Fla. 226, 133 So. 882.


author: RAWLS, Acting Chief Judge.

text:
    A. J. DAVIS et al., Appellants, v. Edith M. ASBELL, Appellee.
    No. Z-282.
    District Court of Appeal of Florida, First District.
    March 11, 1976.
    Rehearing Denied April 1, 1976.

      Edwin C. Cluster, of Ayres, Cluster, Curry, Meffert & McCall, Ocala, for appellants.
    W. N. Avera, of Chandler, O’Neal, Av-era, Gray, Lang & Stripling, Gainesville, for appellee.
   RAWLS, Acting Chief Judge.

Appellee, Edith M. Asbell, brought this action against appellants seeking damages for loss of consortium. Upon consideration of Mrs. Asbell’s motion for partial summary judgment as to liability, the trial court granted same upon the theory of es-toppel by judgment. Appellants contend that the doctrine of estoppel by judgment was misapplied by the trial court because the essential element of identity of parties is missing.

Gates v. Foley controls. There, after holding that deprivation to the wife of the husband’s companionship, etc., constitutes a real injury to the marital relationship and one which is compensable, Mr. Justice Adkins, speaking for the Supreme Court, stated:

“Where the husband’s cause of action has been terminated by adverse judgment on the merits, this should bar the wife’s cause of action for consortium.
“The rule that we now recognize is that the wife of a husband injured as a proximate result of the negligence of another shall have a right of action against that same person for her loss of consortium. We further hold that her right of action is a derivative right and she may recover only if her husband has a cause of action against the same defendant. This means that the tort-feasor was negligent and the husband was free from contributory negligence.”

Clearly, the court held in Gates that if a spouse’s cause of action has been terminated by an adverse judgment on the merits, the derivative cause of action vested in the other spouse is barred. Thus, had the prior judgment been for appellants and against Mr. Asbell, Mrs. Asbell would be estopped by that judgment. Appellants, who had every opportunity to litigate and did litigate against Mr. Asbell every essential issue of their liability, cannot invoke the mutuality rule, that they may not be estopped by the prior judgment if their present adversary, Mrs. Asbell, would not be so estopped. As a result, the prior judgment forecloses in Mrs. Asbell’s favor all issues it determined.

We do not hold that a spouse’s cause of action for loss of consortium is so dependent upon the other spouse’s primary cause of action that the action for loss of consortium may be abated unilaterally by the spouse possessed of the primary action. That question has been settled by our opinions in Ryter v. Brennan and Resmondo v. International Builders of Florida, Inc. We do hold that the derivative cause of action for loss of consortium is subordinate to the primary action, and being so, that a judicial determination in the primary action as to the question of liability is binding upon the subordinate action for loss of consortium.

AFFIRMED.

SMITH, J., and OVERTON, Associate Judge, concur.

      . A judgment in favor of Mrs. Asbell’s husband finding him free of contributory negligence had previously been rendered against the identical parties sued by Mrs. Asbell.

      . Of interest is a motion to dismiss filed in the trial court wherein appellants alleged, inter alia: “2. That the claim of Edith M. Asbell for punitive damages is barred by estoppel by judgment or res judicata.”

      . Gates v. Foley, 247 So.2d 40 (Fla.1971).

      . Ryter v. Brennan, 291 So.2d 55 (Fla.App. 1st, 1974).

      . Resmondo v. International Builders of Florida, Inc., 265 So.2d 72 (Fla.App.1st, 1972).


author: BARKDULL, THOMAS E., Associate Judge.

text:
    SEABOARD COAST LINE RAILROAD COMPANY, and National Railroad Passenger Corporation, a corporation, Appellants, v. Allen Mack GORDON and Delcher Brothers Storage, Inc., Appellees.
    No. Y-128.
    District Court of Appeal of Florida, First District.
    March 16, 1976.
    Gary A. Bubb, Toole, Taylor, Moseley & Milton, Jacksonville, for appellants.
    E. Robert Williams, Boyd, Jenerette, Leemis & Staas, and Claude K. Slater, Slater & Randle, Jacksonville, for appellees.
   BARKDULL, THOMAS E., Associate Judge.

From the record on appeal, it appears that while transporting household goods of the Nordeens [parties not involved in this appeal] a truck, owned by Delcher Brothers Storage, Inc. and being driven by Allen Mack Gordon, became stuck across the tracks of the Seaboard Coast Line Railroad Company. This crossing was shortly beyond a curve in the Seaboard tracks. When the train rounded the curve, upon observing the stalled truck, it was unable to stop because of its speed before colliding with the truck. Subsequently, an action was commenced by the Nordeens against Seaboard and Gordon to recover for the damage to their personal property. Seaboard filed a crossclaim against Gordon and a third-party complaint against Gordon’s employer, seeking indemnification based upon a theory of passive negligence on the part of the Railroad and active negligence on the part of Gordon, which would make his employer vicariously liable. The trial judge dismissed with prejudice the crossclaim and the third-party complaint. This appeal ensured.

Subsequent to the order of the trial court, here under review, the Nordeens settled with Gordon and Delcher. The appel-lees contend that this in and of itself, because of the provisions of the new Uniform Contribution Among Tort Feasors Act, enacted by the 1975 Legislature, and particularly § 768.31(5) (b), releases them from any action seeking contribution.

We hold, first, that the trial judge was correct in dismissing the cross-claim and third-party complaint because it is apparent on the face thereof that the Railroad was at least an active tort feasor. Florida East Coast Railway Company v. Soper, Fla.App.1962, 146 So.2d 605. We further affirm the action because of the provisions of § 768.31(5) (b), of the Uniform Contribution Among Tort Feasors Act, it being conceded that the original plaintiffs had settled their original claim against Gordon.

Therefore, the order here under review be and the same is hereby affirmed.

Affirmed.

RAWLS, Acting C. J., and MELVIN, WOODROW M., Associate Judge, concur.

      . This opinion is not to be construed as passing on the validity of this statute, a point not made on this appeal.

      . “(5) RELEASE OR COVENANT NOT TO SUE. — When a release or a covenant not to sue or not to enforce judgment is given in good faith to one of two or more persons liable in tort for the same injury of the same wrongful death:
      “(b) It discharges the tortfeasor to whom it is given from all liability for contribution to any other tortfeasor.”


author: McCORD, Acting Chief Judge.

text:
    Annie Marie GRIFFIN, as Administratrix of the Estate of Herman Ellis Griffin, Deceased, Appellant, v. The TRAVELERS INDEMNITY COMPANY, Appellee.
    No. X-241.
    District Court of Appeal of Florida, First District.
    March 16, 1976.

      J. Robert Hughes, of Barron, Redding, Boggs & Hughes, Panama City, for appellant.
    Thomas B. Ingles, of Sale, Bryant, Daniel & Thompson, Panama City, for appel-lee.
   McCORD, Acting Chief Judge.

This is an appeal from a judgment on the pleadings in favor of appellee, The Travelers Indemnity Company, in a suit brought by appellant, Annie Marie Griffin, as administratrix of the estate of her deceased husband. The decedent was killed instantly in an automobile wreck, and appellant contends she is entitled to compensation of loss of earning capacity of decedent under the personal injury protection benefit coverage of an automobile liability insurance policy issued by appellant.

Appellant contends that under § 627.736, Florida Statutes, relating to required personal injury protection benefits and under the terms of the aforesaid insurance policy, she is entitled to the claimed benefits up to a limit of $5,000. § 627.736, Florida Statutes provides in pertinent part as follows:

“(1) Required benefits. — Every insurance policy complying with the security requirements of § 627.733 shall provide personal injury protection providing for payment of all reasonable expenses incurred for necessary medical, surgical, X-ray, dental, and rehabilitative services, including prosthetic devices; necessary ambulance, hospital, nursing services; and funeral and disability benefits to the named insured, relatives residing in the same household, persons operating the insured motor vehicle, passengers in such motor vehicle, and other persons struck by such motor vehicle and suffering bodily injury * * * to a limit of five thousand dollars for loss sustained by any such person as a result of bodily injury, sickness, disease, or death arising out of the ownership, maintenance, or use of a motor vehicle as follows :
(a) Medical benefits. * * *
(b) Disability benefits.- — -One hundred percent of any loss or gross income and loss of earning capacity per individual, unless such benefits are deemed not in-cludable in gross income for federal income tax purposes, in which event such benefits shall be limited to 85 percent, from inability to work proximately caused by the injury sustained by the injured person, plus all expenses reasonably incurred in obtaining from others ordinary and necessary services in lieu of those that, but for the injury, the injured person would have performed without income for the benefit of his household. All disability benefits payable under this provision shall be paid not less than every two weeks.
(c) Funeral, burial or cremation benefits. — Funeral, burial, or cremation expenses in an amount not to exceed one thousand dollars per individual.” (Emphasis supplied)

Appellant contends that under the insurance policy here in issue, which was written pursuant to the above statute, appellee contracted to pay the decedent a maximum of $5,000 for loss of earning capacity occasioned by his death. The insurance policy issued to decedent by appellee states in pertinent part as follows:

“PERSONAL INJURY PROTECTION
The Company will pay, in accordance with the Florida Automobile Reparations Reform Act, to or for the benefit of the injured person:
(a) all reasonable medical expenses, and
(b) with respect to the period of disability of the injured person, any loss of income and earning capacity from inability to work proximately caused by the injury sustained by the injured person and all expenses reasonably incurred in obtaining from others ordinary and necessary services in lieu of those that, but for such injury, the injured person would have performed without income for the benefit of his household, and
(c) funeral, burial or cremation expenses, incurred as a result of bodily injury, caused by an accident arising out of the ownership, maintenance or use of a motor vehicle and sustained by:
(1) The named insured ....
(2) * * *
“Limit of Liability; Application of Deductible; Other Insurance
Regardless of the number of persons insured, . . . the total aggregate limit of personal injury protection benefits available under the Florida Automobile Reparations Reform Act from all sources combined, including this policy, for all loss and expense incurred by or on behalf of any one person who sustains bodily injury as the result of any one accident shall be $5,000; provided that payment for funeral, cremation or burial expenses included in the foregoing shall in no event exceed $1,000
“Definitions
When used in reference to this Section: ‘bodily injury’ means bodily injury, sickness or disease, including death at any time resulting therefrom; . .

Appellant argues that the policy contracts to pay for loss of earning capacity resulting from death since bodily injury is defined as including death.

This same question was before this court in Benton v. State Farm Mutual Automobile Ins. Co., Fla.App.(lst), 295 So.2d 344 (1974). In Benton we declined to construe the statute and the policy in the manner sought both there and here. There is only one material difference in the wording of the policy in Benton and the wording of the policy here. In Benton, the phrase “incurred as a result of bodily injury” was set off with commas and was contained in paragraph (c) of the policy as follows:

“(c) Funeral, burial or cremation expenses, incurred as a result of bodily injury,” (emphasis supplied)

In the policy in the case sub judice, that phrase is carried over to the next line following paragraph (c) and appears as follows in the policy:

(a) * * *
(b) * * *
(c) funeral, burial or cremation expenses,
incurred as a result of bodily injury, caused by an accident . . .” (emphasis supplied)

Due to this difference in arrangement of the phrase in the two policies, appellant argues that the phrase in the policy here before the court applies to all three paragraphs, (a), (b) and (c), and not just to paragraph (c) so that bodily injury (which is defined to include death) applies in the case sub judice to paragraph (b). Appellant then seizes upon the following statement in this court’s opinion in Benton:

“Had the scrivener of the policy used the term ‘bodily injury’ in paragraph (b) of the policy, we would be inclined to agree with appellant’s construction. However, that term not there being used, we do not find that it was the intention of the legislature in drafting the Florida Automobile Reformations Reform Act, nor the intention of the scrivener of the subject policy, to afford coverage for loss of income or earning capacity under the above quoted portions of the Act or policy resulting from death.” (Emphasis supplied)

Based upon what was said in Benton, and if we considered nothing more, we would be inclined toward appellant’s interpretation, but there is another phrase we must consider and this is the initial phrase of paragraph (b) which we underline in the following partial quote of paragraph (b) :

“(b) With respect to the period of disability of the injured person, any loss of income and earning capacity . . .”
(Emphasis supplied)

It can readily be seen that everything in paragraph (b) which follows the initial underlined phrase, is controlled by that phrase. The deceased was killed instantly and, therefore, did not have a period of disability. Thus, he had no loss of income and earning capacity “with respect to the period of disability.” Any other construction would append to the statute an unwarranted automatic death benefit of $5,000, since the period, of “disability” of a dead person would extend as long as necessary to accumulate that amount based on past earnings. We find nothing to indicate that the Legislature intended such result.

Affirmed.

MILLS and SMITH, JJ., concur.


author: PER CURIAM.

text:
    JOHNSON & STEVENSON, INC., a Florida Corporation, et al., Appellants, v. COASTAL MORTGAGE COMPANY, a Florida Corporation, Appellee.
    No. 75-715.
    District Court of Appeal of Florida, Second District.
    March 12, 1976.
    Robert A. Mandell, of Wotitzky, Wotitz-ky, Johnson, Mandell & Batsel, Punta Gor-da, for appellants.
    Robert P. Rosin, and Daryl Brown of Rosin, Abel, Band & Rosin, Sarasota, for appellee.
   PER CURIAM.

This appeal is affirmed on the authority of Financial Federal Savings & Loan Association v. Burleigh House, Inc., Fla.App. 3rd, 1974, 305 So.2d 59.

Appellee, mortgagee, in its cross-appeal, contended that the trial court erred in finding that the appellee bear one-half of the amount of the attorneys’ fees awarded to its attorneys which is contrary to the terms and conditions of the promissory note attached to the foreclosure complaint. At oral argument, counsel for the appellant, mortgagor, commendably conceded said ruling to be in error and as to this point we reverse.

In all other aspects, the case is affirmed.

Affirmed in part; reversed in part.

McNULTY, C. J., and HOBSON and BOARD MAN, JJ., concur.


text:
    Kenneth Jack HODGE, Appellant (Respondent), v. Mary Elizabeth HODGE, Appellee (Petitioner).
    No. BB-61.
    District Court of Appeal of Florida, First District.
    March 16, 1976.
    James H. Harrison, of Malone & Harrison, Orlando, for appellant.
    Selig I. Goldin, of Goldin, Turner & Cates, Gainesville, for appellee.
   PER CURIAM.

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

Accordingly, the interlocutory appeal is dismissed.

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


text:
    Francesca WOODBRIDGE, Appellant (Plaintiff), v. EASTERN AIRLINES, a corporation, Appellee (Defendant).
    No. X-542.
    District Court of Appeal of Florida, First District.
    March 16, 1976.
    V. James Facciolo, of Howell, Searcy & Handly, Jacksonville, for appellant.
    William M. Howell, of Howell, Kirby, Montgomery, D’Aiuto & Dean, Jacksonville, for appellee.
   PER CURIAM.

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

Accordingly, the judgment is affirmed.

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


text:
    Donald JAGODNIK and Elsie Jagodnik, Appellants, v. RENAULT, INC., a corporation, and Renault Southeast, Inc., a corporation, Appellees.
    No. Y-497.
    District Court of Appeal of Florida, First District.
    March 16, 1976.

      James L. Powers, Powers, Folsom, Adams & Smith, PA, Jacksonville, for appellants.
    James A. Bledsoe, Jr., and William L. Boyd, IV, Mahoney, Hadlow, Chambers & Adams, Jacksonville, for appellees.
   RAWLS, Acting Chief Judge.

Appellants-plaintiffs Jagodniks (hereafter referred to as plaintiffs) filed their complaint against Renault, Inc., and Renault Southeast, Inc., seeking damages for breach of implied warranty, also termed as “advertised warranty”, allegedly sustained by them resulting from their purchase of a new Renault automobile. Pursuant to a jury verdict, a final judgment was entered in favor of plaintiffs against defendant Renault, Inc., in the sum of $2,850.00. At the close of all the evidence, the trial court entered a directed verdict as to Renault Southeast, Inc., upon plaintiffs’ Count IV which sought treble damages together with costs and attorney’s fees pursuant to the provisions of Florida Statutes 320.696 and 320.697 (1971); hence this appeal by plaintiffs.

The dispositive point on appeal, as stated by plaintiffs, is: Whether consumers can recover civil damages against an automobile distributor for failure to reasonably compensate its dealers for warranty repair work under implied or advertised warranties.

Plaintiffs purchased a new Renault automobile on August 7, 1972, from a Maryland dealer. Subsequently, they experienced difficulties with the automobile, and on February 23, 1973, plaintiffs took their Renault to Ed Baker Imports, an authorized Renault dealer in Jacksonville, Florida, franchised by Renault Southeast, Inc., to have same repaired. Ed Baker Imports refused to repair the automobile pursuant to plaintiffs’ claims for breach of implied or advertised warranty.

Upon conclusion of all the evidence the trial court, in granting Renault Southeast’s motion for directed verdict as to the point here considered, stated:

“But when I read .696, ‘The licensee shall reasonably compensate’ — the licensee being the defendant — ‘any authorized motor vehicle dealer’ — Ed Baker — ‘who performs work to rectify the licensee’s product’ — there’s no evidence that the licensee has not been compensated or that the motor vehicle dealer has not been compensated for any work to rectify the licensee’s product.
“And then the statute reads, ‘or warranty defects.’
“ ‘The licensee shall reasonably compensate any authorized motor vehicle dealer who performs the work to rectify the licensee’s warranty defects.’ I interpret that to mean written warranty. Strictly construing the statute. I cannot conclude from the evidence that these plaintiffs have a right to bring an action when I have no evidence that the licensee failed to compensate the motor vehicle dealer. I am going to grant the motion as to the Fourth Count.”

The trial court’s interpretation of the statutes is correct. An “implied” or “advertised” warranty is a judicially inspired theory of contractual liability. Whether or not such liability is to be imposed upon a given set of factual circumstances usually involves extensive investigation and the evaluation of same by one possessed of competent legal ability. To engraft such a duty upon motor vehicle dealers in construing the legislative use of “warranty responsibility” would in our opinion violate legislative intent.

Plaintiffs challenge the trial court’s order dismissing that portion of their complaint seeking recovery of damages pursuant to the cited statutes for Renault Southeast’s failure to compensate its authorized out-of-state dealers for repair work accomplished on the subject Renault automobile. The trial court’s order granting Renault Southeast’s motion to dismiss concerning the non-compensation of non-Florida dealerships for repair work performed on the subject automobile because of lack of jurisdiction of the subject matter was correct.

Renault Southeast construes the provisions of the cited statutes to apply solely to the relationship of a motor vehicle dealer with its licensees and to the exclusion of consumers. It is not necessary to resolve this question in view of our conclusion that the trial court was correct in its interpretation that Florida Statute 320.696 (1971) applies solely to written warranties.

AFFIRMED.

McCORD and SMITH, JJ., concur.

      . “320.696 Warranty responsibility. — The licensee shall reasonably compensate any authorized motor vehicle dealer who performs work to rectify the licensee’s product or warranty defects or fullfills delivery and preparation obligations. In the determination of what constitutes reasonable compensation under this section, the factors to be given consideration shall include, among others, the compensation being paid by other licensees to their dealers, the prevailing wage rate being paid by the dealers, and the prevailing labor rate being charged by the dealers, in the city or community in which the dealer is doing business.” “320.697 Civil damages. — Any person suffering pecuniary loss because of a violation by a licensee of §§ 320.60-320.70, notwithstanding the existence of any other remedies under §§ 320.60-320.70, shall have a cause of action against the licensee for damages, and may recover damages therefor in any court of competent jurisdiction in an amount equal to three times the pecuniary loss, together with costs and a reasonable attorney’s fee to be assessed by the court. Upon a prima facie showing by the motor vehicle dealer that such a violation by the licensee occurred, the burden of proof shall then be upon the licensee to prove that such violation or unfair practice did not occur.”

      . Ford Motor Company v. Pittman, 227 So.2d 246 (1 Fla.App.1969).


text:
    JIM & SLIM’S TOOL SUPPLY, INC., a Florida Corporation, Appellant, v. METRO COMMUNITIES CORPORATION, a Florida Corporation, Appellee.
    No. 75-549.
    District Court of Appeal of Florida, Second District.
    March 10, 1976.

      Richard M. Robbins, Clearwater, for appellant.
    Howard P. Ross, of Battaglia, Ross, Parker & Stolba, St. Petersburg, for appel-lee.
   McNULTY, Chief Judge.

Appellant-materialman, Jim & Slim’s Tool Supply, Inc., appeals from an order dismissing its complaint against appellee, Metro Communities Corporation (hereinafter owner). We reverse.

Th’e complaint alleged that the appellant had, pursuant to the request of Consolidated Construction Company (subcontractor hereinafter) furnished various building materials to be used by the subcontractor in building apartments for owner. It is further alleged that owner’s agent had orally agreed during the week of March 25, 1974 to “guarantee” payment of some $800 for materials previously delivered to the subcontractor (the subcontractor being then in default), in consideration for which appellant agreed to continue furnishing materials to the job and to forbear from filing a Claim of Lien against owner’s real property. This action seeks to recover some $3,465.00 under this “guarantee” agreement.

Upon owner’s motion, the trial court entered an order dismissing the complaint on two theories. First, the court held that enforcement of the contract was barred by the general Statute of Frauds, § 725.01, F. S.1973, in that it was a special oral promise to answer for the debt or miscarriage of another (the subcontractor) within the meaning of the statute. Alternatively, the court held that such oral guarantee is unenforceable under the “Statute of Frauds” provision of the Uniform Commercial Code, § 672.201, F.S.1973, in that it is an oral contract for the sale of goods in excess of $500. We cannot agree with either theory.

As to the general Statute of Frauds, § 725.01, supra, we hold that the owner’s oral promise in this case is not within the purview thereof. The pivotal question on the applicability of that statute is whether the promise is, in fact, an actual assumption of the liability of another with consideration flowing only to such other or, to the contrary, is an original undertaking of the promisor himself supported by independent consideration flowing to him. Florida case law on the point, though not in so many words, is in accord with the weight of authority in following what Cor-bin calls the “leading obj ect” rule wherein if the promise to pay the debt of another is independent and unconditional, and is made for a valuable consideration of direct pecuniary value to the promisor (that is to say, the “leading object” being to benefit the promisor), the transaction is not within the statute.

Although no Florida case has dealt with whether forbearance in the filing of a claim of lien satisfies the “leading object” test, the weight of sister authority holds that the abandonment of a lien by such forbearance constitutes a new and independent consideration sufficient to take an owner’s promise to pay an indebtedness owed to a materialman by a contractor outside the statute. Here, the owner’s primary motivation for entering into the con-, tract with the appellant was to avoid the attachment of a materialman’s lien clouding his title. As a consequence too, of course, the merchantability of his apartments was protected. Clearly, as in the foregoing cases, such “pecuniary” interest directly to the owner brings this case within the “leading object” rule.

Concerning, now, the Statute of Frauds provision of the Uniform Commercial Code, § 672.201, supra, we hold that it is equally ineffective as a bar to enforcement of the contract sued on herein. Assuming without deciding that materialmen’s contracts in the building trade are within the purview of the statute, subsection (3)(c) thereof provides that oral contracts for the “sale” of goods “which have been received and accepted” are enforceable. Here, the materials supplied by appellant at the instance of the owner after the promise sued on were surely delivered pursuant to the new agreement and were “received and accepted” within the contemplation of the statute. We think the “Statute of Frauds” provision thereof is therefore inapplicable as to them. With respect to the materials supplied before the “guaranty” contract sued on, they were not delivered pursuant to a “contract for sale” within the definition thereof in the Uniform Commercial Code, § 672.106, F.S. 1973. The statute is thus inapplicable as to them.

In view whereof, the order appealed from should be, and it is hereby, reversed; and the cause is remanded for further proceedings not inconsistent herewith.

HOBSON and SCHEB, JJ., concur.

      . See 2A. Corbin Contracts § 368 (1950).

      . See Bensam Corp. v. Felton (Fla.1953), 63 So.2d 278; 15 Fla.Jur. Statute of Frauds § 4 (1957).

      . See, eg., Cox v. Halloran, 82 App.Div. 639, 81 N.Y.S. 803 (1903), appeal dismissed 179 N.Y. 533, 71 N.E. 1129 (1904) ; Wells & Morris v. Brown, 67 Wash. 351, 121 P. 828 (1912) ; 72 Am.Jur.2d Statute of Frauds § 253 (1974) ; Annot. 99 A.L.R. 79, 118 (1935).

      . 1 R. Anderson Uniform Commercial Code § 2-201:39 (2d ed. 1970).


author: OWEN, Judge.

text:
    Roger J. PADRON, Appellant, v. STATE of Florida, Appellee.
    No. 74-225.
    District Court of Appeal of Florida, Fourth District.
    Jan. 30, 1976.
    Rehearing Denied April 1, 1976.

      Michael T. Mallon, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Thomas M. Carney, Asst. Atty. Gen., West Palm Beach, for appellee.
   OWEN, Judge.

Appellant, indicted for second degree murder, was convicted of manslaughter. We reverse and remand for a new trial because we conclude that harmful error occurred when the court allowed the State to place into evidence, over appellant’s objection, the homicide weapon (a handgun) which had been obtained as a result of a warrantless search of appellant’s home subsequent to the shooting.

The search which resulted in the seizure of the weapon occurred under the following circumstances. After the shooting, appellant was arrested at his home, handcuffed and placed in the back seat of a patrol car. Upon inquiry, appellant revealed that the gun which he had used was in his house, but he told the investigating officers in no uncertain terms that they did not have his permission to enter. The house was occupied at the time by appellant’s three sons and several of their young friends. After being thus denied access to the house by the father, a deputy sheriff approached the house and spoke to appellant’s oldest son, sixteen years old, who also denied him entry. The deputy sheriff thereupon ordered everybody out of the house and into the yard in order to “protect the evidence.” The hour was late and it was an extremely cold night, with temperatures of 30° to 40° ; appellant’s youngest son, aged nine, was ill at the time. In light of these circumstances, and in order to allow the children to remain inside the house, the sixteen year old son capitulated and allowed the deputy sheriff to enter the house, where the revolver was found and seized.

The State, conceding that the warrant-less search which occurred here cannot be justified either on the basis of exigent circumstances, or as incident to an arrest, contends that the search was lawful because it was pursuant to legally sufficient consent. Appellant contends that the son’s consent was not legally sufficient for two reasons: first, the son did not have the authority to give the consent after his father, who was present during the entire transaction, had categorically refused to do so; second, the consent was not voluntary. We agree with appellant on both grounds, either of which alone would be sufficient basis for holding the search unlawful and requiring suppression of the fruits thereof.

In United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), the United States Supreme Court discussed the criteria concerning the validity of searches based upon third party consent. The rule was therein stated, at 170, 94 S.Ct. at 993:

“. . . the consent of one who possesses common authority over premises or effects is valid as against the absent, nonconsenting person with whom that authority is shared.” (e. s.)

Common authority derives from the mutual use of the property in question “by persons generally having joint access or control,” id., at 171, 94 S.Ct. at 993. Applying this rule to the facts of the instant case, it seems clear to us, in the first instance, that a sixteen year old child does not share “common authority” with his father over the premises of a common dwelling place provided by the latter, see, May v. State, 199 So.2d 635 (Miss. 1967) , and even if it could be assumed that the son would succeed to a tantamount authority over the premises in the father’s absence, where the father was present and asserted his rights, the son had no authority to override that assertion. Lawton v. State, 320 So.2d 463 (Fla.App. 2d 1975) ; see also, Davis v. United States, 327 F.2d 301 (9th Cir. 1964).

The son’s consent was further ineffective because, under the circumstances of this case, it cannot be said to have been voluntarily given. In order for a consent to search to be effective, it must be freely and voluntarily given, Jackson v. State, 132 So.2d 596 (Fla.1961); Garcia v. State, 186 So.2d 556 (Fla.App.3rd 1966), and the evidence that it was so given must be clear and convincing. Sagonias v. State, 89 So.2d 252 (Fla.1956); Samuels v. State, 318 So.2d 190 (Fla.App.2d 1975). The determination of voluntariness is to be made from the totality of the circumstances. United States v. Matlock, supra; Bailey v. State, 295 So.2d 133 (Fla.App.4th 1974); State v. Othen, 300 So.2d 732 (Fla.App.2d 1974). The question of voluntariness is one of fact for the trial court, Bailey v. State, supra, and its .determination will not be disturbed on appeal unless clearly erroneous. James v. State, 223 So.2d 52 (Fla.App.4th 1969).

In the instant case, under the totality of the circumstances mentioned above, we most respectfully disagree with the trial court’s conclusion that the consent did “not constitute a yielding to the majesty of the law by the defendant’s son, but rather a yielding by the officer to the desires of the defendant’s son not to leave the premises.” If the deputy’s true motive was the protection of the evidence, there were available to him alternatives other than ordering all of the occupants out of the house on an extremely cold night. Requiring the son to make a choice between permitting the search or the unreasonable alternative (under these circumstances) of evacuating the house effectively stripped his “consent” of any voluntary character.

Because of our disposition of the case on this issue, it is unnecessary for us to consider appellant’s remaining points on appeal. The conviction is reversed and the cause remanded for a new trial.

Reversed and remanded.

WALDEN, C. J., and MORIARITY, W. HERBERT, Associate Judge, concur.

      . Numerous cases have been decided in this jurisdiction validating third party consents given by a relative of the defendant, but these have all involved situations in which the consenting party was in a superior relationship to the defendant and had an interest in and an authority over the premises to be searched which was equal to or greater than that of the defendant. See, e. g., Rivers v. State, 226 So.2d 337 (Fla.1969) [grandfather] ; Irvin v. State, 66 So.2d 288 (Fla.1953) [mother] ; Tomlinson v. State, 129 Fla. 658, 176 So. 543 (1937) [father]; Addison v. State, 243 So.2d 238 (Fla.App. 4th 1971) [grandmother] ; Hills v. State, 238 So.2d 320 (Fla.App. 3rd 1970) [mother] ; Rhome v. State, 222 So.2d 431 (Fla.App. 3rd 1969) [mother]. Our research has failed to reveal any Florida ease in which the consent of a minor child to search premises owned by a person in a superior relationship has been considered.

      . See, e. g., Ferrara v. State, 319 So.2d 629 (Fla.App. 1st 1975) wherein the court suggested that any fears the police may have entertained of the destruction of the evidence sought to be seized could have been allayed by keeping the premises under surveillance while other officers obtained a warrant.


text:
    F. L. A., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 75-969.
    District Court of Appeal of Florida, Third District.
    March 2, 1976.
    Phillip A. Hubbart, Public Defender, and Gerald D. Hubbart, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., Margarita Esquiroz, Asst. Atty. Gen., and Gary Rose, Legal Intern, for appellee.
    Before BARKDULL, C. J., and PEARSON and NATHAN, JJ.
   PER CURIAM.

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


author: SMITH, Judge.

text:
    Eugene M. LEDFORD and Alyce E. Ledford, his wife, Appellants, v. T. S. SKINNER and Gary Leroy Skinner, Appellees.
    No. Y-221.
    District Court of Appeal of Florida, First District.
    March 16, 1976.

      Fredrick L. Rice, Rice & Kreidler, Jacksonville, for appellants.
    Richard O. Watson, St. Augustine, for appellees.
   SMITH, Judge.

The Ledfords appeal from a decree requiring them to sell to the Skinners the car wash pioperty which they leased to the Skinners subject to an option to purchase. The Ledfords insist that the Skinners did not exercise their option to purchase within the initial term or a renewal of the lease and, consequently, that the asserted exercise of the option to purchase was not timely. See Gower-Goheen Realty, Inc. v. Braun, 215 So.2d 499 (Fla.App.2d, 1968); Howard Cole & Co., Inc. v. Williams, 157 Fla. 851, 27 So.2d 352, 356 (1946); Annot., 15 A.L.R.3d 470, §7 (1967).

,The lease provided that its initial term would expire September 30, 1970, but that the Skinners might renew for three years at the same rental by notifying the Ledfords in writing 30 days before the end of the initial term. Under the principle of Sisco v. Rotenberg, 104 So.2d 365 (Fla. 1958), a timely renewal would extend not only the lease but also the life of the option to purchase exercisable within the term of the lease.

The Skinners failed to give notice of their desire to renew the lease on or before September 1, 1970, and they entirely failed to give the prescribed written notice. However, Mrs. Ledford and T. S. Skinner discussed renewing the lease in October 1970, about two weeks after the original term had expired. According to the view of the evidence most favorable to the Skinners, who prevailed in the trial court, Mrs. Ledford inquired whether the Skinners were going to renew and T. S. Skinner, aghast at having forgotten to give timely written notice, stated that he and his brother Gary did wish to renew and that they would “get her a letter.” Mrs. Led-ford replied that a letter was not necessary and that Skinner need not worry. There was no further discussion of renewal. The Skinners continued to pay the specified rental and continued to operate a car wash on the property, replacing worn out equipment and refinancing to lessen and extend their payments to an equipment financier.

The Skinners purportedly exercised their option to purchase on June 28, 1973, after having occupied and paid the stipulated rental for the car wash property for thirty-three months beyond the end of the initial term. The lease provided that credits against the purchase price of $20,000 were to be allowed the Skinners for the balance of an assumed mortgage and for all the rentals paid at $200 per month. The Led-fords acquiesced in the proposed sale and began making arrangements for closing until they discovered that crediting all the Skinner rental payments, now aggregating $13,000, would reduce the cash payable to the Ledfords at closing to a mere $823, out of which they could expect to pay $275 in closing costs and a fee to their attorney. Reflecting with disappointment on that prospect and on their having received net rental income of only $350 a year after mortgage payments, the Ledfords repudiated the proposed sale.

The efficacy of the Skinners’ option to purchase in June 1973 depends, of course, on the existence of a renewed three-year leasehold term following September 1970. The Skinners admittedly gave no timely notice of their desire to renew the lease and they gave no written notice, as plainly required by the lease. Decisions elsewhere have held that the landlord’s acceptance of rental payments after expiration of the original term waives a lease requirement for explicit notice of renewal. E. g., Armstrong v. Hendrickson, 160 Me. 230, 202 A.2d 558 (1964); Playmate Club, Inc. v. Country Clubs, Inc., 462 S.W.2d 890 (Tenn.App.1970); Annot., 44 A.L.R.2d 1359, § 8[b] (1955); see also 51C C.J.S. Landlord & Tenant § 77 (1968).' But a Florida statute has provided in essentially the same terms since 1905 that “the mere payment or acceptance of rent shall not be construed to be a renewal of the said term” of a tenant holding over beyond the term of a written lease. Sec. 83.04, F.S. 1975. That statute has been given conclusive effect against a tenant holding over and claiming a renewed term notwithstanding his failure to give a required renewal notice. Painter v. Town of Groveland, 79 So.2d 765 (Fla.1955); see also Brown v. Markham, 56 Fla. 202, 48 So. 39 (1909).

The factual issues in this case were submitted to a jury by stipulation of the parties. The jury, which was properly charged on the effect of § 83.04, F.S., found from all the circumstances that the Ledfords waived the lease requirement for timely written notice to renew, that a new three-year term began October 1, 1970, and therefore that the Skinners’ option to purchase survived to be exercised in June 1973. According those findings the respect to which they are entitled, we believe they and the evidence bring the case within the rule of Dugan v. Haige, 54 So.2d 201, 202 (Fla. 1951). There, quoting with approval from 32 Am.Jur. Landlord and Tenant § 981 (1941), our Supreme Court held that

“ . . . special circumstances . . . may warrant a court of equity in granting relief against the consequences of the lessee’s failure to notify the lessor, within the stipulated time, of an intention to exercise the privilege of renewal.”

The Court in Dugan found “special circumstances” justifying equitable recognition of a renewed term, notwithstanding the lessees’ tardiness by eighteen days in giving written notice to renew, in that “the lessors had actual notice of the lessees’ intention to extend the lease [and] . . . the lessors had not been harmed or damaged by the lessees’ delay in giving the written notice . . . .” See also L’Engle v. Overstreet, 64 Fla. 339, 60 So. 120 (1912); Comment, 5 U.Fla.L.Rev. 338 (1952). In Painter, supra, 79 So.2d at 767, the Court recognized that the effect of § 83.04, F.S., might be varied on equitable grounds.

The Skinners’ mere expression at trial of an intention to have timely exercised the renewal option is not sufficient to gain for them the benefit of a lease renewal and the dependent option to purchase. Tolin v. Pearce-Simpson, Inc., 186 So.2d 65 (Fla.App.3d, 1966). Neither did the Skinners’ repair and refinancing of car wash equipment after October 1, 1970, constitute detrimental reliance which would appeal to equity for relief. Repairs and refinancing were necessary or convenient to the continued operation of the car wash, which the Ledfords were willing to permit indefinitely, upon continued payment of the rent. But the conversation between Mrs. Ledford and T. S. Skinner in October 1970 and the Ledfords’ acceptance of $200 monthly for thirty-three months after expiration of the initial term constituted equitable grounds to foreclose the Ledfords from relying on a lapse of the term of the lease.

The lease as originally negotiated gave the Skinners the right to regard their $200 monthly payments not only as rentals for the use of the land, not simply as the price of preserving an option to purchase, but as periodic payments of the purchase price. While the lease thus entitled the Skinners to buy the Ledfords’ land for a small price paid in time without interest, we cannot relieve the Ledfords of the bargain. To hold in these circumstances that § 83.04, F.S., transformed the Skinners’ payments after September 1970 into mere rentals of a tenant at sufferance or at will, we should have to disregard entirely the conversation between T. S. Skinner and Mrs. Ledford during October. As a result of that conversation, the October payment and all subsequent payments were referable to and explained by the lease alone. It would be inequitable now to deprive the Skinners of the bargained-for character of their thirty-three payments after September 1970 merely because they erred in the form and timing of their renewal, which did not mislead the Ledfords.

There is evidence from which the trier of the facts could lawfully have resolved this controversy favorably to the Skinners. The Ledfords’ other points on appeal do not require reversal. The decree of the trial court is

AFFIRMED.

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


text:
    Joseph A. LODOLY, Appellant, v. Elvera C. LODOLY, Appellee.
    No. 75-74.
    District Court of Appeal of Florida, Second District.
    March 10, 1976.
    Michael J. Buscemi, Tampa, for appellant.
    Karl B. Grube, Seminole, for appellee.
   PER CURIAM.

Appellant-husband appeals the trial court’s judgment of dissolution, arguing that the court improperly distributed property acquired during the marriage.

Since it can be justified as lump sum alimony, we affirm the trial court’s award of a one-half interest in the husband’s separately held stock or its cash equivalent. Likewise, the trial court’s decision to award temporary possession of the marital home to the wife is also affirmed. We remand for clarification, however, as to whether the trial court intended the value of the stock award to be reduced by the amount of outstanding encumbrances against portions of the stock.

McNULTY, C. J., and HOBSON and SCHEB, JJ., concur.


author: SCHEB, Judge.

text:
    Henry F. WATTS, Appellant, v. STATE of Florida, Appellee.
    No. 75-958.
    District Court of Appeal of Florida, Second District.
    March 10, 1976.
    Ben Kay, New Port Richey, of Allweiss & Anderson, St. Petersburg, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Judge.

Appellant was convicted of aggravated assault resulting from an occurrence on September 29, 1974. Although the maximum permissible sentence for the crime is five years appellant was placed on probation for six years.

Until 1974, Fla.Stat. § 948.04 specified that a term of probation could not extend more than two years beyond the maximum permissible sentence. But, Ch. 74-112, effective July 1, 1974, eliminated this proviso. We think, therefore, a court is now powerless to extend a period of probation beyond the maximum permissible sentence except as expressly provided in that statute.

The power to place a defendant on probation for a period of time not to exceed the maximum sentence which may be imposed can be inferred, but since July 1, 1974, there no longer exists any express statutory basis for allowing a longer period of probation. There is validity to not allowing probation to extend beyond the period of maximum sentences. First, a penal statute must be strictly construed in favor of those against whom it would operate; and second, to infer that a court could extend probation beyond such a maximum permitted punishment would lead to unacceptable results. For although the period of probation imposed here was only one year beyond the maximum sentence, the absence of any limit raises the possibility that a judge could direct many years of probation even for a misdemeanor, a concept which has the potential to inject further disparities into the corrective process.

We have examined appellant’s arguments relating to ineffective assistance of counsel, and admission into evidence of the weapon used in the assault, and find them to be without merit.

■ Accordingly, the judgment is affirmed, but we remand for the trial court to impose a new term of probation consistent with this opinion.

McNULTY, C. J., and HOBSON, J., concur.

      . See Fla.Stat. §§ 784.04 and 775.082(4) (d) (1973).

      . Fla.Stat. § 948.04, as amended, provides that a defendant found guilty of a misdemeanor may be placed on probation for six months. This is in excess of the sixty-day maximum sentence for a misdemeanor of the second degree.

        . Cf., Rice, Probation — When and How Long?, 49 Flá.Bar J. 324, 326 (June 1975).


author: GRIMES, Judge.

text:
    Bobby Earl HOLLEY, Appellant, v. STATE of Florida, Appellee.
    No. 75-89.
    District Court of Appeal of Florida, Second District.
    March 12, 1976.

      Jack O. Johnson, Public Defender, Bar-tow, and Wayne Chalu, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

This appeal primarily involves the admissibility of certain evidence under the Uniform Business Records as Evidence Act.

To understand the importance of this question, it is necessary to consider the testimony of certain key witnesses. The appellant was charged with robbing Plant City Saf-T-Gas on February 19, 1974. Dorothy Pelham, the bookkeeper for the company, testified that while in the office by herself about 12:45 p. m., she was robbed by a man she later identified as appellant. The state then called Betty Jean Broom, a secretary for Texgas in Plant City, who testified that her office was robbed on February 4, 1974. She was “pretty sure” that appellant was the robber. Ms. Broom’s testimony was introduced without objection as “Williams Rule” testimony to prove identification because of a similar modus oper-andi in the two crimes. Williams v. State, Fla. 1959, 110 So.2d 654. Appellant took the stand and denied both robberies. He said he was in Houston, Texas, on February 4. While he admitted being in Plant City on February 19, he insisted that he was visiting relatives about the time the robbery occurred.

Appellant first asserts that the court erred in refusing to suppress an in-court identification by Ms. Pelham and Ms. Broom because of a tainted lineup and an allegedly improper exhibition of photographs. We can find no error in the refusal to suppress the in-court identification.

A more serious problem is presented by appellant’s unsuccessful attempt to introduce a copy of a motel registration card with machine stamped dates reflecting that one Bobby Holley was registered at the Downtown Holiday Inn in Houston, Texas, from February 3, 1974, to February 5, 1974. Appellant had sought to authenticate the card through the testimony of Jose Escobar, who was the Assistant Comptroller of the motel.

The Uniform Business Records as Evidence Act is an extension of the shop-book rule and is intended to liberalize the rules pertaining to the admissibility of shopbook memoranda. Exchange National Bank of Tampa v. Hospital and Welfare Board of Hillsborough County, Fla.App.2d, 1965, 181 So.2d 9. The justification for this exception to the hearsay rule is the probability of trustworthiness which is incident to a record kept in the regular course of business and made at or near the time of the act, condition or event of which it purports to be a record. National Car Rental System, Inc. v. Holland, Fla.App. 4th, 1972, 269 So.2d 407. There is nothing in the statute which suggests that its application is limited to civil cases.

Mr. Escobar was clearly the custodian of the motel records. He was in a position to demonstrate that the copy of the registration card was the best evidence available because the original had been destroyed. He was prepared to testify concerning the method by which the registration cards were filled out. The argument that Mr. Escobar was not the desk clerk is beside the point. The statute was passed to avoid the necessity of bringing to court every person who played a part m the preparation of a particular business record. While the proffer was never completed, the record sufficiently indicates that Mr. Esco-bar could have qualified under Fla.Stat. § 92.36 for the purpose of introducing the registration card into evidence.

There was only one witness to the robbery with which appellant was charged and one witness to the Williams Rule robbery. While the introduction of the registration card was not conclusive proof, it would have tended to corroborate appellant’s story that he was in Houston on the date of the Williams Rule robbery. If Williams Rule testimony is relevant enough to be permitted, competent evidence tending to disprove the Williams Rule testimony is equally important. Since we cannot say for certain that the jury’s verdict would have been the same had the card been permitted into evidence, the judgment must be reversed, and the case is remanded for a new trial.’

McNULTY, C. J., and SCHEB, J., concur.


text:
    ISLAND FOODWAY, INC., a Florida Corporation, Appellant, v. J. E. HOLMES and Maud Holmes, his wife, Appellees.
    No. 75-606.
    District Court of Appeal of Florida, Second District.
    March 12, 1976.
    John P. Harllee, III, of Harrison, Harl-lee & Porges, Bradenton, for appellant.
    Clyde C. Goebel, of Grimes, Goebel, Parry, Blue & Boylston, Bradenton, for appel-lees.
   PER CURIAM.

The judgment is hereby affirmed subject to a modification which is necessary to correct what appears to have been a clerical error. The appellant’s obligation for lease rental payments shall cover the period of January 1, 1974, to March 10, 1975, rather than from January 1, 1973, to March 10, 1975.

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


author: NEWELL, EMERY J., Associate Judge.

text:
    Mabel IGLEHEART, a/k/a Mabble Igleheart, Appellant, v. Edward S. WHITE, Appellee.
    No. 74-32.
    District Court of Appeal of Florida, Fourth District.
    Nov. 28, 1975.
    Rehearing Denied March 30, 1976.

      Harry G. Carratt of Morgan, Carratt and O’Connor, P. A., and Elizabeth Athan-asakos, Ft. Lauderdale, for appellant.
    Carl V. Wisner, Jr., Ft. Lauderdale, for appellee.
   NEWELL, EMERY J., Associate Judge.

Plaintiff (appellee) brought suit against the defendant on four separate counts. Each was in common count form. Count I alleged that on February 17, 1970, the plaintiff at the special instance and request and for the benefit of defendant, paid, laid out and expended for use and benefit of defendant, the sum of $10,000.00, with interest at the rate of 10% per annum. Count II contains similar allegations except that the principal sum loaned was $2,000.00 on April 4, 1970, and the interest rate was 6% per annum. Count III similarly alleges a loan of $2,500.00 on June 24, 1970, with interest from the date of loan. Count IV simply states that on September 30 and October 1, 1970, plaintiff loaned defendant the sum of $4,000.00. Plaintiff states that no part of these loans have been repaid with the exception of $6,000.00 paid on April 10, 1971, purportedly in partial satisfaction of the monies loaned in Count I. It is noted that the aggregate principal sums amount to $12,500.00 after deducting the repayment.

Defendant sought to dismiss the complaint for plaintiff’s failure to attach docu-, mentary evidence of the loans. The trial court denied this motion. Thereafter, defendant filed her answer in which she generally denied the allegations of plaintiff’s complaint except she admitted plaintiff was paid the sum of $6,000.00 which payment she stated was in behalf of International Development Investment Corporation (IDIC). Defendant was the president of this corporation, hereinafter referred to as IDIC. Additionally, defendant’s answer set forth various affirmative defenses. The trial court subsequently entered its order striking each of the affirmative defenses.

We find no error in the trial court’s denial of the motion to dismiss nor in striking the alleged affirmative defenses.

Plaintiff then moved the court for a partial summary judgment relying upon depositions and various exhibits filed with the depositions. One of those exhibits is of special significance as the plaintiff’s motion and apparently the trial court’s entry of partial summary judgment are founded upon this particular exhibit. This exhibit is a letter dated April 1, 1971, written by defendant lgleheart to plaintiff which contains, inter alia, the following language:

“On or before April 10, 1971, I agree to pay to you the sum of $6,000.00 by cashiers check.
“On October 10, 1971, I agree to pay to you the sum of $5,000.00 in the same manner.
“On April 10, 1972, I agree to pay to you the sum of $5,000.00 in the same manner.”

This letter seemingly explains the acknowledged payment of $6,000.00 and the partial summary judgment entered against defendant for $10,000.00 with interest at 6% per annum on $5,000.00 from October 10, 1971, to the date of entry and interest on $5,000.-00 at 6% per annum from April 10, 1972, to the date of entry.

We reverse the partial summary judgment for the reason there were genuine issues of material fact which precluded its entry; namely, were the debts those of defendant Igleheart or those of IDIC. There is no reason to restate the principles of law involved as they are well-known. We do examine the record to point out these matters:

1. By letter.of February 13, 1970, and prior to the paying out of any sums by plaintiff, defendant explained to plaintiff the purpose and background of IDIC. In that letter defendant said, “We can discuss a loan with a great return on investment or we can discuss an investment in the company with long-range profit.”

2. In another letter under date of February 16, 1970, from defendant to plaintiff, defendant said, “A loan of $10,000.00 would suffice and carry our company through the short-term cash flow bind

3. On February 17, 1970, plaintiff executed a power of attorney to his sister (also an officer of IDIC) to: Sign all papers and/or documents in the execution of a loan in the amount of TEN THOUSAND and NO/100 ($10,000.00) DOLLARS, to the International Development Investment Company.

4. IDIC was the payee of three checks signed by plaintiff: a) check dated February .17, 1970, in the sum of $10,000, b) check dated April 6, 1970, in amount of $2,000.00 and c) check dated June 24, 1970, in the amount of $2,500.00.

5. In the deposition of plaintiff White taken on October 23, 1973, he answered that he first met defendant at the time he lent money to IDIC.

Accordingly, the judgment is reversed and remanded for further proceedings consistent herewith.

WALDEN, C. J., and DOWNEY, J., concur.


text:
    Warren A. McFADDEN and Mary Ann McFadden, Appellants, v. Thompson BAKER, etc., et al., Appellees.
    No. AA-174.
    District Court of Appeal of Florida, First District.
    Feb. 25, 1976.
    Rehearing Denied April 1, 1976.
    Richard F. Hayes, Law Offices of Melvin D. Bratton, Coral Gables, for appellants.
    Thomas M. Baumer and Dana G. Bradford, III, Mahoney, Hadlow, Chambers & Adams, Jacksonville, for appellees.
   PER CURIAM.

Having considered the record, briefs and oral argument of counsel and finding that the interlocutory appeal is without substantial merit, it is dismissed pursuant to Rule 4.2, subd. c, Florida Appellate Rules.

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


text:
    AMERICAN CAST IRON PIPE COMPANY, Appellant, v. PEABODY-PETERSEN CO., an Illinois Corporation, et al., Appellees.
    No. 74-1367.
    District Court of Appeal of Florida, Fourth District.
    Feb. 27, 1976.
    Rehearing Denied March 30, 1976.
    Ernest R. Drosdick, Lowndes, Peirsol, Drosdick & Doster, Orlando, for appellant.
    Lawrence M. Watson, Jr., of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Orlando, for appellees Peabody-Petersen Co. and Maryland Casualty Co.
   OWEN, Judge.

Appellant, a supplier to a subcontractor on a public-works contract, suffered dismissal with prejudice of its suit against the principal and the surety of the contract bond because of the plaintiff’s failure to comply with the notice requirements and time limitations of Fla.Stat. § 255.05(2) (1973).

The facts in this case are substantially identical to those in the case of United Bonding Insurance Company v. City of Holly Hill, 249 So.2d 720 (Fla.App. 1st 1971), with the exception that the plaintiff in this case was a materialman to a subcontractor whereas in the United Bonding case, supra, the plaintiff was a material-man to the contractor. Appellee contends that this is a significant distinction be-^ tween the two cases. However, its argument in support of its contention misses the mark. The issue here, simply stated, is whether the bond in this case was a common-law performance bond and thus, under the holding of the United Bonding case, supra, not subject to the notice requirements and time limitations set out in Fla. Stat. § 255.05(2) (1973), or whether the bond was a statutory bond to which Fla. Stat. § 255.05(2) (1973) applied. The distinction for which appellant contends simply does not affect this issue.

We conclude that the bond in this case was (just as was the bond in United Bonding, supra) a common-law performance bond. The order dismissing without leave to amend Counts I and II of appellant’s first amended complaint is reversed and this cause remanded for further proceedings.

Reversed and remanded.

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


author: MILLS, Judge. BOYER, Chief Judge

text:
    The FIRST NATIONAL BANK OF LAKE CITY, a National Banking Corporation, Appellant (Plaintiff), v. CANAL INSURANCE COMPANY, a Foreign Corporation, et al., Appellees (Defendants).
    No. X-205.
    District Court of Appeal of Florida, First District.
    March 10, 1976.
    W. Roderick Bowdoin of Jopling, Darby, Peele & Page, Lake City, for appellant.
    Frank M. Gafford, Lake City, and C. T. Boyd, Jr., of Boyd, Jenerette, Leemis & Staas, Jacksonville, for appellees.
   MILLS, Judge.

The First National Bank, plaintiff in a suit on an automobile insurance policy, appeals from a final summary judgment rendered in favor of the defendant, Canal Insurance Company.

The issue before us is whether the trial court erred in its entry of the judgment which was based on the ground that the facts presented to it established as a matter of law a bailment lease between the owner of a trailer and his driver.

First National financed the purchase of the trailer by the Bryans who gave it a note and security agreement. By endorsement, Canal added the trailer to a policy covering a tractor owned by the Bryans and made First National the loss payee. Under its insuring agreement, Canal agreed to pay for loss of the trailer caused by theft. Excluded from coverage was loss due to conversion by any person in possession of the trailer under a bailment lease, conditional sale, purchase agreement, mortgage or other encumbrance.

Bryan engaged a driver to drive the tractor-trailer rig to Michigan to pick up and to return produce to Florida. Bryan furnished the driver with money to operate the rig. The driver was to be paid twenty percent' of the gross proceeds received for the produce. Bryan instructed the driver to let him know where he was hauling the produce, and to come through Lake City. Shortly after his departure, the driver called several times, but after several days of no contact Bryan swore out a warrant for his arrest. Approximately six months later the tractor was found abandoned in Tampa, but neither the trailer nor the driver has been found. Canal was properly informed of the loss.

“. . .A bailment lease is usually defined as a legal method by which one desiring to purchase personal property but is unable to pay therefor at the time, may secure possession of the property with right to use and enjoy it as long as he pays a stipulated rental and becomes the absolute owner, after completing installment payments, on payment of an additional sum, which may be nominal. It seems to be the rule that the right to become the absolute owner is essential to a bailment lease.” Motors Insurance Corporation v. Stanley, 237 Miss. 681, 115 So.2d 678 (1959).

Section 520.02(1), Florida Statutes, defines motor vehicle as including trailers. Section 520.02(5), Florida Statutes, defines bailment lease as a contract by which the bailee contracts to pay as a compensation for the use of a motor vehicle a sum substantially equivalent to or in excess of its value and by which it is agreed that the bailer is bound to become, or for no further or a merely nominal consideration, has the option of becoming, the owner of the motor vehicle upon full compliance with the provisions of the contract.

The facts presented to the trial court do not establish as a matter of law a bailment lease between the owner of the trailer and his driver. Rather, they establish an employer-employee relationship. The facts in the case before us are almost identical to those in Firemans Fund Insurance Co. of San Francisco v. Boyd, 45 So.2d 499 (Fla. 1950), in which the court concluded that a truck came into the driver’s custody by virtue of his employment as the driver, and he did not have that possession, nor that contractual obligation with respect to the thing bailed, characteristic of a bailment. The trial court erred in its entry of the final summary judgment in favor of Canal.

Graff Enterprises v. Canal Insurance Company, 213 So.2d 738 (Fla.App.lst, 1968), relied upon by Canal, is not applicable to the case before us, because the court did not consider the provisions of the exclusionary clause in arriving at its decision.

Although First National contends that the trial court erred in denying its summary judgment, we are unable to consider the point, because the record does not contain an order indicating that the trial court considered the summary judgment.

Reversed and remanded for further appropriate proceedings.

McCORD, J. concurs.

BOYER, C. J., dissents.

BOYER, Chief Judge

(dissenting).

I respectfully dissent. The loss complained of was, in my view, clearly a conversion by a bailee and therefore excluded from coverage under the exclusionary clause contained in appellee’s policy of insurance, and thus controlled by Graff Enterprises v. Canal Insurance Company, Fla.App.1st 1968, 213 So.2d 738. I would affirm.