text:
    In re in the Interest of L. K., a/k/a Baby Girl H.
    Nos. 77-981, 77-1040.
    District Court of Appeal of Florida, Fourth District.
    Nov. 15, 1977.
    Rehearing Denied Dec. 20, 1977.

      Robert W. Olsen, Orlando, for petitioner State of Fla., Dept, of Health and Rehabilitative Services, Social & Economic Services.
    Gerald S. Rutberg and Larry M. Roth, Casselberry, for appellee Elizabeth Kraft-chick Griffin.
   PER CURIAM.

By Petition for Certiorari the State of Florida, Department of Rehabilitation, Social and Economic Services seeks review of an order of the trial court which, among other things, commands the Department to:

“[Forthwith take any and all proper and legal action necessary to produce Lori Kraftchick before this court and to that end the Social and Economic Services Division is directed to appear in the New York State Family Court in and for the County of Warren for the purpose of securing the return of Lori Kraftchick, as a representative of this court or to have a representative so appear to see that Judy and Arthur Aronson who obtained the child by order of this court turn over the child to Social and Economic Services for further proceedings of this court.”

We ¿find that the order is overly broad. We therefore modify the order in question by deleting therefrom all reference to the Division of Health and Rehabilitative Services being required to appear in the New York State Family Court to see that the child in question is turned over to the Division for production before the trial court.

Certiorari is granted and the order under review is modified in accordance with the foregoing.

Certiorari granted.

CROSS, DOWNEY and DAUKSCH, JJ., concur.


source: Caselaw Access Project

author: DAUKSCH, Judge.

license: Public Domain

text:
    Roland Earl BLACKMON, Petitioner, v. STATE of Florida, Respondent.
    No. 77-1885.
    District Court of Appeal of Florida, Fourth District.
    Nov. 15, 1977.
    Rehearing Denied Dec. 21, 1977.

      Robert W. Buonauro, P. A., Orlando, for petitioner.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard P. Zaretsky, Asst. Atty. Gen., West Palm Beach, for respondent.
   ON APPLICATION FOR PETITION FOR WRIT OF ERROR CORAM NOBIS

DAUKSCH, Judge.

In accordance with the dictates of Hallman v. State, 343 So.2d 912 (Fla.2d DCA 1977), Appellant has applied to this court for permission to apply to the trial court for a new trial based upon alleged newly discovered evidence. Since the filing of Appellant’s Petition our Supreme Court in The Ohio Casualty Group v. Parrish et al., 350 So.2d 466 (Fla.1977), has said permission need not be sought of the appellate court to file such a motion in a civil case. We see no reason the same rule should not apply in a criminal case, and hold that it does. Therefore, Appellant may file with the trial court such motions as he is advised in accordance with The Ohio Casualty Group, supra, without prior approval from us.

ALDERMAN, C. J., and LETTS, J., concur.


author: PER CURIAM.

text:
    Rosalee PETERSON, etc., Appellant, v. MIDWESTERN NATIONAL LIFE INSURANCE COMPANY, Appellee.
    No. 76-1962.
    District Court of Appeal of Florida, Third District.
    Nov. 15, 1977.
    Rehearing Denied Dec. 21, 1977.
    Corlett, Merritt, Killian & Sikes, Greene & Cooper and Robyn Greene, Miami, for appellant.
    Thornton, Conroy & Herndon, P. A., and John W. Thornton and Nancy J. Cliff, Miami, for appellee.
    Before HENDRY, C. J., and HAVER-FIELD and HUBBART, JJ.
   PER CURIAM.

Affirmed. Cloud v. Fallis, 110 So.2d 669, 673 (Fla.1959); City of Miami v. Veargis, 311 So.2d 693, 694 (Fla.3d DCA 1975).


author: SMITH, Judge.

text:
    James A. BOLLING and Annette H. Bolling, his wife, Appellants, v. Jack L. LAMBERSON et al., Appellees.
    No. EE-219.
    District Court of Appeal of Florida, First District.
    Nov. 18, 1977.
    Rehearing Denied Dec. 22, 1977.

      John D. Buchanan, Jr., of Henry & Buchanan, P. A., Tallahassee, for appellants.
    Lawrence M. Shoot, Miami, for appellees.
   SMITH, Judge.

The mortgagees appeal from a summary final judgment entered for the mortgagors and owners in a foreclosure proceeding. The encumbered motel property was severely damaged by a hurricane, following which the mortgagors applied for a Small Business Administration loan to restore the improvements. To induce SBA to grant the loan, the mortgagees agreed in writing to “give at least thirty days notice to [SBA] prior to instituting proceedings to foreclose or liquidate [their] . . . security interest.” Later, when the due date of the first mortgage payment had passed and no payment was made, the mortgagees gave written notice to the mortgagors that “the note and mortgage have been accelerated and that payment [is] demanded in full.” The mortgagees then gave written notice to SBA of their intention to institute foreclosure proceedings. Within thirty days of the latter notice, the mortgagors tendered the past due installments but not the entire debt. That tender was refused and a foreclosure complaint was filed. The trial court granted the mortgagors a summary judgment of dismissal because, while a thirty-day notice of intention to foreclose was given SBA after acceleration of the debt, the mortgagees gave no separate thirty-day notice to SBA of their intention to accelerate the debt for the mortgagors’ failure to pay an installment.

We cannot agree with the trial court that the mortgagees’ agreement with the SBA effectively modified the terms of the note and mortgage and afforded “a grace period within which any default or other breach might be cured.” By the terms of the mortgage the entire debt was subject to acceleration without demand or notice within ten days after failure of prompt payment of an installment. The mortgagees’ agreement with SBA did not cancel the mortgagees’ right of acceleration but only required a thirty-day notice “prior to instituting proceedings . . . .” Since the mortgagors’ equity of redemption continued under Florida law notwithstanding the institution of foreclosure proceedings, it may be wondered what benefit the mortgagees’ undertaking to SBA secured for the mortgagors or for SBA. Perhaps the thirty-day notice period was intended to enable the mortgagors with SBA’s assistance to pay the accelerated debt to avoid fees and costs before suit, or to prepare for suit; perhaps the SBA agreement afforded a grace period to cure defaults when a mortgagee’s right to accelerate is not reserved by the mortgage or recognized by State law; perhaps the mortgagees’ undertaking to SBA accomplished no benefit whatever to the mortgagors. In any event, we decline to give that undertaking effect beyond its terms. Without prejudice to the trial court’s consideration of the equities in such further proceedings as may be proper, the summary judgment for the mortgagors is

REVERSED. Campbell v. Werner, 232 So.2d 252 (Fla. 3d DCA 1970).

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


author: RAWLS, Acting Chief Judge.

text:
    John P. PARIS, Appellant, v. L. Charles HILTON, Jr., et al., Appellees.
    No. FF-470.
    District Court of Appeal of Florida, First District.
    Nov. 18, 1977.
    Rehearing Denied Dec. 22, 1977.
    Jerry W. Gerde of Davenport, Johnston, Harris, Gerde & Harrison, Panama City, for appellant.
    William E. Williams of Mahoney, Hadlow & Adams, Jacksonville, for appellees.
   RAWLS, Acting Chief Judge.

By this interlocutory appeal, Paris seeks review of an adverse final summary judgment granting the rescission and cancellation of two promissory notes held by Paris. The trial court’s basis for granting the summary judgment was its finding that the notes were given as consideration for Paris’s services as a real estate broker within the State of Florida at a time that he was not registered as a Florida real estate broker pursuant to Chapter 475, Florida Statutes.

Paris and appellee Cooper are both residents of the State of Georgia. In mid-1973, Paris, a licensed real estate broker in Georgia, learned that certain Gulf County, Florida, acreage was on the market. Paris followed an energetic course of action that ultimately led to the formation of a binding contract for salé of the land between appel-lees Hilton & Associates and Cooper. Paris’s activities in conjunction with the sale of this property included numerous telephone calls from Atlanta to Panama City, Florida, for the purpose of discussing the real estate and the terms of its sale with one of the owners; a one day visit to the property which included three hours of “walking” the land and photographing it; preparing Dr. Cooper’s written offer to purchase, as well as working with Cooper’s attorneys on the sales contract; returning to Panama City for further discussions and negotiations concerning the contract; and attending the closing of the sale in Panama City during February of 1974.

Paris received his $315,070 commission in the form of a $215,070 note secured by the real property and a check for $100,000 from Cooper. By prior arrangement, Paris returned the $100,000 to Cooper and, in turn, was given a check for $25,000 and a demand note for $75,000. Cooper subsequently refused to honor the notes and sought their rescission and cancellation.

The services performed by Paris clearly fall within the provisions of Section 475.01(2), Florida Statutes, as being duties to be performed by real estate brokers or salesmen. It is undisputed that Paris was not licensed either as a broker or as a salesman in the State of Florida. While it is true that the purpose of the Real Estate Licensing Act is to protect the public from being forced to deal with dishonest or unscrupulous real estate operators, rather than to permit one party to gain unconscionable advantage by avoiding a just obligation which he has contracted to pay, the statute also protects the public in general from untrained and unsupervised real estate operators. To this end, the legislature of this state has decreed that contracts to pay the commissions of real estate brokers or salesmen, who are not registered as such in the State, of Florida at the time such services are rendered, are entirely void as a matter of public policy, and the courts have ruled that recovery may not be had either under the contract or under the theory of quantum meruit.

The judgment appealed is AFFIRMED.

SMITH and ERVIN, JJ., concur.

      . Geneva Inv. Ltd. v. Trafalgar Developers Ltd, 274 So.2d 581 (Fla. 3rd DCA 1973), cert. disch. 285 So.2d 593 (Fla.1973), appeal after remand 305 So.2d 274 (Fla. 3rd DCA 1974). Paris argues strongly that because he is licensed to practice in Georgia, the citizens of Florida are not exposed to the dangers that the.statute seeks to restrict. Paris argues, just as strongly, that it is inequitable and unconscionable to allow Cooper to avoid his contractual obligation to pay him his commission for services rendered.

      . Bradley v. Banks, 260 So.2d 256 (Fla. 3rd DCA 1972); Wegmann v. Mannino, 253 F.2d 627 (5th Cir. 1953), cert. den. 358 U.S. 824, 79 S.Ct. 37, 3 L.Ed.2d 63 (1958).


text:
    The STATE of Florida ex rel. Christine MITCHELL, Relator, v. Virginia Q. BEVERLY, as Judge of the Circuit Court of the Fourth Judicial Circuit, in and for Duval County, Florida, Respondent.
    No. HH-153.
    District Court of Appeal of Florida, First District.
    Nov. 18, 1977.
    Rehearing Denied Dec. 22, 1977.

      Robert W. Elrod, Jacksonville, for relator.
    No appearance for respondent.
    Robert L. Shevin, Atty. Gen., Charles W. Musgrove, Asst. Atty. Gen., Tallahassee, for State of Florida, real party respondent in interest.
   SMITH, Judge.

Relator’s suggestion for writ of prohibition questions whether the 90-day retrial period prescribed by Fla.R.Cr.P. 3.191(g), following our reversal of relator’s prior conviction, Mitchell v. State, 333 So.2d 89 (Fla. 1st DCA 1976), began to run upon the trial court’s receipt of our mandate for new trial or, as the State contends, did not begin until the Supreme Court denied rehearing on its decision discharging a writ of certiorari issued on the State’s petition. 347 So.2d 610 (Fla.1977). Because the effect of our mandate was not stayed automatically by the State’s filing a petition for writ of certiorari within 15 days from the date of our decision, Fla.App.R. 4.5c(6), we agree with relator that the ten days that elapsed between the trial court’s receipt of our mandate and the entry of the Supreme Court’s order staying further proceedings should be tacked to the 84 days that later elapsed between the Supreme Court’s denial of rehearing and relator’s motion for discharge. Thus, more than 90 days elapsed before relator’s retrial and she must be discharged.

Criminal Rule 3.191(g) provides in part: A person who is to be tried again shall be brought to trial within 90 days from . the date of receipt by the trial court of a mandate, order, or notice of whatever form from an appellate or other reviewing court which makes possible a new trial for the defendant

There is no doubt that a new trial pursuant to our mandate was impossible during the period the Supreme Court, on the State’s motion, ordered proceedings stayed pending its consideration of the State’s petition for certiorari. Had the State filed its petition for certiorari within 15 days after our decision on the appeal, our mandate would not have issued but would have been stayed pending disposition of the certiorari petition. Fla.App.R. 315a, 4.5c(6). But the State did not file its certiorari petition within 15 days and our mandate was issued as a matter of course. Therefore, unless and until the Supreme Court on special motion granted a stay, our mandate “[made] possible a new trial for the defendant,” as contemplated by the speedy trial rule. To discount the period that our mandate was outstanding because of the Supreme Court’s later stay order would dilute the effect of our mandate and subject the accused to delay of an uncertain period, depending on when the State applied for a stay and when the Supreme Court acted on the application. That we feel, is contrary to the letter and spirit of Rule 3.191(g). See State v. Williams, 344 So.2d 311 (Fla. 2d DCA 1977), approved, 350 So.2d 81 (Fla. 1977). Contrast State v. Sampson, 317 So.2d 782 (Fla. 3d DCA 1975).

We recognize that the issuance of our mandate on a criminal appeal may have an uncertain effect in the trial court when the losing party, whether the State or the defendant, seeks Supreme Court review by petition for certiorari. We are told that the defendant who is at liberty pending his appeal pursuant to á supersedeas order is frequently taken into custody on the trial court’s receipt of our affirming mandate, notwithstanding that the defendant timely files a petition for certiorari and obtains a further stay. When our decision discharges or orders a new trial for the defendant, the consequences to the State of our mandate are illustrated by this case. We recognize also that the party losing in this court may not secure all the benefits of the automatic stay provided by Rule 4.5c(6) in certiorari proceedings when the losing party petitions this court for rehearing. Our mandate issues as of course when a rehearing petition is denied. Fla.App.R. 3.15b. Thus our mandate frequently commands action in the trial court notwithstanding that the losing party plans to file and does file a petition for certiorari in the Supreme Court within 15 days after our denial of a petition for rehearing. On the prior appeal of this case, the State filed no petition for rehearing; so we need not decide here whether, in such a case, our mandate is effective to require a new trial during the period it is outstanding in the trial court before an automatic stay of further proceedings there is secured by filing a petition for certiorari in the Supreme Court.

The proper remedy for the uncertainty resulting from the issuance of our mandate in a criminal case is, of course, for the losing party to take available steps to prevent issuance of our mandate when cer-tiorari proceedings are contemplated: the losing party may forego filing a petition for rehearing on the appeal to this court and within 15 days file a petition for certiorari in the Supreme Court and a certificate “of filing the same” in this court, thus staying issuance of our mandate; or the losing party may petition this court for rehearing and simultaneously for a 15-day stay of the mandate if rehearing should be denied. Fla.App.R. 3.15b, 4.5c(6).

The prayer of the suggestion for writ of prohibition is GRANTED and the rule nisi is made absolute.

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


author: RAWLS, Judge.

text:
    John W. TANNER, Petitioner, v. George CANSLER, as Director of Corrections Volusia County, Florida, and Edwin H. Duff, Sheriff of Volusia County, Florida, Respondents. John W. TANNER, Appellant, v. STATE of Florida and J. Robert Durden, Circuit Judge, Appellees.
    Nos. DD-363 and DD-394.
    District Court of Appeal of Florida, First District.
    Nov. 22, 1977.
    Rehearing Denied Dec. 22, 1977.
    W. Bradley Munroe, Tallahassee, and John W. Tanner, Daytona Beach, for petitioner.
    Robert L. Shevin, Atty. Gen., and Charles W. Musgrove, Asst. Atty. Gen., for respondents.
    John W. Tanner, Daytona Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Raymond L. Marky and Charles W. Musgrove, Asst. At-tys. Gen., for appellees.
   RAWLS, Judge.

During a criminal trial in which attorney Tanner was counsel for one of the defendants, the trial court adjudged him guilty of direct criminal contempt and sentenced him to 24 hours in the county jail. Tanner contends the trial court erred in failing to recite in its judgment of guilt the facts upon which he was adjudicated guilty of contempt and erred in finding his conduct contemptuous. We agree and reverse.

This court’s recent opinion in Ray v. State, 352 So.2d 110, First DCA Case No. DD-408, opinion filed November 7, 1977, is controlling. Ray involved the contempt proceedings of one of the other defense attorneys in the murder trial from which Tanner’s alleged contempt arose. In Ray, we determined that the trial court committed reversible error by failing to comply with Florida Rule of Criminal Procedure 3.830 which requires that a judgment of guilt shall include a recital of those facts upon which the adjudication of guilt is based.

Here, as in Ray, the judgment adjudicating Tanner of contempt recited conclusions and not the required facts.

The judgment appealed in Case No. DD-394 is REVERSED.

Companion to the issues in Case No. DD-394 is the petition for writ of habeas corpus filed by Tanner in Case No. DD-363. Tanner’s petition for writ of habeas corpus is granted with directions that he be discharged.

McCORD, C. J., and SMITH, J., concur.


author: HENDRY, Chief Judge.

text:
    ARISON SHIPPING COMPANY, a Florida Corporation, Ted Arison, Harvey Levinson, Mr. Brain, Inc., a Florida Corporation and Georgian Bay Lines, Inc., an Illinois Corporation, Appellants, v. Milton H. HATFIELD, Individually and Milton H. Hatfield, and James W. Kindelan and Others d/b/a Coopers and Lybrand, a Partnership f/k/a Lybrand, Ross Brothers & Company, Appellees.
    No. 76-1632.
    District Court of Appeal of Florida, Third District.
    Nov. 22, 1977.
    Rehearing Denied Dec. 21, 1977.
    Law Offices of Howard W. Mazloff, Coral Gables, for appellants.
    Paul & Thomson and Sanford L. Bohrer, Miami, for appellees.
    Before HENDRY, C. J., and PEARSON and HUBBART, JJ.
   HENDRY, Chief Judge.

Appellants/plaintiffs appeal from an order dismissing their amended complaint for malicious prosecution.

The sole issue presented by this appeal is whether a dismissal “for lack of jurisdiction over the subject matter” in a prior civil lawsuit filed against the present plaintiffs is a bona fide termination of the lawsuit sufficient to state a cause of action for malicious prosecution. We hold that it is not.

There are six elements needed to be established by a plaintiff to sustain a cause of action based upon malicious prosecution: first, the commencement or continuance of an original criminal or civil judicial proceeding; second, its legal causation by the present defendant against the present plaintiff; third, its bona fide termination in favor of the present plaintiff; fourth, absence of probable cause; fifth, presence of malice; and sixth, damage conforming to the legal standards resulting to the plaintiff. Applestein v. Preston, 335 So.2d 604 (Fla.3d DCA 1976). Such a “bona fide termination” of the prior civil suit must be an adjudication on the merits in a judicial proceeding. Jackson v. Biscayne Medical Center, Inc., 347 So.2d 721 (Fla.3d DCA 1977).

It is our opinion that a dismissal for lack of subject matter jurisdiction is not an adjudication on the merits and thus, not a bona fide termination of the prior civil suit. See Weber v. Johnston Fuel Liners, Inc., 540 P.2d 535 (Wyo.1975); Heaney v. Purdy, 29 N.Y.2d 157, 324 N.Y.S.2d 47, 272 N.E.2d 550 (1971); Roy v. Landers, 467 S.W.2d 924 (Mo.1971); Siegel v. City of Chicago, 127 Ill.App.2d 84, 261 N.E.2d 802 (1970).

Accordingly, the judgment of dismissal is hereby affirmed.

Affirmed.


author: NATHAN, Judge.

text:
    Bernard Francis CURTIS, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1719.
    District Court of Appeal of Florida, Third District.
    Nov. 22, 1977.
    Rehearing Denied Dec. 21, 1977.
    Bennett H. Brummer, Public Defender, and Paul Morris, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Linda Collins Hertz, Asst. Atty. Gen., for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   NATHAN, Judge.

Bernard Curtis, defendant below, appeals from a jury verdict of guilty on charges of burglary and grand larceny. The issues presented are: (1) Whether there was error in the trial court’s refusal to instruct the jury on the consequences of a verdict of not guilty by reason of insanity, and, (2) Whether there was error in the trial court’s restriction of the direct questioning of the defendant. We find there was reversible error on the first issue, and deem the second without merit on the facts before us.

Curtis admitted at trial that he had stolen money and checks from a Catholic church. He stated that he had taken money over the years from more than two thousand Catholic churches, that he stole only from Catholic churches, and that he had been confined in mental institutions on six separate occasions. His sole defense was that he was insane at the time of the commission of the offenses charged.

Although the state contends that the evidence presented went only to substantiate an “irresistible impulse,” a defense not recognized as insanity in Florida, Wheeler v. State, 344 So.2d 244 (Fla.1977), the record reveals that the trial court saw fit to submit the question of Curtis’ insanity to the jury after counsel for both sides had argued the issue vigorously. This obviates the state’s assertion that, as a matter of law, the defense of insanity was not fairly raised. It is clear from the record that this defense was indeed fairly, albeit not successfully, raised.

During the discussion of jury instructions, the defense requested that the court also charge the jury on the results of a verdict of not guilty by reason of insanity. The judge denied the motion, deeming the instruction extraneous since he was not going to charge the jury as to the penalties the law provides for one found guilty of the offenses charged.

Prior to the jury’s retiring, the court gave instructions on the defense of insanity. No instructions were given on the penalties applicable to the offenses charged, nor was the requested instruction on the effect of a verdict of not guilty by reason of insanity given. The jury found the defendant guilty on both charges.

At a subsequent hearing on defendant’s motion for a new trial, the trial court was urged to grant the new trial on the express ground that the requested instruction on the effect of a verdict of not guilty by reason of insanity was mandated by the ruling of the Florida Supreme Court in Roberts v. State, 335 So.2d 285 (Fla.1976). A new trial was denied, and this appeal followed.

We note initially that the Roberts decision was handed down subsequent to trial but prior to both the motion for new trial and this appeal. This fact does not preclude application of Roberts to the instant case. Wheeler v. State, supra; Ringgo v. State, 339 So.2d 293 (Fla. 1st DCA 1976).

In Roberts, the supreme court adopted the so-called “Lyles Rule,” which mandates that whenever the defense of insanity is fairly raised, the trial judge is to instruct the jury regarding the consequences of a verdict of not guilty by reason of insanity. Lyles v. United States, 103 U.S.App.D.C. 22, 254 F.2d 725 (1957). Having found already that no question remains as to whether the defense of insanity was fairly raised below, we are left to decide whether the “Lyles Rule” is to be applied in a situation in which the trial court took particular care to avoid involving the jury in the issue of penalties.

At the hearing on defendant’s motion for a new trial the trial judge correctly noted that penalty arguments had played a major part in both Lyles and Roberts, whereas the opposite was true in the case sub judice. We note, however, that the state, in its closing argument, told the jury:

The defendant said he disliked the Catholic church. He may have a great mental block about the Catholic church. It may make it very easy for him to steal from them again and again, and to feel, “Well, it’s okay.”

It is arguable that the jurors were misled into believing that only a guilty verdict could insure against the defendant’s being released. This alone would be sufficient for us to find Roberts applicable despite the court’s care to avoid instructions about penalties.

But we do not rest our decision solely on this fact. In Roberts, the court faced a factual situation which was particularly compelling. Yet it specifically declined to limit its holding to the facts therein, preferring to emphasize the policy considerations underlying the “Lyles Rule.” We believe that Roberts stands for the proposition that, whenever the defense of insanity is fairly raised, it is reversible error for the trial court to fail to give instruction on the consequences of a verdict of not guilty by reason of insanity if such instruction has been requested.

Therefore we reverse the decision below for failure to give the instruction when requested to do so. See also Fla.R.Crim.P. 3.600(b)(7).

Reversed and remanded for a new trial.

      . The precise language of the requested charge is:
      I charge you that when a person tried for an offense shall be acquitted by the jury for the cause of insanity, the jury, in giving their verdict of not guilty, shall state that it was given for such cause. If the discharge or going at large of the defendant shall be considered by the court manifestly dangerous to the peace and safety of the public, the court shall order him to be committed to jail or to a mental institution to be cared for as an insane person and such person shall be held in custody until released by order of the committing court, or the court may give him into the care of his family or friends, on their giving satisfactory security for the proper care and protection of such person.


text:
    CITY OF MIAMI, Appellant, v. Leonard L. GATES, Frank K. Palmer, James W. Rogers, and James C. Williams, Individually and on behalf of all others similarly situated, Appellees.
    No. 77-1499.
    District Court of Appeal of Florida, Third District.
    Nov. 22, 1977.
    Rehearing Denied Dec. 21, 1977.
    George F. Knox, Jr., City Atty. and Sherman Bennett Mayor, Asst. City Atty., for appellant.
    Paul & Thomas and Sanford L. Bohrer, Edmond J. Gong, Miami, for appellees.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   PER CURIAM.

Affirmed. See City of Miami v. Carter, 105 So.2d 5 (Fla.1958).


text:
    Glenn K. BRYANT, a minor, by and through his father and next friend, Leroy Bryant, and Leroy Bryant, Individually, Appellants, v. JAX LIQUORS, a corporation, and Travelers Insurance Company, a corporation, Appellees.
    No. DD-473.
    District Court of Appeal of Florida, First District.
    Nov. 23, 1977.
    Rehearing Denied Dec. 22, 1977.

      William M. Howell of Howell, Howell, Liles & Braddock, Jacksonville, for appellants.
    H. Franklin Perritt, Jr. of Marks, Gray, Conroy & Gibbs and Walter G. Arnold, Jacksonville, for appellees.
   RAWLS, Judge.

Bryant (appellants-plaintiffs) appeals a final judgment granting Jax Liquors’ (appel-lees-defendants) motion to dismiss their amended complaint.

The issue posed for our resolution is whether or not the amended complaint states a cause of action when it alleges that Jax Liquors violated a statute that was designed to protect a certain class of persons from injury; that Bryant was a member of that class and the injuries sustained by him were the proximate result of such statutory violation.

Material allegations of Bryant’s amended complaint are: Jax Liquors sold a case of rum to two members of a high school club who were under 18 years of age; the rum was purchased to be used in an initiation ceremony, wherein Bryant and other minors were required to consume, or pressured into consuming, large quantities of the rum; Bryant became intoxicated to the extent he was “caused to fall, jump or dive, or was pushed or shoved by others of the intoxicated minor initiates, so that he sustained severe injuries resulting in a permanent paralysis from the neck down.”

Section 562.11, Florida Statutes, which makes it a crime to sell intoxicating liquors to a minor, was passed to prevent the harm that can be caused by one of immaturity imbibing such liquors. Violation of the statute by a vendor constitutes negligence per se. Prevatt v. McClennan, 201 So.2d 780 (Fla. 2nd DCA 1967). However, the fact of negligence per se resulting from a violation of the subject statute does not mean that there is actionable negligence. A plaintiff must allege: 1) that he is of a class the statute was intended to protect; 2) that he suffered injury of the type the statute was designed to prevent; and 3) that violation of the statute was the proximate cause of the injury, deJesus v. Seaboard Coast Line Railroad Company, 281 So.2d 198 (Fla.1973).

Negligence per se does not constitute strict liability. Placing into the flow of commerce alcoholic beverages, by selling same to a minor, does not render the vendor strictly liable for every ensuing act that intervenes between the sale and the consumption of same. Liability must in every instance be determined by the circumstances. Williams v. Youngblood, 152 So.2d 530 (Fla. 1st DCA .1963). Foreseeability and proximate cause are essential principles of negligence actions that must be alleged. “Probable cause” is not “possible cause”. “Foreseeable” is not “what might possibly occur”. Unlike the facts appearing in Davis v. Shiappacossee, 155 So.2d 365 (Fla. 1963), the subject amended complaint fails to allege circumstances which could convert the word possible in the rule to probable. In point is Rio v. Minton, 291 So.2d 214 (Fla. 2nd DCA 1974), which held that, under the circumstances alleged, the occurrence of an accident must be probable rather than possible.

The amended complaint first alleges the sale of a case of rum to two minors. It does not, as in Davis, supra, allege that the sale was made to the party who was injured, that “from their ages that it must have been apparent to anyone who bothered to look that the purchasers were boys”. Further, Davis emphasized that the “boys” were driving a dangerous instrumentality at the time that the purchase of intoxicating beverages was made. In Davis, the death of the plaintiff minor resulted from his driving this instrumentality in an intoxicated condition, and “these cogent circumstances could and should convert the word ‘possible’ in the rule to probable.” The instant amended complaint alleges that the injured minor, who did not participate in the purchase of the subject rum, at some remote time after the purchase, was caused and required to consume or pressured to consume large quantities of rum. As stated in the landmark case of Pope v. Pinkerton-Hays Lumber Co., 120 So.2d 227 (Fla. 1st DCA 1960): “. . to constitute proximate cause there must be such a natural, direct, and continuous sequence between the negligent act and the injury that it can reasonably be said that but for the act the injury would not have occurred.”

Finally, we apply the “but for” test to the allegation that the minor plaintiff, while participating in a high school club’s initiation ceremony, in which 20 new members were being inducted, “was caused to fall, jump or dive, or was pushed or shoved by others of the intoxicated minor initiates”. Can it be said that the vendor of a case of rum sold to minors, not otherwise described, is charged with notice that a probable consequence of such sale is that at some remote time one of many other minors will be compelled to partake of the rum until he becomes intoxicated and ultimately suffers an injury from the independent affirmative acts of other minors? Possible? Yes. Probable? No.

AFFIRMED.

McCORD, C. J., and SMITH, J., concur.


author: PER CURIAM. BOYER, Acting Chief Judge,

text:
    Henry S. KIRKPATRICK and Edith B. Kirkpatrick, his wife, Appellants, v. CITY OF JACKSONVILLE, through its Department of Housing and Urban Development, a Municipal Corporation, and Duval Title and Abstract Company, a corporation, Appellees.
    No. EE-97.
    District Court of Appeal of Florida, First District.
    Nov. 23, 1977.
    Rehearing Denied Dec. 22, 1977.
    Tom C. Meers, Jacksonville, for appellants.
    Dawson A. McQuaig, William Lee Allen and William L. Coalson, M. S. Dunay of Schneider, Dunay & Lee, Jacksonville, for appellees.
   PER CURIAM.

The Kirkpatricks appeal a final judgment entered in their favor following an inverse condemnation action by them against the City. They raise several points, only one of which warrants special consideration, pertaining to the lower court's alleged error by refusing to allow them to introduce into evidence the assessed value of their property for tax purposes to rebut the City’s expert testimony as to its value, relying upon Trad v. City of Jacksonville, 279 So.2d 384 (Fla. 1st DCA 1973), which held tax assessments are admissible into evidence as admissions against interest of the condemning authority. We do not consider the point well taken. Trad dealt with a total taking so that the property assessment was relevant in considering the value of the entire parcel, including both land and improvements. Here the jury had for its consideration only the value of improvements, and the tax assessment was not broken down as to the value of both the land and the buildings.

Additionally we do not have before us the transcription of the trial proceedings. The only transcript included within the record pertains to the hearing following trial as to the amount of attorney fees to be awarded. Consequently we have no way of discovering from the record the specific reason why the trial court disallowed the proffered exhibit. It has been held in countless cases that an appellant may not present an error for appellate consideration on an incomplete record if the omitted matter might affect the determination of the error by the reviewing court. E. g., Hodge v. State, 29 Fla. 500,10 So. 556 (1892); Albritton v. State, 54 Fla. 6, 44 So. 745 (1907); Nelson v. State, 85 So.2d 832 (Fla.1956).

AFFIRMED.

MILLS and ERVIN, JJ., concur.

BOYER, Acting C. J., concurring specially-

BOYER, Acting Chief Judge,

concurring specially.

I concur in affirmance for the reasons set forth in the concluding paragraph of the majority opinion. I do not agree that the Trad case is not here applicable.


text:
    James McCLOUD, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1291.
    District Court of Appeal of Florida, Third District.
    Nov. 29, 1977.
    Bennett H. Brummer, Public Defender and Warren S. Schwartz, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Arthur Joel Berger, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, NATHAN and KEHOE, JJ.
   PER CURIAM.

Affirmed. See Cacciatore v. State, 186 So.2d 32 (Fla. 3d DCA 1966); Rhome v. State, 222 So.2d 431 (Fla. 3d DCA 1969); Boykin v. State, 309 So.2d 211 (Fla. 1st DCA 1975).


author: HAVERFIELD, Judge.

text:
    Omar Upman ALI, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1395.
    District Court of Appeal of Florida, Third District.
    Nov. 29, 1977.

      Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Ira Ñ. Loewy, Asst. Atty. Gen., for appellee.
    Before HAYERFIELD, NATHAN and KEHOE, JJ.
   HAVERFIELD, Judge.

Omar Upman Ali appeals his conviction for criminal mischief (as a lesser included offense of arson for which he was informed against) and first urges as reversible error the failure of the trial court to exclude a key prosecution witness with whom the prosecution conferred in the presence of another witness after the sequestration rule had been invoked.

Prior to voir dire, defense counsel had invoked the witness sequestration. At a subsequent recess, he observed the prosecutor talking with two prosecution witnesses, Mr. Mashburn and Mrs. Aboulafia, and informed the court. The court then inquired of the prosecutor and the witnesses concerning the nature of the conversation. Their corroborating testimony reflected that Mr. Mashburn was unable to see so the prosecutor requested Mrs. Aboulafia, who was seated next to Mr. Mashburn, to read to him the transcript of his testimony at the preliminary hearing to refresh his memory. The prosecutor also admitted that he asked Mr. Mashburn one question as to whether any material at the scene of the fire had later been moved. The court then ruled that Mr. Mashburn and Mrs. Aboulafia would not be disqualified; nevertheless, Mrs. Aboulafia was never called by the prosecution to testify.

The reason for the sequestration rule is to avoid the coloring of a witness’ testimony by that which he or she has heard from other witnesses who have preceded him or her on the stand. Spencer v. State, 133 So.2d 729, 731 (Fla.1961). When this rule is violated, a witness may be excluded within the sound discretion of the trial judge. McVeigh v. State, 73 So.2d 694 (Fla. 1954); Spencer, supra. Certainly the purpose of the sequestration rule was in no way frustrated with respect to Mr. Mash-burn as a transcript of his own testimony was read to him. Mrs. Aboulafia, the only witness whose testimony could possibly have been colored, never testified.

Defendant also contends that the trial court erred in failing to exclude a statement he made to the arresting officer where the prosecution failed to furnish this statement to defense counsel pursuant to Fla.R.Crim.P. 3.220(a)(1)(iii) although reciprocal discovery had been invoked.

After the trial had commenced, the court granted defense counsel permission to take the deposition of the arresting officer, George Misleh, whom defense counsel had unsuccessfully attempted to serve with a subpoena prior to trial because Misleh had been on vacation. After the deposition, defense counsel informed the court that he had just learned that the defendant had made a statement to Officer Misleh that he (the defendant) had paid for a room at the hotel where the fire bombing had occurred. Thereupon, the court questioned the prosecutor and Officer Misleh about this statement. The prosecutor stated that he had no knowledge of its existence. Officer Mis-leh testified that he had a telephone conversation with defense counsel one or two weeks before the trial and informed defense counsel that defendant had made statements to him, although he did not discuss the contents; and defense counsel responded that he would take his deposition on the day of trial. The court concluded that defense counsel at least knew that defendant had made statements to Officer Misleh (if not the specific contents). After a further inquiry into the voluntariness of the statement (which is not at issue), the court refused to exclude the statement.

Upon the failure of a party to make a disclosure under the criminal discovery rules after timely invocation, the duty devolves upon the trial court to make adequate inquiry into whether the party’s violation of the rule was inadvertent or willful; whether the violation was trivial or substantial; and what effect, if any, it had upon the other party’s ability to properly prepare for trial. The court may then exercise its discretion in entering such order as it deems just. Richardson v. State, 246 So.2d 771 (Fla.1971) and Fla.R.Crim.P. 3.220(j)(1). The record in the case sub judi-ce clearly demonstrates that the court made adequate inquiry into all of the surrounding circumstances, and there appears no abuse of the court’s discretion in refusing to exclude the subject statement. Cf. Cooper v. State, 336 So.2d 1133, 1137-39 (Fla.1976). Further, assuming the failure to exclude the statement was error, we find the error to be harmless in view of the overwhelming evidence of guilt. Cf. Thomas v. State, 328 So.2d 545, 546 (Fla.3d DCA 1976).

Affirmed.

      . Defendant testified at the trial and denied having registered at the hotel.


text:
    Clyde R. BALCH, Appellant, v. Connie BALCH, Appellee.
    Nos. 76-2345, 76-2346.
    District Court of Appeal of Florida, Third District.
    Nov. 29, 1977.
    Rehearing Denied Dec. 21, 1977.
    Stephan H. Tarr, Miami, for appellant.
    Henry A. Amoon, Miami, for appellee.
    Before HAVERFIELD, NATHAN and HUBBART, JJ.
   PER CURIAM.

Affirmed. Chaachou v. Chaachou, 135 So.2d 206, 223 (Fla.1961).


text:
    Johnny FULLER, Appellant, v. The STATE of Florida, Appellee.
    No. 77-88.
    District Court of Appeal of Florida, Third District.
    Nov. 29, 1977.
    Bennett H. Brummer, Public Defender and Thomas G. Murray, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, NATHAN and KEHOE, JJ.
   PER CURIAM.

Affirmed. Purdy v. Mulkey, 228 So.2d 132 (Fla. 3d DCA 1969); Mulkey v. Purdy, 234 So.2d 108 (Fla.1970); Tiller v. State, 330 So .2d 792 (Fla. 1st DCA 1976).


text:
    Larry JOHNSON, Appellant, v. The STATE of Florida, Appellee.
    No. 77-255.
    District Court of Appeal of Florida, Third District.
    Nov. 29, 1977.
    Bennett H. Brummer, Public Defender, and Thomas G. Murray, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Arthur Joel Berger, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, NATHAN and KEHOE, JJ.
   PER CURIAM.

Affirmed. See Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); United States v. Francoeur, 547 F.2d 891 (5th Cir. 1977); United States v. Cooper, 472 F.2d 64 (5th Cir. 1973); Lynch v. State, 293 So.2d 44 (Fla.1974); and Gilbert v. State, 311 So.2d 384 (Fla. 3d DCA 1975).


text:
    Richard L. LITT, M.D., Petitioner, v. Dorothy BETSEY and Joseph Betsey, her husband, Respondents. Richard L. LITT, M.D., Appellant, v. Dorothy BETSEY and Joseph Betsey, her husband, Appellees.
    Nos. 77-817, 77-818, 77-824 and 77-825.
    District Court of Appeal of Florida, Third District.
    Nov. 29, 1977.

      Blackwell, Walker, Gray, Powers, Flick & Hoehl and Mark Hicks, Miami, for petitioner/appellant.
    Grover, Ciment, Weinstein & Stauber, Miami Beach, and Allan S. Friedman, Miami, for respondents/appellees.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   PER CURIAM.

There have been filed between these parties two petitions for writ of certiorari and two interlocutory appeals. The various orders addressed are as follows:

Case No. 77-817 — Petition for Writ of Common Law Certiorari or in the Alternative Suggestion for Writ of Prohibition-taken from a March 18, 1977, order granting respondents’ (appellees’) motion to set aside order of dismissal.
Case No. 77-818 — Petition for Writ of Common Law Certiorari or in the Alternative Suggestion for Writ of Prohibition — taken from an April 12, 1977, order denying petitioner’s (appellant’s) motion to dismiss for lack of prosecution (which had been previously granted).
Case No. 77-824 — Notice of Interlocutory Appeal — taken from the March 18, 1977, order.
Case No. 77-825 — Notice of Interlocutory Appeal — taken from the April 12, 1977, order.

These matters are consolidated for briefing and oral argument. Having examined the briefs and heard argument, the following actions are taken:

The interlocutory orders, case nos. 77-824 and 77-825, are affirmed.

The petitions for writ of certiorari, case nos. 77-817 and 77-818, are denied.


author: KEHOE, Judge.

text:
    Luke RADER and Alma Rader, his wife, Appellants, v. Miguel RECAREY, Jr., Associated Doctors’ Hospitals, Inc., etc., et al., Appellees.
    No. 77-850.
    District Court of Appeal of Florida, Third District.
    Nov. 29, 1977.

      Adams, George, Schulte & Ward and Robert C. Ward, Thomas E. Lee, Jr., Miami, for appellants.
    Koeppel, Stark & Newmark, William T. Kruglak, II, Male, Bloom, Bodne, Kuper-stein & Eisenberg and Philip Bloom, Miami, for appellees.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   KEHOE, Judge.

Appellants, plaintiffs below, bring this interlocutory appeal from an order entered by the trial court dated March 21, 1977, awarding appellee, Associated Doctors’ Hospital, defendant below, its costs and attorneys’ fees incurred in removing a receiver originally appointed pursuant to appellants’ motion. We have concluded that the award of costs was appropriate, but that the award of attorneys’ fees was in error. Accordingly, the order appealed is affirmed in part and reversed in part.

In the instant case, the receiver was removed and the receivership dissolved pursuant to our mandate issued in Recarey v. Rader, 320 So.2d 28 (Fla.3d DCA 1975). Thereafter, appellee Associated Doctors’ Hospital filed a motion seeking to collect its costs and attorneys’ fees expended in obtaining the removal of the receiver and the dissolution of the receivership. The motion was granted by the trial court and it entered an order adjudging that appellants were responsible for the payment of the costs and attorneys’ fees. From this order, appellants appeal.

Appellants’ basic contention on appeal is that the trial court erred in assessing such charges against them because they were required to post no bond in the cause.

The rule in Florida is well established that attorneys’ fees cannot be charged against a party in litigation unless there is statutory authority to do so or the party is bound for their payment by contract. Brite v. Orange Belt Securities Co., 133 Fla. 266, 182 So. 892 (Fla.1938); and Hoffman v. Barlly, 97 So.2d 355 (Fla.3d DCA 1957). In the instant case, no statutory authority has been shown for awarding appellee Associated Doctors’ Hospital its attorneys’ fees for successfully obtaining the discharge of the receiver and the dissolution of the receivership. Further, the record is devoid of a showing of any contractual obligation between the parties which would support such an award. If the trial court had required appellants to post a plaintiffs’ bond, the bond could have formed the basis of a contract for the award of attorneys’ fees. See Belk’s Department Store, Miami, Inc., v. Scherman, 117 So.2d 845 (Fla.3d DCA 1960). However, the trial court’s order did not require that appellants post such a bond as a condition for the appointment of the receiver. The order only required that the receiver post a receiver’s bond conditioned on the good and faithful performance of his duties as receiver.

Because, we have determined under the facts of this case, that there was no statutory authority or contractual obligation permitting the trial court to assess attorneys’ fees against appellants, that portion of the order appealed assessing attorneys’ fees against appellants is reversed. However, we have concluded that costs were properly assessed against appellants, therefore, that portion of the order appealed is affirmed.

Affirmed in part, reversed in part.


author: DREW (Ret.), Associate Judge.

text:
    Rose Marie BURCH, Appellant, v. John M. BURCH, Appellee.
    No. 77-1167.
    District Court of Appeal of Florida, Third District.
    Nov. 29, 1977.
    Rehearing Denied Feb. 2, 1978.
    Frank M. Marks, Miami, for appellant.
    Manners, Amoon & Whatley and George H. Tucker, Miami, for appellee.
    Before HENDRY, C. J., and HAVER-FIELD, J., and DREW, E. HARRIS (Ret.), Associate Judge.
   DREW (Ret.), Associate Judge.

This interlocutory appeal is taken from a supplemental order to a final judgment dissolving a marriage existing between the petitioner Rose Marie Burch, and her husband, John M. Burch.

The assignments of error present only the questions of whether the trial court abused its discretion in the propriety and amount of the award to the wife of $40.00 per week alimony for a period of three years, and the question of whether the trial court erred in failing to retain jurisdiction over the parties and subject matter for such modifications of the award as might later be justified.

The parties had been married for a period of seventeen years and the wife, at the time of the dissolution, was forty years old; been employed as an airline stewardess in the early years of the marriage but had been unemployed since, except for a short interval in 1972. At the time of the dissolution, the parties had one child aged two years, the custody of whom was awarded to the wife.

Standing alone, we must agree that the award of $40.00 per week where the husband’s income is in excess of $26,000.00 yearly is, indeed, meagre. But such award was only a part of the total picture. In addition to that, the trial court permitted the wife to retain the sum of $18,000.00, which was in a joint account with her husband at the time of the separation, $9,000.00 of which was, admittedly, the property of the husband; directed the husband to pay her $40,000.00 in cash, which was one-half the value of the home of the parties owned by them jointly; awarded the wife an oriental rug, a 1968 Mustang automobile; ordered the husband to pay the wife $60.00 per week for support of the minor child and to keep in full force and effect hospitalization, dental, and major medical insurance for the benefit of the child, and to pay, from time to time, all reasonable and necessary medical, dental, hospital, and prescription pharmaceutical bills incurred on behalf of the child. Invested safely, the amount received in cash by the wife would produce an additional $300.00 to $400.00 monthly, giving the wife a total income [including the child support payments of $60.00 weekly] of about $750.00 per month for three years and over $600.00 per month thereafter.

While we might be of the view that the award of rehabilitative alimony was not proper here and that, if proper, the amount awarded was insufficient, we cannot say that the judgment is not supported by “competent evidence” which is the test laid down by the Supreme Court in Shaw v. Shaw, 334 So.2d 13 (Fla.1976) to overturn the trial court at the appellate level. There, the court said:

* * * * *
“* * * It is clear that the function of the trial court is to evaluate and weigh the testimony and evidence based upon its observation of the bearing, demeanor and credibility of the witnesses appearing in the cause. It is not the function of the appellate court to substitute its judgment for that of the trial court through reevaluation of the testimony and evidence from the record on appeal before it. That test, as pointed out in Westerman, supra, [Westerman v. Shell’s City Inc., 265 So.2d 43 (Fla.)], is whether the judgment of the trial court is supported by competent evidence. * * *”
* * He * 5}! *

While we have power under Shaw to reject “inherently incredible and improbable testimony and evidence”, that limitation on our power to review findings of fact of trial judges prevents, in many instances, the correction [as the first reviewing court] of results which might appear to us to be unjust or contrary to the great weight or probative value of the evidence. We are of the view that Shaw prevents a remand of this cause for an increase in the amount of award or to reconsider the question of the propriety of rehabilitative alimony under the facts here. Moreover, Shaw is controlling on the question of reservation of jurisdiction, for there it was said, under very similar facts:

* * * * * *
“* * * Although the appellate court concluded that it would be ‘prudent’ in its judgment to include such a reservation of jurisdiction, it was not error for the trial court to fail to do so. Goldfarb v. Robertson, 82 So.2d 504, 506 (Fla.1955).”
******

Affirmed.


text:
    Alvin ROSE, Appellant, v. Mary CASSETTA, Appellee.
    No. 77-1293.
    District Court of Appeal of Florida, Third District.
    Nov. 29, 1977.
    Allen Kornblum, Miami, for appellant.
    Turner, Shapiro & Levy and Robert M. Bader, Miami, for appellee.
    Before HENDRY, C. J., and PEARSON and KEHOE, JJ.
   PER CURIAM.

Affirmed upon authority of the rule stated in Greene v. Hoiriis, 103 So.2d 226 (Fla.3d DCA 1958).


text:
    Soshana DASHEW, Appellant, v. Hy MARKS, Appellee.
    No. 77-1644.
    District Court of Appeal of Florida, Third District.
    Nov. 29, 1977.
    Shevin, Shapo & Shevin and David A. Freedman, Miami, for appellant.
    Nelan Sweet, Miami Beach, for appellee.
    Before HENDRY, C. J., HAVERFIELD, J., and DREW, E. HARRIS (Ret.), Associate Judge.
   DREW (Ret.), Associate Judge.

On 26 May 1977 the trial court, pursuant to Rule 1.420(e), Fla.R.Civ.P., dismissed this cause for failure to take any action by the filing of pleadings, order of court, or otherwise for one year. Plaintiff moved to reinstate the cause, because “the plaintiff was under the impression that the attorney for the defendant was to prepare (an) appropriate order” for the court, reducing to writing the court’s oral rulings on certain motions filed in the cause, but “the order was never prepared and the cause remained dormant awaiting said order” for more than the time allowed by the rule. Further, the defendant alleged he “has a good and valid law suit and in the interests of justice is prepared to proceed to trial upon notice * * * The trial court, after hearing, granted the motion and reinstated the cause, from which order this appeal has been prosecuted. The appellee has not favored this court with a brief.

As to the first ground for reinstatement, the delay of the court in handing down a written order after an oral decision on the pleadings does not relieve the plaintiff of his duty to proceed and does not affect the defendant’s right of dismissal. It is plaintiff’s responsibility to expedite the litigation commenced by him and ensure the prompt dispatch of the court’s business.

The second ground alleged is wholly without merit to warrant reinstatement of an action dismissed under the rule. The court’s determination that the case should be reinstated because the interests of justice would be served by allowing the defendant his day in court finds no support in the reported cases, and is clearly not a basis for reinstatement contemplated by the rule.

Reversed, with directions to reinstate the order of dismissal.

      . Karkeet v. Snyder, 275 So.2d 302 (Fla. 3rd DCA 1973); Moore v. Gannon, 178 So.2d 618 (Fla. 3rd DCA 1965).

      . Elmer A. Yelvington & Sons, Inc. v. Sheridan, 65 So.2d 44 (Fla. 1953). Also see: Dobson v. Crews, 164 So.2d 252 (Fla. 1st DCA 1964).

      . Laug v. Murphy, 205 So.2d 695 (Fla. 4th DCA 1968); Schreyer v. Liniado, 100 So.2d 199 (Fla. 3rd DCA 1958).


text:
    Margaret ADAMS, as personal representative of the Estate of Harlem Alford Carlson, Deceased, Appellant, v. WARREN RENTAL & SERVICE CENTER, INC., Appellee.
    No. FF-51.
    District Court of Appeal of Florida, First District.
    Nov. 30, 1977.
    Rehearing Denied Dec. 22, 1977.

      R. P. Warfield, of Levin, Warfield, Mid-dlebrooks, Graff, Mabie, Rosenbloum & Ma-gie, Pensacola, for appellant.
    Robert P. Gaines, of Beggs & Lane, Pensacola, for appellee.
   PER CURIAM.

Warren Rental & Service Center, Inc., rented a scaffold to George Atwell, a painting contractor. Atwell purportedly subcontracted the painting of the San Carlos Hotel, a seven-story building, to Henry Carlson. Harlem Alford Carlson (appellant’s son and Henry’s brother) was employed by Henry, and while spray painting the eaves of the hotel fell to the pavement and died as a result of the injuries suffered. Margaret Adams, decedent’s mother and personal representative, appeals a summary final judgment entered by the trial court in favor of Warren.

Appellant’s theory as to Warren’s liability is that it negligently installed and placed into operation a scaffold that was unsafe and dangerous for persons to use, in that no permanent guard rails were installed on each end. When delivered by Warren and placed into service, the motors were located near each end of the scaffold and served as end rails. Warren delivered, along with the scaffold, two safety belts and two tie back belts. Henry Carlson testified that from time to time he moved the motors inward in order for the painter to get to the very end of the scaffolding. The uncontroverted evidence is that decedent, Harlem Carlson, situated himself outside the motor on the end of the scaffold without utilizing the safety equipment furnished by Warren and, while standing on the lengthwise pipe rails of the scaffold in such a precarious position, lost his balance and fell to the pavement.

The trial court, upon these facts, correctly entered a summary judgment for defendant Warren.

AFFIRMED.

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


text:
    Joseph P. AMICO, Petitioner, v. DIVISION OF RETIREMENT, DEPARTMENT OF ADMINISTRATION, et al., Respondents.
    No. FF-70.
    District Court of Appeal of Florida, First District.
    Nov. 30, 1977.

      Edward S. Jaffry of Horne, Rhodes, Jaf-fry, Stephens, Bryant, Horne & Chapman, Tallahassee, for petitioner.
    Steven S. Mathues, Tallahassee, for respondents.
   SMITH, Judge.

Amico petitions for review of a Retirement Commission order terminating his disability retirement benefits. Amico was retired from his employment as a Metropolitan Dade County police officer in August 1972 on a determination that he was then “totally and permanently disabled.” Section 121.091(4), Florida Statutes (1975). In November 1976, the Retirement Commission conducted the hearing prescribed by Section 121.23 for termination of benefits and sustained the decision of the Director of the Division of Retirement that petitioner is no longer disabled. We must determine who — the retiree or the Division — has the burden of proving the matter in issue in such a hearing before the Commission and whether substantial competent evidence supports the Commission’s decision terminating Amico’s benefits.

Section 121.091(4) authorizes payment of monthly disability retirement benefits to members of the Florida Retirement System who are “totally and permanently disabled,” i. e., “prevented, by reason of a medically determinable physical or mental impairment, from rendering useful and efficient service as an officer or employee.” Section 121.091(4)(d), Florida Statutes (1975). When that determination has been made and payment of disability retirement benefits begins, the burden of proof on the contested issue before the Commission is on the Division of Retirement. See Balino v. Dep’t of Health and Rehab. Serv., 348 So.2d 349 (Fla. 1st DCA 1977); Florida Dep’t of Health and Rehab. Serv. v. Career Serv. Comm’n, 289 So.2d 412 (Fla. 4th DCA 1974). The Division adduced sufficient evidence that Amico is no longer totally and permanently disabled. Its prima facie case was that, following retirement, Amico was employed as security manager for a department store, as a salesman, as a security service supervisor, and as a bartender; and that Amico’s attending physician was of the opinion Amico was not, in February 1976, totally and permanently disabled. At the time of the Commission hearing, which Am-ico did not personally attend, he was employed as a bartender. Amico’s counsel, who did participate in the hearing, offered no evidence to overcome the Division’s pri-ma facie case.

We find it unnecessary in this case to resolve the question of whether a retiree may continue to be totally and permanently disabled for purposes of Section 121.091(4) and yet be capable of earning, and in fact be earning, a partial livelihood in unique private employment for which he is not entirely disabled. The Commission could properly have concluded in this case that Amico, having been gainfully employed full time in various occupations during most of his retirement, was no longer totally and permanently disabled to perform some “useful and efficient service” for his former employer, the Metropolitan Dade County Police Department. It was not necessary that the Division adduce evidence Amico could have returned to line duty as a patrolman. See Tanzler et al. v. Wansley, 350 So.2d 113 (Fla. 1st DCA 1977).

This is not a proper case for our consideration of whether or in what circumstances disability retirement benefits may be refused under Section 121.091(4)(b) or terminated under Section 121.091(4)(d) on the ground that the employee, though disabled to perform his present or former duties and any other duties of a kind required by his particular employer, is nevertheless able to perform services of a kind required by another agency within the Florida Retirement System. It should be obvious that the proper time for the Division to seek such a judicial construction of Section 121.091(4) is when disability retirement is sought, not when the Division seeks to terminate benefits previously granted on the more liberal ground that the employee is disabled to perform his own particular duties. We will not look favorably on efforts to terminate disability retirement benefits on a ground that might have justified their denial when applied for. There is no evidence here that the Division has sought in that way to mend its hold on Amico.

The prayer of the petition for review is DENIED.

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


text:
    Stephen JACKSON, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 76-1416.
    District Court of Appeal of Florida, Second District.
    Nov. 30, 1977.
    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 affirm the judgment of the trial court. However we agree with appellant that the phrase “at hard labor” in his sentence is improper. Brooks v. State, 349 So.2d 794 (Fla.2d DCA 1977). Accordingly, we remand the case in order for the trial court to correct the sentence, and appellant need not be present at that time.

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


text:
    Ida A. Felicione COE, Appellant, v. Harry Lee COE, III, Appellee.
    No. 76-1850.
    District Court of Appeal of Florida, Second District.
    Nov. 30, 1977.
    William J. Castagna of MacKenzie, Cas-tagna, Bennison & Gardner, Clearwater, for appellant.
    Sondra Goldenfarb, Joseph G. Donahey, Jr., Clearwater, for appellee.
   PER CURIAM.

Wife appeals an order reducing alimony and contends that the evidence was insufficient to support modification of the final judgment entered on the parties’ dissolution agreement. We agree and reverse the order of modification.

Wife filed for dissolution of marriage in the spring of 1973. The parties entered into a dissolution agreement which provided: that wife retain custody of the only child of the marriage, for the visitation rights of the husband, for child support, for property division, and for alimony. That portion of the agreement concerning alimony directed:

“That the husband, Respondent, shall pay to the wife, Petitioner, and as for alimony the sum of $500.00 no later than the third day of each and every month of each year from January through April and $550.00 per month for the months of May through December each and every year.” (emphasis supplied)

Final judgment was entered on this agreement. Final judgment incorporated the agreement by reference and

“ORDERED that during the months from January through April of each year, the respondent, Harry Lee Coe III, shall pay to petitioner, Ida A. Felicione Coe, the sum of $500.00 per month, as alimony; that during the months from May through December of each year, alimony shall be increased to $550.00 per month; that alimony payments herein shall commence on November 3,1973, and continue monthly thereafter.”

Approximately two years later, husband filed a petition for modification of that portion of the final judgment. The part of the petition which concerns us here sought termination of alimony because the child had entered school and wife was now available to resume employment as a teacher. Wife had ten years of teaching experience but had not worked since before the birth of the child. Husband’s position at hearing on the petition was that termination of alimony was proper 1) because the understanding of the parties at the time of the agreement was that alimony would terminate once wife was available for work, and 2) because wife’s availability for work, coupled with husband’s financial burdens, constituted a substantial change of circumstances.

Husband has failed to prove that the agreement envisioned termination of alimony once the child entered school. There is no indication of such an intent from the face of the agreement. The parol evidence admitted concerning this understanding was the testimony of the parties. Husband testified that he didn’t “recall any conversation on this line one way or the other” at the time of agreement. On the contrary, wife’s testimony emphasized that at the time of agreement, she expected to receive alimony in the amount specified in the agreement and that she expected “to receive it continuously without any time limit, maybe until (she) remarried or died. . [N]o where did (she) ever stipulate in the proceeding that (she) wanted to go back to work.” There is no competent substantial evidence upon which the court below could find that the parties intended a reduction in alimony once the child entered school.

Husband has failed to prove any substantial change of circumstances entitling him to relief from the alimony provision of the final judgment entered in accordance with his agreement. Husband argues that he is currently suffering economic hardship. It is clear from the record that any hardship results from husband’s increased spending. Husband testified that if his salary has changed since entry of final judgment, the change was an increase in his salary. From the record it appears that the only involuntary diminution of husband’s financial well-being was a $1,500 loss occasioned when his automobile burned in 1974. In light of husband’s salary, $36,000, this loss presented no significant change of circumstances warranting modification.

Husband’s showing, that the child has entered school and consequently wife has more “free time” which she could devote to employment, also fails to prove any substantial change of circumstances warranting a reduction of alimony. Wife was not working at the time of the hearing on husband’s motion. Wife’s income or expenses have not been shown to have changed since entry of final judgment. Husband agreed to pay the unreduced amount of alimony through an instrument which not only fails to provide for reduction when the child starts school, which was a readily foreseeable eventuality, but also provides for payment of alimony “each and every year.” [See Waller v. Waller, 212 So.2d 352 (Fla.3d DCA 1968), where the trial court was held not to have erred in refusing modification of the judgment entered on a dissolution agreement providing for alimony, even though the wife had found employment and the teen-aged children required less home supervision.] Wife’s health, education, training, and availability for work once the child started school were known to husband at the time he entered into the dissolution agreement, and do not reflect any significant change of circumstances since judgment was entered on husband’s agreement. Howell v. Howell, 301 So.2d 781 (Fla.2d DCA 1974).

The changes of circumstances, alone and collectively, are insufficient to warrant reduction of alimony. Husband having failed to carry his heavy burden in seeking modification of a final judgment entered on a dissolution agreement, the order of the court below reducing alimony must be and is hereby reversed. Tsavaris v. Tsavaris, 307 So.2d 845 (Fla.2d DCA 1975).

HOBSON, Acting C. J., and SCHEB, J., and McNULTY, JOSEPH P. (Ret.), Associate Judge, concur.


author: OTT, Judge.

text:
    R. B. F. MANAGEMENT COMPANY, a Florida Corporation, Appellant, v. SUNSHINE TOWERS APARTMENT RESIDENCES ASSOCIATION, INC., a nonprofit Florida Corporation, Appellee.
    No. 77-15.
    District Court of Appeal of Florida, Second District.
    Nov. 30, 1977.
    Patrick W. Rinard of Baxter & Rinard, Clearwater, for appellant.
    Richard M. Robbins and John C. Locke, Clearwater, for appellee.
   OTT, Judge.

Defendant/appellant — a condominium management company — brings this interlocutory appeal from an order denying its motion to compel arbitration. Plaintiff/ap-pellee is a nonprofit condominium association whose members are the owners of condominium apartments .(unit owners) known as Sunshine Towers. Sunshine Towers is a phased development condominium project consisting of three separate apartment buildings. Appellee and appellant entered into separate management agreements for each building. In each agreement clause XXI read as follows: “Arbitration: Any disputes arising hereunder shall be settled by arbitration pursuant to the Florida Arbitration Code.” When the management contracts were first executed the condominium association was still under the control of the developer creating what is ofttimes referred to as “sweetheart contracts.” This litigation arose after individual purchasers of the units assumed control of the association.

The issue here is the enforceability of the compulsory arbitration clause of the three contracts for the purpose of determining the validity of the entire contract. The trial court held that arbitration could not be compelled for such purpose. We agree.

This litigation arises out of the dissatisfaction and wrangling that has become so typical between the individual unit owners of a condominium complex (normally through and in the name of the owners association) and the management company (normally the creation of the developer) over the performance or continuation of management and maintenance contracts and the charges or fees incident thereto.

In a commendable effort to address and resolve many of the common complaints the legislature has enacted comprehensive legislation that is now principally contained in Chapters 718 and 719 of the Florida Statutes (originally Chapter 711, Florida Statute).

In this particular case the unit owners (association) sought to set aside the management contracts in a five count complaint. Four of the counts sought termination of the contracts under some specific provision of the Florida Statutes as follows:

1. In Count I on cancellation of the contract by a vote of 75% of the unit owners under the circumstances specified in Section 711.66(5)(a), Florida Statutes (now § 718.-302(a)).

2. In Count II on the unreasonableness or unfairness of the management contract as permitted by Section 711.66(5)(e), Florida Statutes (now § 718.302(2)).

3. In Count IV on the inclusion of an escalation clause of the type prohibited by Section 711.231, Florida Statutes (now § 718.302(3)).

4. In Count V as constituting an illegal restraint against alienation within the meaning of Section 689.18, Florida Statutes.

The remaining Count III asserts such a total breach or nonperformance as to warrant rescission of the contract.

There is no claim for damages in any of the five counts of the complaint, only “rescission” — together with such appropriate restitution or relief as flows therefrom.

Various motions, hearings and amendments finally resulted in settling the pleadings and thereupon a motion was made by the appellant to compel arbitration pursuant to the arbitration clause of the contracts and the provisions of Section 682.02 and 682.03, Florida Statutes (1975).

The circuit court entered an order denying the motion to compel arbitration. The order stated in relevant part:

Since plaintiff seeks rescission of the entire agreement between the parties and not to revoke any particular provision of the management contracts, it would be inconsistent with organic law to enforce the arbitration provision contained in the management agreements, notwithstanding the fact that the defendant has properly invoked this Court’s jurisdiction to compel arbitration pursuant to Section 682.03, Florida Statutes and notwithstanding the provisions of Section 682.02, Florida Statutes, which provides, inter alia, that an agreement or provision in a contract requiring arbitration shall be valid, enforceable, and irrevocable without regard to the justiciable character of the controversy.

The decision we face is whether or not the trial court was correct in its order. We do not believe any Florida appellate court has squarely faced the proposition presented by this appeal. However, various appellate decisions do give some suggestion of what we conclude is the proper disposition of this difficult problem. While we do not attempt to deal with all of the appellate decisions bearing on the question, we hereafter deal with certain representative cases.

In Watson v. Chase Chemical Corp., 249 So.2d 53 (Fla. 1st DCA 1971) Watson entered into a contract with Chase whereby Watson was named as distributor of a Chase product. The arbitration clause contained in the contract provided as follows:

This agreement shall be governed by and construed under the laws of Florida. Any controversy whatsoever relating to this agreement shall be settled by arbitration . . . before any action or proceeding can be brought or maintained. 249 So.2d at 53-54.

Watson’s action was for breach of contract and damages. The court pointed out that the “complaint does not in any respect allege the necessary elements of a suit in rescission or cancellation,” 249 So.2d at 54, and that “in order to have relieved himself of the binding contractual provision of an agreement to arbitrate, it was incumbent upon plaintiff to sue for rescission of the entire contract.” 249 So.2d at 54 citing Lummus Co. v. Commonwealth Oil Refining Co., 280 F.2d 915 (1st Cir. 1960).

The Watson court stated that at the outset of the lawsuit Watson had two courses available: “1. To recognize the contract and sue for damages for breach thereof, or 2. To seek rescission of the contract upon established equitable principles and seek relief pursuant thereto.” 249 So.2d at 54. The court cited Weeke v. Reeve, 65 Fla. 374, 61 So. 749, 750 (1913) for the proposition that “[w]here a party elects to adopt one of two inconsistent remedies, he cannot afterwards pursue the other, even though he fails in the remedy elected and used.” To this same effect is Lummus, supra, where the court held:

Nor can . . . [plaintiffs demands] be claims for cumulative relief under which [plaintiff] both affirms the contract and receives damages, and at the same time rescinds the contract and gets restitution. Such double recovery is nowhere allowed. 280 F.2d at 927.

In Morton Z. Levine & Assoc., Chartered v. Van Deree, 334 So.2d 287 (Fla. 2d DCA 1976) this court followed Watson in enforcing an arbitration provision. The contract therein contained a standard arbitration clause, the essential part of which provided:

All claims, disputes and other matters in question arising out of, or relating to, this Agreement or the breach thereof shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then obtaining unless the parties mutually agree otherwise. This agreement to arbitrate shall be specifically enforceable under the prevailing arbitration law. 334 So.2d at 287-88.

Respondents filed a three count complaint against petitioners on a contract for architectural services. The first two counts sought damages for breach of the contract and for fraud and misrepresentation. The third count of the complaint was based on negligence and demanded damages. Petitioners filed a motion to dismiss all counts and a motion to compel arbitration. The lower court denied the motion to compel arbitration with reference to counts two and three. This court reversed on the authority of Watson and Merkle v. Rice Construction Co., 271 So.2d 220 (Fla. 2d DCA 1973).

In Merkle v. Rice Construction Co., supra, a contractor [Rice] entered into a written contract to construct a residence for Merkle according to drawings and specifications to be prepared by an architect named Hancock. The contract contained an arbitration clause. A disagreement arose. Merkle filed a Forcible Entry and Detention action against Rice. Rice filed a Demand for Arbitration with the American Arbitration Association. While that proceeding was still pending, Merkle filed this action seeking to stay the arbitration proceeding, contending that the construction agreement between the parties was null and void because the architect Hancock was not registered and therefore the drawings were not true architectural drawings. Rice filed a motion to dismiss Merkle’s complaint on the ground that it conflicted with Section 682.-02, Florida Statutes [the “arbitration is irrevocable” statute] in that Rice was attempting to litigate a matter already pending between the parties in the prior proceedings. As clearly indicated therein, this court construed the action as a collateral attempt to avoid the arbitration clause of the contract. Under the provisions of Section 682.03, Florida Statutes, such an application, if proper at all, should clearly have been asserted in the original action. This court affirmed the lower court’s dismissal of Merkle’s complaint.

We hold that the Watson rule as approved by this court in Levine is applicable to the instant situation. Appellee did not seek damages. On the basis of statutory rights that could not be asserted until the association came under the control of the unit owners, the appellee sought rescission of the entire contract and restoration of the parties to the status quo. If granted, this would necessarily leave the parties with no contract at all. Thereupon, the court would, in the exercise of its complete jurisdiction, continue with such further proceedings as might be required to return the parties to their original positions as nearly as possible. If rescission is denied the court will be faced with the problem of whether it may retain jurisdiction upon demand of either of the parties for arbitration. We do not attempt an answer to this question nor the question of which of the established statutory violations, if any, allow for traditional rescission (void in its inception) or simply afford total or partial cancellation together with such relief as may be incident thereto.

We recognize that persuasive and respectable authority exist for the proposition that the viability of the arbitration clause is separable and must, itself, be specifically attacked upon some appropriate ground. This would seem to leave the validity of the remainder of the contract provisions as ar-bitrable. See Lummus, supra, for a comprehensive treatment of both positions. We choose not to adopt this approach, at least in the situation here presented.

The order of the trial court denying the appellant’s demand for arbitration is therefore affirmed.

HOBSON, Acting C. J., and McNULTY, JOSEPH P. (Ret.), Associate Judge, concur.


text:
    Eva W. THOMAS, Appellant, v. Thomas M. THOMAS, Appellee.
    No. 77-196.
    District Court of Appeal of Florida, Second District.
    Nov. 30, 1977.

      Richard M. Robbins, Clearwater, for appellant.
    Bruce M. Harlan, Clearwater, for appel-lee.
   OTT, Judge.

This appeal is taken by appellant/wife from the trial court’s ORDER ON MOTION FOR CONTEMPT in post judgment of dissolution of marriage proceedings.

The parties were married in Germany in 1959 and separated in 1968 when the husband returned to the United States. The wife and three children remained in Germany — the wife’s native country.

In 1971 the parties entered into a separation agreement covering property matters (each to retain all property in their respective names except as otherwise provided in the agreement), alimony and child support. A final judgment of dissolution of marriage was entered on November 6, 1973 incorporating the agreement and ordering the parties’ compliance with its terms.

In April 1976 the appellee/husband secured a reduction of the alimony and child support payment to a fixed sum of $800 per month — $320 alimony and $480 child support for the two children living with the appellant in Germany. The third child was then with the appellee in the United States for apparently an indefinite period.

In September 1976 a hearing was held on appellant’s motion for an order of contempt against the appellee for failure to comply— although able — with the alimony and child support payments of the final judgment (the separation agreement provisions thereon) until its modification and thereafter the monthly payments called for in the modification order. At this hearing, the appel-lee’s income tax returns for the years in question — including 1975 — were placed in evidence along with the appellant’s testimony of the total payments actually made by appellee during these same years — again including 1975. While concluding that the appellee’s failure to pay was not willful and therefore not subject to contempt the court notified the parties that the arrearages since the original judgment of dissolution to date — including 1975 — were properly before the court for determination. The appellee conceded he had not paid the $85 monthly educational fund payments; that the appellant’s figures as to his actual payments were essentially correct; that the “gross income” was covered by his tax returns; and, that only two days before the hearing he had made the payments called for in the modification order.

During this hearing and at its conclusion the court indicated on the record its findings on all points subject to a showing that the definition of “gross income” under common law (the law governing interpretation of the separation agreement) was different than that normally given the term.

On December 1,1976 the court entered its ORDER ON MOTION FOR CONTEMPT by which it properly left open for determination by other proceedings of any “arrear-ages” under the agreement prior to the November 6, 1973 judgment of dissolution; assessed the arrearages from November 6, 1973 through the calendar year 1974; ruled it had no basis or evidence upon which to determine arrearage, if any, for 1975; and, found against the appellant on the educational fund payments, the dental charges for the children and the expenses of the appellant for travel to this country and her attorney’s fees.

On motion for rehearing the trial court entered an order on January 3,1977 clarifying the December 1, 1976 order to make it clear the wife was not prejudiced “from raising the issue of 1975 arrearages in a later proceeding.”

We think, and so hold, that the court erred in the following particulars:

1. Failure to determine and assess the 1975 arrearages. The record reveals they were properly at issue and full evidence was presented thereon in the form of the 1975 tax return and the evidence by appellant of what had actually been paid that calendar year — -again not contradicted by appellee.

2. Failure to determine and assess the amount due and payable by appellee into the educational fund savings account. The appellee conceded and specifically admitted his failure to make the payments since May 1974. The separation agreement allows no other construction than that the $85 per month was payable into the savings account in appellant’s name subject only to its expenditure for the purposes and pursuant to the documentation set forth in the agreement.

In all other respects the order of the trial court is affirmed.

Remanded for determination of the up-to-date amounts due on the 1975 arrearag-es, if any; the up-to-date amount payable on the educational fund; the manner of payment that the lower court finds to be consistent with the appellee’s ability to pay; and, the entry of a supplemental or corrected order consistent with this opinion.

GRIMES, Acting C. J., and McNULTY, JOSEPH P. (Ret.), Associate Judge, concur.


text:
    Robert L. RANDALL, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 77-851.
    District Court of Appeal of Florida, Second District.
    Nov. 30, 1977.
    Jack 0. Johnson, Public Defender, David S. Bergdoll, Asst. Public Defender, Bartow, and Charles M. Johnston, Research Asst., Gainesville, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

After reviewing the briefs and record on appeal, we find appellant has failed to demonstrate any reversible error; therefore, the judgment appealed is affirmed. The judgment and sentence of the court, while indicating the appellant was to receive credit for all time served in jail, does not specifically set forth the period of credit time to be allowed as required by Section 921.161(1) Florida Statutes. Smith v. State, 310 So.2d 770 (Fla.2d DCA 1975).

Remanded for correction of the sentence; otherwise affirmed. Appellant need not be present for this purpose.

HOBSON, Acting C. J., and RYDER and DANAHY, JJ., concur.


text:
    Eldridge Lamar PARKS, Appellant, v. STATE of Florida, Appellee.
    No. 77-881.
    District Court of Appeal of Florida, Second District.
    Nov. 30, 1977.
    W. DeHart Ayala, Jr., of Few & Ayala, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm the order of the trial court revoking appellant’s probation, but we find that there is an imperfection in appellant’s sentence. The present sentence does not specify the amount of credit for time served as Section 921.161(1), Florida Statutes (1975), requires. Brooks v. State, 349 So.2d 794 (Fla.2d DCA 1977). We remand the case in order for the trial court to correct the sentence, and appellant need not be present at that time.

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


text:
    ASHLAND OIL, INC., Macasphalt Corporation, Dunn Construction Company, Inc., Appellants, v. FLORIDA DEPARTMENT OF TRANSPORTATION and Robert L. Shevin, Attorney General for the State of Florida, Appellees.
    No. 77-893.
    District Court of Appeal of Florida, Second District.
    Nov. 30, 1977.

      John W. Frost, II and Bruce Stone of Holland & Knight, Bartow, for appellants.
    George L. Waas and H. Reynolds Sampson, Tallahassee, for appellee, Dept, of Transp.
    Robert L. Shevin, Atty. Gen., and Joseph W. Lawrence, II, Asst. Atty. Gen., Tallahassee, for intervenor-appellee, Atty. Gen.
   OTT, Judge.

We reverse the order of the trial court granting a change of venue from Polk County to Leon County.

Three separate suits were filed in Polk County by three separate corporate plaintiffs. The cases all arose out of action of the legislature providing for price adjustments of asphalt and state road work in the Bituminous Pricing Index Act of 1974 (Ch. 74-262, Laws of Florida). In 1976 the Florida legislature prescribed a new pricing formula and authorized the Florida Department of Transportation to take immediate steps to recoup the contract price adjustment paid under the 1974 act (Ch. 76-174, Laws of Florida).

Prior to the 1976 enactment, but pursuant to the 1974 pricing formula, the three corporate plaintiffs had been awarded construction contracts on certain state road projects located either totally or substantially in Polk County, Florida. The contracts were developed by, and were under the supervision of, the DOT office in Polk County. Payments made or due under the contracts and their reduction by the 1976 act, together with the obligation of the contractors to supply the DOT their records, became the subject of dispute between the contractors and the DOT. Ultimately the DOT issued letters to the contractors advising they would be stricken from the list of contractors eligible to bid on state work. The three contractors filed these actions which were consolidated in the trial court and in this court. The DOT then attacked the Polk County venue and sought to have venue transferred to the Second Judicial Circuit for Leon County.

The trial court granted the change of venue, reciting the following grounds: 1) because similar litigation was “concentrated in the Second Circuit;” 2) to prevent dissipation of judicial resources; and 3) for uniformity of interpretation and adjudication. This interlocutory appeal was taken from the trial court’s order of transfer.

Appellees mount a two-fronted attack on appellants’ choice of venue. Appellees argue that they have a “right” to be sued in Leon County, and, in any event, that the trial court was warranted in transferring the case to the more convenient forum in Leon County.

The first front of appellees’ attack must fail. Appellees argue that the Florida Department of Transportation as an administrative agency has a venue right which, unless waived, requires that the agency be sued only in Leon County, the seat of that administrative agency. Under this attack, venue cannot properly be in Polk County. In Section 337.19(3), Florida Statutes (1975), the Florida Legislature waived the venue privilege in contract suits against the Department of Transportation. State Department of Transportation v. Edward M. Chadbourne, Inc., 333 So.2d 77 (Fla. 1st DCA 1976). We think it clear that under the facts of this case and the provisions of Section 337.19(3), the DOT’s status as an administrative agency did not preclude venue in Polk County.

The second front of the attack on Polk County venue was that even if venue properly lies in Polk County, the trial court was warranted in changing venue to the more convenient forum in Leon County. The judicial doctrine of forum non conven-iens was replaced by Section 47.122,-Florida Statutes (1975). Section 47.122 permits the court to transfer a case to another forum based upon two considerations: 1) the convenience of the parties or witnesses, and 2) the interests of justice. The discretion of the trial court under Section 47.122 is not unbridled and must be predicated upon a proper showing of these grounds. Accordingly, the party seeking change of venue under this statute must show that substantial inconvenience or undue expense to the parties will result in the forum chosen by the plaintiff, or that the forum may not afford a fair and impartial decision.

Under the facts of the ease at bar, appellants chose proper venue in Polk County. Although DOT could have invoked Section 47.122 to change from this otherwise proper venue, it was incumbent upon DOT to make the proper showing of convenience or justice required by the statute. Neither the facts of this case nor any of the grounds recited by the court establish Leon County (the Second Judicial Circuit) as the forum of “convenience of the parties” or as being dictated “in the interest of justice.”

No decision has come to our attention which approves the convenience of the courts as the sole basis for change of venue that is otherwise properly selected by the plaintiff. We are not inclined, nor do we believe the legislature intended, to extend statutory forum of convenience to such considerations.

The appellants having shown that the order of the trial court transferring venue to Leon County is not supported by the law or the facts of this case, that order is reversed.

BOARDMAN, C. J., and McNULTY, JOSEPH P. (Ret.), Associate Judge, concur.


author: BOARDMAN, Chief Judge.

text:
    The ADAMS PACKING ASSOCIATION, INC., a Delaware Corporation, Sun-Glo Citrus Co-Op, Inc., a Florida Corporation, Newbern Groves, Inc., a Florida Corporation, and Lakeland Packing Company, a division of Pacific Company, a Florida Corporation, Appellants, v. FLORIDA DEPARTMENT OF CITRUS, Appellee.
    No. 77-1025.
    District Court of Appeal of Florida, Second District.
    Nov. 30, 1977.

      E. Snow Martin of Martin & Martin, Lakeland, for appellant, The Adams Packing Association, Inc.
    Monterey Campbell of Campbell, Dunlap, Coward & Blakeman, Bartow, for appellee.
   BOARDMAN, Chief Judge.

Appellants/plaintiffs, The Adams Packing Association, Inc., Sun-Glo Citrus Co-op, Inc., Newbern Groves, Inc., and Lakeland Packing Company, appeal the order of the trial court granting a motion to dismiss without leave to amend filed by appel-lee/defendant, Department of Citrus.

Appellants filed a complaint for declaratory judgment and injunctive relief with the circuit court of Polk County alleging, among other things, that a Department of Citrus regulation was unconstitutional as violative of the fourteenth amendment guarantees of equal protection and due process and that its enforcement would cause immediate, irreparable harm and damage to them. This regulation was adopted March 22,1977 to become effective August 1, 1977. It required certain categories of packing houses to identify specified kinds of citrus by the stamp “Florida” or “Indian River.” Appellants alleged that to comply with the regulation they would be required to purchase costly equipment prior to the effective date of the regulation or be subject to suspension of operation in deprivation of their property rights. Relying on State ex rel. Department of General Services v. Willis, 344 So.2d 580 (Fla. 1st DCA 1977) the circuit court dismissed the action for lack of jurisdiction finding that since there were no exceptional circumstances the district court of appeal had jurisdiction over the cause.

Willis does not control the case before us for two major reasons. First, we perceive a distinction between a proceeding essentially seeking review of agency action and one essentially seeking a determination of rights by declaratory judgment. The provisions of the Administrative Procedure Act relating to seeking judicial review of administrative action in the district courts of appeal, Section 120.68, Florida Statutes (1975), and those relating to seeking declaratory judgments construing agency regulations in the circuit courts, Section 120.73, Florida Statutes (1975), are not mutually exclusive. They must be read in pari mate-ria. If the proceeding is one to review administrative action, the district court of appeal is the proper forum. If, however, as here, the proceeding is not one to review administrative action, but rather is one to obtain a declaration of rights or status under “any regulation made under statutory authority,” Section 86.021, Florida Statutes (1975), jurisdiction lies in the circuit courts pursuant to Sections 86.011 — .111, Florida Statutes (1975). Furthermore, in Willis the agency action sought to be reviewed was not speculative or tentative, but certain and final since it was being enforced at the time suit was brought. Adoption of the regulation at issue in the case before us was not final agency action at the time this complaint was filed on April 11,1977 since until the time that it becomes effective it is only a proposed rule susceptible to withdrawal or modification by the agency. Riley-Field Co. v. Askew, 336 So.2d 383 (Fla. 1st DCA 1970); Section 120.54(1)-(12), Florida Statutes (1975). The district court of appeal will not assume its statutory jurisdiction to review an agency rule or regulation until it becomes effective. Riley-Field Co., supra; Section 120.68, Florida Statutes (1975). The mere promulgation of a rule or regulation is not the “final action” reviewable in the district court of appeal within the purview of Section 120.68. Here there is no agency action to review. Appellants seek only a declaration of their rights and status under an administrative regulation. An action for declaratory judgment is available to them and, in fact, was the only avenue for redress available to these appellants.

Second, it was not alleged in Willis that the action under review was unconstitutional as was alleged in this case with regard to the regulation at issue. Judge Smith, writing for the majority in Willis, did not suggest that the circuit courts do not have exclusive original jurisdiction over actions testing the constitutionality of agency rules and regulations nor that exceptional circumstances must be shown as a condition precedent to exercise of that jurisdiction. It is a firmly established principle of law that challenges to the constitutionality of acts of the legislature and actions of an administrative agency created by the legislature are for the courts alone to determine. See, e. g., Canney v. Board of Public Instruction of Alachua County, 278 So.2d 260 (Fla.1973); State ex rel. Watson v. Caldwell, 156 Fla. 618, 23 So.2d 855 (1945); Department of Revenue v. Young American Builders, 330 So.2d 864 (Fla. 1st DCA 1976). Because it is a judicial function to be performed solely by the courts, an administrative agency cannot be empowered or authorized to make this determination. Canney, supra. The Administrative Procedure Act does not then provide an adequate administrative remedy, and the procedure for review of agency action established by the Act is not applicable to this dispute.

We hold that jurisdiction over this action is in the circuit court and reverse the order of dismissal.

REVERSED and REMANDED for proceedings consistent with this opinion.

OTT, J., and McNULTY, JOSEPH P. (Ret.), Associate Judge, concur.