text:
    Robert Ennis SANDERS, Appellant, v. Lillian A. SANDERS, Appellee.
    No. II-409.
    District Court of Appeal of Florida, First District.
    June 6, 1978.
    Isham W. Adams, Daytona Beach, for appellant.
    Nicholas A. Caputo, Holly Hill, for appel-lee.
   MELVIN, Judge.

Appellant/husband seeks to overturn the final judgment of dissolution of marriage as to the provisions that: (1) Awarded to ap-pellee/wife, as a special equity, the full and complete ownership of the marital premises, together with all of the furniture, fixtures and furnishings therein; (2) awarded to the wife the sum of $50 per week, as and for permanent alimony; and (3) required the appellant to pay wife’s attorney a fee in the sum of $1,000.

Prior to the marriage of the parties, the wife owned a residential house. She sold the house after the marriage, and from the sale proceeds paid $3,000 toward the down payment on the marital home, title to which was received and held by them in their joint names as an estate by the entirety. That the wife made such $3,000 payment is not disputed.

The husband asserts that he paid from an inheritance received by him from his mother’s estate the sum of $4,700 toward the improvement and furnishings of the new marital home. This contention is in sharp dispute. The wife testified that she knew nothing as to what her husband had done with his inheritance but that no part of it went into the purchase, improvements or furnishings of the marital home. The trial court apparently accepted as true the testimony of the wife, rejecting that of the husband. That concludes the question of any special contribution by him.

If the wife had furnished all of the purchase money for the marital home, then the ruling of the trial court would have harmonized with Ball v. Ball, 335 So.2d 5 (Fla. 1976); and Merrill v. Merrill, 357 So.2d 792 (Fla. 1st DCA 1978), Opinion filed April 28, 1978, not yet reported.

Based upon the logic expressed in Ball and Merrill, we conclude that the record sustains the finding of the trial judge with reference to a special equity on the part of the wife but only to the extent of $3,000. The remainder was paid by the joint efforts of the parties.

The record reflects testimony that Lillian A. Sanders is in need of permanent alimony because of the condition of her health. There is ample evidence that Robert Ennis Sanders is able to pay the sum of $50 per week as permanent alimony. The record also reflects that Robert Ennis Sanders has the financial ability to pay the attorney fees and costs as awarded. Lillian A. Sanders is without such ability.

The trial court erred in directing the husband to convey his interest in the marital home to the wife. The judgment appealed from is reversed and remanded with directions that paragraph two of the final judgment directing the husband to convey all of his right, title and interest into the marital home and personal property located therein be stricken. Under applicable law the parties are vested with title to said property as tenants in common. The trial court is directed to enter its judgment finding a special equity in favor of the wife in the sum of $3,000.

Affirmed in part and reversed in part for further proceedings consistent with the views expressed herein.

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


source: Caselaw Access Project

author: PER CURIAM. POULTON, TIMOTHY P., Associate

license: Public Domain

text:
    Max RUDD, Sylvia Rudd, Irving Marcus, Jean Marcus, Franklin Harvick and Jean Harvick, Appellants, v. FAIRCREST 14 MAINTENANCE CORP., INC., a Florida Corporation, Bernard Asman and Estelle Asman, his wife, Harry Steinman and Lillian Steinman, his wife, Appellees.
    No. 76-2461.
    District Court of Appeal of Florida, Fourth District.
    June 7, 1978.
    Rehearing Denied July 19, 1978.

      Richard J. Pepperbloom, Margate, for appellants.
    James H. Walden of Walden & Walden, Dania, for appellees.
   PER CURIAM.

Affirmed.

ANSTEAD and LETTS, JJ., concur.

POULTON, TIMOTHY P., Associate Judge, dissents with opinion.

POULTON, TIMOTHY P., Associate

Judge, dissenting:

Respectfully, I dissent. The appellant has raised a number of points for reversal. I agree with the majority on all but one point, that concerning whether the placing of the pumps upon the appellants’ property constitutes an impermissible increase of the burden of the servitude upon the property.

It helps me to think of the case in this light. Many of the appellants must have spent a lifetime scraping for a retirement house in the sun. We are dealing with home-sweet-home, for some of the appellants their few square feet in the universe. Are the pumping stations on the appellants’ property more than they bargained for when they accepted a deed subject to the restriction in question? I would answer in the affirmative. The restriction in question permits the entity owning the reservation “the right to operate, maintain, repair and alter a fresh water sprinkler system, over, through, and upon all of the subdivision ..” I would hold that the placing of an above-ground pumping station on each of the appellants’ properties is not contemplated by that reservation. At the time the appellants took title subject to the quoted declaration of restriction, all of the sprinkler system had been completed and was underground. That fact is of some assistance in determining what breadth and scope may be given to the language of the restriction. Such restrictions are to be strictly construed in favor of the grantee and any substantial ambiguity or doubt must be resolved against the persons claiming the right to enforce the covenant. Washingtonian Apartment Hotel Co. v. Schneider, 75 So.2d 907 (Fla.1954).

Also, I feel compelled to address the question of waiver , or estoppel. Although the trial court made no conclusion that the appellants are estopped from complaining, there is an undercurrent of that in the final judgment (see paragraph four thereof) and in the appellee’s brief (at pages 28-29). Although there was a general notice to all owners of the proposed conversion from city water to canal water, there is no claim made by the appellee that there was any special notice to the ten affected owners that their properties had been selected for pumping station sites. As soon as the appellants learned of their dubious, distinction, they acted quickly to bar that action.

I realize that the result urged would result in a substantial monetary loss (because the plan was 85% complete when the appellants acted). That is indeed unfortunate, but I believe that the appellees are at fault in failing to give timely adequate notice and that appellants are without fault.


author: HAVERFIELD, Chief Judge.

text:
    The BOARD OF COMMISSIONERS OF the LOWER FLORIDA KEYS HOSPITAL DISTRICT, Petitioner, v. Doris LOWERY, etc., et al., Respondents.
    Nos. 77-2470, 77-2530.
    District Court of Appeal of Florida, Third District.
    June 13, 1978.
    Rehearing Denied Oct. 6, 1978.
    Cates & Bigler and Rebecca Glover, Key West, for petitioner.
    Firtel & Entin, North Miami Beach, Manuel W. James, Key West, for respondents.
    Before HAVERFIELD, C. J., and HUB-BART, J., and PARKER, J. GWYNN (Ret.) Associate Judge.
   HAVERFIELD, Chief Judge.

In these consolidated appeals respondent, Board of Commissioners of the Lower Florida Keys Hospital District, seeks review of the entry of an order of the Career Service Council of Monroe County and the issuance of a final peremptory writ of mandamus directing that the petitioner, Doris Lowery, be reinstated to her position of employment at the Florida Keys Memorial Hospital with full back pay retroactive to August 6, 1976, the date of her termination.

Petitioner-appellee Doris Lowery, who had been an employee of the Florida Keys Memorial Hospital (part of the Lower Florida Keys Hospital District) for more than one year, was terminated by the hospital administrator. Pursuant to the grievance procedures established by the hospital board, she appealed her discharge to the personnel grievance committee of the Florida Keys Memorial Hospital. After several hearings, the committee upheld her discharge. Ms. Lowery then appealed to the Florida Keys Memorial Hospital Board which after a hearing on February 2, 1977 sustained the action of the personnel grievance committee. Thereafter, on February 10 she filed a petition for reinstatement with the Career Service Council of Monroe County created by Chapter 69-1321, Laws of Florida (1969) as amended by Chapter 76-439, Laws of Florida (1976). After a hearing on March 22, the council ordered that Ms. Lowery be reinstated with full back pay retroactive to August 6, 1976. Thereupon the Board of Commissioners of the Lower' Florida Keys Hospital District (the Board hereinafter) filed the instant petition for writ of certiorari seeking to review this reinstatement order. On April 6 Ms. Lowery filed a petition for peremptory writ of mandamus in the Circuit Court of the 16th Judicial Circuit requesting that the Board be directed to reinstate her as an employee of the hospital. The Board responded and subsequently a final peremptory writ of mandamus was entered ordering the Board to immediately reinstate Ms. Lowery to her former position as an employee together with all of the accouterments and emoluments of that position, including all back pay to August 6, 1976, accrued sick and annual leave. The Board appealed therefrom and both appeals were consolidated.

Although the Board raises several points, we need only discuss that point regarding the timeliness of Ms. Lowery’s petition for reinstatement filed with the Career Service Council.

Section 6 of Chapter 76-439, Laws of Florida (1976) set out below clearly states that a discharged career service employee has 30 days from the date o'f discharge to file his (or her) petition with the Career Service Council:

“Section 6. Any career service employee who has been suspended, discharged, given a reduction in pay or a demotion, shall have the right to appeal said action to the career service council, by filing a petition with said council within thirty (30) days following such suspension, discharge, reduction in pay or demotion. Said petition shall be heard by said council .. . ”

Ms. Lowery was discharged on August 6, 1976 but did not file her petition for reinstatement until February 10, 1977, well in excess of the 30 days. Therefore, we find that the Career Service Council was without jurisdiction to consider her petition and consequently the order directing her reinstatement was null and void.

Upon being discharged, Ms. Lowery had the option of either filing her petition with the council within the 30 days allotted or utilizing the grievance procedures established by the hospital Board. To permit Ms. Lowery to first take advantage of the hospital’s grievance procedures and following an adverse determination of the Board to then petition the Career Service Council within 30 days therefrom would frustrate the very purpose of the subject act (1) to provide a speedy review and final disposition with respect to the employee’s discharge and (2) to avoid the absurd result of making the employer after almost 2 years, reinstate a former employee with full back pay and all other accrued benefits from the date of discharge.

Accordingly, the writ of certiorari is hereby granted, and the order of the Career Service Council and the final writ of mandamus are quashed.

Certiorari granted.


author: BARKDULL, Judge.

text:
    GOLD COAST PARKING, INC., and Insurance Company of North America, Appellants, v. David E. BROWNLOW and Marsha S. Brownlow, his wife, Appellees.
    No. 77-1608.
    District Court of Appeal of Florida, Third District.
    June 27, 1978.
    Rehearing Denied Oct. 6, 1978.

      Horton, Perse & Ginsberg and Mallory H. Horton, Dixon, Dixon, Lane & Mitchell, Miami, for appellants.
    Headley & Sudduth, Goodwin, Ryskamp, Welcher & Carrier and Kenneth L. Rys-kamp, Miami, for appellees.
    Before BARKDULL and HUBBART, JJ., and PARKER, J. GWYNN (Ret.), Associate Judge.
   BARKDULL, Judge.

Gold Coast Parking, Inc., and Insurance Company of North America, defendants in the trial court, appeal a final money judgment entered pursuant to a jury verdict.

Gold Coast is a corporation which owns and operates a parking lot in the City of Miami. Alfonso Fernandez is the manager of that lot and an employee of Gold Coast. Fernandez does not actually park cars or take the receipts; he is the supervisor in charge of those who do. One of the attendants employed by Fernandez was Sam Thomas, who was also an employee of Gold Coast. Thomas needed to be away on the day in question and was permitted by Fernandez to have Johnny Jenkins work in his place. Jenkins was not a Gold Coast employee and looked for payment from Thomas and not from Gold Coast. Jenkins was in complete charge of the lot and had permission from Thomas to drive Thomas’ car. Jenkins had a helper with him at the lot to assist him; this helper was Alonzo Williams. Like Jenkins, Williams was not paid by Gold Coast or Fernandez; Williams was paid only by Jenkins. Jenkins was hungry and volunteered to buy lunch if Williams would go to pick it up. Williams agreed and Jenkins told him to use the Thomas vehicle to run the errand. Williams was also requested to pick up some tickets at another parking lot (not owned by Gold Coast), which Jenkins would use as he needed them. Williams also did a personal errand for Jenkins at this other parking lot. He then went on to pick up the lunch. While returning with the lunch, Williams ran down the appellee, Brownlow, an off-duty policeman who ■ was directing traffic around an obstruction.

Brownlow and his wife filed suit against Gold Coast and its insurer for vicarious liability for the negligence of Williams. The case came to be tried before a jury. At trial, the parties stipulated that Williams was guilty of negligence. At the conclusion of the case, the appellants moved for a directed verdict on the grounds that no vicarious liability had been proved. The trial court denied the motion and permitted the case to go to the jury. The jury returned a verdict in favor of the Brownlows.

The appellants contend that the trial court erred in refusing to grant the defendants’ motion for directed verdict because, as a matter of law, there was no master/servant relationship between Gold Coast and Williams and, even assuming that there was, Williams was not acting within the course and scope of his duties when the accident occurred.

We affirm. The trial court did not err in failing to direct a verdict for the appellants on the question of Gold Coast’s liability for Williams’ negligent act since (a) Williams was a sub-agent of Gold Coast and was operating with the implied authority of Gold Coast at the time of the accident; and (b) Williams was operating within the scope of his employment at the time of the accident.1

The facts of this case clearly establish that the “practice and custom” of using helpers was commonplace and that those helpers were, in fact, sub-agents of Gold Coast. See: Jacobi v. Claude Nolan, Inc., 122 So.2d 783 (Fla. 1st DCA 1960), wherein the following is found:

“While we are inclined to agree with the defendant that the proofs did not establish the existence of an express contractual relationship of master and servant between these parties, this is not the only way that the relationship may be created. The relationship may arise by implication by the employment of a subservant by a servant to perform duties for the master, where the master has entrusted the servant with a task which cannot be performed by him within a reasonable time, where the business is of such a nature as to require the assistance of others, where there is an emergency, or where the authority to employ and use a subservant may be implied from the nature of the business or the course of trade. In these circumstances, the servant may employ a subservant to assist in the furtherance of the master’s business, even though authority to hire the subservant has not been expressly given by the master. And under these conditions the master may be held liable for the tortious acts of the subservant, if they have been committed in the course of the employment. * *
******
“That it was the general custom and practice of the Corporation for its salesmen to service complaints on automobiles sold by them, is indicated by the testimony of the salesman, Sanuta, who had been employed by the Corporation for a continuous period of six years prior to the accident. * * *
“That the general practice and custom of using helpers was followed by the Corporation’s salesmen in respect to contacts with their customers is indicated, we think by the testimony of Sanuta to the effect that in this manner and with the assistance of Pinkerton, the automobile sold to Mrs. Charett was delivered to her in the first instance. It is indicated by testimony of Mrs. Charett who testified that soon after she called the Corporation’s place of business and requested Sa-nuta to come and get her car, Pinkerton appeared on the scene in a red Vauxhall and drove her car away. It is indicated by the fact that at the hearing on the motion the president of the Corporation produced records showing the ownership of a red Vauxhall — which records could have had no bearing on the issues, unless they related to the red Vauxhall left with Mrs. Charett by Pinkerton when he came to get her car. This evidence, and the testimony given by Mrs. Charett, concerning Pinkerton’s activities, tends to prove, we think, that under the customs and usages of the business assistance by subservants was sanctioned by the Corporation; and that Pinkerton occupied such a position not only for the purpose of picking up cars in need of repairs but for a variety of other purposes as well.”
******

[emphasis supplied]

The question of “scope of employment” was a jury question and was properly resolved by the jury in this case. See: Stinson v. Prevatt, 84 Fla. 416, 94 So. 656 (1922), wherein the following is found:

******
“It was for the jury to determine from the evidence whether Stinson shot plaintiff’s decedent maliciously in pursuit of his own purpose or whether Stinson committed the wrongful act while acting in his capacity as agent of the defendant corporation to serve the interests of his employer, though the act was not authorized by his employer. In the first case the defendant company would not be liable, but in the latter case it would be.
“There is evidence to sustain a finding that the wrongful act of Stinson was committed while ‘acting in his capacity of agent of the corporation’ though the particular act was not authorized; and, as it does not clearly appear that the act was maliciously done for Stinson’s own purposes, the evidence is legally sufficient to sustain a general verdict of liability of the defendant company on the allegations of the declaration under the statute.”
******

See also: Columbia By the Sea, Inc. v. Petty, 157 So.2d 190 (Fla. 2d DCA 1963), wherein the following is found:

******
“Upon consideration of all the testimony, the conflicting statements as to facts and the varying inferences and conclusions possible, it would seem the question was one best submitted to a jury. The trial judge submitted to the jury the question of whether or not the act committed by Menendez was done within the general scope of his authority. The jury determined this fact in favor of the appellee. We find that many cases, probably the weight of the authorities, have followed this course. Illustrative is the case of Daniel v. Petersburg R. Co., 117 N.C. 592, 23 S.E. 327, 4 L.R.A.,N.S. 485 where the Court said:
‘ * * * Was the agent’s act in the course of his employment, and while about the master’s business? No decisive test can be given, but in all cases the question whether the act was committed by the servant in the service of his employer, or for his own purpose is one for the jury, in view of all the circumstances. Wood, Mast. & S. 594; Hussey v. Railroad Co., 98 N.C. 34, 3 S.E. 923. In this case that question was submitted to the jury in the charge of the court, and by their verdict the fact that the agent was acting within the line of his employer’s business is settled in the affirmative.’ ” ******

Therefore, the judgment appealed herein is hereby affirmed.

Affirmed.

      . Sam Thomas, the senior employee, testified in part as follows:
      * * * * * *
      “Q [By Mr. Headley] When you were there on the lot, did you have the authority to get somebody or have somebody get your lunch or park cars for you and things of that nature, and pay him yourself?
      “A Yes.
      “Q Mr. Fernandez knew about that, did he not?
      “A Yes.
      * * * # * *
      “Q If you had a lot of cars come in at one time, you might get one of your friends or somebody to help you out; is that right?
      “A Yes.
      “Q That would be something that would be up to you, would it not?
      “A Yes.
      “Q You did not go to Mr. Fernandez each time that happened and ask if you could hire someone for an hour or two, did you?
      “A No.
      “Q Who paid these people?
      “A Usually I would pay them.
      * * * * * *

        “Q Prior to this accident coming up, this case coming up, did anybody ever object, including Fernandez, to you all getting food anywhere you wanted to?
      “A No.
      “Q As a matter of fact, you got Kentucky Fried Chicken many times, did you not?
      “A Yes.

      “Q [By Mr. Headley] Alonzo Williams worked for other people on the lot from time to time?
      “A Yes.
      “Q Was he sent, to your knowledge, to get fried chicken for other people?
      “A. Yes.
      “Q Did he use your car to run errands for the lot?
      “A Yes.
      “Q That was all with Fernandez’ knowledge, was it not?
      “A Yes, it was.”
      Alonzo Williams, who worked at the parking lot on previous occasions, testified:
      “Q [By Mr. Headley] In your previous times working on the lot, what was the custom and practice for getting food when the lot was busy?
      “A Well usually one of the guys would stay and the other would go get it. If somebody was on the lot that they knew, they would either send them or tell them to watch the lot until they go across the street and pick it up, or whatever.
      “Q So the lot would not be left unmanned and possibly cause loss to Gold Coast Parking; is that right?
      “A Yes, that’s the problem.
      ‡ * sk sfc sfc jfc
      “Q Mr. Williams, when you had worked on the lot before, was it customary to go down to the Kentucky Fried Chicken to get chicken?
      “A Yes.
      “MR. DIXON: I object. That is, what is customary is part of the test of what the issue is here.
      “THE COURT: Overruled. Go ahead.
      “Q [By Mr. Headley] Had anyone ever complained about it before?
      “No.
      “Q Until this accident happened, is that right?
      “A That’s right.”
      Alfonso Fernandez, manager of the parking lot, testified in part as follows:

      “Q Did you understand that from time to time the men who were working the shift there would have to leave to go to the bathroom or perhaps to go across the street to get something to eat or something like this?
      “A Yes, sir.
      “Q Was that permissible with you as long as—
      “A As long as it don’t take too long, yes, of course.
      »|c sk sfc sj< Jfc
      “Q You were aware, were you not, that if a man did have to go while handling the business and have to go to the bathroom, that that lot was left in an empty state?
      “A Unattended, yes.
      “Q And that if that man could get somebody to take his place for the time being you certainly approved of that, did you not?
      “A Yes, sir.”
      * * * * * *


author: LETTS, Judge.

text:
    Cameron TAIT, Appellant, v. STATE of Florida, Appellee.
    No. 76-2412.
    District Court of Appeal of Florida, Fourth District.
    June 28, 1978.
    Rehearing Denied Oct. 11, 1978.

      Richard L. Jorandby, Public Defender, James L. Eisenberg, Asst. Public Defender, West Palm Beach, and Linda L. Hagerty, Legal Intern, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard P. Zaretsky and Glenn H. Mitchell, Asst. Attys. Gen., West Palm Beach, for appellee.
   LETTS, Judge.

Article I Section 16 of the Florida Constitution provides that every accused shall have the right to be heard in person, by counsel or both. Notwithstanding, the trial court denied the appellant’s pro se motion, before trial, to act as co-counsel at his trial for second degree murder. We reverse.

We are not convinced that we like the result in this ease, but we cannot ignore the plain unequivocal language of our constitutional provision which says:

“In all criminal prosecutions the accused shall . . . have the right . to be heard in person, by counsel OR BOTH.” Art. I § 16 Fla.Const. (emphasis supplied.)

We recognize and approve of the result in Thompson v. State, 194 So.2d 649 (Fla. 2nd DCA 1967) and Powell v. State, 206 So.2d 47 (Fla. 4th DCA 1968), where both courts interpreted the very same constitutional phrase “or both” to not grant an absolute right to both, but a right subject to the equal power of a trial court, in its discretion, to prescribe the manner in which a trial shall proceed.

We agree and find it intolerable that a defendant should be given the ability to disrupt a trial by competing with his own competent counsel, whenever he chooses. As the trial court observed in the case at bar, it sought to avoid turning the trial into a “roman circus.” However, while we agree with the results of the above cited cases, we are hard put to explain what appears to be two perfectly plain English words “or both,” however regrettable the result.

Accordingly, we are of the opinion that a defendant’s motion filed before trial, requesting permission to take part in his own defense should be granted, subject, however, to the continuing power of the trial judge to prescribe the manner in which the trial will later proceed, Thompson, supra. The spectacle of frequent interruption by the defendant, duplicating and/or countermanding his counsel or disrupting the proceedings should not be tolerated. Nevertheless, if a defendant at the outset wishes tó participate personally and in an orderly manner, we feel he must in some fashion be permitted to do so — subject to our stated limitations.

We recognize that this Opinion may appear to, in part, recede from our ruling in Powell, supra, but the Powell case was decided before the United States Supreme Court ruling in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) in which this latter court said:

The Sixth Amendment does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense. It is the accused, not counsel, who must be informed of the nature and cause of the accusation . . . . Although not stated in the amendment in so many words, the right to self-representation— to make one’s own defense personally — is thus necessarily implied by the structure of the Amendment.”

From the above quoted excerpt, we are convinced that a defendant’s personal right to participate is not satisfied merely because he has counsel, if he chooses to exercise that personal right, prior to the commencement of the trial. We are persuaded that his choice must be made prior to trial, by the additional language in Faretta, supra, indicating “. . . that when a defendant chooses to have a lawyer manage and present his case, law and tradition may allocate to the counsel the power to make binding decisions of trial strategy in many areas. This allocation can only be justified, however, by the defendant’s consent, AT THE OUTSET, to accept counsel as his representative.” (Citations omitted.) (at page 2534, emphasis supplied.)

We interpret the outset referred to, to be the outset of the trial itself. In the case at bar, the motion to act as co-counsel was filed prior to the commencement of trial and accordingly should have been granted, subject to the limitations herein set forth.

There remains the nagging question of how far the defendant must be permitted to participate, if he specifically elects to act as co-counsel prior to trial. This problem is immediately apparent, because there is no point in so appointing the accused if he cannot actively participate. However, at any time the defendant does participate, the trial judge should particularly guard against permitting him greater largesse than any counsel, or co-counsel, would enjoy. For example, a defendant may, in effect, testify under the guise of acting as co-counsel. He must not be permitted to do this and yet exercise his 5th Amendment rights thus circumventing cross-examination.

We are also of the opinion that it was error for the trial court to fail to hold a sanity hearing pursuant to Fla.R.Crim.P. 3.210 to determine the accused’s competence to stand trial. Said rule requires such a hearing if during trial there is reasonable ground to believe the defendant to be mentally incompetent. In the case at bar there was sufficient testimony and reports by the court ordered psychiatrists to raise such a reasonable doubt. Accordingly, under the above cited rule and under the authority of Fowler v. State, 255 So.2d 513 (Fla.1971) a hearing to determine the defendant’s mental condition should have been held.

REVERSED AND REMANDED FOR A NEW TRIAL.

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

      . The Sixth Amendment to the United States Constitution, unlike Florida’s, does not contain the words “or both.”


author: PER CURIAM.

text:
    Janice L. GRAY, Appellant, v. Ronald E. GRAY, Appellee.
    No. 78-149.
    District Court of Appeal of Florida, Second District.
    June 28, 1978.
    Rehearing Denied Aug. 30, 1978.

      Walt D. Logan, St. Petersburg, for appellant.
    Martin Errol Rice, of Harris, Green, Piper, Davenport, Nelson & Rice, St. Peters-burg, for appellee.
   PER CURIAM.

The only point meriting discussion in this post-decretal interlocutory appeal of an order denying appellee/husband’s motion for modification of final judgment of dissolution is the trial court’s denial of appellant/wife’s motion for attorney’s fees.

Despite the fact that the record contains certain relevant information as to the financial resources of appellant and appellee in the form of their financial affidavits, the record is devoid of any affirmative showing that the trial court considered these affidavits as the basis for its order denying the wife’s attorney’s fees. Indeed, the order expressly based denial of attorney’s fees on the sole ground that “there existed a legitimate question for Court determination on the part of the husband in bringing his Motion for Modification of Final Judgment.”

Whether or not a legitimate question for court determination existed is not the appropriate standard for determining entitlement to attorney’s fees in dissolution and modification cases. The proper criterion is the relative financial resources of the parties. See Section 61.16, Florida Statutes (1977).

Accordingly, the order appealed from is reversed only insofar as it denies appellant/wife’s motion for attorney’s fees and the cause is remanded for appropriate consideration and determination of this issue. In all other respects, the order appealed from is affirmed.

GRIMES, Acting C. J., and OTT and RYDER, JJ., concur.


author: OTT, Judge.

text:
    Stephen FUNDAK, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 77-1542.
    District Court of Appeal of Florida, Second District.
    June 30, 1978.
    Rehearing Denied Sept. 7, 1978.

      Jack 0. Johnson, Public Defender, and P. Douglas Brinkmeyer, Chief Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   OTT, Judge.

Under a two-count information appellant, Stephen Fundak, was charged and convicted of sale and possession of marijuana in violation of Section 893.13(l)(a), Florida Statutes (1977) and Section 893.13(l)(e), Florida Statutes (1977), respectively.

After hearing the evidence the jury returned a guilty verdict on each count. The trial judge, however, entered a single judgment and sentenced appellant to one year in prison without specifying whether on one or both of the convictions. Appellant contends that the sentence is an impermissible general sentence. We agree.

The imposition of a single judgment and sentence upon a defendant lawfully found guilty of two or more separate crimes is improper. See Dorfman v. State, 351 So.2d 954 (Fla.1977); Darden v. State, 306 So.2d 581 (Fla. 2d DCA 1975); Darden v. State, 330 So.2d 750 (Fla. 2d DCA 1976).

The charges lodged against appellant arose out of a single criminal episode in which he possessed and sold a single marijuana cigarette to a police officer.

The general rule is that a defendant may properly be charged and tried on multiple counts arising out of a true single episode or transaction, but only one sentence is properly imposed — for the highest offense for which the defendant is charged and convicted. This is another way of saying that where an information contains more than one count but each count represented a facet or phase of the same transaction only one sentence may be imposed and the sentence to be imposed is for the highest offense charged. Cone v. State, 285 So.2d 12 (Fla.1973); Yost v. State, 243 So.2d 469 (Fla. 3d DCA 1971).

In Jenkins v. Wainwright, 322 So.2d 477 (Fla.1975), the supreme court held that multiple sentences were proper where the petitioner had possession of two separate drug substances each of which constituted in and of itself a separate violation of law. This rule has now been further modified by Section 775.021, Florida Statutes (1977).

We hold that Section 775.021 applies to the situation sub judice, requiring a judgment and sentence to be imposed upon each criminal charge and conviction. Therefore judgments of guilt as to both the sale and possession charges are affirmed but the case is remanded for the entry of a separate judgment and sentence on each conviction.

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

      . Section 775.021, Fla.Stat. (1977) requires separate sentencing for violation of two or more criminal statutes in the course of one transaction, excluding lesser included offenses. It would apply to the facts in the instant case because possession of marijuana was not a lesser included offense of sale of marijuana based upon the allegations in the information. Additionally, each of the two counts can be considered as arising out of a different statute because § 893.13(l)(a), Fla.Stat. (1977) and § 893.13(l)(e), Fla.Stat. (1977) are not interdependent. Each can be read to stand alone as a separate criminal violation.


text:
    Andrew A. SCHWAB, Appellant, v. Frank QUITONI and Charles Blackburn, Appellees.
    No. 77-1154.
    District Court of Appeal of Florida, Third District.
    July 5, 1978.
    Rehearing Denied Oct. 6, 1978.
    Fine, Jacobson, Block, Goldberg & Semet and Theodore Klein, Joseph J. Gersten, Miami, for appellant.
    Von Arx & Lipscomb and J. Randolph Lipscomb, Miami, for appellees.
    Before HENDRY, J., and CHARLES CARROLL (Ret.), and PARKER, J. GWYNN (Ret.), Associate Judges.
   PER CURIAM.

This is an appeal by the defendant, Andrew A. Schwab, from a final money judgment in favor of plaintiffs Frank Quitoni and Charles Blackburn, in an action on a promissory note.

The record reflects that Schwab-Vittori-no Development Corporation was a developer and builder of commercial and residential property in Dade County. Appellant Schwab, a dentist by profession, was secretary to the corporation. Appellees, Frank Quitoni and Charles Blackburn, loaned $37,-000 to the corporation in a land development venture and received a promissory note signed as follows:

“SCHWAB-VITTORINO DEVELOPMENT CORP. By s/ A. C. Vittormo as President (Seal) s/ Andrew A. Schwab (Seal).”

The note was secured by a mortgage given by the corporation on lands involved wherein Vittorino signed as president and Schwab as secretary of the corporation. In addition to the interest on the note, the mortgage contained provisions permitting appellees, the mortgagees, to participate in profits in the venture in the event that certain housing improvements were completed on the property and the housing units sold. Had mortgagees participated as expected, their return on the $37,000 loan would have been as high as thirty to thirty-five percent; but unfortunately the project failed and no houses were completed and sold before the mortgagees foreclosed the mortgage.

Final judgment was entered by the trial court which found that there was no usury; that Schwab had personally guaranteed payment to the appellees, having “. signed the promissory note with the intention of so doing . . . ;” and held that the appellees recover from both the corporation and Andrew A. Schwab, individually, the total sum of $43,871.78. Appellant Schwab seeks reversal of the final judgment, contending (1) that he is not personally liable on the note, having intended to sign said instrument in a representative capacity as an officer of the corporation, and (2) that the note is usurious.

On the question of usury, appellees were to participate in the profits of the development venture in the event houses were built and sold on the land. The mortgage provided for this, but the note did not so provide. The project failed, so the opportunity to participate in the provision provided for in the mortgage never arose. Appellant has failed to prove his defense of usury. See Dezell v. King, 91 So.2d 624 (Fla. 1956); Atwood v. Fisher, 330 So.2d 62 (Fla.3d DCA 1976); Diversified Enterprises, Inc., v. West, 141 So.2d 27 (Fla.2d DCA 1962).

Regarding the execution of the note by the appellant, there is conflicting testimony as to whether or not he intended to personally guarantee it, or to sign it as an officer of the corporation. The documents were prepared by the attorney of Vittorino and appellant; the attorney was not present at the time of the execution of the documents and he did not advise appellant as to how to sign the note. The judgment appealed from is supported by competent substantial evidence and the judgment of this court should not be substituted for that of the trial judge who had the opportunity to personally observe all witnesses in their demeanor while testifying. A presumption of correctness attaches to the judgment appealed, and appellant has failed to overcome this presumption. See Herzog v. Herzog, 346 So.2d 56 (Fla.1977); Shaw v. Shaw, 334 So.2d 13 (Fla.1976); Tyrrell v. Tyrrell, 281 So.2d 221 (Fla. 1st DCA 1973).

Accordingly, the final judgment herein appealed is affirmed.


text:
    Mary Annette THOMAS, Appellant, v. TRAVELERS INDEMNITY COMPANY, Appellee.
    No. 77-2008.
    District Court of Appeal of Florida, Second District.
    July 7, 1978.
    C. Samuel Newman of McQuillan & Beltz, Bradenton, for appellant.
    William E. Partridge of Dart, Dickinson, O’Riorden, Gibbons & Quale, Sarasota, for appellee.
   PER CURIAM.

Reversed on authority of Comeau v. Safeco Insurance Company of America, 356 So.2d 790 (Fla.1978).

BOARDMAN, A. C. J., and OTT and DANAHY, JJ., concur.


text:
    FLORIDA CITY DEVELOPMENT CORPORATION, a Florida Corporation, Appellant, v. BENRUS CONSTRUCTION, INC., a Florida Corporation, Appellee.
    No. 77-159.
    District Court of Appeal of Florida, Third District.
    July 11, 1978.
    Rehearing Denied Sept. 15, 1978.

      Wolf & Schoninger and Samuel Frank Schoninger, Miami, for appellant.
    Charles J. Crowder, South Miami, for ap-pellee.
    Before HENDRY, J., and HELIO GOMEZ, Associate Judge, and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

This is an appeal from that portion of a final judgment which denied plaintiff an attorney’s fee in an action brought by plaintiff for damages and injunctive relief wherein the defendant answered and asserted a counterclaim for foreclosure of a mechanic’s lien under the provision of Chapter 713, Florida Statutes (1977).

Upon trial without a jury, the trial court entered the following final judgment:

“THIS ACTION was tried before the Court and on the evidence presented,
“IT IS ADJUDGED:
“1) That Defendant, BENRUS CONSTRUCTION, INC. prevail on the Plaintiff, FLORIDA CITY DEVELOPMENT CORPORATION’S Complaint and accordingly Plaintiff take nothing by reason of its Complaint, and
“2) That Plaintiff, FLORIDA CITY DEVELOPMENT CORPORATION prevail on the Defendants, BENRUS CONSTRUCTION, INC.’s Mechanics Lien Counterclaim and accordingly Defendant take nothing by reason of its said Counterclaim, and
“3) That the Plaintiff is denied its attorney’s fees as prevailing party and Defendant is denied attorney’s fees and each party stand their respective costs of this litigation.
“4) That the Lis Pendens filed by each of the parties to this action in this cause and in Case No. 72-25588 in this Court are hereby cancelled and the Clerk of this Court shall duly note the same among the Public Records of Dade County, Florida.”

The sole point on appeal is whether the trial court erred in denying plaintiff an attorney’s fee as provided for in Section 713.29, Florida Statutes (1977). The statute is as follows:

“Attorney’s fees. — In any action brought to enforce a lien under part I of this chapter, the prevailing party shall be entitled to recover a reasonable fee for the services of his attorney, to be determined by the court, which shall be taxed as part of his costs.”

The plaintiff/appellant was the prevailing party in the mechanic’s lien foreclosure counterclaim, therefore, it was error for the trial court to deny plaintiff an award of attorney’s fees for defending the counterclaim. Dominguez v. Benach, 277 So.2d 567 (Fla. 3d DCA 1973); H. D. McPherson, Inc. v. Metro Electric of Orlando, Inc., 253 So.2d 878 (Fla. 4th DCA 1971).

Accordingly, we reverse that portion of the final judgment under review that denied plaintiff’s request for attorney’s fees; and we remand the cause with directions to enter a proper award to plaintiff for attorney’s fees for the defense of the counterclaim for foreclosure of the mechanic’s lien.

Reversed and remanded.


author: PER CURIAM. DOWNEY, Chief Judge,

text:
    John C. NEFF, Trustee, International Home Systems, Inc., and First Equities Corporation, Appellants, v. Milton ADLER and Martin L. Carlin, Atlantic/Pacific Development Corp., a California Corporation, Southworth & Deeble Development Corporation, an Ohio Corporation, Appellees.
    No. 77-578.
    District Court of Appeal of Florida, Fourth District.
    July 12, 1978.
    Rehearing Denied Sept. 6, 1978.
    Edward J. Marko and Edward G. Stepha-ny, of Marko, Stephany & Lyons, Fort Lauderdale, for appellants.
    William D. Ricker, Jr., of Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellees.
   PER CURIAM.

Affirmed.

CROSS and LETTS, JJ., concur.

DOWNEY, C. J., dissents, with opinion.

DOWNEY, Chief Judge,

dissenting:

Appellees, Adler and Carlin, sued appellants and others (not parties to this appeal) to recover a real estate brokerage commission arising out of a contract to sell realty in Broward County.

On July 6, 1978, appellants entered into a written contract to sell a parcel of property in Broward County to Edward Leeds for $1,575,000, the closing thereof to take place not later than December 1, 1973. Appel-lees, Adler and Carlin, had brought the purchaser and seller together and they were parties to the July 6, 1973, contract which, among other things, provided that the brokers were to be paid a commission of $157,-000. With regard to the broker’s commission, the contract also provided:

“No other party is entitled to a commission on this Contract, and these parties shall not be entitled to any commission or other funds unless and until said sale closes and final payment is disbursed to Seller.”

The contract was not closed on December 1, 1973, and the parties negotiated a new contract which essentially required appellants to sell to Leeds on January 31, 1974, unless by December 10,1973, appellants had procured another buyer. Appellants agreed that, if they found another buyer by December 10, 1973, both appellants and Leeds would fully release the other from the terms of the July 6, 1973, contract, and appellants would pay to Leeds $232,000, which sum represented payments made by Leeds on the July 6th contract, plus the value of plans, surveys and permits for development of the property.

Appellants were successful in acquiring a new purchaser by December 10, 1973, and thus Leeds never closed the purchase of the property under the December 1, 1973, contract. Nonetheless, appellees demanded their commission arising out of the July 6, 1973, contract, but appellants refused to pay any commission and this litigation ensued. After a trial by the court without a jury, final judgment was entered for appel-lees for the entire amount of their commission.

It appears to me that this case should turn upon the factual determination of whether appellees produced a purchaser who was ready, willing and able to close on December 1, 1973. The contract provided that appellees would be paid their commission only upon a closing taking place. This, of course, does not mean that the appellants could prevent a closing by their conduct and thus defeat the appellees’ claim for a commission; however, absent some conduct on the appellants’ part preventing a closing, the appellees would not be entitled to their commission until their purchaser closed pursuant to the terms of the contract.

Appellants’ first point on appeal is directed to the trial court’s error in admitting hearsay testimony relative to a commitment which Leeds was supposed to have obtained to finance the purchase. This testimony by Appellee-Adler was clearly inadmissible because it was hearsay. Even if admissible, based on Adler’s entire testimony on that point, it had no probative value for two reasons. First, Adler ends up testifying that the so-called commitment was really a letter of intent and secondly, Leeds did not accept it because Leeds thought the interest rate too high.

The evidence further shows that on December 1, 1973, there was a meeting in the office of appellants’ counsel for the purpose of appellants’ formally offering to close. Leeds’ lawyer was present and, though appellants demanded that Leeds close, he did not do so. His lawyer had no funds with which to close. At that point it seems to me the purchaser was in default and the appellants were free to commence negotiations with a new purchaser. The record reflects that the appellants were anxious to sell the property and so, after Leeds refused to close on December 1, 1973, the parties spent the rest of the day negotiating a new contract with Leeds which was signed that same day. Under the new contract Leeds was still to have the option to purchase unless appellants found a new purchaser by December 10, 1973, which they did. Had the property been sold to Leeds pursuant to the December 1, 1973, contract then appel-lees might well have been in a position to claim they were still entitled to a commission. My review of the record reveals that appellees did not prove that their purchaser, Leeds, was ready, willing and able to close on December 1, 1973, or that appellants, by their conduct, precluded the closing and thus appellees were not entitled to recover a commission.

Appellees contend that Leeds’ ability or willingness to close was irrelevant because in Paragraph 4 of the December 1, 1973, contract both appellants and Leeds agreed to waive any prior defaults by Leeds. But the record shows appellants were willing to release Leeds for any default under the July 6, 1973, contract and, in addition, were willing to pay him $232,000 in order to keep their title clear and try and sell it to someone else by December 10, 1973. Of course, if they were able to find a new buyer, they wanted mutual releases so as not to have any possible litigation over the old contract which could foul the new contract. The releases agreed upon in the contract of December 1, 1973, did not have the effect of interfering with any right appellees had under the July 6, 1973, contract, but rather, if anything, gave them a possible chance of resurrecting their commission rights.

Without belaboring the point further, it seems to me that appellees did not prove they were entitled to the commission awarded them by the final judgment, so I would reverse.


text:
    Kattie Sue LAWLESS, Appellant, v. William LAWLESS, Appellee.
    No. 78-19.
    District Court of Appeal of Florida, Second District.
    July 14, 1978.
    Rehearing Denied Sept. 1, 1978.
    F. Dennis Alvarez of Bonanno, Nutter & Alvarez, Tampa, for appellant.
    James Campbell, New Port Richey, for appellee.
   OTT, Judge.

Mrs. Kattie Sue Lawless appeals from a final judgment of dissolution of marriage, contending that the trial court erred in not awarding her a special equity in property which she and her husband hold in their joint names. We think her arguments have merit.

Mr. and Mrs. Lawless were an elderly couple who were married less than four years prior to the final hearing in this matter. At the time of the marriage Mrs. Lawless owned a condominium worth $15,-510; $2,500 worth of furniture; Selected American Stock worth $12,656; Pan American stock worth $523; a 1972 automobile worth $2,400; approximately $5,000 in a savings account; and, two certificates of deposit worth $1,000 and $5,000. Mr. Lawless’ assets included a condominium worth $21,000 (with a $10,500 outstanding mortgage); an automobile worth $1,400; $838 worth of A & P stock; and, a savings account which contained $6,431.32.

During the marriage each party placed the funds from their personal savings accounts into a joint savings account. Mrs. Lawless sold her Pan American stock for $523 and placed this money in the account. Mr. Lawless sold his condominium and placed the $10,500 proceeds in another joint account.

In the meantime, each party placed their remaining stock and Mrs. Lawless’ condominium in their joint names. Also both parties sold their automobiles and purchased a new car with the proceeds therefrom and money from their savings account. Later they traded in this car for a 1977 Oldsmobile.

At the final hearing both Mr. and Mrs. Lawless testified that they did not intend for the creation of the joint tenancies to represent gifts to each other. Rather, they testified, they set up the joint tenancies for convenience sake. After hearing this testimony the court divided the jointly held property into two equal shares, giving each party a share. We believe that in so doing, the trial court was in error.

In Ball v. Ball, 335 So.2d 5 (Fla. 1976), the supreme court held that where one spouse supplies jointly held real property from a source unconnected with the marital relationship, a trial court should award the property to that spouse absent positive evidence that the spouse intended a gift. This reversed the prior case law that under such circumstances a gift must be presumed. The court expressly limited its holding to real property since that was all that was involved. We cannot articulate any rational reason for distinguishing personal property from similar treatment — as a general rule. Hagin v. Hagin, 353 So.2d 949 (Fla. 2d DCA 1978) and Merrill v. Merrill, 357 So.2d 792 (Fla. 1st DCA 1978) have already so suggested or concluded.

We think that the trial court should have applied Ball to the present case. Neither Mr. nor Mrs. Lawless presented any evidence of a gift and so each should be entitled to the property he or she brought into the marriage. On remand, then, the trial court should make a new disposition of the jointly held property which is in accord with the reasoning of this opinion. We note, however, that it may be difficult for the court to trace the ownership rights in some of the personal property such as the Oldsmobile and the savings account. Therefore, the court should award a special equity only where ownership rights are reasonably ascertainable and the subsequent action of the parties remains consistent with the “no gift” presumption we must now adhere to. For example, if real or personal property is converted into cash and is then deposited in a joint checking account subject to use or withdrawal by either party while both are living, we think this could be some credible evidence that a gift was intended. Similarly, the facts surrounding the sale/purchase/trade and use of the automobiles are evidence for consideration by the trier of fact on the question.

That part of the final judgment of dissolution disposing of the real and personal property of the parties is reversed. In all other respects the final judgment is affirmed.

Reversed and remanded for further proceedings consistent herewith.

BOARDMAN, Acting C. J., and DAN-AHY, J., concur.

      . The tortuous evolution of the law in this area was analyzed by this court in Powell v. Powell, 349 So.2d 841 (Fla. 2d DCA 1977).

      . Two recent cases applying the Ball rule involving cash derived by one party from a source unconnected with the marital relationship are Bickerstaff v. Bickerstaff, 358 So.2d 590 (Fla. 1st DCA 1978); Malkemes v. Malkemes, 357 So.2d 223 (Fla. 2d DCA 1978).


text:
    STATE of Florida, Petitioner, v. Daniel LaVALLEY, Respondent.
    No. 78-769.
    District Court of Appeal of Florida, Second District.
    July 14, 1978.
    Rehearing Denied Aug. 30, 1978.

      Scott L. Knox, Asst. County Atty., Clear-water, for petitioner.
    Jeffrey H. Willis, St. Petersburg, for respondent.
   OTT, Judge.

The state petitions for writ of certiorari to review the circuit court’s order reversing respondent LaValley’s county court conviction of a zoning violation for refusal to afford him a jury trial. We hold that there is no right to jury trial for offenses for which the maximum sentence is incarceration for 60 days or less, and we, therefore, grant the petition for writ of certiorari.

Upon being cited for violation of a Pinel-las County zoning regulation, respondent filed a plea of not guilty and request for trial. On the date set for trial, respondent appeared and indicated his desire for a jury trial. The trial court replied that respondent was not entitled to a jury trial and a bench trial followed. Respondent was found guilty of the violation charged and was fined $30.00.

Respondent appealed his conviction to the circuit court on the ground that he had been denied his constitutional right to a jury trial. The circuit court reversed, concluding that an accused has a right to a jury trial where there exists the possibility of incarceration for any period. The state now petitions for writ of certiorari to review the circuit court’s order.

A violation of a county ordinance is a misdemeanor the maximum sentence of imprisonment for which is 60 days. Section 125.69, Florida Statutes (1977).

The Supreme Court of the United States held in Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), that the Sixth Amendment, as applied to the states through the Fourteenth,' requires that defendants accused of serious crimes be afforded the right to trial by jury, but reaffirmed the long established view that so-called “petty offenses” may be tried without a jury. In Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970), the Supreme Court established that offenses carrying a possible penalty of up to six months imprisonment were to be classified as “petty,” but that an offense carrying a maximum of more than six months is sufficiently “serious” to require an opportunity for jury trial. See also Cheff v. Schnackenberg, 384 U.S. 373, 86 S.Ct. 1523, 16 L.Ed.2d 629 (1966).

In Boyd v. County of Dade, 123 So.2d 323 (Fla.1960), the Supreme Court of Florida followed the same “petty offense” logic as that of the United States Supreme Court and held that the right to jury trial guaranteed by the Florida Constitution does not obtain for violations of municipal ordinances carrying a maximum jail sentence of 60 days. Reaffirmed in State v. Webb, 335 So.2d 826 (Fla.1976). See also Aaron v. State, 284 So.2d 673 (Fla.1973).

The law is clear. Respondent was not entitled to a jury trial and the county court did not err in refusing him one. Accordingly, we grant the petition, quash the circuit court’s order of reversal and remand with instructions to reinstate the judgment and sentence entered by the county court.

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

      . The Pinellas County zoning regulations limit incarceration for a violation thereof to a maximum of 30 days.


text:
    Mr. and Mrs. William DAY et al., Appellants, v. MIRAMAR HOLDING CORP., Miramar Construction Co., and Robert Susi, Appellees. CONTINENTAL CONSULTANTS LTD., Appellant, v. Mr. and Mrs. William DAY et al., Appellees.
    Nos. 77-1036, 77-1038.
    District Court of Appeal of Florida, Third District.
    July 18, 1978.
    Rehearing Denied Sept. 14, 1978.
    Levine, Reckson & Reed and Allen P. Reed, Miami, for Continental.
    Becker, Poliakoff & Sachs and Alan S. Becker, Miami Beach, for Day.
    Starr W. Horton, Miami, for El Conquistador.
    Before HENDRY, J., and GOMEZ, HE-LIO, Associate Judge and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

This consolidated appeal is taken from a “final judgment in supplementary proceedings” and from an “order granting a motion for rehearing and to open judgment entered February 15, 1977, and to enter judgment for impleaded third parties.”

Appellant, Continental Consultants Ltd., defendant-in-execution below, appeals from the above final judgment entered in favor of appellees, Mr. and Mrs. William Day and El Conquistador Condominium Association, Inc., plaintiffs-in-execution below. These same plaintiffs-in-execution appeal from the above order entered in favor of Mira-mar Holding Corp., Miramar Construction Co., and Robert Susi, all impleaded third parties below. Both the final judgment and order emanate from an action wherein the trial judge set aside a conveyance of some thirty-seven condominium units from El Conquistador Condominium, Inc., to Continental Consultants Ltd. The trial judge was of the view that said conveyance represented a fraud on appellees, as million dollar judgment creditors of El Conquistador Condominium, Inc.

The complex facts of this case are adequately set forth in the final judgment and order, and are as follows:

“FINAL JUDGMENT IN SUPPLEMENTARY PROCEEDINGS
“THIS CAUSE was initiated by the Plaintiffs-in-Execution’s Affidavit in Support of Application for Impleading Third Parties, Examination of Defendant-in-Execution and Third Parties and Determination of Rights of All Parties and a Rule to Show Cause issued by the Court. On February 26, 1976, the Court entered its Order on Rule to Show Cause to Implead Third Parties, and pursuant to notice, a full hearing for examination of all parties was held on September 13, 1976, continued on September 17, 1976, and continued again on February 3, 1977. At the conclusion of testimony the court has also considered argument of respective counsel and memoranda and pleadings on file. The Court, being fully advised in the premises, finds as follows:
“1. All parties are properly before the Court for a determination of their rights.
“2. Neither the Defendant-in-Execution, El Conquistador Condominium, Inc., nor any of the third parties has proven that transfers within one year before service of the Plaintiffs-in-Execution’s counterclaim on Defendant-in-Execution of property belonging to the said Defendant-in-Execution was not made to delay, hinder or defraud creditors (including Plaintiffs-in-Execution). The property transferred includes at least $29,000.00 paid to Miramar Construction Co. and at least $424,000.00 to Miramar Holding Corp. as well as the transfer of 37 condominium apartments and 12 first mortgages (described in Schedule A attached hereto) to Continental Consultants, Ltd., a Grand Cayman corporation.
“3. At the time of these transfers El Conquistador Condominium was either insolvent or its insolvency was imminent. The transfers of funds were made to related corporations, Roberto Susi being the president of all three, a director of all three and sole shareholder of Miramar Holding Corp. which in turn owned all the shares of the other two corporations. The independence of Continental Consultants Ltd. from Roberto Susi has not been adequately demonstrated, and there is some credible evidence indicating to the contrary.
“4. The apartments and mortgages were transferred to Continental Consultants Ltd. by El Conquistador Condominium, Inc. (together with an outstanding note held by Miramar Holding Corp. for over $1,000,000.00) for an alleged consideration of approximately $700,000.00 just prior to trial of the main case. The consideration paid for the total package was considerably less than the value of the apartments and mortgages alone. The apartments and mortgages, after the sale to continental, were and still are managed by Kendale Management, Inc. as agent for Continental. Roberto Susi is president of Kendale Management, Inc. and owns all its stock.
“5. Of the approximately $700,000.00 paid by Continental, approximately $475,-000.00 was paid to a bank to release the apartments which were security for a loan, and the balance was paid to Mira-mar Holding Corp. Miramar Construction Co. and Miramar Holding Corp., in turn paid lump sum ‘salaries’ of approximately $175,000.00 and $100,000.00 respectively to Robert Susi in December, 1974, and January, 1975, just prior to trial.
“6. Plaintiffs-in-Execution have proven by substantial competent evidence that the conveyance of the 37 apartments and 12 mortgages listed in Schedule A was made to delay, hinder and defraud creditors. F.S. §§ 56.29(6); 726.01.
“7. Impleaded third parties Miramar Holding Corp., Roberto Susi, Miramar Construction Co. and Continental Consultants, Ltd., have in their possession property of the defendant-in-execution.
“8. At all times relevant and until July, 1975, Susanna Weissberg Averbach, Mr. Susi’s sister, was an officer and/or director of the Defendant-in-Execution. Until March, 1974, Mrs. Dora Susi was an officer of the Defendant-in-Execution. However, the Court makes no findings with respect to said impleaded third parties. As to impleaded third party Roberto Susi, the Court finds that he permitted the transfers set forth hereinabove on a preferential basis and should be personally liable to creditors for such transfers. F.S. § 608.55.
“9. The Court is of the opinion that this case turns largely on the credibility of witnesses, and the testimony of Robert Susi, Octavio Pardo and Carlos Mitre is not credible.
“In accordance with the foregoing findings, it is
“ORDERED AND ADJUDGED as follows:
“1. The conveyances of the apartments and mortgages listed in Schedule A hereto to Continental Consultants Ltd. is hereby adjudged and held to be void and is set aside and said property shall be subject to execution forthwith to satisfy the judgment in favor of plaintiffs in executions and shall be delivered to the Sheriff of Dade County on his demand, and the Sheriff of Dade County is directed to take the property into his possession and sell it in accordance with the provisions of Florida law. The proceeds of the sale are to be applied toward the satisfaction, first, of the judgment of the plaintiffs herein, entered on the 31st day of July, 1975, in the total sum of $1,174,-869.00 with interest thereon, as provided by law, after payment of the Sheriff’s cost and the cost of the sale, and thereafter, any excess to be distributed as provided by law.
“2. The proceeds of the sale described hereinabove in (1) are to be distributed to El Conquistador Condominium Association, Inc. as the representative of the class of unit owners under F.S. § 718.111 which shall place same in a separate account and not distribute said funds pro rata to the members of the class. Said funds, after satisfaction of all obligations of and incurred in this litigation, shall be used for maintenance, repair and replacement of common elements of El Conquistador Condominium South. The receiver heretofore provided is discharged upon the performance by the Sheriff of his duties as described in (1).
“3. Plaintiffs-in-execution are entitled to judgment against impleaded third party Roberto Susi in the amount of $150,000.00 for which let execution issue forthwith.
“4. Plaintiffs-in-execution are entitled to judgment against impleaded third party Miramar Construction Co. in the amount of $29,000.00 for which let execution issue.
“5. Plaintiffs-in-execution are entitled to judgment against impleaded third party Miramar Holding Corp. in the amount of $225,000.00 for which let execution issue.
“6. This court retains its jurisdiction over these proceedings supplementary to execution for the purpose of making any further orders within the Court’s discretion, which may be met in regard to carrying out the full purpose and intent of these proceedings.
“DONE AND ORDERED at Miami, Dade County, Florida this 15 day of February, 1977.”
“ORDER GRANTING MOTION FOR REHEARING
“THIS CAUSE came on for oral argument upon the Motion for Re-Hearing and to Open Judgment Entered February 15, 1977 and Enter Judgment for Im-pleaded Third Parties as filed pursuant to Rule 1.530(a), FRCP on behalf of said impleaded third parties, ROBERTO SUSI, MIRAMAR HOLDING CORPORATION and MIRAMAR CONSTRUCTION CO. It appears unto the Court that the First National Bank of Hialeah did hold a valid lien against the thirty-seven (37) condominium apartments and twelve (12) first mortgages then owned by the judgment debtor, EL CONQUISTADOR CONDOMINIUM, INC. This indebtedness of approximately $475,000.00 was satisfied from proceeds of the purported sale of the above units and mortgages made by the judgment debtor, EL CONQUISTADOR CONDOMINIUM, INC., to Continental Consultants Ltd. with the remainder of the sales proceeds being disbursed to MIRAMAR HOLDING CORPORATION. However this conveyance of the condominium units and mortgages was found to delay, hinder and defraud creditors but the remainder of the sales proceeds remitted to MIRA-MAR HOLDING CORPORATION was not the property of the judgment debtor and the Court being otherwise duly advised in the premises thereof, it is upon consideration
“ORDERED AND ADJUDGED as follows:
“1. That the Motion for Rehearing and to Open Judgment Entered February 15, 1977 and Enter Judgment for Im-pleaded Third Parties as filed on behalf of ROBERTO SUSI, MIRAMAR HOLDING CORPORATION and MIRAMAR CONSTRUCTION CO. be and the same is hereby granted.
“2. That the money judgments as contained in the Final Judgment is Supplementary Proceedings as heretofore entered in this cause on February 15, 1977, as against impleaded third party, ROBERTO SUSI, in the amount of $150,-000.00, against impleaded third party, MIRAMAR CONSTRUCTION CO. in the amount of $29,000.00 and against im-pleaded third party, MIRAMAR HOLDING CORPORATION in the amount of $225,000.00 be and the same are hereby vacated and set aside.
“3. That the impleaded third parties, ROBERTO SUSI, MIRAMAR CONSTRUCTION CO. and MIRAMAR HOLDING CORPORATION be and they are hereby dismissed as impleaded third parties to these supplementary proceedings.
“DONE AND ORDERED at Miami, Dade County, Florida this 13 day of April, A. D. 1977.”

After carefully reviewing the record, briefs and arguments of counsel, it is our opinion that the final judgment and order (which modified the judgment) must be affirmed. As for the final judgment the trial judge’s findings have not been shown to be clearly erroneous. Liberty Mutual Insurance Co. v. Furman, 341 So.2d 1056 (Fla. 3d DCA 1977). Additionally, there was competent substantial evidence to support the trial judge’s conclusion that a fraud had been perpetrated upon appellees, as judgment creditors. See Livesay Industries, Inc. v. Livesay Window Co., 305 F.2d 934 (5th Cir. 1962); Cleveland Trust Co. v. Foster, 93 So.2d 112 (Fla. 1957); and Licata v. Acolite Sign Co., 183 So.2d 865 (Fla. 3d DCA 1966).

As far as the order granting motion for rehearing is concerned we believe that the learned judge was correct in vacating the money judgments against the implead-ed third parties, Miramar Holding Corp., Miramar Construction Co, and Robert Susi, as the above impleaded third parties possessed none of the assets of the judgment debtor. See Section 56.29, Florida Statutes (1977). Likewise, appellees cross-appeal from the final judgment, exonerating Dora Susi, Susanna Weissberg Auerbach, must be rejected for the same reason.

Any other points involved on appeal were purely discretionary, with no abuse of same having been shown.

Accordingly, both the final judgment and order granting motion for rehearing are affirmed.

Affirmed.


author: PER CURIAM. DAUKSCH, Judge,

text:
    Freddy Duane BLAKLEY, Appellant, v. STATE of Florida, Appellee.
    No. 77-2076.
    District Court of Appeal of Florida, Fourth District.
    July 19, 1978.
    Rehearing Denied Sept. 20, 1978.
    J. David Bogenschutz of Varón, Stahl, Kay & Roderman, P. A., Hollywood, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Harry M. Hipler, Benedict P. Kuehne and Charles A. Stampelos, Asst. Attys. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED.

LETTS, J., and BLACK, SUSAN, Associate Judge, concur.

DAUKSCH, J., dissents with opinion.

DAUKSCH, Judge,

dissenting:

I respectfully dissent. This is a case quite similar to Greenfield v. State, 337 So.2d 1021 (Fla. 2d DCA 1976) both in its facts and the law.

On direct examination in the State’s case in chief the prosecutor elicited from a policeman the testimony that the defendant had been advised of his rights under Miranda and that the defendant maintained his right not to give a statement. After the officer told the jury the defendant exercised his Miranda rights the attorney for the defendant objected and moved for a mistrial. In fact, throughout the questioning of the officer in regard to the Miranda warnings and the defendant’s response, the defendant’s attorney made objections and made a “continuing objection” at a point prior to the officer actually telling the jury the defendant refused to make a statement. The officer telling the jury that the defendant refused to give a statement after a Miranda warning is error. Bennett v. State, 316 So.2d 41 (Fla.1975). It is fundamental error, not requiring an objection. Paulen v. State, 352 So.2d 1205 (Fla. 4th DCA 1977).

However, like in Greenfield, supra, there is a twist to this case. In essence the defendant’s refusal was introduced for the purpose of showing the defendant was “sane” at the time of the commission of the crime because he evidently understood a Miranda warning at the time of his arrest, shortly after the crime occurred. The testimony was introduced in anticipation of an insanity defense because the defendant had given notice of his intention to claim insanity and had pleaded not guilty by reason of insanity.

While I agree with the dissent of Judge Grimes in Greenfield, supra, I also dissent here because of the order of things. Let us assume the refusal of the accused to make a statement is admissible on the issue of insanity, as it was found to be in Collins v. State, 227 So.2d 538 (Fla. 3rd DCA 1969). I see no reason to further compound the problem by allowing its admission before the defendant has made an issue of his insanity by presenting evidence about his insanity. In Collins, supra, the officers’ testimony about the accused’s statements after warning (“I guess I will have to get a lawyer”) were admitted in rebuttal after the defendant had presented evidence about his insanity. Therefore, I say if we can get over the Bennett, supra, hurdle then we must also jump another one in regard to the “postural sequence.” The defendant had not yet presented any evidence of insanity and, at that point, no evidence of his sanity was relevant, ergo, the admission of the testimony was error. It was harmful because it violates Bennett, supra. It was fundamental as we said in Paulen, supra and Sylvester v. State, 341 So.2d 203 (Fla. 4th DCA 1977). It cannot be deemed harmless. Sylvester, supra.

I would reverse and remand for a new trial.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . See footnote 4 in Greenfield, supra which states:
      “No issue is made herein about the postural sequence in which the evidence came in. That is, the evidence came in during the state’s case in chief before there was any evidence from the appellant as to his insanity. But no objection was made at the time. So, by objecting to prosecutorial comments thereon during summation, the appellant is in no different position than he would have been in had such evidence been introduced in rebuttal, when it would have been, as we hold here, proper”.


author: GRIMES, Chief Judge.

text:
    RALO, INC., a Florida Corporation, d/b/a “Dixie” Sightseeing Cruises, Appellant, v. JACK GRAHAM, INCORPORATED, a Florida Corporation, d/b/a Marine Operators, Appellee.
    No. 78-211.
    District Court of Appeal of Florida, Second District.
    July 21, 1978.
    Rehearing Denied Sept. 7, 1978.

      Daniel F. Joy, III, of Johnson & Joy, P.A., Sarasota, for appellant.
    Ward E. Dahlgren of Dickinson, O’Rior-den, Gibbons, Quale, Shields & Carlton, P.A., Sarasota, for appellee.
   GRIMES, Chief Judge.

This is an appeal from a judgment denying the claims of plaintiff/appellant (Ralo) for declaratory judgment and permanent injunction and ordering Ralo’s eviction from leased premises pursuant to the counterclaim of defendant/appellee (Marine).

Certain bayside and submerged lands were deeded by the Trustees of the Internal Improvement Fund to the City of Sarasota. The deeds recited that the lands “shall be used solely for municipal purposes.” The city leased the premises to Marina Mar, Inc. pursuant to a lease agreement which provided “the demised premises shall be used for municipal park and recreational purposes only.” The lease, as later amended, further stated:

(a) The Tenant shall use so much of the demised premises as more particularly designated in the attached Schedule “B” hereof for the primary purposes of constructing thereon and thereafter maintaining thereon and operating therefrom docking and marina facilities for use of boats and other watercraft, and in that connection the Tenant will offer to lease to the general public the right to the use of docks and slips by such boats and watercraft.

The lease was assigned to Marine in 1968. Pursuant to the lease Marine operates a marina and ancillary facilities on the demised premises.

Ralo has been operating sight-seeing tours from a dock and slip in the marina since 1970. Ralo pays Marine a-monthly fee for the use of the dock and slip. There is no written sublease between the parties. On October 4, 1977, Marine served Ralo with a notice to vacate the dock and slip within thirty days. No reason was given by Marine for its notice to vacate.

Ralo brought suit seeking to enjoin Marine from interfering with Ralo’s peaceful possession of the dock and slip. Marine counterclaimed for eviction. It was stipulated that Marine was planning in the near future to place in operation at the demised premises a boat featuring dinner cruises, and that the notice to vacate was not based upon cause.

The court concluded that the relationship between the parties was that of tenant and subtenant and that the law of landlord and tenant was applicable to the case. The court held that Ralo’s tenancy was a tenancy at will and that since Marine had given the proper notice to vacate, Ralo was directed to vacate the premises.

If this were the ordinary landlord-tenant (or tenant-subtenant) relationship, the result reached below would be correct. A landlord is entitled to terminate a tenancy at will upon proper notice without having to justify his action through the showing of appropriate cause. However, in this case Marine was not in the position of an ordinary landlord, because its use of the property was conditioned by the provisions of the deed to the city and the city’s lease.

Marine’s arbitrary refusal to lease to Ralo was in direct contravention of Marine’s obligation to offer to lease docks and slips for boats to the general public. There was no suggestion that Ralo was not part of the general public. Therefore, it was incumbent upon Marine to offer the facilities to Ralo upon the same terms and conditions that it would offer comparable facilities to other parties for the same purposes. In the absence of a showing that Ralo was in default of the rent or in violation of reasonable rules for the use of the premises or of any other compelling reason, Marine did not have a right to bring about Ralo’s eviction. We deem the fact that the city may have entered into the lease in its proprietary capacity to be irrelevant because of the peculiar wording of the underlying documents.

REVERSED.

HOBSON and OTT, JJ., concur.


author: PEARSON, Judge.

text:
    In the Matter of Stig O. L. ASTROM et al., Cross-Petitioners.
    Nos. 76-2340, 77-175 to 77-177, 77-560, 77-693 to 77-699, 77-1693, 77-1779 and 77-2098.
    District Court of Appeal of Florida, Third District.
    July 25, 1978.
    Rehearing Denied Sept. 19, 1978.
    Smathers & Thompson and Shepperd D. Johnston, Miami, for Pan American.
    Kenneth H. Hart, Jr. and Ollie Evans, Tallahassee, for Industrial Relations.
    Lawrence Kanzer, Miami, for Astrom, Carroll, Chalcraft, Epperson, Harlan, Dolder, Lawyer, Maynulet, Melchiorre, Mowery and Pelletier.
    James R. Rhoads, in pro per.
    Before HAVERFIELD, C. J., PEARSON, J., and CRAWFORD, GRADY L. (Ret.), Associate Judge.
   PEARSON, Judge.

We are presented with petitions for writs of certiorari and cross-petitions to review orders of the Department of Commerce, Division of Employment Security, granting unemployment compensation to some claimants against their employer, Pan American World Airways and denying compensation to other claimants. The petitions all arise out of the same facts, which occurred when Pan American drastically reduced its work force in Miami during 1975 and 1976. The petitions were consolidated for consideration and were argued together.

The facts, which are essentially uncontro-verted, are that in the summer of 1975, while claimants were employed by Pan American at its maintenance base in Miami, Pan American announced that it was contemplating the transfer of the maintenance base to New York. Pan American entered into negotiations with the employees’ union. By the terms of the agreement, the employees were given the option of taking early retirement and receiving additional increased benefits, or continuing to work until a future, but undesignated, termination date. As an inducement to employees to choose early retirement, Pan American offered benefits of an additional fifty percent in the amount of pension benefits paid until age 62, plus an additional thirteen weeks of severance pay, with the option of maintaining insurance and hospitalization benefits for those employees who would take early retirement on or before December 31, 1975.

Claimants H. L. Abrams, Raymond W. Flannery, Richard Rhoads, James R. Rhoads, Henry P. Matthews, Herbert Eiffe, Robert Thomson, Lanzo Harvey, Richard Mikels and Charles A. Bauer elected to take early retirement. These claimants filed for unemployment compensation and there was a hearing before an Appeals Referee, with an appeal taken to the then Industrial Relations Commission. The Commission entered an order determining that the claimants should receive full unemployment compensation benefits without reduction by the amount of the pension benefits. Pan American’s petitions for writs of certiorari urge that the Industrial Relations Commission erred in interpreting Section 443.06(8), Florida Statutes (1975), by holding that because the pension benefits were, in part, a return of contributions, therefore, Section 443.06(8) was inapplicable.

The claimants respond that there is competent, substantial evidence to support the finding of the Commission, as follows:

“The Referee found that the claimant was disqualified for all, or a portion, of his benefits depending upon the weekly amount of his income for as long as he is eligible to receive such retirement income from his base period employer. However, the record does not support the Referee’s decision.
“The retirement plan at issue was contained in the collective bargaining agreement entered into by the employer and the claimant’s bargaining agent. The plan was in the nature of an annuity, with both the employees and the employer making contributions to the fund. The claimant has already paid income tax on the monies that he has contributed to the plan over the years.
“In the case of Dorothy Anderson versus Department of the Air Force, I.R.C. Order No. 75-852 F (filed September 30, 1975), this Commission had before it a similar fact situation. The claimant was a civil service employee on an air base located in Orlando, Florida. The base was closed and the claimant was offered early retirement at a reduced income. The claimant had been contributing to the retirement fund for a number of years. The Referee disqualified the claimant from receipt of benefits because her retirement income exceeded her weekly benefit amount. This Commission reversed the Referee’s decision, stating, ‘We cannot agree with the Referee’s decision. So long as the claimant’s pension is a return of her contributions to the fund, it is not disqualifying income. The claimant voluntarily participated in a public employee retirement program funded in part by employee contributions. Her investment in the fund is similar to the purchase of an annuity. The benefits which represent a return of the claimant’s contributions are not subject to federal income tax due to the recognition of their character as periodic return of adjusted capital. Thus the pension, to the extent that it is a return of the claimant’s contributions, is merely a return of capital. To consider it disqualifying income is inequitable and penalizes her for having the foresight . . . [and] industry to set aside money for her old age. Subsequent payments from the fund after exhaustion of the claimant’s contributions would constitute disqualifying income.’ ”

In enacting this statute, it is clear that the legislature intended to prohibit the receipt of dual compensation. The language of the legislature does not exempt from the provisions of the section any pension based upon the source of the contributions. The only requirement of the set off is that the pension or retirement program be embodied in a union contract or in a public or private employee benefit program. The substitution of a provision that defines income as the Internal Revenue Code does for income tax purposes is without the authority of the legislative enactment.

The claimants rely upon St. Joe Paper Company v. Gautreaux, 180 So.2d 668 (Fla. 1st DCA 1965), for a holding that there must be a liberal interpretation of the Florida Unemployment Compensation Law. We agree but cannot hold that such a liberal interpretation may extend to the insertion of provisions not in the statute. See Armstrong v. City of Edgewater, 157 So.2d 422, 425 (Fla.1963); In Re Estate of Jeffcott, 186 So.2d 80 (Fla.2d DCA 1966); and James Talcott, Inc. v. Bank of Miami Beach, 143 So.2d 657 (Fla.3d DCA 1962).

Claimants James L. Harlan, Harris E. Carroll, Stig O. L. Astrom, Joseph Epper-son, Virgil I. Chalcraft, Robert Dolder, Carl Mowery, Joseph Maynulet, Eugene Pelletier, Clarence G. Lawyer and George R. C. Melchiorre have filed petitions for a review of a determination by the Industrial Relations Commission disqualifying them from recovering unemployment compensation benefits upon a holding that they voluntarily left their employment. These claimants all elected early retirement on or before December 31, 1975.

The pertinent portions of the Commission’s Order relative to this issue are:

“The Referee found that the claimant voluntarily left his employment without good cause attributable to his employer. After making extensive findings of fact the Referee reasoned, in part, that, ‘The claimant’s desire to place himself in the most favorable financial position, under these circumstances, is quite understandable, and what any reasonable person might do under similar circumstances; however, this is a personal matter . Continued work was available for the claimant under the same terms and conditions as before, until such time as he was, in fact, laid off due to lack of work. The November 1, 1975, amendments to the contract were matters agreed upon by both employer and the claimant’s authorized agent, his union. These amendments certainly cannot be considered as coercive devices as they took nothing from the claimant which he had already been awarded under the original contract.’ The evidence in the record supports the Referee’s decision.
“Clearly, all of the claimants knew that there would be continued work for them with the employer, indefinitely. Subsequently, some of the claimants have found that they would not have been laid off and some have found that they would have been laid off, depending on their job classification and seniority. Many of the employer’s employees who fell into this age bracket chose not to take early retirement prior to 1976. Of those who chose to take early retirement, several of the younger employees stood to lose little if anything of the base closing adjustment by continuing to work until they were laid off and forced to take early retirement. As the Referee correctly pointed out in his decision, the Unemployment Compensation Law provides for the payment of benefits to claimants who voluntarily leave their employment only in cases where they had good cause attributable to the employer or were compelled to leave due to a disability or illness.”

It is apparent that each claimant elected early retirement only because of the impending close out of operations in Miami. Such a reaction is understandable in that the employee may have felt that the uncertainty of his present employment necessitated a change, possibly in order to seek further employment. Pan American emphasizes that the date it would terminate these individuals was never ascertained and that from the record, there is a basis for a finding that the uncertainty of cut-off dates was due to the fact that no one knew how many men would elect to retire so that men junior in service could continue to work. There was certainty of the eventual lay off but work was available at the time that the claimants elected to accept the benefits offered for early retirement.

The case in Florida which seems closest on point with the facts is Quick v. North Central Florida Community Mental Health Center, 316 So.2d 301 (Fla. 1st DCA 1975). There, claimant was told that she would have to resign or be discharged. She resigned effective at a future date but then quit work four weeks before the termination date. She was denied unemployment compensation benefits.

The claimants rely upon St. Joe Paper Company v. Gautreaux, 180 So.2d 668 (Fla. 1st DCA 1965). The holding of the St. Joe case is that mandatory retirement as of a definite date is tantamount to discharge. See also Campbell Soup Co. v. Board of Review, 13 N.J. 431, 100 A.2d 287 (1953). The question here is one of anticipatory discharge, and we hold that St. Joe Paper Company v. Gautreaux, supra, is not governing.

The petitions of Pan American are granted and those of the claimants are denied. The orders of the Division of Employment Security holding that claimants receiving pension benefits are eligible for unemployment benefits are quashed. The orders of the Division denying unemployment benefits to those claimants who elected voluntary retirement prior to the date of their termination of employment is approved and certiorari is denied.

It is so ordered.

      . “§443.06 Disqualification for benefits. — An individual shall be disqualified for benefits:
      “(8) For any week with respect to which he has received, or is eligible to receive, from a base period employing unit, income from a retirement, pension or annuity program embodied in a union contract or either a public or private employee benefit program. Provided, however, that for any week in which income from a retirement, pension or annuity program as. referred to in this subsection when combined with income from the retirement provisions of the United States Social Security Act is less than the weekly benefits which would otherwise be due under this chapter he shall be entitled to receive for such week, if otherwise eligible, benefits reduced by the income from the retirement, pension, or annuity program combined with the United States Social Security Act retirement income, pro-rated to a weekly basis. For the purpose of this subsection benefits from the United States Social Security Act, a disability benefit program, a supplemental unemployment benefit program, or any other program not specifically designated either in the union contract or a company benefit program as being retirement, pension or annuity income shall not be disqualifying. For the purposes of this subsection, the term base period employing unit shall not include any branch of the United States Armed Forces.”


text:
    James SMITH, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1366.
    District Court of Appeal of Florida, Third District.
    July 25, 1978.
    Rehearing Denied Sept. 15, 1978.
    John H. Lipinski, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Paul Mendelson, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and BARK-DULL and HUBBART, JJ.
   PER CURIAM.

Affirmed. Songer v. State, 322 So.2d 481, 483-84 (Fla.1975); State v. Jones, 204 So.2d 515 (Fla.1967); State v. Williams, 198 So.2d 21, 22 (Fla.1967); Spencer v. State, 133 So.2d 729, 731-732 (Fla.1961); Ellison v. State, 349 So.2d 731, 732 (Fla.3d DCA 1977); Dove v. State, 287 So.2d 384, 385 (Fla.1st DCA 1973); Hancock v. State, 276 So.2d 223 (Fla.1st DCA 1973); Navarro v. State, 262 So.2d 729 (Fla.3d DCA 1972); Williams v. State, 235 So.2d 13 (Fla.1st DCA 1970); Hamilton v. State, 152 So.2d 793, 794-95 (Fla.2d DCA 1963).


text:
    Charles BIRD, Appellant, v. INTERNATIONAL GRAPHICS, INC., Appellee.
    No. 77-2569.
    District Court of Appeal of Florida, Third District.
    July 25, 1978.
    Rehearing Denied Sept. 15, 1978.
    R. Stuart Huff and John F. Lisk, Miami, for appellant.
    Friedman & Britton and Paul G. Hyman, Jr., Miami, for appellee.
    Before HAVERFIELD, C. J., and PEARSON and HENDRY, JJ.
   PEARSON, Judge.

The question presented by this appeal is whether the attempted substituted service of the plaintiff/appellee upon the defendant/appellant, pursuant to Section 48.181, Florida Statutes (1977), was sufficient to secure jurisdiction of the defendant. We hold that the service was not sufficient and reverse the judgment.

The plaintiff, International Graphics, Inc., sued the defendant for the balance due on an open account. Summons was issued for the individual defendant, Charles Bird, at an address in Dade County, Florida. The summons was returned unexecuted with the notation, “moved per manager.” Alias summons was issued for service at a different address in Dade County. The return on the alias summons showed no service, with a notation, “no longer at this address as per Lianes Sound Studio.” Pluries summons was issued and returned unexecuted by an individual who is not shown to have been appointed by the court. Another summons was issued with directions to serve the Secretary of State as the defendant’s statutory resident agent, pursuant to Sections 48.181 and 48.161, Florida Statutes (1977). The Secretary of State accepted service. A motion for default was filed and although no default was entered, a final judgment was entered against the defendant. Within ten days, the defendant moved to vacate the judgment upon the ground that he had not been served with process. Defendant’s motion was denied and this appeal is from that order.

Appellant urges that no ground for substituted service under the statute appears in the record. Appellee urges that the issuance of three summonses, all of which were returned unserved, is sufficient to show that defendant was concealing his whereabouts as set forth as a basis for substituted service in Section 48.181, Florida Statutes (1977).

One seeking to effect substituted service of process has the burden of presenting facts which clearly justify the applicability of the statute. AB CTC v. Morejon, 324 So.2d 625 (Fla.1975). The failure of the sheriff and a process service to locate the defendant at three addresses furnished by the plaintiff is not enough to establish concealment. The record does not show by affidavit or otherwise that sufficient search and inquiry was actually made to ascertain that the defendant was concealing his whereabouts. Cf. Fleischman v. Morris, 260 So.2d 278 (Fla. 3d DCA 1972).

Therefore, the order denying defendant’s motion to vacate the final judgment is reversed, and the cause is remanded for further proceedings.

Reversed and remanded.