text:
    George D. HARRELSON, and Martin H. Ireland, Jr., and other subscribers to a community television system, not named but made parties as members of a class, Appellants, v. CABLE-VISION, INC., a Florida Corporation, Appellee.
    No. 74-1162.
    District Court of Appeal of Florida, Third District.
    March 23, 1976.
    Rehearing Denied July 6, 1976.
    Tew, Tew & Murray, Miami, for appellants.
    Taylor, Brion, Buker, Hames & Greene and Robert J. Paterno, Miami, for appellee.
    Before PEARSON, HENDRY and NATHAN, JJ.
   PER CURIAM.

Appellants, plaintiffs below, brought a class action for themselves and on behalf of other subscribers to appellee’s cable television system which it operated in Monroe County pursuant to an exclusive franchise granted by the state of Florida, Monroe County, and the City of Key West. By their second amended complaint, appellants sought damages from appellee, defendant below, for alleged installation charges in excess of those allowed to be charged by appellee under its franchise agreement and damages they alleged were caused by discriminatory rate practices. The franchise agreement provided for, among other things, a $150.00 contribution, exclusive of all taxes and licenses, for installation in each individual home; provided, however, that the locations thereof shall not require labor and materials in excess of those provided for in the current rate schedule of the company. If additional labor and materials are required, the company may require an additional contribution. The franchise holder is authorized to increase the service rates to provide for additional costs of operation as additional channels, services, and facilities are installed, but in no event shall such rates be more than $7.-50 per month without further approval of the Board of County Commissioners.

The substance of appellants’ complaint below was that appellee had entered into subscription contracts with appellants which exceeded the installation and service charges which it was authorized to charge pursuant to the franchises and license under which it operates its Cable Television System. Appellants further contend that appellee’s use of two types of subscription contracts, to-wit: Class A contracts and Class B contracts, constitutes a discriminatory rate practice.

In entering its final judgment dated July 3, 1974, after a nonjury trial, the trial court found in pertinent part as follows:

“First, this Court has carefully reviewed each of the franchises and the license under which the Defendant operates its Cable Television System. This Court is not unmindful of the practical construction of the subject franchises by the parties to them for a considerable period of time before those franchises became the subject matter of the instant controversy. Further, the individual subscription contracts serve to reinforce the aforesaid practical construction of the franchise documents. The construction of those franchise documents urged by the Plaintiffs is unreasonable and not compatible with the clear purview and content of those documents. The only reasonable construction of the term ‘individual home’ as used in the installation fee and service rate sections of the franchise agreements, clearly means the SUBSCRIBER in the individual home, and it is manifestly clear that the Defendant is authorized to charge each individual subscriber to the Defendant’s Cable Television System the installation fees and service charges authorized under the franchise agreements.
“Secondly, Plaintiffs contend that Defendant’s use of two types of subscription contracts, to-wit: Class A and Class B constitute a discriminatory rate practice. The evidence before this Court reflects that the Defendant has offered all subscribers an option to elect either the Class A or Class B subscription contract. The Class A subscription contract requires the subscriber to pay a $150 installation fee and a service charge of $6.25 per month. . The Class B contract requires the subscriber to pay an initial installation fee of $9.95 and a monthly charge of $8.75 consisting of $7.50 for monthly service charge and the remaining $1.25 being applied towards installation fees as provided in the contract. The testimony reflects that the Class B contract was initially established at the instance and request of the United States Navy, in order to accommodate the large number of transient military personnel at the navel establishment in Key West, by affording them the option of selecting which class of subscription contract would be most economical for each subscriber. This option to elect was also made available to all subscribers in the Monroe County and Key West area. This Court noted, with interest, that each of the named plaintiffs testified that they elected the Class B subscription contract because it was to their own financial best interests to elect the Class B contract. It is difficult to understand how Plaintiffs herein can justifiably claim to be an aggrieved party under such circumstances. Furthermore, the testimony and record before this Court affirmatively reflects that the monthly service charge differential between the Class A and Class B subscription contracts are fully justified and founded upon increased operational costs, service costs, as well as additional administrative costs required to be performed by CABLE-VISION, INC. for Class B subscribers due, among other things, to the high turnover rate experienced with Class B subscribers. Furthermore, this Court notes that the monthly service rate charged under the Class B subscription contract does not exceed the monthly service rate authorized under any of the franchises or license under which the Defendant operates. The record before this Court fails to establish any basis for Plaintiffs’ claim of discriminatory rate practices by the Defendant.
“This Court has carefully reviewed the depositions, exhibits, pleadings, and has considered and weighed all of the testimony adduced at trial and upon consideration of the entire record in this cause, it is therefore:
“CONSIDERED, ORDERED AND ADJUDGED AS FOLLOWS:
‡ ‡ ‡ ‡ H4
“3. That the equities in this cause are with the Defendant, and that Plaintiffs shall take nothing by this cause and the Defendant, CABLE-VISION, INC, a Florida corporation, shall go hence without day.”

Appellants urge reversal and have raised the following points on appeal (we need not reach the third point relative to the dismissal of the class action): (1) the franchise agreements are properly construed as allowing appellee to charge only one $150.00 installation fee per home, and the trial court erred in construing the franchises to mean that appellee is authorized to charge each individual subscriber an installation fee; and (2) the trial court erred in holding that the appellee was not guilty of charging discriminatory rates to class B subscribers since it appeared from the evidence and the franchise agreements that class B subscribers were being charged a higher service fee than the service fee charged class A subscribers for identical services.

We have carefully reviewed the points raised in the light of the record, briefs, and arguments of counsel, and have concluded that no reversible error has been shown.

It appears from the record that there was substantial competent evidence to support the judgment. A judgment in a nonjury case will not be reversed unless it clearly appears that the judgment is erroneous or unless the findings of the trial court are manifestly against the weight of the evidence or contrary to the legal effect of the evidence.' See, e. g., Leggett v. Seaboard Coast Line R. Co., Fla.App.1969, 221 So.2d 16; Garner v. Gulf Federal Sav. & Loan Asso., Fla.App.1969, 218 So.2d 192; and see 2 Fla.Jur., Appeals §§ 316 and 343.

For the reasons stated, the final judgment appealed is affirmed.

Affirmed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    E. J. FRANKEL et al., Appellants, v. David M. BERNSTEIN and Jules Bender as Co-Executors of the Estate of Rose Weiner, Deceased, Appellees.
    No. 75-774.
    District Court of Appeal of Florida, Third District.
    March 23, 1976.
    Rehearing Denied July 6, 1976.

      Sibley, Giblin, Levenson & Ward and Allan M. Glaser, Miami Beach, for appellants.
    Norman F. Solomon, Miami, for appel-lees.
    Before PEARSON and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Rose Weiner was a lessee-resident of an apartment in the Roney Plaza Apartments, owned by appellants. She held under a one year lease which was to expire November 30, 1974. On June 7, 1974, she entered into a written lease of the apartment for a term of two years, to commence on the day following the termination date of her existing lease.

The second lease did not contain any provision with reference to the contingency of death of the lessee during its pendency. In a paragraph entitled “Use” it was provided that the leased premises were to be used by the lessee only as her residence. Further in the lease it was stated that the term Tenant would apply to any person to whom the tenant’s interest passed by operation of law.

Rose Weiner died on August 12, 1974, several months prior to the commencement of the term of the second lease. The ap-pellees are executors under her will.

On November 22, 1974, the lessors filed an action against the executors of the estate of the deceased lessee. In the complaint, as amended on February 21, 1975, by Count I plaintiffs sought declaratory judgment “adjudicating the respective rights of the plaintiffs and the defendants under the renewal lease agreement, for a judgment for accrued unpaid rent”, with interest, costs and attorney’s fees. By Count II plaintiffs sought judgment for rent which had accrued and was unpaid under the one year lease which ended November 30, 1974. By Count III plaintiffs sought judgment for rent which had accrued and was unpaid under the new lease, subsequent to its commencement date of December 1, 1974.

On consideration of motions of the defendants, the court dismissed Count I with prejudice; denied defendants’ motion to dismiss Count II (for rent accrued under the prior lease); and dismissed with prejudice Count III (for rent under the new lease subsequent to December 1, 1974). The defendants have appealed from that order.

The appellants contend the court erred in rejecting Count I, for declaratory judgment as to the rights of the parties under the lease. We hold no error resulted there. By dismissing Count III, by which the plaintiffs claimed entitlement to rents under the new lease commencing December 1, 1974, the court in effect determined the rights of the parties with reference to that lease, in view of the prior death of the named tenant lessee.

Appellants argue further that the court erred in concluding the lessors were not entitled to collect rents under the second lease, in view of the prior death of the lessee. We hold that contention is without merit. The trial court regarded the lease as a personal contract, or an agreement creating a personal relationship. In our view that holding was justified on the facts of this case. From the terms of the lease and the surrounding circumstances it was shown the lease was intended to be only a personal obligation of the lessee, through restriction of its use to be for her residence, from which, necessarily, there may be implied a condition that her death would terminate the lease — a feature against which the lessor could, but in this instance did not, seek protection by some express provision in the lease. This view was expressed in Warnecke v. Estate of Rabenau, Mo.App.1963, 367 S.W.2d 15. The case of Whidden v. Sunny South Packing Co., 120 Fla. 191, 162 So. 503, relied on by the appellants, is distinguishable on the facts, and not applicable to the present situation. That case involved a citrus fruit marketing contract between a grower and a packer where the court held that notwithstanding death of the grower the packer was entitled to performance under the contract, which it was held was not personal to the deceased grower and was equally performable by his representatives.

The holding of the trial court in this case was not in conflict with the holding of this court in Taylor v. Rosman, Fla.App.1975, 312 So.2d 239. The questions involved here and theory upon which this case was decided in the trial court were not involved or discussed in Taylor v. Rosman, supra.

Applicable to this case is the proposition that where a contract is one which, according to its provisions and purposes, may not be as well and fully performed by the personal representative of a contracting party as by the decedent, it would be illogical to assume, in the absence of a provision to the contrary in the contract, that the parties should not have anticipated that upon death of such party during pendency of the contract (or as here prior to its inception), the representative of the deceased party need not perform, such as would result where performance is rendered actually impossible by an act of God. See Moon v. Wilson, 100 Fla. 791, 130 So. 25; Enid Corporation v. Mills, Fla.App.1958, 101 So.2d 906.

Here the contract, which was wholly ex-ecutory at the time of Rose Weiner’s death, was restricted to use of the leased premises by her as her residence. Her untimely death made that impossible, and made impracticable the performance thereof by the executors of her estate. On those facts we are not inclined to fault the trial court for holding the executors were not liable for performance under the said lease.

The order appealed from is affirmed.


text:
    STEINER AND MUNACH, P.A., Appellant, v. Willie F. WILLIAMS et al., Appellees.
    No. 75-688.
    District Court of Appeal of Florida, Third District.
    March 23, 1976.
    Rehearing Denied July 6, 1976.

      Richard A. Kanner, Miami, for appellant.
    Orr, Nathan & Williams, Miami, for ap-pellees.
    Before HAVERFIELD and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Defendant seeks review of two final judgments entered in favor of Willie F. Williams, the first for $12,000 in her capacity as personal representative of Willie E. Williams, her deceased husband, and second for $3,000 individually following a jury trial in this action to recover for the intentional infliction of mental and emotional distress.

Willie E. Williams was operated upon and the defendant, Steiner and Munach, a medical professional association practicing anesthesiology, administered the anesthesia for a fee of $272. At the time of the surgery he had medical coverage with two different insurance companies to which he submitted the defendant’s statement for services rendered. One of the insurers made part payment and the other insurer was to pay the remainder. However, despite several phone calls and statements to the second insurer, no results were produced. Approximately nine months after the operation, defendant mailed the following unexecuted claim to Mr. Williams:

“FILE IN DUPLICATE PLU
“ONE COPY FOR EACH DEFENDANT
“IN THE COUNTY COURT, IN AND FOR DADE COUNTY, FLORIDA
“Steiner & Munach, P.A._ CASE NO._
“1150 N.W. 14th Street Suite 602 CIVIL DIVISION
“Miami, Florida 33136_
“Plaintiff (s) STATEMENT OF CLAIM
Address (es) of Defendant (s):
“ Mr. Willie E. Williams_ 9115 N.W. Little River Dr._
“_ Miami, Florida 33147_
“Defendant (s)
“The Plaintiff sues the Defendant for: Money owed Plaintiff by Defendant; and which is past due and unpaid; for (As checked (X) below):
“Goods, wares and merchandise sold by plaintiff to defendant;
“Work done and materials furnished by plaintiff to defendant;
“Money loaned by plaintiff to defendant;
“Money due to plaintiff upon accounts stated and agreed to between them;
“On a written instrument, copy of which is attached hereto;
“Rent for certain premises in Dade County, Florida, viz:
“XXX Other (Explain) ANESTHESIA DURING SURGERY AT CEDARS OF LEBANON HOSPITAL 10/22/73
“Any additional facts in connection with any of the above:
“(Use additional sheet if necessary)
“THIS IS A COPY OF THE CLAIM TO BE FILED AGAINST YOU IN COURT FOR NONPAYMENT OF YOUR MEDICAL ACCOUNT UNLESS YOUR PAYMENT IS RECEIVED IMMEDIATELY.
“Wherefore Plaintiff demands judgment in the sum of $176.00, together with court costs and any further costs which the Court may assess.”
************

At the time Mr. Williams received the claim, he was alone and upon his wife’s return home, he exclaimed “Oh, my God, I guess they’re going to take our house.” Thereafter, he stopped eating and sleeping for some time. Mrs. Williams also was very upset and the next day took the form to her attorney who advised her it was not a lawsuit and to relax. Ten days later defendant was paid by the second insurance carrier. The Williams, alleging that they both suffered severe mental and emotional distress as a result of receiving the above form, filed suit against the defendant and sought both compensatory and punitive damages. While the suit was pending, Mr. Williams died and Mrs. Williams was permitted to proceed on her deceased husband’s behalf. After the conclusion of the trial, the jury awarded Mrs. Williams on behalf of her husband $2,000 in compensatory damages and $10,000 in punitive damages, and on behalf of herself $1,000 in compensatory and $2,000 in punitive damages. Defendant perfected this appeal from the final judgments entered in accordance with these verdicts.

Defendant primarily contends that its actions do not constitute a claim for emotional distress. We find this contention has merit.

The law in Florida still remains that there is no recovery for emotional or mental injuries unless there has been a physical impact or such injuries are produced as a result of a deliberate and calculated act performed with the intention of producing such an injury by one knowing that such act would probably and most likely produce such an injury. See Gilliam v. Stewart, Fla.1974, 291 So.2d 593 and 32 Fla.Jur. Torts § 15 (1960).

We find there was no physical impact and no showing that defendant’s conduct was deliberate and calculated to produce the alleged mental and emotional distress, nor that defendant knew its action would probably produce such injury to plaintiffs. Thus, the final judgments awarding both compensatory and punitive damages based upon plaintiffs’ claim of intentional infliction of mental and emotional distress are reversed.

Nevertheless, defendant’s conduct clearly is in violation of § 559.72(10), Fla.Stat, F.S.A., and pursuant to § 559.77(1), Fla.Stat., F.S.A. defendant is liable for $500 to plaintiff. We further note that even though defendant under this second statute may be liable also for punitive damages, the plaintiff in the instant action is not entitled to these damages inasmuch as the evidence fails to demonstrate that defendant’s conduct was wanton, malicious or gross and outrageous to such an extent that the measured compensation of the plaintiff should have an additional amount added to it by way of punishment. See Winn & Lovett Grocery Co. v. Archer, 126 Fla. 308, 171 So. 214 (1936).

Accordingly, the cause is remanded to the trial court with directions to enter a new judgment in favor of plaintiffs for $500, together with court costs and reasonable attorney’s fees.

Reversed and remanded with directions.

      . “559.72 Prohibited practices generally.
      “In collecting consumer claims, whether or not licensed by the division, no person shall:
      *1» ^ *1*
      “(10) Use a communication which simul-lates in any manner legal or judicial process or which gives the appearance of being authorized, issued or approved by a government, governmental agency, or attorney-at-law, when it is not
      * * * * *

      . “559.77 Civil liability.
      “(1) A debtor may bring a civil action against a person violating the provisions of this part in the circuit court of the county in which the alleged violator resides or has his principal place of business or in the county wherein the alleged violation occurred. Upon adverse adjudication, the defendant shall be liable for actual damages or five hundred dollars, whichever is greater, together with court costs and reasonable attorney’s fees incurred by the plaintiff. The court may, in its discretion, award punitive damages and may provide such equitable relief as it deems necessary or proper, including enjoining the defendant from further violations of this part. If it appears to the court that the suit brought by the plaintiff was ill-founded or brought for purposes of harassment, the plaintiff shall be liable for court costs and reasonable attorney’s fees incurred by the defendant.”
      * * * * *


text:
    Curtis Charles VON HORN, Appellant, v. The STATE of Florida, Appellee.
    No. 74-1384.
    District Court of Appeal of Florida, Third District.
    April 6, 1976.
    Rehearing Denied July 6, 1976.
    Phillip A. Hubbart, Public Defender and Elliott H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., Ira N. Loewy, Asst. Atty. Gen. and Steven Ginsburg, Legal Intern, for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

The defendant, Curtis Charles Von Horn, was indicted for the first degree murder of one Lois Long, by strangulation with his hands. He was tried by jury, found guilty of first degree murder and sentenced to life imprisonment in the state penitentiary.

The record reflects that at or around midnight on July 9, 1973, officers of the Dade County Public Safety Department were summoned to the scene of a murder at the request of Curtis Charles Von Horn. Von Horn gave his account of the crime to the police officers at the scene, and at 8:10 A.M., on the morning of July 9, 1973, he gave a formal statement at the Public Safety Department. The statement is paraphrased herein as follows:

While working as a security guard for a shoe store on the night of July 8, 1973, Von Horn had been to the Top Banana Store on South Dixie Highway at 121st Street at approximately 10:00 P.M. to buy cigarettes and beer. Lois Long, an employee of Top Banana, was in the store at that time. After making his purchases, Von Horn went back to his place of employment. He observed a Volkswagen drive around the parking lot by the store at about 10:30 P.M. At about 11:05 P.M., he heard a woman scream. He armed himself with a small knife and proceeded toward the store. Approximately 10 feet away, he observed a white male and a black male “bringing Lois out of the store, bodily.” Both men were carrying lead pipes, and when Von Horn approached them, he became engaged in a fight with the white male. (Von Horn stated that he could positively identify the the black male.) He was possibly rendered unconscious for a brief time, and upon recovering, found his glasses on the ground, with one lens missing. He then went into the Top Banana Store, picked up a flashlight and some batteries, and attempted to flag down a car.

When the first police officer arrived at the scene, Von Horn gave him this account of the crime. Von Horn’s formal statement, which he agreed was given of his own free will, included a detailed description of the two assailants. Von Horn consented to be photographed, fingerprinted and was given photographs to look at. He was able to select one photograph as the black male he said he could identify. Later that same morning, while Von Horn was still at the Public Safety Department, it was determined that he was a suspect rather than a witness-victim, and at about 10:45 Von Horn was advised of his constitutional rights. He executed a waiver of those rights and following more questioning, gave a full confession to the crime.

Prior to trial, Von Horn filed a motion to suppress in the trial court, in which he alleged that the confession was made involuntarily and in violation of his constitutional rights. At the hearing on the motion to suppress, Von Horn testified that the first patrolman arrived on the scene at approximately 12:00 midnight. He gave the patrolman the exculpatory statement about the two supposed assailants who dragged Lois out of the store and then attacked him. Later, when Detective McGowan arrived on the scene, he gave McGowan the same verbal statement. Von Horn was subsequently taken to the Public Safety Department “for further questioning,” and was questioned by “approximately about seven of them or eight.” He testified that he gave permission for the police to search his car, take his clothes, a blood sample and photographs. He was then asked to look at photographs in a mug file. When asked if he was under arrest at that time, Von Horn stated that he was to be questioned as a witness. He stated that between 12 midnight and 10:45 the next morning when he was advised of his rights, he was required to give about ten statements ; he was not asked if he wanted to go home; he was not informed that he could leave and come back to give a statement; he was not allowed to make a phone call; he was not offered anything to eat or drink, and he further stated that he had not slept or eaten since around 6:00 P.M., the evening before. When asked why he confessed, Von Horn stated, “I figured they were keeping me there forever, the way they were treating me.” He also stated, “they said they had, I believe three witnesses. They were telling me all kinds of things, messing my head up. At the time, I was afraid.” When asked if the police knew of his past (a prior arrest for rape), he replied affirmatively that before he confessed, Detective McGowan “was sitting in front of me with the folder.” The confession given at approximately 10:45 A.M., was the first time Von Horn admitted perpetrating the crime. All other statements were exculpatory and given as a witness. Inquiry was made as to signing a waiver of (Miranda) rights. Von Horn said, he signed “In order to get out of there, I was scared.”

At the conclusion of Von Horn’s testimony, the State called Detective McGowan, who testified that he arrived at the scene at around 1:30 A.M., at which time he initially interviewed Von Horn. Von Horn gave a brief oral statement that he was a witness to and victim of the crime. McGowan asked Von Horn to go to the station to give a formal statement and to look at photographs. McGowan testified that at around 4:00 or 4:30 A.M., Von Horn was taken in a police car to the Public Safety Department. McGowan arrived at the Public Safety Department at 6:30 A.M., and upon questioning, Von Horn gave the same statement as before but with more details. At 8:10 A.M., a formal statement was taken from Von Horn. It was basically the same as that given at the scene. McGowan stated he had no reason not to believe it. He testified that Von Horn was fingerprinted and photographed “for the purpose of elimination.” At approximately 10:45 A.M., Von Horn was advised that he was a suspect. He was advised of his rights and signed a constitutional waiver form. He was questioned again. Detective McGowan stated that Von Horn stuck to his original story at first, but then he started to break down crying and confessed. McGowan testified that Von Horn was not beaten, subjected to physical violence, coerced, threatened or promised reward, and that at some time (although he could not give the exact time or even whether it was before or after the 10:45 confession) he personally brought Von Horn a sandwich and a coke. McGowan later testified that he did not know the last time Von Horn ate or slept before making his confession at 10:45. McGowan stated that before 10:45 Von Horn was not a suspect but he did not advise him that he could leave the building, make a phone call or go home.

The State then called Lt. Fowler who testified that he talked to Von Horn at around 5:00 A.M. to request permission to take his clothing. Permission was given without coercion, physical violence or hope of reward. At that time, Fowler was not aware of Von Horn’s background. When he later did become aware of it, Fowler discussed it with McGowan and “I suggested he reinterview him and advise him of his rights.” A third detective was called to testify, after which the court determined that argument was not necessary and ruled, “The motion is denied.”

During the course of Von Horn’s jury trial, following testimony that Von Horn signed the statement taken after the warnings were given, the waiver form was admitted into evidence, and the confession, which he gave at 12:05 P.M., on July 9, 1973, was then read into evidence. In the transcribed confession, Von Horn was re-advised of his Miranda rights. He stated that he was willing to answer questions and that he did not desire the presence of an attorney. The officer proceeded to ask Von Horn about the events of July 8, 1973. He stated that he had gone to the Top Banana Store to use the restroom and that while he was doing so, he heard Lois, the woman who worked at the store, ask if he was still inside. He replied that he was and as he prepared to leave the restroom, she came in and “started eyeing me.” He then described the events which transpired, including Lois’ sexual advances towards him and because of this, he took her outside and “proceeded to strangle her.” He then dragged her along the outside wall of the store and “began kicking her, stomping on her, doing everything. I knew from there . . . after about five minutes beating on her, then she was dead.” He got the flashlight and then observed a Volkswagen going past. Von Horn stated that he went into the store and “grabbed a beer”, putting the store keys in his pocket. He “was thinking of an alibi” that he could “make stick.” After observing a state trooper drive by, he observed the first police officer on the scene to whom he “proceeded to tell . . . the story” which he had “made up,” the exculpatory statement.

Von Horn signed the confession at the end and initialled every page. At the close of the statement he agreed that he had made his statement freely and voluntarily. (The detailed account of the murder given by Von Horn in his confession is confirmed by physical and chemical evidence.)

On cross-examination, Detective McGowan stated that the defendant broke down and started crying before he gave the above inculpatory statement. He also agreed that he had testified on deposition that the defendant’s first words after he broke down were:

“I had to do it. She was going to tell the police that I had intercourse with her.”

The thrust of Von Horn’s appeal is a three-pronged attack on the denial of his motion to suppress, and on the admission into evidence of the confession. The first and third points are that the confession was involuntary and, therefore, inadmissible, and that the confession was obtained in violation of Von Horn’s rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

The appellate court will not substitute its judgment for that of the trial court as to the voluntariness of confessions or admissions after the defendant has been advised of his constitutional rights. Barker v. State, Fla.App.1973, 271 So.2d 790, 792; Phillips v. State, Fla.App.1973, 284 So.2d 485, 486. A resolution of the issues as to the voluntariness of a confession is a job for the trial court, whose province it is to adjudge the credibility of the witnesses and the weight of the evidence. Barker v. State, supra. Where the record demonstrates that the defendant was informed adequately and fully of his Miranda rights prior to interrogation and made a knowing and intelligent waiver of his right to counsel, it is not error for the trial court to deny a motion to suppress a confession so obtained. See Phillips v. State, supra. Before a confession may be admitted as evidence, the prosecution has the burden of demonstrating that the defendant has been advised of the full range of his constitutional rights, as established in Miranda v. Arizona, supra. Woods v. State, Fla.App.1968, 211 So.2d 248, 250. Von Horn testified that he signed the confession and initialled each part of the constitutional rights waiver form. We have carefully reviewed all of the circumstances surrounding the giving of the statement and find that there is ample evidence that it was voluntary and that the trial court properly admitted it into evidence before the jury. See Young v. State, Fla.1962, 140 So.2d 97, 99; Foreman v. State, Fla.App.1968, 213 So.2d, 754. Furthermore, the procedure used by the police officers meets the standards prescribed by the Supreme Court of the United States in Miranda v. Arizona, supra. See Ashley v. State, Fla.1972, 265 So.2d 685. By his own admission, Von Horn was questioned not as a suspect, but only as a witness-victim until approximately 10:45 A.M. The statements which he gave prior to that time were made in response to questioning “which might normally be expected in the investigation of any crime.” Melero v. State, Fla.App.1975, 306 So.2d 603, 605. This court cannot make a subjective evaluation as to when the police officers should have begun to regard Von Horn as a suspect in light of the above facts.

The evidence shows that Von Horn was neither beaten, nor subjected to physical violence, nor threatened, coerced or promised a reward. Von Horn was afforded a hearing on his motion to suppress out of the presence of the jury. At the conclusion of the hearing, the court denied the motion, and thus made a determination as to its voluntariness. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908. There was competent, substantial evidence on which the trial court based its denial of the motion to suppress, thus finding vol-untariness and compliance with Von Horn’s Miranda rights.

Von Horn’s second point is that the trial court failed to make a specific finding of voluntariness. In determining this question, we adopt the language of Wilson v. State, Fla.1974, 304 So.2d 119, 120:

“Under the circumstances advanced for review, we can only conclude that the trial judge correctly determined that the confession was ‘voluntary’ by virtue of his denial of appellant’s motion to suppress.
Also, review of the record as a whole in this cause deems it unnecessary to relinquish jurisdiction to the trial court for a specific finding and/or ruling on this issue of voluntariness.”

The other points raised on appeal are without merit and will not be discussed.

Accordingly, the judgment of conviction and sentence is affirmed.


author: PEARSON, Judge.

text:
    CITY OF MIAMI BEACH, a Florida Municipal Corporation, and Elaine Matthews, City Clerk, City of Miami Beach, Florida, Appellants, v. MR. SAMUEL’S, INC., a Florida Corporation, Appellee.
    No. 75-816.
    District Court of Appeal of Florida, Third District.
    April 6, 1976.
    Rehearing Denied July 6, 1976.
    Joseph A. Wanick, City Atty., Miami Beach, for appellants.
    Moran & Gold, Miami, for appellee.
    Before BARKDULL, C. J., and PEARSON, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PEARSON, Judge.

The City of Miami Beach was the respondent to a petition for mandamus brought by Mr. Samuel’s, Inc., seeking an order requiring the City to issue to the petitioner a pawnbroker’s license for the pawning of jewelry. The City appeals a final judgment issuing the peremptory writ. We affirm.

The City provides for pawnbrokers’ licenses and sets the fee for such licenses. The zoning ordinance does not, by its expressed terms, mention pawnbrokers in any zoning classification. Mr, Samuel’s, Inc., applied for the license in a “C-4” zone which is described in the ordinance: “A. DISTRICT PURPOSE. This District is designed to accommodate a highly concentrated business core, in which businesses serving all residents and visitors of the City are located.” It is also provided that all businesses permitted in C-l, C-2 or C-3 are allowed in C-4. The only remaining business classifications are C-S and C-6. C-S permits “high density residential, retail, and light and heavy service commercial development.” C-6 is entitled “Intensive Commerical District.”

The trial court found that “it affirmatively appears that (1) the Respondents’ refusal to issue Petitioner the aforesaid license is arbitrary, unreasonable and unjust, and (2) the Petitioner has no other plain, speedy and adequate remedy at law . . .” It, thereupon, ordered the issuance of the preemptory writ.

The appellant argues that the issuance of the writ was error for two reasons: First, the City says that because the merchant, upon advice of the City Attorney, applied for and received a hearing before the City Council on his application, he. should be limited to a review of the City Council’s action by certiorari. Second, the City says that because pawnbrokers are not specifically listed by its zoning ordinance in any business district, the City has the discretion of where to put pawnbrokers and, therefore, that the issuance of a pawnbrokers’ license is a discretionary act for which mandamus will not issue. We hold neither position presents error on this record.

If, as the trial judge found and we now hold, the City had a clear legal duty to issue the license upon application, then the application to the City Commission does not convert an administrative duty to a quasi-judicial act. See DeGroot v. Sheffield, Fla.1957, 95 So.2d 912; and Harris v. Goff, Fla.App.1963, 151 So.2d 642.

The failure of the City to list in its zoning ordinance a particular lawful business in any business zone does not obviate its duty to issue a license when the application seeks to locate that business in a clearly applicable zone. A fair reading of the City’s zoning ordinance shows that, based on the service businesses enumerated, encompassed therein is the contemplated business of Mr. Samuel’s, Inc. The only possible question would be whether the business is not also allowed in C-l, C-2 and C-3, all of the uses of which are included in C-4. That question is immaterial to the duty to issue the license for a lawful business in the most liberal zone where petitioner applied. Cf. lohnson v. Alexander, Fla.App.1969, 219 So.2d 66.

Affirmed.


text:
    SILVER BLUE LAKE APTS., NO. 3, INC., Appellants, v. Alex MANSON and Carolyn Manson, his wife, Appellees.
    No. 75-716.
    District Court of Appeal of Florida, Third District.
    May 25, 1976.
    Rehearing Denied July 9, 1976.

      Fine & Brownstein, Miami, for appellants.
    Williams, Solomon, Kanner & Damian, Miami, for appellees.
    Before PEARSON and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The sole question remaining to be determined in this appeal is that raised by the cross-assignment of error directed to the court’s refusal to allow attorney’s fees to the defendant in the trial court.

The defendant was brought into court to defend a declaratory judgment action in which the plaintiff sought a judgment interpreting a provision of a lease providing for the payment of rents on a percentage basis wherein the defendant was the lessee and the plaintiff was the lessor. The defendant landlord claimed rents according to the terms of the lease. The plaintiff claimed the right to use certain parts of the property for other than rental purposes. The final judgment entered required the payment of rents according to the provisions of the lease except as to one portion of the property which the court allowed to be used for other than rental purposes. There is no doubt that, under the circumstances of this case, the defendant was the prevailing party.

The provision in the lease for payment of attorney’s fees is as follows:

“If at any time, by reason of the failure of the Lessee to keep and perform any covenant or agreement which, under the terms of this lease, the Lessee is bound and obligated to keep and perform, it becomes necessary for the Lessor to employ an Attorney-at-Law to protect the rights and interest of the Lessor in the property demised or to enforce the lease or proceed under it in any particular, then, in any of such events, the Lessee will owe and will pay unto the Lessor all costs of court and reasonable Attorney’s fees incurred or expended by the Lessor in taking such actions; and, correspondingly, if by reason of the default of the Lessor in the performance of any of the Lessor’s obligations hereunder it becomes necessary for the Lessee to employ an Attorney to enforce the Lessee’s rights accruing by reason of or in connection with the Lessor’s default, the Lessor will owe and will pay to the Lessee all costs of court and reasonable Attorney’s fees incurred or expended by the Lessee in enforcing such rights of the Lessee.”
******

We hold that the denial of attorney’s fees, where the defendant in a declaratory judgment proceeding prevailed and secured a judgment enforcing the terms of the lease, was an infringement of the terms of contract between the parties. See the rule in Tamiami Abstract & Title Co. v. Malanka, Fla.App. 1966, 185 So.2d 493.

Accordingly, the order denying attorney’s fees to the defendant Manson is reversed and the cause is remanded with directions to set the fee to be allowed in accordance with the terms of the contract.

Reversed and remanded.


text:
    PALM BEACH NEWSPAPERS, INC., a Florida Corporation, et al., Appellants, v. Lloyd F. EARLY, Appellee.
    Nos. 75-116 and 74-1729.
    District Court of Appeal of Florida, Fourth District.
    April 23, 1976.
    Rehearing- Denied June 2, 1976.
    Harold B. Wahl, of Wahl & Gabel, Jacksonville, Cecil H. Albury, of Brennan, McAliley, Albury & Hayskar, West Palm Beach, and John F. Law, North Palm Beach, for appellants.
    Joseph D. Farish, Jr., of Farish & Farish, West Palm Beach, for appellee.
   PER CURIAM.

Lloyd F. Early, the elected County Superintendent of Public Instruction of Palm Beach County, brought an action for libel against Palm Beach Newspapers, Inc., the publisher of two daily newspapers, and certain members of the editorial and news staff of those two newspapers. A jury verdict awarded Early a total of $1,000,000 in compensatory and punitive damages, and from the judgment entered thereon the defendants have appealed. This is Case No. 74-1729. The trial had been delayed for nearly two years while defendants sought certiorari review of an order requiring the corporate defendant to disclose certain financial information. Defendants had posted a bond conditioned to pay all costs and damages occasioned by the delay. Subsequent to verdict and final judgment, plaintiff sought to recover on the bond asserting entitlement to two years’ interest on the judgment as his damages for the delay. The postjudgment order denying plaintiff’s motion and granting the defendants’ motion to discharge the bond is the subject of an interlocutory appeal, Case No. 75-116. We affirm the latter order, and, for reasons hereafter set forth, reverse the judgment in Case No. 74 — 1729.

At all times material to this cause of ac' tion, Lloyd F. Early was a public official. The corporate defendant published two daily newspapers in Palm Beach County, the Palm Beach Post, a morning paper, and the Palm Beach Times, an evening paper. Defendants-Favre and Sawyer were editor and reporter respectively for the Post, defendants-Kirkpatrick and Arpe editor and reporter respectively for the Times. Both papers, through their respective editorial and news staffs, embarked upon a concerted campaign admittedly designed to bring about the removal of Mr. Early from his elected position. In pursuance of this objective, the defendants published over a period of approximately fourteen months several hundred news articles and editorials, all of which were generally hostile to or critical of Early and many of which were of a defamatory nature.

Although the defendant/appellants have raised a number of points on this appeal, we find merit only as to those relating to (1) the sufficiency of the evidence, (2) the correctness of certain jury instructions, and (3) the gross excessiveness of the verdict. However, because we conclude that the evidence is legally insufficient to sustain the verdict and the judgment entered thereon, we dispose of the case on that point alone, making it unnecessary to discuss the remaining meritorious points.

This case is governed squarely by New York Times Company v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) and its progeny. In the New York Times case, the court defined a constitutional privilege intended to free criticism of public officials from the restraints imposed by the common law of defamation:

“The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”
(376 U.S. at 279-80, 84 S.Ct. at 726)

This standard, applicable to appellee— Lloyd F. Early as a public officer, has been explicated in later cases. In Garrison v. Louisiana, 379 U.S. 64, it was said, at 74, 85 S.Ct. 209, at 216, 13 L.Ed.2d 125 (1964) “only those false statements made with the high degree of awareness of their probable falsity demanded by New York Times may be the subject of either civil or criminal sanctions.” As stated in a footnote in Gertz v. Robert Welsh, Inc., 418 U.S. 323, footnote 6 at 334, 94 S.Ct. 2997, at 3004,41 L.Ed.2d 789 (1974):

“In St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262 (1968), the Court equated reckless disregard of the truth with subjective awareness of probable falsity: ‘There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.’ ”

Malice in the traditional common law sense of sinister or corrupt motive such as hatred, ill will, spite, enmity or a wanton desire to injure has been distinguished from actual malice as employed in the New York Times standard relating to a public official — knowledge of falsity or reckless disregard of the truth. See, Beckley Newspapers Corp. v. Hanks, 389 U.S. 81, 88 S.Ct. 197, 19 L.Ed.2d 248 (1967); Garrison v. Louisiana, supra; Henry v. Collins, 380 U.S. 356, 85 S.Ct. 992, 13 L.Ed.2d 892 (1965); Rosenblatt v. Baer, 383 U.S. 75, 84, 86 S.Ct. 669, 15 L.Ed.2d 597 (1966); Greenbelt Cooperative Publishing Ass’n, Inc. v. Bresler, 398 U.S. 6, 9-11, 90 S.Ct. 1537, 26 L.Ed.2d 6 (1970). Additionally, it has been stated that those who hold governmental office may recover for injury to reputation only on clear and convincing proof that the defamatory falsehood was made with knowledge of its falsity or with reckless disregard for the truth. Gertz v. Robert Welsh, Inc., supra, 418 U.S. at 342, 94 S.Ct. 2997.

The Gertz case, supra, also made clear that the defamatory falsehood referred to in the New York Times standard refers to a statement of fact as opposed to pure comment or opinion:

“We begin with the common ground. Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas. But there is no constitutional value in false statements of fact.” (418 U.S. at 339-40, 94 S.Ct. at 3007)

It thus appears that under the present state of the law concerning an action for libel by a public official, the plaintiff has the burden of showing by clear and convincing evidence that the defamatory statement was (1) a statement of fact, (2)which was false, and (3) made with “actual malice” — that is, with knowledge that it was false or with reckless disregard of whether it was false or not. We conclude from our examination of the briefs and those portions of the record to which our attention has been directed, that the plaintiff/appellee did not meet that burden as is illustrated by the following sampling of the various articles of which plaintiff complained.

Plaintiff/appellee complained that the defendants characterized his tenure in office as unsuccessful, and stated that he was unfit to hold the office of Superintendent of Public Instruction because of his ineptness, incompetence and indecisiveness. All of these charges were clearly matters of opinion, not statements of fact, and were proper subject of comment on a public official’s fitness for office.

Plaintiff/appellee complained that defendants accused him of cheating and stealing from the public and that he had his “fingers in the pot.” A charge of cheating or stealing, if false and made with knowledge of such falsity or with reckless disregard for the truth thereof, would certainly be beyond the constitutional privilege established by the New York Times standard. However, in proper context the statements which defendants actually made do not carry the implication suggested by plaintiff. The first article referred to an editorial in which the newspaper asserted that the public and the school board had been cheated by Mr. Early’s lack of leadership, while the second article stated in an editorial that “Mr. Below sits on the sideline doing what he can when Mr. Early’s fingers aren’t in the pot” — implying, not thievery, but incompetent intervention in the operation of the school system. Taken in proper context, no reader of the newspaper articles could have thought that the newspaper was charging Early with the commission of any criminal offense. Cf. Greenbelt Cooperative Publishing Ass’n, Inc. v. Bresler, supra.

Many of the written articles and cartoons, caustic and pejorative as they were, nonetheless had a basis in fact and thus were not false: defendants reported that the school board had stripped Mr. Early of his power (on that occasion plaintiff had been directed by a majority of the five-member school board to let the Deputy Superintendent, Mr. Below, run the system) ; defendants described plaintiff, a holder of two Masters Degrees in education, as a “former trucker” (but by Mr. Early’s own admission he had at one time worked for a small trucking firm) ; defendants published an article stating that plaintiff had made improper use of an educational TV system by making a speech to school employees in which he defended himself against his critics (but such use was contrary to regulation and Mr. Early was criticized in this respect by some members of the school board and by the State Superintendent of Public Instruction); defendants reported that plaintiff planned to fire four hundred members of the instructional staff and a cartoon depicted plaintiff chopping off heads while surrounded by Lizzy Borden, Henry VIII, and Jack the Ripper (but this is more a matter of semantics since, at the school board meeting from which these matters originated, plaintiff had submitted a plan for cutting down by approximately four hundred the number of new teachers to be hired in the next year and at that meeting one of the school board members had himself suggested that the action compared with that of Lizzy Borden, Henry VIII and Jack the Ripper) ; defendants reported that plaintiff was seeking a position with the federal government (and in fact Mr. Early had submitted an application for such a position).

A series of articles accused plaintiff of nepotism. They dealt with employment of plaintiff’s wife, a registered nurse, in the school system. She had been so employed before Mr. Early came to office and thus in this sense the charge was false. However the series of articles relative to this matter were based primarily on information furnished by the then chairman of the school board, who had told defendants that he assumed plaintiff had recommended his wife for the school position since he, the school board chairman, had been informed that the plaintiff’s predecessor had not recommended Mrs. Early for her part-time job with the school system. There was no evidence to show that the defendants had accused plaintiff of nepotism with knowledge of the falsity of the charge or with a high degree of awareness of its probable falsity. There was, at the most, only proof of defendants’ failure to investigate, which without more, cannot establish reckless disregard for the truth. Gertz v. Robert Welsh, Inc., supra, at 332, 94 S.Ct. 2997.

Most of the articles and cartoons would fall in the category of what the courts have chosen to call “rhetorical hyperbole” or “the conventional give and take in our economic and political controversies.” In this category were statements to the effect that public confidence in the school system was eroding, that the public was clamoring for new leadership in the school system, that plaintiff enjoyed TV and news exposure, that plaintiff had not, prior to his election, held an administrative position in the school system higher than acting principal, and such cartoons as depicted the school buildings falling down or crumbling under plaintiff’s leadership, as typical examples.

We do not here attempt to discuss or classify more than a smattering of the several hundred derogatory articles and cartoons which defendants published of and concerning plaintiff. Suffice it to say that while most of the articles and cartoons can fairly be described as slanted, mean, vicious, and substantially below the level of objectivity that one would expect of responsible journalism, there is no evidence called to our attention which clearly and convincingly demonstrates that a single one of the articles was a false statement of fact made with actual malice as defined in the New York Times case. We thus con-elude that the defendants’ motion for a directed verdict at the close of the evidence should have been granted by the trial court. The judgment is therefore reversed and the cause remanded with directions to enter a judgment in favor of the defendants.

REVERSED and REMANDED.

WALDEN, C. J., OWEN, J., and STRAWN, DAVID U., Associate Judge, concur.


author: OWEN, Judge. MAGER, Judge

text:
    STATE of Florida ex rel. Cynthia M. PEARSON, Relator, v. The Honorable W. Clayton JOHNSON, Circuit Judge of the Seventeenth Judicial Circuit of Florida, IN AND FOR BROWARD COUNTY, and Harry L. Pearson, Jr., Respondents.
    No. 76-335.
    District Court of Appeal of Florida, Fourth District.
    April 30, 1976.
    Rehearing Denied June 2, 1976.
    Harry G. Carratt, of Morgan, Carratt & O’Connor, P.A., Fort Lauderdale, for relator.
    Neal R. Kalis of Shaffner & Shaffner, Fort Lauderdale, for respondents.
   OWEN, Judge.

A suggestion for writ of prohibition was filed as an original proceeding accompanied by supporting brief as required by Rule 4.5(d)(1) F.A.R. Having issued a rule directed to respondent and having now considered respondent’s return and brief and relator’s reply brief, we conclude that the rule was improvidentl'y entered and that the suggestion for writ of prohibition should be denied.

The suggestion, filed here on February 23, 1976, alleged in substance that respondent was acting in excess of his power, jurisdiction and authority in that, unless prohibited, he would on the 8 day of March, 1976, hold petitioner in contempt and impose certain sanctions against her, for her failure to comply with an order of the court of January 15, 1976, wherein petitioner had been ordered to execute and deliver to her former husband a quit-claim deed conveying to him her interest in certain real property in Lee County, Florida. The suggestion further alleged: that the marriage of petitioner and her former husband had been dissolved by final judgment entered June 26, 1974; that the judgment had incorporated therein the provisions of a property settlement agreement between petitioner and her former husband, the terms of which required petitioner to quit claim to her husband all real property then titled in his name alone; that said judgment had not been appealed and had since become final; that the real property which the court, in its order of January 15, 1976, had required petitioner to convey to her former husband was titled in the name of both petitioner and her former husband jointly; and that such property was not required by the property settlement agreement or the final judgment to be conveyed by her to her former husband.

The court’s order of January 15, 1976, was entered on the former husband’s motion for an order enforcing the final judgment. The court has inherent power to enforce its orders and judgments, the procedure for which is prescribed by Rule 1.570 RCP. In exercising its power and authority to enforce its judgment, the court may commit error in its ruling, and still not be acting without or in excess of its power. Essentially, petitioner’s claim here is that the trial court has erroneously construed the unambiguous language of the property settlement agreement so as to require petitioner to convey real property which the parties by their agreement did not require of her. If the court did err as contended by petitioner, a point we do not decide, any such error was reviewable by appeal from the order of January 15, 1976. But error or not, the court clearly had the power and jurisdiction to order enforcement of the judgment and having done so, had the power and jurisdiction to hold petitioner in contempt for her failure to comply with such order. The function of prohibition is not to correct error or act as a substitute for appeal, but solely to prohibit a court from acting without or in excess of its jurisdiction. See, 25 Fla.Jur., Prohibition, § 1 et seq. (1959). That is not the case here and the writ is therefore denied.

The court’s order of January 15, 1976, provided that it would itself act as the conveyance if petitioner failed, within ten days thereof, to comply. We note, purely as dicta, that with the order being self-executing in this respect, there appears to be a serious question as to whether petitioner’s failure to comply would properly subject her to contempt.

Writ DENIED.

DOWNEY, J., concurs.

MAGER, J., dissents, with opinion.

MAGER, Judge

(dissenting).

Although the relator and respondent have not addressed themselves to the issue of the availability and propriety of relief by prohibition, it is clear from the nature of the order and the relief sought that prohibition is not the proper remedy. Chapman v. Rose, 295 So.2d 667 (Fla.App.2d 1974); State ex rel. Shatter v. Booher, 241 So.2d 720 (Fla.App.4th 1970). To that extent I concur with the views expressed in the majority opinion. However, inasmuch as it appears that the relator has sought review by an improvident remedy it would seem to me that this court is authorized and should elect to treat the petition for prohibition as a petition for certiorari within the spirit and intent of sec. 2(a), Article V, Constitution of Florida, which provides in part, “no cause shall be dismissed because an improper remedy has been sought.” See State ex rel. Miami Herald Pub. Co. v. McIntosh, 322 So.2d 544 (Fla.1975). It further appears to me that the instant petition would be timely because the order sought to be reviewed was a final order which was properly stayed for appellate purposes by the filing below of a motion for rehearing. Therefore, I would respectfully dissent from a dismissal of this cause and would proceed by way of certiorari so as to afford the relator a review on the merits.


text:
    OCEAN MILE LTD., Appellant, v. Willard WALKER, Appellee.
    No. Z-380.
    District Court of Appeal of Florida, First District.
    June 24, 1976.
    Charles Tindell, Elliott, Tindell & Gehr-is, Daytona Beach, for appellant.
    Paul R. Stern, Stern & LaRue, Daytona Beach, for appellee.
   PER CURIAM.

This is an appeal from an order granting appellee’s motion for summary judgment and denying appellant’s motion for summary judgment. Upon considering the record, the briefs, the order appealed from and the oral arguments of counsel, we find that there were unresolved material issues of fact as to whether or not appellee and Robert Mann agreed that Robert Mann would put together or produce any group to purchase the property or that he himself would be one of a group of persons who would purchase the property.

Reversed and remanded for further proceedings.

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


author: WALDEN, Chief Judge.

text:
    STATE of Florida ex rel. John L. GADSON, Relator, v. Honorable Robert W. TYSON, Jr., Judge of the Circuit Court of Broward County, Florida, Criminal Division, Respondent.
    No. 76-509.
    District Court of Appeal of Florida, Fourth District.
    June 18, 1976.

      Warner S. Olds, Public Defender, and William W. Herring, Asst. Public Defender, Fort Lauderdale, for relator.
    Robert W. Tyson, Jr., Fort Lauderdale, and Basil S. Diamond, Dept, of Legal Affairs, West Palm Beach, for respondent.
   WALDEN, Chief Judge.

This is a Suggestion of a Writ of Prohibition.

Relator is charged with a felony. He claims that he is entitled to the issuance of the Writ to prohibit his prosecution. It is based upon the state’s alleged failure to accord him a speedy trial under the provisions of F.R.Cr.P. 3.191.

The relevant dates are:

1. August 22, 1975, defendant taken into custody.
2. October 14, 1975, first trial date, defendant granted continuance.
3. November 12, 1975, second trial date, state granted a continuance.
4. January 8, 1976, third trial date, Court continuance.
5. February 11, 1976, defendant filed a motion for discharge, which was denied.

In his Suggestion the defendant contends that F.R.Cr.P. 3.191(d)(3), as interpreted by Negron v. State, 306 So.2d 104 (Fla.1975), demonstrates that the trial court is without jurisdiction. Defendant argues that he had to be brought to trial within ninety days of November 12, 1975, the date upon which his last request for a continuance expired; when he filed his motion for discharge on February 11, 1976, ninety-one days had passed since the expiration of his last requested continuance and, therefore, he should have been discharged. We hold this contention to be erroneous.

F.R.Cr.P. 3.191(d)(3) provides:

“Continuance-, Effect on Motion
“If trial of the accused does not commence within the periods of time established by this rule, a pending motion for discharge shall be granted by the court unless it is shown that (i) a time extension has been ordered as provided in § (d)(2), or (ii) the failure to hold trial is due to the unexcused actions or unexcused decisions of the accused, or of a co-defendant in the same trial. If a continuance or delay is attributable to the accused and is not excused, the pending motion for discharge shall on motion by the State be voidable by the court in the interests of justice; provided, however, trial shall be scheduled and commence within 90 days.” (Emphasis supplied.)

The defendant’s interpretation of the provision would mean that a defendant, without filing a demand for speedy trial, could shorten the 180 day period by requesting a continuance and moving for discharge ninety-one days thereafter. A reading of F.R.Cr.P. 3.191(d)(3) shows that the 90 day period within which a defendant must be brought to trial does not begin to run until a motion for discharge has been denied. Coppola v. State, 318 So.2d 181 (2d DCA Fla.1975):

“In Negron v. State, Fla. 1974, 306 So.2d 104, the Supreme Court held that a four and one-half month delay in going to trial following a continuance obtained by the state violated the accused’s right to a speedy trial. Some of the language of this opinion is susceptible to the interpretation that once a continuance has been granted at the request of the defendant, the provisions of Rule 3.-191(d)(3) RCrP, nevertheless, require him to be brought to trial within 90 days. However, as we read this rule, it comes into play after a motion for discharge has been filed. See State ex rel. Butler v. Cullen, Fla.1971, 253 So.2d 861. In the case sub judice, since the trial occurred within a few days within the filing of the motion for discharge, the 90-day provision of Rule 3.191(d)(3) RCrP was inapplicable. Yet, we wholeheartedly agree that even though the accused has filed for a continuance, which is granted, he is still entitled to a speedy trial under Section 16, Article I, Declaration of Rights of the Florida Constitution, F.S.A. If he is not accorded a speedy trial under Section 16 he should be discharged.” (Emphasis supplied.)

We hold that defendant’s contention that he had to be brought to trial within ninety days of the last continuance he requested is erroneous for two reasons. First, the facts in Negron, 306 So.2d 104 (Fla.1974), are distinguishable and, therefore, not disposi-tive of the issue raised by the facts in the instant case. In Negron 180 days had elapsed since the defendant had moved for a continuance. Secondly, Negron relied on State ex rel. Butler v. Cullen, 253 So.2d 861 (Fla.1971), which is factually more aligned with the present case. The Butler court held that the 90 day period in F.R.Cr.P. 3.-191(d)(3) becomes operative when a motion for discharge is denied. The defendant then must be brought to trial within 90 days of the filing of that motion for discharge. We adopt this interpretation as the proper one.

It still must be determined if Relator was denied a speedy trial. When a defendant moves for and is granted a continuance the speedy trial time periods are no longer applicable, Butler, supra. Nevertheless, the defendant is still entitled to a speedy trial based on a review of the particular fact situation. We hold that Relator has not been denied a speedy trial in light of the time sequences mentioned.

In conclusion, we hold defendant’s motion for discharge was properly denied and the state has 90 days from the date the motion for discharge was filed to bring the defendant to trial.

All circumstances of the presentation considered, the Suggestion for Writ of Prohibition is

DENIED.

CROSS and DOWNEY, JJ., concur.


text:
    Marcelo TORRES, Appellant, v. Alexander C. MacINTYRE, Appellee.
    No. 75-1077.
    District Court of Appeal of Florida, Third District.
    June 2, 1976.
    Chopin & Chopin, Miami, for appellant.
    Adams, George, Wood, Lee & Schulte and Dewey H. Varner, Jr., Miami, for ap-pellee.
    Before BARKDULL, C. J., PEARSON, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Marcelo Torres is a tile subcontractor who did work in the construction of a house owned by Alexander MacIntyre. When he was not paid, Torres filed a claim of lien. His suit to foreclose the lien was decided against him because his “notice to the owner” pursuant to Fla.Stat. § 713.06(2) was served more than 45 days after Torres commenced his work. This appeal is from the judgment for the defendant owner.

Torres contracted with a general contractor, beginning his work on April 5, 1973, and completing it on May 29, 1973. He served his Notice of Intention to Claim a Lien on August 21, 1973, and on the same day filed his claim of lien. His suit to foreclose the lien was dismissed with prejudice.

The defendant owner did not pay the general contractor the full amount of the contract. On a date not disclosed by the record the owner discharged the contractor after having paid him $101,000.00 of the $129,000.00 contract price. The owner did not file a notice of “recommencing completion.”

The first question to be decided is whether a subcontractor’s failure to file the notice of intention to claim a lien within 45 days of lienor’s commencing to furnish his services or materials is an absolute bar to a claim of lien. We hold that it is not an absolute bar and that he may proceed unless it is shown that the owner has proceeded regularly in payments to the general contractor and that no part of the agreed contract price is unpaid. See Crane Co. v. Fine, Fla.1969, 221 So.2d 145; 1800 North Federal Corporation v. Westinghouse Electric Supply Company, Fla.App. 1969, 224 So.2d 384; and Melnick v. Reynolds Metals Company, Fla.App.1970, 230 So.2d 490.

This record requires a second determination concerning the burden of proceeding with the evidence of proper or improper payments to the general contractor. The lienor here urges that the record does not show proper payments to the general contractor. The owner, on the other hand, urges that the lienor has not shown that there is any money due on the contract because it was necessary for the owner to discharge the general contractor and complete the construction himself. The initial burden must of necessity be upon the lienor to show his performance of the statutory requirements of a lien. In order to do' this in a case where he has not properly served his notice of intention to claim lien, the lienor must show an uncompleted contract at the time that the owner received notice by the service of a late notice of intention or service of the claim of lien. We hold that this record shows that the lienor carried this initial burden.

On the other hand, the proper payment of all funds under the contract is a matter of defense. The owner has this burden. It has not been discharged here. There is to be taken into consideration the failure of the owner to file a notice of abandonment of the contract with the general contractor and the failure to show that payments to the general contractor up to that time were proper under the contract and the mechanic’s lien law. In addition, he must show that the payments made to complete the contract were necessary and proper.

Therefore, we hold that the trial judge erred in entering a final judgment for the owner upon the proofs in the record. We reverse and remand the cause with directions to take such further evidence as may be presented by the parties upon the issue stated herein and for such further proceedings as shall be necessary to enter a judgment in accordance with the views herein set forth.

Reversed and remanded with directions.

      . “(2) (a) All lienors under this section, except laborers, as a prerequisite to perfecting a lien under this chapter and recording a claim of lien, shall be required to serve a notice on the owner setting forth the lienor’s name and address, a description sufficient for identification of the real property, and the nature of the services or materials furnished or to be furnished. This notice must be served before commencing or not later than forty-five days from commencing to furnish his services or materials but in any event before the date of furnishing the affidavit under subsection (3) (d) 1., of this section, or abandonment, whichever shall occur first. The serving of this notice shall not dispense with recording the claim of lien. This notice shall not be deemed to constitute a lien, cloud or encumbrance on said real property nor actual or constructive notice of any of the same.”

      . “713.13 Notice of commencement
      “(1) An owner or his authorized agent before actually commencing to improve any real property, or recommencing completion of any improvement after default or abandonment, whether or not a project has a payment bond complying with § 713.23, shall record a notice of commencement in the clerk’s office and forthwith post a certified copy thereof containing the following information
      * * * * *


author: BARKDULL, Chief Judge.

text:
    STATE FARM FIRE AND CASUALTY COMPANY, a corporation authorized to do business in the State of Florida, Appellant, v. Fabian OSKIERKO and Carmen Oskierko, his wife, Appellees.
    No. 75-1110.
    District Court of Appeal of Florida, Third District.
    June 2, 1976.
    Rehearing Denied July 9, 1976.
    Fleming, O’Bryan & Fleming and Frank E. Maloney, Jr., and Paul R. Regensdorf, Ft. Lauderdale, for appellant.
    Underwood, Gillis, Karcher, Reinert & Gordon, Miami, for appellees.
    Before BARKDULL, C. J., HENDRY, J., and CHARLES CARROLL (Ret.), Associate Judge.
   BARKDULL, Chief Judge.

The defendant, State Farm Fire and Casualty Company, appeals from a $7,636.-67 final judgment for the plaintiffs, Fabian and Carmen Oskierko, after the latter received a partial summary judgment as to liability on a homeowners insurance claim.

Fabian and Carmen Oskierko took out a homeowner’s policy with State Farm; their new home in Goulds, Florida, was under construction at the time. On August 27, 1974, while Mr. Oskierko was away, thieves entered the home and stole, inter alia, appliances, a chestnut bedroom set, blue and gold drapes, and other items. The homeowner filed a claim and State Farm refused to pay, citing the following exclusion:

“This policy does not insure against loss * * * by theft in or to dwelling under construction or of materials or supplies therefor until completed and occupied’’ [emphasis supplied]

The homeowner sued and had partial summary judgment as to liability. A final judgment was entered on a stipulated amount of damages [$7,636.67] and the insurance company appealed.

The appellant contends that summary judgment was improper where issues remained as to whether the house was “completed and occupied”, and that it was error to tax costs for certain items such as depositions not used and mileage for witnesses who were never used.

There was no dispute as to the facts; both parties moved for summary judgment, and we find that the trial court did not err in concluding that the house was completed and occupied.

The house was being built by the appel-lee-husband as an owner-contractor. At the time of the theft, it was completed and capable of occupancy; in fact, it was being occupied by the husband at the time of the robbery. The exterior of the house was completed; all windows and doors were installed and capable of being secured by locks or by closing; the electrical work was completed, as was the plumbing. All appliances were installed, hooked up and capable of working; air conditioning was completed and operable. The inside of the house was completed, except for buffing the floors and some minor painting, neither of which would affect occupancy. The only unfinished governmental requirements were final inspection of electrical, mechanical and plumbing, and issuance of certificate of occupancy. The appellee-husband had, in fact, moved into the house and the appellees had moved a considerable amount of furnishings and personal effects into the house preparatory to the entire family moving into the premises. Therefore, for all practical purposes, the house was completed, except for the aforementioned inspections and the hooking up of the permanent electric, which is done only after the power company is notified by the County that all final inspections have been made.

The appellant contends that until the final inspections have been made and a certificate of occupancy is issued, a house is not completed and capable of being occupied. A house on which construction has been completed but has not had a final inspection is, in fact, completed. The inspection merely evidences the fact that the County has notice of completion of the work and has approved it. The inspection does not require further work to be done but, rather (as its name indicates), is final, meaning the work has been finished prior to the actual inspection. The mere fact that an interval of time elapses between completion of the construction and actual inspection does not render the construction incomplete. The appellant further attempts to show that because the final inspections were not, in fact, made until December of 1974 (some three months after the robbery) there is a clear inference that the house was not completed prior to the robbery. The fallacy of this argument is that the robbery necessitated replacement and repair of stolen and damaged items required for final inspection, which delayed that inspection.

We have also examined the point regarding the award of costs. The parties having awaited until the eve of trial for their motions for summary judgment hearing and the plaintiffs having expended sums in preparation for the trial (scheduled on the next working day), we find that the trial judge did not abuse his discretion in awarding these costs or awarding costs for the taking of the depositions, which were not a part of the file at the time of the summary judgment hearing.

Therefore, for the reasons above stated, the final judgment here under review be and the same is hereby affirmed.

Affirmed.

CHARLES CARROLL, Associate Judge, dissents.

      . It is recognized that just because both sides moved for summary judgment, the trial court is not required, to enter a summary judgment. Osceola County v. Goodman, Fla.App.1973, 276 So.2d 210; Lovelace v. Sobrino, Fla.App. 1973, 280 So.2d 514; Francis v. General Motors Corporation, Fla.App.1973, 287 So. 2d 146.


text:
    BOB RESTINA IMPORTS, INC., a Florida Corporation, Appellant, v. GLEN COVEY & ASSOCIATES, INC., a Florida Corporation, Appellee.
    No. 75-1191.
    District Court of Appeal of Florida, Third District.
    June 2, 1976.
    Kenneth A. Studstill, Titusville, for appellant.
    Male & Bloom and Barry N. Goldstein, Miami, for appellee.
    Before HAVERFIELD and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed on the authority of Jovanovich v. Aero-Tech, Inc., Fla.App. 1973, 277 So.2d 555; Famco Electric, Inc. v. Hernandez, Fla.App.1974, 293 So.2d 755.


author: CHARLES CARROLL, Associate Judge.

text:
    Audrey HANSON, as surviving spouse of Charles W. Hanson, Deceased, and Audrey Hanson, as Executrix of the Estate of Charles Walter Hanson, Deceased, Appellants, v. FLORIDA EAST COAST RAILWAY COMPANY, a Florida Corporation, and Harbor Insurance Company, Appellees.
    No. 75-1192.
    District Court of Appeal of Florida, Third District.
    June 2, 1976.

      Frates, Floyd, Pearson, Stewart, Proen-za & Richman, Miami, for appellants.
    Bolles, Goodwin, Ryskamp & Welcher, Miami, for appellees.
    Before HAVERFIELD and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   CHARLES CARROLL, Associate Judge.

The plaintiffs’ decedent suffered untimely death in a railway crossing accident involving collision of a train operated by the defendant railway company and an automobile driven by the decedent. The plaintiff executrix sought damages of $1,644.00, representing the amount of the funeral expenses. The decedent’s surviving spouse, Mrs. Hanson, as a plaintiff, sought damages based on the elements of damage allowable to her by law in such circumstance.

In the case as tried before a jury the evidence was such that it could be expected the triers of fact should find that both the defendant and the decedent-driver were guilty of negligence which in combination was the legal cause of the accident. The trial judge denied a request of the defendant to submit interrogatories to the jury for findings as to the percentages of negligence of the defendant and the decedent-driver. The jury returned a verdict which awarded to the executrix the full amount of the damages claimed of $1,644.00, and awarded to Mrs. Hanson as the plaintiff surviving spouse damages in the amount of $175,000.00. Judgment was entered on the verdict.

On defendant’s motion for a new trial the court ordered a remittitur of one-half of the total of the awards, with a grant of new trial in event of rejection of the re-mittitur by plaintiffs. As ground therefor the court stated:

“The Court finds that the jury verdict and Judgment entered thereon was unconscionable and not based upon the evidence, the Court being of the opinion, based upon the evidence and the law, that the decedent-driver was at least fifty per cent negligent and that there was no way for the jury to have found no negligence on the part of the decedent-driver; the verdict and Judgment entered thereon reflected total sums without reference to negligence on the part of the decedent-driver and thus such verdict and Final Judgment entered thereon is contrary to the law and evidence in this case; * * * ”

The plaintiffs appealed. Our review involves a consideration of whether the order for new trial was error, or is supportable, based on the grounds stated in the order. Section 59.07(4) Fla.Stat., F.S.A.; Knudsen v. Hanlan, 160 Fla. 566, 36 So.2d 192.

This case presents an unusual situation brought about by the doctrine of comparative negligence. The trial court appears to have concluded the jury failed to give the required effect to the negligence of the decedent-driver, in arriving at the amount of damages awarded. The only basis which appears for that conclusion was that the jury awarded the full amount of the damages allowable under the evidence on the claim of the executrix.

While the obvious failure of the jury to reduce the damages to the executrix by the amount which the negligence of the decedent-driver would require [which the trial judge considered to be fifty percent], there is no clear basis in the record to assume, from that circumstance, that the jury’s award of $175,000.00 to Mrs. Hanson as the surviving spouse did not involve an appropriate reduction, as instructed by the court, made necessary because of the negligence contributed by the decedent-driver.

On the contrary, the record furnishes reason to assume the jury properly so acted in arriving at the award of damages to Mrs. Hanson. In charging the jury with respect to the comparative negligence feature the court spoke only of the claim of “Mrs. Hanson”. The court referred to “the total amount of damages” of Mrs. Hanson, with no reference in this connection to reduction of the damages which should be awarded to the plaintiff-executrix. While Mrs. Hanson, who was claiming damages individually, also was the person who was the executrix, it is apparent from the charge as given, relating to comparative negligence, the jury may have considered it applied only to Mrs. Hanson’s claim. For example, included in the charge was a statement that the jury “should award Mrs. Hanson the total amount of damages sustained by her reduced in the same proportion that Mr. Hanson’s negligence contributed to his own loss and death”.

An examination of the closing arguments of the attorneys shows no basis to assume the jury award of $175,000.00 to Mrs. Hanson was not for an amount properly reduced upon consideration of the effect of the negligence of Mr. Hanson, as the jury was expressly instructed to do by the court.

If the attorney for the plaintiffs in argument, had represented or suggested $175,-000.00, or a figure in that area, as being the amount of damages which Mrs. Hanson was entitled to recover, then there would have been basis for the assumption made by the trial court. In the closing argument made by the attorney for the plaintiffs, little reference in dollars was made as to the damages. In the argument it was brought out that Mr. Hanson had earned $30,000.00 per year, and it was suggested by plaintiffs’ attorney that a verdict of $600,000.00 would be an amount that would compensate Mrs. Hanson for the damages to which she was entitled. In view thereof, it may more readily be assumed that the award of damages to Mrs. Hanson individually involved a reduction based on a found percentage of negligence of Mr. Hanson; and the fact that the jury gave full recovery to the plaintiff-executrix (either by mistake, or upon an understanding that they could do so) should not result in depriving the plaintiff Mrs. Hanson of the benefit of her jury award, in the circumstances of the case.

For the reasons stated, the remittitur-new trial order is reversed to the extent that it relates to the verdict award to the plaintiff Mrs. Hanson, individually, and the judgment which was entered in favor of the plaintiff Mrs. Hanson for the amount awarded to her individually by the verdict of the jury shall stand. We affirm the order appealed from to the extent that it orders a remittitur of one-half of the $1,644.00 awarded to the plaintiff-executrix. Any further proceedings on the latter feature of the case shall not affect the judgment which was entered in favor of Mrs. Hanson, individually.

It is so ordered.

      . “If the greater weight of the evidence does not support the defense raised by the railway company, and the greater weight of the evidence does support the claim of Mrs. Hanson, then your verdict should be for Mrs. Hanson in the total amount of the damages she has claimed. If, however, the greater weight of the evidence shows that both Mr. Hanson and the railway through its agents and employees were negligent, and that the negligence of each contributed as a legal cause to Mr. Hanson’s death, your verdict should be for Mrs. Hanson, and you should award Mrs. Hanson the total amount of damages sustained by her reduced in the same proportion that Mr. Hanson’s negligence contributed to his own loss and death.”


text:
    Anthony MANCINI, Jr., Appellant, v. The STATE of Florida, Appellee.
    No. 75-1198.
    District Court of Appeal of Florida, Third District.
    June 2, 1976.
    Rehearing Denied July 9, 1976.
    Stephen F. Bazzano, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Arthur Joel Berger, Asst. Atty. Gen., and Roy J. Kahn, Legal Intern, for appellee.
    Before BARKDULL, C. J., and HEN-DRY, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Appellant seeks reversal of his conviction of possession of a controlled substance for which he received a one-year sentence in the Dade County Stockade.

Appellant contends that the trial court erred, in admitting into evidence a plastic vial seized containing the contraband capsules, when the arresting officer testified that there was a different number and initials on the vial, although the vial appeared, otherwise, to be the same as the one seized.

We find no merit in appellant’s contention, inasmuch as, the parties entered into a pretrial stipulation as to the chain of custody from the time the incriminating evidence left the control of the arresting officer; and also as to the laboratory report defining the substance of the confiscated pills.

Our review of the evidence presented and the stipulation entered into convinces us that the trial court was correct in overruling the objections of the defendant to the admission of the exhibit in question and that the state made the required evi-dentiary showing to support the appellant’s conviction.

No reversible error having been shown, the judgment and sentence appealed are affirmed.

Affirmed.


text:
    Barry W. MUELLER, Petitioner, v. HARRY LEE MOTORS, Employer, and Florida Industrial Relations Commission, Dept. of Commerce, Respondents.
    No. 76-17.
    District Court of Appeal of Florida, Third District.
    June 2, 1976.
    John Lazarus and Gail Taft, legal intern, Legal Services of Greater Miami, Miami, for petitioner.
    James R. Parks, Miami, for respondents.
    Before BARKDULL, C. J„ and HAVER-FIELD and NATHAN, JJ.
   PER CURIAM.

Petitioner, Barry W. Mueller, by certio-rari seeks review of the denial of his claim for unemployment benefits.

On September 15, 1973 petitioner was hired by Harry Lee Motors to work a 44-hour week with overtime to be paid in excess of 44 hours. Upon telephoning the Bureau of Wages, he was informed that an employee is entitled to be paid overtime for the additional hours he works in excess of 40 hours per week. Petitioner attempted to discuss this issue with his boss, who refused and told petitioner if he was dissatisfied he could quit. Petitioner walked off the job and when he returned the next day, was informed that he had been replaced. After a hearing, petitioner’s claim for unemployment compensation was denied by the claims examiner. The denial was affirmed by the appeals referee and the Industrial Relations Commission.

The law is established that an employee who voluntarily leaves his employment for good cause is still entitled to unemployment compensation benefits. Wil liams v. Florida Industrial Commission, Fla. App.1961, 135 So.2d 435. Good cause must be one which would reasonably impel the average able-bodied qualified worker to give up his or her employment. Uniweld Products, Inc. v. Industrial Relations Commission, Fla.App.1973, 277 So.2d 827.

We conclude petitioner had the requisite good cause to terminate his employment in that he was not receiving overtime compensation for the additional four hours worked.

Certiorari is granted, order of denial is quashed and the cause is remanded for the entry of an order allowing petitioner benefits.

It is so ordered.


text:
    Larry SIMPSON, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1507.
    District Court of Appeal of Florida, Third District.
    June 2, 1976.
    Phillip A. Hubbart, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before HENDRY and HAVERFIELD, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See Hawkins v. State, Fla. App.1975, 312 So.2d 229.


text:
    Doris L. AURITT, Appellant, v. Louis AURITT, Appellee.
    No. 76-251.
    District Court of Appeal of Florida, Third District.
    June 22, 1976.

      Herbert A. Warren, Miami, for appellant.
    James Whitmore Miller, Coral Gables, for appellee.
    Before BARKDULL, C. J., and PEARSON and HAVERFIELD, JJ.
   PER CURIAM.

Respondent wife, Doris Auritt, appeals an order denying her motion to transfer venue to Pinellas County in this dissolution of marriage action brought by her husband, Louis, in Dade County.

Doris and Louis Auritt resided together in Tierra Verde, Pinellas County, Florida, and to the present maintain their marital residence there. Approximately seven years ago Louis was offered employment in Miami, moved here and leased an apartment. Doris refused to relocate and Louis made weekend visits to Tierra Verde. Gradually these visits grew less and less frequent. Doris in September 1975 then began to make harassing telephone calls to Louis in the early hours of the morning accusing him of keeping company with another woman. Louis filed a petition for dissolution of marriage in Dade County and Doris moved to dismiss for improper venue or in the alternative to transfer the cause to Pinellas County. After hearing, the chancellor denied the motion.

The following holding in Carroll v. Carroll, Fla.App.1975, 322 So.2d 53 is dispositive of the venue issue presented in this case:

“To protect the beneficial purposes of both the marriage dissolution legislation and the venue statute, we are required to look, not for the county or the scattered counties where the breach may be said to have occurred, but to the single county where the marriage last existed. In that county the intact marriage was last evidenced by a continuing union of partners who intended to remain and to remain married, indefinitely if not permanently.”

The marriage between Doris and Louis last existed in Pinellas County. The marital residence in which Doris resides and upon which Louis applied for and received each year a Homestead exemption is there. In addition, the Tierra Verde address has been listed by Louis on his federal tax returns and his driver’s license. Doris has never lived in or visited Dade County. Thus, the mere fact that Louis decided to seek a dissolution of marriage as a result of the harassing telephone calls has no significance in the resolution of the venue question. See Carroll, supra, at 56.

Accordingly, the order of denial is reversed and the cause remanded with directions to transfer the action to Pinellas County.

Reversed and remanded with directions.


text:
    Jack YANKS d/b/a Jack Yanks Construction Co., and Jack Yanks Construction Co., a Florida Corporation, Appellants, v. FERENDINO/GRAFTON/SPILLIS/CANDELA ARCHITECTS, ENGINEERS & PLANNERS, INC., Appellee.
    No. 76-54.
    District Court of Appeal of Florida, Third District.
    June 2, 1976.
    Rothenberg, Kogan, Kornblum & Benjamin, Miami, and Stephen Siegel, for appellants.
    Fowler, White, Burnett, Hurley, Banick & Knight, Miami, for appellee.

      Before PEARSON, HENDRY and HAVERFIELD, JJ.
   PER CURIAM.

Affirmed. See North Shore Hospital, Inc. v. Barber, Fla.1962, 143 So.2d 849; Imperial Industries, Inc., v. Moore Pipe & Sprinkler Co., Fla.App.1972, 261 So.2d 540; Renuart-Badey-Cheeley Lumber and Supply Co. v. Hall, Fla.App. 1972, 264 So.2d 84.