text:
    BANKS REAL ESTATE CORPORATION, Appellant, v. Robert GORDON and Lola Gordon Jacobson and Lola Jacobson and Dorothy Gordon as Co-executrices of the Estate of Maurice Gordon, Tibor Hollo and Sheila Hollo, his wife, Appellees.
    Nos. 76-1870, 76-1871.
    District Court of Appeal of Florida, Third District.
    Dec. 6, 1977.
    Rehearing Denied Jan. 16, 1978.
    Edward C. Vining, Jr., Miami, for appellant.
    Smathers & Thompson and Earl D. Wal-din, Jr., Miami, for appellees Gordon & Jacobson.
    Podhurst, Orseck & Parks, Miami, for ap-pellee Hollo.
    Before HENDRY, C. J., and NATHAN and HUBBART, JJ.
   PER CURIAM.

These are consolidated appeals brought by Banks Real Estate Corporation (Banks), a brokerage firm which had shown a property unsuccessfully to purchasers who ultimately did buy it. Another broker received a commission on the sale, Banks, plaintiff below, sued both the buyers and the sellers alleging causes of action on theories of breach of an employment contract, conspiracy to bypass plaintiff and deprive it of its commission, unjust enrichment, interference with a business relationship, and fraud.

After presentation of plaintiff’s case in a non-jury trial, the court ordered an involuntary dismissal with prejudice and entered final judgments in favor of defendants/ap-pellees. This appeal ensued. We agree with the trial court that, on the facts and the law, plaintiff has shown no right to relief, and affirm the decision below.

The dispute arose in the following manner. Banks was given an oral, non-exclusive listing by defendant Hollo on “Viscaya Towers” at a stated net price. Banks found several potential purchasers and submitted various proposals which were rejected by the seller as too low. Among the prospective purchasers were Maurice and Robert Gordon, father and son. Banks had previously sold real properties to Maurice Gordon wherein titles were taken in the names of Maurice’s children and their spouses. During the course of the dealings at issue in the instant case, the Gordons had made several offers, none of which, when presented by Banks, was acceptable to Hollo. In the late stages of their transactions, there was conversation between one of Banks’ salesmen and the Gordons to the effect that the latter might consider raising their offer, but Banks did not transmit this fact to Hollo.

Shortly after Banks produced its last purchase offer, another broker, Samuel Blair, obtained a non-exclusive oral listing of the same property from Hollo’s attorney, James Cohen. Blair also sought to interest the Gordons in the property. He did so through the Gordons’ attorney, Richard White. Initial negotiations between Blair and White were also non-productive. However, Cohen and White subsequently encountered each other on a plane trip and revived the negotiations. As a result, the property was purchased in the names of Gordon’s daughter and son. Blair received a small commission, and Banks notified defendants of its claim to a commission, subsequently filing the suit now under consideration.

Inyoluntary dismissal is proper after presentation of plaintiff’s case in a non-jury trial when, under the facts and the law, the party seeking affirmative relief has shown no right to relief. Fla.R.Civ.P. 1.420(b). In order to establish a right to relief, plaintiff must present a prima facie case as to the causes of action alleged. McKee v. Fairmont Homes, Inc., 155 So.2d 733 (Fla. 2d DCA 1963). See also Nelson v. Cravero Constructors, Inc., 117 So.2d 764 (Fla. 3d DCA 1960). Plaintiff is entitled to all reasonable inferences which can be drawn from the evidence presented.

Count I sought recovery of a brokerage commission from the seller under the theory that plaintiff had “produced” the ultimate purchaser. A broker is not entitled to a commission unless, at minimum, he produces a purchaser who is ready, willing and able to purchase under terms fixed by the seller. Judson v. Mobley, 62 So.2d 730 (Fla.1953); Leon Realty, Inc. v. Hough, 310 So.2d 767 (Fla. 1st DCA 1975). See also Knowles v. Henderson, 156 Fla. 31, 22 So.2d 384 (1945); Leon Realty, Inc. v. Bradwell, 271 So.2d 771 (Fla. 1st DCA 1973).

In order to be the procuring cause of the sale of property, the broker must have brought the parties together and effected the sale as a result of continuing negotiations inaugurated by him. Leon Realty, Inc. v. Hough, supra; National Airlines, Inc. v. Oscar E. Dooley Associates, Inc., 160 So.2d 53 (Fla. 3d DCA 1964); Dixson v. Kattel, 311 So.2d 827 (Fla. 3d DCA 1975). The evidence presented does not support a determination that Banks had produced a purchaser who was willing to meet the terms fixed by the seller nor that the sale was effected because of its continuing efforts. Therefore, Count I must fail.

Count II alleged that the parties had conspired to bypass plaintiff and deprive it of its commission. The count too must fail. Since plaintiff was not entitled to any commission, there can be no prima facie evidence of a conspiracy to deprive it of that to which it had no lawful claim.

Count III alleged unjust enrichment. In order to establish a prima facie case on this theory, plaintiff would have to have shown either the existence of an implied contract to pay him for his services in finding and negotiating with the ultimate purchasers, see Estes v. Moylan, 94 So.2d 362 (Fla.1957), or that he was the procuring factor in the sale. He did not do either. Therefore, this claim too must fail.

As to the final counts in interference with a business relationship and fraud, we are of the opinion that plaintiff did not present evidence establishing a prima facie case respecting either of them. See generally John B. Reid & Associates, Inc. v. Jimenez, 181 So.2d 575 (Fla. 3d DCA 1965); Mead Corporation v. Mason, 191 So.2d 592 (Fla. 3d DCA 1966); Smith v. Ocean State Bank, 335 So.2d 641 (Fla. 1st DCA 1976).

Banks’ relationship with Hollo was a nonexclusive right to procure a purchaser for “Viscaya Towers” at a net price to the seller, with Banks to add on its commission. Hollo had the right to give another broker a non-exclusive listing. While evidence showed that Hollo knew Banks had dealt with the ultimate purchasers prior to consummation of the sale, there was also evidence presented which showed that Banks had ceased its efforts to convince the Gor-dons to raise their offer because it deemed such efforts fruitless. Banks never relayed to Hollo an offer from the Gordons which was equivalent to the accepted price. No evidence was presented which showed the buyers knew, prior to closing, what commission the seller would pay the broker who effected the sale.

Not only did Banks not procure the purchaser, it neither alleged nor proved that it persuaded the Gordons to purchase in accordance with the terms of the listing. See Retzky v. J. A. Cantor Associates, Inc., 192 So.2d 24 (Fla. 3d DCA 1966). Therefore, the evidence presented renders the final counts inadequate at law to establish the necessary elements of the causes of action alleged.

Affirmed.


source: Caselaw Access Project

author: HAVERFIELD, Judge.

license: Public Domain

text:
    The OTHER PLACE OF MIAMI, INC., Appellant, v. The CITY OF HIALEAH GARDENS, Appellee.
    No. 77-1519.
    District Court of Appeal of Florida, Third District.
    Dec. 6, 1977.
    Rehearing Denied Feb. 1, 1978.

      Tobias Simon, Miami, for appellant.
    Stephen J. Wisotsky, Fort Lauderdale, Wepman & Wepman, Miami, for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   HAVERFIELD, Judge.

Plaintiff, The Other Place of Miami, Inc., a liquor vendor, appeals an order dismissing its complaint to enjoin the enforcement of a City of Hialeah Gardens’ ordinance rolling back its closing hours.

In 1974 plaintiff nightclub was the only retail vendor of alcoholic beverages (as distinguished from beer and wine) in the defendant City and contends it chose the Hialeah Gardens location because of the provision of the City’s charter which then permitted premises where intoxicating beverages are sold to remain open from 7:00 A.M. to 3:00 A.M. After The Other Place was opened for business it became the site of numerous late night disturbances and offenses particularly after the hour of 1:00 A.M. Subsequently, by public referendum, on September 7,1976 the City’s charter was amended to provide for the regulation of hours of sale of alcoholic beverages by ordinance as authorized by Section 562.14, Florida Statutes (1975). Subsequently, the City council enacted ordinances nos. 77-05 and 77-06 changing the closing hours of sale of alcoholic beverages from 3:00 A.M. to 1:00 A.M. Thereupon, The Other Place filed the instant complaint to enjoin the enforcement of these ordinances. The complaint, in essence, alleged that the refusal of the City council to grandfather it in as a 3:00 A.M. licensee was wilfully designed to harm it in the operation of its business; is arbitrary, unreasonable and capricious; and the actions of the City with respect to these ordinances amounts to a taking of its property without due process of law. The City filed a motion to dismiss for failure to state a cause of action which was granted by the trial judge after hearing argument of respective counsel. The Other Place appeals.

In endeavoring to determine whether a complaint states a cause of action, all the allegations within the complaint must be considered and those allegations contained therein which are well pled must be accepted as true. Crutchfield v. Adams, 152 So.2d 808, 810 (Fla. 1st DCA 1963); State ex rel. Brown v. Sussman, 235 So.2d 46, 48 (Fla. 3d DCA 1970). Nevertheless mere statements of opinion or conclusions unsupported by specific facts will not suffice. Brandon v. County of Pinellas, 141 So.2d 278 (Fla. 2d DCA 1962). In other words, we will not be bound by bare allegations which are unsupported or unsupportable. See Place v. Shepherd, 446 F.2d 1239, 1244 (6th Cir. 1971) and cases cited therein.

In light of the above controlling principles, we first note that The Other Place makes no direct attack against the constitutionality of the ordinances curtailing the hours of sale of alcoholic beverages. Rather, the gravamen of the complaint is that the actions of the City in enacting the ordinances and in refusing to grandfather in The Other Place as a 3:00 A.M. licensed establishment was arbitrary, wilfully designed to harm it and a deprivation of property without due process of law.

With respect to the allegation that the ordinances were enacted with the design to harm The Other Place in that the City council refused to grandfather it in as a 3:00 A.M. licensee, adoption of such ordinances is legislative in character and in the absence of abuse of discretion, the motives for such action are not the subject of judicial inquiry. South Daytona Restaurants v. City of South Daytona, 186 So.2d 78 (Fla. 1st DCA 1966).

Turning to the remaining allegations of arbitrariness, deprivation of property without due process and denial of equal protection, we find them to be unsupported or unsupportable. There is no question that Section 562.14, Florida Statutes (1975) permits a municipality to reasonably regulate the hours of sale of alcoholic beverages, and the legislative body of a municipality has a full measure of proper legislative discretion in the enactment of such regulatory ordinances. See Wednesday Night, Inc. v. City of Fort Lauderdale, 272 So.2d 502 (Fla.1972); South Daytona Restaurants, supra, and cases cited therein. The ordinances curtailing the closing hours for the sale of alcoholic beverages from 3:00 A.M. to 1:00 A.M. were a valid exercise of the City’s police powers and in the absence of any well pled or supportable allegation that the City had abused its legislative discretion in enacting the ordinances, plaintiff’s complaint for injunctive relief failed to state a cause of action. Cf. Wednesday Night, Inc., supra.

Affirmed.

NATHAN, J., dissents.


author: PER CURIAM.

text:
    Stanton W. MEAD and Mrs. Ray W. Heslop, Appellants, v. John MURRELL et al., Appellees.
    No. 77-833.
    District Court of Appeal of Florida, Third District.
    Dec. 7, 1977.
    Rehearing Granted Jan. 23, 1978.
    Abbott, Frumkes & Alhadeff and Melvyn B. Frumkes, Miami Beach, for appellants.
    Sibley, Giblin, Levenson & Glaser and Marion E. Sibley, Miami Beach, for appel-lees.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   ON REHEARING GRANTED

PER CURIAM.

The appellant’s petition for rehearing is granted and the order appealed from reversed on the authority of Ohio Casualty Group v. Parrish, 350 So.2d 466 (Fla.1977), quashing 338 So.2d 910 (Fla.3d DCA 1976). The cause is remanded for further proceedings, and the opinion filed October 11, 1977 is hereby vacated and withdrawn.


text:
    Stanton W. MEAD and Mrs. Ray W. Heslop, Appellants, v. John MURRELL, et al., Appellees.
    No. 77-834.
    District Court of Appeal of Florida, Third District.
    Dec. 7, 1977.
    Rehearing Granted Jan. 23, 1978.
    Abbott, Frumkes & Alhadeff and Melvyn B. Frumkes, Miami Beach, for appellants.
    Sibley, Giblin, Levenson & Glaser and Marion E. Sibley, Miami Beach, for appel-lees.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   ON REHEARING GRANTED

PER CURIAM.

The appellant’s petition for rehearing is granted and the order appealed from reversed on the authority of Ohio Casualty Group v. Parrish, 350 So.2d 466 (Fla.1977), quashing 338 So.2d 910 (Fla. 3d DCA 1976). The cause is remanded for further proceedings, and the opinion filed on October 11, 1977 is hereby vacated and withdrawn.


text:
    Curtis H. HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. 76-2365.
    District Court of Appeal of Florida, Fourth District.
    Dec. 13, 1977.
    Rehearing Denied Jan. 31, 1978.
    Richard L. Jorandby, Public Defender, and Jerry L. Schwarz, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. See Henry v. State, 350 So.2d 512 (4th DCA, Opinion filed September 27, 1977).

ANSTEAD and DAUKSCH, JJ., concur.

CROSS, J., dissents, without opinion.


text:
    Jorge TROCHEZ, Appellant, v. The HOLLAND-AMERICAN CRUISE LINES, the Monarch Cruise Lines, and the “Monarch Sun”, Appellees.
    No. 76-2042.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 1977.
    Rehearing Denied Jan. 26, 1978.

      William Huggett, Miami, for appellant.
    Fowler, White, Burnett, Hurley, Banick & Knight and Frank J. Marston and C. Douglas Skinner, Miami, for appellees.
    Before HENDRY, C. J., and HAVER-FIELD and NATHAN, JJ.
   PER CURIAM.

This is an appeal by Jorge Trochez, a seaman, from a summary judgment for defendant in this negligence action instituted under the Jones Act (46 U.S.C.A. § 688).

Trochez was employed aboard a cruise ship owned and operated by the defendant-appellee, The Monarch Cruise Lines, and while carrying a large pressure hose, he tripped on the raised metal lip which was protruding out from the top of one of the ship’s stairways and slipped, falling head first 12 feet down the stairway which was wet at the time. Having sustained serious personal injury, Trochez filed the instant action against Monarch Cruise Lines pursuant to the Jones Act (46 U.S.C.A. § 688). He alleged that Monarch was negligent in (1) maintenance of the ship, (2) failure to warn him about the protruding lip, (3) failure to adequately light the stairway, and (4) failure to provide an adequate number of co-workers for safe performance of the jobs assigned to him. Defendant answered alleging that Trochez’s injuries were the result of his own failure to maintain due diligence or reasonable care for his own safety and welfare. Following pre-trial discovery, Monarch moved for summary judgment. In opposition to this motion, affidavits of two fellow crewmen who witnessed the accident were filed on behalf of Tro-chez. The affidavits stated that the hose which Trochez was carrying at the time of the accident was very heavy and he should have had assistance; that assistance with such tasks had on previous occasions been requested, but the ship’s officers had refused the requests because there were too few crewmembers. The affiants further stated that just after washing down the decks, Trochez slipped on the metal lip at the top of the stairway which was very steep. After hearing, the trial judge entered summary judgment in favor of Monarch. We reverse.

A party moving for summary judgment must show conclusively the nonexistence of a genuine issue of material fact and then that he or she is entitled to a judgment as a matter of law. Holl v. Talcott, 191 So.2d 40 (Fla.1966); Visingardi v. Tirone, 193 So.2d 601 (Fla.1966). As our Supreme Court further pointed out in Wills v. Sears, Roebuck & Company, 351 So.2d 29, at p. 31 (Fla.Sup., opinion filed September 8, 1977) in negligence actions like the case sub judice, the movant’s burden is even more onerous where summary judgment procedures historically have been employed with special care because unless a movant can show unequivocally that there was no negligence or that plaintiff’s negligence was the sole proximate cause of the injury, courts will not be disposed to granting a summary judgment in his or her favor. Further, under the Jones Act it is not necessary to show that the employer’s negligence was the proximate cause of the injury, but it is sufficient to establish a jury question by simply showing some negligence on the part of the employer coupled by direct or circumstantial evidence to the injury of the employee. See Gaymon v. Quinn Menhaden Fisheries of Texas, Inc., 118 So.2d 42 (Fla. 1st DCA 1960) and cases cited therein.

In applying these principles, we find there are genuine issues of material fact in the instant case thereby precluding the entry of a summary judgment. For example, the issue of whether Monarch was negligent in not providing another crewman to assist Trochez in carrying the hose. There are also remaining issues to be resolved with respect to the condition of the stairs (wetness and steepness) at the time of the accident and the protruding metal lip as contributing factors to the accident.

Accordingly, the summary judgment appealed is reversed and the cause remanded for further proceedings.

Reversed and remanded.


author: PER CURIAM. ANSTEAD, Judge,

text:
    Donald CROSBY, Appellant, v. STATE of Florida, Appellee.
    No.76-1888.
    District Court of Appeal of Florida, Fourth District.
    Dec. 13, 1977.
    Richard L. Jorandby, Public Defender, and Frank B. Kessler, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED.

DAUKSCH and LETTS, JJ., concur.

ANSTEAD, J., concurs specially, with opinion.

ANSTEAD, Judge,

concurring specially:

The appellant, Donald Crosby, was convicted of manslaughter. At trial he claimed self defense.

On cross-examination of Crosby and during final argument, the prosecutor questioned the failure of the appellant to claim self defense in a tape recorded statement given to police and introduced into evidence. Crosby now claims that the argument of the prosecutor constituted improper comments on his right to remain silent. In my opinion the comments of the prosecutor did not go to Crosby’s silence in the face of accusation but rather were directed to the inconsistency of the position being taken by Crosby at trial compared to the statement given to police. The credibility of Crosby’s testimony, like that of other witnesses, was subject to proper attack. A showing of Crosby’s prior silence would not be a proper attack. However, a showing of a prior inconsistent statement is proper.


author: SMITH, Judge. RAWLS, Acting Chief Judge

text:
    Spero TASSAPOULOS and Evangeline Tassapoulos, his wife, Appellants, v. SEABOARD COASTLINE RAILROAD COMPANY, a corporation, Appellee.
    No. DD-284.
    District Court of Appeal of Florida, First District.
    Dec. 14, 1977.
    Rehearing Denied Feb. 1, 1978.
    Gerald G. Alexander, Orange Park, for appellants.
    James M. McLean, of Rogers, Towers, Bailey, Jones & Gay, Jacksonville, for ap-pellee.
   SMITH, Judge.

The record titleholders to certain land in Clay County appeal from a judgment holding that the appellee railroad obtained title by adverse possession, without color of title, to a strip along one boundary of the tract. While the record supports the trial court’s judgment concerning a small parcel actually occupied by the railroad’s roadbed, the record does not support the railroad’s claim to a wider strip parallel to its track, the boundary of which is marked not by a substantial enclosure but only by power poles and lines on appellants’ land. Section 95.18, Florida Statutes (1975); Downing v. Bird, 100 So.2d 57 (Fla.1958). The case will be remanded for entry of a conforming judgment.

REVERSED.

ERVIN, J., concurs.

RAWLS, Acting C. J., dissents.

RAWLS, Acting Chief Judge

(dissenting)

In my opinion, there was competent, substantial evidence to support the trial judge’s finding that appellee Seaboard acquired the disputed property by adverse possession. Kiser v. Howard, 133 So.2d 746 (Fla. 1st DCA 1961).


author: RAWLS, Acting Chief Judge. ERVIN, Judge,

text:
    CENTURY FEDERAL SAVINGS AND LOAN ASSOCIATION (formerly Ormond Beach Federal Savings and Loan Association), Appellant, v. Max MADORSKY, Individually and as Trustee, and Anne Madorsky, his wife, Nat Korash and Betty Jane Korash, his wife, Appellees.
    No. FF-32.
    District Court of Appeal of Florida, First District.
    Dec. 15, 1977.
    Rehearing Denied Feb. 1, 1978.
    Sam Spector of Spector & Tunnicliff, Henry P. Duffett and William Akers, III, of Duffett, Seps & Akers, Ormond Beach, for appellant.
    S. LaRue Williams of Kinsey, Vencent, Pyle & Williams, Daytona Beach, for appel-lees.
   RAWLS, Acting Chief Judge.

In constructing an apartment complex, Madorsky, et al., (Madorsky) borrowed $1,140,750.00 from Century at a rate of 8V2 percent per annum. In July, 1973, some two years after execution of the note and mortgage, Madorsky decided to sell the apartment complex, which sale would necessitate a prepayment of Century’s mortgage. Century refused their request to waive the provisions of the prepayment privilege and penalty. Madorsky paid a prepayment fee of $74,752.30 to Century under protest, and then filed suit in the trial court seeking to recover damages in excess of said sum and alleging in Count III that the loan prepayment would result in a gain rather than a loss to the mortgagee, thereby unjustly enriching the mortgagee. The trial court denied Century’s motion to dismiss Count III of the complaint; hence this interlocutory appeal.

The salient allegations that must be considered are that, at the time the mortgage transaction was consummated, “all of the parties to the transaction knew that the purpose of the prepayment clause was to insure Defendant [Century] that its money would receive a return of at lease [sic] 8%%”, “that the prepaid penalty would be reduced by the cost to Defendant of reloan-ing or re-employing the use of said prepaid principal”, and that the parties intended the prepayment penalty clause as a liquidated damage provision..

A fundamental principle of contract law is that sui juris parties may establish the terms of an agreement without subsequent alteration by the courts. The prepayment provision in the mortgage contract is not ambiguous. Madorsky’s allegations of what the parties intended are clearly founded upon some type of parol agreement that is not admissible to modify the written agreement. Madorsky’s allegation of unjust enrichment is bottomed solely upon their thought processes and not upon any matters supported by this record. Absent facts reflecting exorbitant charges that would mandate a judicial inquiry into such contractual provisions, a court of equity will not rewrite a valid contractual document. The Court of Appeal, First District of California, in Lazzareschi Invest. Co. v. San Francisco Fed. S. & L. Ass’n, dealt with a similar prepayment provision and articulated the principles of law applicable to the issue here presented, viz:

. . [A] prepayment case does not fall into a simple calculation at any one point of time of the difference between the interest rate on the repaid loan and that which might be available to the lending institution on a new loan of about the same size made to a new borrower.
“. . . In the absence of any statute or authorized regulation, and in the absence of any evidence produced by declaration of plaintiff in opposition to the motion for summary judgment or suggested by plaintiff as appellant in its briefs, we know of no means by which a court could come to the conclusion that the charge which appellant agreed to pay was exorbitant or out of line with that customarily provided in loan agreements. Indeed, plaintiff does not, in its complaint or in its declaration in opposition to the motion for summary judgment, make the point that the charge exceeds that which is usual. Plaintiff’s theory of excessiveness is that the charge bears no reasonable relationship to any damage sustained by virtue of the prepayment because of respondents’ ability to lend the funds anew at a higher rate . . . .”

The trial court erred in denying Century’s motion to dismiss Count III of Madorsky’s second amended complaint.

Reversed and remanded.

SMITH, J., concurs.

ERVIN, J., dissents.

ERVIN, Judge,

dissenting.

I agree the general principles of Lazzareschi Investment Company v. San Francisco Federal Savings and Loan Association, 22 Cal.App.3d 303, 99 Cal.Rptr. 417 (1971) should be followed but feel it would be premature in this instance to dismiss Ma-dorsky’s complaint. Lazzareschi was decided after motion for summary judgment was granted to the lender. The California appellate court stated, and I agree, “For the purpose of this appeal, we shall assume that palpably exorbitant charges would be subject to defeat by judicial decision. We proceed to examine the contract, promissory note, in the present case.” The court found no showing the prepayment penalty was exorbitant or out of line in the absence of any statute or authorized regulation, and in the absence of any evidence produced by the borrower as to the excessiveness of the charge. The lender in Lazzareschi was allowed to seek discovery, but here we are dismissing on the bare pleadings.

There is a second material distinction between this case and Lazzareschi. The prepayment charge in that case was for six months interest on the amount in excess of 20% of the outstanding principal prepaid in any year. The prepayment penalty clause here provides a penalty of 12 months interest. This is twice the amount in Lazzares-chi and twice the amount recommended by the Federal Home Loan Bank Board, which oversees only loans securing homes.

I would affirm the finding a cause of action has been stated.

      . The Prepayment Privilege and Penalty reads as follows:
      “17. PREPAYMENT PRIVILEGE AND PENALTY. Privilege is reserved to make prepayments of principal only as follows: In any calendar year during the first five (5) years subsequent to the date hereof, principal payments not to exceed twenty per cent (20%) of the original principal equal to twelve (12) months interest at the rate specified in this promissory note on the aggregate amount of all such payments in excess of said twenty per cent (20%) in any calendar year; and, at any time subsequent to five (5) years after the date hereof, the entire remaining balance without notice and without penalty.”

      . Lazzareschi Invest. Co. v. San Francisco Fed. S. & L. Ass’n, 22 Cal.App.3d 303, 99 Cal.Rptr. 417(1971).


author: DAUKSCH, Judge.

text:
    Robert P. SCHNEIDER, Appellant, v. STATE of Florida, Appellee.
    No. 76-1990.
    District Court of Appeal of Florida, Fourth District.
    Dec. 20, 1977.
    Rehearing Denied Jan. 31, 1978.
    Richard L. Jorandby, Public Defender, and Jerry L. Schwarz, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, Richard P. Zaretsky and Benedict P. Kuehne, Asst. Attys. Gen., West Palm Beach, for appellee.
   DAUKSCH, Judge.

Appellant raises as error the refusal of the trial court to grant his Motion to Suppress. We agree and reverse.

Between 6:00 PM and 6:30 PM in February the policeman was in his car in a supermarket parking lot and observed Appellant and another in a vehicle with an Ohio tag. The policeman testified:

“The first thing that drew my attention or maybe suspicion of the vehicle was the manner in which they were looking into the front of the Grand Union grocery store, the condition of themselves as well as the vehicle, and the out of State tag, made me suspicious of two persons possibly casing the store for whatever. And they seemed to be looking in the front area where I know the cash registers were at. . . . Subject Schneider was pretty much as he is now. The other party in the car, a Bruce Webster, was — looked as though he hadn’t bathed in several days. He had a stubby beard, short beard, generally looked un-kept.
Q Now, what about — you said something about the condition of the car. Can you describe that?
A Well, the out of State tag and no clothing in the vehicle. Usually, people passing through town, they would have their suitcases or clothes. . . The clothes hanging in the car, something of this nature would indicate they were traveling through. They didn’t appear like they met that criteria as a person or people traveling. They looked like they were staying locally, something of this nature. Just in my experience and training, they just looked suspicious to me.
Q Now, what was the physical activity they were doing when you first saw them?
A They were looking in the store when I first saw them. Schneider, I believe, the driver, saw me, and I believe he must have said something or indicated something to the passenger who was really looking into the store the most. They both looked at me. I was coming in one entrance as they were — had come in another entrance, I had come in south. We had met by the front of the store. Schneider then seemed to pay a lot of attention straight ahead to his driving, not to make any mistake — not to draw my attention. Newman seemed to be looking back over, from the back seat, from the passenger side, trying to, what I felt — . . . — trying to watch me to make sure what I was going to do and what my movements were. And I wasn’t in a marked police unit.
Q Did you have the car — did you check the car out?
A Not at that point in time, other than to see the tag. Also, in passing, they didn’t have any clothing, and their general appearance.
Q Did you subsequently follow this vehicle and stop it?
A Yes, sir. As they passed me, they proceeded south out of the small shopping center over to 40th Street, then east a matter of a half a block or so to Federal Highway, then south on Federal Highway. After observing all this, and my feelings, just an instinct, I felt they warranted being stopped and checked as a suspicious vehicle.”

Evidently the passenger was known as either Webster or Newman.

After Appellant’s car was stopped it was revealed he had no driver license so the policeman checked the license of the passenger in order to allow him to drive the car. The pássenger had a license' and the two were permitted to leave with Newman driving. Meanwhile the policeman had radioed for an NCIC check on the license tag of the car and the names of Appellant and Newman. The policeman permitted the pair to leave before receiving a reply from his computer check request. To make a long story short the policeman later received a “hit” on Newman who had the same name, etc., as someone wanted in Rhode Island for robbery. The policeman found the Appellant and Newman and took them to the station. A search of the car revealed hypodermic syringes and some prescription forms. Appellant was convicted of unlawful possession of narcotic paraphernalia.

The question on appeal is whether the initial stop was permissible and if not was all which followed tainted by the initial stop. Our answer is that the initial stop, as was stated by the policeman, was based upon a feeling, a suspicion, an instinct; not probable cause or even a well founded or reasonable suspicion. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968). The policeman stopped these men because they didn’t look right. Thomas v. State, 297 So.2d 850 (Fla. 4th DCA 1974). See also the two Bailey cases. Bailey v. State, 295 So.2d 133 (Fla. 4th DCA 1974); Bailey v. State, 319 So.2d 22 (Fla.1975).

Because the policeman was not within the law when he first stopped the Appellant all that was seized was a result of an unlawful search and seizure. Bailey, supra. Therefore the Judgment and Sentence are reversed.

REVERSED.

DOWNEY and ANSTEAD, JJ., concur.


text:
    Donald SEYMOUR d/b/a Seymour’s Fashion Center, Inc., f/u/b/o Fireman’s Fund Insurance Company, Petitioner, v. ALARMTEC INTERNATIONAL CORP. a/k/a Honey Well Corp., Respondent.
    No. 77-1297.
    District Court of Appeal of Florida, Fourth District.
    Dec. 20, 1977.
    Pomeroy, Betts & Weiderhold, Fort Lauderdale, and Joe N. Unger, Miami, for petitioner.
    Pyszka, Kessler, Adams & Solomon, Fort Lauderdale, and Larry Klein, West Palm Beach, for respondent.
   PER CURIAM.

Petition for Writ of Certiorari is DENIED.

ALDERMAN, C. J., and ANSTEAD and DAUKSCH, JJ., concur.


text:
    Eugene ARCAMONTE, Appellant, v. SPRINGFIELD LIFE INSURANCE COMPANY, Appellee.
    No. 76-1354.
    District Court of Appeal of Florida, Third District.
    Dec. 20, 1977.
    Rehearing Denied Jan. 23, 1978.
    Weissenborn, Burr & Hyman and Leonard F. Burr, Miami, for appellant.
    Magill, Sevier & Reid and James A. McSwigan Palm Beach, for appellee.
    Before PEARSON, NATHAN and HAV-ERFIELD, JJ.
   PER CURIAM.

This appeal is from a final judgment granting plaintiff rescission of a disability income insurance policy (policy P39794), reformation of a life insurance policy (policy V17025) and denying defendant/counter-plaintiff damages for the breach of the disability insurance contract. The insurance company was the plaintiff; the policyholder has appealed.

The cause proceeded to a jury trial upon all the issues. At the conclusion of all the evidence, the trial judge took the case from the jury and entered judgment as follows:

“1. This Court grants the plaintiff’s motion to strike the defendant’s demand for jury trial in the actions for rescission and reformation and, sitting as a court in equity, finds, as a matter of fact and law, that the plaintiff-insurer’s claim for rescission and reformation is well taken and the Court decrees that:
“(a) Policy number V17025 be and the same is hereby reformed to exclude any ‘waiver of premium benefit’ or provision and any such benefit or provision of or under the said policy shall be and the same is hereby stricken therefrom and held for naught from the date of issue of the said policy, to wit, December 31,1971.
“(b) The defendant-insured, EUGENE ARCAMONTE, need not, in view of the Court’s ruling in 1(a) above, henceforth pay any premium for any ‘waiver of premium benefit’ under policy number V17025 and any and all such premium's previously paid, together with legal interest thereon, shall be returned by SPRINGFIELD LIFE INSURANCE COMPANY to EUGENE ARCAMONTE; such monies having been tendered by SPRINGFIELD LIFE INSURANCE COMPANY to EUGENE ARCAMONTE prior to the filing of the suit herein.
“(c) Policy number Y17025 shall continue in full force and effect, subject to the terms and conditions thereof, as modified and reformed by this Court’s ruling in 1(a) and 1(b) above.
“(d) Policy number P39794 be and the same is hereby rescinded ab initio and the said policy is hereby held to be a nullity of and from the date of issue, to wit, September 10, 1971.
“(e) In view of this Court’s ruling in 1(d) above, the plaintiff-insurer, SPRINGFIELD LIFE INSURANCE COMPANY, shall return to the defendant-insured, EUGENE ARCAMONTE, all premiums paid by the latter on policy number P39794, together with legal interest thereon; such monies having been tendered by SPRINGFIELD LIFE INSURANCE COMPANY to EUGENE AR-CAMONTE prior to the filing of the suit herein.
“2. In view of this Court’s rulings in paragraph 1 hereof, there exists no disability income policy (P39794) upon which the defendant-counterplaintiff, EUGENE ARCAMONTE, may found a counterclaim for breach of contract and, therefore, there is no issue to submit to a jury thereon.
“However, and in the event that this Court lacks the power to decide the issues framed by the complaint and answer as regards rescission and reformation, then and in that event, this Court finds as a matter of law that there are no issues of material fact to submit to a jury and hereby directs a verdict in favor of the plaintiff, SPRINGFIELD LIFE INSURANCE COMPANY, and against the defendant, EUGENE ARCAMONTE, on the actions in rescission and reformation and against the counterplaintiff, EUGENE ARCAMONTE, and in favor of the counterdefendant, SPRINGFIELD LIFE INSURANCE COMPANY, on the counterclaim in breach of contract.”

The insured has presented two points for reversal. The first urges that there were jury issues upon the evidence submitted and that, therefore, it was error for the trial judge either to (1) strike defendant/counter-plaintiff’s demand for a jury trial, or (2) direct a verdict for plaintiff /counter-defendant. We agree that the trial judge was correct in setting the cause for a jury trial. See Napolitano v. H. L. Robertson & Associates, Inc., 311 So.2d 757 (Fla. 3d DCA 1975). Therefore, the trial judge was in error when he thereafter struck the demand for jury trial. But this error is not reversible error in view of the alternative holding of the trial judge that a directed verdict for the company should be entered. This latter holding is fully supported by the record. No reasonable view of the evidence would support a jury finding that the appellant did not willfully fail to answer truthfully material questions within his knowledge. Therefore, the directed verdict was proper. See Talley v. National Standard Life Insurance Co., 178 So.2d 624 (Fla. 2d DCA 1965). We hold that no reversible error has been shown under appellant’s first point.

The insured’s second point urges that the court should have directed a verdict for the defendant in the action to reform the insurance contract. We find no error. Appellant’s reliance upon Underwriters National Assurance Company v. Harrison, 338 So.2d 58 (Fla. 3d DCA 1976), in our opinion, is misplaced because although the insured disputed any intentional misrepresentation, there was no conflict concerning the essential fact that the misrepresentation was made upon the application.

Affirmed.


text:
    Henry HILSENROTH, Appellant, v. Alfred KESSLER, Trustee and Individually, Appellee.
    Nos. 76-1437 and 76-1522.
    District Court of Appeal of Florida, Third District.
    Dec. 20, 1977.
    Rehearing Denied Jan. 26, 1978.
    Snyder, Young, Stern, Barrett & Tan-nenbaum and William L. Rogers, North Miami Beach, for appellant.
    Koppen & Watkins, Miami, James A. Horland, North Miami Beach, for appellee.
    Before HENDRY, C. J., and PEARSON and HUBBART, JJ.
   PER CURIAM.

Affirmed. Kessler v. Hilsenroth, 325 So.2d 72 (Fla. 3rd DCA 1975); Owens v. Smith, 154 So.2d 878, 882 (Fla. 1st DCA 1963).


text:
    George S. JOHNSEN, Appellant, v. Edward CARHART, Appellee.
    No. 76-2149.
    District Court of Appeal of Florida, Third District.
    Dec. 20, 1977.

      Millar & Lally and A1 Millar, Jr., Jacksonville, for appellant.
    Greenberg, Traurig, Hoffman, Lipoff, Quentel & Wright and Alan T. Dimond, Miami, for appellee.
    Before HUBBART and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   CHARLES CARROLL (Ret.), Associate Judge.

This appeal is by the plaintiff below, from an order dismissing the amended complaint in his libel action against an Assistant State Attorney of Dade County.

The question involved is whether the trial court was correct in determining, on the amended complaint and its exhibit, that the matter was within the absolute privilege of the defendant official. We hold the ruling of the court was correct, and affirm.

The plaintiff and three other police officers of the City of Miami were convicted of a certain crime or crimes involving moral turpitude. Thereafter, when they were under consideration for reemployment or reinstatement in the police department of the City of Miami, the defendant, who had conducted the prosecution at the trial, and who was an official of the executive department of government, with the position and title of Executive Assistant State Attorney of Dade County, sent a letter in his said capacity and under his official letterhead to the Chief of Police of the City of Miami with carbon copies to the Mayor and Members of the City Commission. The letter suggested, because of the result of the trial and the conduct of the officers at the trial, their unfitness for reinstatement. Included were statements that the officers had lied in testifying at their criminal trial. The trial principally had involved alleged misconduct by the officers with a former prostitute who was the complaining witness. The references in the letter to lying by the plaintiff officer at the trial were as follows:

“I suggest these men willfully testified falsely in their own behalf and in general conducted themselves in a fashion which clearly mocked the integrity of the Miami Police Department and the criminal justice system of this community.
* * * * * *
“I would also point out that your own Investigators had the former prostitute in this matter polygraphed by one Warren Holmes and as a result of that and their own investigation, are satisfied of her verasity which necessarily means that the defendants in this case have willfully lied throughout the legal proceedings.”

The amended complaint, to which the letter was made an exhibit, alleged the defendant Carhart “was acting beyond the scope of authority” in that in so acting the defendant did not have authority or permission of the State Attorney; that there had been no request therefor by the Chief of Police of the City of Miami; that the functions of the State Attorney’s office did not “embrace the representation or participation in disciplinary proceedings within the City of Miami Police Department”; and that the said action of the defendant was “not connected to, incident, antecedent, or precedent to any function that he performed in the prosecution of the plaintiff” (in the circuit court criminal case). The plaintiff alleged injury resulted, humiliation, damage to reputation and loss of reinstatement.

The defendant’s motion to dismiss the amended complaint was for its failure to state a cause of action, on the ground of immunity because of claimed absolute privilege of the defendant as to the matter involved. After hearing thereon the court entered an order dismissing the amended complaint, and this appeal ensued.

In stated accord with the great weight of authority which recognizes no distinction between executive officers of government and judicial or legislative officers of government on the question of immunity, and following the ruling of the Supreme Court of the United States in Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959) that the same absolute immunity which the courts had theretofore universally extended to the legislative and judicial branches of government should be accorded to those in the executive branch, the Supreme Court of Florida, in McNayr v. Kelly, 184 So.2d 428 (Fla.1966), held as follows:

“In summary, we hold that executive officials of government are absolutely privileged as to defamatory publications made in connection with the performance of the duties and responsibilities of their office to the same extent as such absolute immunity is afforded to members of the legislative and judicial branches of government.”

In McNayr v. Kelly, supra, in a footnote, the Court quoted the language of Judge Learned Hand in Gregoire v. Biddle, 177 F.2d 579, 581 (2nd Cir. 1949) which the Supreme Court of the United States had adopted in Barr v. Matteo, supra. We view that language and the reasoning and statement of the law which it supplies to be of suffieial legal import and bearing on this case to justify repeating it here, viz: .

“It does indeed go without saying that an official, who is in fact guilty of using his powers to vent his spleen upon others, or for any other personal motive not connected with the public good, should not escape liability for the injuries he may so cause; and, if it were possible in practice to confine such complaints to the guilty, it would be monstrous to deny recovery. The justification for doing so is that it is impossible to know whether the claim is well founded until the case has been tried, and that to submit all officials, the innocent as well as the guilty, to the burden of a trial and to the inevitable danger of its outcome, would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties. Again and again the public interest calls for action which may turn out to be founded on a mistake, in the face of which an official may later find himself hard put to it to satisfy a jury of his good faith. There must indeed be means of punishing public officers who have been truant to their duties; but that is quite another matter from exposing such as have been honestly mistaken to suit by anyone who has suffered from their errors. As is so often the case, the answer must be found in a balance between the evils inevitable in either alternative. In this instance it has been thought in the end better to leave unre-dressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation. * * *
“The decisions have, indeed, always imposed as a limitation upon the immunity that the official’s act must have been within the scope of his powers; and it can be argued that official powers, since they exist only for the public good, never cover occasions where the public good is not their aim, and hence that to exercise a power dishonestly is necessarily to overstep its bounds. A moment’s reflection shows, however, that that cannot be the meaning of the limitation without defeating the whole doctrine. What is meant by saying that the officer must be acting within his power cannot be more than the occasion must be such as would have justified the act, if he had been using his power for any of the purposes on whose account it was vested in him. * * *”

By the foregoing, it is shown that the absolute immunity of such an official operates to relieve him from the necessity of being subjected to trial of an action based on his privileged conduct, notwithstanding that a complaint for libel which is filed against him may allege, as a conclusion, that he is without such immunity or was acting beyond the scope of his duty or office, where, as in this case, the complaint and its exhibits disclose the action of the official was taken in the interest of the public good and thereby within the scope of his duties and responsibilities, notwithstanding the allegations in the complaint to the contrary.

Thus in McNayr the libel action was disposed of on motion to dismiss. There, as basis for the libel action, the complaint disclosed a written instrument, of alleged libelous content, made by the defendant, the County Manager of Dade County, delivered to the County Commissioners, informing them of the reasons why the defendant had terminated the services of the plaintiff, the Sheriff of Dade County. On motion of the defendant, the complaint was dismissed. The Supreme Court upheld the dismissal of the action at that stage of its progress, upon concluding from the complaint and the instrument upon which it depended that while the County Manager was under no duty or requirement to so inform the County Commissioners, it was in their interest and in the public interest that it was done, and therefore was absolutely privileged.

In point is the decision of the Supreme Court in Hauser v. Urchisin, 231 So.2d 6 (Fla.1970). See also: Saxon v. Knowles, 185 So.2d 194 (Fla. 4th DCA 1966); Roberts v. Lenfestey, 264 So.2d 449 (Fla. 2nd DCA 1972).

Here the letter sent by the defendant to the Miami Police Chief was the basis of the action. It shows it was written in furtherance of the public good. In law enforcement in Dade County there is an official kinship of the State Attorney’s office, the County and Municipal police departments. For example, the police of the City of Miami make arrests for violations of State laws and laws or ordinances of Metropolitan Dade County, as frequently if not more frequently than for violations of City ordinances. City of Miami police who make arrests for State or County law violations are necessarily involved in investigation and the prosecution of such offenders by the State Attorney.

Since the letter which is challenged as libelous shows on its face the action of the defendant official of the executive department of government was not for invidious or ulterior motive but patently was something done for the public good and for the purpose of benefiting and enhancing the proper prosecution of criminal offenses, we have no problem in concluding that the trial judge was eminently correct in recognizing the immunity conferred by law on the defendant official, and in dismissing the amended complaint.

Affirmed.

      . Bearing on this feature the defendant’s letter contained the following:
      “After hearing the testimony of David Be-thel, George Johnsen, Dennis Valdez, and Jesse Causey it is my firm opinion that these men have little respect for the oath to tell the truth in Court and I intend to urge the State Attorney to instruct his Assistants not to vouch for the credibility of these men as witnesses on behalf of the State without rigid scrutiny of their testimony on a case by case basis.”


text:
    Norman COHEN, Appellant, v. Frederic H. WARREN, Appellee.
    No. 76-2305.
    District Court of Appeal of Florida, Third District.
    Dec. 20, 1977.
    Rehearing Denied Jan. 23, 1978.
    Frates, Floyd, Pearson, Stewart, Richman & Greer and Bruce A. Christensen, Miami, for appellant.
    Meyer, Weiss, Rose, Arkin, Sheppard & Shockett and S. Harvey Ziegler, Miami Beach, for appellee.
    Before HAVERFIELD, NATHAN and HUBBART, JJ.
   PER CURIAM.

Affirmed. See Clark v. Wilder, 192 So.2d 32 (Fla.3d DCA 1966); Maule Industries, Inc. v. Watson, 201 So.2d 631 (Fla.3d DCA 1967); Dixon v. Thompson, 217 So.2d 887 (Fla.1st DCA 1969).


author: CHARLES CARROLL, Associate Judge.

text:
    MACASPHALT CORPORATION, Appellant, v. GENERAL DEVELOPMENT CORPORATION, Appellee.
    No. 77-1428.
    District Court of Appeal of Florida, Third District.
    Dec. 20, 1977.
    Rehearing Denied Jan. 23, 1978.
    Holland & Knight and John W. Frost II, Bartow, for appellant.
    Fleming & Neuman and Joseph Z. Fleming, Miami, for appellee.
    Before HUBBART and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   CHARLES CARROLL, Associate Judge.

Macasphalt Corporation, a Delaware corporation doing business in Florida, defendant in an action against it in the Circuit Court of Dade County filed by the appellee General Development Corporation (GDC hereinafter) has appealed from an order denying its motion challenging venue. We find error, and reverse.

Pursuant to contracts between the parties covering a period of years, for the appellant to “lay” asphalt for GDC in certain locations in Florida with the cost of the material supplied and applied by appellant to be paid for to the appellant by GDC, the work was performed by appellant and was paid for by GDC. The amount for which appellant billed GDC, and which was paid, included approximately $338,000.00 which was the amount of the 4% Florida Sales Tax on the materials thus supplied and used.

This action filed in Dade County by GDC against the appellant was to recover said sum. In a first count it was alleged collection of the sum from it by the appellant was a breach of contract. The second count sought recovery on the ground that under Ch. 212, Florida Statutes (1975) the obligation to pay such tax was on the appellant as the seller of the materials. By a third count GDC sought to impose a constructive trust for said amount upon the assets of the appellant.

With regard to venue of actions against a foreign corporation doing business in Florida, Section 47.051, Florida Statutes (1975) provides:

“ * * * Actions against foreign corporations doing business in this state shall be brought in a county where such corporation has an agent or other representative, where the cause of action accrued, or where the property in litigation is located.”

The motion of the defendant-appellant challenging the venue in Dade County and the supporting affidavit of its president showed the appellant corporation maintained an office in Polk County where its books, records and bank account were located, and also had a branch office in Highlands County, and that it had not had and did not have any agent in Dade County. It was further disclosed that the cause of action did not accrue in Dade County. The alleged breach of contract by the appellant, if it occurred, was not in Dade County but was in Polk County. See: Mendez v. George Hunt, Inc., 191 So.2d 480 (Fla. 4th DCA 1966). As an action for alleged overpayment by GDC to appellant, the payment was made in Polk County, making that the County in which the cause of action accrued. As to the count seeking to impose a constructive trust on the assets of the appellant corporation, the property to be affected thereby was not located in Dade County. The contention of GDC that the fact that GDC maintains its principal office and place of business and records in Dade County makes venue proper in Dade County, is without merit according to the cited statute.

For the reasons stated we hold the ruling of the court that venue was properly laid in Dade County was in error. The order appealed from is reversed, and the cause is remanded with direction to enter an order for transfer of the action to the circuit court of such one of the two counties in which the defendant-appellant maintains an office which the plaintiff-appellee may select, as provided for by Fla., R. Civ. P. 1.060(b).

It is so ordered.


author:
PER CURIAM.
      DAUKSCH, Judge,

text:
    KIMBERLY DEVELCO CORPORATION, Appellant, v. Sam BLOOM, etc., et al., Appellees.
    No. 76-1769.
    District Court of Appeal of Florida, Fourth District.
    Dec. 20, 1977.
    Joe N. Unger, Miami, and Pomeroy, Betts & Wiederhold, Fort Lauderdale, for appellant.
    Thomas E. Scott, Jr., of Huebner, Shaw & Bunnell, Fort Lauderdale, for appellee-Climatrol Corp.
   PER CURIAM.

AFFIRMED.

DOWNEY and ANSTEAD, JJ., concur.

DAUKSCH, J., concurs specially, with opinion.

DAUKSCH, Judge,

concurring specially.

Some very interesting questions in regard to indemnity were raised here but I cannot discuss them because in my opinion the complaint failed to state a cause of action. I assume that is the reasoning of the majority, as well. An appellant has to come here with the proper vehicle before we can move.


author: BOYER, Acting Chief Judge. MILLS, Judge,

text:
    Ollie R. WILLIAMSON, Appellant, v. Veva C. WILLIAMSON, Appellee.
    No. EE-363.
    District Court of Appeal of Florida, First District.
    Dec. 21, 1977.
    Rehearing Denied Jan. 31, 1978.
    Dedee S. Costello, Panama City, for appellant.
    Robert B. Staats, Panama City, for appel-lee.
   BOYER, Acting Chief Judge.

Appellant, the husband in a dissolution of marriage proceeding, seeks review of a supplemental final judgment by which the trial judge awarded to the wife both permanent and lump sum alimony. Although we have concluded that the record reveals sufficient evidence to sustain the award and that accordingly the learned trial judge did not abuse his discretion, rendering a meticulous recitation of all the facts useless, we nevertheless find that one issue has been presented which does, indeed needs, discussion; viz: Whether a trial judge in a dissolution of marriage proceeding is either permitted or required to consider, as an element or factor incident to an award of alimony, the relative fault of the parties.

Before the new no-fault divorce law was enacted, the statute on alimony read as follows:

“In every judgment of divorce in an action by the wife, the court shall make such orders about maintenance, alimony and suit money of the wife, or any allowance to be made to her, and if any, the security to be given therefor, as from the circumstances of the parties and nature of the case is equitable; but no alimony shall be granted to an adulterous wife. In any award of permanent alimony the court has jurisdiction to order periodic payments or payment in lump sum or both.” (Section 61.08, Florida Statutes, 1969)

Under that statute, it was clear that the courts considered the fault or misconduct of a party when awarding alimony. (See cases cited in dissenting opinion in Krieger v. Krieger, 344 So.2d 1346 (Fla. 1st DCA 1977)) However, fault was not the only factor upon which an award was made. Accordingly, an award of alimony was authorized for a wife for whose fault (other than adultery) a divorce was granted when equitable considerations demanded it. (Randolph v. Randolph, 146 Fla. 149, 1 So.2d 480 (Fla.1941)) Conversely, the fact that a marriage was brought to an end because of the fault of a husband did not automatically entitle a wife to alimony when she was young, in good health and otherwise capable of earning a living. (Kahn v. Kahn, 78 So.2d 367, 368 (Fla.1955); Newman v. Newman, 94 So.2d 841 (Fla.1957))

Notwithstanding the above, the Third District Court of Appeal held in Latta v. Latta, 121 So.2d 42, 45 (Fla. 3rd DCA 1960) that alimony is not determined upon the basis of fault and is independent and apart from the grounds for divorce, and in a later case, Olsen v. Olsen, 158 So.2d 775, 776 (Fla. 3rd DCA 1963), commented that the guides and factors used to determine an award of alimony do not include the relative merits of the personal lives of the parties involved.

Regardless of the prior law, a new concept was introduced by the “No-Fault Divorce Law” enacted in 1971, (Chapter 71-241, Laws of Florida). Florida Statutes 61.08 now provides:

“(1) In a proceeding for dissolution of marriage, the court may grant alimony to either party, which alimony may be rehabilitative or permanent in nature. In any award of alimony, the court may order periodic payments in lump sum or both. The court may consider the adultery of a spouse and the circumstances thereof in determining whether alimony shall be awarded to such spouse and the amount of alimony, if any, to be awarded to such spouse.
“(2) In determining a proper award of alimony, the court may consider any factor necessary to do equity and justice between the parties.”

Pursuant to subsection (2) of F.S. 61.08, the relative fault or marital misconduct of the parties is an important consideration in determining the amount of alimony, if any, to be awarded a party. McClelland v. McClelland, 318 So.2d 160 (Fla. 1st DCA 1975); Pro v. Pro, 300 So.2d 288 (Fla. 4th DCA 1974); Oliver v. Oliver, 285 So.2d 638 (Fla. 4th DCA 1973); Florida Dissolution of Marriage, § 4.29, p. 79.

The Oliver court was one of the first courts to examine the issue of whether or not marital misconduct or fault should be considered in an award of alimony under the new law. After examining Chapter 61, Florida Statutes, that court stated:

“Looking at these statutes, we would agree that the criteria of § 61.052, F.S. 1971, F.S.A., that a marriage is irretrievably broken as concerns the dissolution may be satisfied under the encouragement and guidelines found in § 61.001. In determining whether a marriage is irretrievably broken, there is no need to resort to the often sordid and provocative testimony of fault that customarily obtained under the predecessor statute. More than that, it is our understanding that the earlier requirement of fault and the establishment of the prevailing party was the very dissatisfaction that lead to the enactment of the so-called no-fault dissolution of marriage chapter.
“But what about alimony and fees? Are, as the trial judge found, the same strictures and limitations to be applied? We think not.
* * * * * *
“As all know, there is a wide range of discretion vested in the court in deciding how much and the kind of alimony to award and there are many factors, such as the misconduct of a party, that may properly be placed before the court touching upon the issue and which form the basis for the proper exercise of such discretion. See 10A Fla.Jur., Dissolution of Marriage, Separation, and Annulment, § 52 et seq. Alimony is not determined by some iron clad formula that can be applied with sharp certainty. The equities, circumstances and the whole marital picture furnish and form the fabric from which the award is to be cut, and if the court limits itself solely to the economics of the matter, it deprives itself of valuable factors that may aid in doing justice to the problem.
“The predecessor statute, Section 61.08, F.S.1969, F.S.A., is not materially different from the current statute, 61.08(2), supra, as both provide for alimony based upon a consideration of equity and justice.
“We feel that because of the mentioned similarity between the two statutes, the case law that construed the earlier alimony statute concerning the misconduct of the parties is equally applicable to the 1971 statute. Thus, the marital conduct and misconduct of the parties is a factor to be considered in determining alimony. Hobbs v. Hobbs, Fla.App.1962, 136 So.2d 363. See also 9 A.L.R.2d 1026 and 34 A.L.R.2d 313; Fla. Family Laws, § 22.39 (2d ed. 1972).” (285 So.2d at pages 640 and 641)

Just what is this misconduct or fault of a party which may be considered? It is clear that the adultery of a party is one type of marital misconduct or fault which is considered by the courts. Whereas under the prior statute adultery was a complete bar to alimony, F.S. 61.08(1) now provides it may be “considered” in the discretion of the trial court. That provision has been interpreted to mean that a party must be given a chance to raise the issue and be given an opportunity to be heard, after which the trial judge may then exercise his discretion and refuse to further consider the adultery in the award of alimony. (Stafford v. Stafford, 294 So.2d 25, 27 (Fla. 3rd DCA 1974); Vandervoort v. Vandervoort, 265 So.2d 77 (Fla. 3rd DCA 1972)) The same court has held that it is only the adultery of the spouse asking for alimony which should be considered under F.S. 61.08(1). Escobar v. Escobar, 300 So.2d 702 (Fla. 3rd DCA 1974)) It again stated in Claughton v. Claughton, 344 So.2d 944 (Fla. 3rd DCA 1977):

“By its facts, Escobar merely stands for the proposition that a chancellor need not hear testimony concerning the adulterous activities of a spouse not seeking alimony, when the purpose of said testimony is solely to obtain alimony for the spouse introducing the testimony or to increase the award of any alimony, as the basis of alimony is the ‘wife’s demonstrated need and the husband’s ability to pay . . ’ supra at 703.” (344 So.2d at page 946)

The court went on, however, to say that a spouse charged with adultery and asking for alimony can utilize § 61.08(2) to inquire into the adultery of the spouse against whom the alimony is sought provided the utilization of the alleged adulterous activity is limited to the mitigation and defense of her own conduct and not as a means of increasing her award which should be based on her own needs and the husband’s ability to pay, holding:

“In conclusion, as concerns an award of alimony, we hold that where the facts of a case dictate that justice and equity will best be served by an inquiry into the adulterous activities of a spouse, pursuant to Section 61.08(1) and (2), such inquiry is permissible, so long as the inquiry is not to be utilized for the sole purpose of increasing an award and is handled in a mature, discrete and unvindictive manner. As far as child custody and reasonable visitation is concerned, testimony concerning the moral fitness of both spouses is permissible, so long as such testimony is directed to a broad overview of the lifestyle of each parent.” (344 So.2d at page 947)

This court held in McClelland v. McClelland, supra, that a trial court may inquire into the alleged adulterous activity of a husband who seeks no alimony for himself to consider whether or not the marriage is irretrievably broken, for the light such evidence sheds on the issue of custody and finally under F.S. 61.08(2) as evidence pertinent to a determination of alimony, concluding:

“We do not share appellant’s apprehension that the trial court’s decision will resurrect a system of divorce based on fault and, with it, all of the old agonies of accusation and recrimination. The trial judge in this ease cautioned against ‘an unlimited foray into the details’ of the alleged adultery and indicated a determination to restrict the inquiry ‘within reasonable bounds’. It is unnecessary, undesirable and improper for the trial judge ’‘to sit and hear every jit and jot of testimony offered by a party as to the other’s misconduct’ [Oliver v. Oliver, 285 So.2d 638, 641, (Fla.App. 4th 1973)], and there are no circuit judges who, remembering such experiences, will now willingly relive them. ‘It is enough,’ the District Court, Fourth District, held in Oliver in connection with alimony questions, ‘that he simply get a broad picture and understanding of the relative equities and factors necessary to do justice.’ ” (318 So.2d at pages 162, 163)

In McAllister v. McAllister, 345 So.2d 352, 354 (Fla. 4th DCA 1977), we learned the type of misconduct which prompted the Oliver court to address the issue and conclude that the fault or marital misconduct of a party should be considered, viz: The wife claiming alimony was continually drunk, repeatedly threatened to kill her husband, and made no effort to keep the house. Again concerned there would be a return to the fault concept of divorce, the McAllister court urged:

“that evidence of misconduct be limited to gross situations such as existed in Oliver, with no mitigating circumstances, otherwise, as was conceded in that case, we will return to the very type of ‘ . . . often sordid and provocative testimony of fault. . . . that lead to the enactment of the so-called no-fault dissolution of marriage chapter.’ ” (Id. at 640. 345 So.2d 355)

In conclusion, it does not appear that either this court or the Supreme Court has adopted the holdings of the Third District as reflected by Escobar v. Escobar, supra, and Claughton v. Claughton, supra. The better view appears to be that announced by the Fourth District in Oliver v. Oliver, supra, and by this court in McClelland v. McClelland, supra, viz: That though not necessarily determinative, the relative fault of the parties is an equitable circumstance and a factor concerning which evidence should be admitted, if offered, and which, together with the other circumstances revealed by the evidence, should be considered by the trial court in determining whether or not to award alimony, and if so the amount thereof. Although “every jit and jot of testimony offered by a party as to the other’s misconduct”, (Oliver v. Oliver, supra, and McClelland v. McClelland, supra) need not be admitted, the parties should be afforded reasonable latitude to acquaint the trial court (and perhaps ultimately the appellate court) with the “ ‘broad picture and understanding of the relative equities and factors necessary to do justice.’ ” (McClel-land v. McClelland, supra)

AFFIRMED.

ERVIN, J., concurs.

MILLS, J., concurs specially.

MILLS, Judge,

concurring specially:

I agree that the supplemental final judgment should be affirmed.


author: SMITH, Judge. RAWLS, Judge

text:
    George D. ALBRECHT and Nellie Richey, Petitioners, v. DEPARTMENT OF ENVIRONMENTAL REGULATION, Respondent.
    No. EE-136.
    District Court of Appeal of Florida, First District.
    Dec. 23, 1977.
    As Corrected On Denial of Rehearing Jan. 30, 1978.

      David A. Maney, of Gordon & Maney, Tampa, for petitioners.
    Reynold L. Caleen, Jr., Tallahassee, for respondent.
   SMITH, Judge.

Petitioners, the owners of a number of partially submerged lots in Pinellas County, applied to the Board of County Commissioners for a permit to fill those lots. The Board approved the application, subject to approval of the Trustees of the Internal Improvement Trust Fund pursuant to Section 253.124, Florida Statutes (1973). The application was later transferred to the Department of Environmental Regulation (DER) in the reorganization of State environmental agencies. Chapter 75-22, Section 10, Laws of Florida. Petitioners were afforded a hearing pursuant to Section 120.-57(1), Florida Statutes (1975). The hearing officer’s recommended order found that filling the lots would improve water quality by eliminating pollutants caused by storm water runoff but that filling would destroy a productive mangrove system which provides food for a variety of animal life. The hearing officer reviewed the statutory criteria for fill permits and recommended that the fill permit be denied. DER adopted the recommended order as its final order. Petitioners appealed to the Governor and Cabinet sitting as Trustees of the Internal Improvement Trust Fund, Section 253.76, Florida Statutes (1975), and that body affirmed DER’s order. Petitioners now seek judicial review pursuant to Section 120.68, Florida Statutes (1975), asserting (1) DER improperly denied their application for a permit because DER is not authorized by Section 253.124 to review a county commission’s findings that a project will not adversely affect marine or other wildlife; and (2)' Section 253.124 does not contain adequate standards to guide DER’s discretion in determining whether to grant or deny permits.

Section 253.124(2) requires applicants for fill permits to seek approval from the appropriate board of county commissioners, who are to determine whether the proposed project would violate state or local law; harmfully obstruct or alter the natural flow of navigable waters; create erosion, stagnant areas, or shoaling of channels; or cause material injury or monetary damage to adjoining land. Petitioners agree that DER is authorized to review those findings. In 1967 the legislature added a requirement that the county commission determine whether the proposed project would detrimentally affect wildlife, fish or other marine life or natural resources “and whether the destruction of oyster beds, clam beds or marine productivity . . will result therefrom to such an extent as to be contrary to the public interest.” Chapter 67-393, Section 4, Laws of Florida. That clause does not contain a corresponding provision for review by DER. Therefore, petitioners argue, DER may not consider those factors. The concluding sentence of subsection (2) provides however, that “[t]he board [now DER] shall also consider any other factors affecting public interests.” Thus DER is authorized to consider the criteria listed in the 1967 revision of the statute in addition to the pre-1967 factors for which petitioners concede review. We decline to speculate whether the statute authorizes DER to consider factors other than those listed, but it does authorize DER review of all considerations for which the county commissioners have primary review.

Petitioners contend the phrase “to such an extent to be contrary to the public interest” is not an adequate standard for administrative determination of which fill permits should be granted and which denied. That phrase, argue petitioners, allows DER unbridled discretion in enforcing the statute and is therefore an unconstitutional delegation of the legislative power. Article II, Section 3, Florida Constitution.

The District Court of Appeal, Second District, upheld the constitutionality of Chapter 31182, Laws of Florida, a special act similar to Section 253.124, in Zabel v. Pinellas County Water and Nav. Contr. Auth., 154 So.2d 181 (Fla. 2d DCA 1963), quashed and remanded on other grounds 171 So.2d 376 (Fla.1965). The District Court found the act a legitimate exercise of the State’s police power and noted that the act

supplies eight criteria to be utilized by the Authority in considering an application such as that made by appellants. These criteria are designed to fulfill the purposes for which the Authority was created, [and] to provide for adequate regulation and control of waters in the county and their alteration ....

The criteria in Chapter 31182 are very like those of Section 253.124. The Pinellas County Water and Navigation Control Authority was directed to consider “[t]he effect of the proposed plan or development upon the conservation of wild life, marine life, and other natural resources.” Chapter 31182, Section 8(e) Laws of Florida (1955). The Authority was then required to consider “whether or not the proposed plan or development will materially affect any of the rights and interests of the public heretofore set out in this section.” In Yonge v. Askew, 293 So.2d 395, 400 (Fla. 1st DCA 1974), this court considered the statutory criteria of Section 253.124 and found the legislature had properly delegated to the Trustees of the Internal Improvement Trust Fund the responsibility “to exercise a sound discretion in determining whether the public interest will be served by the proposed works contemplated by the application.” It must be noted that in Yonge the court did not explicitly consider whether the standards attending the delegation of authority were adequate; the issue was whether the legislature had intended to delegate discretion to the Trustees.

We conceive the criteria stated in Section 253.124, which direct the attention of DER to “fish, marine and wild life oyster beds, clam beds, or marine productivity,” and feeding grounds for marine life, and which require the preparation of a biological survey, an ecological study and in some cases a hydrographic survey, are sufficient to satisfy the constitutional restriction on delegation of legislative power. Those criteria, accompanied by procedural safeguards afforded by Chapters 253 and 120, distinguish this case from Sarasota County v. Barg, 302 So.2d 737 (Fla.1974), in which the Supreme Court held unconstitutional a special act which prohibited, without further explanation, “undue or unreasonable dredging, filling or disturbance of submerged bottoms . . . [and] unreasonable destruction of natural vegetation . .” Chapter 71-904, Laws of Florida, quoted in Barg, 302 So.2d at 739.

The Supreme Court has recognized that in some areas of regulation it is impractical for the legislature to enact specific standards for the exercise of administrative discretion. Demko’s Gold Coast Trailer Park v. Palm Beach County, 218 So.2d 745, 747 (Fla.1969) (upholding a statute providing a “Zoning Commission shall have authority to adopt building, electrical, plumbing and other codes and to change same from time to time when deemed proper for the public welfare.”); North Broward Hosp. Dist. v. Mizell, 148 So.2d 1, 2 (Fla.1962) (upholding an act authorizing a hospital board to grant or revoke physicians’ licenses to practice at the hospital “so that the welfare and health of patients and the best interests of the hospital may at all times be best served.”) See also Grova v. Baran, 134 So.2d 25 (Fla. 2d DCA 1961), app. dism., 145 So.2d 489 (Fla.1962) (upholding an act allowing a board of county commissioners to grant garbage collection licenses “[f]or the purpose of promoting the health and general welfare of the communities . . . .”). By requiring the preparation of studies and surveys the legislature recognized that determination of each application for a fill permit involves complicated decisions which cannot intelligently be guided by specific or quantitative statutory standards. The legislature chose therefore to direct DER’s attention to several areas of inquiry in the exercise of its sound and reviewable discretion to grant or deny permits.

As we noted in Cross Key Waterways v. Askew, 351 So.2d 1062 (Fla. 1st DCA 1977), the 1974 APA was not in effect when the Supreme Court decided Barg. Chapter 120 provides significant procedural safeguards which serve to restrict DER’s discretion in considering permit applications. If less specific statutory standards are “a practical necessity in legislation regulating complex subjects . . . , they are now susceptible to refinement by policy statements adopted as rules under the 1974 Administrative Procedure Act, Chapter 120, and as so refined are judicially ascertainable and enforceable.” Cross Key Waterways, at 1069. To the extent DER does not refine the statutory standards through rulemaking it will be required to explain the policy behind each decision to grant or deny a permit. McDonald v. Dep’t of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977). Applicants must be afforded an evidentiary hearing upon request, at which they may present evidence and challenge the agency’s nonrule policy. Section 120.57, Florida Statutes (1975); McDonald, supra; Hill v. School Board of Leon County, 351 So.2d 732 (Fla. 1st DCA 1977). Judicial review is available. Section 120.68, Florida Statutes (1975). In addition, Chapter 253 provides that an applicant whose permit is denied may appeal to the Governor and Cabinet sitting as the Trustees of the Internal Improvement Trust Fund. Section 253.76, Florida Statutes (1975). We consider this array of procedural safeguards has lessened the need for strict statutory standards in the delegation of power to administrative agencies. The APA procedural provision for direct judicial review ensures that discretion will be exercised responsibly and fairly.

We note that DER, which has rulemaking authority under Section 253.03(7), Florida Statutes (1975), has as yet prescribed no rules which establish substantive criteria more specific than those stated in the statute. DER’s Rule 17-4.29, Fla.Admin. Code does provide:

(7) The department shall upon denying any application furnish the applicant an official statement specifying with particularity the reasons for denial, including a precise evaluation as to the detrimental biological and ecological effects to be expected from the proposed project which would interfere with the conservation of fish, marine and wildlife or other natural resources to such an extent as to be contrary to the public interest

An order embodying the statement required by DER’s rule should satisfy the McDonald requirement that nonrule policy be explained in an order. DER has been advised, however, as have other rulemaking agencies, that orders may not be employed to prescribe substantive standards “of general applicability,” for which the APA requires rules. Sections 120.52(14), .54, Florida Statutes (Supp.1976); State Dep’t of Admin. v. Stevens, 344 So.2d 290, 296 (Fla. 1st DCA 1977); McDonald, 346 So.2d at 581.

The prayer of the petition for review is DENIED.

McCORD, C. J., concurs.

RAWLS, J., dissents.

RAWLS, Judge

(dissenting).

I dissent.

Contrary to the majority opinion, petitioners’ primary contention is that the Department of Environmental Regulation (DER) founded its denial of their fill application solely on the basis of ecological factors that are not within the DER’s statutory scope of review, leaving no factual predicate to support its order.

As stated by the majority, petitioners’ application was denied following the DER’s review of certain factors enumerated in Section 253.124(2), Florida Statutes. Specifically, the hearing officer stated in his recommended order:

“. . . The term ‘contrary to the public interest’ is broad enough to envision its application in cases involving elimination of even a small amount of natural resources that nevertheless play a role in the continuity of plant and animal life. As pointed out at the hearing by the testimony of the Respondent’s experts, the elimination of only a few trees would not necessarily be of significance, but the destruction of over two acres in an area that has almost completely been developed is of importance. It thus must be concluded that Petitioners’ project would be contrary to the public interest and, in consonance with the legislative intent, the application should be denied.” (emphasis supplied)

Prior to July 14, 1967, the legislature, through Section 253.124(2), Florida Statutes, provided that any person wishing to fill land located in or bordering upon the navigable waters of the state make application to the board of county commissioners of the county wherein the proposed fill site was located. Illustrative is Section 253.124, Florida Statutes (1965), which provided, in part:

“. . .In the event such application be found by the board of county commissioners or other authorized body not to be violative of any statute, zoning law, ordinance, or other restriction which may be applicable thereto, or that no harmful obstruction to or alteration of the natural flow of the navigable water as defined in § 253.12, within such area will arise from the proposed construction, or that no harmful or increased erosion, shoaling of channels or stagnant areas of water will be created thereby, or that no material injury or monetary damage to adjoining land will accrue therefrom, the same shall be granted to the applicant, subject to the formal approval of the trustees of the internal improvement trust fund.”

Thus, pursuant to the pre-1967 versions of Section 253.124, Florida Statutes, an applicant was required to demonstrate to the board of county commissioners that the project would not: 1) violate state or local law; 2) harmfully obstruct or alter the natural flow of navigable waters; 3) increase erosion or the shoaling of channels or create stagnant areas of water; and 4) accrue material injury or monetary damage to adjoining land. If the commission found that an applicant met this four-part test, it was required to grant the application and issue a permit, subject to the approval of the Board of Trustees. There were no ecological factors enumerated, nor was the phrase “to such an extent as to be contrary to the public interest” present.

However, effective July 14, 1967, the legislature expanded the test for receiving a permit by the addition of the following language to Section 253.124(2), Florida Statutes.

“. . . the [application] shall be granted to the applicant, subject to the approval of the board of trustees of the internal improvement trust fund, who shall have the power to approve, reject or issue; provided, however, that prior to the issuance of such permit the board of county commissioners or other authorized body shall determine whether the granting of such permit and the construction to be done pursuant thereto would interfere with the conservation of fish, marine and wildlife or other natural resources to such an extent as to be contrary to the public interest . . . The board shall also consider any other factors affecting the public interests.”

By this amendment, the legislature added the requirement that various ecological factors be considered when determining whether an application should be granted. It also added the “contrary to the public interest” phrase that the denial of petitioners’ application was based upon.

It is petitioners’ position that the language of the 1967 amendment places the sole discretion on whether to grant an application based on ecological consideration in the hands of the local commissioners, and, further, that such decision is not reviewable by the Board of Trustees. Respondent, however, argues that, despite the language of the statute, it was the intent of the legislature to make the ecological considerations, as well as the other four criteria, reviewable by the Board of Trustees, since such considerations are of statewide impact.

The legislative intent is the polestar by which the courts must be guided, since it is the essence and vital force behind the law, and it is a factor which must be determined primarily from the language of the statute. State v. Atlantic Coast Line R. Co., 56 Fla. 617, 47 So. 969 (1908). However, a statute is to be taken, construed and applied in the form enacted, because the legislature must be assumed to know the meaning of words and to have expressed its intent by the use of the words found in the statute. Van Pelt v. Hilliard, 75 Fla. 792, 78 So. 693 (1918). Further, it is a general rule of statutory construction that the courts may not, in the process of construction, insert words or phrases in a statute or supply an omission that to all appearances was not in the minds of the legislators when the law was enacted. Consequently, when there is doubt as to the legislative intent, or when speculation is necessary, the doubt should be resolved against the power of the court to supply missing words. Brooks v. Anastasia Mosquito Control Dist., 148 So.2d 64 (Fla. 1st DCA 1963); and Armstrong v. City of Edgewater, 157 So.2d 422 (Fla.1963).

The language of Section 253.124(2), Florida Statutes, clearly provides that the board of county commissioners shall consider four criteria and that their decision of these criteria are subject to the review of the Board of Trustees. The language of the 1967 amendment clearly requires that the board of county commissioners consider the additional ecological factors enumerated, but it does not, however, provide that decisions based upon these ecological factors are reviewable by the Board of Trustees.

Finding that the petitioners’ application was denied solely on the basis of ecological factors “contrary to the public interest”, I would hold that the DER and Board of Trustees exceeded their statutory scope of review as provided by Section 253.124(2), Florida Statutes, and that, therefore, there existed no factual predicate to support the denial of petitioners’ application. Having made this determination, it is unnecessary and, indeed, inappropriate to consider the constitutionality of the standards imposed by the statute. There being no competent, substantial evidence to support the final order of the DER, as approved by the Board of Trustees, I would grant the petition for review and quash the final order.

      . By its terms § 253.124 commits this review to the Trustees of the Internal Improvement Trust Fund. As noted above, the Trustees’ § 253.124 duties were transferred to DER by Ch. 75-22, §§ 10, 15, Laws of Florida.

      . The “board” to which this sentence refers is the board of trustees of the Internal Improvement Trust Fund, not the board of county commissioners. As originally enacted the statute unambiguously referred to the “trustees.” Ch. 67-393, § 4, Laws of Fla. The change was made when the trustees were renamed “board of trustees” in 1969. Ch. 69-106, §§ 27, 35, Laws of Fla.

      . Yonge was concerned with criteria expressed in § 253.123 Fla.Stat. (1973). These criteria are exactly the same as those expressed in § 253.-124.


author: KEHOE, Judge.

text:
    Byron Patrick JOHNSON, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1648.
    District Court of Appeal of Florida, Third District.
    Dec. 27, 1977.
    Rehearing Denied Jan. 26, 1978.
    Bennett H. Brummer, Public Defender, Julian S. Mack, Asst. Public Defender, and Randy Ferguson, Legal Intern, for appellant.
    Robert L. Shevin, Atty. Gen., and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, NATHAN and KEHOE, JJ.
   KEHOE, Judge.

Appellant, defendant below, brings this appeal from a final judgment of conviction and a sentence of three years probation entered pursuant to a jury verdict finding him guilty of two counts of grand larceny. Our review of the record reveals that appel-lee, the prosecution below, did not show, as set forth in the information, that the property at the time it was stolen had a fair market value of $100 or more. Accordingly, the judgment and sentence entered below are reversed and the cause is remanded with directions to the trial court to enter judgment and sentence on the lesser included offense of petit larceny.

Appellant was charged, by information, with three counts of grand larceny. The trial court granted a directed verdict of acquittal as to one of these counts. The remaining counts charged appellant with unlawfully and feloniously stealing hubcaps, valued at $100 or more, from the lawful custody of Malcolm Harris and Julia Rice. Pursuant to a three day trial, the jury returned a verdict of guilty on these two counts. Thereafter, the trial court entered a final judgment of conviction and a sentence of three years probation from which appellant brings this appeal.

Appellant contends that appellee failed to prove by competent substantial evidence, as to one of the counts, the ownership of the stolen property and, as to both of the counts, that the fair market value of the property was $100 or more at the time it was stolen.

Our review of the record reveals that, contrary to appellant’s contention, ap-pellee did show by competent substantial evidence the ownership of the property stolen. See Spinkellink v. State, 313 So.2d 666 (Fla.1975), and D.S.H. v. State, 323 So.2d 292 (Fla. 3d DCA 1975). However, we agree with appellant’s contention in regard to the proof of the value of the property stolen.

An essential element of the crime of grand larceny is the value of the property stolen, i. e., it must have had a fair market value of $100 or more at the time it was stolen, and the burden is on the state, here the appellee, to show the value. See, e. g., Smart v. State, 274 So.2d 577 (Fla. 2d DCA 1973); Spencer v. State, 217 So.2d 331 (Fla. 4th DCA 1969); Escobar v. State, 181 So.2d 193 (Fla. 3d DCA 1965); Lambert v. State, 111 So.2d 68 (Fla. 1st DCA 1959); and Section 812.021, Florida Statutes (1975). The record reflects that, during the trial of the instant case, appellee questioned victim Harris about the fair market value of his hubcaps which were stolen. Harris responded that he had inquired of a “hubcap dealer” about the value of the hubcaps and was informed that he could replace them with new ones for $130.00 including tax. Appellee then questioned victim Rice and asked if she had made any inquiry in regard to replacing her hubcaps which were stolen. Rice responded that she had called the “Cadillac place” and had ascertained their replacement cost to be from $47.50 to $65.00 per hubcap. In our opinion, the record reflects that appellee failed to prove, as to each of the counts of grand larceny against appellant, the fair market value of the hubcaps at the time they were stolen as required by law; instead, appellee attempted to prove their replacement value.

Where, as in the instant case, the proof fails to show the value necessary to constitute grand larceny, i. e., the fair market value at the time of theft, the defendant may not be convicted of the offense of grand larceny. However, here the proof was sufficient to establish the defendant’s guilt for two counts of petit larceny which is a necessarily included lesser offense of grand larceny. See, e. g., Smart v. State, 274 So.2d 577 (Fla. 2d DCA 1973); Spencer v. State, 217 So.2d 331 (Fla. 4th DCA 1969); Escobar v. State, 181 So.2d 193 (Fla. 3d DCA 1965); Lambert v. State, 111 So.2d 68 (Fla. 1st DCA 1959); Section 812.021, Florida Statutes (1975). Accordingly, the judgment and sentence entered below are reversed and the cause is remanded with directions to the trial court to enter judgment and sentence on the lesser offenses of petit larceny. Section 924.34, Florida Statutes (1975).

Reversed and remanded with instructions.


text:
    Larry Darnell JONES, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1908.
    District Court of Appeal of Florida, Third District.
    Dec. 27, 1977.
    Rehearing Denied Jan. 26, 1978.
    Bennett H. Brummer, Public Defender, and Warren S. Schwartz, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., for appellee.
    Before PEARSON and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

On this appeal by the defendant below, from conviction of robbery, it is contended it was reversible error for the prosecutor to seek to impeach the defendant’s exculpatory story told for the first time at trial, by cross-examining the defendant about his failure to have told that story to the police after receiving his Miranda warnings at the time of his arrest; and for comment thereon by the prosecutor later in argument. Due objections were made on behalf of the defendant and motion for mistrial was denied. In Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) which is in point, the court held “that use of post-arrest silence in this manner violates due process”.

Accordingly, on the authority of Doyle v. Ohio, supra, the judgment is reversed and the cause is remanded for new trial.


text:
    Pauline G. PEARLMAN, Appellant, v. Donald H. PEARLMAN, Appellee.
    Nos. 76-1918, 76-1920.
    District Court of Appeal of Florida, Third District.
    Dec. 27, 1977.
    Rehearing Denied Jan. 26, 1978.

      Howard S. Rose, South Miami, for appellant.
    Milton M. Ferrell, Miami, for appellee.
    Before HAVERFIELD, HUBBART and KEHOE, JJ.
   KEHOE, Judge.

These consolidated appeals arose from the entry by the trial court of an order dated September 15, 1976, which modified the custody provision of a prior final judgment dissolving the parties’ marriage by transferring primary custody of one of the four minor children of the parties from the appellant wife to the appellee husband, and denied appellant’s petition to increase her alimony benefits. Except as set forth below, we affirm the trial court’s order.

One of the points raised by appellant pertains to the portion of the order that transferred custody of one of the parties’ minor children from appellant to appellee. Appellant argues that this relief was not sought by the parties in their pleadings and the grant of such relief was made without the trial court properly taking evidence in the matter.

We have reviewed the record in this case and are impressed by the trial court’s actions in attempting to provide for the welfare of the minor child, as well as providing for the benefit of the parties. However, we have concluded that the custody issue is one which should have been raised by the pleadings with its concomitant opportunity for evidence to be presented by the parties on the matter. See, e. g., Avery v. Avery, 314 So.2d 198 (Fla. 1st DCA 1975); Teta v. Teta, 297 So.2d 642 (Fla. 1st DCA 1974); and Keathley v. Elb, 133 So.2d 471 (Fla. 2d DCA 1961). Therefore, the order entered by the trial court is reversed to the extent that it transferred custody of one of the parties’ minor children from appellant to appellee.

We have also considered the other points raised on appeal by appellant and find them to be without merit. See, e. g., Strate v. Strate, 328 So.2d 29 (Fla. 3d DCA 1976); Muir v. Muir, 225 So.2d 175 (Fla. 1st DCA 1969); Katz v. Katz, 159 So.2d 241 (Fla. 3d DCA 1964); and Homer v. Homer, 155 So.2d 845 (Fla. 3d DCA 1963).

Affirmed in part; reversed in part.


author: HENDRY, Chief Judge.

text:
    BARTLETT CONSTRUCTION, INC., Appellant, v. COASTAL PLAINS, INC. and Florida Mining and Materials Corp., Appellees.
    No. 76-1961.
    District Court of Appeal of Florida, Third District.
    Dec. 27, 1977.
    Rehearing Denied Jan. 23, 1978.

      Richard C. Carter, Miami, for appellant.
    Bradford, Williams, McKay, Kimbrell, Hamann & Jennings and Reginald L. Williams, Donald M. Coon, Miami, for appel-lees.
    Before HENDRY, C. J., and HUBBART and KEHOE, JJ.
   HENDRY, Chief Judge.

Appellant, plaintiff below, appeals from a summary final judgment rendered in favor of appellees, defendants below.

Appellant firstly contends that the trial court erred in rendering summary judgment at pre-trial conference in that the twenty (20) day notice requirement found in both Fla.R.Civ.P. 1.200(b) and 1.510(c), pertaining to pre-trial conferences and summary judgments, respectively, had not been observed by the court. Secondly, appellant contends that there existed certain genuine issues of material fact precluding the rendition of summary judgment.

As for appellant’s first point, a review of the record discloses that the trial court, by order dated September 8, 1976, scheduled the pre-trial conference for September 17, 1976. The record is, however, devoid of any objection voiced by appellant concerning the premature scheduling of the conference. In that (1) the notice requirement of Fla.R.Civ.P. 1.510(c) is not jurisdictional, (2) appellant failed to object to the abbreviated time span and (3) implicit in every pre-trial conference is the possibility that summary judgment might be rendered, appellant’s contention must be rejected. Roberts v. Braynon, 90 So.2d 623 (Fla.1956); Blatch v. Wesley, 238 So.2d 308 (Fla. 3d DCA 1970), cert. den., 240 So.2d 645 (Fla.1970); Raphael v. Koretzky, 102 So.2d 746 (Fla. 3d DCA 1958).

Appellant’s second contention must be likewise rejected in that, by virtue of the record placed before this court, there are no genuine issues of material fact left unresolved by the proceedings below and it conclusively appears that appellees are entitled to summary judgment as a matter of law. See Fla.R.Civ.P. 1.510(c).

Accordingly, after carefully reviewing the record, all points raised in the briefs and arguments of counsel, it is our opinion that the final judgment appealed from must be affirmed.

Affirmed.


text:
    Blas GRANADOS and Allstate Insurance Company, Appellants, v. Francisco Santiago PEREZ, Appellee.
    No. 76-2007.
    District Court of Appeal of Florida, Third District.
    Dec. 27, 1977.
    Rehearing Denied Jan. 26, 1978.

      John Carruthers, II, Jeanne Heyward, Miami, for appellants.
    Rentz, McClellan & Haggard and L. Edward McClellan, Jr., Miami, for appellee.
    Before HUBBART and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Allred v. Chittenden Pool Supply, Inc., 298 So.2d 361, 365 (Fla.1974); Zerega v. State, 260 So.2d 1, 3 (Fla.1972); Green v. Shoop, 240 So.2d 85 (Fla. 3d DCA 1970).