text:
    TOMORROW’S CHOICE, INC., Appellant, v. POSTON BRIDGE & IRON, INC., Appellee.
    No. 75-90.
    District Court of Appeal of Florida, Third District.
    Oct. 7, 1975.
    Smith, Mandler, Smith, Parker & Wer-ner, Miami Beach, for appellant.
    Moore, Kessler, Roth & Beckerman, Miami, for appellee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Affirmed upon authority of Gars v. Woodard, Fla.App.1968, 214 So.2d 385; Marks v. Insurance Bureau, Inc., Fla.App.1972, 262 So.2d 450; Mitchell v. Morse Operations, Inc., Fla.App.1973, 276 So.2d 248. Compare B & B Supermarkets, Inc. v. Metz, Fla.App.1971, 260 So.2d 529; Dixson v. Kattel, Fla.App.1974, 311 So.2d 827.


source: Caselaw Access Project

author: SCHEB, Judge.

license: Public Domain

text:
    Jack L. TURNER, Appellant, v. UNION FIDELITY LIFE INSURANCE COMPANY, a corporation, Appellee.
    No. 75-151.
    District Court of Appeal of Florida, Second District.
    Sept. 12, 1975.
    David J. Williams, Stanley, Durrance & Wines, Auburndale, for appellant.

      Michael B. Colgan and Thomas R. Bay-less, Holland & Knight, Lakeland, for ap-pellee.
   SCHEB, Judge.

The question presented on appeal is whether a disability income policy which excludes coverage for “ . . . heart trouble . . . contracted within 6 months of the effective date of the policy” precludes the insured from recovering benefits for a period of disability resulting from a second heart attack which followed a heart attack occurring within the exclusionary period.

The appellee, Union Fidelity Life Insurance Company (insuror), issued two separate “comprehensive insurance protection” policies on May 11, 1971 and June 24, 1971, to appellant, Jack L. Turner. Each policy provided monthly indemnity benefits during periods of disability arising from sickness or accidents. Each policy stipulated:

Tuberculosis, heart trouble, hernia and diseases in organs peculiar to females shall be covered only if contracted more than six months after the effective date of the policy, (emphasis supplied)

Turner suffered a heart attack on November 9, 1971, for which he was hospitalized until December 2, 1971. This occurred within the six month exclusionary period. Turner concedes there was, therefore, no policy coverage for the disability resulting from this initial attack. Then on November 4, 1972, Turner suffered a second heart attack caused by arteriosclerosis, the underlying cause of the first attack. He contends the disability resulting from his second attack is covered under the policies.

The trial court concluded that each of Turner’s periods, of disability was caused by “heart trouble” contracted on November 9, 1971, within the six months exclusionary period. Judgment was entered in favor of the insuror, and Turner appeals.

The undisputed medical evidence shows that Turner’s second heart attack was a recurrent manifestation of an underlying coronary heart disease (arteriosclerosis) which manifested itself within six months of issuance of the policies. An illness, disease or disability ordinarily is deemed to have been “contracted”, i. e. to have its inception when it first becomes manifest or active. See S3 A.L.R.2d 686; 17 C.J.S. Contract p. 512 (1963). The trial court, therefore, correctly determined that the disability resulting from the second heart attack was a continuation of the “heart trouble” which originally was contracted during the six months exclusionary period.

Accordingly, the judgment of the trial court is affirmed.'

McNULTY, C. J., and BOARDMAN, J., concur.


author: GRIMES, Judge.

text:
    In re GUARDIANSHIP OF Iris L. DEAN, Incompetent.
    No. 75-894.
    District Court of Appeal of Florida, Second District.
    Sept. 17, 1975.

      Robert V. Williams, Gibbons, Tucker, McEwen, Smith, Cofer & Taub, Tampa, for petitioner, Jo Ann DeWitt.
    C. Gilbert Pierce, Tampa, for The First Nat. Bank of Tampa, Trust Div., Guardian of Property of Iris L. Dean.
   GRIMES, Judge.

The following question of law was certified to this court pursuant to Rule 4.6, F. A.R.

WHERE A PETITION FOR REMOVAL OF GUARDIAN OF THE PERSON IS FILED BY AN INDIVIDUAL WHO IS AN INTERESTED FRIEND OF THE WARD, BUT IS NOT A RELATIVE OR THE GUARDIAN OF THE WARD’S PROPERTY, AND THE GUARDIAN OF THE PERSON RESIGNS AS A RESULT OF SAID PETITION AND MATTERS BROUGHT OUT AT THE HEARINGS THEREON, AND WHERE IT IS STIPULATED THAT SUCH ACTION BY THE PETITIONER BENEFITED THE WARD, MAY THE COURT AWARD THE PETITIONER HER ATTORNEYS’ FEES UPON HER PETITIONING THE COURT FOR SUCH AN AWARD, NOTWITHSTANDING THE FACT THAT A PERSON OTHER THAN SAID PETITIONER WAS APPOINTED SUCCESSOR GUARDIAN OF THE PERSON?

The statement of facts which accompanied the certified question provided in part:

“On December 11, 1973, EDWARD MARION YOUNG, a/k/a Edward M. Young, was appointed Guardian of the person of IRIS L. DEAN, Incompetent. Thereafter, there transpired a series of conflicts and confrontations between Mr. Young and several of the Ward’s longtime friends, including the Petitioner, JO ANN DeWITT. Basically, these conflicts centered around allegations pertaining to Mr. Young’s ability to properly take care of the Ward, his motivation for seeking to become the Guardian of the person of the Ward, suspicions surrounding Mr. Young’s possession of an automobile and approximately $1,000.00 in cash which he claimed were gifts from the Ward prior to incompetency, and his continuing resistance to allowing Petitioner, as well as other long-time friends of the Ward, to visit with the Ward.
“During this period of time, subsequent to his appointment as Guardian of the person of Iris L. Dean, Mr. Young retained a total of three attorneys, each succeeding the other after the previous attorney moved to withdraw from the case. As a result of this succession of lawyers, Mr. Young incurred approximately $3,000.00 in attorneys’ fees, which, pursuant to Florida Statutes, were ultimately paid from the estate.
“That JO ANN DeWITT filed her Petition to Remove Edward M. Young as Guardian of the Person of Iris L. Dean, Incompetent, on March 22, 1974.
“Subsequent to the filing of the petition, evidentiary hearings were had at which time evidence was presented in support of the said Petition, and, also, during which time Mr. Young was himself cross-examined by Petitioner’s attorney. In the Court’s opinion, as a result of said Petition and of said cross-examination, matters were brought out which prompted and resulted in the resignation of said Guardian, Edward Marion Young, during the course of the final hearing on said Petition. Upon the tendering of said resignation, the Court entered an Order Accepting Resignation of Guardian of the Person and Appointing Successor Guardian of the Person, to-wit, Tim Moran, a disinterested person to the proceedings.”

The statement of facts further recited that the guardian of the property (who contested the awarding of attorneys’ fees in the court below) stipulated that the petitioner’s efforts had “definitely benefited both the Ward and the Ward’s estate.”

The Florida Guardianship Laws do not expressly provide for the payment of attorneys’ fees under the circumstances of this case. Thus, Fla.Stat. §§ 745.32 and 745.33 cover only the payment of the fees of attorneys employed by a guardian. Likewise, there are no Florida decisions on point. However, the Supreme Court in In Re Warner’s Estate, 1948, 160 Fla. 460, 35 So.2d 296, construed the constitutional designation in the probate court of “jurisdiction of the settlement of estates of decedents and minors” as sufficient authority to permit the court to award attorneys’ fees for representing a legatee.

In the case of In Re Sherman’s Guardianship, 1940, 42 Cal.App.2d 251, 108 P.2d 717, one Fannie Thomas petitioned for the removal of the guardian of the person and estate of Emma Sherman. After an evi-dentiary hearing the court entered an order removing the guardian and appointing a third party as the new guardian. From that order the first guardian appealed, asserting as error both her removal and the allowance of attorneys’ fees to Fannie Thomas for her efforts in the removal proceedings. On the first point the California Court of Appeal reversed because the grounds upon which the guardian had been removed were not among the statutory grounds for removal. However, the court upheld the award of attorneys’ fees as being within the sound discretion of the trial court.

It is not necessary for us to go as far as the California Court in order to affirmatively answer the certified question. The petitioner’s efforts benefited both the ward and his estate. It would be anomalous to say that attorneys’ fees beneficial to a guardian may be properly paid and at the same time deny the payment of attorneys’ fees which are beneficial to the ward for whom the guardian is appointed to serve. Courts of equity have traditionally awarded attorneys’ fees to persons, who at their own expense, have successfully maintained suits for the preservation of trust funds. 9 A.L.R.2d 1132. The fact that petitioner was not appointed as the new guardian should not preclude her from recovering her attorneys’ fees.

Our conclusion is buttressed by Rule 5.-090, PGR, which provides in part:

“(a) In probate and guardianship proceedings, costs, fees and commissions may be allowed in the discretion of the court, ordinarily abiding the result of each particular proceeding, but otherwise when it would be unjust that the losing party pay costs.
“(b) When costs and attorneys’ fees are to be paid out of the estate, the court may, in its discretion, direct from what portion of the estate they shall be paid.”

The certified question is answered in the affirmative.

McNULTY, C. J., and SCHEB, J„ concur.


author: DOWNEY, Judge. WALDEN, Chief Judge

text:
    Jack RESNICK and Theo Development Corp., Appellants, v. Faye Y. HURLEY, Appellee.
    No. 74-531.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 1975.
    Rehearing Denied Oct. 21, 1975.
    Maurice M. Garcia, of Abrams, Anton, Robbins, Resnick & Schneider, P. A., Hollywood, for appellants.
    W. M. O’Bryan, of Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellee.
   DOWNEY, Judge.

Having read the briefs and the trial testimony we find there is competent substantial evidence in the record to support the' conclusion of the trial court that in all events the closing of the transaction involved was to take place on or before December 15, 1973, or the contract would become a nullity.

Accordingly, the judgment appealed from is affirmed.

NEWELL, EMERY J., Associate Judge, concurs.

WALDEN, C. J., dissents, with opinion.

WALDEN, Chief Judge

(dissenting) :

I respectfully dissent. The trial court judgment deemed a multi million dollar real estate contract null and void because it was not closed on or before December 15, 1973 per contract proviso:

“If Buyer does not close on or before December 15, 1973, this Contract shall become null and void and the $300,000.00 mortgage will be paid as outlined herein' and there will be no liquidated damages.”

It is my opinion that the judgment was erroneous in that it turned solely upon the quoted section and totally disregarded the conduct, breaches of the contract, and failures on the part of the seller to perform critical contracted conditions precedent. In other words the trial court determined that this section took precedence over all other sections and that the purchaser had to close on December 15th regardless of the failure of the seller to earlier do what she had promised. For instance, contrary to contract, the seller tardily furnished abstracts only three days before December 15th and the abstracts did not reflect good and marketable title.

The seller should have been required to fully perform the critical conditions which she contracted to perform and the closing date extended accordingly.

There is more but I feel this adequately explains my opinion and vote to reverse and remand.


author: PER CURIAM.

text:
    David THOMAS, Appellant, v. The STATE of Florida, Appellee.
    No. 75-246.
    District Court of Appeal of Florida, Third District.
    Oct. 7, 1975.
    Phillip A. Hubbart, Public Defender, and Mark King Leban, Asst. Public Defender, and Thomas G. Murray, Legal Intern, for appellee.
    Robert L. Shevin, Atty. Gen., and William L. Rogers, Asst. Atty. Gen., for appel-lee.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

Affirmed. See Beavers v. Conner, Fla.App.1972, 258 So.2d 330, Jackson v. State, Fla.App.1965, 177 So.2d 353, and Griffin v. State, Fla.App.1960, 124 So.2d 38.


author: PER CURIAM. CROSS, Judge

text:
    Sue BROWN, as Administratrix of the Estate of Ronald David Brown, Deceased, et al., Appellants, v. Curtis A. NEAL, d/b/a Nealways Trucking Company and/or Nealway, Inc., et al., Appellees.
    No. 74-1623.
    District Court of Appeal of Florida, Fourth District.
    Oct. 10, 1975.
    John A. Gentry, III, of Moyle, Gentry, Jones & Flanigan, P. A., West Palm Beach, for appellants. .
    Henry Burnett, of Fowler, White, Burnett, Hurley, Banick & Knight, P. A., Miami, for appellee-Southern Farm Bureau Ins. Co.
   PER CURIAM.

Affirmed.

WALDEN, C. J., and MAGER, J., concur.

CROSS, J., dissents.

CROSS, Judge

(dissenting):

I would reverse holding that the policy of insurance provided coverage.


text:
    Danny Alan DOWD, Appellant, v. STATE of Florida, Appellee.
    No. 74-1417.
    District Court of Appeal of Florida, Fourth District.
    Oct. 10, 1975.
    Richard L. Jorandby, Public Defender, and Bruce Zeidel, Asst. Public Defender, West Palm Beach, for appellant.

      Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony J. Golden, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed upon authority of Caves v. State, Fla.App.1974, 302 So.2d 171.

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


text:
    NIAGARA FIRE INSURANCE COMPANY, Appellant, v. ALLIED ELECTRICAL COMPANY, Appellee.
    No. 75-343.
    District Court of Appeal of Florida, Third District.
    Oct. 7, 1975.

      Bradford, Williams, McKay, Kimbrell, Hamann & Jennings and Thomas E. Scott, Jr., Miami, for appellant.
    Fowler, White, Humkey, Burnett, Hurley & Banick and Fred R. Ober, Miami, for appellee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Niagara Fire Insurance Company, third-party defendant, appeals from a final judgment after non-jury trial reforming its insurance contract with defendant, third-party plaintiff, Allied Electrical Company to eliminate an exclusion clause. This action stems from a 1966 incident in which a truck-crane obtained by Allied on a lease-purchase basis from Neff Machinery, Inc., the original plaintiff, slipped from a barge and sank in salt water offshore of the Florida Keys.

The sole issue presented on appeal is whether the trial court erred in finding that there was a mutual mistake requiring reformation of the insurance contract. The court reformed the contract by deleting the “water-borne loss” exclusion which otherwise would have barred recovery for Allied. Niagara contends that there was not sufficient legal basis to reform the contract of insurance and delete the “water-borne” exclusion because prior to, and at the time of the insurance contract, there was no meeting of the minds or communication between Allied and Niagara on the portion of the contract that is sought to be reformed and, therefore, there can be no mutual mistake. Niagara also contends that Allied’s claim against it is barred by laches as the loss occurred in 1966 and the claim against Niagara for the reformation of the insurance contract was not brought until 1973. There is no contention that the insurance agent with whom Allied placed the coverage was not the agent of Niagara, but Niagara contends that he did not have the authority to bind the insurance company to a nonstandard insurance contract.

We hold that the trial court did not err in reforming the insurance contract to eliminate the exclusion clause. The applicable rule for reformation is that the evidence must be clear and convincing and sufficient to overcome a strong presumption arising from the policy that it correctly expresses the intention of the parties. Continental Casualty Company v. City of Ocala, Fla.1930, 99 Fla. 851, 127 So. 894; Old Colony Insurance Company v. Trapani, Fla.App.1960, 118 So.2d 850, 853; Sobel v. Lobel, Fla.App.1964, 168 So.2d 195, 197; Allstate Insurance Company v. Vanater, Fla.1974, 297 So.2d 293, 295. We are of the opinion that the trial court’s finding, that there was a mutual mistake requiring reformation of the insurance contract, had sufficient support from the evidence in the record.

We next consider laches as a bar to the relief claimed by the plaintiff. Four elements are necessary to establish laches as a bar to relief. These elements are set out by the Florida Supreme Court in Van Meter v. Kelsey, 1956, 91 So.2d 327, and by this court in Winston v. Dura-Tred Corporation, Fla.App.1972, 268 So.2d 426, as follows: (1) conduct on the part of the defendant or one under whom he claims, giving rise to the situation of which complaint is made; (2) the plaintiff, having had knowledge or notice of the defendant’s conduct, and having been afforded the opportunity to institute suit, is guilty of delay in asserting his rights by suit; (3) lack of knowledge on the part of the defendant that plaintiff will assert the right on which he bases his suit; and (4) injury or prejudice to the defendnat in the event relief is accorded to the plaintiff, or in the event the suit is not held to be barred. As to this fourth element, also see State ex rel. Clendinen v. Dekle, Fla.1965, 173 So.2d 452 at 456, and Brown v. Semple, Fla.App.1967, 204 So.2d 229, at 233. Since laches is an affirmative defense, the burden of proving it is on those who assert it, and it must be proved by very clear and positive evidence. Van Meter v. Kelsey, supra. The record in this cause shows neither undue delay, in that Allied did not learn of the facts giving rise to a cause of action against Niagara until 1973, nor injury or prejudice to Niagara by reason of the delay. Therefore, we find that the essential elements of laches have not been proved.

For the reasons stated and upon the authorities cited, the judgment herein appealed is affirmed.

Affirmed.


author: DIAMANTIS, GEORGE N., Associate Judge.

text:
    Donald E. WALKER, Appellant, v. INDIAN RIVER COUNTY, a political subdivision of the State of Florida, Appellee.
    No. 74-1768.
    District Court of Appeal of Florida, Fourth District.
    Oct. 10, 1975.

      Jerome D. Quinn, of Smith, Heath & Smith, Vero Beach, for appellant.
    Paul D. Burch, of Burch, Collins & Brown, Vero Beach, for appellee.
   DIAMANTIS, GEORGE N., Associate Judge.

Donald E, Walker (hereinafter called appellant) appeals a judgment of the circuit court dismissing his complaint for declaratory and injunctive relief filed against Indian River County j a political subdivision of the State of Florida (hereinafter called appellee).

Specifically, appellant sought to invalidate a Zoning Ordinance which placed his parcel of land in an R-l Single Family Residential District, and to require appellee to permit the appellant to use his property in a manner that is allowed by an R-3 zoning classification. This action was tried by the court without a jury.

The trial judge found that the purpose of including the appellant’s land in an R-l Single Family Dwelling Residential District was to maintain and preserve the integrity of a residential area in the West-gate Colony Subdivision which adjoined the appellant’s property and that the necessity for this action and the reasonableness for this action are “fairly debatable” and that it could not substitute its judgment for that of the County Zoning Authority.

The appellant raises three (3) points on appeal. First, the trial court erred in its finding that zoning the appellant’s property R-l would maintain the integrity of the Westgate Colony Subdivision and thereby relates to the public welfare under the police power of the state. Secondly, the trial court erred in finding that the R-l zoning classification, as applied to the appellant’s property, was “fairly debatable” and not an arbitrary and unconstitutional confiscation' of appellant’s property. Thirdly, the court erred in not finding that the appellee was equitably estopped from rezoning the appellant’s property after the appellant had received a site plan approval and acted in good faith reliance upon that approval.

We will first discuss the first two points that are raised by the appellant.

The record before the trial court showed that appellant’s property, which is located in Indian River County, adjoins State Road #60. Appellant’s property is located on the north side of State Road #60 between Ranch Road and Range Line Road. Appellant’s property is approximately one and one-half miles east of the I-9S Interchange and approximately four miles west of the City Limits of Vero Beach, Florida. The 1-95 Interchange intersects State Road #60 approximately five and one-half miles west of the City of Vero Beach, Florida. Appellant’s property has a frontage of 356.67 feet on State Road #60 and a depth of 300 feet and is located in a unit of the Westgate Colony Subdivisions which were platted in 1957, 1958 and 1960. Range Line Road intersects State Road #60 approximately two miles east of the 1-95 Interchange and approximately one-half mile east of the Westgate Colony Subdivision.

Under the original Indian River County Zoning Regulation, which became effective February 1, 1957, all land bordering on State Road #60 was zoned C-l Commercial, for a distance of approximately four miles west of Range Line Road. This zoning, which included the appellant’s property, extended for a depth of 660 feet on either side of State Road #60.

In November, 1972, appellant contracted to purchase the property involved herein contingent upon approval by the appellee of a site plan for construction of a motel. On December 14, 1972, the appellee approved the site plan for the motel and four days later the appellant took title to the property.

In March of 1973, the appellee rezoned appellant’s property to an R-l, Single Family Residential, classification as a part of a comprehensive rezoning of the State Road #60 area.

Subsequent to this March, 1973 rezoning, the appellant, who had earlier abandoned his plans to construct a motel, applied to the appellee for an R-3 zoning classification. Appellee denied this request.

The evidence before the trial court showed that the property immediately surrounding the appellant’s property was single family residential and that between Range Line Road to Ranch Road there was no present commercial use and that such property was either single family development or in natural growth or used for agricultural purposes. The nearest commercial piece of property to the appellant’s was located about one-half mile away.

Further, the evidence showed that the appellant’s property is surrounded on three sides by residential property located in the Westgate Colony Subdivision and that the remaining side of the appellant’s property fronts on State Road #60. This situation is in direct contrast to the one existing in the Greenbriar Subdivision which is almost directly across State Road #60 from the Westgate Colony Subdivision. In the Greenbriar Subdivision, the lots are subdivided and the front portion of that subdivision fronting on State Road #60, for a depth of approximately 300 feet, is rezoned for something other than individual lots and is suitable for a possible R-3 development. The remaining lots in the Green-briar Subdivision are zoned R-l Single Family. However, as pointed out, appellant’s property is surrounded on three sides by single family zoning. The only side of appellant’s property that is not so surrounded is the one fronting on State Road #60.

Consequently, we hold that the trial court’s findings that the purpose of including the appellant’s land in an R-l Single Family Residential District was to maintain and preserve the integrity of the neighborhood, which consists of single family residences in the Westgate Colony Subdivision adjoining the appellant’s property, and was not confiscatory, and that the necessity and the reasonableness of this action were “fairly debatable” are supported by substantial competent evidence. City of St. Petersburg v. Aikin, 217 So.2d 315 (Fla.1968); City of Miami Beach v. Wiesen, 86 So.2d 442 (Fla.1956); City of Miami Beach v. Ocean & Inland Co., 147 Fla. 480, 3 So.2d 364 (1941); Trachsel v. City of Tamarac, 311 So.2d 137 (Fla.App. 4th 1975); and County of Brevard v. Woodham, 223 So.2d 344 (Fla.App. 4th 1969).

Further, the record reflects that the legislative action of the Board of County Commissioners in rezoning the appellant’s property from C-l to R-l and in denying the subject R-3 zoning classification request were supported by the recommendations of the Appellee-County’s professional planner and by the County Zoning Commission. These recommendations were part of the record before the trial court and are probative to support the application of the “fairly debatable” rule. See Metropolitan Dade County v. Fletcher, 311 So.2d 738 (Fla.App. 3rd 1975), at page 739, and the cases cited therein.

If there was any doubt as to the propriety of the appellee’s action in rezoning the appellant’s property to R-l Single Family and denying appellant’s request for an R-3 use, this doubt was properly resolved by the trial court in favor of the decision of the zoning authority. City of Pembroke Pines v. Blacker, 314 So.2d 195 (Fla.App. 4th 1975), at page 196.

In other words, any doubt as to the propriety of the appellee’s actions in rezoning appellant’s property and denying the request for an R-3 use in order to prevent spot zoning or what appellant’s expert termed “bulls-eye zoning” within the West-gate Colony Subdivision neighborhood should be resolved in favor of the decision of the zoning authority. Ibid.

Appellant maintains that his property was rezoned to give special protection to the nearby residents in the Westgate Subdivision. Assuming arguendo that this particular contention of the appellant is correct, it has been answered by the case of Town of Largo v. Imperial Homes Corporation, 309 So.2d 571 (Fla.App.2nd 1975), where the District Court at page 574 of 309 So.2d stated as follows:

“As a second ground for the judgment, the court below concluded that single family zoning for the subject property was ‘unreasonable.’ The parties interpret this conclusion to mean that the zoning was not ‘fairly debatable.’ On this point we agree with the Town that the zoning was ‘fairly debatable.’ See City of Miami Beach v. Lachman, Fla.1953, 71 So.2d 148. There was competent opinion given on both sides of the question. While the record reflects that the decision to go to single family zoning was more the result of public clamor than conscientious deliberation by the Town Commission, Imperial’s property is totally surrounded by single family zoning districts, and no showing was made that the property is unsuitable for single family development.”

We hold that there was competent substantial evidence before the trial court to the effect that the appellant’s property was suitable for single family development. As the trial court correctly observed, a zoning ordinance is not invalid merely because it prevents an owner from using the property in the manner which is economically most advantageous. Trachsel v. City of Tamarac, supra, 311 So.2d 137, at page 140.

As far as appellant’s third point of equitable estoppel is concerned, we find it is without merit. Appellant’s predecessor in title only obtained a site plan approval for a motel and neither the appellant nor his predecessor in title obtained a zoning permit and a building permit which must be obtained before construction can commence. In other words, appellant, through his predecessor in title received only a site approval, and then the appellant took title to the property in question some four days after the approval of the site plan, but the appellant neither commenced construction nor expended any funds for such construction. Subsequent to taking title to the property, appellant abandoned his plans for the motel. Consequently, we hold that the issue of equitable estoppel is governed by the principles set forth in this court’s opinion of City of Hollywood v. Hollywood Beach Hotel Company, 283 So.2d 867 (Fla.App. 4th 1973), at pages 869-870.

In other words, the mere purchase of land does not create a right to rely on existing zoning. City of Miami Beach v. 8701 Collins Ave., 77 So.2d 428 (Fla.1954).

We have not overlooked the recent cases of Town of Largo v. Imperial Homes Corporation, supra, 309 So.2d 571, and Board of County Commissioners of Metropolitan Dade County v. Lutz, 314 So.2d 815 (Fla.App. 3rd 1975). In the Imperial Homes case, the owner purchased the property conditioned upon it being rezoned and expended great sums of money for architectural fees, interest, taxes, sewer permits, and other development costs after the property was rezoned. In Lutz, the owners incurred extensive financial obligations and expenses in reliance upon rezoning of their property only after they had negotiated, planned and fulfilled county requirements in activities lasting over one year. In the instant case, we hold that the appellant failed to make a sufficient showing of any reliance by him upon the original C-l zoning which resulted in a substantial change of position by him.

Finally, Section 23-H of the Site Plan Approval Ordinance of Indian River County provides as follows:

“In the event the property receiving site plan approval shall be sold, transferred, or the ownership thereof changed in any way whatsoever, the site approval shall become null and void.”

In absence of any waiver by the appellee of this provision of the Site Plan Approval Ordinance, the site plan approval was revoked when title to the subject property was transferred to the appellant by his predecessor in title. The record shows no such waiver by appellee of this provision of its Ordinance.

Accordingly, the judgment herein appealed is affirmed.

Affirmed.

OWEN and MAGER, JJ., concur.


author: RAWLS, Acting Chief Judge.

text:
    SUBTERRANEAN CIRCUS, Appellant, v. Stephen LEWIS, Appellee.
    No. X-360.
    District Court of Appeal of Florida, First District.
    Sept. 23, 1975.

      F. Perry Odom, and Thomas M. Ervin, Jr., Ervin, Varn, Jacobs & Odom, Tallahassee, and Edwin S. Taylor, Gainesville, for appellant.
    Herbert T. Schwartz, Schwartz & Dear-ing, Gainesville, for appellee.
   RAWLS, Acting Chief Judge.

The basic error committed by the trial court in this cause was its ruling that the Florida Workmen’s Compensation Law applied to an accident which occurred on October 17, 1972.

Appellant Subterranean operated a store in Gainesville, Florida, managed by William Killeen. In the fall of 1972, Subterranean maintained that it contracted with appellee Lewis, as an independent contractor, to remove and install electrical conduit in a vacant building which it was renovating. Lewis commenced work in August and on October 17, 1972, while descending a ladder, the ladder slipped and Lewis fell and suffered severe injuries.

Lewis instituted the instant suit alleging that he was a temporary employee of Subterranean; that his injury resulted from Subterranean’s lack of care in maintaining its premises for its employees; and that Subterranean breached its duty to maintain those premises in a safe condition. At this juncture, we pause to note that issue had been joined by the parties on common law negligence.

The matter proceeded to trial. At the close of plaintiff-appellee’s case, Subterranean, in moving for a directed verdict, stated, inter alia: “ . . . the Plaintiff [appellee] has failed to show that Workmen’s Compensation was required of the Plaintiff in this case and presented no proof of same.” The court responded, “The only point I would like to hear you on is whether or not you have shown the necessity of them to have Workmen’s Compensation.” Appellee’s attorney responded, “Yes, sir, I have. Mr. Killeen, as manager of the business, he said that he had employees. That is all you need under the Statute is one employee.” (Emphasis supplied.) The trial court then denied Subterranean’s motion. At the close of all the evidence, the trial judge instructed the jury that they should return a verdict for Lewis is they found Lewis to be Subterranean’s employee.

First, “ [i]t is well established in Florida that the substantive rights of the respective parties under the Workmen’s Compensation Law are fixed as of the time of the injury to the employee.” On October 17, 1972, when Lewis was injured, the pertinent part of the Florida Workmen’s Compensation Law provided that the law was applicable to all private employers who had three or more employees was of no consequence that on the date of trial the law had been changed to require only one employee. The trial judge committed error in failing to apply the requirements of the Workmen’s Compensation Law as enacted on the date of the accident.

Whether or not Subterranean, at the time of the accident, had three persons in its employ is a factual question. Our late colleague, Judge Sturgis, in Mathers v. Sellers detailed the requirements in effect at the time of the accident for determining whether the requisite number of employees is met, viz:

“In order, therefore, to bring employment within the purview of our Act, it was necessary to show the existence of an established mode or plan of hiring three or more persons pursuant to some constant or periodic custom resulting in a numerical pattern of employment thát becomes the rule and not the exception.”

The elements of regularity, continuity, common employment, and duration should be considered in determining the applicability of the Act. An occasional increase in the number of workmen for some unusual occasion does not automatically result in application of the Act.

Lewis tells us in his brief “that the chest beating and.teeth-gnashing of the defendant [appellant] about Florida Statute 440.02(1)(b) on October 17, 1972 is much ado about nothing.” In support of this statement, appellee analyzes testimony from which he concludes that the requisite proof was met that Subterranean had in its employ three or more employees. His “travail of analysis” reaches the requisite proof from the following: 1) Killeen, as manager of Subterranean, indicated he was an employee on October 17, 1972; 2) Har-olyn Locklair Killeen (wife of the manager) answered, “Yes, sir.”, to the question: “Now, at that time, did you keep the payroll records and write checks for employees?” This witness also testified that: “At times, I would work in the Circus, you know, at sales. I made out the payroll.”; and 3) that the jury found that on October 17, 1972, Lewis was an employee. This testimony of the secretary-treasurer as to keeping “payroll records and writing checks for the employees” certainly does not constitute proof of the elements of regularity, continuity, and common employment of three or more persons as required by the statute.

In view of our conclusion, we find it unnecessary to pass upon the other points on appeal which are posed by appellant. The judgment appealed is reversed and remanded for a new trial.

Reversed and remanded.

McCORD, J., and SMITH, Samuel S., Associate Judge, concur.

      . Sullivan v. Mayo, 121 So.2d 424 (Fla.1960).

      . Florida Statute 440.02(1) (b) (1972).

      .Florida Statute 440.02(1) (b) (1973), as amended by Chapter 73-127, Laws of Florida.

      . Mathers v. Sellers, 113 So.2d 443 (Fla.App.1st 1959).

      . Kelley v. Haylock, 163 Wis. 326, 157 N.W. 1094 (1916).


author: BOARDMAN, Judge.

text:
    Dorothy M. CARTER et al., Appellants, v. CITY OF ST. PETERSBURG et al., Appellees.
    No. 74-1145.
    District Court of Appeal of Florida, Second District.
    Sept. 17, 1975.

      W. Eric Venable and Thomas A. Ca-pelle, Tampa, for appellants.
    Michael S. Davis, Asst. City Atty., St. Petersburg, for appellees.
   BOARDMAN, Judge.

Appellants/plaintiffs appeal from a summary judgment in favor of appellees/de-fendants. Appellants filed suit against appellees, two police officers of the City of St. Petersburg, and the City of St. Petersburg, on the theory of respondeat superior, seeking damages for an alleged false arrest by appellees. Appellants were members of a union participating in a labor dispute at the time the incident here involved occurred.

A joint stipulation, entered into by the parties concerned and filed in the cause, stipulated, among other things, that: (1) all of appellants had been found guilty after trial of disorderly conduct by a municipal court judge of the City of St. Peters-burg; (2) subsequently, all but three of appellants’ convictions were reversed by the circuit court. Appellees filed a motion for summary judgment which was granted by the trial court.

The sole point on appeal is whether appellants’ convictions in the municipal court, which were subsequently reversed by the circuit court, sitting in its appellate capacity, conclusively established the existence of probable cause to support their arrests and which prevents the successful prosecution by appellants of this action.

Appellees rely very heavily upon the case of Goldstein v. Sabella, Fla.1956, 88 So.2d 910, for authority that a conviction conclusively establishes probable cause even if reversed on appeal. See, also, this court’s holding in Calbeck v. Town of South Pasadena, Fla.App.2d, 1961, 128 So.2d 138. In Goldstein, supra, based on a similar issue to that presented before us, it was stated:

Our research has convinced us that the views and line of decisions which constitute the weight of authority hold that a judgment of conviction is conclusive evidence of probable cause, unless the judgment was obtained by fraud, perjury, or other corrupt means. This view is in accord with our thinking and, we believe, with logic. We do therefore adopt this view as the holding of this Court on this question. We further hold that a subsequent reversal of the judgment of conviction does not destroy the validity and effect of the determination of the question of probable cause, unless it be reversed for fraud, perjury, or other corrupt means.

See, also, Restatement of Torts, Effect of Conviction or Acquittal, § 667:

(1) The conviction of the accused by a magistrate or trial court although reversed by an appellate tribunal, conclusively establishes the existence of probable cause, unless the conviction was obtained by fraud, perjury or other corrupt means.

Appellants point out that the summary judgment entered in the instant case was based only on authority of cases, which include Goldstein, supra, dealing with malicious prosecution rather than false arrest, and the instant case is based on an action of false arrest. Appellants candidly concede that if they were here only on the theory of malicious prosecution they would have no basis for this appeal, for, in such action, litigation would have had to have had a bona fide termination in the present plaintiffs’ favor. Appellants point out that under false arrest such is»'not an essential element of the action. Appellees, on the other hand, argue in their brief, citing numerous cases to support the proposition, and in oral argument, that the rationale of the malicious prosecution cases is applicable and, therefore, should be applied to false arrest cases.

We have been unable to find any Florida decisions which apply the malicious prosecution holdings directly to false arrest situations. It is academic that the essential elements of the two actions are distinct. It appears reasonable to us that the rationale of Goldstein, supra, may be extended to cover circumstances which do constitute false arrest. In Boca Raton v. Coughlin, Fla.App. 4th, 1974, 299 So.2d 105, a case recently decided by our sister court, it was held that:

Where an officer arrests someone with probable cause he is not liable for false arrest simply because the innocence of the suspect is later proved.

Our research has indicated that there are federal authorities supporting this rationale. As was stated in the case of Palma v. Powers, N.D.Ill.1969, 295 F.Supp. 924, page 941:

. Plaintiff Frank Mamolella was actually convicted of a criminal offense arising out of his arrest. This conviction, itself, conclusively established that there was probable cause for his arrest and prosecution. He is precluded by the conviction from relitigating this issue, the same as any other issue which was necessarily determined in the criminal proceeding. It is clear, therefore, that he cannot establish an essential element of his claims of false arrest, malicious prosecution, or conspiracy, and that these claims are unfounded.

After due consideration of the issue presented, we conclude that, notwithstanding that the essential elements of the said causes of action are not identical, the underlying principles of law set out in the above-quoted language from Goldstein, supra, would be applicable to the case sub ju-dice. We think this the better view. We, therefore, hold that in the absence of fraud, prejudice, or any other corrupt means, a conviction is of sufficient determination of the element of probable cause, even if it may be subsequently reversed. We are unable to find in the record that appellants’ convictions were obtained by any of the above deceptive devices. Accordingly, we

Affirm.

HOBSON, Acting C. J., and GRIMES, J., concur.


author: SMITH, Judge.

text:
    JACQUIN-FLORIDA DISTILLING COMPANY, a Florida Corporation, Appellant, v. REYNOLDS, SMITH AND HILLS, ARCHITECTS-ENGINEERS-PLANNERS, INCORPORATED, a Florida Corporation, Appellee.
    No. X-302.
    District Court of Appeal of Florida, First District.
    Oct. 10, 1975.

      James A. Bledsoe, Jr., and Dana G. Bradford, II, Mahoney, Hadlow, Chambers & Adams, Jacksonville, for appellant.
    David W. Carstetter, Kent, Sears, Dur-den & Kent, Jacksonville, for appellee.
   SMITH, Judge.

Jacquin-Florida Distilling Company appeals from a judgment against it in the amount of $14,391.75, without interest or costs, on a claim by Reynolds, Smith and Hills, Architects-Engineers-Planners, Incorporated (RS&H), for fees earned and disbursements made under a contract to provide engineering services necessary to the modification of the waste treatment process at Jacquin’s Auburndale distillery to comply with urgent State requirements. Upon waiver of jury trial, the lower court as trier of the facts entered judgment for RS&H in the amount of its unpaid statements, but declined to allow interest and costs to RS&H, which has cross-assigned error in that ruling.

Jacquin paid only the first RS&H invoice in the amount of $397.78 and refused to pay several others, aggregating the amount of the judgment, when controversy arose over the amount of a $9,500 charge for labor, materials and laboratory reports incident to the installation of a small pilot plant to collect data at the distillery for less than a month during December 1972.

The printed form of contract which the parties signed at the instance of RS&H did not identify, except in generalities consistent with all conceivable projects but descriptive of none, the engineering services to be rendered and paid for. The provision for Jacquin’s payment of fees in the amount of RS&H payroll costs times a factor of 2.5, when considered with the uncertainty of the extent of services contracted for, would make it difficult for either owner or engineer to predict at the outset of the engagement the extent of the owner’s obligation for engineering fees. Yet, as though to balance the burden of this uncertainty, the contract placed firmly in Jacquin’s hands a recurring right to end RS&H’s services at logical intervals. Thus, the contract divides the undertaking into three distinct design phases of schematic planning, preliminary design and final design, each of which begins only on the owner’s “written- authorization to proceed” and ends with the engineer’s submission of design documents appropriate to that phase and updated estimates of the project costs excluding engineering services. At the completion of the third or final design phase, the contract contemplates that the engineer, again on the owner’s “written authorization to proceed,” will furnish additional services in the bidding or negotiating phase and the construction phase.

The schematic planning phase of this project yielded a written report by RS&H of the considerations involved in the problems at hand, general alternative solutions and recommendations, preliminary design criteria and a preliminary costs estimate, all as required by the contract. On about November 5, 1972, according to RS&H project manager Morgan, RS&H recommended to Jacquin that a small pilot plant be operated to collect waste treatment data useful in preparing the “preliminary design documents consisting of final design criteria, preliminary drawings and outline specifications” which the contract described as the fruit of the preliminary design phase. On November 8, general manager Mc-Haffie of Jacquin mailed RS&H written authorization to proceed into the preliminary design phase.

There are irreconcilable conflicts in the testimony concerning communications about the pilot plant. Morgan of RS&H testified that on November 21 he orally notified McHaffie that the original estimate of five to six thousand dollars had been revised upward to $9,500 and that McHaffie orally accepted the revised estimate on that date, two weeks before the plant was installed on December 7. McHaffie, on the other hand, testified that RS&H did not propose the pilot plant until after Jacquin’s written authorization to proceed in the preliminary design phase had been solicited and given on November 8, that Morgan said the pilot study would not cost over $5,000, that the pilot plant was installed before Thanksgiving and that he, McHaffie, did not learn of the revision to $9,500 until he received Morgan’s letter to that effect on December 11.

While we are handicapped by the trial court’s failure to make findings supporting its disposition of the matters in controversy, Townsend v. Giles, 133 So.2d 451 (Fla.App. 1st, 1961), appellant’s assertion of error in the trial court’s failure to make findings cannot be sustained under Florida practice. Dworkis v. Dworkis, 111 So.2d 70 (Fla.App. 3d, 1959); American Motor Inns of Fla., Inc. v. Bell Elec. Co., 260 So.2d 276 (Fla.App. 4th, 1972). Appellant’s citations of decisions in jurisdictions requiring findings are inapposite. Contrast Rule 52, Fed.R.C.P. In this case we are able to ascertain the trial court’s unstated findings necessary to the conclusion it reached. Our duty in these circumstances is to accept the evidence favorable to the party prevailing below and to disregard the conflicting evidence supporting appellant’s position. Richards v. Dodge, 150 So.2d 477 (Fla.App. 2nd, 1963); Coble v. Agnew, 128 So.2d 158 (Fla.App. 2nd, 1969); Pergament v. Pergament, 117 So.2d 26 (Fla.App. 2nd, 1960). See also Peacock v. Peacock, 207 So.2d 292 (Fla.App. 1st, 1968).

Resolving these conflicts favorably to the position urged in support of the judgment below, we must presume that the trial court found on substantial evidence that, after initial misconceptions by both RS&H and Jacquin of the cost of the pilot plant, Jacquin permitted the plant to be installed at its distillery on December 7, two weeks after Jacquin was orally informed of the increased cost, that Jacquin permitted the plant to continue operation after December 11, when Jacquin admits receiving Morgan’s letter confirming the increased cost, and that Jacquin permitted the plant to complete its scheduled course even after December 20, when Jacquin’s vice-president first protested the increased charge. In these circumstances the trial court must have concluded, and we agree, that Jacquin, having authorized RS&H to proceed in the preliminary design phase, became indebted to RS&H for engineering services rendered by it in that phase and was obliged to make prompt payment of statements submitted pursuant to paragraph 6.2.1 of the contract, providing:

“The OWNER will make prompt monthly payments in response to the ENGINEER’S monthly detailed statements for all categories of services rendered under this Agreement and for reimbursable expenses incurred.”

We have considered Jacquin’s argument that RS&H cannot recover for its services in the absence of proof that its invoices were unpaid for more than sixty days, relying on paragraph 6.3.6 of the agreement, reading:

“If the OWNER fails to make any payment due the ENGINEER on account of his services and expenses within sixty days after receipt of the ENGINEER’S bill therefor, the amounts due the ENGINEER shall bear interest at the legal rate in force at the principal place of business of the ENGINEER from said sixtieth day, and in addition the ENGINEER may, after giving- seven days’ written notice to the OWNER, suspend services under this Agreement until he has been paid in full all amounts due him on account of his services and expenses.”

While it is evident that the RS&H invoices remained unpaid for long beyond sixty days, paragraph 6.3.6 relates only to the time when interest begins to be payable and the engineers’ services may be suspended. That paragraph has no effect on Jacquin’s responsibility to promptly pay statements for engineering services rendered during a design phase undertaken with written authorization to proceed.

Jacquin argues also that it had no obligation to pay for engineering services rendered during the preliminary design phase because it never received the design documents and written reports which RS&H was to have submitted at the conclusion of that phase. But the contract does not permit an interpretation that RS&H became entitled to compensation only at the conclusion of each phase upon preparing and submitting the written documentation resulting from its prior work. Because RS&H was justified by paragraph 6.3.6 in suspending services in February 1973 for nonpayment of its statements beginning with that of November 30, 1972, RS&H’s consequent failure to complete the preliminary design phase by preparing and submitting a written preliminary design did not affect its right to compensation for services rendered until the time services were justifiably suspended.

We have also considered appellant’s contention that the contract was indivisible and that the engineers were not to be compensated for any services unless and until the entire undertaking was performed by the successful modification of its waste treatment process. That argument is untenable. The contract, providing for periodic payments and successive renewals of the owner’s authorization to proceed in each phase, plainly cannot be regarded as imposing an indivisible obligation on the engineer to perform the services required in all phases or else sacrifice compensation for work done satisfactorily in early phases.

The trial court, evidently concluding that there are inequities in RS&H’s position notwithstanding the debt due, disallowed interest and costs to RS&H. While there is authority for such action in cases formerly cognizable in equity [Edwards v. John O. Evans Const. Co., 155 Fla. 263, 19 So.2d 799 (Fla.1944)] § 57.041, F.S.1973, provides that a party recovering judgment in an action at law “shall recover all his legal costs and charges.” RS&H is likewise entitled to interest on the debt as a result of Jacquin’s failure to pay when due, irrespective of Jacquin’s good faith in contesting the claim. Parker v. Brinson Constr. Co., 78 So.2d 873 (Fla.1955); Nationwide Mutual Ins. Co. v. Griffin, 222 So.2d 754 (Fla.App. 4th, 1969); Florida Home Ins. Co. v. Braverman, 163 So.2d 512 (Fla.App. 3d, 1964).

The judgment below will be affirmed insofar as it resolves the principal controversy favorably to appellee, but reversed with instructions for the entry of an amended judgment to include costs, to be taxed in the trial court, and interest on the invoice amounts aggregating the principal debt at the rate of six percent per annum from dates beginning sixty days after submission of RS&H’s invoices until the date of entry of the amended judgment.

Affirmed in part, reversed in part.

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

      . The form was published by the National Society of Professional Engineers and was entitled “Standard Form of Agreement between Owner and Engineer for Professional Services,” SPE 1910-1 (1970 Edition).

      . Jacquin did not pay RS&H’s invoice for $2,197 covering services in this phase.

      . The pilot plant was installed and monitored not by RS&H but by an affiliated engineering firm. While the point was made below that RS&H’s referral of this work constituted the acquisition of “additional services” from others for which explicit written authorization by the owner was necessary, that point has not been urged before this Court. We therefore treat the pilot plant, as the parties have treated it here, as engineering services rendered by RS&H for which a charge of $9,500 would be justified by the formula of payroll costs times a factor of 2.5, as provided for in the contract.

      . None of the authorities cited by appellant sustains its position as we understand it. One of them, Standley v. Egbert, 267 A.2d 365 (D.C.App.1970), in which an architect was denied compensation for work performed in the second or design development phase after having neglected to obtain the required approval by the owner of the schematic design, provides a useful contrast with this ease.


text:
    STATE of Florida, Appellant, v. Harold BAKER, Appellee.
    No. X-429.
    District Court of Appeal of Florida, First District.
    Oct. 8, 1975.
    Robert L. Shevin, Atty. Gen., Donald K. Rudser, Asst. Atty. Gen., and F. Joseph DuBray, Jacksonville, for appellant.
    Richard W. Ervin, III, Public Defender, for appellee.
   SMITH, Judge.

Following the jury’s verdict that he is guilty of robbery, appellee filed a timely motion for new trial asserting among other grounds his counsel’s discovery of new and material evidence which, if introduced at the trial, would probably have changed the verdict. Appellee and his counsel could not with diligence have discovered and produced the evidence at trial. The trial court granted appellee’s motion solely on that ground pursuant to Rule 3.600(a)(3), R.Cr.P., and the State appealed. Sec. 924.-07, F.S.1973.

Appellee’s motion and the trial court’s order were predicated on transcripts of statements taken under oath by appellee’s counsel from Earlene Johnson and her mother to the effect that Ms. Johnson’s husband, John E. Johnson, had stated at the time of appellee’s arrest and later that appellee had not committed the robbery. Ms. Johnson’s mother stated further that Johnson stated that he himself committed the offense in question. Johnson left town soon after allegedly making the statements, and his location when the women gave their statements and at the time of the trial and post-trial hearing was unknown.

The trial court’s order granting a new trial is entitled to a strong presumption of correctness, and we interfere with only the greatest reluctance. E. g., Russo v. Clark, 147 So.2d 1 (Fla.1962). That rule is especially applicable in a criminal case such as this, in which the trial court obviously had reservations about the strength of the State’s identification testimony. Yet neither this Court nor the trial court is privileged to abrogate Rule 3.-600(a)(3), which contemplates that a new trial on grounds of newly discovered evidence may be granted only when the evidence would probably have changed the verdict at the former trial or would probably result in a different verdict upon a new trial. Testimony by Earlene Johnson and her mother attributing a statement to John E. Johnson inculpating himself and exonerating appellee would not have been admissible at the former trial and it could not be admitted at the desired new trial. Francis v. State, 308 So.2d 174 (Fla.App. 1st, 1975); Pitts v. State, 307 So.2d 473 (Fla.App. 1st, 1975).

If the preferred evidence cannot be admitted, it cannot affect the result of the trial. See generally Harvey v. State, 87 So.2d 582 (Fla.1956) and Luster v. State, 262 So.2d 910 (Fla.App. 3rd, 1972). Contrast State v. Brown, 177 So.2d 532 (Fla.App. 2nd, 1965), in which evidence otherwise inadmissible was considered on motion for new trial by stipulation of the parties. See also United States v. McBride, 463 F.2d 44 (5th Cir., 1972), cert. den., 409 U.S. 1027, 93 S.Ct. 475, 34 L.Ed.2d 320, and McCroskey v. United States, 339 F.2d 895 (8th Cir., 1965), applying the comparable Federal rule.

The trial court’s order granting a new trial on the limited grounds of Rule 3.-600(a)(3), R.Cr.P. is

Reversed.

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

      . The principle this Court enforced in Francis and Pitts, that evidence of “declarations against penal interest” is not excepted from the hearsay exclusion, has been abandoned in some jurisdictions. In Chambers v. Mississippi, 410 U.S. 284, 298-302, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), the Supreme Court found circumstances giving the question constitutional dimensions and held that Mississippi courts offended due process by excluding such a declaration. The declaration would be admissible under Rule 804(b)(3), Federal Rules of Evidence.


text:
    Carlos DELGADO, Appellant, v. The STATE of Florida, Appellee.
    No. 75-27.
    District Court of Appeal of Florida, Third District.
    Sept. 23, 1975.

      Pollack, Tunkey, Robbins, Roth & Wei-ner, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and S. Sylvia Harden, Asst. Atty. Gen., for appel-lee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Carlos Delgado appeals a judgment of conviction, entered pursuant to a jury trial, and imposition of a 15 year sentence in the State Penitentiary for sale and possession of cocaine.

Two points are presented by Delgado for reversal. First, that the trial court erred in failing to enter a directed verdict of acquittal at the close of the State’s case and at the close of all of the evidence, primarily for the reason that the direct testimony of the State’s witnesses was not credible. Probative value and credibility of witnesses’ testimony should not be determined on a motion for directed verdict for acquittal. Lynch v. State, Fla.1974, 293 So.2d 44. Examination of the complete record discloses that there was substantial evidence favorable to the State from which the jury found and entered its verdict.

Delgado next contends that the court erred in failing to grant a mistrial based on prosecutorial misconduct including remarks during closing argument. We find no conduct or remarks by the prosecutor that warrant or require the granting of a mistrial.

No reversible error having been shown, the judgment of conviction and sentence is affirmed.


text:
    Delma DAVIS, Appellant, v. The STATE of Florida, Appellee.
    No. 74-1696.
    District Court of Appeal of Florida, Third District.
    Sept. 16, 1975.

      Phillip A. Hubbart, Public Defender and Mark King Leban, Asst. Public Defender, and Thomas G. Murray, Legal Intern, for appellant.
    Robert L. Shevin, Atty. Gen. and J. Robert Olian, Asst. Atty. Gen., for appellee.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   PER CURIAM.

Defendant-appellant by an information filed on April 12, 1971 was charged with two counts of assault with intent to commit murder and two counts of robbery. By information filed December 21, 1972 defendant was charged with rape following an indictment therefor returned by fhe grand jury. At the conclusion of a jury trial on the charges enumerated above, defendant was found guilty on all counts except one of the robbery counts. Defendant was sentenced to life terms for the robbery and rape counts and IS years imprisonment each on the two assault with intent to commit murder counts. This appeal follows.

Having examined appellant’s first two points on appeal and concluded they are without merit, we next considered appellant’s third point, to wit: the trial court erred in refusing defendant’s requested jury instruction on the consequences of a verdict of not guilty by reason of insanity.

This same issue has been raised previously and we held that the trial judge was not required or under a duty to give such a charge, but rather it was a matter resting within his sound judicial discretion. See McClure v. State, Fla.App.1958, 104 So.2d 601. In light of the recent Florida Supreme Court holding in Johnson v. State, Fla.1974, 308 So.2d 38, we still find the McClure case to be good law. Thus, this point of appellant must fail.

Defendant-appellant’s fourth and last contention is that the trial court erred in denying defense motion for a new trial where the state failed to adduce any testimony that would prove beyond a reasonable doubt that the defendant was legally sane at the time of the alleged offense.

There is numerous authority to support the proposition that where evidence as to the defendant’s sanity is in conflict, it is within the province of the trier of the facts to resolve the conflict in favor of the sanity of the defendant even where the conflict is between the testimony of lay witnesses and opinions of psychiatrists. See Byrd v. State, Fla.1974, 297 So.2d 22; Clayton v. State, Fla.App.1973, 272 So.2d 860; Williams v. State, Fla.App.1973, 275 So.2d 284; Bethel v. State, Fla.App.1974, 305 So.2d 251.

There being conflicting testimony as to the sanity of the defendant-appellant in the case sub judice, it was within the province of the jury to determine this question of fact and we will not disturb this determination on appeal.

Accordingly, the judgment herein appealed is affirmed.

Affirmed.


text:
    Robert B. ANDREWS, Appellant, v. The STATE of Florida, Appellee.
    No. 75-114.
    District Court of Appeal of Florida, Third District.
    Oct. 14, 1975.
    Carling H. Stedman and Stephen L. Ras-kin, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Lance R. Stelzer, Asst. Atty. Gen., for appellee.
    Before BARKDULL, C. J., and HAV-ERFIELD and NATHAN, JJ.
   PER CURIAM.

This appeal is from an order of the trial court denying appellant’s motion, filed under Rule 3.850, RCrP, 34 F.S.A. for relief from a judgment of conviction. The defendant, Andrews, appeals contending his court appointed counsel failed to subpoena a witness for the purpose of testifying at his trial, which evidence, once obtained, would strongly support defendant’s claim of self-defense.

The record, at the Rule 3.850 hearing, reflects that Andrews’ counsel did subpoena the witness in question and exercised the judgment and skill required of him under the facts of this case and applicable law. Caplinger v. State, Fla.App.1973, 271 So.2d 780; Fuller v. Wainwright, Fla.1970, 238 So.2d 65 and Weeks v. State, Fla.App.1971, 253 So.2d 459.

Affirmed.


author: McCORD, Judge.

text:
    John William LAWSON, Appellant, v. STATE of Florida, Appellee.
    No. X-271.
    District Court of Appeal of Florida, First District.
    Sept. 23, 1975.

      Richard W. Ervin, III, Public Defender, and David J. Busch, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for ap-pellee.
   McCORD, Judge.

This is an appeal from judgment and sentence of appellant for possession of over five grams of marijuana. The evidence shows that police officers staked out the Pensacola airport to wait for a National Airlines flight which they had been advised would be carrying two suitcases full of marijuana. Upon arrival of the plane, two suitcases remained unclaimed on the baggage rack and were taken into the back room by the airline agent where they were examined and found to contain marijuana (no question is raised as to the search). Later, appellant arrived, presented claim stubs, and requested the two suitcases. They were given to him and he carried them to the front of the counter where he set them down. He then left them and walked out of the building but returned shortly, picked them up and began walking toward the building exit. Upon seeing Detective Willie Grey, he put the suitcases down and left the building.

Appellant contends that the trial court erred in denying his motion for judgment or acquittal in that the evidence does not show that he had knowledge that the two suitcases he carried contained marijuana. We disagree with his view of the evidence. Appellant’s abandonment of the suitcases over which he had complete custody and control and his flight upon seeing the police officer was sufficient evidence to infer that he had knowledge of their contents. See Mackiewicz v. State, Fla., 114 So.2d 684.

Affirmed.

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


author: NATHAN, Judge.

text:
    Sam DIONISE, Appellant, v. The KEYES COMPANY et al., Appellees. Augusto ALFONSO and Consuelo Alfonso, Appellants, v. Gladys MOLNE, Appellee. Augusto ALFONSO and Consuelo Alfonso, Appellants, v. Sam DIONISE, Appellee.
    Nos. 74-1720, 75-8, 75-139.
    District Court of Appeal of Florida, Third District.
    Oct. 14, 1975.

      Bryson & Berman, Miami, for Sam Dionise.
    Melvyn Kessler, Miami, for Alfonso.
    Joseph Pardo, Miami, for Keyes Co.
    Kneale, Starkweather & de la Torriente, Miami, for Molne.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   NATHAN, Judge.

This is a consolidation of three appeals growing out of a suit for specific performance of a real estate transaction in which Sam Dionise entered into a purchase and sale contract with Gladys Molne in connection with certain real property. The complaint alleged that the real estate broker in the transaction was the Keyes Company, by and through its employees, Mr. and Mrs. Alfonso, also real estate brokers.

Specific performance having been denied by the trial court because of a forgery of Mrs. Molne’s signature, suits were brought by Dionise against the Keyes Company and the Alfonsos for compensatory and punitive damages. Mrs. Molne also brought suit against the Alfonsos for compensatory and punitive damages. The trial court granted a motion to dismiss the complaint against the Keyes Company from which order Dionise appeals. Dionise obtained a jury verdict against the Alfonsos for punitive and compensatory damages caused by the forgery, in the sum of $41,689 compensatory and $10,000 punitive damages on which verdict the trial court entered a re-mittitur reducing Dionise’s recovery to $16,000, which judgment Dionise also appeals. Mrs. Molne obtained a judgment by jury verdict against the Alfonsos in the sum of $6,017 compensatory and $10,000 punitive for damages caused by the forgery.

Dionise contends that the trial court erred in dismissing his complaint against the Keyes Company as the complaint stated a cause of action and further that the trial court erred in dismissing it with prejudice, without permitting him to amend. Dionise also contends that the court erred by entering a remittitur in his judgment against the Alfonsos without allowing the alternative of a new trial or acceptance of the re-mittitur. He seeks reinstatement of the judgment.

The Alfonsos appeal the judgments of Dionise and Molne against them. Mr. and Mrs. Alfonso contend that the trial court erred by excluding the testimony of a lawyer and the lawyer’s legal secretary, which testimony, when proffered, was to the effect that Mrs. Molne was aware of and consented to the sale. The trial court excluded such testimony on the ground that there was an attorney-client privilege although Mrs. Molne disclaimed her privilege. The Alfonsos’ argument, then, is that the court improperly applied the attorney-client privilege. Mrs. Alfonso contends that punitive damages should not have heen awarded against her as there was no evidence of her net worth. There are only two alleged errors by the trial court that we need consider in determining these appeals: (1) whether the trial court erred in excluding the testimony of the lawyer purportedly representing Mrs. Molne and the lawyer’s legal secretary and (2) whether the trial court erred in granting the Keyes Company’s motion to dismiss Dionise’s complaint against it.

As to whether the trial court erred in excluding the testimony of the lawyer and the secretary, we note at the outset that the attorney-client privilege is firmly established in the law of this state. Keir v. State, 1943, 152 Fla. 389, 11 So.2d 886. “The confidential relationship of attorney and client is a sacred one, and one that is indispensable to the administration of justice.” Seaboard Air Line Railroad Company v. Timmons, Fla.1952, 61 So.2d 426, 428. Generally speaking, however, the relationship of attorney and client must exist in order for the communications to be privileged. Keir v. State, supra. In the instant case, the proferred testimony of both the attorney and the secretary was to the effect that Mrs. Molne was represented by that attorney in closing the real estate transaction being litigated; and that a discussion in connection with the closing of the transaction was held in the attorney’s office between the attorney, Mrs. Molne and Mr. Alfonso. Counsel representing Mrs. Molne at the hearing objected to admission of the testimony as being privileged communication. In court, as well as on written interrogatories, Mrs. Molne denied that she retained that attorney, or that she paid attorneys fees on any matter related to the property which is the subject matter of this litigation. The court granted the motion to strike answers given relating to any conversation between Mrs. Molne and the attorney and precluded further testimony of the attorney and legal secretary. In our opinion, it was error for the court to invoke the attorney-client privilege in this case for the following reasons: There was proferred testimony to the effect that a conversation took place between the attorney and Mrs. Molne relating to the real estate transaction herein litigated, which conversation took place in the presence of Mr. Alfonso, an adverse party to this litigation. Further, Mrs. Molne denied and disavowed the attorney-client relationship and thus was not in the posture to urge the attorney-client privilege. If admitted into evidence, the excluded testimony of the two witnesses could materially affect the outcome of the case. Therefore, we find the exclusion of the testimony based upon the attorney-client privilege to be prejudicial error requiring reversal. The judgments in favor of Dionise against the Alfonsos and in favor of Molne against the Alfonsos are reversed with directions to grant a new trial.

As to the dismissal of the complaint of Dionise against the Keyes Company, the court stated, “I am not making any findings of fact on it. I mean as to the cause of action. The complaint did state a cause of action.” (emphasis added) But, he continued, since it was determined at a prior hearing that the signature was a forgery, it “ . . . wouldn’t indicate that the Keyes Company . . . was vicarious (sic) liable.” This was tantamount to entering a summary judgment. Although counsel for Dionise did not move the court for permission to amend his complaint, this was excused by the trial court’s statement.

The remaining contentions of the parties need not be considered as they are now rendered moot. The respective causes are hereby reversed with directions to grant a new trial and to permit Dionise to amend his complaint against Keyes if he so desires.

Reversed and remanded with directions.


author: McCORD, Judge. BOYER, Chief Judge

text:
    Amy JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. X-297.
    District Court of Appeal of Florida, First District.
    Oct. 10, 1975.
    Louis O. Frost, Jr., Public Defender, and Steven E. Rohan, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., Andrew W. Lindsey, and Raymond L. Marky, Asst. Attys. Gen., for appellee.
   McCORD, Judge.

Appellant was adjudged guilty of possession of a controlled substance and she appeals from the judgment and sentence. She was arrested initially for violation of Jacksonville Municipal Ordinance 330.116.S by “failing to identify herself to a city police officer.” Upon arrest she was placed in the officer’s patrol car and transported to the city jail where she was searched by a female correctional officer. A pistol and seven packets of drugs were found on her person. Appellant contends that the search was not conducted as an incident to a lawful arrest and that it was, therefore, invalid; that the trial court erred in not granting her motion to suppress the evidence. In support of the arrest, appellee relies upon the following pertinent portions of the aforesaid ordinance:

“(a) Right to Detain and Inquire. Any law enforcement officer of the City having reasonable cause to do so may, in the manner hereinafter described, detain any person observed by him in a public place or on private property evidently not his own to inquire into such person’s identity-
(b) Reasonable Cause. An officer shall have reasonable cause to detain and inquire when he has reasonable grounds to believe that the person so observed may recently have committed or may imminently commit an offense or any act injurious to the person or property of another in the immediate vicinity, and when one or more of the following circumstances exist:
(1)* * *
(2) * * *
(3) * * *
(4) * * *
(5) the person observed attempts to avoid or escape the approaching officer.” (Emphasis supplied)

As shown by the word “and” which we have underlined in the quoted portion of the above ordinance, a police officer must have both reasonable cause to detain and inquire as above defined and (under the contention in the present case) the person observed must attempt to avoid or escape the approaching officer.

Here, the evidence presented by the state shows that two Jacksonville police officers on routine patrol at about 9 p. m. on August 25, 1974, had parked their car and were making a walking routine check of establishments in an area which one of the officers described as one of the highest crime and drug traffic centers in Jacksonville. As further described by the officer, as they walked along and rounded a corner, they observed appellant sitting on the fender of an automobile with a man who “was looking straight at them.” Appellant and the man were talking and she then jumped down from the automobile fender and proceeded to walk briskly in the other direction. This occurred on a public sidewalk or street in the City of Jacksonville. The officer considered this to be of a suspicious nature, so he called to her and told her to stop. When she did not stop, he briskly hurried in front of her and asked her for identification. She did not respond; he asked her for identification again and she said that she didn’t have to show him anything. He informed her that she was required by municipal ordinance to show him identification when requested by him and he then placed her under arrest for failure to identify herself and transported her to the Duval County Jail. At the jail she gave her name which was found to be correct from a later check, but she did not give any written identification. Also, at the jail, a female correctional officer searched appellant and found the pistol and drugs.

The Jacksonville ordinance also provides as follows as to the manner of detention and inquiry:

“(c) Manner of Detention and Inquiry.
(1) The officer shall detain the person so observed at the time and place where he is found and, first identifying himself and the cause for the detention and inquiry, the officer shall ask the person detained to identify himself by name and address and may ask him to produce written identification reasonably confirming his identity.
(2) The officer shall release the detained person if he orally identifies himself by name and address and produces written identification reasonably confirming his identity. The officer may request that the detained person forthwith leave the immediate vicinity if the detained person fails to produce written identification reasonably confirming his identity and, in the circumstances set forth in paragraph (b) hereof, the officer has reasonable grounds to believe that such person may imminently commit an offense or any act injurious to the person or property of another in the immediate vicinity.
(3) Any person (i) who declines to identify himself orally by name and address or (ii) who declines or fails to leave the immediate vicinity at the officer’s request, after failing to produce written identification reasonably confirming his identity, may be further detained by the officer in the officer’s patrol car or at any identification headquarters designated by the Sheriff. During his detention, such person may be further interrogated, photographed and fingerprinted for identification purposes, and an investigation may be made as to whether any law enforcement authority seeks custody of such person for an alleged criminal offense. Unless there is probable cause to arrest any person detained as authorized by this subpara-graph, such person shall be released upon the expiration of three hours of detention or when the foregoing purposes of identification are accomplished, whichever shall first occur. Thereupon, at the election of the detained person, he shall be transported by an officer to the place where he was first detained. The officer shall make a full written report of any detention made under this subpar-agraph.
(4) The officer may search any detained person for firearms or other dangerous instruments who the officer reasonably believes, under the circumstances then existing, may attempt to injure the officer in the course of the detention.”

There is no evidence to support reasonable grounds for the officers to believe at the time they first observed appellant that she (in the words of the ordinance) “may recently have committed or may imminently commit an offense or any act injurious to the person or property of another in the immediate vicinity.” The officers only testified that her above related actions were suspicious. Thus, the first element required by the ordinance was not satisfied. In absence of the first element, we cannot say that the mere fact that appellant and the man with whom she was talking terminated their conversation, and she walked briskly in the opposite direction from the officers was sufficient ground upon which to detain her and then arrest her for “failing to identify herself.” A ruling otherwise would mean that any citizen who terminated a conversation with another on a public sidewalk at the time a police officer happened to be approaching and who then walked briskly in the opposite direction from the approach of the police officer, would be subject to detention. The ordinance by its terms does not authorize detention under such circumstances. In State v. Ecker, Fla., 311 So.2d 104, the Florida Supreme Court, in upholding the constitutionality of the state’s “loitering” statute, Section 856.021, Florida Statutes (1973), stated:

“We hold that Section 856.021, Florida Statutes, is not vague or overbroad and specifically the words ‘under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity’ means those circumstances where peace and order are threatened or where the safety of persons or property is jeopardized. In justifying an arrest for this offense, we adopt the words of the United States Supreme Court in Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 906 (1968): ‘. . . the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant’ a finding' that a breach of the peace is imminent or the public safety is threatened.
Self Incrimination
It is contended that the statute is unconstitutional because for all practical purposes it requires an accused to ‘identify himself and explain his presence and conduct.’ The issue of identification and the issue of explanation are separate and distinct. Under circumstances where the public safety is threatened, we find no constitutional violation in requiring credible and reliable identification.
j|C ‡ 5j< ‡ ‡ #
The defendants contend that this statute authorizes police officers to use their unbridled discretion to arrest whomever they please. We disagree. This statute only authorizes an arrest where the person loitering or prowling does so under circumstances which threaten a breach of the peace or the public safety. While the statute might be unconstitutionally applied in certain situations, this is no ground for finding the statute itself unconstitutional.”

The issue of the constitutionality of the Jacksonville ordinance has not been raised in this case, but it can readily be seen that the first element of the Jacksonville ordinance (reasonable grounds to believe that the person observed may have committed or may imminently commit an offense, etc.) must be present for an officer to stop a citizen on the public street and demand identification.

In addition, even if the officer had authority to stop appellant and demand identification, he had no authority to arrest her for “failure to identify.” The ordinance does not make “failure to identify” a crime. Having arrested appellant for a non-existent crime, there could be no valid search as an incident to a lawful arrest.'

While the municipal ordinance states that the officer may search any detained person for firearms or other dangerous instruments who the officer reasonably believes, under the circumstances then existing, may attempt to injure him in the course of the detention, the officer testified that he had no reason to believe appellant might attempt to injure him. Thus, there was no basis for the seárch under the provisions of the ordinance even if there had been a legal basis for the detention.

The judgment and sentence and the order of the trial judge denying appellant’s motion to suppress the evidence are reversed.

RAWLS, J., concurs.

BOYER, C. J., dissents.

BOYER, Chief Judge

(dissenting).

I respectfully dissent. It is pertinent to note that the constitutionality of the ordinance of the City of Jacksonville quoted and discussed in the majority opinion is not here under attack. In my view, the actions of the appellant in the area known to be a “high-crime area” under the circumstances recited in the majority opinion were sufficient justification, indeed required, the actions taken by the police officer. I would affirm.


text:
    Earl P. BRANE, Appellant, v. Rita BRANE, Appellee.
    No. 75-746.
    District Court of Appeal of Florida, Second District.
    Sept. 24, 1975.
    Rehearing Denied Oct. 28, 1975.
    Charlie Luckie, Jr., of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellant.
    Sondra Goldenfarb, of Donahey & Fur-nell, Clearwater, for appellee.
   GRIMES, Judge.

The court below has judiciously unraveled this complex post-dissolution proceeding. However, the determination of the amount of appellant’s alimony obligation for the 1974-75 accounting period appears to have been based upon some erroneous computations. In order to determine the amount of alimony payments required by the property settlement formula, the court projected appellant’s income for the first one-third of the accounting period. In making these calculations .it now appears that the court should have used $3,114.78 in lieu of $7,114.78 for cash draws and $680 in lieu of $2,040 for the auto lease payments. Had the court used these figures, appellant’s alimony obligation for the 1974-75 accounting period would have been $314.34 per month rather than $559.78 per month. The order is hereby amended to reflect this change, and the arrearage is reduced to that extent.

The order is affirmed as amended.

HOBSON, Acting C. J., and BOARD-MAN, J., concur.


text:
    Walter Richard AMELL, Appellant, v. The STATE of Florida, Appellee.
    No. 74-1151.
    District Court of Appeal of Florida, Third District.
    Sept. 9, 1975.
    Rehearing Denied Oct. 29, 1975.
    Carling H. Stedman and Stephen L. Ras-kin, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Stephen V. Rosin, Asst. Atty. Gen., for appel-lee.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   PER CURIAM.

Appellant was found guilty by a jury of two counts of robbery and sentenced by the trial court to two consecutive life terms which were later modified to two concurrent life terms.

Appellant has appealed the judgment and sentences. The several grounds relied on by the appellant for reversal have been considered by us in the light of the record, briefs and arguments of counsel and we find no reversible error has been shown. The record discloses that the case was fully and fairly tried, that the verdict is supported by the evidence and that the several rulings of the trial court challenged by the appellant did not on the record and under the law constitute harmful error.

Therefore the judgment and sentences appealed are affirmed.

Affirmed.


text:
    Karl KNIGHT and Belva Knight, his wife, Appellants, v. GLOBAL CONTACT LENS, INC., Appellee.
    No. 74-1256.
    District Court of Appeal of Florida, Third District.
    Sept. 9, 1975.
    Rehearing Denied Oct. 29, 1975.
    Noriega & Bartel, Miami, for appellants.
    Robert M. Brake, Coral Gables, for ap-pellee.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   PER CURIAM.

This appeal arises out of a landlord-tenant dispute which has been before this court on other occasions. Global Contact Lens, Inc. v. Knight, Fla.App.1971, 254 So.2d 807, and Global Contact Lens, Inc. v. Knight, Fla.App.1970, 231 So.2d 9. In the earlier stages of the case, it was determined that appellant Karl Knight, landlord and defendant in the trial court, was lawfully entitled to the possession of his property occupied by Global Contact Lens, Inc., as tenant, and that Global had wrongfully obtained a temporary injunction to prevent an ouster by the landlord. This court, in its most recent ruling, remanded the case to the trial court for an adjustment of the damages awarded. Global Contact Lens, Inc. v. Knight, Fla.App.1971, 254 So.2d 807, 810. On remand, a final judgment on costs and damages was entered by the trial court. It is from this judgment, dated July 30, 1974, that appellant brings this appeal.

We have considered the record, the numerous points of law and contentions in the briefs, and the arguments of counsel in light of the controlling principles of law, and have concluded that no reversible error has been demonstrated, except as follows :

First, we find that it was error to include appellant Belva Knight as a co-defendant in the order of final judgment on costs and damages. A review of the record before us shows that Belva Knight was never served with summons or other process and that she was never properly added as a party to the cause. Before a final judgment for damages may be rendered against an individual, it is basic that in personam jurisdiction must be obtained. Without in personam jurisdiction, the trial court lacked authority to include appellant, Belva Knight in the final judgment on costs and damages. T. J. K. v. N. B., Fla.App.1970, 237 So.2d 592; and Fidelity-Philadelphia Trust Company v. Ball, Fla.App.1968, 208 So.2d 282. Therefore, this portion of said order is reversed.

Secondly, we find that it was error for the trial court not to include any award of attorney’s fees as an element of damages suffered by appellant, Karl Knight. This court has previously concluded that an injunction was wrongfully issued against said appellant (by affirming a decision of the trial court that an injunction was improper) and said conclusion became the law of this case. Global Contact Lens, Inc. v. Knight, Fla.App.1971, 254 So.2d 807, 808; Global Contact Lens, Inc. v. Knight, Fla.App.1970, 231 So.2d 9; and Leybourne v. Furlong, Fla.App.1964, 161 So.2d 221. In Florida, it is clear that damages recoverable as a result of the wrongful issuance of an injunction include attorney’s fees. Global Contact Lens, Inc. v. Knight, Fla.App.1971, 254 So.2d 807; Aviation Investments, Inc. v. Johnason, Fla.App.1965, 177 So.2d 369; and United Bonding Insurance Company of Indianapolis v. Presidential Insurance Company, Fla.App.1963, 155 So.2d 635. In the instant appeal, the record reflects that substantial uncontradicted sworn testimony shows that appellant, Karl Knight, suffered damages for attorney’s fees attributable to the wrongfully issued injunction. This court has previously remanded the cause to the trial court for a separation and determination of the amount of such attorney’s fees. Global Contact Lens, Inc. v. Knight, Fla.App.1971, 254 So.2d 807, 810. Therefore, to the extent that the final judgment on costs and damages did not allow attorney’s fees as an element of damages, this cause is remanded for reconsideration by the trial court not inconsistent with the views expressed herein and in Global Contact Lens, Inc. v. Knight, Fla.App.1971, 254 So.2d 807.

Affirmed in part, reversed in part and remanded.


text:
    BLUE CROSS OF FLORIDA, INC., and Blue Shield of Florida, Inc., Appellants, v. Cecil RAY and Ruth Ray, husband and wife, Appellees.
    No. W-527.
    District Court of Appeal of Florida, First District.
    Sept. 5, 1975.
    Rehearing Denied Oct. 30, 1975.
    Frank C. Bozeman, of Harrell, Wilt-shire, Bozeman, Stone, Swearingen & Hart, Pensacola, for appellants.
    Roderic G. Magie, of Levin, Warfield, Middlebrooks, Graff, Mabie, Rosenbloum & Magie, Pensacola, for appellees.
   PER CURIAM.

Affirmed. See Dawson v. Blue Cross Association, 293 So.2d 90 (1 Fla.App.1974).

RAWLS, Acting C. J., McCORD, J., and SMITH, SAMUEL S., Associate Judge, concur.