author: PER CURIAM. BARKDULL, Chief Judge

text:
    Pauline M. BERTRAM, Appellant, v. Richard M. BERTRAM, Appellee.
    Nos. 76-173, 76-174.
    District Court of Appeal of Florida, Third District.
    June 2, 1976.
    Miller & Podell, Miami Beach, for appellant.
    Fromberg, Fromberg & Roth and Jeffrey Michael Cohen, Miami, for appellee.
    Before BARKDULL, C. J., and HAV-ERFIELD, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The marriage of the appellant Pauline M. Bertram and the appellee Richard H. Bertram was dissolved by a divorce judgment entered in the circuit court of Dade County on April 17, 1970. The custody of the six minor children of the marriage was awarded to the wife, and the husband was ordered to pay to the wife for child support the sum of $2,000.00 per month, (one-sixth thereof being for each child until reaching 21 years of age). The judgment further provided that the husband should pay “all extraordinary medical bills for the said minor children, including psychiatric care as may be necessary”.

On December 1, 1975, the wife filed a motion alleging the husband was in default of the provision of the judgment for payment to her of extraordinary medical expenses of the children, by having failed and refused to pay, or reimburse her for payment of $3,764.79 for medical expenses and expenses incidental thereto for treatment of the daughter Anne Elizabeth at a clinic at the Duke University Medical Center. The motion further alleged certain amounts paid and incurred, and to be incurred, for dental surgery and for orthodontial treatment of the daughter Caroline. The motion prayed for suit money for discovery to sustain the foregoing; that the husband be cited for contempt for failure to pay the said expenses relating to Anne Elizabeth; that the husband be ordered to pay the amount necessary for the said past and future treatment of Caroline; and to pay the wife’s attorney’s fees incident to the proceeding.

The husband filed a motion for modification of the judgment, as to his visitation privileges in certain respects, and, upon alleging that Caroline was living apart from the home maintained by the wife and was self-supporting, seeking to have the child support payments reduced by one-sixth. In response thereto the wife averred continued need for child support for Caroline, based on facts which need not be recited here.

Following a hearing thereon, an order was entered by which the trial court modified the judgment as to visitation rights of the husband in certain respects; denied the husband’s motion for reduction of child support; and held the husband should pay for the dental surgery and orthodontial work required for Caroline. The wife’s motion for attorney fees was denied. With regard to the medical bills and expenses for the treatment of Anne Elizabeth, the order denied the wife’s motion, as follows:

“2. Defendant-husband should not be required to pay the bills in the amount of $3,764.79 incurred on behalf of Anne Bertram for treatment received at the private diagnostic clinic, Medical Division, at Duke University Medical Center, Durham, North Carolina. The court does not consider said expenses to be ‘extraordinary medical bills’ within the intent and meaning of the final judgment of divorce”.

The wife filed two interlocutory appeals from said order. Appeal No. 76-173 was directed to the above quoted provision of the order, relating to the medical expenses of Anne Elizabeth. Appeal No. 76-174 was directed to the denial of the wife’s application for attorney fees. The appeals were consolidated here.

A principal question involved is whether the trial court was in error in holding that the expenses of Anne Elizabeth for treatment at the clinic at Duke Medical Center were not an obligation of the husband within the intent and meaning of the judgment.

Anne Elizabeth was treated for obesity. The treatment extended over a period of two-and-one-half months. She was excessively overweight. Where she should have weighed around 120 pounds, her weight had increased to 192 pounds. According to medical reports filed in evidence, while her general condition of health was good, the excessive weight could lead to serious illnesses. One of the reports filed in evidence, under the heading of “Present Illness,” stated: “Patient was overweight at ages 10 & 11, then she lost some weight dieting, but at ages 16 & 17 she had regained to 155 pounds. In college she gained more quickly reaching a weight of 192 pounds, her present weight. She now wants to take the rice-reduction treatment until she has reached her normal weight.”

Following certain preliminary examinations as reflected in medical reports, dated May 22, 1975, a letter was sent by one of the doctors to the husband, as follows:

“Mr. Richard Bertram 7150 S.W. 100th Street Miami, Florida 33156
June 2, 1975
Dear Mr. Bertram:
I am sending you a copy of our examination notes on your daughter, Miss Anne Elizabeth Bertram.
I am afraid we should not take her condition too lightly. Excess weight to the degree which she has accumulated is evidence of severely disturbed biochemical functions and is a source of dangerous trouble, especially in combination with the tachycardia after mild exercise, the decreased kidney function and the abnormalities in the blood sugar and the uric acid metabolism. The family history of heart disease, of hypertension and of obesity cannot be ignored either.
I, therefore, think intensive dietary treatment should not be delayed so that the more unpleasant complications may be prevented.
I repeat what we told your daughter — we would be glad to have her under our care so that the proper rice/reduction diet can be worked out for her under our supervision and so that further studies can be done. She should remain here with us without any interruption at least until the heart, the kidneys and the blood chemistry are under satisfactory control and the weight (fully dressed) has been stabilized below a level of 120 pounds.
I know the treatment here is a time-consuming and inconvenient nuisance; but, as compared with the complications of her diseases, it is certainly preferable. I have an idea that she would have the will-power and self-discipline necessary to carry it through in a scientific and matter-of-fact way until she has reached the final goal and is on safe grounds, provided she gets all possible help and forceful encouragement from you. Otherwise, she will continue the usual pattern of losing and gaining insignificant amounts of weight and nothing really worthwhile will be accomplished.
With best wishes,
Very sincerely, Walter Kempner, M.D. Professor Em. of Medicine”

The record does not show any response thereto by Mr. Bertram, nor does it show any objections made by Mr. Bertram to such treatment being undertaken, or any contention advanced by him at that time that the medical expense thereof would not fall within the extraordinary medical expense payment requirement in the judgment.

From the reports, and the doctor’s letter to Mr. Bertram, it seems clear that the obese condition of the girl was a condition beyond her control, except for “losing and gaining insignificant amounts of weight” from time to time. It also appears a medical opinion that the girl needed a drastic reduction in weight, to 120 pounds, to avoid the stated complications and damage to organs which a continuance of her obesity could be expected to involve or bring about.

We are impelled to conclude that the trial court was in error in holding the medical treatment for Anne Elizabeth did not involve an extraordinary medical expense, in the circumstances presented.

Anne Elizabeth had an extreme overweight condition, the correction of which appeared to be beyond her control, and the elimination of which by medical treatment was deemed advisable, if not essential, to her health and physical welfare. In that regard it could be compared to a condition in one’s body, dangerous to health, which could be eliminated only by a major operation. In an instance such as that example, the necessary corrective operation would be regarded readily as an extraordinary medical expense. The possibility that Anne Elizabeth could have been treated at another place or by another method at less expense, would appear to be immaterial, in view of the fact that the husband was advised before the treatment commenced as to the nature and extent of the proposed treatment and the need therefor, and made no disclaimer with reference thereto, so far as the record shows.

We affirm the order denying attorney fees for the wife. That was a matter within the discretion of the court, under § 61.16 Fla.Stat, F.S.A. In view of the circumstances of the parties, that ruling did not represent an abuse of discretion. We reverse the order to the extent that it held the husband was not obligated to pay the expenses involved in the treatment of Anne Elizabeth at the clinic at Duke University Center; and we remand the cause with direction to enter an order for payment thereof by the husband, by reimbursing the wife for such amount of the said expenses as she may have paid, and by payment of any balance thereof which may not have been paid.

It is so ordered.

BARKDULL, Chief Judge

(dissenting).

I respectfully dissent from the majority opinion in this matter. First, I have serious doubt that a weight loss program, which is entered into voluntarily by the daughter, qualified as an extraordinary medical expense. Further, I note that although this condition had existed for a number of years, the mother and the daughter did not see fit to have the child undergo this treatment until immediately prior to her twenty-first birthday, at which time all obligations on the part of the father would have ceased.

      . By so concluding in this case, it is not to be considered or assumed that this court is holding, in the abstract, that treatment of such kind by a i>erson desiring to reduce weight would constitute an extraordinary medical expense, as referred to in a judgment for dissolution of marriage. It would not be so, except in an unordinary instance, as in this case, where the overweight or obesity is great, with material adverse consequences medically predictable if the condition should continue, and when medical treatment is considered necessary in order for the dangerous condition to be corrected.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    William L. CATES, Jr., Appellant, v. FIELDCREST MILLS, INC., Appellee.
    No. 76-32.
    District Court of Appeal of Florida, Third District.
    June 2, 1976.
    Horton, Perse & Ginsberg, Brumer, Moss, Cohen & Rodgers, Miami, for appellant.

      Blackwell, Walker, Gray, Powers, Flick & Hoehl and James E. Tribble, Miami, for appellee.
    Before BARKDULL, C. J., HAVER-FIELD, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See North Shore Hospital, Inc., v. Barber, Fla.1962, 143 So.2d 849; Edwards v. City of Fort Walton Beach, Fla. 1972, 271 So.2d 136.


text:
    Bernardo MIRANDA, Appellant, v. FIDELITY NATIONAL BANK OF SOUTH MIAMI, Appellee.
    No. 75-1177.
    District Court of Appeal of Florida, Third District.
    June 22, 1976.
    Anthony Villaamil and Lester G. Kates, Miami, for appellant.
    Monroe Dixon, Miami, for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Bernardo Miranda appeals a $3,020.52 final judgment entered for Fidelity National Bank of South Miami in an action to recover overdrawn funds from a savings account.

Bernardo and Martha had two joint savings accounts of $3,100.82 and $106.45 respectively at the Fidelity National Bank. In June 1974 marital difficulties developed and on Friday, June 28, Martha went to the Bank to withdraw the funds from these accounts. Although she did not have the passbooks, she received a bank officer’s authorization to make her withdrawals, leaving $5 in each account. At this time the Bank was in the process of transferring from the use of passbooks to a computerized system. As a result, information as to a balance in a savings account was temporarily unavailable and when Bernardo appeared at the Bank on July 2 with the passbooks, he was permitted to withdraw $3,020.52. Upon discovery of this overdrawal, the Bank sued Bernardo to recover the money. The cause was decided by the trial judge upon submission of a statement of facts agreed to by the parties. A judgment for $3,020.52 was entered in favor of the Bank, and Bernardo perfected this appeal. We affirm.

Bernardo’s contention that the language in the passbook requiring it to be presented at the time of withdrawal is contractual in nature and if payment is made without presentation then the Bank is subject to liability for any possible mistake, is without merit in that such a requirement is waivable. See 4 Fla.Jur. Banks and Trust Companies § 279 (1969) ; Mallett v. Tunnicliffe, 102 Fla. 809, 136 So. 346 (1931); Kramer v. First National Bank of Homestead, Fla.App.1964, 163 So.2d 341. The Bank waived this requirement as the rules provided that a depositor may withdraw funds without presentation of the passbook if the prior approval of a bank officer is obtained.

Further, the record demonstrates that in her deposition Martha testified that on the day of her withdrawal she apprised Bernardo that she had made the withdrawal several hours earlier, and in his deposition Bernardo admits Martha may have so informed him. Thus, we find no error in the entry of the judgment for the Bank. See 4 Fla.Jur. Banks and Trust Companies § 253 (1969).

Affirmed.


text:
    CUNA MUTUAL INSURANCE SOCIETY, Appellant, v. Alexander E. ADAMIDES, Appellee.
    No. 75-1379.
    District Court of Appeal of Florida, Third District.
    June 22, 1976.
    Smathers & Thompson and Shepherd D. Johnston, Miami, for appellant.
    Robert E. Brandt, Miami, for appellee.
    Before HENDRY and HAVERFIELD, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Appellant, defendant below, appeals a final judgment entered by the trial court in favor of appellee, plaintiff below.

Appellee filed an amended complaint seeking to recover benefits under a credit life and disability insurance policy issued to the Miami Fireman’s Federal Credit Union by appellant, CUNA Mutual Insurance Society. Appellee was an insured under the policy by virtue of his making a loan through the Credit Union. Appellant’s amended answer raised as an affirmative defense a policy term excluding coverage of loss where the loss was substantially contributed to by a previously manifested injury or sickness, except where the loss occurred six months after the coverage was otherwise effective. After a non-jury trial, the trial court entered a final judgment in favor of appellee. From this final judgment, entered on July 31, 1975, appellant appeals.

Appellant argues that the trial court erred in entering judgment for appellee because his disability was materially contributed to by a sickness or injury manifest prior to coverage, and resulted in disability within six months of coverage, and, therefore, was not covered under the policy. Appellee argues that the evidence viewed in the light most favorable to him proved a cause of action against appellant under the policy, despite the affirmative defense of the exclusionary “risks not assumed” clause of the policy.

The policy provision relied upon by appellant reads as follows:

“RISKS NOT ASSUMED.
“Cuna Mutual does not assume the risk and no benefit is provided for any loss if any material contributing cause of loss was from sickness or injury which first became manifest prior to the time insurance coverage is otherwise effective under this contract, except for such loss occurring six months after coverage is otherwise effective. Coverage is otherwise effective under this contract for each loan at the date the loan is advanced . . .” [Emphasis added.]
“Loss,” as used in this provision, is defined in the policy as follows:
“Disability for which a benefit is payable under this contract is hereby defined as that condition of health which by reason of a medically determinable physical or mental impairment renders the member totally and permanently unable to engage in any occupation or gainful activity for remuneration or profit. A member who, because of disability, is unable to perform his usual occupation shall be disabled within the meaning of this benefit only if totally and permanently unable, because of such disability, to engage in any other occupation or gainful activity for remuneration or profit. Qualification for disability, as defined herein, shall be met only if all reasonable medical 'and surgical treatment which would provide a reasonable probability of removing disability has been accepted by the member.”

In our opinion, whether or not the “loss” insured against, in this case the disability of appellee, occurred six months after appellee was covered under the policy was a question of fact which was for the trier of fact to determine. Where, as here, a case is tried before a trial judge without the intervention of a jury, the conclusions he reaches have the weight of a jury verdict. Further, the conclusions of the trial judge come before the appellate court clothed with the presumption of correctness, and in testing the accuracy of such conclusions the appellate court should interpret the evidence and all reasonable inferences and deductions capable of being drawn therefrom in the light most favorable to sustain those conclusions. See, e.g., Alter v. Finesmith, Fla.App.1968, 214 So. 2d 732; Highland Lakes, Inc., v. Art Present Real Estate, Inc., Fla.App.1962, 147 So.2d 348; Lowery v. Rosenberg, Fla. App.1962, 147 So.2d 321; and 2 Fla.Jur., Appeals § 346. Implicit in the final judgment, entered by the trial court in the instant case, was a finding that the “loss” suffered by appellee occurred more than six months after the policy became effective and, therefore, appellee’s loss was not excluded from coverage under the policy. This finding is supported by substantial competent evidence in the record and, pursuant to the rules set forth above, should not be disturbed on appeal by us.

We have carefully considered the record, all points in the briefs, and arguments of counsel in the light of the controlling principles of law, and have concluded that no reversible error has been demonstrated. Therefore, for the reasons stated and upon the authorities cited, the final judgment appealed is affirmed.

Affirmed.


text:
    Jerry DWORKIN, Appellant, v. ALAMO AUTO LEASING, INC., Appellee.
    No. 75-1513.
    District Court of Appeal of Florida, Third District.
    June 22, 1976.
    Whitman & Wolfe, Miami, for appellant.
    Leo Greenfield, North Miami, and Benjamin R. Alter, Miami, for appellee.
    Before BARKDULL, C. J., and PEARSON and HAVERFIELD, JJ.
   PER CURIAM.

Plaintiff appeals a judgment for the defendant entered pursuant to defendant’s motion for directed verdict in an action seeking to recover commissions pursuant to an oral employment contract.

Plaintiff, Jerry Dworkin, alleges that when defendant, Alamo Auto Leasing, Inc., hired him as general manager, they orally agreed to pay him a base salary of $1,200 per month plus a commission of 25% of the monthly profits on the sale of automobiles up to $6,000, 15% of the monthly profits over $6,000 and a $60 commission on each vehicle leased. On January 28, 1974 Dworkin began working. He received his base salary and a few commissions, but a dispute arose when he was not paid in accordance with the oral agreement. In April defendant allegedly presented Dwor-kin with a written contract for the same base salary, but for a commission of 50% of the monthly profits over $6,000, $10 for each car sold and $50 for each car leased for two years. Dworkin would not sign the contract and in May terminated his employment. He then brought suit to recover pursuant to the oral agreement, $25,000 in commissions allegedly due for the months of February, March and April. The cause proceeded to a non-jury trial and at the close of Dworkin’s case, defendant moved for a directed verdict. The trial judge granted the motion on the grounds that the oral agreement was barred by the Statute of Frauds [§ 725.01, Fla.Stat., F.S.A.], and the evidence was totally insufficient to support his claim. We affirm.

Dworkin, in effect, admitted in his deposition that he was entering into- an oral agreement for a period in excess of one year. Therefore, his claim under the oral employment contract is barred by § 725.01, Fla.Stat., F.S.A. See Yates v. Ball, 132 Fla. 132, 181 So, 341 (1938). Further, Dworkin’s basis for recovery is on a quantum meruit theory, and the record supports the trial judge’s finding that he failed to present sufficient evidence to support his claim.

Affirmed.


text:
    Lawrence WATSON et al., Appellants, v. Raymond KHACHAB and Sam Bush, Appellees.
    No. 75-1145.
    District Court of Appeal of Florida, Third District.
    June 8, 1976.
    Rehearing Denied July 9, 1976.
    Kravitz, Dudley & Duckworth, Hialeah, for appellants.
    Tobin & Fisch and Donald E. Krentsa, Miami, for appellees.
    Before BARKDULL, C. J., HENDRY, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Appellants, defendants and counterplain-tiffs below, appeal a final order and judgment entered by the trial court in favor of appellees, plaintiffs and counterdefendants below.

Appellees filed an amended complaint against appellants alleging, inter alia, as follows: that appellees Raymond Khachab and Sam Bush along with appellant Lawrence Watson formed a Florida corporation called Edgewater Marine, Inc., for the purposes of constructing and selling pleasure boats; that they were the original incorpo-rators, officers, and sole shareholders in the corporation, with the exception of Michael Watson who was a minor shareholder; and that, after the formation of the corporation, all of the shareholders agreed to sell the corporation for $22,000. In Count I of appellees’ complaint, they further alleged that appellants devised a fraudulent scheme to divest and deprive appellees of their interest in the assets of the corporation, in order to obtain a secret profit for themselves; that appellants represented to appellees they had attempted to sell the corporation for $22,000, but that this price was too high and no one was willing to pay it; that appellants convinced appellees to sell the corporation for $16,000 to Donald Maggin who was represented to be a legitimate third party buyer; that, in fact, Maggin was a straw party used by appellants to acquire the corporation for themselves; and that appellees agreed to the sale which occurred in September, 1972. In Count II of their complaint, ap-pellees alleged that, as a result of appellants’ conduct, they were damaged because they did not receive adequate compensation for their stock.

Appellants answered denying the material allegations of the complaint and asserted a counterclaim. The counterclaim alleged, inter alia, as follows: that all of the shareholders, except Michael Watson, were directors of the corporation; that, of the outstanding 50 shares of stock in the corporation, each of the parties owned 13^4 shares, except for Michael Watson who owned 9 shares; that two boats, which were registered individually to appellees, might constitute corporate assets, but that the corporate records did not adequately account for the boats. Further, appellants demanded an accounting for all of the corporate assets, including the two boats.

After a non jury trial, the trial court on June 19, 1975, entered, in pertinent part, the following final order:

“THIS CAUSE was tried before the Court sitting without a jury. The Court has considered the evidence presented and determined the believability of witnesses in light of their demeanor, their possible interest in the outcome of the case and the reasonableness of their testimony. Accordingly, the Court finds and determines that:
“1. RAYMOND KHACHAB and SAM BUSH, are proper party plaintiffs in this cause.
“2. That the four individual parties to the suit were stockholders in a corporation named, EDGEWATER MARINE, INC., a Florida Corporation.
“3. That the parties had agreed to sell the business and advertised one mold for $22,500.00, in a New York paper.
“4. That the defendants, having access to all incoming calls in response to the advertisement of sale, represented to the plaintiffs that one DONALD MAGGIN had offered to buy the business for $16,500.00.
“5. That they and the attorney handling the sale refused to disclose who DONALD MAGGIN was, or who he represented.
“6. That the Defendants as the operating partners of the business, threatened to quit, leave the business and go back to Atlanta unless the sale was confirmed to DONALD MAG-GIN, for $16,500.00. That as a result of the duress placed upon the Plaintiffs by the Defendants, the Plaintiffs agreed to sell the business to DONALD MAGGIN.
“7. Subsequent to the sale, the Plaintiffs discovered that the Defendants were the real parties in interest with respect to said purchase and that DONALD MAGGIN was a mere straw party used for the purpose of concealing the true interest of the Defendants in the purchase. The Defendants being the directors of the corporation and having knowledge about the value of the property and the sale of the property which they had failed and refused to disclose to the Plaintiffs. And as a result of the Defendants’ misrepresentation and self-dealing the Defendants made an undisclosed profit, at the cost of the Plaintiff stockholders, in that the stock was worth a greater sum than the $16,500.00 paid to the plaintiffs.
“8. That as a result of the breach of trust of the Defendants the Plaintiffs were damaged, in that they did not receive adequate compensation for their stock.
“9. That the misrepresentation by the Defendants was willful and wanton and made in complete disregard of the rights of the Plaintiffs. That testimony offered by the Plaintiff in the evidentiary hearing placed a value of the mold alone in excess of $25,000.00.
“10. This Court finds no merit whatsoever in the claim of the Defendants against the Plaintiffs. That the boats now in possession of the Plaintiffs and the Defendants are part of the corporate assets.
“Therefore, based upon the foregoing it is
“ORDERED AND ADJUDGED
“That the Plaintiffs RAYMOND KHACHAB & SAM BUSH shall receive and recover from the Defendants, LAWRENCE WATSON AND MICHAEL WATSON, the sum of $9,000.00 together with interest thereon, at the legal rate of 6 percent per annum from September, 1972, for which let execution issue. Secondly, that the Plaintiffs shall have and recover their costs from Defendants in the sum heretofore to be taxqd against the Defendants for which let execution issue.”

Thereafter, on July 28, 1975, the trial court entered a final judgment, pursuant to the final order, including costs in the amount of $716.88. From the final order and judgment, appellants appeal.

Appellants raise the following points on appeal:

(1) Whether an officer and director of a corporation, who is also a minority stockholder in the corporation, and another minority stockholder, whose combined holdings still constitute a minority, are under a duty to disclose to majority stockholders, who are officers and directors, that an agent purchasing the entire stock of the corporation on behalf of an undisclosed principle is in fact acting on behalf of the minority stockholders, when the minority stockholders merely maintain their anonymity?

(2) Whether an officer and director of a corporation who is a majority stockholder who accepts cash in behalf of a corporation while acting as president of said corporation in the sale of a corporate asset, which transaction is not reflected in the books and records of said corporation has no duty to account for or reimburse the corporation for said funds ?

(3) Whether officers and directors of a corporation who are in possession of two capital assets of a corporation, namely, two power boats, where one vessel is carried on the books and records of the company as a capital asset to be used for resale and another vessel was transferred by the corporate director to himself after the incorporation, and where both transfers were by these officers and directors transferred to themselves without approval in a corporate stockholders’ or directors’ meeting, are under a duty to return said vessels to the corporation ?

(4) Whether the defendants are entitled to a percentile in value of the company as found by the trial court and the purchase price paid by the agent, said percentile being represented by the respective shares of the defendant stockholders ?

(5) Whether a trial court may enter a final judgment, based on a final order which has been appealed prior to entry of final judgment?

We have carefully considered the record, all points in the briefs and arguments of counsel, in the light of the controlling principles of law, and have concluded that no reversible error has been demonstrated. See, e. g., Fernandez v. Arocha, Fla.App. 1975, 308 So.2d 45; Solomon v. Hunt, Fla.App.1971, 243 So.2d 185; Huwer v. Huwer, Fla.App.1965, 175 So.2d 242; Marx v. Goldfinger, Fla.App.1966, 187 So. 2d 380; Midstate Hauling Co. v. Watson, Fla.App.1965, 172 So.2d 262; and 2 Fla. Jur., Appeals §§ 316, 346, and 358. Therefore, for the reason stated and upon the authorities cited, the final order and judgment appealed are affirmed.

Affirmed.


text:
    Johnny McCOY, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1176.
    District Court of Appeal of Florida, Third District.
    June 8, 1976.
    Phillip A. Hubbart, Public Defender, and Paul Morris, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., Linda C. Hertz, Asst. Atty. Gen., and Diane Leeds, Legal Intern, for appellee.
    Before BARKDULL, C. J., HENDRY, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed on the authority of Lynch v. State, Fla.1974, 293 So.2d 44; Davis v. State, 47 Fla. 26, 36 So. 170; Volusia County Bank v. Bigelow, 45 Fla. 638, 33 So. 704; Garmise v. State, Fla.App.1975, 311 So.2d 747; Jefferson v. State, Fla.App.1974, 298 So.2d 465; Amato v. State, Fla.App.1974, 296 So.2d 609; Wetherington v. State, Fla. App. 1972, 263 So.2d 294; Great Atlantic and Pacific Tea Company v. Nobles, Fla. App.1967, 202 So.2d 603; Sims v. State, Fla.App.1966, 184 So.2d 217; and King v. Califano, Fla.App. 1966, 183 So.2d 719.


text:
    Reba Louise SMITH, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1362.
    District Court of Appeal of Florida, Third District.
    June 8, 1976.
    Phillip A. Hubbart, Public Defender, and Karen M. Gottlieb, Asst. Public Defender, for' appellant.
    Robert L. Shevin, Atty. Gen., and Linda C. Hertz, Asst. Atty. Gen., for appellee.
    Before BARKDULL, C. J., and HEN-DRY and NATHAN, JJ.
   PER CURIAM.

Affirmed. Williams v. State, 156 Fla. 300, 22 So.2d 821; Reynolds v. State, Fla. App.1969, 222 So.2d 246; Brown v. State, Fla. 1971, 245 So.2d 68; State v. Oyarzo, Fla.1973, 274 So.2d 519; Ponder v. State, Fla.App. 1975, 323 So.2d 296.


text:
    In re Forfeiture of the Following Described Property: 1969 CHEVROLET CAMARO BEARING '75 MASSACHUSETTS LICENSE TAG #372-766 VIN # 124379N511693.
    No. 75-1737.
    District Court of Appeal of Florida, Third District.
    June 22, 1976.
    Richard E Gerstein, State’s Atty., and Milton Robbins, Asst. State’s Atty., for appellant.
    Robert A. Bertisch and Scott T. Eber, Legal Services of Greater Miami, Inc., Miami, for appellee.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   PER CURIAM.

The State of Florida appeals from an order directing that Paul Costigliola’s automobile be returned to him.

Pursuant to § 943.43, Fla.Stat., F.S.A. the police seized Paul Costigliola’s automobile when he was arrested for possession of marijuana while in his automobile. Mr. Costigliola pled guilty to the charge and as a first offender was placed on probation. The police refused to return his automobile and the State petitioned for a rule to show cause why the car should not be forfeited pursuant to § 943.44, F.S. After hearing, the trial judge ordered the vehicle returned to Mr. Costigliola. The State appeals. We affirm.

Forfeitures are not favored in law or equity General Motors Acceptance Corporation v. State, 152 Fla. 297, 11 So.2d 482 (1943). Further, as forfeiture statutes are intended to apply to those individuals who are significantly involved in a criminal enterprise, § 943.43, Fla.Stat., F.S.A., authorizing forfeitures, is discretionary and not mandatory. See In re 1972 Porsche 2 Dr., '74 Fla.Lic.Tag ID 91780, Fla.App.1975, 307 So.2d 451.

It is apparent from the transcript that through plea negotiations, the State accepted a guilty plea to posession of marijuana, a misdeameanor offense under § 893.13(1) (f), Fla.Stat., F.S.A. Thus, we find no abuse of discretion on the part of the trial judge in ordering return of Mr. Costigliola’s automobile to him.

Affirmed.


text:
    Tommy Lee FULLER, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1408.
    District Court of Appeal of Florida, Third District.
    June 8, 1976.
    Phillip A. Hubbart, Public Defender, and Mark King Leban, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen., and Charles L. Hauck, Legal Intern, for ap-pellee.
    Before BARKDULL, C. J., and HEN-DRY and NATHAN, JJ.
   PER CURIAM.

Affirmed. See: Yost v. State, Fla.App. 1971, 243 So.2d 469; State v. Bryan, Fla. 1973, 287 So.2d 73.


author:
PER CURIAM.
      PEARSON, Judge

text:
    Julius JAMES, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1634.
    District Court of Appeal of Florida, Third District.
    June 8, 1976.

      Phillip A. Hubbart, Public Defender, and Karen Gottlieb, Assistant Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Linda C. Hertz, Asst. Atty. Gen., and Roy J. Kahn, Legal Intern, for appellee.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   PER CURIAM.

Defendant Julius “Juice” James appeals his conviction of possession and sale of heroin following a jury trial.

Defendant urges as error the denial of his motion for new trial on the alleged grounds of newly discovered evidence, and prejudicial remarks of the prosecution in closing argument. The second ground arises out of the following comment by the prosecutor:

“MR. McCOMB: You all know that there are four letter words in the English language that are offensive, are dirty words, I submit to you, there is a dirtier word than that. It’s a six letter word and it’s P-U-S-H-E-R, pusher. A pusher infests other individuals with his disease of heroin.”

The law requires a new trial only in those cases in which it is reasonably evident that the statements made by prosecutors in closing argument were so inflammatory and abusive as to have influenced the jury to reach a more severe verdict of guilt than it would have otherwise done thereby depriving the accused of a fair trial. Darden v. State, Fla.1976, 329 So. 2d 287. The law also requires that juries be composed of persons of sound judgment and intelligence, and it will not be presumed that they are led astray to wrongful verdicts by the impassioned eloquence and illogical pathos of counsel. Tyson v. State, 87 Fla. 392, 100 So. 254 (1924); Paramore v. State, Fla.1969, 229 So.2d 855. When the prosecutor makes a statement to which defense counsel objects, the trial judge, who is in a position of experience and intimacy with the case which cannot be duplicated by any other tribunal, determines whether the jury would be so prejudiced by the comment as to render a verdict different from one properly supported by the evidence and presentation of counsel. Wingate v. State, Fla.App. 1970, 232 So.2d 44.

The trial judge determined that the above remark of the prosecutor was not so inflammable and prejudical as to require a mistrial. We note from the record that the evidence of guilt was overwhelming and also, the prosecutor did not directly remark that defendant was a pusher and find no abuse on the part of the trial judge of the great latitude of discretion afforded him in granting or denying motions for new trial. Cf. Darden, supra, and Win-gate, supra.

We also reviewed the denial of defendant’s motion for new trial on the ground of newly discovered evidence and find no error has been made to appear. See Dames v. State, Fla.App.1975, 314 So.2d 171.

Affirmed.

PEARSON, Judge

(concurring specially)-

Although I concur in the decision reached in this case and agree with the majority that the evidence of guilt is overwhelming and that the questioned remarks do not transcend the confines of harmless error, nevertheless I believe that a caveat is necessary to express the view that in a different case, such a characterization of the defendant would be reversible error. The prejudice that arises in characterizing the defendant as a “pusher” stems from the fact that the word is popularly used to describe a person who, in order to secure new customers, induces non drug users into becoming drug users. Even if accorded its dictionary meaning as a “peddler of narcotics,” the word describes a person who repeatedly sells hard drugs, a fact which, if true, is entirely outside this record.

As pointed out by Mr. Justice Sundberg, in his dissent in Darden v. State, Fla.1976, 329 So.2d 287, 295, the rule must be that where an improper and possibly prejudicial remark is made to the jury by the State, the reviewing court must he satisfied beyond a reasonable doubt that the error did not contribute to the defendant’s conviction.


text:
    Vincent MILTON and Theodore Davis, Appellants, v. The STATE of Florida, Appellee.
    No. 75-1482.
    District Court of Appeal of Florida, Third District.
    June 8, 1976.
    Rehearing Denied July 9, 1976.
    Phillip A. Hubbart, Public Defender, and Mark King Leban, Asst. Public Defender, and Thomas G. Murray, Legal Intern, for appellants.
    Robert L. Shevin, Atty. Gen., and Brian Leslie, Asst. Atty. Gen., for appellee.
    Before PEARSON and HENDRY, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The appellants were charged by information with the crime of sexual battery. On being tried together before a jury, each was found guilty of the lesser included offense of assault with intent to commit sexual battery. Each was so adjudged by the court, and sentenced to imprisonment for a period of five years.

On this appeal therefrom by the defendants, they contend they were denied a fair trial because on the last day of the case, when the jury was given the case for decision in the afternoon, the jury was required to continue their deliberations into the evening until shortly before midnight, when they returned the verdict; and contend the court erred, in charging the jury, by including among the lesser included offenses charged, the offense of assault with intent to commit sexual battery.

On consideration of the record, briefs and argument, we hold no reversible error has been shown.

On the day on which the verdict was reached, the jury retired at 3:50 P. M. to consider the case. At 6:45 P.M. the jury returned to the courtroom, and in response to their request certain charges were reread. The foreman of the jury stated that the decision was difficult and that he could not say they were making “absolute progress”. He stated one of the ladies “has expressed to me that they are very exhausted, headaches and whatnot”. The foreman suggested they might reach a decision more quickly “if we rested, ate, just meditated”. The trial judge stated to them that he did not want to force the jury, and suggested that they take a recess, and use the telephone, and that he would let the bailiff take them to dinner.

Thereupon, after some additional instructions were read as requested, the jury returned to the jury room at 6:55 P. M.

At 8:50 P. M. the jury returned to the courtroom. When asked if they had reached a verdict, the foreman said they had not. When the jury was asked by the judge if they were ready to go to dinner, the foreman replied that they were deadlocked 50-50, on the question of whether they would go to dinner. After some further discussion of that feature the jury decided to go to dinner. At that point a woman juror stated “Then we will come back. But we feel we can’t make a decision because we are very strong against or for. Some are very strong for one side and some are very strong for the other side”. The foreman informed the court that someone was lying 'but the jurors did not know who, that it was just testimony against testimony, etc. And a woman juror then said “We’re a little tired”.

Before sending the jury out to dinner with the bailiff the judge stated to them “After you have had an opportunity to rest and refresh yourselves, you will then be able to within a reasonable time, to see if you can reach a verdict in the case. I feel that you have worked long, and I’m opposed to sequestering the jury, putting them up in a room someplace or keeping everything as is until you come back tomorrow, if it can be avoided, so I am going to adopt this procedure”. Following those proceedings the jurors went out for dinner in charge of the bailiff.

After returning from dinner the jury resumed deliberations, and returned a verdict at 11:05 P. M. finding each of the defendants guilty of the lesser included offense of assault with intent to commit sexual battery.

We do not regard the handling of the jury by the court in this instance to have been such as to require the granting of a new- trial. There was no occasion to declare a mistrial. The situation did not indicate there was no reasonable probability of reaching a verdict. Rule 3.560 RCrP. The jury reported difficulty in reaching a decision but did not represent to the court that a verdict could not be reached on further deliberation. Understandably some of the jurors were tired, but the conclusion of the trial judge that after a dinner recess and rest they should resume deliberation for a reasonable time, was not an abuse of judicial discretion. Brown v. State, 152 Fla. 508, 12 So.2d 292. The court did not inform the jury that they must reach a verdict, nor did the court otherwise coerce them with reference thereto. He informed the jury he did not wish to force them in that regard. See State v. Bryan, Fla.1974, 290 So.2d 482; Bryan v. Wainwright, 5 Cir. 1975, 511 F.2d 644. We hold to be without merit the appellants’ contention that the court committed reversible error by including, over objection, as a lesser included offense in charging the jury, the offense of assault with intent to commit sexual battery. After the charges were given, the court asked counsel for the parties if they had any objection thereto, to which counsel replied in the negative. Moreover, the giving of a charge on that lesser included offense was not improper. See State v. Washington, Fla.1972, 268 So.2d 901.

The judgments are affirmed.


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    Leonard E. ZEDECK, Appellant, v. Marcia ZEDECK, Appellee.
    No. 75-2037.
    District Court of Appeal of Florida, Third District.
    June 8, 1976.
    Richard Bergman, North Miami Beach, for appellant.
    Stephen H. Butter, Miami, for appellee.
    Before BARKDULL, C. J., HAVER-FIELD, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Leonard Zedeck appeals the denial of his motion for protective order in this action for dissolution of marriage.

On July 30, 1974 the parties executed a separation and property settlement agreement resolving all financial matters between them, which agreement was to be incorporated into a dissolution of marriage judgment. Subsequently Leonard’s wife, Marcia, filed a petition for dissolution and prayed that the alimony provisions of the agreement be modified on the ground that Leonard’s income substantially increased from $58,401 in 1973 to $91,981 in 1974. She served Leonard with a notice of taking deposition and request for production of his personal books and records for the years 1972, 1973 and 1974, including all savings and passbooks, stocks, bonds, profit sharing statements, etc. Leonard filed a motion for protective order and argued that the allegations concerning his financial status are totally irrelevant since he has paid and Marcia has accepted substantial sums under the terms of the property settlement and she is bound by the agreement. The chancellor denied the motion and this appeal ensued.

As revealed from his income tax returns and financial statements, Marcia was fully aware of Leonard’s financial worth at the time of the execution of the separation and property settlement agreement. In order to have this agreement modified or set aside, Marcia must allege and prove fraud, duress, deceit, coercion or overreaching on the part of Leonard in obtaining the agreement. See Haynes v. Haynes, Fla. 1954, 71 So.2d 491; Cowen v. Cowen, Fla.1957, 95 So.2d 584; Sedell v. Sedell, Fla.App.1958, 100 So.2d 639. Marcia merely alleges a change in circumstances by virtue of a substantial increase in Leonard’s income subsequent to the time she entered into the agreement which is insufficient grounds for modification. See Haynes, supra; Markham v. Markham, Fla.App.1969, 222 So.2d 759; Gilbert v. Gilbert, Fla.App.1975, 312 So.2d 511.

The order denying Leonard’s motion for protective order and allowing Marcia to take Leonard’s deposition with respect to his financial status is reversed and the cause remanded for further proceedings. Before concluding, we wish to point out that Marcia may depose Leonard with respect to any other relevant matter not resolved by the separation and property settlement agreement.

It is so ordered.


text:
    MORTGAGE CORPORATION OF AMERICA, Appellant, v. Ronald VORNDRAN et al., Appellees.
    No. 75-1011.
    District Court of Appeal of Florida, Third District.
    June 15, 1976.

      Carey, Dwyer, Austin, Cole & Selwood and Steven R. Berger, Miami, for appellant.
    Richard M. Gale, Pyszka, Kessler, Adams & Solomon, Miami, for appellees.
    Before PEARSON and HENDRY, JJ„ and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Appellant, Mortgage Corporation of America, appeals from a final order dismissing with prejudice its amended third-party complaint against appellee, Du-B Corporation, in an action brought by Ronald Vorndran for personal injuries which he sustained while working as an employee of appellee Du-B on the construction of a building owned by the appellant.

Appellants filed an answer containing a general denial, affirmative defenses, and also a third party complaint alleging, inter alia, that appellant was only vicariously liable for the injuries which were the result of the negligence of the appellee, DuB, and that appellant would be entitled to indemnification from appellee, Du-B.

Du-B moved to dismiss appellant’s amended third party complaint on the ground that it failed to state a cause of action in that liability of the third party defendant is limited to the “exclusive remedy” concept as provided by Florida Statute 440.11. The motion was granted and the order of dismissal was entered.

It is appellant’s contention on appeal that the trial court erred in dismissing its third party complaint. We find merit in this contention and reverse. See Sunspan Engineering and Construction Company v. Spring-Lock Scaffolding Co., Fla. 1975, 310 So.2d 4; Florida East Coast Railway Company v. Rouse, Fla.1967, 194 So.2d 260.

The order appealed is reversed and remanded for further proceedings.

Reversed and remanded.


author: HAVERFIELD, Judge.

text:
    Ellen-Sue MOSS-JACOBER, Appellant, v. Michael M. MOSS, Appellee.
    Nos. 75-1872, 75-1873 and 75-1856.
    District Court of Appeal of Florida, Third District.
    May 18, 1976.
    Rehearing Denied July 6, 1976.

      Paul E. Gifford, Miami, for appellant.
    Richard P. Kenney, Miami, for appellee.
    Before BARKDULL, C. J., and PEARSON and HAVERFIELD, JJ.
   HAVERFIELD, Judge.

Appellant, Ellen-Sue Moss, seeks reversal of an order setting aside a separation and property settlement agreement on the grounds of unconscionability and overreaching.

After ten years of stormy marriage, Ellen-Sue Moss in June 1973 petitioned for dissolution of marriage. The marriage was dissolved and incorporated into the judgment was a separation and property settlement prepared by Ellen-Sue’s attorney and agreed to by her husband Michael, ap-pellee, without benefit of legal counsel. Pursuant to the terms of the agreement, Ellen-Sue was awarded custody of the three minor children, Michael’s equity in the marital residence, the furniture and furnishings, the 1973 Thunderbird, and the checking and savings accounts totaling $3,500. Michael was also required to pay Ellen-Sue $1,200 monthly for child support, make the monthly mortgage payments on the house and car payments on the Thunderbird, keep the children on his health insurance policy and purchase a $62,000 decreasing term life insurance policy naming Ellen-Sue as beneficiary. Both parties remarried and in 1975 Michael Moss petitioned to modify the 1973 agreement on the grounds that it is unconscionable and a product of undue influence and overreaching on the part of Ellen-Sue. After hearing, the chancellor entered his order setting aside the 1973 agreement on the grounds it was outrageously unconscionable and the product of Ellen-Sue’s overreaching. He also noted in his order that the court, at the time of the entry of the dissolution had been led to believe that the patently oppressive provisions of the agreement were in some measure reflective of the fault and/or the desire of Michael himself. “In actuality the circumstances were completely otherwise.” Ellen-Sue was then awarded $300 per month per child as support, and Michael ordered to keep the three children on his hospitalization policy.

Appellant basically contends the chancellor erred in setting aside the 1973 separation and property settlement agreement. We cannot agree.

The law is well established that a separation, support or property settlement agreement obtained by fraud, overreaching concealment, duress or coercion is not binding and a court which has entered a decree based upon, or incorporating, such an agreement may set aside and annul it. See Miller v. Miller, 134 Fla. 725, 184 So. 672 (1938); Gelfo v. Gelfo, Fla.App. 1967, 198 So.2d 353 and 10A Fla.Jur. Dissolution of Marriage § 24 (1973). We find the chancellor’s determination that the instant separation and property settlement agreement is unconscionable and a product of overreaching is supported by its oppressive terms with respect to appellee, his testimony as to the circumstances surrounding the making of the agreement and the fact that he was without legal representation.

In addition, we point out that the chancellor in his order found he initially had been misled in June 1973 as to these circumstances surrounding the agreement, a paramount reason to set it aside.

Appellant further contends the chancellor erred in modifying the separation agreement and final judgment so as to reduce the termination of child payments from 21 to 18 years of age. This point is well taken.

The property settlement agreement incorporated into the June 29, 1973 final judgment provided that Michael pay $1,200 per month for the support of the minor children and “said support and maintenance will continue until the children have reached the age of 21 years . . .”

§ 743.07, Fla.Stat. (effective July 1, 1973) lowering the attainment of majority status from 21 to 18 years of age having only prospective application [§ 743.07(3), Fla.Stat.], we find the chancellor erred as to that provision of the modification order directing Michael to pay support of $300 per month per child until the respective child reaches the age of 18 years, and modify this provision to read that he pay support of $300 per month per child until the respective child reaches the age of 21 years. See Daugherty v. Daugherty, Fla. 1975, 308 So.2d 24; Finn v. Finn, Fla. 1975, 312 So.2d 726; Dalton v. Dalton, Fla.App. 1974, 304 So.2d 511; Nevins v. Nevins, Fla.App. 1974, 305 So.2d 63.

Having reviewed appellant’s remaining points on appeal and concluding that no reversible error has been made to appear, the order is affirmed as modified.


text:
    Arthur W. TIFFORD, Appellant, v. The STATE of Florida, Appellee.
    No. 75-116.
    District Court of Appeal of Florida, Third District.
    May 25, 1976.
    Rehearing Denied July 9, 1976.

      Robert L. Achor, Miami, for appellant.
    Robert L. Shevin, Atty. Gen, and Joel D. Rosenblatt, Asst. Atty. Gen., for appellee.
    Before PEARSON, HENDRY and NATHAN, JJ.
   PER CURIAM.

The appellant, Arthur W. Tifford, was one of the defendants in an information which charged him in two counts. Other defendants were charged in other counts. Defendant Tifford was charged with conspiracy to commit a felony, to wit: accessory after the fact and with being an accessory after the fact to the crimes of grand larceny, forgery and uttering forged instruments. He was found guilty by a jury, with adjudication and sentence entered thereon. This appeal followed.

Two points are presented: (1) The court erred when it denied Tifford’s motion for severance from the other defendants. (2) The court erred when it denied Tifford’s motion for relief for misjoinder. The points should logically be discussed in the reverse order and, therefore, we shall proceed with the point claiming that there was a misjoinder of defendants.

Rule 3.150(b), Florida Rules of Criminal Procedure, provides:

“(b) Joinder of Defendants. Two or more defendants may be charged in the same indictment or information upon which they are to be tried:
“(1) when each defendant is charged with accountability for each offense charged;
“(2) when each defendant is charged with conspiracy and some of the defendants are also charged with one or more offenses alleged to have been committed in furtherance of the conspiracy; or
“(3) when, even if conspiracy is not charged and all defendants are not charged in each county, it is alleged that the several offenses charged were part of a common scheme or plan.
“Such defendants may be charged in one or more counts together or separately, and all of the defendants need not be charged in each count.”

The principal defendant at the trial of the several defendants was S. K. Bronstein who was charged in numerous counts with the appropriation of money belonging to Cedars of Lebanon Hospital Corporation, an institution in Miami, Florida. In substance, those counts charged that Bron-stein, the President of the Cedars of Lebanon Hospital Corporation, wrongfully caused that hospital to issue twenty-one (21) checks to various payees, which were fraudulently endorsed and cashed and the proceeds of which were appropriated by Bronstein.

The Florida Rules of Criminal Procedure provide for one trial in instances involving related offenses as well as those instances involving several defendants charged with the same offense. Certainly, conspiracy to cover up a larceny is a related offense. In Wilson v. State, Fla.App.1974, 298 So.2d 433, 434, the rule is stated that joinder is not proper unless:

‡ * * * * ‡
“. . . the charging document makes one of the following allegations: (a) each defendant is charged with accountability for each offense, or (b) each defendant is charged with conspiracy, or (c) the several offenses charged are part of a common scheme or plan. The answer lies in the interpretation of Rules 3.150(b) and 3.152(b), RCrP, and authorities construing similar federal rules.”
% ‡ íjí >fi

We hold that the joinder of defendant Tif-ford with defendant Bronstein has not been shown to be error.

The second point presented urges error upon the denial of defendant Tifford’s motion for severance.

CrPR 3.152(b), concerning “Severance of defendants,” in pertient part, provides:

“(1) On motion of the State or a defendant, the court shall order a severance of defendants and separate trials:
“(i) before trial, upon a showing that such order is necessary to protect a defendant’s right to a speedy trial, or is appropriate to promote a fair determination of the guilt or innocence of one or more defendants . . . ”

On September 23, 1974, Tifford moved the circuit court for a severance from the trial of the other defendants. That motion, in part, stated:

“COMES NOW the Defendant, ARTHUR TIFFORD, by and through his undersigned attorneys, and moves this Court for a severance from the trial of the other named defendants, and to be tried subsequent to them, pursuant to Rule 3.152(b), Florida Rules of Criminal Procedure, the Fifth, Sixth and Fourteenth Amendments to the United States Constitution, and cases decided thereunder. As grounds therefor, the Defendant respectfully submits the following:
“1. Arthur Tifford’s co-defendants would, of necessity, testify in a manner exonerating him if called to testify. Tifford intends and promises to call his co-defendants to the stand so that they may do so, and they have each and all indicated they would testify as provided below.
“2. Without the testimony which is the subject matter of the co-defendants’ testimony, this Defendant would lack substantial corroboration of his statement of the facts, which show a lack of criminal culpability on his part.
“3. The Defendant Bronstein would testify, once removed from criminal jeopardy; * * * In substance, Bron-stein’s testimony would be that he, Bron-stein, never imparted to Tifford any information from which Tifford could have derived knowledge that he, Bron-stein, committed the offenses of larceny, forgery and uttering forged instruments with which he, Bronstein, is charged, [etc.]
“4. The Defendant Turner would testify, once removed from criminal jeopardy; * * * In substance, Turner’s testimony would be that he, Turner, never imparted to Tifford any information from which Tifford could have derived knowledge of the true identity of the purported confidential consulting architects. [etc.]
“5. The Defendant Abbott would testify, once removed from criminal jeopardy; * * * In substance, Abbott’s testimony would be that he, Abbott, never imparted to Tifford any information from which Tifford could have derived knowledge of the true identity of the purported confidential consulting architects, * * *
“6. Unless granted a severance from the trial of the co-defendants described above, this Defendant will be unable to corroborate his version of the facts which demonstrate a lack of criminal culpability and constitute a rebuttal to the State’s accusations.”

Attached to Tifford’s motion of September 23, 1974, for a severance was an affidavit executed by Bronstein, which, in part, stated:

******
“5. That I [Sanford K. Bronstein] have indicated to Mr. Tifford’s attorney and hereby now do to the Court that if tried first and separately from Mr. Tif-ford I would testify in his behalf at his trial. The substance of my testimony at Mr. Tifford’s separate trial would be that he lacked any knowledge of the offenses of larceny, forgery and uttering forged instruments with which I am charged in Counts 1-64 of the Information ; that I denied the existence of those facts which have become the subject matter of those counts of the within Information and that I did not inform Mr. Tifford of the true identity of the purported confidential consulting architects.
“6. Although I am charged in this case, if severed from the Defendant, TIFFORD, at trial, I would be willing and promise to testify to the foregoing facts in his behalf at a separate later trial.
“7. I would not be willing to testify in TIFFORD’s behalf in a joint trial because of my rights secured by the Fifth Amendment of the United States Constitution.”

On September 23, 1974, the trial court held a hearing on Tifford’s motion for severance from the other defendants. In the course of that hearing, Bronstein indicated his willingness to go to trial in advance of his co-defendants.

Motions for severance are addressed to the sound discretion of the trial judge. Grech v. State, Fla.App.1971, 243 So.2d 216. Therefore, it is incumbent upon a defendant who appeals a denial of his motion for severance to show at least a likelihood that he did not get a fair trial because of the denial of the motion to sever. The only possibility of prejudice to Tifford that is urged is that Tifford was deprived of Bronstein’s testimony that he, Tifford, did not know of Bronstein’s larceny. But Bronstein could not testify as to what Tifford knew or did not know. The best that Bronstein could do for Tifford would be to testify that he did not tell Tif-ford that he, Bronstein, was guilty. Such testimony could have had little effect. Tif-ford’s guilty knowledge, or lack of it, had to be determined by the jury from the circumstances surrounding Tifford’s actions in attempting to help Bronstein to cover up the illegal dispositions of the hospital’s money.

Judicial efficiency and economy dictate one trial where possible. Cf. Eagle v. State, Fla.App.1971, 249 So.2d 460. In addition, Bronstein’s tender of his testimony was contingent upon Tifford’s being tried in a “separate later trial.” Thus, Bronstein’s promise to testify was conditioned upon the termination of his own trial. It is not clear whether this means after acquittal or after the exhaustion of appellate remedies. If the latter is the meaning, Tifford was asking for an indefinite postponement of his trial. This is a clearly impractical proposal. It is clear that Bronstein’s offer to testify for Tif-ford was not an unconditional offer to testify at a separate trial.

Because no real prejudice has been shown and because the possibility of helpful testimony from Bronstein was too remote, the court did not err in denying the motion to sever.

We believe that this holding is in accord with the holding of the Supreme Court of Florida in State v. Talavera, Fla.1971, 243 So.2d 595, where the court held that a motion for severance shall be granted when the motion shows the following:

******
“ . . . (1) the exculpatory nature of the testimony to be elicited from a code-fendant ; (2) is accompanied by some assurance that the codefendant is willing to testify; (3) sets out the facts indicating that the codefendant would not be willing to testify at a joint trial; (4) clearly indicates that the testimony sought from the codefendant is relevant, material, competent and noncumulative.”
******

The holding of the Supreme Court does not remove the granting of a motion for severance from the sound discretion of the trial judge. It is within his province to make the initial determination of whether the four conditions set out above have been met. In the present instance, as has been pointed out above, it does not appear that the court abused its discretion inasmuch as both conditions (2) and (4) are lacking.

Affirmed.

      . Rules 3.150, 3.151 and 3.152.


author: NATHAN, Judge.

text:
    Wolfgang VON DUNSER, Appellant, v. Edwin M. CARTER et al., Appellees.
    No. 75-1225.
    District Court of Appeal of Florida, Third District.
    June 15, 1976.
    Paul, Landy, Beiley & Yacos, Gilbride & Heller, Miami, for appellant.
    Mahoney, Hadlow, Chambers & Adams, and Paul C. Huck, Miami, for appellees.
    Before BARKDULL, C. J., and HEN-DRY and NATHAN, JJ.

   NATHAN, Judge.

This is an appeal by Wolfgang Von Dunser, plaintiff in the trial court, from an order granting motion to dismiss with prejudice, and final judgment in favor of the defendants, Edwin M. Carter, Richard La Conte, Lewis Busier, and Cassius B. Sisler, individually and as joint venturers, in an action for a finder’s fee.

In May of 1973, plaintiff Von Dunser, the owner of the Double D Ranch, a parcel of real property located in DeSoto County, Florida, entered into a contract to sell the ranch to the Carter group, the defendants herein. In June of 1973, the Carter group orally agreed to pay Von Dunser a finder’s fee for procuring a buyer for the Carter group’s contract for sale of the Double D. Ranch. After expending time and effort in attempting to find a purchaser for the defendants’ contract, Von Dunser did obtain a purchaser, General Development Corporation, and the contract was sold. Upon closing the transaction, Von Dunser made a demand upon the Carter group for payment of the finder’s fee, pursuant to the agreement. The defendants failed to pay and Von Dunser commenced this action.

The defendants filed a motion to dismiss on the grounds that Von Dunser is not entitled to receive a commission on the sale since he was neither a registered real estate agent nor broker. Von Dunser stipulated that he was not a registered real estate agent or broker and the court entered an order dismissing the complaint with prejudice because “ . . . the plaintiff has not complied with Chapter 475 of the Florida Statutes in that he is not a registered real estate broker.”

On appeal, Von Dunser argues that the defendants, unable to go through with the initial contract, were about to default under its terms. In order to prevent such default and loss of the defendants’ deposit, under the terms of the contract, Von Dun-ser undertook to sell his property by virtue of assignment of the contract to General Development Corporation, the newly obtained purchaser. Thus, he contends, he was selling his property, rather than the contract, and one need not be a broker to sell his own property under the exception set out in § 475.01, Fla.Stat. We note that this was not alleged in Von Dunser’s complaint, and that the original contract does not appear in the record on appeal. While the trial court was eminently correct in dismissing the cause based on the pleadings before it, in our opinion such dismissal should have been without prejudice to permit Von Dunser to amend his complaint should he so desire, and final judgment should not have been entered.

Affirmed in part, reversed in part and remanded to the trial court for further proceedings consistent with this opinion.


text:
    James DUKES, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1509.
    District Court of Appeal of Florida, Third District.
    June 15, 1976.
    Phillip A. Hubbart, Public Defender, and Gerald D. Hubbart, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen., for ap-pellee.
    Before HENDRY and HAVERFIELD, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See State v. Jones, Fla.1967, 204 So.2d 515; Mabery v. State, Fla.App. 1974, 303 So.2d 369.


author: PEARSON, Judge.

text:
    Carlos M. VAZQUEZ et al., Appellants, v. Gregorio SANTISTEBAN and Aida Santisteban, his wife, Appellees.
    No. 75-1035.
    District Court of Appeal of Florida, Third District.
    May 25, 1976.
    Rehearing Denied July 9, 1976.
    Lane, French, Lane, Carrier & Nichols, Miami, for appellants.
    H. Robert Koltnow, Miami, for appellees.
    Before PEARSON, HENDRY and NATHAN, JJ.
   PEARSON, Judge.

The appellants Carlos M. Vazquez, Carmen Vazquez and Waldina Borrero are the record titleholders of real property. They were impleaded in proceedings supplementary to execution. See Fla.Stat. § 56.29. This appeal is from an order directing levy on the property for the judgment debt of Jorge Baro. The appellees are Gregorio Santisteban and Aida Santisteban, the judgment holders. The question presented is whether the record shows a fraudulent transfer of the title of the property from Jorge Baro to the Vazquezes and Borrero.

The record shows the history of the judgment and the transfers of the land as follows:

(1) February 19, 1974 — Deed from Baro to Max Enterprises, Inc.
(2) April 3, 1974 — Deed from Max Enterprises, Inc., to Jorge Baro and Dulce M: Baro, his wife.
(3) July 10, 1974 — Suit by Santisteban against Baro on promissory note.
(4) August 13, 1974 — Deed from Baro and wife to the Vazquezes and Borrero (appellants).
(5) August 15, 1974 — Final judgment for Santisteban against Jorge Baro, individually.

The trial judge found that the deed from Baro to Max Enterprises, Inc. (1 above) was without consideration, and that the deed from Max Enterprises, Inc., to Jorge Baro and Dulce M. Baro (2 above) was without consideration. The court further found that the real property was purchased by Jorge Baro with his own funds and was never intended to be the property of Max Enterprises, Inc., that the property was never intended to be entireties property, and that the transfers were made while Baro was insolvent and were made to defraud creditors. The court also found that the deed from Baro and wife to the Vazquezes and Borrero was fraudulent.

The controlling question is whether the evidence and the findings are sufficient to subject the real property to the judgment against Jorge Baro, individually. We hold that they are not sufficient and we reverse the order appealed.

Section 689.11 of the Florida Statutes authorizes a direct conveyance from a husband to himself and his wife, thereby creating an estate by the entireties. Therefore, the finding that the real property was purchased solely with the funds of the husband is not material to the validity of the deed. The finding that the wife did not pay a consideration for the deed is also immaterial because such deeds are contemplated by the statute and are presumed valid upon the consideration of love and affection. See 10 Fla.Jur. Deeds § 59 (1973) ; and cf. Waterman v. Higgins, 28 Fla. 660, 10 So. 97 (1891). We do not presume to hold that such conveyances may not be found to be fraudulent when, as in Sample v. Natalby, 120 Fla. 161, 162 So. 493 (1935), the evidence supports a finding that the conveyance was for the purpose of placing the property beyond the reach of the grantor’s creditor who was about to procure a judgment against him.

The question, therefore, is whether the evidence here is sufficient to support a finding that the deeds of February 19, 1974 (1 above) to Max Enterprises, Inc., and of April 13, 1974 (2 above) to Jorge Baro and Dulce M. Baro, his wife, were for the purpose of defrauding the Santiste-bans “who [were] about to procure a judgment against him.” We hold that the evidence was not sufficient because the conveyances were made before suit was instituted on the note and the finding that the deeds were fraudulent is based upon lack of consideration and the fact that Jorge Baro had paid for the property from his own funds. The finding that Jorge Baro was “insolvent” is likewise an insufficient basis for the finding. An insolvent person may make a valid deed for a good consideration and, in the absence of evidence that the deed was made for an illegal purpose, the deed will pass title. See Stelle v. Dennis, 104 Fla. 384, 140 So. 194, 196 (1932).

Inasmuch as it is our determination that Jorge Baro and Dulce M. Baro, his wife, held a valid title as an estate by the entire-ties before the institution of suit on the promissory note and that the record does not support a finding that the deed was for the purpose of placing the property beyond the reach of the Santistebans, who were about to procure a judgment against him, the subsequent deed to the appellants Vazquez and Borrero is not subject to Santisteban’s judgment. See Hunt v. Covington, 145 Fla. 706, 200 So. 76 (1941) ; and Winters v. Park, Fla.1956, 91 So.2d 649.

The order appealed is reversed.


text:
    Joseph Peter D’AGOSTINO, Appellant, v. The STATE of Florida, Appellee.
    No. 74-1628.
    District Court of Appeal of Florida, Third District.
    June 2, 1976.
    Rehearing Denied July 9, 1976.
    Sandstrom & Hodge, Fort Lauderdale, for appellant.
    Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., for appel-lee.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

Appellant, defendant below, appeals his conviction and sentence, including probation, for unlawfully and feloniously breaking and entering a building with intent to commit a felony therein, aggravated assault, and possession of burglary tools. Appellee was the prosecution below.

An appellant, on an appeal in a criminal case, has the burden of showing that the trial proceedings were so infected with prejudicial error as to compel a reversal of the judgment. Such error must be clearly demonstrated by the appellant. See, e. g., Bryan v. State, Fla.App.1973, 279 So.2d 332; Stephens v. State, Fla.App. 1973, 279 So.2d 331; Blackman v. State, Fla.App. 1973, 279 So.2d 99; and see 2 Fla.Jur., Appeals § 358. In the instant appeal, we have carefully considered the entire record, all the numerous points raised in the briefs, and arguments of counsel in the light of the controlling principles of law, and have concluded that no reversible error has been demonstrated. The jury was supported in its verdict by substantial evidence and no error was committed which injuriously affected any substantial right of appellant. Therefore, for the reasons stated and upon the authorities cited, the judgment and sentence appealed are affirmed.

Affirmed.


text:
    Luckie STRADTMAN, Appellant, v. The STATE of Florida, Appellee.
    No. 75-552.
    District Court of Appeal of Florida, Third District.
    June 2, 1976.
    Rehearing Denied July 9, 1976.
    Horton, Perse & Ginsberg, Weinsoff & Weinsoff, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Linda C. Hertz, Asst. Atty. Gen., for appellee.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

Appellant, defendant below, appeals his conviction and sentence for extortion, assault and battery, unnatural and lascivious acts, and contributing to the delinquency or dependency of a minor. Appellee was the prosecution below.

After appellee filed a four count information against appellant, charging him with the crimes set forth above, he invoked discovery pursuant to Rule 3.220, Florida Rules of Criminal Procedure, 33 F.S.A., and demanded that the following information and material within appellee’s possession or control be disclosed to him:

“Any written or recorded statement and the substance of any oral statements made by the accused and known to the prosecutor, together with the name and address of each witness to the statement.”

The case came to trial on March 21, 1975, and at that time, during appellee’s opening argument to the jury, appellant’s counsel learned that there were oral admissions made by appellant. Appellant’s counsel then objected to any reference to the admissions because appellee had failed to comply with appellant’s request for discovery. During the course of argument on appellant’s objection, counsel for appellee stated that he had supplied “standard discovery” to appellant’s counsel. This included a list of the witnesses involved in the case, however, he never told appellant’s counsel about the defendant’s admissions. Appellant’s counsel, upon inquiry by the trial court, stated that he had taken the deposition of appellee’s principal witness at the office of appellee’s counsel and had examined the file, but no information about the oral admissions was ever given to him and he did not know about the admissions prior to the time of trial. The trial court then overruled appellant’s objection to ap-pellee’s use or reference to the admissions, although it did permit appellant’s counsel 10 to 20 minutes to talk to the officers who knew about the admissions. The trial judge at the time she overruled appellant’s objection stated that she felt she was bound, by prior rulings of the appellate courts, to rule that way even though she didn’t like it and didn’t think that it was right. Thereafter, one of appellee’s witnesses was allowed to testify about appellant’s oral admissions.

Subsequently, during cross-examination of the victim by appellant’s counsel, he tried to demonstrate why she would fabricate her testimony. Counsel attempted to ask the victim about the existence of a civil suit pending against appellant for his alleged conduct, however, all of these attempts were rejected by the trial court as being irrelevant, immaterial, and collateral to matters before the court.

The trial proceeded to its conclusion and the jury returned a verdict of guilty on all four counts and the trial court entered a judgment and sentenced appellant to fifteen years in the state prison. This appeal followed.

Appellant contends, among other things, as follows: (1) that the trial court committed reversible error in restricting his cross-examination of appellee’s principal witness, i. e., the victim, about her pending civil suit against him, and (2) that the trial court committed reversible error in allowing into evidence, over his objections, statements and testimony about his oral admissions, because the state failed to furnish his counsel, after appropriate demand for discovery, the statements as required by the Florida Rules of Criminal Procedure.

In regard to appellant’s first point on appeal, it is a well recognized rule that limiting the scope of cross-examination in a manner which keeps from the jury relevant and important facts bearing on the trustworthiness of crucial testimony constitutes error, especially where the cross-examination is directed to the key prosecution witness. See Gordon v. United States, 344 U,S. 414, 73 S.Ct. 369, 97 L.Ed. 447 (1953); Coco v. State, Fla.1953, 62 So. 2d 892; Bryan v. State, 41 Fla. 463, 26 So. 1022; and see also Kirkland v. State, Fla.App.1966, 185 So.2d 5. Pursuant to this rule and based on the record of this case, it is our opinion that the trial court erred in refusing to allow appellant to cross-examine the victim in regard to her pending lawsuit against him.

In regard to appellant’s second point on appeal, we are also of the opinion that, based on the record in this case, the trial court erred in allowing into evidence statements and testimony about the admissions made by him. See State v. Coney, Fla. 1973, 294 So.2d 82; Adkins v. Smith, Fla. 1968, 205 So.2d 530; Cannon v. State, Fla. App.1975, 317 So.2d 459; Taylor v. State, Fla.App.1974, 292 So.2d 375; and Rule 3.220 Rules of Criminal Procedure, 33 F.S.A.

After a consideration of the record, all points in the briefs, and arguments of counsel in the light of the controlling principles of law, for the reasons stated and upon the authorities cited, the judgment and sentence appealed are reversed and the cause is remanded for a new trial.

Reversed and remanded.


author: BARKDULL, Chief Judge.

text:
    Edward GOTTSCHALK and Allstate Insurance Company, a Foreign Corporation, Appellants, v. George E. SMITH and Grace Smith, Appellees.
    Nos. 75-680, 75-718.
    District Court of Appeal of Florida, Third District.
    June 2, 1976.
    Rehearing Denied July 9, 1976.
    Talburt, Kubicki & Bradley and Robert Dickman, Jeanne Heyward, Miami, for appellants.
    Horton, Perse & Ginsberg, Welsh & Carroll, Miami, for appellees.
    Before BARKDULL, C. J., PEARSON, J., and CHARLES CARROLL (Ret.), Associate Judge.
   BARKDULL, Chief Judge.

The case sub judice arose out of an altercation between the appellee, George E. Smith, and one William H. Miles. On March 13, 1973, Smith drove his automobile into a Standard Oil Company service station operated by the appellant, Edward Gottschalk. As he approached the gasoline pumps, he allegedly struck or brushed against Miles with his automobile. At the time, Miles (a customer at the station) was walking from the pumps toward the mechanical • stalls of the station where his automobile was being worked on. Upon being brushed by Smith’s car, Miles banged upon the hood of the car and started cursing Smith. This was when the appellant, Gottschalk, first became aware of a problem between his customers. Gottschalk, at the time, was proceeding toward the pump area to service Smith’s automobile. Another customer, a Mr. Alexander, interceded and lead Miles away toward his car and attempted to get Miles to control his temper. Miles did, in fact, cool down to a degree and the incident appeared closed. Gottschalk filled Smith’s car with gas, made out the charge slip, and gave it to Smith to sign. He told Smith to go ahead and leave the area. As Smith was walking toward his car, Miles yelled some obscenity at him and Smith yelled at Miles to shut up. Upon hearing Smith’s remark, Miles came toward him and asked Smith if he wanted to fight. Smith replied that he did and a fight of short duration ensued. Smith being injured in that fight, brought the instant suit against Miles, Gottschalk, Standard Oil Company, Highlands Insurance Company, Allstate Insurance Company, and Market Insurance Company. The suit against Miles was based upon an intentional tort. The suit against Gottschalk sought damages for breach of duty to provide reasonable security and protection of all persons lawfully on the premises. The cause proceeded to trial against Miles, Gottschalk, and Allstate. At the beginning of the trial, Miles admitted liability. At the close of all the evidence, Gottschalk moved for a directed verdict, which was denied. Thereupon, the jury returned a verdict in favor of the appellees against Miles, Gottschalk, and Allstate. Gotts-chalk’s and Allstate’s motion for judgment in accordance with their motion for directed verdict and/or a new trial and for re-mittitur were denied and final judgment was entered in accordance with the jury verdict.

The appellants have raised several points on this appeal, only one of which need be considered in determining this appeal. We find merit in the appellants’ allegation that the trial court erred in failing to direct a verdict in favor of the appellants herein. There is nothing in the facts of this case to show that Gottschalk knew or could have known or anticipated the attack by Miles or that Smith would act in a manner so as to provoke that attack. The initial altercation had subsided; Smith’s business at the station had been completed, and he had been advised to leave. Had he done so, instead of provoking Miles, it is reasonable to assume that the attack would not have taken place.

The law is clear that in order for the proprietor of a public place to be held liable for a breach of duty to a customer he must have either actual or constructive knowledge of the particular risk involved and/or a reasonable opportunity to protect him from that risk. Wometco Theatres Corporation v. Roth, Fla.App.1960, 123 So.2d 472; Elmore v. Sones, Fla.App.1962, 140 So.2d 59; Reynolds v. Deep South Sports, Inc., Fla.App.1968, 211 So.2d 37; Warner v. Florida Jai Alai, Inc., Fla.App. 1969, 221 So.2d 777.

Therefore, based on the foregoing, the final judgment is reversed insofar as it affects the appellants herein, and the cause is remanded to the trial court with directions to enter a judgment for the appellants.

Reversed and remanded, with directions.


text:
    Felix HOWARD and Ana Marie Howard, Appellants, v. Richard SHIRMER, Jr., etc., et al., Appellees.
    No. 75-930.
    District Court of Appeal of Florida, Third District.
    June 2, 1976.

      Horton, Perse & Ginsberg, Miami, for appellants.
    Joel R. Teague, Miami, for appellees.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   PER CURIAM.

Plaintiffs appeal a summary final judgment as to The Miami Herald Publishing Company, one of several defendants in this negligence action.

Plaintiff Felix Howard was injured when the truck beneath which he was working was hit by a van driven by defendant Richard Shirmer. Howard and his wife sued Shirmer and through discovery learned he was a newsdealer for the Miami Herald. Thereupon, plaintiffs filed an amended complaint adding the Herald as an additional party defendant on the allegation that Shirmer was its employee. The Herald answered alleging that Shirmer was an independent contractor. Shirmer’s deposition also reflects that he considered himself to be self-employed. Subsequently, the Herald filed a motion for summary judgment and attached supporting affidavits together with the Independent Newsdealer’s Contract entered into with Shirmer. The trial court granted summary final judgment in favor of the Herald based upon the finding that on the date of the accident Shirmer was an independent contractor. Thereafter, the Howards filed a motion for rehearing and a motion for leave to take additional testimony of Mr. Kitson, the person at the Miami Herald who allegedly has the decision making powers concerning such matters as the termination of a newsdealer’s contract. The motion was denied. We affirm.

With regard to plaintiffs’ contention that the court erred in denying their motion for leave to take additional testimony, the plaintiffs had ample opportunity to depose Mr. Kitson before the hearing on the Herald’s motion for summary judgment. Further, if they believed that they did not have adequate time to take Mr. Kit-son’s deposition, then they should have moved for a continuance pursuant to RCP 1.510(f) to afford them the additional time needed. Plaintiffs have failed to pursue the proper procedural options open to them. Cf. McNutt v. Sherrill, Fla.App. 1962, 141 So.2d 309; CIA. Ecuatoriana De Aviacion v. U. S. & Overseas Corp., Fla.App. 1962, 144 So.2d 338,

We find no merit in plaintiffs’ argument that the court erred in its entry of summary judgment for the Miami Herald. See Miami Herald Publishing Company v. Kendall, Fla. 1956, 88 So.2d 276 and Cf. Peairs v. Florida Publishing Company, Fla.App.1961, 132 So.2d 561.

Affirmed.


text:
    Edward NODARSE, Appellant, v. Candice NODARSE, Appellee.
    No. 75-1144.
    District Court of Appeal of Florida, Third District.
    April 6, 1976.
    Rehearing Denied July 6, 1976.
    Acosta & Duran, Miami, for appellant.
    Nachwalter, Christie & Falk, Miami, for appellee.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

Affirmed. See Colbath v. Colbath, Fla. 1972, 268 So.2d 361; Howard v. Howard, Fla.App. 1960, 118 So.2d 90; Peck v. Peck, Fla.App. 1974, 291 So.2d 211; Fesak v. Fesak, Fla.App.1974, 303 So.2d 47.


author: HENDRY, Judge.

text:
    PEOPLES DOWNTOWN NATIONAL BANK, Appellant, v. LAWYERS TITLE GUARANTY FUND, Appellee.
    No. 75-1062.
    District Court of Appeal of Florida, Third District.
    June 2, 1976.
    Rehearing Denied July 9, 1976.
    Williams, Salomon, Kanner & Damian, Prunty, Ross, DeLoach & Olsen, Miami, for appellant.
    John A. Murray, Miami, for appellee.
    Before PEARSON, HENDRY and NATHAN, JJ.
   HENDRY, Judge.

Appellant, plaintiff below, appeals a final judgment entered by the trial court in a nonjury trial pursuant to the granting of appellee’s, defendant below, motion for judgment in its favor made at the close of appellant’s case.

Appellant filed its complaint against ap-pellee based upon a mortgagee policy of title insurance issued by it. The policy provided that a certain mortgage held by appellant was in accordance with law and that it constituted a valid first mortgage lien upon the property described in the mortgage. Appellant had accepted the mortgage as security for a loan of $65,000. Subsequent to the issuance of the policy, a suit was brought in Broward County to foreclose a lien upon the subject property. This lien was held to be superior to appellant’s lien and, as a result, the security held by it was lost. Appellant’s complaint sought the recovery of its damages, attorney’s fees, and costs.

On May 27, 1975, a non jury trial was held, and, at the close of appellant’s case, the trial court granted appellee’s motion for directed verdict. On June 27, the trial court entered its final judgment from which appellant appeals.

The record shows that the mortgagee policy of title insurance was issued by Eugene Tannenbaum, a lawyer and member of appellee Lawyers Title Guaranty Fund, who was duly authorized to represent it and to issue, acting on his sole responsibility, such policies. The policy, in this case, was issued in the face amount of $65,000, which was the amount of a loan extended by appellant to Dominion Properties Corp. and for which a mortgage on real property was given as security for the loan. This policy guaranteed the validity of the mortgage deed and the first mortgage position of the mortgage lien given to appellant as security. At the time that the policy was written and delivered to appellant by Tan-nenbaum, he was an attorney for the bank, a director, and a member of the executive committee. Tannenbaum was also president of Dominion Properties Corp. from its inception until approximately June of 1970. Tannenbaum presented a loan application to appellant in November 1969, which application sought a loan of $65,000 on behalf of Dominion Properties Corp. This loan application was subsequently approved by all of the directors of appellant.

Disbursement was made on the loan to the extent of $40,000 on November 6, 1969, and on December 24, 1969, an additional $25,000 was disbursed. Notes were given to appellant for both disbursements along with the assurance by Tannenbaum that all proper documentation, including the mortgage title insurance policy, would follow. The remainder of these documents including the mortgagee policy were furnished by Tannenbaum in January of 1970.

At the time the policy was issued and delivered to appellant by Tannenbaum, he was aware that the mortgage given to appellant was not, in fact, a first mortgage lien. However, appellant was not aware of this fact and no one at the bank had any knowledge that the mortgage was not a first lien.

■Several months after the delivery of the policy to appellant, it learned that the funds disbursed in connection with the loan had not accrued to the benefit of Dominion Properties Corp., but were used by Tannen-baum for his personal benefit. Subsequently, Tannenbaum was convicted in the United States District Court, Southern District of Florida, on charges of furnishing false records to a national banking association.

Appellant makes the two following points on appeal: (1) that the disbursement of the proceeds of the mortgage loan by it, as mortgagee, prior to receipt of the mortgagee policy of title insurance covering the property mortgaged did not render any claim under the policy unenforceable, and (2) that the issuance of the policy by its attorney who was also a corporate director, knowing that the mortgage insured was not a first lien as the policy provided, and who wrongfully received the proceeds of the mortgage loan, all without the direct knowledge of appellant, did not constitute such imputation of knowledge to it so as to bar all claims under the mortgagee policy.

In our opinion both points made by appellant are well taken. The matter of the title insurance and its issuance was a separate and complete transaction apart from the loan transaction between appellant and Dominion Properties Corp. As stated in Couch on Insurance 2d, § 48:110, “[w]here at the time a policy of title insurance is delivered, the title is defective by reason of a lien or encumbrance, the contract is breached and the title company is immediately liable to the insured.” Here, the policy insured appellant against loss with respect to the status of its mortgage lien and the validity thereof with Dominion Properties Corp. It was immaterial that the policy was delivered or dated subsequent to the date of the loan transactions. See Livingston v. American Title and Insurance Company, Fla.App.1961, 133 So.2d 483; and Couch on Insurance 2d, § 48:108.

In regard to appellant’s second point on appeal, it is our opinion that appellant should not be estopped from seeking recovery under the title policy. Under certain circumstances, the knowledge and information possessed by an agent will not be imputed to his principal. Usually, this occurs when the agent is acting adversely to his principal or engages in a transaction in which the agent is personally interested. In this case, Tannenbaum’s interest was best served by his concealing from appellant the information and knowledge which he had about the status of the mortgage. Also, the record is clear that he was acting in his own self-interest in concealing such information and knowledge from appellant. Further, appellant had no direct knowledge or information about the status of the mortgage, but relied therefor on Tannenbaum. For these reasons, we do not think that Tannenbaum’s personal knowledge and information about the mortgage could be properly imputed to appellant. See Graves v. Iowa Mutual Insurance Company, Fla. 1961, 132 So.2d 393; Luria v. Bank of Coral Gables, 106 Fla. 175, 142 So. 901; Lambert v. Heaton, Fla.App.1961, 134 So. 2d 536; 1 Fla.Jur., Agency § 87; and 4 Fla.Jur., Banks and Trust Companies § 101.

Upon consideration of the record, all points in the briefs, and arguments of counsel in light of the controlling principles of law, we have determined that the trial court erred in granting appellee’s motion for judgment in its favor at the close of appellant’s case. Therefore, for the reasons stated and upon the authorities cited, the final judgment appealed is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.


text:
    Kathleen ANDERSON, Appellant, v. Dr. Howard GORDON et al., Appellees.
    No. 75-717.
    District Court of Appeal of Florida, Third District.
    April 13, 1976.
    Rehearing Denied July 6, 1976.

      • Frates, Floyd, Pearson, Stewart, Proenza & Richman, Miami, and Celeste Hardee, Coconut Grove, for appellant.
    Magill & Sevier, Miami, for appellees.
    Before BARKDULL, C. J., and HEN-DRY and HAVERFIELD, JJ.
   HAVERFIELD, Judge.

Plaintiff in a medical malpractice action appeals an adverse final judgment entered pursuant to a jury verdict for the defendant.

The unfortunate series of events giving rise to this litigation began when plaintiff-appellant, Kathleen Anderson, consulted with Dr. Howard Gordon, defendant-ap-pellee, for the purpose of having her breasts reduced and consented to his performing a reduction mammoplasty (a breast reduction operation). Employing the Strombeck technique which helps to maintain the patients’ circulatory system in the breasts, thus reducing post operative necrosis (deadening of tissue), the defendant performed a 2i^ hour operation removing more than 1,500 grams of tissue. Unfortunately, after the surgery plaintiff lost 30% additional breast tissue due to impaired circulation resulting in scarred, unevenly shaped breasts. Plaintiff contends the defendant committed malpractice through the misapplication of an accepted surgical procedure known as the Strom-beck technique. At trial, plaintiff requested that an instruction on res ipsa loquitur be given to the jury which was refused. The jury returned a verdict finding for the defendant and final judgment was entered. Her motion for new trial being denied, plaintiff perfected this appeal and urges as reversible error the failure to instruct the jury on the application of the rule of res ipsa loquitur.

To be entitled to an instruction on the application of the rule of res ipsa loquitur, plaintiff’s proof must show that the circumstances eliminate every other conclusion save that the defendant was at fault. See McKinney Supply Co. v. Orovitz, Fla. 1957, 96 So.2d 209 and Martin v. Powell, Fla.App.1958, 101 So.2d 610. Further, in medical malpractice actions the rule may be invoked only where a layman is able to say as a matter of common knowledge and observation that the consequences of the professional treatment were not such as ordinarily would have followed if due care had been exercised. The rule, however, may not be applied where expert medical evidence is required to show not only what was done, but how and why it occurred since the question is then outside the realm of the layman’s experience. See Annot., 162 A.L.R. 1265, 1269 (1946). Last, the fact that the treatment was unsuccessful or terminated with poor or unfortunate results does not of itself raise an inference of negligence nor is it sufficient to invoke the doctrine of res ipsa loquitur. Trotter v. Hewett, Fla.App.1964, 163 So.2d 510.

In the instant case the evidence reflects that plaintiff’s necrosis was caused by impaired blood circulation in her breasts subsequent to the operation. Nevertheless, plaintiff’s proof does not support the finding that this impairment to the blood circulation could not have resulted except that the defendant failed to exercise due care. Thus, an instruction with regard to res ipsa loquitur was not warranted. In the final analysis both parties presented expert testimony as to whether defendant was negligent. The jury having resolved this issue in favor of the defendant and there being competent substantial evidence to support the verdict, we will not disturb it on appeal.

Affirmed.


text:
    William A. CARTER, Appellant, v. The STATE of Florida, Appellee.
    No. 75-820.
    District Court of Appeal of Florida, Third District.
    April 13, 1976.
    Rehearing Denied July 6, 1976.

      Phillip A. Hubbart, Public Defender, and Paul Morris, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and William M. Grodnick, Asst. Atty. Gen., for ap-pellee.
    Before BARKDULL, C. J., PEARSON, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The appellant was convicted of grand larceny, on a non-jury trial. The sentence imposed was confinement in the county jail for the period one year, with provision that after serving one month thereof he should be on probation for eleven months.

On his appeal, when it became known that the reporter’s notes of the testimony and trial proceedings were lost, this court relinquished jurisdiction to the trial court to permit a record to be made. The attorney for defendant submitted a statement reflecting the evidence and proceedings at trial as recollected by him. The assistant state attorney involved in the trial agreed therewith except for certain portions. Thereupon the trial judge supplied a statement of the facts disclosed in the evidence and of the proceedings at the trial, based on the statements of counsel which were not in dispute and on his recollection as to the areas on which the attorneys for the parties were not in agreement. In so doing, the trial judge properly performed his duty in such circumstance. See Downing v. Bird, Fla.App. 1962, 145 So.2d 559, citing Moyer v. Moyer, Fla.App. 1959, 114 So.2d 638 and Potash v. Dry & Company, 8 Fla.Supp. 174. Such record then was submitted to this court and the appeal was heard.

We hold to be without merit the appellant’s argument that a new trial should be granted because the attorneys for the parties could not agree on a statement of the record, notwithstanding the trial judge has settled upon and restored the record of the trial evidence and proceedings including those areas thereof as to which counsel for the parties were not in agreement. Downing v. Bird, supra.

On the merits of the appeal, the appellant argues insufficiency of the evidence to sustain the conviction and that error was committed by a ruling of the trial court admitting certain evidence over objection by defendant. On consideration thereof in the light of the record as thus restored and supplied and the briefs and argument, we hold no reversible error has been made to appear.

Affirmed.