author: PEARSON, Judge.

text:
    DIXIE FARMS, INC., Appellant, v. Bobbie Jean TIMMONS et al., Appellees. Richard B. SHAFFER and State Farm Mutual Automobile Insurance Company, Appellants, v. Bobbie Jean TIMMONS, Appellee.
    Nos. 74-1761, 75-61, 75-73.
    District Court of Appeal of Florida, Third District.
    Dec. 2, 1975.
    Rehearing Denied Jan. 14, 1976.

      Weinstein & Bavly and Arthur J. Mor-burger, Miami, for Dixie Farms, Inc.
    Talburt, Kubicki & Bradley, Jeanne Heyward, Miami, for Shaffer and State Farm.
    Horton, Perse & Ginsberg, Welsh & Carroll, Miami, for Bobbie Jean Timmons.
    Before BARKDULL, C. J., and PEARSON and HAVERFIELD, JJ.
   PEARSON, Judge.

These appeals arise out of the same automobile collision. The appellee in each case is the plaintiff, Bobbie Jean Timmons, who received a final judgment on a jury verdict against the defendants Dixie Farms, Inc., and Richard B. Shaffer. Plaintiff Timmons was injured when a car driven by Shaffer struck her house after having collided in an intersection with another vehicle. Dixie Farms, Inc., was the lessee-operator, through its driver Fell, of a truck which had been improperly parked so that it obscured a stop sign. The evidence viewed most favorably to the judgment shows that Fell motioned Shaffer into the intersection and that Shaffer, relying upon Fell, improperly proceeded into the intersection and was struck by the second automobile.

Dixie Farms, Inc., as appellant, vigorously argues a claimed error by the trial court in allowing amendment to the complaint at the conclusion of the plaintiff’s evidence to conform to the evidence presented. This procedure is authorized by RCP 1.190. Such an amendment is one that calls for the exercise of a trial court’s careful discretion in order that the defendant may not be surprised by the introduction of issues by evidence for which he has not been able to prepare. See Surfside Hotel, Inc. v. W. E. Moorehead Co., 1942, 149 Fla. 397, 5 So.2d 857, and Penn Cork and Closures, Inc. v. Piggyback Shippers Association of Florida, Inc., Fla.App.1973, 281 So.2d 46. We have carefully reviewed the record in the light of the contention of Dixie Farms that it was prejudiced by the ruling of the trial judge and we think that the record supports the action of the trial judge in that it affirmatively appears that the defendant Dixie Farms, Inc., was not surprised by proof that its employee was the person who waived Shaffer into the intersection. Therefore, we hold that no error has been shown under this point.

The only other point presented by Dixie Farms which we think merits discussion is its contention that the trial court committed reversible error when it failed to give any instruction on the law of re-spondeat superior as it applied to Dixie Farms’ liability for the acts of its driver. This circumstance arose from the fact that the court at the charge conference stated that it would give plaintiff’s instruction peremptorily holding Dixie Farms liable for the acts of its driver. This instruction was by inadvertence not read to the jury by the court. We hold that the error complained of was not prejudicial to defendant Dixie Farms. It affirmatively appears that the jury could have held defendant Dixie Farms liable only under the law that the master is responsible for the acts of its servant performed within the scope of employment. Therefore, the failure to instruct on this subject was harmless error. In addition, it has not been shown that the appellant requested an instruction on the subject nor does this record show that the matter of the absence of such instruction was ever presented to the trial court for its ruling during the progress of the trial or by motion for a new trial.

The remaining points presented by appellant Dixie Farms have been examined and found not to present reversible error.

Appellant Shaffer argues that as to the judgment against him, the verdict was against the manifest weight of the evidence because it shows no negligence on his part. Shaffer argues that because he was waived into the intersection and the stop sign was obscured by the Dixie Farms truck, he could not, therefore, be negligent. Such argument is not sustainable on this record. A driver does not have an absolute right to rely upon the judgment of a third person concerning whether he should proceed into a dangerous area with his automobile. Cf. Harris v. Kansas City Public Service Co., 1931, 132 Kan. 715, 297 P. 718, 720. The evidence before the jury is susceptible to a finding that Shaffer negligently proceeded around the truck and into the intersection without exercising ordinary care in order to avoid a collision. Under these circumstances, an appellate court will not reverse a jury finding of negligence. See the rule in Graves v. Wiggins, Fla.App.1972, 257 So.2d 268.

Affirmed.


source: Caselaw Access Project

author: SCHEB, Judge.

license: Public Domain

text:
    FLORIDA CLARKLIFT, INC., a corporation, and Royal Indemnity Company, a corporation, Appellants, v. Emil L. REUTIMANN, as personal representative of the Estate of Dale Isaac Reutimann, Deceased, Appellee.
    No. 75-214.
    District Court of Appeal of Florida, Second District.
    Dec. 5, 1975.
    Rehearings Denied Jan. 13, 1976.

      John R. Bush, Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellants.
    Paul B. Johnson, Gregory, Cours, Pan-iello, Johnson & Hayes, Tampa, for appel-lee.
   SCHEB, Judge.

This appeal principally addresses the question of whether, under Florida’s new Wrongful Death Act, a surviving parent who dies prior to final judgment can recover for mental pain and suffering resultant from a child’s death. The trial court held such damages proper, but ruled that punitive damages are not recoverable. We reverse in both instances.

Simply stated, the facts are these: Dale Isaac Reutimann (Dale) was killed in an automobile accident with a vehicle operated by an employee of Florida Clarklift, Inc. (Clarklift) on September 14, 1973. Dale was 17 years of age, and resided with his only surviving parent, Agnes L. Reuti-mann, who died on January 10, 1974. After the demise of Dale’s mother, the personal representative of Dale’s estate brought suit against Clarklift and Royal Indemnity Company, its insurer, seeking compensatory and punitive damages resultant from the alleged wrongful death of Dale Isaac Reu-timann. In addition to other elements of damages, the estate sought recovery for pain and suffering of the decedent’s mother for the period that she lived; to wit, September 14, 1973, to January 10, 1974, following the death of her son. Further, the estate alleged that Clarklift’s employee was intoxicated at the time of the accident and sought punitive damages against Clarklift. Clarklift and its insurer admitted liability, but contested damages. Prior to trial, the court ruled that punitive damages were not recoverable. At the conclusion of the trial, and over the objection of Clarklift and its insurer, the trial judge, in instructing the jury, included the following:

In determining any damages to be awarded the personal representative for the benefit of the decedent survivor’s mother, Mrs. Reutimann, you shall consider certain additional elements of damage for which there is no exact standard for fixing the compensation or award. Any such award should be fair and just in the light of the evidence regarding the following elements, that is, the mental pain and suffering of Agnes L. Reu-timann as a result of the death of her child during the period of time that existed in her life from the death of the child until she died.

The jury awarded $2,661.45 to the personal representative of the Estate of Dale Isaac Reutimann, plus “$35,000 to the surviving mother of deceased, Agnes L. Reu-timann.”

The new Florida Wrongful Death Act merged the survival action for personal injuries and the wrongful death action into one lawsuit. Fla.Stat. § 768.20 specifies who may bring the action and Fla.Stat. § 768.21 specifies the items of damage which may be recovered.

The new Act eliminates claims for pain and suffering of the decedent from the time of injury to the time of death; however, the decedent’s close surviving relatives are allowed recovery for their personal pain and suffering. The philosophy of the Act is to afford recovery for this element of damage for the living rather than the dead. Martin v. United Security Services, Inc., Fla.1975, 314 So.2d 765. Consistent with this stated purpose the new Wrongful Death Act in § 768.24 provides:

A survivor’s death before final judgment shall limit the survivor’s recovery to lost support and services to the date of his death. The personal representative shall pay the amount recoverable to the personal representative of the deceased survivor.

Dale’s estate argues that a correct construction of § 768.24, when .viewed in pari materia with other sections of the Act, requires the first sentence of this section to be interpreted as merely setting a limit on the recovery for lost support. In effect, this would require us to read the first sentence as “ . . . shall limit the survivor’s recovery for lost support and service to the date of his death.” Clearly the Act does not say that. Nor can we agree that it was so intended, for as the Florida Law Revision Commission noted in its recommendations, “ . . . the dead are beyond compensation for either physical or mental suffering.”

Dale’s estate makes a forceful argument that it is illogical to construe the new Act so as to permit recovery of lost support and services in favor of a deceased child’s parent up to the date of the death of the surviving parent, but yet, to deny recovery for mental pain and suffering of that parent during the same period of time. We see a logical distinction. In the instance of lost services, there has been a definite depletion of a surviving parent’s economic resources for which the parent’s estate has suffered and may even be indebted. But, while the pain and suffering endured by the surviving parent admittedly may be great to the parent, it is not an economic loss to that parent’s estate. Certainly this result is consistent with the purposes of the new Act as envisioned by its drafters, the Florida Law Revision Commission.

The trial court further ruled, prior to trial, that punitive damages are not recoverable in a wrongful death action under the new Act. This question has since been placed at rest by Martin v. United Security Services, Inc., supra, which specifically recognizes that upon proper allegations and proof of actual damages, punitive damages are recoverable under the new Act. In fairness to the trial judge, we point out that at the time of his ruling, there was a question as to whether punitive damages were eliminated by the new Act. That question, however, was resolved during the pendency of this appeal.

Clarklift contends that punitive damages are recoverable only when compensatory damages are established in favor of a survivor and that Mrs. Reutimann’s entitlement to compensatory damages was never proven. Therefore, Clarklift argues the trial court’s ruling with regard to punitive damages was not erroneous. We reject this argument for two reasons. First, the plaintiff did introduce evidence which would support an award for lost support and services to Mrs. Reutimann. Second, Martin does not hold that any specific compensatory damages are required as a basis for punitive damages. The award of $2,661.45, as compensatory damages to Dale’s estate for medical and funeral expenses, is a sufficient predicate for the jury to consider the award of punitive damages in this action.

Accordingly, we affirm the award of $2,661.45 in compensatory damages to the personal representative, but reverse as to the award of $35,000 to Agnes L. Reuti-mann, and remand for a new trial on the issues of (1) compensatory damages recoverable by Mrs. Reutimann, and (2) punitive damages.

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

      . Sections 768.16-768.27, Fla.Stat., 1973, as enacted by Ch. 72-36, Laws of Florida, 1972, effective July 1, 1972.

      . For a comprehensive discussion of the prior statutory action involving a death by wrongful act and the new consolidated action therefor, the reader is referred to Justice Overton’s opinion in Martin, supra. Martin upholds the constitutionality of Fla.Stat. 768.16-27, to the extent they consolidate survival and wrongful death actions, eliminate damages for the decedent’s pain and suffering, and provide for recovery of damages for the survivor’s pain and suffering.

      . See Florida Law Revision Commission, Reconsideration & Report on Florida’s Wrongful Death Statute, December 1969, pp. 41-42.

      . “This objective is to allow a full recovery on behalf of those who were dependent on the deceased and who have sustained demonstrable losses of support and services by the wrongful death.” Id. at pp. 7-8.


author: PER CURIAM.

text:
    Robert L. KNASER and Reliance Insurance Company, a surety company authorized to do business in the State of Florida, Appellants, v. Emmett D. SMITH, Appellee.
    No. 74-1788.
    District Court of Appeal of Florida, Fourth District.
    Dec. 5, 1975.
    William E. Lawton and William L. Colbert of Stenstrom Davis & McIntosh, Sanford, for appellants.
    Kenneth M. Leffler of Hutchison Lef-fler & Morris, Altamonte Springs, for ap-pellee.
   PER CURIAM.

Appellants-defendants, Robert L. Knaser and Knaser’s insurer, Reliance Insurance Company, appeal an order determining the validity of service of process on Appellant-Knaser and failure to dismiss an amended complaint in an action suggesting devastavit. We reverse.

Upon review of the record on appeal and after consideration of the briefs of the parties, we determine that since appellee’s cause of action as alleged against Appellant-Knaser arose prior to July 1, 1973, the effective date of Sections 48.193 and 48.-194, Florida Statutes, Knaser, a resident of the State of Ohio, was not subject to service of process perfected pursuant to these sections. See Barton v. Keyes Co., 305 So.2d 269 (Fla.App.1974); Marshall v. Johnson, 301 So.2d 134 (Fla.App.1974). Therefore, the trial court did not have jurisdiction over Knaser’s person and erred in denying Knaser’s motion to dismiss.

Accordingly, the trial court’s order denying appellant-Knaser’s motion to dismiss is reversed and the cause remanded with directions to dismiss appellee’s amended complaint as to appellant Knaser only.

CROSS, OWEN and MAGER, JJ., concur.


author: DOWNEY, Judge.

text:
    STATE of Florida, Appellant, v. Jeffrey DOPSON and Dalton Win Stucky, Appellees.
    No. 75-164.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 1975.
    Rehearing Denied Jan. 13, 1976.
    William R. Sharpe and Gregory M. Wilson, Asst. State’s Attys., Orlando, for appellant.
    Richard L. Jorandby, Public Defender, and Daniel T. O’Connell, Asst. Public Defender, West Palm Beach, for appellee.
    Terrence William Ackert, Altamonte Springs, for appellee-Dalton Win Stucky.
   DOWNEY, Judge.

Appellees were charged with armed breaking and entering with intent to commit a felony in violation of § 810.01(1), F. S.1973. A motion to dismiss the information pursuant to Rule 3.190(c)(4), RCrP was sustained and this appeal ensued.

The parties have stipulated to the following pertinent facts. Appellees were observed breaking and entering a residence in Orlando, Florida, during daylight hours. After a short period of time they were observed exiting the residence and within five minutes thereafter they were apprehended by the police. Among the items of personal property taken from the possession of the appellees was a loaded .38 caliber pistol which belonged to the owner of the residence involved in the breaking and entering. The owner had loaded the pistol some months before the theft.

Appellees contend and the trial court apparently agreed that the theft of a loaded pistol during the commission of a breaking and entering without any further showing of intent or willingness to use such weapon in furtherance of the breaking and entering does not constitute a violation of § 810.01(1), F.S.1973.

Section 810.01(1) provides in material part that “[w]hoever breaks and enters a dwelling house . . . with intent to commit a felony, . . . if he be armed with a dangerous weapon ... at the time of breaking and entering, or if he arm himself with a dangerous weapon, . shall be guilty of a felony of the first degree . . ..”

Section 810.01(2), F.S.1973, provides that “[i]f the offender be not armed, nor arm himself with a dangerous weapon as aforesaid, ... he shall be guilty of a felony of the second degree . . ..”

There is nothing ambiguous about the language of either section of the statute nor do we find any support for the alleged requirement that the state must show the person charged intended or was willing to use such weapon in the furtherance of the crime being committed. A loaded pistol is a dangerous weapon and to take possession thereof is tó arm oneself. Accordingly, the information properly charged a violation of § 810.01(1) rather than § 810.01(2), and the stipulated facts would be sufficient to support a conviction of the crime charged. See People v. Wallace, 36 Cal.App.2d 1, 97 P.2d 256 (1940).

The judgment appealed from is reversed and the cause is remanded for further proceedings consistent herewith.

WALDEN' C. J., and OWEN, J., concur.


text:
    Linda E. WERNER, Appellant, v. SAFECO INSURANCE COMPANY OF AMERICA, Appellee.
    No. 75-208.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 1975.
    Rehearing Denied Jan. 14, 1976.
    John C. Briggs, Robertson, Williams, Duane & Lewis, P.A., Orlando, for appellant.
    David Flaxer and James A. Lien, Orlando, for appellee.
   PER CURIAM.

Reversed on the authority of Catches v. Government Employees Insurance Company, 318 So.2d 552 (1st DCA Fla. 1975). See also, White v. Reserve Insurance Company, 299 So.2d 661 (1st DCA Fla. 1974),

WALDEN, C. J., OWEN, J., and REAS-BECK, JAMES M., Associate Judge, concur.


author: HENDRY, Judge. PEARSON, Judge

text:
    AMERICAN SERVICE MUTUAL INSURANCE COMPANY, Appellant, v. Richard Wendell WILSON, Appellee.
    No. 74-1633.
    District Court of Appeal of Florida, Third District.
    Dec. 9, 1975.
    Rehearing Denied Jan. 13, 1976.

      Adams, George, Wood, Lee & Schulte and David L. Willing, Miami, for appellant.
    Horton, Perse & Ginsberg, Fred O. Pas-ternack, Miami, for appellee.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   HENDRY, Judge.

Appellant, American Service Mutual Insurance Company, respondent in the trial court, brings this appeal to review a confirmation of arbitration award entered by the circuit court for Dade County in favor of appellee, Richard Wendell Wilson, petitioner in the trial court.

This action began in the circuit court when appellee filed a motion for confirmation of arbitration award pursuant to § 682.01, Fla.Stat., F.S.A. In his motion, ap-pellee sought judicial confirmation of an award of $10,000 which he received in an arbitration proceeding before the American Arbitration Association. In this proceeding, appellee claimed benefits under uninsured motorists coverage pursuant to an automobile insurance policy issued to him by appellant. Appellee claimed that he had suffered injuries as a result of the negligence of an uninsured motorist. As a result of this arbitration proceeding, appellee was awarded $10,000. The award provided in pertinent part as follows :

“AMERICAN SERVICE MUTUAL INSURANCE CO. shall pay to RICHARD WENDELL WILSON the sum of TEN THOUSAND DOLLARS AND NO CENTS. ($10,000.00).
“In considering the award the panel did not include the following: medical bills, loss of earnings, earning capacity for the past and future.
“In the absence of a provision to permit the taxing of costs in the rules of the American Arbitration Association, the Arbitrators took no position on this issue.
“This award is in full settlement of all claims submitted to this arbitration.”

Appellant filed an answer and counterclaim in the circuit court. In its answer, appellant asserted two defenses: (1) appellant alleged that appellee’s motion to confirm the award was barred by § 682.-13(1)(c), in that by refusing to consider medical bills, loss of earnings, and earning capacity for the past and future, the arbitrators exceeded their powers, and (2) appellant alleged that appellee’s motion was barred by § 682.14(1) (a), Fla.Stat., F.S.A., in that the arbitrators, by refusing to consider medical bills, loss of earnings, and earning capacity for the past and future, mistakenly described the things referred to in their award.

In its counterclaim, appellant sought to have the circuit court vacate or modify the arbitration award pursuant to §§ 682.13 and 682.14, Fla.Stat., F.S.A. In support of its counterclaim, appellant alleged that in refusing to consider appellee’s medical bills, loss of earnings, and earning capacity for the past and future, the arbitrators violated § 682.13(1) (c), Fla.Stat., F.S.A., in that they exceeded their powers in refusing to consider and determine at one time and in one proceeding all items of damage legally recoverable by appellee as a result of the negligence of the uninsured motorist; and in so refusing the arbitrators also violated § 682.14(1)(a), in that they mistakenly described the things referred to in their award. The counterclaim asked the circuit court to vacate or modify the arbitration award to provide that it was an award for all items of damage legally recoverable by appellee as a result of the negligence of the uninsured motorist, including medical bills, loss of earnings, and earning capacity for the past and future.

The circuit court confirmed the arbitration award and denied appellant’s counterclaim in an order dated October 2, 1974. This order reads, in pertinent part, as follows :

“1. The petition of RICHARD WENDELL WILSON to confirm arbitration award in the amount of $10,000 rendered by and pursuant to the rules of the American Arbitration Association, be and the same is hereby granted, and judgment is hereby entered in favor of the petitioner and against the respondent, AMERICAN SERVICE MUTUAL INSURANCE COMPANY, in the amount of $10,000 plus legal interest thereon from the date of the award, April 9, 1974, to date, for which sum let execution issue forthwith.
“2. The counter-claim filed herein by the respondent, AMERICAN SERVICE MUTUAL INSURANCE COMPANY, be and the same is hereby dismissed with prejudice.
“3. The petition for recovery of costs attendant upon the arbitration proceedings filed herein by the petitioner, RICHARD WENDELL WILSON, be and the same is hereby denied.”

From this order, appellant appeals.

Appellant contends that the circuit court should have entered judgment for it on its counterclaim, and that the circuit court should have ruled that the $10,000 award was for all items of damage legally recoverable by appellee under his uninsured motorist coverage, which by § 627.727 would include his medical bills, loss of earnings, and earning capacity for the past and future. As a basis for this contention, appellant argues that the circuit court violated the rule of Travelers Ins. Co. v. Luckett, Fla.App.1973, 279 So.2d 885. Appellant asserts that the denial of its counterclaim, in effect, leaves pending appel-lee’s claims for elements of damages which should'have been included in his $10,000 arbitration award.

The basic question for this court on appeal is whether, in making the award for a claim under the uninsured motorist’s provision of appellee’s policy with appellant, the arbitrators’ award properly excluded any amount for damages for medical bills, loss of earnings, and loss of earning capacity for the past and future.

We feel that the cases relied upon by appellant, Travelers Ins. Co. v. Luckett, Fla.App.1973, 279 So.2d 885 and Stuyvesant Insurance Company v. Johnson, Fla.App.1975, 307 So.2d 229, are readily distinguishable from the instant appeal.

The Stuyvesant case, supra, held that uninsured motorist’s coverage benefits should not duplicate the same benefits available to an insured under the no-fault personal injury protection coverage. In this appeal we do not have the same questions, i. e., the duplicate payments issue as raised by Stuyvesant, and, therefore do not find it controlling. The Travelers case, supra, held that where an insured was covered by two automobile policies, each containing uninsured motorist coverage, and his damages for injuries sustained in collision with a vehicle driven by an uninsured motorist had already been determined and paid under the arbitration provisions of one of the policies, he was barred from" compelling the second insurer to submit to, arbitration to determine its liability as to the same accident. In the instant appeal, ■appellee only has one policy, which is with appellant, and the facts of Travelers, supra, are otherwise inapplicable to this appeal.

Here, the arbitrators concluded, after hearing the evidence presented by appellant and appellee at the arbitration hearing, that appellee was entitled to $10,000 in uninsured motorist coverage exclusive of medical bills, loss of earnings, and earning capacity for the past and future. The record discloses that these latter benefits could have been compensated for under the no-fault personal injury protection benefits provision of appellee’s insurance policy with appellant, however, there is no evidence in the record that a duplication of benefit payments has occurred. The award of the arbitrators, as confirmed by the order of the circuit court, expressly states that any available personal injury protection coverage benefits, i. e., medical bills, loss of earnings, and earning capacity for the past and future, were excluded in the award. Therefore, we do not feel that the order appealed runs afoul of the rules in regard to the duplication of benefits set forth in the Stuyvesant and Travelers cases, supra. See also Summers v. Jackson, Fla.App.1975, 307 So.2d 235; and Protective National Insurance Company of Omaha v. Roberts, Fla.App.1973, 287 So.2d 362.

A reading of the uninsured motorist and personal injury protection statutes in conjunction with the above cited cases discloses that the uninsured motorist coverage is designed to be the excess over and not duplicate benefits under the personal injury protection coverage. The intention of the Legislature was to assure the insured the full amount of uninsured motorist coverage to the extent that he can show an entitlement thereto without the duplication of benefits. Here the arbitrators concluded, after hearing the evidence presented by both appellee and appellant at the arbitration hearing, that appellee was entitled to $10,000 in uninsured motorist coverage exclusive of and not in duplication of any available personal injury protection benefits. Therefore, we feel the circuit court properly confirmed the award.

Appellee, cross-appellant, raises by cross-assignment of error the contention that the circuit court erred in denying his petition for recovery of costs attendant upon the arbitration proceedings. Costs, as that term is used in this appeal, cannot be awarded by the court in a proceeding unless such award is authorized by statute or by agreement of the parties. Gullette v. Ochoa, Fla.App.1958, 104 So.2d 799; and 8 Fla.Jur., Costs § 4. The record here indicates that neither an agreement for costs existed between the parties nor did any statute provide for the payment of costs. Therefore, we find that the trial judge was correct in not granting appellee’s petition for the recovery of costs.

We have 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 judgment appealed is affirmed.

Affirmed.

PEARSON, Judge

(concurring in part and dissenting in part).

I concur fully in the opinion in this case except as to the matter of costs. See State Farm Mutual Insurance Company v. Rutkin, Fla.1967, 199 So.2d 705.


text:
    Charles Edward HUESMAN, Appellant, v. Wanda Lea Hall HUESMAN, Appellee.
    No. 75-59.
    District Court of Appeal of Florida, Third District.
    Dec. 9, 1975.
    Fink & Syna, Miami, for appellant.
    J. James Donnellan, III, Miami, for ap-pellee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Affirmed on the authority of Bordman v. Bordman, Fla.App.1970, 231 So.2d 543.


text:
    WESLEY CONSTRUCTION CO., a Florida Corporation, for itself and for the use and benefit of Alfred T. Eldredge, Jr., and Claire Eldredge, his wife, Appellants, v. John Richard LANE, d/b/a Lane Pools, Appellee.
    No. 75-88.
    District Court of Appeal of Florida, Third District.
    Dec. 9, 1975.
    Rehearing Denied Jan. 13, 1976.
    Edward C. Vining, Jr., and R. M. MacArthur, Miami, for appellants.
    Krongold & Bass and Theodore R. Bayer, Miami, for appellee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Appellants, plaintiffs and counter-defendants below, bring this appeal from a summary judgment and final judgment for costs and attorneys’ fees entered by the trial court in favor of appellee, defendant and counter-plaintiff below, on its counterclaim. Appellants also appeal the order of the circuit court denying its petition for rehearing. Appellee cross appeals the judgment of the trial court denying it attorneys’ fees pursuant to its counterclaim and the order of the trial court denying its petition for rehearing.

Appellant, Wesley Construction Co., as general contractor, and appellee, as subcontractor, entered into a written agreement whereby appellee installed a swimming pool on property owned by appellants Alfred and Claire Eldredge. Due to appellant Wesley’s failure to pay the contract price, appellee placed a lien on the Eld-redges’ property.

Appellant Wesley then filed a complaint, for itself and for the use and benefit of the Eldredges, to expunge the lien. Appel-lee counterclaimed for the unpaid balance of the contract price, costs, interest, and attorneys’ fees pursuant to the contract.

Appellant Wesley moved for summary judgment on the complaint which the trial court granted because the lien had not been timely filed. The trial court then granted appellee’s motion for summary judgment on its counterclaim against appellant Wesley for the unpaid balance of the contract and costs. Appellee’s motion to assess reasonable attorneys’ fees against appellant Wesley was denied. From these judgments, appellants appeal and appellee cross-appeals.

Appellants contend that, where there is a nominal plaintiff, i.e., Wesley Construction Co., which brings a suit solely on behalf of the real parties in interest, i.e., Alfred and Claire Eldredge, the status of the nominal plaintiff is not such as to permit the defendant (appellee) to maintain as a counterclaim an asserted cause of action which is against the nominal plaintiff only.

Appellee contends that appellant Wesley was a real party in interest and not merely a nominal plaintiff and that its counterclaim was compulsory. Appellee also contends that appellant Wesley pursuant to the terms of the contract agreed to pay all costs of collection, including reasonable attorneys’ fees, in the event it defaulted on payment and, therefore, the trial court erred in not awarding appellee attorneys’ fees.

On an appeal from a summary judgment, where no genuine issue as to any material fact is shown to exist, the only question for the appeals court is whether the summary judgment was properly granted or denied under the law. Goodwin v. Shire, Fla.App.1958, 105 So.2d 178; and see 2 Fla.Jur., Appeals § 307, and 30 Fla.Jur., Summary Judgment § 34.

We have 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 as to either appellants or appellee has been demonstrated. Therefore, for the reasons stated and upon the authorities cited, the judgments appealed are affirmed.

Affirmed.


text:
    Andrew J. McKELVEY, Appellant, v. Elaine McKELVEY, Appellee.
    No. 75-239.
    District Court of Appeal of Florida, Third District.
    Jan. 9, 1976.
    Sinclair, Louis & Siegel and Neil A. Shanzer, Hilton Carr, Jr., Miami, for appellant.
    Richard P. Kenney, Miami, for appellee.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   PER CURIAM.

Defendant, a non-resident, appeals that portion of a final judgment finding that the court had acquired jurisdiction over his person.

This rather bizarre case was inaugurated in October 1974 upon the filing of a complaint by Mrs. Elaine McKelvey, appellee herein, for a declaratory decree wherein she alleged that (1) she and the defendant, appellant herein, Andrew McKelvey, were husband and wife, but were living separately; (2) Andrew in August 1974 purchased a home in Dade County, Florida and took title in his name and that of Emily P. McKelvey, whose real name is Emily Craney; and (3) Emily was never Andrew’s wife. Mrs. McKelvey prayed for a declaration that she was entitled to a dower interest in the house and other relief incidental thereto. The complaint also contained an allegation that Andrew had concealed himself from the service of process and was believed to be in California. Elaine McKelvey filed an affidavit in support of constructive service of process by publication and a motion pursuant to RCP 1.310 seeking to take the depositions of Mr. and Mrs. Rex Wallin prior to the expiration of 30 days after process to ascertain the whereabouts of Andrew. The trial court granted the motion and entered a temporary injunction enjoining and restraining Andrew from selling or in any way encumbering the subject house. The depositions were scheduled for October 15, 1974 and on that date attorney Dana P. Brigham, who allegedly was representing the deponents, filed a notice of taking the deposition of Elaine on October 21, 1974 and stated therein that deponents, the Wal-lins, desired to determine why they were being annoyed by having their depositions taken. Simultaneously, Mr. Brigham also filed a motion for protective order and alleged (1) the court was without jurisdiction over the deponents because the complaint fails to state a claim upon which relief can be granted, (2) the complaint should be denied for inconsistencies on its face, and (3) the complaint would be moot upon a lis pendens being filed by Elaine McKelvey. On October 25, 1974 a hearing was held on this motion of the deponents at which Mr. Brigham argued on behalf of the Wallins. The trial judge then entered his order denying the motion for protective order and finding that the deponents were not entitled to take the deposition of Elaine. On November 18, 1974 Elaine moved for entry of default judgment against Andrew as no pleadings of any kind had been filed as of the return date of November 11, T974. A copy of this motion was mailed to Mr. Brigham as attorney for Andrew. Mr. Brigham then filed, allegedly on behalf of the deponents Mr. and Mrs. Wallin, a motion to rehear their motion for protective order and to grant their motion to dismiss. This pleading was captioned as a motion to alter or amend judgment although the allegations thereof are silent with respect thereto. After oral argument of counsel, the trial court denied same.

In December 1974, Elaine moved to amend her complaint to seek as additional relief alimony unconnected with divorce pursuant to § 61.09, Fla.Stat., attorney’s fees, and costs and in addition, to join as additional parties defendant, Telephone Marketing Programs, Inc. and G. H. & L., Inc., two corporations which maintain offices in Miami and in which Andrew is the principal or sole stockholder. Again, Elaine prayed that service by publication be effected upon Andrew. A notice of hearing on this motion was mailed to Mr. Brigham as attorney for Andrew. On December 17, 1974 Elaine’s motion to amend came on for a hearing at which Mr. Brigham announced he was not there on behalf of any of the defendants, but' rather to get permission to withdraw the court file for the purpose of copying all pleadings and documents. The motion to amend was granted and Mr. Brigham’s request was denied. After several more hearings, the trial judge on January 16, 1975 entered his order finding the court had jurisdiction over the person of the defendant, Andrew J. McKelvey, and thereupon granted to Elaine McKelvey the relief prayed for in her amended complaint. Andrew appeals the jurisdiction portion of the January 16 order. We affirm.

Jurisdiction over a defendant is acquired either by service of process on him or by his voluntary appearance and submission, and generally this appearance of a defendant is made through an attorney. See 3 Fla.Jur. Appearances §§ 4, 6 (1955). Moreover, in determining the character of an appearance, the court always will look to matters of substance, rather than of form. Bowmall v. Bowmall, 127 Fla. 747, 174 So. 14 (1937) and 5 Am.Jur.2d Appearance § 14 (1962).

Implicit in the trial judge’s determination that the court had acquired in personam jurisdiction over the defendant Andrew J. McKelvey was the finding that the actions of Mr. Brigham were consistent with his representation of the defendant. We find there is ample evidence in the record to sustain this conclusion of the trial judge.

Having concluded that the trial judge committed no reversible error in determining Mr. Brigham’s actions to.be consistent with his representation of the appellant, we now must resolve the issue of whether this appearance was of a general nature which would confer in personam jurisdiction or merely of a special nature.

A general appearance ordinarily will be effected by making a motion involving the merits of plaintiff’s claim and his right to maintain the suit and secure the relief sought. See 3 Fla.Jur.Appear-ances § 11 (1955) and-cases cited. The motion for protective order filed by Mr. Brigham was in effect a motion to dismiss for, inter alia, failure to state a claim upon which relief can be granted, a ground going to the merits. See St. Anne Airways, Inc. v. Webb, Fla.App.1962, 142 So.2d 142 at 143; Green v. Roth, Fla.App. 1966, 192 So.2d 537 at 540; Stavang v. American Potash and Chemical Corporation, 344 F.2d 117 (5th Cir. 1965). Hence, we find the trial judge was correct in determining the court had obtained in per-sonam jurisdiction over Andrew McKelvey.

Last, we turned our attention to the final argument in this appeal that assuming arguendo an appearance of counsel, the trial court erred in finding and exercising personal jurisdiction over Andrew after the complaint was amended to set forth a different cause of action.

The following holding in Gilbert v. Gilbert, Fla.App.1966, 187 So.2d 49 at 50 we believe is dispositive of this issue:

“[1] Under our more liberal attitude toward pleadings, amendments should be allowed where the basic cause of action is not changed. It has been stated in regard to the relation back of amendments that the test ‘is not whether the cause of action stated in the amended pleading is identical to that stated in the original, but whether the pleading as amended is based upon the same specific conduct, transaction or occurrence between the parties upon which the plaintiff tried to enforce his original claim’.” [Emphasis Supplied]

In the case at bar, the pleading as amended is based upon the same conduct of the defendant Andrew McKelvey, i. e. his living with a woman not his wife, putting the home in this woman’s name and avoiding his legal responsibility to provide support for his wife, Elaine McKelvey. More important, Mr. Brigham, was served with the motion to amend thereby receiving notice. See Gilbert, supra. Thus, we must reject this argument of appellant.

For the reasons stated hereinabove and upon the authorities cited, we hereby affirm the appealed order of the trial court.

Affirmed.

      . Never brought on for hearing or entered by the clerk of the court.

      . Which cures defects in service of process.


text:
    TRUSTEE OF CHASE MANHATTAN MORTGAGE & REALTY TRUST, a Massachusetts business trust, Appellant, v. SAILBOAT APARTMENT CORP., a Florida Corporation, et al., Appellees.
    Nos. 75-725, 75-726.
    District Court of Appeal of Florida, Third District.
    Nov. 18, 1975.
    Rehearing Denied Jan. 13, 1976.
    Smathers & Thompson and John H. Schulte, Miami, for appellant.
    Pettigrew & Bailey and Bruce W. Greer, Miami, Jones, Paine & Foster, West Palm Beach, for appellees.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   PER CURIAM.

By these consolidated interlocutory appeals appellants-defendants have brought up for review. two orders of the Circuit Court of Dade County. The order appealed in case no. 75-725 is as follows:

“THIS CAUSE having come on for hearing on Plaintiffs’ motion to strike pleadings of Defendant Chase Manhattan Mortgage & Realty Trust, and for entry of judgment, under Rule 1.380, Florida Rules of Civil Procedure, against the said trust, and upon review of the record in this cause, the Court noting that:
“(a) On January 22, 1975, several sets of interrogatories were propounded by Plaintiffs and served upon Defendants.
“(b) Said interrogatories were entitled ‘Preliminary Interrogatories to All Defendants,’ ‘Witness Interrogatories to Trustees of Chase Manhattan Mortgage & Realty Trust,’ and ‘Expert Witness Interrogatories to Trustees of Chase Manhattan Mortgage & Realty Trust.’
“(c) On January 30, 1975, the Defendant Trustees filed what they designated as a Rule 1.280(c) ‘motion for protective order,’ asking the Court to
“ ‘take judicial notice that such trust is a large business organization which operates through ministei ial agents and employees and should be considered to be an association within the scope of Rule 1.340(a) ; that the individual trustees are not familiar with the details of the operation of the business of said Defendant or with the details of any transaction; that their function is . . . not unlike the board of directors of a large corporation; that the information sought by such interrogatories is not likely to be within the knowledge of any of the trustees.
“(d) On February 11, 1975, this Court entered an order denying the Trustees’ said motion for protective order.
“(e) Three days later, on February 14, 1975, the said Trustees filed a motion for extension of time to respond to interrogatories, setting forth, among other things, that ‘said Defendants are located at various parts of the country and many of them are or may be in transit or moving about the country from place to place,’ enumerating the logistical difficulties involved, and reiterating
“ ‘that the purpose for said Defendant's] moving for an extension of time was to avoid the necessity of burdening the Trustees, all of whom are substantial businessmen, with the undertaking of reviewing the rather complex set of interrogatories, as to which it is unlikely that any of them will have any knowledge . . . and, accordingly no communication concerning the same was had with them prior to thé hearing on said Defendant’s motion for protective order . . . etc. . . . [and said Defendants] will be unable to respond to the interrogatories within the time provided by the rules.’
Defendants, therefore, moved for an extension of ‘thirty (30) days past the time their answers would be required.’
“(f) Rather than have hearing on the foregoing motion, on February 18, 1975, the parties stipulated and the Court entered an order ‘that the time for said Defendants to respond to the interrogatories heretofore served upon them be extended to and including March 20, 1975.’ The Court signed this order on February 21, 1975.
“(g) Two days after they had stipulated to respond on or before March 20, 1975, Defendants filed a ‘motion for reconsideration’ asking the. Court to reconsider its order of February 11, 1975, for the reasons, inter alia, that
“ ‘at the hearing on the motion, the Court did not have the court file; during the hearing there were various interruptions and distractions by reason of the fact that the air-conditioning was not operating, the lights were flickering on and off and various comments were passed concerning these distractions; [and] said Defendants are therefore fearful that the Court’s attention may have been diverted from argument of counsel.’
and further that the [theretofore ‘rather complex set of interrogatories’]
“ ‘are preliminary and do not go to the substance or merits . . . ; the answers of all of the Trustees . if any of them has any knowledge . . . will be cumulative. . . . ’

Defendants’ motion further stated:

“ ‘While these Defendants do not question the right of Plaintiffs to have much of the information sought, the Plaintiffsf’] motivation must be suspect in propounding such interrogatories to Defendants-Trustees. . . .’

And further that,

“ ‘Defendants-Trustees are not located in one place; in many instances their whereabouts at any particular time are. unknown, ■ and communicating with them is exceedingly difficult.’
“ ‘(b) At the same time and notwithstanding this Court’s order of February 11, 1975, Defendants filed “Objection to Interrogatories,” being a blanket objection to all of the interrogatories based upon Defendants’ assertion already rejected by this Court’s order of February 11, 1975, that an individual agent be appointed to answer all of the interrogatories.
“‘(i) On March 11, 1975, Plaintiffs filed a motion to strike pleadings because of non-compliance with the Court’s order of February 11, 1975. At the same time, hearing on Plaintiffs’ motion was noticed for March 14, 1975. By agreement of counsel this motion was never argued.
“ ‘(j) On March 19, 1975, this Court denied Defendants’ motion for rehearing and reconsideration and protective order, and overruled Defendants’ objections.
“Thereafter, it is undisputed that counsel for Defendants orally requested and received additional time from counsel for Plaintiffs to file answers to the interrogatories, which said oral extension was confirmed by a letter giving Defendants until Monday, March 24, 1975.
“On March 26, 1975, notwithstanding the foregoing pleadings history and history of off-the-record extensions of time, Defendants filed a ‘Motion for Extension of Time.’ The grounds for this motion asserted that:
“ ‘good faith effort' is being made to assemble . . . [the] information; however, by reason of many other pressing and urgent matters affecting the operation of the trust, the personnel who must assemble such information have not been able to address themselves fully to the assemblage and provision of such information . . .; that the Trustees who are required to respond to said interrogatories are spread throughout the country, so that consultation with them and preparation by them of their answers is impractical . . .’
and that the voluntary extension of time given by Plaintiffs was only for four days.
“At the same time as their motion for extension was filed, Defendants set their motion for extension of time down for hearing before this Court on April 1, 1975.
“On March 27, 1975, apparently upon receiving the motion for extension, Plaintiffs filed a motion to strike pleadings of Defendant Chase Manhattan Mortgage & Realty Trust, which motion recited Plaintiffs’ view of the history of the foregoing pleadings and urged that:
“ ‘Defendants’ continued delaying tactics are predicated on two pre-judgment hopes: (1) a change in the usury laws, and (2) divestment of the trust assets.’
Plaintiffs, therefore, moved ‘to strike the Defendant Chase Manhattan Mortgage & Realty Trust’s pleadings, for entry of judgment, and for reasonable attorneys’ fees as provided by law.’ Also on March 27, 1975, Plaintiffs noticed their motion to strike on the same 1:30 P.M. motion calendar (on April 1, 1975) as Defendants’ motion for extension of time.
“This cause thereafter came on for hearing on Defendants’ said motion for extension of time. Defendants orally objected to any argument on Plaintiffs’ motion to strike on grounds that he had not had adequate notice. The Court thereupon entered its ‘Order Denying Extension of Time to Answer Interrogatories’ dated April 1, 1975, which, inter alia, gave Defendants until the end of the Court’s motion calendar on April 3, 1975, in which to provide a full set of answers to interrogatories.
“THIS CAUSE thereafter came on for hearing before the Court on April 3, 1975, on Plaintiffs’ motion to strike. At that hearing, counsel for Defendants asserted that ten out of the 12 sets of interrogatory answers had been received but that one additional trustee was in California and no response had been forthcoming from him and that defense counsel thought the other trustee was somewhere out of the country and no response had been forthcoming from him. Defense counsel indicated that he had handed telephotoed copies of such responses to Plaintiffs’ counsel immediately prior to the hearing. No original answers were filed with the Court. Plaintiffs’ counsel indicated that, having just received the documents, he was unable to agree or disagree with the assertions that most of the interrogatories had been answered, but that it appeared doubtful that as many had responded as Defendants’ counsel had indicated. Defense counsel then handed to opposing counsel and to the Court its seven-page memorandum in opposition to Plaintiffs’ motion.
“AND the Court having heard argument of counsel, having reviewed Defendants’ said memorandum, and being otherwise fully advised in the premises, it is, upon consideration,
“ORDERED AND ADJUDGED as follows:
“1. Under all of the circumstances of this case, Defendants’ conduct has been flagrant and inexcusable and the sanctions provided by Rule 1.380(b) are appropriate.
“2. In making this ruling, the Court is not unaware of the serious nature of the sanctions provided by the Rule. The Court has studied the court file, independently researched the law and consulted with other judges of the General Jurisdiction Division of the Eleventh Judicial Circuit concerning the general appropriateness of the sanctions and the kind of circumstances which warrant imposition.
“3. Each and every pleading heretofore filed in this, cause by or on behalf of Chase Manhattan Mortgage & Realty Trust, a Massachusets business trust, for itself and/or its Trustees, is hereby stricken from the record of this cause, and this file shall be deemed to be the same as if the said Trust and its Trustees have failed to file or serve any paper in this action.”

The order appealed in case no. 75-726 is a denial of appellants’ motion to set aside the default.

We have carefully considered the points on appeal in the light of the record, briefs and arguments of counsel and have concluded that the trial court erred in entering the orders appealed.

The general rule in imposing of sanctions is that they be applied only in extreme circumstances where wilful non-compliance with the court’s order is shown by the record. We find that the record does not show a wilful disregard of the court’s order. See Owens-Illinois v. Lewis, Fla.App.1972, 260 So.2d 221; Goldstein v. Goldstein, Fla.App.1973, 284 So.2d 225.

Reversed and remanded with directions to vacate the orders appealed and for further proceedings not inconsistent with our holdings herein.

Reversed and remanded.


text:
    George S. ENGLE, Jr., Appellant, v. Ann ENGLE, Appellee.
    No. 74-1608.
    District Court of Appeal of Florida, Third District.
    Nov. 25, 1975.
    Rehearing Denied Jan. 14, 1976.
    Creel & Glasgow, Miami, for appellant.
    Levenson & Richman, Miami, and Julius Erstling, So. Miami, for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, J J.
   PER CURIAM.

Appellants, Mr. and Mrs. George S. En-gle, Sr., the paternal grandparents, seek review of an order denying their motion to be relieved from a judgment and order designating them as formal custodians of their three minor grandchildren, and directing them to contribute financially to their grandchildren’s support and maintenance.

In April 1971 George Engle, Jr. petitioned for divorce and in September moved that the custody of the three minor children be changed from his wife Annie to his parents. The trial court, finding that neither George, Jr. nor Annie was a fit and proper person to have care of their three children, awarded custody of the children to appellants. In November, with the apparent approval of the court, the three children moved into the home of the maternal grandparents, Mr. and Mrs. Charles Venice, with the consent of appellants. On February 2, 1972 the court dissolved the marriage between George and Annie and reserved jurisdiction to determine the question of child custody. On July 5, 1972 the court entered an order directing that the minor children remain in the actual care and custody of Mr. and Mrs. Venice with formal custody in the appellants, and instructing the appellants to continue to contribute financially to the support, maintenance and welfare of the children to the same extent as that contributed by them over the period in which temporary custody was with them. Upon the petition of Mr. and Mrs. Venice for enforcement of court order (of July 5, 1972), appellants were ordered to pay the children’s school tuition, medical and dental bills, and to reimburse the Venices for the cost of the children’s clothes. On October 10, 1974 appellants filed a motion to be relieved from judgment and order pursuant to RCP 1.450 on the grounds that the July 5, 1972 order was void in that the law compels parents to contribute to the support of their minor children. The motion was denied and this appeal ensued. We reverse.

First, it is the duty of the father, not the grandparents, to support the minor children and this duty is not affected by the fact that the custody of the children has been taken from the parent by a decree of a court of competent jurisdiction. See Schiff v. Schiff, Fla.App.1960, 123 So.2d 295 and 24 Fla.Jur. Parent and Child § 11 (1959).

Second, upon the transfer of actual custody and control to the Venices, it was inequitable to require the appellants to continue to support the grandchildren. Further, there is no statute or common law requiring appellants to make support payments on behalf of their grandchildren.

Third and last, the grandchildren residing in the home of the maternal grandparents, it cannot be said that appellants stand to the children in loco parentis and, thus, be bound for their maintenance, care and education. Cf. Weigl v. Ombres, Fla.App.1958, 106 So.2d 614; Fussell v. Douberly, Fla.App.1968, 206 So.2d 231.

The order of denial appealed is reversed and this cause is remanded to the trial court with directions to enter a new order granting appellants’ motion to be relieved from judgment and order.

Reversed.


author: MILLS, Judge. MILLS, Judge.

text:
    Raymond HOUSE and Pat House, Appellants (Defendants), v. STATE of Florida, Appellee (State).
    No. Y-94.
    District Court of Appeal of Florida, First District.
    Oct. 29, 1975.
    Rehearing Denied Jan. 16, 1976.

      William B. Richbourg, Pensacola, for appellants.
    Robert L. Shevin, Atty. Gen., Donald K. Rudser, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

The question presented by this appeal is whether the affidavit, on which the search warrant was issued, justified a finding of probable cause.

The affidavit contained the following statements to support the search of defendants’ dwelling:

“That the facts tending to establish the grounds for this application and the probable cause of affiant believing that such facts exist are as follows: The af-fiant was contacted by informant Juanita Nichols who told the affiant that Heroin was kept and sold at the above described location. To verify this information, the affiant had the informant make a controlled buy of Heroin from the above described location. This was done by first searching the informant for drugs and finding none, then going with the informant to the above described location on October 11, 1974 at 8:45 p. m. The above described location was kept under observation at all times until the informant left and met with the affiant at 8:55 p. m. and turned over to the affiant a substance sold as Heroin. The informant told the affiant that she had observed more of the substance at the above described location and had been sold the substance as Heroin for $100.00.
“Present during and participating in the transaction was Pat House, with the substance being sold to the informant by Raymond House. Within the last week, this informant has been told that Raymond House has more Heroin for sale.
“From the above information the affiant does believe that Heroin is being kept and sold at the above described location and has obtained an arrest warrant for Raymond House for possession and sale of Heroin and an arrest warrant for Pat House for Principal in the first (1st Degree) to sale of Heroin.”

The search warrant was issued on 28 October 1974, and was executed on 30 October 1974. During the search, less than five grams of marijuana was seized.

Defendants moved to suppress the evidence seized under the warrant, contending that the supporting affidavit was insufficient because (1) it was based on hearsay of an informer; (2) it failed to state that heroin was contained in the dwelling; and (3) the time period between the alleged criminal activity and the issuance of the warrant was too great for probable cause to still exist. The trial court denied the motion.

Thereafter, defendants pled nolo con-tendere to the offense of possession of less than five grams of marijuana; they were adjudged guilty; and they were sentenced to time in the county jail. This appeal resulted. We affirm.

Under Section 933.18, Florida Statutes, a warrant for the search of a dwelling may be based on reliable hearsay information. The reliability of the source of the hearsay information is determined by the issuing magistrate. State v. Wolff, 310 So.2d 729 (Fla.1975). The issuing magistrate’s finding of reliability of the informant’s hearsay information is supported by the stringent controlled buy supervised by the affiant officer.

The issuing magistrate determined that the facts stated in the affidavit adequately supported the affiant officer’s conclusion that he had reason to believe that heroin was being sold in defendant’s dwelling. We agree. It is of no consequence that the affiant referred to “substance sold as heroin” rather than positively stating the substance was heroin.

In Hamelmann v. State, 113 So.2d 394 (Fla.App. 1st, 1959), this court held that if the alleged offense is no more than thirty days from the issuance of the warrant, a finding of probable cause will not be disturbed. In the case before us, not more than seventeen days lapsed.

Affirmed.

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

UPON PETITION FOR REHEARING DENIED

MILLS, Judge.

Defendants’ petition for rehearing -as-^ serts that the Court’s opinion filed on 29 October 1975 is not responsive to the issues raised by the defendants, and incorrectly states two of defendants’ three contentions.

Defendants are correct in stating that the Court did not fully and completely restate two of their contentions. The Court would have been more nearly accurate in stating defendants’ contentions as (1) there was no factual basis for believing the hearsay of the informer, and (2) there was no factual basis for believing that heroin was kept and sold in the dwelling.

Defendants are incorrect in their assertion that the Court did not respond to the issue raised by their appeal. The issue, as previously stated by the Court, is whether the officer’s affidavit justified a finding of probable causé, and the issuance of the search warrant. We were of the opinion, and so stated with the reasons, that the affidavit justified a finding of probable cause. We are still of that opinion.

Petition for rehearing denied.

BOYER, C. J., and McCORD, J., concur, cur.


text:
    CITY OF OPA LOCKA, a Municipal Corporation organized and existing under the Laws of the State of Florida, Appellant, v. George CARLILE, Jr., Appellee.
    No. 75-283.
    District Court of Appeal of Florida, Third District.
    Nov. 18, 1975.
    Rehearing Denied Jan. 12, 1976.

      Weintraub & Weintraub and Jan K. Seiden, Miami, for appellant.
    Eugene P. Spellman and Dennis R. Kuhn, Miami, for appellee.
    Before BARKDULL, C. J., and HEN-DRY and HAVERFIELD, JJ.
   PER CURIAM.

Appellant, the City of Opa-Locka, respondent below, brings this appeal from a final order of the circuit court issuing its writ of certiorari and quashing a dismissal of appellee, petitioner below, from employment with appellant. Said order also awarded back pay to appellee.

On June 19, 1974, appellee was dismissed from his position as police officer with appellant. The dismissal was for his alleged failure to assist another police officer with certain paperwork in violation of appellant’s personnel rules. Appellee appealed to the City of Opa-Locka Personnel Board, and on July 24-25, 1974, a public hearing was held and a majority of the Personnel Board made findings of fact and recommended to the City Manager of appellant that appellee’s dismissal be upheld due to his violation of appellant’s personnel rules. Based on these findings of fact and recommendation, appellee’s dismissal was upheld.

Appellee then filed a petition for writ of certiorari in the circuit court which on February 7, 1975 issued an order granting certiorari, quashing appellee’s dismissal, and ordering his reinstatement with back pay. From this order, appellant appeals.

Appellant raises two points on appeal First, it contends that the circuit court erred in issuing the order based upon its finding that there did not exist substantial competent evidence to warrant appellee’s dismissal and, second, it contends that the circuit court erred in ordering appellant to pay appellee all the compensation he would have been otherwise entitled to receive had he not been removed from employment.

As stated by this court in Southern Gulf Util. v. Metropolitan Dade Co. W. & S. Bd., Fla.App.1965, 180 So.2d 481, 483:

“The extent of our review on this appeal is to decide whether the circuit court applied the applicable law and acted in accordance with established procedure. The error which must be demonstrated for reversal is an error of the circuit court not the board. It was the court’s duty to determine whether the board had before it competent substantial evidence to support its findings and conclusions and complied with the essential requirements of law.”

In the instant appeal, our review is likewise limited.

In certiorari proceedings brought relative to the determinations of an administrative body, it is an often cited principle that the function of the court is not to weigh conflicting evidence, but rather to review whether such determinations are supported by substantial competent evidence. Southern Gulf Util. v. Metropolitan Dade Co. W. S. Bd., Fla.App.1965, 180 So.2d 481; Ammerman v. Florida Board of Pharmacy, Fla.App.1965, 174 So. 2d 425; Florida State Board of Dental Exam. v. Feinglass, Fla.App.1964, 166 So.2d 686; 1 Fla.Jur., Administrative Law, §§ 191-194, and cases cited therein. Here the circuit court, acting as the reviewing court on petition for certiorari from the Personnel Board, held that there did not exist substantial competent evidence to warrant the dismissal of appellee from his position as police officer with appellant.

Applying the above rationale to this appeal, we find that the chancellor was eminently correct in his decision of the issue raised concerning the evidence. We have considered appellant’s other point on appeal and find it to be without merit.

We have 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 order appealed is affirmed.

Affirmed.


text:
    Donald DEXTER, Appellant, v. Claude DORSY, Individually and as trustee, et al., Appellees. McNAB ENTERPRISES, INC., Appellant, v. Claude DORSY, Individually and as trustee, et al., Appellees.
    Nos. 75-1049, 75-1055.
    District Court of Appeal of Florida, Third District.
    Nov. 18, 1975.
    Rehearing Denied Jan. 14, 1976.
    Donald Dexter, in pro per.; Booher & McGrotty, Fort Lauderdale, for appellant.
    Bridges & Dorsy, Coral Gables, for ap-pellee.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

Affirmed upon authority of Petition of Stoll, Fla.App.1975, 309 So.2d 190. See also 30 F.S.A. (1975-1976 Supp.) RCP 1.-070, Committee Note at p. 17.


text:
    FLORIDA EAST COAST RAILWAY COMPANY, Appellant, v. HOLIDAY INNS, INC., Appellee.
    No. 75-441.
    District Court of Appeal of Florida, Third District.
    Nov. 25, 1975.
    Rehearing Denied Jan. 14, 1976.
    Shutts & Bowen and William P. Simmons, Jr., Miami, for appellant.
    Alex S. Gordon and Frank J. O’Connor, Miami, for appellee.
    Before BARKDULL, C. J., and HAV-ERFIELD and NATHAN, JJ.
   PER CURIAM.

Appellant, Florida East Coast Railway Company, appeals an adverse partial summary judgment determining its lease with Holiday Inns, Inc. to be in full force and effect.

On December 31, 196S Florida East Coast Railway Company (hereinafter referred to as FEC), as lessor, and Holiday Inns, Inc. (hereinafter referred to as Holiday Inn), as lessee, entered into a 99 year net percentage lease of a parcel of FEC’s property on the east side of Biscayne Boulevard between 7th and 8th Streets in the City of Miami. The lease required Holiday Inn to pay all taxes and construct at its own cost a 10 story motel containing a minimum of 250 rooms. With respect to the commencement of construction the lease provided:

“That said building work must be commenced and the conditions precedent to the commencement of the work as described hereinabove and hereinafter must be complied with by the Lessee within a period of one (1) year from the date of this lease; PROVIDING, HOWEVER, that if the Lessee is delayed in good faith and after the exercise of due diligence on its part in the commencement of the work of construction and in complying with the conditions precedent to the commencement of such work of construction, by Act of God or the public enemy, or by governmental restriction upon the use of labor and/or materials (or by general strikes or by other conditions beyond the control of the lessee) to such extent that the work cannot be commenced and the conditions precedent to the commencement of such work cannot be complied with by the time herein-above set forth, then the time for commencement of the work will be extended for a period of time equivalent to the actual period of such delay so caused;
PROVIDED, HOWEVER, that nothing herein contained shall be construed as authorizing the Lessee to unreasonably delay the preparations of the plans and the making of arrangements to comply with the conditions precedent to the commencement of construction with the effect that, as a result of such delay, circumstances have occurred which make it impossible for the Lessee to commence the building and to comply with the conditions precedent to the commencement of building which would not have occurred had the Lessee exercised due diligence promptly in the commencing and doing of such things. Said building will be completed within two (2) years from the date of commencement of the work, subject to conditions beyond the control of Lessee.”

FED did not, prior to or during the negotiation of the lease, inform Holiday Inn that it owned fee title to the easterly 50 feet of Biscayne Boulevard (one of Miami’s busiest thoroughfares) immediately adjoining the westerly frontage of the leased property. This 50 foot strip, which constituted the means of ingress and egress to Holiday Inn’s leasehold, was being used by the public by virtue of a lease from FEC to the City of Miami.

In 1966 FEC cancelled its lease with the City of Miami for the 50 feet of roadway fronting Holiday Inn’s leasehold, and in 1967 instituted litigation against the City for return of this strip of roadway or in the alternative for damages by virtue of inverse condemnation. Thereafter, when Holiday Inn presented its plans for construction of the motel to the City of Miami, the City refused to issue a permit without a written assurance that there was available to the leased property public access to and from a public street. An agreement with respect to public access was worked out between Holiday Inn and the City of Miami. However, FEC refused to approve it and continued to prosecute its inverse condemnation suit which in 1970 finally terminated in FEC’s favor. In September 1971, the City of Miami filed eminent domain proceedings against all of FEC’s property bordering Biscayne Boulevard including Holiday Inn’s leasehold. Approximately 60 days thereafter, FEC served written notice of cancellation of the lease on Holiday Inn which continued in its attempts to obtain a building permit.

In response, Holiday Inn filed the instant suit to enjoin FEC from trespassing on the leased property and to recover damages. FEC counterclaimed for cancellation of the lease and each party moved for summary judgment. Partial summary judgment holding the lease to be in good standing was entered, and FEC perfected this interlocutory appeal.

FEC basically argues that material issues of fact exist as to whether Holiday Inn exercised good faith and due diligence in attempting to secure a building permit, and whether FEC waived its right to cancel the lease.

The record presented to this court clearly demonstrates the good faith and due diligence exercised on the part of Holiday Inn to obtain a building permit from the City of Miami and, further, it primarily was the actions of FEC that thwarted Holiday Inn’s attempts to receive a building permit.

With respect to the issue of FEC’s waiver of its right to cancel the lease, here again the record undisputedly reflects that FEC accepted the benefit of payment by Holiday Inn of the ad valorem taxes on the leased property for the years 1967, 1968, 1969, 1970, 1971 and 1973; made no proffer to return these tax payments; and attempted to cancel the lease following and not preceding the institution by the City of Miami of eminent domain proceedings against FEC’s Biscayne Boulevard property including Holiday Inn’s leasehold. Cf. Wing, Incorporated v. Arnold, Fla.App. 1958, 107 So.2d 765.

Affirmed.


text:
    William Alfonso MARTIN, Jr., Appellant, v. The STATE of Florida, Appellee.
    No. 75-530.
    District Court of Appeal of Florida, Third District.
    Nov. 18, 1975.
    Rehearing Denied Jan. 14, 1976.
    Carr & Emory, James Baccus, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Ira Loewy, Asst. Atty. Gen., for appellee.
    Before BARKDULL, C. J., and PEARSON and HAVERFIELD, JJ.
   PEARSON, Judge.

The appellant was charged with “leaving [the] scene of [an] accident involving personal injury” in violation of Fla.Stat. § 316.027. After a trial before the court without jury, he was found guilty as charged and sentenced to serve a period of one year in the county stockade. This appeal is from that judgment and sentence.

Two points are presented but they are argued together in that in each case the appellant urges an insufficiency of the evidence to support the conviction. The gist of appellant’s argument is that inasmuch as there is evidence in the record which would support a conclusion that the defendant sustained a concussion before he left the scene of the accident that the State’s case was, therefore, not proved beyond a reasonable doubt because it is possible that the defendant did not know what he was doing and, accordingly, lacked the element of willfulness required in the felony defined by Fla.Stat. § 316.027(2). See State ex rel. Miller v. Patterson, Fla.App. 1973, 284 So.2d 9. We hold that the evidence is sufficient because the defense of lack of mental capacity is an affirmative defense. In this case, the best that can be said for the defense is that it raised an issue of fact to be decided upon the conflicting evidence by the trial court.

The State’s case was proved when it was established that the defendant, as the driver of the automobile, drove into the side of another car where the damage was extensive and a person therein was injured and that, thereafter, without making any investigation, he drove away. Intent, being a state of mind, is usually not susceptible to proof but must be gathered from the facts and circumstances of a particular case. Skold v. State, Fla.App.1972, 263 So.2d 627. Until the contrary is proved, an individual is presumed to intend the ordinary results of his acts. See American Fire and Casualty Company v. Sunny South Aircraft Service, Fla.1963, 151 So.2d 276; and see Pell v. State, 1929, 97 Fla. 650, 122 So. 110. The defendant attempted to meet the State’s case by presenting a claim of head injury which might result in an incapacity to form a criminal intent. This defense was similar in nature to a defense of insanity at the time of the act in that it claimed a lack of mental capacity. It is well established that insanity is an affirmative defense. See Brady v. State, Fla.App.1966, 190 So.2d 607, and Byrd v. State, Fla.App.1965, 178 So.2d 886.

Under the facts of this case, the issue was properly one for the trier of fact to determine. The issue of mental capacity could have been taken from the trier of fact only if there were insufficient evidence for the question to go to the trier of fact or if the defense were proved as a matter of law. See 23A C.J.S. Criminal Law § 1130 (1961) and the cases cited thereat; cf. Frazee v. State, Fla.App.1975, 320 So.2d 462 (released Oct. 21, 1975).

Affirmed.


text:
    William Russell BECK, Appellant, v. John Joseph KELLY et al., Appellees.
    No. 74-1008.
    District Court of Appeal of Florida, Third District.
    Nov. 25, 1975.
    Rehearing Denied Jan. 12, 1976.

      Horton, Perse & Ginsberg, Hawkesworth & Schmick, Miami, for appellant.
    Carey, Dwyer, Austin, Cole & Selwood, Steven Berger, Miami, and Joseph Groh-man, Coral Gables, for appellees.
    Before BARKDULL, C. J., and PEARSON and HAVERFIELD, JJ.
   PER CURIAM.

Plaintiff appeals a judgment entered in accordance with defendant insurer’s motion for directed verdict in an action brought against the insurer for its alleged bad faith in failing to settle plaintiff’s claim within the policy limits.

While standing at a bus stop, appellant, William Beck, was struck and seriously injured by an automobile operated by John Kelly. Appellee State Farm Mutual Automobile Insurance Company had issued a liability policy on Kelly’s automobile. State Farm entered into negotiations with plaintiff’s attorney over the possibility of settling the case for $10,000, the limit of the policy. The settlement negotiations were unsuccessful as plaintiff’s attorney never indicated an acceptance or refusal of State Farm’s offer to settle. The cause proceeded to trial, at the conclusion of which the jury returned a verdict for $50,000 in compensatory damages and $5,000 in punitive damages in favor of Beck and against Kelly. The judgment was partially satisfied by payment of the policy limit of $10,000 by State Farm. Beck then filed suit against State Farm to recover the $45,000 excess over the policy limits on the alleged grounds of bad faith or misconduct on the part of State Farm in failing to settle his claim for the policy limit. This cause was tried and the jury returned a verdict for $45,000 for Beck. The trial judge, having reserved ruling on State Farm’s motion for directed verdict, entered judgment for State Farm in accordance therewith. This appeal follows. We affirm.

It has long been established that an insurer is liable for the excess over policy limits of a judgment against its insured if it fails in its duty to exercise good faith in the defense, handling or settlement of the claim upon which the judgment is based. Auto Mut. Indemnity Co. v. Shaw, 134 Fla. 815, 184 So. 852 (1938). In cases where recovery of such excess is based upon the ground that the insurer’s conduct in failing to effect a settlement within the policy limits amounts to bad faith, there can be no liability on the part of the insurer in the absence of an offer by the person claiming against the insured to settle within the policy limits. American Fidelity Fire Insurance Co. v. Johnson, Fla.App.1965, 177 So.2d 679, cert. denied, 183 So.2d 835 (Fla.1966); Seward v. State Farm Mutual Automobile Insurance Co., 392 F.2d 723 (5th Cir. 1968).

In light of the above principles of law, we find that at the most there were only negotiations with respect to a possible settlement and, in fact, there was no clear offer of settlement made by the plaintiff.

Affirmed.


author: HALL, VINCENT T., Associate Judge.

text:
    SOUTHERN GULF UTILITIES, INC., a Florida Corporation, Appellant, v. CITY OF NORTH MIAMI BEACH, a Municipal Corporation of the State of Florida, Appellee.
    No. 75-207.
    District Court of Appeal of Florida, Third District.
    Nov. 25, 1975.
    Rehearing Denied Jan. 14, 1976.
    Walton, Lantaff, Schroeder, Carson & Wahl and William J. Gray, Miami, for appellant.
    Joseph Nazzaro, City Atty., for appellee.
    Before PEARSON and NATHAN, JJ. and HALL, VINCENT T., Associate Judge.
   HALL, VINCENT T., Associate Judge.

Appellant, Southern Gulf Utilities, Inc., appeals from a final declaratory judgment in favor of the Appellee, City of North Miami. Beach, finding that the City of North Miami Beach does have the exclusive power and authority to determine, change, and or readjust its water rates or charges from time to time. The trial Court further held that City Ordinance No. 74-11, adopted and approved by the City of North Miami Beach on the 18th day of June, 1974, establishing a new water rate schedule of Fifty Cents per one thousand gallons, was legal, valid and proper; and therefore binding upon Southern Gulf Utilities, Inc.

The record of the trial Court discloses that Chapter 26054, Special Acts of Florida, became effective May 17th, 1949. By the terms of the Act, the City of North Miami Beach was empowered with authority to create, own, and operate a waterworks system in and surrounding the City. It was also empowered with authority to set and collect uniform rates for providing water, and “Readjust such rates or charges from time to time.”

On July 14, 1964, Southern Gulf Utilities, Inc., and the City of North Miami Beach entered into a contract for the supply of water to Southern Gulf Utilities, Inc., by the City waterworks system created under the provisions of Chapter 26054, Special Acts of Florida. The terms of the contract provided that the City of North Miami Beach would agree to supply water to Southern Gulf Utilities, Inc., at a rate of Twenty-eight Cents per 1,000 gallons of water. The contract did not provide for a time limit, and it would appear that the City was bound by the terms of the contract ad infinitum.

On July 18, 1974, the City of North Miami Beach adopted Ordinance No. 74-11 establishing a new uniform rate schedule of Fifty Cents per 1,000 gallons of water applicable to all bulk users of water, including Southern Gulf Utilities, Inc. The express purposes of the Ordinance were to prevent default in City bonds, provide adequate revenue to operate the system, upgrade the City’s water system, and conserve precious palatable water.

Southern Gulf Utilities, Inc., contends that the City of North Miami Beach, even though a Municipality, is bound by the terms and conditions of the contract entered into by the parties on July 14th, 1964, and that there is no evidence that the City of North Miami Beach made a determination that the increase in the water rate as reflected by City Ordinance 74-11 bore any relationship to the cost of water or its distribution to the bulk users, such as Southern Gulf Utilities, Inc.,

The salient questions confronting this Court are:

(1) Whether the Municipality is bound by the terms of the Contract for an indefinite term, thereby preventing any future City Commission from exercising the authority and power conferred upon it by a special act of Florida, in effect at the time of the execution of the contract.
(2) Whether the Municipality may, by Ordinance, arbitrarily change a rate set by contract without a showing that the rate change is reasonable, i. e., bearing some relation to the costs, reserves, and other related items incurred in the operation of the system.

With respect to the initial question, this Court is bound by the opinion of our Florida Supreme Court in City of Tampa v. Tampa Waterworks Co., 45 Fla. 600, 34 So. 631 (1903) wherein it was recognized in a similar situation:

“The section not only becomes a part of every contract, as much so as if written therein, but by implication it denies the authority of the Legislative to bind itself, either by a contract of its own making or one made by a Municipality under its authorization, not to exercise the power thereby recognized whenever in its wisdom it should think necessary so to do. The effect of this section is to reserve to the Legislative full power at all times, notwithstanding any supposed contract not to exercise it, to require water companies and others mentioned in the section to comply with their common-law obligation to supply their customers at reasonable rates’’

Therefore, in the instant case, this Court finds that the City of North Miami Beach is not bound by the terms of the contract, and must exercise such power and authority as is conferred upon it by a Special Act in effect at the time of the execution of the contract. The trial Court’s ruling that the City of North Miami Beach does have the exclusive power and authority to determine, change, and or readjust its water rates or charges from time to time is therefore affirmed.

With regard to the second question involved herein, the Court feels that the trial Court erred in determining that a Municipality may change a rate set in a contract between the parties, by an Ordinance, without a showing that the new rate change is reasonable.

The record of the trial Court fails to show that the City of North Miami Beach, at the time of the adoption of Ordinance No. 74-11, made any determination that the rate increase was reasonable. In lieu of this determination, it appears that the rate increase was arbitrarily based upon the need for revenue for Municipal bonds, operation of the City water system and conservation of palatable water.

In City of Tampa v. Tampa Waterworks, Co., supra, the Supreme Court opined:

“Water companies and others mentioned in the section to comply with their common-law obligation to supply their customers at reasonable rates.”

Similarly, this Court has recognized that a Municipality must furnish water to its customers at “a reasonable rate.” City of Miami Beach v. City of North Bay Village, 313 So.2d 126 (Fla.App.1975)

Therefore, with respect to the trial Court’s ruling finding that City Ordinance No. 74 — 11 was duly, legally and constitutionally adopted by the City Council of the City of North Miami Beach, we reverse and find that it is not legal and binding on Southern Gulf Utilities, Inc., because of the failure of the City of North Miami Beach to make a determination that the rate increase, authorized by City Ordinance No. 74-11, was reasonable.

Affirmed in part and reversed in part.

      . Pursuant to Chapter 26054, Laws of Florida Special Acts of 1949, and the code of Ordinance of the City of North Miami Beach; irrespective of the provisions contained in an agreement dated July 14th, 1964, between Southern Gulf Utilities, Inc., and the City of North Miami Beach.


text:
    Leonard CAMPAGNO, Appellant, v. The STATE of Florida, Appellee.
    No. 75-450.
    District Court of Appeal of Florida, Third District.
    Nov. 25, 1975.
    Rehearing- Denied Jan. 12, 1976.

      Phillip A. Hubbart, Public Defender, and Mark King Leban, Asst. Public Defender, for appellant.
    Richard E. Gerstein, State’s Atty., and Harold Ungerleider, Asst. State’s Atty., for appellee.
    Before BARKDULL, C. J., and PEARSON and HAVERFIELD, JJ.
   PER CURIAM.

Defendant appeals his jury conviction for conspiracy to promote any obscene matter or performance [§ 847.07(4)(c)].

Leonard Campagno, the defendant, was contacted by Mr. Kirtman, a film producer, to supply actors and actresses for a film to be shot aboard a boat called the “Seahorse”. Defendant supplied three actors and three actresses who acted out scenes depicting sex acts such as sexual intercourse, cunnilingus, fellatio and homosexuality. Similar scenes also were shot at the private residence of Dr. Daviglus. In addition to supplying the actresses and actors for the filming, defendant took still photographs of the performers and throughout the filming gave advice to them and the cameramen.

The film itself was stolen and consequently was not introduced at defendant’s trial. However, witnesses for the State described the activities taking place during the filming. The defense objected to this testimony on the grounds that the film was the best evidence. The objection was denied. The jury returned a verdict of guilty of conspiring to promote any obscene matter or performance.

Defendant basically argues that the evidence was insufficient to support the verdict because the film was not introduced into evidence and, therefore, the jury could not determine the obscenity vel non of the film taken as a whole. We cannot agree.

§ 847.07(4)(c), Fla.Stat., F.S.A. in addition to making illegal the wholesale promotion of obscene matter, also outlaws the wholesale promotion of any obscene performance, the theory upon which the State based its case.

There being competent substantial evidence as to the obscene nature of the performance and defendant’s participation in the production of this performance by procuring and paying the performers, taking still photographs, rendering advice to the cameramen and the performers, and receiving compensation for his services, we will not disturb the jury’s guilty verdict.

We also considered defendant’s remaining points on appeal and find them to be lacking in merit.

Affirmed.

      . “(4)(c) Any person who knowingly wholesale promotes any obscene matter or performance, or in any manner knowingly hires, employs, uses or permits any person to wholesale promote or assist in wholesale promoting any obscene matter or performance is guilty of a felony of the third degree, punishable as provided in § 775.082, § 775.083 or § 775.084. ‘Wholesale promote’ means to manufacture, issue, sell, provide, deliver, transfer, transmute, publish, distribute, circulate, disseminate, or offer or agree to do the same, with or without consideration, for purposes of resale or redistribution.” [Emphasis Supplied]


text:
    The STATE of Florida, Appellant, v. Benjamin Bethel CRUM, Appellee.
    No. 75-860.
    District Court of Appeal of Florida, Third District.
    Nov. 25, 1975.
    Rehearing Denied Jan. 14, 1976.
    Richard E. Gerstein, ' State’s Atty., and Charles I. Poole, Asst. State’s Atty., for appellant.
    Martin S, Saxon, Miami, for appellee.
    Before BARKDULL, C. J., and HAV-ERFIELD and NATHAN, JJ.
   PER CURIAM.

The State of Florida takes this interlocutory appeal to review an order granting defendant’s motion to suppress on the grounds that a City of Miami Beach officer is without jurisdiction to conduct an investigation and effect an arrest in the City of Miami. The salient facts are as follows:

In January 1975 Richard Barreto, a Miami Beach police officer, acting undercover, initiated a drug investigation and, through an introduction by an informer, met with the defendant, Benjamin Crum, in the City of Miami for the purpose of making a purchase of contraband. After officer Barreto purchased the contraband from the defendant, he went to the State Attorney’s office, signed an affidavit for the defendant’s arrest, obtained an arrest warrant, and, accompanied by a City of Miami police officer, served the warrant on the defendant. Defendant moved to suppress the evidence on the grounds that officer Barreto was without jurisdiction to effect the arrest in that the meetings with defendant, the sale of the contraband, and the arrest occurred within the City of Miami.

It is undisputed that officer Barreto left his jurisdiction and, therefore, his actions only can be sustained, if at all, as the actions of a private citizen who has the right to arrest a person who commits a felony in his (or her) presence. Whether officer Barreto’s actions are sustainable as a private citizen must be determined by ascertaining whether officer Barreto was acting “under color of bis office” at the time of the contraband purchase and subsequent arrest. See Collins v. State, Fla.App.1962, 143 So.2d 700, 703.

“Under the color of office” refers to a law enforcement officer holding himself out as a police officer by either wearing his uniform or in some other manner identifying himself as such. See 1971 Att'y Gen.Ann.Rep. 111.

In the case sub judice, officer Barreto was not wearing a uniform. Rather, he was working “undercover” and representing himself to be a private citizen at all times. Thus, we conclude that officer Barreto was substantially in the same position as any private citizen and had the authority to seize the evidence, go to the State Attorney’s office, sign an affidavit for the defendant’s arrest, obtain an arrest warrant, and effect an arrest.

The order granting the motion to suppress is reversed and the cause remanded to the trial court for further proceedings.

Reversed and remanded.


text:
    Louis MONTALVO, Appellant, v. The STATE of Florida, Appellee.
    No. 75-220.
    District Court of Appeal of Florida, Third District.
    Dec. 9, 1975.
    Rehearing Denied Jan. 9, 1976.
    George Nicholas and James K. Parker, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., for appellee.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   PER CURIAM.

Defendant appeals his conviction of manslaughter and alleges the trial court erred in denying his motion for discharge on the grounds that he was deprived of his right to a speedy trial pursuant to RC-rP 3.191(a)(1).

On October 2, 1973, defendant, Louis Montalvo, was arrested for second degree murder. On October 11, he was discharged following a preliminary hearing. On the same date, the State filed an information charging the defendant with second degree murder, but no capias was issued. On October 25, the clerk sent notice to appear for the arraignment to the defendant who did not receive it because he had changed his address after the preliminary hearing. Having failed to appear at the arraignment, on October 30 an alias capias was issued for the defendant. Subsequently, on September 2, 1974 the defendant was arrested on this capias. He filed a motion for discharge which was heard on October 18 and denied on December 3. The proceedings of the October 18 hearing have not been included in the record on appeal. Thereafter, the State reduced the charge to manslaughter and defendant entered a plea of nolo contendere. Following entry of the judgment of conviction, defendant perfected this appeal from the denial of his motion to discharge.

It repeatedly has been held that an appellant may not present an alleged error for appellate consideration on an incomplete record if the matter might affect the determination of the reviewing court. Costantino v. State, Fla.App.1969, 224 So.2d 341, 343 and Royal Flair, Inc. v. Cape Coral Bank, Fla.App.1971, 251 So.2d 895.

The defendant having failed to appear at the arraignment, the burden devolved upon him to establish at the hearing on his motion for discharge by competent proof his continuous availability for trial pursuant to RCrP 3.191(e). See Pedro v. State, Fla.App.1973, 287 So.2d 397.

There being absent from the record the proceedings and arguments of counsel presented to the trial court at the October 18 hearing on appellant’s motion to dismiss, we cannot determine whether appellant proved his availability for trial and whether the trial court’s denial of his motion was erroneous. See Hall v. State, Fla.App. 1975, 309 So.2d 248.

Affirmed.

      . “(e) Availability for Trial. The trial of an accused who is not available shall be held in abeyance while such person is unavailable. A person who has not been continuously available for trial during the term provided for herein is not entitled to be discharged; no persumption of non-availability attaches, but if the State objects to discharge and presents any evidence tending to show non-availability, the accused then must by competent proof establish continuous availability during the term.”
      * * * * *


author: NATHAN, Judge.

text:
    Frank SCLAFANI, Petitioner, v. COUNTY OF DADE, State of Florida, Respondent.
    No. 75-1120.
    District Court of Appeal of Florida, Third District.
    Dec. 9, 1975.

      Phillip A. Hubbart, Public Defender, and Bennett H. Brummer, Asst. Public Defender, for petitioner.
    Richard E. Gerstein, State Atty., and Charles I. Poole, Asst. State Atty., for respondent.
    Before BARKDULL, C. J., and HAV-ERFIELD and NATHAN, JJ.
   NATHAN, Judge.

This petition for writ of certiorari was filed by Frank Sclafani, the defendant, to seek review of an order of the circuit court in its appellate capacity, affirming a judgment of the county court finding Scla-fani guilty as charged and sentencing him to 60 days in the county jail for leaving the scene of an accident involving personal injury.

Sclafani was charged by complaint on August 3, 1974, with leaving the scene of an accident involving personal injury and other traffic violations. At trial, Scla-f-ani’s motions for judgment of acquittal were denied and he was adjudicated guilty and sentenced to 60 days in the county jail on that charge. On appeal to the circuit court, Sclafani’s sole point was that the county court did not have jurisdiction to hear the charge because the circuit court and not the county court, has original exclusive jurisdiction of all felonies. The circuit court affirmed the trial court and this petition ensued.

The complaint charged Sclafani with violation of § 316.027, Fla.Stat., which proscribes leaving the scene of an accident involving death or personal injury and provides, “Any person willfully failing to stop or to comply with said requirements under such circumstances is guilty of a felony . . .”. § 26.012(2), Fla.Stat., provides that circuit courts have exclusive original jurisdiction of all felonies. Scla-fani contends that the order of affirmance of the conviction and sentence is contrary to essential requirements of law because the county court is without jurisdiction to entertain felony charges.

At the time of trial, defense counsel agreed that the county court did have jurisdiction over the charge in question. This is not considered a waiver since counsel cannot confer jurisdiction on the trial court, as its jurisdiction is established solely by general law and cannot be conferred by consent, acquiescence or waiver. Florida Constitution, Article V, § 6(b); see Winn and Lovett Grocery Company v. Luke, 1945, 156 Fla. 638, 24 So.2d 310; Ringling Brothers Barnum and Bailey Combined Shows, Inc. v. State, Fla.App. 1974, 295 So.2d 314, 316.

Sclafani was charged by complaint and not by indictment or information, which is the proper charging document for a felony. It appears from the testimony, the sentence imposed and the entire record, that the court intended to and did try him for the felony of leaving the scene of an accident involving personal injury. The county court did not have jurisdiction to try Sclafani or to sentence him pursuant to § 316.027, Fla.Stat. Watkins v. Morris, Fla.1965, 179 So.2d 348. There is no question, however, that it did have jurisdiction to find him guilty and sentence him to 10 days each for two careless driving charges and 10 days for leaving the scene of an accident involving property damage.

The writ of certiorari is granted and the judgment and sentence of the county court on the charge of violation of § 316.027, Fla.Stat., is quashed.


text:
    PENNSYLVANIA NATIONAL MUTUAL INSURANCE COMPANY, Appellant, v. Paul DOYON d/b/a Custom Speed and Sport, Appellee.
    Nos. 74-1147, 74-1467.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 1975.
    Rehearing Denied Jan. 13, 1976.
    Robert H. Crary, Jeanne Heyward, Miami, for appellant.
    Horton, Perse & Ginsberg, Brumer, Moss, Cohen & Rodgers, Miami, for appel-lee.
    Before BARKDULL, C. J., and HEN-DRY and NATHAN, JJ.
   PER CURIAM.

Appellant, defendant below, brings these consolidated-appeals from a final judgment and order of the trial court granting appel-lee’s, plaintiff below, claim for damages and awarding it attorneys’ fees.

Appellee was insured under a standard fire and extended coverage policy issued by appellant. After sustaining a fire loss on October 22, 1972, appellee was unsuccessful in collecting under the policy. On September S, 1973, appellee filed a complaint for damages, attorneys’ fees and costs against appellant. The cause proceeded to trial, nonjury, and resulted in a final judgment dated July 5, 1974, in favor of appellee. On October 1, 1974, the trial court entered an order awarding appellee attorneys’ fees and costs. From the judgment and order, appellant brings this appeal.

Appellant contends that the trial court erred in entering the final judgment because (a) the undisputed evidence established that the insurance policy had been procured through misrepresentation, (b) the undisputed evidence established that appellee failed to cooperate and comply with the policy provisions, and (c) the amount of the final judgment, $11,191.40, was an invalid figure. Appellant also contends that the trial court erred in entering its order awarding attorneys’ fees in the amount of $10,200.00.

Appellee contends that the record does not support appellant’s contentions on appeal.

The trial court’s final judgment and order come to this court with a presumption of correctness. A corollary to this presumption is the rule that the burden is on appellant to show the errors relied on by it. This burden can be met only by making reversible error clearly, definitely, and fully to appear. Failure to meet this burden impels the conclusion that there is no error in the record, and the judgment or order appealed must be affirmed. See 2 Fla.Jur., Appeals § 316 and the cases cited therein.

We have 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 and order appealed are affirmed.

Affirmed.