text:
    James H. WILLIAMS, as Secretary of Administration, State of Florida, and Robert L. Kennedy, Jr., as State Retirement Director, State of Florida, Appellants, v. Samuel S. SMITH, Appellee.
    No. 52840.
    Supreme Court of Florida.
    June 9, 1978.

      Reubin O’D. Askew, Governor and Robert L. Shevin, Atty. Gen. of the State of Florida, and L. Keith Pafford and Stephen S. Mathues, Division Attys., Division of Retirement, Tallahassee, for appellants.
    Joseph C. Jacobs and E. C. Deeno, Kitchen, of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for appellee.
   ON PETITION FOR CLARIFICATION GRANTED

PER CURIAM.

On appellants’ request for clarification of an opinion we rendered in this proceeding on April 4,1978, and without objection from appellee, we withdraw the opinion first issued and adopt the following as the Court’s opinion in this case.

This is a direct appeal from an order of the Circuit Court, Second Judicial Circuit, initially and directly construing a provision of the state constitution. We have jurisdiction by virtue of Article V, Section 3(b)(1), Florida Constitution.

Samuel S. Smith, appellee, became a circuit judge for the Third Judicial Circuit in January of 1961. He served in that office continually thereafter and until this Court suspended him from office on June 30, 1977. In re Inquiry Concerning a Judge, No. 77-19, 347 So.2d 1024 (Fla.1977). He was a member of the Judicial Retirement System, Chapter 123, Florida Statutes (1975), from the date he assumed office until 1972. After the Judicial Retirement System was merged with the Florida Retirement System by Chapter 72-345, Laws of Florida, he became a member of the Florida Retirement System’s Elected Officers’ Class, effective December 1, 1972. He continued to participate in the system until his suspension from office. On the date of his suspension, there was pending an application by appellee for disability retirement benefits.

On January 14, 1977, appellee was indicted by a federal grand jury for conspiracy to possess and distribute marijuana, a felony in violation of 21 U.S.C. § 846 and 18 U.S.C. § 2, and for knowingly and intentionally unlawfully possessing, with intent to distribute, a quantity of marijuana, a felony in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. A jury verdict of guilty was returned on April 29, 1977, and appellee was adjudged guilty and sentenced to a term of years in prison by the presiding United States District Judge on June 3, 1977.

Alleging that they were in doubt as to their rights and official duties as to whether they could entertain Smith’s application for disability benefits, the appellants filed a complaint for declaratory relief in the Circuit Court. The basis for appellants’ uncertainty is Article II, Section 8(d), Florida Constitution, which provides:

“Any public officer or employee who is convicted of a felony involving a breach of public trust shall be subject to forfeiture of rights and privileges under a public retirement system or pension plan in such manner as may be provided by law.”

After answer by appellee, the trial judge granted appellee’s motion for summary judgment and held that Article II, Section 8(d), Florida Constitution, is not a self-executing provision of the Constitution and that in the absence of implementing legislation, it did not operate to invoke a forfeiture of Smith’s rights and privileges under the retirement system. We agree.

We judicially know that under the leadership of Governor Reubin O’D. Askew, the people, acting pursuant to the provisions of Article XI, Section 3, Florida Constitution, proposed by petition that the 1968 Constitution be amended to include a section entitle “Ethics in government”, which has become popularly known as the “Sunshine Amendment”. The petition was filed with the Secretary of State on July 20,1976, and was adopted by the voters in the general election of November of 1976. It now appears as Article II, Section 8, Florida Constitution. The subsection for consideration sub judice is a part of the amendment.

In construing the Constitution, we first seek to ascertain the intent of the framers and voters, and to interpret the provision before us in the way that will best fulfill that intent. Gray v. Bryant, 125 So.2d 846, 852 (Fla.1960).

Perhaps the most obvious expression of framers’ intent was from the Governor who caused the amendment to be drafted and the petitions prepared. Following the climax of his successful effort to encourage the adoption of the amendment, and in his address to the joint session of the Legislature on April 5, 1977, Governor Askew said:

“You have received my proposals for implementing the sunshine amendment and making necessary changes in our election system.
“As we extend the sunshine amendment to other public officials and employees at every level of government, our goal should be to set meaningful and workable standards for financial disclosure and other requirements. I support the two-tier disclosure approach proposed by the Ethics Commission.
“The Sunshine Amendment is a strong ethics provision, but our efforts cannot be regarded as complete with its passage. Because a constitution must be a statement of broad principle — capable of enduring and evolving with passage of time — the Sunshine Amendment was not intended to address every ethics issue. The amendment establishes a foundation and a framework on which we can add the specificity that statutes permit. (Emphasis supplied.)
“I am confident the Legislature will respect the expressed desires of the vast majority of Florida voters and move, in good faith, to further extend the Amendment. The Amendment leaves to the Legislature sufficient flexibility to carry out the will and intent of the voters. However, we in government cannot accept a retreat from this constitutional mandate.
“I hope to work closely with Representative Sid Martin and the House Committee on Standards and Conduct, as well as with appropriate members of the Senate, in the development of this legislation.
“Another provision of the Sunshine Amendment that requires further implementation is the section prohibiting the appearance of certain elected officials before any board on which they served in the two years following their departure from the respective board. To the extent that law and the Constitution permit, we should consider extending a similar prohibition to other appointed and elected officials. I recommend that all elected officials be included who are not now covered by the Sunshine Amendment. I strongly urge the Legislature to adopt comprehensive legislation to ensure that public officers and high ranking state employees do not use their public service career, and contacts developed in that capacity, to later enrich themselves at the expense of the public. This would increase public confidence that matters coming before our agencies and boards are decided on their merits.”

On the same day, Speaker of the House Donald L. Tucker echoed the Governor’s statement and acknowledged the legislative responsibility for implementation. In both the regular and special sessions of 1977, the Legislature labored to develop the required implementing legislation. None of the proposals ever became law. There could hardly be a more specific record of the patent intent of the framers that the Legislature would act to implement the constitutional amendment and supply the needed specifics where required.

More importantly, we arrive at precisely the same conclusion when we examine the words selected by the framers to present to the people. The language of subsection 8(d) is plain and unambiguous, unmistakably evincing a need for implementing legislation. Had .the framers intended that conviction of a felony involving a breach of public trust would work an automatic forfeiture of retirement and pension benefits, it would not have been difficult for them to express that intent. They would have said the conviction causes the forfeiture, not that the officer shall be “subject to forfeiture . . . .” Moreover, in recognition of the procedural problems, the definition of words used, and the determination of the extent of rights and privileges to be forfeited, they would have included those specifics within the subsection itself, or within a schedule as they did with respect to another subsection of the “Sunshine Amendment”. They did not follow that course. Instead, they clearly deferred forfeiture to “such manner as may be provided by law,” leaving to the Legislature the task of implementing the mandate of the people.

In Gray v. Bryant, supra, the Court acknowledged the principle that the will of the people is paramount in determining whether a constitutional amendment is self-executing and directed that the language of the provision be examined to determine whether implementing legislation is necessary. The Court said:

“The basic guide, or test, in determining whether a constitutional provision should be construed to be self-executing, or not self-executing, is whether or not the provision lays down a sufficient rule by means of which the right- or purpose which it gives or is intended to accomplish may be determined, enjoyed, or protected without the aid of legislative enactment. State ex rel. City of Fulton v. Smith, 1946, 355 Mo. 27, 194 S.W.2d 302. If the provision lays down a sufficient rule, it speaks for the entire people and is self-executing. City of Shawnee v. Williamson, Okl., 1959, 338 P.2d 355. The fact that the right granted by the provision may be supplemented by legislation, further protecting the right or making it available, does not of itself prevent the provision from being self-executing. People v. Carroll, 1958, 3 N.Y.2d 686, 171 N.Y.S.2d 812, 148 N.E.2d 875.” Gray v. Bryant, 125 So.2d at 851.

Subjecting subsection (d) to such a test reinforces our earlier conclusion. The provision of the Constitution requires so much in the way of definition, delineation of time and procedural requirements, that the intent of the people cannot be carried out without the aid of legislative enactment.

We, therefore, conclude that in adopting Article II, Section 8(d), the people did not expect the forfeiture of public retirement benefits to be automatic from the date of its adoption, and that the Legislature was expected to enact implementing laws to make it workable, to make it effective, and to carry out the intent expressed in the opening sentences of the “Sunshine Amendment” that:

“A public office is a public trust. The people shall have the right to secure and sustain that trust against abuse. . . . ”

The judgment of the Circuit Court is affirmed.

OVERTON, C. J., and BOYD, ENGLAND, SUNDBERG, HATCHETT and ALDERMAN, JJ., concur.

ADKINS, J., would deny the motion for clarification.

      . The application is dated February 15, 1977 and specifies that Judge Smith’s disability was caused by high blood pressure and angina disease.

      . Fla. H. Jour. 17, 21, 22 (1977).

      . Fla. H. Jour. 12 (1977).

      .See the journals of both the Senate and the House of Representatives for the regular and special sessions of 1977 for the content and disposition of the proposals that were introduced and considered by the Legislature.

      . In analyzing a constitutional amendment adopted by initiative rather than by legislative or constitution revision commission vote, the intent of the framers should be accorded less significance than the intent of the voters as evidenced by materials they had available as a predicate for their collective decision. An absence of debate and recorded discussion marks the development of an initiative proposal. To accord the same weight to evidences of the intent of an amendment’s framer as is given to debates and dialogue surrounding a proposal adopted from diverse sources would allow one person’s private documents to shape constitutional policy as persuasively as the public’s perception of the proposal. This we cannot permit.

      . We are not here concerned with any subsection of the Sunshine Amendment other than subsection 8(d). The variety of language in the several subsections of the “Sunshine Amendment” makes it unwise to conjecture whether some, all or none of the other provisions are self-executing.

      . See Art. II, § 8(a), Fla.Const.

      . The specific needs are numerous. A cursory examination discloses:
      a) There is a need for a definition of “a felony involving a breach of public trust.”
      b) In what forum must the conviction take place? Would, for example, a conviction by a Court of Impeachment be sufficient to work the forfeiture?
      c) The status is unclear of forfeited rights in any situation in which a conviction is reversed on appeal or a pardon granted. The provision subjects the officer to forfeiture upon conviction, but does the filing of an appeal stay the forfeiture?
      d) There are many questions as to what rights are subject to forfeiture. At the bar of this Court, attorneys for appellants gave us their interpretation and indicated that even money which the appellee had earned as salary and deposited with the state after the payment of income taxes on it should be forfeited along with interest on such money and all other rights. Without implementing legislation, such an interpretation is possible.
      e) The provision recognizes that a procedure for accomplishing the forfeiture is necessary. Will there be a judicial or administrative procedure? Where, when and in what form will the determination of questions be recorded?

      . The legislators are sworn to uphold the Florida Constitution and are presumed to act in a lawful manner. The mandate of the people to act in this area is clear and forceful. Any suggestion that the people are in fear that the legislators will attempt to frustrate their will is inappropriate on its face. Had such a fear existed, the framers would have drafted a totally self-executing amendment.


source: Caselaw Access Project

author: BOYD, Justice.

license: Public Domain

text:
    Benjamin C. HARRISON, Appellant, v. STATE of Florida, Appellee.
    No. 49933.
    Supreme Court of Florida.
    June 15, 1978.

      Jack 0. Johnson, Public Defender; and James A. Cornelius, Asst. Public Defender, Bartow, Florida, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee; and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   BOYD, Justice.

This is a direct appeal from a criminal judgment of guilt and a suspended sentence of life imprisonment. During the proceedings the trial court passed on the validity of a state statute. The court’s action gives us jurisdiction. Article V, Section 3(b)(1), Florida Constitution.

Benjamin Harrison was indicted for sexual battery of a person eleven years old or younger, a capital offense. He pleaded not guilty and moved to dismiss the indictment for the failure of the charging statute’s constitutionality, facially and in application. Following a hearing, the motion was denied. The defendant changed his plea to nolo contendere, specifically reserving for appeal the constitutional issues raised in the motion. At the hearing on the plea change, the prosecutor, to provide a factual basis for the plea, read into the record a summary of the events which led to the charge. The summary relates that Harrison, in a car, drove a nine year old girl to a remote area of Pasco County. He inserted his finger into her vagina, attempted to insert his penis into her vagina and forced the child to perform fellatio. Later the same evening, again, he inserted his finger into the child’s vagina and forced her to perform fellatio. The child’s vaginal tissues were injured. After listening to the summary and determining the plea was voluntary, the court accepted the plea, adjudicated the defendant guilty and sentenced him to life imprisonment. The sentence was suspended pending treatment under the provisions for mentally disordered sex offenders in Chapter 917, Florida Statutes. An appeal from the conviction and sentence was taken directly here.

Harrison raises three constitutional issues. First, he says that the statute making “child sexual battery” a crime is vague and that, consequently, his conviction under it violates due process principles. Second, he argues that his motion to dismiss the indictment should have been granted because death, a penalty for the charged crime, is cruel and unusual punishment in relation to the crime. Third, he argues that punishment for the crime by life imprisonment without eligibility for parole until twenty-five years have been served in prison is cruel and unusual punishment.

The latter two arguments are easily disposed of. We have twice been presented with death sentences for child sexual battery. See Huckaby v. State, 343 So.2d 29 (Fla.1977) and Purdy v. State, 343 So.2d 4 (Fla.1977). In both cases the issue of “cruel and unusual punishment” was avoided when the death sentences were vacated and reduced to life for other reasons. We will not consider the issue here, either. Harrison is not under a sentence of death. As to the issue of cruel and unusual punishment for a minimum of twenty-five years service in prison, it has been decided against appellant. Banks v. State, 342 So.2d 469 (Fla.1977).

“Sexual battery” is defined as “. . . oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object . . . Section 794.011(l)(f), Florida Statutes. Appellant argues that the definition is vague on its face because it does not identify the respective roles of the batterer and the victim. He constructs awkward allegations that might have been made in this case by substituting applicable parts of the statutory definition in a charge against him. We think the argument is contrived. Members of the public can read the statutory definition and the statute which outlaws “child sexual battery” and know, without any difficulty, what conduct is outlawed. Moreover, as to appellant, it can be discerned readily that it is a crime for a man to penetrate a child’s mouth with his penis or to injure a child’s vaginal tissues while penetrating or attempting to vaginally penetrate the child with his penis or other object. Appellant makes a second argument against his conviction based on vagueness. He says, essentially, that he did not have fair warning that it was a crime for him to penetrate the child’s vagina with his finger. The statute outlaws such penetration by any “object” in addition to a sexual organ. Appellant says fingers are not objects. We regard this argument as frivolous. There is no question that people understand that a finger, within the context of the statute, constitutes an “object.”

Appellant’s conviction is affirmed.

It is so ordered.

OVERTON, C. J., and ADKINS, ENGLAND, SUNDBERG, HATCHETT and ALDERMAN, JJ., concur.


author: ALDERMAN, Justice.

text:
    SMALLEY TRANSPORTATION COMPANY, Petitioner, v. Paula F. HAWKINS, William T. Mayo, and William H. Bevis, as and Constituting the Florida Public Service Commission, Respondents.
    No. 53092.
    Supreme Court of Florida.
    June 22, 1978.
    Ansley Watson, Jr., of MacFarlane, Ferguson, Allison & Kelly, Tampa, for petitioner.
    Prentice P. Pruitt, Legal Director, M. Robert Christ, Tallahassee, and Paul Sexton, Staff Counsel, Tallahassee, for Florida Public Service Commission, respondents.
    Martin Sack, Jr., Jacksonville, for Moed’s Transfer Co. and Crown Motor Lines, Inc., intervenors.
   ALDERMAN, Justice.

By petition for writ of certiorari, Smalley Transportation Company requests that this Court review Orders No. 13595 and No. 13949 of the Public Service Commission, denying its request for clarification of Orders No. 12072 and No. 12210, entered by the Commission in 1975.

The sole question for our determination is whether the Public Service Commission erred in denying Smalley’s request for clarification. We find that the previously entered orders are inherently ambiguous and that the Commission erred in refusing to clarify them.

In 1973, Smalley filed an application with the Commission seeking to extend its Certificate No. 1013 so as to authorize the transportation of general commodities, with the usual exceptions, in scheduled, regular route service (1) between Ocala and Orlando over State Road 50, U. S. Highway 27 and U. S. Highway 441, serving all intermediate points; (2) between Jacksonville and Ocala over U. S. Highway 301, serving no intermediate points on U. S. Highway 301; and (3) irregular route service between ail points in Jacksonville. The hearing examiner issued lengthy findings of fact and conclusions on September 11, 1973, recommending that Smalley’s application be denied. Smalley filed exceptions to the hearing examiner’s findings of fact and conclusions, and on April 30, 1975, the Commission entered Order No. 12072, which stated in pertinent part:

ORDERED by the Florida Public Service Commission that the application of Smalley Transportation Company, 2202— 38th Street, Tampa, Florida 33605, for extension of its Certificate No. 1013 so as to authorize the transportation of general commodities restricted against commodities of unusual value, Class A and B explosives, household goods as defined by the Commission, commodities in bulk, garments on hangers, commodities requiring refrigeration, commodities the transportation of which because of size and weight, require the use of special equipment (except flat bed trailers), and the following commodities when moving in truckload lots: building and construction materials, cement, beer, sodium hy-pochlorite, lumber, and empty glass containers and bottles and closures therefor, between (1) Ocala and Orlando over SR 50, US 27 and US 441 serving all intermediate points and (2) Jacksonville and Oca-la over US 301 serving no intermediate points, be and the same is hereby granted. .

No reference was made in Order No. 12072 to Smalley’s request for irregular route service between all points in Jacksonville. Protestants filed a petition for reconsideration, which petition was denied by Order No. 12210. The Commission commenced Order No. 12210 with the following language:

By Order No. 12072 issued on April 30, 1975, the Commission granted the application of Smalley Transportation Company for extension of its Certificate No. 1013 so as to authorize the transportation of general commodities with the usual exceptions in scheduled, regular route service between (1) Ocala and Orlando over SR 50, US 27 and US 441 serving all intermediate points (2) between Jacksonville and Ocala over US 301 serving no intermediate points on US 301; and (3) irregular route service between all points in Jacksonville. [Emphases supplied.]

The petition for writ of certiorari filed with this Court by protestants was denied on October 28, 1976, in a brief opinion, Gator Freightways, Inc., et al. v. Mayo, 339 So.2d 192 (Fla.1976).

On March 21, 1977, Smalley filed a petition for corrective order with the Commission, requesting that the Commission correct Order No. 12072 and extend Certificate No. 1013 to include “(3) irregular route service between all points in Jacksonville” in the aforesaid ordering paragraph since it was clearly the intention of the Commission to grant the entire application. Moed’s Transfer Company and Crown Motor Lines, Inc., protestants, in their reply to petition for corrective order, contended that neither Order No. 12072 nor the extension of Certificate No. 1013 was in error since omission of part (3) requested in petitioner’s application was not inadvertent.

The Commission entered Order No. 13595 on June 15, 1977, unanimously denying the petition for corrective order and reciting, “The orders speak for themselves; no clarification is needed.” Smalley, thereafter, filed a petition for reconsideration which was denied by Order No. 13949.

Orders No. 12072 and No. 12210 are not clear on their face, and the Commission erred in refusing to grant the petition for clarification. Accordingly, the petition for writ of certiorari is granted, Orders No. 13595 and No. 13949 are quashed, and this cause is remanded with directions to the Public Service Commission to clarify Orders No. 12072 and No. 12210.

It is so ordered.

OVERTON, C. J., and BOYD, SUND-BERG and HATCHETT, JJ., concur.


author: PER CURIAM.

text:
    James E. YOUNG, Petitioner, v. STATE of Florida, Respondent.
    No. 53116.
    Supreme Court of Florida.
    June 22, 1978.
    Alan H. Schreiber, Public Defender, and Stuart M. Lerner, Asst. Public Defender, Fort Lauderdale, for petitioner.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for respondent.
   PER CURIAM.

The petition for certiorari reflected probable jurisdiction in this Court. We issued the writ.

Upon further consideration of the cause and our recent opinion in Henry v. State, Case No. 52,705, 359 So.2d 864 (Fla., filed June 1, 1978), we conclude that no direct conflict of decisions exists as required by Article V, Section 3(b)(3), Florida Constitution. Therefore, the writ must be and is hereby discharged.

It is so ordered.

OVERTON, C. J., and ADKINS, BOYD, SUNDBERG and HATCHETT, JJ., concur.


author: PER CURIAM. CROSS, Judge,

text:
    James Earl BRYANT, Appellant, v. STATE of Florida, Appellee.
    No. 76-1453.
    District Court of Appeal of Florida, Fourth District.
    April 10, 1978.
    Richard L. Jorandby, Public Defender, and Preston Mighdoll, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Harry M. Hipler, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed.

DOWNEY and DAUKSCH, JJ., concur.

CROSS, J., dissents.

CROSS, Judge,

dissenting:

I respectfully dissent on the authority of United States v. Robinson, 535 F.2d 881 (5th Cir. 1976).


text:
    NORTH MIAMI GENERAL HOSPITAL and Travelers Indemnity Company, Appellants, v. Michael GILBERT and National Guaranty Insurance Company, Appellees.
    No. 77-349.
    District Court of Appeal of Florida, Third District.
    June 6, 1978.
    Rehearing Denied July 28, 1978.
    Bradford, Williams, McKay, Kimbrell, Hamann & Jennings and Thomas E. Scott, Miami, for appellants.
    Bunnell, Knight & Graham and David Graham, Fort Lauderdale, Jeanne Hey-ward, Miami, for appellees.
    Before HAVERFIELD, C. J., BARK-DULL, J., and PARKER, J. GWYNN (Ret.), Associate Judge.
   PER CURIAM.

Defendants-third party plaintiffs appeal a summary, final judgment in favor of the third party defendant on their complaint for indemnity or joint contribution arising out of a wrongful death action.

The deceased, Noah Krakower, had a long history of mental illness including suicidal tendencies and was being treated by Dr. Michael Gilbert. After suffering physical injuries as a result of a suicide attempt, Mr. Krakower was admitted by Dr. Gilbert and several orthopedic physicians to the orthopedic section of the defendant, North Miami General Hospital. Although Dr. Gilbert noted on Krakower’s patient progress chart that he should have 24-hour attendants, no special precautions were ordered nor were the attending nurses (including the private ones) notified of Krakower’s suicidal tendencies. There was also no notation to that effect in the doctor’s orders chart. A private nurse, under the supervision of defendant hospital, left Krakower alone momentarily and he leaped to his death. Krakower’s widow filed a wrongful death action against the hospital and its insurer, Travelers Indemnity Company, and alleged that the hospital was negligent in that it knew or should have known of the deceased’s suicidal tendencies and should have taken the necessary precautions. The hospital and its insurer filed a third party complaint for indemnity and for joint contribution against Dr. Gilbert and alleged that he failed to fully advise the hospital and the attending nurses of Krakower’s suicidal tendencies and to order the necessary precautions. Subsequently, after a hearing upon motion of Dr. Gilbert, summary judgment on this third party complaint was entered in- his favor. The hospital and its insurer appeal. We reverse.

After a review of the record on appeal, we find that their remains genuine issues of material fact precluding the entry of summary judgment, specifically whether or not Dr. Gilbert properly notified the hospital of Krakower’s suicidal tendencies and ordered the hospital to take the necessary precautions and further whether the hospital then failed to properly instruct or supervise the attending nurses to assure 24-hour uninterrupted surveillance of Krakower.

Accordingly, the summary judgment is reversed and the cause remanded to the trial court for further proceedings. See Holl v. Talcott, 191 So.2d 40 (Fla.1966).

Reversed and remanded.


text:
    The KEYES COMPANY, a Florida Corporation, Appellant, v. ARVIDA CORPORATION, a Delaware Corporation, Milton Schlimsky, Barry Florescue and Fort Lauderdale Enterprises, Inc., a Florida Corporation, Appellees.
    Nos. 77-713, 77-747.
    District Court of Appeal of Florida, Third District.
    June 6, 1978.
    Rehearing Denied July 28, 1978.

      Shevin, Shapiro & Shevin and David Freedman, Miami, for appellant.
    Greenberg, Traurig, Hoffman, Lipoff, Quentel, Wright & Wolff and Woodrow M. Melvin, Jr., Miami, Ruden, Barnett, McClo-sky & Schuster and Terrence J. Russell, Fort Lauderdale, for appellees.
    Before PEARSON and HENDRY, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Following a sale of real estate by the appellee, Arvida Corporation, to the appel-lee, Fort Lauderdale Enterprises, Inc., the appellant, The Keyes Company, real estate broker, filed action against the appellee seeking judgment for sales commission and judgment against defendants for alleged conspiracy to interfere with Keyes’ listing contract and to deprive Keyes of its commission. Compensatory and punitive damages were sought.

The case was tried before a jury. Motions of defendants for directed verdicts were not granted when made and the case was submitted to the jury, which returned a verdict in favor of the plaintiff Keyes for a 5% commission with interest. Thereafter, the court granted renewed motions of defendants for directed verdict, and entered judgment for defendants, a separate judgment being entered for the defendant Arvi-da. The plaintiff appealed therefrom.

The determinative question is whether the trial court erred in concluding, as it was essential to do in directing verdicts for the defendants, that there was an absence of evidence to prompt or support a jury verdict for the plaintiff, viewing the evidence in a light favorable to the plaintiff and upon resolving in favor of the plaintiff any conflicts in the evidence and inferences reasonable thereby drawn from the evidence.

On consideration of the record, briefs and argument, we hold the ruling of the trial court was not error. From the record it appears the trial court so viewed the case when it was submitted to the jury. The fact that the case was given to the jury is not basis to conclude it was not properly subject to directed verdict for defendants, when in reality it was. When a trial court so views the record it is within his province, under the rules of practice, to submit the case to the jury for a verdict, as a means of saving time and effort which would be required for a re-trial of such a case, in event of reversal of a judgment entered on directed verdict.

No reversible error having been shown, the judgments are affirmed.


text:
    Robert E. SCHULTE and Annie H. Schulte d/b/a Mantell Plaza Hotel, Appellants, v. Helen GOLD and Herman Gold, her husband, Appellees.
    No. 77-936.
    District Court of Appeal of Florida, Third District.
    June 6, 1978.
    Rehearing Denied July 28, 1978.

      Blackwell, Walker; Gray, Powers, Flick & Hoehl and Bradford Swing, Miami, for appellants.
    Goldstein & Goldstein and Caron Balka-ny, Miami, for appellees.
    Before HAVERFIELD, C. J., PEARSON, J., and CRAWFORD, GRADY L. (Ret.), Associate Judge.
   PER CURIAM.

Defendant-appellants seek reversal of a final money judgment for plaintiffs in this action to recover damages for injuries sustained in a slip and fall.

Plaintiffs Helen and Herman Gold were seasonal guests at the Mantell Plaza Hotel owned and operated by the defendants, Robert and Anne Schulte. While ascending the outside steps late one evening, Mrs. Gold tripped on the top stair, fell and broke her hip. At the time and place of the accident the only illumination was from the public streetlights and the lights in the hotel lobby as the hotel lights which fully illuminated the subject area had been turned off for the remainder of the night. The Golds filed the instant complaint for damages and alleged that Mr. and Mrs. Schulte were negligent in failing to provide sufficient lighting for the outside steps. The cause proceeded to be tried by jury and at the end of the presentation of their case, the Golds over objection of the Schultes were permitted to introduce into evidence Section 509.221(2), Florida Statutes (1975).

“(2) Every public lodging establishment and every public food service establishment shall be properly plumbed, lighted, heated, cooled, and ventilated, and shall be conducted in every department with strict regard to the health, comfort, and safety of the guests. Such proper lighting shall be construed to apply to both daylight and artificial illumination; such proper plumbing shall be constructed and plumbed according to proper sanitary principles; and such proper ventilation or cooling shall be construed to mean at least one door and one window in each room.”

After all the evidence had been presented, the trial judge instructed the jury that violation of Section 509.221(2), Florida Statutes (1975) is negligence and if the jurors find that a person alleged to have been negligent violated this statute, such person was negligent. The Schultes objected to this instruction at the charge conference. The jury returned verdicts in favor of Helen and Herman Gold for a total of $100,000 also finding Mrs. Gold to be 15% negligent. Judgment was entered accordingly. The Schultes filed a motion for a directed verdict or in the alternative for a new trial or remittitur. The motion was denied and this appeal ensued.

Although the Schultes raise several points on appeal, only the point regarding Section 509.221(2), Florida Statutes (1975) and the jury instruction on this statute need be considered for disposition of this cause. We find that the above instruction to the effect that if the jury finds the Schultes to have violated this statute, then they are negligent to be erroneous. In other words, violation of Section 509.221(2), Florida Statutes (1975) does not constitute negligence per se.

Our Supreme Court in deJesus v. Seaboard Coast Line Railroad Company, 281 So.2d 198 (Fla.1973) set out the following two categories of statutes, the violation of which is negligence per se: 1) strict liability statutes of the type designed to protect a particular class of persons from their inability to protect themselves and 2) statutes which establish a duty to take precautions to protect a particular class of persons from a particular injury or type of injury.

Obviously, Section 509.221(2), Florida Statutes (1975) does not fall within the first category. In addition, it cannot be placed in the second category inasmuch as this statute is of the type designed to protect the public generally. Cf. Richardson v. Fountain, 154 So.2d 709 (Fla.2d DCA 1963). Furthermore, in interpreting the predecessor to the instant statute (which is similar in wording), the Supreme Court held in Norman v. Shulman, 150 Fla. 142, 7 So.2d 98 (1942) that it was not the purpose of the law to make the owner an insurer and the owner was not required to maintain illumination of the exterior at all hours of the night.

Violation of Section 509.221(2), Florida Statutes (1975) being at most only evidence of negligence and not negligence per se, we reverse the final judgment and remand the cause for a new trial.

Reversed and remanded.


text:
    Moises ESHKENAZI and Jose Eshkenazi, Appellants, v. LAS FABRICAS, INC., Appellee. LAS FABRICAS, INC., Appellant, v. Moises ESHKENAZI and Jose Eshkenazi, Appellees.
    Nos. 77-1675, 77-2679.
    District Court of Appeal of Florida, Third District.
    June 6, 1978.
    Rehearing Denied July 28, 1978.

      Burnett Roth, Miami Beach, for Eshken-azis.
    Irwin F. Kosdan, Miami, for Las Fabri-cas, Inc.
    Before HAYERFIELD, C. J., BARK-DULL, J., and PARKER, J. GWYNN (Ret.), Associate Judge.
   PER CURIAM.

Moisés and Jose Eshkenazi appeal an adverse final judgment entered for Las Fabri-cas, Inc. on its counterclaim for tortious interference with a business relationship in an action brought by Eshkenazi to determine the validity of a lease to certain commercial space.

Eshkenazi leased space on an upper floor and Las Fabricas leased space on the ground floor of the same building and the parties were business competitors.

In April, 1976, Eshkenazi inquired as to the possibility of leasing additional space on the ground floor and was informed that the ground floor space occupied by Las Fabricas would be available on April 24, 1977, the date the lease with Las Fabricas expired. Subsequently, on April 28, 1976 the president of the lessor corporation, Mr. Neck-man, and Eshkenazi executed a lease effective April 24,1977 for the space occupied by Las Fabricas. Several months thereafter Mr. Neckman advised Eshkenazi that a mistake had been made inasmuch as Las Fabri-cas in its lease had an option to renew for two years. Eshkenazi then filed the instant action seeking to have the April 28, 1976 lease declared valid and that the lease of Las Fabricas with its renewal option be declared invalid and unenforceable in that this lease was executed on behalf of the corporate lessor by Walter G. Simon, who was not authorized to enter into such a contract. Eshkenazi further alleged that the option to renew was fraudulently added to Las Fabricas’ lease subsequent to the execution by Eshkenazi of the April 28, 1976 lease and, therefore, null and void. Las Fabricas counterclaimed seeking both compensatory and punitive damages for tortious interference with a business relationship. Las Fabricas alleged in its counterclaim that Eshkenazi after executing the April 28,1976 lease advised suppliers of Las Fabricas that it would be going out of business because of the expired lease and as a result at least one supplier ceased doing business with it. Las Fabricas’ claim for punitive damages was stricken and the cause proceeded to a jury trial. At the close of Eshkenazi’s case, the court directed a verdict for Las Fabricas. The jury returned a verdict awarding Las Fabricas $35,000 on its counterclaim and judgment was entered accordingly. Eshkenazi appeals and Las Fabricas cross-appeals the striking of its claim for punitive damages.

Eshkenazi raises several points on appeal, only one of which is necessary to consider, to wit: the trial court erred in entering judgment for Las Fabricas because there was no substantial evidence to support the jury’s award of damages. This point has merit.

Before damages may be awarded there must be evidence authorizing or justifying the award of a definite amount, which cannot be predicated upon pure speculation. Kennedy & Ely Ins., Inc. v. American Employers’ Ins. Co., 179 So.2d 248 (Fla. 3d DCA 1965). The record in the case at bar reflects that only one supplier ceased doing business with Las Fabricas and that Las Fabricas was able to obtain the merchandise it needed from other suppliers. We, therefore, conclude that there was no substantial competent evidence to support the award of damages or at best the damages, if any, suffered as a result of the loss of this one supplier were too speculative. Accordingly, the judgment for Las Fabricas is hereby reversed. See Miami Beach Lerner Shops v. Walco Mfg. of Florida, 106 So.2d 233 (Fla. 3d DCA 1958).

We also find that Las Fabricas’ point on cross-appeal (that the court erred in striking its claim for punitive damages) to be without merit because, it failed to demonstrate the requisite malicious and/or fraudulent conduct on the part of Eshkenazi. See Southeast Title and Insurance Co. v. Caldwell, 326 So.2d 12 (Fla.1975).

In this second appeal (Case No. 77-2679) Las Fabricas seeks review of an order dismissing its complaint for malicious prosecution against Eshkenazi for instituting the above action. In view of our disposition of Las Fabricas’ cross-appeal (Case No. 77-1675) we find this appeal to be lacking in merit.

Accordingly the final judgment in Case No. 77-1675 is reversed and the order of dismissal in .Case No. 77-2679 is affirmed.


author: PER CURIAM. PEARSON, Judge

text:
    Ramon DEL TORO, Appellant, v. ALLSTATE INSURANCE COMPANY, Appellee.
    No. 77-1192.
    District Court of Appeal of Florida, Third District.
    June 13, 1978.
    Rehearing Denied July 28, 1978.

      West, Friesner & Goldman, Miami, and Marvin B. Nodel, Daytona Beach, for appellant.
    McCormick, Bedford & Backmeyer, Miami, for appellee.
    Before PEARSON and HENDRY, JJ., and CRAWFORD, GRADY L. (Ret.), Associate Judge.
   PER CURIAM.

The question to be determined on this appeal calls for a construction of Section 627.727, Florida Statutes (1973). The portion of the statute of which the meaning is controverted is:

“(3) . . . [T]he term ‘uninsured motor vehicle’ shall ... be deemed to include an insured motor vehicle when the liability insurer thereof:”
* * * * * *
“(b) Has provided limits of bodily injury liability for its insured which are less than the limits applicable to the injured person provided under his uninsured motorist’s coverage.”

The appellant, Ramon Del Toro, was one of fifteen persons injured in an automobile accident on SR-5, approximately ten miles north of Key Largo, Florida. The tort-feasor responsible for the accident was Thomas Lee Sheridan^ who had a policy of automobile liability insurance purchased from Reserve Insurance Company for a total of $20,000 as policy limits per incident. Reserve Insurance Company filed an inter-pleader lawsuit joining all of the fifteen injured persons in case number 74-29760, in the Circuit Court of Dade County, Florida. Reserve Insurance Company placed its full fund of $20,000 into the Registry of the Court to have the various injured persons awarded their proportion of the damages. The circuit court entered a final judgment awarding the appellant herein 2.11 percent of the total proceeds, or $449.00 as compensation for his injuries as a result of the accident.

At the time of the accident, appellee Allstate Insurance Company had in full force and effect a policy of automobile liability insurance issued to the appellant, which provided the appellant with uninsured motorist benefits and underinsured motorist benefits in the amount of $20,000 per incident. The appellant made a demand of Allstate under the underinsured motorist coverage provisions of the policy for benefits due and owing to him as a result of the accident. Allstate refused to acknowledge coverage. On September 22, 1976, the appellant filed a complaint against Allstate to obtain underinsured motorist coverage.

On October 12, 1976, Allstate filed an answer to the complaint admitting that its automobile liability insurance policy issued to the appellant provided the appellant with uninsured motorist coverage, but denying that coverage existed for the accident in question.

On April 1, 1977, Allstate filed its motion for summary judgment and, in support thereof, contended that it owed no underin-sured motorist coverage to the appellant because the appellant’s injuries were not caused by the acts of an uninsured or un-derinsured motorist.

Appellant’s position is that Section 627.-727, Florida Statutes (1973), expressly provides that uninsured motor vehicle coverage shall be afforded when the third party tort-feasor’s coverage is less than the limits applicable to the injured person under his own uninsured motorist coverage. By the circuit court’s order of April 30, 1976, wherein it was decreed that the appellant should receive 2.11 percent of the total proceeds of the third party tortfeasor’s coverage, the appellant was declared to have less than the limits of coverage applicable to him and/or available to him under his own uninsured motorist vehicle coverage. Appellant relies upon the holding in Lee v. State Farm Mutual Automobile Insurance Company, 339 So.2d 670 (Fla. 2d DCA 1976), for support for his position.

Allstate’s position is that the appellant was insured under an uninsured motorist endorsement that did not provide uninsured motorist liability limits greater than the liability limits carried by the tortfeasor. It is urged that appellant is, therefore, not entitled to coverage.

This court has recently held in State Farm Mutual Automobile Insurance Company v. Roger Diem, 358 So.2d 39 (Fla. 3d DCA 1978), construing the same statute that available benefits under the statute does not constitute the policy limits of the underinsured’s liability policy where, as here, the benefits under such policy have been practically exhausted by the payment of claims to persons other than the insured.

Accordingly, the judgment appealed is reversed and the cause remanded for further proceedings in accordance with the holding in State Farm Mutual Automobile Insurance Company v. Roger Diem, supra.

Reversed and remanded.

PEARSON, Judge

(dissenting).

Although I agree that we are bound to our prior holding by all the rules of consistency, I must express what I feel is the proper construction of the statute. If the legislature had intended coverage under these facts, they could have provided that uninsured motorist coverage would exist when the liability insurer of the tortfeasor

provided limits of bodily injury liability to the injured person which are less than the limits applicable to the injured person provided under his uninsured motorist’s coverage.

The legislature chose not to do that, but rather chose to make the test one of whether the liability insurer of the tortfeasor

“. . . provided limits of bodily injury liability for its insured which are less than the limits applicable to the injured person provided under his uninsured motorist’s coverage.” [emphasis added]

The tortfeasor, by having liability insurance limits in the same amount as the limits of Del Toro’s uninsured motorist liability limits, cannot be considered an uninsured motorist under the statute or policy of insurance.

Adequate compensation is not the test to determine whether uninsured motorist coverage exists. The courts should follow the clear meaning of a statute and must not insert words or ideas in the court’s search for what it conceives to be the justice of the situation. See In Re Levy’s Estate, 141 So.2d 803 (Fla. 2d DCA 1962); and Vocelle v. Knight Brothers Paper Company, 118 So.2d 664 (Fla. 1st DCA 1960). This view is supported by the reasoning of the District Court of Appeal in Lange v. State Farm Mutual Automobile Insurance Co., 300 So.2d 68 (Fla. 1st DCA 1974). See also Summers v. Jackson, 307 So.2d 235 (Fla. 4th DCA 1975).


text:
    Arlene D. JENNINGS and Jennings Construction Corporation, a Florida Corporation, Appellants, v. PERRINE FISH MARKET, INC., a Florida Corporation, Claude E. Shull and Mildred S. Shull, Appellees.
    No. 77-2426.
    District Court of Appeal of Florida, Third District.
    June 13, 1978.
    Rehearing Denied July 28, 1978.

      Bartel & Shuford and Judy D. Shapiro, Miami, for appellants.
    Scott T. Eber, Miami, for appellees.
    Before HAVERFIELD, C. J., BARK-DULL, J., and PARKER, J. GWYNN (Ret.), Associate Judge.
   PER CURIAM.

Plaintiff property owners in this private nuisance action appeal an order denying their motion for preliminary injunction seeking to enjoin the customers of the defendants, adjoining property owners, from parking their cars in plaintiffs’ parking lot.

Defendants, Perrine Fish Market, Inc. and the owner/operators Claude and Mildred Shull own property adjacent to that of the plaintiffs, Arlene Jennings and Jennings Construction Corp., the prime tenant in the Jennings office building. In front of plaintiffs’ building is a parking lot, whereas defendants have no parking facilities on their property but do provide such facilities for their customers across the street. Nevertheless, a large number of defendants’ customers use plaintiffs’ parking lot for convenience, often creating a shortage of parking spaces for plaintiffs’ customers and tenants. Alleging a loss of established tenants and business as a result, the plaintiffs filed the instant complaint for damages and a permanent and temporary injunction seeking to enjoin the above interference of the use of their property. After a hearing, the chancellor denied their motion for a preliminary injunction. We affirm.

In view of the particular facts presented in each case, the determination to grant or deny an application for temporary injunction relief rests within the sound discretion of the chancellor guided by established rules of the principles of equity jurisdiction. Muss v. City of Miami Beach, 312 So.2d 553 (Fla. 3d DCA 1975). Further, the issuance of a temporary injunction is an extraordinary and drastic remedy which should be granted sparingly and with caution only after the moving party has proven sufficient facts entitling it to relief. Bemas Corporation v. City of Jacksonville, 298 So.2d 467 (Fla. 1st DCA 1974).

Reviewing the facts in light of the above principles of law, we find the chancellor did not abuse his discretion in denying the plaintiff’s motion for a temporary injunction. This affirmance, however, is in no way to be construed as a decision on the merits of the case.

Affirmed.


text:
    TRUCKDRIVERS, WAREHOUSEMEN & HELPERS, LOCAL NO. 512, Appellant, v. Walter H. CADLE, Appellee.
    No. HH-452.
    District Court of Appeal of Florida, First District.
    June 16, 1978.
    Rehearing Denied July 27, 1978.

      John L. Kattman of Larkin & Kattman, Jacksonville, for appellant.
    Gary C. Pajcic and William A. Bald of Pajcic, Pajcic & Dale, Jacksonville, for ap-pellee.
   PER CURIAM.

Having examined the records and briefs and hearing oral argument it appears that the appellant has failed to demonstrate prejudicial error. The judgment appealed is therefore affirmed.

Appellee’s motion for attorney’s fees for services incident to this appeal is granted. (See F.S. 447.17 and F.S. 59.46.) We therefore remand to the trial court for the sole purpose of conducting such proceedings as may be necessary relevant to the fixing of such fees incident to this appeal.

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


author: HUBBART, Judge. KEHOE, Judge

text:
    Willie Mae McCARTY, Appellant, v. DADE DIVISION OF AMERICAN HOSPITAL SUPPLY, Appellee. DADE DIVISION OF AMERICAN HOSPITAL SUPPLY, Appellant, v. G & A BUILDING MAINTENANCE et al., Appellees.
    Nos. 76-2371, 76-2372.
    District Court of Appeal of Florida, Third District.
    June 20, 1978.
    Rehearing Denied July 28, 1978.

      Freidin & Goldfarb, Miami, for McCarty.
    Thornton, Conroy & Herndon, Miami, for Dade Division.
    Pyszka, Kessler, Adams & Solomon, Richard M. Gale, Miami, for G & A and Cosmopolitan.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   HUBBART, Judge.

This is a negligence action in which summary judgment was entered for the defendant as well as the third party defendant on a corresponding indemnity claim. The plaintiff and the defendant as third party plaintiff both appeal.

This case presents two central questions which merit discussion: (1) whether a company, who employs an independent contractor to perform janitorial services on the company’s business premises, owes a duty to an employee of the independent contractor to warn of, or to use ordinary care to furnish protection against those conditions on the premises which by contract the company has hired the independent contractor to correct; and (2) whether such company may invoke the parol evidence rule to exclude evidence which varies or contradicts the terms of its contract with the independent contractor on a motion for summary judgment in a negligence action brought against the company by an employee of the independent contractor. We hold that the company owes no duty to give such warning or to use such ordinary care under the above-stated circumstances; we further hold that the company may invoke the parol evidence rule on a motion for summary judgment in such a negligence action. Accordingly, we affirm.

The controlling facts in the case are undisputed. On July 25, 1973, the defendant Dade Division of American Hospital Supply Corp. entered into a contract with the third party defendant G & A Building Maintenance, Inc. wherein the latter agreed to provide janitorial services at the defendant American Hospital’s business premises. The contract unambiguously provided for janitorial services “for all areas” on the aforesaid business premises excluding only warehouses, mechanical and electrical equipment rooms and sterile rooms.

On December 28, 1973, the plaintiff Willie Mae McCarty, while employed as a cleaning lady for the third party defendant G & A Building Maintenance in cleaning the defendant American Hospital’s business premises, slipped and fell on a patch of clear, greasy substance on the floor in one of the second floor hallways of the defendant American Hospital’s business premises. Although this particular hallway was required to be cleaned by the terms of the contract between the defendant and third party defendant, the plaintiff employee submitted certain deposition- testimony to the effect that it was the defendant American Hospital’s responsibility to clean this particular hallway and that the plaintiff had never cleaned such hallway. This evidence in turn was contradicted by other parol evidence offered by the defendant American Hospital.

The plaintiff brought a negligence action against the defendant American Hospital who in turn filed a third party complaint against the third party defendant G & A Building Maintenance and its insurer Cosmopolitan Mutual Insurance Company claiming a right of indemnity. Based on the above-stated facts, the trial court entered a summary judgment for the defendant American Hospital on the main claim and a summary judgment for the third party defendant G & A Building Maintenance on the indemnity claim. The plaintiff appeals; the defendant American Hospital as third party plaintiff also appeals.

The law is clear that a person, who is having work done on his premises by an independent contractor and has actual or constructive knowledge of latent or potential dangers on the premises, owes a duty to give warning of, or use ordinary care to furnish protection against such dangers to an employee of the independent contractor who is without actual or constructive notice of the dangers. It is obvious, however, that where such employee is injured as a proximate result of conditions and defects which his employer, the independent contractor, is engaged to correct, liability cannot be predicated on such unsafe conditions because the employee has actual or constructive notice of such conditions. Florida Power & Light Co. v. Robinson, 68 So.2d 406, 410-11 (Fla.1953); Tillery v. Standard Sand & Silica Co., 226 So.2d 842, 845 (Fla. 2d DCA 1969); Whitlow v. Seaboard Air Line Railroad Co., 222 F.2d 57, 59 (4th Cir. 1955).

The parol evidence rule which bars the admissibility of any evidence designed to vary or contradict the terms of an unambiguous contract may be invoked by any party to such contract or their privies, but cannot be invoked by a stranger to such contract. Palmer v. R. S. Evans Jacksonville, Inc., 81 So.2d 635 (Fla.1955); J. N. Roof v. Chattanooga Woodsplit Pulley Co., 36 Fla. 284, 18 So. 597 (1895); Bessemer Properties, Inc. v. Barber, 105 So.2d 895 (Fla. 2d DCA 1958); 3 Corbin on Contracts 572-578 (1960). And on a motion for summary judgment, the trial court cannot consider evidence which is inadmissible under the parol evidence rule. Evans v. Borkowski, 139 So.2d 472 (Fla. 1st DCA 1962).

Measured by these standards, it is clear that the summary judgment entered in favor of the defendant American Hospital was eminently correct. American Hospital obviously had no duty to warn the plaintiff of, or to use ordinary care to protect the plaintiff against the dangers caused by conditions which her employer G & A Building Maintenance was hired to correct. The plaintiff herein slipped on a patch of greasy substance in a hallway which American Hospital had hired G & A Building Maintenance to clean up. The plaintiff’s injuries sustained from such condition do not therefore arise from a breach of any duty on the part of the defendant American Hospital to warn of or to protect the plaintiff against such dangers because the plaintiff had actual or constructive notice of such conditions and dangers by virtue of her employment as a cleaning lady.

Under the unambiguous provisions of the contract between the defendant American Hospital and the third party defendant G & A Building Maintenance, the latter was required to clean the hallway in which the plaintiff slipped and fell. Defendant American Hospital as a party to this contract may invoke the parol evidence rule to exclude testimony offered by the plaintiff to vary or contradict the terms of this contract. Summary judgment was therefore properly entered without considering such evidence as it was inadmissible under the parol evidence rule.

In view of the result reached on the appeal with reference to the main claim, it is clear that the summary judgment entered in favor of the third party defendant G & A Building Maintenance on the indemnity claim was also correct. The judgments appealed from are accordingly affirmed.

Affirmed.

KEHOE, Judge

(dissenting).

I would reverse on the ground that the summary judgment was improperly granted because the parol evidence rule was incorrectly applied to exclude oral testimony which would have created a material question in regard to the duty of appellee Dade Division of American Hospital Supply to notify appellant of the unsafe condition causing her injuries. See, e. g., Wilson v. McClenny, 32 Fla. 363, 13 So. 873 (1895); H. I. Resorts, Inc. v. Touchton, 337 So.2d 854 (Fla. 2d DCA 1976); and Larnel Builders, Inc. v. Nicholas, 123 So.2d 284 (Fla. 3d DCA 1960).


text:
    Sheldon COOK, Appellant, v. The STATE of Florida, Appellee.
    No. 77-524.
    District Court of Appeal of Florida, Third District.
    June 20, 1978.
    Rehearing Denied July 28, 1978.
    Engel, Aronson, Fried & Cohn and Don S. Cohn, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and James H. Greason, Asst. Atty. Gen., for appellee.
    Before BARKDULL and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed on authority of State ex rel. D’Amato v. Morphonios, 358 So.2d 575 (Fla.3d DCA 1978) (No. 77-1954, opinion filed May 4, 1978).


text:
    AETNA CASUALTY & SURETY COMPANY, Appellant, v. David LOWRY, a minor, by and through his father and next friend, Ernest Lowry, Appellee.
    No. 77-1255.
    District Court of Appeal of Florida, Third District.
    June 20, 1978.
    Rehearing Denied July 28, 1978.

      Ress, Gomez, Rosenberg, Berke & How-land and Roland H. Gomez, North Miami, for appellant.
    Schwartz, Klein & Steinhardt and Norman S. Klein, North Miami Beach, for ap-pellee.
    Before BARKDULL and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See: Carol City Utilities, Inc. v. Gaines Construction Co., 201 So.2d 242 (Fla.3d DCA 1967); Section 682.13, Florida Statutes (1975).


author: PEARSON, Judge.

text:
    Richmond H. NEALE, Appellant, v. Elizabeth B. NEALE, Appellee.
    No. 77-1456.
    District Court of Appeal of Florida, Third District.
    June 20, 1978.
    Rehearing Denied July 28, 1978.
    Alfred Gustinger, Jr., Miami, for appellant.
    Joseph S. Marcus, Homestead, Harold Mendelow, Miami, for appellee.
    Before PEARSON, HENDRY and KE-HOE, JJ.
   PEARSON, Judge.

The appellant was the respondent husband in a dissolution of marriage proceeding. During the course of the litigation, the parties, by a letter agreement, sought to make a property settlement. The appellant moved the court to enforce the agreement and the court granted the motion with provisions not relevant to this appeal. The letter agreement provided, in part, as follows:

“My client offered $20,000 to be paid to your client, in full and complete settlement of all obligations he has or may have in this situation, including but not limited to alimony, support, rehabilitation and/or property settlement and in addition child support. That in return your client shall transfer to Mr. Neale clear title to all real and personal property owned by the parties.”

The court subsequently entered its judgment which contained the following provision concerning certain property:

“3. That in accordance with the agreement of September 13,1976 and the testimony and evidence received during the final hearing, the Court determined that the property legally described as:
Lot 17 in Block 15 of ESSEX VILLAGE THIRD ADDITION, according to the Plat thereof, recorded in Plat Book 47, at Page 94 of the Public Records of Dade County, Florida,
and the mortgage resulting from the sale of the property legally described as:
The North 66 feet of the South 330 feet of the West xk of the West lh of the Northwest Vi of the Southeast Vi of Section 28, Township 56 South, Range 29 East, lying and being in Dade County, Florida.
and the diamond ring owned by the parties shall be the property of the Petitioner, ELIZABETH B. NEALE, free and clear of the claim of the Respondent, RICHMOND H. NEALE.”

The burden of appellant’s argument is that the court, having held the agreement enforceable, could not vary the terms of the agreement. He relies on Underwood v. Underwood, 64 So.2d 281 (Fla.1953); and Davis v. Davis, 301 So.2d 154 (Fla. 3d DCA 1974).

We hold that the court, as the trier of law and fact, had the authority to interpret the language of the agreement, as it did, so as not to include these parcels of property owned separately by the wife. See the principles of law in Pipkin v. FMC Corporation, 427 F.2d 353 (5th Cir. 1970).

A second point claims error upon the denial of the husband’s motion for attorney’s fees. The denial was proper where, as here, the husband secured by the agreement all of the jointly-held property of the parties, which was extensive.

Affirmed.


text:
    DADE COUNTY, a political subdivision of the State of Florida, Appellant, v. O. K. AUTO PARTS OF MIAMI, INC., a Florida Corporation and National Indemnity Company, a Nebraska Corporation, Appellees.
    No. 77-1712.
    District Court of Appeal of Florida, Third District.
    June 20, 1978.
    Rehearing Denied July 28, 1978.

      Stuart L. Simon, County Atty. and James G. Roth, Asst. County. Atty., for appellant.
    Charles F. Atwood, III, Miami, for appel-lees.
    Before HAVERFIELD, C. J., BARK-DULL, J., and PARKER, J. GWYNN (Ret.), Associate Judge.
   PER CURIAM.

This is an appeal by Dade County, plaintiff and counter-defendant in the trial court, from a final judgment which resulted in an award of $90,817.00 plus interest of $8,627.62 to the defendant/counter-claimant, O. K. Auto Parts of Miami, Inc. [O. K.]. The county asserts that the trial court erred in its award of damages to O. K. and in its award of interest on those damages. We agree and reverse the decision of the trial court on the counterclaim only.

A careful review of the record reveals that the damages awarded to O. K. were speculative in that insufficient evidence was adduced upon which to predicate the award. Itvenus, Inc. v. Poultry, Inc., 258 So.2d 478 (Fla. 3d DCA 1974); Ballard v. Krause, 248 So.2d 233 (Fla. 4th DCA 1971); Belcher v. Import Cars, Lt., 246 So.2d 584 (Fla. 3d DCA 1971).

Additionally, it is the general rule, grounded on public policy considerations, that, in the absence of a statute or an express contract to the contrary, a county is not liable for interest on its obligations. Treadway v. Terrell, 117 Fla. 838, 158 So. 512 (1935); Duval County v. Charleston Engineering & Contracting Company, 101 Fla. 341, 134 So. 509 (1931); Broward County Port Authority v. Arundel Corporation, 206 F.2d 220 (5th Cir. 1953). See generally Annot., 24 A.L.R.2d 928 (1952); 8 Fla.Jur. Counties, Section 99 (1956); 30 Fla.Jur. State of Florida, Sections 50, 51 (1974).

Moreover, counter-claimant admits that to support an award of interest, the amount in question must be liquidated. It is the opinion of this court that the damages awarded to O. K. in this case could not properly be considered as liquidated damages because they were not stipulated at the time of entering the contract as being payable as compensation for injuries in the event of breach.

Although we have concluded that the decision of the trial court must be reversed because of the lack of substantial, competent evidence to support the award of damages and because the court erred in awarding interest on the judgment, we deem it necessary to reach the issue of whether the contract was sufficient to support the counter-claimant’s cause of action. We find that the contractual provision upon which 0. K. relied to assert its claim was incorrectly construed as an absolute guarantee by the trial court. Reversal is also required as to that element of the decision which found the county liable for damages under the contract.

The background underlying the actions below reveals that, for some years, Dade County had faced the problem of abandoned cars left strewn about the county. In order to alleviate the situation, the county adopted a procedure of contracting with independent towing companies to remove these abandoned hulks. Until 1974, the county had paid the towing companies a fee for each vehicle removed, the yearly contracts having been awarded to that bidder which charged the county the least to perform these services. In 1974, however, the value of scrap metal had risen, and 0. K. offered to pay the county $11.00 per car for the exclusive right to tow away cars ragged by the county for removal pursuant to Chapter 705, Florida Statutes (1973). 0. K. was awarded the contract as low bidder. The contract was executed on October 25, 1974, to extend through September, 1975, and provided, among other things, that the county would guarantee the contractor a minimum of 14 pickup authorizations a day.

Over the term of the contract, Dade authorized O. K. to pick up over 1500 vehicles, but did not authorize pickups of 14 vehicles a day. While evidence indicated that the contractor’s opportunities to remove tagged cars may have been limited both by the action of the county in decreasing the staff assigned to tag the cars for removal and by the actions of other towing companies, 0. K. had removed over 650 hulks by the termination date of the contract.

As of March 18, 1975, O. K. had paid the county only $330.00, although it had picked up well over 400 cars. No other monies were remitted by O. K. to the county. On May 8, June 9, and June 16, 1975, the county sent letters to O. K. demanding payment for vehicles actually picked up. On August 29, 1975, the county informed O. K. in a final letter of its intent not to renew the contract and to sue for back payment for vehicles “shown on pick-up lists and which were and will be picked up” through the termination date of the contract. 0. K. never responded.

In September, 1975, Dade filed suit for non-performance of contractual obligations. O. K. counterclaimed, alleging that Dade had breached its guarantee of 14 authorizations per day, and seeking damages for anticipated profits based on a minimum of 14 pickups a day.

The trial court awarded Dade $6,842.00 on its claim, and awarded 0. K. $97,659.00 on its counterclaim. After setting off the sum due the county from that awarded O. K., the court ordered that O. K. recover the sum of $90,817, plus interest of $8,627.62.

Counter-defendant, Dade County, urges that the guarantee was a nullity, and that even if it was not, 0. K. had waived its right to assert non-compliance with the guarantee. We do not agree with Dade’s first assertion, but do hold that the guarantee provision, when read in conjunction with the rest of the contract, was not absolute, and that counter-claimant, by its own inaction, waived its right to claim a breach of the guarantee agreement.

That proviso, one of many in a lengthy document, read:

13. GUARANTEE
Dade County will guarantee to the Contractor a minimum of seven abandoned vehicles each day per zone (5 days per week excluding County Holidays, Saturday or Sunday). The seven vehicles per day per zone would include all sources such as the County, the City of Miami, the City of Miami Beach, and all other municipalities.
For the purpose of this Contract, payment shall be made for each attempt made for abandoned vehicle pickup when authorized and directed by the County. This “attempt” shall constitute a “unit” in payment calculation referred to below.
The guarantee of seven cars each day per zone, will be at the unit rate bid for each. Such guaranteed amount shall be based on the averaging of the total amount of abandoned vehicles removed in a single monthly pay period.
Example 1: If there were 20 work days in a monthly pay period and 125 authorized pickup attempts by the Contractor, payment would be made for 140 units (20 X 7), thus complying with the minimum guarantee.
Example 2: If there were 20 work days in a monthly pay period and 165 authorized pickup attempts by the Contractor, payment would be made for 165 units. (Emphasis in original).

This provision was a remnant of the days when the county had paid the contractor for abandoned vehicle removal, and was intended originally to assure such contractor a minimum sum for his efforts. ■ However, O. K. argues that it relied on the guarantee of 14 cars a day as a basis for its bid, contending it never would have gone into the arrangement unless it was assured of a quantity of hulks sufficient to merit the expense of its involvement.

The contractual language precludes the county from denying the existence of a guarantee which was viable at the time of making. However, the provision covers both a minimum number of units to be authorized and a sum payable for each vehicle so tendered.

It is apparent that the guarantee itself does not stipulate who shall pay whom for authorized pickup attempts. The ambiguity between the words of guarantee and the words of payment is the responsibility of the county, which both prepared the documents and failed to either rephrase or eliminate this provision. In construing the ambiguous provision most strongly against the drafter, we are compelled to resolve the question of whether there was any viable guarantee against the county. But a construction which resolves ambiguities against the drafter does not eliminate the necessity of attempting to discern the intent of the parties at the time of contracting. Where the language used is ambiguous it is the duty of the court to ascertain the intent of the parties as manifested by both the document itself and by the circumstances surrounding the parties at the time of contracting.

The instrument is a multi-faceted one, and this single provision cannot be viewed apart from the many others included therein. Among these is a “Bid Form,” which showed O. K.’s proposal to pay the county $11.00 per unit “based on what is towed in by O. K. wreckers in both zones 1 & 2,” and revealed the following alteration:

"... THE UNDERSIGNED BIDDER AGREES TO . . . ■ACCEPT-THE ABOVE UNIT PRICE AS FULL COMPENSATION FOR THE WORK PERFORMED. ..." pay

The “Bid Form” showing the contractor’s promise to pay on the basis of what is towed in appears to conflict with any assertion that the county was expected to unconditionally guarantee a minimum of 14 cars a day, because this would have to mean that O. K. intended to bind itself unconditionally to pay the county $154.00 a day for each working day, regardless of what it towed in. This conflict, resolved most favorably toward O. K. at the time of contracting, indicates that the contractor intended to pay only for what he actually towed in.

Another clause of the contract at issue provided:

“To prevent all disputes and litigations, it is agreed by the parties hereto that the Director shall decide all questions, difficulties and disputes of whatever nature which, may arise relative to the interpretation of the fulfillment of this Contract, and as to the character, quality, amount and value of any work done by reason of this Contract, and his estimates and decisions upon all claims, questions, and disputes shall be final and conclusive upon the parties thereto.”

O. K. did not call any possible claim to the attention of the county under the above “disputes” clause, or otherwise make any demand under the guarantee clause throughout the term of the contract, although it did complain to the county that the actions of so called “gypsy” wreckers, towing companies who picked up abandoned vehicles without proper authorization, cut into its expected number of pickups. 0. K. did not approach the county to reform the contract. Even the series of letters the county sent elicited no response from the contractor. Not until suit was initiated by the county did 0. K. evince any indication that it felt the guarantee clause had been breached, or even that the clause was a material one.

Therefore, although a guarantee was a part of the contract, and cannot be construed to be a nullity, as Dade contends, the guarantee is contradictory in itself, and stands in contradiction to other elements of the contract as well as to the apparent intent of both parties as evidenced both at the time of contracting and throughout the course of performance. The actions of the parties as they operated under the contract demonstrate that neither side treated the guarantee provision as an unconditional promise by the county to provide the authorizations enumerated.

We hold that the county did guarantee to provide 0. K. with a minimum of 14 abandoned vehicles a day, but that this guarantee was understood by both parties to have been conditioned on 0. K.’s payment to the county of $11.00 per guaranteed vehicle per day, a condition which was substantially ignored by O. K. Where one party’s cooperation is an implied condition of a contract, and that cooperation is not forthcoming, the recalcitrant party is es-topped by his own recalcitrance from claiming reliance on the other party’s promise. Therefore, we further hold that, by its own inaction, O. K. waived any right to performance of the guarantee and is estopped to claim damages as a result of any alleged breach.

Reversed.


text:
    Wallace R. PLAPINGER, Mervyn J. Platt and Wilson A. Knott, a partnership, d/b/a Silver Star Shopping Center, Appellants, v. ECKERD’S SILVER STAR, INC., a Florida Corporation and Jack Eckerd Corporation, a Florida Corporation, Appellees.
    No. 77-2697.
    District Court of Appeal of Florida, Third District.
    June 20, 1978.
    Rehearing Denied July 28, 1978.
    Aronovitz & Weksler, Miami, for appellants.
    Shackleford, Farrior, Stallings & Evans and Robert R. Vawter, Jr., Tampa, for ap-pellees.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   PER CURIAM.

Affirmed. See Davidson v. Davis, 59 Fla. 476, 52 So. 139 (1910); Sharp v. Dixon, 252 So.2d 805 (Fla. 4th DCA 1971); and General Capital Corporation v. Tel Service Co., 212 So.2d 369 (Fla. 2nd DCA 1968). Cf. American Wood Products, Inc. v. Walter E. Heller & Company Southeast, 1149 So.2d 358 (Fla. 3d DCA 1978), case number 77-425, filed May 16, 1978; and Securities Investment Company of St. Louis v. Indian Waters Development Corporation, 501 F.2d 662 (5th Cir. 1974).


author: MOORE, Judge.

text:
    Donald KELLY and Rita Kelly, his wife, Appellants, v. CAMBRIDGE MUTUAL FIRE INSURANCE COMPANY and William Cordray, Appellees.
    No. 77-557.
    District Court of Appeal of Florida, Fourth District.
    June 21, 1978.
    William C. Owen, Jr., of Cone, Owen, Wagner, Nugent, Johnson & McKeown, Te-questa, for appellants.
    Maureen L. McGill of Adams, Sullivan, Coogler, Watson & Smith, West Palm Beach, for appellees.
   MOORE, Judge.

This is an appeal from a final summary judgment entered against the plaintiffs in a negligence case.

Appellant-husband, one of the plaintiffs below, was a tenant of appellee and was injured while mowing appellee’s lawn at the latter’s request. It was alleged that appel-lee negligently constructed a concrete decorative wall, failing to warn appellant of its unstable condition. In the course of mowing appellant backed into the wall, causing it to collapse, and in the process of falling pulled the power mower over his foot.

We find that appellee, in moving for summary judgment, has failed to show conclusively the absence of any genuine issues of material fact. Whether appellee failed to maintain his premises in a reasonably safe condition or failed to warn appellant of a dangerous condition which he either knew or should have known existed are questions of fact to be determined by the jury. See Post v. Lunney, 261 So.2d 146 (Fla.1972).

Accordingly, the final summary judgment must be and is hereby

REVERSED.

DOWNEY, C. J., and DAUKSCH, J., concur.


author: MILLS, Acting Chief Judge.

text:
    John Timothy WORLEY, a minor by and through his next friend, Homer H. Worley, and Homer H. Worley, and Joyce Worley, Individually, Appellants, v. Sandra Kaye KIRKLAND and Insurance Company of North America, Appellees.
    No. EE-36.
    District Court of Appeal of Florida, First District.
    June 21, 1978.
    Rehearing Denied July 28, 1978.
    Jackson G. Beatty of Gregory, Towles, Beatty & Hood, Quincy, for appellants.
    John N. Boggs, III, of Barron, Redding, Boggs & Hughes, Panama City, for appel-lees.
   MILLS, Acting Chief Judge.

John Worley, a nine-year-old boy, was injured when struck by a car driven by Ms. Kirkland. Suit was brought by the minor through his father to recover for his personal injuries and pain and suffering. The father individually sought recovery of medical expenses and loss of services, and the mother sought recovery for loss of services. Ms. Kirkland denied negligence and pled comparative negligence on the part of the Worleys. Trial was held before a jury.

The evidence showed that after the accident the child was hospitalized for ten days, was fed intravenously, and coughed up blood. X-rays revealed blood clots on the lungs. John’s injuries were diagnosed as blunt pancreas injury, concussion, blood intrusion injury in the lung and traumatic headaches. After discharge from the hospital, John suffered headaches and missed six or seven weeks of school. The medical bills incurred by Mr. Worley totaled $1,990.75. John fed the cows and hogs and mowed the yard for his parents.

The jury returned a verdict in favor of the Worleys and assessed damages sustained by the father at $2,500.00, damages sustained by the child at zero, and damages sustained by the mother at zero. The child and his mother filed a motion for a new trial alleging that the verdicts for them were contrary to the manifest weight of the evidence and grossly inadequate. The motion was denied and this appeal was taken by them.

John and his mother contend that the trial court erred in denying their motion for a new trial. We agree and reverse.

Under the facts of this case, the verdicts of zero dollars were grossly inadequate and were inconsistent with the $2,500.00 verdict for the father. Pickel v. Rosen, 214 So.2d 730 (Fla. 3d DCA 1968).

In Hutto v. Washington County Kennel Club, Inc., 253 So.2d 726 (Fla. 1st DCA 1971), we said:

“It is well-established in Florida law that a verdict for grossly inadequate damages stands upon the same ground as a verdict for excessive damages, and a new trial may be as readily granted in one case as in the other. . . . While an appellate court must be ever alert against the temptation to substitute its judgment for that of the jury, it must not refuse to act to relieve the injustice of either a grossly inadequate or excessive verdict. . In each case, the question of whether the award of damages is so grossly inadequate as to require the granting of a new trial involves a determination of whether or not reasonable men could reach the verdict rendered. . . . ”

Under the circumstances of this case, reasonable men could not have reached the verdicts of zero dollars. Regardless of any possible negligence the jury may have attributed to the child or his mother, having found that Ms. Kirkland was negligent, the jury could not properly or lawfully fail to compensate the child for the serious injuries he received and the mother for the child’s services she lost. Even if the jury found the child 99 percent responsible for his injuries and the defendant only one percent negligent, a finding of some monetary award for the child and his mother was inevitable under the comparative negligence law.

Because we do not know if the jury applied comparative negligence to this case and, if it did, how it prorated the negligence between the parties, it is necessary that we remand this case for new trial on all issues.

We reverse the judgments appealed and remand this case for a new trial on all issues as to the child and mother.

SMITH and ERVIN, JJ., concur.


author: ERVIN, Judge.

text:
    STATE ex rel. David James STROMER, Petitioner, v. The Honorable William S. ROWLEY, as One of the Judges of the Circuit Court of the First Judicial Circuit in and for Escambia County, Florida, Respondent.
    No. JJ-326.
    District Court of Appeal of Florida, First District.
    June 23, 1978.

      Lynn A. Williams, Asst. Public Defender, for petitioner.
    Robert L. Shevin, Atty. Gen., George R. Georgieff, Asst. Atty. Gen., for respondent.
   ERVIN, Judge.

Petitioner seeks to prohibit the trial court from trying him as an adult on the ground that the state failed to file a motion with the court within five days after a delinquency petition was filed seeking to have the child certified to the adult division of the circuit court. On December 23, 1977, a complaint was filed with the Division of Youth Services charging petitioner with various acts of burglary and he was taken into custody. On January 20,1978, a petition was filed in the juvenile division of circuit court charging petitioner with certain acts of delinquency. The petition did not include a request to waive jurisdiction to the criminal division of the circuit court. Ten days thereafter, or on January 30,1978, the state filed a motion to amend the original petition pursuant to Fla.R.Juv.P. 8.160(a) by adding to the petition a prayer for the court to waive jurisdiction to the criminal division of the circuit court. Subsequently an order was entered granting the state’s motion to amend the petition. Petitioner’s case was certified to the criminal division of the circuit court and an information was filed against him charging him with 11 counts of burglary.

The question presented is whether the court should be prohibited from trying petitioner as an adult because, as argued by petitioner, the state failed to comply with Section 39.09(2)(a), Florida Statutes (1977), thus divesting the criminal adult division of jurisdiction over petitioner. Petitioner contends that if a motion is not filed within five days after the delinquency petition is filed, the juvenile division has no power to act on the motion and the ease cannot be transferred. Fla.R.Juv.P. 8.160(a), however, permits the state attorney, either within five days of the date the delinquency petition has been filed, or later with the approval of the court, to file a motion requesting the court to waive its jurisdiction and certify the case to the appropriate court for trial as if the child were an adult. Petitioner urges that the procedure set forth by Section 39.09(2) is substantive and in the event of conflict with the rule, the statute must prevail.

We decline to approve petitioner’s construction of the statute. The petitioner’s argument that conflict exists between the statute and the rule is more imagined than real. Section 39.09(2)(a) employs the permissive language. “may” in allowing the state attorney to file a motion within five days after a delinquency petition was filed requesting transfer of the child for criminal prosecution. What are the consequences if the state attorney fails to do so within the allotted time? The statute is silent, but we think a proper solution may be reached by reading the statute in pari materia with Rule 8.160(a), allowing the state attorney as a matter of right to file such motion within five days after the delinquency petition is filed, or later if the court, within its discretion, permits the motion to be so filed. Cf. State, Dep’t. of H. & R. Serv., etc. v. Golden, 350 So.2d 344 (Fla.1976), in which the court held Section 39.03(5)(a), permitting the trial court to enter an order directing the delivery of a child to a jail when neither a detention home nor a licensed child-caring institution within the county is the proper place to receive the child in the opinion of the trial court, should be read in pari materia with Fla.R.Juv.P. 8.030 and 8.050 which permit the court by detention order to designate the place where the child should be detained. See also Davis v. State, 297 So.2d 289 (Fla.1974).

The committee note to Fla.R. Juv.P. 8.150, pertaining to waiver of jurisdiction, states that the committee is of the opinion that Section 39.09(2)(a), allowing involuntary waiver for a child over the age of 14, goes to the jurisdiction of the court and is substantive. We agree this is a proper construction of the statute as to any motion filed after a hearing has been held on a delinquency petition. Both the statute and the rule are explicit in their requirements that the motion be filed before such hearing. We believe on the other hand, by reason of the permissive language used, that the portion of the statute permitting the state attorney to move for transfer within five days after the filing of a delinquency petition is merely directory. The juvenile court is not divested from considering such motion, if filed, after the five day period with the permission of the court and before the delinquency hearing is held.

The rule nisi is discharged and the petition for writ of prohibition is denied.

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

      . Which provides:
      The State Attorney may, within 5 days of the date a delinquency petition has been filed and before a hearing on the petition on its merits, and following consultation with the intake office, file a motion requesting the court to transfer the child for criminal prosecution if the child was 14 or more years of age at the time of the conduct charged and is alleged to have committed an act which would be a violation of law if committed by an adult. If the child has been previously adjudicated delinquent for one of the violent crimes, to wit: murder, rape or sexual battery, armed robbery, or aggravated assault, and is currently charged with a second or subsequent such offense, the State Attorney shall file a motion requesting the court to transfer the child for criminal prosecution.

      . The word “shall” used in this context would normally be construed to be mandatory. Neal v. Bryant, 149 So.2d 529 (Fla.1962); White v. Means, 280 So.2d 20 (Fla. 1st DCA 1973).

      . S. R. v. State, 346 So.2d 1018 (Fla.1977), in interpreting the effect of Section 39.05(7), Fla. Stat. (1975), which provided that “petitions alleging delinquency shall be dismissed with prejudice [upon motion] if not filed within 30 days from the date the complaint was referred to the intake office . .” held that the statute’s provisions were mandatory and furnished the child with a substantive right of dismissal; thus superseding Fla.R.Juv.P. 8.020 which provided only that “the petition may be dismissed with prejudice . . .” A similar construction was placed upon Section 39.03(2), Fla.Stat. (1975), which provided that the “person taking the child into custody shall, within three days . . .” file a full written report with the Juvenile Division Intake Office. In Interest of J.W.H., 345 So.2d 871 (Fla. 1st DCA 1977). Our court there held that the statute’s three day requirement was mandatory and that the state could not circumvent its provisions by waiting an indefinite period of time before filing a complaint with the intake officer. As previously noted, here we are confronted only with a statute which permits, not mandates, the state attorney to file a motion requesting transfer within the applicable five day period.


author: THE COURT:

text:
    Laurence WOLFSON, Appellant, v. SECOND NATIONAL BANK OF NORTH MIAMI, a national banking assoc., Appellee.
    No. 78-1355.
    District Court of Appeal of Florida, Fourth District.
    June 23, 1978.
   BY ORDER OF

THE COURT:

ORDERED that the June 22, 1978 Petition for Writ of Prohibition is hereby denied upon the authority of English v. McCrary, Fla., 348 So.2d 293.


author: ERVIN, Justice.

text:
    E. E. DEAN SNAVELY, INC., et al. and American Insurance Company, Appellants, v. Billy SULLIVAN et al., Appellees.
    No. JJ-124.
    District Court of Appeal of Florida, First District.
    June 26, 1978.
    Rehearing Denied July 28, 1978.

      Frank M. Gafford, Lake City, Alan B. Fields, of Dowda & Fields, Palatka, for appellants.
    F. D. McKnight, of Yergey, Yergey & McKnight, Orlando, for appellees.
   ERVIN, Justice.

Snavely, a general contractor and its surety, American Insurance Company, filed their interlocutory appeal from an order denying motions for partial summary judgment and dismissal. Snavely contracted with one Rogers to construct a retail shopping center in Live Oak, Florida. Snavely, through its surety, furnished Rogers a payment and performance bond in accordance with Section 713.23, Florida Statutes (1977). The bond was in the face amount of the construction contract between Snavely and Rogers, or $1,458,752.00. In June, 1974, Snavely executed a written contract with its subcontractor, Moody, d/b/a as Moody Brothers and Georgia Refrigeration Service. In December, 1974, Moody and his laborer, Sullivan, entered into an agreement for Sullivan to perform work for Moody, which work was terminated the same month. The contract went into default between Snavely and Rogers which resulted in defaults as to the other parties. Sullivan filed a claim of lien pursuant to Section 713.08, Florida Statutes (1977), on March 7, 1975. Sullivan filed suit against Moody, Snavely and Rogers on March 2, 1976.

On April 9, 1975, Moody filed his claim of lien in accordance with Section 713.08, but did not file suit until he was permitted to be added as a party plaintiff to Sullivan’s amended complaint on September 15, 1976. On August 29, 1975, Moody formed a Georgia Corporation, Moody and Moody, Inc., which performed work on the shopping center in October, November and December of 1975, and according to Moody, as late as April, 1976, upon the request of the owner. Snavely and American moved for partial summary judgment or, in the alternative, dismissal as to counts III and IV of the amended complaint, which was denied. Sullivan and Moody are joint plaintiffs as to count III. Only Moody remains party plaintiff under count IV.

Appellants first argue that the court erred in not entering summary judgment as to count IV of the amended complaint because Moody failed to perfect his lien by not filing suit within one year after he filed his claim of lien as required by Section 713.22(1). We reject this argument. Moody sought in count IV to recover under a contractor’s performance and payment bond, which incorporated both the provisions of the contract and 713.23. Count IV did not seek to foreclose Moody’s claim of lien, which was authorized by Section 713.-08. The relief which Moody sought under Section 713.23 was entirely separate from that afforded him by 713.08. Section 713.23 requires only that a suit be instituted against the contractor or the surety on the bond within one year from the performance of the labor or completion of delivery of the materials and supplies. There is no requirement, as in 713.08, that the lienor otherwise perfect his lien by bringing suit within one year after the claim of lien is recorded. Houdaille Industries, Inc. v. United Bonding Insurance Co., 453 F.2d 1048 (5th Cir. 1972).

Appellants additionally contend that Moody, d/b/a Moody Brothers, last performed work on the Suwannee County Mall on August 29, 1975, and that suit was filed on behalf of Moody on September 15, 1976, more than one year after the last possible date for providing labor and materials as provided by Section 713.23. Appellants concede that work was performed after August 29, 1975, by Moody but in a different capacity than that of the business entity, Moody Brothers. On August 29, 1975, Moody formed a Georgia corporation, Moody and Moody, Inc., which, it is not disputed, performed work on the shopping center in October, November and December of 1975. Whether Moody performed work on the original contract either in a corporate or other business capacity makes no difference so long as he is a qualified lienor. Under the Mechanics’ Lien Law a contractor or subcontractor may perform his contract by or through another. Section 713.01(10) and (13); Warren v. Bill Ray Construction Co., Inc., 269 So.2d 25, 27-28 (Fla. 3d DCA 1972). As to appellants’ contention that any work performed by Moody after August 29, 1975 was done under a new contract with the owner but not pursuant to the terms of the original contract, we find the factual issues were disputed and therefore not properly subject for disposition by summary judgment.

We agree, however, with appellants that the trial court erred in not granting their motions to dismiss count III of the amended complaint. Count III was an action brought by Moody and Sullivan on a common law bond. Such actions are recognized in Florida as establishing general statutory limitations on actions instead of specific statutory limitations. United Bonding Insurance Company v. City of Holly Hill, 249 So.2d 720 (Fla. 1st DCA 1971); General Electric Company v. Commercial Standard Insurance Company, 335 So.2d 624 (Fla. 1st DCA 1976). There is no disputed issue of material fact that the bond was in the face amount of the original contract. Moody, nevertheless, argues the owner, after Snavely defaulted on the contract, furnished the new general contractor with a superintendent on the job, and the value of such services was not reflected in the bond or in the written contract; therefore a factual issue exists as to whether the face amount of the bond truly reflects the contractual arrangement between the owner and general contractor. The bond, however, specifically incorporated Section 713.-23 as well as the terms of the contract within its provisions. The bond, which named Snavely as principal, could not be extended to provide additional compensation above the face amount of the contract to other persons after the principal left the job. Nor were the conditions of the bond broader or more protective than the statute required. Compare Hawaiian Inn of Daytona Beach, Inc. v. Dunn, 342 So.2d 132 (Fla. 1st DCA 1977).

The trial court’s order is reversed insofar as it denied appellant’s motions as to count III, and is affirmed insofar as it denied the motions as to count IV.

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


text:
    Robert Lee ALEXANDER, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1377.
    District Court of Appeal of Florida, Third District.
    June 27, 1978.
    Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen., for appel-lee.
    Before HENDRY, NATHAN and KE-HOE, JJ.
   PER CURIAM.

Affirmed. See, e. g., Cooper v. State, 336 So.2d 1133 (Fla.1976); Durcan v. State, 350 So.2d 525 (Fla.3d DCA 1977); Abbott v. State, 334 So.2d 642 (Fla.3d DCA 1976); Mobley v. State, 327 So.2d 900 (Fla.3d DCA 1976); and Jennings v. State, 228 So.2d 117 (Fla.3d DCA 1969).