author: DANAHY, Judge.

text:
    Sidney H. PALEY and Allen Tucker, Appellants, v. COCOA MASONRY, INC., Appellee.
    No. 77-1356.
    District Court of Appeal of Florida, Second District.
    Feb. 3, 1978.
    Barry J. McCaughey of McCaughey, Knaust & Evans, St. Petersburg, for appellants.
    Jere E. Lober of Lovering, Pound & Lo-ber, Rockledge, for appellee.
   DANAHY, Judge.

Appellants/plaintiffs file this interlocutory appeal from the stay order of the trial court entered pursuant to Fla.R.Civ.P. 1.420(d) which prevents them from proceeding further in this cause until payment of court costs assessed against their assignor in a prior suit wherein appellee/defendant was plaintiff and appellants/plaintiffs’ assignor was defendant.

The stay order may not be reviewed by interlocutory appeal. Fla.App.Rule 4.2. But we choose to treat the appeal as a petition for certiorari. Stein v. Bay front Medical Center, Inc., 287 So.2d 401 (Fla. 2d DCA 1974). Certiorari is granted and the stay order is quashed.

In the case at bar, plaintiffs sued defendant, a masonry contractor, for breach of a contract between defendant and an apartment developer, Paltuco Carribbean of Florida, Inc., which arose from a dispute on a construction project known as the “White Lake” job. Plaintiffs are assignees of Pal-tuco’s claim against defendant under that contract.

In the prior suit, defendant (plaintiff there) successfully sued Paltuco to foreclose a mechanics’ lien on a construction project known as the “Tudor Village” job. In that suit, Paltuco voluntarily dismissed a permissive counterclaim it had filed against defendant alleging a breach of contract on the “White Lake” job. The claim contained in Paltuco’s counterclaim is the same claim brought by plaintiffs in the case at bar.

The final judgment of foreclosure in the prior suit taxed costs in favor of defendant and against Paltuco by reciting: “. $6,000 for attorneys’ fees with $712.40 court costs now taxed under the lien sued on in this action . The judgment neither identifies nor apportions costs between the main claim of defendant and the counterclaim of Paltuco. . And there was no separate order assessing costs against Pal-tuco on the dismissed counterclaim.

In the stay order, the trial court required the total sum of $6,712.40 to be paid by plaintiffs to defendant as a condition to further proceedings in the suit at bar.

Defendant contends, and the lower court agreed, that the stay order was an appropriate remedy under Fla.R.Civ.P. 1.420(d) because the claim contained in the counterclaim in the prior suit was the same claim and between the same parties as in the case at bar.

Fla.R.Civ.P. 1.420(d) provides:

“(d) Costs. Costs in any action dismissed under this rule shall be assessed and judgment for costs entered in that action. If a party who has once dismissed a claim in any court of this State commences an action based upon or including the same claim against the same adverse party, the court shall make such order for the payment of costs of the claim previously dismissed as it may deem proper and shall stay the proceedings in the action until the party seeking affirmative relief has complied with the order.” (Emphasis supplied).

The intent of the rule is clear enough. If a party voluntarily dismisses a claim, he cannot proceed in a second suit against the adverse party on that claim without first paying those costs assessed against him by the court in the original action. The operation of the rule, therefore, requires that the costs be assessed in the original litigation and that there be an identity of parties and claims in both actions. . See Gordon v. Warren Heating & Air Conditioning, Inc., 340 So.2d 1234 (Fla. 4th DCA 1976).

In the case at bar, there is an identity of parties because plaintiffs, as assignees of the “White Lake” contract claim, stand in the shoes of their assignor, Paltuco. But the “White Lake” and “Tudor Village” claims are not the same. Paltuco was the apartment developer and defendant was the masonry contractor on both projects: That is the only connection between them.

In the prior suit, defendant prayed for attorneys’ fees. Pursuant to Section 713.29, Florida Statutes (1975), the court had authority to award reasonable attorneys’ fees to defendant as the prevailing party, and to tax the same as costs against Paltuco. The foregoing statute provided the only basis for the assessment of attorneys’ fees in the prior suit since there was no other statutory or contractual basis for such an award. See Polk County v. Deaton, 352 So.2d 571 (Fla. 2d DCA 1977). The inclusion of any aspect other than the mechanics’ lien foreclosure in arriving at fees to be taxed as costs would be an impermissible expansion of the legislative intent contained in the statute. Accord Jackson v. Hatch, 288 So.2d 564 (Fla. 2d DCA 1974). No part of the attorneys’ fees award was or could have been based directly on the voluntary dismissal of the counterclaim by Paltu-co. Because the award of the attorneys’ fees was based on the “Tudor Village” claim which is not the claim in the case at bar, the rule did not permit their inclusion in the stay order.

It does appear from the record that some of the $712.40 in other court costs may be attributable to the “White Lake” counterclaim. The rule does allow them to be included in the stay order since that claim is the same in both cases. Therefore, insofar as it can be shown which of those costs are attributable to the “White Lake” counterclaim in the prior suit, they may be included in any stay order the trial court may wish to enter hereafter. But, as with the attorneys’ fees, other costs attributable to the “Tudor Village” claim must be excluded. If the parties are unable to identify and stipulate to a proper division of these other court costs, the trial court will be able to do so at an evidentiary hearing.

Therefore, the fees and other court costs as set forth in this opinion were based upon a different claim from the claim involved in the case at bar. Their inclusion in the stay order constituted a departure from the essential requirements of the law which effectively prevented plaintiffs from their day in court without an adequate remedy by appeal.

The petition for certiorari is granted. The stay order is quashed and this cause is remanded to the trial court for further proceedings not inconsistent with this opinion.

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

      . See generally Haddad, The Common Law Writ of Certiorari in Florida, XXIX U.Fla.L Rev. 207 (1977).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    ROYAL CASTLE SYSTEMS, INC., a corporation, Associated Indemnity Corp., a corporation, American Home Assurance Company, a corporation and Robert Gary Tyler, Appellants, v. Allan N. FIELDS, as Administrator of the Estate of Gary Jack Fields, Deceased, and Chris Lang, Appellees.
    Nos. 76-2234, 77-250.
    District Court of Appeal of Florida, Third District.
    Feb. 3, 1978.
    Rehearing Denied Feb. 22, 1978.

      Corlett, Merritt, Killian & Sikes, Greene & Cooper and Sharon L. Wolfe, Miami, for appellants.
    Rossman & Baumberger and Robert D. Peltz, Miami, for appellees.
    Before HENDRY and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

This is an appeal by the defendants below from an order granting a new trial following a jury verdict in favor of the appellant-defendants in this wrongful death action.

In the order granting a new trial as amended, the grounds therefor were stated as follows:

“The verdict was against the manifest weight of the evidence and/or the Court erred in allowing into evidence, over plaintiff’s objections, evidence that the defendant, GARY TYLER, had taken and passed a lie-detector test, and that the admissibility of said evidence was material and prejudicial, it is therefore: ”

Appellants present two contentions: First, that the trial court committed reversible error by denying defendants’ motion for directed verdict made at the close of the plaintiff’s case on the ground that a prima facie case had not been made. Second, that the granting of the new trial was an abuse of discretion.

The first contention seeks review on a ground in addition to those stated by the trial court as the basis for the order granting new trial. While formerly such additional ground would not be subject for review [see: Osteen v. Seaboard Coast Line Railroad Company, 283 So.2d 379 (Fla. 1st DCA 1973); Dorr-Oliver, Incorporated v. Parnell, 334 So.2d 629 (Fla. 2d DCA 1976)] it is now held to be reviewable under Bowen v. Willard, 340 So.2d 110, 112 (Fla.1976). Accordingly, we have considered said contention of the appellant in the light of the record, briefs, and argument and find it is without merit.

We hold that appellants’ contention that the granting of a new trial in this case was an abuse of discretion is without merit. Since the case is to be retried following remand we will omit a statement of the facts, as revealed in the pleadings and evidence. On consideration of the record, briefs and argument, upon applying the principles applicable hereto as pronounced in Cloud v. Fallis, 110 So.2d 669, 673 (Fla.1959), we hold there has been no showing of a clear abuse of discretion and for that reason the order granting new trial will not be disturbed.

Affirmed.


text:
    J. Ed STRAUGHN, etc., et al., Appellants, v. Pierre D. THOMPSON et al., Appellees.
    No. DD-416.
    District Court of Appeal of Florida, First District.
    Feb. 7, 1978.

      Robert L. Shevin, Atty. Gen., Joseph C. Mellichamp, III, Asst. Atty. Gen., and Willard Howatt, St. Augustine, for appellants.
    Hamilton D. Upchurch, St. Augustine, for appellees.
   PER CURIAM.

This cause is before us on appeal from the Order of the Circuit Court, St. Johns County, holding invalid the tax assessor’s correction, under Florida Statute § 197.056, of a “computer error” in Appellee’s tax bill which omitted a zero from the stated assessed value of the improvements on the property. After Appellee’s payment of the tax for 1974, the error was discovered and additional taxes were back-assessed.

We find that the action of the tax assessor was valid under the holdings of this Court and of the Florida Supreme Court in Mills v. Korash, 249 So.2d 765 (1st DCA 1971), certiorari discharged, 263 So.2d 579 (Fla.1972).

Accordingly, the judgment below is REVERSED.

SMITH, Acting C. J., and ERVIN and BOOTH, JJ., concur.


text:
    STATE of Florida, Appellant, v. Isabel Marie GONZALES et al., Appellees.
    No. FF-143.
    District Court of Appeal of Florida, First District.
    Feb. 7, 1978.
    William E. Whitley, Asst. State’s Atty., for appellant.
    Larry G. Turner, Gainesville, for appel-lees.
   PER CURIAM.

This cause is before this Court on certification under Rule 4.6, F.A.R. by the Circuit Court of Alachua County, sitting as an appellate court, in an appeal from a county court. The rule does not provide for certification under these circumstances. American Express Company v. Habersin Camera Shops, Inc., 209 So.2d 283 (3d DCA 1968).

The question certified is not properly before us and is hereby DENIED.

SMITH, Acting C. J., and ERVIN and BOOTH, JJ., concur.


author: BOYER, Acting Chief Judge.

text:
    Minnie K. STALLWORTH, as Administratrix of the Estate of Benjamin Stallworth, Deceased, Appellant, v. SUPERIOR DAIRIES, INC., a/k/a Skaff's Superior Dairy and Nezzar Chalston Battle, Appellees.
    No. FF-325.
    District Court of Appeal of Florida, First District.
    Feb. 7, 1978.
    R. P. Warfield of Levin, Warfield, Mid-dlebrooks, Mabie, Rosenbloum & Magie, Pensacola, for appellant.
    John E. Houser, Jacksonville, for appel-lees.
   BOYER, Acting Chief Judge.

Appellant contends that the trial court erred in refusing to permit an expert witness called by her to testify on rebuttal as to the exact point of impact between the two vehicles involved in the accident which gave rise to this case. The record reveals that in response to the question “Do you have an opinion as to generally where the two vehicles came together?” appellant’s expert gave his opinion during the case in chief as to the general area of impact between the two vehicles. Appellees’ expert in his testimony gave an opinion pinpointing the point of impact at the spot where gouge marks had been found by accident investigators. Appellant’s counsel then recalled his expert on rebuttal and asked the following question: “Do you have an opinion as to the approximate point of impact of these two vehicles?” Appellees’ counsel objected, and after a colloquy in which the trial judge stated that he remembered appellant’s counsel had asked that question during her case in chief, the objection was sustained and the question withdrawn. On that set of facts, we fail to find reversible error. The question asked by appellant’s counsel on rebuttal was virtually identical to one he had asked during the expert’s earlier testimony, and the expert’s lengthy testimony during the case in chief and on rebuttal adequately established for the jury’s consideration his conception of how the accident had occurred.

Although we have already expressed our opinion of affirmance, we feel it pertinent to note in addition that appellant’s counsel withdrew the question upon which this appeal is based. While it is no longer necessary under Fla.R.Civ.P. 1.470, to take an exception to an adverse ruling in order to preserve a point on appeal, we do not think that it is proper for an appeal to be based on a matter which is affirmatively removed from consideration by the party at the trial level. There can be no error in a trial court’s ruling on such a matter because any ruling becomes immaterial after the question creating the objection is withdrawn.

AFFIRMED.

SMITH and ERVIN, JJ., concur.


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

text:
    A. E. ANDERSON, Jr., Petitioner, v. Verna S. LOVEJOY, Respondent. John S. COWDERY, Petitioner, v. Verna S. LOVEJOY, Respondent.
    Nos. GG-393, GG-439.
    District Court of Appeal of Florida, First District.
    Feb. 7, 1978.
    Robert M. Sharp and Bruce S. Bullock of Bullock, Sharp & Childs, and Joseph 0. Stroud, Jr. of Rogers, Towers, Bailey, Jones & Gay, Jacksonville, for petitioners Anderson and Cowdery.
    Neal D. Evans, Jr., Jacksonville, for respondent.
   SMITH, Acting Chief Judge.

Two defendants in an action for personal injuries seek common law certiorari review of a trial court order setting aside, on plaintiff’s motion, a notice of voluntary dismissal previously filed by plaintiff pursuant to Rule 1.420(a)(l)(i), Fla.R.Civ.P. The notice of dismissal operated under the Rule to dismiss plaintiffs action without prejudice and without the necessity for an order of dismissal. Plaintiff’s prior counsel obtained her permission to dismiss the action on his advice that she could later refile; according to her affidavit, he did not advise her that the statute of limitations would bar a new action. But the statute apparently had run.

The trial court acted in excess of its jurisdiction by entertaining plaintiff’s motion to reactivate the dismissed action. The lawyer’s erroneous advice, inducing the plaintiff to consent to the dismissal, was not remediable under Rule 1.540(b), Fla.R.Civ.P. See Rich Motors, Inc. v. Loyd Cole Produce Express, Inc., 244 So.2d 526 (Fla. 4th DCA 1970). Cooper v. Carroll, 239 So.2d 511 (Fla. 3d DCA 1970), is not to the contrary; the court there granted relief for plaintiff’s unintended and inadvertent dismissal of his action as to all defendants. Nor is this a case in which plaintiff’s attorney, without authority, dismissed or otherwise finally terminated plaintiff’s case on the merits. See Palm Beach Royal Hotel, Inc. v. Breese, 154 So.2d 698 (Fla. 2d DCA 1963); Annot., 56 A.L.R.2d 1290 (1957). We disagree with Randle Eastern Ambulance Serv., Inc. v. Vasta, 345 So.2d 1084 (Fla. 3d DCA 1977), which is directly contrary to our decision.

The petitions for writ of certiorari are GRANTED and the order setting aside plaintiff’s notice of voluntary dismissal is VACATED.

BOOTH, J., concurs.

ERVIN, J., dissents.

ERVIN, Judge,

dissenting.

Is a voluntary notice of dismissal a proceeding contemplated by Fla.R.Civ.P. 1.540(b), permitting a trial court to relieve a party on the grounds of mistake, newly discovered evidence, etc.? The majority states it is not and relies upon Rich Motors, Inc. v. Loyd Cole Produce Express, Inc., 244 So.2d 526 (Fla. 4th DCA 1970). While Rich Motors, Inc. held that a trial judge has no discretion under Fla.R.Civ.P. 1.420(a)(1)(i) to grant or deny a voluntary dismissal, and therefore precludes him from, reviewing such dismissal, the opinion made no reference at all to Rule 1.540. On facts practically identical to those involved in this case, the Third District Court of Appeal in Randall Eastern Ambulance Serv., Inc. v. Vasta, 345 So.2d 1084 (Fla. 3rd DCA 1977), held a voluntary notice of dismissal was appropriately reviewable by the trial court upon a Rule 1.540(b) motion. The court’s opinion conceded it was in conflict with Rich Motors, Inc. A petition for writ of certiorari based upon conflict is presently pending before the Florida Supreme Court from that decision, but at the present time has neither been granted or denied.

While the rendition of a judgment by a court lacking jurisdiction is a clear departure from the essential requirements of law, Seaboard Airline R. Co. v. Ray, 52 Fla. 634, 42 So. 714 (1906), I am not disposed to conclude that when two or more district courts of appeal are in direct conflict, and a trial judge follows the one while rejecting the other, his judgment may be impeached by a reviewing court’s determination it is a clear departure from the essential requirements of the law.

I would deny the petition for writ of certiorari.


author: HENDRY, Judge. PEARSON, Judge

text:
    R. C. GREER, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1772.
    District Court of Appeal of Florida, Third District.
    Feb. 7, 1978.

      Bennett H. Brummer, Public Defender and Paul Morris, Asst. Public Defender and Thomas Wills, Sp. Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Joel D. Rosenblatt, Asst. Atty. Gen. and Lonworth Butler, Legal Intern, for appellee.
    Before PEARSON, HENDRY and NATHAN, JJ.
   HENDRY, Judge.

Appellant was charged with and convicted of burglary, in violation of Section 810.-02, Florida Statutes (1975). He appeals his conviction and sentence.

The evidence showed that appellant was seen as he climbed over a six-foot wall into the enclosed parking area which surrounds the business structure in which Courtesy Ford, Inc. conducts its operations. Upon arrival, police found appellant hiding under a van in the parking area. There was no evidence of actual entry into the building itself.

The primary point for our consideration is whether the trial court erred in denying appellant’s motion for judgment of acquittal in light of Sections 810.02 and 810.-011(1), Florida Statutes (1975). More specifically, appellant contends that the term “curtilage” has meaningful applications when associated only with a dwelling and can not be applied sub judice, where the information charged and the evidence showed only that appellant had unlawfully entered the parking area of a commercial establishment with the intent to commit an offense therein.

In light of the clear language of Sections 810.02 and 810.011, Florida Statutes (1975), we must reject appellant’s contention. Section 810.02 provides:

“(1) ‘Burglary’ means entering or remaining in a structure or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter or remain.” [Emphasis added.]

Pursuant to Section 810.011, “structure” is defined as:

“any building of any kind, either temporary or permanent, which has a roof over it, together with the curtilage thereof.” [Emphasis added.]

Accordingly, the unlawful entry of appellant into the parking lot (curtilage) surrounding the business structure with intent to commit an offense (larceny) was a burglary, notwithstanding the fact that appellant did not enter the structure and the curtilage was of a business property and not a dwelling.

The other point raised by appellant is addressed to an alleged “fatal variance” between the charge stated in the information and the proof adduced at trial. After considering this point, we find it to be without merit. Fitzgerald v. State, 227 So.2d 45 (Fla. 3d DCA 1969).

Therefore, the judgment and sentence are affirmed.

Affirmed.

PEARSON, Judge

(dissenting).

The opinion of the majority appears to me to be a noble attempt to remedy a faulty statute. While I cannot quarrel with the public policy involved or the wholesome effect of the holding, I must, in intellectual honesty, point out that there is no way that the legal term “curtilage” can be interpreted to mean an industrial plant surrounded by a wall. See Powelson v. Lake Placid Co., 281 App.Div. 1054, 121 N.Y.S.2d 139 (1953); and Turknett v. State, 254 P. 985 (Okl.Cr.1927).

      . “In its most comprehensive and proper legal signification, it [curtilage] includes all that space of ground and buildings thereon which is usually inclosed within the general fence immediately surrounding a principal messuage [dwelling house] and outbuildings, and yard closely adjoining to a dwelling-house, but it may be large enough for cattle to be levant and couchant therein. 1 Chit. Gen.Pr. 175.” Black’s Law Dictionary (4th Ed. 1957).
      “A small court, yard, garth, or piece of ground attached to a dwelling-house, and forming one enclosure with it, or so regarded by the law; the area attached to and containing a dwelling-house and its out-buildings. Now mostly a legal or formal term, but in popular use in the south-west, where it is pronounced, and often written, courtledge.” Oxford English Dictionary, vol. II (1933).


text:
    Nicholas PICCHIONE, d/b/a Nicholas Picchione & Co., Appellant, v. Robert ASTI, Earl DeMaris and Demetra DeMaris, Co-Personal Representatives of the Estate of Alfred DeMaris, Deceased, Appellees.
    No. 76-2321.
    District Court of Appeal of Florida, Third District.
    Feb. 7, 1978.
    Sciarretta & Jackvony, Fort Lauderdale, for appellant.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and James E. Tribble, Miami, for appellees.
    Before PEARSON, NATHAN and HUB-BART, JJ.
   PER CURIAM.

This is an appeal from a summary final judgment entered in an action against the estate of Alfred DeMaris upon the basis that the plaintiff was barred from proceeding with the action because of his failure to file a claim in the estate pursuant to Section 733.702, Florida Statutes (1975). The fact of the plaintiff’s failure was established on the record. The only suggested issue of fact is that the estate was estopped to assert the statute. See Davis v. Evans, 132 So.2d 476 (Fla. 1st DCA 1961). No reply upon the basis of estoppel was asserted. See Fla.R.Civ.P. 1.100. Plaintiff produced nothing in opposition to the motion for summary judgment. Therefore, summary judgment was properly entered.

A second point presented by appellant urges the unconstitutionality of Section 733.702, Florida Statutes (1975). The plaintiff did not challenge the constitutionality of the statute in the trial court and, therefore, cannot raise the question for the first time on this appeal. Sanford v. Rubin, 237 So.2d 134 (Fla.1970).

Affirmed.

      . It is noted that if the constitutionality of the statute had been properly raised, the proper appeal would have been to the Supreme Court of Florida. See Art. V, § 3(b)(1), Fla.Const.


text:
    Willie BRANTLEY and Wellington R. Meyers, Jr., Appellants, v. Benjamin Cowley HAMILTON et al., Appellees.
    No. 76-2331.
    District Court of Appeal of Florida, Third District.
    Feb. 7, 1978.
    Goodwin, Ryskamp, Welcher & Carrier, Miami, for appellants.
    Sams, Anderson & Ward, Sam Daniels, Miami, for appellees.
    Before PEARSON, NATHAN and HUB-BART, JJ.
   PER CURIAM.

This is an appeal by defendants of the final money judgments rendered in a personal injury action arising from an automobile accident in which the wife/mother was killed, the husband/father permanently disabled, and the son injured. Liability is not an issue in this appeal. The sole question for our determination is whether any or all of the money judgments awarded on the basis of six separate jury verdicts can stand.

The six claims involved in this action, the amounts awarded by the jury, and the sums awarded by the final judgment of the trial court are shown by the following chart.

CLAIMANT NATURE OF CLAIM DAMAGES AWARDED BY JURY DAMAGES AWARDED BY FINAL JUDGMENT

Estate of Deceased Wife/Mother Wrongful Death $230,000 $2,500

Husband Wrongful Death of Spouse $1,000,000 $1,000,000

Husband Personal Injuries $100,000 $100,000

Father Medical Costs for Son’s Injuries $10,000 $10,000

Son Wrongful Death of Mother $400,000 $400,000

Son Personal Injuries $10,000 $10,000

The verdict awarding $230,000 to the wife’s estate was corrected by the trial court with the consent of both sides before the jury was discharged, since the sum exceeded the amount statutorily permissible (approximately $2,500). On appeal, both sides also agree that the amount of the father’s recovery for medical costs in his derivative claim for the son’s injuries should be reduced by $7,485 to accord with evidence adduced at trial. Both sides are content, too, with the $10,000 award to the son for his personal injuries.

However, defendants contend that the awards to the father and son for their wrongful death claims were grossly excessive and require retrial since they obviously resulted from confusion by the jury. As examples, defendants point out that, although the son requested $250,000 for his wrongful death claim, the jury awarded him $400,000, and that while the husband requested $500,000 for his wrongful death claim, the jury awarded him $1,000,000, at the same time awarding him only $100,000 on his personal injuries claim although he had. requested $1,000,000 in this cause of action and presented extensive evidence on this aspect of the case. Defendants post trial motions for retrial and remittitur were denied.

Plaintiffs, though content on appeal to let the final judgments stand, originally had moved for a new trial on the husband/father’s personal injuries claim, alleging at the time that this sum was inadequate in view of the extensive nature of his injuries. Plaintiffs now contend that, when viewed as a whole, the awards are sound and should stand, except for the agreed remitti-tur of $7,485. They assert that the sum awarded the son for the wrongful death of his mother is not excessive and that the $1,100,000 total award to the husband/father for his personal injuries and wrongful death claims is also sound, suggesting that the jury erroneously transposed the awards in the personal injuries and wrongful death claims. Plaintiffs argue that, although the form of the execution of the verdicts was incorrect, the substance of the intended awards was attained, and therefore this court should not disturb the result the jury reached.

Plaintiffs rely on Cory v. Greyhound Lines, Inc., 257 So.2d 36, (Fla.1971) as authority for this proposition, asserting that the trial judge must have regarded the $1,000,000 and the $100,000 awards as inadvertent transpositions. We cannot agree. In the first place, nothing in the record offers firm support for this proposition. Secondly, reliance on Cory is misplaced, for, in that case, the sums originally awarded by the jury objectively reflected a transposition of the actual amounts requested on the two claims involved. Moreover, the trial court’s order granting a new trial on the issue of damages declared the court’s belief that the jury had transposed the requested amounts. The intentions of the jury were readily discernible from the record. Such is not the case on the facts before us.

We review a situation in which the intent of the jury is not sufficiently apparent to sustain the contested awards. The jury returned a verdict of twice the sum requested for the wrongful death claim of the husband, while awarding one tenth the requested amount on his claim for extensive and permanent injuries, an issue which was of major import at the trial. While we are of the opinion that a jury is not bound to return a verdict in an amount correlative to that requested by counsel, the amount awarded the husband for his wife’s death was excessive, and the sum awarded him for his personal injuries could be considered de minimus.

Because of the combination of the confusion apparent from the record and the ex-cessiveness of the husband’s wrongful death award, we find that the only way in which appropriate damages can be properly assessed is by a retrial of all the damage elements. Therefore, this cause is reversed and remanded for a new trial as to the damage issues only.

Reversed and remanded for further proceedings consistent with this opinion.


text:
    Victor SEIJAS, Appellant, v. P. W. ANDREWS, City Manager of the City of Miami, Florida, and the City of Miami, Florida, a Municipal Corporation, Appellees.
    No. 76-2363.
    District Court of Appeal of Florida, Third District.
    Feb. 7, 1978.
    K. Neil Glassford, Miami, for appellant. George F. Knox, Jr., City Atty. and Mik-ele S. Carter, Asst. City Atty., for appellees.
    Before PEARSON, NATHAN and HUB-BART, JJ.
   PER CURIAM.

Affirmed. Simpson v. Handberry, 159 Fla. 805, 33 So.2d 31 (1947); Baynard v. Windom, 63 So.2d 773 (Fla.1952); State v. Evans, 102 So.2d 403 (Fla. 3d DCA 1958).


text:
    Robert W. COX, Appellant, v. The STATE of Florida, Appellee.
    No. 77-472.
    District Court of Appeal of Florida, Third District.
    Feb. 7, 1978.

      Bennett H. Brummer, Public Defender and Thomas G. Murray, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Arthur Joel Berger, Asst. Atty. Gen., for appellee.
    Before HAVERPIELD, C. J., KEHOE, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Robert W. Cox appeals an order revoking his probation and urges as reversible error the denial of his motion for continuance because defense counsel was not afforded adequate time to prepare the case and confer with him in derogation of his right to effective assistance of counsel. We do not agree.

Cox was convicted for issuing worthless checks and receiving stolen property, and was placed on four years probation. An affidavit of violation of probation was filed against him for having committed burglary and grand larceny. He was adjudicated indigent and an assistant public defender (Mr. Smith) was appointed. Eight days later at the revocation hearing another assistant public defender (Mr. Marvin) appeared on behalf of Cox and moved for a continuance because the previous day Smith had asked him to handle the hearing and he (Marvin) had just met Cox. The prosecution objected since all the witnesses had been subpoenaed to appear. The court denied the motion for continuance and at the conclusion of the hearing, revoked Cox’s probation. This appeal followed.

Cox contends that a change of counsel one day prior to trial necessitates the granting of a motion for continuance because new counsel is unprepared for trial. We cannot agree.

First, there is no specified time period which establishes as a matter of law a lack of preparation on the part of counsel so as to mandate a continuance. See Berriel v. State, 233 So.2d 163 (Fla. 4th DCA 1970). Second, the record reflects that a public defender, Mr. Smith, was appointed eight days prior to the revocation hearing and one day prior to trial another public defender, Mr. Marvin, agreed to handle this case for his associate. Mr. Smith and Mr. Marvin being from the same office or law firm, it cannot be said that there was a change of counsel in the sense that new counsel from a different office or firm had been substituted. See Roberts v. State, 345 So.2d 837 (Fla.3d DCA 1977) and Smith v. State, 48 Fla. 307, 37 So. 573 (1904). Last, we find that Marvin adequately represented Cox at the hearing and, thus, there was no abuse of discretion in denying the motion for continuance. See Smith, supra; Durcan v. State, 350 So.2d 525 (Fla.3d DCA 1977); Griffin v. State, 350 So.2d 567 (Fla.3d DCA 1977); Mobley v. State, 327 So.2d 900 (Fla.3d DCA 1976).

Affirmed.


text:
    Dorothy GRILLO, Appellant, v. CITY NATIONAL BANK OF MIAMI, a United States Banking Corporation, Appellee.
    No. 77-754.
    District Court of Appeal of Florida, Third District.
    Feb. 7, 1978.
    Jeffrey M. Mart, Miami, for appellant.

      Lapidus & Hollander, Miami, for appellee.
    Before HENDRY, NATHAN and HUB-BART, JJ.
   PER CURIAM.

This is an appeal from a final judgment entered upon a directed verdict at the close of plaintiff/appellant’s case.

In 1971 appellant settled a lawsuit arising out of a serious automobile accident for $750,000.00. The accident rendered appellant a quadriplegic, paralyzed from the neck down, and unable to sign her name. At the advice of her attorneys, appellant deposited $300,000.00 in an account at the City National Bank of Miami. The passbook bore the legend that withdrawal could only be made in the presence of her trial counsel, either Mr. Richard Masington or Mr. R. W. Payne, Jr. The apparent reason for this arrangement was to protect the funds from appellant’s husband, whom appellant feared would forge her name and withdraw the settlement money for use in varied speculative real estate transactions. Notwithstanding appellant’s physical condition, her mental capacities were not dulled by the accident and her competency not an issue.

From 1971 through 1976, appellant withdrew all of the funds from the City National Bank of Miami, most of said withdrawals taking place without the presence of Messrs. Payne or Masington. All -of the withdrawals were at appellant’s request and were received by her, though the bulk of said funds quickly found its way into appellant’s husband’s real estate ventures.

In 1976, having depleted her account, appellant filed suit against Payne, Masington and the City National Bank of Miami. The action against the above attorneys was voluntarily dismissed and the case proceeded to trial against the bank on a breach of contract action, summarized in appellant’s complaint as follows:

“. . . Plaintiff was allowed free and unconditional access to all funds on deposit in direct contravention of the known purpose of the condition precedent to withdrawals, and was thereby enabled to invest said funds in improvident and extremely speculative ventures which resulted in the total loss of said funds . . ."

At the close of appellant’s case, the trial judge directed a verdict for the bank and this appeal ensued.

The controlling issue that must be resolved in this appeal may be worded as follows:

Whether a cause of action for breach of contract may be maintained by a depositor against her bank for violating the terms of a deposit agreement, when said violation was committed at the request of the depositor.

We hold that a cause of action can not be so maintained and therefore, affirm the final judgment.

First, it must be noted that a deposit in a savings account is either a general or special deposit, depending upon the contract which results from the mutual understanding and intention of the parties. Bank of West Orange v. Associates Discount Corporation, 197 So.2d 858 (Fla. 4th DCA 1967). A general deposit is a deposit to the depositor’s credit and is to be drawn on by the depositor in the usual course of banking business. McCrory Stores Corporation v. Tunnicliffe, 104 Fla. 683, 140 So. 806 (Fla.1932). The general deposit constitutes a chose in action or right to the money deposited, creating the relationship of debtor-creditor between the bank and depositor. In re Thourez’ Estate, 166 So.2d 476 (Fla. 2d DCA 1964).

A special deposit, on the other hand, is a deposit for safekeeping to be returned intact upon demand, or for some specific purpose not contemplating a credit on general account. McCrory Stores Corporation, supra; 4 Fla.Jur. Banks and Trust Companies, § 51 (1955). The relationship created by a special deposit between a depositor and his or her bank is that of principal and agent, with title to the deposit remaining in the depositor. Tunnicliffe v. Sears, 107 Fla. 669, 148 So. 197 (1932).

Sub judice, it is our opinion that appellant’s deposit of her settlement funds in appellee bank was general, rather than special, notwithstanding the withdrawal instructions written on the passbook. Unlike a special deposit, the funds were not to be segregated from the general assets of the bank, nor did the agreement contemplate a specific purpose other than a credit on general account. See 4 Fla.Jur. Banks and Trust Companies, § 47 (1955). Appellant, therefore, as a creditor of the bank, had an absolute right to terminate the contractual agreement and withdraw her general deposit, and the bank, as debtor, had the duty to acquiesce in those demands. Edgerly v. Schuyler, 113 So.2d 737 (Fla. 3d DCA 1959), affirmed at 121 So.2d 417. As appellant did, in fact, receive her funds from appellee, no liability can be placed upon the bank.

Even assuming arguendo, that the contractual relationship created by the parties resulted in a special deposit arrangement, appellee bank would nonetheless be relieved of responsibility upon payment of the deposit to appellant. The law is well settled that when the purpose for which a special deposit was accepted by a bank cannot be accomplished, the bank is liable to the depositor for return of the funds. Tinsley v. Amos, 102 Fla. 1, 135 So. 397 (1931); Bank of West Orange v. Associates Discount Corporation, 197 So.2d 858 (Fla. 4th DCA 1967).

Accordingly, the final judgment entered pursuant to a directed verdict must be affirmed. Any other points raised in the briefs and not directly or impliedly discussed herein are deemed to be without merit and/or not controlling to the disposition of this case.

Affirmed.


author: HUBBART, Judge.

text:
    MIDLAND INSURANCE CO., a New York Corporation, and Robert Becke, Appellants, v. STATE of Florida, Appellee.
    No. 77-1079.
    District Court of Appeal of Florida, Third District.
    Feb. 7, 1978.

      Martin S. Saxon, Miami, for appellants.
    Janet Reno, State’s Atty., and John P. Durant, Asst. State’s Atty., for appellee.
    Before PEARSON, NATHAN and HUB-BART, JJ.
   HUBBART, Judge.

This is an appeal by a surety company from an order denying its motion to set aside a final judgment of bond forfeiture entered in a criminal case.

The issue presented for review is whether a surety company is relieved from responsibility on a bail, bond which it has undertaken for a defendant on a charge of second degree murder when the state thereafter abandons the said second degree murder charge and obtains an indictment against the defendant for first degree murder arising out of the same incident. We hold that the surety company is relieved of all responsibility on the bail bond as written and reverse.

It appears without dispute that one Robert Becke was charged by information with the crime of second degree murder before the Dade County Circuit Court. A surety Midland Insurance Company posted a $5,000 bail bond set in the case for Robert Becke on the charge of second degree murder. The bond was subsequently estreated in the circuit court for non-appearance of Robert Becke in court pursuant to proper notice. A final judgment of forfeiture was thereupon entered by the clerk.

The surety Midland Insurance Company filed a timely motion to set aside the final judgment of forfeiture pursuant to Section 903.27, Florida Statutes (1975). The motion alleges that subsequent to assuming the bond undertaking for second degree murder herein, the defendant Robert Becke was indicted for first degree murder, and thereafter the bond was estreated based on the defendant’s non-appearance in court. Attached is an affidavit by one of the surety’s employees tending to establish this allegation. The state filed a response to the motion contending that the change in charges did not affect the surety’s obligation under the bond. The circuit court judge denied the motion without a hearing.

The law is clear that the offense or offenses charged must be stated in an appearance bond for a defendant in a criminal case and that the liability on the said bond cannot be extended beyond the terms of the contract. State v. All Florida Surety Co., 59 So.2d 849 (Fla.1952). Although the offense or offenses may be described by the bond in general terms without technical detail, the surety is obligated under the bond only with respect to the offense or offenses stated therein. State Fire & Casualty Co. v. State, 88 So.2d 274 (Fla.1956); West v. State, 75 Fla. 342, 78 So. 275 (1915). Where the criminal charges are substantially changed from the charges on which the bail bond was originally written, the surety is no longer obligated under the bond.

Measured by these standards, it is clear that the surety herein was relieved of all responsibility under the bond as written because the state substantially increased the charges on the bond from second to first degree murder. Second degree murder is a non-capital offense punishable by a term of years not exceeding life imprisonment. Section 782.04(2), Florida Statutes (1975). First degree murder is a capital offense punishable by death or life imprisonment with no eligibility for parole for twenty-five years. Sections 775.082(1), Florida Statutes (1975). A substantially greater bail risk is involved when a surety becomes obligated under a bail bond written on a charge of first degree murder as opposed to a bail bond written on a charge of second degree murder. The likelihood of flight is much greater as to first degree murder because the accused now faces a possibility of execution. It would be manifestly unfair to require a surety who originally writes a bail bond on second degree murder to be also obligated under the same surety contract when the charge is increased to first degree murder.

We do not reach the second contention of the surety on appeal. That issue was not presented to the trial court and cannot be raised for the first time on appeal.

The order under review is reversed and the cause remanded to the trial court to hold an evidentiary hearing on the surety’s motion to vacate. If the surety is able to prove that which it alleges in the motion to vacate, the final judgment’ of forfeiture herein should be set aside.

Reversed and remanded.


text:
    TRAVELERS INDEMNITY COMPANY, Petitioner, v. Yolanda N. SALIDO, Respondent.
    No. 77-1263.
    District Court of Appeal of Florida, Third District.
    Feb. 7, 1978.
    High, Stack, Davis & Lazenby and Alan R. Dakan, Miami, for petitioner.
    West, Friesner & Goldman and Thomas Schwartz, Miami, for respondent.
    Before HENDRY and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   HUBBART, Judge.

This case presents a question relating to the scope of pre-trial discovery in a civil case. Certiorari review is sought in this court to quash a circuit court order denying certiorari relief as to certain discovery orders entered in a county court action.

The plaintiff Yolanda N. Salido brought an action against her no-fault automobile insurance carrier Travelers Indemnity Company in the County Court of Dade County. The plaintiff sought to recover the balance of fifty dollars allegedly due on an orthopedic doctor bill incurred by the plaintiff as a result of injuries sustained in a motor vehicle accident. By deposition subpoena duces tecum, the plaintiff sought from Travelers Indemnity Company certain documents. Travelers moved to quash the subpoena, which the county court judge denied. The court, however, limited the scope of the subpoena so as to require the production of all bills which Travelers Indemnity Company had paid for initial orthopedic doctor examinations covering a three month period before and after the date the bill in this case was incurred. Later the court assessed a fifty dollars attorneys fee for the plaintiff for having to seek enforcement of this order, but limited the prior discovery order to orthopedic examinations in Dade County, Florida. Travelers sought certiorari review in the Dade County Circuit Court as to both of these orders. The circuit court denied the relief requested and this petition for certiorari follows.

The law is clear that discovery under the Florida Rules of Civil Procedure, although wide-ranging, has certain limits. It cannot be utilized to explore all the minute details of a controversy or delve into immaterial or inconsequential matters. Nor can such discovery be so unduly burdensome upon a party as to be oppressive. Cabrera v. Evans, 322 So.2d 559 (Fla. 3d D.C.A. 1975); Schering Corp. v. Thornton, 280 So.2d 493 (Fla. 4th D.C.A. 1973); Dade County v. Jordan Marsh Co., 219 So.2d 756 (Fla. 3d D.C.A.1969); Riddle Airlines, Inc. v. Mann, 123 So.2d 685 (Fla. 3d D.C.A.1960).

The orthopedic doctor bills ordered produced in the instant case are of doubtful relevance for discovery to the action at hand. They are obviously not admissible evidence nor do they appear probative on the issue of the reasonableness of the doctor bill in this case. They all relate to orthopedic doctor bills paid by Travelers for medical services performed in other and presumably different orthopedic cases in Dade County over a three month period. Moreover the particular doctor bill herein cannot by statute be “in excess of the amount the person or institution customarily charges for like services . . .in cases involving no insurance.” Section 627.736(5), Florida Statutes (1975) [emphasis added]. All the bills ordered produced in this case involve payments in insurance cases.

To the extent that the bills ordered produced might possibly, if only remotely, lead to the discovery of admissible evidence, its minimal relevance is more than outweighed by the considerable time and expense necessary for Travelers to interrupt its normal business practices to compile the voluminous materials sought. By affidavit filed before the county court, it was made to appear that Travelers maintains no central records file to readily obtain the information sought and to attempt to identify and obtain such information would require the examination and review of thousands of claim files involving great time and expense to the company. That all this should be done to assist the plaintiff to obtain materials of doubtful relevance is to our mind so unduly burdensome to Travelers as to be oppressive. Accordingly, the discovery orders including the attorneys fee herein entered by the county court constitute a departure from the essential requirements of law.

The petition for certiorari is granted and the order under review is quashed with directions to the circuit court to grant the certiorari relief sought by Travelers Indemnity Co. and to quash the discovery and attorneys fee orders entered by the county court in this action.


text:
    Yinto BEJAR and State Farm Mutual Automobile Insurance Company, Appellants, v. Zenaida GARCIA, Appellee.
    No. 77-1283.
    District Court of Appeal of Florida, Third District.
    Feb. 7, 1978.

      Talburt, Kubicki & Bradley and Betsy E. Hartley, Miami, for appellants.
    Richard B. Burke, Miami, for appellee.
    Before HENDRY and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   HUBBART, Judge.

By this interlocutory appeal, we are asked to review an order denying the defendant Yinto Bejar’s motion to quash service of process upon him as a non-resident of Florida in an action filed before the Dade County Circuit Court. The plaintiff Zenaida Garcia alleged in her complaint that she was injured in an automobile accident when her motor vehicle collided with a vehicle driven by the defendant Bejar in Dade County, Florida, The defendant Be-jar joined by his insurer State Farm Mutual Automobile Insurance Company contends on appeal that the purported service upon him as a non-resident was defective under Sections 48.161, 48.171, Florida Statutes (1975). We agree.

The plaintiff Garcia did not make a proper showing that she sent as required by law a notice of service and a copy of the process to the defendant Bejar by registered or certified mail as evidenced by the defendant’s return receipt. Leviten v. Gaunt, 347 So.2d 452 (Fla. 3d DCA 1977); Zarcone v. Lesser, 190 So.2d 805 (Fla. 3d DCA 1966); Lendsay v. Cotton, 123 So.2d 745 (Fla. 3d DCA 1960). Moreover, the plaintiff Garcia also failed to allege in her complaint as required by law that the defendant Bejar as the driver of one of the automobiles involved in the accident was a non-resident of Florida sufficient to invoke personal jurisdiction over said defendant. See Palmer Johnson Yachts v. Ray Richard, Inc., 347 So.2d 779 (Fla. 3d DCA 1977); Joyce Bros. Storage and Van Co. v. Piechalak, 343 So.2d 97 (Fla. 3d DCA 1977); Esberger v. First Florida Business Consultants, Inc., 338 So.2d 561 (Fla. 2d DCA 1976). Both of the above deficiencies are fatal to the purported service of process in this cause. The order under review is accordingly reversed.

Reversed.


author: KEHOE, Judge.

text:
    The FLORIDA ELECTIONS COMMISSION, Mary L. Singleton and the Honorable Bruce A. Smathers, Appellants, v. Ronald K. SMITH, Nelson Resnick and Gene Mixson, Appellees.
    No. 77-1386.
    District Court of Appeal of Florida, Third District.
    Feb. 7, 1978.

      Robert L. Shevin, Atty. Gen., and Joseph W. Lawrence, II, Asst. Atty. Gen., for appellants.
    Philip Carlton, Jr., Miami, Ronald K. Smith, Coral Gables, and Robert F. Tacher, North Miami Beach, Mac Mermell, Coral Gables, for appellees.
    Before KEHOE, J., and BOYD, JOSEPH A., Jr., and CHARLES CARROLL (Ret.), Associate Judges.
   KEHOE, Judge.

Appellants, defendants below, bring this interlocutory appeal from two orders of the trial court dated May 24 and June 6, 1977, entered after it had previously entered an order dated May 4, 1977 transferring venue of the cause to another judicial circuit. We have concluded that the orders appealed were improperly entered; therefore, they are vacated.

Once a trial court transfers venue of an action to another court, the transferring court may not then rule upon the merits of the cause, although it may continue to control certain continuing and procedural matters of the action until jurisdiction is effectively vested in the transferee court. Ven-Fuel v. Jacksonville Electric Authority, 332 So.2d 81 (Fla.3d DCA 1976). In the instant case, we have reviewed the orders appealed and have concluded that each of them, in their totality, pertain to the merits of the cause. Therefore, pursuant to the principles set forth in Ven-Fuel, supra, we are of the opinion that the orders appealed should be vacated and the cause remanded for further proceedings not inconsistent with this opinion. We note that in Smith v. Florida Elections Commission, 351 So.2d 424 (Fla.3d DCA 1977), we affirmed the May 4, 1977, order of the Dade County Circuit Court, Eleventh Judicial Circuit, transferring venue of the cause to the Second Judicial Circuit in and for Tallahassee, Florida.

Vacated and remanded.


author: ERVIN, Judge.

text:
    The HERTZ CORPORATION and Royal Indemnity Company, Appellants, v. Willie R. PUGH, Appellee.
    No. EE-273.
    District Court of Appeal of Florida, First District.
    Feb. 8, 1978.

      Julian Bennett of Welch, Hilton, Bennett, Logue & Burke, Panama City, for appellants.
    Richard Smoak of Isler, Higby, Brown, Smoak & Watson, Panama City, for appel-lee.
   ERVIN, Judge.

Appellants appeal a summary final judgment holding that a liability insurance contract naming both Hertz and Wilson & Toomer as insureds, procured by Hertz’s lessee, Toomer, did not show an intention to indemnify or insure Hertz for injuries which occurred to Willie R. Pugh caused by the sole negligence of Hertz. We reverse.

On November 10, 1966, Hertz executed a truck lease service agreement with Toomer in which Hertz agreed to lease to Toomer a number of trucks. Hertz provided at its own expense all maintenance, repair and inspection of the vehicles. Toomer agreed, at its sole cost, to provide an automobile liability insurance policy naming Hertz and Toomer as insureds with respect to the ownership, maintenance and use of the ve-hides, which insurance was designed as primary insurance with bodily injury limits of $100,000 per person and $300,000 per accident. Following the agreement, Toomer acquired an automobile liability insurance policy from Continental Insurance Company complying with the terms of the lease. During the period of the policy, on March 28, 1968, Willie Ray Pugh, a ranch worker, was injured when a portion of a universal joint in a leased truck, received 10-22 days prior to the accident, flew out and struck Pugh’s leg while he was disengaging a trailer.

Pugh sued Hertz, Toomer and General Motors Corporation on various theories of negligence and breach of warranty. Hertz filed a cross-claim against Continental seeking indemnity from it up to the maximum limit available should Pugh prevail against Hertz on his claim. Later the three defendants entered into a stipulation agreeing to pay Pugh the total sum of $50,000, each contributing $16,666.67, reserving for trial the ultimate responsibility between them for the payment of $50,000. All questions concerning coverage of the two insurance policies involving Hertz’s insurer Royal and Toomer’s insurer Continental were reserved for determination following trial of the above issues. The jury found General Motors and Toomer not guilty of negligence or breach of warranty but found Hertz solely responsible for the legal cause of injury to Pugh due to the negligent maintenance of the vehicle. Judgment was subsequently entered against Hertz in favor of Toomer and General Motors Corporation in the sum of $16,666.67 each, which was subsequently paid by Hertz. Hertz filed a motion for summary judgment against Continental on its cross-claim, and the trial judge denied the motion and dismissed the cross-claim.

In reaching its decision denying summary judgment, the court relied upon University Plaza Shopping Center, Inc. v. Stewart, 272 So.2d 507 (Fla.1973). We do not feel that the Stewart case is dispositive of the issues before us. There University Plaza Shopping Center leased a building in its shopping center to a tenant who used the premises to operate a barber shop. During the lease period a gas line exploded underneath the shop causing fatal injuries to a barber. The barber’s widow sued the landlord for wrongful death alleging that it had negligently installed or maintained a gas line under the shop. Later the landlord filed a third party complaint against the tenant and his insurer. The landlord based his action upon a lease agreement containing an indemnity provision in which the tenant agreed to indemnify the landlord against any claims for personal injury or loss of life on the premises. He also agreed to keep in full force during the term of the lease a comprehensive general liability insurance policy. The evidence showed that the gas line was under, but not part of, the leased premises. Moreover the tenant failed to procure liability insurance insuring the landlord, but instead obtained insurance only for himself.

The court, in reviewing contrasting opinions of Florida courts and the Fifth Circuit Court of Appeals interpreting Florida law, concluded that a contract of indemnity could not be construed to indemnify against losses resulting from the indemnitee’s solely negligent acts unless such intention was expressed in clear and unequivocal terms. The court had for its primary consideration a clause generally requiring the tenant to indemnify the landlord “from and against any and all claims for any personal injury or loss of life in and about the demised premises.”

The lease agreement before us does not have the fatal ambiguity which existed in Stewart, and we disagree with the lower court’s construction of it as failing to show an intention to indemnify or insure Hertz for its sole negligence. The lease agreement clearly provided that Toomer would provide a policy of automobile liability insurance insuring both Hertz and Toomer and their employees as to liability resulting from the ownership, maintenance, use or operation of vehicles furnished by Hertz to Toomer. True, the concluding sentence of Section 11 of the lease agreement provided generally that Toomer would indemnify and hold harmless Hertz from and against all loss, liability and expense in excess of the liability insurance provided for therein. This sentence only applied to additional insurance above the primary insurance afforded. Even if the last sentence did not meet the specificity required by the Stewart decision, such clause has no application to Hertz’s claim for indemnity because it sought no indemnity in excess of the primary coverage furnished by Continental.

The liability insurance policy, acquired by Toomer, provided the same limits of liability as required by the lease agreement. Continental was specifically obligated to pay the named insureds, Hertz and Toomer, all sums which they were obligated to pay because of damages resulting from bodily injury caused by an occurrence arising out of the ownership, maintenance or use of any automobile.

Continental’s argument that Royal Indemnity — not Continental — provides primary liability insurance to Hertz is unavailing. The Royal Indemnity policy excluded coverage to Hertz (a) when other insurance was available to Hertz, and (b) when any person leased a vehicle from Hertz; if the lease required Hertz to obtain liability insurance, then coverage under the policy was afforded. The lease did not require Hertz to do so. This was the obligation of Toomer. Both the terms of the lease and the policy are clear. Hertz was a named insured. Its liability to Pugh arose from its negligent maintenance of the vehicle — a risk specifically covered by the policy. If the language in an insurance contract is clear and unambiguous, there is no necessity for construction and the language will be accorded its natural meaning. Pafford v. Standard Life Ins. Co. of Indiana, 52 So.2d 910 (Fla.1951); Rigel v. National Casualty Co., 76 So.2d 285 (Fla.1954). Hertz was entitled to be indemnified by Continental, its insurer, for the amount it paid; the amount being within the maximum limits of the coverage available.

The lower court also concluded that the insurance issued by Continental did not show an intent to insure Hertz for its own negligence which occurred before delivery of the vehicle to Toomer. Again we must disagree. While the evidence was conflicting as to whether Hertz negligently maintained the truck before its delivery to Toomer, still it was undisputed that the accident occurred after delivery and within the policy period. Consequently there was no genuine issue of a material fact which precluded Hertz from recovering summary judgment. Under coverage “C”, pertaining to bodily injury liability, Continental was obligated to pay Hertz all sums which Hertz was legally obligated to pay as damages because of bodily injury caused by an occurrence arising from the ownership, maintenance or use of the vehicle. The policy contained no specific exclusion excusing Continental from indemnity to Hertz caused by the latter’s negligent maintenance of the vehicle which occurred before delivery. It is the time of the occurrence of the accident, within the meaning of the policy of liability, which is generally deemed to be the time when the complaining party is damaged, not when the wrongful act is - committed. New Amsterdam Casualty Co. v. Addison, 169 So.2d 877, 886 (Fla. 2nd DCA 1964). Compare Nixon v. United States Fidelity and Guaranty Co., 290 So.2d 26 (Fla.1973) in which the court stated that a policy which provided coverage for “all operations” covered the contractor’s liability for the collapse of a wall even though the policy contained a clause which excluded from coverage completed operations hazards.

The lower court also dismissed Hertz’s cross-claim against Continental which included a demand for attorney fees and costs occasioned by Continental’s refusal to defend Hertz against Pugh’s complaint. This point however was not argued at the hearing on motion for summary judgment. Hertz may not raise it now for the first time on appeal.

The lower court’s order denying Hertz’s motion for summary judgment is REVERSED.

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


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

text:
    In re the ESTATE of James Elbert CHURCHWELL, a/k/a J. E. Churchwell, Deceased. Clara WHITE and Doris Roberts, Appellants, v. H. Paul CHURCHWELL, Appellee.
    No. EE-304.
    District Court of Appeal of Florida, First District.
    Feb. 8, 1978.
    John F. Daniel and Alan Thompson of Sale, Bryant, Daniel & Thompson, Panama City, for appellants.
    Bill R. Hutto of Syfrett, Hutto & Paul, Panama City, for appellee.
   MILLS, Acting Chief Judge.

We are called upon to determine whether the residuary and general beneficiaries under a will are required to compensate the specific beneficiaries for loss of one-third of their specific bequests due to election of dower by the widow. The trial court answered affirmatively on authority of In re Malone’s Estate, 54 So.2d 248 (Fla.1951), and Section 734.06, Florida Statutes (1971). We reverse.

James Elbert Churchwell died on 30 June 1972. His will was admitted to probate on 6 July 1972. The will specifically left nothing to his widow but recognized that she could elect to receive dower. The will gave certain corporate stock to H. Paul Church-well (appellee) and others, gave specific sums of money to Doris Roberts (appellant) and others, and made Clara White (appellant) and others residuary beneficiaries.

The widow elected to take dower and pursuant to agreement by all of the benefi-eiaries the court assigned and distributed to her one-third of all the land, cash and personal property in the estate. As a result, the appellee lost one-third of the specific bequest made to him and he petitioned the court to distribute to him from the residuary estate sufficient assets to compensate him for the loss. The court granted the petition subject to a subsequent hearing to determine the amount and source of contributions to be made to appellee.

Whether a residuary or general beneficiary should compensate a specific beneficiary for loss caused by an election of dower depends on the intention of the testator. 36 A.L.R.2d 325.

The testator Churchwell intentionally made no provision for his wife in his will but specifically stated that he was aware that she could elect to receive dower. It is presumed that he knew that if she elected to take dower she would receive one-third of all the land, money and personal property left by the estate. Nevertheless, with this knowledge he manifested no intention that the specific gifts made by him were to be paid in full in preference to the general gifts and the gifts provided for in the residuary clause. We have no authority to remake the decedent’s will. We have no authority to take property from one beneficiary and give it to another. Particularly is this true where the loss complained of by appellee was brought about by the widow’s election to take dower, a loss for which appellants were in no way responsible.

It is difficult to perceive a theory of equity which would hold a residuary beneficiary liable for such a loss.

The election by a widow to take dower does not affect the provisions of the will as to the portions of the estate left after the widow’s dower has been set apart. The order of priority among the beneficiaries will remain as though the widow did not elect to take dower. Murphy v. Murphy, 125 Fla. 855, 170 So. 856 (1936).

If we were to require the residuary and general beneficiaries to compensate the specific beneficiaries for the losses they sustained due to the widow’s election of dower, the residuary and general estates left by the will would be destroyed and the intent of the testator frustrated. This is so because after distributing dower to the widow, distributing and paying the specific bequests in full, and paying taxes, costs and attorneys’ fees the assets of the estate will be exhausted.

The trial court misconstrued the Malone case. It merely holds that where a widow’s election of dower diminishes the shares of other beneficiaries under the will, a gift made to the widow under the will will be appropriated for the benefit of the disappointed beneficiaries. See also 36 A.L.R.2d 306. No such situation exists in the case before us.

The trial court misapplied Section 734.06. The abatement provisions are not applicable where a widow takes dower. They are applicable only in the instances specified in Section 734.06 and where the assets of the testate estate are insufficient to make full payment. The contribution provisions are not applicable here because the assignment of dower is not a sale or taking by the personal representative nor do the provisions apply to other than one class of beneficiaries. In this case, three classes of beneficiaries are involved.

Although the legislature abolished dower in 1975, it was in effect at the time of the testator’s death.

The order appealed is reversed and this case is remanded to the trial court for further action consistent with the views expressed herein.

BOOTH, J., concurs.

ERVIN, J., specially concurs.

ERVIN, Judge,

specially concurring.

I concur that this cause should be reversed but for different reasons than stated in this court’s opinion. I agree that Section 734.06, Florida Statutes (1973), is not applicable for the reasons stated in the majority opinion, however the opinion has overlooked the majority rule that when, as a result of a spouse’s election to take against the will, it is necessary for other beneficiaries to contribute in order to make up the elective share, the residuary estate is first liable to contribute to such share. See Annot., 36 A.L.R.2d 291, 299 (1954).

The cases cited in the annotation generally state when specific devises are made, such indicate a preference to the beneficiaries, unless it clearly appears from the will that the residuary beneficiaries are preferred. A preference to the specific devi-sees may be infered here. After making certain devises to specifically named persons, the first devise being 27 shares of stock in Long Beach Resort, Inc., to appel-lee, the testator next directed his executors pay the costs of the administration, as well as all estate and inheritance taxes. Finally he requested the residue and remainder of his estate be bequeathed to certain residuary beneficiaries, including appellants. In my judgment, the testator’s expression that the specific devisees be distributed their shares before even the payment of costs and taxes implies a preference over the residuary beneficiaries.

We are not confronted with an issue where a specific devisee is forced by court order to contribute to the elective share; rather the question is whether, if an election taken against a will causes loss to other beneficiaries, the specific devisee so harmed has a right to require the residuary beneficiary to compensate him for the loss. I see no reason to depart from the general rule had appellee’s specific devise been diminished only by court order. Here however, subsequent to the widow’s election to take dower, the court entered its order assigning dower pursuant to an agreement between the co-executors, one of whom is the appel-lee, who assigned to the widow one third of the estate by setting off to her one third all lands, one third all cash, one third of all other personal property pro rata, having the effect of a ratable contribution by all beneficiaries to the satisfaction of the widow’s dower. No objection was made to the agreement nor to the order setting aside dower. The order setting aside dower was not appealed. Later appellee filed his petition requesting the court distribute to him from the residuary assets of the estate sufficient assets to compensate him for the fair market value of the shares devised to him.

Had appellee not entered into an agreement allowing a ratable reduction from his portion of the estate, I would affirm; however I feel appellee is now bound by his prior agreement and is precluded from seeking distribution from the residual assets of the estate to compensate him for the loss.


text:
    James Swayne PRITCHETT, Appellant, v. George S. KERR, Appellee.
    No. GG-315.
    District Court of Appeal of Florida, First District.
    Feb. 8, 1978.

      Stanley Bruce Powell of Douglass, Powell & Davey, Tallahassee, for appellant.
    E. Harper Field and Albert W. Whitaker of Keen, O’Kelley & Spitz, Tallahassee and Thomas T. Remington of Smith, Grimsley, Barron & Remington, Fort Walton Beach, for appellee.
   PER CURIAM.

This cause is before the Court on appeal from the Order of the trial court dismissing the complaint of Plaintiff as barred by the Statute of Limitations.

Plaintiff/Appellant, a Georgia resident, filed a medical malpractice action against Defendant/Appellee, a Florida doctor in a federal district court in Georgia, shortly before the running of the Florida limitations period for that claim. Subsequently, the case was transferred to the Federal District Court for the Northern District of Florida. Appellee was served with the complaint, which he did not timely answer. At this point a dispute arose between counsel for Plaintiff and counsel representing Defendant and his insurer as to the necessity of medical mediation proceedings under Florida Statute § 768.44, prior to suit in the federal court, and whether failure to seek medical mediation could divest a federal court of diversity jurisdiction in a Florida malpractice suit. Opposing counsel entered into a written stipulation which recited the above facts and stipulated:.

“Plaintiff and Defendant agree to a remand of the above-captioned case by the Federal District Court for a. hearing before the Florida Medical Liability Mediation Panel ...
In the event the Federal court declines ,to remand this case but dismisses same, Defendant agrees to waive the statute, of limitations defense so long as Plaintiff refiles his claim with the Florida Medical Liability Mediation Panel within twenty-one (21) days from the entry of the Court’s written order .
Plaintiff agrees to waive his right to pursue a default judgment against Defendant in the Federal District Court, Northern Division . . .”

The federal judge dismissed the case in accordance with the terms of the stipulation and Appellant refiled the case in state court. Appellee then obtained personal counsel and moved to dismiss the state action on the basis of the running of the statute of limitations. The trial court in the order herein sought to be reviewed granted the motion, stating that the stipulation, could not bar the limitations defense because this would “deprive defendant of property rights without due process . .”

The trial court erred in failing to give effect to the agreement and stipulation of the parties. The statute of limitations is an affirmative defense which can be waived. Written stipulations between. counsel supported by valuable consideration are valid and binding on the parties. Gunn Plumbing, Inc. v. Dania Bank, 252 So.2d 1 (Fla.1971); Rule 1.030(d), F.R.C.P.; 2 Florida Jurisprudence Agreed Cases & Stipulations §§ 7 and 8; See, Annot: 43 A.L.R.3d 756. In this case, Appellee obtained the transfer of the suit to the forum he preferred, the undisputed right to mediation, and Appellant’s waiver of any right to seek a default in the federal suit. In return Appel-lee waived the right to assert the statute of limitations as a defense. Appellee has obtained the benefits of Appellant’s performance and is clearly bound by his agreement.

Accordingly, the judgment below is REVERSED and the case REMANDED for further proceedings consistent herewith.

IT IS SO ORDERED.

SMITH, Acting C. J., and- ERVIN and BOOTH, JJ., concur.

      . Florida Statutes, § 95.11 (2)(b).

      . A federal court in Florida has since answered the question affirmatively in Wood v. Hernandez (N.D.Fla.), Case # 76-81, Opinion filed August 31, 1977.


text:
    Francisco CHURRUCA et al., Appellants, v. MIAMI JAI-ALAI, INC., et al., Appellees.
    No. 75-838.
    District Court of Appeal of Florida, Third District.
    Feb. 8, 1978.
    Heller & Kaplan, Miami, for appellants.
    Frates, Floyd, Pearson, Stewart, Proenza & Richman and Ira H. Leesfield, William R. Dawes, Miami, Subin, Shams, Rosenbluth & Moran, Orlando, Joseph M. Murasko, Fern Park, J. Riley Davis, Tallahassee, Robert L. Shevin, Atty. Gen., for appellees.
    Before HAVERFIELD, C. J., and HEN-DRY and NATHAN, JJ.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on September 14, 1976 (338 So.2d 228) affirming the order of the Circuit Court of Dade County, Florida in the above styled cause, and

WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida by its opinion and judgment filed November 17, 1977, 353 So.2d 547 and mandate now lodged in this court quashed a portion of this court’s judgment,

NOW, THEREFORE, It is Ordered that the mandate of this court issued in this cause on November 2, 1976 is withdrawn, the opinion and judgment of this court filed September 14, 1976 insofar as it is in conflict with or fails to conform to the views expressed in the said opinion and judgment of the Supreme Court of Florida aforesaid is withdrawn and vacated, and the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of' this court, and the cause remanded to the trial court for further proceedings not inconsistent with the opinion and judgment of the Supreme Court of Florida. Costs allowed shall be taxed in the Circuit Court (Rulé 3.16(b), Florida Appellate Rules).


text:
    STATE of Florida ex rel. ESCAMBIA COUNTY, Petitioner, v. Jack BEHR, in his official capacity as Public Defender for the First Judicial Circuit of Florida, Respondent.
    No. GG-204.
    District Court of Appeal of Florida, First District.
    Feb. 9, 1978.
    Rehearing Denied Feb. 24, 1978.

      John W. Fleming, Fort Lauderdale, for petitioner.
    Robert L. Shevin, Atty. Gen., Joseph W. Lawrence, II, Asst. Atty. Gen., for respondent.
   ERVIN, Judge.

The Public Defender for the First Judicial Circuit of Florida, in. six non-capital felony cases, filed motions to withdraw, citing excessive caseload and his inability to render effective representation on behalf of the defendants. Petitioner sought writ of mandamus to compel the Public Defender to represent the defendants in the six eases. The writ was denied, and the motions to withdraw were granted. Petitioner now seeks writ of certiorari before this court, contending the Public Defender may not shirk his statutory duties by withdrawing as counsel.

Section 27.51(1), Florida Statutes (1975), requiring “. . . the public defender . . . represent, without additional compensation as provided in S. 925.-035, any person who is deemed to be insolvent, as provided in this act, who is under arrest for, or is charged with, a felony must be read in pari materia with other relevant statutes and standards. Section 27.53(2) allows the trial court the discretion to appoint as special assistant public defender any member of the Bar to represent insolvent defendants. Canon 6 of the Code of Professional Responsibility provides generally that a lawyer should represent a client competently. The corresponding disciplinary rule, 6-101, requires “a lawyer shall not . . . handle a legal matter without preparation adequate in the circumstances.” Ethical Consideration 2-30 provides, “Employment shall not be accepted by a lawyer when he is unable to render competent service. . . . ”

The record on appeal reveals the caseload of the Public Defender’s office far exceeds the workloads recommended by three commissions — The National Advisory Commission on Criminal Justice Standards and Goals, the National Legal Aid and Defender Association, and the Florida Governor’s Commission. See, for example, Florida’s Criminal Justice Standards & Goals: Final Report, 392-3 (1976). Moreover, the trial judge has the opportunity to observe directly the adequacy of representation by the public defender’s office and to determine whether the workload is excessive. Section 27.51 cannot be construed mechanically, in all circumstances, to mandate the appointment of the public defender if so doing would compromise the effectiveness of his representation. Both ethical considerations and professional standards dictate otherwise.

The writ is DENIED.

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


author: PER CURIAM. BOYER, Acting Chief Judge,

text:
    CITY OF NEW SMYRNA BEACH et al., Appellants, v. H. George CARRISON, Appellee.
    No. GG-143.
    District Court of Appeal of Florida, First District.
    Feb. 13, 1978.
    Charles A. Hall, New Smyrna Beach, for appellants.
    William L. Durden and George E. Ridge of Kent, Sears, Durden & Kent, Jacksonville, for appellee.
   PER CURIAM.

AFFIRMED.

MILLS and ERVIN, JJ., concur.

BOYER, Acting C. J., concurs specially.

BOYER, Acting Chief Judge,

concurring specially.

I concur that the learned trial judge correctly found that the ordinance sought to be imposed by appellant is unconstitutional as applied to appellee’s property. The facts of this case and the law as applied by the trial judge are squarely in line with Davis v. Sails, 318 So.2d 214 (Fla. 1st DCA 1975). When a zoning restriction becomes unreasonable or arbitrary as applied to a particular property then that restriction is unconstitutional in its application although the restriction, generally, may not be so defective. Davis v. Sails, supra; Watson v. Mayflower Property, Inc., 177 So.2d 355 (Fla. 2nd DCA 1965) and Kugel v. City of Miami Beach, 206 So.2d 282 (Fla. 3rd DCA 1968).


text:
    TREESHORE, INC., Appellant, v. BASIC ASPHALT AND CONSTRUCTION CORPORATION, etc., Ward Ridge Construction Company, Inc. and Parliament Life Insurance Company, Appellees.
    No. GG-378.
    District Court of Appeal of Florida, First District.
    Feb. 13, 1978.
    Aldo Icardi, Winter Park, for appellant.
    R. L. Russell of Van Den Berg, Gay & Burke, Orlando, for appellees.
   PER CURIAM.

AFFIRMED. Palatka Housing Authority v. Betts, 349 So.2d 784 (Fla. 1st DCA 1977).

MILLS and ERVIN, JJ., concur.

BOYER, Acting C. J., concurs specially.

BOYER, Acting Chief Judge,

concurring specially.

In affirming, my brethren rest their decision on a recent opinion of this court, Palat ka Housing Authority v. Betts, 349 So.2d 784 (Fla. 1st DCA 1977). I must reluctantly concur that such case is controlling. However, as I stated in a dissent in that case, in my view that decision is incorrect and certainly unfair and unjust. I find the same to be applicable sub judice. However, in the interest of stare decisis and in deference to a prior opinion rendered by a majority of a panel of this court, I have no alternative but to concur in affirmance.


text:
    Vincent Carnell MYERS, Appellant, v. STATE of Florida, Appellee.
    No. HH-47.
    District Court of Appeal of Florida, First District.
    Feb. 13, 1978.
    Michael J. Minerva, Public Defender, and Theodore E. Mack, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for appellee.
   PER CURIAM.

This cause is before the Court on appeal from the judgment of the Circuit Court, Duval County, adjudicating Defendant guilty after trial by jury of robbery by use of a firearm and sentencing him to thirty (30) years imprisonment. The public defender has filed an “Anders’ Brief” and by Order of this Court, Defendant was allowed additional time within which to file such brief on his own behalf as he deemed advisable.

Review of the briefs and the transcript and record of the proceedings below reveal no error.

Accordingly, judgment below is AFFIRMED.

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

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


text:
    Jerry FEARON, Appellant, v. STATE of Florida, Appellee.
    No. HH-66.
    District Court of Appeal of Florida, First District.
    Feb. 13, 1979.
    Rehearing Denied Feb. 28, 1978.
    Michael J. Minerva, Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Wallace E. Albritton, Asst. Atty. Gen., for ap-pellee.
   PER CURIAM.

Appellant seeks review of the judgment below, entered on a plea of guilty to robbery and, imposing a twenty-five (25) year sentence.

The public defender has filed a brief reviewing any possible objections by Defendant to the proceedings below, with the conclusion that there was no reversible error. On motion of the public defender, this Court has allowed Defendant additional time within which to file a brief in his own behalf as he may deem advisable. The time has now expired without any such brief being filed. We have nevertheless reviewed the record and find no error.

Accordingly, the judgment is AFFIRMED.

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