author: PEARSON, Judge.

text:
    Jose A. CASAS, Appellant, v. Rafael ROSELL et al., Appellees.
    Nos. 77-755 and 77-757.
    District Court of Appeal of Florida, Third District.
    May 9, 1978.
    Rehearing Denied June 28, 1978.
    McCormick, Bedford & Backmeyer, Miami, for appellant.
    Taylor, Brion, Buker & Greene and Ar-naldo Velez, Miami, for appellees.
    Before PEARSON and HUBBART, JJ., and CRAWFORD, GRADY L. (Ret.), Associate Judge.
   PEARSON, Judge.

The plaintiff, Jose A. Casas, appeals a final judgment for defendants Rafael Ro-sell and Catalina Rosell. A second appeal by Casas is taken from an order denying post-trial motions. The appeals have been consolidated in this court.

Count one of the two count complaint alleged that defendant Rafael Rosell induced plaintiff Casas to advance to Rosell the purchase price of Rosell’s residence on the assurance that the Rosells would obtain a mortgage and that Rosell would repay to Casas the purchase price with the mortgage proceeds and the profits from a joint enterprise between Casas and Rosell. It was alleged that Rosell did not repay any of the purchase price. Count two alleged that Ca-sas provided the purchase money for an apartment house but that the deed was taken in the names of the Rosells. The prayer for relief in each instance was for the declaration of a “constructive or resulting trust” and additional equitable relief. Count two, also prayed for an accounting.

The Rosells filed an answer and affirmative defenses. The evidence at trial upon which the court may have based its judgment is that Casas and Rosell agreed to form a corporation to purchase and sell real estate. Rosell was a stockholder and was to work for the corporation. Rents were collected by the parties on properties owned by the corporation. Casas testified that he advanced $27,266.49 used to purchase the property described in count one of the complaint. The Rosells testified to a much smaller amount and claimed the money was a loan. Casas provided substantially all of the money used to purchase the property described in count two of the complaint. Rosell testified that the money to repay Casas was to come from their joint activities and that he, Rosell, was wrongfully excluded from those activities. With regard to the total amount of money due to Casas, Rosell admitted that he owed Casas a substantial amount, but apparently had no idea how much Casas was due.

On his appeal from the final judgment, the plaintiff (Casas) urges two points: (1) that the denial of equitable relief was against the manifest weight of the evidence; and (2) that the trial court erred in failing to enter a money judgment for the plaintiff. On the appeal from the denial of his post-trial motions, the plaintiff urges that the trial court abused its discretion in denying his motion to present additional evidence.

We are unable to hold, as a matter of law, that the plaintiff was entitled to a constructive or a resulting trust. See Highland Lakes, Inc. v. Art Present Real Estate, Inc., 147 So.2d 348 (Fla.3d DCA 1962); King v. King, 111 So.2d 33 (Fla.1959); and Davis v. Davis, 98 So.2d 777 (Fla.1957). See also 76 Am.Jur.2d Trusts § 212.

Plaintiff’s second point upon appeal of the final judgment is that the trial court erred in failing to enter a money judgment for him upon a denial of equitable relief. The complaint did not pray for a money judgment although with regard to the advances for the apartment house (count two), Casas did pray for an accounting. During the pendency of the cause, eight months before trial, the defendants filed an “Offer of Judgment Pursuant to Rule 1.442,” which recited an offer of a money judgment of $8,200, with interest, for the money advanced to purchase the defendants’ residence (count one).

It appears that a substantial injustice has been achieved by the defendants in that they have received the legal title free and clear to two pieces of real property for which they admit that the plaintiff has advanced substantially most, if not all, of the purchase price. The final judgment does not reveal the basis for the trial judge’s decision and its res judicata effect is in no way limited. We hold that the trial judge abused his discretion in failing to proceed to a determination of the sum of money due to the plaintiff and in failing to enter a judgment for the plaintiff for that amount. See Davidson v. Lely Estates, Inc., 330 So.2d 528, 530-531 (Fla.2d DCA 1976); and Shirley v. Lake Butler Corporation, 123 So.2d 267, 272 (Fla.2d DCA 1960).

In considering the point raised in the appeal from the denial of the post-trial motions, additional portions of the record must be reviewed. At the close of defendant’s case, defendant put into evidence a quit claim deed recorded prior to the institution of the action wherein the plaintiff conveyed to one Aurelio Chevez his interest in the property which is the subject of count one. Plaintiff did not object to the admission of the deed and rested his case without rebuttal testimony or a motion for continuance on the ground of surprise. After judgment, the plaintiff moved to reopen the case to show that the recorded deed was not delivered. In support of the motion, plaintiff filed two affidavits, one by himself as grantor and one by the alleged grantee. The motion was denied.

Plaintiff concedes that a trial judge has a wide discretion in permitting an amendment of the pleadings, see Houston Texas Gas & Oil Corporation v. Hoeffner, 132 So.2d 38 (Fla.2d DCA 1961), but argues that there was an abuse of discretion in the present instance because (1) the defendants did not plead lack of capacity of the plaintiff to sue, (2) the trial judge allowed the defendants to amend their answer after trial to include this defense and (3) the plaintiff was surprised by the evidence. If plaintiff’s motion had been made prior to judgment, rather than three months thereafter, we would be inclined to plaintiff’s view. However, because of the delay and the fact that the motion appears as an afterthought or reassessment of the case, we cannot find error. See Pinsker v. Filmore Investors Corp., 243 So.2d 165 (Fla.3d DCA 1971); Cohen v. Landow, 242 So.2d 801 (Fla.3d DCA 1971); and Houston Texas Gas & Oil Corporation v. Hoeffner, supra.

Accordingly, the judgment is affirmed in part, reversed in part and remanded. The judgment is affirmed with regard to the denial of a constructive or resulting trust and with regard to the order denying plaintiff’s motion to reopen the case for further testimony on the delivery of the quit claim deed. The judgment is reversed in all other particulars. The cause is remanded for such further proceedings as the trial judge may find proper, including, if necessary, an accounting between the parties to determine the amount due the plaintiff and the entry of a judgment for the plaintiff for that amount.

Affirmed in part; reversed in part and remanded.

      . * * * * * *
      “Q. (by Mr. Morales) How much money do you owe Mr. Casas at this time?
      A. Some thirty-seven, forty-one, forty-two thousand dollars.
      Q. In your interrogatory you state that on the house property you owed approximately $8,000 and on the Hialeah property about $33,-000. Is that still correct?
      A. More or less. More or less around there.
      MR. MORALES: Since he says ‘more or less,’ your Honor, I will offer the interrogatory in evidence, No. 32, in which he said approximately $8,000, but $33,000 on the Hialeah property.
      THE COURT: So it’s forty-one or forty-two thousand.
      MR. MORALES: Yes.”

      . The deed contained the following provision:
      “The purpose of this conveyance is to transfer to the grantee all the rights of the grantor in the above premises acquired by the grant- or when he purchased the above property in the name of Rafael Rosell, it being intended that Rosell was to hold the property in trust for the grantor.”


source: Caselaw Access Project

author: PER CURIAM. PER CURIAM.

license: Public Domain

text:
    Ulysses R. KELLY, Jr., Appellant, v. STATE of Florida, Appellee.
    No. HH-260.
    District Court of Appeal of Florida, First District.
    May 16, 1978.
    Rehearing Denied June 26, 1978.

      Michael J. Minerva, Public Defender, and Janice G. Scott, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Patti Englander and George R. Georgieff, Asst. Attys. Gen., for appellee.
   PER CURIAM.

Appellant was convicted of sexual battery contrary to F.S. 794.011(3), and was sentenced to twenty years imprisonment with credit for 171 days jail time. Notice of appeal of the judgment and sentence was filed. Subsequently, pursuant to the State’s motion to correct an illegal sentence pursuant to Fla.R.Crim.P. 3.800, the sentence of twenty years was set aside as contrary to F.S. 775.082(3)(a), and a sentence of thirty years with credit for 171 days in the county jail awaiting disposition plus credit for all time served to date was imposed.

Since notice of appeal vested exclusive jurisdiction in this court, (State ex rel. Faircloth v. District Court of Appeal, Third District, 187 So.2d 890 (Fla.1966)) the trial court did not have jurisdiction to correct the initial sentence. Although the sentencing alternatives under sections 948.01 and 959.115 were available (Roberts v. State, 335 So.2d 285 (Fla.1976); Berezovsky v. State, 350 So.2d 80 (Fla.1977)), the twenty year sentence was illegal. Therefore, the judgment is affirmed but the cause is remanded for imposition of sentence in accordance with law.

IT IS SO ORDERED.

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

ON MOTION FOR REHEARING

PER CURIAM.

By motion for rehearing appellant urges that we overlooked and failed to consider his contention that certain testimony adduced at the trial constituted an impermissible comment on his constitutional right to remain silent, citing Bennett v. State, 316 So.2d 41 (Fla.1976) and Shannon v. State, 320 So.2d 855 (Fla. 1st DCA 1975). We have not overlooked nor failed to consider that point, but our review of the record reveals it to be without merit.

Petition for rehearing is denied.

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


author: LETTS, Judge. MOORE, Judge,

text:
    Elizabeth K. McCLOSKEY, Appellant, v. Thomas D. McCLOSKEY, Appellee.
    No. 76-826.
    District Court of Appeal of Florida, Fourth District.
    May 16, 1978.
    Rehearing Denied June 28, 1978.

      Edwin P. Rome and Norman Perlberger, of Blank, Rome, Klaus & Comisky, Philadelphia, Pa., and William B. Killian and Joseph P. Klock, Jr., of Steel, Hector & Davis, Miami, for appellant.
    Joseph D. Farish, Jr., of Farish & Farish, West Palm Beach, and Wolf, Block, Schorr & Solis-Cohen, Philadelphia, Pa., for appel-lee.
   LETTS, Judge.

The wife here appeals a trial court’s award of $4,500 per month in permanent periodic alimony. We reverse.

This case involves a 30 year marriage, 5 children, a wife never employed and forever unemployable among other reasons, because of a “hysterical personality subject to recurrent episodes of psychotic depressions.” Her husband had an admitted net worth of over 18 million dollars in June 1974. He has interests in over fifty business enterprises, controls the main family corporation and serves as its chief executive officer receiving generous expense allowances.

To borrow a phrase from a recent case, “the style of living which these parties accustomed themselves to, boggles the mind,” Storer v. Storer, 353 So.2d 152 (Fla. 3rd DCA 1977). Living in a $750,000 home requiring an annual maintenance cost of $58,000, provides but a backdrop to set the stage for a retinue of servants, chauffeured limousines, chartered planes, yachts, memberships in fabulous clubs, inter-continental travel and a weekly flower bill of $200. Added to this, we find that the wife, at times, received as much as $4,000 per month “walking around money,” a clothing allowance of $25,000 per year and charge accounts “everywhere.” She often hosted lavish, catered parties for 250 people, came to a Palm Beach apartment in the winter and enjoyed yet a third home for summer use, on the ocean in Stone Harbor, New Jersey.

During 1973 and 1974, the husband deposited over 2 million dollars of non-borrowed money in his checking account and his largest company, of which he is President, made $339,000 in charitable contributions alone. In addition, an $800,000 pledge was made to Notre Dame in 1974 (payable at the rate of $80,000 per year). Mr. McCloskey also owns a professional soccer team.

By contrast, the wife has virtually no income and, a net worth consisting of jewelry worth somewhere between $2-300,000, plus $150,000 worth of stock in a loan company, from which she gets no income. She also has a one-third share, in the husband’s main corporation, valued at $1.6 million. This latter holding was given to the wife, not by the husband, but by her now deceased father-in-law. However, she receives no income from it, cannot sell or mortgage it, and it is controlled by a voting trust.

We begin by holding that we can find no abuse of discretion in the chancellor’s finding that the Husband is a resident of Florida. There is a plethora of conflicting evidence in the record and we would simply be substituting our judgment for that of the trier of the fact which would be inappropriate. Shaw v. Shaw, 334 So.2d 13 (Fla.1976).

We hold, however, that the trial judge erred when he included, in his consideration of the wife’s net worth, a possible future inheritance. See Traylor v. Traylor, 214 So.2d 15 (Fla. 1st DCA 1968). Said inheritance is supposed to come to her by will when an elderly aunt dies, but the wife may die first, wills can be re-written, or the aunt may make an inter vivos disposition of the stock. In the event the wife does eventually inherit this asset, and if it is marketable, or income producing, a petition to modify the alimony, because of significantly changed circumstances, may be filed in accordance with the precepts of Wilson v. Wilson, 279 So.2d 893 (Fla. 4th DCA 1973).

We further hold it was not an abuse of discretion for the trial judge to refuse the wife’s attempts to depose her husband on the question of his extra marital adventures. We recognize that in Pro v. Pro, 300 So.2d 288 (Fla. 4th DCA 1974), we held that evidence of adultery is admissible when the amount of alimony to be given may be at issue. It is true that the sums of money a husband spends on the “other woman” may demonstrate financial capabilities that he pretends he does not have. However, in this case, the husband is as rich as Croesus and a veritable harem would have no effect on his ability to pay, or his wife’s concomitant need. See also Linda v. Linda, 352 So.2d 1208 (Fla. 4th DCA 1977).

The permanent alimony award in this case totals $4,500 a month or $54,000 per annum. Pursuant to the final judgment, the permanent alimony starts at $3,500 a month, but as a form of rehabilitative alimony the wife is also given 5 years exclusive possession of the $750,000 house in Philadelphia. It is uncontroverted that this house requires $58,000 a year to maintain it, and this obligation is placed on the husband. As a result, the total support payments for the first 5 years are $100,000 per year, plus child support and payment of 75% of medical bills. At the end of 5 years the wife must give up the house and find her own living quarters at which time the $3,500 permanent award is increased to $4,500 per month to enable her to pay for alternative accommodations. There is no award of lump sum alimony.

Alimony is traditionally predicated on three criteria: (1) the ability of the husband to pay it, (2) the needs of the wife compared to reasonable expectations from her own income, and (3) the standard of living enjoyed by the wife during marriage. Caracristi v. Caracristi, 324 So.2d 634 (Fla. 2nd DCA 1976).

We can easily dispose of the first two criteria in this case. There can be no doubt of the husband’s ability to pay very substantial alimony, and we take note that it is deductible to him on his income tax return. Equally, there is little doubt that the wife has very substantial needs. She is unemployable, old and has virtually no income of her own.

As to the third criteria, the wife, up until the time of the divorce, enjoyed a standard of living comparable only to an oil rich sheik. By contrast, she is now expected to live on $54,000 permanent alimony a year on which she will pay at least $15,000 in income tax. Such a sum, deductible by the husband, will hardly affect his style of living one iota. On the other hand, the same figure, taxable to the wife will change her former life style—most drastically. See McAllister v. McAllister, 345 So.2d 352, 355 (Fla. 4th DCA 1977). The problem, of course, is that $54,000 per year is a vast sum of money by the standards of all Americans with the exception of a favored few. Accordingly, it is not only hard to be sympathetic to the wife, but also difficult to find that a trial judge abused his discretion when the award he made happens to be $15,000 greater than his own salary! Nonetheless, we are of the opinion that the award of permanent alimony in this case was too small under the circumstances. [See Firestone v. Firestone, 263 So.2d 223 (Fla.1972) in which the court found an award of $3,000 per month inadequate from a husband with an already vested, or certain to become vested, net worth in excess of 5 million dollars].

As we did in the McAllister case supra, we point to the fact that the court here, in effect, additionally made an award of rehabilitative alimony in the sum of $58,-000 per annum (the cost of maintaining the house in which the wife is to live for 5 years). We are of the opinion that such an award of rehabilitative alimony was in error. There was not the slightest reason to suppose that the wife’s needs would be any different 5 years later than they were on the day of the final hearing. Accordingly, if she needs the equivalent of $100,000 now, she would also need it 5 years hence. As we said in West v. West, 345 So.2d 756 (Fla. 4th DCA 1977):

Our reading of the record in this cause leads us to conclude that the trial court erred in awarding rehabilitative alimony to the 57 year old wife who had not worked during the 35 year marriage between the parties. There is no evidence in the record which demonstrates the potential or actual capacity for self support by the wife. On authority of Reback v. Reback, 296 So.2d 541 (Fla. 3d DCA 1974); and Yohem v. Yohem, 324 So.2d 160 (Fla. 4th DCA 1975), we reverse the final judgment insofar as the award of rehabilitative alimony is concerned and remand the cause with directions that the trial court enter an award for permanent alimony in such amount as the court shall determine to be appropriate based upon the current needs of the wife and the husband’s ability to pay.

In summation, this is a marriage of long duration, the wife has borne 5 children, the husband has infinite resources from which to pay alimony, the wife needs major support to come even close to maintaining her former standard of living, she is not well, cannot seek employment and finally the award below has caused the wife to suffer a shocking change from prosperity to misfortune while the life style of the husband can continue as before.

Accordingly, we reverse the final judgment, in part, and remand this case so that the trial judge may make a more suitable award of permanent alimony. While so doing, the trial court should receive evidence as to net worth by way of a credible audit. The record is replete with evidence that Mr. McCloskey engages in many forms of, no doubt, legal tax avoidance. By so doing, he ends up with a taxable income that is most surprising in its modesty. However, legal tax avoidance and alimony avoidance involve different criteria. Ability to pay alimony is the stated test in a host of cases (Firestone, supra), and it is absurd to suppose that a fabulously rich man could avoid support payments by simply manipulating his assets so as to remove them from his personal statement and/or invest them in such a way as to show a de minimus income.

All other points on appeal are found to be without merit and in all other respects the final judgment is affirmed.

REVERSED AND REMANDED.

CROSS, J., concurs.

MOORE, J., concurring specially.

MOORE, Judge,

concurring specially:

I agree in the result that this cause should be remanded for further consideration by the learned trial judge of permanent alimony consistent with the evidence adduced.

      . This net worth as of December, 1975, had apparently shrunk to 9.3 million dollars due to the nationwide real estate slump. These figures do not include values of tax free bonds and executive perquisites for which information was not available.

      . There was a 15 year old child at the time of trial who would live with the mother so that the 5 year tenancy in part provided a roof over the child’s head.

      . The rate for unmarried individuals on $54,000 of taxable income would be $21,300, however, we assume generous deductions to reduce the taxable income to $42,000 to reach the $15,000 tax.


author: DOWNEY, Chief Judge.

text:
    UNITED SERVICES AUTOMOBILE ASSOCIATION, William J. Snyder and David A. Snyder, Appellants, v. William F. BUTLER, as Administrator of the Estate of Steven A. Butler, and William F. Butler, Individually, by and through the Administrator of the Estate of Steven A. Butler et al., Appellees.
    No. 76-2650.
    District Court of Appeal of Florida, Fourth District.
    May 16, 1978.
    Rehearing Denied June 28, 1978.

      Marón E. Lovell of D’Aiuto, Walker & Buckmaster, Orlando, for appellants.
    J. Richard Caldwell, Jr., and Ira William McCollum, Jr., of Pitts, Eubanks, Ross & Rumberger, P.A., Orlando, for appellees— Leland Robar, Rita Robar and Cambridge Mutual Fire Ins. Co.
   DOWNEY, Chief Judge.

Steven A. Butler was killed while riding as a passenger in an automobile owned by Appellant, William J. Snyder and driven by his son, Appellant David A. Snyder, a minor. The accident happened after David Snyder and Steven Butler had been social guests at a party at the home of Appellees Rita and Leland Robar, where alcoholic beverages were served to the guests. David Snyder became intoxicated and while driving home with Steven Butler as a passenger he rolled the car over, killing Butler.

William F. Butler, as administrator of his son’s estate, and individually, brought this wrongful death action against William and David Snyder and their insurance carrier, and against Rita and Leland Robar and their insurance carrier. The Snyders filed a third party complaint against the Robars and their insurance carrier for contribution. The trial court dismissed the third party complaint with prejudice and this appeal ensued.

In their third party complaint appellants alleged that the Robars knew or should have known David was a minor, yet they served him alcoholic beverages in violation of Section 562.11, Florida Statutes (1973); that the Robars knew or should have known David arrived at their home by automobile and that he would leave driving an automobile; that the Robars breached their duty to the public by providing alcoholic beverages to a minor knowing he would become intoxicated and drive on the public streets; and that the Robars’ negligence was the proximate cause of Butler’s death.

Appellants contend their third party complaint stated a cause of action against the Robars arising out of their violation of Section 562.11, Florida Statutes (1973), and the Robars’ negligence regardless of the statute in serving alcoholic beverages to a minor knowing he might become intoxicated and drive on the public highway.

At common law one injured by an intoxicated person had no cause of action against the dispenser of the intoxicating liquor, and that has been the general rule in this country in the absence of statute. The rationale ascribed to that rule is that the drinking of the liquor and not the serving of it is the proximate cause of the injury. Of course most states now have statutes making it a crime to sell, serve or give alcoholic beverages to minors. Furthermore, many states have enacted Dramshop Acts or Civil Damage Acts to afford civil damages to persons injured by one who is intoxicated against the unlawful seller or dispenser of alcoholic beverages. In the main, these acts have been interpreted as fixing liability only on those who are in the business of dispensing intoxicants as opposed to private persons serving intoxicants socially.

The applicable Florida Statute prohibiting the dispensation of alcoholic beverages to minors provides in pertinent part:

“562.11 Selling, giving or serving alcoholic beverages to minors prohibited.
“(1) It is unlawful for any person to sell, give, serve, or permit to be served alcoholic beverages to persons under twenty-one years of age or to permit a person under twenty-one years of age to consume said beverages on the licensed premises. Anyone convicted of violation of the provisions hereof shall be guilty of a misdemeanor of the second degree, punishable as provided in § 775.082 or § 775.083.”

The first question we must resolve in this case is whether the Legislature intended to impose liability on a social host for serving alcoholic beverages to a minor. As was pointed out above most of the cases- refuse to extend liability that far, some even declining to interpret the Dramshop and Civil Damage Acts that broadly. The language of the above quoted statute sounds all inclusive and yet most courts which have treated the question have interpreted similar language to be restricted to persons associated with a business establishment dispersing alcoholic beverages. Additionally, there are several other reasons Section 562.11(1), Florida Statutes (1973) does not apply to social hosts. First, the phrase “or to permit a person under twenty-one years of age to consume said beverage on the licensed premises” suggests that the Legislature intended the prohibition to apply only to business establishments.

Secondly, Section 562.11(2), Florida Statutes (1973), provides:

“(2) It is unlawful for any person to misrepresent or misstate his age or the age of any other person for the purpose of inducing any licensee or his agents or employees to sell, give, serve, or deliver any alcoholic beverages to a person under twenty-one years of age. . . . ”

This prohibition against misrepresentation of a minor’s age applies only to licensees, not to social hosts. Yet if this entire statute were intended to apply to the social host it would be just as efficacious to make it unlawful for a minor to misrepresent his age to a social host as to a licensee.

As we pointed out earlier, the common law rule precluded liability attaching to a social host for dispensing intoxicants to a minor. If that rule is to be abrogated it should be done by the Legislature. As the court stated in Hamm v. Carson City Nugget, Inc., 85 Nev. 99, 450 P.2d 358 (1969):

“. . . [I]f civil liability is to be imposed, it should be accomplished by legislative act after appropriate surveys, hearings, and investigations to ascertain the need for it and the expected consequences to follow. We prefer this point of view. Judicial restraint is a worthwhile practice when the proposed new doctrine may have implications far beyond the perception of the court asked to declare it.” Id. at 359.

Accordingly, we decline to hold that Section 562.11, Florida Statutes (1973) creates a cause of action against a social host for injuries sustained by one injured as a result of a host’s dispensing alcoholic beverages to a minor. In addition, since there was no cause of action at common law for damages against one for unlawfully dispensing intoxicants to a minor and since Florida has no statute authorizing such a recovery, we find no cause of action stated in appellant’s third party complaint.

Accordingly, the order appealed from is AFFIRMED.

LETTS and CROSS, JJ., concur.

      . 45 Am.Jur.2d, Intoxicating Liquors § 553.

      . Id.

      . Florida has no Dramshop Act. Davis v. Shiappacossee, 155 So.2d 365 (Fla.1963).

      .See 8 A.L.R.3d 1412, Liability, under Dram-shop Acts, of one who sells or furnishes liquor otherwise than in operation of regularly established liquor business; 53 A.L.R.3d 1285, Liability of person furnishing, on social occasion, intoxicating liquor, for negligent acts of intoxicated minor causing injury to plaintiff.

      . Edgar v. Kajet, 84 Misc.2d 100, 375 N.Y.S.2d 548 (S.Ct.1975), aff’d 55 A.D.2d 597, 389 N.Y.S.2d 631 (1976); Manning v. Andy, 454 Pa. 237, 310 A.2d 75 (1973).


author: COWART, JOE A., Jr., Associate Judge.

text:
    Betty Ann HUNTER, Appellant, v. Howard HUNTER, Appellee.
    No. 77-456.
    District Court of Appeal of Florida, Fourth District.
    May 16, 1978.
    Rehearing Denied June 28, 1978.

      William F. Sullivan, Pompano Beach, for appellant.
    William Zei of Gibbs & Itkin, P. A., Fort Lauderdale, for appellee.
   COWART, JOE A., Jr., Associate Judge.

This is an appeal from a ruling that a New York support judgment was not entitled to be recognized by Florida in its full amount.

While the parties were married but separated and resided in New York the Family Court there entered an order which, after modification, provided support of $100 per week for the plaintiff-wife and $50 per week for each of two children. The defendant-appellee-husband moved to Florida and fell into arrears on his support obligation. The wife commenced a support enforcement action under the New York “Uniform Support of Dependents Law” and Florida, as responding state, accepted the proceeding under § 88.181, Fla.Stat. (1971), of the Uniform Reciprocal Enforcement of Support Law, URESA. Jurisdiction was obtained over the husband and by order dated June 8, 1971, he was required to pay $50 per week support for both children.

The husband then sued in Florida for dissolution of the marriage and obtained constructive service of process. The wife did not appear. The final judgment, dated November 29, 1971, dissolved the marriage and required child support in accordance with the URESA support order of June 8, 1971.

Thereafter the Family Court in New York, in an action in which the husband personally appeared with counsel, determined the arrearage under the original New York support order to be $11,600 and on January 16, 1974, entered a support judgment in that amount. This determination gave the husband credit for all payments made under the Florida URESA order and included the additional child support and support for the wife accruing both before and after the Florida dissolution of marriage. When the wife sued in Florida to localize or domesticate the New York support judgment the trial court held that the New York judgment of January 16, 1974, was entitled to recognition in Florida but only in the amount that had accrued under the original New York support order prior to the dissolution of November 29, 1971. The wife appeals.

We agree with both the lower court and the New York court that the Florida URE-SA order did not in any manner modify or supersede the prior New York order of support but that amounts paid under the URE-SA order were to be credited against the sums accrued or accruing under the prior foreign support order. See § 88.281, Fla.Stat. (1971).

The husband argued below, and the trial court apparently agreed, that the New York statute upon which the original support order was based relates to a “husband’s” duty to support a “wife” and that after the Florida dissolution the parties were no longer husband and wife and, therefore, the New York court in entering the supplementary support judgment of January 16, 1974, erred in either not giving effect to the Florida dissolution or in interpreting the New York statute to authorize support in favor of a former wife after the Florida dissolution terminated the marital relationship between the parties.

We hold that the New York court did not fail to give full recognition to the Florida dissolution but that the New York court interpreted New York law to require the continuation of support to the former wife. We cannot hold that the New York court erred in its decision as to New York law. Nor did the New York court “exceed its jurisdiction” in entering judgment for support accruing after the Florida dissolution. Because the Florida dissolution proceeding was based only on constructive service of process, the Florida court could not enter an order regarding support of the wife which would be binding on the wife. The New York court in both the original court proceeding and in the proceeding leading to the supplementary support judgment had jurisdiction over the parties and over the subject matter and would not have lost that jurisdiction even by making an erroneous ruling. A court that has jurisdiction to rule correctly also has jurisdiction to make a mistake. The remedy is by appeal.

In a dissolution proceeding in which the wife is not personally served and in which she does not appear a court cannot terminate or modify a prior support order of a sister state. See Estin v. Estin, 1948, 334 U.S. 541, 68 S.Ct. 1213, 92 L.Ed. 1561, discussed in the article — Divisible Divorce, University of Florida Law Review, Volume III, pages 145, 159. A judgment granting, denying or modifying alimony is a “personal” judgment that can be entered only by a court with jurisdiction in personam over the wife. See Borst v. Borst, 161 So.2d 693 (Fla.2d DCA 1964) and Zuccarello v. Zuccarello, 280 So.2d 37 (Fla.3d DCA 1973).

The judgment below is reversed and remanded with directions to give constitutional full force and effect to the New York support order and then enter a judgment thereon in its full amount.

REVERSED AND REMANDED WITH DIRECTIONS.

DAUKSCH and MOORE, JJ., concur.


author: PER CURIAM.

text:
    James F. HONEYCUTT, Jr., Appellant, v. STATE of Florida, Appellee.
    Nos. 78-69, 78-129 and 78-130.
    District Court of Appeal of Florida, Second District.
    May 17, 1978.
    As Modified June 16, 1978.
    Jack O. Johnson, Public Defender, Bar-tow, and Stephannie DaCosta, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

James F. Honeycutt, Jr., appeals judgments and sentences for armed robbery and two burglary charges. He pled guilty to these offenses pursuant to a plea bargain. He now contends that the trial court erred in accepting his pleas.

A defendant who pleads guilty has no right to a direct appeal, but must obtain review by means of collateral attack. Section 924.06(3), Florida Statutes (1977). See aiso Fla.R.App.P. 9.140(b). Accordingly, this appeal is dismissed.

HOBSON, Acting C. J., and SCHEB and DANAHY, JJ., concur.

      . Fla.R.App.P. 9.140(b) provides in pertinent part as follows:
      A defendant may not appeal from a judgment entered upon a plea of guilty; nor may a defendant appeal from a judgment entered upon a plea of nolo contendere without an express reservation of the right of appeal from a prior order of the lower tribunal, identifying with particularity the point of law being reserved.
      Although this rule is not applicable to this case because the appeal was perfected prior to its effective date, it indicates the interpretation to be placed upon § 924.06(3), Fla.Stat. (1977).


author: SMITH, Acting Chief Judge.

text:
    STATE of Florida DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Petitioner, v. Samuel BARR, M.D., Bessie Mae Scott, Individually and on behalf of all others similarly situated, Randall B. Whitney, M.D., Jacksonville Women’s Health Organization, Inc., and Central Florida Women’s Health Organization, Inc., Respondents.
    No. JJ-199.
    District Court of Appeal of Florida, First District.
    May 18, 1978.
    As Amended May 31, 1978.
    Rehearing Denied June 29, 1978.

      George L. Waas and Charles T. Collette, Tallahassee, for petitioner.
    Jerry G. Traynham of Patterson & Traynham, Tallahassee, for respondents.
   SMITH, Acting Chief Judge.

The Department of Health and Rehabilitative Services petitions for review of intermediate agency action in the form of an order of a hearing officer of the Division of Administrative Hearings, Department of Administration, denying the Department’s motion to dismiss respondents’ rule-challenge petition pursuant to Section 120.56, Florida Statutes (1977). Respondents contend that the Department has issued a declaratory statement, Section 120.565, which constitutes an illicit rule not promulgated in accordance with Section 120.54. See Price Wise Buying Group v. Nuzum, 343 So.2d 115 (Fla. 1st DCA 1977). This court has jurisdiction pursuant to Section 120.68(1) and Fla.R.App.P. 9.100. Fiat Motors of North America, Inc. v. Calvin, 356 So.2d 908 (Fla. 1st DCA 1978).

The thrust of respondents’ position before this court, and of their petition now pending before the hearing officer, is that the Department, by issuing a declaratory statement as to the applicability of a statute, rule or order, in response to a petition for such á statement, uttered a statement of general applicability for which Section 120.54 rulemaking proceedings are essential. The Department denies that its declaratory statement is in whole or part a “rule”; and, more to the present point, the Department urges, rightly we think, that the Administrative Procedure Act and its Section 120.56 do not vest jurisdiction in a hearing officer to invalidate or obliterate an agency’s declaratory statement, regularly issued under Section 120.565, as in whole or part a rule.

We have recognized that Section 120.56 rule-challenge proceedings are appropriate to test and declare invalid informal agency policy declarations of general applicability which were promulgated without the requisite formality of rules. State Dep’t of Admin. v. Stevens, 344 So.2d 290 (Fla. 1st DCA 1977). But neither the letter nor the purposes of the Act justify subjecting formal agency statements, in declaratory statements rendered pursuant to Section 120.565, or in orders entered pursuant to Sections 120.57 and .59, to such collateral scrutiny and review by hearing officers. Section 120.565 declaratory statements constitute “final agency action” and they are reviewable, in the same way as orders entered in Section 120.57 proceedings, by timely petition in a district court of appeal. Section 120.68. Nothing in the Act gives hearing officers collateral review power over final agency action taken after regular proceedings under other provisions of the Act. See State ex rel. Greenberg v. Florida State Board of Dentistry, 297 So.2d 628 (Fla. 1st DCA 1974), cert. dismissed, 300 So.2d 900 (Fla.1974).

Respondents have expressed concern that persons not parties to a Section 120.565 proceeding, who therefore are not in a position to seek judicial review of the resulting declaratory statement, may later be adversely affected by the agency’s enforcement against them of its interpretation of law thus announced. That is true. Agency orders rendered in Section 120.57 proceedings may in the same way indirectly determine controversies and affect persons yet unborn. But the rule is stare decisis, not res judicata. If such a person’s substantial interests are to be determined in the light of a prior agency order or declaratory statement, Section 120.57 proceedings will afford him the opportunity to attack the agency’s position by appropriate means, and Section 120.68 will provide judicial review in due course.

To permit a Section 120.56 collateral attack on a declaratory statement or other agency order would blur the distinction between the Act’s remedies, recognized in Florida Dep’t of Offender Rehabilitation v. Jerry, 353 So.2d 1230, 1232 (Fla. 1st DCA 1978), and would encourage forum-shopping. One of the individual respondents, Dr. Samuel J. Barr, and two persons who are within the class purportedly represented before the hearing officer by respondent Scott, previously petitioned this court for direct review of the declaratory statement which they now attack before the hearing officer. But, having within their grasp a judicial determination of whether the Department’s declaratory statement was in any respect erroneous, those parties voluntarily dismissed the petition for review in order to initiate this collateral attack.

The petition for review is GRANTED and the rule-challenge proceeding before the hearing officer will be DISMISSED.

ERVIN and BOOTH, JJ., concur.


author: McCORD, Chief Judge.

text:
    John BANYAS, Appellant, v. AMERICAN MUTUAL FIRE INSURANCE COMPANY, Appellee.
    No. FF-290.
    District Court of Appeal of Florida, First District.
    May 19, 1978.
    Rehearing Denied June 29, 1978.
    Henry H. Graham, Jr., of Howell, Howell, Liles & Braddock, Jacksonville, for appellant.
    Carle A. Felton, Jr., of Boyd, Jenerette, Leemis & Staas, Jacksonville, for appellee.
   McCORD, Chief Judge.

By his amended complaint in the court below, appellant sought to recover from his insurance company, appellee, certain medical expenses which he contended were incurred by him as a result of an automobile accident in which he was involved. Appel-lee admitted the accident and that it had in full force and effect a policy of insurance on appellant which provided personal injury protection benefits and medical payment coverage. Appellee denied, however, that there was coverage for the expenses alleged and asserted that such expenses resulted from a pre-existing condition of appellant. Final judgment was entered for appellee, and appellant has appealed. Appellant contends that the trial court’s judgment was against the manifest weight of the evidence. We agree and reverse.

It is undisputed that appellant suffered a blow to his chest in an automobile accident. He was taken by ambulance to St. Joseph’s Hospital in Tampa for treatment where he complained of pain in his chest. Pursuant to instructions of his then treating physician, he was confined to the hospital for observation for a three-day period. His physician at the hospital called appellant’s regular treating physician in Jacksonville, Dr. Hardin, and requested information as to appellant’s cardiac history, explaining that he had been in an automobile accident and was complaining of chest pain. Dr. Hardin advised that during a hospital confinement for arthritis some years previously, he had found a distorted e.k.g. with respect to the electrical impulses on the left side of appellant’s heart, otherwise known as a left bundle branch block. At the end of the three days, appellant was discharged from the Tampa hospital with a diagnosis of chest pain of unknown etiology. Appellant then returned to Jacksonville where he was examined the following day by Dr. Hardin. Because of appellant’s continuing complaints of chest pain and because of the previous heart problem, Dr. Hardin referred appellant to a cardiologist, Dr. Robert L. Pekaar, for a heart catheterization with coronary and renal arteriography. As to his reason for referring appellant to Dr. Pekaar, Dr. Hardin testified as follows:

“. . .I felt that it was necessary to distinguish between the pain, whether or not it was from the automobile accident or whether it was due to his heart condition.
******
Primarily that with knowing he had a heart problem and knowing that he had been involved in an automobile accident, I felt that it was necessary to distinguish heart disease from trauma. And I felt that it was necessary to refer him so that something more definitive could be done to see whether or not there was decreased circulation to the heart.”

Subsequently, in answer to the following question, Dr. Hardin gave the following answer:

“Q. Whether or not the diagnostic referral to Dr. Pekaar was made necessary because of the accident of December 26th, 1975?
A. Yes, sir. I felt that I had to know whether I was treating trauma or whether or not I as dealing with cardiac problems.”

Later, to the following question, Dr. Hardin gave the following answer:

“Q. Well, doctor, is the reason then that you sent Mr. Banyas over to Dr. Pekaar to find out more about this left bundle branch block and its effect on the heart?
A. No. It was primarily to determine where the pain was coming from; whether it was due to him being hurt or whether it was due to a cardiac problem.”

Still later, on being questioned as to whether or not the diagnostic work by Dr. Pekaar related to the automobile accident, Dr. Hardin stated:

“Yes. I feel like it is. I only — in that I had to know the difference. I had to know whether he was having an interior chest syndrome or if he was having decreased circulation to his heart.”

The diagnostic work of Dr. Pekaar reveals that appellant’s chest problem related solely to his heart condition and had no relation to the accident. This after-the-fact determination, however, does not absolve appellee from liability under its insurance policy for this expense. § 627.736, Florida Statutes, requires that every insurance policy for personal injury protection benefits provide payment for “. . all reasonable expenses incurred for necessary medical . services . . . .” It is clear from the evidence that Dr. Hardin reasonably found it necessary because of this accident, and appellant’s chest pain immediately following such accident, to send him to Dr. Pekaar for a determination of the cause of the chest pain. Such was a reasonable expense incurred for necessary medical services to determine whether or not the accident was the cause of the chest pain experienced immediately following the accident.

Reversed.

BOYER and MELVIN, JJ., concur.


text:
    Carlton L. WELCH, Appellant, v. STATE of Florida, Appellee.
    No. FF-233.
    District Court of Appeal of Florida, First District.
    May 22, 1978.
    Rehearing Denied June 30, 1978.
    Carlton Welch, in pro. per., Jacksonville, and Joseph C. Jacobs, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

A lawyer appeals from a judgment of contempt and a sentence to pay a fine or be jailed, entered after appropriate proceedings on an order to show cause why he should not be adjudged in contempt for departing his client’s trial on a criminal charge, during the jury’s deliberations, without leave of court. The lawyer left to keep a bowling date. He claims to have supposed from a conversation with the judge, concerning his bowling date, his hope for an early verdict, and the possible sentence for his client, that he had the court’s tacit permission to leave his client unattended at the rendition of the verdict. The lawyer advised his client and the bailiff that he was going bowling, but left no other information concerning his whereabouts. The court reluctantly received the verdict in the lawyer’s absence.

A lawyer who deliberately and without permission or excuse leaves his client without representation at the rendition of the verdict in a criminal proceeding commits an act which is inconsistent with his professional obligations and which may hinder and embarrass the orderly discharge of judicial functions. See Krathen v. State, 310 So.2d 381 (Fla. 4th DCA 1975). No actual interruption or delay occurred, which mitigates appellant’s default. See In re Taylor, 240 So.2d 170 (Fla. 1st DCA 1970). But appellant’s reason for abandoning his client and the court was frivolous and contemptuous. Moreover, as the trial court found, the lawyer’s attribution of tacit consent to the court, given the conversation on which it was based, was “incredible.” See People v. McDonnell, 377 Ill. 568, 37 N.E.2d 159 (1941). Taken as a whole, the evidence supports the judgment and sentence.

AFFIRMED.

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


author: DOWNEY, Chief Judge. CROSS, Judge,

text:
    BROWARD COUNTY, Florida, a political subdivision of the State of Florida, L. A. Hester, Broward County Administrator, Gerald F. Thompson, Hugh Anderson, R. B. Barkelew, Ken Jenne, Anne Kolb, Jack L. Moss and J. W. Stevens, as members of the Broward County Commission and constituting the Broward County Commission, James V. Denkenberger, Jr., County Surveyor of Broward County, and John M. Gerren, Jr., Director of Transportation and Planning of Broward County, Florida, Appellants, Case No. 76-1920, v. NARCO REALTY, INC., a Pennsylvania Corporation licensed to do business in the State of Florida, Appellee, Case No. 76-1920, Appellant, Case No. 77-868.
    Nos. 76-1920, 77-868.
    District Court of Appeal of Florida, Fourth District.
    May 23, 1978.
    Rehearing Denied June 28, 1978.
    Harry A. Stewart and Betty Lynn Lee, Gen. Counsel for Broward County, Fort Lauderdale, for appellants in case No. 76-1920, for appellees in case No. 77-868.
    Robert E. Ferris, Jr., of Gustafson, Caldwell, Stephens & Ferris, Fort Lauderdale, for appellees in case No. 76-1920 and for appellants in case No. 77-868.
   DOWNEY, Chief Judge.

Broward County and certain officials thereof filed a plenary appeal in Case No. 76-1920 to review a Peremptory Writ of Mandamus commanding appellants to approve a subdivision plat of land located in the City of Parkland, Broward County, Florida.

Narco Realty, Inc., has filed an interlocutory appeal in Case No. 77-868 to review an order which denied appellant’s (Narco Realty) motion for contempt and partially granted Narco’s motion to compel.

Narco Realty, Inc., owns a tract of land in the City of Parkland which it proposes to subdivide. In furtherance of this plan Nar-co submitted its subdivision plat to the County Commission of Broward County for approval which was refused. Thereupon, Narco filed a Petition for Writ of Mandamus against the County and various county officials seeking to require them to approve the proposed plat so that it could be recorded. The plenary appeal by the County, et al., is from the granting of the Peremptory-Writ.

While the plenary appeal was pending, this court entered an Order requiring the County to post a supersedeas bond if it wished its appeal to supersede the Peremptory Writ. However, the County chose not to post the supersedeas bond, whereupon Narco asked the trial court to hold the County and its officials in contempt for refusing to follow the commands of the Peremptory Writ. Narco also requested the court to compel the County to approve the plat for record. The trial court denied the motion for contempt and ordered the County to approve the plat with certain conditions. The interlocutory appeal from that Order has been consolidated with the plenary appeal.

With regard to the full appeal from the issuance of the Peremptory Writ, the main thrust of appellant’s attack is that the approval of a plat by the County Commission is a discretionary act and cannot be made the subject of a Writ of Mandamus. The appellant relies heavily upon our decision in State ex rel. Zuckerman-Vernon Corp. v. City of Miramar, 306 So.2d 173 (Fla. 4th DCA 1974), to support that principle.

Appellee contends, on the other hand, that its Petition for Writ of Mandamus and the stipulation of counsel at the hearing which gave rise to issuance of the Peremptory Writ demonstrate that there was no discretion remaining in the Commission in this case. The petition and stipulation show that all of the legal requirements for approval of a plat for recordation have been met. Those legal requirements are contained in Chapter 177, Florida Statutes (1975) and the Broward County Plat Act.

It appears to be the County’s contention that, even though Narco has complied with all of the legal requirements for platting land contained in the general law and Special Act, the County Commission still has the discretion to approve or to refuse approval of any plat, because both Chapter 177 and the Special Act provide for approval by the County Commission. We reject the County’s construction that those provisions of the statutes give the County unbridled discretion to deny approval.

All persons similarly situated should be able to obtain plat approval upon meeting uniform standards. Otherwise, the official approval of a plat application would depend upon the whim or caprice of the public body involved. Yokley, in his work, Law of Subdivisions, § 52, states:

“Thus, while public policy requires municipal control of such development, nevertheless, the authority of a town to deny a landowner the right to develop his property by refusing to approve the plat of such development is, by statute, made to rest upon specific standards of a statute or implementing ordinances. Thereafter, the approval or disapproval of the plat on the basis of controlling standards becomes an administrative act.”

Likewise, in Section 53 of the same work, the author states:

“When the statutes and ordinances have been complied with in making a plat of a subdivision, the active approval by a village board has been held to be ministerial, and such act may be enforced by a writ of mandamus.”

4 Anderson, American Law of Zoning (Second Edition) § 26.04, (1976) states:

“Mandamus to compel plat approval has been successful where the court, applying common-law principles, determined that when a subdivider has complied with all of the standards for plat approval, such approval is a ministerial act which the court may compel through a writ of mandamus . ..”

There are numerous cases which apply this same principle, among which are: Knutson v. State, 239 Ind. 656, 157 N.E.2d 469 (1959); People ex rel. Jackson & Morris, Inc. v. Smuczynski, 345 Ill.App. 63, 102 N.E.2d 168 (1951); People v. Village of Deerfield, 50 Ill.App.2d 349, 200 N.E.2d 120 (1964); Kling v. City Council of City of Newport Beach, 155 Cal.App.2d 309, 317 P.2d 708 (1957).

Section 14 of the Broward County Plat Act, which pertains to the granting of approval of a plat provides that such approval may be “subject to such conditions as the governing body of the municipality and/or the Boards of County Commissioners or Public Instruction may deem to be in the best interest of the public.” Without pursuing the validity of that provision which has not been attacked here, we hold that, having met all of the legal requirements for obtaining plat approval, the county must approve Narco’s plat so that it can be recorded. Inasmuch as Narco has met all of the legal requirements for platting land, the county had no discretion to refuse this plat approval and the trial court was correct in issuing the Peremptory Writ of Mandamus.

We would distinguish our case of State ex rel. Zuckerman Corp. v. City of Miramar, supra. In Zuckerman the court expressly held:

“Here, clearly, the consideration of the plan involved the exercise of judgment and discretion. Did the plan meet the zoning requirements? Were the zoning requirements legal and binding? What was the effect of certain condemnation proceedings and other changes upon density requirements? Was the City es-topped?” Id. at 175.

Whereas, in the case at bar, the property owner has done all the law required of him to entitle his plat to be recorded. At that point any discretion in the County Commission vanished. There are some rather broad statements in Zuckerman which might lead one to conclude that mandamus never lies to require approval of a plat. While Zuckerman is clearly correct on its facts, to the extent it might be interpreted to hold that mandamus will never lie to require approval of a plat, we recede therefrom.

Upon remand the county shall approve the plat in question in accordance with the Peremptory Writ of Mandamus issued August 16, 1976, and such approval shall not contain any conditions relative to this litigation as were contained on the plat approval in the resolution of the County Commission dated March 1, 1977, and recorded in Official Records Book 6927, page 518, of the Public Records of Broward County.

Our disposition of the plenary appeal in case No. 1920 renders the issues raised in the interlocutory appeal No. 868 moot. Accordingly, the interlocutory appeal is dismissed.

DAUKSCH, J., concurs.

CROSS, J., concurs specially, with opinion.

CROSS, Judge,

concurring specially:

I concur in the conclusion reached by the majority only because the parties to the instant appeal have stipulated that all necessary standards prescribed by law for subdivision plats have been met by the appel-lee.

I perceive broad areas of discretion granted to the Board of County Commissioners which in ordinary circumstances would render the remedy of mandamus inappropriate. E. g., Section 14, Ch. 28946, Laws of Florida, Special Acts 1953. Moreover, I see no reason to recede from State ex rel. Zuckerman-Vernon Corp. v. City of Miramar, 306 So.2d 173 (Fla. 4th DCA 1974). That case dealt with the situation wherein the petitioner sought mandamus before any action, either for or against the proposed subdivision, was undertaken by the city council. Even so, the court therein recognized that mandamus would lie to compel action, but could not mandate the course of such action where discretionary matters remained unresolved. The Zucker-man-Vernon case has no application to cases such as that sub judice where all prerequisites established by law for the approval of subdivision plats have been met and the approving body has withheld its approval arbitrarily.

      . Chapter 28946, Laws of Florida, Special Acts, 1953, as amended.


author: LETTS, Judge.

text:
    ORKIN EXTERMINATING COMPANY, INC., a Foreign Corporation, Appellant, v. Michael M. MONTAGANO, Appellee.
    No. 76-2537.
    District Court of Appeal of Florida, Fourth District.
    May 23, 1978.
    Jonathan J. Davis of Walton, Lantaff, Schroeder & Carson, Fort Lauderdale, for appellant.
    H. C. Feige of Patterson, Maloney & Shankweiler, Fort Lauderdale, for appellee.
   LETTS, Judge.

This case concerns an exculpatory clause in a termite agreement limiting liability to re-treatment only. The trial judge denied a motion to dismiss for failure to state a cause of action and allowed the case to go to the jury, also denying motions for a directed verdict. The jury award to the house owner was $9,554.00 for termite damage caused because of defective treatment. We affirm.

It is inescapable that Florida courts recognize and uphold, not only contracts with exculpatory clauses which limit liability, but also those which exempt liability altogether. Middleton v. Lomaskin, 266 So.2d 678 (Fla. 3d DCA 1972); Kinkaid v. Avis Rent-A-Car Systems, 281 So.2d 223 (Fla. 4th DCA 1973). Furthermore, in Orkin Exterminating Company of South Florida v. Clark, 253 So.2d 884 (Fla. 3d DCA 1971), the court upheld a clause in a termite agreement limiting the termite company’s liability to $5,000, even though the damage had been caused by inadequate treatment by the termite company. However, in this last cited case, possible ambiguity in the wording of the terms of the agreement was not an issue discussed in the court’s opinion, whereas all the other cases cited include language such as, for example:

“Generally, exculpatory contracts which attempt to relieve a party of his own negligence are not looked upon with favor; however, such contracts have been held valid and enforceable in Florida, where such intention was made clear and unequivocal in such contract.”
Middleton v. Lomaskin, supra.

Accordingly, to be enforceable, the contract must be clear and unequivocal on the liability question and we do not think the instant agreement passes the test of clarity or unequivocation.

On the first page of the termite agreement, now before us, the following is set forth:

“ORKIN is to issue the type of guaranty as checked below:

The box styled “Lifetime Control” was clearly checked off.

Further down, on the same first page, the following sentence appears:

“This agreement shall be comprised of this Contract, the General Terms and Conditions as they appear on the reverse side, the accompanying Graph and Specifications, and, upon issuance, the Guaranty.”

Turning to the said reverse side of the agreement, we discover that the first two paragraphs there appearing, are set forth in large bold face block capital letters in the same chronology that follows:

“SPECIAL TOTAL PROTECTION LIFETIME SUBTERRANEAN TERMITE GUARANTY.
SUBJECT TO THE GENERAL TERMS AND CONDITIONS, ORKIN WILL ISSUE A SPECIAL TOTAL PROTECTION LIFETIME SUBTERRANEAN TERMITE GUARANTY AND, AT NO EXTRA COST, MAKE SUCH REPAIRS TO THE STRUCTURE AND CONTENTS TO REMEDY ANY NEW DAMAGE CAUSED BY SUBTERRANEAN TERMITES, PROVIDED THAT IT IS ESTABLISHED THAT SAID NEW DAMAGE WAS CAUSED BY SUBTERRANEAN TERMITES AFTER THE DATE OF INITIAL TREATMENT AND THAT AT THE TIME OF DISCOVERY OF THE NEW DAMAGE, THE DAMAGED AREAS ARE INFESTED WITH LIVE SUBTERRANEAN TERMITES. ORKIN WILL BE RESPONSIBLE FOR SUCH REPAIRS ONLY WHEN MADE WITH ORKIN’S APPROVAL AND UNDER ORKIN SUPERVISION AND CONTROL. THE PURCHASER FURTHER UNDERSTANDS THAT OR-KIN'S LIABILITY FOR SUCH REPAIRS SHALL IN NO EVENT EXCEED $100,000.00 AGGREGATE LOSS AND IS LIMITED TO STRUCTURAL AND CONTENTS DAMAGE.
SUBTERRANEAN TERMITE CONTROL GUARANTY.
SUBJECT TO THE GENERAL TERMS AND CONDITIONS, ORKIN WILL ISSUE A CONTROL GUARANTY AND, AT NO EXTRA COST, APPLY ANY NECESSARY ADDITIONAL TREATMENT TO THE PREMISES IF REINFESTATION IS FOUND THEREIN DURING THE PERIOD OF THE GUARANTY. THE PURCHASER FURTHER UNDERSTANDS THAT OR-KIN’S LIABILITY UNDER THIS AGREEMENT IS LIMITED TO RE-TREATMENT ONLY AND IN NO WAY, IMPLIED OR OTHERWISE, IS RESPONSIBLE FOR DAMAGES OR REPAIRS TO THE STRUCTURE OR CONTENTS.”

There is not one word on this reverse side to indicate that these paragraphs are not both applicable and that in actuality they are intended to be in the alternative. Nor is there any explanation as to which one applies in this instance. The sole “tip off” as to what the coverage really is, becomes apparent only when one refers back to the applicable category boxes on the preceding page of the agreement. Moreover, even if argued that the householder should be reasonably required to refer back, the title headings do not track each other. Thus, the box entitled “Lifetime Control and Repair” is apparently arbitrarily changed to read “Special Total Protection Lifetime Subterranean Termite Guaranty” and likewise the front page box actually checked and identified as “Lifetime Control” apparently becomes, on the reverse side, “Subterranean Termite Control Guaranty.”

There is no evidence in the record that the employed methodology and terminology was deliberately designed to mislead gullible consumers, but honesty requires the author of this opinion to confess that he was himself confused as to the applicability of the opening block capital paragraph on the reverse side. The appellant will undoubtedly attribute this confusion to lack of gray matter within this writer’s head. Be that as it may, we are unanimous that the agreement is ambiguous on its face. This ambiguity is not in our opinion cured by the later delivery of a piece of paper grandly termed a “Guarantee”, but which, in fact, is but a unilateral statement of intent to inspect the premises and retreat them for free, if the prior treatment is unsuccessful.

Admittedly, the annual inspection fee was but $25.00 and it may seem unreasonable to hold the termite company accountable for the results of major termite damage occurring by reason of its failure to rid the premises of infestation. After all, as appellant argues, who could reasonably expect such protection for a mere $25.00 a year? This is a compelling argument, but when we consider that we do not look with favor on exculpatory clauses, we must require the draftsmen of all contracts which contain them to use clear and unequivocal language totally without a hint of deceptive come-on, or inconsistent, clauses. In our opinion, it is clear that the appellee might be misled to believe that he enjoyed the kind of protection offered in the opening clause, on the reverse side of his contract, in the largest bold face type of the entire page.

We find the remaining points on appeal without merit.

AFFIRMED.

DOWNEY, C. J., and ANSTEAD, J., concur.

      . The remainder of the reverse side provisions are in small regular type.

      . Furthermore, there is unexpectedly no explanatory paragraph on the third category entitled “Pretreat (PR)”.

      . Referring to the remaining general clauses in small type, we note # 1 which begins “. Orkin is not responsible for the repair of visible damage existing as of the date of this contract. . . This again raises the expectation that Orkin is responsible for damage occurring after the contract date.


text:
    Linda Jean ROSS, Appellant, v. STATE of Florida, Appellee.
    Nos. 77-265 and 77-266.
    District Court of Appeal of Florida, Fourth District.
    May 23, 1978.
    Linda Jean Ross, in pro per.
    No appearance for appellee.
   PER CURIAM.

AFFIRMED. See Hines v. State, 358 So.2d 183, Fla.1978.

DOWNEY, C. J., and ANSTEAD and LETTS, JJ., concur.


text:
    PENMONT ENTERPRISES, INC., a Florida Corporation, et al., Appellants, v. Sally DYSART, Theodore Dysart, and Julius Kaplan, Appellees.
    Nos. 76-1783, 77-192 and 77-194.
    District Court of Appeal of Florida, Third District.
    May 23, 1978.
    Rehearing Denied June 28, 1978.

      See also, 340 So.2d 1285.
    Krongold, Bass & Rosen, Miami, for appellants.
    Joseph Pardo, Miami, for appellees.
    Before HENDRY, J., and GOMEZ, HE-LIO, and CHARLES CARROLL (Ret.), Associate Judges.
   PER CURIAM.

This is an appeal by Penmont Enterprises, Inc., and others from an adverse judgment of foreclosure and an order granting a new trial in a related action for damages.

The transaction which gave rise to this litigation was the sale in January of 1975 by Sally Dysart and Theodore Dysart of the corporate stock of two corporations (Dysart’s Pool & Patio World, Inc., and Dysart’s Swimming Pool Service, Inc.) to Pen-mont Enterprises, Inc., for a price of $440,-000. The sale contract provided for a $50,-000 down payment and for the balance to be evidenced by two promissory notes, one for $301,750 payable in eighty-four monthly installments of principal and interest, and the other for $88,250 payable in fifty-four such installments. The unpaid balance represented by the notes was secured by a chattel mortgage encumbering the existing and after acquired assets of the Dysart corporations, the stock of which was thus sold. The sale was closed and the required documents executed. No payments were made thereafter on the notes.

In the subsequent litigation involving these and other parties, the court made provision for trial of the foreclosure action separately from a jury trial to be held on other issues. On a prior appeal in this case, a final judgment of foreclosure was affirmed. Penmont Enterprises, Inc. v. Dysart, 340 So.2d 1285 (Fla. 3d DCA 1977).

The matter involved in appeal no. 77-194 has previously been disposed of by this court. By appeal no. 76-1783, appellants Penmont Enterprises, Inc., et al., seek reversal of an order entered after a jury verdict, by which a new trial was granted. The record of the trial proceedings has not been supplied. In the absence thereof, appellants have failed to show reason in law for reversal. See Cruz v. Beckham, 267 So.2d 853 (Fla. 3d DCA 1972).

By appeal no. 77-192, the appellants, Penmont Enterprises, Inc., et al., present questions relating to the judgment of foreclosure entered in the purchase money mortgage. It was conceded that no payments were made on the mortgage indebtedness as represented by the promissory notes, which were payable in monthly installments with no provision for acceleration of the balance of the indebtedness upon default. The final judgment of foreclosure was for the aggregate of the monthly installments which had become due prior to the filing of the foreclosure action plus those that matured thereafter, prior to the date of the judgment, for recovery of which the parties seeking foreclosure had alleged their default by amendment.

Appellants contend it was error to grant summary judgment for the foreclosure; that the court erred in finding the corporations were not party to the stock sale agreements; that it was error to include in the foreclosure judgments the amounts of the installment payments which became due pending the foreclosure action; that there was no consideration for the mortgage of the assets of the corporations; and that it was error to retain jurisdiction over the individual guarantors. We have considered these contentions in the light of the record as it is presented here, and the briefs, and hold that no reversible error has been shown.

The judgment and orders appealed from are affirmed.


author: HAVERFIELD, Chief Judge.

text:
    ANTILLEAN MARINE SHIPPING CORPORATION, Appellant, v. LA UNIVERSAL DE SEGUROS, C. POR A., Appellee.
    No. 77-240.
    District Court of Appeal of Florida, Third District.
    May 23, 1978.
    Rehearing Denied June 28, 1978.

      Donald F. Geffner, Miami, for appellant.
    Gilbride & Heller, Miami, for appellee.
    Before HAVERFIELD, C. J, and NATHAN and HUBBART, JJ.
   HAVERFIELD, Chief Judge.

Antillean Marine Shipping, defendant bailee, appeals a final summary judgment in favor of plaintiff insurer in this action for damages for negligent loss of cargo.

Editorial Padilla, C. Por A. contracted with Antillean Marine Shipping (hereinafter Antillean) for the transport of four glassine bales of paper from Miami to Santo Domingo. The contract was evidenced by a bill of lading, the reverse side of which in fine print provided in part:

“1. This bill of lading shall have effect subject to the provisions of the Carriage of Goods by Sea Act of the United States of America, approved April 16, 1936, which shall be deemed to be incorporated herein, and nothing herein contained shall be deemed a surrender by the Carrier of any of its rights or immunities or an increase of any of its responsibilities or liabilities under said Act. The provisions stated in said Act (except as may be otherwise specifically provided herein) shall govern before the goods are loaded on and after they are discharged from the ship and throughout the entire time the goods are in the custody of the Carrier . . [Emphasis Supplied]

On the front side of the bill of lading Antillean typed in bold print the following clause:

“CARRIERS AND/OR VESSEL’S RESPONSIBILITY AND/OR LIABILITY CEASES AT END OF SHIP’S TACKLE AT PORT OF DISCHARGE.”

Antillean received the paper from the shipper, Pan American Paper Converting, Inc. and then had the paper loaded on board the ship M/V William Express which set sail for Santo Domingo. However, on the next day the ship ran aground and returned to Miami where the paper was unloaded and placed in Antillean’s warehouse. Subsequently, Antillean was unable to account for the paper. Plaintiff, La Universal De Seguros C. Por A. (hereinafter Universal), the insurer of Editorial Padilla, C. Por A., paid Editorial $8,354.37, the full value of the lost paper. Universal then instituted the present action against Antillean for recovery of the above amount for the negligent loss of the paper. Antillean answered that under the Carriage of Goods by Sea Act (46 U.S.Code §§ 1300-1315) incorporated in the bill of lading, it could not be held responsible for the loss or in the alternative that any liability was limited to $500 per package (or $2,000 in total). Following pretrial discovery, Universal filed a motion for summary judgment which was granted after oral argument of counsel. Final summary judgment for $8,354.34 plus interest and costs was entered for Universal and Antillean appeals. We affirm for the following reasons:

First, when the ship returned to Miami and the paper was placed in Antillean’s warehouse, the limitation of liability provision in the bill of lading was thereby terminated and Antillean having maintained custody of the paper was then exposed to full liability as a common law bailee. See Baker Oil Tools, Inc. v. Delta S.S. Lines, Inc., 562 F.2d 938 (5th Cir. 1977). Antillean admitted that it was unable to account for the disappearance of the paper and failed to rebut those allegations of negligence asserted by Universal. Thus, the trial court was correct in entering summary judgment for Universal. See Marine Office-Appleton & C. Corp. v. Aqua Dynam., Inc., 295 So.2d 370 (Fla. 3d DCA 1974).

Second, assuming arguendo the bill of lading is applicable, Antillean still cannot prevail. A bill of lading is a contract of adhesion to be strictly construed against the carrier. Leather’s Best, Inc. v. S.S. Mormaclynx, 313 F.Supp. 1373 (E.D.New York 1970). If a clause in a bill of lading is conflicting with another clause thereby creating an ambiguity, the ambiguity is to be resolved against the party preparing the instrument. Associated Metals & Minerals v. M/V Vishva Shobha, 530 F.2d 714 (6th Cir. 1976). Another well established rule of construction is when a contract is partly printed and partly written, the writing controls. Burdines, Inc. v. Pan-Atlantic Steamship Corp., 199 F.2d 571 (5th Cir. 1952). The printed clause on the reverse side of the bill of lading (set out above) is in conflict with the typed provision on the front side (also set out above). Applying the above construction principles, this front clause is controlling. Cf. Burdines, Inc., supra and Hellenic Lines, Limited v. Embassy of Pakistan, 467 F.2d 1150 (2d Cir. 1972). Under the language thereof, the contract terminated when the paper was returned to Antillean’s warehouse in Miami and, therefore, the limitation of liability under the Carriage of Goods by Sea Act incorporated therein was not applicable. Cf. Zajicek v. United Fruit Company, 459 F.2d 395 (5th Cir. 1972) and Federal Ins. Co. v. American Export Lines, Inc., 113 F.Supp. 540 (S.D.New York 1953).

Affirmed.

      . not a party to this action

      . not a party to this action


text:
    Peter Anthony ZELINSKI et al., Appellants, v. PUROLATOR COURIER CORP., etc., et al., Appellees.
    Nos. 77-603, 77-776.
    District Court of Appeal of Florida, Third District.
    May 23, 1978.
    Rehearing Denied June 28, 1978.
    Horton, Perse & Ginsberg, Rossman & Baumberger, Miami, for appellants.
    Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O’Hara and Richard A. Sherman, Miami, for appellees.
    Before PEARSON and HUBBART, JJ., and PARKER, J. GWYNN (Ret.), Associate Judge.
   PER CURIAM.

By this appeal, appellants urge, among other things, that the trial court improperly charged the jury and that the jury verdict was not supported by the evidence.

Although the standard jury instructions were not used, the trial judge’s own jury instructions fairly and adequately covered all issues and instructed the jury as to its duties in the trial. We find no error in this regard.

The evidence in the record supports the jury verdict. See Metropolitan Dade County Transit Authority v. Espinosa, 344 So.2d 1290 (Fla. 3d DCA 1977); Thompson v. Jacobs, 314 So.2d 797 (Fla. 1st DCA 1975).

Appellants’ other arguments are deemed without merit. Finding no error, we affirm the judgment of the lower court.

Affirmed.


text:
    David Allen WEISS, Appellant, v. The STATE of Florida, Appellee.
    No. 77-847.
    District Court of Appeal of Florida, Third District.
    May 23, 1978.
    Rehearing Denied June 28, 1978.

      Kogen & Kogan and Geoffrey C. Fleck, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before PEARSON, NATHAN and KE-HOE, JJ.
   PER CURIAM.

Affirmed. See United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975); Brown v. State, 206 So.2d 377 (Fla.1968); Robinson v. State, 338 So.2d 1309 (Fla. 4th DCA 1976); Langdon v. State, 330 So.2d 804 (Fla. 3d DCA 1976); and Lebowitz v. State, 313 So.2d 473 (Fla. 3d DCA 1975).


text:
    Robert Emmett LEE and Betty Jane Lee, Appellants, v. Stuart W. PATTON, as Executor of the Estate of Winifred Stuart Lee, Deceased, Appellee.
    No. 77-1054.
    District Court of Appeal of Florida, Third District.
    May 23, 1978.
    Rehearing Denied June 28, 1978.
    A. M. Schwitalla and Jose M. Quignon, Jr., Miami, for appellants.
    Patton, Kanner, Segal, Zeller, LaPorte & King, Joseph M. Fitzgerald, and Michael Fitzgerald, Miami, for appellee.
    Before HENDRY, J., and CHARLES CARROLL (Ret.) and PARKER, J. GWYNN (Ret.), Associate Judges.
   PER CURIAM.

In the first appearance of this cause before this court (Lee v. Patton, 342 So.2d 542) we were concerned with the ruling of the trial judge setting forth the burden of a donee of an inter vivos gift to rebut a presumption of undue influence which arose from such gift. Based on In re Estate of Carpenter, 253 So.2d 697 (Fla.1971) and Majorana v. Constantine, 318 So.2d 185 (Fla.2d DCA 1975) we held:

“ . . . that the donee’s burden of rebutting a properly raised presumption of undue influence relating to an inter vivos gift is only such as to come forward with a reasonable explanation of the do-nee’s active role in the donor’s affairs, and specifically in the preparation of the gift transfer instrument.”

We further held that the donee is not required to show the gift was freely and voluntarily made with a full understanding of the import and effect thereof and that the gift represented the wish and desire of the donor as the lower court required of the donee.

This court further stated:

“ . . . [T]he judgment below is reversed and the cause remanded to the lower court to apply the Carpenter burden of proof principles on the undue influence issue. A new trial will not be necessary. In so doing, we express no opinion as to whether undue influence has or has not been established by this record.”

The trial judge entered a Final Decree On Mandate making comprehensive and extensive findings of fact and setting forth his conclusions of law.

Pertinent portions of the Final Decree On Mandate are set forth as follows:

“1. WINIFRED STUART LEE, a longtime resident of Dade County, Florida, died May 24, 1974 at the age of 83 years.

* * * * * *

“2. In the year of decedent’s demise she had been in the hospital from January 31, 1974 to February 19, 1974, and again from April 19, 1974 until her death. Though she had been in failing health since the latter part of 1973, her physical and mental condition deteriorated from January of 1974 onward so that she was from that point totally bedridden, hard of hearing, had poor eyesight, was from time to time confused and disoriented, suffered periodic hallucinations and exhibited numerous symptoms of disability, together with her physical ailments. She was almost totally dependent upon her housekeeper and others to care for her and administer to her necessities of life.

“The decedent had become increasingly concerned about her inability to properly supervise and manage her finances due to her poor health, and with the assistance of her attorneys of long-standing who had represented her and her deceased husband for over 20 years (the Patton law firm), a custodian agreement dated October 25, 1973 with defendant, CITY NATIONAL BANK OF MIAMI, was entered into whereby her personal property in the nature of marketable securities and cash valued at over $100,-000 were managed by the custodian under written agreement. Notwithstanding the custodian agreement, Mrs. Lee retained certain personal checking accounts upon which she could write her own checks in payment of her current obligations and necessities. After the opening of the custodian account, the decedent was hospitalized in December 1973 and again in January of 1974, and her physical and mental condition deteriorated to the point that current bills were unpaid. That the salary of her housekeeper, MARY NOETHEN, was not only unpaid, but the housekeeper found it necessary to advance her own funds for the purchase of food and the payment of immediate expenses. Mail was unopened and in general there was a total inability on the part of Mrs. Lee to manage her affairs. After conferences with the housekeeper and Mrs. Lee regarding this unfortunate situation, and in order to assist in the performance of these everyday tasks for her which were not encompassed within the custodian agency agreement, Mrs. Lee, on March 13, 1974, executed a power of attorney to DONALD W. STOBS, Jr., of the ‘Patton’ law firm for the purpose of enabling him to assist her in the management of her affairs and to keep current the household obligations and immediate necessities of Mrs. Lee. Shortly after the execution of the power of attorney, the personal checking account and banking account of Mrs. Lee were terminated and arrangements made with the custodian bank to take over those funds and for the bank to pay obligations as approved and requested by Mr. Stobs, the attorney-in-fact.

“4. For a period of approximately one and one-half to two years prior to her demise, the decedent had a live-in housekeeper, MARY NOETHEN, who looked after her, performed the required household tasks and was employed on a salary basis. As her health deteriorated, she relied upon MARY NOETHEN increasingly to do everything for her and administer to her needs as a full-time companion and nurse. MARY NOETHEN, during the latter part of 1973 and thereafter, demanded salary raises due to the increase in her duties as the health of the decedent failed. These salary demands included statements that she would leave the decedent alone without anyone to care for her unless they were met. She was also being thwarted in her demands for unpaid salary and for reimbursement of expenses she had incurred on behalf of the decedent. Mrs. Noethen became increasingly concerned as first the custodian agency agreement, and then the “Stobs” power of attorney indicated to her that decedent was losing control of her property, and especially was this true when the personal bank accounts of Mrs. Lee were closed and she lost her privilege of writing her own checks on her personal bank account. All of this concern was expressed to Mrs. Lee and when Mrs. Lee realized that her bank accounts had been closed and that her entire financial affairs had been placed in the hands of the bank and Mr. Stobs of the law firm, she became extremely agitated and requested Mrs. Noethen to write a letter to her step-son, ROBERT EMMETT LEE, the son of her deceased husband, asking him to come to Florida from his home in Illinois to discuss with her her personal affairs and assist her in regaining personal control of her property.

“5. The letter to ROBERT EMMETT LEE in Illinois under date of 15 March 1974 was written by MARY NOETHEN and signed by WINIFRED LEE. It requested him to come to Florida at his earliest convenience to discuss Mrs. Lee’s affairs.

“The defendant, ROBERT EMMETT LEE, was the son of WARREN CUBBON LEE, to whom WINIFRED STUART LEE became married in 1955. At the time of this marriage, Mr. Lee was a grown man and was and now is a practicing attorney at law in Illinois. After the marriage of WARREN and WINIFRED LEE, there was little or no contact over the ensuing 20 years between WINIFRED STUART LEE and her step-son, ROBERT EMMETT LEE, other than two visits. The first such visit was in 1957 to attend the funeral of Robert’s father, WARREN CUBBON LEE, in Miami, Florida; and the second such visit was in March 1974 which gave rise to the incidents and transactions at issue in this law suit.

“The Court finds from all the evidence presented in this cause that WINIFRED STUART LEE, the decedent, being agitated and concerned over having relinquished personal control of her financial affairs and having no husband or child to counsel with her, and knowing that her step-son, ROBERT EMMETT LEE, was an attorney at law, she requested his coming to Miami, Florida to assist her in remedying her concerns and to regain personal control of her property. The defendant, ROBERT EMMETT LEE, arrived in Miami on March 21, 1974. He left the City of Miami to return to Illinois on March 28,1974. In that period of time, and as a direct result of his actions as hereinafter enumerated, rather than the decedent regaining control over her property, she was, in effect, left with no property at all due to the gift transfers made by her to the defendants, ROBERT EMMETT LEE and his wife, at Mr. Lee’s undertaking after his arrival. The deed to her home-place, the assignment of all of her personal property of every kind and character, and the power of attorney obtained by Mr. Lee from her, notwithstanding that they were joint with right of survivorship, left WINIFRED STUART LEE, the decedent, in a completely penniless condition dependent entirely upon the willingness of her stepson through his ownership of all of her personal estate and the power of attorney to provide for her necessities of life, her nursing care, and even the cost or expense of her last illness and burial upon her death.

“6. The following are some of the facts and events which took place during the March 21-28, 1974 visit by ROBERT EMMETT LEE:

“(a) He stayed at decedent’s residence during the entire visit.

“(b) He was aware that decedent had been in the hospital immediately prior to his visit. Mr. Lee obviously became aware of the decedent’s extremely frail health upon his arrival in Miami; that her bedridden and wheel-chair condition clearly indicated to any prudent person a very short life expectancy which in fact was to be for a period of about 60 days thereafter.

“(c) He examined the papers of decedent located at her house.

“(d) He entered decedent’s safe deposit box and brought her its contents.

“(e) He prepared, typed and actively procured execution by decedent of the Warranty Deed of March 23,1974, and the Personal Property Assignment of March 23, 1974.

“(f) These documents which effectively transferred decedent’s entire estate to Defendants Lee were a material deviation from her long-standing testamentary scheme.

“(g) He prepared, typed and actively procured execution by decedent of the Power of Attorney dated March 27, 1974, naming him Attorney-in-fact for decedent and effectively revoking the Stobs’ Power of Attorney. The effect of this Power of Attorney given to him by the decedent was to place in his hands the exclusive control of all of the decedent’s personal estate.

“(h) He hired an attorney (J. M. GOMEZ) to notarize the Warranty Deed and advise him about the necessary documents to effect a survivorship conveyance of decedent’s property.

“(i) He did not consult with the Patton law firm, decedent’s attorneys of longstanding, until after all the documents in question had been executed and/or recorded.

“(j) He directed and supervised the reading of the documents to the decedent, the gathering of witnesses for signature, and the actual execution of the documents. The lay witnesses to the signing of the documents in question obviously did not know their legal significance. Their testimony contained numerous references to the fact that decedent wanted to regain and keep control of her property and not have her homeplace taken away from her.

“(k) He recorded the Warranty Deed and personally paid for the recording and documentary stamp charges.

“(j) He increased the salary paid to MARY NOETHEN, thereby gaining her cooperation and placing her in a position of reliance upon him.

“(m) Having knowledge of the decedent’s Last' Will and Testament and its provisions prior to the preparation of the gift documents aforesaid (see the similarity of language between that contained in the Will and that contained in the assignment of the personal property), he procured a total departure from not only the decedent’s longstanding testamentary disposition of her property, but also a total departure from what the decedent sought to accomplish when she requested him to come to Florida to assist her in what she considered a serious matter.

“7. When viewed as a whole in the light of the existing circumstances, the above and foregoing facts and events clearly reflect that ROBERT EMMETT LEE took advantage of the weakened mental and physical condition of the decedent, caused her to interpose in him trust, confidence and reliance, went beyond her desires for ‘regaining control of her property’, and dealt with her on terms of inequality so as to actively procure the execution by her of the gift documents in question which divested her of her entire estate under circumstances of undue influence, and by virtue of which Defendant Lee was unjustly enriched.

CONCLUSIONS OF LAW

“Based upon the testimony, documentary evidence, pleadings on file, and the observation of the demeanor of the witnesses, it is the finding of the Court that following the arrival of ROBERT EMMETT LEE in the decedent’s household on March 21, 1974, a fiduciary or confidential relationship with the decedent existed, the said ROBERT EMMETT LEE being not only her step-son but an attorney at law from whom she sought counsel and guidance to relieve her anxiety over her financial affairs. A presumption that these gift transactions, made without any consideration, were obtained by undue influence or other improper means thereupon arose. The burden was then upon the donees to rebut this presumption by coming forth with a reasonable explanation of Mr. Lee’s active role in the decedent’s affairs. In re Estate of Carpenter, 253 So. 697 (Fla.1971); Majorana v. Constantine, 318 So.2d 185 (District Court of Appeal, 2d District, August 6, 1975).

“ROBERT EMMETT LEE was called to the home of his step-mother, WINIFRED STUART LEE, because of her anxiety over her relinquishment of control of her assets into a custodial account and the execution of a power of attorney to an attorney in her lawyer’s firm, giving him the authority to pay her incidental bills and manage daily her affairs. Her purpose in calling her step-son to her home was to set these matters aside and regain control of her property. She constantly made reference to the fact that she did not want to lose her home. Upon the arrival of ROBERT EMMETT LEE and his taking over the role of protector of her interests, not only as a step-son, but as an attorney at law, the objective for which he was called was not only totally unaccomplished in so far as restoring management and control of her property to WINIFRED STUART LEE, but in fact resulted in a transfer of that authority from the bank and the attorney STOBS to ROBERT EMMETT LEE himself, together with an added bonus to Mr. Lee in that his activity accomplished not only possession and control but a complete transfer of ownership of her home and her personal estate to himself and his wife upon the death of WINIFRED STUART LEE.

“The Court can find no reasonable explanation in the record of why the Defendant, ROBERT EMMETT LEE, an attorney at law, and almost a stranger to the decedent, notwithstanding the fact that he was a step-son, being called to the bedside of the decedent to relieve her anxiety over the loss of control of her property, nevertheless, in the course of one week’s time, by his own actions and procurement, became, together with his wife, the sole assignee and grantee of all of the decedent’s property and possessed of a power of attorney giving him full and absolute control of her financial affairs, notwithstanding that he was a nonresident of the State of Florida returning to Illinois immediately, and placing him in that status in lieu of a bank and her attorneys of long-standing who took no title by virtue of their position but merely the preservation and care, and protection of her properties. This activity on the part of the Defendant Lee effectively changed her long-standing testamentary plan whereby the Defendants Lee received the entire estate of the decedent by way of gift rather than one-eighth thereof by way of testamentary disposition, and to the exclusion of the charitable beneficiaries of the decedent to the extent of seven-eights thereof. That all of this was accomplished while the decedent was in a weakened mental and physical condition is further evidenced by the fact that within 60 days after the LEE’s return to Illinois, WINIFRED STUART LEE died, with the greater portion of that time spent as a totally disabled patient in a hospital. The Court finds that even absent the confidential relationship which existed, the gift transactions, without consideration, accomplished solely by the activity of the donees, together with the evidence of the mental and physical weakness of the decedent, her lack of advice from prior counsel of long-standing, and her mistaken impression that she was regaining control of her property, demonstrate that unfair advantage was taken of the decedent to the unjust enrichment of the Defendants Lee.”

These findings and conclusions are amply supported by the evidence in the record. A fiduciary relationship was created between the deceased and her stepson and from the circumstances and atmosphere surrounding their dealings wherein she, shortly before her death, executed instruments which effectively transferred all assets in her estate to the full and complete control of her stepson and his wife. Consequently, a presumption of undue influence arose concerning the inter vivos transfers. There has been no reasonable explanation by appellant (Robert Emmett Lee) as to his dealings with his stepmother relative to these gifts. Appellants contend the final judgment is not supported by the evidence. There is conflict in the evidence, but careful review of the record leads us to the conclusion that it is amply supported by competent substantial evidence.

All other questions raised by the appellants have no merit and do not warrant reversal of the judgment of the lower court.

Affirmed.

      . This final decree is essentially the same final decree entered by the trial judge and reviewed by this court on the first appeal, except for that portion of the burden placed on the donee to rebut presumption of undue influence which was rejected by this court.


text:
    Derwin BRENNAN, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee.
    No. 77-1324.
    District Court of Appeal of Florida, Third District.
    May 23, 1978.
    Rehearing Denied June 28, 1978.
    Wolfson, Appel & Maram and Anthony J. Brown, Miami, for appellant.
    Walton, Lantaff, Schroeder & Carson and Joan S. Buckley and George Chesrow, Miami, for appellee.
    Before BARKDULL and HUBBART, JJ., and PARKER, J. GWYNN (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Green v. State, 93 Fla. 1076, 113 So. 121 (1927); Box v. Massachusetts Bonding & Insurance Co., 187 So.2d 58 (Fla. 3d DCA 1966); McKay v. Highlands Insurance Company, 287 So.2d 393 (Fla. 3d DCA 1973); Laster v. United States Fidelity & Guaranty Company, 293 So.2d 83 (Fla. 3d DCA 1974); Barnes v. Travelers Insurance Company, 342 So.2d 1065 (Fla. 3d DCA 1977). Compare: Allstate Insurance Company v. Korschun, 350 So.2d 1081 (Fla. 3d DCA 1977).