text:
    THE FLORIDA BAR. In re Stuart E. KOCHA.
    No. 47591.
    Supreme Court of Florida.
    July 16, 1975.

      Norman A. Faulkner, Staff Counsel, and David G. McGunegle, Asst. Staff Counsel, Tallahassee, for The Florida Bar, complainant.
    William H. Pruitt, West Palm Beach, for respondent.
   PER CURIAM.

This matter is before the Court on Petition for Approval of Conditional Guilty Plea and Entry of Final Order of Discipline.

On March 19, 1975, the Judicial Circuit Grievance Committee filed its report finding in part as follows:

“Mr. Kocha testified that when he opened his practice in January of 1973, he opened both a trust account and a regular office account with the bank. He stated that by mistake the $10,000.00 settlement money obtained for Mr. & Mrs. Taylor was deposited into his office account and not into the trust account. The Taylor money was kept in the general account from March of 1973 until the final case was closed in July of 1974. During this period of time, there was no money held in the trust account for Mr. & Mrs. Taylor. The bank records which make up the committee’s Composite Exhibit “9” show that the balance of Mr. Kocha’s account fell below the amount which he should have holding for Mr. & Mrs. Taylor’s benefit during April and May of 1973. This was admitted by Mr. Kocha’s attorney as is shown on page 88 of the transcript. Mr. Kocha maintained that he simply was careless and did not intend to use the Taylor’s funds. He stated that he realized the need for a proper trust account and was now using this in his office.”

The Committee found that Mr. Kocha had violated Rule 11.02(4).

The Petition for Approval of Conditional Guilty Plea is granted and, Respondent, Stuart E. Kocha, is hereby disciplined by public reprimand to be published in the Southern Reporter based upon the facts set forth above. The publication of this Opinion shall serve as the public reprimand to Respondent.

Costs in the amount of $385.50 are hereby taxes against Respondent.

It is so ordered.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and ENGLAND, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    THE FLORIDA BAR. In re Roger H. HARPER.
    No. 47244.
    Supreme Court of Florida.
    June 25, 1975.
    Rehearing Denied Aug. 27, 1975.

      Norman A. Faulkner, Staff Counsel, and David G. McGunegle, Asst. Staff Counsel, Tallahassee, for complainant.
    Roger H. Harper, in pro. per.
   PER CURIAM.

This matter is before the Court on Petition for Approval of Conditional Guilty Plea and Entry of Final Order of Discipline, the response to the Petition filed by the respondent, and various other motions.

On October 15, 1974, The Florida Bar filed its Complaint alleging:

COUNT I

“1. The Respondent, ROGER H. HARPER, is, and at all times hereinafter mentioned was, a member of The Florida Bar, subject to the jurisdiction and disciplinary rules of the Supreme Court of Florida.
“2. This Complaint is filed by The Florida Bar, by direction of its Board of Governors, and all conditions prerequisite to the filing of said Complaint, required by the Integration Rule, have been fulfilled.
“3. On or about November 3, 1971, the Respondent acting either individually or as an agent for his client, Albert R. Lee, loaned to Hemmerle Industries, Inc. $10,000 for 25 days, the amount of interest being $1,750.
“4. By making the aforementioned extension of credit and willfully and knowingly charging, taking or receiving interest at a rate exceeding forty-five percent (45%) per annum or the equivalent rate for a shorter period of time, The Respondent has committeed (sic) a felony in violation of Section 687.071(3) Florida Statutes, and he has violated Disciplinary Rules 1-102(A)(3) and (4), 5-104(A) and 7-102(A) (7) and (8) of the Code of Professional Responsibility and Rules 11.02(3) (a) and (b) of the Integration Rule of The Florida Bar.

COUNT II

“1. Complainant realleges the matter presented in paragraphs 1 and 2 of Count I.
“2. On or about December 7, 1972, the Respondent, acting either individually or as an agent for his client William Bin-zen, loaned $15,000 to Kenneth V. Hem-merle for a period of 60 days, the amount of interest being $2,600.
“3. By making the aforementioned extension of credit and willfully and knowingly charging, taking or receiving interest at a rate exceeding forty-five percent (45%) per annum or the equivalent rate for a shorter period of time, the Respondent has committed a felony in violation of Section 687.071(3) Florida Statutes, and he has violated Disciplinary Rules 1-102(A) (3) and (4), 5-104(A) and 7-102(A)(7) and (8) of the Code of Pro1 fessional Responsibility and Rules 11.-02(3) (a) and (b) of the Integration Rule of The Florida Bar.

COUNT III

“1. Complainant realleges the matters presented in paragraphs 1 and 2 of Count I.
“2. On or about December 29, 1972, The Respondent, acting either individually or as an agent for his client Albert R. Lee, loaned to Hemmerle Industries, Inc. $10,000 for 21 days with the amount of interest being $1,750.
“3. By making the aforementioned extension of credit and willfully and knowingly charging, taking or receiving interest at a rate exceeding forty-five percent (45%) per annum or the equivalent rate for a shorter period of time, the Respondent has committed a felony in violation of Section 687.071(3) Florida Statutes, and he has violated Disciplinary Rules 1-102(A) (3) and (4), 5-104(A) and 7-102(A)(7) and (8) of the Code of Professional Responsibility and Rules 11.-02(3) (a) and (b) of the Integration Rule of The Florida Bar.

COUNT IV

“1. Complainant realleges the matters presented in paragraphs 1 and 2 of Count I.
“2. In April, 1973, Respondent undertook representation of Hemmerle Industries, Inc. in its legal dispute with Walter Kassuba Realty Corporation.
“3. Respondent undertook this representation despite the fact that Hemmerle Industries, Inc. was in default on the December 29, 1972 loan referred to in Count III made by the Respondent acting either individually or as an agent for his client Albert R. Lee.
“4. Respondent undertook the aforementioned representation of Hemmerle Industries, Inc. despite the fact that if collection was undertaken on the defaulted loan, the Respondent stood to either collect substantial attorney’s fees in the collection of the debt if he acted as Lee's agent and attorney, or if, in fact, the respondent made the loan individually he would have interests adverse to his client Hemmerle Industries, Inc.
“5. Respondent undertook the aforementioned representation despite the fact that Kenneth V. Hemmerle, a principal stockholder of Hemmerle Industries, Inc., was in default on the December 7, 1972 loan made by the Respondent acting either individually or as an agent for his client William Binzen.
“6. Respondent undertook the aforementioned representation of Hemmerle Industries, Inc. despite the fact that if collection was undertaken on the defaulted loan of December 7, 1972, the Respondent stood to either collect substantial attorney’s fees in the collection of the debt if he acted as Binzen’s agent and attorney, or if, in fact, the Respondent made the loan individually he would have interests adverse to his client Hem-merle Industries, Inc.
“7. By undertaking the representation of a client owing considerable sums to either himself or other clients, the Respondent violated Disciplinary Rules 5-101(A), 5-103 (A), 5-104(A) and 5-105(A) and (B) of the Code of Professional Responsibility and Rule 11.02(3) (a) of the Integration Rule.

COUNT V

“1. Complainant realleged the matters presented in paragraphs 1 and 2 of Count I.
“2. The Respondent, in April, 1973 was hired by Hemmerle Industries, Inc. to represent it in a legal dispute with Walter Kassuba Realty Corporation.
“3. At the time the Respondent was hired by Hemmerle Industries, Inc. he was in possession of 100 shares of its corporate stock as security for a loan made earlier to Hemmerle Industries, Inc. by either the Respondent or his client Albert R. Lee.
“4. The Respondent while negotiating with Walter Kassuba of Walter Kassuba Realty Corporation sold, without the knowledge, authority or consent of his client Hemmerle Industries, Inc., the 100 shares of Hemmerle Industries, Inc. stock he was holding as security to Walter Kassuba for $50,852.77.
“5. The proceeds from the sale of the Hemmerle Industries, Inc. stock was used to satisfy loans to Hemmerle Industries, Inc. and Kenneth V. Hemmerle by either the Respondent individually or his clients Albert R. Lee and William Bin-zen.
“6. The 100 shares of stocks of Hem-merle Industries, Inc. sold by the Respondent to Walter Kassuba represented twenty per cent (20%) of the ownership in the closely held corporation.
“7. By reason of the sale of the stock of his client that he held in trust, the Respondent violated Rules 9-102(B)(2) (3) and (4), 5-101 (A), 5-103(A), 5-104 (A) and 5-105 (A) and (B) of the Code of Professional Responsibility and also Rules 11.02(3) (a) and (4) of the Integration Rule of The Florida Bar.”

The Respondent submitted a conditional guilty plea' to counts IV and V in exchange for not prosecuting him on the first three counts.

The Petition for Approval of Conditional Guilty Plea is granted, and Respondent, Roger H. Harper, is hereby suspended for a period of six months with required proof of rehabilitation pursuant to Integration Rule 11.10(3), and it is further

Ordered that this suspension shall be effective July 25, 1975, thereby giving respondent thirty (30) days to close out his practice and take the necessary steps to protect his clients, and it is further

Ordered that respondent shall pay the costs of these proceedings in the amount of $761.90.

ADKINS, C. J„ and ROBERTS, BOYD, OVERTON and ENGLAND, JJ., concur.

ON REHEARING

On consideration of the Petition for Rehearing filed by respondent and response thereto,

It is ordered that Respondent is allowed to continue to represent Mr. Salva in the trial which was scheduled for August 21, 1975; otherwise the Petition for Rehearing is denied.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and ENGLAND, JJ., concur.


text:
    CITY OF MIAMI, Florida, et al., Petitioners, v. Joseph H. BUTCHER et al., Respondents.
    No. 46655.
    Supreme Court of Florida.
    July 3, 1975.
    Rehearing Denied Oct. 8, 1975.
   Certiorari denied. 303 So.2d 378.

ADKINS, C. J., and McCAIN, OVER-TON, and ENGLAND, JJ., concur.

ROBERTS, J., dissents.


text:
    Nelson A. STINCHOMB, Petitioner, v. MUTUAL LIFE INSURANCE COMPANY OF NEW YORK, Respondent.
    No. 46868.
    Supreme Court of Florida.
    July 3, 1975.
    Rehearing Denied Sept. 29, 1975.
   Certiorari denied. 305 So.2d 84.

ROBERTS, BOYD, OVERTON and ENGLAND, JJ., concur.

ADKINS, C. J., dissents.


text:
    Vincent Charles D’AMATO, Petitioner, v. STATE of Florida, Respondent.
    No. 47156.
    Supreme Court of Florida.
    July 11, 1975.
    Rehearing Denied Oct. 7, 1975.
   Certiorari denied 308 So.2d 634.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and ENGLAND, JJ., concur.


text:
    Charles E. CADDELL and Margaret Caddell, Petitioners, v. Elaine B. STELIGA and State Farm Mutual Automobile Insurance Company, Respondents.
    No. 47138.
    Supreme Court of Florida.
    July 14, 1975.
    Rehearing Denied Sept. 29, 1975.
   Certiorari denied. 308 So.2d 56.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and ENGLAND, JJ., concur.


text:
    Larry Kent STUTZ, Petitioner, v. PIPER AIRCRAFT CORPORATION et al., Respondents.
    No. 46979.
    Supreme Court of Florida.
    July 16, 1975.
    Rehearing Denied Oct. 9, 1975.
   Certiorari denied.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and ENGLAND, JJ., concur.


text:
    Charles Houston CROCKETT, Petitioner, v. TOLE ELECTRIC OF FLORIDA et al., Respondents.
    No. 47292.
    Supreme Court of Florida.
    July 28, 1975.
    Rehearing Denied Sept. 30, 1975.
   Certiorari denied.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and ENGLAND, JJ., concur.


text:
    HART LAND & CATTLE COMPANY, INC., etc., Petitioner, v. REEVES STEEL, INC., etc., Respondent.
    No. 47262.
    Supreme Court of Florida.
    July 29, 1975.
    Rehearing Denied Sept. 29, 1975.
   Certiorari denied. 309 So.2d 611.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and ENGLAND, JJ., concur.


text:
    Luis F. DUTY, Petitioner, v. STATE of Florida, Respondent.
    No. 47173.
    Supreme Court of Florida.
    July 31, 1975.
    Rehearing Denied Oct. 8, 1975.
   Certiorari denied. 309 So.2d 636.

ROBERTS, BOYD, OVERTON, and ENGLAND, JJ., concur.

ADKINS, C. J., dissents.


text:
    Irving JACKSON et ux., Petitioners, v. Wilson L. HOLMES et ux., Respondents.
    No. 47144.
    Supreme Court of Florida.
    July 31, 1975.
    Rehearing Denied Oct. 8, 1975.
   Certiorari denied. 307 So.2d 470.

ADKINS, C. J., and ROBERTS, OVERTON, and ENGLAND, JJ., concur.

BOYD, J., dissents.


text:
    J. A. BELCHER et al., Petitioners, v. Irwin Edward SCHILLING, Respondent.
    No. 47252.
    Supreme Court of Florida.
    July 31, 1975.
    Rehearing Denied Oct. 8, 1975.
   Certiorari denied. 309 So.2d 32.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and ENGLAND, JJ., concur.


text:
    P. J. CALLAGHAN CO., INC. and Gulf Insurance Group, Petitioners, v. LaVaughn N. WHITSTON, Deceased, et al., Respondents.
    No. 47014.
    Supreme Court of Florida.
    Aug. 6, 1975.
    Rehearing Denied Oct. 3, 1975.
   Certiorari denied.

ADKINS, C. J., and ROBERTS, BOYD and OVERTON, JJ., concur.

ENGLAND, J., dissents.


text:
    John E. CARDINI, etc., et al., Petitioners, v. Janina CARDINI, widow, Respondent. Janina CARDINI, Petitioner, v. John E. CARDINI, etc., et al., Respondents.
    Nos. 46812, 46893.
    Supreme Court of Florida.
    Sept. 4, 1975.
   Certiorari denied. 305 So.2d 71.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and ENGLAND, JJ., concur.


text:
    STATE of Florida ex rel. Robert R. QUINN, Appellant, v. Morton PERRY, Judge, etc., Appellee.
    No. 47962.
    Supreme Court of Florida.
    Sept. 4, 1975.
   Case dismissed sua sponte.


text:
    Joseph M. OGLESBY and Marie Oglesby, his wife, Plaintiffs, v. William E. POWELL and Janice I. Powell, etc., et al., Defendants.
    No. X-419.
    District Court of Appeal of Florida, First District.
    Sept. 9, 1975.
    J. David McFadden of Hoffman, Hen-dry, Parker & Smith, Daytona Beach, for plaintiffs.
    A. Craig Cameron of Gosney, Haas, Cameron & Parsons, and Ossinsky & Krol, Daytona Beach, for defendants.
   PER CURIAM.

The certified question here presented is not in compliance with Rule 4.6, Florida Appellate Rules. The question is one that will be determinative of the cause only if it is answered in a particular way and will not be determinative of the cause if it is answered in another. Such a question in a legal action may be presented to this court by common law certiorari if the trial court makes an interlocutory ruling upon it and if the necessary requisites set forth in Dairyland Insurance Company v. McKenzie, Fla.App.(lst), 251 So.2d 887, are clearly established.

Certified question denied.

BOYER, C. J., and RAWLS and Mc-CORD, JJ., concur.


text:
    William R. PRICE, Appellant, v. Robert M. HEWITT, Appellee.
    No. 74-774.
    District Court of Appeal of Florida, Third District.
    Sept. 23, 1975.
    Noriega & Bartel and Bill Shuford, Jr., Miami, for appellant.
    Hansford D. Tyler, Jr., Miami, for ap-pellee.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   PER CURIAM.

Affirmed. See Manning v. Clark et al., Fla.1951, 56 So.2d 521; Charles Sales Corp. v. Rovenger, Fla.1956, 88 So.2d 551.


text:
    Herbert ADLER et al., Appellants, v. Samuel SKLIAR, as Trustee, and Gilbert Sens, Appellees.
    No. 74-1062.
    District Court of Appeal of Florida, Third District.
    Sept. 23, 1975.
    Fink & Syna, Miami, for appellants.
    No appearance for appellees.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Affirmed. See this court’s opinion in Altein v. Slavia, Inc., Fla.App., 318 So.2d 448, filed September 23, 1975.


text:
    STATE of Florida, Appellant, v. Claude Robert BOWLE, Appellee.
    No. 74-1711.
    District Court of Appeal of Florida, Fourth District.
    Aug. 29, 1975.
    Rehearing Denied Sept. 29, 1975.
    David H. Bludworth, State’s Atty., and Louis Silber, Asst. State’s Atty., West Palm Beach, for appellant.
    Edward W. Starr, of Starr & Brown, West Palm Beach, for appellee.
   PER CURIAM.

This is an appeal by the State from an order granting defendant a new trial.

Defendant was charged by information with two counts of grand larceny and found guilty by a jury. Defendant’s motion for new trial was granted. The record reflects that the order was predicated primarily upon the trial court’s own view of the evidence, in particular, lack of proof of intent; and the trial court’s feelings about the nature of the criminal charges and the sufficiency of the evidence in support thereof.

While an appellate court is reluctant to disturb an order granting a hew trial, where the record clearly reflects an abuse of discretion the appellate court is left with no alternative. State v. Coles, Fla.1956, 91 So.2d 200. The record contains sufficient evidence to support a jury verdict; in particular, the determination of the sufficiency of the evidence was a jury question and the question of intent was for the jury. Casso v. State, Fla.App.1966, 182 So.2d 252, 256; cf. Willard v. Bowen, Fla.App.1974, 294 So.2d 696; Altman Cooling Corp. v. Florida Heat & Power, Inc., Fla.App.1974, 305 So.2d 225. A trial judge is not permitted to sit as a seventh juror with veto power pitting his judgment against that of the jury. Laskey v. Smith, Fla.1970, 239 So.2d 13.

The order granting defendant’s motion for new trial constitutes an abuse of discretion and is reversed with directions to reinstate the jury verdict.

Reversed.

OWEN and MAGER, JJ., concur.

WALDEN, C. J., dissents, without opinion.


text:
    Maureen Brody HARWITZ, Appellant, v. John M. STEMBRIDGE and Bankers Fire & Casualty Insurance Company, Appellees.
    No. 74-1390.
    District Court of Appeal of Florida, Third District.
    Sept. 23, 1975.
    Lapidus & Hollander, Miami, for appellant.
    Byrd V. Duke, Jr., North Miami, for ap-pellees.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Affirmed. See McGregor v. Burnett, Tax Collector, 105 Fla. 447, 141 So. 599 (1932) and Iowa Mutual Insurance Company v. Gulf Heating & Refigeration Co., Inc., Fla.App. 1966, 184 So.2d 705.


author: DOWNEY, Judge.

text:
    BROWARD COUNTY et al., Appellants, v. TEAMSTERS LOCAL UNION NO. 769, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, a voluntary unincorporated association, Appellees.
    No. 74-1699.
    District Court of Appeal of Florida, Fourth District.
    Sept. 12, 1975.
    Joseph A. Caldwell, of Muller & Mintz, Miami, for appellants.
    William T. Coleman, Jr., and Allan M. Elster, of Mamber, Gopman, Epstein & Foosaner, North Miami Beach, for appel-lees.
   DOWNEY, Judge.

Having studied the briefs and record, together with the advices of counsel regarding the question of mootness, we are of the opinion that the points on appeal are now moot and that jurisdiction of the issues involved between the parties is in the Public Employees Relations Commission pursuant to Chapter 447, F.S.1974.

Accordingly, this appeal is dismissed.

WALDEN, C. J., and MAGER, J., concur.


text:
    Petition of James Steven HUGHES.
    No. 74-1087.
    District Court of Appeal of Florida, Fourth District.
    Sept. 12, 1975.
    Stephen M. Stone, Orlando, for appellants James Steven Hughes and Janyce Lynn Hughes.
    No appearance for appellee.
   DOWNEY, Judge.

In a step-parent adoption proceeding the respondent natural father in addition to contesting the adoption also cross petitioned against the natural mother to obtain custody of the child. At trial the step-parent abandoned his petition for adoption leaving the custody issue for resolution by the court. The final judgment awarded custody to the natural mother and fixed definite visitation rights for the natural father. The natural father filed a Petition for Clarification and Enforcement of Judgment for Visitation, alleging that the mother had failed to comply with the oral order of the court made the day of the trial relative to visitation. Said motion was noticed for hearing on a day certain but only counsel for the respective parties attended and no testimony was taken. Several days later the court entered the order under review and found the mother in contempt for failing “to comply with paragraph 6 of this Court’s order dated June 24, 1974.” The court did not sentence the mother pursuant to its finding of contempt, but it did provide a manner in which she could purge herself of contempt. Finally, the court assessed a $100 attorney’s fee against the mother.

In our judgment the finding that the mother was in contempt cannot stand. The matter was before the court on the natural father’s unsworn motion, and no testimony was taken upon which to base the adjudication of contempt. Although the quality of the burden of proof is heavier in a criminal contempt proceeding, still a finding of civil contempt is a serious matter and cannot be entered unless the moving party has proved his allegations by a preponderance of the evidence. In re S. L. T., Fla.App.1965, 180 So.2d 374. As we noted above,, in the present case the mov-ant offered no evidence to support his allegations. Therefore the finding of contempt was improper.

Since we hold the adjudication of contempt to be erroneous, it follows the assessment of attorney’s fees against the appellants is also error.

Reversed.

CROSS and OWEN, JJ., concur.


text:
    In re ESTATE of Joan Barbara Foster BIGGER, Deceased.
    No. 75-30.
    District Court of Appeal of Florida, Fourth District.
    Sept. 12, 1975.
    James P. O’Flarity, Palm Beach, for appellant-Warren E. Foster.
    Stephen A. Rapp, of Gunster, Yoakley, Criser, Stewart & Hersey, Palm Beach, for appellee-Linda Freeh.
   PER CURIAM.

We affirm the appealed order without prejudice to appellant’s right to attempt to establish a constructive trust or a fiduciary capacity via independent proceedings in the Circuit Court.

Affirmed.

WALDEN, C. J., and CROSS and DOWNEY, JJ., concur.


text:
    SOUTHEASTERN FIDELITY INSURANCE COMPANY, Appellant, v. Cressie ADAMS, as parent and natural guardian of Bobby Davis, a minor, Appellee.
    No. 75-26.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 1975.
    Gary L. Dirlam, Hoffman Hendry Parker & Smith, Orlando, for appellant.
    Mel R. Martinez, Billings Frederick Wooten & Honeywell, Orlando, for appel-lee.
   PER CURIAM.

The minor appellee, Bobby Davis, was injured when as a pedestrian he was struck by an automobile. Pursuant to the Florida Automobile Reparations Reform Act, the minor appellee received the amount of $1,606.00 personal injury protection benefits from his own insurer, appellant herein, Southeastern Fidelity Insurance Company. The minor appellee through his next friend, guardian and parent, Cressie Adams, and the tortfeasor’s insurance carrier, Allstate Insurance Company, agreed to settle the minor’s personal injury claim for the total sum of $6,750.00.

Thereafter, appellee Cressie Adams, as next friend, guardian and parent of Bobby Davis, filed a petition for equitable distribution seeking of the trial court a determination as to the amount of money that the appellees’ insurer, Southeastern Fidelity Insurance Company, would be entitled to be reimbursed for the personal injury protection benefits paid by Southeastern Fidelity Insurance Company to the minor ap-pellee. A hearing was held on the petition. The trial court then entered an order denying Southeastern Fidelity Insurance Company the right to any reimbursement for personal injury protection benefits paid the minor appellee. It is from this order that Southeastern Fidelity Insurance Company takes the instant appeal.

Upon review of the record and after consideration of the briefs and oral argument of counsel for the respective parties, we determine that the trial court did not follow the principles delineated in American Fire and Casualty Company v. Oller, 313 So.2d 67 (Fla.App.1975), in determining the amount of reimbursement, if any, due Southeastern Fidelity Insurance Company for personal injury protection benefits paid the minor appellee. The trial court, therefore, erred in entering the order herein appealed.

Accordingly, the order on petition for equitable distribution is reversed and the cause remanded to the trial court for further consideration in light of the principles delineated in American Fire and Casualty Company v. Oller, supra.

Reversed and remanded.

WALDEN, C. J., and CROSS and DOWNEY, JJ., concur.


text:
    Donnie ROGERS, Appellant, v. The STATE of Florida, Appellee.
    No. 75-245.
    District Court of Appeal of Florida, Third District.
    Sept. 23, 1975.
    Phillip A. Hubbart, Public Defender, Mark King Leban, Asst. Public Defender, and Irv Lamel, Legal Intern, for appellant.
    Robert L. Shevin, Atty. Gen., and Lance R. Stelzer, Asst. Atty. Gen., for appellee.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

Affirmed on the authority of Davis v. State, Fla.1974, 297 So.2d 289; § 924.33 Fla.Stat.


text:
    Donel TARPLEY, Appellant, v. The STATE of Florida, Appellee.
    No. 75-557.
    District Court of Appeal of Florida, Third District.
    Sept. 16, 1975.
    Donel Tarpley, in pro per.
    Robert L. Shevin, Atty. Gen., for appel-lee.

      Before BARKDULL, C. J, and PEARSON and HENDRY, JJ.
   PER CURIAM.

This court, proceeding in the manner outlined and recommended by the Supreme Court of the United States in Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493, having deferred ruling on a motion of the public defender to withdraw as counsel for the indigent defendant-appellant, and having furnished appellant with a copy of the public defender’s memorandum brief, and having allowed the appellant a reasonable specified time within which to raise any points that he chose in support of his appeal, and the appellant having failed to respond thereto, on consideration thereof, upon full examination of the proceedings, we conclude that the appeal is wholly frivolous. Whereupon, the public defender’s said motion to withdraw is granted, and the order or judgment appealed is hereby affirmed.


text:
    J. D. M., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 75-674.
    District Court of Appeal of Florida, Third District.
    Sept. 16, 1975.
    J. D. M., a juvenile, no appearance for appellant.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before BARKDULL, C. J., and PEARSON and NATHAN, JJ.
   PER CURIAM.

This court, proceeding in the manner outlined and recommended by the Supreme Court of the United States in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, having deferred ruling on a motion of the public defender to withdraw as counsel for the indigent defendant-appellant, and having furnished appellant with a copy of the public defender’s memorandum brief, and having allowed the appellant a reasonable specified time within which to raise any points that he chose in support of his appeal, and the appellant having failed to respond thereto, on consideration thereof upon full examination of the proceedings we conclude that the appeal is wholly frivolous. Whereupon, the public defender’s said motion to withdraw is granted, and the order or judgment appealed is hereby affirmed.


text:
    James POWELL, Appellant, v. The STATE of Florida, Appellee.
    No. 75-722.
    District Court of Appeal of Florida, Third District.
    Sept. 16, 1975.
    James Powell, in pro per.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   PER CURIAM.

This court, proceeding in the manner outlined and recommended by the Supreme Court of the United States in Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493, having deferred ruling on a motion of the public defender to withdraw as counsel for the indigent defendant-appellant, and having furnished appellant with a copy of the public defender’s memorandum brief, and having allowed the appellant a reasonable specified time within which to raise any points that he chose in support of this appeal, and the appellant having failed to respond thereto, on consideration thereof upon full examination of the proceedings we conclude that the appeal is wholly frivolous. Whereupon, the public defender’s said motion to withdraw is granted, and the order or judgment appealed is hereby affirmed.


text:
    Herman F. TAYLOR, Jr., Appellant, v. STATE of Florida, Appellee.
    No. Y-11.
    District Court of Appeal of Florida, First District.
    Sept. 23, 1975.
    Louis O. Frost, Jr., Public Defender, and Steven E. Rohan, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Donald K. Rudser, Asst. Atty. Gen., for appel-lee.
   PER CURIAM.

We have studied the briefs, examined the record and heard oral argument in this matter. The evidence is sufficient to sustain the jury’s verdict of guilty. The judgment is

Affirmed.

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


text:
    DONELL ELECTRICAL CONTRACTORS, INC., a Florida Corporation, Appellant, v. Thomas W. ADLER et al., as co-partners d/b/a CLFS Associates (Ltd), an Ohio Limited Partnership, Appellees.
    No. 75-111.
    District Court of Appeal of Florida, Second District.
    Sept. 17, 1975.
    Cary R. Singletary, Yanger & Single-tary, Tampa, for appellant.
    L. Robert Frank, Allen, Dell, Frank & Trinkle, Tampa, for appellees.
   PER CURIAM.

Affirmed. See Orlando Central Park, Inc. v. Master Door Co., Inc. (Fla.App.4th, 1974), 303 So.2d 685.

McNULTY, C. J., HOBSON, J., and STOKES, ROBERT G., Associate Judge, concur.


author: McNULTY, Chief Judge.

text:
    FLORIDA OUTDOOR, INC. and Riso, Inc., Appellants, v. Jimmie STEWART and Orien Stewart, Appellees.
    No. 74-613.
    District Court of Appeal of Florida, Second District.
    July 30, 1975.
    Rehearing Denied Aug. 29, 1975.
    John P. Harllee, III, of Harrison, Harl-lee & Porges, Bradenton, for appellant Florida Outdoor, Inc., and David G. Bowman of Burket, Smith & Bowman, Sarasota, for appellant Riso, Inc.
    Russell S. Koss of Williams, Parker, Harrison, Dietz & Getzen, Sarasota, for appellees.
   McNULTY, Chief Judge.

Appellants, Florida Outdoor, Inc. and Riso, Inc., appeal from a non-jury verdict and judgment against them for destruction of appellees’ advertising billboard and consequent loss of future rental profits.

The operative facts are simply stated. Appellees, husband and wife, owned an advertising billboard. Under an informal agreement with appellant Florida Outdoor, Inc., appellees paid $35.00 per month for sign maintenance and advertiser acquisitions. Florida Outdoor, Inc. had secured Arvida Corporation as an advertiser at the rate of $200.00 per month.

Shortly before the evénts giving rise to this action Arvida Corporation had complained to Florida Outdoor, Inc. about the dilapidated condition of the sign. Florida Outdoor, Inc.’s agent then contacted appel-lees who suspected that the sign was a non-conforming use under a city ordinance and could not be replaced lawfully once torn down. According to appellees’ testimony, they then contacted the city zoning supervisor who told them it was permissible to repair the sign by replacing the structural supports and facing. Armed with this information appellees contacted Florida Outdoor, Inc. about such repairs and asked them to reconfirm the legality thereof. Without reconfirming the legality, however, Florida Outdoor, Inc. subcontracted with appellant Riso, Inc. to do the repairs. But on or about January 1, 1970 Riso, Inc. tore down the billboard, rather than repair it, saying at trial that appellees had purchased an entirely new sign from FloridaOutdoor, Inc. which they wanted Riso, Inc. to erect. Appellees disputed this. In any event, the old sign was removed, as we’ve said, and after removal, the City of Sarasota prohibited replacement because it would in fact constitute a non-conforming use under an applicable municipal ordinance. Appellees then brought this action predicated on both negligence and breach of express and implied warranty. The trial court, properly we think, expressly rejected the implied warranty theory; and since there is no evidence to support an express warranty count we must assume that the judgment entered in favor of appellees was predicated on the negligence count. We reverse.

To begin with, if, as is apparently conceded, appellees were maintaining an illegal sign, we have serious doubts as to their standing to sue for its non-malicious removal. The point is not argued, however, nor did the trial court rule on it. In any case, even assuming liability on whatever theory, we think the court fatally erred in awarding damages for loss of future rent.

It is rudimentary, of course, that damages cannot be based upon speculation, guesswork or conjecture. They must have some reasonable basis in fact and concerning damages for anticipated loss of profits in a commercial enterprise, the general rule is that such damages are too speculative and dependent upon changing circumstances to warrant a judgment for their loss. The law recognizes an exception, nevertheless, when such loss of profits is shown to a reasonable certainty by competent proof.

Here, the court awarded five years future profits obviously on the assumption that the rental of appellees’ sign would have continued. But there is no evidence to support such assumption. To begin with, it is clear that the sign was in a dilapidated condition; and no proof was offered as to its life expectancy either in its existing dilapidated condition or if properly repaired.

Secondly, the questionable longevity of the sign is underscored by the undisputed fact that its very existence was unlawful under the aforementioned city ordinance concerning non-conforming signs and it could have been razed immediately or at any time. We interpose, on this point, that the city zoning supervisor (who was appellees’ witness, by the way) admitted that it was not presently practical to enforce the ordinance due to lack of manpower; but he said that if he had such manpower, which he hoped would be forthcoming, the sign would be ordered down immediately.

Finally, there was no evidence concerning a future demand for using appellees’ sign for advertising. To the contrary, the evidence suggests that Arvida Corporation, the current advertiser, soon would have ceased renting the original sign because of its run-down condition; the sign was in jeopardy of razing if repaired; and a replacement sign was legally impossible. Withal, since the future of any sign was questionable at best, the prospect for future advertisers was, in turn, even dimmer indeed.

In view of the foregoing, we are firmly of the view that the law cannot countenance an award of damages for loss of future profits based on the evidence herein. Accordingly, the judgment is reversed and the cause is remanded with directions that judgment be entered against appellants and in favor of appellees for nominal damages in a sum not to exceed $1.00.

GRIMES, J., and SCHWARTZ, ALAN R., Associate Judge, concur.

      . There was no claim made for the value of the sign.

      . See, e. g., New Amsterdam Casualty Co. v. Utility Battery Mfg. Co. (Fla.1935), 122 Fla. 718, 166 So. 856; Kenco Chemical & Manufacturing Co., Inc. v. Bailey (Fla.App.1st, 1973) 286 So.2d 272.

      .Section 40-7(1), of the Zoning Code of Sarasota, in force at the time, provides:
      “Non-conforming signs : Any lawful sign existing on October 1, 1962 may be continued although it does not conform to this section. Such continuation may be for the useful life of such sign, but in no event shall such a non-conforming sign continue beyond five years from October 1, 1962.”


text:
    LAWYERS TITLE GUARANTY FUND, a Business Trust of the State of Florida, Appellant, v. MILGO ELECTRONICS, a Florida Corporation, Appellee.
    No. 74-1540.
    District Court of Appeal of Florida, Third District.
    July 22, 1975.
    Rehearing Denied Sept. 15, 1975.

      Taylor, Brion, Buker, Hames & Greene and Arnaldo Velez, Miami, for appellant.
    Adams, George, Wood, Lee & Schulte and David L. Willing, Miami, for appel-lee.
    Before BARKDULL, C. J., and HEN-DRY and HAVERFIELD, JJ.
   PER CURIAM.

The question involved in this appeal is the liability of a title insurance company on a title policy written at the time the ap-pellee purchased a tract of land.

The policy in question covered Tract 17 of Section 27, Township 53 South, Range 40 East, according to the Plat of Florida Fruit Lands Company’s Subdivision No. 1, Recorded in Plat Book 2, Page 17, of the Public Records of Dade County, Florida. The plat in question showed a blank space between tract 17 and tract 16 to the east [a copy of a portion of this plat, as prepared by the County engineering department is attached as a footnote]. A survey secured at the time of the closing of the transaction disclosed a 15' easement outside of tract 17 to the east [see a copy of a portion of the survey noted in footnote]

Subsequent to the transaction closing and the issuance of the title policy, Mil-go [as plaintiff] brought an action to enjoin The Executive Center, Inc. from the use of the IS' strip in question. Executive answered, contending that it had a right to use this strip for ingress and egress and that same was not within tract 17. Milgo called upon the title company to defend this action; the title company declined to do so upon the ground that the strip in question was outside of tract 17 and, therefore, not covered by their title policy. Milgo lost its action against Executive, that court in effect determining that the 15' was not within tract 17.

Thereafter, Milgo instituted the instant suit, contending that the title company was liable on its policy for damages, attorney fees, and costs incurred in the earlier action and in the current action. A judgment resulted in favor of Milgo. We reverse.

It is clear from the plat that there was a vacant strip of land between tract 17 and tract 16 to the east. The ap-pellee took title to the subject land by a deed of conveyance which described the property by reference to the plat, and particulars appearing on the plat are to be regarded as if expressly set forth in the deed. Kahn v. Delaware Securities Corp. 114 Fla. 32, 153 So. 308; Bishop v. Johnson, Fla.App.1958, 100 So.2d 817; Spencer v. Wiegert, Fla.App.1959, 117 So.2d 221. Therefore, the appellee is-charged with actual or constructive knowledge of the existence of a vacant strip of land lying to the east of its platted property. In addition, the survey [which Milgo had at the time of its closing on its purchase of tract 17] demonstrated that the 15' was outside of tract 17.

Schedule B, § 6 of the policy of insurance issued herein clearly states that the guarantee is subject to any easements and other encumbrances appearing in the plat or drawings referred to under Schedule A-3 [the description of the property guaranteed]. Therefore, the appellee having notice of this vacant strip of land, which the policy clearly excludes from its guarantee, is not entitled to recover damages allegedly pertaining to said strip of land.

Furthermore, the policy [under § 4(2) of the conditions] clearly excludes from the guarantee “ * * * the title and rights of the owner * * * beyond the boundaries of the property described * * * in any streets, roads, lanes or alleys or other ways in or upon which said property abuts * * * ”, As a result, the appellant could incur no liability upon the trial court’s determination that the vacant strip of land created an easement for right of way for ingress or egress.

Therefore, it appearing that the strip in question was not a part of ■ tract 17 and it was not covered by the title insurance policy, the final judgment under review was erroneously entered and the same be and it is hereby reversed and set aside, with directions to dismiss the plaintiff’s complaint and cause of action at the cost of the plaintiff.

Reversed and remanded, with directions.

      .

      .

      . It would appear that the doctrines of law of the case and/or estoppel by judgment could not be applied against the appellee in the case sub judice. See: McGregor v. Provident Trust Company of Philadelphia, 119 Fla. 718, 162 So. 323; Pennsylvania Insurance Company v. Miami National Bank, Fla. App.1970, 241 So.2d 861.

      . This appears on the plat to be an extension of N.W. 82nd Avenue running north and south.

      . Nothing contained herein should be construed as determining the appellee’s right to assert any claim of title it might have in said strip of land, pursuant to the holdings in Servando Building Company v. Zimmerman, Fla.1956, 91 So.2d 289; Langston v. City of Miami Beach, Fla.App.1971, 242 So.2d 481.


text:
    James COMER, Appellant, v. The STATE of Florida, Appellee.
    No. 74-1660.
    District Court of Appeal of Florida, Third District.
    July 29, 1975.
    Rehearing Denied Sept. 18, 1975.

      Maynard A. Gross, Miami Beach, for appellant.
    Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., for appel-lee.
    Before BARKDULL, C. J., and HAV-ERFIELD and NATHAN, JJ.
   PER CURIAM.

Defendant-appellant appeals a conviction for robbery and sentence to 8 years in the state penitentiary following a jury trial.

Defendant first claims error on the part of the trial court in the entry of its order denying defense counsel’s pretrial motion for discovery seeking the criminal records of the victim.

The requirement that a prosecuting attorney must disclose to defense counsel any record or prior criminal convictions of the persons whom the prosecuting attorney intends to call as witnesses at the trial arises only if such material and information is within his possession and only upon a showing that defense counsel first has exerted his own efforts and resources and has pursued and exhausted other accessible means and remedies available to him to obtain such information. State v. Coney, Fla.1973, 294 So.2d 82, 87.

The record presented to this court merely consists of the written motion and the subsequent oral denial thereof. The record being totally devoid of the testimony upon which the subject motion was based, defendant-appellant is precluded from presenting the alleged error for our consideration in that the omitted matter affects the determination of this court. See Costantino v. State, Fla.App.1969, 224 So.2d 341; Williams v. State, Fla.App. 1969, 222 So.2d 428; Farrington v. State, Fla.App. 1968, 207 So.2d 513.

In addition, immediately preceding the trial, the judge questioned two police officers as to their knowledge of the victim having a criminal record. Both responded in the negative. During the trial the victim testified on cross-examination that he had two traffic convictions and that he was placed on probation for a felony, but adjudication of guilt was withheld. No prejudice having resulted to the defendant, the appellant’s argument hereunder must fail. See Buttler v. State, Fla.App. 1970, 238 So.2d 313.

Appellant secondly urges that the trial court erred in denying defendant’s motion for mistrial predicated upon the alleged improper and prejudicial cross-examination of the defendant.

The record reflects that with respect to the comments to which the objections, overruled by the trial judge, were made, defense counsel moved for mistrial without first making the required request for an instruction to disregard the remarks made. See Ricks v. State, Fla.App. 1971, 242 So.2d 763.

Furthermore, we do not find the remarks objectionable as the existence of a prior conviction may be established by the questioning of a witness. See State v. Young, Fla.App. 1973, 283 So.2d 58.

Accordingly, the judgment of conviction and sentence are affirmed.

Affirmed.


author: BOARDMAN, Judge.

text:
    STATE of Florida, Appellant, v. Ronald Mark HOLLOWAY, Appellee.
    No. 75-7.
    District Court of Appeal of Florida, Second District.
    Aug. 1, 1975.
    Rehearing Denied Aug. 29, 1975.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellant.
    John Henninger and David A. Demers of the Law Offices of Robert W. Pope, St. Petersburg, for appellee.
   BOARDMAN, Judge.

The appellee was charged in a two-count information with rape of a female of the age of eleven (11) years or more in violation of Fla.Stat. § 794.011(2), and with kidnapping in violation of Fla.Stat. § 805.-01. He plead not guilty to both charges.

Appellee moved to dismiss the information and to suppress certain tangible evidence obtained from him along with statements he gave to law enforcement officers after he was arrested.

The trial court after hearing granted ap-pellee’s motion to suppress on the sole ground that the deputy sheriff who arrested appellee did not take the oath of a deputy sheriff as prescribed by Fla.Stat. § 30.-09(1). The pertinent part of this statute, provides:

“ . . .no deputy sheriff shall be allowed to perform any services as such deputy until he shall subscribe to the oath now prescribed for sheriffs

The appellee contends here, as he did before the trial court, that his arrest was illegal for the reason that the arresting officer failed to take the statutory prescribed oath. The trial court agreed with appel-lee’s contention. We do not and reverse.

The arresting deputy, Thomas J. Lange, was a police officer of the City of St. Pe-tersburg Beach, on duty and in uniform at the time he arrested appellee. The arrest was made outside the geographical boundaries of said city. Lange had been appointed by the Sheriff of Pinellas County under the authority of law, posted the bond prescribed by statute and indeed had previously received his commission as a deputy sheriff. The state concedes that the deputy did not take the oath of office.

After consideration of the record, briefs and oral argument, we are persuaded that Deputy Lange was acting under color of authority as a deputy sheriff at the time he arrested appellee and the fact that he simply failed to take the required oath did not render the arrest illegal. In all other respects the deputy possessed the indicia of the office of deputy sheriff. In our view his acts in arresting appellee are clearly, at the very least, those of a de fac-to officer. See, Sawyer v. State, 1927, 94 Fla. 60, 113 So. 736 citing the case of State v. Gleason, 12 Fla. 190, wherein our Supreme Court held that:

“An officer de facto is one exercising the duties of an office under color of election or appointment and his acts are as valid and binding upon the public or upon third persons as those of an office de jure.”

See, also, rationale of State v. Murphy, Fla.1893, 45 La.Ann. 958, 13 So. 705 and State v. Wiseheart, 1946, 158 Fla. 267, 28 So.2d 589.

The de facto doctrine is firmly established and recognized in the decisional law of the land. For instance, in the case of Powell v. Fidelity & Deposit Company of Maryland, 1932, 45 Ga.App. 88, 163 S.E. 239, involving strikingly similar facts as presented in the instant case, the court held:

“Where one acts as a deputy sheriff with the consent, approval and acquiescence of the sheriff, who holds him out to the public as his deputy, his acts as such deputy .although he was not appointed in writing as required by law and did not take the oath of office required of a deputy sheriff and did not otherwise legally qualify as a deputy sheriff, are acts of a deputy sheriff de facto, and possess the same legality as the acts of a legally appointed deputy sheriff who is an officer de jure.

See, also, Huff v. Sauer, 1955, 243 Minn. 425, 68 N.W.2d 252; De Jan v. De Jan, 5th Cir. 1927, 18 F.2d 690 citing Wright v. United States, 158 U.S. 232, 15 S.Ct. 819, 39 L.Ed. 963, cases upholding the acts of deputy U.S. marshals who had taken the oath of a deputy U.S. marshal.

We do not believe that the legislature of Florida intended that Section 30.-09(1) with reference to the oath be read literally and construed as a mandatory provision. On the contrary, we find the language is to be directory in nature in that it prescribes certain administrative functions to be performed by the sheriff in appointing deputy sheriffs, there being nothing therein contained pertaining to the authority, duties and/or responsibilities of a deputy sheriff. It is the sheriff that is held legally responsible and accountable for the acts and conduct of his deputies. Furthermore, the appellee has not demonstrated prejudice, his only attack being that the deputy who arrested him did not take the prescribed oath. To lend judicial approval and protection to such contention is not consistent with decisional law and well-established principles. To say that a .deputy sheriff clothed with the necessary authority, appointed by the sheriff, cannot make a legal arrest simply because he failed to take the prescribed oath would frustrate and impede the administration of criminal justice.

For the above-stated reasons we hold that the arresting officer was a de facto deputy sheriff and his action in arresting appellee is valid and legal.

Reversed and remanded.

McNULTY, C. j., and SCHEB, J., concur.

      . Fla.Stat. § 30.07


text:
    STATE of Florida, Appellant, v. W. Lawrence SWOFFORD, Appellee.
    Nos. 74-1494 and 74-1565.
    District Court of Appeal of Florida, Fourth District.
    Aug. 8, 1975.
    Rehearing Denied Sept. 29, 1975.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Frank B. Kessler, Asst. Atty. Gen., West Palm Beach, for appellant.
    James E. Shepherd and J. Cheney Mason, Orlando, for appellee.
   DOWNEY, Judge.

This is an appeal by the state from an order of the trial court dismissing an information which charged appellee with perjury.

In its material parts the information alleged that appellee “did unlawfully and willfully swear or affirm falsely before said [the Seminole Spring Term 1974] Grand Jury, inquiring in and for the body of the County of Seminole, in regards to a material fact or .thing, said materiality having been acknowledged by the witness, in that W. Lawrence Swofford did testify that certain monies received by him on or about December 28, 1973, while holding office as Mayor of the City of Altamonte Springs, Seminole County, Florida, was a loan from Lester Mandell, knowing at the time of giving such testimony that said monies were in fact not a loan from Lester Mandell but in fact were post-election campaign contributions for said defendant’s participation ‘as a candidate’ in a municipal election for Mayor of Altamonte Springs, Seminole County, Florida held in Alta-monte Springs, Seminole County, Florida on the 4th day of December, 1973, the giving of such monies as campaign contributions in this manner having been previously discussed and agreed upon at a meeting involving the defendant and local builders and developers including but not limited to Lester Mandell, on or about the 12th day of September, 1973, in the office of Lester Mandell, and that such testimony was material and relevant to the inquiry being conducted by said grand jury into allegations of illegal and corrupt activities on the part of elected officials and employees of the City of Altamonte Springs, and knowing at the time that such testimony was false. . .

Pursuant to appellee’s motion, the trial court dismissed the information on the ground that the alleged false statement did not involve a subject material to the grand jury inquiry. In a detailed order dismissing the information the trial court ruled (a) that appellee was not “a candidate” at the time he received the money in question because at the time he actually received the money the election was over, and (b) even if appellee were a candidate, whether the money was a gift or a loan is inconsequential.

We are unable to agree with the conclusion that appellee was not “a candidate” within the limitations prescribed by Chapter 106, F.S.1973. Such an interpretation is fraught with possibilities to circumvent the purpose and intent of the Florida Election Code. If a person running for public office preferred not to disclose the identity of those financially interested in his election he could simply postpone actual receipt of their contributions and loans until immediately after the election when he was no longer actively seeking office. As we see it, the key to this case is the alleged agreement made prior to the election by appellee. The grand jury was investigating corrupt activities of elected officials in Altamonte Springs. Surely, testimony concerning an agreement like that alleged in the information would be material to such an investigation, as materiality in this context means the testimony must have some relevance to the subject matter of the grand jury investigation. Gordon v. State, Fla.1958, 104 So.2d 524. Since the cause was before the court on motion to dismiss, the court had to regard the allegation relative to the agreement (as well as the other allegations of the information) as admitted. State v. Clein, Fla.1957, 93 So.2d 876. So regarded, those allegations demonstrate that the court erred in ruling that appellee was not a candidate.

Next, the court held the testimony attributed to appellee was immaterial because it matters not whether the money was a loan or a gift. Once again we view the matter differently. Chapter 106, F.S. requires certain disclosures so that the electorate may have an opportunity to determine the identity of a candidate’s financial supporters and the extent of that support. Separate sections of that chapter (§ 106.-07(4) (b) and § 106.07(4) (d), respectively) require disclosure of information as to (1) campaign fund donors and (2) campaign fund lenders. Thus it appears the legislature felt it advisable to differentiate between loans and gifts. The public may feel a candidate less beholden to a creditor than to the donor of a gift.

Accordingly, the order dismissing the information is reversed and the cause is remanded with directions to reinstate the information.

Reversed and remanded with directions.

CROSS and MAGER, JJ., concur.


text:
    RAPIDEK INDUSTRIES, INC., Appellant, v. SUMMIT INSURANCE COMPANY OF NEW YORK, Appellee.
    No. 74-1466.
    District Court of Appeal of Florida, Third District.
    July 22, 1975.
    Ruden, Barnett, McClosky, Schuster & Schmerer, and William Lefkowitz, Ft. Lauderdale, for appellant.
    Welbaum, Zook, Jones & Williams, Miami, for appellee.
    Before HENDRY and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   CHARLES CARROLL (Ret.), Associate Judge.

This is an appeal by the plaintiff below from an adverse summary judgment. We find error, and reverse.

Plaintiff filed an action against Inland Construction Company of Florida, Inc., Es-tia, Inc. and Summit Insurance Company of New York. The amended complaint alleged that plaintiff contracted with Inland Construction Company, Inc. to furnish certain concrete joists, for a consideration of $47,500, on a construction project at a stated address; that plaintiff performed, for a total value of $49,162.04; that a timely preliminary notice was served by plaintiff on the owner, Estia, Inc.; that $27,787.04 of the contract price was not paid; and that plaintiff filed a claim of lien on May 2, 1974, and thereafter on June 6, 1974 the lien thus claimed by the plaintiff was transferred to a bond (on which the surety was the defendant Summit Insurance Company of New York), as authorized in such circumstance by § 713.24 Fla.Stat., F.S.A. Plaintiff prayed for enforcement of its lien claim against the bond. Alternatively, by a second count based on a breach of contract, plaintiff sought judgment against Inland Construction Company, Inc. for the balance alleged to be due and unpaid under the contract.

On the claim of lien filed and recorded by the plaintiff the last date of furnishing-labor, services or materials was stated to be January 30, 1974. The lien notice was recorded on May 2, 1974, which was 92 days after said date of January 30, 1974, and thus was beyond the 90 day period allowed for the recording of such claim of lien by § 713.08(5) Fla.Stat., F.S.A.

The defendant surety, Summit Insurance Company of New York, filed a motion for summary judgment, supported by a copy of the notice of lien and a certificate of the clerk showing that the notice of lien was recorded on May 2, 1974.

In opposition to that motion the plaintiff filed an affidavit of its president stating that the date of January 30, 1974 on the claim of lien as the last date upon which labor, services or materials were furnished was an error, and that the records of the plaintiff corporation revealed that the correct date thereof was February 6, 1974 (which was less than 90 days prior to the recordation of the claim of lien).

Section 713.08 Fla.Stat., F.S.A. which lists eight matters that are to be stated in a claim of lien (including “The time when the first and the last item of labor or services or materials was furnished”) provides, in subsection 4(a), as follows:

“The omission of any of the foregoing details or errors in such claim of lien shall not, within the discretion of the trial court, prevent the enforcement of such lien as against one who has not been adversely affected by such omission or error.”

Here there was no showing as to whether the obligated defendant or the contractor or the owner had been adversely affected by that error in the claim of lien. Nor was there any evidence or showing on behalf of the moving defendant that the final date was not February 6, 1974 as stated in the plaintiff’s affidavit, rather than the date of January 30, 1974 as stated in the claim of lien.

The surety, as appellee here, contends the affidavit of plaintiff’s president which pointed out the error in the claim of lien was not entitled to be considered because the affidavit did not state that it was made on personal knowledge of the affiant. See Rule 1.510(e) F.R.C.P. We hold that argument of the appellee is without merit. The affidavit amounted to a positive statement of the president of the corporation that the records of the plaintiff corporation showed that the date in question was February 6, 1974. The trial court did not strike the affidavit, nor was the summary judgment grounded on the basis of rejection by the court of such affidavit. Had the court so based the judgment, it would have been error to do so. United Bonding Insurance Co. v. Dura-Stress, Inc., Fla. App.1971, 243 So.2d 244 and Beverage Canners, Inc. v. E. D. Green Corporation, Fla.1974, 291 So.2d 193. Under the holdings in those cases the affidavit of the president of the plaintiff corporation in this case was acceptable, in opposition to the defendant’s motion for summary judgment, as evidence that the claim of lien was in error as to the last date of performance.

In Adobe Brick and Supply Co. v. Centex-Winston Corp., Fla.App.1973, 270 So.2d 755, in which this court dealt with the question of effect of an error in a recorded claim of lien upon the enforcibility of the lien, we there pointed out that in view of subsection (4) (a) of § 713.08 of the Mechanics Lien Law, when an omission or error occurs in a recorded claim of lien a balancing of the interests of the parties favors exercise of that subsection of the statute to permit enforcement of the lien, unless it should appear that by reasons of such omission or error in the claim of lien the owner or obligated party thereby had been adversely affected. Therefore, whether the party against whom the enforcement was sought in this instance was thus adversely affected was a material issue that was not resolved, or attempted to be resolved on the motion for summary judgment. See Centex-Winston Corp. v. Crown Paint, Inc., Fla.App.1974, 294 So.2d 694; O’Brian Associates of Orlando, Inc. v. Tully, Fla.App. 1966, 184 So.2d 202. Also there was an issue as to whether the date of last performance by plaintiff was January 30, 1974, as stated in the claim of lien or was February 6, 1974, as stated in plaintiff’s affidavit.

The summary judgment is reversed, and the cause is remanded for further proceed* ings.


author: HAVERFIELD, Judge. PEARSON, Judge

text:
    Marie HOUSTON, Appellant, v. Thomas E. MENTELOS et al., Appellees.
    No. 74-1550.
    District Court of Appeal of Florida, Third District.
    July 22, 1975.
    Rehearing Denied Sept. 11, 1975.
    Sams, Anderson, Alper & Post, and Robyn Greene, Miami, for appellant.

      Smith, Mandler, Smith, Parker & Wer-ner, and Joe N. Unger, Miami Beach, for Henry Gordon.
    Robert E. Rutledge, Jr., South Miami, for Mentelos, Mentelos Electric Co., and Talbott, appellees.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   HAVERFIELD, Judge.

Plaintiff in the trial court appeals that portion of a final judgment determining defendant Henry Gordon to be a bona fide mortgagee for value, and finding that he held a lien to the amount of $70,253 in the property owned by the plaintiff.

Marie Houston, appellant herein, acquired title to the real property which is the subject matter of this litigation in April 1954, and in March 1972 was the record owner thereof when she was approached by the defendant Thomas E. Mentelos, who represented that he was an agent of Paramount Studios and expressed the desire to lease her property for use in filming a motion picture. Subsequently, plaintiff and Mentelos orally agreed that the premises were to be leased for several months for $42,000.

On or about April 26, 1972 Mentelos presented to the plaintiff documents for her to sign and misrepresented that these documents embodied the terms of the oral lease agreement. Thereupon, plaintiff signed these two documents, one ultimately styled “Sale of Property Agreement” and the other styled “Warranty Deed” which described the subject realty, named plaintiff as grantor and designated defendant Mentelos as a grantee. On May 2, 1972 the deed was recorded in the public records of Dade County, Florida. In addition, defendant caused the document styled “Sale of Property Agreement” to be altered by the addition of language which made the document to read like a contract to convey the subject real property rather than a lease agreement. As of May 30, 1972 Mentelos had paid Marie Houston a total of $8,543.65 which she utilized to satisfy an existing second mortgage on her property and the 1971 real property taxes.

On May 16, 1972 Thomas Mentelos executed and delivered to the defendant Henry Gordon, appellee herein, and his wife a promissory note in the amount of $55,000. To secure said indebtedness Mentelos also executed and delivered to Gordon a mortgage deed on the subject realty. This mortgage was recorded on May 24, 1972. Prior to disbursing the $55,000 to Mente-los, Henry Gordon paid the following: (1) $16,186.07 to First Federal Savings & Loan Association in satisfaction of plaintiff’s mortgage with that institution, (2) $3,151.08 to Evia L. Maxwell in satisfaction of a 1971 judgment rendered against plaintiff Marie Houston, and (3) $1,609.57 in payment of the sanitary sewer liens filed against the subject realty by the City of Miami.

At all times, plaintiff-appellant continued to reside on the subject realty and prior to the execution and delivery of the May 16, 1972 mortgage, defendant-appellee Gordon was informed of plaintiff’s occupation of the premises by Mentelos. Nevertheless, Gordon made no inquiry of plaintiff as to her interest therein. Subsequently, in July 1972 Marie Houston discovered the fraud and thereupon filed a complaint against Mentelos, Gordon and others and prayed therein that the trial court rescind the “Sale of Property Agreement,” cancel the “Warranty Deed” and the May 1972 mortgage to Henry Gordon, and award both compensatory and punitive damages against the defendants for slander of title. In response thereto, defendant Míentelos answered generally denying the allegations of fraud in plaintiff’s complaint and then counterclaimed against plaintiff for slander of title. This counterclaim upon proper motion of plaintiff was dismissed. Defendant Gordon upon proper motion succeeded in having plaintiff’s claim for punitive damages against him stricken. He then filed his answer denying that he participated in the fraud and alleging that even if the deed had been procured by fraud, it was voidable rather than void and, therefore, his mortgage was a valid lien on the property. Gordon also filed a cross-claim against defendant Mentelos and claimed therein that if his mortgage was set aside, he was entitled to judgment against Mentelos in the amount thereof. Defendant Gordon then filed a counterclaim against the plaintiff and alleged that he had expended certain sums of money in satisfaction of liens and encumbrances on the property and prayed for an equitable lien therefor against the subject property. Plaintiff filed an answer denying that Gordon had a right to an equitable lien on her property.

In September 1972 Mentelos defaulted under the terms of the promissory note and mortgage delivered to Henry Gordon by failing to make the monthly payments due thereunder, and thereafter defendant Gordon filed an amended cross-claim against Mentelos and an amended counterclaim against Marie Houston seeking to foreclose the mortgage. Defendant Mentelos then filed an amended counterclaim against the plaintiff for impairment to and slander of his title. Plaintiff answered and denied the allegations thereof.

In this posture the case came on for trial without jury. After the conclusion of the trial, the judge entered his final judgment reciting extensive findings of fact and concluding as follows:

“CONCLUSIONS OF LAW
“1. The document ultimately styled 'Sale of Property Agreement,’ having been fraudulently obtained and having been materially altered after Plaintiff signed it, is voidable at the instance of the Plaintiff.
“2. The Plaintiff’s signature on the ‘Warranty Deed’ was obtained through the fraud of the Defendant, THOMAS E. MENTELOS, and is voidable in equity at the instance of the Plaintiff. Said fraud was perpetrated by the Defendant, THOMAS E. MENTELOS, upon the Plaintiff without the knowledge or participation of the Defendant, HENRY GORDON.
“3. The act of the Defendant, THOMAS E. MENTELOS, in causing the ‘Warranty Deed’ to be recorded constitutes the tort of slander of title, and the Defendant, THOMAS E. MENTE-LOS, is therefore liable to Plaintiff in damages.
“4. The Defendant HENRY GORDON is a bona fide mortgagee for value, and as such was an innocent mortgagee, and had the right to rely on record title in making the mortgage loan in question.”

Based upon the foregoing, the trial judge ordered and adjudged: (1) that the mortgage deed executed by Thomas Mente-los to Henry Gordon is a valid first mortgage on the subject real property of the plaintiff Marie Houston; (2) that the Warranty Deed executed by the plaintiff to defendant Mentelos be avoided and can-celled, and title to the subject realty be re-vested in Marie Houston subject to the first mortgage of defendant Henry Gordon; (3) that the “Sale of Property Agreement” be rescinded; (4) that defendant Thomas Mentelos is indebted to the defendant Henry Gordon in the sum of $55,000 plus interest and attorney’s fees for a total of $70,253; (5) that defendant Henry Gordon holds a lien for the said above amount superior to any claim or estate of the plaintiff Marie Houston or the defendant Thomas Mentelos on the subject real property; (4) that if the total sum with interest at the rate prescribed by law and all costs of this action accruing- subsequent to the judgment were not paid within three days from the date thereof, then the property was to be sold at public sale; (5) that plaintiff recover $110,776.23 as compensatory damages against the defendant Thomas Mentelos and that plaintiff Marie Houston take nothing by this action from defendants Mentelos Electric Company, William Talbot and Henry Gordon.

Plaintiff Marie Houston appeals therefrom.

The issue central to this appeal is whether the warranty deed from Marie Houston to Thomas Mentelos is void as appellant Houston argues or voidable as the trial judge concluded.

Long ago our Supreme Court in Houston v. Adams et al., 85 Fla. 291, 95 So. 859 (1923) in effect held that in the absence of negligence on the part of a grantor, that if by trick or fraud an instrument other than the one which the grantor intended to sign is substituted and signed by the grantor, the instrument is void at law for there is a failure of delivery upon which a deed takes effect. See also Houston v. Forman, 92 Fla. 1, 109 So. 297 (1926); 10 Fla.Jur. Deeds § 101 (1973); 23 Am.Jur.2d Deeds § 142 (1965) and Annot., 11 A.L.R. 3rd 1074 (1967).

In the case before us, the trial judge reached the conclusion, which is supported in the record by competent substantial evidence that plaintiff’s signature on the “Warranty Deed” was obtained through the fraud of the defendant Thomas E. Mentelos who misrepresented that the documents which plaintiff signed embodied the oral lease agreement. Implicit in that conclusion was the finding that there was no negligence or inattention on the part of the plaintiff-appellant. Hence, the deed is void and the fraudulent procurement thereof by Thomas Mentelos, the grantee named therein, did not operate to pass the title to the subject real property and, therefore, defendant-appellee acquired no lien thereon for the amount of the mortgage executed and delivered to him by defendant Mentelos. See Houston v. Adams, supra and 10 Fla.Jur. Deeds § 104 (1973).

Nevertheless, defendant-appellee Gordon having expended $20,936.72 to satisfy liens and/or encumbrances on the subject realty, we hold that appellee Henry Gordon is entitled to an equitable lien for said amount on plaintiff’s property.

Those aspects of the judgment pertaining to the defendant Thomas E. Mentelos are affirmed. Accordingly, the judgment herein appealed is affirmed in part, reversed in part and remanded to the trial court with directions to enter an amended judgment consistent with the holdings hereinabove.

Affirmed in part, reversed in part and remanded with directions.

PEARSON, Judge

(concurring specially)-

I concur in the result reached but I would question the applicability of the “void-voidable” rule to the claim of the mortgagee. The distinction seems artificial. The real question is whether the mortgagee had a right to rely upon the public records showing a deed perfectly valid on its face. I would hold that the mortgagee did have a right to rely on the record title, but that he lost that right when he was put on notice that the former owner was in possession. See Carolina Portland Cement Co. v. Roper, 1914, 68 Fla. 299, 67 So. 115 at 116, where the rule is stated:

“One who acquires title to or a judgment lien on land with constructive notice of the actual possession and occupancy of the land by one other than the vendor or judgment debtor takes subject to such rights as proper inquiry will disclose the occupant of the land actually has therein. Possession, in order to be constructive notice of a claim of title to the land occupied, must be open, visible, and exclusive; and such occupancy may be shown by any use of the land that indicates an intention to appropriate it for the benefit of the possessor. Such use may be any to which the land is adapted, and is calculated to apprise the world that the property is occupied under a claim of right therein.”

See also Marion Mortgage Co. v. Grennan, 1932, 106 Fla. 913, 143 So. 761, at 763, and Florida Land Holding Corp. v. McMillen, 1938, 135 Fla. 431, 186 So. 188, at 191, and cases cited thereat.

        . Plaintiff previously had leased her property to 20th Century Fox for the filming of the motion picture “Tony Rome.”

      . Cf. Certain, Lands, etc. v. Ideal Farms Drainage Dist., 1945, 156 Fla. 774, 24 So.2d 585.


author: GRIDLEY, William C., Associate Judge.

text:
    Willie LEE, Appellant, v. STATE of Florida, Appellee.
    No. 74-1554.
    District Court of Appeal of Florida, Fourth District.
    July 31, 1975.
    Richard L. Jorandby, Public Defender, and Maureen L. McGill, Special Asst. Public Defender, West Palm Beach, for appellant.

      Robert L. Shevin, Atty. Gen., Tallahassee, and Stephen R. Koons, Asst. Atty. Gen., West Palm Beach, for appellee.
   GRIDLEY, William C., Associate Judge.

The defendant was found guilty by jury verdict on August 27, 1974 on a two count information charging him with possession and’ sale of heroin.

The State’s case rested on the testimony of a paid informant employed by the Palm Beach County Sheriff’s Office. The informant testified he purchased two dime bags of heroin for $20.00 from the defendant on April 7, 1974 in Palm Beach County. Sometime prior to the trial the informant was arrested in Orange County and charged with a robbery which occurred. in Orange County in June of 1974. This charge was still pending on the date the informant testified at the trial.

Before trial the State filed a written motion to limit the cross-examination of the informant to preclude the defense from establishing that the informant was presently charged with the crime of robbery. The Assistant State Attorney represented in his motion that he had been requested by the Assistant State Attorney in Orange County, who was handling the robbery case, not to grant any sort of immunity to the informant. The motion further represented that the State had made no “deals” or “promises” to the informant concerning the case pending against him, that if the informant were asked questions on the robbery charge he may receive unintended immunity for that charge and, therefore, the State would be forced to abandon prosecution or nolle prosequi the narcotics case sub judice, and that there were about 40 to 60 other narcotics cases which hinge on this informant’s testimony.

At the trial the Court sustained the State’s objection to the informant being asked about the pending robbery charge. The question the defense proposed to ask the informant was “Were you, in fact, arrested and charged in Orange County, Florida, with the crime of robbery,” and limit the response to a yes or no answer. The defense raises as error on appeal the aforesaid ruling of the Court.

The defense relies on Morrell v. State, 297 So.2d 579 (Fla.App. 1974) for the proposition that, in cases where the impeaching evidence is material and relevant to the witness’s present bias, motive or interest in giving his testimony, the defense has an absolute right to bring that evidence out on cross-examination.

The State argues that “no deals” were made for the informant’s cooperation, the crime the informant is charged with is not drug related, and the charged crime is remote as to the time (two months) and place (Orlando, Florida) where the drug transaction took place. Therefore, the impeaching evidence is not relevant or material.

In facing the relevancy and materiality of this evidence the following question is considered. Could a witness who has operated as a paid informant for a sheriff’s office on numerous drug buys and who, between one of these buys and its prosecution, is himself charged with a crime of robbery which is pending at the time he is called by the State to testify in the drug case, be materially influenced or biased in the giving of his testimony by the fact of his being so charged.

The answer is clearly yes and the reasons are aptly set out in dicta in the Morrell case, supra. Further, the inquiry meets the standards set in Wallace v. State, 26 So. 713 (Fla.1899), one of which is that “the transaction inquired about must be one which bears directly upon the present character or credit of the witness” (emphasis added).

The issue thus becomes one of considering the interrelationship of the witness’s Fifth Amendment right not to incriminate himself, the defendant’s Sixth Amendment right to confront the witness who testifies against him, and the Immunity Statute, F. S. 914.04, wherein a person who testifies concerning matters that would incriminate him while under subpoena may be entitled to immunity.

On this issue it is helpful to distinguish between the facts and circumstances surrounding the actual robbery and the witness’s relation thereto, and the facts and circumstances surrounding the effect on a person of being charged with robbery irrespective of his actual guilt or innocence.

On the fact and circumstances of the robbery and the witness’s relation thereto, if the witness raised his Fifth Amendment right to remain silent, the defense would be precluded from inquiring as to the robbery itself and the witness’s relation to it. If the witness did not raise this Fifth Amendment right to remain silent then it is up to the Court or the State to determine what warnings should be given the witness. However, any certainty or uncertainty of the application of the immunity statute cannot defeat the defendant’s constitutional right to confront the witness. Further legislation may be required to clarify the limits of the immunity statute, but the Court must not allow “the tail to wag the dog” in this area.

On the fact and circumstances that the witness has a pending felony charge against him we note that this is a matter of public record and the establishment of this fact could be made by other means apart from the witness’s own testimony. Since questions related to this fact do not necessarily tend to incriminate the witness, he cannot invoke his Fifth Amendment right to remain silent and neither should an immunity statute grant him total immunity due to information given by him in this respect.

In the case sub judice, although probably unintended, the answer to the question ultimately posed by the defense would incriminate the witness to the extent that he would be admitting he was the person arrested in Orange County for the robbery which occurred in Orange County. There was no attempt made to determine if the witness wished to invoke his Fifth Amendment rights to this question due to the trial court’s ruling that it was inadmissible on other grounds. It was also apparent that the court’s ruling would cover the asking of a question merely relating to the fact that there is a pending robbery charge against the witness.

The eminent trial judge was correct in stating that “the fact that the defendant is charged with violating the law by committing robbery, even if he did commit it, would be an act of misconduct and not proper attack on his credibility,” insofar as the “act” of misconduct is not what is being put in issue. This rule, however, does not cover the claim of possible bias, which the defense sought to admit to provide a basis for an inference of undue pressure on the witness, due to the pending charge. See Davis v. Alaska, 415 U.S. 308 (1974), 354, 355, 94 S.Ct. 1105, 39 L.Ed.2d 347 and Morrell, supra.

In Alford v. U. S., 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624 (1931), cited in the Davis case, where the Supreme Court upheld the right of defense counsel to impeach a witness by showing that the witness was in the federal prison at the time of the trial, the Court stated

“No obligation is imposed on the Court, such as that suggested below, to protect a witness from being discredited on cross-examination, short of an attempted invasion of his constitutional protection from self-incrimination, properly invoked. There is a duty to protect him from questions which go beyond the bounds of proper cross examination merely to harass, annoy or humiliate him.” 282 U.S. at 694, 51 S.Ct. at 220.

Under the fact situation presented in the case sub judice, the trial court did abuse its discretion in not permitting testimony to be presented concerning the existence of a pending robbery charge against the witness.

For the reasons cited hereinabove, the judgment herein appealed is reversed and the cause is remanded for a new trial.

Reversed and remanded.

WALDEN and MAGER, JJ., concur.

       The informant was wired with a listening device and was being monitored by an officer who was out of sight of the transaction. However, it was acknowledged in oral argument that the informant’s identification of the defendant was not corroborated by other evidence and thus the harmless error rule was not considered.


text:
    Harold Columbus FISHER, Appellant, v. Carole Roberta FISHER and Arthur E. Huttoe, Appellees.
    No. 75-401.
    District Court of Appeal of Florida, Third District.
    July 29, 1975.
    Horton, Perse & Ginsberg, Miami, for appellant.
    Ronald L. Davis and Stephen Alexander, Miami, for appellees.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

This is an interlocutory appeal filed by the husband Harold Columbus Fisher from an award of a $3,200 attorney’s fees to Arthur E. Huttoe, who was consulted by the wife, Carole Roberta Fisher, just prior to the institution of a dissolution of marriage proceeding between the Fishers.

Huttoe contends on appeal that the award is supported by his testimony at an evidentiary hearing held on the matter, as well as that of an éxpert witness, and no abuse of discretion by the trial court has been made to appear.

The husband, on the other hand, advances two contentions. First, he asserts that as a matter of law Huttoe was not entitled to an attorney’s fee paid by the husband because the services performed by Huttoe on behalf of the wife were undertaken prior to the institution of formal proceedings for dissolution of marriage.

Therefore, the husband argues that Hut-toe performed no legal services within the purview of Fla.Stat. § 61.16, F.S.A. which would otherwise entitle him to a fee in connection with legal work for “maintaining or defending any proceeding under this chapter . . . ”

As a second point on appeal, the husband submits that even assuming the fee is authorized by Section 61.16, the fee is excessive.

This latter contention rests upon an assessment of the record. Huttoe testified that he performed approximately 24 hours of legal work on behalf of the wife, apparently during a three-day period from December 24 — 27, 1974. The record shows that on December 27, 1974 the husband filed his petition for dissolution of marriage.

Thereafter, on January 9, 1975, the wife, represented by a new law firm, not Huttoe, filed her answer and counterpetition for dissolution of marriage.

In between the husband’s petition and the wife’s counter petition, Huttoe filed on January 3, 1975 his claim for an attorney’s fee in the amount of $3,500, attaching a statement for services.

From our examination of this statement and the record of the testimony, it appears that Huttoe’s claim included the following work: consultation with Mrs. Fisher and another of her former lawyers; review of an antenuptial agreement entered into on April 25, 1974, three days before the Fishers were married; five hours of legal research; and telephone conversations with the husband’s attorney and with Mrs. Fisher.

Also, of the legal research, Huttoe testified that a portion of it was devoted to the propriety of an independent tort action against the husband stemming from an alleged assault upon the wife during cove-ture. See Bencomo v. Bencomo, Fla.1967, 200 So.2d 171; Orefice v. Albert, Fla.1967, 237 So.2d 142, 145.

The remainder of Huttoe’s research concentrated on legal issues surrounding the antenuptial agreement.

After a careful review of the record and briefs filed in this case, it is our opinion that Huttoe was not entitled to any attorney’s fee from the husband incident to the dissolution of marriage proceeding. Of course, we do not imply that Huttoe may not maintain an independent cause of action against the husband or wife for legal services rendered to her prior to the institution of the dissolution proceeding. See generally, 10A Fla.Jur., Dissolution of Marriage, § 228. Our holding is limited to Huttoe’s standing under the statute.

It is merely our view that Huttoe’s role with respect to the actual dissolution of marriage proceeding was peripheral, and therefore, he was not legally entitled to an attorney’s fee pursuant to Section 61.16. Cf., Spencer v. Spencer, Fla.App.1974, 305 So.2d 256; Keena v. Keena, Fla.App.1971, 245 So.2d 665; Scanlon v. Scanlon, Fla.App.1963, 154 So.2d 899.

The statute providing for attorney’s fee in a dissolution of marriage proceeding must be strictly construed. See Kittel v. Kittel, Fla.1968, 210 So.2d 1.

In the case before us, the only legal service performed by Huttoe which had any connection with the eventual pleadings filed by another law firm for dissolution of marriage was his examination of the antenuptial agreement and some research into the legal validity of the agreement.

We do not believe this connection is substantially related to a dissolution proceeding which from its inception was being handled by another law firm.

Therefore, for the reasons stated and upon the authorities cited, the order appealed is reversed.

Reversed.

      . Huttoe testified that he was entitled to a $3,500 attorney’s fee; his expert, Ray Pearson, testified that a reasonable fee would be $3,600.

      . This factor is an obvious and important distinction between this case and this court’s holding in Ochoa v. Ochoa, Fla.App.1973, 275 So.2d 267, cited by the appellees.


text:
    Betty RICE, Appellant, v. MERCY HOSPITAL CORP., a Florida nonprofit Corporation, Appellee. Betty RICE, Appellant, v. P. S. JARRETT and Estate of Dr. J. L. Anderson, Appellees.
    Nos. 74-852, 74-853.
    District Court of Appeal of Florida, Third District.
    July 29, 1975.
    Rehearing Denied Sept. 11, 1975.

      Pettigrew & Bailey, Miami, for appellant.
    Dixon, Dixon, Lane & Mitchell and Thomas L. Hurst, Adams, George, Wood, Lee & Schulte, Miami, for appellees.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

This is the consolidation of two appeals by the plaintiff, Betty Rice from final judgments entered by the trial court pursuant to jury verdicts in favor of defendants, Mercy Hospital Corp., and Drs. Jarrett & Anderson, as to false imprisonment and from an adverse directed verdict on the issue of assault and battery.

In June of 1970, Betty Rice, a widow, was accompanied by her niecé to Mercy Hospital where she voluntarily admitted herself to the psychiatric ward. Mrs. Rice had a history of prior mental illness and she had received shock treatments in the past. Dr. Anderson, now deceased, had been her psychiatrist for several years prior to 1970. Dr. Jarrett was Dr. Anderson’s partner. Immediately, and on several occasions subsequent to her admission to the psychiatric ward, Mrs. Rice verbally requested to be released. Such requests appear in the record in the nurse’s report and in Dr. Jarrett’s notes, both of which were admitted as exhibits. Electro-shock treatments were administered to Mrs. Rice pursuant to her written consent which she contends was given to Dr. Jarrett under his coercion. After twenty-two days, Mrs. Rice was released from the psychiatric ward, whereupon she filed suit against the hospital and the two doctors for assault and battery, false imprisonment, negligence and breach of contract. The trial court entered summary final judgment in favor of the hospital, but this court reversed that judgment, finding that there were genuine issues of material fact precluding summary judgment. Rice v. Mercy Hospital Corporation, Fla.App. 1973, 275 So.2d 566. The cause then proceeded to a jury trial on the issues of false imprisonment and assault and battery, resulting in a directed verdict in favor of all defendants as to assault and battery, and jury verdicts in favor of the hospital and in favor of the doctors on the issue of false imprisonment. The court entered final judgments accordingly.

As her first point on appeal, the plaintiff contends that the trial court erred in directing a verdict against her on assault and battery for the electro-shock treatments administered to her. As an appeal from a directed verdict, we must determine whether there was any evidence upon which a jury could lawfully have found for the plaintiff. Myers v. Atlantic Coast Line Railroad Company, Fla.1959, 112 So.2d 263. In determining whether there was evidence to avoid a directed verdict, all facts adduced by the plaintiff must be taken as true, and plaintiff is to be given the benefit of all reasonable inferences. Teare v. Local Union No. 295 of the Unit ed Association of Journeymen and Apprentices of the Plumbers and Pipe Fitters Industry of the United States and Canada, Fla.1957, 98 So.2d 79. We find that under the facts and the evidence presented in this case, the trial court was correct in directing a verdict in favor of all of the defendants on this count.

The second point on appeal is that the court erred in its charge to the jury as to false imprisonment. The applicable statute in force at the time of the subject incident was § 394.20, Fla.Stat., which states in pertinent part as follows:

“F.S. § 394.20 Hospitalization of the mentally ill; voluntary.
* * * * * *
(3) Right To Release On Application.—
(a) A voluntary patient who requests his release or whose release is requested in writing by his legal guardian, parent, spouse, or adult next of kin, shall be released forthwith, except that
******
1. . . .
2. . . .
3. If the head of the hospital, within the hours of the ensuing business day, from the receipt of the request, files in the office of the county judge in the county where such patient is situate certification that in his opinion the release of the patient would be unsafe for the patient or others, release may be postponed, for as long as the county judge determines to be necessary for the commencement of proceedings for judicial hospitalization, but in no event for more than five days.”

After charging the jury on the statute, the court added

“. . . whether or not a voluntary patient has made a request for his release in accordance with the statute I have just referred to, it is to he determined by you in accordance with the standards of medical and hospital practice prevailing in this and similar communities at the time in question.”

In our opinion, a statute such as this, which is so closely associated with the denial of personal liberties, must be strictly construed without regard to prevailing practice. However, it is clear from the transcript of the charge conference that counsel for the plaintiff agreed to the application of some standard to the interpretation of the statute in the court’s charge to the jury. Plaintiff’s counsel requested that the reasonable man standard be applied and defense counsel recommended that standard actually applied by the court. Although we do not concede that any interpretation or standard need be applied to this statute in charging the jury, we are of the opinion that under the circumstances, the charge given by the court was appropriate. For this reason, if there is error, it is only harmless error and cannot be the basis of reversal.

Therefore, the final judgments and the directed verdict are affirmed.

      . § 394.20, Fla.Stat., has been revised and renumbered. It is now § 394.465, Fla.Stat.