author: SCHWARTZ, Judge. HUBBART, Judge

text:
    Alice CORBETT, as mother and natural guardian of Elizabeth Dora Quevedo, a minor, Appellant, v. DADE COUNTY BOARD OF PUBLIC INSTRUCTION, a political subdivision of the State of Florida, and Admiral Insurance Company, Appellees.
    No. 78-1135.
    District Court of Appeal of Florida, Third District.
    June 26, 1979.
    Rehearing Denied July 26, 1979.

      Mark J. Feldman, Miami, for appellant.
    Knight, Peters, Pickle, Niemoeller & Flynn, Jeanne Heyward, Miami, for appel-lees.
    Before HENDRY, HUBBART and SCHWARTZ, JJ.
   SCHWARTZ, Judge.

The minor plaintiff-appellant appeals from a jury verdict and judgment of $5,000 rendered in her favor. She contends that the trial judge erroneously refused to instruct the jury as to her right to recover for future damages. We hold that the evidence at the trial required the granting of such a charge and accordingly reverse the judgment under review.

The action below arose out of an incident which occurred while the plaintiff, “Dori” Quevado, was a fourteen-year-old enrolled in a “trainable mentally retarded” class at a public junior high school in Miami. On March 8, 1972, while visiting a rest room during the course of a physical education class being conducted at a public park, she was sexually assaulted by four young men. She successfully claimed at the trial that her teachers had been negligent in their supervision of her, see Barrera v. Dade County School Board, 366 So.2d 531 (Fla.3d DCA 1979), and eases cited; the issue of the school board’s liability was resolved by the jury and is not now before us.

On the issue of damages, which is before us, the records shows that Dori had been a virgin before the rape. A physician at the Rape Treatment Center testified that although “[ijt’s difficult to assess in this girl because she is retarded,” everyone who has been sexually assaulted suffers “some kind of psychic trauma . . . and psychological problems.” At the trial, which occurred in May, 1978, Dori herself was too embarrassed to give any details of the actual rape. Both her mother and her grandmother, however, testified that her personality and activities had been drastically altered by the incident. They each testified that Dori had changed from an active and outgoing person into a retiring and frightened one. As her mother stated, “she is not the same little girl I had.”

At the conclusion of the trial, the court, over the plaintiff’s specific objection, declined to instruct the jury as to her right to recover future damages for mental pain and suffering, embarrassment and humiliation, and the inability to lead a normal life. See Shaw v. Fletcher, 138 Fla. 103, 189 So. 678 (1939). The trial judge ruled that there was no evidence to support such a claim and specifically charged, that the plaintiff’s damages were limited to the period between the incident and the trial. We think that this ruling was erroneous. In our view, the evidence concerning the nature and probable consequences of the injuries initially suffered by the plaintiff, together with the testimony that the effects of the incident continued to the date of the trial, would fully justify a jury conclusion that those effects would continue into the future. Since that is true, the court’s instructions to the contrary were prejudicially mistaken.

The proper determination of the sufficiency of evidence to warrant an instruction on future damages of course varies considerably with the particular facts involved. See Annot., Future Pain — Sufficiency of Evidence, 18 A.L.R.3d 10 (1968). This case, however is governed by those decisions which hold that recovery is justified, even in the absence of expert testimony of the likelihood of future injury,

“ . . . where the nature of the injury, its duration, and lack of recovery at the time of trial, make it clear that pain and suffering will continue for at least sometime into the future.”

18 A.L.R.3d at 22. Very closely on point is El Paso Electric R. Co. v. Kendall, 38 Tex.Civ.App. 221, 85 S.W. 61, 62 (1905):

“The only other assignment of error complains of the court’s charging the jury that, ‘if they found for the plaintiff, they might take into consideration, in estimating his damages, the probable effect and duration of the injury, if any, to his mind in the future,’ upon the ground that there was no evidence that his injuries were permanent. We think there was evidence warranting the charge. His mother testified: ‘He was a bright boy, and attended school regularly, and worked during vacation, and before and after school, prior to his injury. Now he seems dull, and does not understand or notice or pay any attention. He has never seemed like the same boy since he was hurt. He very often complains of his head hurting him. Many and many times I have been up with him all night with his head. We have to give him medicine, and work with him, and bathe his head, and sometimes work with his head all night. I know boys are often careless, and don’t give attention to what is said to them. I know that is more or less natural with children, but Solomon seemed changed after the accident; did not seem like the same boy.’ Prom this the jury might have well concluded that this injured mental condition of plaintiff would probably continue and injuriously affect him.”

See also, e. g., Loper v. Morrison, 23 Cal.2d 600, 145 P.2d 1 (1944); Hargis v. Standard Oil Co. of Indiana, 10 Ill.App.2d 119, 134 N.E.2d 518, 521 (1956); cases collected, at 18 A.L.R.3d 60-63. As the court stated in Carter v. McNally, 137 Kan. 313, 20 P.2d 491, 493 (1933):

“As there was nothing about this case to warrant a suspicion that it was a fake lawsuit, it could not be presumed that plaintiff would make an instantaneous recovery from her ailments the moment the jury retired to consider their verdict.”

The defendant correctly points out that the evidence as to the changes in Dori’s personality and activities, to which we have referred, was impeached by prior inconsistent statements of her mother on deposition, and contradicted by the testimony of other witnesses. But, as we held in William Penn Hotel v. Cohen, 101 So.2d 404, 405 (Fla.3d DCA 1958):

“It was not the province or duty of the trial court to determine the weight or sufficiency of the evidence bearing on continuing or permanent injuries. The credibility, of the testimony and weight of such evidence was a problem for the jury.”

The plaintiff was entitled to an instruction as to any claim legally supported by a view of the evidence, even though contradicted, which the trier of fact had a right to accept, see Menard v. OMalley, 327 So.2d 905, 907 (Fla.3d DCA 1976). Since the jury could properly have concluded that Dori’s alleged damages would not cease immediately upon the return of the verdict, the refusal to instruct on future damages was reversible error. The judgment below is therefore reversed and the cause remanded for a new trial on damages only.

Reversed and remanded.

HUBBART, Judge

(dissenting).

I must respectfully dissent. I would affirm the judgment appealed from in all respects.

The record in this case reveals that the plaintiff at no time requested the trial court to instruct the jury as to her right to recover future damages for mental pain and suffering, embarrassment and humiliation, and the inability to lead a normal life. The plaintiff submitted no written requested instruction to that effect, did not orally request a standard jury instruction on this subject, and did not otherwise indicate in substance that she wanted such a specific charge given to the jury. This court is, accordingly, precluded from determining on appeal whether such a jury instruction should have been given by the trial court as “[n]o party may assign as error . the failure to give any charge unless he requested the same,” Fla.R.Civ.P. 1.470(b), and the judgment below should be affirmed. Frankowitz v. Beck, 257 So.2d 918 (Fla. 3d DCA 1972).

It is true that the plaintiff orally requested a jury instruction on “permanency” which the trial court refused to give. The use of this shorthand jargon, however, does not, in my view, constitute a specific request for the jury instruction which this court now reverses the trial court for failing to give. Such a request was far too vague and broadbased to know, except in the most general terms, what instruction the plaintiff wished read to the jury. It cannot therefore, constitute reversible error for the trial court to deny such a general request. Ellis v. Golconda Corp., 352 So.2d 1221, 1224 (Fla. 1st DCA 1977).

I find nothing in this record, contrary to the court’s conclusion, that the trial court ever declined, over the plaintiff’s objection, to give a jury instruction on the plaintiff’s right to recover future damages for mental pain and suffering, embarrassment and humiliation, and the inability to lead a normal life. No such instruction was ever requested either orally or in writing by the plaintiff at the trial of this cause, and, the trial court never declined to give such a charge. Nor do I agree that the plaintiff was somehow excused from making such a request on the grounds of futility in view of the trial court’s comments at the charge conference. All the trial court ruled at such conference was that it was “not going to give an instruction on permanent or continuing” which was nothing more than a repeat of its prior ruling denying the plaintiff’s requested instruction on “permanency.” The discussion surrounding this ruling was, in my view, far too vague and broadbased to obviate the legal necessity of a specific request by the plaintiff for the instruction the court says now should have been given. The fact remains that such an instruction was never requested by the plaintiff nor denied by the trial court.

I am especially disinclined on the state of this deficient and, at best, dubious record to reverse the trial court for failing to give a jury instruction not requested below in view of the slender evidentiary reed upon which this court now predicates its reversal. The testimony of the plaintiff’s mother and grandmother, as well as the rape center physician herein, was, in my view, far too generalized and vague for the jury to conclude that the plaintiff had sustained a permanent mental injury and to return a reasonable award of future damages for mental pain and suffering, embarrassment and humiliation, and the inability to lead a normal life, without engaging in rank speculation. None of these witnesses ventured an opinion as to how long the plaintiff’s vaguely described mental injuries would last; indeed, no witness said there was even a possibility that such injuries were permanent. To the contrary, the unanimous testimony of every other witness in the case was that the plaintiff had sustained no permanent physical or mental injury from the tort incident herein. Under the circumstances, it is difficult to accept the court’s conclusion that an evidentiary basis existed for the future damages instruction which the court now says should have been given. Indeed, to have given such a charge would have been reversible error in itself. Seaboard Airline Railroad Co. v. Ford, 92 So.2d 160, 163 (Fla.1956); Stores v. Hussey, 100 So.2d 649 (Fla. 1st DCA 1958).

I am, therefore, unwilling to stretch, as the court does, the fundamental principles of appellate review in' order to reverse the trial court for failing to give a jury instruction requested by no one when it is doubtful, to say the least, whether such an instruction was called for in any event. Neither the law nor the justice of the cause requires such a result, and, accordingly, I would affirm.

      . As to the effect of a forcible sexual assault upon a young woman, see Christensen v. Boucher, 237 Iowa 1170, 24 N.W.2d 782 (1946); cf. Danile v. Oak Park Arms Hotel, Inc., 55 Ill.App.2d 2, 203 N.E.2d 706 (1964).

      . This court has twice held that lay testimony of the continuing effects of an injury is sufficient to justify an instruction on permanent damages. Gallub v. Del Vecchio, 301 So.2d 785 (Fla. 3d DCA 1974), cert. denied, 314 So.2d 774 (Fla.1975); Salvador v. Munoz, 193 So.2d 442 (Fla. 3d DCA 1966); cf. Sullivan v. Price, 368 So.2d 614 (Fla. 1st DCA 1979); Wages v. Snell, 360 So.2d 807 (Fla. 1st DCA 1978). These cases provide a fortiori authority for the granting of an instruction on future injuries in this case, which is all that the plaintiff now seeks and which requires a significantly lesser showing. Skultety v. Humphreys, 247 Or. 450, 431 P.2d 278 (1967); Leak v. U. S. Rubber Co., 9 Wash.App. 98, 511 P.2d 88 (1973); Harrison v. Weller, 423 S.W.2d 226, 229-230 (Mo.App.1967).

      . Although the appellees’ appellate counsel does not present the contention, the dissenting opinion suggests that the issue was not properly preserved for appellate review. We respectfully think otherwise. The transcript of the charge conference contains the following:
      “THE COURT: Yes, sir, I will give the substance of the permanent damage charge but not in that form. I will not put it in negative form. I’ll put it in positive, in terms of explaining damages in the case.
      MR. FELDMAN [plaintiff’s counsel]: You Honor, are you going to fix a date in damages?
      THE COURT: I’m going to say from the time of the alleged incident until today.

      MR. FELDMAN: Until today, sir?
      THE COURT: Yes, sir.
      MR. FELDMAN: Again, we object and we state our objection.

      THE COURT: That’s what past damages are as I understand it.
      MR. FELDMAN: Same objection.
      THE COURT: I’m not going to give an instruction on permanent or continuing.
      MR. FELDMAN: I don’t want to belabor the point. It’s been brought out that this girl has a boy friend. It’s conceivable she may marry. Is the Court informing me that I am precluded and I cannot argue to the jury. In the event this girl does get married it is reasonable to assume if this did happen, once she gets in bed with her husband, she may have some problems.
      THE COURT: I’m not going to allow it. You can argue this happened to her. It’s obviously a major thing that happens in a woman’s life, young girl’s life. You heard about the testimony and you know how much it must have affected her. When I come to it, I don't want any conversation about the future and future suffering and all this other stuff.

      You going to tell the jury it’s to this date?
      That’s what past damages are. Future damages have to be supported by some evidence. This is in the opinion of someone, that she has sustained an injury that will more likely than not continue in the future and there hasn’t been any testimony in this case. That’s my ruling.

      MR. FELDMAN: Yes, sir.”
      In fact, the court instructed the jury:
      “In this case if the plaintiff proves that she was injured as a consequence of the negligence of the defendant she would be entitled to recover full damages from the date of the incident, if any, until today."

        The purpose of preserving error below is to afford the trial court an opportunity to consider the issue in question. Otherwise, an ultimately unsuccessful litigant could present a mere appellate after thought .so as to require a new trial which could have been prevented if the matter had been called to the attention of the trial judge.
      It is obvious that no such thing occurred in this case. The trial judge specificially considered and rejected the plaintiffs claim that her damages continued into the future. The issue was plainly preserved by the objections of plaintiff’s counsel to the court’s proposed instruction to the contrary. Fla.R.Civ.P. 1.470 (b) (party may claim error in the giving of charge if “he objects thereto at such time . ”). In view of the trial judge’s rulings, it would have been a totally useless, and therefore unnecessary, act for counsel to submit a formal affirmative request that the court give an instruction on future damages which he had already stated he would not give. See Brown v. State, 206 So.2d 377, 384 (Fla.1968).

      . A general discussion on this subject matter took place at the close of the plaintiff’s case at trial when plaintiff’s counsel argued that “I’m entitled to an instruction on the permanency.” TR 430-31. The trial court denied this request. TR 436. At the charge conference, the trial court repeated its earlier ruling to which plaintiffs counsel objected. TR 500-501. I find nothing else in the record which purports to preserve for appellate review the jury instruction question herein.


source: Caselaw Access Project

author: HENDRY, Judge. PEARSON, Judge

license: Public Domain

text:
    Charles H. WARDLOW, Jr., Appellant, v. CITY OF MIAMI, Robert Murphy and Garland Watkins, Appellees.
    No. 78-1283.
    District Court of Appeal of Florida, Third District.
    June 26, 1979.
    Rehearing Denied July 26, 1979.

      Gilbride & Heller, and James F. Gilbride, Miami, for appellant.
    George F. Knox, Jr., City Atty., and Mik-ele S. Carter, Asst. City Atty., for appellees.
    Before PEARSON, HENDRY and KE-HOE, JJ.
   HENDRY, Judge.

Appellant/plaintiff, Wardlow, seeks review of a final summary judgment whereby the trial court dismissed with prejudice two counts from the complaint. This opinion is concerned with the count seeking damages for alleged defamation of character; it constitutes a separate, distinct cause of action within the framework of the multi-count complaint.

The pertinent allegations, succinctly stated, are that the appellant was refused employment by the Key West Police Department and was subjected to ridicule, embarrassment, distress and damage to his reputation in the community as a result of having been spoken of in a slanderous manner and context by the City of Miami Police Department’s Deputy Commander of Internal Security. It was asserted that the Deputy Commander, Robert M. Murphy, upon request for information about Charles Wardlow, had told a named police captain in Key West that appellant, a former police officer with the City of Miami, was guilty of certain felonious criminal acts.

The City of Miami set forth as one of its affirmative defenses that the deputy commander, as a public officer, has absolute privilege from liability, and, thus, is shielded and rendered immune against a suit for damages based upon allegations of defamation.

Generally, the rule of privilege has been recognized in favor of public officers, whether such privilege is absolute or qualified, as immunizing them from suit for libel or slander for statements made in connection with the performance of judicial, legislative, and executive functions of government, either state, federal or local. The rationale of this rule has been said to be grounded on public policy, the law recognizing certain communications as privileged and, as such, not within the rules imposing liability for defamation. Privileged communications are divided into two general classes, namely: (1) those which are absolutely privileged, and (2) those which are qualifiedly or conditionally privileged. The fundamental distinction between the two lies in the fact that the former excludes liability for a defamatory statement or publication although it may have been made with actual malice, whereas the latter does not protect a defendant who has acted maliciously. See generally, 20 Fla.Jur. Libel and Slander (1958) and 50 Am.Jur.2d Libel and Slander (1970).

A review of the leading Florida cases on the issue of privilege shows that the executive officials of government, including county .managers, are absolutely privileged as to defamatory publications made in connection with the performance of duties and responsibilities of their office. McNayr v. Kelly, 184 So.2d 428 (Fla.1966). The McNayr decision that absolute privilege should apply was on two bases: (1) it is well settled in Florida that public servants, including county and municipal officials, are protected by absolute privilege from liability for defamation for words spoken or written in judicial and legislative activities, however false or badly motivated, and (2) the great weight of authority recognizes no distinction between executive officials and judicial or legislative officials of government on the question of immunity. In Hauser v. Urchisen, 231 So.2d 6 (Fla.1970) it was determined that statements made by a city commissioner relating to a city prosecutor’s respect for truth were absolutely privileged on the basis of public interest requirements. In Cripe v. Board of Regents, 358 So.2d 244 (Fla. 1st DCA 1978), the associate director of the division of planning and analysis of the University of Florida, who was required by a division rule to evaluate the job performances of the employees he supervised, was'found to be absolutely privileged as to defamatory statements made by him in connection with the evaluations. The court pointed out in its opinion that to hold otherwise would work to defeat the purpose of the rule requiring employee performance evaluations, and a supervisor would not be candid in his evaluations due to fear of being sued.

The question before us in the cause sub judice, is whether a deputy commander of internal security for a municipal police department is to be accorded absolute privilege or a qualified privilege, and, if the latter obtains, whether material issues of fact remain as to the existence of malice, which would, thus, preclude summary judgment.

We are concerned with the concept of limitation of the seemingly growing across-the-board absolute privilege philosophy— that is, we must define the level where the defense of privilege ceases to be considered absolute and the lesser degree of‘protection, qualified privilege, arises.

Initially, it is understood that each case must be judged on an individual basis, but it is imperative that certain guidelines be further established for the sake of a common sense analysis to be incorporated into the interpretation of libel and slander cases.

The Restatement of Torts, 2d, Chapter 25, (1977) addresses, generally, the question of absolute privilege at the state level, as construed by the courts, at 255:

“All of the state courts that have considered the question have agreed that the absolute privilege . . . protects the superior officer of the state governments, including at least the governor, the attorney-general, or the heads of state departments whose rank is the equivalent of cabinet rank in the federal government.”

The Restatement, supra., speaks to the protection of inferior state officers who have allegedly committed defamation against another in the course of their official duties, § 598 A, at 284:

“An occasion makes a publication conditionally [or qualifiedly] privileged if an inferior administrative officer of a state or any of its subdivisions who is not entitled to an absolute privilege makes a defamatory communication required or permitted in the performance of his official duties.”

We are of the opinion that the appellee/defendant, a lieutenant with the City of Miami Police Department, holding the position of deputy commander of internal security, is qualifiedly privileged. His duties are, without doubt, important to the city’s police department and its citizens, but not sufficiently exalted to warrant absolute immunity. The United States Supreme Court in Barr v. Matteo, spoke of the test to be applied when determining the degree of protection for a certain public officer. It is not the title of the office, but the duties with which the particular officer sought to be made to respond in damages is entrusted which must provide the guide in delineating the scope of the rule. The record under review reveals that Lieutenant Murphy has among his duties the responsibility to oversee and conduct investigations of police officers based upon citizen complaints and intra-departmental complaints, as well as to investigate other cases assigned to him by the Chief of Police. We believe that the subject communication was made on a matter in which the person communicating it had a bona fide interest and with respect to which he had a duty, and it was made to a person who had a corresponding interest and duty. The appellee had the right and duty to communicate an evaluation of a former police officer (with appellee’s department) to an inquiring official from another police department. It should be borne in mind that the general public is the beneficial recipient where the question of the fitness of a police officer is at issue. Such a benefit to the citizenry must be weighed against the right of an individual to the enjoyment of a good reputation, unassailed. The question as to the existence of malice, however, remains unresolved in the instant cause.

The summary judgment is, therefore, reversed on the issue of absolute privilege, and remanded to the trial court for further proceedings to determine whether actual malice existed, which would have to be proved in order to vitiate the qualified privilege.

Appellant’s second point on appeal dealing with the rights of law enforcement officers while under investigation, § 112.-532, Florida Statutes (1974), has been considered and determined to be without merit. We affirm the trial court order on this issue.

Accordingly, we reverse and remand on the issue of privilege, and affirm as to the second point appealed.

PEARSON, Judge

(dissenting).

I would affirm. It is sufficient to state that on the basis of the authorities cited and the reasoning contained in this opinion, I am of a contrary point of view. I believe the communication was “absolutely” privileged and would hold, as stated in McNayr v. Kelly, 184 So.2d 428 (Fla.1966), that “executive officials of government are absolutely privileged as to defamatory publications made in connection with the performance of the duties and responsibilities of their office to the same extent as such absolute immunity is afforded to members of the legislative and judicial branches of government. See also Cripe v. Board of Regents, 358 So.2d 244, 245 (Fla. 1st DCA 1978), where it is pointed out that recent decisions “. . have moved away from the distinction [of how far down the ladder the absolute privilege extends] on the basis of rank and look rather to the duties which the officer is required to perform.”

      . In the McNayr case, the court relied heavily upon the rationale expressed in Barr v. Matteo, 360 U.S. 567, 70 S.Ct. 1335, 3 L.Ed.2d 1434 (1959). That opinion quotes extensively from
        Gregoire v. Biddle, 177 F.2d 579 (2d Cir. 1949). See recent holding, relying upon McNayr, Densmore v. City of Boca Raton, 368 So.2d 945 (Fla. 4th DCA 1979).

      . See also, Carr v. Watkins, 227 Md. 578, 177 A.2d 841 (Md.App.1962).

      . Cite contained in footnote 1.

      . Interestingly, policemen have been held to be “public officers” within the meaning of the privilege rule and are subject to fair comment and criticism from any member of the public. White v. Fletcher, 90 So.2d 129 (Fla.1956).

      . See, Loeb v. Geronemus, 66 So.2d 241 (Fla.1953), which held that the malice must be “actual” and not merely inferred from the falsity of the statement.

      . “As a concluding observation, were we to agree to the theory of qualified privilege it would make the courts an arbiter between men rather than between causes. It would place the litigant in the position in every case where defamatory statements were made by others than ‘high government officials’ of having to institute suit to determine in the first instance whether he had a cause of action and then place the awesome responsibility upon the courts of determining whether they would allow a suit to be maintained against the particular individual sued. We think that there should be no distinction between the judicial, legislative and the executive branches of government so far as absolute privilege is concerned. If a distinction is to be made, as we have heretofore stated, it should be made by the legislative branch of government.”


author: PER CURIAM.

text:
    INDUSTRIAL FIRE AND CASUALTY INSURANCE COMPANY, Appellant, v. Eugene COOPER, Jr., and Vivian Lockett Cooper, Appellees.
    No. 78-1360.
    District Court of Appeal of Florida, Third District.
    June 26, 1979.
    Rehearing Denied July 23, 1979.
    Goodhart & Rosner, Jeanne Heyward, Miami, for appellant.
    Kuvin, Klingensmith & Lewis and R. Fred Lewis, Coconut Grove, for appellees.
    Before PEARSON, HENDRY and HUB-BART, JJ.
   PER CURIAM.

This is an appeal from a summary final judgment on a third-party action entered in favor of an insured in an insurance coverage dispute in the lower tribunal. Industrial Fire & Casualty, the appellant herein, was the third-party defendant below and appellee, Vivian Lockett Cooper, was the defendant/third party plaintiff. Appellee had been sued for personal injuries resulting from a motor vehicle accident in which she was involved; the other driver, Eugene Cooper, Jr. (not a relative of appellee), had included appellee’s insurer as a defendant in the action for personal injuries.

The undisputed facts reveal that appel-lee’s husband had acquired third automobile, a 1972 Dodge stationwagon, prior to the time that the insurance policy coverage on two other cars which the Coopers possessed went into effect. One of the two cars described in the policy with Industrial Fire became inoperable and was towed away to a vacant lot prior to the effective date of the policy, and it was not repaired or driven again. Thereafter, the most-recently-acquired car, a Dodge stationwag-on, was used in place of the inoperable car. The Industrial Fire Insurance policy provided insurance for two cars, and at no time did the Coopers operate more than two cars during the period covered by the policy; however, the Coopers did not notify the insurer that the Dodge stationwagon was being used in place of the inoperable car described in the policy. During the time the policy was in full force and effect, Mrs. Cooper, while operating the Dodge station-wagon, was involved in the motor vehicle accident which resulted in the litigation below. Industrial Fire denied liability on the basis that the said stationwagon was a nonscheduled automobile which was not a “temporary substitute” nor a “newly-acquired vehicle” under the provisions of the policy. The trial court, in granting the appellees’ motion for summary judgment on the issue of coverage, found for the appel-lee.

On appeal the appellant-insurer contends that the trial court erred, as a matter of law, in holding as it did; appellee urges that the court was correct, since a motor vehicle which is in the possession of an insured prior to the effective date of insurance coverage is afforded liability coverage under the “automatic insurance” provision of the policy when the vehicle replaces or is substituted for a vehicle described in the policy, where the vehicle described in the policy is inoperable on the effective date of coverage and is never operable during the policy period. We agree and affirm the final summary judgment on the authority of Boston Insurance Company v. Smith, 149 So.2d 68 (Fla. 1st DCA 1963).

The court in Boston Insurance Company addressed the identical issue, and the identical “automatic insurance” provision was considered. The Boston Insurance Company decision stated that the provision was ambiguous as to whether a motor vehicle not described in the policy is afforded liability insurance coverage, if it replaces a vehicle described in the policy prior to the policy period, and that ambiguous, equivocal or uncertain terms of a policy are construed most strongly against the insurer and liberally in favor of the insured so as to effect the dominant purpose of payment to the insured. The automatic insurance provision reads in pertinent part:

“Automobile Defined, Trailers, Private Passenger Automobile, Two or More Automobiles, Including Automatic Insurance.
“(a) . . . the word ‘automobile’ means:
“(3) Temporary Substitute Automobile— under coverages A, B and division 1 of coverage D, an automobile not owned by the named insured or his spouse if a resident. of the same household, while temporarily used as a substitute for the described automobile when withdrawn from normal use because of its breakdown, repair, servicing, loss or destruction.
“(4) Newly Acquired Automobile — an automobile, ownership of which is acquired by the named insured or his spouse if a resident of the same household, if (i) it replaces an automobile owned by either and covered by this policy, or the company insures all automobiles owned by the named insured and such spouse on the date of its delivery, and (ii) the named insured or such spouse notifies the company within thirty days following such delivery date; but such notice is not required under coverages A, B and division 1 of coverage D if the newly acquired automobile replaces an owned automobile covered by this policy.”

In its argument, appellant places reliance upon the holdings in Newbern Distributing Co. v. Canal Insurance Company, 124 So.2d 721 (Fla. 2d DCA 1960); Coleman v. Atlantic National Insurance Company, 166 So.2d 620 (Fla. 3d DCA 1964); and Pennsylvania Threshermen & Farmers’ Mutual Casualty Insurance Company v. Traister, 173 So.2d 153 (Fla. 2d DCA 1965). However, we find the facts of the instant case distinguishable from the facts stated in all three of the cited cases, since they involved an “additional” motor vehicle and in no way constituted a “replacement” or “substitute” motor vehicle within the meaning of the respective insurance policies. In the cause sub judice, the Dodge stationwagon was clearly used in place of the inoperable vehicle.

No reversible error has been demonstrated, therefore, the final summary judgment on the issue of insurance coverage is affirmed.

      . See also, a case originating in the Southern District of Florida. Silverstein v. Liberty Mutual Insurance Company, 505 F.2d 138 (5th Cir.1975).


text:
    FALLS POULTRY DISTRIBUTING CO., a Florida Corporation, Appellant, v. CANNER REALTY CORPORATION, INC., a Florida Corporation, d/b/a Manor Kosher Meats and Irving Cirulnick and Sylvia Cirulnick, his wife and Irving Canner and Arlene Canner, his wife, Appellees.
    No. 78-2250.
    District Court of Appeal of Florida, Third District.
    June 26, 1979.
    Rehearing Denied July 23, 1979.
    Freshman, Gerson & Freshman and Jerald A. Freshman, Miami, for appellant.
    Ginsberg & Goldman and Daniel L. Ginsberg, North Miami Beach, for appellees.
    Before HENDRY, HUBBART and SCHWARTZ, JJ.
   PER CURIAM.

The final summary judgment under review is reversed and the cause remanded for further proceedings. Falls Poultry Distributing Co. v. Canner, 372 So.2d 129 (Fla. 3d DCA 1979).


author: PER CURIAM. ANSTEAD, Judge,

text:
    CITY OF BOCA RATON, Appellant, v. COUNTY OF PALM BEACH, a Political Subdivision of Florida, Appellee.
    No. 77-2366.
    District Court of Appeal of Florida, Fourth District.
    June 27, 1979.
    M. A. Galbraith, Jr., City Atty., and Robert A. Eisen, Asst. City Atty., Boca Raton, for appellant.
    R. William Rutter, Jr., County Atty., and Warren W. Dill, Asst. County Atty., West ■Palm Beach, for appellee.
   PER CURIAM.

Affirmed.

LETTS J., and JOHNSON, TOM, Associate Judge, concur.

ANSTEAD, J., dissents with opinion.

ANSTEAD, Judge,

dissenting:

This case involves a dispute between the county and the city as to who has jurisdiction to prepare a comprehensive land use plan for a “reserve area” located within the county and outside of but adjacent to the city. In 1967 the legislature granted the city the exclusive right to annex this area but provided that no city authority could be exercised over the area until it was actually annexed. Chapter 67-1112, Laws of Florida, Special Acts of 1967.

In 1975 the Local Government Comprehensive Planning Act was enacted requiring all counties and municipalities to adopt comprehensive plans for areas within their jurisdictions on or before July 1, 1979. As to the reserve area the Act provides:

In the case of municipalities where reserve areas have been designated for future annexation by law, the term “area” shall include, as being under the jurisdiction of the municipality for purposes of this act, such unincorporated but designated and reserved lands. § 163.3164(1), Florida Statutes.

That language is at the focus of the dispute here. The trial court ruled that the county had exclusive jurisdiction to adopt a comprehensive plan for the reserve area, since the county is the only entity that can legally exercise governmental authority over the area. Although that decision appears eminently sensible, it appears to directly conflict with Section 163.3164(1), supra. Another provision of the Planning Act provides:

Where this act may be in conflict with any other provision or provisions of law relating to local governments having authority to regulate the development of land, the provisions of this act shall govern unless the provisions of this act are met or exceeded by other provision or provisions of law relating to local government. Nothing in this act is intended to withdraw or diminish any legal powers or responsibilities of state agencies or change any requirement of existing law that local regulations comply with state standards or rules. Section 163.3211, Florida Statutes.

When you put the provisions of Sections 163.3164(1) and 163.3211 together you Aave the legislature stating that the city has the power to plan in reserve areas notwithstanding any contrary provisions of law.

The county in essence concedes that the legislature has the authority to authorize the city to plan for the area but contends that other provisions of the Planning Act indicate that the county has planning authority over all the unincorporated area and that a city may exercise authority only if the county agrees. In addition the county cites a host of practical problems arising from one body having authority to plan and another body having the authority to govern.

One thing is clear: the legislature did not provide the details of how the planning is to be effected when a city does the planning for an area outside the city and within the general governmental jurisdiction of the county. Although numerous provisions are made encouraging cooperation between the two bodies, no provision is made for the implementation of plans for reserve areas when the city and county cannot agree.

In conclusion, common sense tells me that I should affirm what the trial judge has done here; but the express provisions of the legislature must prevail and I cannot ignore the clear language of Section 163.3164(1), supra.


author: KEHOE, Judge.

text:
    Jessie James DRAYTON, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1305.
    District Court of Appeal of Florida, Third District.
    July 3, 1979.

      Bennett H. Brummer, Public Defender and Karen M. Gottlieb and Jacquelyn S. Plasner, Asst. Public Defenders, for appellant.
    Jim Smith, Atty. Gen., and Joel D. Rosen-blatt and Anthony C. Musto, Asst. Attys. Gen. and Clifford M. Miller, Legal Intern, for appellee.
    Before HAVERFIELD, C. J., and BARK-DULL and KEHOE, JJ.
   KEHOE, Judge.

Appellant, defendant below, brings this appeal from a judgment of conviction and sentence entered after a jury trial on the charges of possession and sale of cocaine. We affirm in part and reverse in part.

The first point raised on appeal is that the trial court erred in denying appellant’s motion to compel disclosure of the confidential informant where such disclosure was essential and material to his defense. We disagree with this contention.

As a general rule, the State has the privilege of not disclosing the identity of a confidential informant; however, there are exceptions to this rule, e. g., where the identity of the informer is essential to the defense. The general rule and its exceptions have been set forth in Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639; United States v. Toombs, 497 F.2d 88 (5th Cir. 1974), and Treverrow v. State, 194 So.2d 250 (Fla.1967). The burden of proof is on the defendant to show that he warrants an exception to the general rule of non-disclosure. See State v. Jones, 323 So.2d 595 (Fla. 3d DCA 1975); and State v. Davis, 308 So.2d 539 (Fla. 3d DCA 1975).

Applying the tests of Roviaro and Treverrow, we are of the opinion that appellant has not met his burden of proof in the instant case. First, appellant contends that the name of the informant, who he denies existed, should be disclosed for impeachment purposes. Based on the record in this cause, this contention was purely speculative. See United States v. D’Amato, 493 F.2d 359 (2d Cir. 1974); and United States v. Waters, 461 F.2d 248 (10th Cir. 1972). Second, the informant did not participate in the criminal conduct with which appellant was charged, rather the role of the informant was merely to allow the arresting officer to gain entry to the premises where the criminal conduct occurred. See Savinon v. State, 277 So.2d 58 (Fla. 3d DCA 1973); Doe v. State, 262 So.2d 11 (Fla. 3d DCA 1972); and Kraus v. State, 243 So.2d 214 (Fla.3d DCA 1971). Third, although there were references to the informant by appellee during the trial, these references were only peripheral and, because of their nature, could not have affected the jury’s decision. Fourth, even though the defense was an alibi and the informant could support or destroy it, this fact does not require disclosure. See Decca v. State, 186 So.2d 92 (Fla.3d DCA 1966). Fifth, the evidence which convicted appellant was independent of any evidence relating to the informant and was corroborated by the physical evidence and the testimony of the surveillance police officers. Sixth, on the date of both sales for which appellant was convicted, a fourth person, by the name of “Wine,” was present. Wine was living with appellant and acted as his “cat man,” i. e. taking care of appellant’s prostitutes while he was away. Further, appellant’s counsel was asked by the trial court if Wine was going to testify. Appellant’s counsel replied “at this point, the defense is not intending to call him.” Further, Wine was not an agent of appellee. See United States v. Connolly, 479 F.2d 930 (9th Cir. 1973); People v. Marquez, 546 F.2d 482 (Colo.1976); State v. Taylor, 508 S.W.2d 506 (Mo.App.1974); People v. Lloyd, 55 A.D.2d 171, 390 N.Y.S.2d 172 (1976); and Commonwealth v. Snyder, 254 Pa.Super. 186, 385 A.2d 588 (1978). Although there is no Florida case directly on point, these cases support the conclusion that when the State’s interest in protecting its confidential informant is balanced against the defendant’s interest in knowing his identity, but the defendant has available another eye witness whom he chooses not to call, the State’s interest should prevail. For the reasons set forth above, appellant’s first point on appeal is without merit; accordingly, it is affirmed.

Appellant’s second point on appeal is that the trial court erred in sentencing him for both the sale and possession of cocaine where both charges involved a single transaction. Under the facts of this case, we agree with this contention.

Counts III and IV of the information charged appellant with two violations of Section 893.13, Florida Statutes (1977). Count III charged appellant with the sale of cocaine and Count IV charged him with possession of cocaine. Appellant was found guilty of both Counts as charged, and the trial court sentenced him to five years in the State penitentiary on each count, the sentences to run concurrently. The record shows that appellant was convicted for the sale and possession of the same substance. This was improper. See, e. g., Yost v. Wright, 360 So.2d 1309 (Fla.3d DCA 1971); Wright v. State, 348 So.2d 633 (Fla.3d DCA); and Orange v. State, 334 So.2d 277 (Fla.3d DCA 1976). Accordingly, the sentences imposed are reversed, and the cause is remanded for proper sentencing in the light of this opinion.

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


author: SCHEB, Judge.

text:
    TEXAS SKAGGS, INC., a Foreign Corporation, and Texas Albertsons, Inc., a Foreign Corporation, Appellants, v. Patricia S. JOANNIDES and Minas Joannides, M. D., her husband, Appellees.
    No. 78-1225.
    District Court of Appeal of Florida, Second District.
    July 6, 1979.

      John W. Williams, J. Scott Brasfield and Jeffrey R. Fuller of Williams, Brasfield & Wertz, St. Petersburg, for appellants.
    John M. Edman of Meros, Coit, Edman, Meros & Smith, St. Petersburg, for appel-lees.
   SCHEB, Judge.

Defendants, owners of a retail store, were found not liable in a suit for malicious prosecution arising out of their employee’s arrest of a customer for shoplifting. Where no other wrongful act of the employee was alleged, can defendants still be held liable to the customer for the negligent hiring, training and retention of the employee? We hold that the employer cannot be held liable under these circumstances and reverse the trial court’s judgment in favor of the customer.

On January 6, 1977, while shopping in a St. Petersburg retail store owned by Texas Skaggs, Inc., and Texas Albertsons, Inc. (Skaggs-Albertsons), Patricia S. Joannides was arrested by James Owens, the store’s security guard, and charged with the shoplifting of a meat thermometer. Mrs. Joan-nides denied any wrongdoing. Nevertheless, Owens called police who booked Mrs. Joannides and released her on bond. She was subsequently tried for petit larceny and found not guilty.

Thereafter, Mrs. Joannides and her husband Minas Joannides, M.D., sued defendants, Skaggs-Albertsons for compensatory and punitive damages. The Joannides’ amended complaint set forth three counts. They charged malicious prosecution of Mrs. Joannides by Skaggs-Albertsons in Count I, and negligence by Skaggs-Albertsons in hiring, training and retaining the guard in Count II. In Count III, Dr. Joannides set forth a derivative claim against the defendants.

Upon conclusion of a jury trial, the court struck the claim for punitive damages as to Count II. Then, over Skaggs-Albertsons’ objection, the trial judge gave the jury special verdict instructions which included the following:

THE COURT: This is entitled Special Verdict Form, please answer the following questions as indicated.
Question number one, did Texas Skaggs Inc. and Texas Albertsons Inc. maliciously prosecute Patricia S. Joan-nides?
If your answer is no, go no further on question one and move to question two. (The court then gave instructions in case of an affirmative answer. Since the jury answered question one negatively, the instructions are irrelevant to this opinion and have been deleted.)
2. Were the defendants, Texas Skaggs Inc., and Texas Albertsons Inc., negligent in the hiring, training or retention of James Owens?
If your answer to question 2 is yes, please answer the following:
A, we find Patricia Joannides is entitled to compensatory damages in the amount of, blank.
B, we find that Minas Joannides is entitled to compensatory damages for the loss of his wife’s services, comfort, society and attentions in the amount of, blank.
C, we find that Minas Joannides is entitled to compensatory damages for his bodily injury resulting pain and suffering and disability in the amount of, blank.

On the basis of conflicting evidence, the jury found that Skaggs-Albertsons had not maliciously prosecuted Mrs. Joannides. Nevertheless, applying the court’s special verdict instructions, the jury rendered a verdict of $170,000 for Mrs. Joannides on the negligent hiring, training or retention count, and awarded her husband $30,000 on his derivative claim.

Count II merely realleged the charges of Count I and added the allegation that Skaggs-Albertsons was negligent in employing, training and retaining Owens as a security guard. There was no allegation that defendants’ agent, Owens, committed any tort or wrongful act other than malicious prosecution.

In their challenge to the final judgment Skaggs-Albertsons emphasizes that the only tort with which it was charged, based on the actions of its agent, was malicious prosecution. Consequently, they argue, once the jury found that this tort had not been committed, it could not, as a matter of law, have found Skaggs-Albertsons liable for negligently hiring, training or retaining the guard.

Despite the verdict exonerating Skaggs-Albertsons of malicious prosecution, the Jo-annides argue that there was sufficient evidence from which the jury could have found the defendants liable for negligently hiring, training or retaining the guard. This, they say, constituted a tort independent of malicious prosecution.

The Joannides are correct in their position that Florida recognizes negligent hiring, training or retention as legitimate bases of recovery against an employer. Mallory v. O’Neil, 69 So.2d 313 (Fla.1954); Petrick v. New Hampshire Insurance Co., Case No KK-35 (Fla. 1st DC A, opinion filed May 31, 1979); McArthur Jersey Farm Dairy, Inc. v. Burke, 240 So.2d 198 (Fla. 4th DCA 1970). Skaggs-Albertsons argues, and we agree, however, that in order to impose liability on an employer for such torts, a plaintiff must first show that he was injured by the wrongful act of an employee. See Lange v. B & P Motor Express, Inc., 257 F.Supp. 319 (N.D.Ind.1966); cases cited at 53 Am.Jur.2d Master and Servant § 422 (1970).

Here there was no allegation of any tort committed by the guard other than malicious prosecution. Therefore, it was error for the court to have instructed the jury that, even if they should find that Skaggs-Albertsons did not maliciously prosecute Mrs. Joannides, they could still find Skaggs-Albertsons liable for negligently hiring, training or retaining the guard.

Accordingly, we vacate the judgment.

REVERSED.

GRIMES, C. J., and DANAHY, J., concur.


text:
    PROJECT 3, INC., a Florida Corporation, Edward J. Wysocki, and Latrelle B. Wartman, Appellants, v. Delores BOWLES, Appellee.
    No. 78-1368.
    District Court of Appeal of Florida, Second District.
    July 6, 1979.
    William B. Fletcher, Sebring, for appellants.
    James W. Kelly of Livingston & Kelly, Sebring, for appellee.
   PER CURIAM.

The judgment of the lower court is affirmed, but we remand so the court may strike the award of attorney’s fees. Appel-lee did not obtain the special remedy provided for by Section 478.191(2), Florida Statutes (1975), and the allowance for attorney’s fees is not otherwise authorized.

GRIMES, C. J., and HOBSON and OTT, JJ., concur.


author: RYDER, Judge.

text:
    Patricia A. BURGDORF, Appellant, v. Robert W. BURGDORF, Appellee.
    No. 78-1594.
    District Court of Appeal of Florida, Second District.
    July 6, 1979.
    E. Ronald Bradley of Ellis, Reynolds, Bradley & Lenderman, St. Petersburg, for appellant.
    Jack F. White, Jr., Clearwater, and Roger R. Maas, St. Petersburg, for appellee.
   RYDER, Judge.

In July 1972, a final judgment of dissolution of marriage was entered awarding custody of the parties’ children to the wife and ordering the husband to pay child support commencing August 1, 1972 and continuing thereafter in the amount of $300.00 per month “until the last minor child of the parties shall become sui juris, married or otherwise self-supporting.”

The youngest child of the parties became eighteen years of age on September 12, 1977 whereupon the husband ceased making child support payments.

On April 28, 1978, wife filed a motion for contempt and judgment for child support arrearages. She sought to enforce the obligation of appellee to pay child support for the months of September 1977 through April 1978. After hearing, the trial court entered an order denying the motion for contempt judgment for child support ar-rearages. This timely appeal followed.

The law which governs this case is simple and is found embodied in Section 743.07, Florida Statutes (1973), as set forth below:

“743.07 Rights, privileges and obligations of persons 18 ‘years of age or older.—
(1) The disability of nonage is hereby removed for all persons in this state who are 18 years of age or older, and they shall enjoy and suffer the rights, privileges, and obligations of all persons 21 years of age or older except as otherwise excluded by the State Constitution immediately preceding the effective date of this section.
(2) This section shall not prohibit any court of competent jurisdiction from requiring support for a dependent person beyond the age of 18 years; and any crippled child as defined in chapter 391 shall receive benefits under the provisions of this section to the contrary notwithstanding.
(3) This section shall operate prospectively and not retrospectively, and shall not affect the rights and obligations existing prior to July 1, 1973.

The law is well settled that a divorce decree entered prior to July 1, 1973, which requires a husband to make child support payments to his wife until the minor child in question becomes sui juris, married or otherwise self-supporting, obligates the husband, on the face of the decree, to make child support payments until the child meets one of those tests. The only method by which a husband may absolve himself of such obligation of support prior to the child reaching twenty-one is if he files a motion to modify under Section 61.14, Florida Statutes (1977), and is able to prove the child has since become married or self-supporting. This result was in no way changed by Section 743.07, Florida Statutes (1973), lowering the age of majority to eighteen years, because the statute by its expressed terms does not operate retroactively to alter or change child support awards made prior to July 1, 1973, the effective date of this statute. Finn v. Finn, 312 So.2d 726 (Fla.1975); Daugherty v. Daugherty, 308 So.2d 24 (Fla.1975); Field v. Field, 291 So.2d 654 (Fla. 2d DCA 1974); Manganiello v. Manganiello, 359 So.2d 26 (Fla. 3d DCA 1978); Adams v. Adams, 340 So.2d 1290 (Fla. 3d DCA 1977). To the extent that Dwyer v. Dwyer, 327 So.2d 74 (Fla. 1st DCA 1976) reaches a different result, we decline to follow it as being contrary to the established law of this state. Consequently, the order denying wife’s motion for contempt and judgment for child support arrearages is hereby REVERSED and the cause is REMANDED with directions for proceedings consistent with this opinion.

REVERSED and REMANDED with directions.

GRIMES, C. J., and DANAHY, J., concur.


author: BOARDMAN, Acting Chief Judge.

text:
    The FIRST NATIONAL BANK OF TAMPA, as Trustee, under Trust Agreement dated August 30, 1965, d/b/a Kash n’ Karry Wholesale Supermarkets, Appellant, v. Michael L. PAPPAS, Appellee.
    No. 78-2025.
    District Court of Appeal of Florida, Second District.
    July 6, 1979.

      James D. Wing of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, for appellant.
    Michael A. Houllis, Seminole, for appel-lee.
   BOARDMAN, Acting Chief Judge.

This is an appeal from a final summary judgment entered in favor of appellee.

Appellee did not conclusively show the absence of a genuine issue of material fact concerning appellant’s contention that the original lease was modified by a subsequently recorded reciprocal easement agreement, of which appellee is alleged to have had constructive notice. It is well settled that summary judgment is not to be granted unless the moving party can demonstrate that there is no genuine issue of material fact which, if taken in a light most favorable to the nonmoving party, would entitle the nonmoving party to relief. Holl v. Talcott, 191 So.2d 40 (Fla.1966). The affidavit filed by appellant in opposition to the motion for summary judgment contains allegations sufficient to create an issue of material fact which must be resolved by the trier of fact.

Furthermore, we believe that under the circumstances here the trial court should have granted appellant’s motion for leave to amend its pleadings, which was filed after entry of the order granting ap-pellee’s motion for summary judgment but before final summary judgment was entered. See Bradham v. Hayes Enterprises, Inc., 306 So.2d 568 (Fla. 1st DCA 1975); see also Schurkman v. Stolar, 347 So.2d 653 (Fla. 3d DCA 1977); Watier v. REW Crane Service, Inc., 240 So.2d 177 (Fla. 4th DCA 1970), modified, 257 So.2d 249 (Fla.1971).

Accordingly, the order of final summary judgment is REVERSED and the cause REMANDED for further proceedings consistent with this opinion.

SCHEB and OTT, JJ., concur.


author: OTT, Judge.

text:
    VERMONT MUTUAL INSURANCE COMPANY, Appellant, v. Norman C. CUMMINGS and Virginia R. Cummings, Appellees.
    No. 78-2121.
    District Court of Appeal of Florida, Second District.
    July 6, 1979.

      William D. Slicker of Lyle, Skipper, Wood & Anderson, St. Petersburg, for appellant.
    H. Shelton Philips of Kaleel & Kaleel, St. Petersburg, for appellees.
   OTT, Judge.

Appellant sued for indemnification alleging settlement of a previous tort action. Appellees’ motion to dismiss was granted with prejudice.

We think the dismissal was warranted on the ground that the complaint fails to allege sufficient ultimate facts to show the relationship of the parties, the basis of liability and the amount of damages.

However, the law encourages liberality in permitting amendments to pleadings unless it is clearly made to appear that the deficiencies of the pleading cannot be cured. Hansen v. Central Adjustment Bureau, 348 So.2d 608-10 (Fla. 4th DCA 1977). No such showing was made here and we conclude that it was error for the court to deny appellant’s request for leave to amend.

The order dismissing the complaint with prejudice as to appellees is reversed with instructions to the circuit court to grant appellant reasonable opportunity to amendment its complaint.

BOARDMAN; Acting C. J., and SCHEB, J., concur.


text:
    Charlotte Walker TIFFIN, Appellant, v. Jay Hopkins TIFFIN, Appellee.
    No. 78-2246.
    District Court of Appeal of Florida, Second District.
    July 6, 1979.
    Lee S. Damsker of Gordon & Maney, P. A., Tampa, for appellant.
    Harry S. Cline of McMullen, Everett, Logan, Marquardt & Cline, P. A., Clearwater, for appellee.
   PER CURIAM.

Affirmed without prejudice to pursue Petition to Set Aside Property Settlement Agreement, Case No. 78-12778-16, filed in the Sixth Judicial Circuit below.

HOBSON, Acting C. J., and OTT and RYDER, JJ., concur.


text:
    Timothy Wade GRIFFIN, Appellant, v. STATE of Florida, Appellee.
    No. JJ-460.
    District Court of Appeal of Florida, First District.
    July 10, 1979.
    Rehearing Denied Aug. 21, 1979.

      Norman J. Abood, Jacksonville, for appellant.
    Jim Smith, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Timothy Wade Griffin appeals from a conviction of nine counts of wholesale distribution of obscene material on the grounds that the jury instruction failed to sufficiently set forth the essential elements of the crime of obscenity. We affirm.

A review of the record reveals that there was an extensive discussion between counsel and the trial judge concerning the jury instructions in this case. The attorney had every opportunity to present proposed instructions, which he did, and to discuss or challenge the instructions the court proposed. The record also reveals no contention was made by counsel that the instructions would be fatally defective if they failed to include the specific words, “patently offensive.” As the final instruction was set forth by the trial judge, counsel was silent when he should have objected; and when he did speak, the words spoken could be construed as agreement, The general objection as to the trial court’s refusal to use Griffin’s proposed instructions was not sufficiently specific enough to preserve the point for appeal. Rule 3.390, Pla.R.Crim.P.

Furthermore, we hold that the failure to use the two words, “patently offensive,” was not of a constitutional dimension. While it is true that the cases cited by appellant include those specific words, the words used in the final instruction were of equal import.

AFFIRMED.

McCORD, Acting C. J., and BOOTH and LARRY G. SMITH, JJ., concur.


text:
    Frank Phillip WRIGHT, Appellant, v. Josephine Florence WRIGHT, Appellee.
    No. MM-400.
    District Court of Appeal of Florida, First District.
    July 10, 1979.
    Mark Evan Frederick, Destín, for appellant.
    Gregory F. Lungstrum of Lorenz, Lungstrum & Heflin, Fort Walton Beach, for appellee.
   PER CURIAM.

AFFIRMED. Appellee’s petition for attorney’s fees is provisionally granted and the case is remanded for the trial court to set the amount in accordance with Dresser v. Dresser, 350 So.2d 1152 (Fla. 1st DCA 1977); Phillips v. Phillips, 372 So.2d 199 (Fla. 1st DCA 1979).

McCORD, Acting C. J., and BOOTH and LARRY G. SMITH, JJ., concur.


text:
    Kellyn WARE, Appellant, v. Oletha THOMAS and Industrial Fire and Casualty Insurance Co., Appellees.
    No. 78-668.
    District Court of Appeal of Florida, Third District.
    July 10, 1979.
    Pelzner, Schwedock & Finkelstein and Peter S. Schwedock, Miami, for appellant.
    Goodhart & Rosner, Greene & Cooper and Sharon L. Wolfe, Miami, for appellees.
    Before PEARSON, KEHOE and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed. See Griffis v. Hill, 230 So.2d 143 (Fla.1969).


text:
    Jeffrey GOLSTEIN and Edith Golstein, Appellants, v. GOVERNMENT EMPLOYEES INSURANCE COMPANY, Appellee.
    No. 78-1383.
    District Court of Appeal of Florida, Third District.
    July 10, 1979.
    Abramson, Mendigutia & Libman and Paula L. Schwartz, Miami, for appellants.
    Bradford, Williams, McKay, Kimbrell, Hamann & Jennings and Robert K. Tucker, Miami, for appellee.
    Before PEARSON, KEHOE and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed upon authority of the rule stated in Florida East Coast Ry. Co. v. McRoberts, 111 Fla. 278, 149 So. 631 (1933).


text:
    Leonard P. MARCUS, Appellant, v. FLORIDA REAL ESTATE COMMISSION, Appellee.
    No. 78-1698.
    District Court of Appeal of Florida, Third District.
    July 10, 1979.
    Tom Bush, Fort Lauderdale, for appellant.

      Howard Hadley and Salvatore A. Carpi-no, Orlando, for appellee.
    Before BARKDULL and HUBBART, JJ., and RIEGLE, HORACE D. (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Florida Real Estate Commission v. Webb, 367 So.2d 201 (Fla.1978); Section 475.25(l)(a), Florida Statutes (1975).


text:
    Curtis HORNE, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1814.
    District Court of Appeal of Florida, Third District.
    July 10, 1979.
    Curtis Horne, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before HUBBART, KEHOE and SCHWARTZ, 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 (1967), 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 filed his response 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 as appellate counsel is granted, and the judgment of conviction appealed is hereby affirmed.

The trial judge, however, improperly imposed a general three year sentence as to two counts of the information. The sentence below is therefore reversed and the cause remanded for the imposition of separate sentences as to each of the two counts in question. Dorfman v. State, 351 So.2d 954 (Fla.1977); Estraviz v. State, 366 So.2d 803 (Fla. 3d DCA 1979). Appellant need not be present at the resentencing.

Affirmed in part, reversed in part and remanded; motion of public defender to withdraw as appellate counsel granted.


text:
    BRADFORD WHITE CORP., a Michigan Corporation, Appellant, v. AETNA INSURANCE COMPANY, Appellee.
    No. 79-9.
    District Court of Appeal of Florida, Third District.
    July 10, 1979.

      Ress, Gomez, Rosenberg & Howland and David R. Howland, North Miami, for appellant.
    Underwood, Gillis, Karcher, Reinert & Valle and David P. Karcher, Miami, for appellee.
    Before BARKDULL, HUBBART and SCHWARTZ, JJ.
   PER CURIAM.

By this appeal, we are asked to review a non-final order denying a motion to dismiss a complaint for lack of jurisdiction over the person of the defendant Bradford White Corp. We have jurisdiction to entertain this appeal. Fla.R.App.P. 9.130(a)(3)(C)(i).

We must reverse the order appealed from upon a holding that the plaintiffs complaint fails to allege sufficient facts that the defendant Bradford White Corp. as a corporate non-resident of Florida was doing business in Florida and that the cause of action sued upon arose out of such business. As such, the substituted service of process accomplished in this case on the Florida Secretary of State under Section 48.181(1), Florida Statutes (1977), as the method of serving said defendant must fall and the complaint herein is subject to dismissal with leave to amend. Chase Manhattan Bank v. Banco Del Atlantico, 343 So.2d 936 (Fla. 3d DCA 1977); Lopez v. La Fuente, 343 So.2d 930 (Fla. 3d DCA 1977); Joyce Bros. Storage & Van Co. v. Piechalak, 343 So.2d 97 (Fla. 3d DCA 1977).

This result is not changed by the fact that the complaint herein alleges a breach of contract committed by the said defendant in Florida. Under Section 48.-193(l)(g)(2), Florida Statutes (1977), service on the defendant herein would only have been good, based on such breach of contract, if the said defendant, unlike this case, had been personally served out of the state pursuant to Section 48.194, Florida Statutes (1977). P.S.R. Assoc. v. Artcraft-Heath, 364 So.2d 855, 858 (Fla. 2d DCA 1978).

The order appealed from is reversed and the cause remanded to the trial court with directions to dismiss the plaintiff’s complaint herein with leave to amend.


text:
    Arnold A. ADAMS, Appellant, v. HELLIWELL, MELROSE & DEWOLF, P. A., Appellee.
    No. 79-88.
    District Court of Appeal of Florida, Third District.
    July 10, 1979.
    Pilafian & Schaffer and Melvin Schaffer, Miami, for appellant.
    Helliwell, Melrose & DeWolf and Robert J. Schaffer, Miami, for appellee.

      Before BARKDULL and HUBBART, JJ., and RIEGLE, HORACE D. (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Solar Research Corp. v. Parker, 221 So.2d 138 (Fla.1969), affirming with modification 210 So.2d 271 (Fla. 1st DCA 1968); Scott v. Caldwell, 160 Fla. 861, 37 So.2d 85 (1948); Tabasky v. Dreyfuss, 350 So.2d 520 (Fla.3d DCA 1977); Alvarez v. Mauney, 175 So.2d 57 (Fla.2d DCA 1965).


text:
    Robert Lee DOUGLAS, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1002.
    District Court of Appeal of Florida, Third District.
    July 10, 1979.
    Robert Lee Douglas, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and BARK-DULL and HUBBART, JJ.
   PER CURIAM.

Petitioner, pursuant to Fla.R.App.P. 9.140(g), having taken this appeal from the summary denial of his motion for post conviction relief under Fla.R.Crim.P. 3.850 and this court having considered the record presented, and having further determined that it conclusively appears therefrom that petition is entitled to no relief, the denial of his motion is affirmed. Estevez v. State, 313 So.2d 692 (Fla.1975); Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970).


text:
    Jamie Dee STEWART, a/k/a Jaimie D. Stewart, a/k/a Robert L. Rennie, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1213.
    District Court of Appeal of Florida, Third District.
    July 10, 1979.
    Jamie Dee Stewart, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and BARK-DULL and HUBBART, JJ.
   PER CURIAM.

Petitioner, pursuant to Fla.R.App.P. 9.140(g), having taken this appeal from the summary denial of his motion for post conviction relief under Fla.R.Crim.P. 3.850 and this court having considered the record presented, and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed. Fernandez v. State, 358 So.2d 71 (Fla. 3d DCA 1978).


text:
    Mark A. HERMAN, Appellant, v. STATE of Florida, Appellee.
    No. 76-2563.
    District Court of Appeal of Florida, Fourth District.
    July 11, 1979.

      Alan R. Soven and Alfonso C. Sepe, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary E. Marsden, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

The State filed a seven-count information charging defendant with possession of various drugs, narcotic paraphernalia and weapons. The case proceeded to trial on an amended information. There was no objection to the amended information or any other motions filed. No motion to suppress the seized evidence consisting of drugs, paraphernalia and weapons was made. At trial there was no evidentiary objection based on an illegal search or seizure. Defendant was convicted on all counts.

Defendant raises seven points on appeal before this court. We affirm. The points regarding admission of evidence are not adequately preserved for review, and all others are without merit.

We have considered the briefs, the record, and the transcript and find that appellant has failed to demonstrate reversible error. The judgment and sentence is, therefore, affirmed.

AFFIRMED.

DOWNEY, C. J., and CROSS and BERA-NEK, JJ., concur.


author: DAUKSCH, Judge.

text:
    Willie Lee THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 77-564.
    District Court of Appeal of Florida, Fourth District.
    July 11, 1979.

      Richard L. Jorandby, Public Defender, and Tatjana Ostapoff and Jon May, Asst. Public Defenders, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Benedict P. Kuehne, Asst. Atty. Gen., West Palm Beach, for appellee.
   DAUKSCH, Judge.

This is an appeal from a conviction of possession and delivery of heroin. First we note the appellant was improperly sentenced to prison on both counts which arose from a single transaction which transaction occurred before Section 775.021(4), Florida Statutes (1976) became law. Harris v. State, 358 So.2d 858 (Fla. 4th DCA 1978).

The primary question on appeal is whether it was error for the trial judge to permit a witness to remain in the courtroom during the trial even though the witness offered substantial testimony concerning the allegations against appellant and even though appellant had invoked the rule and specifically objected to the allowing of the witness to remain in the courtroom. The witness was a detective named Holerger who was a primary investigator in the case and monitored the controlled buy from the appellant.

Although there is no case on point directly with the facts of this case, the law in Florida generally permits the trial judge, within his sound discretion, to permit a witness to remain in the courtroom even though the rule of exclusion and sequestration of witnesses has been invoked. Spencer v. State, 133 So.2d 729 (Fla.1961). While the judge does have discretion it is subject to being abused, as are all discretionary rulings, and if abused it must be decided whether sufficient harm results to require a new trial. It is our determination it was error for the trial judge to permit the witness to remain in the courtroom without first determining whether any prejudice might result to the accused by excluding the witness from the requirements of the exclusion of witnesses rule. It is our further determination that the accused was not sufficiently harmed by the error to require a reversal and a new trial.

We agree with appellant the better rule in cases such as this is for the trial judge to * conduct a hearing when objection is made to a witness being excluded from the rule of exclusion and sequestration of witnesses. An analogous situation is that pointed out in Richardson v. State, 246 So.2d 771 (Fla.1971) and the rationale there fits here.

In this case Detective Holerger gave Mr. Coleman, an informant and a witness at trial, money with which to buy heroin from appellant. Because of his involvement as a primary actor in the building of the case against appellant his deposition was taken by appellant before trial. During the deposition he testified Coleman was shown a picture of appellant during a photo line-up after the drug buy. At trial Coleman testified he was not shown a picture of appellant and no photo line-up was conducted. After Coleman testified, Holerger testified at trial no photo line-up was conducted and he said, “I’m not saying we didn’t, but I don’t recall doing it, at this time.” His other testimony at trial in response to the question, “. . . did you hold a photo line-up or did you try to confirm the identity of Mr. Thomas afterwards?” was “We did not feel it was necessary . . . ” At best Detective Holerger was equivocal on the subject but we cannot detect dishonesty

It is difficult for us, or anyone, to say that Detective Holerger was led to change his testimony in regard to the line-up because he heard Coleman say there was no photo line-up. We cannot even say that if Holerger was not permitted to hear Coleman’s trial testimony he would have stuck by his story as stated in his deposition rather than as stated at trial. But upon review of the evidence we know the jury was quite aware of the inconsistencies and could have taken them into account and even if the jury was misled by the detective’s testimony there was sufficient other evidence to sustain the verdict and the error did not so prejudice the jury as to lead them to an improper verdict. The principal witness was Coleman and he was quite unequivocal in his identification of appellant as the drug seller. While it would have been much better had the detective not been allowed in the courtroom in this case we cannot say that problem even possibly led to an improper conviction.

Apparently, it is the custom in this trial judge’s court to permit a police witness to remain in the courtroom during criminal trials. While it may be helpful, even necessary in some complex cases, to have a police witness to remain in the courtroom during trial and thus be excluded from the witness rule we deem it proper to advise the trial court to make a finding no real prejudice would result from this procedure if the accused objects after invoking the rule. A hearing to determine if the police witness’ presence is necessary and indispensable and non-prejudicial would be the way to accomplish a proper finding. As was said in Richardson, “ ‘the [trial] court’s discretion can be properly exercised only after the court has made an adequate inquiry into all of the surrounding circumstances.’ ” See also Cumbie v. State, 345 So.2d 1061 (Fla.1977); Ramirez v. State, 241 So.2d 744 (Fla. 4th DCA 1970).

Although no prejudice is shown in this case we suggest the possibility is always extant so the trial court should not as a matter of course permit a witness to remain in the courtroom during the trial when he or she is not on the stand unless it is shown it is necessary for the witness to assist counsel in the trial. No prejudice will result to the accused and a hearing to determine these matters is conducted if the rule has been invoked. To have it otherwise would be to emasculate the rule of exclusion and sequestration of witnesses and subject the trial courts to attack alleging collusion among witnesses.

The judgment of conviction is affirmed and this cause is remanded to correct the sentence. The appellant .need not be present at resentencing.

Judgment AFFIRMED, sentence REVERSED.

ANSTEAD and BERANEK, JJ., concur.

      . Mr. Gary (Defense Counsel): Well, Your Honor, we would object to that. Detective Holerger is going to testify almost as a material witness in this case and I don’t think he should be able to sit here and hear the testimony coming from all the other witnesses and then be allowed to testify just because he was associated with the investigation of the case.
      The Court: It has been practiced in this circuit for many years to permit one of the department —sheriff’s department to be with counsel at the prosecution table.
      Mr. Gary: Even if he is a material witness in the case, Your Honor?
      The Court: Yes, sir. You’ve seen it many, many, many times.
      Mr. Gary: If there was — if he was testifying only to the chain of custody or something of that nature, Your Honor, if he just made the arrest—
      The Court: Mr. Gary, the ruling has been made. Now, sit down. You know as well as I do what the practice has been in all these years.


author: ANSTEAD, Judge.

text:
    Jeffrey AYR and William DuBois, Appellants, v. Mitchell CHANCE et al., Appellees.
    No. 77-2651.
    District Court of Appeal of Florida, Fourth District.
    July 11, 1979.
    Jerome R. Schechter of Law Offices of Wallack & Schechter, Fort Lauderdale, for appellants Ayr and DuBois.
    Richard L. Wagenheim of Golding & Wagenheim, Fort Lauderdale, for appellant Ayr.
    Arnold Blostein, Fort Lauderdale, for appellant DuBois.
    Pyszka, Kessler & Adams, and Jay H. Hernberg, Fort Lauderdale, and Larry Klein, West Palm Beach, for appellees Mitchell Chance and Reserve Ins. Co.
   ANSTEAD, Judge.

This appeal is from an order of the trial court granting summary judgment to the appellee-defendants, Mitchell Chance and Reserve Insurance Company, on the basis of a release executed by the appellant-plaintiffs, Jeffrey Ayr and William DuBois, completing the settlement of their personal injury claims against other parties to the action.

Plaintiffs filed an action for damages for personal injuries sustained as a result of the alleged negligent operation of a motor vehicle driven by Mitchell Chance and owned by David Chance, who was not in the vehicle at the time of the accident. David Chance was insured by Heritage Insurance Company of America, whose policy provided for primary liability insurance coverage on the accident with limits of 10,000/20,000. Mitchell Chance, the driver, was insured by Reserve Insurance Company, whose policy provided excess coverage for the accident, not to be invoked until any primary liability insurance policy limits were exhausted. Plaintiffs filed suit against both Chances and their insurance companies claiming damages sufficient to recover under both policies.

During the course of the lawsuit, plaintiffs settled their claim against David Chance and Heritage, dismissing the cause against them, when Heritage agreed to pay each of the plaintiffs their policy limits. This settlement culminated in the execution of a release discharging not only David and Heritage, but “all other persons, firms, corporations, associations or partnerships of and from any and all claims. . . . ” It is undisputed that the plaintiffs did not intend, by executing the release, to discharge the primary tortfeasor, Mitchell Chance, and Reserve, against whom the lawsuit remained pending. The attorney representing David Chance and Heritage in the settlement negotiations also indicated, in a deposition taken by plaintiffs, that he drafted the release, which was. a printed form with blanks, without the intention of releasing Reserve. The attorney further stated that the release had originally included Mitchell Chance’s name as a specifically released party and that Mitchell’s name was deleted at the request of plaintiff’s counsel because it was contemplated that the lawsuit was to remain pending against Mitchell and Reserve. Before trial Mitchell and Reserve amended their answer to assert the defense of release. The trial court subsequently granted their motion for summary judgment, holding that the defendants had been released by the broad language contained in the written release quoted, supra.

In Hurt v. Leatherby Insurance Co., 354 So.2d 918 (Fla. 4th DCA 1978), this court held that the clear and unambiguous terms of a release, similar to the one sub judice, may not be avoided upon a claim of unilateral mistake. Quarterman v. City of Jacksonville, 347 So.2d 1036 (Fla. 1st DCA 1977) ; Weatherford v. Ryder Truck Rental and Leasing, 344 So.2d 937 (Fla. 3d DCA 1977); Dean v. Bennett M. Lifter, Inc., 336 So.2d 393 (Fla. 3d DCA 1976); Hester v. Gatlin, 332 So.2d 660 (Fla. 2d DCA 1976). However, here appellants claim the form of the release was the product of a mutual mistake.

It is universally recognized that parol evidence is admissible to alter the terms of a written agreement when it is shown that by reason of mutual mistake the true intention of the parties is not expressed therein. Spear v. MacDonald, 67 So.2d 630 (Fla.1953); 30 Am.Jur. Evidence § 1037 (1967). Justice Drew could well have been talking about this case when he stated in Spear v. MacDonald, supra:

The complaint in this case presents a classic example of a situation where equity not only has the power to but should afford relief in order to prevent a manifest injustice never contemplated by a single soul to the transaction. “Equity treats that as done which ought to have been done” is a maxim as old as the equity courts. The parties in this litigation ought to receive what each intended to receive and what was intended to be conveyed. Id. at 635

As in Spear, the plaintiffs claim that no one intended that language discharging Mitchell and Reserve be included in the release executed to conclude the settlement with David and Heritage. If parties may be relieved of unintended language included in a deed, why should this relief not also be granted when unintended language is included in a release? We believe such relief should be and is available to a party who can sustain the burden of proof on the issue of mutual mistake. The Third District Court of Appeal has reached the same result in a recent decision involving a similar factual situation. Alexander v. Kirkham, 365 So.2d 1038 (Fla. 3d DCA 1978).

The plaintiffs, through the testimony of the lawyer representing David and Heritage, have raised an issue of fact as to whether the language contained in the release was included therein by mutual mistake. This material issue of fact precludes the entry of a summary judgment.

The plaintiffs have also claimed procedural error in that the appellees did not comply with the 20 day notice requirement for the disposition of motions for summary judgment. Babb v. Lincoln Auto Finance Co., 133 So.2d 566 (Fla. 3d DCA 1961). In view of our disposition of the substantive issue involved it is not necessary to resolve this issue. However, on remand we believe the plaintiffs should be given an opportunity to file a reply to the affirmative defense of release asserted by the appellees before that issue is resolved.

Accordingly, the final summary judgment is hereby reversed with directions for further proceedings consistent with this opinion.

LETTS, J., and GREEN, R. A., Jr., Associate Judge, concur.

      . Although the First DCA, on rehearing in Quarterman, supra, held that the unambiguous terms of a release may not be varied by parol evidence where to do so could subject a party to the release to further liability for a plaintiff’s injuries, that situation is not presented in this case. The party specifically released here was a party only vicariously liable to the plaintiffs and could not have been liable to appellees for indemnity or contribution, regardless of the legal effect of the release.

      . As in Alexander, the parties have informed us that there is a separate suit pending in the trial court on the issue of reformation of the release.


text:
    In the Interest of E. C. W., a child.
    No. 78-41.
    District Court of Appeal of Florida, Fourth District.
    July 11, 1979.
    Richard L. Jorandby, Public Defender, Wilbert E. Stevenson, Jr. and Cherry Grant, Asst. Public Defender's, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, Mary E. Marsden, Kenneth G. Spillias, Asst. Attys. Gen., West Palm Beach, for appellee.
   DAUKSCH, Judge.

This is an appeal from an order denying a child’s Motion to Suppress Evidence. The appeal is taken after a plea of nolo conten-dere was entered with a specific reservation of the right to appeal the order denying suppression. Upon a review of the record we find no evidence of any search or seizure even though the child pleaded nolo conten-dere to having been in possession of a controlled substance. The order appealed is affirmed.

AFFIRMED.

ANSTEAD and BERANEK, JJ., concur.


text:
    Mary B. JOHANN, Appellant, v. Robert W. VAN ARSDALE and Rosemary Van Arsdale, Appellees.
    Nos. 78-482, 78-1500.
    District Court of Appeal of Florida, Fourth District.
    July 11, 1979.
    Robert Goldhagen, Tampa, for appellant.
    A. J. Thomas, Jr. of Saunders, Curtis, Ginestra & Gore, Professional Ass’n, Fort Lauderdale, for appellees.
   PER CURIAM.

These are consolidated appeals from a final judgment denying appellant’s action for damages on a claim of usury and a final judgment denying appellant’s complaint for foreclosure of a mortgage but awarding appellant the balance due on a note secured by the mortgage. We find no error by the trial court except in its failure to award the appellant interest on the amount due on the mortgage note up to the date of entry of the latter final judgment. Accordingly, the final judgment in case No. 78-482 is affirmed; the final judgment in case No. 78-1500 is affirmed in part and reversed in part to the extent that the trial court is hereby directed to enter judgment in favor of appellant for interest on the amount awarded up to the date of judgment.

ANSTEAD and MOORE, JJ., and GEIGER, DWIGHT L., Associate Judge, concur.


text:
    Stanley HANSEN, Appellant, v. STATE of Florida, Appellee. Rhonda Janene WESTFALL, Appellant, v. STATE of Florida, Appellee.
    Nos. 78-564, 78-568.
    District Court of Appeal of Florida, Fourth District.
    July 11, 1979.

      Fred Haddad of Sandstrom & Haddad, Fort Lauderdale, for appellant Hansen.
    Kenneth E. Delegal of Law Offices of Vaughan & Delegal, Fort Lauderdale, for appellant Westfall.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary E. Marsden, Asst. Atty. Gen., West Palm Beach, for appellee.
   ANSTEAD, Judge.

By this appeal the appellants are challenging the trial court’s denial of a motion to suppress a large quantity of marijuana seized after an aborted attempt to sell the marijuana to undercover police officers.

Two undercover police officers gained entry to a dwelling occupied by the appellants, by posing as potential purchasers of marijuana. On a prearranged signal from the undercover officers, other officers entered the residence through an unlocked front door, without knocking or announcing their authority and purpose, arrested appellants, and seized a large quantity of marijuana. The marijuana was contained in several plastic garbage bags in plain view, ready for delivery to the undercover officers. Neither of the undercover officers participated in the arrest or seizure and one was actually “arrested” along with appellants.

Section 901.19(1), Florida Statutes (1977) provides:

If a peace officer fails to gain admittance after he has announced his authority and purpose in order to make an arrest either by a warrant or when authorized to make an arrest for a felony without a warrant, he may use all necessary and reasonable force to enter any building or property where the person to be arrested is or is reasonably believed to be.

This section encompasses the Florida “knock and announce” rule. In Benefield v. State, 160 So.2d 706 (Fla.1964), four exceptions to the requirement of this rule were recognized:

[W]e conclude that even if probable cause exists for the arrest of a person, our statute is violated by an unannounced intrusion in the form of a breaking and entering any building including a private home, except (1) where the person within already knows of the officer’s authority and purpose; (2) where the officers are justified in the belief that the persons within are in imminent peril of bodily harm; (3) if the officer’s peril would have been increased had he demanded entrance and stated the purpose; or (4) where those within made aware of the presence of someone outside are then engaged in activities which justify the officers in the belief that an escape or destruction of evidence is being attempted. Time and experience will no doubt suggest other exceptions .

This court has decided several cases with factual circumstances similar to those involved herein. State v. Farrington, 338 So.2d 81 (Fla. 4th DCA 1976); State v. Roman, 309 So.2d 12 (Fla. 4th DCA 1975); State v. Yenke, 288 So.2d 531 (Fla. 4th DCA 1974); and State v. Collier, 270 So.2d 451 (Fla. 4th DCA 1972).

In Yenke, supra, the undercover officer was already in possession of the contraband seized when the other undercover officer, allegedly returning from outside with the money for the deal, disclosed his identity when he got back inside, arrested the undercover officer in possession of the contraband and the defendant. Other officers followed him into the residence without knocking and announcing to execute a search warrant, but their subsequent search of the premises was conceded by the state to be unlawful. In Farrington, supra, the undercover officer had already taken physical possession of the contraband when the other officers entered. In Collier, supra, this court held that an entry and seizure were illegal where an undercover police officer first entered a defendant’s premises to purchase drugs, determined that illegal activity was occurring, left, and then returned with other officers to execute a search warrant and in doing so reentered the premises without “knocking and announcing.” In Roman, supra, as in Collier, supra, an undercover officer left the premises after observing contraband and then returned with other officers, and “with guns drawn,” all of the officers entered the premises without “knocking and announcing,” for the express purpose of arresting the defendant and searching for contraband. In Yenke and Farrington, supra, suppression was denied on the apparent basis that the contraband involved was seized or possessed by one of the undercover police officers lawfully on the premises and not by another officer who failed to comply with the “knock and announce” rule. In Collier and Roman, supra, the critical entries and seizures were not made by officers acting in an undercover capacity, but rather by officers acting under color of their office as police officers, but who did not “knock and announce” before entering and seizing the contraband.

We believe this case is controlled by our decision in Collier, supra. The state has not shown the existence of any of the exceptions enumerated in Benefield, supra. Both undercover officers were inside when the signaled officers entered without “knocking and announcing.” Neither had possession of the contraband when the other officers entered or participated in the arrest and seizure of the contraband. In fact, one of the officers was arrested along with the appellants. The officers who entered without “knocking and announcing” made the arrests and seized the contraband. These officers had no implied invitation to enter the premises as did the arresting officer in Yenke, supra, nor did they find the contraband in the actual physical possession of one of the undercover agents as in Farring-ton, supra. Rather, they were entering the premises to effectuate an arrest for a felony and could only do so after announcing their authority and purpose. It is conceded they did not do so.

Accordingly, the judgment of the trial court is reversed with directions for further proceedings consistent with this opinion.

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


author: BERANEK, Judge.

text:
    Ronald I. BARON, Appellant, v. ESTATE of Granville CLARE and Louise Williams, Personal Representative, Appellees.
    No. 78-819.
    District Court of Appeal of Florida, Fourth District.
    July 11, 1979.
    Larry Klein, West Palm Beach, and Bette Baron, North Miami, for appellant.
    John D. Johnson, Miami, for appellees.
   BERANEK, Judge.

This is an appeal by plaintiff from a judgment denying in part plaintiff’s suit to foreclose a mortgage on real estate. The facts, as between plaintiff/appellant, and the appellees herein appear undisputed. Granville Clare was an elderly gentleman and at the time in question was being cared for by Hartman Morley and Margaret Bennett. Mr. Clare was desirous of borrowing $7,500 and the plaintiff, Ronald Baron, loaned Mr. Clare this amount of money which was secured by a mortgage on real estate owned by Clare. Clare signed the mortgage and received the loan proceeds. Mr. Clare died and the loan went into default. Plaintiff sought to foreclose the mortgage against the estate of Mr. Clare and his daughter who was serving as his personal representative.

The estate filed an answer to the mortgage foreclosure complaint which simply stated that Mr. Clare had had a stroke and that during the time in question he had been “unable to transact any business due to his mental condition.” The estate also filed a third party complaint against Mr. Morley and Mrs. Bennett. This third party complaint asserted that these individuals had fraudulently conspired to arrange the mortgage and to take the cash proceeds of the loan.

The matter proceeded to trial at which time counsel for the estate dismissed the third party action sounding in fraud against the two individuals who were alleged to have taken the proceeds of the loan. The court eventually entered final judgment with prejudice as to these third party claims. In the foreclosure action the court entered a final judgment finding the mortgage was “permeated with fraud” and refusing to enforce it. The court found the plaintiff/mortgagee should have known that a fraud was being perpetrated upon the mortgagor. The court did not make any finding as to who it was that was perpetrating the fraud upon the mortgagor.

Appellant now argues there was absolutely no evidence that he was involved in the alleged fraud in any way. It is appellant’s position and was his testimony at trial that the decedent appeared normal to him when he loaned, him the $7,500 and took back the mortgage and that he had no knowledge of the alleged fraudulent conspiracy by Morley and Bennett. In the face of this argument by appellant, appellee has failed to direct this court’s attention to the slightest bit of evidence which would support any finding that the mortgagee was a party to any fraud. In fact, the court did not find the mortgagee was a party to fraud and from the pleadings the only parties alleged to have been engaged in fraud were the third party defendants in the action willingly dismissed by the third party plaintiff.

After a thorough review of this record, we conclude that reversal is warranted. In Sheppard v. Cherry, 118 Fla. 473, 159 So. 661 (1935), it was asserted that the defendant/mortgagor had been insane and that fraud existed in procuring a mortgage from him. 159 So. at page 662, the Court stated:

Fraud is never presumed, but may be inferred from the facts and circumstances. The burden of proving it is upon him who asserts it, but a wide latitude is allowed in the manner of its proof. To set aside a mortgage on the ground of fraud or duress practiced or exercised in its procurement, such fraud or duress must be participated in to some extent by the mortgagee. Smith v. Commercial Bank, 77 Fla. 163, 81 So. 154, 4 A.L.R. 862.
According to the weight of authority, even complete insanity of one of the parties to a contract is not sufficient reason for setting it aside where it was entered into in good faith, without fraud or imposition, for a fair consideration, without notice of the infirmity, and before an adjudication of insanity, and has been executed in whole or in part, unless the parties can be restored to their original position.

In McGill v. Boulevard & Bay Land & Development Co., 100 Fla. 906, 130 So. 460 (1930), the court stated at page 461 as follows: “Where fraud is asserted as a defense or ground for relief against a mortgage, the burden of proving it is upon the party asserting the same, and the proof thereof must be clear and convincing. . . . ”

In this case there was no pleading raising the issue of fraud as a defense to the mortgage foreclosure claim by plaintiff. As such the trial court erred in entering final judgment and finding fraud as a defense. Further, the court erred because there is simply no evidence that the plaintiff was engaged in any fraudulent conduct to the detriment of the decedent. The judgment below is, therefore, reversed and remanded with directions to enter final judgment for the plaintiff granting foreclosure.

REVERSED AND REMANDED WITH DIRECTIONS.

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