text:
    Ruth GREEN, Appellant, v. Stanley Jay BARTEL, Noriega and Bartel, P.A., and Noriega, Bartel, Chopp, Schatz, Levine and Shuford, P.A., Appellees.
    No. 78-221.
    District Court of Appeal of Florida, Third District.
    Dec. 19, 1978.

      Ellis Rubin, Miami, for appellant.
    Fowler, White, Burnett, Hurley, Banick & Knight and Michael J. Cappucio, Bartel & Shuford, Miami, for appellees.
    Before BARKDULL and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

This appeal is by the plaintiff from an order dismissing her complaint with prejudice.

The action was by Ruth Green, individually and as executrix of the estate of Benjamin C. Green, deceased, against the above-styled appellees, a firm of lawyers. The complaint presented three counts. In the first count, it was alleged that the above-named law firm of Noriega, Bartel, Chopp, Schatz, Levine & Shuford, P.A., was the successor to the law firm of Noriega and Bartel, P.A.; that by retainer agreement the plaintiff, Ruth Green, had employed the defendants, Stanley Jay Bartel and Noriega and Bartel, P.A., to file an action on behalf of said plaintiff individually and as executrix of her deceased husband’s estate against Montie Lawrence Josephson and Government Employees, Insurance Company (Case No. 73-2971 in the Circuit Court of Dade County) for damages for wrongful death of Benjamin C. Green; that her said attorneys arranged a settlement of the action for $21,382.38 and obtained a settlement of plaintiff’s claim against her insurer, Colonial Penn Insurance Company, in the amount of $3,421.33; that pursuant to such settlement with the tort action defendant, her said attorneys had received payment by two drafts from Government Employees Insurance Company, each dated April 23, 1974, one being for $1,382.38 made payable to “Ruth Green, 1540 NE 191st Street, Miami, Florida and Noriega and Bartel, P.A.”; and one for $20,000 being made payable to “Ruth Green, individually and as Executrix of the Estate of Benjamin C. Green, Deceased, 1540 NE 191st Street, Miami, Florida and Noriega and Bartel, P.A.”; that said attorneys, without her knowledge or permission endorsed her name on said drafts, along with their own endorsements, and deposited the drafts in the trust account maintained by said attorneys; that the said procedure was employed with reference to the amount received in settlement from the plaintiff’s insurer, Colonial Penn Insurance Company.

It was further alleged that thereafter the said attorneys deducted their fee and costs from the amounts so received in the action settlement, leaving a balance of $15,374.48 held by them to which the plaintiff was entitled, and that said defendants-attorneys, on or about April 30, 1974, disbursed the said $15,374.48 to one “Adelita Quejado-Green, as attorney for Ruth Green”; that such payment by the attorneys of said funds due to plaintiff was never authorized by plaintiff individually or as executrix; that said attorneys, without her authority, also had endorsed her name on the check received pursuant to the settlement of $3,421.33 from her insurer, Colonial Penn Insurance Company, and delivered her proceeds therefrom to Adelita Quejado-Green; and it was alleged that the plaintiff had not received the proceeds from the settlements.

Based on those allegations, the plaintiff sought damages, charging the defendants with negligence in Count I, breach of contract in Count II, and breach of fiduciary relation in Count III.

The defendants moved to dismiss, asserting as a ground that “it affirmatively appears from the face of the complaint that the action is limitations bound in that the action was not filed within two years as required by Fla.Stat., Section 95.11(4)(a).”

Acting thereon the court entered an order dismissing the cause with prejudice, holding it affirmatively appeared on the face of the complaint that the action was not filed within two years of the alleged malpractice.

Since the claimed wrongful conduct occurred on April 30, 1974, and plaintiff’s action was filed on April 18, 1977, the trial court was correct in finding that it appeared on the face of the complaint the action was not filed within two years of the alleged malpractice. But that fact alone was not ground for dismissal, because the statute provides that the two-year limitation period shall run “from the time the cause of action is discovered or should have been discovered with the exercises of due diligence.”

Here, where the matter before the court was limited to the plaintiff’s complaint and the defendants’ motion to dismiss, there was nothing to show when, prior to the action, the plaintiff had learned of the alleged improper disposition of her funds by defendants or when the same should have been discovered by the plaintiff by the exercises of due diligence.

In the statute, by its wording, it is recognized that in this type of action a lapse of more than two years from the time of an alleged wrongful action to the time of filing suit will not bar the action, unless the existence of the cause of action became known or should have been discovered by the exercise of due diligence, more than two years prior to the filing of the action.

From the allegations of the complaint it can be assumed that in April of 1974, sometime prior to the alleged wrongful act, the plaintiff knew that settlements were being made by her attorneys, since ordinarily it would be required that she be informed thereof and give her consent thereto. But the fact that the plaintiff could be charged with knowledge that the settlements were being made and that her lawyers would receive proceeds of the settlements would not be basis upon which to conclude that the plaintiff knew that the settlement proceeds so received by her attorneys would not be held for her but would be disbursed by them to another person.

When a lawyer receives the proceeds of a settlement of a client’s claim, he holds the same in trust and becomes accountable therefor for the client [State ex rel. The Florida Bar v. Ruskin, 126 So.2d 142, 143 (Fla.1961)] for recovery of which from the lawyers the client may proceed in assumpsit or by suit for accounting. Armour & Co. v. Lambdin, 154 Fla. 86, 16 So.2d 805 (1944); In re: Brown’s Estate, 134 So.2d 290, 293 (Fla. 2d DCA 1961). For such, the two-year statute would not apply.

However, this action did not involve an effort by the plaintiff-client to obtain from her attorneys monies held by them to which she was entitled. The complaint did not allege that the settlement monies were held by the attorneys, but on the contrary it alleged they no longer held such monies by reason of having disbursed the same to another party, making the action one in malpractice for an alleged wrongful act of the attorneys.

It was error to dismiss the cause. The defendants’ motion to dismiss should have been denied. Whether the plaintiff discovered, or by due diligence should have discovered the existence of the cause of action at some time more than two years prior to the date of the filing of her complaint was a question of fact [Downing v. Fame, 228 So.2d 622, 625 (Fla. 1st DCA 1969); Edwards v. Ford, 279 So.2d 851 (Fla. 1973)] and it has been held that genuine issues relating to such question of fact are to be determined by the trier of facts, and are not to be resolved on summary judgment. Schettor v. Jordan, 294 So.2d 130 (Fla. 4th DCA 1974); Pinkerton v. West, 353 So.2d 102 (Fla. 4th DCA 1977); Rosen v. Sparber (Fla. 3d DCA 1978), Case No. 78-496, Opinion filed December 5, 1978. Cf. Steiner v. Ciba-Geigy Corporation, 364 So.2d 47 (Fla. 3d DCA 1978).

Accordingly, the judgment is reversed and the cause is remanded for further proceedings.


source: Caselaw Access Project

author: OTT, Acting Chief Judge.

license: Public Domain

text:
    STATE of Florida, Appellant, v. Carl FERGUSON, Appellee.
    No. 77-973.
    District Court of Appeal of Florida, Second District.
    Dec. 20, 1978.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellant.
    Enrique Escarray, III, St. Petersburg, for appellee.
   OTT, Acting Chief Judge.

The state here appeals the dismissal of the information charging appellee Ferguson with permitting another person to engage in a game of cards on his premises, an offense prohibited by Section 849.01, Florida Statutes (1975) (keeping gambling houses, etc.). The trial court concluded that an essential element of the offense was the habitual use of the premises for gambling, and that because such habitual use was not alleged in the information, dismissal of the information was required. We hold that habitual use of the concerned premises for gambling is not an element of the offense under the second part of Section 849.01, Florida Statutes with which appellee was charged. We therefore reverse.

Section 849.01, Florida Statutes (1975) provides:

Whoever by himself, his servant, clerk or agent, or in any other manner has, keeps, exercises or maintains a gaming table or room, or gaming implements or apparatus, or house, booth, tent, shelter or other place for the purpose of gaming or gambling or in any place of which he may directly or indirectly have charge, control or management, either exclusively or with others, procures, suffers or permits any person to play for money or other valuable thing at any game whatever, whether heretofore prohibited or not, shall be guilty of a felony of the third degree .

A careful reading of the statute discloses that it consists of two different parts each of which is a separate offense. Appel-lee was charged under the second part, which provides:

Whoever ... in any place of which he may directly or indirectly have charge, control or management, either exclusively or with others, procures, suffers or permits any person to play for money or other valuable thing at any game whatever, whether heretofore prohibited or not, shall be guilty of a felony of the third degree .

While conviction under the first part of the statute requires proof that gambling has been habitually carried on at the place in question, Grossman v. State, 59 So.2d 59 (Fla.1952); Mart v. State, 350 So.2d 1123 (Fla. 3d DCA 1977); Gaetano v. State, 273 So.2d 84 (Fla. 4th DCA 1973), such proof does not seem to be required for a conviction under the second part. See Vander-horst v. State, 151 Fla. 620, 10 So.2d 138 (1942) where dicta of the majority opinion seems to us to strongly direct such a conclusion. In addition, we are a bit hard pressed to see any reason for the two separate parts of the statute if habitualness is a necessary element of each part.

We are reluctant to conclude that the legislature intended to classify the occasional social game in one’s home, hunting camp, boat, etc. as a felony gambling offense— particularly since §§ 849.08, 849.11 and 849.-14, Florida Statutes seem to be more directly concerned with such offenses as misdemeanors.

The Florida Supreme Court has recently ruled 849.01 was not unconstitutionally vague or overbroad in the case of Bellamy v. State, 347 So.2d 419 (Fla.1977). As to the first part of 849.01 the supreme court further strengthened the requirement of habitualness in its recent decision in Schultz v. State, 361 So.2d 416 (Fla.1978).

For the reasons set forth above the trial court’s order dismissing the information against appellee is therefore vacated and the cause is remanded for further proceedings not inconsistent with this opinion.

We have been unable to discover a Florida Supreme Court case expressly on the point presented by this appeal. In view of this fact and the obvious impact of our holding, we certify this question to the Florida Supreme Court as one of great public interest.

RYDER and DANAHY, JJ., concur.


author: SCHWARTZ, ALAN R.,

text:
    Robert L. CHATMAN, Appellant, v. STATE of Florida, Appellee.
    No. 77-1656.
    District Court of Appeal of Florida, Fourth District.
    Dec. 20, 1978.

      Richard L. Jorandby, Public Defender, and Harvey R. Schneider, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and John D. Cecilian, Asst. Atty. Gen., West Palm Beach, for appellee.
   SCHWARTZ, ALAN R.,

Associate Judge.

Three months before his three year probation imposed for possession of a firearm by a convicted felon was due to expire, Chatman’s probation was revoked; he was adjudicated guilty, and sentenced to fifteen, later mitigated to five years imprisonment. Upon our determination that the record does not demonstrate a violation of the terms of the defendant’s probation, we reverse the judgment below.

Chatman was charged with and found guilty of violating two conditions of the probation, those requiring him to “work diligently at a lawful occupation” and to “carry out all instructions” of his supervisor. As to the first, the record shows only that Chatman had held two jobs during the 33 month period in question, the second of which had terminated (a year before the affidavit of violation was filed) because of difficulties with his co-workers which may have been racially related. While Chat-man’s work record may not have been bee-like, the state, in attempting to prove this belatedly-filed technical violation, did not, as was required, establish that the probationer had willfully and not “without fault” failed to maintain employment. Coulson v. State, 342 So.2d 1042, 1043 (Fla. 4th DCA 1977). Hence this basis for the revocation cannot be upheld. See also Page v. State, 363 So.2d 621 (Fla. 1st DCA 1978); Jones v. State, 360 So.2d 1158 (Fla. 1st DCA 1978); Freiberger v. State, 343 So.2d 57 (Fla. 4th DCA 1977); Bienz v. State, 343 So.2d 913 (Fla. 4th DCA 1977); § 948.03(l)(e), Fla. Stat. (1977) (permitting condition that probationer “work faithfully at suitable employment insofar as may be possible”).

The other ground is similarly unsupportable. The probationer was found guilty of violating his supervisor’s instructions to pay $10.00 per month for his cost of supervision. It is firmly settled, however, that a probationer may not be violated for breach of a requirement imposed, as was this one, by his probation officer, rather than by the court, which has the sole lawful authority to do so. Barber v. State, 344 So.2d 913 (Fla. 3rd DCA 1977); Page v. State, supra.

The order of revocation and the judgment and sentence are therefore reversed and the cause remanded with directions to discharge the defendant.

Reversed and Remanded.

LETTS and BERANEK, JJ., concur.


author: LETTS, Judge.

text:
    Nancy Lee KVITTEM, Appellant, v. Bradley M. KVITTEM, Appellee.
    No. 77-1787.
    District Court of Appeal of Florida, Fourth District.
    Dec. 20, 1978.
    Rehearing Denied Jan. 23, 1979.
    H. C. Feige of Patterson, Maloney & Shankweiler, Fort Lauderdale, for appellant.
    G. Laurence Baggett of Andrews, Voo-rheis, Lehrer & Baggett, Fort Lauderdale, for appellee.
   LETTS, Judge.

This case involves the dissolution of a long-term marriage of nearly twenty years duration and two children. The trial judge awarded no permanent alimony. We reverse and remand.

The parties were married for nineteen years and had two children, one of whom is still a minor. The husband is a successful orthodontist and earned $56,000 in 1976. The wife who worked to help the husband through school, and during the period when he was first establishing his practice, is the income beneficiary of trusts controlled by her father from which she has been receiving about $10,000 a year. She currently holds a job paying approximately $9,100 a year. She is 41, able-bodied and capable of working, which she is in fact doing.

The final judgment awarded the wife $600 per month rehabilitative alimony for two years. No permanent alimony was awarded; however, at the end of the two year period the child support is to be increased by $200 per month until such time as that child reaches her majority.

We are of the opinion that this is a factual setting under which permanent alimony should have been awarded. The wife is already working and there is no evidence in the record that she is going to be capable of securing a job that pays any more than the one which she had at the time of the final hearing. Accordingly, if she needs alimony now she will need it just as much 24 months later. McCloskey v. McCloskey, 359 So.2d 494, 497 (Fla. 4th DCA 1978). Moreover, we note in the final judgment, the judge apparently was of the opinion that the wife would need $200 more in child support, once the rehabilitative alimony ceased. To us, this would appear to indicate either that the child support is presently inadequate (which the sum awarded does not indicate) or that the judge is in effect recognizing that the wife herself will need some additional support after the rehabilitative alimony ceases.

As a consequence, we hold that the trial judge was in error and this cause is remanded in order that he may consider an award of permanent alimony although we do not seek to direct that a minimum of $600 must be awarded. We are not unaware of the wife’s uncertain income from the trusts controlled by her father which the husband suggests he (the father) may be manipulating to suit his own caprices. Nonetheless we feel that the husband’s rights in the future can be safeguarded. In the event the wife’s income increases substantially, then recourse may be had to the trial judge for a reconsideration of the alimony question. Wilson v. Wilson, 279 So.2d 893 (Fla. 4th DCA 1978).

Under all the circumstances of this case we find the remaining points on appeal to be without merit.

REVERSED AND REMANDED.

ANSTEAD and DAUKSCH, JJ., concur.


author: PER CURIAM.

text:
    A. D. HENDERSON et al., Appellants, v. Peter PETRI, Appellee.
    No. II-410.
    District Court of Appeal of Florida, First District.
    Dec. 20, 1978.
    Rehearing Denied Jan. 23, 1979.
    Dock Blanchard, Ocala, and Cynthia S. Tunnicliff, Tallahassee, for appellants.
    Charles Ruse, Jr., and George A. Steloge-annis, Ocala, for appellee.
   PER CURIAM.

This cause is before us on appeal from the final judgment of the Circuit Court, Marion County, entered on a jury verdict in a suit for replevin, trespass and conversion brought by plaintiff Petri (appellee herein) against defendants (appellants herein) who counterclaimed for breach of contract, negligence and conversion. The jury awarded Petri possession of the personal property in question and punitive damages against the defendant A. D. Henderson and defendant Rosemary Henderson. The court entered judgment on the verdict and added interest at the legal rate from the date of detention. A verdict and judgment was also entered for the defendant/counter-plaintiffs, A. D. Henderson and Rosemary Henderson, on their claim of open account and conversion against Petri, but is not an issue on this appeal.

Our examination of the record reveals that the verdict does not address nor resolve the several causes of action made by the pleading nor does the judgment entirely accord with the verdict. However, inasmuch as the parties have not raised these issues in their briefs, we will not address them here. The record, briefs, and argument of counsel have been considered, and we find that the award of punitive damages in this case is neither legally nor factually supportable and must be set aside.

Accordingly, that portion of the judgment below which awards punitive damages against the appellants is REVERSED and the balance of the judgment AFFIRMED.

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

      . Contra: Cary & Co. v. Hyer, 91 Fla. 322, 107 So. 684, 688 (1926); See Florida Statute § 78.-01.


author: RYDER, Judge.

text:
    Philip L. KIRKWOOD, Appellant, v. Marjorie KIRKWOOD, Appellee.
    No. 78-559.
    District Court of Appeal of Florida, Second District.
    Dec. 20, 1978.
    John W. Hamilton of Ware & Hamilton, St. Petersburg, for appellant.
    John M. Edman of Meros, Coit, Edman, Meros & Smith, P. A., St. Petersburg, for appellee.
   RYDER, Judge.

Appellant husband appeals a supplemental final judgment of dissolution of marriage relating to alimony and other matters. Several points were presented on appeal but only one has merit.

In the supplemental final judgment entered by the trial judge on March 1, 1978, appellant argues that the trial judge erred by directing appellant to name his minor child the irrevocable beneficiary of life insurance policies without regard to limitations as to duration.

A judgment of dissolution of marriage may include the requirement that the father maintain life insurance for the benefit of his children until such time as they reach majority, and when one reads the trial judge’s order as a whole, we believe that to have been his intent. However, in order to allay the fears of appellant as to any misinterpretation, we amend so much of the aforementioned supplemental final judgment entered below as it pertains to the maintenance of life insurance policies for the benefit of appellant’s minor child Christine to require the maintenance thereof until she reaches majority.

In all other respects, the aforementioned order is AFFIRMED.

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

      . Lithgow v. Lithgow, 340 So.2d 1283 (Fla. 3d DCA 1977); Bosem v. Bosem, 279 So.2d 863 (Fla. 1973).


text:
    Donald R. DICKERSON and Marilou Dickerson, husband and wife, William F. Hotchkin and Ellen C. Hotchkin, husband and wife, G. Theodore Mascott and Betsey H. Mascott, husband and wife, and Chemurgy, Inc., Appellants, v. The TRAVELERS INDEMNITY COMPANY, Gulf Contracting, Inc., Marshall L. Novak, Marshall L. Novak, P.A., Colony Beach, Inc., Colony Beach Associates, Ltd., Murray J. Klauber and Joseph Penner, as General Partners of and d/b/a Colony Beach Associates, Ltd., and Colony Beach and Tennis Club Association, Inc., Appellees.
    No. 78-893.
    District Court of Appeal of Florida, Second District.
    Dec. 20, 1978.
    Lawrence J. Robinson and Steven J. Chase of Drymon, Robinson & Clark, P.A., Sarasota, for appellants Dickerson.
    Thomas C. MacDonald, Jr., and Donald A. Gifford of Shackleford, Farrior, Stallings & Evans, P.A., Tampa, for appellee Penner.
   PER CURIAM.

Upon consideration of argument of counsel, the briefs and record submitted, we believe that the trial judge was technically correct in his ruling herein based upon Avila South Condominium Association, Inc. v. Kappa Corporation, 347 So.2d 599 (Fla. 1977), and consequently, we affirm his order. However, we believe justice in this matter would best be served by directing the trial court to permit those parties dropped as a result of his order to be reinstated as parties and permit appellants to amend their complaint in order to assert with more specificity their individual claims, if possible, see Breslerman v. Dorten, Inc., 362 So.2d 37 (Fla. 3d DCA 1978).

AFFIRMED with directions.

GRIMES, C. J., and SCHEB and RYDER, JJ., concur.


author: BOOTH, Judge. SMITH, Judge,

text:
    Peter J. H. PROHASKA d/b/a Walker & Co., Appellant, v. The BISON CO., INC., Appellee.
    No. II-6.
    District Court of Appeal of Florida, First District.
    Dec. 21, 1978.

      Dr. Peter J. H. Walker a/k/a Dr. Peter J. H. Prohaska, pro se.
    Mary B. Steddom of O’Neill & Steddom, Ocala, for appellee.
   BOOTH, Judge.

This cause is before us on appeal from judgment of the Circuit Court, Marion County, sitting without a jury, awarding the appellee [Bison] damages for breach of contract between appellee and appellant, Peter J. Prohaska, d/b/a Walker & Company, [Prohaska].

The complaint filed by Bison alleged that Prohaska breached a contract between the parties providing for Bison to manufacture, according to the specifications provided by Prohaska, one million sets of sliding door and window locks at a price of $.57 per unit. The complaint sought full contract price plus interest for the goods sold and delivered, some 20,000 lock sets, and for lost profits. Prohaska answered, asserting by way of affirmative defense, that the goods delivered did not meet the specifications of the contract. The trial court awarded Bison $20,438.50 plus interest, representing the full contract price for the lock sets delivered and $40,265.21 representing various costs to Bison of performing the contract.

The lock sets delivered by Bison were admittedly defective and broke easily in use. The principle issue at trial was whether the failure of the lock sets was due to a faulty design provided by Prohaska (as alleged by Bison) or by the failure of the goods to meet the contract specifications (asserted by Prohaska as an affirmative defense). Three expert witnesses testified on the central issue of the cause of the defects in, or failure of, the lock sets. Plaintiff’s witness was Eugene Robert Ha-nus, president and principle stockholder of the firm that acted as subcontractor to Bison in molding the elements used in the production of the lock sets. For defendant Prohaska, expert testimony was received from Craig S. Hartley and David Jenkins, both PhDs, registered professional engineers in Florida and employees of an independent materials testing firm in Gaines-ville. The defendant’s experts were clearly qualified by professional training and experience to express an opinion on the sufficiency of the design to withstand the stresses applied by anticipated use. These witnesses also had performed the standard tests for determining whether the lock sets were in fact manufactured of material meeting the specifications of Lexan 141, as required by the contract. Two independent laboratory test reports established that the representative samples of the lock sets were in fact sub-specifications.

Dr. Hartley testified as follows:

“Q Were you able to determine whether or not, in your opinion, this particular product was of proper design?
A Yes, sir, I was.
Q What is that opinion?
A My opinion, [is] the piece was of satisfactory design and strength to have withstood normal transverse load than (sic) an individual might have applied in attempting to open the door with the lock in place.”

Hartley further stated that his examination of the materials of which the lock sets were manufactured revealed “a line of holes of varying size all the way from oh, perhaps half a millimeter in diameter up to in some cases nearly as large as half the thickness of the piece, which would be about an eighth of an inch running along the center of the bar, irregularly distributed ...” and testified:

“Q Do you have any opinion as to what affect the results of your findings would have on the particular product itself?
A Yes, I do.
Q And what are those, sir?
A I believe that the presence of bubbles in the center of the piece would have reduced the section available to resist the loads and consequently would have degraded the performance of that piece and similar pieces and would have caused the stresses developed to be higher than those calculated by the designer.”

Defendant’s expert witness Jenkins testified concerning the test he performed, in part as follows:

“A In values listed in this publication I have before me from General Electric, which has patented this particular plastic composition, lists the typical values for the yield strength of Lexan 141 as nine thousand PSI, that is pounds per square inch. The ultimate tinsel (sic) strength is nine thousand five hundred PSI, and the percent elongation to rupture is typically one hundred and ten percent. Now, the tests which I performed on these ten specimens gave me a range of values which varied from a low of the yield strength of five thousand four hundred seventy-eight pounds per square inch to a high of six thousand six hundred and forty-seven PSI. The elongation ranged from a low of twenty-nine percent to a high of one hundred and twelve percent. The ultimate tinsel (sic) strength varied from seven thousand eight hundred and nineteen pounds per square inch to eight thousand eight hundred and seventy-eight pounds per square inch.
Q All of which are substantially less than the properties as specified by General Electric for Lexan 141?
A All except specimen No. 5, which indeed had low yield strength, low ultimate tinsel (sic) strength, but an elongation of one hundred twelve percent, which is within reasonable limits for this material.” (e. s.)

The only testimony introduced by the plaintiff to establish that the lock sets, though admittedly defective, were defective in design rather than in materials, was Mr. Hanus, who was allowed to testify over the objection of the defendant as follows:

“Q All right. It is your opinion then that the breakage of these units at that point would be due to any degradation caused in the molding, or is it due to a design defect, or what would be the reason it would break?
MR. FORE: Objection. Same grounds. THE COURT: Objection is overruled. THE WITNESS: I would say that the defect would be in the design that is causing the particular breakage that is occurring. We have tested parts, and had our supplier test specific parts, and have — are certain that the parts are molded properly, and that it is not a failure of the material, it is a failure of the design.” (e. s.)

Mr. Hanus had a degree in business administration, had taken some engineering, chemical and electrical courses and had “worked in plastics” for the last twelve years as a custom molder. He was in fact the owner and principle stockholder of the company which did the molding for the lock sets in question. In addition to the testimony objected to, and the defendant’s objection to this witness as an expert in the first place, the witness testified that he had constructed lock assemblies using the Prohaska design out of aluminum and steel. In the midst of his testimony, Hanus displayed his creation and broke it easily in his hand. Hanus admittedly had no facilities at his plant for testing the tensile strength of the materials used in the manufacture of the lock sets to determine if it met the quality of specification for Lexan 141.

Florida Rules of Civil Procedure, Rule 1.390(a) defines an expert witness as:

“A person duly and regularly engaged in the practice of his profession who holds a professional degree from a university or college and has had special professional training and experience or one possessed of special knowledge or skill about the subject which he is called to testify.”

Here, witness Hanus was at best qualified to testify as to the methods and procedures of injection molding plastic components, a matter with which he had experience. The record, however, indicates that he possessed no special knowledge or skill and had no professional training or experience of any sort in measuring the stress capabilities of materials. There was no indication that he had expertise sufficient to allow him to testify concerning the structural sufficiency of the design submitted in the instant case.

In Keystone Plastics, Inc. v. C & P Plastics, Inc., 506 F.2d 960 (5th Cir. 1975), the trial court rejected expert opinion testimony by a chemical engineer and professor at the University of Miami in a patent-infringement suit where the product involved was a plastic-handled bristle brush. The appellate court upheld the rejection of the expert testimony, stating:

“By Professor King’s own admissions on the record, he is not an expert in the art of plastic production equipment, and he had no prior experience in testing bristled propylene plastics.”

In Wright v. State, 348 So.2d 26 (Fla. 1st DCA 1977), this Court held that fundamental error was committed in the admission of expert testimony by a forensic pathologist who was allowed to state that the injuries sustained by a deceased had been sustained prior to burial. In rejecting that testimony, the court stated (348 So.2d at 31):

“We hold such evidence was beyond the competence of the medical examiner to give. The theory of allowing evidence of an expert witness to be received by the triers of fact is to understand and determine an issue of fact. He [expert] must be qualified by knowledge, skill, experience, training or education to express an opinion.”

In the instant case, the trial court clearly abused its discretion and committed error in admitting Hanus as an expert witness in areas clearly beyond the realm of any experience or expertise possessed by him. This error cannot be considered harmless since the testimony of Hanus is the only testimony in the record which supports the finding of the trial court that the lock assemblies were “manufactured according to the specifications and design and that any defect was due to a defect in either the specifications or design . . .’’It was on the basis of that finding that the trial court awarded the full contract price for the admittedly defective lock sets.

Accordingly the judgment below is reversed and the cause remanded for a new trial.

BOYER, Acting C. J., and SMITH, J., specially concurring.

SMITH, Judge,

specially concurring:

Prohaska appeals from a judgment of the Circuit Court of Marion County awarding The Bison Company $60,703.71 in damages for Prohaska’s alleged breach of a contract for his purchase from Bison of one million locks, to be fabricated by Bison to Prohas-ka’s design. Prohaska rejected an early shipment on the stated ground that the locks “are not of the specified grade of material and all the samples show substantial degradation,” and apparently repudiated any further obligation. Bison’s damages included the contract price for locks delivered and its expenditures in tooling up for full performance of the contract. The scope of our review is limited by the absence of appropriate motions, objections, and pertinent arguments addressed to the trial judge, who tried the case without a jury. Our consideration of the case is further complicated by Prohaska’s lack of legal representation in the presentation of his posttrial motion and this appeal. Yet I think that Prohaska’s pro se brief fairly raises the question of the legal effect of the evidence on which Bison prevailed below; I believe the trial court’s judgment misapprehended the legal effect of the evidence; and I therefore concur in the decision to reverse the judgment and remand the case for a new trial.

Prohaska designed a lock and contracted for its production by Bison, who subcontracted to R and R Plastics, of Toledo, Ohio, the molding of the several parts from Lex-an 141, a polycarbonate or plastic material supplied by General Electric. Bison’s role was limited to assembling the parts, riveting them together, and packaging the locks; but by contract Bison was responsible for defects in materials and workmanship.

Bison’s complaint was a simple one, alleging the contract, Bison’s delivery of locks, Prohaska’s refusal to pay, and Bison’s damages. Prohaska’s answer contained affirmative defenses which generally averred that the locks delivered were defective in material and workmanship and that Prohaska was justified in returning the locks and terminating the contract. Bison’s reply to the affirmative defenses was a simple and unnecessary denial; but at trial, without objection from Prohaska on relevancy grounds, Bison adduced evidence in its case in chief anticipating and avoiding Prohas-ka’s affirmative defenses. Through the opinion testimony of the witness Hanus, the principal of R and R Plastics, Bison undertook to prove that the locks were defective in design. Thus, while Prohaska was later to adduce substantial evidence that a miscarriage of R and R’s molding process produced internal bubbles and other degradations of the Lexan material in the locks, reducing their strength below acceptable levels, Bison sought to show that by design the locks were subject to breakage by hand pressure at the rivet hole in one corner of an important part, where the wall thickness was but forty-seven one thousandths of an inch. The witness Hanus testified, and he demonstrated in a courtroom test, that a lock so designed would fail “at that point” whether the lock was molded in Lexan 141, or aluminum, or steel.

Prohaska’s counsel objected to the opinion testimony on the ground that the witness Hanus was unqualified to express the opinions that the lock was defective in design, not in material or workmanship, and that a steel lock would not be stronger “at that point” than the Lexan 141 lock molded under the witness’ supervision. I find no error in the trial court’s admission of the opinion testimony over the stated objection. The witness Hanus testified that he had received formal education in various engineering disciplines, engaged in business for twelve years as a “custom design molder,” had served as president of a plastic engineering society in Toledo, and had substantial practical experience in molding plastic materials. By training and experience, and as the supervising principal of the molding subcontractor jointly chosen by Bison and Prohaska to do the work, Hanus was surely qualified to describe the properties of Lex-an 141, the heat molding process he employed, and the quality controls used to assure the integrity of his products. He was qualified to express the general opinion that his product had no defect of material or workmanship.

I would also sustain the trial court’s finding that Hanus was qualified to express the opinion that the lock was defectively designed “at that point” where he readily broke sample locks, both Lexan and steel, in his hands. He testified that “I do most of my own design work, dictation of design, part design for our customers, this is the role of a custom molder, that we assist our customer in design specifications of particular engineered plastic products.” The witness testified that he had substantial experience in molding parts in aluminum and steel, and there was no suggestion on voir dire examination by Prohaska’s counsel that the witness had incompetently molded the steel test lock with which he made his courtroom demonstration. Trial judges are accorded wide latitude in determining the qualifications of proposed expert or skilled witnesses, and the range of their testimony, and their decisions are not to be reversed absent a clear showing of error. See, e. g., State Road Dept. v. Outlaw, 148 So.2d 741 (Fla. 1st DCA 1963); Johnson v. State, 314 So.2d 248 (Fla. 1st DCA 1975); Vitale Fireworks Mfg. Co. v. Marini, 314 So.2d 176 (Fla. 1st DCA 1975); Home Ins. Co. v. Wiggins, 147 So.2d 157 (Fla. 1st DCA 1962); Gates & Sons, Inc. v. Brock, 199 So.2d 291 (Fla. 1st DCA 1967).

Although the witness Hanus was in my opinion duly qualified as an expert or skilled witness, the legal effect of his testimony is another matter. Prohaska adduced other expert testimony tending to show, as cause for Prohaska’s rejection of the shipment and his termination of the contract, that test samples of the Lexan locks delivered were substantially below acceptable levels of tensile strength, yield strength, and elongation-to-rupture strength. Relying on Hanus’ testimony, the trial judge found that “this article was manufactured according to the specifications and design, and that any defect was due to a defect in either the specifications or the design of the article.” In the light of Hanus’ testimony, which was the finding’s sole support, the trial court’s finding is to the effect that the sample locks’ failure to attain more than 6,647 pounds per square inch yield strength was inconsequential, because the locks were so designed that, whether molded of steel or Lexan 141, they could be broken by hand at one vulnerably thin corner. In this I conceive that the trial court misapprehended the legal effect of Hanus’ testimony; and that, in Bison’s action for the agreed purchase price and for wrongful termination of the contract by Prohaska, the design defect was irrelevant. Evidence of the design defect should have been excluded upon a proper objection, and the evidence cannot lawfully be given the effect of avoiding Prohaska’s affirmative defenses that the locks were not as warranted. Despite the absence of a relevancy objection to Hanus’ testimony concerning the design defect, which prevents our holding it improper on that ground, the legal effect of that testimony to support the judgment is a matter of law. Cormier v. Williams, 148 Fla. 201, 4 So.2d 525 (1941).

Were this an action by Prohaska for damages on account of the failure of the locks in use by customers, and for Prohaska’s consequent loss of sales, the existence of a design defect would be pertinent to the issue of why the locks failed. One who sells substandard seed that fails to produce as warranted is liable for the buyer’s loss; and, as the buyer may show that he properly planted, watered, and cultivated the seed and its growth, the seller may show the contrary. Vaughan’s Seed Store v. Stringfellow, 56 Fla. 708, 726-27, 48 So. 410, 416 (1909). But if the buyer properly rejects the seed and returns it as nonconforming, the seller could hardly be heard to contend that he should be paid anyway because the buyer was incompetent to produce a crop from good seed, or that a drought that year would have doomed the crop anyway. Similarly, the claim tried here was Bison’s claim for the purchase price of locks delivered and for damages attending Prohaska’s termination of the remaining contract. Prohaska’s prior counterclaim had been withdrawn. His defense was simply that, as the locks delivered were not as warranted, but were degraded in molding below acceptable standards, he should not have to pay for them, and he was justified in returning the locks and terminating the remaining contract.

Assuming timely and proper rejection and termination by Prohaska, the design defect did not obliterate his defense. Bison’s duty was to furnish locks molded with acceptable material and workmanship and to Prohaska’s specifications and design. The risk of a design defect was Prohaska’s risk, to be sure; but it was a risk he would encounter in the marketplace, not one that would excuse Bison’s nonperformance and entitle Bison to recover the price of the nonconforming products.

The timeliness and propriety of Prohas-ka’s rejection of the shipment and his termination of the contract are governed by Sections 672.601 et seq., Florida Statutes (1977). Factual issues concerning that defense yet remain. Those issues, and the issue made by Hanus’ testimony that there was no defect of material and workmanship, prevent entry of a judgment for Pro-haska.

I therefore concur, for the reasons stated, in the court’s decision to reverse Bison’s judgment and remand the case for a new trial.


text:
    Linda GONZALES, Appellant, v. JACKSONVILLE GENERAL HOSPITAL, INCORPORATED, a corporation, Homemakers Incorporated, a corporation, and Medical Personnel Pool of Duval County, Incorporated, a corporation, Appellees.
    No. GG-388.
    District Court of Appeal of Florida, First District.
    Dec. 22, 1978.

      Howard T. Snyder and James L. Harrison of Harrison & Snyder, Jacksonville, for appellant.
    Richard M. Hart, Jr. of Howell, Howell, Liles & Braddock, Jacksonville, John I. Todd, Jr., Jacksonville, for appellees.
   PER CURIAM.

This is an appeal from a summary final judgment by which the trial judge held plaintiff’s action to be barred by the statute of limitations, F.S.' 95.11(6), Florida Statutes 1973.

During the evening of April 2,1973, while appellant, Linda Gonzales, (plaintiff in the trial court) was a patient at Jacksonville General Hospital, Incorporated, a nurse gave her a shot in the buttocks. She immediately experienced severe pain and reported the incident to the supervisor. Her complaint alleges substantial injuries resulting from the shot. Over two years later, to wit: On November 12, 1975, the plaintiff filed a claim under the Medical Malpractice Reform Act against Jacksonville General Hospital, Incorporated. The hospital made third party claims against appellees Homemakers Incorporated, and Medical Personnel Pool of Duval County, Incorporated, alleging that one or the other supplied the nurse who administered the shot. By stipulation of all parties that claim for medical malpractice was dismissed. On July 9,1976 the plaintiff commenced action against Jacksonville General Hospital, Incorporated whereupon Homemakers, Incorporated and Medical Personnel Pool of Duval County, Incorporated were again joined as third party defendants. In due course a second amended complaint was filed whereby the plaintiff alleged, inter alia, that for a consideration Homemakers, Incorporated and Medical Personnel Pool of Duval County, Incorporated had undertaken to provide to Jacksonville General Hospital, Inc., competent, qualified and professional nurses who were either registered nurses or licensed practical nurses; and that a nurse provided to the hospital by Homemakers, Inc., and Medical Personnel Pool of Duval County, Inc., or either of them, had administered an injection into the plaintiff’s buttock in a careless and negligent manner, thereby injuring her.

Depositions in the record reveal that Homemakers, Incorporated and Medical Personnel Pool of Duval County, Incorporated were both engaged in the business of supplying nurses to those needing their services. The person or corporation to whom a nurse was supplied would pay the supplier an agreed upon sum and the supplier in turn would pay the nurse, generally at a rate less than that paid by the user.

All defendants filed motions for summary judgment, urging applicability of a two year statute of limitations. The trial judge granted those motions, reciting as depos-itive F.S. 95.11(6), Florida Statutes 1973. The plaintiff appealed only the summary judgments in favor of Homemakers, Incorporated and Medical Personnel Pool of Du-val County, Incorporated.

There is no issue but that plaintiff’s alleged injury was sustained and discovered more than two years prior to the commencement of any action against appellees. Nor is there any question but that the action was commenced within less than four years. The issue, therefore, is which statute is applicable.

F.S. 95.11(6), Florida Statutes 1973, provided for the commencement of actions within two years “ * * * to recover damages for injuries to the person arising from any medical, dental, optometric, chiro-podial, or chiropractic treatment or surgical operation, * * * Subsection (4) of F.S. 95.11 provided for the commencement within four years of “[a]ny action for relief not specifically provided for in this chapter.” Chapter 95, Florida Statutes, was substantially revised by Chapter 74-382 which became effective January 1,1975. It provided, among other things, that a two year limitations period would be applicable to:

“An action for professional malpractice, whether founded on contract or tort; provided that the period of limitations shall run from the time the cause of action is discovered or should have been discovered with the exercise of due diligence; provided, however, that the limitation of actions herein for professional malpractice shall be limited to persons in privity with the professional; * * * ”

The period applicable to actions founded on negligence was recited to be four years. That act (Chapter 74-382) further provided:

“This act shall become effective on January 1, 1975, but any action that will be barred when this act becomes effective and that would not have been barred under prior law may be commenced before January 1, 1976, and if it is not commenced by that date, the action shall be barred.”

Chapter 95, Florida Statutes, was further amended by Chapter 75-9, Laws of Florida, which became effective May 20, 1975. By that act F.S. 95.11 was amended to read as follows:

“95.11 Limitations other than for the recovery of real property. — Actions other than for recovery of real property shall be commenced as follows:
“(4) WITHIN TWO YEARS.—
“(a) An action for professional malpractice, other than medical malpractice, whether founded on contract or tort; provided that the period of limitations shall run from the time the cause of action is discovered or should have been discovered with the exercise of due diligence; provided, however, that the limitation of actions herein for professional malpractice shall be limited to persons in privity with the professional.
“(b) An action for medical malpractice shall be commenced within two years from the time the incident occurred giving rise to the action, or within two years from the time the incident is discovered, or should have been discovered with the exercise of due diligence, provided, however, that in no event shall the action be commenced later than four years from the date of the incident or occurrence out of which the cause of action accrued. An action for medical malpractice is defined as a claim in tort or in contract for damages because of the death, injury, or monetary loss to any person arising out of any medical, dental, or surgical diagnosis, treatment, or care by any provider of health care. The limitation of actions within this subsection shall be limited to the health care provider and persons in privity with the provider of health care. In those actions covered by this paragraph where it can be shown that fraud, concealment, or intentional misrepresentation of fact prevented the discovery of the injury within the four-year period, the period of limitations is extended forward two years from the time that the injury is discovered or should have been discovered with the exercise of due diligence, but in no event to exceed seven years from the date the incident giving rise to the injury occurred.”

Appellant first contends that since she has couched her second amended complaint in terms of carelessness and negligence and that since appellees did not themselves provide medical or other such treatment then F.S. 95.11(6) is not applicable and that therefore the four year statute of limitations is applicable. We reject that contention on that premise. Clearly, unless the nurse furnished by appellees (or one of them) was careless or negligent and thereby caused injury to appellant then no liability can be visited upon appellees. The act of administering the shot by ihe nurse, we hold, was a medical act. Accordingly, F.S. 95.11(6), Florida Statutes 1973, was applicable to appellees as well as the hospital. That statute would have, unless rendered ineffective by subsequent amendment, barred the action which was commenced by the plaintiff more than two years after her alleged injury.

However, F.S. 95.11(6), as it existed on April 2, 1973, the date of the alleged negligent act, ceased to exist on January 1, 1975, the effective date of Chapter 74-382. Section (4)(a) of that act provided for a two year period of limitations applicable to actions for professional malpractice, whether founded on contract or tort, with the proviso “that the limitation of actions herein for professional malpractice shall be limited to persons in privity with the professional”. Clearly there was no privity between appellant and appellees, nor between appellant and the nurse who administered the shot complained of. The privity was between appellant and the hospital, which is not a party to this appeal. Since the two year statute of limitations provided by Chapter 74-382 was limited to persons in privity with the professional it necessarily follows that that limitation was and is inapplicable. Having determined that statute to be inapplicable the only remaining statute of limitations which could have been applied is section (3)(a) of § 95.11 “an action founded on negligence” or section (3)(b) “any action not specifically provided for in these statutes”. The period provided for in those sections was four years.

It is pointed out to us, however, as already recited, that the subject statute was again amended by Chapter 75-9 which became effective May 20, 1975, prior to the filing of the subject cause of action. That amendment separated actions for medical malpractice from actions for other professional -malpractice, adding a paragraph which became paragraph (b) of subsection (4)of section 95.11, Florida Statutes 1977. That paragraph, too, contains a limitation upon its applicability, as follows:

“The limitation of actions within this subsection shall be limited to the health care provider and persons in privity with the provider of health care.”

Recognizing, as we do, that the above quoted sentence is subject to differing interpretations, we are of the view that the legislature intended by the language employed to limit application of the two year limitation period to actions wherein privity exists between the claimant and the health care provider and any other persons (or corporations) claimed by the claimant to be liable and with whom there exists a privity relationship. Such a construction is in keeping with the verbiage of predecessor statutes and with the logical conclusion that the legislature intended to impose a two year limitation upon claims between parties in privity, one with the other, but to allow additional time for discovery and assertion of claims against persons claimed to be liable but with whom the claimant has no privity relationship.

So construing the limiting sentence, the amendatory provision of Chapter 75-9 has no application here since the plaintiff specifically alleged in her second amended complaint the absence of any privity relationship between herself and appellees (or the allegedly offending nurse) and there is nothing in the record before us (nor before the learned trial judge) to establish the contrary.

We have not overlooked the arguments of counsel as to whether Chapter 74-382 and Chapter 75-9 have retroactive or prospective application. If we are bound to engage in semantics and fit our holding into time honored and recognized pigeon holes, then we hold that by virtue of the language of Section 36 of Chapter 74-382, the legislature expressly evinced an intention of retroactive application. The provision in that section that actions not barred by existing statutes but which would be barred by a provision of that act upon it becoming law could be commenced before January 1, 1976 clearly recognized immediate application of the act and was necessary in order that the act meet constitutional standards. (See Foley v. Morris, 339 So.2d 215 (Fla.1976) and Fleeman v. Case, 342 So.2d 815 (Fla.1976)). No such provision was necessary, though, as to actions which were not barred by the act on its effective date. We construe the express language of the act that it became effective on January 1,1975 to mean just that and that all pending actions be subject to the provisions of the act on that date. It is for that reason that we recited supra that F.S. 95.11(6) as it existed on April 2, 1973 “ceased to exist on January 1,1975, the effective date of Chapter 74r-382”.

Our construction is in accord with Neff v. General Development Corp., 354 So.2d 1275 (Fla. 2nd DCA 1978) wherein our sister court stated (in a footnote):

“Absent a legislative mandate to the contrary it is the enlarged limitation period which is applicable to mature causes of action not otherwise barred prior to the effective date of the longer period.”

Such was also essentially the holding of the majority in Mazda Motors of America, Inc. v. S. C. Henderson & Sons, 364 So.2d 107 (Fla. 1st DCA 1978).

As already mentioned, the learned trial judge held applicable and relied upon F.S. 95.11, Florida Statutes 1973. That section was specifically amended by section 7 of Chapter 74-382. Since there was no provision in the act preserving F.S. 95.11(6), Florida Statutes 1973, and there was no corollary in the new act, then on the effective date of the act (January 1, 1975) it (Chapter 74-382) became applicable to causes of actions then existing. The two year limitations period provided in the amenda-tory act was not, for the reasons already mentioned, applicable to the plaintiff’s cause of action which had not then been barred by any applicable statute of limitations. The only remaining limitations period which could be applied was, as appellant has contended on this appeal, the four year statute applicable to actions founded on negligence and any other actions not specifically provided for in the then existing statutes.

Whether or not Chapter 75-9, which provided for no specific effective date (only providing that it should take effect upon becoming law) had prospective or retrospective application is immaterial because, for the reasons already herein recited, (absence of privity) the two year limitation period provided for in that Chapter has no application here.

Having determined, as we do, that by virtue of the language of Chapter 74-382, which contained no corollary to F.S. 95.11(6) Florida Statutes 1973, the later statute was superseded and ceased to exist as of January 1, 1975 and that for the reasons stated Chapter 75-9 had no effect on the plaintiff’s cause of action, we conclude that plaintiff had four years within which to commence the action against ap-pellees. We need not, therefore, here address the other issues argued in the briefs of counsel for the respective parties.

REVERSED and REMANDED for further proceedings consistent herewith.

McCORD, C. J., BOYER, J., and MASON, ERNEST E., Associate Judge, concur.


text:
    SAFECO INSURANCE COMPANY OF AMERICA, a Foreign Insurance Corporation licensed to do business in Florida, Appellant, v. Irmina Dominguez ALBRIZA and Silvino Albriza, her husband, Ramon Acosta, Ramon Acosta as Administrator of the Estate of Margarita Acosta, and Ofelia Sota, Appellees.
    Nos. 76-1595, 76-1596, 76-1617 and 76-1618.
    District Court of Appeal of Florida, Fourth District.
    Dec. 27, 1978.

      Marjorie D. Gadarian of Jones, Paine & Foster, West Palm Beach, and Sam Daniels, Miami, for appellant.
    Edna L. Caruso of Montgomery, Lytal, Reiter, Denney & Searcy, West Palm Beach, for appellees Sota and Acosta.
    Rosemary Barkett of Farish & Farish, West Palm Beach, for appellees Albriza.
   PER CURIAM.

This is an appeal by a liability insurance carrier from a judgment holding it liable for judgments against its insured which were in excess of the policy limits.

The Albrizas, insured by Safeco, were involved in an automobile accident, which resulted in personal injury claims by claimants, Sotas and Acostas. Safeco then filed a declaratory judgment action to determine its liability. The Albrizas counterclaimed to recover the amount of the judgments entered against them. The Sotas and Acos-tas filed a separate action against Safeco to collect the judgments secured against the Albrizas. These actions were tried together and resulted in a judgment against Safeco for the full amounts of the judgments originally awarded the claimants against Safe-co’s insureds, the Albrizas. The Sotas and Acostas were also awarded attorneys’ fees for prosecution of the action against Safeco. The Albrizas were awarded attorney’s fees also, and their claim against Safeco was settled during the pendency of this appeal.

Initially, Safeco claims error in the trial court’s failure to give the following requested instruction:

In order for Safeco Insurance Company to be liable for the excess amount of the judgments against its insured, the Albri-zas, Safeco Insurance Company must have been given an opportunity by the injured parties to settle all claims within the limits of its insured’s policy.

Instead, the trial court gave this instruction:

In order for Safeco to be guilty of bad faith, there must have been an opportunity for settlement within the policy limits.

While we agree there is some difference between-the two instructions, we conclude that the instruction given was substantially the same as the instruction requested and we find no error in the failure of the trial court to instruct the jury in the exact language requested by Safeco. Indeed, at trial, contrary to Safeco’s argument on appeal, Safeco’s counsel substantially agreed to the trial court’s revision of the instruction and stated:

We. would request it be given as you amended it, in order for Safeco Insurance Company to be guilty of bad faith, Safeco Insurance Company must have been given an opportunity by the injured parties to settle all claims within the limits of its insured policy. You might want to delete “by injured parties” but they must have been given an opportunity to settle all claims within the limits of its insurance policy.

Safeco also asserts that an “offer” to settle, rather than an “opportunity” is required before liability could be imposed upon it for an excess judgment. However, since Safe-co requested and received an instruction on “opportunity”, rather than “offer”, we need not decide that issue. The instruction given was in substantial accord with appellant’s request, and we find no error therein.

Secondly, we find no error in the failure of the trial court to admit into evidence a letter from claimants’ original personal attorney to claimants’ own insurance carrier’s attorney, in regard to representation of the claimants and the carrier’s sub-rogation rights following an uninsured motorist recovery. Safeco asserts that the letter would establish the fact that claimants were represented by other counsel at a time when an alleged settlement offer was made. However, the identities of counsel and dates of representation were established by other evidence. In addition, Safeco claims the letter would show that claimants would not themselves recover anything if Safeco had paid its policy limits to the claimants’ uninsured motorist carrier. That fact too was established by other evidence. All of these matters were in evidence and argued to the jury.

Finally, Safeco asserts that the trial court erred in awarding attorneys’ fees to the claimants’ attorneys. The Supreme Court has held in Roberts v. Carter, 350 So.2d 78 (Fla.1977):

To eliminate any remaining confusion, we now reaffirm Wilder [Wilder v. Wright, 278 So.2d 1 (Fla.1973)] and hold that an award of attorney’s fees under Section 627.428(1) is available only to the contracting insured, the insured’s estate, specifically named policy beneficiaries, and third parties who claim policy coverage by assignment from the insured. (Id. at 79)

The claimants here are third parties without . a valid assignment and hence, under Roberts, are not entitled to attorneys’ fees.

Accordingly, the judgment for attorneys’ fees awarded to counsel for the Acostas and Sotas is reversed; and the judgment in all other respects is affirmed.

AFFIRMED IN PART AND REVERSED IN PART.

ANSTEAD and LETTS, JJ., and HASTINGS, ALCEE L., Associate Judge, concur.


author: BOOTH, Judge.

text:
    COULTER ELECTRONICS, INC., Appellant, v. DEPARTMENT OF REVENUE of the State of Florida, Appellee.
    No. JJ-235.
    District Court of Appeal of Florida, First District.
    Dec. 29, 1978.

      Brian C. Ellis and Robert B. Glenn, Jr., of Holland & Knight, Tampa, for appellant.
    E. Wilson Crump, II, Asst. Atty. Gen., for appellee.
   BOOTH, Judge.

This cause is before us on appeal from final agency action upholding the corporate income tax deficiencies assessed by the Department of Revenue (DOR) against Coulter Electronics, Inc., (Coulter) of $39,436 for the 1973 tax year and $324 for the 1974 tax year.

Two issues were presented below and are before us on appeal: (1) Whether certain transactions between Coulter and its subsidiary corporations are within the definition of “sales” and includable in the sales factor of the corporate income tax apportionment formula of Florida Statute § 214.71(3), and (2) whether changes made by the Division of Statutory Revision and Indexing in the 1971 enactment which is codified as Florida Statute § 214.71(3) were effective during the taxable years in question here.

The facts are that Coulter manufactures and sells machinery and instruments used by the medical profession. Coulter has two subsidiary corporations: (1) Coulter Diagnostics, Inc. [Diagnostics] a 100% owned subsidiary, that produces chemical agents used by customers in connection with the machinery and instruments manufactured by Coulter and (2) Blood Services [Services] a 92% owned subsidiary, that provides materials used and consumed by Diagnostics in manufacturing chemical agents. Coulter, Diagnostics and Services filed consolidated federal and Florida income tax returns for the fiscal years ending March 31, of 1973 and 1974, the years in question here.

The DOR’s claim of the right to additional tax is based on transactions between Coulter and the subsidiaries which DOR contends are “sales.” It is undisputed that Coulter makes all the sales to ultimate customers of products manufactured by Diagnostics and that Diagnostics does not make sales to unrelated third parties. Thus, while all products manufactured by Diagnostics are actually delivered to the customer by Diagnostics, the invoice is rendered by Coulter and payment is made by the ultimate customer to Coulter. Services sells most of its products to Diagnostics and the materials produced by Services are used and consumed by Diagnostics in manufacturing its products. Because Coulter, rather than Diagnostics, renders the invoices to customers for products manufactured and delivered by Diagnostics to outside customers, Coulter treats Diagnostics as having sold the product to Coulter for internal accounting purposes. Similarly, Coulter treats Services as having sold its products to Diagnostics for internal accounting purposes. However, no invoices for such “inter-company sales” are prepared on a “sale-by-sale” basis, and instead there is merely a monthly recapitulation prepared of all such “sales.” In addition, no payments are ever made by Coulter to Diagnostics, or by Diagnostics to Services, with respect to the so-called “sales.” Finally, there is no delivery of any product from Diagnostics to Coulter. The products in question are delivered by Diagnostics to the ultimate customer. The so-called “sales” made by Services to Diagnostics, and by Diagnostics to Coulter, are called “sales” by the parties only for the sake of simplicity. These inter-company sales are disregarded for the purpose of federal income tax.

DOR contends that the foregoing transactions are “sales” generating income apportioned to Florida under Florida Statute Chapter 214. Chapter 214 generally provides that the portion of a taxpayer’s federal taxable income subject to tax in Florida shall be determined by multiplying such income by a three-part apportionment formula consisting of the ratio of the taxpayer’s Florida property to its total property everywhere; the ratio of the taxpayer’s Florida payroll to its total payroll everywhere; and the ratio of the taxpayer’s Florida sales to its total sales everywhere. The sales factor is then weighted 50% and the property and payroll factors are each weighted 25%.

We hold that the inter-company transactions in this case do not constitute sales within the meaning of Florida Statute § 214.71(3) and § 220.15(1), and are not required to be included in Coulter’s sales factor for the purpose of the apportionment formula for the years in question. Under § 220.15(1) the term “sales” as used in the apportionment formula, is defined to include gross receipts. In this way the Legislature included within “sales,” for the purpose of the apportionment formula, the gross receipts derived from services or other sources not traditionally viewed as sales. This does not mean, however, that the basic indicia of a sale have been dispensed with by the statute.

There are none of the indicia of a sale present in the inter-company transactions here. There is’ no transfer or exchange of goods or services and no payment, either actual or contemplated. The inter-company transactions also lack “delivery,” the factor under Florida Statute § 214.71 which determines whether a sale of tangible personal property has occurred in Florida. Coulter has business purposes for its internal account procedures which, basically, allow Coulter to send the invoices to, and receive payments from, the actual customers for the sales and services of both parent and subsidiary corporations. Coulter has already paid the income tax due on the basis of all sales to customers in Florida. The inclusion of the inter-company transactions would, in this case, artificially inflate (and in other cases artificially deflate) the sales factor with corresponding effect on the tax paid by businesses operating in Florida and in other states in the parent/subsidiary form. The result would be to defeat the legislative intent in the enactment of the apportionment formula, which is to tax that portion of a multi-state corporate income derived from business activities in Florida.

There is a second basis for our holding in this case and that is that for the years 1973 and 1974 the provision of Florida Statute § 214.71(3), relied on by DOR as authority for its deficiency assessment applied only to financial organizations, which appellants admittedly are not. The statute in question, as enacted by Laws of 1971, Chapter 71-359, § 19, effective July 1, 1971, provided:

“(3) The sales factor [for apportionment formula] is a fraction, the numerator of which is the total sales of the taxpayer in this state during the taxable year or period and the denominator of which is the total sales of the taxpayer everywhere during the taxable year or period.
(a) Sales of tangible personal property in this state if
(1) The property is delivered or shipped to a purchaser within this state .
* ‡ :{; ífc sf:
(b) Sales of a financial organization, including, but not limited to, banking and savings institutions, investment companies, real estate investment trusts, and brokerage companies, shall be in this state if derived from:
(1) Fees, commissions
(2) Gross profits from trading in stocks
(3) Interest and dividends received within this state;
(4) Interest charged to customers .
(5) Any other gross income resulting from the operation as a financial organization with this state. In computing the amounts referred to in this subsection. any amount received by a member of an affiliated group (determined under § 1504(a) of the Internal Revenue Code. but without reference to whether any such corporation is an ‘includible corporation’ under § 1504(b) of the Internal Revenue Code) from another member of such group shall be included only to the extent such amount exceeds expenses of the recipient directly related thereto.” (emphasis added)

Thereafter, the Division of Statutory Revision and Indexing (Division) undertook to remove the above underscored sentence from § 214.71(3)(h )(5) and convert that sentence into a new and separate subsection, to wit: § 214.71(3)(c), with the effect that a provision applicable as enacted to “financial organizations” appeared to be applicable to all corporations. The change made was substantive and was beyond any power vested in the Division. Therefore, from the date of the enactment in 1971 until the publication of the 1973 official acts which codified the 1971 statutes, the session law controlled. The 1973 official statutes were published after the fiscal years here in question. For this reason, the presumed legislative validation of the Division’s change in the statute had not occurred on the critical dates here. The official and controlling version of the statutes for the years in question remained the session law as enacted by the legislature.

A similar instance of substantive changes in a statute made by the Division of Statutory Revisions was dealt with by this Court in McCulley Ford, Inc. v. Calvin, 308 So.2d 189 (Fla. 1st DCA 1975) and Lynch-Davidson Motors v. Calvin, 308 So.2d 197 (Fla. 1st DCA 1975). In the McCulley Ford case, this Court ruled, in pertinent part as follows (308 So.2d at 193, 194, 195):

“The statutory revision service redrafted chapter 70-424 arbitrarily and contrary to the law as stated by our Supreme Court in Jones v. Christina, Sup.Ct.Fla. 1966, 184 So.2d 181 and Foley v. State, Sup.Ct.Fla.1951, 50 So.2d 179. It did so by substituting the word ‘department’ whenever the Legislature had used the word ‘director’. . . . That action the statutory revision service had no authority to take.
[Sjince Florida Statutes 1973 were not published prior to jurisdiction vesting in this Court, and were not in effect at the time of the actions giving rise to this controversy, we have no occasion to here consider their effect.
Section 320.642, Florida Statutes, as printed in the 1971 Florida Statutes, therefore, is no more than prima facie evidence of the law then in effect. The enrolled act, Chap. 70-424, enacted by the Florida Legislature in 1970 stood as the official primary evidence of the law as enacted. It rebuts the prima facie effect of Section 320.642, Florida Statutes 1971.”

Accordingly, the order below is REVERSED and the cause REMANDED with directions that the deficiency assessments against appellant be vacated and withdrawn.

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

      . The three-point apportionment formula of Florida Statute § 214.71 is taken from the Illinois apportionment statute (Ill.Stat. Annotated Chapter 129, § 3-304). Under the Illinois law the sentence in question, referring to sales between members of an affiliated group, is limited to financial organizations in the same manner as the original Florida legislative enactment.

      . Florida Statutes of 1973, § 11.242(5)(c): “All laws of a general and permanent nature which are of general application throughout the state enacted by any current session of the Legislature shall be compiled . but all chapters and sections so compiled shall be indicated with a history note, clearly showing that said section or chapter was not a part of the revision at the time of its adoption and giving the proper legislative session law chapter and section number. The matter included under the authority of this subsection shall be incorporated as enacted in any current session and shall be prima facie evidence of such law in all courts of the state.”
      Florida Statutes of 1973, § 11.2421: “The accompanying revision, consolidation and compilation of the public statutes of 1971 . is adopted and enacted as the official statute law of the state under the title of ‘Florida Statutes 1973’ and shall take effect immediately upon publication . . . ”

        See, Volume I, Florida Statutes 1973 at page vii; 34 Fla.Jur., Statutes, § 3 at 136.

      . To like effect is Shuman v. State, 358 So.2d 1333 (Fla. 1978).


text:
    Ray MORRISON, Appellant, v. The STATE of Florida, Appellee.
    Nos. 77-988, 78-1534.
    District Court of Appeal of Florida, Third District.
    Jan. 2, 1979.
    Bennett H. Brummer, Public Defender and Paul Morris and Rory Stein, Asst. Public Defenders, for appellant.
    Robert L. Shevin, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before PEARSON, HENDRY and BARKDULL, JJ.
   PER CURIAM.

Affirmed. See: Wilcox v. State, 299 So.2d 48 (Fla. 3d DCA 1974); Thomas v. State, 326 So.2d 413 (Fla.1975); James v. State, 334 So.2d 83 (Fla. 3d DCA 1976); Magueira v. State, 352 So.2d 587 (Fla. 3d DCA 1977); Section 924.33, Florida Statutes (1975).


text:
    Billy McCREE, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1997.
    District Court of Appeal of Florida, Third District.
    Jan. 2, 1979.
    Bennett H. Brummer, Public Defender and Thomas G. Murray, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before PEARSON, BARKDULL and HUBBART, JJ.
   PER CURIAM.

Affirmed. See: Kennedy v. McCauley, 265 So.2d 547 (Fla.4th DCA 1972); Dam v. State, 278 So.2d 334 (Fla.3d DCA 1973); Pedro v. State, 287 So.2d 397 (Fla.3d DCA 1973); Smith v. Nesbitt, 355 So.2d 202 (Fla.3d DCA 1978).


text:
    SOUTHCOAST MANUFACTURING CORP., a Florida Corporation, Appellant, v. PURITAN FASHIONS CORP., a New York Corporation, Appellee.
    No. 78-650.
    District Court of Appeal of Florida, Third District.
    Jan. 2, 1979.
    Mahoney, Hadlow & Adams and William C. Crenshaw, Miami, for appellant.
    Clark & Livingstone and Don R. Livingstone, South Miami, for appellee.
    Before PEARSON, BARKDULL and HUBBART, JJ.
   PER CURIAM.

Affirmed. § 59.041, Florida Statutes (1977).


text:
    Willie James MACK, Appellant, v. The STATE of Florida, Appellee.
    No. 78-2317.
    District Court of Appeal of Florida, Third District.
    Jan. 2, 1979.
    Willie James Mack, in pro. per.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before HENDRY, BARKDULL and SCHWARTZ, JJ.
   PER CURIAM.

Petitioner contends that he was deprived of a right to a fair trial by virtue of the fact that shortly after the crime was committed he was subjected to an illegally suggestive lineup without benefit of counsel. This point was raised at the trial level by a motion to suppress, which was denied. The judgment of conviction and sentence was affirmed on appeal. See: Mack v. State, 323 So.2d 289 (Fla. 3d DCA 1975).

The petition filed herein shows on its face that the trial court was correct in summarily denying the petition to vacate. See: Paramore v. State, 251 So.2d 344 (Fla. 3d DCA 1971); State v. Matera, 266 So.2d 661 (Fla.1972); Yanks v. State, 273 So.2d 401 (Fla. 3d DCA 1973); Nelson v. State, 281 So.2d 49 (Fla. 3d DCA 1973).

Therefore, the order under review is affirmed and the relief sought by the petitioner is denied.


text:
    Raul CRESPO a/k/a Raul Jose Crespo, a/k/a Jose Raul Crespo, Appellant, v. The STATE of Florida, Appellee.
    No. 78-2318.
    District Court of Appeal of Florida, Third District.
    Jan. 2, 1979.
    Raul Crespo, in pro. per.
    Robert . L. Shevin, Atty. Gen., for appel-lee.
    Before PEARSON, BARKDULL 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.


text:
    Raymond David BYRNE, Appellant, v. STATE of Florida, Appellee.
    No. HH-212.
    District Court of Appeal of Florida, First District.
    Jan. 3, 1979.

      Michael J. Minerva, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appel-lee.
   PER CURIAM.

Raymond David Bryne appeals from a judgment and sentence for willfully withholding the means of support from minor children, pursuant to Section 856.04, Florida Statutes (1975). He contends that the evidence was insufficient to prove the essential elements of the offense. We agree and reverse.

For a conviction to be upheld under this statute, there must be a showing that the minor children were in need. Fekany v. State, 121 Fla. 51, 163 So. 221 (1935); Busch v. State, 97 Fla. 332, 120 So. 762 (1929); Griner v. State, 322 So.2d 647 (Fla. 1st DCA 1975). Here, there was a clear absence of evidence to establish need and thus the evidence is legally insufficient. The purpose of the criminal statute is to prevent the abandonment of children and to keep the children from being a charge on the public purse. Criminal prosecution should not be used where there is an adequate civil remedy to force a parent to support his children. Stedman v. State, 80 Fla. 547, 86 So. 428 (1920).

REVERSED.

ERVIN, Acting C. J., MELVIN, J. , and MASON, ERNEST E., Associate Judge, concur.


text:
    CITY OF PENSACOLA, Petitioner, v. BOARD OF REVIEW, Department of Commerce, State of Florida & Kenneth K. Conrey, Respondents.
    No. KK-36.
    District Court of Appeal of Florida, First District.
    Jan. 3, 1979.
    John P. Kuder, Pensacola, for petitioner.
    Alex D. Littlefield, Jr., Tallahassee, and James R. Parks, Miami, for respondents.
   PER CURIAM.

Upon a review of the record and briefs filed in this cause, we find that the petitioner has failed to demonstrate reversible error. Therefore, the petition to review the order entered by the respondent relating to unemployment compensation benefits for Kenneth K. Conrey is denied.

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


author: MILLS, Acting Chief Judge.

text:
    Rufus THAMES, M. D., Petitioner, v. George F. MELVIN, Respondent.
    No. KK-282.
    District Court of Appeal of Florida, First District.
    Jan. 3, 1979.

      Robert D. Bell of Fisher, Bell, Hahn, Winn & Rubel, Pensacola, for petitioner.
    Robert G. Kerrigan of Kerrigan, Estess & Rankin, Pensacola, Charles W. Ehrhardt, Tallahassee, for respondent.
   MILLS, Acting Chief Judge.

CASE SUMMARY

Dr. Thames seeks review of an order dismissing Mr. Melvin’s medical liability mediation claim for lack of jurisdiction because the final hearing was not held within 120 days from the date of filing of the complaint and no extension order was entered by the Judicial Referee. We grant certiora-ri.

FACTS

Mr. Melvin filed his medical malpractice complaint on 29 December 1977. Dr. Thames timely answered the complaint.

On 13 April 1978, pursuant to notice, Mr. Melvin took the depositions of Dr. Thames and two witnesses. Although properly noticed by Dr. Thames, Mr. Melvin did not appear for the taking of his deposition on that date.

On 14 April, pursuant to the Judicial Referee’s notice, a pretrial conference was held. At the conference, the Judicial Referee was advised by counsel for the parties that Mr. Melvin had taken the depositions of Dr. Thames and two witnesses on the previous day but that Mr. Melvin had failed to appear for the taking of his deposition and that additional discovery was indicated and necessary. The panel was selected and the final hearing was scheduled for 13 June.

The depositions of Mr. Melvin and his brother were scheduled and taken on 25 May.

At a hearing scheduled by Mr. Melvin on 30 May, he contended the judicial referee and panel lacked jurisdiction to proceed because the final hearing was not held within 120 days from the date his complaint was filed. The Judicial Referee agreed and dismissed the claim for lack of jurisdiction.

ISSUE

Under the facts of this case, did the Judicial Referee err in dismissing the medical liability mediation claim for lack of jurisdiction.

Dr. Thames contends that the Judicial Referee’s pretrial conference order should be considered as an extension order under Rule 20.160(e) of the Florida Rules of Medical Mediation Procedure.

Mr. Melvin contends that because a final hearing was not held within 120 days and no extension order entered, Rule 20.190(b) of the Florida Rules of Medical Mediation Procedure mandates dismissal.

DECISION

Both contentions are correct. Under the facts of this case, however, if justice is to prevail, if substance is to be given greater weight than procedure, and if we adhere to the rule that where possible a claim should be heard and determined on the merits, we must rule in favor of Dr. Thames’ contention.

Dr. Thames timely and properly scheduled the taking of Mr. Melvin’s deposition. Mr. Melvin did not appear. At the pretrial conference, this was brought to the Judicial Referee’s attention and counsel for both parties agreed that this deposition needed to be taken as well as other discovery accomplished before the final hearing. The date set for the final hearing was one agreed upon by counsel for the parties. Although 120 days expired on 28 April, Mr. Melvin did not object to the taking of his deposition and that of a witness on 25 May.

Granted that it would have been proper and preferable for a formal motion for extension to have been filed and for an order to have been entered formally extending the time, but under the circumstances here the Judicial Referee and counsel for the parties could have contemplated no less than that when the pretrial conference order was entered. We construe that order to extend the time.

JUDGMENT

Certiorari is granted. This case is remanded to the Judicial Referee for further appropriate action within the time permitted by the Florida Rules of Medical Mediation Procedure.

ERVIN and BOOTH, JJ., concur.


text:
    William R. SIMMONS, Petitioner, v. The Honorable Joseph M. CROWELL, Respondent.
    No. MM-147.
    District Court of Appeal of Florida, First District.
    Jan. 3, 1979.
    Michael J. Griffith of Levin, Warfield, Middlebrooks, Mabie, Rosenbloum & Magie, P.A., Pensacola, for petitioner.
    No appearance required of respondent.
   PER CURIAM.

The petition for writ of prohibition, having been considered on the merits, is DENIED.

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


author: MILLS, Judge.

text:
    In re The ESTATE of Coleman K. LESHER, Deceased. Coleman R. LESHER, Appellant, v. FLORIDA NATIONAL BANK OF GAINESVILLE, Appellee.
    No. JJ-373.
    District Court of Appeal of Florida, First District.
    Jan. 4, 1979.

      Michael L. Bryant of Birr, Bryant & Saier, Gainesville, for appellant.
    John F. Roscow, III, of Scruggs, Carmichael, Long, Tomlinson, Roscow, Pridgeon, Helpling & Young, Wayne P. Castello, Gainesville, for appellee.
   MILLS, Judge.

This appeal concerns the construction of a will, specifically whether a phrase referring to all personal property physically situated within Pennsylvania is ambiguous and requires the introduction of extrinsic evidence to determine the testator’s intent.

The personal representative of the Estate of Coleman K. Lesher, Florida National Bank of Gainesville (Bank), filed its petition for distribution and discharge. After setting forth the method of distribution, the petition stated that there was a dispute as to the meaning of Item II of the will. Item II reads as follows:

“I give and bequeath, absolutely and forever, all of the personal property which I may own at the time of my death physically situated within the boundaries of the State of Pennsylvania to my son, Coleman R. Lesher. In addition to my son, Coleman R. Lesher, I give and bequeath all of those of my personal effects, books, jewelry or furniture situate without the confines of the State of Pennsylvania which he may desire and select within two (2) months of the date of my death, such selection to be complete upon his delivery to my Executor of a list of all such personal property that he desires. Should my son predecease me, all such personal property enumerated in this Item shall pass into my residuary estate.”

In the residuary clause the testator devised and bequeathed all of the property in the estate, except the property mentioned in Item II, two-thirds to his son and one-third to his friend. The will further provided that if the friend predeceased the testator, her share of the residuary estate would go to the son, and if the son predeceased the testator, the son’s share of the estate would pass to his lineal descendants. The will directed the payment of all debts, taxes and expenses from the residuary clause.

Coleman R. Lesher contended that the term “personal property” in the first sentence of Item II referred to both tangible and intangible personal property; the Bank contended that the term encompassed only tangible personal property. The method of distribution set forth in the petition was in accordance with the Bank’s interpretation.

Coleman R. Lesher filed an objection to the petition for distribution and discharge and a hearing was held. In its order on the objection, the court determined that a latent ambiguity existed in the phrase “all of the personal property which I may own at the time of my death physically situated within the boundaries of the State of Pennsylvania” and provided for a hearing at which the court would receive extrinsic evidence to enable it to determine the intention of the testator. An evidentiary hearing was held and the court entered its order establishing the intention of testator at the time of execution of his will. Based on the testimony of the attorney who drafted the will and a construction of the first two sentences of Item II, the court determined that the omission of the word “tangible” before “personal property” was an error, and therefore limited the first sentence of Item II to tangible personal property.

It is well established principle that in construing a will, the intent of the testator must be determined and carried out as nearly as possible. Adams v. Vidal, 60 So.2d 545 (Fla.1952); In Re Estate of Hopkins, 349 So.2d 663 (Fla. 4th DCA 1977).

The testator’s intention should be determined from the will itself, if possible, and parol evidence may not be resorted to except in the case of ambiguity. In Re Block’s Estate, 143 Fla. 163, 196 So. 410 (Fla.1940); Adams v. Vidal, supra.

In this case the court had to determine whether the testator intended to bequeath to his son all of his tangible personal property physically situated within Pennsylvania or all the intangible and tangible personal property physically situated within Pennsylvania. After examining the will and hearing the arguments of the parties, the court determined that the words “personal property” had no fixed meaning and that the phrase “. . . may be susceptible to clarification by extrinsic evidence from competent witnesses which may shed some light upon the Testator’s intention at the time the will was executed.”

In In Re Horne’s Estate, 171 So.2d 14 (Fla.2d DCA 1965), the Second District Court of Appeal stated:

“The words ‘personal effects’ or ‘personal property’ when used in a will have no fixed meaning and there ‘is always a question of the intention of the testator so ascertained from the particular setting in which the phrase appears and the general tenor of the will.’ Although the term ‘personal property’ is sufficiently broad in its technical sense to include all forms of property other than interests in land, ‘in the majority of cases’ the courts view the intention of the testator as carrying a restricted meaning not including various species of intangible personalty.” (Citations omitted)

In construing a will, words should be given their ordinary and usual meaning. Floyd v. Smith, 59 Fla. 485, 51 So. 537 (Fla.1910); In Re Martin’s Estate, 110 So.2d 421 (Fla.2d DCA 1959). However, there is disagreement as to ordinary meaning of the words “personal property”. In In Re Chadwick’s Estate, 247 Iowa 1050, 78 N.W.2d 31 (Iowa 1958), the Supreme Court of Iowa stated that in its ordinary or popular meaning the term “personal property” included only “goods and chattels, tangible things”. Other courts have stated that in its ordinary meaning the term encompasses stocks, bonds, money and choses in action. In Re Lewis’ Estate, 407 Pa. 518, 180 A.2d 919 (Pa.1962); Sims v. Moore, 288 Ala. 630, 264 So.2d 484 (Ala.1972). An annotation on the subject concluded that while it was difficult and dangerous to make any generalizations, “. . . normally, and absent any language in the will or testator’s circumstances to indicate a contrary intention, a gift of personal property is restricted to tangible chattels, but includes all items falling within that category”. 94 A.L.R.2d 1106, 1111 (1964), supplementing 137 A.L.R. 212 (1942).

Here, the “personal property” referred to in Item II is limited to that “physically situated within the boundaries of the State of Pennsylvania”. The term “physically situated” would tend to indicate that term “personal property” referred to tangible personal property. The word “intangible” means “incapable of being touched or perceived by touch: not tangible”. Webster’s Third New International Dictionary (1967). Ordinarily, one does not necessarily think of intangible property or things as being physically situated in any particular place, whereas tangible property, by definition, must be physically located somewhere. Further, when bequests of property have been identified by location, the description of the location has been considered in determining what particular property the testator intended to bequeath or devise.

“Generally speaking, money or other evidences of ownership are held to be included under a gift of property identified by its location if such location is a place where one would normally expect such property to be kept. Thus, a testamentary gift of property identified as being in a safe-deposit box, safe, and even a desk or trunk, has been held to pass money or intangibles found therein. ... On the other hand, a testamentary gift of property identified as being in a building has usually been held not to pass money or evidences of ownership found therein, on the ground that the testator, in using a description which as a rule does not bring to one's mind the fact that money or other evidences of ownership may be present, did not intent to include such items.” 5 A.L.R.3d 466, 548.

In In Re Lunness, [1920] 51 D.L.R. 114 (1919), it was held that the property mentioned in a provision in a will, directing that “any and all of my property situated in the Province of Ontario” be sold and divided among three daughters, included real property in Ontario but did not include shares of stock found in a safe-deposit box in Toronto. The court did not believe that the testator thought of his railroad stock as being “situated” anywhere.

“The idea of a situs attributable to an incorporeal thing probably never crossed his mind, and it is as fallacious for me to suggest that he thought that the Canadian Pacific Railway Company stock was situated in Ontario, because perchance the script was in his strong box in Toronto, as to suggest that he regarded this stock as having situation in the Province of Quebec, because the head office of the railway company was there.” 51 D.L.R. at 128, 129.

In construing a will, the intention of the testator should not be determined by isolated words and phrases. The will as a whole should be considered and the testator’s general plan or scheme ascertained. Cartinhour v. Houser, 66 So.2d 686 (Fla. 1953). In the case before us, the majority of the estate consists of intangible personal property. There is also tangible personal property located in Pennsylvania. If the appellant’s construction of the will were correct, it is possible that the great bulk of the estate would pass under Item II. However, Item II provides that if the son should predecease the testator, the personal property enumerated in Item II would pass into the residuary clause, where one-third would go to Margaret MacLaren and two-thirds to the lineal descendants of the son. Thus, under the appellant’s construction of the will, the time of the son’s death could greatly effect the amount of property ultimately received by the son’s children. It is more logical to assume the testator intended that, should his son predecease him, his grandchildren would receive approximately the same share of the estate as his son would have received. The ' testator’s apparent overall plan, of leaving two-thirds of the bulk of his estate to his son or his son’s lineal descendants and one-third to Margaret MacLaren, is effectuated by construing the term “personal property” in Item II to mean tangible personal property.

Because of the numerous and varied meanings of the term “personal property”, because of the language limiting the term “personal property” to that “physically situated” in Pennsylvania, and because any determination of the intent of the testator from the terms of the will would be pure conjecture, we do not think that the court erred in finding the phrase in question ambiguous and in hearing testimony from competent disinterested parties on the question of the testator’s intent.

The evidence adduced at the hearing clearly and convincingly established that the testator intended the term “personal property” to include only tangible personal property in Pennsylvania. The notes of the testator’s attorney and scrivener made contemporaneous with his conference with the testator prior to and for the preparation of his will state that the testator desired that his son receive “jewelry or any furniture which he might desire and select within two months of the date of death, as well as all tangible personal property physically situate at the time of my death in the State of Pennsylvania.” A letter from the testator’s attorney to the personal representative bank dated two days after the execution of the will states:

“You will notice that the Will specifically provides for all tangible personal property situate within the State of Pennsylvania to go directly to his son, Coleman R. Lesher, so as to avoid expenses in collecting together this property and making ultimate disposition of it.”

A copy of this letter was sent to the testator. Further, the scrivener testified that he and the testator discussed the bequest of tangible personal property in Pennsylvania to the testator’s son because the testator did not want the corporate executor in Florida to have to go to Pennsylvania and incur the expense of taking possession of the testator’s tangible personal property in Pennsylvania.

In its order establishing the intention of the testator, the court stated:

“With the testimony of the scrivener and the other documents, the evidence is clear and convincing to the point of inescapable conviction that the Testator, Coleman K. Lesher, intended at the time of execution of his Will filed herein that the first sentence of Item II should be limited only to ‘tangible’ personal property located in the State of Pennsylvania.”

We agree. The order appealed is affirmed.

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


text:
    STATE of Louisiana v. Louis W. BOYD, Jr.
    No. 62685.
    Supreme Court of Louisiana.
    Dec. 22, 1978.
    Don Almerico, Norco, for defendant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., James D. Maxwell, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff.
   PER CURIAM.

Affirmed.

DIXON, J., dissents.


author: PER CURIAM. TATE, J.,

text:
    STATE of Louisiana v. Rickey Dean LEE.
    No. 62862.
    Supreme Court of Louisiana.
    Dec. 22, 1978.
    Paul J. Carmouche, Indigent Defender Office, Shreveport, for defendant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., Ronald R. Inderbitzin, Asst. Dist. Atty., for plaintiff.
   PER CURIAM.

Affirmed.

TATE, J.,

is of the opinion that, although the convictions should be affirmed, the case should be remanded for a hearing in the apparent excessiveness of the consecutive sentences.