text:
    John DAVIES, a/k/a John Davis, Appellant, v. STATE of Florida, Appellee.
    No. 76-1329.
    District Court of Appeal of Florida, Fourth District.
    April 7, 1977.
    Richard L. Jorandby, Public Defender, and George Barrs, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Harry M. Hipler, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Reversed upon authority of Heatherly v. State, 343 So.2d 54 (Fla. 4th DCA 1977); Holmes v. State, 343 So.2d 632 (Fla.4th DCA 1976); Watts v. State, 328 So.2d 223 (Fla. 2d DCA 1976); Magnin v. State, 334 So.2d 638 (Fla. 2d DCA 1976).

REVERSED.

MAGER, C. J., and DOWNEY and AN-STEAD, JJ., concur.


source: Caselaw Access Project

author: ANSTEAD, Judge:

license: Public Domain

text:
    STATE of Florida, Appellant, v. Johnny Mack TURNER, a/k/a Johnny Lee Turner, Appellee.
    No. 76-1494.
    District Court of Appeal of Florida, Fourth District.
    April 7, 1977.
    Philip S. Shailer, State Atty., and Linda A. Naze, Asst. State Atty., Fort Lauder-dale, for appellant.
    Robert T. Adams, Jr., Fort Lauderdale, for appellee.
   ANSTEAD, Judge:

The State is appealing an order granting a motion to suppress evidence, a gun, alleged to be in plain view at the time Johnny Mack Turner was stopped for an alleged traffic violation. We reverse.

On October 8, 1975, two police officers, assigned to a “tactical impact unit,” were on patrol in an unmarked car in Ft. Lauder-dale. At approximately 2:40 a. m. the officers spotted a vehicle with defective taillights. The officers recognized the vehicle and the driver, Turner, whom they had arrested some six weeks previously for having no driver’s license. The officers also knew Turner to have been a convicted felon.

At that time the officers placed a portable flashing blue light on top of their vehicle, turned on a siren, and proceeded to stop the Turner vehicle. Turner got out of his car, leaving the door open, and walked back toward the officers, who met him halfway. During the exchange that ensued, one of the officers noticed a gun on the front seat of Turner’s car. The officer claimed the gun was in plain view, since the car door was open and the interior lights were on.

At the hearing the officers conceded that their arrest and knowledge of Turner were the primary factors which caused them to stop him. However, they testified that the taillights of the Turner vehicle were out and they stopped him to “see whether he had a driver’s license and cite him for the taillights.” Turner did not testify. The trial court granted the motion to suppress, apparently on the grounds that the officers could not validly stop Turner simply because of their prior knowledge of him.

In State v. Holmes, 256 So.2d 32 (Fla.2d DCA 1971), the Second District was faced with a very similar situation. Judge Mann set out the standards to be applied:

If we suppose an unsuspected person arrested for a traffic violation of such gravity that any citizen would be stopped for it, can we deny that contraband in plain view of the officer may lawfully be seized? Suppose, on the other hand, an equally grave violation by a person suspected of more serious crime. Is he immune from lawful arrest? Certainly he should not be. Is he then immune from lawful seizure of the evidence of the serious crime if it is then in plain view? We think not, provided that the gravity of the traffic offense is such that any citizen would routinely be stopped for it if seen committing the offense by a traffic officer on routine patrol. The circumstance that the arrest is made by one not normally engaged in the enforcement of the traffic laws is a factor which may tend to discredit the claim that any citizen would be apprehended under the circumstances, but it is wrong to say that because the person arrested is suspected of serious crime a traffic offense will not subject him to detention, and evidence to seizure, merely because the arresting officer’s motive is to secure evidence of the more serious offense. (Id. at 34.)

As noted above, Turner did not testify, so we do not have his version of the incident. Under the officers’ version, the Turner taillights were out. We believe the gravity of that offense is such “that any citizen would routinely be stopped for it if seen committing the offense by a traffic officer on routine patrol.” Since the stopping was proper, the observation and seizure of the gun in plain view was proper.

REVERSED AND REMANDED.

DAUKSCH and LETTS, JJ., concur.


author: PER CURIAM.

text:
    William B. MONDRY, Appellant, v. Alice Anne MONDRY, Appellee.
    No. 76-2329.
    District Court of Appeal of Florida, Fourth District.
    April 7, 1977.

      William B. Mondry, in pro. per.
    Alice Ann Veil (Mondry), in pro. per.
   PER CURIAM.

This is an appeal from the trial court’s denial of the former husband’s motion for dissolution of attachment. Essentially all of the grounds set out in said motion were grounds previously raised in prior motions before the trial court on the same subject matter. A great number of the previous orders of the trial court were also before this court numerous times as recited in the trial court’s order. Upon review of the record and the previous decisions rendered herein we are unable to say that the trial court erred in its order of October 5, 1976.

AFFIRMED.

ANSTEAD, DAUKSCH and LETTS, JJ., concur.


author: DAUKSCH, Judge.

text:
    Harvey J. SCHMOTZER et al., Appellants, v. Arthur J. POISSON, etc., and City of Riviera Beach, Florida, a Municipal Corporation, Appellees.
    No. 77-55.
    District Court of Appeal of Florida, Fourth District.
    April 7, 1977.
    Paty, Downey, Lewis, Eaton, Fick & Martin, Palm Beach, for appellants.
    Allan V. Everard, Riviera Beach, for City of Riviera Beach.
   DAUKSCH, Judge.

The Appellants, by interlocutory appeal under Fla.App. Rule 4.2, seek review of an Order denying intervention below. The Order says “the motion to intervene of various persons filed October 27, 1976 is hereby denied.” Only the Order is before us so we shall assume jurisdiction under our authority under Fla.App. Rule 4.2 as an interlocutory appeal since the briefs agree the original action was one sounding in equity.

But after assuming jurisdiction we have no choice but to affirm since no other record or essential pleadings are before us. Pierson v. Sharp, 283 So.2d 880 (Fla. 4th DCA 1973). Johnson v. Town of Eatonville, 203 So.2d 664 (Fla. 4th DCA 1967). Also see Fla.App. Rule 4.2 and Fla.App. Rule 4.5.

AFFIRMED.

MAGER, C. J., and ALDERMAN, J., concur.


author: SMITH, Judge.

text:
    MEADOWS DEVELOPMENT COMPANY, Appellant, v. George IHLE, Appellee.
    No. CC-215.
    District Court of Appeal of Florida, First District.
    April 13, 1977.

      Robert T. Hyde, Jr., of Rogers, Towers, Bailey, Jones & Gay, Jacksonville, and George N. Jahn, of Blackwell, Walker, Gray, Powers, Flick & Hoehl, Miami, for appellant.
    Al S. Millar, Jr., of Millar & Lally, Jacksonville, for appellee.
   SMITH, Judge.

At issue here is whether a money judgment of the Duval County circuit court entered August 3, 1970, and recorded three days later in Duval’s Official Records, thereby became a lien on the judgment debtor’s Duval County land. There was no re-recordation of a certified copy. The trial court honored the lien of the judgment, now held by appellee Ihle, and foreclosed it against Duval County land owned by the debtor at the time of the judgment and since acquired by appellant Meadows. Meadows’ appeal invokes the rule of Dade Federal Sav. & Loan Ass’n v. Miami Title & Abstr. Div., 217 So.2d 873 (Fla.3d DCA 1969).

Dade Federal held that a Florida circuit court judgment already written, signed, filed and recorded in the Official Records of the county where rendered does not become a lien on the judgment debtor’s property at the forum until the minute book entry of judgment is copied and that copy is certified and re-recorded in the same Official Records. The liening statute then in effect did not require — indeed, it scarcely permitted — such an interpretation. As a result of amendment in 1967, Section 55.10, Florida Statutes (1967) and (1969) provided:

“Judgments and decrees become a lien on real estate in the county where rendered when the judgment or decree is recorded in the proper record of such county and in other counties when a certified copy thereof is recorded in the proper record of other counties.”

In 1972 an amendment to Section 55.10 and other legislation apparently reinforced Dade Federal’s ruling that a certified copy of a judgment must be recorded in Official Records to create a lien. Because we are concerned here with the effect of a 1970 recordation, we may disregard the 1972 legislation except for such light as it sheds on prior law. Another panel of this court has, in an appropriate case, determined the effect of the 1972 amendment to Section 55.-10. Smith v. Venus Condominium Ass’n, Inc., 343 So.2d 1284 (Fla.1st DCA, 1976, reh. den. this date). Whatever may have been the effect of amending Section 55.10 in 1972, in 1969 a “valiant effort” was required in the construction of Section 55.10 to read “recorded” as “re-recorded” and to read “judgment or decree” as “certified copy” of a judgment or decree. For what purpose did the Dade Federal court labor so to wrench unnatural meaning from Section 55.10? Not merely to fatten county records and coffers, though the decision had that tendency, but rather to treat Florida and federal judgments alike, to create a parity of inconvenience in the liening of judgments, so to prevent uncontrolled extension of federal judgment liens, by operation of federal law, throughout multi-county federal judicial districts.

Dade Federal rests on three arguments:

First, that the 1967 amendment of Section 55.10, deleting the prior requirement of recording “a certified transcript of said judgment or decree” for lien purposes, contained no “intimation of changing any of the substantive law of Florida.” Dade Federal, 217 So.2d at 878.

Second, that Section 55.10, Florida Statutes (1969), necessarily contemplated recor-dation of a certified copy of the judgment for liening purposes because the “original” judgment, found in the minute book prescribed by Section 28.21(1), Florida Statutes (1969), “could not be literally taken and itself recorded in another separate recordation book.” Dade Federal, 217 So.2d at 878 (emphasis added).

And third, “quite importantly,” that to permit liening of a state judgment by recor-dation of the “original” in Official Records would disadvantage federal judgments, which must be presented for county recor-dation in the form of certified copies. Disparity in treatment of federal judgments would forfeit the benefit of the federal act regulating the liens of judgments, 28 U.S.C. § 1962, with the effect that federal judgments become liens when rendered and without recordation, effective throughout the multi-county district where rendered. Rhea v. Smith, 274 U.S. 434, 47 S.Ct. 698, 71 L.Ed. 1139 (1927); B. A. Lott, Inc. v. Padgett, 153 Fla. 304, 14 So.2d 667 (1943); Dade Federal, 217 So.2d at 879.

With the utmost respect for Dade Federáis purpose to alleviate the chaos it saw impending Florida land titles, we believe Dade Federal misconstrued the now departed Section 55.10, Florida Statutes (1969); that by that statute a Florida judgment became a lien on the debtor’s land in the forum county upon recordation of the original judgment in Official Records; and that the fastidious ritual of re-recording a certified copy in the same Official Records was then and is now, except as the 1972 legislation may require it, unnecessary to preserve a condition of lien parity between state and federal judgments.

I.

We cannot agree with Dade Federal’s view that the 1967 Legislature acted inadvertently in deleting from the liening statute, Section 55.10, its prior requirement for recordation of “a certified transcript of said judgment or decree” in the judgment lien record. Dade Federal held that the amending legislation of 1967

“. . . was simply an omnibus bill to harmonize the procedural statutes, Chapters 45 through 90 F.S., with the newly-approved Rules of Civil Procedure, and by its own terms ‘to delete obsolete or unnecessary language.’ Nowhere in the entire Act is there any intimation of changing any of the substantive law of Florida.” 217 So.2d at 878.

Before its amendment by Chapter 67—254, Laws of Florida, Section 55.10 had provided since 1939:

“No judgment or decree hereafter rendered by the circuit courts or any other courts of this state shall be or become a lien on real estate until a certified transcript of said judgment or decree is recorded in the judgment lien record as provided by § 28.21, subsection (11) of these statutes. Upon being so recorded said judgment or decree shall become a lien on the real estate of the defendant only in the county where the same is recorded in the manner provided by said § 28.21.” Section 55.10, Florida Statutes (1965) (emphasis added).

The 1967 amendment was too far different from the former statute, in our opinion, and too deliberately phrased to permit the view that its changes were only formal or semantic, not substantial. Previously, under a recording system that featured several different books of record for different purposes, the liening statute required recording of “a certified transcript” of a judgment in “the judgment lien record.” New Section 55.10 simply provided for recording “the judgment or decree” as a lien in “the proper record of such county.” Plainly, we think, the 1967 Legislature sought to bring Section 55.10 into better relationship with Section 28.221, which since 1953 had authorized clerks to record either in the several record books specified in Sections 28.21 and .22 or in a unified system of Official Records. The statutes, taken together, permitted liening by recording a certified copy of any judgment in the judgment lien record of a county still maintaining that separate record; by recording in a county’s Official Records a certified copy of a judgment rendered in another county; and by recording “the judgment” in the Official Records of the county where it was rendered. Thus, while a certified copy of a judgment rendered in another county was required for local recordation, no such preference was expressed or .implied in the case of judgments rendered locally. There the statutes rendered the Official Records indifferent to the form— “original” or “certified copy” — in which “the judgment” was recorded for liening.

In 1972 legislation ostensibly restored the pre-1967 requirement for recordation of certified copies of all judgments as liens. Section 55.10 was amended to require recordation of “a certified copy ... in the official records or judgment lien record of the county . . . .” Chapter 71-56, Laws of Florida, effective January 1, 1972. And Section 28.29 was amended effective April 25, 1972, to provide:

“The certified copy of a judgment required under s. 55.10 to become a lien on real property, shall be recorded only when presented for recording with the statutory service charge.” Chapter 72— 320, Laws of Florida.

Another panel of this court, in Smith v. Venus Condominium Ass’n, Inc., supra, held that the 1972 amendment to Section 55.10 need not be given its literal and purported effect. Whether that be true or not, clearly the 1972 amendment had no substantive purpose if not to reverse the substantive change made in Section 55.10 by the 1967 amendment. We disagree with Dade Federal holding that the 1967 amendment may be treated as insubstantial editorial work.

II.

Next addressing Dade Federal’s argument that Section 55.10, Florida Statutes (1969), cannot be given effect as written, we disagree with Dade Federal’s premise that under contemporaneous statutes a circuit court’s “original” judgment was by definition something in a minute book which was physically unremovable to “another separate recordation book” except by certified copy of the minute entry. 217 So.2d at 878. We can conceive of no reason, either dogmatic or practical, why for lien recordation purposes an original adjudicatory writing, duly signed by a judge and filed by the clerk, would not serve as the “judgment” quite as well as a certified copy of a minute entry.

Although Section 28.21(1), Florida Statutes (1969) directed clerks to keep minute books, clerks since 1953 were authorized by Section 28.221, supra n. 4, to keep Official Records in preference to “any or all” the separate records prescribed by Section 28.-21. Having adopted the Official Records method of recordation at the times pertinent here and in Dade Federal, the clerks in both Dade and Duval were free, insofar as Section 28.21 was concerned, to record written judgments as liens directly in Official Records and to discontinue any residual practice of setting them out at length in a minute book, indexing them in a judgment and execution docket, and recording certified copies of minute book entries in a judgment lien record. While Section 28.29, Florida Statutes (1969), directed recordation of final judgments in the court minutes, it also provided that judgments not recorded “shall be equally valid.” Thus statutes in effect in 1970 pertaining to minute books did not foreclose liening by direct recordation of written judgments in Official Records.

Effective January 1, 1972, when the Official Records system became mandatory, all statutory references in Chapter 28 to minute books, including both Sections 28.21(1) and 28.29(1), were repealed. Chapter 71 — 4, Laws of Florida. If the obsolescence of minute books for recordation of judgments was even then not quite clear, it was made so later that year by Chapter 72-320, Laws of Florida, which restored minute books for the keeping of minutes but explicitly not for the recordation of judgments. Section 28.212, Florida Statutes (1973).

Ironically, the 1972 amendments apparently confirmed Dade Federal’s requirement for recording certified copies but removed an essential ground of Dade Federal’s reasoning: although Sections 55.-10 and 28.29 were then amended to require that a “certified copy” of a judgment be recorded for lien purposes, even in the county where rendered, Section 28.211 then made clear that minute books were not for the recordation of judgments. What then, under the 1972 legislation, is the recorded “certified copy” first to be copied from? Not from the minute entry, celebrated as essential by Dade Federal, for there is none. Rather, from the original as recorded in Official Records. Thus, without the benefit of Dade Federal’s redeeming theory, the 1972 Legislature apparently amended Section 55.10 to require duplicative recording in the forum county’s Official Records. Stranger still, the 1972 amendment obviously contemplates that the needed copy be made from the original at a source — the Official Records — where Dade Federal said the original could not be found. ■

In the absence of statutes compelling that result, and with hindsight not enjoyed by the court in Dade Federal, we hold that in 1970 an original judgment signed by a judge and filed with the clerk was directly recordable for lien purposes in the forum county’s Official Records in lieu of certification and recording of a copy of a minute book entry. We are not concerned with whether such recordation was then effective as rendition in the total absence of a minute book entry. Judgments may have existence independent of recordation in minute books. See Dupree v. Elleman, 139 Fla. 809, 191 So. 65, 68 (1939); Ellis v. State, 100 Fla. 27, 129 So. 106, 69 A.L.R. 783 (1930); Becker v. King, 307 So.2d 855 (Fla.4th DCA 1975), cert. dism., 317 So.2d 76 (Fla.1975). Minute book records are themselves ineffective evidence of judgments when they omit details characteristically found in adjudicatory writings signed by a judge and filed with the clerk. Continental Ins. Co. v. Employers’ Fire Ins. Co., 292 So.2d 413 (Fla.2d DCA 1974).

The judgment in the case before us was reduced to writing, signed by a circuit judge and filed by the clerk. It was so recorded in Duval County’s Official Records. We believe that recordation satisfied the letter and spirit of Section 55.10, Florida Statutes (1969), and are not persuaded by Dade Federal’s rationale that a judgment in that form was unrecordable in Official Records because the assumed need for minute book recordation ipso facto prevented recordation of the original elsewhere.

III.

The Dade Federal reasoning thus far discussed was plainly subservient to an overriding purpose of avoiding the chaos which would come to Florida titles should it be found that, by 1967 amendments to Section 55.10, the Florida legislature permitted Florida circuit court judgments to become liens on Florida real estate more readily than the judgments of United States district courts rendered in Florida. If that were the case, the lien of federal court judgments rendered in Florida would extend upon rendition throughout the federal district, regardless of county lines and regardless of county recordation of any kind. Thus Dade Federal defended its reading of Section 55.10 by stating any other construction

“. . . would result in judgments of the U.S. District Courts being treated differently from State Court judgments, contrary to the holdings of the U.S. Supreme Court in Rhea v. Smith (1927), 274 U.S. 434, 47 S.Ct. 698, 71 L.Ed. 1139 and of the Florida Supreme Court in B. A. Lott, Inc. v. Padgett, 1943, 153 Fla. 304, 14 So.2d 667.” 217 So.2d at 879.

Massingill v. Downs, 48 U.S. (7 How.) 760, 12 L.Ed. 903 (1849), held that the lien of a federal judgment attaches when rendered and extends throughout the court’s territorial jurisdiction. In 1888 Congress acted to ameliorate the effect of that decision on land titles and, as amended in 28 U.S.C. § 1962, the statute provides that federal district court judgments rendered within a state shall be a lien on property in that state

“. . . in the same manner, to the same extent and under the same conditions as a judgment of a court of general jurisdiction in such State . . . .”

The statute further provides in effect that recordation requirements for liening of state court judgments shall, if applicable to federal judgments in the same way, govern the liening of federal judgments.

The question is whether our construction and application of Section 55.10, Florida Statutes (1969) results in the apprehended disparity in liening between state and federal judgments. The court in Dade Federal conceived our construction of Section 55.10 would disadvantage federal judgments. We do not.

The guiding decision is Rhea v. Smith, 274 U.S. 434, 47 S.Ct. 698, 71 L.Ed. 1139 (1927). A Missouri statute provided that the judgments of Missouri trial courts should be liens on land in the forum county upon rendition of the judgment, whereas judgments of federal trial courts in Missouri should become liens on land in a county upon filing of a transcript of the judgment with the circuit court clerk in that county. The Missouri statute clearly gave lien effect to federal judgments in the same way it gave lien effect to judgments of Missouri courts in distant counties, that is, by recor-dation of a transcript of judgment in the county where the land lay. The Missouri Supreme Court regarded that as parity and stated, “The alleged discrimination in favor of a state court against a federal court, sitting in the same county, is only apparent.” Rhea v. Smith, 308 Mo. 422, 434, 272 S.W. 964, 967 (1925):

“The provision that the lien of a judgment shall begin from its rendition means on the same day of its rendition. It would take but a short time to transcribe a judgment of the federal court and file it with the clerk of the state court on the day of its rendition, and thus put it on par with the judgment of the state court rendered on the same day.”

The Missouri court therefore held that a federal court judgment rendered in a district including the county where Smith’s land lay did not become a lien because a transcript of it was not filed in the county.

The United States Supreme Court reversed, holding that the Missouri liening statute disadvantaged federal judgments, that the federal judgment consequently became a lien throughout the district when rendered, irrespective of Missouri statutes, and that Smith’s land was subject to the federal judgment lien. The Court held:

“It is the inequality which permits a lien instantly to attach to the rendition of the judgment without more in the state court, which does not so attach in the federal court in that same county, that prevents compliance with the requirement of [the federal act regulating the lien of judgments].” 274 U.S. at 444, 47 S.Ct. at 701, 71 L.Ed. at 1145.

The Court declared that “mere approximate conformity will not do, especially where complete conformity is entirely possible,” and that in Missouri the federal handicap made a “real difference”:

“the risk to be run . . . is in the danger that the agent or attorney of a judgment creditor in the federal court may forget to have the judgment transcribed and filed in the clerk’s office of the circuit court of the county. Such forgetfulness by those charged with the duty is a factor to be considered, and makes a real difference between the provision for the lien of the federal court judgment and the instant attaching of a lien upon the entry of the state court judgment without further action.” 274 U.S. at 443, 47 S.Ct. at 701, 71 L.Ed. at 1145.

Dade Federa] suggests and appellant here argues that Section 55.10 as we construe it disadvantages federal judgments in the same way the Missouri statute did in Rhea, because federal court judgments rendered in a county must be presented for recordation in that county’s Official Records in the form of certified copies, whereas circuit court judgments rendered in that county become a lien, by our holding, upon recordation of the original judgment in Official Records. We consider that argument demonstrates no disparity and, indeed, no difference in the treatment of state and federal judgments rendered in a county. As stated above, Section 55.10, Florida Statutes (1969), expressed no evidentiary preference for either “original” or “certified copies” of judgments when it made judgments rendered in a county a lien on county land when recorded in Official Records. Our Florida statute was indifferent to whether the federal judgment presented for liening was the authenticated original, borrowed temporarily for recordation, or a certified copy. Either was recordable as a lien, as was any state court judgment rendered in the county, regardless of the form in which it was presented. Section 55.10 uniformly provided for liening of judgments rendered in other counties, whether by state or federal courts, by recordation of a certified copy.

Even assuming that state court judgments rendered in a county will be more readily available than federal judgments for recordation there in authenticated “original” form, that is not a .disparity of law but one of circumstance, which state law cannot remedy. The form in which a state or federal judgment rendered in the county is presented there “to be registered, recorded, docketed or indexed” is inconsequential under 28 U.S.C. § 1962. The federal statute is concerned with sameness in the processing of judgments for lien purposes, and cannot be considered so trifling as to insist also on sameness in the appearance of the evidence of judgments presented for processing. So, if the federal clerk will not lend the “original” for recordation, but insists on providing a certified copy, that circumstance must be disregarded. It cannot justify, for parity’s sake, a grotesque requirement to doubly record state court judgments. The disparity condemned in Rhea was of an entirely different order; whereas the Missouri statute made state court judgments liens in the county when “rendered” or, as the United States Supreme Court paraphrased it, when “entered”, yet the statute gave no such effect to the federal judgment when “rendered” or “entered,” but only when filed in the county record.

Our finding of parity in state and federal judgment liening under Section 55.10, Florida Statutes (1969), finds support in United States v. Hodes, 355 F.2d 746 (2d Cir. 1966), cert. dism., 386 U.S. 901, 87 S.Ct. 784, 17 L.Ed.2d 779, and Knapp v. McFarland, 462 F.2d 935 (2d Cir. 1972). See also annot., 18 A.L.R. Fed. 568 (1974). New York law provides that judgments of New York supreme, county or family courts, upon being signed by the clerk and filed, should be incorporated in a “judgment-roll” and docketed in the county where entered by making entries of essential facts in the “proper docket book.” CPLR Rules 5016 and 5017, § 5018(a), (c). The judgment becomes a lien on the debtor’s property in the county “from the time of the docketing of the judgment with the clerk of the county in which the property is located . . . .” CPLR § 5203(a). CPLR § 5018(b) similarly provided for “Docketing of judgment of court of United States”:

“A transcript of the judgment of a court of the United States rendered or filed within the state may be filed in the office of the clerk of any county and upon such filing the clerk shall docket the judgment in the same manner and with the same effect as a judgment entered in the supreme court within the county.”

The Court of Appeals for the Second Circuit held in Knapp:

“In this respect § 5018(b) gives to a federal judgment docketed in the county clerk’s office an effect similar to that given by CPLR § 5018(a) to the judgment of a state court rendered in another county which is so docketed. .
“Without more the docketing of a judgment, state or federal, in the office of the county clerk creates a lien upon the debt- or’s realty in that county. CPLR § 5203.” 462 F.2d at 938.

In both Hodes and Knapp the New York statute was held to execute faithfully the purpose of 28 U.S.C. § 1962, despite the obvious fact that judgments rendered in a particular county by a federal district court were evidenced for docketing in the county clerk’s office by presentation of transcripts, whereas original judgments rendered by state trial courts in the same county were at hand for the docketing and liening process. Section 55.10, Florida Statutes (1969), was for stronger reasons in full conformity with 28 U.S.C. § 1962, because it offered federal and state judgments entered in the county identical access to recordation in the county’s Official Records, and the same immediate liening effect.

We recognize this decision is in direct conflict with Dade Federal and is likely to have an unsettling effect, if not on Florida land titles, at least on those who examine them. If we have correctly surmised what the legislature intended by the 1967 amendment to Section 55.10, Florida Statutes, but have incorrectly held the statute thus construed satisfies 28 U.S.C. § 1962, our decision may realize Dade Federáis worst fears. See 1 R. Boyer, Florida Real Estate Transactions 300.9 (1976).

“Caution should be exercised with respect to federal judgments rendered between June 26, 1967 and January 1, 1972. Such judgments may have become liens throughout the federal court district where rendered without recordation in the county where the property is located."

The risk we accept by this decision is confined in potential effect to federal judgments rendered between 1967 and 1972. Although this court’s contemporaneous decision in Smith v. Venus Condominium Ass’n, Inc., affects present day recording practices under Sections 28.29 and 55.10, Florida Statutes (1975), our decision in this case does not. Therefore, even if our Supreme Court should determine that the companion decision should not have discounted the 1972 amendments to Sections 28.29 and 55.10, this decision hopefully will survive to indicate legislative restoration of the statutes on which it is based. Considering that the alternative is to remain forever impaled on the senseless point of a double recording process, we believe that the risk taken is acceptable.

To facilitate Supreme Court review of our decision, we certify that it passes on a question of great public interest.

AFFIRMED.

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

      . Chapters 71-56, effective January 1, 1972, and 72-320, Laws of Florida, respectively Section 55.10, Florida Statutes (1971) and Section 28.29, Florida Statutes (1973), quoted text infra.

      . 1 Fla.Real Prop.Prac. (2d ed.) 341: “[T]he court made a valiant effort to undo the unfortunate effect of the 1967 legislative action.” Chapter 67-254, Laws of Florida, had deleted the prior requirement of Section 55.10 that a certified transcript of the judgment be recorded in the Judgment Lien Record or in the Official Records of counties employing the unified record authorized by Section 28.221, Florida Statutes.

      . See the historical note in 1 Fla.Real Prop. Prac. (2d ed.) 339: “Before 1939, a Florida circuit court judgment became a lien upon the judgment debtor’s real estate located in the county where the judgment was rendered, without necessity of any recording. A circuit court judgment never became a lien as to property outside the county where rendered unless and until a certified copy was recorded in the outside county. A judgment rendered in any Florida court after June 5, 1939 became a lien only from the time a certified transcript of it was recorded in the judgment lien record (or official records) of the county where the real estate lies. No distinction was made with respect to real estate in the county of rendition and real estate in other counties. The change was made by Fla.Laws 1939, ch. 19270, which became effective June 5, 1939. The pertinent portions of that law were reflected by F.S. 55.10 before its amendment by Fla.Laws 1967, ch. 67-254.”

      . Section 28.221(1): “In lieu of the separate books now required to be kept . ., said clerks of the circuit courts may record any or all of these instruments in one general series of books to be called ‘Official Records.’ ” Subsection (4) provided until 1971 that “certified transcripts” of judgments recorded in Official Records shall be liens as if recorded in the judgment lien record. The preservation of subsection (4) in 1967 is not inconsistent with our view of that year’s legislation, for the recordation of certified copies continued to be a necessity in the case of distant judgments and an alternative in the case of local judgments.

      . Dade Federal, 217 So.2d at 878: “We are not here concerned . with the original pronouncement of the judgment or the entry thereof. That is taken care of by F.S. § 28.21, F.S.A., which requires the Circuit Clerk to keep, among other official records and dockets, ‘(1) minute books [and] (4) a judgment and execution docket . . .

      . Section 28.29(1): “No written order, judgment or decree, except an order of dismissal, a final judgment or a final decree, in any action at law or sued in equity . . , shall be recorded in the minutes of the court or the chancery order book, unless the court . shall order its recordation. Every order of dismissal, final judgment and final decree shall be recorded.” Section 28.29(2): “Orders, judgments and decrees not recorded pursuant to the provisions of this section shall be equally valid as if recorded.”

      . In an opinion adopting Dade Federal’s reasoning on February 15, 1972, the Attorney General stated that recordation of a judgment in the clerk’s minutes is necessary to give “verity”, to the judgment and that recordation in the Official Records is only to satisfy the liening statute. Section 55.10. Accounting for the ' recent repeal of Section 28.21(1) and amendment of Section 28.29, the only statutory references to minute books, the Attorney General differentiated between “county” records and “court” records, which necessarily must in-elude minutes, and advised a clerk to keep minutes in the progress docket required by new Section 28.211: “Pending the enactment of the clarifying legislation [anticipated in the 1972 Legislature], it is recommended that the circuit court clerks continue to keep the minutes of the court — whether recorded in the ‘progress docket’ or in a separate minute book — as required by the circuit judge.” Op.Atty.Gen. 072-47. As noted above, the clarifying legislation restored minute books, but'not for recor-dation of judgments.

      . “The clerk may keep minutes of court proceedings. The action of the court shall be noted in the minutes, but orders and judgments shall not be recorded in the minutes.”

      . In opinions supporting Dade Federal’s interpretation of Section 55.10, the Attorney General warned of the consequences in federal law of treating state and federal court judgments differently. Op.Atty.Gen. 073-90, 072-47.

      . “Every judgment rendered by a district court within a State shall be a lien on the property located in such State in the same manner, to the same extent and under the same conditions as a judgment of a court of general jurisdiction in such State, and shall cease to be a lien in the same manner and time. Whenever the law of any State requires a judgment of a State court to be registered, recorded, docketed or indexed, or any other act to be done, in a particular manner, or in a certain office or county or parish before such lien attaches, such requirements shall apply only if the law of such State authorizes the judgment of a court of the United States to be registered, recorded, docketed, indexed or otherwise conformed to rules and requirements relating to judgments of the courts of the State.”

      . CPLR Rule 5016(a): “What constitutes entry. A judgment is entered when, after it has been signed by the clerk, it is filed by him.”
      CPLR Rule 5017(a): “Preparation and filing [of Judgment-roll]. A judgement-roll shall be prepared by the attorney for the party at whose instance the judgment is entered or by the clerk.”
      CPLR § 5018. “Docketing .of judgment (a) Docketing by clerk: docketing elsewhere by transcript. Immediately after filing the judgment-roll the clerk shall docket a money judgment . . . . Upon the filing of a transcript of the docket of a judgment of a court other than supreme, county or a family court, the clerk of the county in which the judgment was entered shall docket the judgment. Upon the filing of a transcript of the docket of a judgment which has been docketed in the office of the clerk of the county in which it was entered, the clerk of any other county in the state shall docket the judgment. . . .”


author: GRIMES, Judge.

text:
    Charles E. THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 76-986.
    District Court of Appeal of Florida, Second District.
    April 13, 1977.
    As Corrected On Rehearing April 29, 1977.
    Jack O. Johnson, Public Defender, Bar-tow, and Wayne Chalu, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William T. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

Appellant complains that the court failed to follow the dictates of the Child Molester Act with respect to his sentencing.

The appellant was charged with sexual battery. He pleaded not guilty. Subsequently, pursuant to negotiations,' he entered a plea of nolo contendere to the charge of committing a lewd and lascivious act involving a child under the age of fourteen. He was adjudicated guilty, and a presentence investigation was ordered. Thereafter, despite the fact that appellant’s crime was one of the offenses specifically enumerated under Section 801.041, Florida Statutes (1975), he was sentenced without reference to the provisions of Chapter 801.

The state suggests that certain psychiatric examinations conducted upon appellant prior to his change of plea constituted substantial compliance with Chapter 801. In the course of pretrial proceedings the court appointed two psychiatrists to examine the appellant for mental competency to stand trial and at the time of the offense. Even though the appellant had not then been convicted, the psychiatrists were also directed to consider whether appellant was a mentally disordered sex offender under Chapter 917. At the hearing, both psychiatrists agreed that appellant was competent to stand trial and competent at the time of the offense. One of the psychiatrists concluded that appellant did not fall within the definition of a mentally disordered sex offender and the other had no opinion on the subject.

Both Chapter 917 and Chapter 801 offer the possibility of rehabilitative treatment to certain persons after conviction. Yet, the standards by which the defendant is to be evaluated under the two chapters appear somewhat different. Chapter 917 requires a finding that the defendant is a mentally disordered sex offender before he can be committed for special treatment. Section 917.19, Florida Statutes (1975). A mentally disordered sex offender is defined as a person who is not insane but has a mental disorder making him dangerous to others because of a propensity to commit sex offenses. Section 917.13, Florida Statutes (1975). Chapter 801 does not specifically require a finding that the defendant pose a threat to others. The fact that a person has been convicted of one of the enumerated crimes under Section 801.041, Florida Statutes (1975) might, but would not necessarily, demonstrate a propensity to commit further sex offenses. Moreover, unlike the provisions of the chapter dealing with mentally disordered sex offenders, Chapter 801 requires that the reports which the examining psychiatrists must submit include the defendant’s social history, criminal record, if any, the circumstances of the offense and the likelihood of repeating the offense. Section 801.061, Florida Statutes (1975).

Strict compliance with the provisions of Chapter 801 has been consistently deemed mandatory. Johnson v. State, 292 So.2d 426 (Fla.2d DCA 1974); Wilson v. State, 282 So.2d 667 (Fla.2d DCA 1973); Wolf v. State, 282 So.2d 668 (Fla.2d DCA 1973); Suddreth v. State, 325 So.2d 458 (Fla.lst DCA 1976). Certainly the same psychiatrists could evaluate the same defendant at the same time for purposes of both chapters, but this was not done here. Before sentencing the appellant for this crime, the court was obligated to have in its hands the reports of the examinations required by Chapter 801.

Accordingly, the sentence is hereby vacated, and the case is remanded for proceedings in compliance with the provisions of Chapter 801 before resentencing. The judgment and minutes of the court should be corrected to reflect appellant’s plea of nolo contendere rather than a plea of guilty.

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


text:
    Nathaniel WALKER, Appellant, v. STATE of Florida, Appellee.
    No. 75-983.
    District Court of Appeal of Florida, Fourth District.
    April 15, 1977.
    Richard L. Jorandby, Public Defender, and Henry Prettyman, Sp. Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony C. Musto, Asst. Atty. Gen., West Palm Beach, for appellee.
   DAUKSCH, Judge.

Defendant-Appellant was convicted on a jury verdict of the misdemeanor of resisting arrest without violence after having been tried for the higher offense of resisting arrest with violence. The Defendant was sentenced to serve the maximum amount of time in jail, one year, and was placed on probation for a period of three years after he had served three months of the said jail term. An illegal sentence. Holmes v. State, 343 So.2d 632, Fla.4th DCA, Opinion filed February 11, 1977; State v. Jones, 327 So.2d 18 (Fla.1976); Moore v. State, 324 So.2d 690 (Fla.1st DCA 1976); Watts v. State, 328 So.2d 223 (Fla.2d DCA 1976); Magnin v. State, 334 So.2d 638 (Fla.2d DCA 1976).

The sentence is modified to reduce the period of probation from three years to nine months.

The Judgment and Sentence are AFFIRMED AS MODIFIED.

ALDERMAN and LETTS, JJ., concur.


text:
    Ronnie G. BRINSON, Appellant, v. STATE of Florida, Appellee.
    No. 75-1976.
    District Court of Appeal of Florida, Fourth District.
    April 15, 1977.

      Richard L. Jorandby, Public Defender, and James R. Merola, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard P. Zaretsky, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

The trial court correctly denied appellant’s motions for judgment of acquittal and for new trial.

However, the final judgment adjudicating appellant guilty of the crime of receiving stolen property is technically defective in that it fails to recite knowledge on the appellant’s part of the stolen character of the property. Windhurst v. State, 320 So.2d 870 (Fla. 4th DCA 1975); Spurlock v. State, 281 So.2d 586 (Fla. 4th DCA 1973).

Accordingly, the case is reversed and remanded to the trial court for entry of a proper judgment.

REVERSED and REMANDED with directions.

DOWNEY, ALDERMAN and DAUKSCH, JJ., concur.


text:
    Linda G. McINNES, Appellant, v. STATE of Florida, Appellee.
    No. 76-258.
    District Court of Appeal of Florida, Fourth District.
    April 15, 1977.
    Richard L. Jorandby, Public Defender, and Frank B. Kessler, Asst. Public Defender, and Tatjana Ostapoff, Legal Intern, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, for appellee.
   DAUKSCH, Judge.

Two grounds for appeal are alleged, both of which we find are without merit. One, that the Defendant did not voluntarily and intelligently tender her plea of guilty. Two, that the court sentenced her to prison because she was unable to make restitution to her victims, thus an imprisonment for debt violative of Article I, Section II, Florida Constitution.

A review of the colloquy between the trial judge and the Defendant at the time of the entry of the guilty plea indicates the judge complied with the requirements of Williams v. State, 316 So.2d 267 (Fla.1975).

At the time of sentencing the Assistant State Attorney when asked by the court if he had anything to say “in aggravation of the circumstances” replied, “I don’t think the interest of justice would be served by putting her on probation. I feel like the local merchants are out a great deal of money, which she has utterly no way to make restitution thereto, and I suggest the court impose the maximum sentence.” Since the Defendant pleaded guilty to three five-year felonies, obtaining property by worthless check, the maximum sentence would have been 15 years imprisonment and $15,000. The judge sentenced her to 10 years in the state penitentiary and $1.00.

There is no evidence in the record to support the contention of the Defendant that the judge followed the advice of the prosecutor in his sentence, and we note the Defendant was not given the maximum sentence, and we are aware from the record that other charges of worthless check violations were not prosecuted. It is noted that several of the checks in question were for groceries, and the sentence may appear severe to this apparently previously uncon-victed mother of four small children. However, this court does not have before it the complete record that was before the trial court; and it is well established that this court has no authority to review a legally imposed sentence. It is not suggested that such a review would be necessarily advisable, since the law does allow for review of sentences through pardon, commutation, and parole.

AFFIRMED.

ANSTEAD, J., concurs.

ALDERMAN, J., concurs in result only.


author: DOWNEY, Judge.

text:
    Chester J. WRIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 76-390.
    District Court of Appeal of Florida, Fourth District.
    April 15, 1977.
    Richard L. Jorandby, Public Defender, and James R. Bean III, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Marsha G. Madorsky, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

Appellant pleaded guilty to breaking and entering with intent to commit grand larceny, a second degree felony, the maximum punishment for which is 15 years in prison. See Section 775.082(3)(c), Florida Statutes (1975). Appellant was sentenced to 7V2 years in prison to be followed by 9V2 years on probation.

It is contended on appeal that this sentence is illegal and we agree. We held in Heatherly v. State, Fla.App., 343 So.2d 54, Opinion filed February 25, 1977, citing several cases from other District Courts of Appeal, that the combined period of a split sentence of jail time and probation can not, since the amendment of Section 948.04, Florida Statutes (1974), exceed the maximum time provided in the statute for incarceration.

We, therefore, modify the sentence in this case by reducing the probationary period provided by the trial court to 7V2 years and affirm the judgment and sentence as modified.

AFFIRMED as modified.

ANSTEAD and DAUKSCH, JJ., concur.


author: LETTS, Judge.

text:
    RIVIERA BEACH PARTNERSHIP, LTD., Appellant, v. S. I. GOLDMAN MECHANICAL CONTRACTOR and Inland Construction Company of Florida, Inc., a Florida Corporation, Appellees.
    No. 76-437.
    District Court of Appeal of Florida, Fourth District.
    April 15, 1977.
    Don R. Livingstone, of Clark & Livingstone, P.A., South Miami, for appellant.
    Lawrence J. Phalin, of Mateer, Harbert, Bechtel & Phalin, P.A., Orlando, for appel-lees.
   LETTS, Judge.

Appellant takes a timely appeal from a final summary judgment granting foreclosure of a valid mechanic’s lien against appellant’s property.

This cause is reversed.

The facts are that a subcontractor filed a mechanic’s lien foreclosure suit on February 4th, 1974, naming both the general contractor and the owner of the real estate as defendants. The subcontractor was in privity only with the general contractor, and not with the owner. Thereafter, some four months later, on May 28th, 1974, before service was perfected and long before the entry of the summary judgment, the owner transferred the lien to bond, pursuant to Florida Statutes § 713.24, the material portion which reads:

713.24 Transfer of liens to security

(1) Any lien claimed under part I of this chapter may be transferred, by any person having an interest in the real property upon which the lien is imposed or the contract under which the lien is claimed, from such real property to other security by either: .
(b) Filing in the clerk’s office a bond executed as surety by a surety insurer licensed to do business in this state, either to be in an amount equal to the amount demanded in such claim of lien plus interest thereon at 6 percent per year for 3 years plus $100 to apply on any court costs which may be taxed in any proceeding to enforce said lien. Such deposit or bond shall be conditioned to pay any judgment or decree which may be rendered for the satisfaction of the lien for which such claim of lien was recorded and costs not to exceed $100. Upon making such deposit or filing such bond the clerk shall make and record a certificate showing the transfer of the lien from the real property to the security and mail a copy thereof by registered or certified mail to the lienor named in the claim of lien so transferred at the address stated therein. Upon filing the certificate of transfer the real property shall thereupon be released from the lien claimed and such lien shall be transferred to said security.

Notwithstanding this transfer, the court entered a summary final judgment in favor of the mechanic’s lienor and the appellee now urges that any right to so transfer is extinguished unless it is perfected prior to any suit being filed. We disagree, can see no rationale for the distinction, and the Statute cited does not so limit the ability to transfer. As was succinctly stated by Judge McNulty in Deltona Corporation v. Indian Palms, Inc., 323 So.2d 282 (Fla. 2nd DCA 1975):

Now obviously the purpose of § 713.24, supra, is to permit any owner, whether or not he is in privity with a lienor, to remove the cloud of a lien from his property against which the lien is impressed; and he may do so either before or after suit.

(Emphasis supplied).

Further, although the point at issue here is not the same, we would refer to an opinion by this very court in McGuire v. Consolidated Electrical Supply, 329 So.2d 411 (Fla. 4th DCA 1976), where the facts revealed that

Suit was commenced against the McGuires to foreclose the mechanic’s lien and in due course the lien was transferred to a bond posted by the owner of the property. (Emphasis supplied).

In the light of the foregoing, we do not consider it necessary to consider the other point on appeal.

Reversed for further proceedings consistent with this opinion.

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


author: ALDERMAN, Judge.

text:
    AETNA LIFE INSURANCE COMPANY, Appellant, v. Walter I. SMITH, Appellee.
    No. 76-450.
    District Court of Appeal of Florida, Fourth District.
    April 15, 1977.

      Edna L. Caruso, of Montgomery, Lytal, Reiter, Denney & Searcy, West Palm Beach, for appellant.
    Barbara K. Evans, of Smalbein, Eubank, Johnson, Rosier & Bussey, Cocoa, for appel-lee.
   ALDERMAN, Judge.

This is an appeal by Aetna, the defendant below, from a money judgment entered against it in favor of Walter I. Smith, based upon a disability insurance policy. The appeal involves the award of punitive damages and attorney’s fee, the admissibility of certain testimony, and the propriety of a jury instruction that allowed the jury to award future damages. We reverse on all issues.

Smith sued Aetna alleging that he had become totally disabled and was entitled to receive benefits under a group disability insurance policy. Aetna had initially paid benefits under the policy but then discontinued payments. In his complaint Smith demanded judgment for both past and future benefits under the policy, punitive damages, and attorney’s fee. The jury returned a verdict in Smith’s favor for $61,-190.00 compensatory damages, plus $25,-000.00 punitive damages. The trial court reduced the compensatory damage award to $22,872.00 to offset Veteran’s Administration and Social Security payments that Smith had received. The trial court also gave Smith $8,538.00 in attorney’s fee.

First, before there can be an award of punitive damages for a breach of an insurance contract there must be a willful and independent tort separate and distinct from the breach of contract. MacDonald v. Penn Mutual Life Insurance Co., 276 So.2d 232 (Fla. 2d DCA 1973); Allstate Insurance Co. v. Gibbs, 340 So.2d 1202 (Fla. 4th DCA 1976). See also Butchikas v. Travelers Indemnity Co., 343 So.2d 816 (Supreme Court of Florida Case No. 47,733, opinion filed June 30, 1976). Smith has neither alleged nor proved facts sufficient to support a finding that Aetna was guilty of such a willful and independent tort. The trial court erred in denying Aetna’s motion for directed verdict in regard to punitive damages.

Additionally, in reference to the award of attorney’s fee, the law is clear. Section 627.428(1), Florida Statutes (1975), provides for an attorney’s fee in certain insurance cases, but Section 627.401(2) says that the above provision shall not apply as to:

Policies or contracts not issued for delivery in this state nor delivered in this state, except as provided in § 627.410(6) (approval of forms for delivery in jurisdictions where local approval not provided for).

The policy in this case falls clearly within the exclusion because the policy was not issued for delivery in Florida nor delivered in this state. Smith is a resident of North Carolina, where the policy was issued and delivered. Attorney’s fees are not recoverable under these circumstances. Pan-American Life Insurance Co. v. Diaz, 322 So.2d 549 (Fla.1975); Pan-American Life Insurance Co. v. Fuentes, 258 So.2d 8 (Fla. 4th DCA 1971); Confederation Life Association v. Alvarez, 276 So.2d 95 (Fla. 4th DCA 1973); Home Insurance Co. v. Denning, 177 So.2d 348 (Fla. 3d DCA 1965).

The next question is whether the trial court erred in allowing, over Aetna’s objection, certain testimony by an assistant manager of Travelers Insurance Company. In answer to a hypothetical question, the witness was allowed to express his opinion that Smith was a proper person to receive disability benefits under the policy. Also, in response to the question whether Travelers under the circumstances of this case would have continued benefits to Smith, he was allowed to testify that “We would continue benefits.” The admission of this testimony was prejudicial error. The witness was not qualified to express an opinion concerning Smith’s disability, and what Travelers Insurance Company would have done regarding the payment of benefits to Smith is irrelevant. The trial court should have granted Aetna’s motion for a new trial.

Lastly, Aetna argues that the trial court erred in instructing the jury that it could return damages for the life of the policy, thus allowing the jury to award future damages. Since the record does not reflect that Aetna objected when the instruction was given, we normally would not accept this issue on appeal. Fla.R.Civ.P. 1.470(b). However, for the benefit of the trial court and counsel in the event of a new trial we will consider the question.

The instruction is erroneous because future damages are not recoverable under the circumstances of this case. A substantial number of jurisdictions have adopted the. view that the right of action based upon an insurer’s failure to pay periodic indemnity or benefits is limited to the installments which have accrued at the institution of the action. 44 Am.Jur.2d, Insurance, § 1598. This rule has been followed in Florida. Mutual Life Insurance Co. v. Knight, 130 Fla. 733, 178 So. 898 (1937). A recognized exception may be applicable where there is a repudiation of the entire contract by the insurer, but an insurer’s refusal to continue total disability benefits, upon the ground that the insured was not in fact totally disabled, does not amount to a repudiation of the entire contract. This is true even if the insurer is mistaken as to the insured’s disability. Mobley v. New York Life Insurance Co., 295 U.S. 632, 55 S.Ct. 876, 79 L.Ed. 1621 (1935); 99 A.L.R. 1166.

There is a genuine factual issue whether Smith is totally disabled. Since the evidence is insufficient to support a finding that Aetna repudiated the policy, Smith could not recover future damages.

REVERSED AND REMANDED.

MAGER, C. J., and DAUKSCH, J., concur.


text:
    Eugene S. BOWNES, Appellant, v. STATE of Florida, Appellee.
    No. 76-462.
    District Court of Appeal of Florida, Fourth District.
    April 15, 1977.
    Richard L. Jorandby, Public Defender and James R. Bean, III, Asst. Public Defender, for appellant.

      Robert L. Shevin, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., for appellee.
   DAUKSCH, Judge.

This is an appeal of an illegal sentence and we remand for resentencing.

This Appellant was convicted of a first degree misdemeanor, attempted burglary, and a second degree misdemeanor, petit larceny. On the first degree misdemeanor he was sentenced to one year in the county jail and three years probation after he had served six months of that imprisonment. Since the maximum jail term he could have received was one year the sentence was excessive by two years and six months. Heatherly v. State, 343 So.2d 54 (Fla. 4th DCA, Opinion filed February 25, 1977); Magnin v. State, 334 So.2d 638 (Fla. 2d DCA 1976); Watts v. State, 328 So.2d 223 (Fla. 2d DCA 1976); Moore v. State, 324 So.2d 690 (Fla. 1st DCA 1976).

As to the second degree misdemean- or the maximum imprisonment is 60 days. The court sentenced him to two years probation consecutive to the first sentence, after he had served a concurrent 60 days in the county jail with credit for time served awaiting trial and sentencing. The probation of two years after the 60 days incarceration is illegally excessive.

As one of the conditions of the Appellant’s probation he was to “draw no unemployment compensation while on probation.” This is “an unnecessary restriction upon the valid exercise of a valuable right” and therefore should be removed. Coulson v. State, 342 So.2d 1042 (Fla. 4th DCA, Opinion filed February 18, 1977).

REVERSED and REMANDED for resen-tencing.

MAGER, C. J., and ALDERMAN, J., concur.


text:
    Kris A. LA QUIRE, Appellant, v. STATE of Florida, Appellee.
    No. 76-463.

    District Court of Appeal of Florida, Fourth District.
    April 15, 1977.
    Richard L. Jorandby, Public Defender, and James R. Bean, III, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Harry M. Hipler, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

The trial judge placed appellant on probation for a period of seven years, which is in excess of the five year maximum sentence permissible for the offense of uttering a forgery. This court in Holmes v. State, 343 So.2d 632 (Fla. 4th DCA 1977) and Heatherly v. State, 343 So.2d 54 (Fla. 4th DCA 1977), has held such sentences to be excessive. See also Watts v. State, 328 So.2d 223 (Fla. 2d DCA 1976), Magnin v. State, 334 So.2d 638 (Fla. 2d DCA 1976). The sentence is hereby modified and reduced to five years probation.

AFFIRMED AS MODIFIED.

DOWNEY, ANSTEAD, and DAUKSCH, JJ., concur.


author: DAUKSCH, Judge. MAGER, Chief Judge, ALDERMAN, Judge,

text:
    Gerald PAOLI et al., Appellants, v. Minnie Berger SHOR et al., Appellees.
    No. 76-504.
    District Court of Appeal of Florida, Fourth District.
    April 15, 1977.
    Rehearing Denied June 6, 1977.
    Thomas F. Martin and Henry Burnett, of Fowler, White, Burnett, Hurley, Banick & Knight, P. A., Miami, for appellants.
    Marjorie D. Gadarian, of Jones, Paine & Foster, P. A., West Palm Beach, for appel-lees.
   DAUKSCH, Judge.

This is a personal injury case wherein Appellant was the Plaintiff seeking contribution from the Appellee as a joint tort-feasor as defined in Section 768.31, Florida Statutes (Supp.1976).

The facts of the case bring us squarely in the face of the common-law doctrine of interspousal immunity which says neither a husband nor a wife can sue the other. See Webster v. Snyder, 103 Fla. 1131, 138 So. 755 (1932) (especially dissent).

When the joint tortfeasor statute and the interspousal immunity doctrine are read together and we consider the case of Mieure v. Moore, 330 So.2d 546 (Fla. 1st DCA 1976), we are involved in a real conflict situation. We have considered the fact that no Florida Supreme Court case on point is extant and are ever mindful of the admonitions in Hoffman v. Jones, 280 So.2d 431 (Fla.1973).

Briefly stated Shor was the operator of a motor vehicle occupied by her husband who was injured as a result of an accident caused by Paoli and Shor. Shor’s husband sued Paoli for damages and collected. Now Paoli seeks contribution from Shor as a joint tortfeasor. Shor defends on inter-spousal immunity. The trial court entered a Judgment on the pleadings against Paoli. We reverse.

The doctrine of family or inter-spousal immunity is based on the desirability of the preservation of the family unit. The law of contribution of joint tortfeasors is meant to apportion the responsibility to pay innocent injured third parties between or among those causing the injury.

In the case at bar it was determined that both Paoli and Shor caused the injury. Shor’s husband collected 100% of his damages from Paoli. To say that Shor doesn’t have to contribute and account for her wrongdoing would be unfair to Paoli and a windfall to Shor. This is not a case where the husband sued the wife on account of her negligence so we are not doing any real damage to the doctrine. This is a case where the joint tortfeasor sued the joint tortfeasor and we are ruling in support of that statute.

Because of the obvious conflict of this opinion with that of the 1st District Court of Appeal in Mieure v. Moore, 330 So.2d 546 (Fla. 1st DCA 1976) and the frequency with which this question has arisen and will continue to come before the courts of our state we certify to the Supreme Court of Florida the following determinative question passed upon by this opinion as being of great public interest:

DOES THE COMMON-LAW DOCTRINE OF INTERSPOUSAL IMMUNITY CONTROL OVER THE UNIFORM CONTRIBUTION AMONG JOINT TORT-FEASORS ACT (75-108 LAWS OF FLORIDA, SECTION 768.31, FLORIDA STATUTES) TO PREVENT ONE TORT-FEASOR FROM SEEKING A CONTRIBUTION FROM ANOTHER TORTFEASOR WHEN THE OTHER TORTFEASOR IS THE SPOUSE OF THE INJURED PERSON WHO RECEIVED DAMAGES FROM THE FIRST TORTFEASOR?

REVERSED and REMANDED for further proceedings not inconsistent herewith.

MAGER, C. J., concurs specially, with opinion.

ALDERMAN, J., dissents, with opinion.

MAGER, Chief Judge,

concurring specially:

The reasons ably expressed by the author of the majority opinion, with which I concur, are consistent with justice and logic.

In particular, I agree that we need not concern ourselves with the applicability of Hoffman v. Jones, supra, principally because we are here deciding for the first time that the common law doctrine of inter-spousal immunity does not affect the right to contribution under the Uniform Contribution Among Joint Tortfeasors’ Act (75-108 Laws of Florida, Section 768.31, Florida Statutes).

This precise issue was not considered, contemplated, or remotely involved when the Supreme Court decided Bencomo v. Bencomo, 200 So.2d 171 (Fla.1967). In Bencomo, supra, the court was dealing with a direct action by a divorced wife against her former husband for intentional torts allegedly committed during the marriage. Hence, Bencomo is not controlling and the admonition of Hoffman is inapplicable.

Moreover, the underlying rationale of Bencomo, i. e., the recognition of the common law doctrine of the merger or unity of husband and wife, was discarded by the Supreme Court in its later decision in Gates v. Foley, 247 So.2d 40 (Fla.1971), where the court properly observed, at page 44:

“So it is that the unity concept of marriage has in a large part given way to the partner concept whereby a married woman stands as an equal to her husband in the eyes of the law. By giving the wife a separate equal existence, the law created a new interest in the wife which should not be left unprotected by the courts. Medieval concepts which have no justification in our present society should be rejected. . . . ” (Emphasis added).

Lastly, whatever may have been the intended judicially-created application of the Ben-como rule to contribution situations, it has now been modified by the legislature in the 1975 enactment of the Uniform Contribution Among Joint Tortfeasors’ Act. The legislature is presumed to be aware of relevant judicial decisions and undoubtedly was aware of the Bencomo decision when it adopted Chapter 75-108; had it intended to carve out any exception to the applicability of the contribution act it certainly could have done so, but chose not to do so. (See, for example, section 768.31(2)(g), Florida Statutes). The interpretation which this court has given the contribution act serves to promote the express legislative intent (sec. 768.31(6), Florida Statutes).

One of the better dissertations on this subject may be found in the recent decision of the Supreme Court of Rhode Island in Zarrella v. Miller, 217 A.2d 673 (1966). In Zarrella, the Court recognized the Rhode Island rule (similar to Florida rule) that a wife may not maintain a suit against her husband for injuries caused by the latter’s negligence. The Court analyzed this rule in light of. the adoption of the “Uniform Contribution Among Tortfeasors’ Act”, recognizing that a split of authority existed in those jurisdictions which had adopted the act. As the Supreme Court aptly observed: “ . . . We cannot believe that in en-

acting such act the legislature intended to extend the doctrine of interspousal immunity to actions under the act in the light of modern-day conditions. Such intent would be contrary to common sense and justice. We are convinced that the legislature intended contribution in a case such as this. We agree with the words of Dean Prosser that ‘There is obvious lack of sense and justice in a rule which permits the entire burden of a loss, for which two defendants were equally, unintentionally responsible, to be shouldered onto one alone * * * while the latter goes scot free.’ Prosser, Torts, 2d ed., chap. 8, § 46, p. 248. In enacting this act we believe the legislature intended to include the spouse of an injured party as a joint tortfeasor ‘liable in tort for the same injury.’ ” (217 A.2d 676). (Emphasis added).

For these reasons and for those expressed in the majority opinion I concur in a reversal and in the certification.

ALDERMAN, Judge,

dissenting:

The sole issue presented by this appeal is whether the doctrine of interspousal immunity bars a right of contribution that would otherwise exist under Section 768.31, Florida Statutes. The trial court held that it does; I agree and would affirm.

The doctrine of interspousal immunity has not been abolished and is still a part of the common law of Florida. Heaton v. Heaton, 304 So.2d 516 (Fla. 4th DCA 1974). Mr. Shor cannot assert a claim against his wife. Mrs. Shor and Mr. Paoli therefore are not joint tort feasors because they have no common liability to Mr. Shor. Since common liability is lacking, Mr. Paoli has no right of contribution from Mrs. Shor. Mieure v. Moore, 330 So.2d 546 (Fla. 1st DCA 1976).

The doctrine of interspousal immunity has long been recognized by our Supreme Court. Corren v. Corren, 47 So.2d 774 (Fla.1950); Bencomo v. Bencomo, 200 So.2d 171 (Fla.1967); Gaston v. Pittman, 224 So.2d 326 (Fla.1969); Orefice v. Albert, 237 So.2d 142 (Fla.1970). Its purpose is to protect family harmony and resources. The effect of the majority opinion is to dilute and compromise the doctrine. If the policy reasons which originally supported interspousal immunity are no longer valid, it is within the province of the Supreme Court to modify or abolish the doctrine. However, we do not have the authority to overrule this precedent established by the Supreme Court. Hoffman v. Jones, 280 So.2d 431 (Fla.1973).

      . The filing of an application pursuant to Fla. App. Rule 4.5(c)(6) by either party is necessary to invoke the jurisdiction of the Supreme Court of Florida. Gilliam v. Stewart, 291 So.2d 593.


author: ANSTEAD, Judge.

text:
    J. Leonard FLEET, Appellant, v. Barbara Ann FLEET, Appellee.
    No. 76-969.
    District Court of Appeal of Florida, Fourth District.
    April 15, 1977.
    William deF. Thompson, of Fazio, Dawson & Thompson, Fort Lauderdale, for appellant.
    Maurice M. Diliberto, Miami, for appellee.
   ANSTEAD, Judge.

This is an appeal by both parties from the trial court’s order dismissing and denying petitions for modifications of both the husband and wife. We reverse.

During the course of a final hearing on the husband’s petition for modification and the wife’s counterpetition, the trial court discovered that the husband had failed to comply with a previous order of the court. At that point the court stated that he was dismissing the husband’s petition on the basis that the husband had “unclean hands.” At the same time, the trial court stated that he was dismissing the wife’s petition for modification also. The husband was not given an opportunity to explain his failure to comply with the previous order, and neither party was given an opportunity to complete the presentation of their evidence.

The record clearly supports the trial court’s finding that the husband had violated the terms of a previous court order. However, we feel the husband is entitled to complete his presentation of evidence before the court determines what action should be taken on the petition, including denial thereof on grounds of “unclean hands” if such be the conclusion of the court after the hearing has been completed.

The wife’s petition was also denied before the completion of her case. In essence the wife was claiming that the husband had been guilty of fraud in past applications to the trial court which had resulted in modifications favorable to the husband. The trial court apparently felt the wife had not timely raised the issue of fraud. Rule 1.540(b) of the Florida Rules of Civil Procedure authorizes an action based upon fraud upon the court even beyond the usual one year period that relief may be obtained from a judgment. Accordingly, we feel the wife is entitled to a hearing on her petition.

The wife has also appealed the trial court’s denial of her request for attorney’s fees and costs. Since the trial of this cause has not been completed it would be premature to determine the issue of attorney’s fees and costs. That determination should properly be made at the conclusion of the final hearing.

Accordingly, the judgment of the trial court is reversed with directions that a final hearing be conducted in accordance with this opinion.

MAGER, C. J., and ALDERMAN, J., concur.


text:
    OAK HILL WEST, INC., Appellant, v. DEPARTMENT OF REVENUE, State of Florida, and the Honorable Gerald Lewis, as Comptroller of the State of Florida, Appellees.
    No. 76-971.
    District Court of Appeal of Florida, Fourth District.
    April 15, 1977.
    Gene K. Glasser of Abrams, Anton, Robbins, Resnick & Schneider, Hollywood, for appellant.
    Edward E. Huhnel, General Counsel, and Fred 0. Drake, III, Asst. Gen. Counsel, Tallahassee, for appellee — Gerald Lewis as Comptroller of the State of Florida.
    Robert L. Shevin, Atty. Gen., and Caroline C. Mueller, Asst. Atty. Gen., Tallahassee, for appellee — Department of Revenue, State of Florida.
   PER CURIAM.

The judgment of the Circuit Court of Broward County, rendered April 7, 1976, is hereby reversed upon authority of Department of Revenue v. University Square, Inc., 336 So.2d 371 (Fla. 1st DCA 1976), and this cause is remanded to the trial court for further proceedings.

REVERSED AND REMANDED.

CROSS and DOWNEY, JJ., and SCHWARTZ, ALAN R., Associate Judge, concur.


author: DAUKSCH, Judge. ALDERMAN, Judge,

text:
    In re the ESTATE of Edward C. ENDRES, Deceased.
    No. 76-1028.
    District Court of Appeal of Florida, Fourth District.
    April 15, 1977.

      Phillip H. Logan, of Shinholser, Logan & Moncrief, Sanford, for appellant.
    Richard J. Brooks, Altamonte Springs, for appellee.
   DAUKSCH, Judge.

This is a will contest case.

The essential facts are that Edward En-dres died on March 29, 1971 leaving a widow and two grandchildren. In his will he devised his homestead to his widow in violation of the 1968 Florida Constitution which was the controlling law at the time of the death of Mr. Endres. Article X, Section 4(c), Florida Constitution stated “the homestead shall not be subject to devise if the owner is survived by spouse or minor children.” Since the Constitution stated that the homestead was not subject to devise it passed by intestate succession. Since the property was homestead there were certain rights which vested in the grandchildren of the decedent simultaneously with the death of Mr. Endres which rights were a fee simple absolute ownership of the property subject to a life estate in the widow. This was provided by the then existing Section 731.27, Florida Statutes (1971) which effectively vested in the lineal descendants the title. No statutory re-enactment or constitutional change or amendment or decision of the court can change the fact that upon the death of Mr. Endres the property was vested in the lineal descendants subject only to a life estate in the widow. Unfortunately, this decision is in conflict with the decision of our Supreme Court, In Re: Estate of McCartney, 299 So.2d 5 (Fla.1974). We are ever mindful of the admonitions in Hoffman v. Jones, 280 So.2d 431 (Fla.1973) but we are compelled by our determination that the vested property rights cannot be divested as we mentioned above. The Order of the trial court determining the homestead property to be subject to devise is reversed and this cause is remanded for further proceedings not inconsistent herewith.

REVERSED and REMANDED.

CROSS, J., concurs.

ALDERMAN, J., dissents, with opinion.

ALDERMAN, Judge,

dissenting:

I think the decision of the Supreme Court in In re Estate of McCartney, 299 So.2d 5 (Fla.1974), is controlling. It is directly on point and cannot be distinguished. In McCartney, the Supreme Court held that under Article X, Section 4 of the Florida Constitution as adopted in 1968, a testator could properly devise homestead property to his surviving spouse, in absence of a minor child, and was not restricted to devising a life estate to his spouse with a vested remainder in his adult children. Right or wrong, this is the Supreme Court’s interpretation of this section of the constitution. Even if we think the Supreme Court was wrong in this instance, we do not have the right to overrule its precedent. Hoffman v. Jones, 280 So.2d 431 (Fla.1973).

I would affirm.


text:
    Edwin H. LYTTON et al., Appellants, v. BARNETT BANK OF COCOA, N. A., a National Banking Corporation, Appellee.
    No. 76-1341.
    District Court of Appeal of Florida. Fourth District.
    April 15, 1977.
    Becky A. Powhatan and J. Thomas Card-well of Akerman, Senterfitt & Eidson, Orlando, for appellants.

      Robert T. Westman of Stromire, West-man, Lintz & Baugh, Cocoa, for appellee.
   DAUKSCH, Judge.

This is an appeal from an Order striking affirmative defenses and dismissing a counterclaim filed by Plaintiff and the Summary Judgment entered for the Appellee. Upon an examination of the alleged affirmative defenses and the counterclaim we find they are legally sufficient to set up defenses and state a cause of action, respectively, and they raise sufficient issues to preclude a summary judgment. Davis v. Evans, 132 So.2d 476, 478 (Fla. 1st DCA 1961); Kutner v. Kalish, 173 So.2d 763 (Fla. 3d DCA 1965).

REVERSED and REMANDED for reinstatement of the second amended affirmative defenses and the counterclaim and further proceedings not inconsistent herewith.

CROSS and ALDERMAN, JJ., concur.


text:
    Edith M. RUCKS, Appellant, v. OLD REPUBLIC LIFE INSURANCE COMPANY, Appellee.
    No. 76-1533.
    District Court of Appeal of Florida, Fourth District.
    April 15, 1977.
    As Modified on Denial of Rehearing June 10, 1977.
    Richard V. Neill of Neill, Griffin, Jeffries & Lloyd, Chartered, Fort Pierce, for appellant.

      Emory C. Teel, III, of Fee, Parker & Fee, P. A., Fort Pierce, for appellee.
   LETTS, Judge.

This is an appeal from a final judgment denying the appellant coverage under a credit life insurance policy issued to her deceased husband.

We reverse.

The facts of this case indicate that the appellant and her now deceased husband borrowed $117,000 from a bank, securing the loan with a mortgage on their property. At that time, appellee insurance company issued them a credit life insurance policy certificate which included the statement that “the amount of insurance may not at any time exceed $35,000” and that the certificate issued was “under and subject to the terms and conditions of the Creditors Group Policy.” The group policy which was never seen by or discussed with appellant or her husband, said in part:

If the life of any debtor is insured in connection with more than one indebtedness, the aggregate amount of insurance in force on his life shall in no case exceed a maximum of $35,000. If the total amount of insurance on any one life evidenced by the statements of insurance issued exceeds the spécified maximum, payment shall be made under the separate statements of insurance in the order in which they were issued, and the liability of the Company with respect to the excess insurance shall be limited to a refund of the premium for such excess insurance.

Unaware that the maximum amount payable in case of death was $35,000, even if two certificates were taken out, appellant and her husband took out more life insurance on a second loan of $40,000 made two years later, paying additional premiums therefor. Upon her husband’s death, the bank received $35,000 under the first certificate, but did not even attempt to collect any proceeds from the second certificate. The insurance company then advised appellant that the group policy precluded recovery beyond $35,000 and returned the premiums paid on the second certificate.

We believe that this court already decided this question in Equitable Life Assurance Society of the United States v. Wagoner, 269 So.2d 747 (Fla. 4th DCA 1972) where the court said:

As a practical matter, the certificate is the only document which the insured under a group life insurance policy ever sees. When the terms of the Certificate are in conflict with the provisions of the master policy a problem arises as to which should prevail. While the authorities are divided on the question, we believe the better view to be the one which holds that under group life insurance policies there is a contract between the insurer and the individual insured, that the contract consists of both the master policy and the certificate of insurance construed together, and that ambiguities or conflicts between the two must be resolved so as to provide the broadest coverage. See, Prudential Insurance Company of America v. Roberts, 5 Cir. 1966, 358 F.2d 394; DaCosta v. General Guaranty Insurance Company of Florida, Fla.1969, 226 So.2d 104; Moore v. Peninsular Life Insurance Company, Fla.App.1968, 213 So.2d 721; and 1 Appleman, Insurance Law & Practice, § 46. Id at 748.

We find an obvious ambiguity and conflict here as the individual certificate issued and the master policy are irreconcilable. Had the insurance company uncovered the unacceptable second issue before the death of the insured and then refunded the premiums, we might be otherwise disposed, but to permit such now would be unconscionable and the insurance company is estopped by its own conduct or that of its issuing agent.

It is urged by the insurance company that this case involves a question of how much coverage was available rather than a total forfeiture. Upon such a premise it cites Six L’s Packing Company, Inc. v. Florida Farm Bureau Mutual Insurance Co., 268 So.2d 560 (Fla. 4th DCA 1972), aff’d. 276 So.2d 37 (Fla.1973). We do not agree. In Six L’s, a single policy was involved and the agreement centered on a failure by the insured to carry out affirmative monthly obligations, of which he had actual notice, under the policy, thereby reducing the available coverage on the contents of a packing shed. In a well reasoned opinion, the Six L’s court identified the issue, as follows:

The general rule is well established that the doctrine of waiver and estoppel based upon the conduct or action of the insurer (or his agent) is not applicable to matters of coverage as distinguished from grounds for forfeiture. 18 Fla.Jur. Insurance § 677, and 43 Am.Jur.2d Insurance § 1184. State Liquor Stores, # 1 v. United States Fire Ins. Co., Fla.App.1971, 243 So.2d 228; Johnson v. Dawson, Fla.App. 1972, 257 So.2d 282. See also Alaska Foods, Inc. v. American Mfr’s Mut. Ins. Co., Alaska 1971, 482 P.2d 842; Commonwealth Ins. Co. of New York v. O. Henry Tent & Awn. Co., 7 Cir. 1961, 287 F.2d 316. In other words, while an insurer may be estopped by its conduct from seeking a forfeiture of a policy, the insurer’s coverage or restrictions on the coverage cannot be extended by the doctrine of waiver and estoppel.
We are therefore faced with the threshold determination of whether the pertinent clauses go to the coverage of the policy as distinguished from furnishing a ground for forfeiture. Id at 563.

In the case now before us, by contrast, there were no unfulfilled obligations by the insured and he was in full compliance with the terms of a certificate which the insurance company now reports should never have been issued. It is clear that this second distinct certificate of life insurance was, in fact, forfeited rather than reduced in coverage.

The same problem, as is presented here, arose in a similar case decided in California in which credit life insurance was taken out following the purchase of three parcels of land. Evans v. Holly Corporation, 15 Cal.App.3d 1020, 93 Cal.Rptr. 712 (Ct. of App. 2nd Dist. 1971). The certificates involved there stated that “ ‘in no event shall the aggregate amount of all such insurance on the life of any Debtor exceed’ the amount of $7500.” Id. at 713. After noting that the insured had probably never seen the master policy, the court ruled that:

Where the representations in an insurance certificate indicate broader coverage than that provided by the master policy, the insurer is bound by the terms of the certificate (Humphrey v. Equitable Life Assur. Soc., 67 Cal.2d 527, 534, 63 Cal.Rptr. 50, 432 P.2d 746). Reasonably construed, the certificates each evidenced coverage to a maximum of $7500 for each separate purchase. This was strongly implied by the issuance of three separate certificates with three separate account numbers and three separate listings of the initial amounts of insurance afforded, none of which exceeded $7500 separately but which totalled $17,680. Id. at 713.

In the case now before us, the insurance company argues'that each of the two insurance certificates given to the deceased, specified that they were “under and subject to the terms and conditions of the creditors group policy” and that “the amount of insurance may not at any time exceed $35,-000.” The fallacy in this argument is that if it is controlling, we are led to the inescapable conclusion that the second certificate of insurance could never be issued in the first place — but it was issued, and the insured can hardly be blamed for assuming that the $35,000 limit would apply to each certificate. Nor can the insured be said to be bound by conditions set forth in a group policy which would cancel out the very insurance which had been solicited from him and for which he had paid. Such a contradiction in terms cannot be blamed on the insured who might well have procured credit life from another company had he been informed of the true state of affairs.

The insurance company also complains that it should not be required to give out the master policy where group insurance is involved under Florida Statutes § 627.565 (1975), and that if the plaintiff is allowed to avail itself of the theory of es-toppel, the result would require the issuance of a copy of the master policy to each individual insured. We will comment on- that assertion only to say that, whether or not copies of the master plan are distributed, it is an unacceptable paradox to issue an insurance certificate on the one hand and simultaneously distribute a master document which cancels it on the other, although the insured continues to be asked to pay the premiums on said cancelled certificate.

Reversed and remanded to the trial court with directions to vacate the final judgment of July 6,1976 and enter an order granting the plaintiffs motion for summary judgment, and assess appropriate costs and interests against the appellee/defendant.


text:
    Yolanda Julien PRO, Appellant, v. The AMERICAN DRUGGISTS’ INSURANCE COMPANY, etc., Appellee.
    No. 76-1691.
    District Court of Appeal of Florida, Fourth District.
    April 15, 1977.
    Florence B. Snyder, of Brennan, McAli-ley, Albury & Hayskar, West Palm Beach, for appellant.
    Arthur G. Wroble, of Burns, Middleton, Farrell & Faust, Palm Beach, for appellee.
   DOWNEY, Judge.

The present litigation has the following background. Yolanda Pro, as the respondent in a dissolution of marriage proceeding, received a judgment granting her, among other things, lump sum alimony of $86,400 payable in periodic installments of $1200 per month, and an attorney’s fee of $4,500. Fred Pro, the petitioner, perfected an appeal from that judgment and obtained an order granting a supersedeas bond in the amount of $18,000. The order stated that the judgment to be superseded “[is] in part a Final Judgment other than a money judgment . . . .” The order then provided:

“ORDERED AND ADJUDGED by the Court that upon the Petitioner, FRED PRO, executing a bond with good and sufficient surety for the sum of EIGHTEEN THOUSAND DOLLARS ($18,-000.00) in favor of the Respondent, conditioned to pay all costs and damages which the said Respondent may sustain in case the said appeal should be dismissed or said judgment be affirmed by the Fourth District Court of Appeal of the State of Florida, . . . ” (Emphasis supplied.)

Pursuant to that order, Fred Pro filed a bond which bound him and his surety, The American Druggists’ Insurance Company (appellee in this case), to pay to Yolanda Pro $18,000 upon condition that:

“. . .if the above mentioned FRED PRO shall well and truly pay all costs, damages and expenses occasioned by the reason of the stay in the event the Order sought to be reviewed is modified or reversed, then this obligation to be void; otherwise to be in full force and effect.”

In due course this court affirmed the judgment in question and Yolanda Pro called upon the surety to pay the amount of the bond. When the surety refused payment she filed suit to recover the amount of the bond. At the end of a non-jury trial, the court granted the surety’s motion for involuntary dismissal made at the close of Mrs. Pro’s case.

On appeal Mrs. Pro contends that the trial judge erred in finding that (a) the bond as written did not apply and that the bond was a nullity, and (b) attorney’s fees as directed in the final judgment are not recoverable under the bond.

A casual reading of the order granting the supersedeas bond and of the bond itself demonstrates that neither was drafted to fit the necessities of the final judgment in the dissolution action. With the exception of a provision dissolving the Pro marriage, and a routine injunction provision that the parties not harass each other, the decretal portion of the final judgment in the dissolution action pertained to the monetary awards of lump sum alimony and attorney’s fees. Thus, the most important aspect of the supersedeas bond from Mrs. Pro’s standpoint was the requirement that Mr. Pro pay the monetary awards forthwith if his appeal should be unsuccessful. See Fla. App. Rule 5.7; Knipe v. Knipe, 290 So.2d 71 (Fla. 2d DCA 1974). Yet the order which was entered did not provide for a bond conditioned to satisfy the monetary awards of the judgment if Mr. Pro’s appeal was unsuccessful; rather, it authorized a bond conditioned only to pay all costs and damages which the wife might sustain in case the appeal should be dismissed or the judg-' ment affirmed by the appellate court.

Regardless who prepared the order in question, the beneficiary of the bond (the judgment creditor) had the obligation to insure that the order provided the protection to which the judgment creditor was entitled. But not only was the order granting supersedeas inadequate to cover the exigencies of the case, the bond itself did not even follow the mandate of the order. The condition of the bond filed was that it would be of no force and effect if Mr. Pro paid all costs, damages, and expenses occasioned by reason of the stay in the event the order sought to be reviewed was modified or reversed. Obviously, the condition should have been that the obligation of the bond would terminate if the judgment was affirmed and Mr. Pro paid Mrs. Pro the obligation imposed by the final judgment in the dissolution action. If the judgment were to be reversed then, of course, there would be no obligation to meet.

Furthermore, the bond provisions were inadequate to meet the needs of the wife if it was her purpose to cover the monetary awards in the judgment, because both the order and the bond provided only for the payment of costs, damages, and expenses occasioned by reason of the stay. The damages or expenses envisioned in Fla.App, • Rules 5.7, 5.8 and 5.9 are damages arising from the delay occasioned by the appeal, such as loss in value of property which could have been subjected to the satisfaction of the debt had it not been for the delay in taking the appeal. All Florida Surety Company v. Vann, 128 So.2d 768 (Fla. 3d DCA 1961); 5B C.J.S. Appeal and Error § 2072b(3). Thus, even if the conditions of the bond had complied with the order, Mrs. Pro would not have succeeded in this suit against the surety, because the surety never contracted to pay the monetary awards contained in the judgment superseded.

In view of the foregoing, it is quite apparent that the trial judge’s very thorough analysis of the case in the final judgment appealed from was eminently correct.

AFFIRMED.

CROSS and ALDERMAN, JJ., concur.

      . It would appear this statement is an incorrect (though understandable) interpretation of Fla. App. Rule 5.9. See Knipe v. Knipe, 290 So.2d 71 (Fla. 2d DCA 1974).


author: DRIVER, Associate Judge.

text:
    George P. DONALDSON, Jr., et al., Appellants, v. The CITY OF TITUSVILLE, Florida, a Municipal Corporation, et al., Appellees.
    No. 76-449.
    District Court of Appeal of Florida, Fourth District.
    April 15, 1977.
    John T. Allen, Jr., P.A., St. Petersburg, for appellants.
    John H. Evans, Crofton, Holland, Starling, Harris & Severs, P.A., Titusville, for appellees.
   DRIVER, Associate Judge.

Appellants appeal an Order dismissing their Complaint for Declaratory Judgment.

Appellants, Donaldsons and Shamrock Engineering, Inc., were plaintiffs in the trial court. The City of Titusville, Florida, was defendant. The Complaint is in six Counts. It alleges that plaintiffs are the owners of a tract of land in Titusville and pursuant to that city’s zoning code applied to the City for approval of a “planned unit development” use of their land.

The Complaint details protracted negotiations between plaintiffs and the city. It is averred in the Complaint that from the outset City encouraged plaintiffs to pursue the requested development. Relying upon the encouragement of the City, plaintiffs filed applications and it is claimed did all things necessary to obtain favorable consideration, including expending in excess of $40,000.00 for architectural and engineering fees and other studies. Eventually, after agreeing to various changes, plaintiffs’ plans were approved by the City Zoning Board which recommended its approval to the City Council.

Plaintiffs allege that when the matter came before the City Council, the Council forthwith arbitrarily denied the change of zoning necessary to the planned unit development.

Plaintiffs then filed an action for Declaratory Judgment. The trial judge, on motion of defendant, dismissed the Complaint on the theory that the City Council in denying plaintiffs’ application was acting in a legislative capacity and therefore its action was not subject to judicial review. Plaintiffs elected not to plead further. This appeal followed.

This opinion concerns itself only with the correctness of the Order dismissing the Complaint.

Jurisdiction of circuit courts to hear, consider, and declare the rights, status, equitable or legal relations of litigants is conferred by Chapter 86, Florida Statutes, Section 86.021, which provides:

“Any person claiming to be interested or who may be in doubt about his rights under a deed, will, ... or whose rights, status or other equitable or legal relations are affected by a statute, or any regulation made under statutory authority, or by municipal ordinance may have determined any question of construction or validity arising (thereunder) . .

Section 86.101 further provides:

“This chapter is declared to be substantive and remedial. Its purpose is to settle and to afford relief from insecurity and uncertainty with respect to rights, status, and other equitable or legal relations and is to be liberally administered and construed.”

The courts of this State have consistently upheld Declaratory Judgment actions as a means to seek clarification or adjudication of rights of property owners under municipal ordinances and to obtain relief from the action of zoning authorities. Safer v. Jacksonville, Fla.App., 212 So.2d 785; Dade County v. Benenson, Fla.App., 326 So.2d 74; City Of Naples v. Central Plaza Of Naples, Inc., Fla.App.1974, 303 So.2d 423; Rural New Town, Inc. v. Palm Beach County, Fla.App., 315 So.2d 478; Hall v. Korth, Fla.App.1971, 244 So.2d 766. These authorities make no distinction between legislative and quasijudicial functioris.

A motion to dismiss accepts as true all factual allegations of a Complaint. United Homes, Inc. v. Moss, Fla.App., 154 So.2d 351. If a Complaint contains any merit, it is to be liberally construed in favor of the pleader when subjected to a motion to dismiss. Kickliter v. National Union Fire Insurance, Fla.App., 188 So.2d 872; Fontainebleau Hotel Corp. v. Walters, Fla., 246 So.2d 563.

Taken as a whole, Counts I, II, III, IV, and VI of the Complaint allege a right of plaintiffs to develop their land and a justifiable doubt as to their rights under the zoning ordinances of the City, and a further doubt of their rights as affected by the action of the City Council in construing the zoning code. The Complaint alleges a present controversy which plaintiffs are entitled to have resolved as to Counts I, II, III, IV, and VI. Dade County v. Benenson, supra; Sheldon v. Powell, (1930) 99 Fla. 782, 128 So. 258.

The Order dismissing Count V was correct. Count V claims a denial of equal protection of the law under both the State and Federal Constitutions. The only factual allegation in support of this Count is that subsequent to denying plaintiffs’ application the City Council granted a similar application to another developer. The zoning authorities of the City of Titusville are granted considerable discretion in approving or disapproving zoning changes. Mere allegation that another developer’s plan was approved while plaintiffs’ was denied is insufficient to plead a denial of equal protection. McQUILLAN on Municipal Corporation, Sections 19.13 and 25.123. The Order of Dismissal was correct as to Count V, and being correct the reason becomes immaterial.

The Order appealed dismissing Counts I, II, III, IV, and VI of the Complaint is quashed and the cause remanded for further proceedings.

That portion of the Order dismissing Count V is affirmed.

CROSS, Acting C. J., and ANSTEAD, J., concur.


text:
    Frank HAAS, Appellant, v. STATE of Florida, Appellee.
    No. 75-1823.
    District Court of Appeal of Florida, Fourth District.
    April 15, 1977.
    Richard L. Jorandby, Public Defender, and Frank B. Kessler, Asst. Public Defender, and Tatjana Ostapoff, Legal Intern, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony J. Golden, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

The term of probation is hereby modified from 17 years to 15 years. Holmes v. State, 343 So.2d 632 (Fla. 4th DCA 1977) and Heatherly v. State, 343 So.2d 54 (Fla. 4th DCA 1977).

AFFIRMED AS MODIFIED.

DOWNEY, ALDERMAN and AN-STEAD, JJ., concur.