author: HENDRY, Judge.

text:
    The STATE of Florida BOARD OF TRUSTEES OF the INTERNAL IMPROVEMENT TRUST FUND, Appellant, v. SEA-AIR ESTATES, INC., and Douglas R. Gaines, Appellees.
    Nos. 75-498, 75-288.
    District Court of Appeal of Florida, Third District.
    Feb. 24, 1976.
    Ross A. McVoy and David Gluckman, Tallahassee, for appellant.
    David Paul Horan, Key West, for appel-lees.
    Before PEARSON, HENDRY and NATHAN, JJ.
   HENDRY, Judge.

Appellant, plaintiff and counterdefendant below, appeals a final judgment of the trial court, after a non jury trial, in favor of ap-pellees, defendants and counterplaintiffs below, on their counterclaims for declaratory and injunctive relief.

The final judgment, dated May 28, 1974, adequately summarizes the proceedings in the trial court, and reads in pertinent part as follows:

“THIS CAUSE came on before the Court for a nonjury trial on the defendants’ Counterclaim and plaintiff’s Answer thereto. The plaintiff had filed its Complaint seeking an action for mandatory injunctive relief against the defendants requiring the defendants to replace fill material which was alleged to be illegally excavated by the defendants on the defendants’ subdivision. Plaintiff voluntarily dismissed its Complaint and, after motion and hearing, this Court ordered that the defendants’ Counterclaim shall remain pending for independent adjudication by the Court. Defendants’ Counterclaim sought a judicial declaration as to the jurisdiction of the plaintiff over defendants’ lands and canals under the provisions of Chapter 253, Florida Statutes. The defendants’ Counterclaim also sought injunctive relief.
“The Court heard the testimony of DOUGLAS R. GAINES, one of the defendants, who testified that he applied and obtained from the plaintiff and the United States Corps of Engineers a permit to construct a navigable channel in 1969, and further testified that the existing basin or old borrow pit and existing L-shaped canal, shown on counterclaim-ants’ Exhibit No. 6 admitted into evidence, was dug on the defendants/coun-terclaimants’ upland prior to the time the defendants/counterclaimants received title thereto. Gaines’s testimony was corroborated by A. MAITLAND ADAMS, a predecessor in title to the land under controversy and a witness produced in behalf of the defendants/counterclaim-ants, who testified that such existing basin or borrow pit and existing L-shaped canal were on upland and above high water mark.
“The controversy in this case narrowed down to the question whether the defendant/counterclaimant was required to obtain a permit from the plaintiff/counterdefendant to excavate land in the defendants/counterclaimants’ artificially created navigable waterways. The land excavation consisted of ‘pulling the plugs’ between artificially created navigable waterways.
“The Court took judicial notice and knowledge of the contents and context of Chapter 86, Florida Statutes.
“The Court also took judicial notice and knowledge of the contents and context of Chapter 253, Florida Statutes, and particularly Sections 253.12, 253.122, 253.123, and 253.124.
“The plaintiff-counterdefendant argued that the issues in this case are now moot as defendant/counterclaimant has already completed all excavations it now seeks to have authorized by the Court, and it is not proper to grant judicial relief which are merely advisory.
“After considering the pleadings and after hearing the testimony, it appears to the Co.urt that the defendant/counter-claimant is seeking to obtain relief from insecurity and uncertainty with respect to its future rights and status in excavating said land, which the plaintiff in its Complaint had complained that said land should not have been removed and sought to be replaced under a mandatory injunction.
“The defendant/counterclaimant argues there was no necessity for obtaining a permit for ‘pulling the plugs’, and the plaintiff cannot cause the defendant/counterclaimant to replace the plugs since the excavation of the land or ‘pulling of the plugs’ were conducted within artificially created navigable waters.
“The Court finds that the excavation was conducted in artificially created navigable waters, and under the provisions of 253.123(1) there is no requirement for the defendant/counterclaimant to obtain a permit.
“On the other hand, the plaintiff contends that the holding by the District Court of Appeal of Florida, Third District, in Jefferson National Bank at Sunny Isles v. Metropolitan Dade County, 271 So.2d 207, makes it immaterial whether the defendants/counterclaim-ants’ waterways were artificially created, and further relies on said case since it held that under Section 253.124 it makes no distinction between natural and artificially created navigable waterways. The Court has compared the facts stated in Jefferson National Bank, supra, and the facts testified in the case sub judice. In Jefferson National Bank, supra, the appellant had extended its shoreline by filling beyond the bulkhead line established by the Circuit Court decree in 1951 and beyond the bulkhead line established by the Dade Cou,nty Commission and approved by the Trustees of the Internal Improvement Fund. The defendant/counterclaimant in the case sub judice did not have comparable restrictions which made the proviso at the end of 253.123, namely, ‘provided nothing herein shall relate to artificially created navigable waters,” immaterial. The Jefferson National Bank opinion also held that under 253.124 it makes no distinction between natural or artificially created navigable waterways before any upland owner can so extend his land into navigable waters. Again, under the facts of the case sub judice, the defendants/counterclaimants were not constructing islands or adding to or extending their lands but were removing land in the artificially created navigable waterways.
“The premises considered, it is
“ORDERED AND ADJUDGED AS FOLLOWS:
“1. The defendant/counterclaimant conducted its excavation within artificially created navigable waters and there was no necessity for obtaining a permit from the plaintiff/counterdefend-ant to have done such work.”

Appellant contends on appeal that the trial court erred in entering the final judgment on the grounds (1) there was no competent evidence to establish that the waters involved herein were artificially created navigable waters, and (2) even if the water-bodies were artificially created navigable waters the regulatory authority of appellant still extended to them through the operation of §§ 253.123 and 253.124, Fla.Stat., F.S.A.

Appellees contend that the trial court did not err in entering the final judgment because (1) there was competent evidence that the waters involved were artificially created navigable waters, and (2) the trial court correctly applied § 253.123, Fla.Stat., F.S.A., in determining that appellants lacked regulatory jurisdiction of their excavation inside certain artificially created navigable waters.

In regard to appellant’s first point on appeal, we have carefully reviewed the record and hold that there was substantial competent evidence introduced at trial to support the trial court’s findings that the water-bodies involved in the instant appeal were “artificially created navigable waters” as that term is used in § 253.123(1), Fla.Stat., F.S.A. See Mid States Insurance Company v. Alday, Fla.App.1970, 242 So.2d 194; Ames v. Ames, Fla.App.1963, 153 So.2d 737; and 2 Fla.Jur., Appeals §§ 340 and 343.

Having made this determination, we turn to appellant’s second point on appeal, i. e., whether the artificially created navigable waters involved herein were beyond the regulatory jurisdiction of appellant. Based on the particular facts of the appeal, sub judice, we hold that the trial court correctly determined the excavation conducted by appellees, wholly within artificially created navigable waters owned by them, fell within the exception set forth in § 253.123(1), Fla.Stat., F.S.A., for such waters and, therefore, appellant had no regulatory authority over the excavation work performed by appellees.

We have considered the record, all points in the briefs, and arguments of counsel in the light of the controlling principles of law, and have concluded that no reversible error has been demonstrated. Therefore, for the reasons stated and upon the authorities cited, the final judgment appealed is affirmed.

Affirmed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Julian GONZALEZ, Appellant, v. RYDER SYSTEMS, INC., etc., and Coral Grove Apartments, Inc., a Florida Corporation, Appellees.
    No. 75-517.
    District Court of Appeal of Florida, Third District.
    Feb. 24, 1976.
    Levenstein, Burke & Associates, Miami, for appellant.
    Joel R. Teague, Coral Gables, and Horace B. Yandle, Miami, for appellees.
    Before PEARSON and NATHAN, JJ„ and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The plaintiff Gonzalez appeals an order dismissing his complaint as to one of the defendants, Coral Grove Apartments, Inc. The order recites as the ground for the dismissal the court’s conclusion that plaintiff’s failure to deliver process for service upon Coral Grove Apartments, Inc., until fourteen months after filing of the complaint was insufficient as a matter of law, as was the service of process finally procured. Nothing in this record refutes the trial judge’s conclusion, the factual basis of which is supported by the record. We, therefore, conclude that the dismissal was proper under the trial court’s inherent power to dismiss a cause which is not being prosecuted with reasonable diligence. See Maloy v. Bristow, Fla.App.1962, 138 So.2d 801.

Affirmed.


text:
    Arnold James WICKHAM, Appellant, v. BALTIMORE COPPER PAINT COMPANY, and Oliver Eeder & Sons, Appellees.
    No. 75-548.
    District Court of Appeal of Florida, Third District.
    Feb. 24, 1976.
    Rehearing Denied March 23, 1976.

      Sams, Anderson, Alper & Post, Walter C. Ward and R. Thomas Farrar, Miami, for appellant.
    Adams, George, Wood, Lee & Schulte and David L. Willing, Miami, for appellees,
    Before, PEARSON, HENDRY and HAVERFIELD, JJ.
   PER CURIAM.

The plaintiff, who was a professional spray painter, was injured by the inhalation of fumes from a paint manufactured by the defendant. On defendant’s motion for summary judgment, it appeared without issue that the plaintiff was employed by the City of Coral Gables as a painter and that he read the warning label on the product. This label contained the admonition that the user should avoid breathing the vapor or spray mist, avoid prolonged contact with the skin and that the product should be used with adequate ventilation. It further appeared without issue that appellant used a mask provided him by his employer. Two fellow employees also used masks. The plaintiff suffered ill effects during the use of the paint and mask but continued to use both. He sued both the manufacturer of the mask and the manufacturer of the paint for the personal injury he suffered from inhalation. Summary judgment was entered for the manufacturer of the jDaint.

On this appeal, plaintiff urges that there is a genuine issue of material fact as to the adequacy of the warning printed on the label. He relies for reversal upon the holding of the Supreme Court of Florida in Tampa Drug Company v. Wait, Fla. 1958, 103 So.2d 603.

We hold that the summary judgment was properly entered because the issue of the adequacy of the warning on the label was not a material issue. The plaintiff and his employer were warned by the label, of which they had knowledge, and proceeded to use a mask during the work. It conclusively appears from the uncontroverted evidence that the proximate cause of plaintiff’s injury could not be the inadequacy of the warning, inasmuch as the injury was not the result of a failure to inform either the employer or the employee of the possibility of injury by inhalation. We have examined Edwards v. California Chemical Company, Fla.App.1971, 245 So.2d 259, in which the District Court of Appeal, Fourth District, held that a warning failing to instruct the user of how the product could be safely used and failing to prescribe that a respirator be employed and protective clothing worn while using the product presented an issue of fact of whether the label provided fair and adequate warning. We find, however, that this holding is not applicable to the present situation where both the employer and the employee users of the commercial product were cognizant of the dangers involved. Cf. May v. Allied Chlorine & Chemical Products, Inc., Fla.App. 1964, 168 So.2d 784. Therefore, the summary judgment is affirmed.

Affirmed.


text:
    Linda K. GOLDBERG, Appellant, v. Glen Z. GOLDBERG, Appellee.
    Nos. 75-577, 75-1313.
    District Court of Appeal of Florida, Third District.
    Feb. 24, 1976.
    Friedman, Britton & Stettin and W. John Gundlach, Jr., Ft. Lauderdale, for appellant.
    Herbert A. Warren, Miami, for appellee.
    Before HAVERFIELD and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

These two appeals are taken by Linda K. Goldberg, petitioner wife, from the alimony and attorneys fees provisions of a final judgment of dissolution of marriage, in which Glen Z. Goldberg, respondent husband, cross-appeals, and from an order on amended petition for dissolution of marriage and final judgment of ejectment in which Harry Goldberg, father of the husband, cross-appeals.

An interlocutory appeal was previously taken in this cause. See Goldberg v. Goldberg, Fla.App. 1975, 309 So.2d 599. This was a bitterly contested divorce action in which the respondent husband’s parents were joined as parties. The trial court referred the cause to a special master who filed an extensive report reciting findings of fact and recommendations. Among the findings of fact were that the parties were married in 1970, and separated in 1974; that there are no children; that the parties enjoyed a comfortable style of living due to the generosity of the respondent’s parents; that the petitioner is attractive, educated and able to support herself and that she has realized a substantial increase in assets, including cash and jewelry as a result of the 4-year marriage. The master recommended that no permanent alimony be awarded but that the court award the petitioner rehabilitative alimony in the amount of $400 per month for 11 months.

In the final judgment dissolving marriage, the trial court approved and adopted the special master’s findings of fact and recommendations except as to alimony. Petitioner’s prayer for permanent alimony was denied, but she was awarded rehabilitative alimony in the sum of $400 per month for four years. In addition, the court ordered the respondent to pay the petitioner’s attorneys fees in the amount of $4,500.

In the first appeal, the petitioner contends that the award of alimony should have been permanent alimony and should have been substantially larger, and that the amount of attorneys fees awarded to her attorneys was inadequate. The respondent cross-appeals and asserts that the court erred in extending the rehabilitative alimony to 4 years from the 11 months recommended by the special master, and that the petitioner has sufficient assets with which to pay her attorney.

From viewing the record, we find that it does not appear that the wife’s income upon finishing school and obtaining a job will be sufficient initially to take care of her needs and necessities. There is ample evidence from which the trial judge could find the special master’s recommendation to be clearly erroneous. Under such circumstances, the trial judge had the power to modify the recommendation and increase the period of rehabilitative alimony payments from 11 months to 4 years. See Harmon v. Harmon, Fla.1949, 40 So.2d 209; Kalmutz v. Kalmutz, Fla.App.1974, 299 So.2d 30.

It is well settled that the determination of whether a spouse should be awarded permanent or rehabilitative alimony, or any alimony, is a matter resting within the sound discretion of the trial judge based on the particular facts and circumstances before the court, with due regard for the basic principles of the wife’s need and the husband’s ability to pay. Fesak v. Fesak, Fla.App. 1974, 303 So.2d 47. There appearing to be no abuse of judicial discretion, this court will not substitute its judgment for that of the trial court.

It is also well established that the trial judge has the discretion to grant or deny an application for attorneys fees. Pollack v. Pollack, Fla.App.1973, 282 So.2d 30. No abuse of discretion having been made to appear as to the award of alimony or the award of attorneys in this appeal and cross-appeal, the final judgment of dissolution is affirmed in all respects.

Neither do we find error in the points raised in the petitioner’s second appeal which relates to the furniture and alleged conversion of wedding gifts. The record fails to disclose a clear and unmistakable intention on the part of the respondent husband’s parents to make a gift of the furniture. See Kuebler v. Kuebler, Fla.App.1961, 131 So.2d 211. Further, the record contains sufficient evidence to warrant the court in determining that the husband’s parents were not guilty of conversion of the wedding gifts. See CIC Leasing Corporation v. Dade Linen & Furniture Company, Fla.App. 1973, 279 So.2d 73.

Accordingly, both the final judgment of dissolution of marriage and the order on amended petition for dissolution of marriage and final judgment of ejectment, are affirmed.

Affirmed.


text:
    FIRST MORTGAGE INVESTORS, a Massachusetts Business Trust, Appellant, v. BOULEVARD NATIONAL BANK OF MIAMI, a National Banking Association, Appellee.
    No. 75-590.
    District Court of Appeal of Florida, Third District.
    Feb. 24, 1976.
    Lapidus & Hollander, Miami, for appellant.
    Paul, Landy, Beiley & Yacos and Huber R. Parsons, Jr., Miami, for appellee.

      Before HAVERFIELD and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

First Mortgage Investors, a Massachusetts business trust, herein sometimes referred to as FMI, gave to Boulevard National Bank of Miami a promissory note for $300,000.00 payable in ninety days, with no interest provided for. After the note became due and was not paid, the bank filed an action to recover thereon. The defendant maker filed an answer and counterclaim in which several affirmative defenses were set forth, including a defense of usury, averring the bank had withheld as interest an amount in excess of $50,000.00.

The plaintiff filed a motion for summary judgment, supported by an affidavit of its president stating that the note was given to evidence a loan of $300,000.00 by the bank to FMI; that on the due date of the note $300,000.00 became due and payable thereon; and further stating that on a certain date (approximately one year after the date of the note) the bank had “set off” $60,000.00 of the indebtedness, leaving $240,000.00 due, with interest at 6% per annum from the date of the demand.

In opposition to the motion for summary judgment, the defendant filed an affidavit of its senior vice-president, in which he stated he had personal knowledge of the transaction; that it did not represent a loan of $300,000.00 by the bank to FMI; and that the difference between the face amount of the note and the principal actually lent (which the answer had averred amounted to more than $50,000.00) was interest charged by the bank for the loan.

At the hearing thereon the court struck the defendant’s affidavit on motion of the plaintiff and “sua sponte”; and, holding there was no genuine issue as to any material fact and that the plaintiff was entitled to judgment as a matter of law, entered summary judgment for the plaintiff for $240,000.00, with interest at the legal rate from the date of the note.

On this appeal therefrom by the defendant it is contended the court erred by striking the defendant’s affidavit, and by entering summary judgment for the plaintiff. We find merit therein, and reverse.

We hold the court erred in striking and disregarding the defendant’s affidavit. In doing so the court held the affidavit should be disregarded as not in compliance with the requirements of Rule 1.510(e), F.R.C. P. because it was not made on personal knowledge; did not set forth such facts as would be admissible in evidence or show that the affiant would be competent to testify to matters stated therein; and holding that the contents of the affidavit did not present facts creating a triable issue.

To those holdings of the trial court respecting the defendant’s affidavit we cannot agree. The affiant stated under oath that he had personal knowledge of the transaction. This was not an instance where the affiant was so situated with reference to the transaction that he could not have had personal knowledge of the matters involved. On the contrary, as senior vice-president of the defendant business trust it would not be illogical or inconsistent that he should or could have personal knowledge of a transaction of that magnitude by the trust, as he stated he had. The affiant’s statement that not all of the face amount of the note was received would be admissible in support of the defense of usury pleaded in the answer, and we are unable to observe why a senior vice-president of the business trust, having personal knowledge of the loan transaction, would not be competent to testify in relation to the facts of the loan.

The merit of the appeal by FMI does not depend upon the contents or validity of the affidavit it submitted. Without regard to the defendant’s affidavit, the trial court was in error in holding there was no genuine issue of material fact. The affirmative defense of usury was not dispelled by the plaintiff on its motion for summary judgment.

The plaintiff’s supporting affidavit was not directed to the answer, or to any affirmative defense therein. This is so because 'the plaintiff’s motion for summary judgment and its affidavit (served and filed together) preceded the serving and filing of the defendant’s answer and counterclaim. Those pleadings and papers of the parties were filed on the same date, and the record shows, from the dates of service of the copies, that they crossed in the mail.

In order to be entitled to summary judgment it was incumbent upon the plaintiff to overcome the affirmative defense by presenting evidence sufficient to demonstrate conclusively that the issue of usury, raised by answer, was not present. Williamson v. Clark, Fla.App. 1957, 98 So. 2d 813; Emile v. First National Bank of Miami, Fla.App.1961, 126 So.2d 305; Jenkins v. Graham, Fla.App.1970, 237 So.2d 330; Stringfellow v. State Farm Fire & Casualty Co., Fla.App.1974, 295 So.2d 686; Holl v. Talcott, Ha. 1966, 191 So.2d 40, Opinion on Rehearing, at 47-48. On motion for summary judgment, if the evidence raises any doubt on an issue of material fact, or is such as will permit different reasonable inferences bearing on the existence of such an issue, summary judgment is not proper. Holl v. Talcott, supra; O’Grady v. Wickman, Fla.App.1968, 213 So.2d 321, 324; Dickenson v. Allen, Fla. App.1968, 215 So.2d 747, 749.

Here the affidavit of the president of the plaintiff bank stated that $300,000.00 was due on the due date of the note, from which it could be inferred he represented that the transaction was a loan of $300,000.00. His affidavit then stated that sometime later the bank had “set off” the debt to the extent of $60,000.00, and then claimed only $240,000.00 was due under the note. The transaction involving the “set off” was not explained. Its application, if any, to the usury defense in the “subsequent” answer, was unclear and ambiguous. Consistent with the defendant’s answer, it appeared to concede that the full amount of the collectible loan was not $300,000.00. At most, conflicting inferences were raised thereby as to whether the face amount of the loan had been advanced. Clearly, the issue as to usury raised by the defendant’s answer was not eliminated or dispelled by the plaintiff’s affidavit. Holl v. Talcott, supra, (Opinion on Rehearing, 191 So.2d at 47).

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

      . “4. The note set forth as Exhibit A of the Amended Complaint shows, on its face, a principal amount in the sum of $300,000.00. However, Plaintiff lent and disbursed to Defendant less than the principal amount of the note and took back from the proceeds actually disbursed a discount or bonus in excess of $50,000.00. As a result, Plaintiff has knowingly, willfully, and intentionally reserved, charged, taken and exacted from Defendant for the loan represented by the note set forth in Exhibit A, a rate of interest greater than 25% per annum in violation of the usury laws of the State of Florida [Chapter 687, Florida Statutes, F.S.A.]. The loan represented by the note sued upon was usurious, unlawful and unenforceable and there is no principal or interest due to Plaintiff.”

      . After remand, if judgment is entered on the note or for any amount thereof, reconsideration should be given to the time for commencement of an obligation to pay legal interest.


text:
    Lee RUWITCH and James Seiler, Appellants, v. FIRST NATIONAL BANK OF MIAMI, Appellee.
    No. 75-593.
    District Court of Appeal of Florida, Third District.
    Feb. 24, 1976.
    Horton, Perse & Ginsberg, Miami, for appellants.
    Steel, Hector & Davis and Barry R. Davidson, Miami, for appellee.
    Before HAVERFIELD and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Appellants, Lee Ruwitch and James Seiler, seek reversal of a final judgment awarding attorneys fees in the amount of $15,000 to the appellee, First National Bank of Miami.

This is the second appearance before the court. See Ruwitch v. First National Bank of Miami, Fla.App.1974, 291 So.2d 650, in which opinion this court reversed a money judgment in favor of appellees and the insurance company, Insurance Company of North America, in the sum of $120,000, plus attorneys fees in the sum of $17,500 by denying the right of Insurance Company of North America to recover any sum of money against appellants and holding that the bank was entitled to $22,325.-56.

The court, in so doing, stated at page 653:

“This leaves a remaining question regarding attorneys’ fees. Prior to the trial court’s entry of an order, the parties stipulated at a post-trial conference that $17,500 constituted the reasonable value of attorneys’ fees, based upon a $120,000 judgment. In light of our holding that the Bank is entitled only to a judgment of $22,352.46, this cause will be remanded to the trial court for additional proceedings to set a reasonable fee based on this latter sum.”

The trial court, then, pursuant to the mandate of this court, heard testimony to determine reasonable attorneys fees and entered the judgment herein appealed. While counsel performed extensive and valuable services for the bank, the fee awarded by the trial court does not bear a reasonable relation to the result obtained. We are of the opinion, based on the record and circumstance in this case, that an attorneys fee in the sum of $8,000, based on a $22,356.46 judgment, is reasonable and proper. See Baruch v. Giblin, 1935, 122 Fla. 59, 164 So. 831. The cases are clear that while the opinion of an expert witness testifying on attorneys fees is persuasive, it is not binding on the court in determination of a reasonable fee. Dade County v. Oolite Rock Company, Fla.App.1975, 311 So.2d 699.

Therefore, we affirm in part, reverse in part and remand with directions to modify the amount of attorneys fees consistent with this opinion.

It is so ordered.


text:
    James W. CURLEY, Appellant, v. Diane M. CURLEY, Appellee.
    No. 75-658.
    District Court of Appeal of Florida, Third District.
    Feb. 24, 1976.
    Bruckner, Greene & Manas, Miami, for appellant.
    Gregory B. Hoppenstand, Miami Beach, for appellee.
    Before BARKDULL, C. J., and HEN-DRY and HAVERFIELD, JJ.
   PER CURIAM.

Upon dissolution of a marriage, the mother was awarded the custody of two minor children of the parties, two sons: James W., Jr. (then 15, now 16), and Douglas (then 11, now 12), and the father was required to pay $50.00 a week as support for each of the minor children. Subsequent to the dissolution of the marriage, the oldest son had an altercation with his mother, left her house, and moved in with the father. The father immediately attempted to secure a reconciliation between the older boy and his mother, without success. He thereupon moved for an order of modification, changing the custody of the older son to himself and reducing the amount of child support.

The trial judge awarded temporary custody to the father upon the petition, but at this time denied a reduction in the child support. Several months later, the matter came on for a hearing as to the custody of the older boy. After conferences with the boy and receiving evidence by the parties, the trial judge entered the order here under review, leaving temporary custody of the older son with the father and reaffirming his order declining, to reduce the child support and awarding a minimal attorney’s fee to the wife. This appeal ensued, the husband contending that the award of custody should have been permanent, that the trial judge should have reduced the child support payments and the award of attorney’s fees.

The record indicates that the husband, because of the older boy taking up residence with him was required to move his residence in order for the older son to have sufficient space to accommodate him and to be near to his school, etc. We hold that, because of the age of the older son and under these circumstances, the trial judge should have made the custody of this son permanent with the father and that, upon such custody being made permanent, all child support for this child should have ceased. Goldstein v. Goldstein, Fla.App. 1972, 264 So.2d 49; In Re Gregory, Fla. 1975, 313 So.2d 735; Feldman v. Feldman, Fla.App.1975, 317 So.2d 136; Cf. Simon v. Simon, Fla.App.1975, 319 So.2d 46.

We have examined the appellant’s point as to attorney’s fees and find no abuse of discretion on the part of the trial judge in the award as made.

Therefore, for the reasons above stated, the order here under review is modified to provide permanent custody of the older son in the father and to eliminate the support payments of $50.00 to be made on behalf of the older son, James E. Curley, Jr.

      . The support payments made prior to the effective date of this opinion should not be returned by the wife, but should cease upon the date of the mandate of this court.


text:
    LONG ISLAND INSURANCE COMPANY, Appellant, v. Cassle STUCKEY, Appellee.
    No. 75-648.
    District Court of Appeal of Florida, Third District.
    Feb. 24, 1976.
    Michael P. Weisberg, Miami, for appellant.
    Horton, Perse & Ginsberg; Brumer, Moss, Cohen & Rodgers, Miami, for appel-lee.
    Before PEARSON, HAVÉRFIELD and NATHAN, JJ.
   PER CURIAM.

Affirmed. See Commercial Union Insurance Co. v. Williams, Fla.App.1975, 309 So.2d 617; in accord, see Gateway Insurance Co. v. Butler, Fla.App.1974, 293 So.2d 738.


text:
    Penelope Gay SHEPPARD, Appellant, v. RAMADA INN, INC., a Florida Corporation, Appellee.
    No. 75-763.
    District Court of Appeal of Florida, Third District.
    Feb. 24, 1976.
    Jack R. Maro, Miami, for appellant.
    Daniel Draper, Miami, for appellee.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   PER CURIAM.

Affirmed. See the rule in Estate of Lieber, Fla. 1958, 103 So.2d 192, 196.


text:
    The STATE of Florida, Appellant, v. Carlos Alberto EXPOSITO, Appellee.
    No. 75-808.
    District Court of Appeal of Florida, Third District.
    Feb. 24, 1976.
    Richard E. Gerstein, State’s Atty., and John Lipinski, Asst. State’s Atty., Miami, for appellant.
    Max B. Kogen, Miami, and Geoffrey C. Fleck, Miami, for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

The State of Florida seeks reversal of an order granting defendant’s motion for discharge for failure to bring him to trial within the time prescribed by RCrP 3.-191(g).

In November 1973 defendant, Carlos Ex-pósito, along with Jose Hernandez was informed against on several counts including possession of a controlled substance. After defense counsel requested a continuance and waived speedy trial, the case came on for trial on December 10, 1974 at which time voir dire examination of the jury panel was conducted. On the following day, December 11, the State announced that certain evidence accidently had been destroyed and as a result, upon motions of both the defendant and co-defendant, the trial judge declared a mistrial and a new trial was scheduled for February 19, 1975 and then set over until the next day. On February 20 co-defendant Hernandez and his counsel appeared, but defendant and his counsel were absent. Counsel for Hernandez informed the trial judge that counsel for defendant Expósito was down the hall. Thereupon, the trial judge set April 7 as the new trial date. On March 21 the defendant filed a motion for discharge pursuant to RCrP 3.191(g) on the ground that he had not been brought to trial within 90 days from the date of declaration of mistrial on December 11. The motion was granted. We reverse.

RCrP 3.191(e) clearly provides that a person who is not continuously available for trial is not entitled to be discharged. The record affirmatively demonstrates that defendant and his counsel did not appear (as required) before the court on February 20, 1975 and, thus, defendant was not continuously available.

Accordingly, we reverse the order of dismissal and remand the cause to the trial court for further proceedings.

It is so ordered.

      . “(g) Effect of Mistrial, Order of New Trial. A person who is to be tried again shall be brought to trial within 90 days from the date of declaration of a mistrial by the trial court, the date of an order by the trial court granting a new trial, the date of an order by the trial court granting a motion in arrest of judgment, or the date of receipt by the trial court of a mandate, order, or notice of whatever form from an appellate or other reviewing court which makes possible a new trial for the defendant, whichever is last in time.”

      . “(e) Availability for Trial. The trial of an accused who is not available shall be held in abeyance while such person is unavailable. A person who has not been continuously available for trial during the term provided for herein is not entitled to be discharged; no presumption of non-availability attaches, but if the State objects to discharge and presents any evidence tending to show nonavailability, the accused then must by competent proof establish continuous availablity during the term.”


author: NATHAN, Judge.

text:
    BETHLEHEM STEEL CORPORATION, Appellant, v. CENTEX HOMES CORPORATION, Appellee.
    No. 75-934.
    District Court of Appeal of Florida, Third District.
    Feb. 24, 1976.

      Parker D. Thompson & Sanford L. Bohrer, Paul & Thomson, Miami, for appellant.
    Williams, Salomon, Kanner & Damian, Miami, for appellee.
    Before HAVERFIELD and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   NATHAN, Judge.

This is an interlocutory appeal by Bethlehem Steel Corporation, defendant in the trial court, from a partial summary judgment on liability in favor of Centex Homes Corporation, the plaintiff, in an action for damages for breach of contract.

Centex’s complaint alleged that on or about April 8, 1974, the parties entered into a contract which provided that Bethlehem would furnish, fabricate and deliver steel to Centex at its job site on Miami Beach, for a specific price per unit, per ton. The complaint further alleged that Centex demanded performance, but Bethlehem failed and refused to perform and, therefore, Centex obtained the steel from another party at a higher price and thus suffered damages.

In defense of the action, Bethlehem asserted that in November of 1973, pursuant to discussions between Bethlehem’s salesman, H. W. Major, and Ray Stevens, Vice-President of Construction for Centex, a proposal was transmitted from Bethlehem to Centex. Centex failed to accept within the specified time, but in January 1974, authorized Bethlehem by letter, “to proceed with shop drawings” on the project, with the actual supplying of the steel to be “subject to our receipt of a building per^ mit.” Centex later submitted a purchase order to Bethlehem at its home office in Pennsylvania for approval. Michael J. McCooey, Assistant Manager of Sales for Bethlehem, found the terms of Centex’s purchase order unacceptable and did not intend to accept it because the price was unsatisfactory. McCooey mistakenly initialed the purchase order; the order erroneously “escaped” from his desk and was subsequently processed, approved and returned to Centex in Florida. Immediately upon discovery that the offer was accepted by mistake, Bethlehem so advised Centex and negotiations as to price and delivery schedule were renewed. Allegedly a new agreement was reached and based thereon, Bethlehem transmitted a new proposal to Centex which was not accepted by Centex. Centex then proceeded to purchase steel elsewhere, without demanding delivery of the needed steel from Bethlehem. At no time during the negotiations between the parties had Centex obtained a building permit.

Bethlehem urges reversal for the reasons that there was a unilateral mistake and further, that there was no contract between the parties. Centex argues that the trial court was correct in holding that Bethlehem breached the contract on the theory of anticipatory breach and the rule of law that once there has been an anticipatory breach, one is not thereafter required to demand compliance with the contract. Thus, when Bethlehem advised Cen-tex that it would not perform on the terms set out in the contract, Centex was forced to obtain steel from another company at a price much greater than the Bethlehem contract price.

In our opinion, this case bristles with genuine issues of material fact. One question is whether there was a unilateral mistake on the part of Bethlehem. Under Florida law, equitable relief may be granted on the basis of unilateral mistake which presents triable issues such as whether or not the mistake goes to the substance of the contract or whether there was inexcusable neglect by Bethlehem and detrimental reliance by Centex. Another factual issue is whether or not there was a contract.

The existence of genuine issues of material fact preclude summary judgment in this case. Accordingly, the partial summary judgment on liability is reversed and the cause is remanded to the trial court for further proceedings consistent herewith.

Reversed.

      . Maryland Casualty Company v. Krasnek, Fla.1965, 174 So.2d 541, 543.


text:
    Charles Lee STROZIER, Appellant, v. The STATE of Florida, Appellee.
    No. 75-892.
    District Court of Appeal of Florida, Third District.
    Feb. 24, 1976.
    Rehearing Denied March 23, 1976.
    Phillip A. Hubbart, Public Defender, and Karen M. Gottlieb, Asst. Public Defender, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen., and M. Ann Bradley, Legal Intern, for appellee.
    Before BARKDULL, C. J., and HEN-DRY and HAVERFIELD, JJ.
   PER CURIAM.

Affirmed: See: Watson v. State, Fla. 1966, 190 So.2d 161; Wilson v. State, Fla. App.1974, 305 So.2d 50; Lebowitz v. State, Fla.App.1975, 313 So.2d 473; § 924.33, Fla.Stat.


text:
    Robert Jacob HEISTERMAN, Appellant, v. The STATE of Florida, Appellee.
    No. 75-974.
    District Court of Appeal of Florida, Third District.
    Feb. 24, 1976.
    Rehearing Denied March 23, 1976.

      Quinn & Payne, Key West, for appellant.
    Robert L. Shevin, Atty. Gen., and Ira Loewy, Asst. Atty. Gen., for appellee.
    Before PEARSON, HENDRY and NATHAN, JJ.
   PER CURIAM.

The appellant was found guilty by a jury of: (1) assault with intent to commit murder in the first degree, and (2) shooting into an occupied dwelling. He received a sentence of five years in the state prison on the first charge and a sentence of five years probation on the second charge, the sentences to run consecutively.

Six points have been raised on this appeal. Each will be discussed briefly in the order presented. The first point urges error upon the denial of defendant’s motion to dismiss the information on the ground that the information does not state sufficient facts. See Hamilton v. State, 129 Fla. 219, 176 So. 89, 112 A.L.R. 1013 (1937). We hold that the trial judge properly considered the Statement of Particulars at the time the motion was presented. See State v. Davis, Fla.1971, 243 So.2d 587. There was no error in denying the motion to dismiss the information. See State v. Moss, Fla.App.1968, 206 So.2d 692.

The second point questions the sufficiency of the evidence to support the verdict. This point is argued with the third point, which urges that the cumulative effect of all the evidence raises a doubt as to che defendant’s mental competency botn at the time of the offenses and the time of trial. Neither of these points presents reversible error. See Martin v. State, Fla. App.1975, 323 So.2d 666. It should be noted that these points were not presented in the trial court. See State v. Barber, Fla. 1974, 301 So.2d 7.

Appellant’s fourth point challenges the propriety of the charge to the jury. In view of defendant’s failure to object to the charge, either in full or in any particular, the point does not present reversible error. See FAR 6.7(g).

The fifth point claims that the defendant did not receive a fair trial because of the vigorous cross-examination he sustained when he took the stand. Our reading of the record shows a single objection to cross-examination and convinces us that the cross-examination was proper. See Cross v. State, 96 Fla. 768, 119 So. 380 (1928).

The sixth point urges that the facts proved only one criminal act (i.e., the shooting) and, therefore, that the defendant may not be convicted of two separate offenses because of the single criminal act. We agree and reverse upon the authority of Cone v. State, Fla.1973, 285 So.2d 12; and Yost v. State, Fla.App.1971, 243 So.2d 469. Accordingly, we reverse the judgment and sentence as to the charge of shooting into an occupied dwelling in violation of Fla.Stat. § 790.19.

The judgment and sentence on count one is affirmed.

Affirmed in part and reversed in part.


author: SMITH, Judge. MILLS, Judge

text:
    Robert TUTTLE and Loretta Tuttle, his wife, d/b/a Triple S. Beachwear, Appellants, v. DIVISION OF ADMINISTRATION, STATE of Florida DEPARTMENT OF TRANSPORTATION, Appellee.
    No. X-249.
    District Court of Appeal of Florida, First District.
    Feb. 5, 1976.
    Rehearing Denied March 22, 1976.

      Stanley J. Solomon, of Caputo & Solomon, Holly Hill, for appellants.
    Geoffrey B. Dobson, George L. Waas and Winifred Sheridan Smallwood, Tallahassee, for appellee.
   SMITH, Judge.

The owners received a disappointing verdict in this condemnation case. The trial court entered judgment on the verdict and the owners appealed. The only element of compensation disputed at the trial was that of business damage cognizable under § 73.071(3) (b), F.S., 1973. On that subject the condemning authority offered no opinion evidence either that no damage was sustained or that it was sustained in a specific amount. We are asked by the appealing owners to apply to their benefit the rule of City of Jacksonville v. Yerkes, 282 So.2d 645 (Fla.App. 1st, 1973), cert. den. 291 So.2d 9 (Fla.1974), that a jury is powerless to award less than the amount of severance damages estimated by the owner’s opinion witness when the condemnor offers no such witness.

Appellants leased and operated a sundries store in a small Daytona Beach shopping center for more than the statutory five-year period. A taking to widen the road deprived appellants of parking spaces previously available to their patrons. That taking, appellant Tuttle testified, will cost his business at least 70% of the profits it otherwise would have earned over the remaining 2(4 years of the lease, resulting in business damages he estimated at $80,000. A certified public accountant testified that appellants’ business damage — assuming Tuttle’s estimate of a 70% reduction in business — would be $64,000. An expert accountant produced as a witness by appellee Department of Transportation expressed no opinion of the dollar amount of business damage sustained but stated, as did appellants’ accountant witness, that the average net annual income of appellants’ business was $12,550. The jury awarded appellants $12,550 for business damage. Appellants assert on appeal that they were entitled to a directed verdict in the minimum amount of $64,000 or, alternatively, a new trial.

It is unnecessary that we reexamine our decision in Yerkes in the light of its criticism in Behm v. Div. of Admin., State Dept. of Transp., 292 So.2d 437 (Fla.App. 4th, 1974). Our Yerkes holding, that the condemnor must pay the lowest estimate of severance damage given by any expert witness even if the condemnor offers no such testimony of its own, was at least in part a consequence of the State’s obligation to pay severance damages as part of the full compensation to be made by the taking of private property. Fla.Const., Art. X, § 6; Daniels v. State Road Dept., 170 So. 2d 846, 851 (Fla. 1964). It is debatable whether the condemning authority has a burden of proof, in the usual sense of the words, in respect to severance damages. Compare City of Tampa v. Texas Co., 107 So.2d 216 (Fla.App. 2d, 1958), cert. disch. 109 So.2d 169 (Fla.1959), and Rice v. City of Ft. Lauderdale, 281 So.2d 36 (Fla.App. 4th, 1973), cert. den. 289 So.2d 735 (Fla.1974), with Parker v. Armstrong, 125 So.2d 138 (Fla.App. 2d, 1960), cert. den. 133 So.2d 321 (Fla.1961), and Jones v. City of Talla hassee, 304 So.2d 528 (Fla.App. 1st, 1974), cert. pending (Case # 46,719). Indisputably, however, the condemning authority has no burden to prove, nor even to estimate [compare Rice, 281 So.2d at 38-39] or to “go forward” with evidence concerning [compare Jones, 304 So.2d at 533], “the probable damages to such business which the denial of the use of the property so taken may reasonably cause.” Sec. 73.-071 (3) (b), F.S., 1973. The owner must affirmatively plead and prove his entitlement to the statutory damages, and the condemning authority has no risk of nonper-suasion in the matter. See State Road Dept. v. Abel Investment Co., 165 So.2d 832 (Fla.App.2d, 1964), cert. den. 169 So. 2d 485 (Fla. 1964).

Regardless, then, that severance damages and business damages are often spoken of in the same breath [e. g., § 73.071(3) (b), F.S., 1973] and that they have confusing similarities [see LeSuer v. State Road Dept., 231 So.2d 265 (Fla.App. 1st, 1970)], the owner’s entitlement to business damages arises from a source entirely different from the constitutional source of full compensation. Moreover, because the burden of proof is allocated differently, different consequences result from the condemning authority’s failure to produce opinion testimony on business damages anticipating or countervailing that of the owner.

We decline to extend the Yerbes rule to disputes over business damages. To do so would render an owner’s abundant estimate of his own business damages susceptible only to direct contradiction by a stranger to his business, impervious to cross-examination and immune to the moderating influence of a jury’s common sense. We hold, notwithstanding the absence of opinion testimony naming a dollar amount of business damages less than the minimum contended for by the owners, that a jury verdict for less may be rer turned and should be sustained if it has any rationally ascertainable relationship to any evidence in the case.. The jury may not, however, entirely ignore the evidence and award no damages in a case in which all of the evidence is that business damages were sustained and only the amount is in question. Sallas v. State Road Dept., 220 So.2d 378 (Fla.App. 1st, 1969); Upton v. State Road Dept. of Transp., 270 So.2d 470 (Fla.App. 1st, 1972).

The verdict in this case awarding as business' damages an amount equal to one year’s average net profit was not wholly without support in the evidence. The trial court declined to disturb the verdict and we will not do so.

In the recent case of Stewart v. Alachua County, 320 So.2d 33 (Fla.App. 1st, 1975), we were asked to decide, within the terms of the Y erkes decision, whether expert testimony for the condemnor that no business damage was sustained established the base of a range within which the jury could award some but not all the damages sought. Citing Sallas, we answered affirmatively and stated that the “jury’s verdict must be within the range of evidence adduced at trial, and be an amount not lower than lowest nor higher than highest figures supported by the evidence.” Today’s decision refines but does not overturn Stewart. Business damage verdicts must indeed be supported by evidence adduced at trial and, when opinions .offered in behalf of the condemnor and the owner establish a range of damage estimates in terms of dollars, the jury is not authorized to disregard the evidence by awarding less than the condemnor in effect admits should be paid or more than the owner in effect demands. Today’s decision is simply that a business damage verdict supported by a defensible view' of the evidence may be sustained in an amount less than the owner’s demand when the condemnor offers no opinion testimony fixing the base of a range of estimates.

Affirmed.

RAWLS, Acting C. J., concurs.

MILLS, J., dissents.

MILLS, Judge

(dissenting).

I dissent on authority of Sallas v. State Road Department of Florida, 220 So.2d 378 (Fla.App. 1st, 1969). Also, see opinion of this Court, 320 So.2d 33, opinion filed October 8, 1975, Stewart v. Alachua County. I would reverse and remand for a new trial on the sole issue of business damages.


author: MILLS, Judge.

text:
    FLORIDA DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, DIVISION OF YOUTH SERVICES, BUREAU OF FIELD SERVICES, Appellant, v. In the Interest of R. M. A., a minor, and C. B. A., a minor, Appellees.
    No. X-83.
    District Court of Appeal of Florida, First District.
    Feb. 27, 1976.
    Mary Clark, Tallahassee, for appellant.
    William Randall Slaughter, II, Live Oak, for appellees.
   MILLS, Judge.

The Division of Youth Services appeals from an order awarding an attorney a fee for services rendered as guardian ad litem for two minors at a detention hearing, and directing the Division to pay the fee. The issues are whether the court had authority to direct the Division to pay the fee, and whether the court erred in entering the order where the Division was not served with nor given an opportunity to be heard on the motion for a fee. The court erred in both instances.

The record shows that the guardian ad litem did not serve a copy of his motion on the Division, and that the court entered its order without notice to the Division. This is a total lack of due process.

There is neither statutory authority for the award of a fee to a guardian ad li-tem in a juvenile proceeding such as the one here nor authority for the court to direct the Division to pay the fee.

We reverse the order.

RAWLS, Acting Chief Judge and SMITH, J., concur..


author: WALDEN, Chief Judge.

text:
    Joseph T. GARO, Appellant, v. Agnes Mae GARO, Appellee.
    No. 74-942.
    District Court of Appeal of Florida, Fourth District.
    Jan. 9, 1976.
    Rehearing Denied March 23, 1976.
    Joseph T. Garo, in pro. per.
    No appearance for appellee.
   WALDEN, Chief Judge.

Respondent husband appeals an order holding him in contempt for non-payment of alimony. ' The trial court made no specific finding that the husband was able to pay the amounts, but did find respondent to be in wilful default. In Ratner v. Ratner, 297 So.2d 344 (3d DCA Fla.1974), the court held:

“It is well established that a contempt order for refusing to obey an order of the court must be based on an affimative finding that it is within the power of the defendant to obey the order and' such finding must be made to appear on the face of the order of commitment, else it is void.”

We feel this statement is unsupported insofar as it would require a petitioner to furnish proof the respondent is able to pay.

If a respondent has reason to avoid the charge of contempt, the burden is upon that person to present such evidence of inability, upon which evidence the court will then rule. The decision in Ratner was based upon State ex rel. Trezevant v. McLeod, 126 Fla. 229, 170 So. 735 (1936):

“Under the most respectable authority on contempt that we have been able to find, a 'process’ contempt commitment for refusing to obey an order of court must be based on an affirmative finding that it is within the power of the defendant to obey the order, and such finding must be made to appear on the face of the order of commitment, else it is void. Ex parte Cohen, 6 Cal. 318; Repalje on Contempt par. 129.” Id. at 230-231, 170 So. at 735.

but the Trezevant court continued:

“[T]he order here [based on a refusal to abide by an order requiring alimony payments] is not an order of that nature,” [being a contempt which required a definite sentence].

The statement in Trezevant was dicta, as the decision turned upon the illegality of entering an indefinite sentence for the contempt; the’requirements of contempt order findings in alimony default cases was more definitively explained in a later Supreme Court case, Yandell v. Yandell, 160 Fla. 164, 33 So.2d 869 (1948):

“Upon a rule to show [c]ause for the non-payment of alimony, the burden of proof and of proceeding rests upon the one who is in default after it has been established that the payments had not been made in conformity with the previous award.
“Upon the evidence on the hearing before the Chancellor it was established that the petitioner was making $135.00 per month and that he had sold his automobiles and applied the proceeds to the payment of liens upon them and paid the rest to the wife. It appears from the record that there had been previous hearings concerning the non-payment of the alimony and that the proceedings before the chancellor involving contempt were more in the nature of an inquisition, prosecution by the wife, as to the ability of the husband to pay, which inquisition failed to reveal that the inability of the alleged contender to obey the court’s decree was voluntarily brought upon himself, or due to his own fault, and it likewise failed to reveal that the alleged contemner was able to perform the decree of the court.” (Emphasis supplied.) Id. at 166, 33 So.2d at 870.

The contempt order was reversed. Yandell stands for the proposition that, if the respondent presents evidence of inability, then the petitioner must successfully rebut by presenting evidence of ability. That no such evidence of ability was entered in the case at hand is not error, as the respondent, who was not present but who was represented by counsel, presented no factual evidence of inability. The court then found the default was wilful.

We hold that, if a petitioner alleges non-payment of alimony, and that non-payment is proven, there is a prima facie case of contempt. If respondent does not avoid the charge, the trial court is justified in entering an order of wilful contempt. In English v. English, 117 So.2d 559 (3d DCA Fla.1960), the court clearly bridged the problem of the burden of proof and the need to show wilful default:

“. . . [P]roof of unpaid arrears of alimony will not entitle an applicant, as a matter of right, to an order of commitment of a person for contempt, as such an application is addressed to the discretion of the court. A respondent to a rule to show cause will be adjudged in contempt when the court determines that the arrearage in alimony is the result of a wilful failure to comply with the order for its payment. Orr, for Use and Benefit of Walton v. Orr, 141 Fla. 112, 192 So. 466, 467. A willful default implies that there was capacity and financial ability to pay. Yandell v. Yandell, 160 Fla. 164, 33 So.2d 869; 6 Fla.Jur., Contempt § 53.” (Emphasis supplied.) Id. at 561.

A finding of wilful default implies capacity to pay, and in Naster v. Naster, 163 So. 2d 264 (Fla.1964), the Supreme Court held:

“After an award of alimony becomes final the chancellor has the power to enforce it in a contempt proceeding. The isstie then presents the question whether the husband, has willfully failed to comply. The requirement of a wilful- default implies that the husband has the capacity and financial ability to pay and that he has willfully and intentionally disregarded his obligation . . . In a contempt proceeding when the failure to pay has been established the husband has the. burden of proving that his faihire has not been willful. In exercising his judicial discretion in the contempt proceeding the chancellor may take into consideration the husband’s inability to pay . .” (Emphasis supplied.)’ Id. at 266.

There are numerous authorities that hold a respondent must carry a burden of proving inability to comply with a court order on alimony. 17 Am.Jur.2d Contempt § 61 (1964):

“A person who seeks to satisfy the court that his failure to obey an order or decree was due entirely to his inability to render obedience, without fault on his part, must prove such inability. In other words, the burden of proving inability to comply with the order allegedly violated is on the alleged contemnor.”

6 Fla.Jur., Contempt § S3 (1956):

“§ 53. In General; Inability To Comply With Judgment.
“Where the basis of an accusation of contempt is the disobedience of an order, it is essential to the court’s right to punish that the accused have ability to comply with the order, and his inability, when not due to fault on his part, is generally regarded as a good defense. Hence, an order of commitment for contempt for violation of an order is void if it is not shown that it was within the power of the alleged contemner to obey the order [that is to say if the alleged contemner has given evidence of inability]. But the burden of proving that the failure to obey the order or decree was due entirely to the inability to obey, is on the alleged contemner.” (Emphasis added.)

Annot. 53 ALR2d 591, Pleading and Burden of Proof in Contempt Proceedings, As to Ability to Comply with Order for payment of alimony or child support (1957) :

“[A] majority of jurisdictions expressly hold or recognize that in contempt proceedings based upon failure to comply with a court order requiring the payment of alimony or child support, the burden rests upon the alleged contemnor to prove his inability to comply with the order.
“. . . Although some courts have given no reason for their holding that the burden rests upon the alleged contem-nor to prove his inability to comply with an alimony or child support order, many of them have expressly based the rule upon the theory that when the movant proves entry of the order and default in payment, a prima facie case of contempt is thereby made.” ’

See State ex rel. McKee v. McKee, 237 Or. 583, 392 P.2d 645 (1964); Rossen v. Rossen, 2 Ohio App.2d 381, 208 N.E.2d 764 (1964).

In essence, the original judgment of dissolution, based on evidence offered by the parties, adjudicated the question as to their respective needs and ability. Petitioner here does not have to re-prove respondent’s ability to pay, any more than she would have to re-prove her need. In finding the respondent guilty of wilful contempt, the trial court has viewed the evidence and implicitly recognized respondent’s ability to pay as reflected by the order of dissolution and unaffected by any evidence offered by respondent.

Affirmed.

CROSS and DOWNEY, JJ., concur.


author: OWEN, Judge.

text:
    Arthur G. LEONHARDT, Jr., as Executor of . the Estate of Ethel L. Crawford, Deceased, et al., Petitioners, v. Margaret C. CAMMACK, Respondent.
    No. 75-604.
    District Court of Appeal of Florida, Fourth District.
    Feb. 20, 1976.
    Rehearing Denied March 23, 1976.
    Michael R. Walsh, Orlando, for petitioners.
    Jack B. Nichols of Nichols & Tatich, and Calvin J. Faucett, Orlando, for respondent.
   OWEN, Judge.

By a petition for writ of certiorari petitioners seek review of certain interlocutory orders which (1) denied motions for protective orders and (2) denied a motion to dismiss and a motion to strike as to one of the petitioners. We treat here only the matters relating to denial of protective orders as there exists a full, adequate and complete remedy by appeal for review of the order denying the motion to dismiss and motion to strike.

Of the original five-count complaint filed by respondent/real estate broker, only Count I remains. Simply stated, Count I alleges that respondent was employed on May 21, 1970 by petitioner/Leonhardt to procure a purchaser for certain real property owned by the estate of Ethel L. Crawford, deceased; that pursuant to such employment respondent did, between May 21, 1970 and June 2, 1970, procure a purchaser ready, willing and able to purchase said property upon the price, terms and conditions agreed.upon by petitioner/Leonhardt; that when respondent so informed Leon-hardt of this fact on June 2, 1970, he did, on the following day direct her not to proceed further in the matter; that at such time respondent/real estate broker had fully earned the agreed commission for which she was then suing, the same not having been paid. The issues made by the pleadings are simple: was there an employment contract and, if so, did respondent/Cam-■mack earn her commission prior to being discharged. The employment is alleged to have occurred on May 21, 1970, the discharge on June 3, 1970.

The extensive discovery sought by respondent (as to which the petitioners’ several motions for protective orders were addressed) related to matters that were clearly not relevant to the subject matter of the pending action. It was error to deny the petitioners’ motions to quash and motions for protective orders to the extent that the discovery sought inquiry or production of documents on matters not relevant to the above issues.

Certiorari is granted and the orders of March 14 and March 27, 1975 respectively are quashed and this cause remanded for further proceedings not inconsistent herewith.

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

      . See, Cammack v. Lconhardt, 302 So.2d 170 (Fla.App. 4th, 1974).


author: DOWNEY, Judge.

text:
    CITY OF POMPANO BEACH, a Municipal Corporation, et al., Appellants, v. Sam DANIELS, Appellee.
    No. 74-1048.
    District Court of Appeal of Florida, Fourth District.
    Feb. 27, 1976.
    Rehearing Denied March 23, 1976.
    Donald C. Roberge, of Law Office of S. Charles Adams, Pompano Beach, for appellants.
    Fred Haddad, of Sandstrom & Hodge, Fort Lauderdale, for appellee.
   DOWNEY, Judge.

This is an appeal from a final judgment granting appellee’s petition for a writ of certiorari and directing that appellee be restored to his position of employment with the appellant city.

On April 13, 1970, appellee Daniels began working as a Recreational Activities Supervisor with the appellant City of Pompano Beach. In September 1973, the City Commission of Pompano Beach for budgetary reasons decided to abolish one of two such positions and to create a new position known as Recreation Area Manager, with additional duties and a higher pay grade classification.

Pursuant to the requirements of City Ordinance 11.98.1, appellee’s immediate supervisor requested the City Personnel Director to certify which of the two Recreational Activities Supervisors was to be discharged. Appellee was certified as the one to be released because he had the least total continuous time served with the city. Upon being so notified appellee wrote to the City Manager requesting him to help appellee get a copy of his personnel folder and determine the reason for his release. In response to this request the City Manager held “an informal hearing” attended by ap-pellee and his counsel and confirmed appel-lee’s release. Thereupon, appellee filed a petition for writ of certiorari in the circuit court seeking review of the City Manager’s “affirmance” of the appellee’s release.

The circuit court entered an order “deferring” the matter and directing that the city furnish appellee with the reasons for his discharge and then grant him a hearing regarding those reasons. Appellants complied with said order and again the City Manager confirmed appellee’s release. In due course the final judgment appealed from, directing appellee’s reinstatement, was entered. • The circuit court concluded that appellee had been employed in the particular job slot longer than the other supervisor and thus was entitled to retain his position.

In our judgment we need not reach the merits of the controversy because we conclude the.decision to discharge appellee from city employment was not subject to review by certiorari.

Not every action taken by an administrative agency is reviewable by certio-rari. When the action taken is the result of notice and a hearing and is dependent upon the showing made therein, the action becomes judicial or quasi judicial, as distinguished from purely executive, and such action is subject to judicial review. DeGroot v. Sheffield, Fla.1957, 95 So.2d 912; Bloomfield v. Mayo, Fla.App.1960, 119 So. 2d 417. Consequently, if the charter or ordinances of the City of Pompano Beach required that a municipal employee receive a hearing prior to the abolition of his position, then the ultimate judgment of the city would be subject to judicial review by cer-tiorari. For example, if appellee had been dismissed or discharged for disciplinary reasons he would have been entitled to a hearing as provided by § 53(14) of the Pompano Beach City Code. However, no provision in the Pompano Beach City Charter or Code mandates a hearing with regard to the discharge of a classified employee if his position has been abolished. This distinguishes the present case from DeGroot v. Sheffield, supra (see 95 So.2d at 915).

Appellee contends that pursuant to Ordinance 11.98.1, he was entitled to retain his job and that the person holding the other supervisor’s job should have been discharged. If his contention is correct his remedy would seem to be by an original action against the city to enforce his rights under the ordinance. In any event, we hold that he had no right to review the city’s executive decision by petition for writ of certiorari in the circuit court.

For the foregoing reasons the circuit court’s final judgment is reversed and the cause is remanded with the direction that the court dismiss the petition for writ of certiorari.

Reversed and remanded with direction.

CROSS and MAGER, JJ., concur.


author: MORROW, RUSSELL O., Associate Judge.

text:
    In re the MARRIAGE OF Ned S. STEVENS, husband and Patricia Stevens, wife.
    No. 75-1006.
    District Court of Appeal of Florida, Fourth District.
    Feb. 27, 1976.
    Rehearing Denied March 23, 1976.
    A1 Frier, West Palm Beach, for appellant.
    Donald R. De Renzo, Boca Raton, for ap-pellee.
   MORROW, RUSSELL O., Associate Judge.

This is a timely appeal by the appellant-husband from a final judgment of dissolution of marriage.

The husband (42) and the wife (40) were married on October 9, 1964 and separated on November 17, 1973. The parties have two adopted children, ages 4 and 6. The husband is a medical doctor and prior to the marriage, the wife was an active registered nurse. The parties own certain improved real property jointly.

The question raised was whether the Final Judgment was within the bounds of judicial discretion.

Except for two items, the learned Trial Judge was eminently correct in his decisions. We find that the award of $700.00 per month for alimony and $400.00 per month for each child is not supported by the record. The alimony is hereby reduced to $550.00 per month and the child support is reduced to $250.00 per month for each child.

Except as stated herein the Final Judgment is in all other respects

Affirmed.

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


text:
    Robert R. FRANK, as Trustee, Appellant, v. LAND SERVICES, INC., et al., Appellees.
    No. 74-683.
    District Court of Appeal of Florida, Second District.
    Feb. 20, 1976.
    Rehearings Denied March 23, 1976.

      Peter Strelkow, of Frank, Strelkow & Gay, Miami Beach, for appellant.
    John W. Kearns, Miami, and J. Michael Swaine, Sebring, for appellees Land Services, Inc., and Land Services Sebring, Inc.
    J. Hardin Peterson, Jr., of Peterson, Carr, Harris & Seacrest, Lakeland, for ap-pellees Orange Blossom Estates, Anna De-vinsky, Dian Devins and Imperial Corp.
   PER CURIAM.

The facts of this complex litigation need not be stated for purposes of disposing of this appeal. The only issue which merits discussion pertains to the priorities between Robert R. Frank and the Orange Blossom Group in the proceeds of the mortgage foreclosure. In this respect, we hold that the court below erred in holding that the interest of Robert R. Frank in the mortgages securing the payment to him of $32,000 was subordinate to the interests of the other mortgagees.

The settlement agreement entered into on October 3, 1972, between all of the parties reflects an intent to give Frank security under the mortgages equal in dignity to the other mortgagees and renders the authorities cited by the Orange Blossom Group inapplicable to this case. Cf. Kissimmee Everglades Land Co. v. Carr, 1924, 88 Fla. 387, 102 So. 335. Our holding does not affect any payments previously made to the Orange Blossom Group because there was nothing to prevent the mortgagor from making payments on whichever promissory note it pleased.

The judgment is affirmed in all respects, except that Frank shall be entitled to share in the proceeds of the mortgage foreclosure on a pro rata basis with the other mortgagees.

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


author: GRIMES, Judge.

text:
    James E. McDANIEL et al., Appellants, v. LAWYERS’ TITLE GUARANTY FUND, a corporation, Appellee.
    No. 75-475.
    District Court of Appeal of Florida, Second District.
    Feb. 20, 1976.
    Rehearing Denied March 23, 1976.

      James M. McDaniel, of Moore, McDaniel & Tsonas, Clearwater, for appellants.
    Robert R. Tench, Clearwater, for appel-lee.
   GRIMES, Judge.

This is a close case involving a suit upon a title insurance policy.

In connection with their purchase of land from Mr. and Mrs. Skinner, appellants were issued a title insurance policy by Lawyers’ Title Guaranty Fund (Fund) which guaranteed that they were the fee simple owners of the property. It later came to the attention of the appellants that Florida Power Corporation owned an easement across the east edge of the property for the purpose of maintaining a single pole electric power transmission line. Even though the easement was recorded, there was no reference to the easement in either the Skinner deed or in the title insurance policy. No survey of the property was made in connection with the purchase. It was agreed that if a survey had been made, it would have reflected the existence of the power line running across the edge of the property.

. The appellants saw the power line when they purchased the land, but they contend that they did not know that the line was within the boundaries of the property. This fact only became known when a survey was made in preparation for the sale of soil material from the land. Appellants contend that they relied upon the representations of the policy concerning title when they purchased the land. Upon these facts, the court entered summary judgment for the Fund.

The pertinent provisions of the title insurance policy are as follows:

“IN CONSIDERATION of the above named attorney at law (or firm of attorneys at law) having qualified as and being a member (or members) of LAWYERS’ TITLE GUARANTY FUND, LAWYERS’ TITLE GUARANTY FUND (a business trust under the provisions of the Declaration of Trust filed with the Secretary of State of Florida, at Tallahassee, Florida, on March 22, 1947, and any amendments to the Declaration of Trust) subject to the Conditions herein, guarantees to the Owner named above, the Owner’s legal representative, heirs, and/or devisees, that the estate or interest of the Owner specified in Schedule A hereof in the real estate described in said Schedule A is free of encumbrances, liens, and other objections, except such encumbrances, liens and other objections as are referred to in Schedule B hereof; and, subject to the Conditions herein, will pay to the Owner all loss or damage, in an amount not to exceed the amount of the declared value of the property, as stated above, the Owner may sustain because of encumbrances, liens, or other objections on or to the estate or interest of the Owner that are not excepted in Schedule B (or excluded in the Conditions) hereof. . . .
* * * * * *
SCHEDULE A
>K ifc ijs jjt
SCHEDULE B
“This opinion and guarantee, in addition to any exceptions in the description in Schedule A-3 hereof, is subject to :
1. All taxes for the year of the effective date of this opinion and guarantee, unless noted here that such taxes have been paid.
2. Rights of persons in possession, other than the Owner.
3. Facts that an accurate survey or personal inspection of the property disclosed or would have disclosed.
4. Unrecorded labor, mechanic, or ma-terialman liens.
5. Zoning and/or other restrictions and prohibitions imposed by governmental authority.
6. Easements and other encumbrances appearing in the plat or drawings referred to under Schedule A-3. Other restrictions, easements and reverter rights, as follows: (If none, so state; if any, copy or make accurate reference thereto.) NONE

The trial judge predicated his ruling upon the fact that the power poles were visible and in actual possession of Florida Power Corporation within the legal meaning of that term at the time the title insurance policy was issued. With due respect for the logic of his position, we are persuaded to reverse.

A policy of title insurance is like any other kind of insurance in the sense that any ambiguity or any uncertainty in the exceptions in the policy will be strictly construed against the insurer. Goode v. Federal Title and Insurance Corporation, Fla.App.2d, 1964, 162 So.2d 269. Here, the policy guaranteed that appellants owned fee simple title subject to specifically enumerated encumbrances, and the word “none” was inserted in Schedule B of the policy where any such encumbrances were to be listed. Yet, Schedule B otherwise seeks to limit liability to the extent of certain exceptions therein, and the second and third exceptions if considered together would appear to exclude liability under the facts of this case. Considered as a whole, we believe the policy is ambiguous and fails to give the insured the information he needs’ concerning the true status of the title.

The man on the street buys a title insurance policy to insure against defects in the record title. The title insurance company is in the business of guaranteeing the insured’s title to the extent it is affected by the public records. The exceptions set forth in Schedule B refer generally to situations which may. affect the title but which would not be reflected by an examination of the public records. A title insurance company has no other feasible method of ■protecting itself from these circumstances, but here the Fund totally overlooked the recorded easement of the Florida Power Corporation.

As this court held in Guarantee Abstract & T. Ins. Co. v. St. Paul F. & M. I. Co., Fla.App.2d, 1968, 216 So.2d 255, before the rights of parties in actual possession can be excepted from the coverage of a title insurance policy, the circumstances reflecting the possession should be such as would be apparent to a person who visited the property. The appellants assert that they did not know that the power lines crossed the property. They affirmatively contend that they relied upon the guarantee of the policy that there were no recorded encumbrances against the property. In the face of this positive but inaccurate assurance, we are unwilling to hold as a matter of law that the appellants bore the risk of this error simply because they chose not to obtain a survey. In light of the purpose to be served by the exception relating to the requirement for a survey, we construe it as applicable only to those defects in the title which are not ascertainable from the public records or so obvious that a reasonable person upon inspection of the premises should perceive the encumbrance.

In reaching our conclusion, we have not ignored Van Ness v. Royal Phosphate Co., 1910, 60 Fla. 284, 53 So. 381. In that case, Van Ness had given a railroad company an easement across his property. When Van Ness sold the property, he failed to except the easement from the covenants of his warranty deed. The purchasing phosphate company later sued Van Ness for damages on his warranty, because it was prevented from extracting -the minerals from under the easement. The opinion does not reflect whether the easement was recorded, though dicta in a prior opinion involving the same easement suggests that recording had taken place. The court apparently reasoned that since the tracks had been laid for many years, the purchaser must have known of the existence of the easement and fixed its price with reference to the condition of the land at the time of the purchase. Therefore, the court held that the purchaser could not take advantage of the grantor’s mistake in failing to except the easement from the covenants of his warranty.

Van Ness is distinguishable in two particulars. First, the case was a suit on the covenants of warranty rather than one involving the interpretation of the terms and provisions of a title insurance policy. Second, there is no suggestion that there could have been any doubt in the mind of the purchaser that the railroad track ran across the subject property. Here, the appellants assert that even though they saw the power line, they were only concerned with obtaining a certain quantity of raw acreage and didn’t realize that the line was within the east boundary of the property.

In Overholtzer v. Northern Counties Title Ins. Co., 1953, 116 Cal.App.2d 113, 253 P.2d 116, a title insurance policy had been issued to Overholtzer which failed to except a recorded easement over the subject property. The easement was for the purpose of maintaining a water pipe across the northerly boundary. Though the pipe was supposed to be underground, it was exposed in several places. Overholtzer had been advised of its existence and told that it led to the property of a neighboring owner. However, he did not know that the pipeline had been constructed pursuant to the grant of an easement. In upholding a recovery against the title company, the court said:

“The title company next points to one of the exceptions contained in the policy to the effect that the company does not insure against ‘Any facts which a correct survey and inspection of said land would show,’ and contends that it was entitled to a finding as to what an inspection would show. The evidence is conflicting as to what an inspection would have shown. This contention is simply another way of stating the reliance argument. . . . If . . . the Overholtzers acted reasonably in relying on the policy and reasonably believed, based on the terms of the policy, that there was no easement, then, obviously, inspection would not have disclosed the existence of the easement. The court has found reliance, and, this being so, failing to find on what an inspection would have disclosed was not error.”

The significance of the California decision to the instant case is the emphasis on reliance. If it is shown that the appellants had actual knowledge that Florida Power Corporation had an easement over their property, then it could not be said that they relied upon the Fund’s policy in making their purchase. Likewise, since the existence of the power line would ordinarily be sufficient to put a person upon notice to make an inquiry as to whether an easement existed, if the line crossed the middle of the subject property the appellants could not reasonably say that they did not know or should not have known of the existence of the easement. However, since the power line traversed the edge of the property, it does not follow that a reasonable person must be held to the constructive knowledge that the easement was inside the boundary line. In Atlantic Mortgage & Finance Co. v. Hamilton, 5th Cir. 1930, 40 F.2d 583, the Fifth Circuit Court of Appeals held that a purchaser’s knowledge of the existence of a sidewalk when taking an option to purchase some lots did not impute to him notice that the sidewalk was on the north ten feet of the lots themselves. In that case arising out of Florida, the purchaser was permitted to recover his option money where the sidewalk was laid pursuant to a recorded easement and the option agreement failed to except the easement as an encumbrance upon the title. But see Florida Power & Light Company v. Rader, Fla.App.4th, 1975, 306 So.2d 565.

One of the reasonable expectations of a policyholder who purchases title insurance is to be protected against defects in his title which appear of record. See Pruett v. Mississippi Valley Title Insurance Co., Miss.1973, 271 So.2d 920. Therefore, it cannot be said as a matter of law that appellants .were not entitled to rely upon the Fund guarantee that there were no recorded easements upon the property.

The summary judgment is reversed, and the case is remanded for trial on the issue of whether the appellants reasonably relied upon the Fund policy that there were no defects in the record title to the property.

McNULTY, C. J., and BOARDMAN, J., concur.

      .Schedule A contained the name of the owners, the description of the property and a statement that the estate or interest of the owner covered by the document was fee simple.

      . All of the policy which is quoted above was part of the printed form except for the word “NONE” which was typed following the sixth item in Schedule B.


author: SMITH, Judge.

text:
    Lillie B. RADER, Appellant, v. OTIS ELEVATOR COMPANY, a corporation, Appellee.
    No. V-430.
    District Court of Appeal of Florida, First District.
    March 5, 1976.
    Robert M. Barnes, II, and James C. Handly, Jr., of Howell, Searcy & Handly, Jacksonville, for appellant.
    Bruce S. Bullock, of Bullock, Sharp & Childs, Jacksonville, for appellee.
   SMITH, Judge.

Mrs. Rader was hurt on an elevator at the Duval Medical Center in Jacksonville. She sued the Duval County Hospital Authority for money damages, alleging its negligence in maintenance of the ^elevator, and the Authority in turn filed a third party complaint for indemnity against Otis Elevator Company, which serviced the elevator under contract with the Authority. Before trial the Authority paid Mrs. Rader $25,000 in settlement of her claim. This eliminated Mrs. Rader as a party in interest. The Authority and Otis went to trial on the third party complaint and Otis was exonerated. In a subsequent action Mrs. Rader now sues Otis for negligence in maintenance of the elevator. The trial court entered final summary judgment against her, holding:

“If the defendant [Otis] in this cause of action had a duty toward Mrs. Rader to maintain the elevator, said duty arose out of the contractual agreement with the original defendant Duval County Hospital Auhority. That issue was submitted to a jury in the form of the third party claim of Duval County Hospital Authority and this defendant [Otis] was found by that jury in the verdict to have no liability to the Duval County Hospital Authority and therefore no liability to Mrs. Rader.”

Mrs. Rader appeals the adverse adjudication.

In her prior action against the Authority, Mrs. Rader and Otis did not litigate as adversaries the issue of Otis’ liability to Mrs. Rader. Having withdrawn from the litigation with the Authority’s settlement in hand, Mrs. Rader was not even a party in interest at the time the Authority and Otis litigated the indemnity issues to a judgment. Mrs. Rader’s claim against Otis is therefore not barred on grounds of res judicata or estoppel by judgment. Those doctrines do not affect persons not parties or in privity with parties. Liberty Mutual Ins. Co. v. Curtiss, 327 So.2d 82 (Fla.App. 1st, 1976); Seaboard Coast Lina R.R. Co. v. Industrial Contr. Co., 260 So.2d 860 (Fla.App. 4th, 1972) ; Hill v. Colonial Enterprises, Inc., 219 So.2d 51 (Fla.App. 4th, 1969), cert. disch. 227 So.2d 481 (Fla.1969). See also 50 C.J.S. Judgments § 819 (1947); 46 Am.Jur.2d Judgments § 546 (1969); Restatement of Judgments §§ 82, 84 (1942). Under Rule 1.180, R.C.P., Mrs. Rader was permitted but not required to assert her claim against Otis after Otis was joined by the Authority’s third party claim. Until that Rule is amended to require, and not merely permit, the assertion of a plaintiff’s claim against a third party defendant which arises out of the transaction in issue between plaintiff and defendant, estoppel must be predicated on a judgment between adversaries, not merely on an opportunity to litigate.

The trial court did not predicate dismissal of Mrs. Rader’s claim on res ju-dicata or estoppel by judgment but rather on its determination that the prior judgment exonerating Otis of liability to the Authority eliminated an essential element of Mrs. Rader’s claim against Otis. Thus, the trial court reasoned that any duty owed by Otis to Mrs. Rader had its inception in Otis’ service contract with the Authority and that “this defendant was found . . . [by the verdict and judgment] to have no liability” to the Authority “and therefore no liability to Mrs. Rader.”

If this were a case in which an essential element of Mrs. Rader’s claim was Otis’ liability to the Authority, we would agree with the trial court’s reasoning. “Insofar as . . . rights or obligations [of parties] inter se are dependent upon their rights or obligations toward their common adversary, the judgment adjudicating the latter is conclusive . ...” 1 Freeman, Judgments § 425 at 922-23 (5th ed. 1925); Liberty Mutual Ins. Co. v. Curtiss, supra. But this is not such a case. It is not part of Mrs. Rader’s claim against Otis that Otis was liable to the Authority. The question of Otis’ liability to the Authority, not the subservient issue of Otis’ negligence, is the only matter the prior judgment could conclude against one not an adversary.

Reversed.

BOYER, C. J., and RAWLS, J., concur.


text:
    William R. MULDROW and Lottie M. Muldrow, his wife, Appellants, v. Clarence B. OWENS and Maxine K. Owens, his wife, Appellees.
    No. Y-52.
    District Court of Appeal of Florida, First District.
    March 4, 1976.
    Ed. Duffee, Jr., Tallahassee, for appellants.
    Claude B. Arrington, Cotten, Shivers, Gwynn & Daniel, Tallahassee, for appel-lees.
   PER CURIAM.

Affirmed. See Winner v. Westwood, 237 So.2d 151 (Fla.1970); Haller v. Santona Land Corp., 275 So.2d 591 (Fla.App. 1st 1973), and Jackson v. Granger Lumber Company, Inc., 275 So.2d 555 (Fla.App. 1st 1973).

McCORD, Acting Chief Judge, SMITH, J., and FULLER, RICHARD S., Associate Judge, concur.


text:
    Cleveland TOWNSEND, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1677.
    District Court of Appeal of Florida, Third District.
    Feb. 24, 1976.
    Cleveland Townsend, in pro per.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   PER CURIAM.

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


author: HARDING, MAJOR B., Associate Judge.

text:
    Hooper ALEXANDER, III, as Administrator of the Estate of Margaret M. Alexander, Deceased, Petitioner, v. ALTERMAN TRANSPORT LINES, INC., a Florida Corporation, and Charles E. Penley, Respondents.
    No. X-107.
    District Court of Appeal of Florida, First District.
    March 5, 1976.
    Earl L. Maxwell, Jr., of Farish & Farish, West Palm Beach, for petitioner.
    E. Harper Field, of Keen, O’Kelley & Spitz, Tallahassee, for respondents.
   HARDING, MAJOR B., Associate Judge.

The Plaintiff below petitions for Writ of Certiorari asking the Court to review the order of the trial court dismissing with prejudice claims for relief prayed for in the second amended complaint. We recognize that the trial court and counsel did not have the benefit of the opinion in the decision of the Supreme Court, Martin v. United Security Services, Inc., 314 So. 2d 765 (Fla.1975). The Supreme Court decision points out a departure from the essential requirements of the law which requires the issuance of the Writ of Certio-rari.

The trial judge entered an order striking from the second amended complaint a claim for the decedent’s pain and suffering prior to her death as well as the plaintiff’s claim for punitive damages against the corporate defendant employer leaving in effect only a claim against both defendants for medical expenses and funeral bill and against the individual defendant employee truck driver for punitive damages. The Supreme Court in the aforementioned case held that the provisions of the Survival Statute, Section 46.021,- Florida -Statutes, were consolidated with the new Wrongful Death Act of Florida, Sections 768.16-768.27, Florida Statutes; that the claim for a decedent’s pain and suffering was eliminated and that there was substituted the claim of pain and suffering for close relatives of the decedent. In view of said holding, this cause should be remanded to the trial court with leave for the plaintiff to amend the second amended complaint to make a claim for the pain and suffering of the close relatives of the decedent for and on whose behalf the suit is brought if such a claim can be made.

A claim for punitive damages is permissible under the new Wrongful Death Act of Florida, Sections 768.16-768.27, Florida Statutes, and it is well settled that a corporation can be held liable for punitive damages for the acts of its employees or agents committed while acting within the scope of the employee’s or agent’s employment. Winn & Lovett Grocery Co. v. Archer, 126 Fla. 308, 171 So. 214; Joab Inc. v. Thrall, Fla.App., 24S So.2d 291; and Wackenhut v. Greene, Fla. App., 238 So.2d 431.

However, in the case under consideration the allegations of the second amended complaint are not sufficient to state a cause of action for punitive damages against the corporate defendant employer. The bare allegations of gross negligence on the part of an employee in operating an employer’s motor vehicle are not sufficient to sustain a claim for punitive damages on the part of an employer.

In view of the fact that this cause is being remanded to the trial court with leave to amend in other particulars, the plaintiff should likewise be given leave to amend the claim for punitive damages.

The petition for the Writ of Certiorari is granted, the writ is issued, and this cause is remanded to the trial court with 'leave to amend consistent with this opinion.

RAWLS, Acting C. J., and McCORD, J., concur.


text:
    B. W. DEESE and Gladys B. Deese, his wife, Appellants, v. Lucinda PHILPOT and John Brown, Appellees.
    No. Z-158.
    District Court of Appeal of Florida, First District.
    March 4, 1976.
    Frank M. Gafford, Lake City, for appellants.
    John E. Norris, Lake City, for appellees.
   PER CURIAM.

Affirmed. See Shuptrine v. Wohl Holding Corporation, 147 Fla. 185, 3 So.2d 524 (1941); Golden v. Grady, 160 Fla. 348, 34 So.2d 877 (1948); and Southern Title Research Company v. King, 186 So.2d 539 (Fla.App. 4th 1966).

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


text:
    FLORIDA A & M UNIVERSITY, an Institution owned and operated by the State of Florida, Petitioner, v. Althea M. LEWIS et al., Respondents.
    No. X-371.
    District Court of Appeal of Florida, First District.
    March 5, 1976.
    Rehearing Denied March 26, 1976.
    Thomas F. Woods, Woods & Johnston, Tallahassee, for petitioner.
    Robert L. Shevin, Atty. Gen., Carol L. Reilly, Asst. Atty. Gen., and John E. Crusoe, Tallahassee, for respondents.
   MILLS, Judge.

The University seeks review of an order of the Commission which changed the University’s dismissal of its employee, Lewis, to a thirty-day suspension and reinstatement with full back pay. The issue before us is whether the Commission may determine that there was just cause for the dismissal of Lewis, but change the dismissal to a suspension.

Lewis was convicted of issuing two bad checks and sentenced to thirty days in the county jail. Because of this, the University dismissed Lewis on the ground of conduct unbecoming a public employee.

Lewis appealed to the Commission who changed the dismissal to a thirty-day suspension, because in its opinion the action of the University was too severe under the circumstances presented to it.

Sections 22A-7.10G.2 and 22A-7.-10F.2 of Chapter 22A.7, Florida Administrative Rules, provide that an agency may dismiss or suspend an employee for just cause, which includes conduct unbecoming a public employee. The grounds for dismissal and suspension are the same. There is no guideline for determining when an agency must dismiss rather than suspend. Therefore, the agency has sole discretion to determine whether to dismiss or to suspend an employee, subject only to just cause. On appeal, the Commission may only determine whether there was competent substantial evidence to sustain the agency action or whether the facts establish just cause. State Department of Pollution Control v. State Career Service Commission (Hummel), 320 So.2d 846 (Fla.App. 1st, 1975).

In the case before us, the Commission had to agree that just cause existed for the dismissal of Lewis, because otherwise there is no basis for the Commission’s order of suspension. The Commission, finding no error in the action taken by the University, erred in ordering the suspension and reinstatement of Lewis with full back pay.

The petition for writ of certiorari is granted. The order of the Commission is quashed, and the dismissal of Lewis by the University is reinstated.

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


text:
    J. J., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1705.
    District Court of Appeal of Florida, Third District.
    Feb. 24, 1976.
    J. J., a juvenile, in pro per.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before BARKDULL, C. J., and PEARSON and NATHAN, JJ.
   PER CURIAM.

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


text:
    Gregory JONES, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1754.
    District Court of Appeal of Florida, Third District.
    Feb. 24, 1976.
    Gregory Jones, in pro per.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before BARKDULL, C. J., and PEARSON and NATHAN, JJ.
   PER CURIAM.

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


text:
    Miguel Angel ROSADO, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1644.
    District Court of Appeal of Florida, Third District.
    Feb. 24, 1976.
    Miguel Angel Rosado, in pro per.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   PER CURIAM.

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


text:
    James Eddie DeGOLYER, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. Z-2.
    District Court of Appeal of Florida, First District.
    March 4, 1976.
    Richard W. Ervin, III, Public Defender; Louis G. Carres, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., Gerald L. Knight, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Upon considering the briefs and the record, we find no reversible error.

Accordingly, the judgment of conviction and sentence are affirmed.

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