author: PEARSON, Judge.

text:
    CITY OF NORTH MIAMI BEACH, a political subdivision of the State of Florida, City of North Miami Beach Public Utilities Department, a Dade County, Florida municipal entity, Appellant, v. METROPOLITAN DADE COUNTY, a political subdivision of the State of Florida and Metropolitan Dade County Water and Sewer Board, a Dade County entity, Appellee.
    No. 74-1274.
    District Court of Appeal of Florida, Third District.
    July 8, 1975.
    Rehearing Denied Sept. 10, 1975.
    Joseph Nazzaro, City Atty., and Stephen Cahen, Asst. City Atty., for appellant.
    Stuart Simon, County Atty., and Stanley B. Price, Asst. County Atty., for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PEARSON, Judge.

The City of North Miami Beach brought a suit against Metropolitan Dade County and the Metropolitan Dade County Water and Sewer Board seeking an injunction to prevent the county and its Board from proceeding with a hearing at which a temporary ban on further connections to the municipal water system would be considered. The suit was unsuccessful. The trial court entered a judgment holding in part as follows :

“ . . . regarding the question of whether Metropolitan Dade County is empowered to regulate the Public Utilities Company owned and operated by the City of North Miami Beach, this Court grants Defendants’ Motion for Judgment on the Pleadings and accordingly finds and adjudicates that the Defendant, Metropolitan Dade County, does possess the authority to regulate the City of North Miami Beach’s owned and operated water and sewer company.”

The City has appealed and the main issue presented is whether Metropolitan Dade County has the statutory authority to interfere with a municipally-operated water system within Dade County. In considering this question, we have had the benefit of oral argument and the briefs of the parties together with an amicus curiae brief filed by the General Counsel for the Division of Health, State of Florida Department of Health and Rehabilitative Services. The appellant City maintains that the question of utility connections is a purely local matter and that the Division of Health and Rehabilitative Services of the State has exclusive jurisdiction over such matters. The appellee County urges that pursuant to the Charter of Metropolitan Dade County (adopted pursuant to Fla.Const. Art. VIII, § 6, schedule § 11, West’s F.S.A.) it has the power of county-wide regulation. The Division of Health maintains that it has exclusive jurisdiction over the quality and quantity of water which is being supplied to the people of the State of Florida. We hold that the trial judge correctly determined that under the circumstances of this case the County Commission of Metropolitan Dade County has the authority to issue orders temporarily forbidding further connections to the municipal water system. We, therefore, affirm the judgment appealed.

We have previously determined that Metropolitan Dade County’s attempt to regulate the service areas, such as the rates and charges and quality of service of the water companies who serve customers in Dade County is valid. Carol City Utilities, Inc. v. Dade County, Fla.App.1966, 183 So.2d 227. There the ordinance which created the Metropolitan Dade County Water and Sewer Board was attacked as unconstitutional and in conflict with Fla. Stat., Chapter 367. But as appellant points out, we were dealing there with the County’s authority over a privately owned water company.

The City urges that Fla.Stat. § 381.101 et seq., give the Division of Health and Rehabilitative Services exclusive jurisdiction over water quality and services in this state. The attorney for the Division, as amictis curiae, agrees that the Division is supreme but does qualify his position as follows: “ . . . the Legislature intended the Division of Health and its agents would have final responsibility and general supervision and control over all systems of water supply insofar as their adequacy, sanitary and physical condition affect public health.” [Emphasis supplied] We need not determine whether the position of the Division is correct. It is sufficient for a determination of this case to point out that the Division’s position does not conflict with the position taken here by Metropolitan Dade County. It is clear that the County does not seek to override a validly-exercised state authority. It seeks rather to assert an authority of its own in order “to regulate on a county-wide basis according to a uniform plan those municipal functions that are susceptible to, and could be most effectively carried on under, a regulatory plan applicable to the entire county.” See Carol City Utilities, Inc. v. Dade County, Fla.App.1966, 183 So.2d 227, 232.

Appellant’s position that the authority of the Division of Health is exclusive, in our opinion, is not substantiated by the statute (Fla.Stat., Chapter 381; see particularly § 381.101) or by the case law cited. The case of Town of Palm Beach Shores v. Colonnades, Inc., Fla.App.1968, 216 So.2d 78, cited by appellant, is not determinative because there is no showing that any municipal function was involved.

In City of Miami Beach v. City of North Bay Village, Fla.App.1975, 313 So.2d 126 (1975), this court pointed out that because of Fla.Stat. § 180.13, a city-owned and operated water plan is exempt from ordinary regulation as to rates. We held there that this exemption does not forbid the courts from exercising a normal supervision of contracts in which the public has a vital interest. It follows from that holding that municipal water plants are not exempt from regulation by Metropolitan Dade County in matters which are countywide in scope. The actuality of the situation is that water is absolutely essential to life in a modern city. Where the State has created a Metropolitan authority that encompasses many municipalities and grants to that Metropolitan authority ordinary municipal functions that may more efficiently be managed upon a Metropolitan basis, then that authority must be able to exercise control over municipally-owned water systems so that water may be managed upon an area-wide basis.

The City has presented a question based on the pleadings going to the propriety of the order entered and claiming that the issue of the authority of the County was not raised by the pleadings. An examination of the record reveals that the issue was raised and that the question of law presented was the basis of appellant’s complaint. We find no error under this point. See the general rule stated in Ewing v. Dupee, Fla.App.1958, 104 So.2d 672. In addition, we find no question of fact presented that would bar a judgment on the pleadings.

Having examined each of the points raised and finding no reversible error presented, we affirm the judgment appealed.

Affirmed.

      . A previous appearance of this same case in which this court affirmed the dismissal of some of the counts of the complaint is City of North Miami Beach v. Metropolitan Dade County, Fla.App.1975, 312 So.2d 219 (1975).

      . See Miami Shores Village v. Cowart, Fla.1958, 108 So.2d 468.


source: Caselaw Access Project

author: HENDRY, Judge.

license: Public Domain

text:
    FLORIDA MORTGAGE FINANCING INC., a Florida Corporation, Appellant, v. Henry KASSNER, an Individual, Appellee.
    No. 74-1493.
    District Court of Appeal of Florida, Third District.
    July 8, 1975.
    Rehearing Denied Sept. 8, 1975.

      Michael M. Tobin and Stephen K. Katz, Coral Gables, for appellant.
    Levine, Helman & Reckson, Miami, for appellee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   HENDRY, Judge.

This is an appeal by the defendant below from an adverse summary final judgment in an action to recover a $5,000 deposit made pursuant to the terms of a loan commitment application.

The plaintiff, Henry Kassner, a developer of real estate projects, instituted this suit on November 21, 1973 against the defendant-appellant, a mortgage broker, averring that he (Kassner) had received a letter dated August 23, 1973 from the appellant advising him that the appellant could not comply with the terms of the commitment application.

Under the commitment application, Kas-sner was seeking a construction loan and permanent financing in the amount of $4,010,710.00. The application states that the appellant would have 45 working days in which to procure the loan.

Together with its answer to the complaint, the appellant filed a counterclaim which basically alleged that Kassner was in breach of contract and prayed for damages of $40,107.10 (its one percent brokerage fee based on the principal amount of the loan sought), plus costs and attorney’s fees.

Appellant has presented two points on appeal. First, it argues that there were genuine issues of material fact precluding entry of a summary judgment.

Secondly, appellant submits that the court committed error by imposing sanctions against it because of its inability to produce certain documents which the court previously had ordered the appellant to produce.

These documents were ordered to be produced because of the appellant’s assertion that Kassner had not supplied all of the documents necessary for the appellant to successfully obtain a loan from institutional lenders. In short, appellant was ordered to produce the documents which Kassner had supplied so that it might be determined which documents he had not supplied.

As it turned out, appellant did not produce the required documents because an institutional lender in New York allegedly had possession of them and was unable to locate the documents.

The sanctions which the court imposed were that the appellant could not produce the documents at a later date and use them for impeachment purposes. We hold that these sanctions were not too severe after the court had given the appellant a reasonable opportunity to produce the required documents; and no abuse of discretion has been shown. See, Hurley v. Werly, Fla.App.1967, 203 So.2d 530, 537; City of Miami Beach v. Chadderton, Fla.App.1975, 306 So.2d 558.

Further, it is our view that summary judgment was proper because appellant has not shown that there were genuine issues of material fact that it had performed in accordance with the terms of the commitment application and therefore was entitled to retain the $5,000 deposit.

Accordingly, the judgment appealed is affirmed.

Affirmed.


author: PER CURIAM.

text:
    Randolph T. JENKINS and Johnny B. Smith, Appellants, v. The STATE of Florida, Appellee.
    No. 74-1704.
    District Court of Appeal of Florida, Third District.
    July 8, 1975.
    Rehearing Denied Sept. 10, 1975.
    Phillip A. Hubbart, Public Defender, and Gerald Hubbart, Asst. Public Defender, for appellants.
    Robert L. Shevin, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen., for ap-pellee.
    Before HAVERFIELD and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The appellants were charged by indictment with the crime of murder in the first degree, for the gunshot killing of a named person. Tried together before a jury, the appellant Jenkins was convicted of murder in the third degree (and sentenced to imprisonment for a term of fifteen years), and the appellant Smith was convicted of murder in the second degree (and sentenced to imprisonment for life). The defendants appealed.

The appellant Jenkins contends the court committed error by denying his motion for mistrial, because of certain remarks by Smith’s attorney in his argument to the jury. The comment was with reference to Smith’s right to remain silent and not testify in his own behalf. Jenkins argues that such comment constituted reversible error because it called attention to the circumstance that Jenkins likewise had not testified in his own behalf.

In the course of his argument, the attorney for Smith stated as follows :

“Now, you saw the witnesses testify, and the State produced the evidence to try to prove their case. Now, Johnny B. Smith did not testify. He has had the right not to. His decision not to testify was mine, not his, and I based that decision upon my experiences in this Court

The attorney for Jenkins announced an objection thereto, as being “improper argument”. The court sustained the objection. Smith’s attorney then stated in argument, the following:

“When you were empowered here, you were advised at that time, that the Defendant need not testify, that he is clothed with a presumption of innocence, and that innocence, or the presumption of innocence, never leaves him unless and until the State proves its case beyond, and to the exclusion of each and every, or any reasonable doubt as to his guilt for the crime charged. In my opinion, they have miserably failed in that burden. I do not feel it is necessary for Johnny Smith to defend himself before you today.”

An objection thereto by Jenkins’ attorney was not ruled on directly. The court directed Smith’s attorney to proceed, and stated: “The jury will be instructed as to that”.

A subsequent motion by Jenkins’ attorney for mistrial because of the foregoing, was denied. Later, in the charges given, the court charged the jury as to the right of the defendants to remain silent, as Smith’s attorney had stated with regard to Smith, viz-.

“In every criminal proceeding, a defendant has the absolute right to remain silent. At no time, is it the duty of the defendant to prove his innocence, and from the exercise of a defendant’s right to remain silent, a jury is not permitted to draw any inferences of guilt — and the defendant’s failure to 'take the witness stand, must not be considered, in any manner, an admission of guilt nor should his failure to take the witness stand, influence your verdict in any manner whatsoever.”

We hold that the trial court did not commit error by denying the motion made on behalf of Jenkins for a mistrial. The above quoted comments of the attorney for Smith did not constitute reversible error as to Jenkins. While such comments may have had the effect of calling attention to the circumstance that Jenkins, as well as Smith, had not testified in his own behalf, the statement in respect thereto by Smith’s attorney was not antagonistic to Jenkins. On the contrary, the comment, which was beneficial to Smith was equally beneficial to Jenkins, and it was no more, and m fact less than the court charged the jury with respect to the right of both of the defendants to remain silent.

The decisions relied, on by Jenkins are not applicable to the circumstances of this case. In Harper v. State, Fla.App.1963, 151 So.2d 881, a comment of the prosecutor on the failure of one of three defendants to testify in his own behalf, was held to be reversible error as an improper indirect comment by the prosecutor on failure of a co-defendant to testify in his own behalf. Similarly, in Carter v. State, Fla. App.1967, 199 So.2d 324, the comment was by the prosecutor, calling attention to failure of a defendant to testify in his own behalf. The federal case relied on by Jenkins (De Luna v. United States, 5 Cir. 1962, 308 F.2d 140), is distinguishable on the facts. There the attorney for one defendant who had testified in his own behalf made direct comment on the fact that the co-defendant had not testified in the case, thereby seeking to influence the jury to absolve his client and place the blame on the co-defendant.

We further hold that the trial court’s denial of the request of the jury to have the testimony of two of the witnesses re-read to the jury was not error. Such testimony was cumulative. Its import was not material to the guilt or innocence of the defendants, in that it dealt with the question of whether the fatal shot was fired by one of the defendants or by another participating person. The court reporter was not available to re-read the testimony. The matter was one resting in the sound judicial discretion of the court, and in the circumstances involved the ruling of the court thereon did not constitute an abuse of discretion.

The judgments and sentences are affirmed.

      . Rule 3.250 RCrP provides in pertinent part: “In all criminal prosecutions the accused may at his option be sworn as a witness in his own behalf, and shall in such case be subject to examination as other witnesses, but no ac-eused person shall be compelled to give testimony against himself, nor shall any prosecuting' attorney be permitted before the jury or court to comment on the failure of the accused to testify in his own behalf”.


text:
    Jerome E. CURLEY et al., Appellants, v. George A. SIMON, Appellee. Jerome E. CURLEY, Appellant, v. Sue G. CURLEY, Appellee.
    Nos. 74-1786, 74-1787.
    District Court of Appeal of Florida, Third District.
    July 8, 1975.
    Rehearing Denied Sept. 10, 1975.

      Jerome E. Curley, in pro per.
    Starr Horton, Miami, for appellees.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   PER CURIAM.

The two judgments here appealed by Jerome E. Curley relate to a real estate commission and the profits that Jerome E. Curley and Sue Curley, his then wife, made' in a real estate transaction. The judgment in the cause instituted by George A. Simon is not actually at issue on this appeal except insofar as the final judgment therein resulted from the trial of the same issues in the dissolution of marriage proceedings.

Appellant does not controvert the findings of the trial judge that his marriage to Sue Curley is irretrievably broken. The appellant presents nine questions which he argues as points on appeal. Six of these questions challenge findings of the trial judge contained in the following paragraph of the final judgment.

“3. Both Sue G. Curley and Jerome E. Curley were and are the joint owners of that certain account, Account No. 411 — 3—675, in the First State Bank of Miami, and each are entitled to one-half of the proceeds of said account subject, however, to the requirement that the sum, which would otherwise be due each of the parties, be reduced by such amount withdrawn by each of the parties pursuant to that certain stipulation, dated April 26, 1974, between the parties and filed in this cause on April 29, 1974. In this regard it is the finding of the Court that the parties worked in concert on the real estate transactions which resulted in the creation of said account; that the wife by virtue of her participation has a special equity in said account; and, that the parties should share jointly in the real estate commission which would otherwise be due the said Sue G. Curley.”

The essence of appellant’s argument as we' understand it is presented in the first paragraph of the conclusion to his brief. It is as follows:

“The undisputed documented facts show a ‘possible’ situation of property transfer under duress or undue influence. Where such is the case, and where even meager proof of the actual threat and demand and transfer under such condition, is given by the party claiming duress, the Court should require proof that duress did not in fact affect the transfer. The Courts do this in essence when the relationship is a fiduciary or confidential one. The Court should also do this when the situation indicates the possibility of duress even if the fiduciary and confidential relationship does not apply. The reasoning for such similarity in required proof is obvious. If duress or undue influence is presumed by a relationship and must be disproven so should it be presumed when the possible duress has been proven. In the cause at issue, burden of proof that duress did not influence the transfer has not been given.”

We do not believe that the law of the State of Florida would support a holding that “possible duress” rendered improper the trial judge’s finding that the asset represented by the funds in the joint bank account was the joint asset of the husband and wife. We, therefore, decline to reverse on that basis. See State v. Thomas, Fla.App.1968, 212 So.2d 910.

Appellant’s three remaining points all attack the trial judge’s determination that appellant should pay the costs of the proceedings and an attorney’s fee for the wife’s attorney. No attack is made on the amount of the moderate fee allowed. Our review .of the record convinces us that there is sufficient evidence as to appellant’s worth to justify the exercise of the trial court’s discretion under Fla.Stat. § 61.16.

Affirmed.

      . The suit instituted by George A. Simon was finally terminated by an order of dismissal in which the court recited :
      “All remaining issues in the above-captioned cause having been resolved by this Court’s entry of FINAL JUDGMENT OF DISSOLUTION OF MARRIAGE in Case No. 74-10833, it is the judgment of this Court that this cause be and the same is hereby dismissed with prejudice.”


author: NATHAN, Judge.

text:
    BAKER AND COMPANY, FLORIDA, a Florida Corporation, Appellant, v. David GODING, Appellee.
    No. 74-1273.
    District Court of Appeal of Florida, Third District.
    July 15, 1975.
    Rehearing Denied Sept. 8, 1975.

      Tew, Tew, Rozen & Murray, Miami, for appellant.
    Sam Spector, Tallahassee, Nachwalter, Christie & Falk, Miami, for appellee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   NATHAN, Judge.

Baker and Company, Florida, defendant in the trial court, appeals from a final judgment entered after a non-jury trial, awarding David Goding, the plaintiff, damages for his expenses and commission earned pursuant to an employment agreement.

This appeal, as well as the prior appeal in this cause, see Baker and Company, Florida v. Goding, Fla.App. 1973, 277 So.2d 796, challenges the damages awarded in the final judgment. The record discloses that Baker and Company is in the insurance premium finance business, and that the subject employment agreement, evidenced in writing by a letter from Jim Baker to Goding, provides that Goding, as Baker and Company’s agent, was to receive as part of the compensation for business which he generated, “10% of the net profits generated in the State of Florida.”

Baker and Company contends that “10% of the net profits” is an unambiguous phrase and that the trial court erred in admitting parole evidence to construe it. It further contends that assuming arguendo the term is ambiguous, the trial court manifestly erred in its construction of it. We do not agree with either contention. "

The home office of Baker and Company, which included all executive and sales personnel except Goding is located outside of the State of Florida. It is obvious from the evidence adduced at the trial that the phrase “10% of net profits generated in the State of Florida,” is ambiguous in the context of the subject matter and circumstances herein.

In giving the words and phrases in a contract the natural meaning or that most commonly understood when considered in reference to the subject matter and circumstances, the court must look to the subject matter to which the words relate and the purpose of their use; the intent of the language may vary with the circumstances and such words will not essentially convey the same connotations under all circumstances. Rupp Hotel Operating Co. v. Donn, 1947, 158 Fla. 541, 29 So.2d 441, 445. Accord: Underwood v. Underwood, Fla. 1953, 64 So.2d 281. When the language of a contract is ambiguous or its meaning is doubtful so that it is susceptible of two constructions, the courts will approve that construction which comports with logic and reason. Triple E Development Co. v. Floridagold Citrus Corp., Fla. 1951, 51 So.2d 435, 439.

Although there was a considerable conflict of evidence as to the method of arriving at “10% of the net profit generated in the State of Florida,” we find that there was substantial competent evidence to support the findings of fact of the trial court and the damages awarded.

Accordingly, the final judgment herein appealed is affirmed.


text:
    CAT ’N FIDDLE, INC., a Florida Corporation, operating and doing business as Cat ’N Fiddle Restaurant and Lounge, Appellant, v. The CENTURY INSURANCE COMPANY LIMITED, a corporation organized and existing under the laws of New York, and Hurst Insurance Agency, a Florida Corporation, Appellees.
    No. 74-659.
    District Court of Appeal of Florida, Third District.
    July 22, 1975.
    Rehearing Denied Sept. 11, 1975.
    Richard Karl Goethel, Coral Gables, for appellant.
    Wicker, Smith, Pyska, Blomqvist & Dav-ant and Richard Á. Sherman, Miami, for Century Ins. Co-
    Knight, Peters, Hoeveler, Pickle, Nie-moeller & Flynn, Jeanne Heyward, Miami, for Hurst Ins. Agency, appellees.
    Before BARKDULL, C. J., PEARSON, J., and DREW, E. HARRIS (Ret.) Associate Judge.
   PER CURIAM.

The plaintiff appeals from a final judgment entered on a jury verdict in an action which has been the subject of prior appeals in this court and in the Supreme Court of Florida. See Cat ’N Fiddle, Inc. v. Century Insurance Company, Fla.1968, 213 So.2d 701 and Cat ’N Fiddle, Inc. v. Century Insurance Company, Fla.App. 1967, 200 So.2d 208. Our review of the record in the light of the briefs and the argument heard convinces us that the appellant has had a full, complete and fair trial pursuant to the directions of the Supreme Court in the case cited above. Accordingly, the final judgment is affirmed.

Affirmed.


text:
    LOUIS E. FUENTES REALTY, INC., Appellant, v. J. J. CALDWELL, Appellee.
    No. 74-1420.
    District Court of Appeal of Florida, Third District.
    July 22, 1975.
    Rehearing Denied Sept. 8, 1975.
    Leonard Frishman, Coral Gables, for appellant.
    William C. Lewis, Coral Gables and Henry T. Courtney, Miami, for appellee.
    Before BARKDULL, C. J., and PEARSON and NATHAN, JJ.
   PER CURIAM.

Affirmed. Cf. Oro Verde Groves, Inc. v. Fuchs, Fla.App.1962, 136 So.2d 12 and Central Bank and Trust Company v. Pichowski, Fla.App. 1962, 143 So.2d 505.


text:
    John Henry COLLARD and Allstate Insurance Company, Appellants, v. Louella KEETON and Lawrence Kenley Keeton, Appellees.
    No. 74-926.
    District Court of Appeal of Florida, Third District.
    July 22, 1975.
    Rehearing Denied Sept. 11, 1975.
    Adams, George, Wood, Lee & Schulte and David L. Willing, Miami, for appellants.
    Rentz, McClellan & Haggard, Miami, for appellees.
    Before PEARSON, HENDRY and NATHAN, JJ.
   PER CURIAM.

The defendants to the counterclaim have appealed a final judgment based on a jury verdict in a personal injury action arising out of an automobile intersectional collision. They have .presented ten points for reversal. We consider that only two of these points require discussion at this time. As to the remaining points, it is sufficient to state that we have examined the record in light of them and in light of the arguments pertaining thereto and have concluded that reversible error has not been shown.

Appellants’ first point claims error upon an alleged refusal of the court to instruct the jury on the issue of comparative negligence as to the appellee-driver and his wife. No error is shown as to the claim of the appellee-passenger. See Hammack v. Veillette, Fla.App. 1970, 233 So.2d 836. As to the claim of the driver husband, the record reveals (a) the failure to submit a proper instruction, and (b) the failure to object upon the court’s announcement of the instructions that it would give.

Appellants’ point directed to the failure to admit certain hospital records does not present reversible error inasmuch as it appears that the declared purpose for the admission was simply to compile cumulative evidence as to the claimed tendency toward hypochondria. See Florida East Coast Railway Company v. Morgan, Fla. App.1968, 213 So.2d 632.

Affirmed.


text:
    CITY OF MIAMI, a Municipal Corporation, Appellant, v. Jannie BRUNSON, Appellee.
    No. 74-1744.
    District Court of Appeal of Florida, Third District.
    July 22, 1975.
    Rehearing Denied Sept. 11, 1975.
    John S. Lloyd, City Atty., and Montague Rosenberg, Asst. City Atty., for appellant.
    Ser & Keyfetz and Mark Poses, Miami, for appellee.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   PER CURIAM.

This is an appeal by the defendant, City of Miami, from a final judgment in favor of the plaintiff. The judgment is from a jury verdict based upon a complaint that the plaintiff tripped and fell over an obstruction on a City sidewalk. The right to recover in such a case where the element of the City’s opportunity to discover the defect has been proved is established in City of St. Petersburg v. Roach, 1941, 148 Fla. 316, 4 So.2d 367.

The City has presented points urging (1) that the judgment is excessive in amount, (2) that plaintiff’s expert was improperly allowed to testify as to certain matters and (3) that the admission of certain testimony by an examining physician was error. We have examined each point in the light of the record and find that no prejudicial error has been demonstrated.

Affirmed.


text:
    DOLPHIN TRUCK LEASING, INC., and H. E. Mathews, Appellants, v. Gerald R. PERRY et al., Appellees.
    No. 74-1448.
    District Court of Appeal of Florida, Third District.
    July 22, 1975.
    Rehearing Denied Sept. 8, 1975.

      Horton, Perse & Ginsberg, Charles Ge-ner, Miami, for appellants.
    Alexander S. Gordon, Richard P. Ken-ney, Miami, for appellees.
    Before BARKDULL, C. J„ and PEARSON and NATHAN, JJ.
   PER CURIAM.

This appeal presents for review the court’s order dismissing two counts of a complaint which sought a declaratory judgment and other relief. The complaint asks the court’s construction of a paragraph reading as follows:

“Seller further acknowledges and agrees that this transaction may be can-celled ... in the event Buyer is unable to make satisfactory arrangements with General Motors Acceptance Corporation and the Chevrolet Division of General Motors Corporation for the continuation of the business and operations of the corporation. . . ”

The trial court dismissed the complaint upon a holding that the contract clearly gave the buyer only the option of cancel-ling the contract. Our reading of the complete contract and the complaint convinces us that it does not appear without dispute that the contract is unambiguous. Plaintiff should have an opportunity to present facts establishing the intent of the parties if he is able to do so. See Holmes v. Kilgore, 1925, 89 Fla. 194, 103 So. 825.

We do not mean to preclude any allowable procedure under the rules by either party in this suit. The extent of our holding is that the two counts were improperly dismissed without leave to amend.

Reversed and remanded.

      . See Mendez v. West Flagler Family Association, Fla.1974, 303 So.2d 1.


text:
    Mary MANSPEAKER, Appellant, v. Jacob PONUCHALEK, Appellee.
    No. 74-1494.
    District Court of Appeal of Florida, Third District.
    July 22, 1975.
    Rehearing Denied Sept. 11, 1975.
    James S. Dunn and Robert D. Zahner, Coral Gables, for appellant.
    Philip J. Mandina, Michael A. Lipsky, Miami, for appellee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Affirmed. See Spark v. Canny, Fla. 1956, 88 So.2d 307; Sullivan v. Chase Federal Savings and Loan Association, Fla.App.1960, 119 So.2d 78; Sullivan v. American Telephone & Telegraph Company, Fla.App.1969, 230 So.2d 18; Williams v. Williams, Fla.App.1971, 255 So.2d 273.


text:
    Philip J. BERNSTEIN, Appellant, v. COMMON MARKETS, INC., a Florida Corporation, Appellee.
    No. 75-7.

    District Court of Appeal of Florida, Third District.
    July 22, 1975.
    Rehearing Denied Sept. 11, 1975.
    Brian R. Hersh, Miami, for appellant.
    Wolff, Gora, Courtney & Panza, Walter A. Apfelbaum, Miami, for appellee.
    Before BARKDULL, C. J., and PEARSON, J., and DREW, E. HARRIS (Ret.), Associate Judge.
   PER CURIAM.

By this appeal, we are called upon to review the correctness of an order confirming a sheriff’s sale of a life estate in a spendthrift trust.

The appellant attacks the order of confirmation upon two grounds: First, that it was error for the trial judge to hold that a beneficiary’s life estate interest in the income from a spendthrift trust was subject to execution and, second, that the price bid at the execution sale was grossly inadequate and, therefore, the trial judge erred in confirming the sale.

As to the first error urged [in ordering the beneficial interest to be sold], we find that the appellant cannot now raise this.issue as it was the subject matter of a prior appeal which was determined adverse to the appellant because of an untimely appeal. See: Bernstein v. Common Markets, Inc., Fla.App.1974, 305 So.2d 321.

Turning to the second error urged [the alleged inadequacy of the bid price], in view of the fact that the beneficiary was 83 years ofage at the time of the sale and in poor health, the appellant has not carried the burden of showing that the trial judge abused his discretion in confirming the sale, which was attacked upon this ground. First State Bank of Miami v. Common Markets, Inc., Fla.App.1974, 301 So.2d 833; Credit Industrial Company v. Re-Mark Chemical Co., Inc., Fla.1953, 67 So.2d 540; King v. Brown, Fla.1951, 55 So.2d 187; In Re Estate of Rose, Fla.App.1964, 165 So.2d 226.

Therefore, the order under review is affirmed.

Affirmed.

      . Review of this order was also sought by the trustee of the trust, but it was held that this was not a proper party to bring such an appeal. See: First State Bank of Miami v. Common Markets, Inc., Fla.App.1974, 301 So.2d 833; Credit Industrial Company v. Re-Mark Chemical Co., Inc., Fla.1953, 67 So.2d 540; King v. Brown, Fla.1951, 55 So.2d 187; In Re Estate of Rose, Fla.App.1964, 165 So.2d 226.


text:
    Michael W. OLMETTI, Appellant, v. The STATE of Florida, Appellee.
    No. 74-1593.
    District Court of Appeal of Florida, Third District.
    July 22, 1975.
    Rehearing Denied Sept. 11, 1975.
    Moran & Gold, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., for appel-lee.
    Before BARKDULL, C. J., PEARSON, J., and DREW, E. HARRIS (Ret.), Associate Judge.
   PER CURIAM.

Affirmed on the authority of Talley v. State, 160 Fla. 593, 36 So.2d 201; Younghans v. State, Fla.App.1957, 97 So.2d 31; State v. Bruno, Fla.1958, 107 So.2d 9; Kish v. State, Fla.App.1967, 198 So.2d 639; State v. Smith, Fla. 1970, 240 So.2d 807; State v. West, Fla.App.1972, 262 So.2d 457; Machin v. State, Fla.App.1972, 270 So.2d 464; Glasgow v. State, Fla.App. 1974, 292 So.2d 370; State v. Barber, Fla.1974, 301 So.2d 7; Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441.


text:
    James H. PRICE, Appellant, v. R. L. WINN, Appellee.
    No. 74-1615.
    District Court of Appeal of Florida, Third District.
    July 29, 1975.
    Rehearing Denied Sept. 11, 1975.
    Horton, Perse & Ginsberg, Miami, for appellant.
    Milledge & Bell, Miami, for appellee.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   PER CURIAM.

Affirmed. See Vincent v. Lawson, Fla. App.1973, 272 So.2d 162.


text:
    ELI EINBINDER, INC., a Florida Corporation, and Rosa Brothers Wholesale Meats, Inc., Appellants, v. MIAMI CRYSTAL ICE CO., a Florida Corporation, Appellee.
    No. 74-977.
    District Court of Appeal of Florida, Third District.
    June 10, 1975.
    Rehearing Denied Sept. 11, 1975.
    Kramer & Telander, Miami, Burnett Roth, Miami Beach, for appellants.
    Melvin A. Rubin, Miami, for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Appellants, defendants in the trial court, appeal an adverse final judgment entered in favor of the plaintiff in this action for recovery of rent.

Miami Crystal Ice Co., appellee herein, owned and operated a cold storage and refrigeration plant. Through its president and owner, John Manos, appellee corporation for many years orally had leased refrigeration facilities to Eli Einbinder, Inc. and Rosa Brothers Wholesale Meats, Inc., the appellants herein. In 1969 the health of John Manos began to deteriorate sharply and Mr. Manos could no longer oversee the maintenance of the plant which was in poor condition. Hence, in November of that year, the appellants accepted the responsibility for the maintenance and operation of their leased premises. Monies advanced by appellants therefor were to be credited against and deducted from the monthly rentals owing to the appellee corporation. At approximately the same time, appellants purchased from the appellee five vacant lots in order to construct their own plant.

No cash rental having been received since May 1970 by the appellee, its attorney in September 1970 wrote to the appellant tenants and requested documentation of the monies which they had expended in maintaining and operating the plant. He further threatened court • action if appellants did not comply with this request. Shortly thereafter, appellee’s attorney in November 1970 sent the following letter to the appellants:

“I am sure you appreciate that it has been many months since Mr. John Man-os has received any revenue at all from the premises which you have occupied at the above address. Taxes on the property are due and there are many other expenses, with the building not producing any money. The only alternatives which Mr. Manos appears to have are to increase the rents on the property or to close it down completely and eliminate all future expenses.
“Accordingly, you are hereby notified that the rental due to Miami Crystal Ice Co., Inc. for the premises which you occupy shall be $2,000.00 per month beginning on 1 January 1971. Your rental checks for the month to month tenancy should be in the hands of John Manos no later than the first of each month. You may deduct up to one-half to pay for current expenses in running the plant— such as the salary of engine room employees and equipment repairs which have the specified approval of John Manos. No credit will be allowed for such expenses unless documented with paid invoices and cancelled checks, or just the checks in the care of the em-ployeés. If the rental is not paid, it will be necessary to terminate all occupancy of the building and close it.”

Mr. Manos died in February 1971 and appellants alleged that prior thereto, he told them to disregard the rental increase. In March 1971 plaintiff’s attorney sent to the appellants another letter wherein he requested documentation of the expenses of the maintenance and operation of the plant from the peripd covering September 1970 through March 1971, documentation previous thereto having been received.

Subsequently, on July 12, 1971 appellee served on the appellants a notice to vacate by July 31, 1971 and further informed them that any holding over would result in a doubling of the rent pursuant to Fla.Stat. § 83.06. Appellee then simultaneously filed respective complaints in. the civil court of record and the circuit court for eviction and for delinquent rents due. Proceedings were stayed in the circuit court pending the outcome of the eviction action in the civil court which on October 8, 1971 entered an agreed order directing the defendant-appellants to vacate the leased premises no later than October IS,. 1971. In the meanwhile, answers and counterclaims were filed in the circuit court by the appellants. In September 1972 and again in November 1973, the circuit court, sua sponte, filed motions to dismiss for failure to prosecute pursuant to RCP 1.420(e). However, in both instances after hearing oral argument thereon, the court denied the motions. A non-jury trial finally was held in February 1974 and on March 19, 1974 the court entered a final judgment for plaintiff for $19,192.07 against the defendant Eli Einbinder, Inc. and for $10,949.77 against the defendant Rosa Brothers Wholesale Meats, Inc. The defendants filed motions for rehearing which were heard and then denied. This appeal followed.

Defendant-appellants for the first contention on appeal argue that the trial court erred in not dismissing plaintiff’s complaint for failure to prosecute pursuant to RCP 1.420(e).

A ruling on a motion for order of dismissal for failure to prosecute is subject to attack only on the ground that it constitutes an abuse of discretion and this heavy burden must be borne by the losing party, i. e. the defendants in the case at bar. Popkin v. Crispen, Fla.App. 1968, 213 So.2d 445.

After hearings on both motions, the trial judge determined that there was sufficient activity and/or good cause shown and based thereon entered the orders denying the motion to dismiss. We find that the record amply supports this determination of sufficient activity and good cause shown due to the serious illness of plaintiff’s attorney. Cf. Musselman Steel Fabricators, Inc. v. Radziwon, Fla. 1972, 263 So.2d 221 and Chrysler Leasing Corporation v. Passacantilli, Fla.1972, 259 So.2d 1. Thus, we cannot say that the trial judge abused his discretion and, therefore, this point on appeal must fail.

Appellants secondly contend that the trial court erred in finding that they were tenants at will from month to month and further permitting a statutory doubling of rent as a result of their holding over. Defendant-appellants hereunder claim that they had a valid partially performed .oral lease with the plaintiff. Nevertheless, more than a preponderance of the evidence is required to establish an oral contract; the evidence must be clear, full and free from suspicion. See Trickey v. Stone, Fla.App. 1963, 152 So.2d 748; Shell’s City, Inc. v. Westerman, Fla.App.1972, 257 So.2d 276. The record in the case sub judice reflects that appellants did not sustain their burden in that they failed to establish with specificity the commencement and termination dates of the alleged oral yearly lease. More important, the record further reflects that appellant tenants did not question or dispute the reference to their occupancy of the leased premises as a tenancy for month to month in the November 1970 letter which was sent by plaintiff’s attorney.

Thus, we find that the trial judge was eminently correct in finding that (1) the appellants were tenants at will from month to month, and (2) plaintiff properly terminated the tenancy, and then permitting a statutory doubling of rent for wrongfully holding over. See §§ 83.01, 83.03, 83.06 and Sill v. Smith, Fla.App.1965, 177 So.2d 265.

Accordingly, the judgment herein appealed is affirmed.

Affirmed.


text:
    Robert APFELBAUM, Appellant, v. LORD & LADY ORIGINALS, INC., et al., Appellees.
    No. 74-1523.
    District Court of Appeal of Florida, Third District.
    July 22, 1975.

      Joel Hirschhorn, Miami, for appellant.
    Maurice Rosen, North Miami Beach, and Samuel Morris, Hialeah, Harvey Richman, Miami Beach, for appellees.
    Before BARKDULL, C. J., and HEN-DRY and HAVERFIELD, JJ.
   PER CURIAM.

Defendant-appellant seeks review of an order holding him in contempt of court and directing the sheriff to hold him in custody for 15 days.

The instant appeal arises out of a suit filed by the plaintiff, Lord and Lady Originals, Inc., against Stuff, Inc. and its chief executive officer, Robert L. Apfelbaum, appellant here.in.

On October 29, 1974, after a hearing on plaintiff’s petition, the trial judge issued an order to show cause why Stuff, Inc. and the appellant should not be held ' in contempt for failure to obey the various orders issued by the court. A hearing thereon was scheduled for November 4. On the following day, October 30, counsel for Stuff, Inc. and the appellant was permitted to withdraw. Thereafter, on November 1, newly retained counsel for Stuff, Inc. and the appellant filed a motion to dismiss the order to show cause and as grounds alleged, inter alia, an insufficient time to prepare a defense and the illness of the appellant who recently had been released from the hospital. The motion was denied. The trial judge then entered the contempt order against Stuff, Inc. and the appellant who seeks review thereof. We reverse.

In a contempt proceeding due process requires that the respondent be apprised of the nature of his contempt and be given an adequate opportunity to be heard and to prepare his defense. See State v. Buchanan, Fla.App.1964, 168 So.2d 783; Strauser v. Strauser, Fla.App.1974, 303 So.2d 663.

In the case before us, we conclude that appellant in effect has been denied due process in that counsel for appellant was permitted to withdraw the day after the trial judge issued his order to show cause, and newly retained counsel had inadequate time to prepare a defense on behalf of the appellant who was suffering from a heart ailment during this time. Cf. Reynolds v. Reynolds, Fla.App.1966, 187 So.2d 373. Furthermore, these circumstances were brought to the attention of the trial judge in defense counsel’s motion to dismiss.

The ends of justice being served best by affording the appellant a rehearing on the petition for contempt with adequate notice being- given prior thereto, we hereby reverse the order of contempt and remand the cause for further hearing consistent herewith.

It is so ordered.


text:
    INTERNATIONAL FUNDING CORPORATION, a Florida Corporation, Appellant, v. DECORA STEEL CITY, INC., a Florida Corporation d/b/a Steel City, Inc., Appellee.
    No. 74-1468.
    District Court of Appeal of Florida, Third District.
    July 22, 1975.
    Rehearing Denied Sept. 8, 1975.
    John L. Hartnett, Coral Gables, and Osborne W. O’Quinn, Miami, for appellant.
    Joseph Teichman, Miami, for appellee.
    Before BARKDULL, C. J., and PEARSON and NATHAN, JJ.
   PER CURIAM.

This case was tried before the court without a jury. Upon appeal and cross-appeal, the parties contend that the amount of damages allowed upon a counterclaim is either too much (appellant) or too little (appellee). Our consideration of the record convinces us that each party is really arguing that the trier of fact should or should not have considered or believed certain testimony. We must respectfully decline to retry the issue. See City of Miami Beach v. Fein, Fla.App.1972, 263 So.2d 258.

Appellant’s point as to the court’s failure to allow an attorney’s fee does not present error because the record shows no offer or tender of evidence under the contract provision. Therefore, there is no showing of error. See Lyle v. Lyle, Fla.App.1964, 167 So.2d 256, wherein the court stated:

“In all litigation involving professional fees proof is required of the nature of, and the necessity for, the services rendered, and the reasonableness of the charge made therefor. In this respect the legal profession stands on the same plane with other professions.”

Affirmed.


author: BOARDMAN, Acting Chief Judge.

text:
    DEEP SOUTH PLANTATION FOODS, INC., a Florida corporation, Petitioner, v. Winston W. WYNNE, Director, Beverage Division, Department of Business Regulation, Respondent.
    No. 74-727.
    District Court of Appeal of Florida, Second District.
    July 2, 1975.
    Rehearing Denied July 25, 1975.
    Ray Tamargo, Tampa, for petitioner.
    Harold F. Peek, Jr., Staff Atty., Dept, of Business Regulation, Div. of Beverage, Tallahassee, for respondent.
   BOARDMAN, Acting Chief Judge.

This is a petition for writ of certiorari to review an administrative order issued on May 22, 1974, by the Board of Business Regulation, Department of Business Regulation, State of Florida (Board) revoking the alcoholic beverage licenses of the petitioner, Deep South Plantation Foods, Inc. (petitioner).

The facts are without substantial dispute. Petitioner owned two beverage licenses, one located in the City of St. Petersburg, the other in the City of Tampa. James Donofrio, who was a one-third owner of the petitioner, was also a'n officer and director. In January, 1971, Mri Donofrio was convicted in the United States District Court, Tampa Division, of the criminal offense of felon in possession of firearms. His conviction was subsequently reversed by the United States Circuit Court of Appeals, Fifth Circuit. During the time Don-ofrio was incarcerated, approximately one year, he continued as a stockholder and director of petitioner. In April, 1971, the two other stockholders, Tom Whitaker and Robert Rodriguez, began efforts, without success, to buy Donofrio’s stock or sell him their interest in the corporation. In August, 1972, Whitaker sold his one-third interest in petitioner to one Pat Matassini.

The majority stockholders attempted to dissolve the petitioner, although Donofrio still owned a one-third interest in the corporation. In October, 1972, Matassini and Rodriguez exercised their majority voting rights and entered into a contract to sell the assets and liabilities of petitioner to Pat-Bob, Inc., a Florida corporation owned in equal parts by both men. There is no serious dispute that Mr. Matassini, at the time he purchased a one-third interest in the petitioner, knew that both Donofrio and Rodriguez had been convicted of a felony. After the formation of Pat-Bob, Inc., Mr. Rodriguez sold his interest in the corporation. Mr. Matassini then persuaded Carlos Lizarralde, his partner in another business venture, to replace Rodriguez in Pat-Bob, Inc. The Beverage Division of the Department of Business Regulation (respondent) did not process this sale, that included transfer of the licenses of petitioner, pending disposition of the administrative hearing to be held before the Director, Winston W. Wynne, of the Beverage Division. On February 23, 1973, Donofrio was convicted of two felonies in the United States District Court, Tampa Division.

On March 30, 1973, the respondent served upon the petitioner a notice to show cause why the alcoholic beverage licenses of petitioner should not be revoked predicated upon the latter two felony convictions of Donofrio.

After proper notice, a hearing was commenced on May 4, 1973, before the Director of the respondent. During the hearing, a proposed stipulation was entered into by and between counsel for respondent and counsel for petitioner whereby the petitioner would sell the business, including the licenses, to Pat-Bob, Inc. The hearing was continued pending approval of this proposed stipulation by the Director. By letter dated June 26, 1973, the Director advised petitioner that the proposed stipulation was rejected. The petitioner was advised in said letter that a second hearing would be held on the pending matter July 10, 1973. On August 14, 1973, after due consideration, the respondent entered an order revoking petitioner’s alcoholic beverage licenses. Petitioner appealed this order to the Board of Business Regulation which affirmed the action of the respondent. This petition for writ of certiorari followed.

The authority for the revocation of an alcoholic beverage license is found in Florida Statutes, Section 561.29(1) (a) and (b) and reads as follows:

(1) The division of beverage is given full power and authority to revoke or suspend the license of any person holding a license under the beverage law, where it is determined or found by the division upon sufficient cause appearing of:
(a) Violation by the licensee, his or its agents, officers, servants or employees, on the licensed premises, or elsewhere while in the scope of employment, of any of the laws of - this state, or of the United States, or violation of any municipal or county regulation in regard to the hours of sale, service or consumption of alcoholic beverages, or engaging in or permitting disorderly conduct on the licensed premises, or permitting another on the licensed premises to violate any of the laws of this state or of the United States.
(b) Violation by the licensee, and, if a corporation, by any officers thereof, of any laws of this state, or any state, or territory of the United States.

Petitioner has raised two points on this review. The first presents a novel question and merits discussion:

Whether the Division of Beverage has the statutory authority to revoke two beverage licenses of a corporate licensee for violation of a law of the United States by a corporate officer when the violation is not committed on the licensed premises or elsewhere while in the scope of employment?

Petitioner contends that the revocation of petitioner’s licenses was based on-the violation of the provisions of Florida Statutes, Section 561.29(1) (b). Petitioner further contends that in order to revoke a license under this section it must be proved that the corporate officer violated a state law or a law of a territory of the United States. In the instant case, Donofrio, as indicated above, was convicted of two felonies in violation of the laws of the United States. To adopt this position of petitioner for reversal is to construe the word “territory” as used in the statute, supra, to be a separate political subdivision, distinct from a state. In Cunard Steamship Co. v. Mellon, 262 U.S. 100, 43 S.Ct. 504, 67 L.Ed. 894 (1923), the United States Supreme Court said:

Various meanings are sought to be attributed to the term “territory” in the phrase “the United States and all territory subject to the jurisdiction thereof.” We are of opinion that it means the regional areas — of land and adjacent waters — over which the United States claims and exercises dominion and control as a sovereign power. .
It now is settled in the United States and recognized elsewhere that the territory subject to its jurisdiction includes the land areas under its dominion and control, the ports, harbors, bays, and other inclosed arms of the sea along its coast, and a marginal belt of the sea extending from the coast line outward a marine league, or 3 geographic miles.

Therefore, it can be reasonably concluded that the word “territory” has been considered susceptible of various interpretations, that is it does not have a fixed and technical meaning that must be accorded to it in all circumstances. It has been held that the word “territory” as used in statutory construction may have a different meaning depending not only on a consideration of the word itself, but by considering, as well, the context, the purposes of the law, and the circumstances under which the word is employed.

If we should adopt petitioner’s reasoning, a corporate officer convicted of a misdemeanor under state law would be subject to revocation under Florida Statutes, Section 561.29(1)(b), whereas a corporate officer convicted of a felony against laws of the United States would not be subject to revocation proceedings. An overview of the language in the Chapter, supra, cannot be reasonably interpreted and construed to uphold the petitioner’s position. Surely the legislature in its wisdom did not intend to produce absurd results or ridiculous conclusions. In construing Florida Statutes, Section 561.29(1) (b) as we do the end result is logical and comports with common sense. Therefore, we hold the respondent has the statutory power to revoke petitioner’s licenses.

With reference to petitioner’s second contention, we briefly pause to state that there is substantial, competent evidence in the record to sustain the order of the Board. As to petitioner’s claim of hardships and inequity if not accorded the relief sought, we need only mention the finding of fact made by the respondent, which provide in pertinent part:

6. At the time of the purchase by Matassini of the one-third stock interest from Whittaker, (sic) Matassini was aware of the possibility that the licenses were impaired or were in a present danger of becoming impaired.
7. . The attorney for Mr. Matassini and Mr. Lizarralde argued to the Director that it would be inequitable to disapprove such transfer and to revoke the license because it would penalize an innocent third party to wit: Mr. Matassini. However, as related above, the Director finds that Matassini purchased his interest in the corporate licensee with knowledge of the impairment of the qualifications of such corporation to hold such license at the time of the purchase, or with the understanding that there was a substantial possibility of imminent impairment. Mr. Matassini is also the owner of, or has an interest in, several beverage licenses and is conversant with the beverage laws.

Accordingly, the petition for writ of cer-tiorari is

Denied.

GRIMES and SCHEB, JJ., concur.


text:
    MARTIN BLUMENTHAL ASSOCIATES, INC., a Florida Corporation, Appellant, v. David F. DINSMORE et al., Appellees.
    No. 73-1217.
    District Court of Appeal of Florida, Third District.
    Sept. 4, 1975.
    Porter, Treister, Donsky & Stewart and David Bercuson, Miami, for appellant.
    Steel, Hector & Davis and Dwight Sullivan, Miami, for appellees.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   ORDER ON MANDATE

PER CURIAM.

Whereas, the judgment of this court was entered on January IS, 1974 (289 So.2d 481) reversing the order of the Circuit Court for Dade County, Florida, in the above styled cause; and

Whereas, on review of this court’s judgment, by certiorari, the Supreme Court of Florida, by its opinion and judgment filed May 21, 1975 (314 So.2d 561), and mandate now lodged in this court, quashed this court’s judgment;

Now, therefore, It is Ordered that the mandate of this court heretofore issued in this cause on February 26, 1974 is withdrawn, the judgment of this court filed January 15, 1974 is vacated, the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court and the order of the Circuit Court is reinstated and affirmed. Costs allowed shall be taxed in the Circuit Court (Rule 3.16, subd. b, F.A. R.).


text:
    Isaac ARTIS, Appellant, v. W. L. FITZPATRICK, Circuit Court Judge, Appellee.
    No. Y-416.
    District Court of Appeal of Florida, First District.
    Aug. 6, 1975.

      Isaac Artis, in pro per.
    Robert L. Shevin, Atty. Gen., for respondent.
   PER CURIAM.

It having been made to appear that Isaac Artis filed a notice of appeal in the office of the Clerk of the Circuit Court for Bay County appealing an order of the trial judge denying his relief in a proceeding brought by him pursuant to Rule 3.850 R CrP and that the learned trial judge from whose order such appeal was taken sua sponte entered an order declaring said notice of appeal to be a nullity, and this Court not being cognizant of any rule or law authorizing a trial judge from whose order an appeal is taken to pass upon the validity of such appeal, and Artis, having filed herein in proper person a timely petition which we here treat as a direct appeal to this Court from the order of the learned trial judge declaring Artis’ said notice of appeal to be a nullity, said order is hereby reversed and the Clerk of the Circuit Court, Isaac Artis, Judge W. L. Fitzpatrick, the State of Florida, and all other persons interested' are hereby directed and authorized to disregard the said order hereby reversed and to treat the notice of appeal filed with the Circuit Court for Bay County on April 21, 1975, in the same manner as though said order had never been entered; and this cause shall proceed in accordance with applicable Florida Appellate Rules.

It is so ordered.

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


author: MILLS, Judge.

text:
    BILL TERRY’S INCORPORATED, a Florida Corporation, Appellant, v. James M. HALL, Appellee.
    No. X-118.
    District Court of Appeal of Florida, First District.
    Aug. 8, 1975.
    S. Gordon Blalock of Blalock, Holbrook, Lewis, Paul & Isaac, Jacksonville, for appellant.
    Brent Turbow and Arthur J. Gutman, Jacksonville, for appellee.
   MILLS, Judge.

Appellant-defendant seeks reversal of an adverse judgment based on a jury verdict.

At the conclusion of plaintiff’s case in chief and at the conclusion of all the evidence, defendant moved for a directed verdict which was denied. Defendant contends this was error.

Appellee-plaintiff sought damages from defendant, alleging defendant negligently sold him an automobile with .an invalid tag, resulting in his arrest.

Defendant urges, and we agree, that the record is devoid of any evidence supporting plaintiff’s claim of negligence. The trial court erred in denying defendant’s motion for a directed verdict at the conclusion of the plaintiff’s case in chief.

Reversed and remanded with directions to vacate and set aside the judgment rendered for plaintiff, and to render a judgment for defendant.

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


text:
    Alda Phyllis FELDMAN, Appellant, v. Al FELDMAN, Appellee.
    No. 74-1549.
    District Court of Appeal of Florida, Third District.
    July 22, 1975.
    Harvey Richman, Miami Beach, for appellant.
    Brian R. Hersh, Miami, for appellee.
    Before BARKDULL, C. J., and HEN-DRY and HAVERFIELD, JJ.
   PER CURIAM.

Appellant, ex-wife, takes this appeal to review a post decretal order reducing the amount of alimony and child support payments required to be made by appellee, ex-husband.

The marital ties between Al and Alda Feldman were severed on December 29, 1970. Prior thereto they executed a separation and property settlement agreement which provided, inter alia, that appellee, A1 Feldman, pay Alda $500 per month as alimony and $2,250 per month as child support. Upon the minor son, Marc, reaching the age of 21 or Alda remarrying, these sums were to be modified.

Subsequently, in November 1973, A1 Feldman, pursuant to § 61.14, Fla.Stat., F. S.A. filed a petition for modification of the terms of the 1970 property settlement agreement. Alda Feldman answered and an evidentiary hearing was held. The chancellor, impressed with the candid testimony of A1 Feldman, entered his order (1) reducing the total monthly payments to Alda Feldman from $2,750 to $1,500, (2) directing that A1 Feldman support and make direct payments to Marc (age 19) until he attains the age of 21 years, and (3) providing for a review of the alimony award on or about February 1, 1976 upon proper notice and hearing by either side. Alda Feldman appeals and contends that the chancellor abused his discretion. We cannot agree.

The established law is that a chancellor is authorized by § 61.14, Fla. Stat., F.S.A. to modify support and maintenance obligations owing by one spouse to another when the circumstances of the parties have so changed as to necessitate such modification, regardless of whether the obligations to pay emanate from a property or separation agreement or a judgment rendered by a court of competent jurisdiction. Posner v. Posner, Fla. 1972, 257 So.2d 530; Martin v. Martin, Fla.App.1972, 261 So.2d 179. Furthermore, whether or not an alimony award should be modified is within the broad discretion of the chancellor. See 10A Fla.Jur. Dissolution of Marriage § 318 (1973) and cases cited therein.

The evidence adduced at the hearing on the petition for modification revealed that A1 Feldman had suffered severe business loss and as a result of this decline in his financial condition was compelled to borrow to pay the support obligations which exceeded his income. On the other hand, Alda Feldman is gainfully employed, drives a late model automobile which is paid in full, and has in her savings approximately $45,000. Testimony further revealed that the minor son, Marc, lives in his own apartment and receives only $300 per month child support from his mother.

Hence, we conclude that the chancellor by relieving Mrs. Feldman of her financial responsibility to support her son, Marc, and placing this obligation upon the father and increasing the alimony award from $500 to $1,500 per month was not an abuse of discretion as there was a sufficient change in the circumstances of the parties to warrant a modification of the property settlement agreement. Cf. Purcell v. Purcell, Fla.App.1969, 223 So.2d 389; Conklin v. Conklin, Fla.App. 1973, 286 So.2d 236.

Accordingly, the order herein appealed is affirmed.

Affirmed.

      . for which appellee currently is providing the rent.


text:
    Marion KENDIG, Appellant, v. KENDALL CONSTRUCTION COMPANY and C. W. Kendall, Appellees.
    No. 75-83.
    District Court of Appeal of Florida, Fourth District.
    Aug. 8, 1975.
    Steven W. Huss and William L. Botts, III, Florida Rural Legal Services, Inc., Belle Glade, for appellant.
    I. C. Smith of Holland & Smith, West Palm Beach, for appellee.
    Robert L. Shevin, Atty. Gen., by Charles S. Rub'erg, Asst. Atty. Gen., Department of Legal Affairs, Tallahassee, amicus curiae.
   PER CURIAM.

Appellant sued appellees seeking (a) a declaration that appellees’ termination of her tenancy and threatened eviction were retaliatory and otherwise unlawful, and (b) an injunction prohibiting appellees from evicting her from her apartment without showing good cause therefor. Thereafter appellees sued appellant in the county court to evict her from the premises in question. The two cases were consolidated and tried in the circuit court resulting in a judgment finding that: (a) appellees’ attempted eviction was retaliate-. ry conduct and as such it violated Chapter 501, F.S.1975, and Rule 2-11.07, Rules of The Department of Legal Affairs; (b) the retaliatory conduct constituted a complete defense to the complaint for removal of tenant; (c) the efforts to evict appellant were permanently enjoined and said action was dismissed; (d) appellees were enjoined from instituting any possessory action regarding appellant’s tenancy until after December 31, 1974. Several days later the trial court amended its final order and held that the eviction suit was not dismissed but could not be prosecuted until December 31, 1974.

Appellant complains that she was not afforded full relief; that she should have been granted a permanent injunction against appellees’ commencing an eviction suit against appellant without requiring ap-pellees to show their retaliatory motive was dissipated; and that the court should have dismissed the eviction suit. No cross appeal has been filed by appellees.

Since the trial court found appellees’ retaliatory conduct was a complete bar to the appellees’ suit for eviction, that suit should have been dismissed. Oddly enough, in the original judgment the court did dismiss that suit. However, the amended judgment simply enjoined its prosecution for two weeks.

We see no need at this late date to treat the injunction question.

Accordingly, the amended final order dated December 16, 1974, allowing the maintenance of case # 74-222-CAR-07 is reversed, and upon remand the trial court is instructed to dismiss said case.

CROSS, MAGER and DOWNEY, JJ., concur.


author: OWEN, Judge.

text:
    KINGSWOOD BUILDERS, INC., joined by James A. Morgan, Appellants, v. WALL PLUMBING & HEATING, INC., et al., Appellees.
    No. 74-820.
    District Court of Appeal of Florida, Fourth District.
    July 31, 1975.
    Stephen R. Magyar, Winter Park, for appellants.
    Kenneth M. Leffler of Hutchison, Lef-fler & Morris, Altamonte Springs, for ap-pellee-Delia D. Elliott, etc.
   OWEN, Judge.

At a time when Kingswood Builders, Inc., a corporation, was insolvent or its insolvency was imminent, it conveyed a parcel of real property to one James A. Morgan, a creditor, which conveyance the court set aside as a void preferential transfer proscribed by Fla.Stat. § 608.55 (1965). On appeal to this court, Kingswood Builders, Inc. v. Wall Plumbing & Heating Co., Inc., 287 So.2d 352 (4th DCA Fla.1973), we held that the trial court never acquired jurisdiction over the person of the defendant James A. Morgan and that as a consequence the final judgment was void as to him and he should be dismissed as a party to the litigation.

The original final judgment not only held the deed to Morgan void, but also ordered Morgan to reconvey the property to Kingswood Builders, Inc. or, in the alternative, (since he had in the meantime conveyed the property to a third party) to account for the consideration received by him from his grantee. Additionally, the judgment awarded plaintiffs a cost judgment against Morgan. After the remand by this court, the trial court entered an amended final judgment which although continuing to hold the deed from Kings-' wood Builders, Inc. to Morgan to be void as a preferential transfer prohibited by Fla.Stat. § 608.55 (1965), omitted those provisions appearing in the original judgment which we have above italicized. It is from this amended final judgment that the same appellants have now brought this appeal.

As we understand appellants’ brief, they make no argument that the trial court, upon remand, failed to follow the mandate of this court, but instead argue such points as: (1) the court’s lack of jurisdiction over the subject matter and the parties, (2) lack of jurisdiction over the property or res, (3) the court’s failure to properly interpret or apply Fla.Stat. § 608.55 (1965), (4) the statute of limitations, and (5) the insufficiency of the evidence. All of these points were in essence argued on the prior appeal and, except for the one relating to jurisdiction over the person of James A. Morgan, were found to be without merit. Not only have we already considered all of the points which appellants now raise, but also it is clear that no new proceedings were had before the court other than merely the entry of an amended final judgment seeking to conform to the mandate of this court upon remand. Thus, it appears to us that the only real issue before us is whether the amended final judgment complies with the previous mandate of this court.

Exercising commendable acuity, the trial court correctly discerned that in our prior opinion (287 So.2d 352), in which we stated “. . . the trial court never acquired jurisdiction over the person of the defendant James A. Morgan”, we meant in personam jurisdiction, since the record reflects without question that there was proper constructive service on Morgan so as to give the court in rem jurisdiction over Morgan as to his interest in the res. The suit to cancel the deed to Morgan to real property located within the jurisdiction of the court was an in rem proceeding and constructive service was authorized under Fla.Stat. § 48.01 (1965). Recognizing that our prior opinion was intended to refer only to a lack of in personam jurisdiction over Morgan, and that the reference to his being dismissed as a party to the litigation was intended to refer only to those portions of the final judgment in which the court had sought to exercise in personam jurisdiction over him, the trial court correctly eliminated from the final judgment those portions which were void in the absence of in personam jurisdiction, but properly retained that portion which dealt only with the court’s in rem jurisdiction, i. e., the claim to title to real property within the jurisdiction of the court.

The amended final judgment from which this appeal has been taken is affirmed. By way of caveat our decision does not purport to decide the right, title or interest, if any, of Morgan’s grantee as no questions relating thereto are properly before us in this case.

Affirmed.

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


author: WALDEN, Chief Judge.

text:
    Charles Samuel JARRIEL, Appellant, v. STATE of Florida, Appellee.
    No. 74-1579.
    District Court of Appeal of Florida, Fourth District.
    Aug. 8, 1975.
    Philip G. Butler, Jr., of Foley, Colton & Butler, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Frank B. Kessler, Asst. Atty. Gen., West Palm Beach, for appellee.
   WALDEN, Chief Judge.

After Jury trial defendant was found guilty of grand larceny. He appeals his conviction on the ground a statement made by him should have been suppressed. We agree and reverse.

After an officer had contacted defendant’s wife to find out where defendant worked, he arrested defendant at his place of employment. Defendant was taken to the Sheriffs office and placed in a room for interrogation, and at no time was he booked or his location disclosed until after his statement had been given. It is undisputed that during interrogation the officer told defendant his wife would be arrested unless they could clear this thing up (by defendant’s making a statement). The interrogating officer’s testimony included the following:

“Q Did you talk to him and tell him that you could arrest the girls and if he would tell you about the incident you wouldn’t have them arrested?
“A Based on what information I had I would have had to arrest his wife unless he could show me that she wasn’t involved and that she was along because she was his wife.
“Q And did you tell him that you would only charge him with one incident if he gave you a statement?
“A I don’t have that right. Probably if something of that nature was said I probably normally — normally the courts would only require a conviction of one of the charges and they normally don’t try them all separately. In this case I don’t recall this part of the discussion with him.”

It is undisputed that during interrogation the officer told defendant his wife would be arrested unless defendant made a statement. Further, the officer did not deny that he might have told the defendant-that he would only charge him with one incident if the defendant would make a statement. • .

We find that the' defendant was improp.erly urged by direct or implied promises to make a statement, in violation of the basic tenet of law that a confessing defendant should be entirely free from the influence of' hope or fear. The resulting statement here should be suppressed on authority of Lynumn v. Illinois, 372 U.S. 528, 83 S.Ct. 917, 9 L.Ed.2d 922 (1963); M.D.B. v. State, 311 So.2d 399 (4th DCAFla.1975); State v. Chorpenning, 294 So.2d 54 (2d DCAFla.1974); Kraft v. State, 143 So.2d 863 (2d DCAFla.1962); and 13 Fla.Jur. Evidence § 248 (1957).

Reversed and remanded.

CROSS and DOWNEY, JJ., concur.


author: MILLS, Judge. BOYER, Chief Judge

text:
    Bruce Spencer FARRELL, Appellant, v. STATE of Florida, Appellee. Steven Irvin RAULERSON, Appellant, v. STATE of Florida, Appellee.
    Nos. V-445, W-29.
    District Court of Appeal of Florida, First District.
    Aug. 1, 1975.
    Larry G. Turner of Goldin & Turner, Gainesville, for appellant in No. V-445.
    Alan R. Parlapiano, Asst. Public Defender, for appellant in No. W-29.
    Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellee.
   ON REHEARING GRANTED

MILLS, Judge.

By its opinion of 5 May 1975, this Court affirmed the trial court as the record furnished it showed that defendants did not condition their pleas of nolo contendere on a reservation of the issue raised by their appeal.

Defendant Farrell petitions for rehearing alleging that through procedural error the clerk failed to reflect defendant Farrell’s reservation in the Minutes, and attaches a certified copy of the proceedings w-hich shows this was properly done. Defendant Raulerson petitions for rehearing alleging that his right to appeal has been defeated by the oversight of his attorney, the Public Defender, in reserving his right to question the validity of the order on appeal, though it was agreed this would be done. Defendant Raulerson requests the Court to consider the issue raised on the appeal as provided by Hollingshead v. Wainwright, 194 So.2d 577 (Fla.1967). The State has not denied the defendants’ allegations. A rehearing is granted defendants. We withdraw our opinion of 5 May 1975 and reverse.

The Court will now consider the issue raised by this appeal. That issue is whether the unintentional destruction of a tape recording of the transaction out of which defendants were charged, after timely demand for discovery, violates defendants’ right to due process.

Defendants filed a motion to dismiss the informations contending that the State unintentionally destroyed admissible material evidence which violated their right to due process. The State and defendants submitted the following stipulation of facts for consideration by the trial court:

“1. On or about 26 September 1973 an INFORMATION was filed charging the Defendant in COUNT I with delivery of cocaine and in COUNT II with possession with intent to sell of cocaine.

“2. On or about 17 October 1973, the Defendant entered a written PLEA OF NOT GUILTY and, pursuant to Rule 3.-220, F.R.Cr.P., filed a demand for discovery. Paragraph 7 of said DEMAND FOR DISCOVERY demanded the production of electronic surveillance of the Defendant or documents related thereto. Paragraph 2 of said DEMAND FOR DISCOVERY demanded 'the statement of any person whose name is furnished in compliance with’ paragraph 1 of said DEMAND.

“3. On or about 29 October 1973 the STATE OF FLORIDA filed its ANSWER TO DEMAND FOR DISCOVERY and in Paragraph 2(h) thereof indicated that it has no electronic surveillance evidence or documents relating thereto. Paragraph 2(a) of the State of Florida’s ANSWER TO DEMAND FOR DISCOVERY indicated that it had no statements given by persons listed in Paragraph 1 of said ANSWER TO DEMAND FOR DISCOVERY.

“4. On the night of the Defendant’s arrest, he had certain conversations with undercover agent L. L. Vipperman of the Alachua County Task Force which is under the direction of The State Attorney. Attached to the person of Agent Vipper-man was an electronic device which transmitted the verbal negotiations between the agent and the Defendant to another Task Force agent stationed nearby who recorded these negotiations on tapes. This is the customary practice in the investigation of cases of this type and is a precaution for the protection of the agents involved and the large sums of public monies often used by them for the acquisition of controlled substances for use as evidence. The tape recording was for protective purposes only and its use as evidence in the event of arrest was neither contemplated nor intended.

“5. Some time after the completion of their investigation and after the Defendant’s DEMAND FOR DISCOVERY was filed, the tape was again used in another unrelated investigation, during the course of which, the portion containing the conversations between Agent Vipperman and the Defendant was ‘played over’ and thus, erased. The Defendant’s counsel makes no claim that this wás done intentionally or with the intent to deprive the Defendant of any substantive or procedural rights or to impede the preparation of his defense. However, the Defendant argues that the tapes would have been beneficial to him in the cross-examination at trial of the State Task Force agents and would have enabled him to impeach them or cast doubt upon their credibility. He also suggests that the erasure of the tape has an adverse effect on his raising the defense of entrapment and/or in showing that a delivery never took place. He contends that the net effect upon him of the loss of the tape is the same whether it was done through carelessness, and inadvertence, or done maliciously and intentionally.

“6. The erasure of the tape was unknown to the State Attorney when he responded to the Defendant’s DEMAND FOR DISCOVERY that he had ‘no electronic surveillance of the premises of the accused or of conversations which accused was a party.’ ”

The Supreme Court of the United States stated in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215:

“We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”

The stipulated facts come within the standards set forth in Brady:

1. defendants made demand for discovery of the tape;
2. the State suppressed the tape by denying its existence, and thereafter erasing the tape;
3. the tape contained favorable evidence as it transcribed the entire transaction between the defendants and the officer. If the State doubted the admissibility and usefulness of the tape, it should have admitted its existence in its response to the demand for discovery and permitted the trial court to determine its duty to disclose;
4. the taped conversation was material and could well have been used by defendants in support of their defense, challenging the credibility of the State’s witnesses, or impeachment; and
5.it is immaterial whether the State suppressed in good or bad faith.

Under the stipulated facts, defendants were denied due process. It is our opinion that our federal and state constitutions protect a person charged with a crime from acts which might be practiced in the name of justice by police and prosecuting officers to hinder an accused in the effective presentation of his defense. This abuse must not and will not be permitted.

Reversed and remanded to set aside the judgments, sentences imposed, and dismiss the informations.

McCORD, J., concurs.

BOYER, C. J., concurs specially.

BOYER, Chief Judge

(specially concurring).

I concur, but in doing so I feel it desirable to point out that we reverse in this case based upon the uncontradicted facts as recited by the stipulation of the parties, particularly the allegation by the appellant that the erased tapes would have been beneficial to him and that destruction thereof resulted in prejudice. (See Treverrow v. State, Sup.Ct.Fla.1967, 194 So.2d 250 and Estes v. State, Fla.App. 1st, 1974, 294 So.2d 122.) In other words, the mere fact that a tape recording which might have been used in evidence was inadvertently destroyed does not ipso facto lead to reversal. On the contrary, it must be demonstrated that the destroyed evidence was material and that the defendant was prejudiced by the destruction.

I also feel it important that in reversing we again admonish the State to adhere to the rules relative to discovery in criminal proceedings. (See Hawkins v. State, Fla.App. 1st, 1975, 312 So.2d 229.)


text:
    Michael Raymond BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 75-204.
    District Court of Appeal of Florida, Second District.
    July 30, 1975.
    James A. Gardner, Public Defender, Sarasota, and Douglas A. Wallace, Asst. Public Defender, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant was convicted of the crimes of robbery and using a firearm in the commission of a felony. Similar sentences were imposed to run concurrently. Since the two crimes were facets of the same criminal act, the sentence on the firearm charge is hereby vacated. Cone v. State, Fla. 1973, 285 So.2d 12.

The judgments and the robbery sentence are hereby affirmed.

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


author: GRIMES, Judge.

text:
    Willard Arthur MORTON, Appellant, v. STATE of Florida, Appellee.
    No. 74-1258.
    District Court of Appeal of Florida, Second District.
    July 23, 1975.

      James A. Gardner, Public Defender, Sarasota, Harold H. Moore, Asst. Public Defender, Bradenton, and Tania Ostapoff, Student Asst., Gainesville, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

Pursuant to a plea bargain whereby two other charges were nol-prossed, appellant entered a plea of guilty to a charge of breaking and entering with intent to commit grand larceny. Following a pre-sen-tence investigation, appellant appeared with the public defender for sentencing. At that time, he made statements which indicated that he understood he had been guaranteed probation. However, the court and his own attorney indicated there had been no such guarantee. Appellant was then permitted to confer with his attorney, at which point the two became in total disagreement. Thereupon, the court imposed a sentence of five years imprisonment.

On this appeal, appellant contends that he should have been allowed to withdraw his guilty plea. The state responds by pointing out that he had previously stated that his guilty plea had not been induced by any promise, and that the record otherwise adequately refutes his position. Be that as it may, at the time appellant originally entered his plea, the record reflects the following:

“THE COURT: * * *
“Do you understand with a negotiated plea we will order a P.S.I., a pre-sen-tence investigation, and you will be remanded to custody until the P.S.I. has been returned. And that with the negotiated plea I advise you that after the return of the P.S.I. if the sentence is different then you have a right to withdraw the plea. Do you understand ?
“MR. MORTON: Yes.”

This colloquy lends some substance to the contention that an agreement had been reached on the sentence, subject to the court’s right to impose a different sentence after having the benefit of a pre-sentence investigation. While it is true that at the sentencing hearing neither appellant nor his attorney moved to withdraw his plea, we think he should have been offered an opportunity to do so in view of the obvious confusion which existed at that time. Cf. Enos v. State, Fla.App. 4th, 1973, 272 So.2d 847. The law inclines toward a trial on the merits, and where it appears in the interests of justice a defendant should be permitted to withdraw his guilty plea. Riddle v. State, Fla.App. 2d, 1968, 212 So.2d 122.

Accordingly, the judgment and sentence are hereby vacated, and the case is remanded so as to permit the appellant the opportunity to withdraw his plea. Should he choose to do so, the state would be permitted to prosecute on the other charges which were nol-prossed. Faced with these prospects, should the appellant have second thoughts and decide not to withdraw his plea, the trial court should reinstate the previous judgment and sentence.

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


text:
    Paul VARBLES, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 74-1277.
    District Court of Appeal of Florida, Second District.
    Aug. 27, 1975.
    James A. Gardner, Sarasota, and Douglas A. Wallace, Asst. Public Defender, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee. • ■
   PER CURIAM.

Affirmed. See State v. Sellers, Fla.App.2d 1973, 281 So.2d 397.

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


text:
    CHRYSLER MOTOR CORPORATION, Appellant, v. Norman NAIL and Jim Hooper Dodge, N., a Florida Corporation, Appellees.
    No. 75-575.
    District Court of Appeal of Florida, Fourth District.
    July 31, 1975.
    Edna L. Caruso of Howell Kirby, Montgomery,' D’Aiuto & Dean, West Palm Beach, for appellant.
    Charles M. Harris of Crofton, Holland, Starling Harris & Severs, Titusville, for appellee Norman Nail.
   PER CURIAM.

This is an interlocutory appeal of a summary final judgment entered in favor of appellee, Norman Nail, and against appellant, Chrysler Motor Corporation, on the issue of liability in an action seeking damages for fraud, misrepresentation and breach of warranty.

The pleadings, depositions, answers to interrogatories and admissions reveal that there are geniiine issues of material fact precluding summary judgment; specifically, whether appellant through its regional service representative warranted or fraudulently represented to Appellee-Nail the new and unused condition of the Dodge Charger purchased by Appellee-Nail, and whether appellant was vicariously liable for warranties and fraudulent representations made by appellee, Jim Hooper Dodge, North, through its employees, concerning the new and unused condition of the Dodge Charger purchased by Appellee-Nail. Since fact issues exist, summary judgment was prematurely entered, and we therefore reverse and remand for further proceedings consistent with the views herein expressed. Rule 1.510(c) Fla.RCP (1973); Leaks v. Adeimy, 195 So.2d 47 (Fla[App.1967).

Reversed and remanded for further proceedings.

CROSS, OWEN and MAGER, JJ., concur.


author: BOYER, Chief Judge.

text:
    Robert Ward BACOM, Appellant, v. STATE of Florida, Appellee.
    No. W-470.
    District Court of Appeal of Florida, First District.
    Aug. 6, 1975.
    Bartley K. Vickers, Mahon, Farley & Vickers, Jacksonville, for appellant.
    Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for appellee.
   BOYER, Chief Judge.

Appellant, defendant in the trial court, appeals his conviction of manslaughter and resulting ten year sentence.

The evidence adduced by the State 'reveals that while appellant, partially disabled by arthritis, sat hemmed in by the wall to his back and a bar to his side, he was approached by the decedent, an alleged karate expert, who invited, without provocation, appellant outside to fight. Appellant protested that he wanted no fight and urged the decedent to leave him alone. The decedent thereupon went outside from whence he promptly returned, approaching appellant, who was not in a position to extricate himself, taking off his (the decedent’s) glasses as he did so. As the decedent continued his charge appellant, who had taken no provocative action, stabbed or cut the decedent several times with a knife. The decedent thereafter died of bronchial pneumonia which resulted from the stab wounds and the surgery relating thereto.

The sole issue for our resolution relates to the sufficiency of the evidence to sustain the conviction of appellant, who asserted as defenses justifiable homicide and self defense.

The record is clear that appellant did nothing to provoke the decedent and took no affirmative action except to protect himself in a place where he had a right to be and from whence he could not reasonably extricate himself. Had he left the premises when the decedent went outside following his initial invitation to fight, as the State claims he should have, then such action might well have been interpreted by the decedent as an affirmative response to the invitation. Instead, appellant remained in what appeared to be a position of safety, ignoring the belligerent invitations to fight cast at him by the decedent. In short, the evidence fails to reveal that appellant did anything other than that which should be expected of any reasonable, intelligent, prudent person under the circumstances. There is no evidence that his defense of himself exceeded that reasonably called for by the situation in which he found himself but which he did not create. The evidence adduced by the State was insufficient to support the conviction and the learned trial judge erred in not granting appellant’s motion for a directed verdict. (See Bolin v. State, Fla.App.3rd 1974, 297 So.2d 317; Harris v. State, Fla.App.2nd 1958, 104 So.2d 739 and Bozeman v. State, Sup.Ct.Fla.1932, 106 Fla. 270, 143 So. 236.)

Reversed and remanded with directions that appellant be discharged.

MILLS, J., and MELVIN, WOODROW M., Associate Judge, concur.


author: SCHEB, Judge.

text:
    STATE of Florida, Appellant, v. Michael Patrick DWYER, Appellee.
    No. 75-162.
    District Court of Appeal of Florida, Second District.
    July 23, 1975.

      Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellant.
    Kenton H. Haymans and Robert G. Jacobson, of Farr, Farr, Haymans, Moseley & Odom, Punta Gorda, for appellee.
   SCHEB, Judge.

The trial court directed a verdict of not guilty on a charge of disorderly conduct against the appellee. Thereafter, appellee sought dismissal of an information which charged him with violating Fla.Stat. § 843.01 by resisting arrest with violence, a charge which grew out of the arrest for disorderly conduct. The trial judge dismissed the information under RCrP 3.-190(b), stating:

This Court . . . finds that the County Court in and for Charlotte County, Florida, directed a verdict of not guilty at the close of the State’s case and found as a matter of law that the Defendant was not guilty inasmuch as the State had failed to prove a prima facie case of disorderly conduct against the Defendant. The Court further finds that the doctrine of Res Judicata applies in criminal cases in the State of Florida and the State is barred from offering any evidence as to the Defendant’s disorderly conduct and therefore is barred from proving one of the essential elements of the charge of resisting arrest with violence.

On appeal the state contends that these two different crimes were subject to separate prosecutions since the two charges are separate and distinct. We agree and we reverse.

Under Florida law a defendant can, under appropriate circumstances, be found guilty of resisting an arrest even though he may be found not guilty of the underlying offense which gave rise to the initial arrest. Smith v. State, Fla.App.3d 1974, 292 So.2d 69. See also Canney v. State, Fla.App.2d 1973, 298 So.2d 495; and, Burgess v. State, Fla.App.2d 1975, 313 So.2d 479.

Appellee argues that for the state to prove a charge of resisting arrest with violence, that it is necessary for it to establish ultimate facts which were resolved against the state when the defendant was tried on charges of disorderly conduct. Appellee reasons the state’s failure to make a prima facie case of the initial charge is tantamount to a finding by the court that the initial arrest was unlawful. We think this argument is fallacious because the legality of the initial arrest was dependent upon whether the arresting officer had reasonable grounds to believe the appellee was committing a misdemeanor. In the former case the determination was whether or not the appellee was guilty of the offense of disorderly conduct.

In support of his order, the trial judge cited Busbee v. State, Fla.App. 1st 1956, 183 So.2d 27. True, Busbee does state that res judicata is applicable to criminal cases. Accordingly, matters directly determined by a criminal court of competent jurisdiction cannot subsequently be disputed by the same parties. In Busbee the defendant was acquitted of hit and run charges arising from the same facts as resulted in a charge of manslaughter by intoxication. Where he sought to bar prosecution on the ground of res judicata the court held he had the burden of proving that his acquittal in the hit and run case had adjudicated for all times an issue or fact which would preclude conviction for manslaughter; the court declined to dismiss the manslaughter charges stating that the mere allegation of acquittal on the hit and run charge was not sufficient to constitute a bar to his prosecution for manslaughter.

Since the proof to be required of the state on the resisting arrest charge must evidence reasonable grounds for the appel-lee’s arrest by the officer, and since this issue still remains to be adjudicated, the acquittal on the charge of disorderly conduct does not constitute a bar to prosecution for resisting arrest with violence.

Reversed and remanded.

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


text:
    Dennis Paul COX, Appellant, v. STATE of Florida, Appellee.
    No. 74-1501.
    District Court of Appeal of Florida, Fourth District.
    July 11, 1975.
    Rehearing Denied Sept. 4, 1975.
   PER CURIAM.

Affirmed.


text:
    John H. BIGGS, III, and Dale Biggs, his wife, Appellants, v. D & L CONSTRUCTION, INC., and Joe Fearnley Real Estate, Inc., Appellees.
    No. 74-1725.
    District Court of Appeal of Florida, Fourth District.
    July 18, 1975.
    Rehearing Denied Sept. 4, 1975.
   PER CURIAM.

Affirmed.


text:
    James L. MILBY, Appellant, v. STATE of Florida, Appellee.
    No. 74-736.
    District Court of Appeal of Florida, Fourth District.
    July 18, 1975.
    Rehearing Denied Sept. 4, 1975.
   PER CURIAM.

Affirmed.


text:
    Ronald Jerry REMARK, Appellant, v. STATE of Florida, Appellee.
    No. 74-1641.
    District Court of Appeal of Florida, Fourth District.
    July 18, 1975.
    Rehearing Denied Sept. 4, 1975.
   PER CURIAM.

Affirmed.


text:
    Mary CIRELLI, Appellant, v. Ross Lee BAKER et al., Appellees.
    No. 74-1481.
    District Court of Appeal of Florida, Second District.
    July 25, 1975.
    Rehearing Denied Aug. 29, 1975.
   PER CURIAM.

Affirmed.


text:
    Henry P. COPELAND, Appellant, v. STATE of Florida, Appellee.
    No. 75-1296.
    District Court of Appeal of Florida, Fourth District.
    July 30, 1975.
   Habeas corpus denied.


text:
    The STATE of Florida, Appellant, v. Donald Raymond JALBERT, Appellee.
    No. 75-885.
    District Court of Appeal of Florida, Third District.
    July 30, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Verdell TEAL, Appellant, v. STATE of Florida, Appellee.
    No. 75-402.
    District Court of Appeal of Florida, Second District.
    July 30, 1975.
   Appeal dismissed.


text:
    John V. PHILPOT, Appellant, v. Katen Thomas MILLER and Frieda L. Miller, his wife, Appellees.
    No. X-350.
    District Court of Appeal of Florida, First District.
    Aug. 1, 1975.
    Rehearing Denied Sept. 2, 1975.
   PER CURIAM.

Affirmed.


text:
    In re Trust Under the WILL of Harmon H. EASON, Deceased.
    No. 74-983.
    District Court of Appeal of Florida, Second District.
    Aug. 6, 1975.
    Rehearing Denied Sept. 3, 1975.
   PER CURIAM.

Affirmed.


text:
    Lillian ERNST, Appellant, v. August ERNST, Appellee.
    No. 74-533.
    District Court of Appeal of Florida, Fourth District.
    Aug. 8, 1975.
   PER CURIAM.

Affirmed.


text:
    Chester JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 74-1507.
    District Court of Appeal of Florida, Fourth District.
    Aug. 8, 1975.
   PER CURIAM.

Affirmed.


text:
    Robert D. KELLER, Appellant, v. STATE of Florida, Appellee.
    No. 74-1243.
    District Court of Appeal of Florida, Fourth District.
    Aug. 8, 1975.
   PER CURIAM.

Affirmed.


text:
    Frank NANI, Appellant, v. STATE of Florida, Appellee.
    No. 74-1578.
    District Court of Appeal of Florida, Fourth District.
    Aug. 8, 1975.
   PER CURIAM.

Affirmed.


text:
    Gene Melvin JONES, Appellant, v. STATE of Florida, Appellee.
    No. X-38.
    District Court of Appeal of Florida, First District.
    Aug. 11, 1975.
   PER CURIAM.

Affirmed.


text:
    Clarence E. McDONALD, Appellant, v. STATE of Florida, Appellee.
    No. X-84.
    District Court of Appeal of Florida, First District.
    Aug. 11, 1975.
   PER CURIAM.

Affirmed.


text:
    Horace Leroy MADDOX, Appellant, v. STATE of Florida, Appellee.
    No. W-443.
    District Court of Appeal of Florida, First District.
    Aug. 11, 1975.
   PER CURIAM.

Affirmed.


text:
    Eugene REED, Appellant, v. STATE of Florida, Appellee.
    No. X-512.
    District Court of Appeal of Florida, First District.
    Aug. 11, 1975.
   PER CURIAM.

Affirmed.


text:
    Eddie Lee RHILES, Appellant, v. STATE of Florida, Appellee.
    No. Y-39.
    District Court of Appeal of Florida, First District.
    Aug. 11, 1975.
   PER CURIAM.

Affirmed.


text:
    Riley Curtis ROSIER, Appellant, v. STATE of Florida, Appellee.
    No. X-463.
    District Court of Appeal of Florida, First District.
    Aug. 11, 1975.
   PER CURIAM.

Affirmed.


text:
    Aline S. MERTZ a/k/a Aline S. Barnett, Appellant, v. John A. MERTZ, Jr., Appellee.
    No. X-361.
    District Court of Appeal of Florida, First District.
    Aug. 12, 1975.
   PER CURIAM.

Affirmed.


text:
    Henry Edward PATTERSON, Appellant, v. STATE of Florida, Appellee.
    No. X-530.
    District Court of Appeal of Florida, First District.
    Aug. 12, 1975.
   PER CURIAM.

Affirmed.


text:
    James E. PRESCOTT, Appellant, v. STATE of Florida, Appellee.
    No. X-537.
    District Court of Appeal of Florida, First District.
    Aug. 12, 1975.
   PER CURIAM.

Affirmed.