text:
    Leamon BROWNLEE, Appellant, v. STATE of Florida, Appellee.
    No. 77-640.
    District Court of Appeal of Florida, Fourth District.
    Feb. 21, 1978.

      Richard L. Jorandby, Public Defender, Jerry L. Schwarz, Asst. Public Defender, Gail A. Gottardo, Legal Intern, West Palm Beach, and Allen J. DeWeese, Asst. Public Defender, Boca Raton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee and Benedict P. Kuehne, Asst. Atty. Gen., West Palm Beach, for appellee.
   CRAWFORD, GRADY L. (Ret.), Associate Judge.

This appeal is from a conviction of grand' larceny of groceries valued at over one hundred dollars.

The challenged portion of the arresting officer’s testimony is as follows:

“Q. What did you do then?
A. I asked Mr. Brownlee if he had come in a vehicle, if possibly his wife was outside, and at this point he refused to answer any more of my questions.
Q. Did you advise him of what we call the Miranda warnings or rights?
A. Yes, I did.
Q. How did you so advise him?
A. After calling over the store P.A. system for his wife.
MR. JORDAN [Defense Counsel]: Judge, I am going to object to this and ask that the jury be excused (T 23).
* * * * * *
MR. JORDAN: Judge, at this point I am going to move for a mistrial in that the officer stated my client refused to answer any questions. This is before any Miranda rights were said, before anything. He stated on direct examination that he refused to answer any questions.
* * * * * 4c
THE COURT: I will deny your motion for mistrial. Go ahead (T 24).”

It appears from the record that this call over the store P.A. system was made before the above quoted testimony and after the reading of the Miranda rights. The record indicates that appellant was given his Miranda rights warning prior to his refusal to answer any more of the officer’s questions.

On the basis of these facts, the trial court denied the motion for new trial because the statements were concerned with pre-custo-dial interrogation and therefore did not constitute improper comment on appellant’s right to remain silent in face of accusation.

From the transcript it appears that appellant’s refusal to answer any more questions came after he was given his Miranda rights. Therefore any comment on appellant’s silence was improper. If the Miranda warning preceded the refusal to answer, then appellant was certainly being subjected to an in-custodial interrogation. In any event, it clearly appears that the appellant was not free to leave the scene, was under interrogation and that interrogation was custodial. See Bennett v. State, 316 So.2d 41 (Fla.1975); Shannon v. State, 335 So.2d 5 (Fla.1976); Webb v. State, 347 So.2d 1054 (Fla. 4th DCA 1977).

Furthermore, even if appellant’s silence was prior to the receipt of his warnings or his arrest, the interrogation should still be deemed custodial. A determination of whether an interrogation is custodial or pre-custodial should focus on whether the interrogation imposes any restrictions on the defendant’s liberty. The practical question should be whether the defendant was free to walk away from the interrogation. It seems fairly obvious that the officer would not let appellant merely walk away from the interrogation. Thus, the interrogation in the instant case was custodial. We reverse the conviction.

Proof of the value of the groceries taken was by the store manager and employees testifying that the itemized aggregate retail value came to a total of $103.73. The proof adduced by the State here was remarkably similar to that in Cleare v. State, 321 So.2d 122 (Fla. 3d DCA 1975) where the Court held that the total retail price of the individual items amounted to more than $100.00. The proof of value was thus sufficient to establish the crime of grand larceny.

REVERSED and REMANDED for new trial.

ANSTEAD and DAUKSCH, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Adolfo Gerda DELAGADO, Appellant, v. STATE of Florida, Appellee.
    No. 76-2325.
    District Court of Appeal of Florida, Fourth District.
    Feb. 21, 1978.
    Richard L. Jorandby, Public Defender, and Larry S. Weaver, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, for appellee.
   CRAWFORD, GRADY L. (Ret.), Associate Judge.

Appellant, convicted of manslaughter, appeals on the ground that the State had not proved beyond a reasonable doubt that he did not act in self-defense.

The State relied exclusively on Appellant’s statement, which was to the effect, that he, the deceased and a third man were listening to music and drinking in appellant’s apartment. The other two men started arguing. Appellant quieted them. Appellant then went to the bathroom and the two men started threatening him. Neither of the men were armed but one man did have possession of a bottle. Appellant returned from the bathroom with a gun, told the two men to leave and they proceeded to call him names. Appellant then stated that he “shot Juan to scare him.” He fired several more shots and ran.

Appellant killed one unarmed man and wounded the second because they verbally abused him. There is no self-defense here.

“In order to justify a homicide on the ground of self-defense the situation must be such as to induce a reasonably prudent person to believe that danger was imminent and that there was a real necessity for the taking of life. O’Steen v. State, 1927, 92 Fla. 1062, 111 So. 725. When threats are considered in relation to the defense that the accused killed in self-protection, there must be evidence of an overt act which would induce a reasonable belief that the threatened person will lose his life or sustain serious bodily injury unless he immediately takes the life of his adversary. State v. Coles, Fla.1956, 91 So.2d 200. The law disparages the kind of ‘self-defense’ which would subject human life to ‘the mercy or cowardice or capricious impulse of one whose easily awakened fear prompts him, who is armed with a deadly weapon, to strike upon what at best may be called a hostile demonstration on his victim’s part.’ Collins v. State, 1925, 88 Fla. 578, 102 So. 880, 881.” Darty v. State, 161 So.2d 864, 872-73 (Fla.2d DCA 1964). (emphasis added).

Appellant’s second point is that the following prosecutorial comment improperly referred to the appellant’s right to remain silent:

“I say to you in this particular case I don’t think you have a lack of evidence in this case. You have a total case. You have heard just about from everybody in this case. Let me say to you that you don’t have an insufficiency of evidence to reach a decision on in this particular case.” (T. 263).

In view of the quoted statement, appellant’s argument is highly contrived. While the statement may imply that not everyone was heard from, any such implication would appear to refer to a police officer who failed to show up for the trial and whose name was called by the bailiff, or to the “other man” who was with appellant and decedent. The comment does not imply that appellant has failed to testify.

Therefore, the judgment of the trial court should be

AFFIRMED.

ANSTEAD and DAUKSCH, JJ., concur.


author: MOORE, Judge.

text:
    Howard DOZIER, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 77-798.
    District Court of Appeal of Florida, Fourth District.
    Feb. 21, 1978.

      Howard Dozier, Jr., in pro per.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, for appellee.
   MOORE, Judge.

This is another case which involves comment upon a defendant’s exercise of his Fifth Amendment privilege to remain silent.

The appellant (hereinafter referred to as defendant) was convicted of the charge of breaking and entering a dwelling house. His direct appeal of that conviction resulted in an affirmance and he subsequently filed a Motion to Vacate Judgment and Sentence pursuant to Fla.R.Crim.P. 3.850. The trial court’s denial of said motion without hearing is the subject of this appeal.

Defendant alleges that the following colloquy occurred at his trial when the prosecution was examining a police officer:

“Q. Did you advise him of his constitutional rights?
A. Yes, sir. I did.
Q. Did you ask him whether or not he understood these rights?
A. Yes, I did.
Q. Did he indicate to you whether or not he did or did not?
A. He indicated that he did understand.
Q. Okay, did you continue the questioning then and ask him some questions?
A. I asked him where he was and everything and he indicated he did not wish to talk so no further questioning was conducted.”

There is no doubt that such a colloquy under Florida law is impermissible and of such magnitude that it constitutes reversible error for which the doctrine of harmless error is not applicable. Bennett v. State, 316 So.2d 41 (Fla.1975); Shannon v. State, 335 So.2d 5 (Fla.1976). The sole question remaining for our determination is whether or not the defendant should have been allowed to collaterally attack this error through a Motion for Post Conviction Relief in the absence of an objection at trial. If not, the trial court was correct in denying his motion without a hearing. If such error may be so attacked, the trial court should have conducted an evidentiary hearing to determine the validity of the alleged facts and enter an appropriate ruling thereon.

Our decision is controlled by our previous opinions in Bostic v. State, 332 So.2d 349 (Fla. 4th DCA 1976); Carter v. State, 335 So.2d 875 (Fla. 4th DCA 1976); Collins v. State, 340 So.2d 516 (Fla. 4th DCA 1976); Sylvester v. State, 341 So.2d 203 (Fla. 4th DCA 1977); Royal v. State, 347 So.2d 742 (Fla. 4th DCA 1977). A fundamental error of constitutional dimension may be collaterally attacked.

Accordingly, this cause is reversed and remanded for an evidentiary hearing in accordance with this opinion.

REVERSED AND REMANDED.

DOWNEY and DAUKSCH, JJ., concur.


author: DOWNEY, Judge.

text:
    EWELL ENGINEERING & CONTRACTING COMPANY, Charles M. Moore and John Lyles, Appellants, v. Tam Finley CATO and Emma Boyd Cato, and Dr. Ed Farrar & Schering Corporation, Appellees.
    No. 74-1028.
    District Court of Appeal of Florida, Fourth District.
    Feb. 28, 1978.

      Walton B. Hallowes, Jr., of Maguire, Voorhis & Wells, P. A., Orlando, for appellants.
    James C. Rinaman, Jr., and John R. Saal-field, of Marks, Gray, Conroy & Gibbs, Jacksonville, for appellee-Dr. Ed Farrar.
    Edna L. Caruso, of Howell, Kirby, Montgomery, D’Aiuto & Dean, West Palm Beach, for appellee-Schering Corp.
   DOWNEY, Judge.

Appellee Tam Finley Cato fell from a motor vehicle owned by appellant, Ewell Engineering & Contracting Company. The vehicle was being operated by appellant Moore under the direction of appellant Lyles. As a result of the fall Cato injured his leg and was taken to a hospital for treatment. During Cato’s stay in the hospital he was treated by a physician, appellee Dr. Ed Farrar, with a drug known as Gara-mycin manufactured by appellee Schering Corporation. Experiencing a bad result, Tam Cato and his wife, Emma Boyd Cato, sued Ewell Engineering, Moore and Lyles for negligence in causing Cato to fall, resulting in a fracture of his left femur. Ultimately Cato claims that he sustained a complete and permanent loss of vestibular function in his left leg.

Appellants filed a third party complaint against appellees Dr. Ed Farrar, M.D., and Schering Corporation, alleging that the doctor negligently treated Cato with Garamy-cin which Schering Corporation negligently placed on the market and that these negligent acts caused a good portion of Cato’s ultimate injuries. Therefore, appellants claimed partial indemnity or contribution or apportionment of damages from Farrar and Schering.

The trial court dismissed the third party complaint with prejudice for failure to state a cause of action. On appeal this Court reversed the trial court, Ewell Engineering & Contracting Company v. Cato, 310 So.2d 437 (Fla. 4th DCA 1975), upon authority of our then recent decision in Stuart v. Hertz Corporation, 302 So.2d 187 (Fla. 4th DCA 1974). The Supreme Court of Florida in Stuart v. Hertz Corporation, 351 So.2d 703 (Fla.1977), quashed our Hertz decision.

Ewell petitioned the Supreme Court for a Writ of Certiorari which was granted and in an opinion filed December 8, 1977, 353 So.2d 86, the Supreme Court remanded the Ewell case back to this Court for reconsideration in light of its Hertz opinion.

In the Hertz decision the Supreme Court articulated the issue presented as:

“[WJhether or not an active tortfeasor in an automobile accident may bring a third party action for indemnity against a physician for damages directly attributable to malpractice which aggravated the plaintiff’s injuries.” Id. at 704.

After a résumé of the law involving indemnity and the resort to third party practice in suits of this nature, the Supreme Court concluded:

“In summary, to allow a third party action for indemnity, as in the case sub judice, would not only incorrectly expand traditional concepts of indemnity to the point of making it indistinguishable from contribution, but also expand the applicability of the third-party rule and make it a tool whereby the tortfeasor is allowed to complicate the issues to be resolved in a personal injury suit and prolong the litigation through the filing of a third-party malpractice action.
“We therefore hold that Hertz Corporation, the initial tortfeasor, may not file a third-party complaint seeking indemnity for the alleged aggravation of the injuries by the negligence of the treating physician.” Id. at 706.

In passing we should point out that in Hertz the third party plaintiff apparently sought only indemnification and one might argue that the case is authority only for the proposition that a claim for indemnity does not lie in that situation. However, there were other reasons ascribed for not allowing third party practice in a Hertz situation which equally apply to all of the third party plaintiff’s claims in this case.

Accordingly, having reconsidered this . case in the light of the recent decision of the Supreme Court of Florida in Stuart v. Hertz Corporation, supra, the order of the circuit court bearing date of August 1,1974, dismissing the third party complaint with prejudice is affirmed.

AFFIRMED.

ALDERMAN, C. J., and MOORE, J., concur.


author: DAUKSCH, Judge.

text:
    Robert D. GROVES, Appellant, v. STATE of Florida, Appellee.
    No. 76-432.
    District Court of Appeal of Florida, Fourth District.
    Feb. 28, 1978.
    Richard L. Jorandby, Public Defender, and Frank B. Kessler, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   DAUKSCH, Judge.

Upon a review of the evidence, we find it conflicting but sufficient to justify the verdict and support the judgment of conviction of murder in the second degree.

However, we must vacate the sentence and remand for resentencing in order for the appellant to be given credit for time served in jail from arrest to sentencing. Sutton v. State, 334 So.2d 628 (Fla. 4th DCA 1976). The judgment is also defective because it orders confinement at hard labor. McDonald v. State, 321 So.2d 453 (Fla. 4th DCA 1975). Finally, the judgment recites the Appellant was convicted after entering his plea of guilty which is not true. He was tried by a jury and found guilty of second degree murder after having been charged with first degree murder. The use of a “form judgment” when not in the proper form was part of the cause of this error.

The judgment is affirmed and the sentence is vacated. The matter is remanded for resentencing in a proper manner not inconsistent herewith.

Sentence is vacated and remanded.

CROSS and DOWNEY, JJ., concur.

Denying certiorari, Fla., 359 So.2d 1214.


author: PER CURIAM. DAUKSCH, Judge,

text:
    Otis N. NEWMAN, Appellant, v. STATE of Florida, Appellee.
    No. 76-1682.
    District Court of Appeal of Florida, Fourth District.
    Feb. 28, 1978.
    Richard L. Jorandby, Public Defender, and Frank B. Kessler, Chief, App. Div., West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, Basil S. Diamond, and Benedict P. Kuehne, Asst. Attys. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. Russo v. State, 340 So.2d 1273 (Fla. 4th DCA 1976).

ANSTEAD and MOORE, JJ., concur.

DAUKSCH, J., dissents.

DAUKSCH, Judge,

dissenting.

I respectfully dissent. While the defendant was properly tried and convicted of receiving stolen property the judgment suffers the same technical defect as the judgment in Spurlock v. State, 281 So.2d 586 (Fla. 4th DCA 1973) in that it fails to recite knowledge on the defendant’s part. Therefore, I would remand for the entry of a new proper judgment. Brinson v. State, 345 So.2d 780 (Fla. 4th DCA 1977).


author: ANSTEAD, Judge.

text:
    STATE of Florida, Appellant, v. Prince Albert LEWIS, Terry Lee Youman, and Willie Reed, Appellees. STATE of Florida, Appellant, v. Idus JENKINS, Appellee.
    Nos. 76-2508, 76-2509.
    District Court of Appeal of Florida, Fourth District.
    Feb. 28, 1978.

      David H. Bludworth, State’s Atty., and William B. King, Asst. State Atty., Palm Beach County, West Palm Beach, for appellant.
    Joseph Jordan and Nelson E. Bailey of Bailey & Jordan, P. A., West Palm Beach, for appellee Terry Lee Youman.
    Richard L. Jorandby, Public Defender, Stuart A. Young, Asst. Public Defender, and William H. Larkins, Legal Intern, West Palm Beach, for appellee Willie Reed.
    Franklin G. Callas of O’Connor, Baylor, Callas & Elliott, Palm Beach, for appellee Idus Jenkins.
   ANSTEAD, Judge.

This is an appeal by the state from orders discharging the appellees under the speedy trial rule. We believe only Reed was entitled to be discharged.

After originally being charged and a trial date being scheduled, all of the appellees moved for a continuance and expressly waived their rights to a speedy trial. Thereafter, a trial date was set for January 19, 1976. On January 16, 1976, an order was entered granting a motion to suppress filed by the appellees. On January 23 the state appealed that order but did not move to enlarge the time for speedy trial. On January 27 the appellee Reed filed a demand for speedy trial.

On July 15, 1976, the state filed a “Motion to Extend Speedy Trial Limitations” seeking to enlarge the time for speedy trial until after a resolution of the state’s appeal. That motion was granted by order of July 23, 1976. In the same order the trial court denied motions to discharge filed by Reed and Lewis. Finally, on October 21, 1976, after the order of suppression had been reversed, the trial court granted renewed motions for discharge filed by all the appel-lees.

While each of the appellees expressly waived their rights to a speedy trial, it has also been held that the right to a speedy trial is impliedly waived when a continuance is requested. State v. Abrams, 350 So.2d 1104 (Fla. 4th DCA 1977). However, a defendant’s rights under the speedy trial rule may be regained by the filing of a demand for speedy trial. State ex rel. Butler v. Cullen, 253 So.2d 861 (Fla.1971); State v. Acurse, 347 So.2d 828 (Fla. 3d DCA 1977). Reed, by filing his demand for speedy trial on January 27, was entitled to be tried within 60 days. The appeal filed by the state did not automatically operate to toll that 60 day period. State v. Cannon, 332 So.2d 127 (Fla. 4th DCA 1976). And the state did not request an extension of the speedy trial time until several months after the 60 days had expired. Therefore, Reed was entitled to discharge and the order granting his motion should be affirmed.

None of the other appellees filed a demand for speedy trial. Their previous express waivers left them without any right to be tried within a certain time as provided in the speedy trial rule and with only a right to be tried within a reasonable time. State ex rel. Butler v. Cullen, supra. The trial court found that the appellees were entitled to be discharged because 180 days had passed from the last date set for trial, January 19. But because of the appellees’ waiver of their right to a speedy trial, no such 180 day time schedule was in effect. The trial court cited the case of Hogan v. State, 305 So.2d 835 (Fla. 1st DCA 1974), cert. denied Fla., 312 So.2d 757, in its orders of discharge. Hogan held that where there was no proper justification by the state for a lengthy delay in bringing the defendant to trial, a defendant would be entitled to discharge. Here, the trial court found that the delay caused by the state’s filing of an interlocutory appeal was reasonable and necessary, and granted the state’s motion to extend the time for trial. Once that determination was properly made, as it was here, the appellees were not entitled to be discharged because of the delay occasioned by the appeal.

Accordingly, the order of discharge as to the appellee, Willie Reed, is hereby affirmed and the order of discharge as to the appellees, Prince Albert Lewis, Terry Lee Youman, and Idus Jenkins, is hereby reversed with directions for further proceedings in accordance with this opinion.

AFFIRMED IN PART AND REVERSED IN PART, WITH DIRECTIONS.

DAUKSCH, J., and CRAWFORD, GRADY L., Associate Judge, concur.


author: PER CURIAM.

text:
    STATE of Florida, Petitioner, v. James L. GRES, David G. Thomas, Anthony Darwin, Respondents.
    No. 77-464.
    District Court of Appeal of Florida, Fourth District.
    Feb. 28, 1978.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Basil S. Diamond, Asst. Atty. Gen., West Palm Beach, for petitioner.
    Roger V. Rigau of Law Offices of Abel H. Rigau, Tampa, for respondents.
   PER CURIAM.

The state filed a three count information charging the appellees Gres, Thomas and Darwin in Count I, Gres and Thomas in Count II, and Gres and Thomas in Count III. All of the counts involved the possession or attempted possession of a controlled substance. Darwin filed a motion for severance. None of the other appellees sought a severance. After a hearing on Darwin’s motion, the trial court entered an order granting each defendant a separate trial as to each count or a total of seven trials. We can find no basis in the record for ordering such a severance except as to Darwin. Accordingly, the petition for writ of certiorari is granted; and the order of severance is hereby quashed except for that portion of the order which grants a severance to ap-pellee, Tony Darwin.

ANSTEAD and DAUKSCH, JJ., and CRAWFORD, GRADY L., Associate Judge, concur.


text:
    Dale W. JOHNSON and Robert V. Clark, Petitioners, v. The FLORIDA REAL ESTATE COMMISSION and Casimir M. Szpak, Respondents.
    Nos. 77-740, 77-742.
    District Court of Appeal of Florida, Fourth District.
    Feb. 28, 1978.
    Stephen C. Frasier of Sommer, Frasier & Fenniman, Stuart, for petitioner-Johnson.
    W. Dave Womack, Tequesta, for petitioner-CIark.
    Howard Hadley and Frederick H. Wilsen, Jr., Winter Park, for respondents.
   PER CURIAM.

Certiorari denied.

CROSS, ANSTEAD and DAUKSCH, JJ., concur.


author: MOORE, Judge. ANSTEAD, Judge,

text:
    SUPRO CORPORATION, a California Corporation, Appellant, v. Joe BRIDWELL and Dorothy Bridwell, and John Westfall and Amy Westfall, his wife, Appellees.
    No. 77-800.
    District Court of Appeal of Florida, Fourth District.
    Feb. 28, 1978.
    Rush, Marshall, Bergstrom & Robison, Orlando, for appellant.
    Joseph Padawer, Maitland and Calvin J. Faucett, Orlando, for appellees.
   MOORE, Judge.

This is an interlocutory appeal from an order vacating a final judgment entered upon a non-jury trial at which the appellees failed to appear.

The non-jury trial was conducted on February 14, 1977 and final judgment was entered for the plaintiff-appellant on the same day. Ten days later, the defendants-appellees, John Westfall and Amy Westfall, his wife filed their motion to set aside the final judgment alleging a meritorious defense and excusable neglect on the part of their attorney whose affidavit indicated his file had been misplaced due to moving his official residence. In his order vacating the final judgment and granting a new trial, the trial court found the conduct of the attorney to be “gross and without justification,” but in recognizing the penalty which would be imposed upon the defendants by not vacating the final judgment, he proceeded to grant such relief.

Rule 1.540(b) provides relief to a party from a final judgment where there has been mistake, inadvertence, surprise or excusable neglect. In Travelers Ins. Co. v. Bryson, 341 So.2d 1013 (Fla. 4th DCA 1977), we held that the entry of a default judgment upon failure of counsel to appear at a hearing on a motion for default judgment because he had failed to properly note the hearing on his calendar was mistake or inadvertent or excusable neglect.

Within ten days from the entry of the final judgment in the case sub judice, the appellees moved to set aside the final judgment. That motion was grounded upon the failure of counsel to appear at the trial because his file had been misplaced due to moving his official residence. We find that this constitutes excusable neglect.

If the trial court’s conclusion can be supported on any theory, we must affirm notwithstanding his failure to use the proper reasoning. See State Plant Board v. Smith, 110 So.2d 401 (Fla.1959).

Accordingly, the order under review is hereby

AFFIRMED.

DAUKSCH, J., concurs.

ANSTEAD, J., dissents with opinion.

ANSTEAD, Judge,

dissenting:

In addition to the failure to appear at the final hearing, the appellant has cited numerous instances of counsel’s failure to appear at various proceedings in the trial court over a period of several months. In the affidavit filed in support of the motion to vacate, the trial attorney claimed he had no knowledge of the trial date because he had misplaced the file in the case when he moved his office on January 14, 1977. However, the order setting the trial was sent to counsel by the court on November 15, 1976, two months before the change of offices. No explanation is made as to whether counsel received the notice, whether the matter was calendared or as to what happened. The trial court concluded:

Needless to say, the conduct of the attorney is gross and without justification. The clients should not be penalized. The Court recognizes there is also a hardship for the Plaintiff, who claims to have a proper claim against the Defendants. Plaintiff has already testified and another trial would result in additional costs and attorneys’ fees.
After due consideration the Court is going to grant the Motion to Vacate. At the same time counsel for the Defendants will be personally responsible for any additional costs incurred as a result of the new trial, including attorneys’ fees. This is a condition of the granting of the motion.

It is obvious that the trial court properly found that there was no excuse for counsel’s neglect. His reasons for vacating the default were solely out of concern for the attorney’s clients. This is not a legally sufficient reason to vacate a judgment. Accordingly, I would reverse.


text:
    Lester BARON, Petitioner, v. FLORIDA INDUSTRIAL RELATIONS COMMISSION, Respondent.
    No. 77-1246.
    District Court of Appeal of Florida, Fourth District.
    Feb. 28, 1978.
    Lester Baron, in pro per.
    No appearance for respondent.
   DAUKSCH, Judge.

By Petition for Writ of Certiorari, Petitioner Lester Baron seeks review of the order of the Industrial Relations Commission denying his claim for unemployment benefits.

The Claims Examiner determined that Petitioner was not entitled to benefits because he was discharged for misconduct connected with work. The Appeals Referee amended the determination of the Claims Examiner by finding that Petitioner was not entitled to benefits because he voluntarily left his employment without good cause attributable to the employer. The decision of the Appeals Referee was affirmed by the Industrial Relations Commission.

We find that the Appeals Referee’s ruling that Petitioner voluntarily left his employment without good cause is not supported by competent substantial evidence. Ivie v. Florida Department of Commerce, Indus. Rel. Com’n, 323 So.2d 15 (Fla. 4th DCA 1975); Castillo v. Florida Department of Commerce, 253 So.2d 162 (Fla. 2d DCA 1971).

The Petition for Writ of Certiorari is granted, the order under review is quashed, and the cause is remanded for entry of an order allowing the prescribed benefits.

ALDERMAN, C. J., and ANSTEAD, J., concur.


text:
    Virgil P. SPIRES, Petitioner, v. The INDUSTRIAL RELATIONS COMMISSION OF the DEPT. OF COMMERCE and the Central Florida Flood Control District, Respondents.
    No. 77-1483.
    District Court of Appeal of Florida, Fourth District.
    Feb. 28, 1978.
    N. Albert Bacharach, Jr. of Florida Rural Legal Services, Inc., Fort Pierce, for petitioner.
    Thomas J. Schwartz and Robert Grafton, West Palm Beach, for respondent-South Florida Water Management District.
   PER CURIAM.

Certiorari denied.

DOWNEY, ANSTEAD and LETTS, JJ., concur.


text:
    Robert M. TROMBLEY, Petitioner, v. FLORIDA REAL ESTATE COMMISSION, an agency of the State of Florida, and W. Wesley Wallace, Respondents.
    No. 77-1740.
    District Court of Appeal of Florida, Fourth District.
    Feb. 28, 1978.
    David T. Price of Price & Bryne, Fort Lauderdale, for petitioner.
    Howard Hadley and Louis B. Guttmann, III, Winter Park, for respondents.
   PER CURIAM.

The petition for writ of certiorari is denied.

DOWNEY, DAUKSCH and LETTS, JJ., concur.


text:
    EXECUTIVE COMMERCIAL SERVICES, LTD., an Illinois Corporation, Petitioner, v. SOUTH FLORIDA PARTS & SUPPLY, INC., Joseph J. DeMarco, and Frances DeMarco, Respondents.
    No. 77-1924.
    District Court of Appeal of Florida, Fourth District.
    Feb. 28, 1978.

      James B. Davis of Rimes, Greaton, Murphy & Batchelder, Fort Lauderdale, for petitioner.
    No appearance for respondents.
   PER CURIAM.

Petitioner, which was a defendant in the trial court, has filed a petition for writ of certiorari seeking review of an order that denied its motion to dismiss for lack of prosecution. It used the wrong procedure in seeking this review. An order denying dismissal for lack of prosecution, even in an action formerly cognizable at law, is an interlocutory order which may be reviewed by interlocutory appeal. Fla.App. Rule 4.2. However, the erroneous filing of a petition for certiorari rather than a notice of interlocutory appeal does not justify dismissal where, as in this case, a proper review procedure is available and relief is timely sought. State v. Johnson, 306 So.2d 102 (Fla.1975). We will treat the petition as an interlocutory appeal.

On the merits we find that the trial court erred in denying the motion to dismiss. There was no activity in this case for more than a year after the complaint was filed. If the plaintiffs had.some excuse for not serving their complaint on this defendant for more than one year after it was filed, they failed in their duty under Fla.R. Civ.P. 1.420(e) to show good cause in writing, at least five days before the hearing on the motion, why the action should remain pending. Koppers Company, Inc. v. Victoire Development Corp., 284 So.2d 193 (Fla.1973).

REVERSED and REMANDED with directions that the defendant’s motion to dismiss for lack of prosecution be granted.

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


text:
    Thomas LEONE, Appellant. v. TOWN OF PALM BEACH, a Municipal Corporation, and Charles H. Warwick and Robert G. Knox, jointly and severally, Appellee.
    No. 77-2043.
    District Court of Appeal of Florida, Fourth District.
    Feb. 28, 1978.

      Edward H. Fine of Campbell, Colbath, Kapner & Fine, West Palm Beach, for appellant.
    Adams, Sullivan, Coogler, Watson & Smith, West Palm Beach, for appellee.
   PER CURIAM.

In an action formerly cognizable at law, the plaintiff seeks to review by interlocutory appeal the trial court’s order striking the prayer for punitive damages in two counts of plaintiff’s three count complaint. As there is no basis for treating this as an interlocutory appeal under F.A.R. 4.2, we dismiss the appeal. Casper v. Beshany, 351 So.2d 1110 (Fla. 4th DCA), Opinion issued November 9, 1977; Longo v. Collins, 106 So.2d 1 (Fla. 1st DCA 1958).

Furthermore, we will not treat the interlocutory appeal as a petition for writ of certiorari because “interlocutory orders in cases previously cognizable at law are reviewable by certiorari only when it clearly appears that there is not full, adequate and complete remedy available by appeal after final judgment”. Johnson v. General Motors Corp., 350 So.2d 1119 (Fla. 4th DCA 1977). Welsh v. Tropical Roofing Co., 127 So.2d 894 (Fla. 2d DCA 1961) is directly on point. The trial court struck a prayer for punitive damages from the complaint and the Second District held that an interlocutory appeal was improper and that certiorari could not be granted. See also, Siegel v. Abramowitz, 309 So.2d 234 (Fla. 4th DCA 1975). But see, Allstate Insurance Co. v. Gibbs, 340 So.2d 1202 (Fla. 4th DCA 1976) (this court granted certiorari to review a discovery order and at the same time reviewed .the denial of the defendant’s motion to dismiss the punitive damage count in plaintiff’s complaint). In Gibbs, certiorari would not have been proper in the absence of the discovery issue.

APPEAL DISMISSED.

DOWNEY, ANSTEAD and MOORE, JJ., concur.


author: CROSS, Judge.

text:
    DEPARTMENT OF HEALTH & REHABILITATIVE SERVICES of the State of Florida, Appellant, v. Josephine C. WAGNER, as Administratrix of the Estate of Peter Alan Wagner, a minor, Nova University, Inc., a Florida Corporation, Appellees.
    No. 77-579.
    District Court of Appeal of Florida, Fourth District.
    April 4, 1978.

      Jonathan J. Davis of Walton, Lantaff, Schroeder & Carson, Fort Lauderdale, for appellant.
   CROSS, Judge.

The Florida Department of Health and Rehabilitative Services seeks through interlocutory appeal review of an order denying appellant’s motion for change of venue in an action to recover damages for wrongful death.

On February 17, 1975, Peter Alan Wagner was beaten to death by two juvenile inmates who had escaped from the Nova Living and Learning Center of Nova University, Inc., a behavioral or correctional institute located in Broward County, Florida. Suit was filed alleging that the Florida Department of Health and Rehabilitative Services, through its Division of Youth Services, was negligent along with others in the manner in which the inmates at the Nova Center were selected and supervised.

The Department filed its motion for change of venue on the ground that suits sounding in tort brought against state agencies, even though other defendants are involved, must be brought in the county wherein the agency maintains its principal office. The motion for change of venue was denied. Hence, this interlocutory appeal.

The sole question presented for our determination is whether the trial court erred in denying appellant’s motion for change of venue.

Our recent decision in Game & Fresh Water Fish Commission v. Carlile, 341 So.2d 1015 (Fla. 4th DCA 1977), aff’d 354 So.2d 362 (Fla.S.Ct. Opinion filed November 30, 1977), is directly on point. In Carlile, we determined that a tort action brought against the state or one of its agencies must be maintained'in the county wherein the agency maintains its principal headquarters. Thus, in the instant case proper venue lies in Leon County.

The trial court’s reliance on our decision in Swinscoe v. State, Department of Revenue, 320 So.2d 11 (Fla. 4th DCA 1975), is misplaced. The Swinscoe case is one wherein it was the state agency which was the “initial sword-wielder” and thus fell within the well recognized exception to genera] venue requirements that permits suit to be filed in the county wherein agency action -is threatened or imminent. Such is not the case here where the Department of Health and Rehabilitative Services is charged with negligence.

Accordingly, the order denying appellant’s motion for change of venue is reversed and the cause remanded to the trial court with directions to enter an order transferring the case to Leon County, Florida.

Reversed and remanded, with directions.

ALDERMAN, C. J., and DOWNEY, J., concur.

      . See State Department of Revenue v. First Federal Savings & Loan Association of Fort Myers, 256 So.2d 524 (Fla. 2d DCA 1971), and the discussion of that phrase in both our decision in Game & Fresh Water Fish Commission v. Carlile, 341 So.2d 1015 (Fla. 4th DCA 1977) and that of the Supreme Court at 354 So.2d 362 (Fla. Opinion filed November 30, 1977).


text:
    E. C. JOHNSON, M.D., Petitioner, v. Herbert J. CRAWFORD, as Personal Representative of the Estate of Marcus Crawford, a Deceased Minor and Everglades Memorial Hospital, a Florida Corporation, Respondents.
    No. 77-233.
    District Court of Appeal of Florida, Fourth District.
    April 10, 1978.
    Larry Klein, West Palm Beach, and De-Santis, Cook, Meehan & Cohen, North Palm Beach, for petitioner.
    Edward A. Perse of Horton, Perse & Ginsberg and Stanley M. Rosenblatt, Miami, for respondents.
   CROSS, Judge.

We treat as a petition for a common law writ of certiorari an interlocutory appeal seeking review of an order terminating jurisdiction of a medical mediation panel.

Petitioner is one of two original defendants in a medical malpractice mediation proceeding. Petitioner, with consent of opposing counsel, delayed filing an answer beyond the twenty-day statutory limit provided in § 768.44(l)(c), Florida Statutes (Supp.1977). The judicial referee, upon noting the fact of petitioner’s late filing, entered an order dismissing petitioner from the mediation proceeding. Hence, this interlocutory appeal which we treat as a petition for a common law writ of certiorari.

This court recently had occasion to address this issue in Latorra v. Patrick, 359 So.2d 463 (Fla. 4th DCA 1978). In Latorra, we noted that the time period established by the provisions of § 768.44(l)(c), Florida Statutes, is jurisdictional as are other limitation periods established by § 768.44. See also Perkins v. Pare, 352 So.2d 65 (Fla. 4th DCA 1977).

Accordingly, the petition for certiorari is denied.

Certiorari denied.

ALDERMAN, C. J., and MOORE, J., concur.


text:
    STATE of Florida DEPARTMENT OF COMMERCE, DIVISION OF EMPLOYMENT SECURITY, Petitioner, v. William E. LONGE, Respondent.
    No. 77-2044.
    District Court of Appeal of Florida, Fourth District.
    April 10, 1978.

      Kenneth H. Hart, Jr., Gen. Counsel, and Steven H. Parton, Tallahassee, for petitioner.
    James R. Parks, Miami, for respondent-Board of Review.
   DAUKSCH, Judge.

For our review is an order of the Board of Review which vacated the orders of an appeals referee disallowing unemployment compensation benefits to Mr. Longe. We grant certiorari under the authority of Section 20.17(5)(7), Florida Statutes (1977).

In applying Section 443.06(8), Florida Statutes (1977), the appeals referee said Mr. Longe was not entitled to unemployment compensation because he was receiving retirement benefits from the state in excess of what he was allowed to receive in unemployment compensation. The Board of Review vacated that order saying Mr. Longe should be allowed to recoupe the amount he contributed to the retirement fund. As we held in City of Ft. Lauderdale v. Fowler, 355 So.2d 159 (Fla. 4 DCA 1978); and as it was held in Fla. Dept. of Commerce v. Todd, 353 So.2d 662 (Fla. 2 DCA 1978), we again hold that a person receiving retirement or pension benefits cannot receive unemployment compensation in any week in which his retirement or pension benefits meet or exceed the unemployment compensation to which he would have been entitled. Section 443.06(8), Florida Statutes (1977).

Petition for Writ of Certiorari is granted and the order of the Board of Review is quashed and the cause is remanded to the Board of Review with directions to affirm the order of the appeals referee.

ALDERMAN, C. J., and MOORE, J., concur.


text:
    STATE of Florida ex rel. Irving SCHRAGER, Appellant, v. Edward J. STACK, Sheriff of Broward County, Appellee.
    No. 77-708.
    District Court of Appeal of Florida, Fourth District.
    May 31, 1978.
    Rehearing Denied Sept. 13, 1978.
    Kenneth R. Mikos of Friedrich, Kersten, Blackwell & Mikos, Fort Lauderdale, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, Paul H. Zacks and Harry Hipler, Asst. At-tys. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. See State v. Gale, 312 So.2d 824 (Fla. 4th DCA 1975).

ANSTEAD and LETTS, JJ., and POUL-TON, TIMOTHY P., Associate Judge, concur.


author: SMITH, Judge.

text:
    Joanne C. TAYLOR, Appellant, v. SAFECO INSURANCE COMPANY, Appellee. Joanne C. TAYLOR, etc., Appellant, v. Earl TAYLOR and Safeco Insurance Company, a corporation, Appellees.
    Nos. EE-223, EE-225.
    District Court of Appeal of Florida, First District.
    June 8, 1978.
    As Corrected On Denial of Rehearing Aug. 31, 1978.
    As Corrected Sept. 13, 1978.

      David R. Lewis of Lewis, Paul, Isaac & Castillo, P.A., Jacksonville, for appellant.
    William. M. Howell of Howell, Howell, Liles & Braddock, Jacksonville, for appel-lees.
   SMITH, Judge.

These appeals concern an automobile liability insurer’s responsibility for a money judgment in a wrongful death action which was entered against its insured, with his consent, as a result of settlement negotiations which he personally conducted. The insured had no counsel because, shortly before trial on the main claim, the insurer withdrew the defense it initially provided the insured with coverage questions reserved. As the trial began the insurer re-tendered a defense, again seeking to reserve the right to contest coverage, but the insured refused the conditional defense. Lawyerless, the insured then consented to a substantial judgment. The claimant demanded payment from the insurer, both as third party beneficiary of the insurance contract and as holder of a written assignment of rights from the insured, who has not satisfied the judgment. The trial court discharged the insurer by summary judgment, holding as a matter of law that the insured defaulted in his policy obligations and discharged the insurer’s obligations when he agreed to the judgment without the insurer’s consent. The claimant appeals.

Earl Taylor, with his brother William as a passenger, drove Robert Henry’s automobile into a collison that killed William. Appellant, the widow, sued Earl for William’s wrongful death and joined appellee Safeco, the owner’s liability insurer to the extent of $50,000. Safeco assumed Earl’s defense, reserving with his consent the right to contest the issue of whether Earl was an insured for whose negligence Safeco was responsible. In its own behalf Safeco pleaded that defense to the widow’s claim. The trial court sustained Safeco’s defense by summary judgment on April 16, 1974, holding that Safeco did not insure Earl’s liability because he did not drive the automobile with the owner’s consent, but only with the consent of the owner’s permittee, who incidentally was brother William. Thus prevailing on the coverage issue, Safeco gave Earl notice that it was withdrawing from his defense. On May 9, 1974, the trial court entered an order permitting John Sulik, Esquire, who had been defending Earl at Safeco’s expense, to withdraw as Earl’s counsel.

The widow’s case against lawyerless Earl was set for trial beginning June 13, 1974. On June 10, the widow timely appealed from the summary judgment dismissing Sa-feco as a party defendant. On receiving notice of claimant’s appeal, Safeco moved-— with what standing does not appear- — to continue the scheduled trial. That motion was denied. On the day of trial, lawyer Sulik appeared for Safeco during examination of the venire and retendered his services to Earl, but subject as before to Safe-co’s right to contest coverage. Earl rejected the offer and said further that he would not accept Safeco’s defense unless Safeqo agreed to pay the entire amount of any judgment. Without counsel, Earl then negotiated with his sister-in-law and her counsel and offered to submit to a $1,000,000 judgment. The widow’s lawyer haggled Earl down to $730,000. A consent verdict and judgment in that amount were entered against Earl. Eighteen months later, this court reversed Safeco’s summary judgment and remanded the coverage issue for trial. Taylor v. Safeco Ins. Co., 324 So.2d 645 (Fla. 1st DCA 1976). The widow as assignee of the unsatisfied judgment filed a separate action against Safeco. Safeco pleaded in the consolidated cases that it was released from any coverage by Earl’s action in de-dining Safeeo’s retendered defense and settling the widow’s claim. On that issue the trial court entered the appealed summary judgments for Safeco.

The coverage issue never having been tried, we assume that Earl Taylor was an insured within the meaning of the policy. Our inquiry is whether he forfeited that insurance by violating the insured’s duties under policy clauses providing:

Assistance and Cooperation of the Insured-Liability and Physical Damage Sections : The insured shall cooperate with SAFECO and, upon SAFECO’s request, assist ... in the conduct of suits . . [T]he insured shall not, except at his own cost, voluntarily make any payment, assume any obligation or incur any expense other than for such immediate medical and surgical relief to others as shall be imperative at the time of accident.
Action against SAFECO ... No action shall lie against SAFECO until after full compliance with all the terms of this policy nor until the amount of the insured’s obligation to pay shall have been finally determined either by judgment against the insured after actual trial or by written agreement of the insured, the claimant and SAFECO.

At the outset of this litigation Safeco was willing to afford Earl Taylor a defense because of the possibility that Earl might later be held to have been one insured by the policy and for whom it required a defense. But Safeco wished to avoid any implication that it acquiesced in the assertion, made by the claimant and by Earl, that Safeco would be liable to pay any resulting judgment. To avoid any claim of estoppel, Phoenix Assur. Co. of New York v. Hendry Corp., 267 So.2d 92 (Fla. 2d DCA 1972), Safeco notified Earl that it undertook his defense reserving its claim of nonli-ability for any judgment. Safeco was entitled to take that position, for the law distinguishes between the insurer’s duties to defend and to pay, Stevens v. Horne, 325 So.2d 459 (Fla. 4th DCA 1976), and does not forbid agreement between insurer and a putative insured which resolves the urgent question of who shall defend and postpones resolution of the contingent question of who shall pay any judgment.

Similarly, Earl Taylor was not obliged to surrender control of his personal defense to an insurer which disclaimed responsibility for any judgment within policy limits that might result from the litigation. Without affecting the question of Safeco’s liability to pay any judgment within policy limits, Earl was privileged at the outset to deny Safeco control of his defense which is exemplified by Safeco’s selection and payment of a lawyer to represent Earl. Just as the insurer is not required to abandon its contest of a duty to pay as a condition of fulfilling an assumed or admitted duty to defend, the insured is not required to abandon control of his own defense as the price of preserving his claim, disputed by the insurer, that the insurer pay any judgment. The law respects, but does not require, such agreements. See, e. g., Bergh v. Canadian Universal Ins. Co., 197 So.2d 847, 849-50 (Fla. 1st DCA 1967); Butters v. City of Independence, 513 S.W.2d 418, 425 (Mo.1974). The agreement between Earl and Safeco thus allayed the latent conflict until the circuit court by summary judgment determined, in April 1974, that Earl was not insured and that Safeco would have no responsibility for any judgment against him. When Safeco’s nonliability as Earl’s insurer was judicially determined, any duty it had to defend Earl terminated. Therefore, although Safeco was justified in withdrawing from Earl’s defense simultaneously with Safeeo’s final dismissal from the action, the claimant’s notice of appeal put Safeco on notice that its potential liability might yet be restored. Again Safeco offered to defend Earl, but again without prejudice to its right to contest responsibility to pay. This time, Earl refused the offer and undertook to conduct his own defense at trial.

At this juncture, Safeco had not wrongfully denied Earl a defense, but had stood ready to defend Earl at every moment when a possibility remained that Earl was in law an insured to whom Safeco owed a defense. Nor had Earl at this point taken any action inconsistent with his claim that he was an insured for whom Safeco should pay a judgment within policy limits. Specifically, Earl had not then violated an insured’s duty “to cooperate,” for that duty did not require surrendering control of his defense to an insurer which, though willing to defend, still disclaimed responsibility for any resulting judgment within policy limits. This proposition is the exact and equally true converse of that stated in Three Sons, Inc. v. Phoenix Ins. Co., 357 Mass. 271, 277, 257 N.E.2d 774, 777 (1970):

[T]he defendant [insurer] had a duty to defend the plaintiff . . . without a reservation of rights or claim of nonwaiver, so long as it insisted on retaining control of the defense.

The circumstances of this case vividly illustrate the tensions that afflict agreements between insurer and putative insured that the insurer shall provide a defense without conceding liability for any judgment. The central issue in this case, Earl Taylor’s liability for his brother’s death, was discomfiting in itself. A vigorous defense of Earl required averments, and would have required proof, that both Earl and his brother were intoxicated; that his brother was at fault for riding with Earl; that his brother requested Earl to drive and knew that the brakes were defective; and that his brother had a duty to protest Earl’s driving but did not.

Earl’s understanding of the necessity for the position Safeco sought to take in Earl’s defense required the most sensitive handling by Safeco’s assigned lawyer. A relationship of confidence was essential. Given Safeco’s legitimate reservation of its denial of ultimate liability, the law does not and did not compel Earl to accept, nor to restore, such a relationship. Earl was therefore free to provide his own defense without affecting any liability Safeco might ultimately have for the judgment. Earl was entitled also to effect a settlement of the widow’s claim against him, and that notwithstanding Safeco’s policy which for-bad the insured to “assume any obligation” without Safeco’s consent and which conditioned Safeco’s liability on “a judgment against the insured after actual trial or by written agreement of the insured, claimant and SAFECO.” Safeco’s reservation of its assertion of nonliability, though privileged, relinquished to Earl, at his election, control of the litigation.

We are aware that many authorities speak of the insured’s privilege to effect a reasonable settlement, payable by the insurer upon a finding that insurance existed, as arising upon the insurer’s unjustified refusal to defend. Michigan Mut. Liab. Co. v. Mattox, 173 So.2d 754, 758 (Fla. 1st DCA 1965); Cunningham v. Austin Ford, Inc., 189 So.2d 661, 666 (Fla. 3d DCA 1966); Phoenix Assur. Co. of New York v. Hendry Corp., 267 So.2d 92, 94 (Fla. 2d DCA 1972); 7A Appleman, Insurance Law and Practice § 4690 (1962, Supp. 1974); Annot., 49 A.L. R.2d 694, 743 et seq. (1956). For the reasons stated above, we conceive that the insurer’s potential obligation to pay also subsists when, as a result of the parties’ failure to agree upon a conditional defense, the putative insured chooses to control the litigation and to effect a reasonable settlement.

This is not to say that Safeco is liable to the claimant or to Earl Taylor for all or part of the $730,000 settlement. Factual issues remain for determination by the trial court. The threshold issue remains whether Earl was an insured. If that should be established, there remains an issue of whether Earl settled with his sister-in-law in bad faith, fraudulently, collusively, or without any effort to minimize his liability. In those circumstances Safeco would have no liability to pay any part of the insured’s settlement, even if Safeco had absolutely and wrongfully refused to defend. Coblentz v. American Surety Co. of New York, 416 F.2d 1059 (5th Cir. 1969); Georgia So. & Fiorida Ry. Co. v. United States Cas. Co., 97 Ga.App. 242, 102 S.E.2d 500 (1958); Fidelity & Cas. Co. of New York v. Galt, 196 F.2d 329 (5th Cir. 1952); Lawrence v. Burke, 6 Ariz.App. 228, 431 P.2d 302 (Ariz.1967). The record affirmatively shows, and the summary judgment may be taken as having properly established, that Safeco did not violate any duty to defend Earl. Therefore, if Earl should prevail on all other factual issues, the amount of Safeco’s liability will be limited to the amount of a reasonable settlement up to a maximum of the policy limits.

The claimant widow necessarily occupies Earl’s position on these issues. Both as beneficiary of Safeco’s policy and as as-signee of Earl’s right of action against Sa-feco, the claimant widow can in these circumstances have no greater right against Safeco than Earl himself would have. Their interests in justifying the settlement are and were the same. Contrast Poole v. Travelers Ins. Co.. 130 Fla. 806, 179 So. 138 (1937).

The summary judgment for Safeco, though correct in its determination that Safeco did not refuse to defend or otherwise violate any duty to Earl Taylor, improperly foreclosed other factual issues pertinent to the determination of Safeco’s liability. The judgment is therefore AFFIRMED in part and REVERSED in part and the case REMANDED for further proceedings.

McCORD, C. J., and MELVIN J., concur.


author: BOYER, Judge.

text:
    AETNA LIFE INSURANCE COMPANY, Appellant, v. Glenda S. SIEVERT, Appellee.
    No. GG-52.
    District Court of Appeal of Florida, First District.
    June 9, 1978.
    Rehearing Denied Sept. 12, 1978.
    Robert P. Gaines, of Beggs & Lane, Pensacola, for appellant.
    Louis K. Rosenbloum and Richard P. Warfield, of Levin, Warfield, Middlebrooks, Mabie, Rosenbloum & Magie, Pensacola, for appellee.
   BOYER, Judge.

Aetna appeals a final judgment entered by the trial court pursuant to a jury verdict for appellee. It contends, first, that the lower court erred in denying its motion for directed verdict at the conclusion of the evidence. We do not agree. A verdict should be directed only when the evidence would not be legally sufficient to sustain a verdict and that is not the case here. Secondly, Aetna contends that the court erred in denying its motion for new trial on the grounds that the verdict was contrary to the manifest weight of the evidence. Its basic argument is that there was compelling evidence that appellee’s deceased husband had made material misrepresentations and omissions on his application for group credit life coverage. We find this point to be without merit. The general rule in Florida is that representations made by an insured on an insurance application present questions of fact to be resolved by a jury. Underwriters National Assurance Co. v. Harrison, 338 So.2d 58 (Fla. 3d DCA 1976); Hyman v. Life Insurance Co. of North America, 481 F.2d 441 (5th Cir. 1973).

Aetna also contends that attorney’s fees should not have been awarded to ap-pellee. That point has recently been resolved in Aetna’s favor by Roberts v. Carter, 350 So.2d 78 (Fla.1977). Appellee is not the contracting insured, the insured’s estate, a specifically named policy beneficiary nor an assignee of the policy; therefore she cannot recover an attorney’s fee under Section 627.428(1), Florida Statutes (1975). Neither may she prevail on her theory of third party beneficiary. Phoenix Insurance Co. v. Helton, 298 So.2d 177 (Fla. 1st DCA 1974), cert. dis., 330 So.2d 724 (Fla.1976). Furthermore, it does not appear that the policy was delivered in this state. (See F.S. 627.401) The provision for $9,000.00 fees is therefore deleted from the Final Judgment.

Finally, Aetna contends that certain of Appellee’s costs were not properly taxed. Included in the taxed costs were expenses in obtaining hospital records, a copy of a deposition and over $250.00 for transportation of counsel to attend the deposition of Dr. Davis, the neighborhood doctor who had at the time of the trial moved to Virginia. Aetna urges that those items should not have been allowed. We agree. The hospital records were not admitted into evidence and no necessity for them was demonstrated. The copy of the deposition was neither entered into evidence nor used at the trial for impeachment nor otherwise. (See Horner v. Red Top Cab & Baggage Co., 37 So.2d 160 (Fla.1948)) Neither was the taxation of counsel’s expenses for traveling to Virginia for the purpose of deposition proper. The taxation of costs is hereby reduced to $102.19.

Affirmed in part and reversed in part.

McCORD, C. J., and MELVIN, J., concur.

ON PETITION FOR REHEARING DENIED

Appellee contends that we apparently overlooked Travelers Insurance Company v. Tallahassee Bank and Trust Company, 133 So.2d 463 (Fla. 1st D.C.A. 1961), cert. denied 138 So.2d 332 (Fla. 1962), and All Ways Reliable Building Maintenance, Inc. v. Moore, 261 So.2d 131 (Fla.1972), both cited with approval in Roberts v. Carter, 350 So.2d 78 (Fla.1977), in reversing the award of her attorney’s fees. We have not overlooked those cases. We feel, however, that the Supreme Court meant what it said in Roberts, i.e., that an award of attorney’s fees under Section 627.428, Florida Statutes, is available only to “the contracting insured, the insured’s estate, specifically named policy beneficiaries and third parties who claim policy coverage by assignment from the insured.”

Appellee also contends that we overlooked Section 627.402 Florida Statutes (1977) in finding that the subject policy was not delivered in this state. Although subsection (1) of that section does indicate that delivery of a certificate is equivalent to delivery of the policy, Section 627.402 (2) indicates just as clearly that delivery of a certificate is not delivery of the policy for group insurance contracts such as the one here involved. Nor do we have the situation presented in Blue Cross of Florida, Inc. v. Turner, Fla.App., 363 So.2d 133 (1978) in which a copy of the master policy had been provided to a Florida corporation for the purpose of administering the plan in this state. In addition, it does not appear that a group credit life insurance policy of the amount involved would have been permitted under statutory limitations in effect in this state at the time of the issuance of the policy. See Section 627.679, Florida Statutes (1973).

The Petition for Rehearing is denied.

McCORD, C. J., and MELVIN, J., concur.


text:
    Blanche Leigh TUVIN, Appellant, v. The FIRST NATIONAL BANK OF HOLLYWOOD, Trustee, Appellee.
    No. 76-1557.
    District Court of Appeal of Florida, Fourth District.
    June 14, 1978.
    Rehearing Denied Aug. 2, 1978.
    John D. Kruse, Fort Lauderdale, for appellant.
    James Fox Miller, of Miller & Schwartz, Hollywood, for appellee.
   PER CURIAM.

AFFIRMED.

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


text:
    Roy Clark SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 76-2059.
    District Court of Appeal of Florida, Fourth District.
    June 14, 1978.
    Richard L. Jorandby, Public Defender, and Frank B. Kessler and Laurie Sistrunk, Asst. Public Defenders, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED.

DOWNEY and DAUKSCH, JJ., concur.

CROSS, J., dissents.


author: HUBBART, Judge.

text:
    William J. HARTNETT, Appellant, v. Ysaura RIVERON, as Administratrix of the Estate of Armando T. Riveron, Deceased, Appellee.
    No. 77-1160.
    District Court of Appeal of Florida, Third District.
    June 27, 1978.
    Rehearing Denied Sept. 6, 1978.

      Ritter & Ritter and John A. Ritter, Coral Gables, for appellant.
    Rash & Katzen and H. Stephen Rash, South Miami, for appellee.
    Before HENDRY and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   HUBBART, Judge.

This is a fraud action brought by the administratrix of the estate of a deceased insured against an officer and director of the insured’s insolvent insurance carrier centering around the carrier’s non-payment of a fire loss claim. After a default was entered against the defendant, the cause was tried by a jury on damages only resulting in a money judgment in favor of the insured’s administratrix. The defendant appeals.

The central question presented by this appeal involves an application of Florida’s collateral source rule. This question, briefly stated, is whether at the trial of an action for fraud brought by an insured against an officer or director of the insured’s insolvent insurance carrier, which fraudulent conduct allegedly resulted in non-payment of the insured’s valid insurance claim, the collateral source rule bars the admission of evidence that the carrier’s representative [The Florida Insurance Guaranty Association “FIGA”] paid the insured’s claim off in full under Chapter 631.-50, Florida Statutes (1977), after the carrier herein went insolvent. We hold that such evidence is not so barred by the collateral source rule and is admissible at trial on the issue of damages in the above-stated action. Accordingly, we reverse and remand for a new trial.

The facts of the case relevant to this issue are undisputed. The plaintiff Ysaura Riveron, as administratrix of the estate of Armando T. Riveron, the deceased insured, brought an action sounding in fraud against William J. Hartnett as officer and director of the Southern American Fire Insurance Company. The complaint alleged that Armando T. Riveron was the insured under a fire insurance policy issued by the Southern American Fire Insurance Company, that a fire occurred at the insured’s residence which resulted in his death, that the plaintiff as the widow of the insured and admin-istratrix of the insured’s estate negotiated a settlement with the Southern American Fire Insurance Company for fire damages sustained to the insured’s residence in the amount of $10,298.70, that what purports to be a check in that amount was issued by the said carrier to the plaintiff which instrument was repeatedly returned by many banks throughout Dade County as not collectible as a cash item, that thereafter the defendant Hartnett as officer and director of said carrier did assure the plaintiff through false misrepresentation that the above instrument was valid although in fact it was not, that the defendant Hartnett also used other delaying and stalling tactics to prevent payment on the fire loss claim, that all of these misrepresentations were made in an effort to conceal the financial difficulty that the carrier was then in, and that such misrepresentations were known to be false by the defendant Hartnett at the time they were made or were uttered without regard to their truth or falsity. The plaintiff sought compensatory and punitive damages based on the carrier’s non-payment of the fire loss claim.

Although the defendant Hartnett filed an answer and counterclaim (later dismissed), a default judgment was subsequently entered against him on the issue of liability for failure to comply with certain discovery orders. The default judgment has not been questioned by, and is not a subject of this appeal. The trial court set the case for a jury trial on damages only.

At trial, the defendant Hartnett appeared through counsel and attempted to offer in evidence that subsequent to Southern American Fire Insurance Company going insolvent, the Florida Insurance Guaranty Association [FIGA] under Chapter 631.50, Florida Statutes (1977), paid off the fire loss claim herein by issuing the plaintiff a valid check in the amount of $10,000 and thereafter received a complete release from the plaintiff in full satisfaction of the fire loss claim. The plaintiff acknowledged the truth of the above facts, but objected to the admission of such evidence on the ground that it was barred by the collateral source rule. The trial court sustained this objection and ruled the evidence inadmissible.

The jury returned a verdict in favor of the plaintiff in the amount of $14,150 in compensatory damages and $15,000 in punitive damages. The trial court rendered a judgment thereon plus interest. This appeal follows.

It is the established law of this state that in a tort or contract action total or partial compensation received by the plaintiff injured party from a collateral source wholly independent of the defendant wrongdoer will not operate to lessen the damages otherwise due to the plaintiff from the defendant wrongdoer. This is known as the collateral source rule. Janes v. Baptist Hospital of Miami, Inc., 349 So.2d 672 (Fla.3d DCA 1977); Walker v. Hilliard, 329 So.2d 44 (Fla.1st DCA 1976); Paradis v. Thomas, 150 So.2d 457 (Fla.2d DCA 1963).

In our judgment, however, the above rule is inapplicable in this case because the plaintiff’s receipt of $10,000 in full payment of the fire loss claim herein cannot be considered as compensation from a collateral source wholly independent of the defendant Hartnett. “[T]he funds derived from the [Florida Insurance] Guaranty Association to pay insolvent claims come from assessment of solvent insurers or from claims paid to the association by receivers of insolvent insurers.” O’Malley v. Florida Insurance Guaranty Ass’n, 257 So.2d 9, 12 (Fla.1971). Under Sections 631.50, 631.55, 631.57(3)(a), Florida Statutes (1977), the Southern American Fire Insurance Company was a member of the Florida Insurance Guaranty Association along with all other insurance carriers in Florida and contributed its pro-rata share of funds to such association to pay for claims, such as the plaintiff’s, when and if a carrier becomes insolvent. As such, FIGA cannot be considered a source wholly independent of Southern American Fire Insurance Company or its officers and directors.

It is urged that the insured herein and the insured public in general paid for the FIGA fund through their insurance premiums. We cannot agree with this contention because there is no legal obligation imposed on the insured to fund FIGA under Chapter 631.50, Florida Statutes (1977). That obligation under the statute rests squarely with the insurance carriers of Florida. Although it may be true that this cost is ultimately passed on to the insured public through the payment of higher premiums, that is true of almost every cost of the insurance industry and can therefore form no basis for our decision herein.

Finally, we are persuaded that it would be grossly inequitable for an insured to collect compensatory and punitive damages against an insurance company’s officer or director for fraud in allegedly defeating such insured’s valid insurance claim when in fact the insured has collected in full on such claim from the carrier’s representative FIGA. All agree that if the carrier herein had eventually paid off the fire loss claim, the plaintiff would have suffered no damages from the defendant Hartnett’s conduct. We fail to see how the result should be any different when the carrier’s representative FIGA pays off the same claim in the carrier’s stead. The collateral source rule can have no application here because the insured has in fact suffered no compen-sable damages.

In view of the court’s disposition of this cause, it is unnecessary to address any of the other issues raised in this appeal. The judgment appealed from is reversed and the cause remanded to the trial court for a new trial. At such trial, if the above facts as detailed in this opinion are established without contradiction, the defendant Hartnett would be entitled to a directed verdict of zero damages.

Reversed and remanded.

      . Although it is unnecessary to reach in this case, we note by way of dicta that the imposition of interest by the trial court on this verdict was unauthorized. Bryan & Sons Corp. v. Klefstad, 265 So.2d 382 (Fla.4th DCA 1972); Vacation Prizes, Inc. v. City National Bank of Miami Beach, 227 So.2d 352 (Fla.2d DCA 1969); 9A Fla.Jur. “Damages” § 88 (1972).


author: CHARLES CARROLL, Associate Judge.

text:
    Edward N. CLAUGHTON, Jr., Appellant, v. Beverly A. CLAUGHTON, Appellee.
    No. 77-2620.
    District Court of Appeal of Florida, Third District.
    June 27, 1978.
    Rehearing Denied Sept. 6, 1978.

      Sibley, Giblin, Levenson & Glaser and Marion E. Sibley, South Miami, for appellant.
    Paige & Catlin and H. James Catlin, Jr., Miami, for appellee.
    Before HENDRY and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   CHARLES CARROLL, Associate Judge.

The appellant, who was the respondent below in a proceeding for dissolution of marriage, appeals from an order denying his motion for partial summary judgment.

The determinative question presented by this appeal is whether, after a dissolution of marriage judgment which reserved jurisdiction to determine issues relating to alimony, custody, child support, and property rights, the court initially can make an award of alimony to the wife after she has remarried. By the order appealed from the trial court concluded that was permissible. We hold that ruling was error, and reverse on the authority of Carlton v. Carlton, 87 Fla. 460, 100 So. 745 (1924). See, apparently contra, Seale v. Seale, 350 So.2d 96 (Fla. 1st DCA 1977).

The appellant, Edward N. Claughton, Jr., herein referred to as the husband, and Beverly A. Claughton, herein referred to as the wife, were married on December 22, 1951. They separated in September of 1975, and in February of 1976 the wife petitioned for dissolution of the marriage.

A temporary support order was entered, requiring the husband to pay $2,500.00 per month to the wife “until further order of the court” as “alimony and support for herself and the minor children”, and requiring the husband to pay mortgage payments, taxes and insurance on the marital home owned by the parties as tenants by the entirety and to pay a certain amount as temporary attorney’s fee.

The husband made the ordered temporary support payments prior to the judgment of dissolution, and thereafter continued to make such payments until the wife married one William T. Mixson, a doctor. The remarriage of the wife on July 1, 1977 ocr curred before any hearing was held on the issues relating to alimony and prior to any permanent alimony having been granted.

On behalf of the husband his attorney wrote to the attorney for the wife, on July 5, 1977, stating that because of the remarriage of the wife the husband no longer was obligated to pay the temporary alimony, and that the wife would be expected to pay one-half of the home mortgage payments. The letter enclosed a payment by the husband for child support for a stated period and an amount for mortgage payment. The wife’s attorney answered by letter, requesting authority for the wife to accept such payments without'prejudice, and contending therein that notwithstanding remarriage of the wife the husband remained obligated to pay temporary alimony and that the wife would be entitled to receive “lump sum alimony” as and when the court should make a determination and allowance thereof. The husband’s attorney replied, authorizing acceptance of such payments without prejudice, and stating the letter he received had been forwarded to the husband who was out of the city temporarily.

Shortly thereafter, the wife filed a motion seeking to have the husband cited for contempt for failure to pay temporary alimony. Her motion attached copies of above-mentioned letters which had been exchanged between the attorneys; recited that she had remarried on July 1,1977; and alleged she was entitled to continue to receive temporary alimony and that the issues as to her rights to alimony and property rights had not yet been determined by the court.

The husband filed a response to the motion for contempt, contending he was not obligated to continue paying temporary alimony after remarriage of the wife and that he was not required to pay more than one-half of the mortgage payments on the residence equally owned by the parties, and praying for entry of an order consistent with those contentions. Thereafter the husband filed his motion seeking entry of a summary judgment holding him to be relieved of obligation for alimony. Therein he alleged that in petitioning for dissolution of marriage the wife had sought permanent alimony; that the judgment of dissolution had reserved jurisdiction to resolve certain matters including alimony; that the wife had remarried on July 1, 1977, and was being supported by her new husband who, with her, was residing in the residence owned by the parties; and seeking summary judgment that because of her remarriage, as a matter of law, the wife was not entitled thereafter to an award of alimony. Opposed to the husband’s motion for summary judgment, was the wife’s contention in her reply thereto and in her contempt motion that notwithstanding her remarriage she was entitled to subsequent award of “lump sum alimony”. After hearing thereon, the husband’s motion for such partial summary judgment was denied, and he appealed.

Necessarily inherent in the denial of the husband’s motion was a holding by the trial court that although the wife had remarried it would be proper to make an award of alimony to her. That ruling was contrary to the law that alimony may not be awarded to a wife after she remarries following divorce, as recognized and pronounced in Carlton v. Carlton, supra.

This case does not involve a situation where incident to a dissolution of marriage a wife who has been awarded alimony which is ordered to be paid in lump sum payments thereafter remarries. Alimony payable in lump sum which is awarded to the wife prior to her remarriage is vested, and will not be affected by her subsequent remarriage. Yandell v. Yandell, 39 So.2d 554 (Fla.1949); Latta v. Latta, 135 So.2d 443 (Fla.3d DCA 1961).

When a wife has been awarded alimony payable in periodic installments, her remarriage terminates her entitlement thereto. Friedman v. Schneider, 52 So.2d 420, 421 (Fla.1951); Reese v. Reese, 178 So.2d 913 (Fla.2d DCA 1965). The reason therefor is that a right of a wife to receive alimony is based on the husband’s duty of support existing during coverture, and when she has remarried and is being supported by another, the husband no longer has such duty.

On the argument of this appeal counsel announced that by agreement of the parties payment of temporary alimony by the husband had been terminated, and that the issues relating to custody of the minor children and as to the amount of child support to be paid by the husband had been settled by the parties.

Although conceding that after her remarriage the court could not award her permanent alimony if it was ordered to be paid in periodic installments, the appellee argues that after she has remarried the court lawfully can award her permanent alimony in the form of lump sum alimony. We cannot agree.

The appellee treats alimony as though there were two distinct kinds of permanent alimony, that is, periodic alimony and lump sum alimony. Such is not the case. Under the applicable statute authorizing the granting of alimony [Section 61.08, Florida Statutes (1975)], the two kinds of alimony which are separately designated therein are rehabilitative alimony and permanent alimony. That section states that in a proceeding for dissolution of marriage “the court may grant alimony to either party, which alimony may be rehabilitative or permanent in nature”. The section continues by stating: “In any award of alimony, the court may order periodic payments or payments in lump sum or both”. The statute does not provide for different types of “permanent” alimony. It authorizes allowance of “alimony”. When the allowance is of alimony, permanent in nature, the court can order either or both of two methods of payment of such permanent alimony. For example, in an instance where the court awards a wife permanent alimony and for part thereof orders payment in designated periodic installments of stated amount, and also orders a designated amount to be paid by a lump sum payments or payments, the alimony is the same, and only the payment methods differ. The distinction resulting from the two payment methods is that while subsequent remarriage of the wife will terminate the ordered periodic payments, the portion of the alimony which is required to be paid by lump sum payments is vested and not affected by remarriage of the recipient.

The appellee argues that while permanent alimony which is ordered to be paid in periodic installments is allowed for support of a wife based on a husband’s obligation for her support, permanent alimony which is ordered to be paid by lump sum payment or payments is not predicated on the husband’s obligation for support of the wife, but is over and above that, and is an allowance to the wife in the nature of a bonus or generous lagniappe, as a reward to her for having been a wife. We can observe no such purpose in the cited statute relating to alimony.

In Arrington v. Arrington, 150 So.2d 473, 477 (Fla.3d DCA 1963) this court, speaking through Judge Pearson, said:

“We shall now examine the basis of the award as alimony. The form of payment in a lump sum does not change the nature of an award; it may still be characterized as alimony. Section 65.08, Fla.Stat., F.S.A. has been amended to specifically provide that ‘In any award of permanent alimony the court shall have jurisdiction to order periodic payments or payment in a lump sum.’ Such an award must be determined upon a need of the wife and the ability of the husband. Collins v. Collins, 153 Fla. 10,13 So.2d 445. Alimony is not allowed as a vehicle for which to obtain repayment of monies advanced to the husband or expended for his account. Spears v. Spears, Fla.App.1963, 148 So.2d 564.”

Carlton v. Carlton, supra, 87 Fla. 460, 100 So. 745 (1924) is a square holding by the Supreme Court that a divorced wife who has remarried is not thereafter to be awarded alimony. An earlier Carlton appeal disclosed that in an action in which the husband had sought the divorce, a decree was entered granting the divorce and denying the wife’s claim for alimony, from which she appealed [Carlton v. Carlton, 78 Fla. 252, 83 So. 87 (1919)]. On that first appeal the granting of the divorce was affirmed, but the denial of alimony was reversed. In the opinion it was stated the wife was the mother of the appellee’s six children; that she had contributed funds and personal exertion through a long period of time to the acquisition and development of the appel-lee’s home and other property and to the establishment of his fortune, entitling her to a special equity. The cause was remanded “for appropriate proceedings in awarding her a reasonable allowance for her maintenance and support”. Following remand the husband moved to dismiss the wife’s proceeding seeking alimony, on the ground that she had remarried. The trial court denied the motion and the husband appealed (100 So. 745). In the opinion on that second appeal it was recited that the judge’s order stated he would have granted the husband’s motion to dismiss but denied it only because he regarded the opinion on the first appeal “as holding the defendant divorced wife to have ‘a special equity in the property’ of the husband”. With regard thereto the Supreme Court said: “Some of the language in the opinion is not clear, but its import is that under the circumstances of the case as stated the divorced wife should equitably have from the husband a reasonable allowance for her maintenance and support”. The court then held that as the divorced wife had remarried, she was “not entitled to alimony or maintenance or support”, and remanded the cause with direction to dismiss the proceeding by which the wife was seeking alimony. That decision in Carlton has been recognized by the Supreme Court as the law on that question in subsequent cases, Vance v. Vance, 143 Fla. 513, 197 So. 128 at 130 (1940); State ex rel. Willard v. Harrison, 133 Fla. 169, 183 So. 464 at 466, 468-469 (1938). See also, Reese v. Reese, supra.

In the instant case, where the wife remarried after the dissolution of marriage but before any hearing and determination of issues relating to alimony for which jurisdiction had been reserved, under the law as thus pronounced by the Supreme Court she was not entitled thereafter to any allowance of alimony, and it was error for the court to deny the husband’s motion for a partial summary judgment so holding.

We have not overlooked the recent decision of the First District Court of Appeal in Seale v. Seale, supra, relied on by the appel-lee, and which it appears was the basis for the ruling of the trial court herein. In Seale, as in this case, the judgment dissolving the marriage contained a reservation of jurisdiction for later determination of issues relating to alimony, child custody and property rights, and prior to any subsequent determination of those issues the wife remarried. Thereafter, the trial court granted the wife alimony payable in lump sum, in the form of a directed transfer to the wife of a one-half interest in the property of the husband. The property involved had been held in their joint names, but when they separated the wife had conveyed her interest therein to the husband. The property transfer ordered after the wife had remarried was classified by the court as an award of alimony in lump sum.

In affirming that order in Seale, the court held that lump sum alimony does not terminate on remarriage, citing as authority Keller v. Belcher, 256 So.2d 561 (Fla.3d DCA 1971) so holding. With that proposition we agree. But the fact that alimony awarded in lump sum to a wife prior to her remarriage is unaffected by her subsequent remarriage would not appear to furnish basis to hold that a wife who has not been awarded alimony prior to her remarriage can be granted alimony thereafter, regardless of how it is ordered to be paid. Also, in Seale the court held the decision of the Supreme Court in Carlton v. Carlton, supra, that the wife was not entitled to receive an award of alimony after she had remarried, is applicable only to “periodic alimony”. We observe no language in Carlton which thus limits that decision.

We are impelled to disagree with Seale in two respects. First, where Seale holds that a wife who has remarried before being awarded any alimony thereafter can be awarded permanent alimony if made payable in lump sum, we consider that decision to be contrary to the holding of the Supreme Court in Carlton and we follow the decision of the Supreme Court on that question. See: Hoffman v. Jones, 280 So.2d 431 at 434 (Fla.1973). Secondly, we would not regard the award of a one-half interest in the husband’s property to the wife in Seale as being alimony or lump sum alimony, but rather as an order of the trial court providing security for child support, as authorized by Subsection 4 of Section 61.13, Florida Statutes (1975). That is so because the property transfer was not ordered for a stated purpose or requirement of support for the wife, but patently as a means, and what appears to have been considered to be the only available means for deriving from the husband the wherewithal for support of the children. As disclosed, the husband was without income from which to support the children, and application of his assets (real property) or a portion thereof appeared to be the only available means of providing child support. In Seale the fact that the property transfer ordered to be made to the wife was a means of furnishing child support appears from the opinion, where the court said:

“ * * * The needs of the wife to care for her children are apparent and the only ability which the husband has to provide for those needs is by conveying to the wife as lump sum alimony the real estate owned by the husband in his sole name.”

In our view the order for property transferred by the husband to the remarried wife in Seale, rather than being classified as alimony was entitled to be classified as a transfer of property to the wife as security for child support. Characterized as alimony, the allowance would need to be contrary to law as previously pronounced, because of the prior remarriage of the wife. Characterized as an order providing the means or security for child support, the property transfer was in no wise impeded by the fact of the remarriage of the mother of the children, and was in conformity to the law, as an authorized order under Section 61.13, Florida Statutes (1975). Thus analyzed, we do not regard Seale as authority, contrary to Carlton, that alimony can be awarded to a divorced wife after she has married another who is supporting her.

Accordingly the order appealed from is reversed, and the cause is remanded to the circuit court with direction to enter partial summary judgment in favor of the appellant holding that the wife, after her remarriage, is not entitled to receive an award of alimony.

It is so ordered.

      . There is an exception that where lump sum alimony is allowed as rehabilitative alimony, with provision for payment thereof in future installments, and the wife remarries, the husband may be relieved of the installments thereof that accrue after the remarriage. Blackmon v. Blackmon, 307 So.2d 887 (Fla.3d DCA 1975).


text:
    BANK OF WESSINGTON and Arnold Domke, Appellants, v. WINTERS GOVERNMENT SECURITIES CORPORATION, a Florida Corporation, Appellee.
    No. 77-1635.
    District Court of Appeal of Florida, Fourth District.
    June 28, 1978.
    Rehearings Denied Sept. 8, 1978.

      John B. DiChiara of DiGiulian, Spellacy & Bernstein, Fort Lauderdale, for appellants.
    Norman E. Marcus of Law Offices of Gerald Beyer, Fort Lauderdale, for appel-lee.
   DOWNEY, Judge.

Appellee filed an amended complaint against appellants seeking damages for fraud, breach of contract and for violation of the Florida Securities Law. Appellants’ motion to quash service of process obtained via Section 48.193, Florida Statutes (1975), and their motion to dismiss were denied and this interlocutory appeal ensued.

Appellee described itself in its brief as a duly registered broker dealer with the Florida Department of Banking and Finance, Division of Securities, dealing exclusively in U. S. Government Securities. Appellant corporation is a South Dakota bank located in Wessington, South Dakota; the individual appellant is the president of said bank.

Appellee’s complaint alleged in pertinent part that commencing on or about November 15, 1976, and continuing over a period of approximately two months, appellee and appellant Domke, as agent for appellant Bank, engaged in approximately ten separate oral transactions involving the purchase and sale of Government National Mortgage Association Contracts; appellants repudiated the last three transactions agreed upon in December and early January 1977 causing appellee to sustain substantial losses. Therefore, appellee charged appellants with breach of express contract, breach of implied warranty, fraud and securities law violations.

Appellants filed a motion to quash service of process under the Florida long arm statute and supported that motion with the affidavit of Domke, President of appellant bank, and the deposition of one of appellee’s officers which showed that any money due from appellants to appellee was to be paid to appellee at the Midland Marine Bank of New York. Domke’s affidavit stated that neither the Bank or Domke ever did business in Florida; the Bank had no agent authorized to do business in Florida; it neither had any offices nor held any meetings in Florida; it made no purchases or sales in Florida; it derived no economic benefit from any transactions in Florida; specifically it denied that the Bank ever agreed to purchase or sell any securities by or through appellee and that Domke repeatedly had refused all offers by appellee to purchase and sell government securities.

In response to the appellant’s unambiguous denial of all the allegations of the complaint demonstrating jurisdiction, appellee filed two affidavits. In an affidavit by appellee’s salesman it is stated (just as unambiguously as the facts in Domke’s affidavit) that he had negotiated with Domke on behalf of the Bank over the stated period of time; during a two month period the Bank entered in ten separate oral contracts to buy and sell Government National Mortgage Association Future Contracts. Attached to said affidavit was a list of said contracts, the dates and amounts thereof.

After a hearing, the trial court denied appellants’ motion to quash service, holding that the evidence presented showed jurisdiction pursuant to Section 48.193(l)(a) and (l)(g), Florida Statutes (1975).

We think the trial court erred in finding jurisdiction under Section 48.-193(l)(g) based upon the proof adduced. Section (l)(g) of the referenced statute paraphrased provides that any person, whether a resident or not, who breaches a contract in this State by failing to perform acts required by the contract to be performed in this State, thereby submits himself to the jurisdiction of the courts of this State. Viewing the proof adduced most favorably to the trial court’s decision reveals that an oral contract was made on the telephone between appellee in Fort Lauderdale and the appellant Bank in South Dakota for the purchase and sale of securities. Any payments later made by appellant Bank were to be made to Midland Marine Bank of New York. Appellee showed nothing that appellants were to do in this State. The only contacts shown with this state are a phone call and an oral agreement as a result thereof. However, no performance was required of appellants in this State. Comparing the proof with Section (l)(g) of the statute, we find proof of a breach of contract, but not a breach of a contract in this state by failing to perform acts required by the contract to be performed in this state. Thus, if jurisdiction were based solely upon 48.193(l)(g), we would reverse the order under consideration. However, the trial court’s finding that jurisdiction attaches by virtue of Section 48.193(l)(a), is supported by the proof.

We are fully cognizant that Florida’s long arm statute is of the type that requires more activities or contacts to sustain service of process than are currently required by decisions of the Supreme Court of the United States; long arm statutes are to be strictly construed; the person invoking jurisdiction under such statutes has the burden of proving facts which clearly justify the use of this method of service of process. However, we believe the language used by the Supreme Court of Florida in Dinsmore v. Martin Blumenthal Associates, Inc., 314 So.2d 561 (Fla.1975), authorizes the finding of jurisdiction under Section 48.193(l)(a), Florida Statutes, in the case at hand.

Paraphrasing the pertinent part of Section 48.193(l)(a), it provides that any person, whether a resident or non-resident, who engages in a business venture in this State thereby submits himself to the jurisdiction of the courts of this state. In Dins-more, supra, the Supreme Court held:

“In order to determine whether jurisdiction can be acquired over the non-resident defendants pursuant to Fla.Stat. § 48.191(1), it is necessary to determine whether the individual or corporate defendant, was carrying on a business or business venture in this State. The activities of the person sought to be served pursuant to Fla.Stat. § 48.181(1) must be considered collectively and show a general course of business activity in the State for pecuniary benefit. DeVaney v. Rumsch, 228 So.2d 904 (Fla.1969). A nonresident defendant, which engages the services of brokers, jobbers, wholesalers or distributors, can be doing business in this State pursuant to Fla.Stat. § 48.-181(1) if the nonresident defendant, through brokers, jobbers, wholesalers or distributors was engaged in a course of conduct in Florida for the purpose of realizing a pecuniary benefit.” Id. at' 564.

A review of the collective activities alleged and proven clearly shows that appellants were engaged in “a general course of business activity in the State for pecuniary benefit.” That seems to be sufficient as Dinsmore leaves no question that there need be no local office nor agent, no lease, no meeting, no presence of corporate offices in Florida to warrant a finding of engagement in a business venture. Thus, we believe the trial court was correct in denying the motion to quash as to the appellant Bank.

The proof to support jurisdiction over Domke is another question. We think it is insufficient. Although appellee’s complaint may adequately plead a cause of action against Domke individually, the proof of jurisdiction is lacking. In support of the motion to quash service of process Domke’s affidavit stated that “he [had] never entered into any contracts, agreed to any sales, purchases or any other transaction of any kind whatsoever” with appellee. Neither of the two affidavits filed by appellee in opposition to Domke’s affidavit support the allegations of the complaint vis-a-vis Domke’s individual liability. Thus, appellee failed to adequately follow the procedural requirements set forth in Elmex, supra and therefore failed to carry its burden of showing the applicability of the statute to acquire jurisdiction over Domke.

Appellants’ motion to dismiss for failure to state a cause of action was directed to Counts IV and V of the complaint, alleging fraud and securities law violations. We find no error in the court’s ruling as regards said counts. Alechman v. Edwards, 56 So.2d 327 (Fla.1952); Bernard Marko & Associates, Inc. v. Steele, 230 So.2d 42 (Fla. 3rd DCA 1970); Section 517.301, Florida Statutes (1975).

In view of the foregoing, that part of the Order dealing with the Motion to Dismiss is affirmed and that part of the Order dealing with the Motion to Quash is affirmed as to appellant Bank of Wessington and reversed as to appellant Domke.

AFFIRMED IN PART; REVERSED IN PART.

CROSS and ANSTEAD, JJ., concur.

      . Youngblood v. Citrus Associates of the New York Cotton Exchange, Inc., 276 So.2d 505 (Fla. 4th DCA 1973).

      . The Elmex Corporation v. Atlantic Federal Savings & Loan Association of Ft. Lauderdale, 325 So.2d 58 (Fla. 4th DCA 1976).

        . See also Electro Engineering Products Co. Inc. v. Lewis, 352 So.2d 862 (Fla.1977); Gonas, Florida’s Long Arm Statutes: Federal Versus State Construction, 52 Fla.B.J. 292 (1975).

      . The reference to Section 48.191(1) is erroneous; the citation should be to Section 48.-181(1).
      Section 48.181(1), Florida Statutes (1971) and Section 48.193(l)(a), Florida Statutes (1975) have the same language, “operate, conduct, engage in, or carry on a business or business venture in this state.” Therefore, interpretation of the language in Section 48.181(1), Florida Statutes (1971) likewise would be applicable to Section 48.193(l)(a), Florida Statutes (1975).