text:
    In re the ESTATE of Josephine Johnson SNYDER, a/k/a Josephine Porter Hill Snyder, Deceased.
    No. 75-1552.
    District Court of Appeal of Florida, Second District.
    June 11, 1976.
    ■ Russell A. Meade, of Bernstein, Sherr, Hodges, Lancer & Brand, Sarasota, for appellant.
    David S. Yost of Lyons & Beaudry, Sarasota, for appellee.
   GRIMES, Judge.

Josephine Johnson Snyder died intestate, survived by her husband and three adult children. The children petitioned to be appointed as co-administrators of the estate or in the alternative for the appointment of Allan M. Lichtenstein, a Certified Public Accountant, as administrator. The petition was opposed by the husband who sought to have himself appointed as administrator. Following a hearing at which evidence was submitted concerning the husband’s character and ability and his relationship to the decedent, the court appointed Lichtenstein as the administrator. The husband brings this appeal asserting his right to be appointed administrator.

Since the order was entered before January 1, 1976, the pertinent statutes are those which were in effect prior to the new Florida Probate Code. Fla.Stat. § 732.44 (1973) provided:

“In the granting of letters of administration, the following preference shall be observed:
(1) The surviving spouse shall first be entitled to letters . . . .”

Fla.Stat. § 732.45 (1973) specified that a person who has been convicted of a felony or who from sickness, intemperance or want of understanding is incompetent to discharge his duties cannot be appointed as a personal representative. Likewise, a minor could not serve by reason of Fla.Stat. § 732.46 (1973). Since appellant was not disqualified under these statutes, he contends that he was entitled to be appointed as a matter of right.

Both parties cite cases involving the question of whether the conduct of a surviving spouse has been so outrageous as to estop him from inheriting under the laws of intestacy. E. g., Doherty v. Traxler, Fla.1953, 66 So.2d 274; Kreisel v. Ingham, Fla.App.2d, 1959, 113 So.2d 205; Nedd v. Starry, Fla.App.lst, 1962, 143 So.2d 522. In these cases the right to appointment as administrator was incidental to the issue of inheritance. In our view, the right to be appointed administrator is not necessarily measured by the same standard used in determining the right to inherit.

The record reveals the trial judge had before him sufficient evidence to persuade him that the husband was not qualified by character, ability and experience to serve in the important capacity demanded of an administrator for an estate. Therefore, the narrow question which remains is whether the court could legally refuse to appoint appellant administrator when he was not specifically disqualified by the statute. There is a split of authority on this point. See 80 A.L.R. 824; 33 C.J.S. Executors and Administrators, 924. Some courts hold that a party having preference and who is not disqualified by the statute has an absolute right to the appointment. E. g., Calvert v. Beck, 1941, 240 Ala. 442, 199 So. 846. Others hold that the probate court has discretion to determine whether or not a party is qualified to serve. E. g., In re Abell's Estate, 1946, 395 Ill. 337, 70 N.E.2d 252; In re Langill’s Estate, 1921, 117 Wash. 268, 201 P. 28. We incline toward the lattef view.

The applicable Illinois statutes in the case of In re Abell’s Estate, supra, were similar to ours in that one section of the probate act provided for preferences and another specifically set forth certain infirmities which would preclude appointment. In response to the contention that a party occupying a position of statutory preference but who was not specifically disqualified had an absolute right to appointment, the court said:

“The literal interpretation of section 96 of the Probate Act advanced by appellants is contrary to familiar rules of statutory construction. Since statutes are to be-construed according to their intent and meaning, a situation which is within the object, spirit and meaning of a statute is regarded as within the statute although not within the letter. Burke v. Industrial Com., 368 Ill. 554, 15 N.E.2d 305, 119 A.L.R. 1152. Conversely, a situation within the letter is not regarded as within the statute unless also within its object, spirit and meaning. People ex rel. Simpson v. Funkhouser, 385 Ill. 396, 52 N.E.2d 1014. Apart from the fact that appellants have invoked the preferential right of appointment upon a previous occasion, the statute neither expressly nor by implication confers an absolute right to persons within one of the eight enumerated classes to- be appointed an administrator. Unsuitableness to administer may well consist in an adverse interest of some kind, or hostility to those immediately interested in the estate, whether as creditors or distributees, or even of an interest adverse to the estate itself. 23 C.J. Executors and Administrators, sec. 117, 33 C.J.S. Executors and Administrators § 44. To hold that only insanity, conviction of an infamous crime, and minority bar the appointment of appellants as administrators would give the statute an absurd construction. If the language of a statute employed admits of two constructions, one of which makes the enactment mischievous, if not absurd, and the other renders it reasonable and wholesome, the construction leading to an absurd result should be avoided. Inter-State Water Co. v. City of Danville, 379 Ill. 41, 39 N.E.2d 356.”

The administrator of an estate occupies a fiduciary capacity. His responsibilities flow to many others, including the creditors, the interested taxing authorities and the remaining beneficiaries of the estate. See In re Estate of Jeffress, Fla.App.2d 1974, 301 So.2d 25. Where the record supports the conclusion that a person occupying the position of statutory preference does not have the qualities and characteristics necessary to properly perform the duties of an administrator, it would he an anomaly to hold that a probate court, which has historically applied equitable principles in making its judgments, does not have the discretion to refuse to appoint him simply because he did not fall within the enumerated list of statutory disqualifications.

AFFIRMED.

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


source: Caselaw Access Project

author: SCHEB, Judge.

license: Public Domain

text:
    FOSTER AND COMPANY, INC., Appellant, v. Jack SNODGRASS, Appellee.
    No. 75-466.
    District Court of Appeal of Florida, Second District.
    June 18, 1976.
    Thomas D. Masterson, of Masterson & Rogers, St. Petersburg, for appellant.

      E. Paul Dietrich, of Bennett & Dietrich, St. Petersburg, for appellee.
   SCHEB, Judge.

Appellant/plaintiff contends the trial court erred in failing to grant injunctive relief under a noncompetitive agreement between it and appellee/defendant. We agree and reverse.

In March 1972, the plaintiff company and defendant entered into a contract whereby the defendant Snodgrass became an independent agent for the sale of the plaintiff’s industrial hardware and chemical products. The agreement included a noncompetitive covenant in which Snod-grass agreed that for a period of two years following termination of the agreement he would not compete with the plaintiff (a) within the State of Florida; or (b) within any territory to which he had been assigned during the twelve months immediately preceding his termination; or (c) with any individual account assigned to or serviced by him while he was an independent agent of the plaintiff.

In February 1974, Snodgrass terminated his association with the plaintiff company. He and other former company salesmen established their own business to sell similar products to the trade, in course of which Snodgrass solicited business from his old customers. Plaintiff sought an injunction to prevent the defendant from violating the covenants outlined in (b) and (c) above. Concluding that the defendant Snodgrass was, when employed, an experienced salesman; that he received only nominal material, advice, and assistance, from the company’s supervisors; that he received no customer lists or route sheets, but rather, only a price list of limited value, the trial court denied the request for an injunction and this appeal by the plaintiff ensued.

Fla.Stat. § 542.12(2), enacted in 1953, provides in pertinent part:

“. . . one who is employed as an agent or employee may agree with his employer, to refrain from carrying on or engaging in a similar business and from soliciting old customers of such employer within a reasonably limited time and area ... so long as such employer continues to carry on a like business therein. Said agreements may, in the discretion of a court of competent jurisdiction be enforced by injunction.”

Where noncompetitive agreements have been shown to be reasonable, they have been consistently upheld by the Florida courts. Miller Mechanical, Inc. v. Ruth, Fla.1974, 300 So.2d 11; McQuown v. Lakeland Window Cleaning Co., Fla.App. 2d 1962, 136 So.2d 370; Atlas Travel Service v. Morelly, Fla.App.1st 1957, 98 So.2d 816. See also, Maimone v. Wackenhut Corp., Fla.App.3d 1976, 329 So.2d 332. There the defendant who served as supervisor for the plaintiff’s security system had entered into a two-year noncompetitive covenant with his employer. The trial court’s summary judgment, enjoining the defendant from engaging in a competing security guard service for two years after his termination by the plaintiff, was affirmed.

Contrary to the contentions of the defendant, it is not essential that the employer have some special or peculiar product, trade secret, or unique device for marketing its product to justify enforcement of a noncompetitive covenant. Rather, where the agreement is neither harsh nor oppressive, then under Fla.Stat. § 542.12(2) the employee’s violation thereof is a sufficient basis for enforcement.

Snodgrass, who had no prior experience in the hardware business, entered into the noncompetitive agreement advisedly, and irrespective of the value of the material and advice furnished him by the company, it would be unjust to allow him to now use to his own direct advantage the customer relationships he established while employed by the plaintiff. The statute, held constitutional in Standard Newspa pers, Inc. v. Woods, Fla.1959, 110 So.2d 397, requires that while there is discretion in injunctive enforcement, it nevertheless follows that where, as here, the violation is clear, that injunctive relief is appropriate and should be granted. Miller Mechanical, Inc. v. Ruth, supra. Miller also holds that where the agreement extends beyond a reasonably limited period of time or embraces more than a limited area, the court may delineate the scope of enforcement to what it determines to be reasonable under the circumstances.

Since the trial judge did not address the question as to reasonableness as to the time and area in which Snodgrass is to refrain from engaging in similar business or soliciting former customers, these issues must be addressed by the trial court on remand.

Reversed and remanded for further proceedings consistent with this opinion.

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


author: RAWLS, Judge.

text:
    Thomas J. STERRITT and Frances Sterritt, his wife, Appellants, v. Thompson S. BAKER et al., Appellees.
    No. X-148.
    District Court of Appeal of Florida, First District.
    June 23, 1976.
    Adam G. Adams, II, of Adams & Adams, and Corrigan, Werber & Moore, Jacksonville, for appellants.
    Thomas M. Baumer of Mahoney, Had-low, Chambers & Adams, Jacksonville, for appellees.
   RAWLS, Judge.

By an amended complaint, the Sterritts (appellants) sought to recover from the trustees of Barnett Mortgage Trust (appel-lees) a commitment fee of $30,560.00 and other damages by reason of an alleged breach of contract. The Sterritts now appeal a final judgment dismissing their amended complaint.

Basic allegations of the amended complaint reflect negotiations between the Sterritts and Barnett Mortgage Trust (a real estate investment trust) for a construction loan in the amount of $3,056,000.-00. A “commitment” letter was issued by Barnett to the Sterritts upon numerous terms and conditions, one condition being that the commitment fee paid by the Ster-ritts to Barnett was not refundable. According to the allegations, Barnett refused to honor its commitment due to the increase in the prime rate of interest. In dismissing the amended complaint, the trial judge stated:

“The thrust of the amended complaint is the allegation in jfS that after contracting with the plaintiffs [appellants] to make a loan to them the defendants [ap-pellees] ‘wrongfully imposed on plaintiffs a new condition for making the mortgage loan.’ Without that allegation, the amended complaint clearly states no cause of action whatsoever. That allegation is negated by the recital in exhibit A thereto, in [[5 of the portion headed ‘Barnett mortgage trust standard loan conditions’:
5. In order to assure BMT [Barnett Mortgage Trust] that sufficient funds are available to pay all costs in constructing this project; including all non-construction costs included on Exhibit ‘B’, the Borrower and/or guarantors will be required to supply additional funds in the total amount of any existing or future shortage, as determined solely by BMT.
“When the plaintiffs agreed that the defendants could require the plaintiffs to supply additional funds in the total amount of any existing or future shortage ‘as determined solely by BMT’, the plaintiffs laid themselves wide open for the requirement the defendants made of them about which they complain. The plaintiffs cannot consistently allege in their amended complaint that such a requirement was ‘wrongfully’ imposed upon them or that the requirement was ‘a new condition’ for making the loan.
“Alleging, as the plaintiffs do further on in ¶5 of their amended complaint, that the defendants were motivated by some other reason to make the requirement of them for additional funds avails the plaintiffs nothing when they place themselves so thoroughly at the mercy of the defendants by contracting that the determination as to the necessity for additional funds would be ‘determined solely by BMT.’ ”

Sui juris parties may enter into a contract. They are privileged to enter into a “bad” contract as well as to enter into a “good” contract. It is not a proper function of a court to rewrite contracts. (Gabel v. Simmons, 100 Fla. 526, 129 So. 777 [1930]).

AFFIRMED.

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


text:
    Les REED, Appellant, v. STATE of Florida, Appellee.
    No. X-414.
    District Court of Appeal of Florida, First District.
    June 23, 1976.

      Samuel S. Jacobson, of Datz, Jacobson & Dusek, Jacksonville, for appellant.
    Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for appellee.
   RAWLS, Judge.

Once again the extensive time and money expended in a criminal proceeding must go “down the drain” because of the over zealous argument of one prosecutor.

Appellant was charged and found guilty of the sale of marijuana. Trial evidence disclosed a single transaction between appellant and a police officer. No evidence of any character was adduced as to appellant having been previously engaged in the sale of drugs to any other persons. However, the prosecuting attorney argued to the jury as follows:

“You have got a tough decision to make in this case. It’s not an easy one. The last ten years drug trafficking and drug abuse in this country has skyrocketed. It’s a spreading disease. Drug abuse has spread down from colleges to high schools down to grade schools. You read in papers now about children in grade schools, grammar schools using drugs, and where do those drugs come from? From people who are willing to make money off of them.
“Now, we’ve got a police force that is trying to make arrests on dope peddlers. We’ve got Courts that are willing to try dope peddlers. We’ve got prosecutors that are willing to prosecute dope peddlers to try to clean up this country. But the ultimate and the final responsibility, the whole system comes down to one focal point, one responsibility: Citizens of each community that sit on the juries of these cases. You have the ultimate power over controlling drug abuse: Sitting on drug cases and listening to the testimony, deciding whether the State has proved its case. The welfare of the citizens of Florida and the people of Duval County, I’m contending, ask that you return a verdict of guilty in this case after considering the evidence. The decision is yours, though, and I ask you to consider it very carefully. Thank you.”

In addition, the prosecuting attorney, in commenting as to defense counsel’s role, argued:

“Mr. Jacobson is the Defense Counsel in this case. His responsibility as the Defense Counsel is to defend someone charged with a crime. That’s his duty. His responsibility in this case is to provide the best defense possible for his client, and he’s doing just that: The best defense possible.
“Mr. Jacobson doesn’t share any guilt that his client may have; he’s merely doing his job in this case. . . . ”

The prosecuting attorney also injected his personal belief into his argument by stating:

“ . . . All that the State asks for in this case is fairness. The State doesn’t prosecute someone because of their religion or their race or their nationality. We prosecute them because we believe they are guilty of crimes.”

Timely objection to the foregoing argument was sustained by the trial judge who valiantly tried to correct the inflammatory and prejudicial argument by the state; however, we find that the remarks were so prejudicial that the trial judge’s efforts were in vain. Appellant was deprived his fundamental right to a fair trial.

REVERSED.

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

      . Grant v. State, 194 So.2d 612 (Fla.1967).

      . Stewart v. State, 51 So.2d 494 (Fla.1951); Pait v. State, 112 So.2d 380 (Fla.1959); Grant v. State, supra; and Chavez v. State, 215 So.2d 750 (Fla.App. 2nd, 1968).


author: GRIMES, Judge.

text:
    Nancy E. ROBINSON, Appellant, v. James Frank ROBINSON, Jr., Appellee.
    No. 75-1092.
    District Court of Appeal of Florida, Second District.
    June 9, 1976.
    Ann Loughridge Kerr, Tampa, for appellant.
    H. Vincent Thorton and Peter P. Be-huniak, Tampa, for appellee.
   GRIMES, Judge.

This is an appeal from the modification of a final judgment of dissolution in which the father was awarded permanent custody of the minor child, Rhonda, age 8.

In the original judgment of dissolution entered in 1972, the mother was awarded permanent custody. In November of 1974, the mother left Tampa and secured employment in Hawaii as a nurse. She took Rhonda with her. With approximately one month of school remaining for the child, the mother accepted more specialized employment in Los Angeles. Since Rhonda was scheduled to visit with her father for the summer anyway, the mother brought her back to Tampa to complete the school year. Thereupon, the father moved to acquire the child’s custody.

In order to legally modify custody, there must be a substantial change in circumstances since the time the original judgment was entered. A trial court does not have the same degree of discretion to modify the custody provisions of a judgment of dissolution as it does in determining custody at the time of the original judgment. Frye v. Frye, Fla.App.4th, 1967, 205 So.2d 310.

There was no evidence that the mother was an unfit mother. In support of the modification, the father relied primarily upon three factors as indicating changed circumstances: (1) three changes of school enrollment in one year; (2) Rhonda’s grandparents live in Tampa; and (3) because of the mother’s work schedule in Los Angeles, others would have to take care of Rhonda for about two hours each day before she leaves for school. The father also points to the fact that he has now remarried and has overcome his former drinking problem.

Rhonda was at the top of her class, both in Tampa and Hawaii. Obviously, the moves did not interfere with her academic achievements. The proximity of a minor’s grandparents is desirable, but it cannot control ths issue of custody. Cf. Sheehy v. Sheehy, Fla.App.2nd, 1975, 325 So.2d 12. It was always contemplated that the mother would have to work because the judgment awarded her only rehabilitative alimony until she finished nurses’ training. The arrangements which were being made for Rhonda’s care in Los An-geles were not shown to be detrimental to her development or welfare.

Admitting for the sake of argument that the father’s situation has changed for the better, the evidence does not indicate the substantial change of circumstances necessary to justify the custody modification. The father failed to meet his burden of proof. Spradley v. Spradley, Fla.App.1st, 1975, 312 So.2d 215; Nicholson v. Nicholson, Fla.App.4th, 1975, 311 So.2d 676.

REVERSED.

McNULTY, C. J., and HOBSON, J„ concur.


author: McCORD, Judge.

text:
    ST. JOE PAPER COMPANY, a Florida Corporation, and St. Joseph Land Development Company, a Florida Corporation, Appellants, v. Gerald CONRAD, Tax Assessor of Bay County, Florida, et al., Appellees.
    No. Y-85.
    District Court of Appeal of Florida, First District.
    May 18, 1976.
    Rehearing Denied July 8, 1976.

      Fred H. Kent, Jr., Kent, Sears, Durden & Kent, Jacksonville, for appellants.
    Les W. Burke, Mayo C. Johnston, Panama City, for appellees.
   McCORD, Judge.

This is an appeal from a final judgment which upholds the Bay County tax assessor’s assessment of certain of the lands of appellants’, St. Joe Paper Company and St. Joseph Land and Development Company (hereinafter collectively referred to as “St. Joe”), for the years 1971, 1972 and 1973. St. Joe contends that the assessments were excessive, arbitrary, and contrary to the laws of the state and the regulations of the Department of Revenue and do not reflect the true value of the lands used for agricultural timberlands under § 193.461, Florida Statutes, known as the green belt law.

In 1967, the tax assessor caused a reassessment of the lands in Bay County to be made by Howze & Associates. As a result of the 1967 assessment, the timberlands of St. Joe in Bay County were divided into four classifications based upon the quality of the land for timber purposes. The lands within each of these classifications were assigned the following values for assessment purposes: Timberland No. 1— $65; Timberland No. 2 — $40-$45; Timberland Hardwood — $20; Swamp, Wasteland and Lakebottom — $5.

In 1971 the tax assessor reassessed appellants’ lands which reassessment consisted of four changes: (1) an increase of the assessments of lands classified as “swamp, wasteland and lakebottom” from $5 per acre to $25 per acre; (2) the moving of almost all the lands previously assessed as Swamp Wasteland ($5 per acre) to the Timberland Hardwood category ($20 per acre) and then raising the value of Timberland Hardwood to $40 per acre; (3) the moving of lands previously assessed as “Timberland Hardwood” at $25 per acre to the “Timberland No. 2” classification at $45 per acre; and (4) the moving of almost all of the lands previously assessed as “Timberland No. 2” ($45 per acre) to “Timberland No. 1” which was assessed at $65 per acre.

Chapter 195, Florida Statutes 1971, deals with state regulation of ad valorem taxation. The purpose of that law is stated in § 195.111 as follows:

“Purpose of this chapter. — It is hereby declared to be the legislative purpose and intent in this entire chapter to secure a just valuation and provide for a uniform and equal assessment as between property within each county or taxing district and as between property in each county and property in every other county or taxing district.”

§ 195.002 provides as follows:

“Supervision by department of revenue. —The department of revenue shall have general supervision of the assessment and valuation of property so that all property will be placed on the tax rolls and shall be valued accordingly to its just valuation, as required by the constitution. It shall also have supervision over tax collection and all other aspects of the administration of such taxes.”

In furtherance of supervision by the Department of Revenue, § 195.032 provides as follows:

“Establishment of standards of value.— In furtherance of the requirement set out in § 195.002, the department of revenue shall establish and promulgate standard measures of value not inconsistent with those standards provided by law, to be used by tax assessors in all counties, including taxing districts, to assist them in arriving at assessments of all property. These standard measures of value shall be deemed and held prima facie to be the standard measures of just valuation contemplated by the constitution of this state in matters of taxation. Tax assessors and tax adjustment boards shall follow and apply such standard measures of value in arriving at assessments of all property, and the burden shall be upon any assessor or board of tax adjustment refusing to follow such standards to overcome the presumption by preponderance of the evidence." (Emphasis supplied)

Here, the tax assessor did not follow the standard measures of value established and promulgated by the Department of Revenue, and thus the central question is whether or not he met the burden imposed upon him by the statute, He assessed the land for each of the three years at $4,955,335.00.

The Department of Revenue manual sets out the procedures for assessing timber-lands (standard measures of value). The first step is to determine the “site index” of a particular tract. This is the measure of the size of a pine tree that will grow on the particular tract in 50 years. This is accomplished by determining the height of the dominant trees in the stand and the age of the trees from borings made into sample trees. In addition, soil borings are also made to determine the quality of the soil. This information is applied to a table included in the manual and the result gives the site index for that particular tract. This index is then used to determine from another table the growth rate which is expressed in cords/per acre/per year. Various species of pine have different growth rates. Next the growth rate per year is multiplied by the “stumpage price” which is the value paid for wood growing at the site expressed in dollars per cord. Subtracting the average expense per acre from the result gives the net income per acre which is then capitalized under standard appraisal procedures to determine the value of that acre of land. This procedure is not foolproof. There are a number of judgment factors involved in making the assessments pursuant to the approved manual, just as there are in making any appraisal, but it results in a valuation of timberland based upon the revenue the land will produce from timber farming. It provides adequate standards for evaluation; the validity of the valuation can be adequately tested through cross-examination of the appraiser witness.

In this case the tax assessor was unable to relate any standards or criteria which he used to make his assessments. He merely took the four classifications of his previous assessment which he had made with the assistance of Howze & Associates four years previously, added new classifications, shifted lands from lower classifications to higher and in addition raised the value of some of the classifications. This was done primarily from aerial photographs which had been used four years previously when the four original classifications were made. The assessor testified that he used an “educated guess” to change land from one category to another based primarily on the aerial photographs of his previous assessment and also from his memory of the field work he had done. As for his upgrading the value per acre, he testified:

“I looked it over and made a determination that Timber One looked more like $100.00 an acre. And I looked at Timber Two and it looked more like $60.00 an acre. And I looked at number three and found it looked more like forty to $45.00.
“My first determination was No. One Timber should be $100.00 an acre but I didn’t do that offhand. I went into the matter and I took my then $65.00 an acre, which I thought was the easiest way to do it since we had so many parcels and so little personnel to do it and to expedite the office work and we had so many tax rolls to look after .
“Well, actually if I had made exactly that determination I would come up with $100.00 an acre rather than $65.00. But I thought by combining the category One and adding more acres into the category One an assessment of $65.00, it would come out about the same rather than raising the value on Timber One that was already, I thought was reasonable.”

The assessor’s expert forester witness, Boyd, did not make an independent appraisal of the land. He spent two and one-half days examining the 87,000 acres involved in this suit to check classification differences between St. Joe’s two appraisers — not to determine site indexes or evaluate the land. He appraised all the lands as planted slash pine, even though most of it was in natural stands and approximately one-half of the natural stands were in long-leaf pine. (Different species of pine have different growth rates.) As previously stated, he made no independent appraisal of these lands but by picking and choosing various factors from the appraisals of St. Joe’s two experts, rejecting portions of these appraisers’ work, and adding some of his own, he arrived at a valuation in excess of the tax collector’s.

The Tax Assessor’s other expert witness, Merriam, who is in the insurance and real estate business, admitted that he was not an expert in this field. He used information given to him by witness Boyd and made his own calculations from it. He did not properly use the site index to determine growth rate and value. He also attempted to substantiate his values by comparable sales but did not show wherein and to what extent and degree such sales were comparable with the land in issue.

St. Joe, on the other hand, produced two appraiser witnesses (Sizemore and Robertson) who were experts in this particular area of appraisal. They each made an independent appraisal pursuant to the prescribed methods of the Department of Revenue which involved extensive work in the field. Sizemore appraised the land on the basis of what the land would grow while Robertson appraised as hardwood if hardwood was then growing on the land. The tax assessor’s witness Boyd had taken no soil samples and made only “between 20 and 25” tree borings in the 87,000 acres involved in this suit. St. Joe’s expert witness Sizemore, on the other hand, took “three or four hundred tree borings” and “4,200 to 4,300 soil borings” in following the methods prescribed by the Department of Revenue.

The valuations placed by the various witnesses on this tract of timberland are as follows:

1971

Appellee's Assessment $4,955,335.00

Appellee's Witness Boyd 4,981,719.28

Appellee's Witness Merriam 8,076,651.00

St. Joe's Witness Sizemore 4,041,061.00

St. Joe's Witness Robertson 3,651,546.00

1972

Appellee's Assessment $4,955,335.00

Appellee's Witness Boyd 5,980,203.00

Appellee's Witness Merriam 8,076,651.00

St. Joe's Witness Sizemore 3,217,188.00

St. Joe's Witness Robertson 2,960,366.00

1973

Appellee's Assessment $4,955,335.00

Appellee's Witness Boyd 8,511,779.26

Appellee's Witness Merriam 8,076,651.00

St. Joe's Witness Sizemore 4,504,021.00

St. Joe's Witness Robertson 3,952,292.00

The tax assessor failed to meet the burden of proof imposed upon him by the above quoted § 195.032, Florida Statutes 1971, in that having declined to follow and apply the standard measures of value established by the Department of Revenue, he failed to overcome by a preponderance of the evidence the presumption that an appraisal through the use of such standards is superior to the appraisal methods used by him in making his assessments of the agricultural lands involved in this suit for the years 1971, 1972 and 1973. Compare Container Corporation of America v. Long, Fla.App.(lst), 274 So.2d 571 (1973), and Container Corporation of America v. Rutherford, Fla.App.(lst), 293 So.2d 379 (1974).

The judgment appealed from is, therefore, reversed and the case is remanded with directions for further proceedings consistent with the ruling herein.

Reversed and remanded with direction.

BOYER, C. J., and LEE, THOMAS E., Associate Judge, concur.


author: MoCORD, Judge. BOYER, Chief Judge

text:
    PALMETTO GENERAL HOSPITAL, INC., Petitioner, v. STATE of Florida DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Respondent.
    No. Z-1.
    District Court of Appeal of Florida, First District.
    May 24, 1976.
    Rehearing Denied July 8, 1976.

      James E. Tribble of Blackwell, Walker, Gray, Powers, Flick & Hoehl, Miami, for petitioner.
    E. J. Haugdahl, Jacksonville, for respondent.
   MoCORD, Judge.

This is a petition for review of a final administrative order of May 20, 1975, of a hearing officer designated by respondent pursuant to § 1122 of the Social Security Act [42 U.S.C.A. § 1320a-l(b)(3)].

Petitioner Palmetto General Hospital, Inc., is the operator of a private, for-profit hospital located in Hialeah, Florida. The order here under review grew out of an application by petitioner for Federal participation in capital expenditures to be made by it in a proposed expansion of its existing hospital. In originally constructing its hospital, petitioner completed both the interior and exterior construction of the first five floors of the eight story building, leaving the top three floors “shelled in” with interiors uncompleted. The construction was completed on or about December 1970, and since mid 1971 petitioner has operated a 180 bed hospital in the completed five stories of the building. It now seeks federal participation in its capital expenditures to complete the top three floors for an additional 180 beds and expansion of its ancillary facilities.

This is a hybrid proceeding involving both the federal and state governments under an agreement entered into between the State of Florida and the Secretary of Health, Education and Welfare of the United States (hereafter referred to as the Secretary) on February 27, 1974, pursuant to authority therefor contained in 42 U.S. C. § 1320a-l. The agreement set up procedures to be followed by the state in making findings and recommendations to the Secretary with respect to capital expenditures proposed by or on behalf of any health care facility for which Federal participation is sought. Although it was executed on February 27, 1974, the agreement was made retroactive by its terms to January 1, 1973.

At the time the above agreement was made, the state had an established statutory procedure pertaining to licensing of health care facilities — Sections 381.493-381.-497, Florida Statutes 1973, known as the “Health Facilities Planning Act.” This act requires that any hospital project that involves the addition of beds by new construction and/or alteration of existing facilities or that involves new construction of additional health facilities that amount to an expenditure of over $100,000, submit a written application of its intention to make a capital expenditure to the area-wide planning council defined in that act. The act further defines the procedures to be followed by the council and directs that it recommend that the facility be constructed in its entirety or that it not be constructed. The Bureau of Community Medical Facilities Planning then considers the recommendation of the council and may either issue or deny a certificate of need for the facility. The act further provides that in the exercise of its authority to issue licenses to health care facilities, “the Division of Health shall duly consider the advisory certificate of need study required by this act, although the recommendations in said study shall not be binding upon the Division.” The act then concludes (Section 381.497, Florida Statutes) with the following exemption:

“Sections 381.493-381.496 shall not affect any health care facility project for which land has been acquired and preliminary construction plans have been prepared and filed with the division of health prior to July 1, 1973.” (the effective date of the act)

Petitioner contends that by virtue of the foregoing exemption contained in the above statute, it is exempt from all requirements both state and federal and that it obtain a certificate of need to construct its hospital addition and to obtain federal participation in its capital expenditures. The hearing officer found with certain modifications that there was no need for petitioner’s proposed construction, but further found that under the Florida statute for licensing purposes, petitioner is exempt from the certificate of need provisions. While it is true that the petitioner fits the foregoing exemption of the Florida statute and is exempt from the certificate of need requirements of that law, we cannot say that such law in any way controls the Secretary on the question of whether or not he will approve federal participation in capital expenditures on petitioner’s project without need being shown for such construction.

Petitioner in addition contends that it is exempt from certificate of need review procedures for federal capital expenditures participation by virtue of public law 92-603, Section 221(d), which exempted “a health care facility providing health care services as of December 18, 1970, which on such date is committed to a formal plan of expansion or replacement . . .” The hearing officer found petitioner is not entitled to this exemption because such exemption contemplates health care services to the general public on the date in question and petitioner at that time was only providing health care services to its own personnel; that petitioner’s hospital facility was not open to the public until January 17, 1971. Any ruling which we might make on this federal exemption would not be binding upon the Secretary. This is a question for the Secretary’s determination and such Federal review as may thereafter be available.

The order of the hearing officer is AFFIRMED.

BOYER, C. J. concurs specially.

LEE, THOMAS E., Associate Judge, concurs.

BOYER, Chief Judge

(concurs specially).

I agree that this Court can make no ruling which will be binding on the Secretary of Health, Education and Welfare of the United States. I must therefore concur in the result. However, I am of the view that Petitioner is entirely correct in its contention that by virtue of F.S. 381.497, it is exempt from all requirements that it obtain a certificate of need. Petitioner’s remedies, it seems to me are federal and not state.

      . For an analogous situation see Board of Trustees of Internal Improvement Trust Fund v. Bankers’ Life and Casualty Company, etc., Fla.App. 1st, 1076, 331 So.2d 381, wherein this Court quoted with approval from a recitation in the order of the trial court as follows :
      “There seems to be some question, not litigated here, as to the policy of the corps of engineers requiring the approval of the trustees before granting any permit for the filling of bottoms such as those here involved. To the extent that the trustees act as advisers on ecology to the federal authorities they function under federal law, and the propriety of their actions is not in issue here. However, the trustees as state officers have no authority to refuse to approve a permit proposed to be issued by the corps of engineers because of any claim of state title to the bottoms here involved. To this extent, the plaintiff is entitled to an injunction, if one be needed.”


author: PER CURIAM. MILLS, Judge

text:
    Leveral “Sparky” RAFFIELD, Appellant, v. STATE of Florida, Appellee.
    No. W-412.
    District Court of Appeal of Florida, First District.
    June 4, 1976.
    Rehearing Denied July 8, 1976.

      Guillermon A. Ruiz and Philip J. Pado-vano, of Ruiz & Padovano, St. Petersburg, for appellant.
    Robert L. Shevin, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., for appellee.
   PER CURIAM.

A jury found Raffield guilty of possession of more than five grams of marijuana, and conspiracy to possess more than five grams of marijuana with intent to sell, as charged by the State. He appeals from the judgment of conviction and the sentences of imprisonment.

The issues raised by this appeal are:

1. Whether the trial court erred in denying Raffield’s motion to suppress the marijuana seized in a warrantless search.

2. Whether the trial court erred in admitting into evidence the transcript of testimony given by Raffield at his bond reduction hearing.

3. Whether the trial court erred in admitting into evidence a tape recorded statement made by Raffield.

In December, 1973, agents of the Florida Department of Law Enforcement received information from a confidential informant that marijuana was being imported into the state near the Panhandle area, and that Raffield was involved in the operation. Florida Marine Patrol officers located a spot on the bank of a creek, near or adjacent to Raffield’s property, where they observed what turned out to be 261 grams of marijuana scattered on the ground, and a piece of a burlap sack. They also observed tire tracks from what appeared to be a tractor-type vehicle, and a gang plank or prow, believed to have been constructed in Raffield’s barn. About this time, other agents reported that Raffield, who had previously been on welfare, was showing a lot of money, and apparently had purchased a 40-acre farm in his wife’s name. A surveillance post was mounted in a nearby fire tower, from which the spot on the creek was visible. Agents could see portions of Raffield’s property from the tower, but the barn, approximately five miles from the spot on the creek, was not visible.

On or about 20 December 1973, a man, thought to be Jorge Soto, purchased a stripped down Winnebago motor home in Jacksonville. The Winnebago was followed to Gainesville and kept under surveillance. On 23 December 1973, at approximately 3:00 P.M., the Winnebago was observed leaving Gainesville and heading north toward the Panhandle area along with a Dodge van and a pick-up truck.

The vehicles stopped at the Rustic Sands Camp Grounds near Mexico Beach. At approximately 1:00 A.M., on 24 December 1973, these vehicles were observed by Florida Department of Law Enforcement agents proceeding up a road leading either to Raffield’s farm, or to Highway 71. The agents located at the surveillance points on Highway 71 did not see the vehicles pass on Highway 71. At about 2:30 A.M., the vehicles were observed returning on the same road and the agents noticed that the vehicles appeared to be heavily laden.

The vehicles were followed to Tallahassee where they were stopped at 6:00 A.M. Eastern Standard Time and searched. All of the vehicles contained marijuana and all of the drivers were arrested.

Richard Hackmeyer, an attorney for the Florida Department of Law Enforcement, who was working on the investigation, upon learning of the arrests, directed the agents to search Raffield’s barn. He recommended the warrantless search because he feared that the three men arrested in Tallahassee would make phone calls from the jail regarding their arrests, and Raffield would be alerted. At that time Hack-meyer considered probable cause existed to get a warrant, but did not seek to obtain one because of the difficulty in securing a warrant on Christmas Eve, and because he feared that the contraband, thought to be located in Raffield’s barn, would be destroyed.

Although Raffield had been under investigation since early December, Hack-meyer conceded that no attempt was ever made to learn of the availability of a magistrate for the purpose of obtaining a warrant should one become necessary. He stated that after the three men were arrested in Tallahassee, no effort was made to obtain a warrant. At approximately 8:00 A.M. Central Time (9:00 A.M. Eastern Standard Time), Officers Von Tronk and Valente, following Hackmeyer’s instructions, went to Raffield’s farm and conducted a search of the barn. Located in the barn were two vehicles, each of which contained a large quantity of marijuana. Upon discovery of the marijuana, Raffield was placed under arrest.

Raffield’s motion to suppress the marijuana was denied. At trial the marijuana found in the barn was introduced into- evidence over Raffield’s objection and renewed motion to suppress.

On cross-examination of Raffield at his bond reduction hearing, he was asked questions going to the merits of the case which he freely and voluntarily answered. No objections to these questions were made on the ground of self-incrimination but occasional objections were made by his counsel on the ground of relevance. Finally, after numerous self-incriminating answers had been given, defense counsel began to object to further questions on grounds of self-incrimination and the objections when made on such grounds were then sustained. Raffield admitted, among other things, that he had knowledge that marijuana was in the barn. The state at trial offered Raf-field’s self-incriminating testimony at the bond hearing, and after considering Raf-field’s objections to its admission, the court ruled that such testimony was freely and voluntarily given and was admissible as a judicial confession. Defense counsel then objected to the admission of only excerpts from the testimony and contended that if any was admitted, the whole of it should be included. The court then admitted all of defendant’s bond hearing testimony.

All searches without a search warrant are unreasonable unless shown to be within one of the exceptions to the rule that a search must rest upon a valid warrant. The five basic exceptions to the requirement of a search warrant are: Consent; incident to a lawful arrest, with probable cause to search but with exigent circumstances; in hot pursuit; and stop and frisk. The burden is on the State to show that the warrantless search comes within an exception. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).

The State contends that the exceptions applicable to the facts in this case are consent and probable cause to search with exigent circumstances. Consent must; be freely and voluntarily given. Mere acquiescence or submission to authority is insufficient. Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). Probable cause without exigent circumstances is insufficient. Where possible, officers should anticipate and take action to avoid or prevent emergencies or exigent circumstances from arising. United States v. Rossetti, 506 F.2d 627 (7 Cir., 1974).

In the case before us, Raffield was told by an agent that his barn was going to be searched. He replied that he was guilty and “it’s in there”. The search was conducted. Raffield did not specifically consent to the search of the barn. He merely acquiesced or submitted to authority. However, we need not determine whether, under the facts of this particular case, his acquiescence and conduct amounted to consent because the facts do clearly reveal probable cause and exigent circumstances. There was reasonable basis for the belief that the three drivers arrested in Tallahassee would telephone Raffield to warn him; that the removal of contraband from the barn could not be prevented by the agents; that the barn could not be secured because of the safety factor; and that obtaining a search warrant on Christmas Eve would be impossible or long delayed.

As to his second point, the testimony Raffield gave at his bond reduction hearing, in which he admitted guilt to the charges against him, was relevant to the bond hearing and was admissible in the absence of objection on the ground of self-incrimination. It was freely and voluntarily given without any compulsion, threats, or promises. Compare Brumit v. State, Fla.App.2d 1969, 220 So.2d 659.

Appellant’s third point relates to admission of his tape recorded statement. Although a portion of the recording, containing incriminating admissions of Raf-field, was inaudible and unintelligible, the trial court admitted the tape into evidence. We have listened to the tape which is approximately 25 minutes long and it was unintelligible in four places which consumed only a few seconds of the time. The tape was properly admitted into evidence. See Gomien v. State, Fla.App.3d 1965, 172 So.2d 511.

Finding no prejudicial error, the judgment and sentence appealed are

AFFIRMED.

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

MILLS, J., dissents.

MILLS, Judge

(dissents):

I dissent.

In the case before us, Raffield was told by an agent that his barn was going to be searched. Neither his consent nor permission was sought. Raffield replied that he was guilty and “it’s in there”. The search was conducted. Raffield did not consent to the search of the barn, he merely acquiesced or submitted to authority. This is insufficient.

The facts in this case show probable cause. They do not show exigent circumstances. The Florida Department of Law Enforcement felt that the three drivers arrested in Tallahassee would telephone Raffield to warn him; that the removal of contraband from the barn could not be prevented by the agents; that the barn could not be secured because of the safety factor; and that obtaining a search warrant on Christmas Eve would be impossible.

The risk of the telephone call was not an exigent circumstance. If the risk of the call created an emergency, this could have been prevented by leaving an agent with the three arrested drivers while a warrant was obtained.

The evidence adduced by the State was insufficient to support its contentions that the Florida Department of Law Enforcement could not prevent the removal of contraband and could not safely secure the barn. There were at least eight agents in the vicinity of the barn and no evidence that anyone was at the barn other than Raffield and his family. Raffield had no known propensity for violence.

Not only did the State fail to obtain a warrant, but it made no plans to obtain one. Nor did it give a satisfactory reason for not obtaining a warrant.

In order to be effective, a waiver of privilege against self-incrimination must be freely and voluntarily given. If a person is forced to choose between waiving this privilege or foregoing a substantial benefit, such as a guaranteed right, there is no choice, and the waiver is ineffective. Davis v. Wainwright, 342 F.Supp. 39 (D.C.1971). For example, a defendant may refuse to testify, and thus be compelled to give up his right to reasonable bail. In my judgment, a defendant should not be compelled to give up his Fifth Amendment rights in order to assert his right to reasonable bail.

Raffield testified at his bond reduction hearing about his family occupation, property, and financial condition. On cross-examination he was asked questions going to the merits of the case and over objection admitted, among other things, his knowledge that marijuana was in the barn. Over objection, the portion of the transcript of the bond reduction hearing containing Raf-field’s testimony was admitted into evidence.

The testimony Raffield gave at his bond reduction hearing, in which he admitted guilt of the charges against him, was erroneously admitted over objection of his attorney at trial. Under the circumstances here, he did not freely and voluntarily waive his privilege against self-incrimination.

I would reverse the judgments of conviction and sentences.


author: McCORD, Judge. RAWLS, Acting Chief Judge

text:
    Blythe Bibbens UPCHURCH, formerly Blythe Bibbens Ely, Appellant, v. Charles C. ELY, III, Appellee.
    No. Z-241.
    District Court of Appeal of Florida, First District.
    June 7, 1976.
    See also, Fla.App., 333 So.2d 539.
    Albert J. Datz and Ronald E. Dusek of Datz, Jacobson & Dusek, Jacksonville, for appellant.
    Walter R. Stedeford and B. Kemp Has-kell, Jacksonville, for appellee.
   McCORD, Judge.

This is an interlocutory appeal from an order of July 10, 1975, modifying a final judgment of dissolution of marriage and an order of August 5, 1975, on motion for clarification of the order of July 10.

A final decree of divorce was entered in the action below on November 9, 1961, and by it the husband was ordered to pay child support for the two children of the marriage (then ages one and three) in the amount of $90 per month per child until further order of the court. In 1975 the mother, by motion to modify the final decree sought an increase in child support and the court, by its above mentioned order of July 10, increased such support to $140 per month per child until such child becomes of age, is self-supporting or marries. Thereafter, on July 25, appellant filed a petition for clarification of the support order and the trial court entered its above referred to order of August 5, 1975, ruling that the order of July 10 “contemplates that support will cease upon a child becoming 18 years of age.” The trial court further stated that in increasing the child support, it “had in mind that under existing law the support for each child would terminate upon such child becoming 18 years of age. The amount of support was to some extent based upon the fact that support for Frances Elizabeth Ely would be for less than one year and support for the other child would be for approximately three years. If support is to be paid until each child becomes 21, then it would be substantially less than the amount ordered.” The trial court misconstrued the law as stated by the Supreme Court in Finn v. Finn, Fla., 312 So.2d 726 (1975), and Daugherty v. Daugherty, Fla., 308 So.2d 24 (1975). The final decree of divorce was entered at a time when support continued until a child reached 21 years of age unless the child married or ceased to be dependent. As the Supreme Court held in Finn and in Daugherty, § 1.01(14), Florida Statutes, (which became effective on July 1, 1973, and changed the definition of “majority” and “minority” so that a minor was defined as a “person who has not attained the age of 18 years,”) did not disturb previous orders of support. The Supreme Court said in Finn:

“. . . The mere chronological passing to the 18th anniversary of the birth of the sons does not automatically change a court order which either by its terms or by implication would be operative until the 21st birthday.”

Here the final judgment would be operative as to the support of each offspring until his or her 21st birthday unless he or she marries or ceases to be dependent under the guidelines of dependency as set forth in Finn. If either of the offspring ceases to be dependent or becomes less dependent in the future, the court will be open to modify the support payments at that time.

Reversed and remanded with directions to reconsider in the light of this opinion and the opinions of the Supreme Court in Finn and Daugherty.

MILLS, J., concurs.

RAWLS, Acting C. J., concurs specially.

RAWLS, Acting Chief Judge

(specially concurring).

It is solely because of the language in Finn v. Finn, supra, that I am compelled to concur in the majority opinion.


author: McCORD, Judge. BOYER, Chief Judge

text:
    Mary Kathleen CRUMPTON, Appellant, v. Bobby Ray CRUMPTON, Appellee.
    No. X-262.
    District Court of Appeal of Florida, First District.
    June 7, 1976.

      James R. McAtee, Pensacola, for appellant.
    James D. Swearingen of Harrell, Wilt-shire, Stone, Swearingen & Hart, Pensacola, for appellee.
   McCORD, Judge.

Certiorari was taken to the Supreme Court from this court’s opinion in this cause — Crumpton v. Crumpton, Fla.App. (1st), 314 So.2d 233 (1975). The Supreme Court on March 25, 1976, issued its mandate on its order of February 12, 1976, in which it stated:

“. . . this cause is remanded to the District Court of Appeal, First District for reconsideration in the light of our decision in Finn v. Finn, 312 So.2d 726 (Fla.1975).”

The facts and status of this case are set forth in our previous opinion and it would serve no useful purpose to repeat them here. By its order discharging rule to show cause (the order from which appeal was taken to this court), the trial court ruled that respondent (appellee) was no longer obligated to pay child support for the child in question because such child had reached the age of 18 years. The order also found as follows:

“. . . said child of the parties is a full-time student at Pensacola Junior College and is dependent upon the petitioner for support and is not self-supporting . . .”

(The record before us does not contain a transcript of testimony and we, therefore, cannot consider any evidence presented to the trial judge on the question of dependency or appellee’s ability to pay.) It is clear that the order of the trial judge is in error under the subsequent ruling of the Supreme Court in Finn. See also this court’s opinion in Upchurch v. Ely, Fla.App. (1st), 333 So.2d 538, opinion filed this date, not yet reported. We, therefore, recede from our previous opinion in the case sub judice and the order appealed from is reversed and the cause is remanded to the trial court for further proceedings.

Reversed and remanded.

RAWLS, J., concurs.

BOYER, C. J., dissents.

BOYER, Chief Judge

(dissents).

On January 19, 1971, a final judgment was entered by which the bonds of matrimony between the parties hereto were severed. The cusody of three minor children was awarded to their mother (plaintiff in the trial court and appellant here) and the father (defendant in the trial court and ap-pellee here) was required to pay child support (and other payments not here material) “all until the further order of this Court.” The final judgment specifically provided: “That the above payments shall constitute the sole financial obligation toward the plaintiff and said minor children, and the plaintiff shall pay all living expenses for herself and said minor children from said amounts.” There was no provision in the final judgment regarding educational expenses incident to the children, nor was there a reservation of jurisdiction.

Chapter 73-21, Laws of Florida, removing the disability of non-age persons 18 years of age, became effective July 1, 1973.

On August 20, 1974, appellant’s attorney filed a “Motion for Contempt” in which he alleged only the requirement to pay child support under the provisions of the final judgment and that “The respondent has failed to comply with the provisions of the final judgment for dissolution of marriage and is currently in arrears on child support in the amount of $300.00.” A second motion, equally brief, was filed on September 12, 1974, in which appellant alleged “The respondent was required to pay for the books and educational expenses of the minor child now attending Pensacola Junior College. The respondent has refused to pay for the books and educational expenses.”

On October 10, 1974, the learned and able trial judge, being the same judge who had entered the final judgment of divorce, after hearing, entered an order discharging the rule to show cause issued pursuant to appellant’s motions, in which he recited that on March 29, 1974, the court had entered an order terminating alimony but requiring “the respondent to pay the reasonable costs of a college education for each of said children as such child obtained college admissible age and upon his or her expressed desire to attend college” and that the child therein mentioned (apparently the youngest of the three children of the parties) had attained 18 years of age in June of 1974. The order concluded with the recitation “that the rule to show cause is discharged, and the respondent relieved of all obligation to pay support for said child or to provide any college education for her effective as of the date of her reaching 18 years of age.”

Petition for Rehearing was denied and appeal was taken to this Court. By a per curiam opinion we affirmed and certiorari was sought in the Supreme Court of Florida. That Court remanded to this Court directing reconsideration by this Court in light of that Court’s decision in Finn v. Finn, Sup.Ct.Fla.1975, 312 So.2d 726.

In accordance with the Supreme Court’s mandate, we have reconsidered and I again conclude that the learned trial judge did not err.

As observed by the Supreme Court in Finn v. Finn, supra, Chapter 73-21, Laws of Florida, specifically provides that the act “shall not prohibit any court of competent jurisdiction from requiring support for a dependent person beyond the age of 18 years;” (emphasis added). However, there is no provision in the act requiring a court of competent jurisdiction to require such support. In the Finn case, as in White v. White (Fla.App. 1st 1974, 296 So.2d 619) cited and discussed in Finn, the trial judge had, in accordance with the proviso contained in Chapter 73-21, required support for the dependent person beyond the age of 18. As above recited-such are not the facts sub judice.

Further, the writer of the Finn opinion on two different occasions alludes to the ability of the father to pay. In both Finn and White, the ability to pay appears to have been conceded. Sub judice, on the other hand, the motions for contempt filed by appellant are silent as to the ability of the father to pay and there is no finding to that effect in the order of the able trial judge.

Neither is there any allegation nor finding that the sui juris offspring of the parties sub judice is satisfactorily and in good faith pursuing an education to become better equipped for life, as also twice mentioned in the Finn opinion.

As this Court said in White v. White, supra, and again in Dwyer v. Dwyer, Fla.App. 1st 1976, 327 So.2d 74:

“ ‘ * * * It is certainly desirable and laudable for parents to encourage their offspring to get a college education, if he or she is college material. However, there are many parents who enjoy complete domestic tranquility but who do not, either from personal choice or inability or otherwise, give their children a college education. The fact that domestic whirlwinds cause a severance of the marriage does not enhance the rights of the children nor alter the obligations of the parents. Certainly if the parents were still married and enjoying domestic harmony a suit would not lie by the child or either parent to require parental support for a college education. Neither may such be accomplished in dissolution of marriage forum.’ (296 So.2d at pages 623 and 624)”

In summary, the learned trial judge initially, in his final judgment, required payment only “until the further order of this Court.” By the further order of the Court those payments were terminated. Appellant neither alleged nor proved (so far as an examination of the entire record-on-appeal reveals) the requisites set forth in the Finn case. Further, Finn is authority for the proposition that a trial court will not be reversed for requiring support for a dependent person beyond the age of 18 years if that person meets the criteria announced in that case. The principles applicable to reversal of a trial court are quite different from those applicable to affirmance. (See Dinkel v. Dinkel, Sup.Ct.Fla.1975, 322 So.2d 22)

Lest it be asserted that I have overlooked the reasoning of the learned trial judge contained in the order here appealed, wherein he recited that “the court being of the opinion that because of the fact that the final judgment herein did not provide that support payments should be required of respondent for either of said children beyond the age of 18 years, the said Lynn Crumpton now having reached the age of 18 and is an adult under the provisons of Chapter 73-21, Laws of Florida, and for that reason and because of the failure of the final judgment to require support for her by the respondent beyond the age of 18, the respondent is not obligated to pay such support, * * * ” I harken back to the time honored principle of appellate review that a trial court will not be reversed for arriving at a correct conclusion based upon an erroneous principle of law. (Jones v. Dove, Fla.App. 1st 1974, 300 So.2d 758)

I would affirm.


author: PER CURIAM.

text:
    Robert V. JOHNSON and Viola Johnson, his wife, Appellants, v. GOVERNMENT EMPLOYEES INSURANCE COMPANY, a Foreign Corporation, Appellee.
    No. 75-1132.
    District Court of Appeal of Florida, Third District.
    May 4, 1976.
    Rehearing Denied July 6, 1976.

      Horton, Perse & Ginsberg, Ronald W. Jabara, Miami, for appellants.
    Bradford, Williams, McKay Kimbrell, Hamann & Jennings and Paul A. Carlson, Miami, for appellee.
    Before BARKDULL, C. J., and HEN-DRY, J., and CHARLES CARROLL, (Ret.) Associate Judge.
   PER CURIAM.

The plaintiffs below appeal from an adverse summary judgment. Appellant Robert V. Johnson was insured by the ap-pellee. He and his wife suffered damages when his automobile was involved in a collision. The owner of the other car, who will be referred to herein as the tort-feasor, was insured by Gateway Insurance Company, which was adjudicated insolvent in August of 1974, more than a year after the accident, which occurred on June 21, 1973.

The plaintiffs claimed against Geico, under the uninsured motorist coverage which its policy provided. Although insured at the time of the accident by Gateway, the tort-feasor’s automobile would be an uninsured-motor vehicle in event of insolvency of Gateway within one year of the date of the accident, according to a provision to that effect in the Geico policy, and by § 627.727(3), Fla.Stat., F.S.A. In the trial court Johnson averred that Gateway became insolvent in fact within a year after the accident, and argued there, and in this court, that the time of insolvency of Gateway, for the purposes involved, was the date upon which it actually became insolvent, rather than the date upon which it was judicially found and determined to be insolvent.

In the trial court, and here Geico contended the controlling date as to insolvency was the date of the adjudication thereof. Based on those positions, both parties moved for summary judgment.

The court held in favor of Geico, and granted it a summary judgment, in which there was included a discussion of the question and of the applicable statutes and authorities, as follows:

“The issue before the court is: What is the meaning of ‘insolvent insurer' under the present Florida Uninsured Motorists Statute, Section 627.727. Does it mean insolvent as a matter of fact or does it mean insolvent as a matter of adjudication?
“This Court is of the view that the determination for the purpose of an uninsured motorists claim is the date of the adjudication of insolvency.
“The plaintiffs rely in support of their position upon Chapter 631.011(5) of the Florida Statutes which defines the word ‘insolvency’ as being in substance— ‘When the assets of the insurer are not sufficient to discharge all of its liabilities, etc.’
“They further rely upon the case of: State Farm Mutual Automobile Insurance Company v. Fass, 243 So.2d 223 (Fla.[App.], 1971); Bartholomew v. Glenns Falls Insurance Group, 241 So.2d 698 (Fla.[App.], 1970).
“It should be noted that the definition of ‘insolvency’ as contained in Section 631.011 of the Florida Statutes was not incorporated in the 1971 uninsured motorists statute, being Section 627.727 of the Florida Statutes, but rather the definition as set forth in Section 631.54(5) was incorporated in the uninsured motorists statute. Section 631.54(5) of the Florida Statutes in defining ‘insolvent insurer’ says:
“Insolvent insurer” means an insurer authorized to transact insurance in this State either at the time the policy was issued or when the insured event occurred and adjudicated to be insolvent by a Court of competent jurisdiction.’
“This would appear to be dispositive of the determination of the issue as to what is meant by ‘insolvent insurer.’
“Insofar as the cases of State Farm Mutual Insurance Company v. Fass and Bartholomew v. Glenns Falls Insurance Group relied upon by the plaintiffs, it appears that both of these cases were decided under the old uninsured motorist statute (627.0851 (1969)), which statute did not incorporate a definition of ‘insolvent insurer’ and is therefore clearly distinguishable from the instant case. The plaintiff relies further upon the case of State Farm Insurance Company v. Saumell, 273 So.2d 101 (Fla., 1973)— however, the opinion in that case did not deal with nor did it consider the definition of ‘insolvent insurer’, or the question of adjudication of insolvency of the insurer, nor did it consider the time of such adjudication, and is therefore of little assistance in reaching a determination in the instant case.
“The defendants rely upon the 1973 Florida Uninsured Motorist Statute, Section 627.727, which defines ‘insolvent insurer’ by referring to Florida Statute Subsection 631.54(5), which has been referred to hereinabove. The defendant further relies upon the case of Jimenez v. Liberty Mutual Insurance Company, 270 So.2d 406 (Fla.Appeals, 1973) which considered adjudication of insolvency of the insurer as having occurred approximately 14 months after the date of the accident and plaintiffs right to bring an uninsured motorist claim was denied. The Court specifically referred to the Florida Insured Guaranty Association Statute by citing O’Malley v. Florida Insurance Company Association, 257 So.2d 9 (Fla., 1971). In that case the Supreme Court upheld the constitutionality of the ‘FIGA’ statute, which involved the definition of ‘insolvent insurer.’
“THEREFORE, the Court concludes that the 1971 Florida Statute 627.727 governs this case and is dispositive of the issue of an interpretation of ‘insolvent insurer.’ ”

We find need to add little to the foregoing opinion of the trial court, which we hold correctly decided the question involved.

The appellants argue that while the trial court’s decision of the question may be in accordance with § 627.727(3) and (4) and § 631.54(5) Fla.Stat., F.S.A. when those statutory provisions are considered in pari materia and are read together, the actual date that Gateway became insolvent, rather than the date it was adjudged to be insolvent, should be controlling in this case, because the insurance policy referred to the tort-feasor’s motor vehicle being uninsured if the insurer thereof “becomes insolvent” within a year after the accident. Based thereon, appellants contend that to hold that the date of adjudication of insolvency applies will operate to impair its contract and to deny it due process of law. We do not agree. Contracts are made in legal contemplation of existing applicable statutes. Belcher v. Belcher, Fla.1972, 271 So.2d 7, 9; General Development Corporation v. Catlin, Fla.App.1962, 139 So.2d 901, 913.

The judgment is affirmed.


author: CHARLES CARROLL, Associate Judge.

text:
    GOVERNMENT EMPLOYEES INSURANCE COMPANY, Appellant, v. Sheila MIRTH, Appellee.
    No. 75-790.
    District Court of Appeal of Florida, Third District.
    May 4, 1976.
    Bradford, William, McKay, Kimbrell Hamann & Jennings and Bruce Stanley, Miami, for appellant.
    Rossman & Baumberger, Miami, for ap-pellee.
    Before PEARSON and NATHAN, JJ., and CHARLES CARROLL, (Ret.), Associate Judge.
   CHARLES CARROLL, Associate Judge.

This is an appeal by the plaintiff below from an adverse final judgment entered upon granting the defendant’s motion for judgment on the pleadings, holding the plaintiff was not entitled to stay an arbitration, and ordering that the arbitration should proceed. The complaint filed by the appellant Government Employees Insurance Company, herein referred to as Geico, against Sheila Mirth, disclosed the facts set out below.

An automobile owned and driven by Gwendolyn Dixon, in which the defendant Sheila Mirth was a passenger, was involved in a collision with an automobile owned and driven by Annie J. Purcell. The accident was alleged to have been caused by negligence of Purcell.

The Purcell automobile was insured under a policy issued by Gateway Insurance Company, herein referred to as Gateway. The Dixon automobile was insured under a policy issued by Geico, which included uninsured motorist coverage, with a provision for claims under that coverage to be submitted to arbitration. By the Geico policy’s provisions relating to uninsured motorist coverage, a tort-feasor’s insured automobile is an uninsured motor-vehicle if the insurer thereof becomes insolvent within one year after the date of the accident. Mirth, claiming damages for personal injuries, was proceeding for arbitration under uninsured motorist coverage of Geico.

The complaint alleged that Gateway, the insurer of the Purcell automobile, was declared insolvent by a court in Pennsylvania on or about August 21,1974 (approximately two years after the date of the accident, which occurred on September 19, 1972). Based on the theory that as a consequence thereof the Purcell automobile was not an uninsured motor vehicle, and that therefore there was no contract provision for arbitration of Mirth’s claim for damages for personal injuries against (insured) Purcell, the plaintiff sought a temporary and permanent injunction to stay the arbitration, as authorized and provided for by § 682.03(4) Fla.Stat., F.S.A.

Additionally, the plaintiff alleged the action was one for declaratory judgment to determine the rights of the parties, and prayed therefor.

The defendant Mirth filed a motion to dismiss the complaint, and an answer in which she denied the allegation that Gateway had been declared insolvent on August 21, 1974. The answer made no averment as to whether or when Gateway became insolvent. The defendant also moved for judgment on the pleadings.

Upon hearing the defendant’s motions, the court found there was no doubt as to the meaning of the insurance contract or as to the interpretation of the contract and decided the cause on the merits, by granting defendant’s motion for judgment on the pleadings (holding the motion to dismiss was moot), entering final judgment in favor of the defendant, and holding the plaintiff was not entitled to a stay and that the arbitration should proceed.

On this appeal therefrom by the plaintiff, it argues the court erred by granting judgment on the pleadings in faver of the defendant, holding plaintiff was not entitled to stay the arbitration, in face of the untried issue on which the right to stay the arbitration hinged.

The appellee argues that the judgment should be affirmed on the ground that an action for declaratory judgment will not lie for the “determination of purely factual issues arising under a contract of insurance which is clear and unambiguous”, citing Travelers Indemnity Co. v. Johnson, Fla.1969, 201 So.2d 705 [issue as to notice of claim]; Columbia Casualty Company v. Zimmerman, Fla.1952, 62 So.2d 338 [issue as to whether driver of automobile did so with consent of owner]; Prudence Mutual Casualty Co. v. Humphreys, Fla.App.1969, 220 So.2d 381 [issue as to notice of claim],

We hold the trial court was not in error in concluding there was no need for a declaratory judgment as to the meaning or interpretation of the provisions of the Geico insurance policy. Travelers Indemnity Co. v. Johnson, supra. The policy plainly provided for arbitration of a claim under the uninsured motorist coverage, and it was equally clear under the policy that it did not provide for arbitration of a claim by Mirth against Purcell and her insurer if the Purcell automobile was insured. See Manning v. Travelers Insurance Co., Fla.1971, 250 So.2d 872; Jimenez v. Liberty Mutual Insurance Co., Fla.App. 1973, 270 So.2d 406.

An application for a stay of arbitration was properly presented to the court under § 682.03(4) Fla.Stat., F.S.A. which reads as follows:

“On application the court may stay an arbitration proceeding commenced or about to be commenced, if it shall find that no agreement or provision for arbitration subject to this law exists between the party making the application and the party causing the arbitration to be had. The court shall summarily hear and determine the issue of the making of the agreement or provision and, according to its determination, shall grant or deny the application.”

Under a liability indemnity insurance policy providing uninsured motorist coverage, issues relating to the merits of the claim against the tort-feasor are triable on the arbitration, but an issue bearing on coverage is not to be so tried, and is tria-ble by the court. Cruger v. Allstate Insurance Company, Fla.App.1962, 162 So.2d 690; Zeagler v. Commercial Union Ins. Co. of N. Y., Fla.App.1964, 166 So.2d 616. Here, without trying the issue upon which coverage hinged, the court directed that the arbitration should proceed.

According to Johnson v. Government Employees Insurance Company, Fla.App. 1976, 333 So.2d 542 it is the date upon which an insurance company is adjudged to be insolvent which fixes the time of the insolvency for the purposes of this case.

It was error to grant judgment in favor of the defendant. On a motion for judgment on the pleadings (Rule 1.140 (c) F.R.C.P.), allegations in the pleading of the party moved against are taken as true, and those of the movant which are denied are taken as false. Butts v. State Farm Mutual Automobile Ins. Co., Fla.App.1968, 207 So.2d 73, 75. Precluding the judgment for the defendant on the pleadings was the plaintiff’s allegation, to be taken as true, that Gateway was adjudged insolvent approximately two years after the date of the accident. As provided for in § 682.03(4) Fla.Stat., F.S.A. the trial court should have decided the issue created by that allegation and its denial and thereby determined either that the tort-feasor’s motor vehicle was uninsured and presence of a provision for arbitration, or that such motor vehicle was insured in which event there would be no provision for arbitration of Mirth’s claim against Purcell, and Geico would be entitled to an order staying the proposed arbitration.

For the reasons stated the judgment is affirmed in part and reversed in part, and the cause is remanded for further proceedings not inconsistent herewith.

      . This comports with the statutory provision to such effect, § 627.727, subparagraphs (2) (a), and (3).


text:
    Jack HEYMAN, Appellant, v. Gerald M. WEINSTEIN et al., Appellees.
    No. 75-645.
    District Court of Appeal of Florida, Third District.
    April 20, 1976.
    Rehearing Denied May 12, 1976.
    See also Fla.App., 333 So.2d 550.
    Turner & Shapiro, Miami, for appellant.
    Weithorn & Mazloff, Coral Gables, for appellees.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

This is an appeal by Jack Heyman, plaintiff in the trial court, from a final judgment in favor of the defendants, Gerald M. Weinstein, Sidney Katz and Kawe, Inc., d/b/a Regent Drugs, notwithstanding jury verdicts for the plaintiff against all defendants.

The record reflects the following facts: Plaintiff Heyman became acquainted with defendants Katz and Weinstein and their Regent Drugs pharmacy when he picked up medicines for his sick daughter. The three men began conversing. Katz and Weinstein complained that they would like to run the pharmacy at Miami Dade General Hospital, but that the hospital ignored their proposals. Heyman remarked that he had known the executive director of the hospital for many years, and he could make sure that their proposal would be read. Weinstein and Katz were “delighted”, and signed a contract on behalf of themselves and of KAWE, Inc. d/b/a Regent Drugs, promising Heyman 3 per cent of all gross sales “made to the operation presently called Miami Dade General Hospital . . . This agreement is compensation for the efforts extended by Jack Heyman in obtaining the agreement between said hospital organization and Gerald Weinstein and/or Sidney Katz and/or Regent Drugs. This agreement is null and void in the event the affiliation is not secured between the hospital and Gerald M. Weinstein and Sidney Katz and/or Regent Drugs.” Heyman delivered a copy of Regent Drugs’ proposals to the secretary of the executive director of the hospital. The hospital was interested and ultimately, the defendants received the pharmacy contract at Miami Dade General. At the last minute, however, WEKA, Inc. (WEinstein KAtz) was substituted for KAWE, Inc. (KAtz WEinstein) as the named concessionaire. The hospital did not object to the substitution. WEKA, Inc. stock is held by Mrs. Katz (one-third), Mrs. Wein-stein (one-third) and one Mr. Cartun (one-third). Its Miami Dade General concession is being run by Katz and Wein-stein. Weinstein was the negotiator for both KAWE and WEKA.

Heyman demanded his 3 per cent commission, but Weinstein and Katz refused to pay. Heyman then instituted this suit, whereby he sought an accounting, declaratory relief and damages against the defendants, Katz, Weinstein, KAWE and WEKA, for an alleged breach of contract. The cause proceeded to a jury trial. All defendants moved the court for directed verdicts. The court reserved ruling. The trial culminated in four verdicts for the plaintiff, Jack Heyman. The jury found “a valid contract against” each of the four defendants, Gerald M. Weinstein, Sidney Katz, KAWE, Inc., d/b/a Regent Drugs, and WEKA, Inc., performed by the plaintiff and "plaintiff is entitled to an accounting.” Defendants Gerald M. Weinstein, Sidney Katz and KAWE, Inc., filed a motion for judgment notwithstanding the verdict and a motion in arrest of judgment. The trial court granted both motions and entered the final judgment herein appealed, dismissing the plaintiff’s cause with prejudice as against these three defendants. This appeal ensued.

Heyman contends that the trial court erred in vacating the jury verdicts by granting the defendants’ motion for judgment notwithstanding the verdict. Having carefully reviewed the record, we agree. Motions for judgment notwithstanding the verdict, like motions for directed verdict, should be resolved with extreme caution since the granting thereof holds that one side of the case is essentially devoid of probative evidence. Smith v. Peninsular Insurance Company, Fla.App.1965, 181 So.2d 212. When filing a motion for judgment notwithstanding the verdict, as with a motion for directed verdict, the movant admits all material facts as attested by his adversary and also admits all inferences of fact favorable to the adversary that reasonably might be drawn from the evidence as a whole. Cash v. Gates, Fla.App.1963, 151 So.2d 838, 840. As stated by this court in McCabe v. Watson, Fla.App.1969, 225 So.2d 346, 347,

“Motions for directed verdict, judgment in accord with directed verdict, and judgments n.o.v. all share the following rules as to their application by the trial court: they should be cautiously granted, and only when the court, after viewing the evidence and testimony in a light most favorable to the non-moving party, concludes that the jury could not reasonably differ as to the existence of a material fact or material inference, and that the movant is entitled to the judgment as a matter of law. Chowning v. Pierce, Fla.App.1965, 174 So.2d 42; Deese v. White Belt Dairy Farms, Inc., Fla.App.1964, 160 So.2d 543.”

By filing a motion for judgment notwithstanding the verdict, the defendants have admitted all evidence against them. A thorough review of all of the evidence presented to the jury in a light most favorable to the plaintiff, demonstrates that there was evidence and there are reasonable inferences which could be drawn from that evidence by the jury. Accordingly, the trial court committed reversible error in vacating the jury’s verdicts and substituting its own evaluation of the weight of the evidence. The final judgment is reversed with directions to reinstate the jury verdicts against Katz, Weinstein and KAWE and to enter an order consistent therewith.

Reversed with directions.


text:
    Jack HEYMAN, Appellant, v. WEKA, INC., Appellee.
    No. 75-659.
    District Court of Appeal of Florida, Third District.
    April 27, 1976.
    Rehearing Denied July 6, 1976.
    Turner & Shapiro, Miami, for appellant.
    Weithorn & Mazloff, Coral Gables, for appellee.
    Before HENDRY and NATHAN, JJ., and LESTER, M. IGNATIUS, Associate Judge.
   PER CURIAM.

This is an appeal by Jack Heyman, plaintiff in the trial court, from a final judgment in favor of WEKA, Inc., one of four defendants, notwithstanding jury verdicts for the plaintiff against all defendants. This appeal grows out of the same suit as Heyman v. Weinstein, Fla.App.1976, 333 So.2d 548, however, a separate judgment was entered against the other three defendants. The parties did not request, and this court did not enter, an order of consolidation on appeal.

The record reflects the following facts: Plaintiff Heyman became acquainted with defendants Katz and Weinstein and their Regent Drugs pharmacy when he picked up medicines for his sick daughter. The three men began conversing. Katz and Weinstein complained that they would like to run the pharmacy at Miami Dade General Hospital, but that the hospital ignored their proposals. Heyman remarked that he had known the executive director of the hospital for many years, and he could make sure that their proposal would be read. Weinstein and Katz were “delighted”, and signed a contract on behalf of themselves and of KAWE, Inc. d/b/a Regent Drugs, promising Heyman 3 per cent of all gross sales “made to the operation presently called Miami Dade General Hospital . . . This agreement is compensation for the efforts extended by Jack Heyman in obtaining the agreement between said hospital organization and Gerald Weinstein and/or Sidney Katz and/or Regent Drugs. This agreement is null and void in the event the affiliation is not secured between the hospital and Gerald M. Weinstein and Sidney Katz and/or Regent Drugs.” Heyman delivered a copy of Regent Drug’s proposals to the secretary of the executive director of the hospital. The hospital was interested and ultimately, the defendants received the pharmacy contract at Miami Dade General. At the last minute, however, WEKA, Inc., (WEinstein KAtz) was substituted for KAWE, Inc., (KAtz WEinstein) as the named concessionaire. The hospital did not object to the substitution. WEKA, Inc., stock is held by Mrs. Katz (one-third), Mrs. Wein-stein (one-third) and one Mr. Cartun (one-third). Its Miami Dade General concession is being run by Katz and Wein-stein. Weinstein was the negotiator for both KAWE and WEKA.

Heyman demanded his 3 per cent commission, but Weinstein and Katz refused to pay. Heyman then instituted this suit, whereby he sought an accounting, declaratory relief and damages against the defendants, Katz, Weinstein, KAWE and WEKA, for an alleged breach of contract. The cause proceeded to a jury trial. All defendants moved the court for directed verdicts. The court reserved ruling. The trial culminated in four verdicts for the plaintiff, Jack Heyman. The jury found “a valid contract against” each of the four defendants, Gerald M. Weinstein, Sidney Katz, KAWE, Inc., d/b/a Regent Drugs, and WEKA, Inc., performed by the plaintiff and “plaintiff is entitled to an accounting.” Defendant, WEKA, Inc., filed a motion for judgment notwithstanding the verdict or in arrest of judgment. The trial court granted both motions and entered the final judgment herein appealed.

On appeal, Heyman contends that the trial court erred in vacating the jury verdict by granting WEKA, Inc.’s, motion for judgment notwithstanding the verdict. Having carefully reviewed the record, we agree. Motions for judgment notwithstanding the verdict, like motions for directed verdict, should be resolved with extreme caution since the granting thereof holds that one side of the case is essentially devoid of probative evidence. Smith v. Peninsular Insurance Company, Fla.App.1965, 181 So.2d 212. As with a motion for a directed verdict, when filing a motion for judgment notwithstanding the verdict, the movant admits all material facts as attested by his adversary that reasonably might be drawn from the evidence as a whole. Cash v. Gates, Fla.App.1963, 151 So.2d 838, 840. As stated by this court in McCabe v. Watson, Fla.App.1969, 225 So.2d 346, 347,

“Motions for directed verdict, judgment in accord with directed verdict, and judgments n. o. v. all share the following rules as to their application by the trial court: they should be cautiously granted, and only when the court, after viewing the evidence and testimony in a light most favorable to the non-moving party, concludes that the jury could not reasonably differ as to the existence of a material fact or material inference, and that the movant is entitled to the judgment as a matter of law. Chowning v. Pierce, Fla.App.1965, 174 So.2d 42; Deese v. White Belt Dairy Farms, Inc., Fla.App.1964, 160 So.2d 543.”

By filing a motion for judgment notwithstanding the verdict, the defendants have admitted all evidence against them. Therefore, we have reviewed the evidence presented to the jury in a light most favorable to the plaintiff, and we find that there was evidence and there are reasonable inferences which could be drawn from that evidence on which the jury could reasonably differ as to the existence of a material fact, especially the evidence that Weinstein acted as the agent of both KAWE and WEKA. Accordingly, the trial court committed reversible error in vacating the jury’s verdicts and substituting its own evaluation of the weight of the evidence. The final judgment is reversed with directions to reinstate the jury verdict against WEKA and to enter an order consistent therewith.

Reversed with directions.