text:
    Alan M. MOSELEY and Earlene Moseley, his wife, Appellants, v. BI-LO SUPERMARKET, INC., a Florida Corporation, and Fuchs Baking Company et al., Appellees.
    No. 75-2032.
    District Court of Appeal of Florida, Third District.
    Dec. 20, 1976.
    Rehearing Denied Jan. 12, 1977.
    John W. Black, Coral Gables, and Dan A. Hames, Miami, for appellants.
    Horton, Perse & Ginsberg, Sandler & Sandler and Stephen A. Kress, Miami, Kravitz, Dudley & Duckworth, Hialeah, for appellees.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Moseley, a mortgagee of real property, filed a two count complaint; count 1 was against Bi-Lo Supermarket as mortgagor to foreclose the mortgage. This count was settled prior to the trial. Count 2 was against the appellee here, Fuchs Baking Company. The complaint alleged that Fuchs had secured a judgment against one Cecil Criswell, doing business as Bi-Lo Supermarket, and that pursuant to execution upon said judgment, the defendant Fuchs had directed the sheriff, through the use of a locksmith key, to enter the premises of Bi-Lo Supermarket, Inc., and to seize the property of that corporation. The complaint alleged that the sheriff, acting at the direction of Fuchs, not only removed property but also caused the premises to suffer economic damage. The plaintiff alleged that not only was the levy illegal but also wrongful in that it destroyed plaintiff’s security under its mortgage. The defendant moved to dismiss the complaint; the motion was denied. After extensive discovery, the cause came on for trial. At trial, the judge asked for a statement of the facts which the plaintiff expected to prove. After receiving such statement, the trial court entered an order as follows:

“THIS CAUSE came before the Court for Non-Jury Trial as to the Plaintiffs’ Amended Complaint against Defendant, FUCHS BAKING CO., and upon proffer of the Plaintiffs’ case and argument of counsel for the parties, it is
“ORDERED AND ADJUDGED:
“That the Plaintiffs’ Amended Complaint and Claim herein is dismissed, with prejudice, as to Defendant, FUCHS BAKING CO.”

This appeal is from that judgment.

We think that it is important to point out that the procedure followed by the trial court is not provided for by any rule of civil procedure. In event the trial court thinks that summary final judgment is proper, it is necessary that the party moved against be given the notice required by the summary judgment rule and be allowed an opportunity to meet the question of whether there is a genuine issue of material fact by the presentation of affidavits and the citations to facts established by the pleadings and the discovery process. See Fla.R.Civ.P. 1.510; and Babb v. Lincoln Auto Finance Co., 133 So.2d 566 (Fla.3d DCA 1961). It is clear that an action may be brought in Florida by a mortgagee against a third party for the wrongful destruction of the property secured by a mortgage. Cf. Wilson v. Bankers Inv. Co., 47 So.2d 779 (Fla.1950). It has further been held that even where the wrongful destruction of the security is under color of a writ of execution, the action may arise where the levy is wrongful. See Toomer v. Fourth Nat. Bank of Jacksonville, 68 Fla. 555, 67 So. 225 (1915); and Granat v. Biscayne Trust Co., 109 Fla. 485, 147 So. 850 (1933).

We hold that there is a genuine issue of material fact revealed by the pleadings, answers to interrogatories and depositions in this case of whether the levy of execution by Fuchs Baking Company amounted to a wrongful destruction of the property which was security upon the plaintiff’s mortgage. Therefore, the judgment appealed is reversed and the cause is remanded for trial.

Reversed and remanded.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Larry Frank TROY, Appellant, v. The STATE of Florida, Appellee.
    No. 76-350.
    District Court of Appeal of Florida, Third District.
    Dec. 20, 1976.

      Phillip A. Hubbart, Public Defender, and Bennett H. Brummer, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Sidney M. Pertnoy, Asst. Atty. Gen., for appellee.
    Before PEARSON and HENDRY, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

By an indictment the appellant was charged with the crime of first degree murder. Tried before a jury, he was found guilty of second degree murder. He was so adjudged, and was sentenced to imprisonment for a term of twenty-five years. His motion for new trial was denied on December 23,1975. A timely appeal was not filed.

On February 27, 1976, the appellant filed a petition for a writ of habeas corpus in this court. Observing therein basis for granting a delayed appeal [Baggett v. Wainwright, 229 So.2d 239 (Fla.1969)] an order was entered for treating the petition as a notice of appeal.

This appeal challenges the correctness of a ruling of the trial court, made prior to the trial, denying a motion of the defendant to be discharged from the crime on the ground that he had not been brought to trial within the time required by the speedy trial rule. Fla.R.Crim.P. 3.191(a)(1).

The arrest of the defendant for the criminal episode was made on June 13, 1975. The public defender was appointed to represent him. Discovery by defendant was commenced in August of 1975. Thereafter, because of some conflict of interest the public defender was removed as the attorney for the defendant, and special counsel was appointed to defend him. The trial was set for October 6, 1975. Defendant’s counsel noticed discovery depositions, of certain proposed state witnesses, for October 1, 1975. Some of the witnesses to be deposed did not appear on that date. Defendant’s counsel moved for a continuance, and for the continuance if granted, be charged to the state. The court granted the defendant’s motion for continuance, but denied his request that it be charged to the state. As a result of the delay occasioned by the continuance, the trial was then set to be held on a date which was more than 180 days from the date of arrest.

On December 15, 1975, the defendant moved for discharge. The court entered an order denying the motion. The appellant contends that order was erroneous. On consideration thereof in light of the record and briefs, we hold that ruling was not error. The requirement for a defendant to be brought to trial within 180 days from the date of his arrest will be removed by the defendant seeking and obtaining a continuance. Fla.R.Crim.P. 3.191(d)(3), and (e). King v. State, 303 So.2d 389, 391 (Fla.3d DCA 1974); Rosenwasser v. Smith, 308 So.2d 600 (Fla.3d DCA 1975).

On this record we do not find basis in law to disturb the ruling by which the trial court concluded there was no rational basis to relieve the defendant from the legal effect of having obtained the continuance. In consideration of that matter the trial court had a substantial measure of discretion. King v. State, supra. The difficulties or delays encountered by the defendant in obtaining the desired discovery were not shown to be caused by the state. The circumstance that such discovery was not attempted, or not completed until a few days before the date set for the trial would not serve to obviate the effect, under the rule, of the defendant’s request for a continuance, for further time to make himself ready and available for trial. State ex rel Butler v. Cullen, 253 So.2d 861 (Fla.1971); Rosenwasser v. Smith, supra.

No reversible error having been made to appear, the judgment and sentence are affirmed.


author: MILLS, Judge.

text:
    In re ESTATE of Madelyn G. DRUMMOND, Deceased. Jessie C. SMITH, Appellant, v. Carole HALL, Appellee.
    No. AA-278.
    District Court of Appeal of Florida, First District.
    Dec. 22, 1976.
    As Modified on Denial of Rehearing Jan. 26, 1977.
    Joe Creel and Warren Glasgow of Creel & Glasgow, Coral Gables, for appellant.
    John R. Godbee, Jr., Daytona Beach, for appellee.
   MILLS, Judge.

Howard Drummond (Drummond) was named as the sole beneficiary and as the sole executor in the will of his mother, the late Madelyn G. Drummond (testatrix). Drummond qualified as executor of the estate but died before the estate proceedings were completed. Jessie C. Smith (Smith) was named as the sole executrix in the will of Drummond. She was not related to Drummond or to the testatrix. Smith qualified as executrix of Drummond’s estate and petitioned the probate court for appointment as successor executrix of the testatrix’s estate. Carole Hall (Hall), a daughter of Drummond and a granddaughter of the testatrix, also petitioned the court for appointment as administratrix with the will annexed. The surviving lineal descendents of the testatrix joined in her petition. The court appointed Hall as administratrix. The court made this appointment on the ground that Hall was entitled to preference under Section 732.44, Florida Statutes (1973). Smith appeals. We reverse.

Section 732.44 applies to intestate estates only. It does not apply to testate estates which we have here. Pryor v. First National Bank of Leesburg, 97 So.2d 143 (Fla.2d DCA 1957).

Hall contends that she is an alternate executrix under a provision of the testatrix’s will which provides that “in the event my son, Howard E. Drummond, should predecease me or fail to qualify, then in that event I hereby nominate, constitute and appoint Carole Hall as executrix of this my last will and testament.” This contention has no merit. Hall was a mere contingent executrix. The contingency never occurred because Drummond did not predecease the testatrix nor did he fail to qualify.

Hall further contends that under Section 732.52, Florida Statutes (1973), an executor, as such, is not authorized to administer the estate of the first testator; rather, on the death of the executor, a circuit judge shall appoint an administrator to complete the estate. This is correct, however, Hall overlooks that Smith seeks appointment as the personal representative of the sole beneficiary of the testatrix’s estate, not as executrix of the deceased executor’s estate.

By vesting her entire estate in her son, Drummond, the testatrix dictated that her estate be administered and distributed at his direction. This intent can be accomplished only by appointment of Drum-mond’s personal representative to conclude the testatrix’s estate. This is practical also because the only matters remaining to be done in the testatrix’s estate are getting approval of the estate tax return, which has been filed, filing an accounting, and distributing the assets to Drummond’s estate. This Smith has agreed to do without fee or compensation.

The order appealed is reversed. This case is remanded with instructions to set aside the order and to enter an order appointing the appellant, Jessie C. Smith, as successor executrix of the Estate of Madelyn G. Drummond, deceased.

BOYER, C. J., and SMITH, J., concur.


author: GOBBIE, EVELYN, Associate Judge.

text:
    VTN CONSOLIDATED, INC. and VTN, Inc., Appellants, v. COASTAL ENGINEERING ASSOCIATES, INC., Appellee.
    No. 76-401.
    District Court of Appeal of Florida, Second District.
    Dec. 22, 1976.
    Rehearing Denied Feb. 3, 1977.

      Elmo R. Hoffman, of Hoffman, Hendry, Parker & Smith, Orlando, for appellants.
    Adrian S. Bacon, of Bacon & Hanley, St. Petersburg, for appellee.
   GOBBIE, EVELYN, Associate Judge.

In the proceeding below, ROYAL PALM BEACH COLONY, INC. filed suit against the Appellant, VTN CONSOLIDATED, INC., and VTN, INC. alleging a breach of contract, breach of express warranty, and negligence in the performance of a contract. Appellant filed a Third Party Complaint against COASTAL ENGINEERING ASSOCIATES, INC., the Appellee. After dismissal of the initial third party complaint, Appellant filed an amended one, which was subsequently dismissed with prejudice, after Appellant declined to further plead. This appeal followed.

For the sake of brevity, Appellant will be referred to as VTN; the Appellee as COASTAL and the original plaintiff as ROYAL PALM.

As alleged in the Amended Complaint, the facts reveal that in 1970, ROYAL PALM entered into a written contract with VTN for the latter to furnish topographic maps required for the location of road networks and drainage systems in the development of an 11,000 acre tract owned by ROYAL PALM. Two years later, ROYAL PALM entered into another contract with COASTAL, an engineering firm, to design a street and drainage system for the subdivision it was developing on the aforesaid tract. VTN’s maps were used by COASTAL in its preparation of the systems and when completed, the designs were inaecu-' rate. ROYAL PALM sued VTN for failing to render proper maps and VTN moved to bring in COASTAL as a Third Party Defendant, claiming it negligently misused its topographic maps. VTN further claimed, in an unspecified manner, that there was a qualification placed on the maps, to the effect that they were accurate with the exception of areas where the ground was obscured by vegetation and that COASTAL should have noted this exception and checked with VTN. It also claimed that COASTAL should have taken a soil analysis.

The only question on appeal is whether or not VTN can bring in COASTAL as a Third Party Defendant under Rule 1.180. This court answers in the negative since VTN does not come within the confines of the Rule.

Rule 1.180 of the Florida Rules of Civil Procedure provides:

“(a) When Defendant May Bring in Third Party. At any time after commencement of the action a defendant, as a third party plaintiff, may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff’s claim against him. ...”

The only instance which comes to our minds providing a predicate under this rule is where a third party plaintiff has a claim for one or more of the following:

1. Indemnification
2. Contribution
3. Subrogation

Subrogation is not germane so we will turn to Indemnification and Contribution.

Indemnification seeks to shift the loss from one tortfeasor, who has been compelled to pay, onto the shoulders of another tortfeasor, who should bear the loss instead.

This court stated in Mims Crane Service, Inc. v. Insley Manufacturing Corp., 226 So.2d 836 (Fla.2d DCA 1969) on page 839:

“ . . .a right of indemnity has been said to exist whenever the relation between the parties is such that either in law or in equity there is an obligation on one party to indemnify the other, as where one person is exposed to liability by the wrongful act of another in which he does not join. The rule proposed in the Restatement of Restitution makes no specific reference to contract and appears to be based on principles of equity;

A common example of indemnification is where a passive tortfeasor is held vicariously liable due to the negligence of an active tortfeasor. See Stuart v. Hertz Corporation, 302 So.2d 187 (Fla. 4th DCA 1974), and Florida Power & Light Company v. General Safety Equipment Company, 213 So.2d 486 (Fla. 3d DCA 1968); Crawford Door Sales Company v. Donahue, 321 So.2d 624 (Fla. 2d DCA 1975). This theory has no application to the instant case.

Another basis for indemnification is where there is a duty flowing between two tortfeasors. See Seaboard Air Line Ry. Co. v. American District Electric Protective Co., 106 Fla. 330, 143 So. 316 (1932).

Such a duty is lacking here. VTN claims a duty on COASTAL’S part through the realm of negligence . . that COASTAL could have foreseen VTN’s damages by its misuse of the maps. Yet, if COASTAL failed to exercise reasonable care under its contract with ROYAL PALM, how could this give rise to a cause of action on behalf of VTN? COASTAL’S duty ran to ROYAL PALM, not VTN.

VTN relies heavily upon the Supreme Court’s opinion in A. R. Moyer, Inc. v. Graham, 285 So.2d 397 (Fla.1973), but such reliance is to no avail. In Moyer, supra, it was held that a third party contractor may foreseeably sustain economic loss proximately caused by the negligent performance of an architect on a contract with another party, even in the absence of privity. This should give VTN very little solace since in Moyer, the architect and the general contractor were on the same job site. Moreover, the architect had direct supervision and was in control of the whole project. Because of this, his participation went far beyond mere draftsmanship and bestowed foreseeability upon him. The Moyer case might be good authority if the parties were in reverse and COASTAL was suing VTN for faulty plans because VTN would be in the shoes of the architect and COASTAL in the shoes of the contractor. In substance, the present facts do not lend themselves to the doctrine set forth in Moyer.

For COASTAL to have a duty toward VTN, assuming the allegations to be true for purposes of a motion to dismiss, COASTAL would have to foresee that by misusing VTN’s maps, ROYAL PALM would sue VTN, not COASTAL, even though COASTAL would be the negligent entity, not VTN. Such foreseeability would be ludicrous. We have two separate contracts with two separate entities on two separate occasions. To extend COASTAL’S duty would be a dangerous enlargement of the law. To hold otherwise would be against common law and common sense. Finally, we do not believe that the facts entitle VTN to indemnification by way of an equitable right under Stuart v. Hertz Corporation, 302 So.2d 187 (Fla. 4th DCA 1974).

Let us now turn to contribution. As set forth in the Stuart case, supra, on page 190:

“ . . Contribution, which is predicated upon equitable principles, involves a distribution of loss among (joint) tort-feasors who stand in pari delicto by requiring each to pay a proportionate share based upon their proportionate degree of responsibility.”

The doctrine of contribution is one of equality in bearing a common burden.

In Lincenberg v. Issen, 318 So.2d 386 (Fla.1975), the Supreme Court set forth the rationale behind the majority of states receding from the principle of no contribution when it stated, on page 390:

“The rationale for this change of view is generally explained that principles of justice require that in the case of a common obligation, the discharge of it by one of the obligors without proportionate payment from the others, gives the latter an advantage to which he is not equitably entitled. . . . ”

Further, in order for an additional defendant to be brought in as a party, the claim for contribution must be related to the original cause of action — it must arise out of the same transaction or series of transactions. 18 Am.Jur.2d, Contribution, Sec. 73. It can hardly be said that VTN and COASTAL are liable under the same set of circumstances, let alone a series of circumstances, nor do they share a common burden.

VTN relies upon the fairly new statute, F.S. 768.31, to rescue it from its dilemma but such reliance is unfounded. This statute provides that when two or more persons become jointly or severally liable in tort for the same injury to person or property, there is a right of contribution among them. The present facts simply do not fit the wording of the statute.

The trial judge was correct in dismissing the amended complaint with prejudice.

AFFIRMED.

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


author: RAWLS, Acting Chief Judge.

text:
    J. T. K., a juvenile, Appellant, v. STATE of Florida, Appellee.
    No. CC-239.
    District Court of Appeal of Florida, First District.
    Dec. 23, 1976.

      Richard W. Ervin, III, Public Defender, and Michael M. Corin, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Carolyn M. Snurkowski and Richard L. Wilson, Asst. Attys. Gen., for appellee.
   RAWLS, Acting Chief Judge.

Pursuant to the detention of appellant by a Southern Railroad policeman, the sovereign State of Florida charged appellant as follows:

“that . . . is a delinquent child because: On the 19th day of January, 1976, the said child did then and there wantonly and maliciously throw a missile, to-wit: stones, at railroad cars of the SEABOARD COAST LINE RAILROAD CO. contrary to Section 790.19, Florida Statutes.”

Section 790.19, Florida Statutes, provides as follows:

“Whoever, wantonly or maliciously, shoots at, within, or into, or throws any missile or hurls or projects a stone or other hard substance which would produce death or great bodily harm, at, within, or in any public or private building, occupied or unoccupied, or public or private bus or any train, locomotive, railway car, caboose, cable railway car, street railway car, monorail car, or vehicle of any kind which is being used or occupied by any person, or any boat, vessel, ship, or barge lying in or plying the waters of this state, or aircraft flying through the airspace of this state shall be guilty of a felony of the second degree, punishable as provided in § 775.082, § 775.083, or § 775.-084.”

By this appeal, appellant challenges the trial court’s finding that the allegations of the petition were sustained by evidence and testimony. We agree and reverse.

A Southern Railroad policeman was the sole witness to the nefarious acts for which appellant was accused. The railroad policeman testified that he was approximately 100 yards away when he saw three boys, one of whom was appellant, throwing “rocks, ballast”, “just your usual railroad ballast, about an inch and a half in diameter”, at passing, unoccupied railroad boxcars. No damage to the boxcars was proven. In short, the evidence wholly failed to prove the felonious conduct proscribed by the statute. The trial judge erred in not granting appellant’s motion for judgment of acquittal.

Reversed with directions that appellant be discharged from the order placing him on probation.

MILLS and SMITH, JJ., concur.

      . The trial court withheld adjudication and placed appellant on probation under the supervision of a youth counselor of the Youth Services Program.


text:
    D. B. C., a child, Appellant, v. STATE of Florida, Appellee.
    No. CC-279.
    District Court of Appeal of Florida, First District.
    Dec. 23, 1976.

      Richard W. Ervin, III, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Richard L. Wilson, Asst. Atty. Gen., for appellee.
   RAWLS, Acting Chief Judge.

Appellant was charged by petition as follows:

“that . . . is a delinquent child because: On the 6th day of February, 1976, the said child did then and there wantonly and maliciously throw a missile, to-wit: rocks, at railroad cars of the SEABOARD COAST LINE RAILROAD CO., contrary to Section 790.19, Florida Statutes.”

The factual circumstances involved in this delinquency proceeding are quite similar to those recited in J. T. K. v. State, First District Court of Appeal, 341 So.2d 229, opinion filed December 23,1976, although in the instant case the sole witness to the alleged incident, a Southern Railroad policeman, testified that while approximately 250 to 300 yards away, he saw three boys, one of whom was appellant, throwing “something” in the direction of the train but did not see what they were throwing. It was upon this evidence that the trial judge found that the allegations of the petition were sustained.

The evidence in this cause wholly failed to prove the felonious conduct proscribed by the statute. The trial judge erred in not granting appellant’s motion for judgment of acquittal.

Pursuant to this court’s opinion in J. T. K. v. State, supra, this cause is reversed with directions that appellant be discharged from the order dated May 18, 1976, placing him on probation.

REVERSED.

MILLS and SMITH, JJ., concur.


text:
    Antoinette SCRIBNER, Appellant, v. Anton SCRIBNER, Appellee.
    No. 75-1697.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 1976.
    Rehearing Denied Jan. 12, 1977.

      Evelyn L. Greer, Miami, for appellant.
    Monte K. Rassner, South Miami, for ap-pellee.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

This is an appeal from a post-judgment order in a dissolution of marriage action, which denied the appellant-wife’s petition for relief from a property settlement agreement, for an increase in child support, and requiring the wife to comply with the terms of the property settlement agreement.

It appears this appeal is without merit. The appellant is actually challenging the sufficiency of the evidence to support the order appealed.

The record contains substantial competent evidence to sustain the order appealed. Therefore, it should be affirmed. Groves v. Groves, 260 So.2d 858 (Fla.1st D.C.A.1972); Scott v. Scott, 285 So.2d 423 (Fla.2d D.C.A. 1973); Tsavaris v. Tsavaris, 307 So.2d 845 (Fla.2d D.C.A.1975).

Affirmed.


text:
    SIMCO OPERATING CORPORATION, a Florida Corporation, Appellant, v. CITY NATIONAL BANK OF MIAMI BEACH, a Federally Chartered Banking Corporation, formerly known as North Shore Bank, Appellee.
    No. 75-1785.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 1976.
    Rehearing Denied Jan. 13, 1977.

      Grusmark, Jaffe & Karten, Fort Lauder-dale, for appellant.
    Lapidus & Hollander, Miami, for appellee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Appellant was the plaintiff below and appellee was the defendant. Appellant appeals a final summary judgment entered against it on October 24, 1975.

Appellant filed its complaint for fraud against appellee alleging that appellee had induced appellant to purchase a long term leasehold interest in a certain hotel property by representing to appellant that it would refrain from enforcing the terms of a defaulted first mortgage it held on said property. More specifically, the allegations charged that appellee had advised appellant that the “balloon payment provision” called for by virtue of a modification in the terms of the mortgage would be waived and that appellee would accept monthly payments toward the satisfaction of said mortgage.

Some time after appellant purchased the leasehold, it sold its interest to a third party, taking back a purchase money mortgage. Appellee then foreclosed its mortgage asserting the “balloon payment provision” and obtained a final judgment of foreclosure, wiping out appellant’s junior lien.

In answering the aforementioned complaint, appellee set up the defenses of res judicata and estoppel by judgment. In addition, appellee propounded various requests for admissions, requesting appellant, among other things, to admit the genuineness of its amended answer and affirmative defenses filed in the prior mortgage foreclosure proceeding. Appellant did in fact admit the genuineness of said document.

Appellant’s answer and affirmative defenses filed in the prior foreclosure proceeding were virtually the same allegations set forth in appellant’s complaint in the instant action, i. e., that appellee, in allegedly agreeing to waive the “balloon payment provision” of the mortgage, fraudulently induced appellant to originally purchase the leasehold interest and later take back a purchase money mortgage (junior lien) upon the subsequent sale of the lease to a third person.

In addition to the above admission, appellant admitted appellee’s request for admission number (5), which provided in part that:

“. . . The issues set up in the Amended Answer were actually tried to that Court.”

On May 29, 1975, based upon the above admissions, and the doctrines of estoppel by judgment and res judicata, appellee filed its motion for summary judgment. Final summary judgment was entered and this appeal follows.

Appellant contends that the lower court erred in granting a final summary judgment in appellee’s favor based upon either the doctrines of res judicata or estoppel by judgment because the cause of action in the present lawsuit is based upon fraud and deceit, while the prior mortgage foreclosure action was strictly determinative of superi- or lien rights.

Appellee responds by stating that although the causes of action may have differed in the two lawsuits, nevertheless, the same matters were actually litigated and determined in appellee’s favor in the prior lawsuit. With the above in mind, appellee contends that the lower court did not err in granting its motion for summary judgment upon either of the two aforementioned legal doctrines.

After a careful review of the contentions raised by appellant in the prior mortgage foreclosure action, it would appear that the question of whether or not appellant was fraudulently induced into believing that the “balloon payment provision” would not be utilized by appellee was answered in appellee’s favor. In granting appellee a final judgment of foreclosure, the court obviously held that the aforementioned provision was in effect and that the use of appellant’s defense of fraudulent inducement to invalidate the provision was without merit. Coupled with appellant’s admission that the same issues involved in the present lawsuit were actually tried in the prior cause, we are left with no other reasonable alternative than to hold that appellant’s lawsuit is barred by the doctrine of “estoppel by judgment.”

Under the doctrine of “estoppel by judgment,” even where different causes of action are involved, the parties are nevertheless estopped by judgment from thereafter litigating issues that are common to both causes of action and were actually adjudicated in that prior litigation. Smith v. Florida East Coast Railway Company, 151 So.2d 70 (Fla.3d DCA 1963).

Having held that the doctrine of “estop-pel by judgment” is applicable, we need not determine whether or not the similar doctrine of “res judicata” might also be utilized to bar appellant’s current lawsuit.

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

Affirmed.


text:
    Eric JENKINS, by his guardian and next friend, Frederick Jenkins, and Frederick Jenkins, Individually, Appellants, v. J. I. CASE COMPANY, a Foreign Corporation, and Dadeland Farm & Garden Supply, a Florida Corporation, Appellees.
    Nos. 75-1876 and 75-1877.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 1976.
    Rehearing Denied Jan. 13, 1977.
    Beckham & McAliley, Podhurst, Orseck & Parks, Miami, for appellants.
    High, Stack, Davis & Lazenby and Alan R. Dakan, Adams, George, Lee & Schulte, Miami, for appellees.
    Before PEARSON, HENDRY and NATHAN, JJ.
   PER CURIAM.

These consolidated appeals question the correctness of the summary final judgments rendered in favor of the appellees in actions arising from injuries sustained by appellant Eric Jenkins, a minor, when a riding lawnmower was backed over his foot. Appellee J. I. Case Company was the manufacturer of the lawnmower and appellee Dadeland Farm & Garden Supply was the dealer which sold the machine to the user.

The record on appeal discloses that appel-lees have not carried their burden of showing that there is no genuine issue of material fact and that the movants are entitled to judgment as a matter of law.

In Fletcher Co. v. Melroe Manufacturing Co., 261 So.2d 191 (Fla. 1st DCA 1972) it was pointed out:

“When reviewing the propriety of a summary judgment, the classic inquiry is whether or not there remains any genuine issue of material fact. If issues of fact exist and the slightest doubt remains, a summary judgment cannot be granted. And, of course, all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party.”

For these reasons the summary final judgments appealed are reversed.

Reversed and remanded for further proceedings.


text:
    Derrick DELAUGHTER, Appellant, v. The STATE of Florida, Appellee.
    No. 75-2011.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 1976.
    Phillip A. Hubbart, Public Defender, and Julian S. Mack, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before BARKDULL, C. J., and HAVER-FIELD and NATHAN, JJ.
   PER CURIAM.

Appellant appeals his conviction on a charge of shooting into an occupied building. He alleges error of the trial court to sua sponte grant a mistrial, following alleged prejudicial comment of the prosecuting attorney as to his belief of the appellant’s guilt and failure to direct a verdict of acquittal where even if the appellant was shooting into an occupied building he was shooting at a person and, therefore, could not be guilty under the authority of Golden v. State, 120 So.2d 651 (Fla.1st D.C.A. 1960).

After a review of the record, this case is affirmed on the following authorities: Mead v. State, 214 So.2d 514 (Fla.3rd D.C.A. 1968); Arline v. State, 303 So.2d 37 (Fla.1st D.C.A. 1974); Morgan v. State, 303 So.2d 393 (Fla.2d D.C.A. 1974).

In the case of Golden v. State, supra, the defendant was in hot pursuit of his victim and fired at him as he ran into the house. In considering those facts, the First District Court of Appeal felt that the defendant’s attack was directed only at his intended victim, and that he only incidentally shot into the house. Despite the defendant’s contentions, the facts in the instant case do not square with those in the cited case. Instead, the facts in the instant case are nearly identical to those in Mead v. State, supra. In the latter cited case, this court distinguished Golden v. State as follows:

******
“In Golden the bullets were shot at a man running into a house and were not deliberately fired into the building, as was the case here. Here there was evidence that the appellant, while standing outside the building, deliberately fired two shots from a sawed off shotgun through a plate glass window into a bar which was occupied with several people.
“The conflicting evidence was resolved adversely to the defendant by the trial judge. See Eizenman v. State, Fla.App. 1961,132 So.2d 763. There was sufficient evidence to sustain the finding of the trial judge that Mead’s shooting into the building was done wantonly or malicious-iy * * *”
******

Therefore, the conviction be and the same is hereby affirmed.


author: CHARLES CARROLL, Associate Judge.

text:
    The CITY OF MIAMI BEACH, a Municipal Corporation, Appellant, v. Bernard JACOBS et al., Appellees.
    No. 76-33, 76-34.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 1976.
    Rehearing Denied Jan. 13, 1977.

      Joseph A. Wanick, Miami Beach, for appellant.
    Joseph Pardo, Miami, Broad & Cassel, Bay Harbor Islands, for appellees.
    Before PEARSON and HENDRY, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   CHARLES CARROLL, Associate Judge.

This is an appeal by the City of Miami Beach, the defendant in a class action, from an order relating to attorney fees for the attorney for the plaintiff class. Both an interlocutory and a plenary appeal were filed. We deal with it as a plenary appeal.

The action involved the validity of an ordinance under which the City of Miami Beach had imposed and collected certain “fire line charges”, over a period from certain of its citizens. The trial court entered a judgment holding the ordinance was invalid; that the action was properly a class action; and that the members of the class were entitled to repayment by the city of such charges which were paid by them pursuant to the ordinance. The City of Miami Beach appealed therefrom and this court affirmed. See City of Miami Beach v. Jacobs, 315 So.2d 227 (Fla.3d DCA 1975).

Thereafter the attorney for the plaintiff class moved for allowance of a fee. The trial court ordered that the defendant, City of Miami Beach, pay to the attorney for the plaintiff class, as his fee for representing the plaintiffs, 37% “of the monies collected by the City of Miami Beach from the class who paid the fire line charges plus interest at 6% per annum from the date of entry of the trial court judgment which was April 8, 1974”, and directed the city to pay such sums to the plaintiffs’ attorney forthwith.

The order then directed the City of Miami Beach to make refund to the members of the class, as follows:

“Ordered, adjudged and decreed that the City of Miami Beach shall refund to each of the members of the Class who paid to the City of Miami Beach who paid the ‘fire-line charges’ the amounts paid by said members of the Class, together with interest, as aforesaid, less the amount of Thirty-seven percent (37%) hereinbefore awarded to Joseph Pardo, as a reasonable attorney’s fee, for representing said Class, and said sums shall be paid forthwith”.

On this appeal from that order the city seeks reversal on the ground that notice of the attorney’s application for the fee was not given to the members of the class and seeks modification of the order to eliminate the provisions adding interest, and directing the city to pay the plaintiffs’ attorney “forthwith” 37% of the amount collected by the city under the ordinance.

As to the first point it appears that there was a stipulation in the case waiving the requirement to give notice to the individual members of the class during the progress of the action. That would not be binding on the members of the class with reference to an application of their attorney for allowance of fees, since their attorney would not be entitled to waive notice for them for that purpose. However the objection in that regard does not come from any members of the plaintiff class and as raised on behalf of the defendant City of Miami Beach it is without merit.

We find no error in the provision of the order which conferred upon the members of the class interest on the amounts to which the court found the city was obligated to reimburse them. The interest provided for by the court was that which would accrue from the time of the entry of the judgment determining the plaintiffs were entitled to refunds from the city, as provided for by Section 55.03 Florida Statutes, 1973. See Southeastern Mobile Homes, Inc. v. Transit Homes, Inc., 192 So.2d 53, 57-58 (Fla.2d DCA 1966); Stone v. Jeffres, 208 So.2d 827, 829 (Fla.1968).

On the city’s contention that the court erred in ordering payment of the fee forthwith, the city argues that the attorney’s fee should be paid prorata by those members of the class to whom refund is made, by deducting the percentage fee due the attorney from the amount to which each individual member of the class is entitled, as and when refund payment is made to a member of the class entitled to and seeking refund.

We hold that argument of the city has merit. The city is not obligated for a fee to the attorney for the class. The attorney is entitled to a fee from the members of the class he represented who shall receive repayment from the city of the fire line charges paid by them. Some entitled thereto may not seek refund, or for some reason may not be located.

The provision of the order directing the City of Miami Beach to pay forthwith to the attorney a fee of 37% of the amount the city collected with interest thereon, when read with the above quoted provision of the order relating to refund payments to individual members of the class, does not make it clear whether the city was to pay the plaintiffs’ attorney fees in advance or by withholding his fee from each refund made. To the extent the order is construed to call for the city to deliver forthwith to the attorney an amount which would be 37% of the sums collected under the invalid ordinance, it is hereby reversed. The order is amended to direct the city, upon a payment or refund being made to a member of the class, to withhold a 37% attorney’s fee therefrom, and from time to time, without undue delay, remit such withheld fees to the attorney.

It is so ordered.


text:
    Leo CONEY and Robert Laster, Appellants, v. The STATE of Florida, Appellee.
    No. 76-542.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 1976.

      Phillip A. Hubbart, Public Defender and Julian S. Mack, Asst. Public Defender, for appellants.
    Robert L. Shevin, Atty. Gen., and Arthur Joel Berger, Asst. Atty. Gen., for appellee.
    Before BARKDULL, C. J., and HAVER-FIELD and NATHAN, JJ.
   PER CURIAM.

Defendants, Leo Coney and Robert Last-er, were convicted on several counts of burglary and grand larceny and appeal on the ground that the trial judge erred in denying their motion to suppress the evidence seized.

On November 24, 1975, following on investigation of several burglaries including a burglary 10 days earlier at the home of Officer Ferenzic in the same area, Officer Methvin received a BOLO to be on the lookout for a white 1968 vehicle, possibly a Chevrolet, with numerous rust spots bearing a temporary Florida tag and occupied by two black males, one of whom was wearing a hat and had a goatee. Several hours later Officer Methvin spotted a car and its occupants (the defendants) who fitted the above description (except as to the make of the car) and advised Officer Feren-zic over the radio of this fact. On Officer Ferenzic’s advice, Officer Methvin pulled the car over and requested some identification. Within minutes Officer Ferenzic was on the scene and recognized in the back of the car a digital clock radio stolen from his home. Thereupon, the defendants were placed under arrest. Subsequently, defendants filed a motion to suppress the evidence seized from the automobile on the grounds that their initial detention was unjustified and illegal; therefore, the evidence seized as a result thereof was inadmissible. After an evidentiary hearing, the trial judge denied the motion and defendants appeal the order of denial. We affirm.

The courts have long recognized the right of a police officer to briefly stop and detain a suspicious individual to determine his identity or to maintain the status quo momentarily while obtaining more information. See Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). In light of the information known to Officer Methvin at the time, we conclude that his detention of the defendants was reasonable. See Adams v. State, 295 So.2d 114 (Fla.2d DCA 1974); Maruca v. State, 329 So.2d 427 (Fla.3d DCA 1976) and cases cited therein.

Affirmed.


text:
    BAY PRODUCTS CORPORATION, d/b/a Tiffany Motor Cars, Appellant, v. Dr. Richard WINTERS, Appellee.
    No. 76-957.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 1976.
    Leo Greenfield, North Miami, for appellant.
    Bradford, Williams, McKay, Kimbrell, Hamann & Jennings, Miami, and Larry D. Parks, Coral Gables, for appellee.
    Before PEARSON and HENDRY, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Appellant, defendant below, takes an interlocutory appeal from two orders of the lower court, dated May 19, 1976. The first order denied appellant’s motion to vacate a default which was entered against it on May 4, 1976. The second order granted a partial final judgment in favor of appellee, plaintiff below.

Appellee ordered an antique automobile kit from appellant. Appellee, after tendering full payment to appellant, allegedly did not receive a full and complete kit. After unsuccessful attempts to rectify the situation, appellant filed a three count complaint. Count I sought specific performance of the contract through the delivery of whatever additional parts allegedly were missing. Count II alternatively sought damages in the sum of the original contract price. Count III was grounded in fraud and deceit and sought both compensatory and punitive damages.

On April 9, 1976, service of summons and complaint was had upon appellant. On May 4, 1976, a default judgment was entered. On May 11, 1976, appellant filed its motion to set aside the default along with an answer, affirmative defenses and affidavit of its corporate president alleging excusable neglect. The motion was denied and partial summary judgment was subsequently entered on May 19, 1976.

From the above orders, denying appellant’s motion to set aside the default and granting appellee’s motion for partial final summary judgment, this interlocutory appeal follows.

Appellant’s first basic contention is that the lower court abused its discretion in denying appellant’s motion to vacate the default judgment. Inherent in appellant’s contention is the claim that service on the corporation was in violation of Section 48.-081, Florida Statutes (1975), and as a result of this allegedly improper service, the papers were misplaced and were only rediscovered subsequent to the entrance of the default. Appellant’s president, by way of affidavit filed in support of appellant’s motion to vacate the default, stated that upon his later discovery of the papers, he diligently sought the aid of an attorney who thereupon filed the aforementioned motion to set aside the default. Appellant argues that because of the improper service and its diligent, though untimely, attempt to correct the situation, the lower court erred in refusing to set aside the default.

Initially, after reviewing the aforementioned corporate service statute, Section 48.081, Florida Statutes (1975), we hold that service was validly effectuated upon appellant-corporation. In addition, it has long been the law and we have recently so held that the granting of relief from a default rests in the sound judicial discretion of the trial judge. Acme Fast Freight, Inc. v. Bell, 318 So.2d 212 (Fla.3d DCA 1975). Our Supreme Court has stated that:

“The exercise of discretion by a trial judge who sees the parties first-hand and is more fully informed of the situation, is essential to the just and proper application of procedural rules. In the absence of facts showing an abuse of that discretion, the trial court’s decision . must be affirmed.” Farish v. Lum's Inc., 267 So.2d 325 (Fla.1972).

We find no such facts evidencing any abuse of discretion on the part of the trial judge and therefore we affirm his decision denying appellant’s motion to set aside the default.

On the other hand, there is merit in appellant’s contention that the trial judge erred in entering a partial final judgment in favor of appellee. The judgment entered by the trial judge awarded appellee the specific performance relief prayed for in Count I of its complaint, or, in the alternative, damages in the sum of the purchase price of the automobile kit, as sought in Count II. Additionally, the partial final judgment ordered that a hearing be held to determine any compensatory and punitive damages to be awarded in accordance with Count III, fraud and deceit.

We believe that in so ordering, the trial judge violated Fla.R.Civ.P. 1.500, Defaults and Final Judgments Thereon, 31 Fla.Stat.Ann. 12 (1967), in that Count I did not state a cause of action for specific performance under Florida law, nor did Count III state a cause of action for fraud and deceit.

Florida law is such that despite the entrance of a default judgment against a defendant, only well-pleaded facts are admitted as true and only relief sought under those well-pleaded facts may be awarded to a plaintiff. Williams v. Williams, 227 So.2d 746 (Fla.2d DCA 1969); see also 19 Florida Jurisprudence § 301, Pleadings (1958). For a valuable discussion of this principle of law, see Nishimatsu Construction Co., Ltd. v. Houston National Bank, 515 F.2d 1200 (5th Cir. 1975), wherein the court, interpreting Federal Rule 55, the counterpart of Florida Rule 1.500, stated, inter alia, that:

“The defendant is not held to admit facts that are not well-pleaded or to admit conclusions of law . . [and] On appeal, the defendant, although he may not challenge the sufficiency of the evidence, is entitled to contest the sufficiency of the complaint and its allegations to support the judgment.” Supra, at 1206.

In addition, we find that in alternatively awarding appellee the full contract price, the court in effect deprived appellant of its right to present evidence in mitigation of the damages. We note that the pleadings and briefs allege that only a portion of the kit was not delivered. As such, we believe that a hearing should be held to determine appellee’s actual damages. See Robbins v. Thompson, 291 So.2d 225 (Fla.4th DCA 1974).

Accordingly, after considering the record, all points in the briefs and arguments of counsel in the light of the controlling principles of law, we conclude that reversible error has been demonstrated. Therefore, for the reasons stated and upon the authorities cited, the order of partial final judgment is vacated and set aside and the cause remanded for further proceedings not inconsistent with this opinion. The order denying appellant’s motion to vacate the default is affirmed.

Affirmed in part; reversed and remanded in part.


author: HENDRY, Judge.

text:
    The CONCORD FLORIDA, INC., a Florida Corporation, d/b/a Concord Cafeteria, etc., et al., Appellants, v. Sara LEWIN and Rose Lerner, Appellees.
    Nos. 75-1502, 75-1503.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 1976.
    Rehearing Denied Jan. 17, 1977.

      Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O’Hara and Richard A. Sherman, Miami, for appellants.
    Law offices of Joe N. Unger, Miami Beach, Podhurst, Orseck & Parks, Miami, for appellees.
    Before PEARSON, HENDRY and NATHAN, JJ.
   HENDRY, Judge.

Appellants were the defendants below and appellees were the plaintiffs. Appellants bring this consolidated appeal from the entry of three final judgments which held appellant, The Concord Florida, Inc., negligent and in violation of the Dade County Fire Prevention and Safety Code and assessed damages in favor of appellees.

The factual scenario began on February 2, 1973, when a madman ran in the front door of the crowded Concord Cafeteria on Miami Beach, threw a five gallon container of gasoline on the floor, lit a match to the gasoline and then ran away. In the fire that ensued, many patrons, including appel-lees, were burned and/or suffered smoke inhalation, while others were injured in their chaotic attempts to flee the burning building.

As a result of this incident, over seventy individuals filed suit against appellant-Concord, the owner of the cafeteria, alleging injuries suffered as a result of appellant’s failure to provide ample emergency fire exits, failure to clearly designate the location of the present fire exits and failure to provide a reasonably safe place for its patrons — all in violation of the Metropolitan Dade County Fire Prevention and Safety Code.

Eventually, many of these cases were consolidated at the trial level by the formation of a “Plaintiff’s Committee.”

By order of the circuit court, a bifurcated trial was held separating the issues of damages for each appellee from the initial question of negligence on the part of appellant-Concord in the maintenance of its facilities. During the pre-trial conference which occurred prior to the negligence hearing, attorneys for appellants unsuccessfully attempted to persuade the court to allow them to present to the jury the defense of “intervening cause,” i. e., the criminal act of the madman. The court, however, determined that “intervening cause” was in reality a part and parcel of proximate causation and should be tried in the series of damage suits that would follow, if in fact the jury initially held appellant-Concord liable for negligence.

The negligence trial commenced on April 14, 1975. At the end of said trial, the trial judge instructed the jury, inter alia, as follows:

“Violations of the Miami Beach Fire Code is negligence whether the defendant knew of the existence of the ordinance or not. If you find that the person alleged to have been negligent violated the ordinance, such person would be negligent.”

It is uncontradicted that the aforementioned instruction amounted to a “negligence per se” charge.

The Miami Beach Fire Code is one paragraph which adopts the Dade County Fire Prevention and Safety Code (hereinafter referred to as the Code). The pertinent portion of said Code is Section 1.02(1) which provides that:

“The provisions of this Code shall apply equally to new and existing conditions except that existing conditions not in strict compliance with the terms of this Code shall be permitted to continue where the exceptions do not constitute a distinct hazard to life or property.”

The jury, by way of special interrogatories, found appellant-Concord negligent in seven respects as to its maintenance of the premises in violation of said Code.

The second portion of the bifurcated process was then commenced. Individual trials were held as to various appellees to ascertain their damages, if any. At these trials, appellants were permitted to introduce to the jury the defense of “intervening cause” as a break in the chain of proximate causation. Despite this defense, the juries nevertheless found for appellees and awarded each money damages for injuries sustained in the fire.

It is from those final judgments awarding appellees’ money damages that appellants bring their consolidated appeal.

Appellants cite as error the trial judge’s pre-trial ruling prohibiting appellants from presenting to the jury the issue of intervening cause in the “negligence” portion of the bifurcated trial. Appellants also claim that in instructing the jury that a violation of the Code was “negligence per se,” the trial judge committed reversible error.

Appellants firstly contend that negligence includes the element of foreseeable risk. As such, appellants argue that they were entitled to present to the jury the question of whether or not the possibility of a gasoline throwing maniac was so foreseeable that appellants were negligent in not guarding against such an occurrence. Appellants argue that by prohibiting them from presenting their defense of intervening cause to the jury, during the negligence portion of the trial, the trial judge effectively conceded the issue of negligence to appellees.

Inherent in appellants’ contention is the idea that the act in question was an intervening cause which would insulate appellants from liability. Appellees, however, rely upon the case of Mozer v. Semenza, 177 So.2d 880 (Fla.3d DCA 1965), in support of their contention that such an act does not in fact constitute an intervening cause.

The facts of that case are very similar to the case sub judice. There, an arsonist set fire to a hotel, injuring patrons who attempted to flee over a negligently maintained open stairwell. The defendants in that trial attempted to defend on the ground of intervening cause (the arsonist).

In rejecting that claim, we held that:

“[T]he act of the arsonist was not an ‘independent intervening cause’. The scope of defendant’s duty to maintain reasonably safe premises does not include a duty to foresee a particular fire but it does include a duty to reasonably guard against the risk of fire. Viewed from this standpoint it is not important to the liability of the appellant whether the fire started in one way or another. It was reasonably foreseeable that there would, even under modern conditions, be a likelihood of fire and it was the duty of the defendant to provide a reasonably safe place in anticipation of that danger.” [Emphasis supplied.] Mozer, 177 So.2d at 883.

The above analysis is consistent with Section 442 B of the Restatement of the Law of Torts, 2d, Intervening Force Causing Same Harm as that Risked by Actor’s Conduct, which provides that:

“Where the negligent conduct of the actor creates or increases the risk of a particular harm and is a substantial factor in causing that harm, the fact that the harm is brought about through the interaction of another force does not relieve the actor of liability, except where the harm is intentionally caused by a third person and is not within the scope of the risk created by the actor’s conduct.” [Emphasis supplied.]

Also see Section 435 of the Restatement of the Law of Torts, 2d.

The emphasized portion of the above appears to be the crux of the matter and, though not specifically cited, determinative in the Mozer case, supra. The scope of the risk created there and scope of the risk created here was not that of an arsonist or madman setting fire to a building, per se, but rather, the risk of fire, itself. In failing to adequately protect its patrons from fire by providing proper safety measures such as emergency exits and signs indicating the location of said exits, appellant-Concord assumed the foreseeable risk that fire might someday trap its patrons leaving them without an escape route.

We therefore hold that the act of the madman, in and of itself, was not an intervening cause, cutting off the liability of appellant-Concord. As such, it would not have been error to prevent appellants from introducing that defense in either trial. However, assuming arguendo, that it was an intervening cause, in allowing appellants to present said defense to the jury at the damage portion of the bifurcated trial instead of at the negligence portion, the trial judge at worst committed harmless error. See Section 59.041, Harmless Error, Florida Statutes (1975) and cases cited therein.

Appellants’ second contention concerns the alleged error of the trial judge in instructing the jury that a violation of the Code would be “negligence per se.” Appellants’ basic contention is that the Code was adopted in 1966 and does not apply to any building built before that time. Appellants presented evidence that the building in which the cafeteria is located was built in 1936 and argue that said building should therefore be exempt from the Code’s safety requirements.

We believe that the aforementioned contention is without merit in light of the previously set forth portion of the Code, which in part provides that, violations existing in structures built before the adoption of the Code “shall be permitted to continue where the exceptions do not constitute a distinct hazard to life or property.” It is clear, then, that if, in existing buildings, violations are found which present a hazard to life or property, then the Code will apply to those buildings in which such hazards exist.

The jury, after listening to the testimony of two fire inspectors who were familiar with the various Code violations in said building, found, by way of special interrogatory, that appellant-Concord was negligent in seven respects. It is obvious from the tenor of the inspectors’ testimony that these violations constituted a “distinct hazard to life or property” in that the violations increased the risk of injury due to fire. We are therefore of the opinion that the Code was applicable to the Concord Cafeteria.

The only other question left to be determined is whether a violation of the above Code was “negligence per se” or only “pri-ma facie” evidence of negligence needing independent proof of the element of proximate causation. As previously mentioned, the trial judge gave a “negligence per se” instruction concerning a violation of the Code.

We believe our Supreme Court, in the case of deJesus v. Seaboard Coast Line Railroad Company, 281 So.2d 198 (Fla.1973), has answered the above query favorable to the trial judge. In that case, the court opined that a violation of a statute which establishes a duty to take precautions to protect a particular class of persons from a particular injury or type of injury is negligence per se. The Dade County Fire Prevention and Safety Code is clearly designed to protect a particular class of persons (patrons within a building) from a particular type of injury (burns and smoke inhalation caused by fire to that building) and therefore, we hold that it was not error for the trial judge to give a “negligence per se” instruction in the instant case.

In addition, the fact that the above Code was penal in nature, requiring a fine and/or imprisonment for its violation, equally lends credence to the aforementioned instruction. Hoskins v. Jackson Grain Co., 63 So.2d 514 (Fla.1953).

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

Affirmed.


text:
    Anthony L. MANESS, Appellant, v. STATE of Florida, Appellee.
    No. 75-2049.
    District Court of Appeal of Florida, Fourth District.
    Dec. 24, 1976.
    Rehearing Denied Feb. 2, 1977.
    Richard L. Jorandby, Public Defender, and James R. Merola, Asst. Public Defender, West Palm Beach, for appellant.

      Robert L. Shevin, Atty. Gen., Tallahassee, and Marsha G. Madorsky, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Reversed upon authority of Bennett v. State, 316 So.2d 41 (Fla.1976); Shannon v. State, 335 So.2d 5 (Fla.1976); Martin v. State, 334 So.2d 841 (Fla.4th DCA 1976); Bostic v. State, 332 So.2d 349 (Fla.4th DCA 1976).

It seems appropriate here to point out that we are currently reviewing numerous cases in which error results from a situation such as the one involved in the present case. The prosecutor (without the necessity of establishing a predicate for the introduction into evidence of any statement of the defendant) asks the arresting officer whether the defendant made any statement after being warned of his constitutional rights and obtains a negative answer from the officer. Of course, the officer’s testimony as to the negative answer invades the Fifth Amendment rights of the defendant. If the state is not seeking to introduce a statement of the defendant into evidence, it is unnecessary to show the defendant was properly warned of his constitutional rights, and the attempt to make such a showing courts reversible error.

REVERSED.

MAGER, C. J., and CROSS and DOW-NEY, JJ., concur.


text:
    Sherman SACKHEIM and Paula Sackheim, Appellants, v. MARINE BANK & TRUST COMPANY, a corporation, et al., Appellees.
    No. 76-499.
    District Court of Appeal of Florida, Second District.
    Dec. 29, 1976.
    Rehearing Denied Jan. 27, 1977.

      John P. Frazer, of Frazer & Hubbard, Dunedin, for appellants.
    James W. Hagen, of Fowler, White, Gil-len, Bobbs, Villareal & Banker, P.A., Clear-water, for appellees.
   WETHERINGTON, GERALD T., Associate Judge.

This appeal is from a final judgment rendered by the Circuit Court of Pinellas County in a judgment lien foreclosure suit. The circuit court held that appellee, Marine Bank & Trust Company, has a valid judgment lien on a one-half undivided interest in the subject real property located in Pinel-las County and owned by appellants, Sherman and Paula Sackheim, but that this judgment lien is unenforceable as long as the appellants Sackheims hold the property as homestead property. Appellee Marine Bank has cross-assigned as error that portion of the final judgment holding that the judgment lien is presently unenforceable.

Most of the facts were stipulated to by the parties in the nonjury trial before the circuit court and are agreed to on appeal. Appellees, Opal G. Hamm and Edward R. Hamm, owned the subject Pinellas County real property as husband and wife. On February 13, 1973 their marriage was dissolved and they became tenants in common of the subject property, each owning a one-half undivided interest therein. Under the terms of the dissolution judgment, however, Mrs. Hamm continued to reside with the children on the subject property as her homestead until the sale of the property to appellants Sackheims.

Subsequent to the dissolution of the Hamm marriage, appellee, Marine Bank, sued appellee, Edward R. Hamm, in Hills-borough County on a promissory note, but sued him in the name of Edward P. Hamm. Although learning his correct name prior to obtaining a final judgment in this action, appellee Marine Bank recovered judgment in the principal sum of $18,647.25 against him in the name of Edward P. Hamm. A certified copy of this judgment was recorded in the public records of Pinellas County on December 5, 1973.

In October of 1973, appellees Hamms entered into a contract to sell the subject property to appellants Sackheims. The sale occurred on December 10, 1973 without the appellants having actual notice of the December 5, 1973 judgment lien.

On these facts, the trial judge held, as a matter of law, that appellants had constructive notice that the recorded judgment was a lien on the one-half undivided interest in the property owned by Edward R. Hamm and therefore appellants acquired the property subject to this judgment lien. He accordingly declined to hear appellants’ factual evidence as to whether a reasonable title examiner would have been put on notice to inquire based upon the recording of the judgment with the erroneous middle initial.

We cannot agree with this holding. This court in McCausland v. Davis, 204 So.2d 334, 335, 336 (Fla.2d DCA 1967) described the types of notice of lien imputable to a purchaser as follows:

“There are three types of notice by which a party may be held to have had knowledge of a particular fact: actual notice, implied notice (or implied actual notice), and constructive notice. ‘Actual notice’ stems from actual knowledge of the fact in question. ‘Implied notice’ is factual inference of such knowledge, inferred from the availability of a means of acquiring such knowledge when the party charged therewith had the duty of inquiry. ‘Constructive notice’ is the inference of such knowledge by operation of law, as under a recording statute. . . ” In accord, Sapp v. Warner, 105 Fla. 245, 141 So. 124 (1932).

It has been stipulated that appellants Sackheims had no actual notice of the judgment lien. Moreover, it is clear that since there was an error in the name contained in the recorded judgment, no constructive notice as defined above was imputable to them. A proper recording is obviously required to give the full benefits of recorded or constructive notice.

However, the appellants were constructively charged with whatever the public records would have revealed, so the type of notice in question in this case is implied notice or implied actual notice. This is made clear by McCausland, supra, in which this court further stated:

“. . . However, a record, in addition to being constructive notice of its own existence and contents, gives rise to implied notice of such other facts as would be disclosed by duly prosecuted inquiries suggested by it. . . . ” 204 So.2d 336.

The standard and method to be applied in determining whether a purchaser has implied actual notice are also provided in McCausland, supra, in the following words:

“The court below, acting as the fact-finder, would have been entitled to find that a prudent man in appellant’s position, upon learning of the existence of that note, would have made further inquiry into the exact state of the title to the airplane and that such inquiry, if duly prosecuted, would have revealed Coastal’s interest. . . .” 204 So.2d 336.

As to the precise type of fact in question, an erroneous middle initial, appellants Sackheims have cited cases from other jurisdictions which, in the circumstances of the cases cited, hold that an erroneous middle initial is not the basis for imputing notice to the purchaser. Allen West Commission Co. v. Millstead, 92 Miss. 837, 46 So. 256 (1908); Turk v. Benson, 30 N.D. 200, 152 N.W. 354 (1915); Lature v. Little, 6 Ala.App. 278, 60 So. 474 (1912). Appellee, Marine Bank, has cited authorities holding that under the circumstances involved therein an erroneous or missing middle initial was sufficient basis for imputing notice to the purchaser. Gilbert v. Berry, 190 Iowa 170, 180 N.W. 148 (1920); Coral Gables, Inc. v. Kerl, 334 Pa. 441, 6 A.2d 275 (1939). These cases should be examined by the circuit court in making its ultimate finding of fact on the notice issue, but the decision must ultimately be made by considering the facts and circumstances involved in the instant case.

It cannot be said, therefore, that an erroneous middle initial in a recorded judgment automatically requires or prevents a finding of implied actual notice as defined in McCausland, supra. Its significance is dependent upon the attendant circumstances as evaluated by a reasonably careful title examiner. The circuit court erred in holding otherwise and in refusing to consider appellants’ evidence on this issue.

Nor can we agree with the circuit court’s holding that if the judgment lien is valid it is nonetheless unenforceable as long as appellants hold the property as homestead property. It may well be, as the Third District Court of Appeal has held in Daniels v. Katz, 237 So.2d 58 (Fla.3d DCA 1970), that a lien on a former husband’s one-half undivided interest in homestead property cannot be enforced as long as the former wife resides on the property as homestead property. But when both she and her former husband sell their interest in the property and it is no longer occupied by either of them as homestead property, the bar to enforceability of the judgment lien on the former husband’s one-half undivided interest vanishes. At this point, the purpose and protection of homestead exemption have been consummated and exhausted. The court in Daniels expressly agrees in the following words:

“When the property loses its status as homestead, the liens would then be subject to enforcement.” 237 So.2d 60.

See also Milton v. Milton, 63 Fla. 533, 58 So. 718 (1912); Anemaet v. Martin-Senour Co., 114 So.2d 23 (Fla.2d DCA 1959).

Therefore, if the December 5, 1973 judgment lien is valid as to the subject property, it attached prior to the acquisition of any homestead rights of appellants and therefore is superior thereto and presently enforceable. Aetna Insurance Co. v. LaGasse, 223 So.2d 727 (Fla.1969).

Accordingly, the final judgment appealed from is reversed and this cause is hereby remanded to the Circuit Court of Pinellas County with instructions to grant a new trial and to enter judgment in accordance with this opinion.

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


author: BOARDMAN, Judge.

text:
    STATE of Florida, Appellant, v. Joy Antionette THORNTON, Appellee.
    No. 76-554.
    District Court of Appeal of Florida, Second District.
    Dec. 29, 1976.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellant.
    Jack O. Johnson, Public Defender, and Robert H. Grizzard, II, Asst. Public Defender, Bartow, for appellee.
   BOARDMAN, Judge.

Appellant, State of Florida, appeals the order of the trial court dismissing an information charging appellee/defendant with grand larceny of an automobile in violation of Section 812.021, Florida Statutes.

Appellee argued that the information was defective because it failed to adequately inform her of the charge as required by Fla.R.Crim.P. 8.140(o). She contended that because the information did not allege that the deprivation was permanent she was not apprised whether she was charged with larceny of a motor vehicle, Section 812.021, Florida Statutes, or with temporary use of a motor vehicle, Section 812.041, Florida Statutes. The information stated, in pertinent part, that

Joy Antionette Thornton ... did take, steal and carry away from the lawful possession of Terry Wheaton, the owner thereof, certain property, to wit: one 1970 Ford Torino motor vehicle, identification # OA35F114972, with the intent to unlawfully deprive or defraud the said Terry Wheaton of the said property or the use and benefit thereof; contrary to Chapter 812.021, Florida Statutes

We hold that the succinct, distinct and definite allegations charge larceny.

Appellee relies on a previous holding of this court “that in order to charge the crime of auto theft under Ch. 814.03 [sjc ], an allegation that the taking must be done ‘with the intent to deprive the owner of his property permanently’ is essential.” Caves v. State, 302 So.2d 171, 173 (Fla.2d DCA 1974). Nonetheless an express allegation of permanency is not required. The inclusion of the word “steal” in the information “is sufficient to show the felonious intent of the defendant to deprive the owner permanently of its property.” Gaynor v. State, 196 So.2d 19, 21 (Fla. 4th DCA 1967).

The order of the trial court is reversed and the cause remanded for further proceedings consistent with this opinion.

REVERSED and REMANDED.

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

      . The crime charged in Caves was a violation of the auto theft statute which was repealed after Caves was decided. The question in Caves was whether intent was an essential element of auto theft not whether a permanent deprivation was an essential element. The court said that intent differentiated auto theft from unauthorized temporary use of a motor vehicle.


author: MILLS, Judge. BOYER, Chief Judge,

text:
    Peggy BLITCH, Appellant (Petitioner), v. James E. BLITCH, Appellee (Respondent).
    No. Z-79.
    District Court of Appeal of Florida, First District.
    Dec. 30, 1976.

      Charles K. Ruse, Jr., Ocala, for appellant.
    Andrew G. Pattillo, Jr., of Pattillo, MacKay & McKeever, Ocala, for appellee.
   MILLS, Judge.

By its final judgment dissolving the marriage between Peggy and James, the trial court determined that David Mikel Blitch, the child named in the petition, was not a child of the marriage. The only issue here is whether the court erred in this determination.

Peggy and James were married on 1 June 1970. On their marriage license application, both swore under oath that they were expectant parents. On 14 January 1971, David was born. On 11 September 1973, Peggy filed a petition for dissolution of marriage and alleged that David was a child of the marriage. In his answer, James admitted this allegation. However, over a year later he amended his answer and denied that David was a child of the marriage.

James stated that he was not the father of the child, but he admitted that he had intercourse with Peggy prior to the marriage. He also contended that Peggy had intercourse with another man prior to the marriage. He claimed that Peggy told him that she was pregnant before they had intercourse and that they did not have intercourse until a couple of weeks before their marriage. He admitted that the child was born during the marriage and that he acknowledged to other persons that he was the father. James’ grandmother and sister said that Peggy told them that James was not the father of the child.

Peggy stated that James was the father of the child; that at the time she married James, he knew she was pregnant; and that he insisted on marrying her. Peggy also stated that she did not believe that she was pregnant when she and James had premarital intercourse.

In Eldridge v. Eldridge, 153 Fla. 873, 16 So.2d 163 (1944), the husband and wife first met on 22 June 1941, were married on 16 July 1941, and had a child on 9 February 1942. The child was born 226 days after their first meeting. The husband claimed he was not the father of the child. The Supreme Court stated:

“Where the legitimacy of a child born in wedlock is questioned by the husband and reputed father, one of the strongest re-buttable presumptions known to the law is required to be overcome before the child can' be bastardized. At common law, the presumption was at one time virtually conclusive. . . . The rule is well established in this country that the husband may make the attack, but in so doing he must overcome the strong presumption of legitimacy by clear and satisfactory testimony. . . . The better rule is that the husband is not required to prove his contention beyond all reasonable doubt, yet his proof must be sufficiently strong to clearly remove the presumption of legitimacy. The evidence must more than cast a strong suspicion or grave doubt on the paternity of the child. “There is authority that the presumption is weakened in cases where it is found that the child was born in wedlock but conceived prior thereto. . . . The better view which is adhered to by most courts is to the effect that under such circumstances the presumption is not weakened. We prefer to adhere to the latter rule. It is supported by public policy and a wealth of authority.”

In Eldridge, the child was born 226 days from the first meeting of the parties. In this case, the child was born 228 days after the marriage of the parties and at least 242 days after James admitted having intercourse with Peggy.

The purpose of the strong presumption in favor of legitimacy when a child is either born or conceived in wedlock is to protect the interest and the welfare of the child. “The child’s welfare is paramount. Too often this is forgotten.” Sacks v. Sacks, 267 So.2d 73 (Fla.1972). It was forgotten in this case and we must reverse.

Proof necessary to overcome this strong presumption must be more than an emotional outburst by the wife to the effect that the husband is not the father of the child. The rule is for the protection of the child, and it should not be lightly considered.

Although James contends that Peggy refused to answer a number of relevant and material questions concerning the legitimacy of the child on Fifth Amendment grounds, the record discloses that she did not refuse but merely followed instructions of her counsel.

Reversed and remanded to the trial court for amendment of the final judgment finding that David Mikel Blitch is a child of the marriage and to determine what support, if any, appellee should make for the child.

SMITH, J., concurs.

BOYER, C. J., dissents.

BOYER, Chief Judge,

dissenting.

I respectfully dissent. Although I agree with the majority that there is a strong presumption in favor of legitimacy when a child is either born or conceived in wedlock, I cannot agree that the record fails to support the trial court’s finding that the evidence presented in this case overcame the presumption. It is axiomatic that where there is sufficient evidence to sustain the trial court’s judgment, that judgment will not be disturbed on appeal. It is not our prerogative to reevaluate and reweigh the evidence.

There is more than sufficient evidence present in the record of this case to support the trial court’s findings. According to the husband, the wife not only told him that she was pregnant by another man before they engaged in pre-marital intercourse, but she repeatedly re-informed him of that fact during arguments which occurred after the marriage. To further add to the husband’s embarrassment, his grandmother testified that the wife informed her on more than twenty occasions that another man was the father of her child. The husband’s half-sister also testified that the wife reported the same information to her. While the wife denied that she ever imparted such information to the husband’s half-sister and grandmother, the trier of fact had the responsibility of weighing the testimony and determining the credibility of the various witnesses. The trial court, sitting as the trier of fact and being able to carefully observe the demeanor of the witnesses, was in a far better position than this court to decide which testimony to believe.

I do not quarrel with the majority’s assertion that the child’s welfare is paramount. Notwithstanding that overriding purpose and the strong presumption in favor of legitimacy, a court may not ignore facts in order to reach a desirable result. Where, as here, the trial court has determined that the presumption in favor of legitimacy has been rebutted, and that conclusion is supported by substantial competent evidence contained within the record, an appellate court should not arbitrarily overturn the decision.

I would affirm.


author: MILLS, Judge. SMITH, Judge,

text:
    Loys LEFKOVITZ et al., Appellants (Plaintiffs), v. Louis LEFKOVITZ, Appellee (Defendant).
    No. AA-86.
    District Court of Appeal of Florida, First District.
    Dec. 30, 1976.

      Donald F. Leggett, of Black & Leggett, P. A., Jacksonville, for appellants.
    Gerald R. Power, Jacksonville, for appel-lee.
   MILLS, Judge.

Ms. Lefkovitz, her daughter and attorney filed this action against Mr. Lefkovitz, her former husband, to establish in Florida an Illinois judgment obtained in a proceeding ancillary to an Illinois divorce. The judgment was for arrearages in alimony, child support and attorneys’ fees. Mr. Lefkovitz contended, and the trial court agreed, that the Illinois divorce decree was ineffective, for lack of personal jurisdiction over him, to require that he pay alimony, child support and attorneys’ fees. We agree.

The question which is determinative of this appeal is whether the Illinois divorce court had personal jurisdiction of Mr. Lef-kovitz, notwithstanding his absence from that state, by process served pursuant to the Illinois long arm statute, which provides:

“(1) Any person, whether or not a citizen or resident of this State, who in person . does any of the acts hereinafter enumerated, thereby submits to the jurisdiction of the courts of this State as to any cause of action arising from the doing of any such acts:
“(e) With respect to actions of divorce and separate maintenance, the maintenance in this State of a matrimonial domicile at the time the cause of action arose or the commission in this State of any act giving rise to the cause of action.”

There is substantial competent evidence to support the court’s findings that Mr. Lefkovitz left Illinois in November 1971 and established a business and residence in Florida; although he occasionally returned to Illinois to visit with his family, he remained a resident of Florida; he last visited with the family the first part of November 1973 and at this time decided to never return; the act giving rise to Ms. Lefkovitz’s divorce action, filed in Illinois in December 1973, occurred in Florida the latter part of November 1973; and Mr. Lefkovitz was served with process in Florida under the Illinois long arm statute.

From these facts, the trial court properly determined that the Illinois trial court did not acquire personal jurisdiction of Mr. Lef-kovitz because the act giving rise to the Illinois divorce action occurred in Florida and at that time there was no marital domicile in Illinois.

The judgment is affirmed.

DRURY, ARVEL, Associate Judge, concurs.

SMITH, J., dissents.

SMITH, Judge,

dissenting:

The majority have inexplicably and, in my view, erroneously found there was no marital domicile in Illinois when the cause of action for divorce arose. I believe there was, and consequently that the Florida trial court was bound to grant the Illinois judgment full faith and credit as one predicated on jurisdiction constitutionally asserted under Illinois’ long-arm statute.

In 1966 the parties married and made their home in Illinois. In November 1971, Mr. Lefkovitz moved to Florida to establish a business. Both planned that she and the children would later join him. He established a Florida residence but occasionally returned to Illinois for visits, during which the parties were as husband and wife, although with some discord. He continued to make mortgage payments on the home in Wheeling, Illinois, and otherwise maintained the family there. During a visit to the marital home ending November 12, 1973, he decided never to return. When he did not return at Thanksgiving as expected, she flew to Jacksonville, Florida, on November 26 and discovered him living with another woman.

Ms. Lefkovitz instituted divorce proceedings in Illinois and caused Illinois process to be served on her husband in Jacksonville in accordance with the Illinois long-arm statute. Mr. Lefkovitz did not appear in the Illinois divorce proceedings, in which a final decree was entered January 22,1975, granting her a divorce on the Illinois ground of extreme mental cruelty. The Illinois decree ordered him to pay her attorneys’ fees; $1,000 per month permanent alimony; $200 per month support for the minor son plus all expenses necessary for the son’s prep-school and college education; and $300 per month for the support of a 19-year old daughter living at home and attending junior college, to be modified if she decides to attend college and live away from home. In recognition of her special equities, he was also ordered to convey to Ms. Lefkovitz the home property and lot in Cook county; to pay her the balance due on a contract of sale of other property in Chicago; and to account for and to pay to her one-half the profit of any business owned by him. The judgment for arrearages was entered on May 6, 1975.

In the meantime, after satisfying the residency requirement of § 61.021, F.S.1973, the husband instituted his own dissolution proceedings in the Duval County circuit court on December 17, 1974. She did not appear and was not served process in Florida. The record does not reveal whether and by what means personal jurisdiction of the wife was claimed in his action for dissolution. On March 26,1975, the Duval County court entered a final judgment of dissolution, reciting that “the court has jurisdiction of the parties.” The absent wife was awarded permanent care and custody of the two children and he was directed to pay her child support of $100 per month per child until the child becomes 21.

Here the trial court dismissed the wife’s complaint to establish the foreign judgment after making an independent determination of whether the Illinois court had personal jurisdiction of the husband when entering the divorce decree. Under the Supreme Court’s second decision in Williams v. North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577 (1945), it was proper for the trial court to determine that issue itself because the husband did not appear and litigate that issue in Illinois. Without addressing the constitutionality of the Illinois statute, the trial court found the statute’s terms had not been met because:

“The act giving rise to the cause of action in Illinois occurred in Florida in November, 1973, and there was no marital domicile in Illinois at that time or thereafter.”

Locating the marital domicile for divorce jurisdiction purposes once depended on the merits of the case, because a husband departing to another state took with him the “domicile of matrimony” and that of his wife only if he left faultlessly. Haddock v. Haddock, 201 U.S. 562, 571-72, 26 S.Ct. 525, 528, 50 L.Ed. 867, 870 (1906). The Supreme Court’s first decision in Williams v. North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279 (1942), was thought to have put an end to the difficulty of that rule by holding that courts at the domicile of either partner may divorce them. But the concept of a marital domicile — in the simpler sense of the last homeplace the marriage partners shared — has found renewed usefulness to legislatures reaching to claim for their courts personal jurisdiction, incident to the termination of marriage, to exact alimony and other financial adjustments from the absent spouse. Thus, it has repeatedly been held, most recently in Judge Owen’s scholarly opinion for the District Court of Appeal, Fourth District, that due process standards permit a state to assert personal jurisdiction over a departed husband to enforce his obligation to support a stay-behind spouse long domiciled at the forum. Pinebrook v. Pinebrook, 329 So.2d 343 (Fla.App. 4th, 1976), and cases cited at 348. To affirm the jurisdictional interests of that state “seems so sensible,” wrote one commentator on the murky doctrines of domicile, “that it should be obvious to any one who had never become confused by studying law.” Powell, And Repent at Leisure, 58 Harv.L.Rev. 930, 955 (1945). See also Restatement (Second) of Conflicts § 77 (1971).

The trial court in this case did not reach the question — which I would decide in the affirmative — whether Illinois as the last marital domicile was constitutionally permitted to claim personal jurisdiction of the departed Mr. Lefkovitz. The parties stipulated and the evidence showed that the last marital domicile was in Wheeling, Illinois. But the trial court held that that matrimonial domicile was not “[maintained] at the time the cause of action arose,” as the statute recites. The court thus found that Ms. Lefkovitz’s cause of action for divorce arose in November 1973, presumably referring to her discovery here, on November 26, 1973, of her husband’s adulterous relationship. The implication of the trial court’s judgment is surely not that the marital domicile came to Florida with Mr. Lefkovitz in 1971 and never flew back to Illinois — shades of Haddock! — but rather that there was no marital domicile at all in November 1973. Such reasoning would be that the home where the parties lived with their children in Wheeling, Illinois, lost its character as the matrimonial domicile when the husband left it in November 1971; or when, intending to stay, he established a residence in Florida; or when he decided, on November 12, 1973, never to return to his Illinois wife. In this I believe the trial court and the majority here have read the Illinois statute too narrowly.

Illinois, like so many states, wishes its jurisdictional statutes to be read as broadly as their terms and the due process clause permit. Nelson v. Miller, 11 Ill.2d 378, 389, 143 N.E.2d 673, 678 (1957). There is no reason to believe that Illinois desires less jurisdiction for the protection of its domicil-iaries than, say, California, whose long-arm statute simply authorizes its courts to exercise jurisdiction “on any basis not inconsistent” with the United States Constitution. The Illinois statute, therefore, should not be more closely confined than its language requires.

Viewing the statute and the record in this light, I conclude that the Lefkovitz marital domicile was maintained in Illinois when Ms. Lefkovitz’s cause of action arose and, consequently, that the Illinois court had personal jurisdiction of Mr. Lefkovitz when the divorce action was filed in December 1973.

There is no reason to assume, as the judgment below apparently did, that there was no cause of action for divorce until November 26,1973, when Ms. Lefkovitz discovered her husband living with another woman in Jacksonville. The Illinois judgment granted Ms. Lefkovitz a divorce not on grounds of adultery — even that must have antedated, Ms. Lefkovitz’s discovery of it on November 26,1973 — but for “extreme and repeated mental cruelty” (emphasis added). The plain implication is that the stated ground existed sometime prior to November 1973.

Effect should also be given to the evidence that, even in November 1973, Mr. Lefkovitz was still supporting his wife and children in the Illinois home and was making mortgage payments on it. He last visited the Wheeling home and had marital relations with his wife in early November 1973, less than a month before his adultery in Jacksonville was discovered. “[Cjontinuous and systematic maintenance of the family in the marital domicile after separation” is an important jurisdictional element. Pinebrook, 329 So.2d at 348, and cases cited.

Because it appears from the record that Mr. and Ms. Lefkovitz were maintaining the marital domicile in Illinois at the time of his conduct giving rise to her cause of action for divorce, it is unnecessary to discuss whether, in any event, the Illinois statute was intended to and does attach personal jurisdiction to a departing husband when the last marital domicile was maintained there, although it was no longer maintained when the cause of action arose. The Illinois divorce decree and money judgment for ar-rearages should be accorded full faith and credit by Florida courts.

      . Smith-Hurd Ann., Ch. 110, § 17.

      .Smith-Hurd Ann., ch. 110, § 17(1)(e). A 1973 revision of the Florida long-arm statute similarly but somewhat ambiguously provides personal jurisdiction in marital litigation of a nonresident who “maintains a matrimonial domicile in this state at the time of the commencement of this action or, if the defendant resided in this state preceding the commencement of the action, whether cohabiting during that time or not.” Sec. 48.193(1)(e), F.S.1975.

      . Smith-Hurd Ann., ch. 40, § 1.

      . Had Mr. Lefkovitz actively contested the jurisdictional issues in Illinois, that court’s judgment finding jurisdiction would have been entitled to full credit in Florida without further examination of the jurisdiction question. Haas v. Haas, 59 So.2d 640 (Fla.1952).

      . Mr. Justice Douglas’ opinion for the Court in the first Williams case stated: “Haddock v. Haddock is overruled.” 317 U.S. at 304, 63 S.Ct. at 216, 87 L.Ed. at 289.

      . Hawes v. Hawes, 130 Ill.App.2d 546, 263 N.E.2d 625 (2nd Dist., 1970).

      . E. g., Babson Bros. Co. v. Allison, 298 So.2d 450 (Fla.App. 1st, 1974).

      . Sec. 410.10, California Civil Procedure Code, quoted in Pinebrook, 329 So.2d at 345.

      . No Illinois court has construed the phrase “the time the cause of action arose” as referring to the precise moment when the last act of a series is done to accrue a cause of action. The purpose of the statute would seem to permit taking into account the antecedent acts which, together with the last act, constitute “extreme and repeated mental cruelty.” See Friedman, Extension of the Illinois Long Arm Statute: Divorce and Separate Maintenance, 16 DePaul L.Rev. 45, 53-55 (1966).


text:
    Karen C. NAHOOM, Appellant, v. Kerry J. NAHOOM, Appellee.
    Nos. 75-1835, 75-1836.
    District Court of Appeal of Florida, Third District.
    Jan. 4, 1977.

      Rosenberg, Rosenberg, Reisman & Glass, Miami, for appellant.
    Druck, Grimmett, Norman, Weaver & Scherer, Fort Lauderdale, Harold F. Keefe, Miami, for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

By these appeals, the former wife of the appellee raises the question of whether the trial court has jurisdiction to change the provisions of a final judgment of dissolution of marriage after the judgment has become final.

On August 1,1975, the trial court entered a final judgment of dissolution of marriage which provided, in part, as follows:

“4. Respondent, KERRY J. NA-HOOM, shall pay to Petitioner the sum of SIXTY ($60.00) DOLLARS per week per child solely for child support of the children, which weekly payments shall commence on August 1, 1975, and continue weekly thereafter until the children reach their majority or the award of child support is modified.
“In addition, during the period from June through August, in the years 1976 and 1977, the Respondent shall pay to Petitioner as and for additional child support the sum of TWO HUNDRED ($200.00) DOLLARS each year.
“5. The Court makes no award of alimony for the Petitioner.
“6. The Court retains jurisdiction of this cause for the purpose of enforcing the terms and conditions of this Final Judgment, and further retains jurisdiction for any and all further proceedings that may be meet and proper.”

This judgment was pursuant to an oral announcement made at the conclusion of the cause where the court stated, in part, as follows:

“THE COURT: Here is what I am going to do, based on conversations with the parties and based upon stipulations: The child support will be $60 a week, per child, until the children reach their majority. The Court will retain jurisdiction of this case for any future hearings, naturally, and for the next two years exclusive of the year 1975, but for 1976 and 1977, during the month of June, July, and August, for the care of these children, the additional day care or babysitting care of these children, while she is working, will be an additional $200 due and owing to Mrs. Nahoom for the benefit of those children. That will be the initial child support as awarded by the Court. It will cease at the end of the summer of 1977. By that time you ought to be on your feet. All right, gentlemen, does that determine all the issues that we have involved here?”

On September 15, 1975, a motion to amend and modify the final judgment of dissolution of marriage was made. This motion alleged that the husband believed the final judgment did not conform to the court’s award of child support. The court did not take further testimony nor was any change in circumstances alleged or found. Basing its action entirely upon the motion, the trial court changed the provisions of the final judgment by adding an additional provision that the child support payments should not exceed $490 per month and providing that the payment should be made twice per month. In addition, the court amended the final judgment to provide that the former husband might claim the children as dependents for federal income tax purposes. Finally, the court added additional provisions as to the $200 lump sum support payment. The appeals are from the amended judgment.

It is well-established that the trial court loses jurisdiction of a case with the expiration of the time for filing a motion for rehearing or upon the disposition of such motion, if filed. See Shelby Mutual Ins. Co. of Shelby, Ohio v. Pearson, 236 So.2d 1 (Fla.1970); and Investment Corp. of South Florida v. Florida Thoroughbred Breeders Association, Inc., 256 So.2d 227 (Fla.3d DCA 1972). The motion to amend the final judgment was not made pursuant to Fla.R.Civ.P. 1.540(b), and it may not be so considered because the judgment originally entered conformed exactly to the trial court’s announcement of its decision at the conclusion of the trial of the cause. We, therefore, hold that the trial court was without jurisdiction to amend the final judgment by changing the provisions thereof even though the court may feel that the amended final judgment more fully expresses its intentions than as set forth in the prior final judgment. Thereupon, the amended final judgment is reversed and the final judgment entered on August 5, 1975, is ordered reinstated.

Reversed and remanded.