author: PEARSON, Judge.

text:
    Gerald B. FALOVITCH and DAVEDA M. Falovitch, his wife, Appellants, v. ADRIENNE REALTY, INC., Sol Davidow and Alice Davidow, Appellees.
    No. 75-1607.
    District Court of Appeal of Florida, Third District.
    May 3, 1977.

      Michael H. Weisser, Miami, and Kenneth B. Swinger, Fort Lauderdale, for appellants.
    Porter, Treister & Bercuson and Michael D. Wohl and Gary M. Carman, Miami, for appellees.
    Before PEARSON, HAVERFIELD and HUBBART, JJ.
   PEARSON, Judge.

Gerald B. Falovitch and Daveda M. Falo-vitch, his wife, appeal a final judgment in favor of Adrienne Realty, Inc., for a real estate broker’s commission. The judgment also found for the real estate company against the Falovitches upon the Falovitch-es’ claim for a return of one-half of the deposit made by prospective purchasers. The principal question presented by the appeal is whether the real estate broker performed its duty as a broker in order to be entitled to a commission.

The suit was begun by Sol Davidow and Alice Davidow, his wife, who were the prospective purchasers of the property in order to recover their deposit. Both the owners Falovitch and the broker, Adrienne Realty, were made parties to the suit. The real estate broker cross-claimed against the Fal-ovitches for the commission claimed to be due for having presented a purchaser ready, willing and able to purchase. The Falo-vitches cross-claimed against the real estate broker claiming the right to recover one-half of the deposit for the sale that was not completed. The Davidows were not parties to this appeal. The trial judge set out his findings of fact as follows:

“1. That GERALD B. FALOVITCH and DAVEDA M. FALOVITCH, his wife, entered into a Multiple Listing Agreement with Marbin & Wolis Realty Company, Inc. for the sale of real estate which is the subject matter of the above styled action.
“2. That ADRIENNE REALTY, INC. procured a purchaser ready, willing and able to buy the subject real estate, to wit: SOL DAVIDOW and ALICE DAVIDOW, his wife.
“3. That SOL DAVIDOW and ALICE DAVIDOW, his wife, made an offer on the subject property in the form of a Deposit Receipt Contract, a copy of which was attached to the Complaint filed herein, and said contract was accepted by GERALD B. FALOVITCH and DAVE-DA M. FALOVITCH, his wife.
“4. GERALD B. FALOVITCH and DAVEDA M. FALOVITCH could not perform pursuant to the Deposit Receipt Contract entered into between the parties thereto, consequently, the sale was not closed due to the default and failure on the part of the seller.
“5. That at all times material hereto, ADRIENNE REALTY, INC. acted in good faith and performed all aspects of its contract, to wit: the Multiple Listing Agreement for the subject property, a copy of which was filed in this action by Defendant, ADRIENNE REALTY, INC.
“6. That pursuant to the aforementioned Deposit Receipt Contract, ADRIENNE REALTY, INC., was entitled to one-half of the stated brokerage commission or three and one-quarter (3V4%), percent of One hundred twenty-five thousand and NO/100 ($125,000) Dollars purchase price of the subject real estate or $4,687.50.
“7. That ADRIENNE REALTY, INC. was forced to take action against GERALD B. FALOVITCH and DAVEDA M, FALOVITCH, his wife, to recover its earned brokerage commission and, pursuant to the Deposit Receipt Contract are entitled to recover reasonable attorney’s fees and Court costs from the sellers.”

The Falovitches had a mortgage on their property which provided that it could be transferred to a new owner only in the event the new owner assumed the new mortgage. In event the property was sold without an assumption agreement, the mortgage provided that the entire balance would become immediately due and payable. The Falovitches, wishing to sell their property, entered into a multiple listing agreement with another real estate broker. This listing agreement, which was prepared by the real estate broker, provided only that the property would be sold for all cash above the mortgage. Acting pursuant to the multiple listing agreement, Adrienne Realty, Inc., procured a purchaser who was willing to purchase but would not assume the mortgage. A deposit receipt contract was prepared by Adrienne Realty which provided that the property would be sold subject to the outstanding mortgage. The Falovitches, who were then residing in Canada, were informed by telephone that a purchaser had been procured who would purchase in accordance with the multiple listing agreement. The deposit receipt contract was forwarded to Canada and signed by the Falovitches. The prospective purchasers, upon discovering that they could not purchase the property without assuming the mortgage, declined to close the deal and demanded the return of their deposit. The testimony taken before the court without a jury disclosed that at the time of the taking of the multiple listing, the agent who procured the' listing understood that the mortgage was to be assumed. The evidence also reveals that at the time the deposit receipt contract was submitted to the Falovitches, there was no explanation to them that the mortgage would not be assumed. It seems clear from the evidence that the Falovitches were ignorant as to the difference between “subject to” and “assumed” as used in the purchase and sale of property regarding mortgages. It is also clear that neither the real estate brokers or their agents made any effort to ascertain the status of the mortgage as to whether the property could be sold without an assumption of the mortgage.

A broker, to be entitled to a commission upon a sale that is not consummated, may recover upon proof that he has presented a purchaser ready, willing and able to purchase under the terms of the listing agreement. See Walker v. Chancey, 96 Fla. 82, 117 So. 705 (1928); and Knowles v. Henderson, 156 Fla. 31, 22 So.2d 384 (1945). It conclusively appears from the evidence in this case that Adrienne Realty, Inc., did not present a purchaser in accordance with the terms of the listing agreement because although not expressed in the listing agreement, it is the undisputed testimony of the agent who procured the listing agreement and of the Falovitches that the mortgage was to be assumed. We, therefore, hold that the trial judge’s finding that Adrienne Realty, Inc., procured a purchaser ready, willing and able to purchase in accordance with the terms of the listing is not supported by competent evidence.

A real estate broker is a professional person employed to use his professional knowledge in the service of his client, and in the performance of this duty is held to the standards of a person occupying a confidential relationship with his employer. See Lalow v. Codomo, 101 So.2d 390 (Fla.1958). See also Hershey v. Keyes Company, 209 So.2d 240 (Fla. 3d DCA 1968). Real estate brokers are empowered to draw certain contracts for their employers even though they are not attorneys at law. See Keyes Co. v. Dade County Bar Association, 46 So.2d 605 (Fla.1950). In order to be entitled to remuneration for his services, a real estate broker must exercise ordinary diligence in preparing a contract so that it expresses the true intent and purposes of his employer. In the instance before us, it is clear that there was a failure of both the listing agreement and the deposit receipt agreement to encompass the terms and conditions under which the Falovitches were willing to sell their home. Therefore, having failed to present a deposit receipt contract which met the terms and conditions of the agreement to list, Adrienne Realty, Inc., has failed to present a purchaser ready, willing and able to purchase under the terms of the listing. The fact that the listing prepared by another real estate broker was vague and incomplete does not excuse Adrienne Realty from its duty to ascertain the true terms and conditions under which the property was listed, and having failed to do so, it misrepresented to the sellers the legal effect of the deposit receipt agreement when they made the representation that the deposit receipt contract was in accordance with the listing agreement.

We, therefore, hold that the judgment upon Adrienne Realty’s counterclaim must be reversed. Inasmuch as the prospective purchasers have recovered their deposit in full, the Falovitches cannot recover upon their counterclaim for a portion of that deposit. Thereupon, the judgment is affirmed in part as to the denial of the counterclaim by the appellants Falovitch, and is reversed as to the judgment upon Adrienne Realty’s claim for a commission for having procured a purchaser ready, willing and able to purchase.

Affirmed in part and reversed in part.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Ronald GOULD, Appellant, v. Henry RUZAKOWSKI, Appellee.
    No. 76-889.
    District Court of Appeal of Florida, Third District.
    May 3, 1977.
    Lionel Barnet, Miami Beach, for appellant.
    James A. Baccus, Miami, for appellee.
    Before HAVERFIELD and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The appellant entered into a written lease with Patricia Shiftman, whereby appellant leased from Shiftman a “Private residence, including guest house” on Miami Beach, for a term of one year, being the calendar year of 1974. The rent for the period was $10,000.00, payable in monthly installments of $833.33. Thereunder the lessee deposited $833.33 as security “to cover breakage, loss and/or damage to the furniture, furnishings, fixtures, equipment or property, normal wear and tear excepted.” Regarding assignment, the lease provided: “The contract shall not be assigned by either Lessor or Lessee without the written consent of the other”.

On January 14, 1974 the lessor conveyed the property to Henry Ruzakowski, and on January 15, 1974 the lessor made a written assignment of the lease to the new owner. However, the lessee was without knowledge thereof until the latter part of April 1974 when he was advised of such action by a letter from an attorney representing the lessor.

Through May of 1974 monthly rental payments in the amount specified were made by the lessee to the lessor. Subsequent monthly payments were made by the lessor to the new owner, in lesser amounts than specified, $500.00 in June and $400.00 for subsequent months, through November.

On December 2, 1974 the owner filed an action against the lessee in the county court alleging rent arrears of $2349.98, seeking recovery thereof and ouster. Complying with the ouster demand, the lessee vacated the premises, and on December 23, 1974 an order was entered by the county court transferring the action to the circuit court. On final hearing in that court judgment was entered in favor of the plaintiff against the lessee for $2382.48, representing the unpaid portion of the rent, $2349.98 and costs of $32.50.

On appeal therefrom the lessee contends entry of the judgment was error, on the ground that assignment of the lease by the lessor without lessee’s written consent was a breach of the lease such as to relieve the lessee of liability for such unpaid portion of the stipulated rent. In support thereof the appellant argues the assignment without consent operated to terminate the lease, making his subsequent occupancy of the premises a month to month tenancy at will.

We hold those contentions are without merit. When informed of the sale of the property, and of the assignment of the lease to which he had not given consent, the lessor made no objection thereto, and by making monthly payment to the assignee the lessee attorned. Hankins v. Smith, 103 Fla. 892, 138 So. 494 (1931).

Entry of judgment against the lessee for the unpaid portion of the rent as provided for in the lease was correct, but no sound reason was shown why the lessee should not receive credit for the $833.33 he had given as a security deposit. Accordingly, the judgment is amended to reflect such credit, thereby reducing the judgment from $2382.48 to $1549.15.

As so amended the judgment is affirmed.


author: BOARDMAN, Chief Judge.

text:
    DIVISION OF ADMINISTRATION, STATE of Florida DEPARTMENT OF TRANSPORTATION, Plaintiff, v. GRANT MOTOR COMPANY et al., Defendants.
    No. 76-1421.
    District Court of Appeal of Florida, Second District.
    May 4, 1977.

      H. Reynolds Sampson, General Counsel, Coral Gables, Alan E. DeSerio and Kenneth M. Towcimak, Tallahassee, for plaintiff.
    Herman W. Goldner of Goldner, Reams, Marger, Davis, Piper & Kiernan, St. Peters-burg, for defendant, McRae Funeral Home.
   BOARDMAN, Chief Judge.

The Circuit Court of the Sixth Judicial Circuit has certified the following question to this court:

Does the necessary services of an attorney and/or appraiser in the administrative appeal of the Department’s order of refusing relocation expense in ancillary proceedings resulting from a taking in an eminent domain proceeding, entitle a defendant property owner to reasonable attorneys’ fees and appraisers’ costs for services of said attorneys in said administrative appeal, and if so„ can they properly be considered as part of the eminent domain proceedings in chief?

The trial judge stated in the certification that the question is without controlling precedent in Florida and that it is a matter of significant public interest. See Fla.App. Rule 4.6(a).

An eminent domain action was instituted by the State of Florida Department of Transportation in the circuit court to condemn a parcel of real property owned by defendant, McRae Funeral Home, upon which its place of business was located. Initially defendant claimed business losses as a part of its compensable damages. While this suit was pending, however, the Supreme Court of Florida ruled in Jamesson v. Downtown Development Authority, 322 So.2d 510 (Fla.1975) that business losses were not an element of damages where, as in this case, the complete parcel was taken. Defendant then abandoned its claim for business losses.

Before final judgment was entered by the trial court, defendant submitted a request to the Department of Transportation for a 42 U.S.C. § 4622(c) (1971) payment equal to the average annual net earnings of the business in lieu of a 42 U.S.C. § 4622(a) (1971) payment for actual moving expenses. The request was denied by the Department of Transportation. Defendant appealed to the Division of Administrative Hearings of the Department of Administration, and after a final hearing held May 18, 1976, the hearing officer found that although defendant was a displaced person under 42 U.S.C. § 4622 (1971) and was eligible for a § 4622(a) payment, it was not eligible for a § 4622(e) payment in that it failed to make the necessary showing that the business could not be relocated without a substantial loss of existing patronage.

Final judgment in the eminent domain action was entered by the trial court awarding defendant $28,700 as full payment for the property. Defendant then filed for payment of its expenses incurred in both the circuit court and the administrative agency appeal. The court found that the amounts requested, that is $3,500 attorney’s fees and $3,645 appraiser’s fees, were reasonable for the total services rendered but awarded defendant only that portion of the expenses which was attributable to the circuit court proceedings. The court also found that entitlement to fees and costs incurred as a result of the agency appeal presented a unique question of law and certified the question of entitlement to this court.

Defendant contends that the constitutional guarantee to full compensation for property taken by eminent domain includes all expenses incurred in any forum while in pursuit of full compensation. Article X, Section 6(a), Florida Constitution, provides that:

No private property shall be taken except for a public purpose and with full compensation therefor paid to each owner or secured by deposit in the registry of the court and available to the owner.

Although statutory authorization for payment of costs incurred in an eminent domain action pertains only to proceedings in the circuit court, Section 6 of Article X of the Florida Constitution is self-executing and, therefore, does not require enabling legislation to justify award of items contemplated by full compensation. Jacksonville Expressway Authority v. Du Pree Co., 108 So.2d 289 (Fla.1958).

Full compensation consists of two elements, the value of the property taken and severance damages to any remainder. Compare Daniels v. State Road Department, 170 So.2d 846 (Fla.1964) with Du Pree Co., supra. Defendant’s reliance on cases which by way of dicta have said that full compensation includes the expenses of establishing the amount of full compensation is misplaced. See State v. Florida State Improvement Commission, 47 So.2d 601 (Fla.1950); Du Pree, supra. In Florida State Improvement Commission and in Du Pree the court found statutory authority to justify the cost award. Moreover, the expenses at issue in the case before us were not incurred while defendant was pursuing a right to compensation secured by the constitution. The Florida supreme court has made it clear that full compensation for property taken by eminent domain is limited to payment for loss of tangible property. Intangibles such as business damages or lost profits due to loss of patronage, as provided for by § 4622(c), are not items included in full compensation. Jamesson, supra. Furthermore, the purpose of the federally authorized § 4622 payments was to supplement traditional eminent domain compensation, not to create an additional element of full compensation. See Auraria Businessmen Against Confiscation, Inc. v. Denver Urban Renewal Authority, 183 Colo. 441, 517 P.2d 845, 848 & n. 2 (1974); 42 U.S.C. § 4602 (1971). Therefore, costs incurred while seeking a § 4622(c) payment are not contemplated by Article X, Section 6 of the Florida Constitution.

Since the element of damages defendant sought in the administrative appeal was not created by the constitution, costs of the appeal of the denial of that item will be awarded only where they are provided for by contract or by statute. E. g., Conner v. State Road Department, 66 So.2d 257 (Fla.1953). Although Section 73.091, Florida Statutes, applies regardless of whether the damages sought are awarded, the item must be sought in the circuit court proceedings. See Hodges v. Division of Administration, Department of Transportation, 323 So.2d 275 (Fla.2d DCA 1975); State Department of Transportation v. Shaw, 303 So.2d 75 (Fla.1st DCA 1974).

Under the present status of constitutional and statutory law, the expenses incurred due to defendant’s election to be represented by an attorney and to submit expert testimony at the agency appeal proceedings should be the obligation of defendant and not the taxpayers of Florida. Until the legislature speaks we are without authority to require payment for such services.

Accordingly, we answer the certified question in the negative and remand the cause for further proceedings consistent with this opinion.

GRIMES and OTT, JJ., concur.

      . Although it is not clear from the record, it seems that defendant was not requesting a § 4622(a) payment at this time but was seeking only the alternate § 4622(c) payment.

      . The federal statutory scheme does not provide for an award of expenses for relief sought pursuant to 42 U.S.C. § 4622 (1971).

      . Defendant does not attack this award.

      . Sec. 73.091, Fla.Stat. (1975):
      The petitioner shall pay all reasonable costs of the proceedings in the circuit court, including a reasonable attorney’s fee to be assessed by that court.


text:
    Charles Edward COX, a minor, by and through his mother, and next friend, Mrs. Willie Mae Cox, and Mrs. Willie Mae Cox, Individually, Appellants, v. Johnnie Delton HOLDER, Appellee.
    No. DD-224.
    District Court of Appeal of Florida, First District.
    May 9, 1977.

      Thomas W. Davis, Barton & Cox, Gaines-ville, for appellants.
    No appearance for appellee.
   PER CURIAM.

This is an appeal from a sua sponte order dismissing appellants’ action with prejudice because it appeared to the trial judge that appellants are estopped to sue. That issue was not raised either by motion or by pleading, and dismissal on that ground was improper. Fla.R.Civ.P. 1.110(d); Cortina v. Cortina, 98 So.2d 334 (Fla.1957). Appellants’ notice for trial and pending request for a trial date constituted record activity preventing dismissal under Fla.R.Civ.P. 1.420.

REVERSED.

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


author: BOYER, Chief Judge.

text:
    LANDMARK BANK OF WEST BROWARD, Appellant, v. Dolores GIROUX, Appellee.
    No. EE-366.
    District Court of Appeal of Florida, First District.
    May 9, 1977.
    William E. Scheu, Ulmer, Murchison, Ashby & Ball, Jacksonville, for appellant.
    William A. MacGuire, Mathews, Osborne, Ehrlich, McNatt, Gobelman & Cobb, Jacksonville, for appellee.
   BOYER, Chief Judge.

By this interlocutory appeal, we are called upon to determine whether appellant, a national banking association, waived by its actions the privileges afforded to it by the Federal Venue Statute concerning actions against national banks. See 12 U.S.C. § 94.

In 1973, appellee and her husband obtained an automobile loan from appellant and pledged the car as security. Appellant, which maintains no other branch or business location, has its principal place of business in Broward County. Although sporadic payments were made over a three year period, appellant finally repossessed the automobile in September of 1976, while the car was parked on a public street in Jacksonville. For purpose of this appeal, appel-lee concedes that the loan was in default at the time of repossession. Appellee initiated an action in Duval County for wrongful deprivation of her personal property and great mental suffering and embarrassment. Appellant’s motion to abate or transfer based upon 12 U.S.C. § 94 was denied by the trial court which relied upon Vann v. First National Bank, 324 So.2d 94 (Fla.3d DCA 1975).

By judicial interpretation, the provisions of 12 U.S.C. § 94, though couched in permissive language, are mandatory. A national bank, however, may waive the privileges afforded by 12 U.S.C. § 94. Thus, in the case sub judice, appellant, having its principal place of business in Bro-ward County, was entitled to defend this action in that county unless it waived its venue privilege.

Appellant acknowledges that Vann v. First National Bank, supra and a subsequent case emanating from this Court are factually indistinguishable from the case sub judice and would be controlling, but argues that this Court should recede, from its earlier opinion. In particular, appellant urges the Court to follow Northside Iron and Metal Co., Inc. v. Dobson & Johnson, Inc., 480 F.2d 798 (5th Cir. 1973), wherein the court specifically stated, though as dicta, “We think it clear that commission of a tort in a foreign district is also an insufficient basis for inferring waiver of the venue privilege.” We are aware that the weight of authority is in accord with the Northside decision. Moreover, we are cognizant of the recent opinion of our sister court which agreed with the above-quoted portion of the Northside decision and wherein Judge Nathan, author of the Vann opinion, concluded that the Third District should recede from the Vann opinion.

Notwithstanding the above,'we continue to adhere to our prior position. In at least two previous opinions, the United States Supreme Court has remanded cases involving the same waiver issue involved herein for resolution by the state courts. In considering the waiver issue sub judice, we reaffirm the logic contained in the Vann decision and adhere to our holding in Barnett Bank of Winter Park v. Alford, supra.

In order to facilitate review by the Supreme Court of Florida, which court denied certiorari in Barnett Bank of Winter Park v. Alford, supra, and in order that the matter may be finally settled in Florida for guidance of the bench and bar alike, we certify this opinion as passing upon a question of great public interest.

AFFIRMED.

McCORD and MILLS, JJ., concur.

      . “Actions and proceedings against any association under this chapter may be had in any district or Territorial court of the United States held within the district in which association may be established, or in each State, county, or municipal court in the county or city in which said association is located having jurisdiction in similar cases.”

        . Mercantile National Bank v. Langdeau, 371 U.S. 555, 83 S.Ct. 520, 9 L.Ed.2d 523 (1963).

      . National Bank of North America v. Associates of Obstetrics and Female Surgery, Inc., 425 U.S. 460, 96 S.Ct. 1632, 48 L.Ed.2d 92 (1976).

      . Barnett Bank of Winter Park v. Alford, 332 So.2d 81 (Fla. 1st DCA 1976), cert. den., 339 So.2d 1167 (Fla.1976).

      . Northside Iron & Metal Co., Inc. v. Dobson & Johnson, Inc., at p. 800.

      . See Annotation at 1 ALR 3d 904 et seq.

      . Exchange Nat’l. Bank of Chicago v. R. P. P., Inc., 341 So.2d 787 (Fla.3d DCA 1977).

      . Michigan National Bank v. Robertson, 372 U.S. 591, 83 S.Ct. 914, 9 L.Ed.2d 961 (1963); National Bank of North America v. Associates of Obstetrics and Female Surgery, Inc., supra.


text:
    James S. ROBERTS, Appellant, v. The STATE of Florida, Appellee.
    No. 76-732.
    District Court of Appeal of Florida, Third District.
    May 10, 1977.

      Bennett H. Brummer, Public Defender, and Julian S. Mack, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen., for appel-lee.
    Before HENDRY, C. J., PEARSON, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The appellant was found guilty by a jury of the crime set forth in Section 893.13, Florida Statutes (1975), which prohibits, except as to authorized persons, the selling, delivery or possession with intent to sell of a controlled substance. On this appeal from judgment and sentence, the appellant contends that the trial court erred in admitting into evidence a statement by the purchaser of the heroin that the defendant offered to sell him more heroin. Appellant was found guilty on three counts for three separate transactions. It is appellant’s contention that the evidence was of a collateral crime and was not admissible under Williams v. State, 110 So.2d 654 (Fla.1959). Inasmuch as the defendant was charged on each count not only with a complete sale but also with possession with intent to sell, as is permitted by Fla.R.Crim.P. 3.140(k)(5), the admitted evidence was material to the charge for which the defendant was tried.

Affirmed.


text:
    Crezencia GERRARD, Appellant, v. The STATE of Florida, Appellee.
    No. 76-849.
    District Court of Appeal of Florida, Third District.
    May 10, 1977.

      Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., and BARKDULL and NATHAN, JJ.
   PER CURIAM.

This is an appeal by the defendant, Crez-encia Gerrard, from a conviction of four counts of breaking and entering, two counts of grand larceny and one count of petit larceny, and sentence to ten years in the state penitentiary to be followed by five years probation. The conviction and sentence were entered after a jury trial.

The record reflects that as Gerrard and her three year old daughter were leaving an apartment building, a police officer stopped her for field investigation because she matched the description of a female who had committed several recent burglaries. Two more officers arrived on the scene and requested Gerrard to come to the police station for fingerprinting. She was advised that she had the choice to go or not, and she chose to go voluntarily. At the station, after being advised that she did not have to permit the police to fingerprint her, she signed a waiver form and allowed herself to be fingerprinted. She was then taken home. Later that same day, Gerrard was arrested at her residence based on comparisons between her fingerprints and latent prints found at the burglary scenes. She was charged with eight counts of breaking and entering, grand larceny and petit larceny.

During the trial, defense counsel made an oral motion to suppress the set of fingerprints taken at the police station on the ground that it was illegally obtained without a warrant, and in violation of the defendant’s right to be free from unreasonable searches and seizures. Testimony on the motion was heard out of the presence of the jury, at the conclusion of which, the court made a finding that Gerrard voluntarily submitted herself to being fingerprinted, stating:

“All right. I’m going to deny the motion.
I’m satisfied that the consent was, in fact, that, a consent, and that it was freely and voluntarily given.
I’m satisfied that the advice that was given while it wasn’t elaborate was adequate and I’ll deny the motion to suppress as a motion to suppress.
Are there any other objections to the introduction of the fingerprints?” Defense counsel: “No, Judge.”

In our opinion, the trial court’s ruling was amply supported by the uncontro-verted testimony in the record. The only evidence before the court on the issue of consent was the testimony of two police officers and the waiver form signed by Ger-rard. That evidence established that Ger-rard voluntarily agreed to go to the station, even though one of the officers told her that she did not have to go; and that once there, she voluntarily consented to the taking of the fingerprints.

The determination of the volun-tariness of the consent given by the defendant is one of fact and is primarily a question for the trial judge, whose determination must be accepted on appeal unless clearly erroneous. See James v. State, 223 So.2d 52 (Fla. 4th DCA 1969). As stated in a concurring opinion in Rodriguez v. State, 189 So.2d 656, 660 (Fla. 3d DCA 1966), the trial court’s ruling on a motion to suppress comes to the appellate court with a presumption of correctness and, in testing the accuracy of the trial court’s conclusions, the appellate court should interpret the evidence and all reasonable inferences and deductions capable of being drawn therefrom in a light most favorable to sustain those conclusions.

Affirmed.


text:
    PLAZA DEL PRADO CONDOMINIUM ASSOCIATION, INC., Appellant, v. Harry RICHMAN and Irene Richman, his wife, Appellees.
    No. 76-979.
    District Court of Appeal of Florida, Third District.
    May 10, 1977.
    Weissenborn, Burr & Hyman, Miami, for appellant.
    Frates, Floyd, Pearson, Stewart, Richman & Greer and Bruce A. Christensen, Miami, for appellees.
    Before BARKDULL, HAVERFIELD and HUBBART, JJ.
   PER CURIAM.

Plaintiff-appellant condominium association seeks review of a final judgment in favor of defendant-appellee unit owners in an action for mandatory injunction to compel defendants to comply with the rules of the association and remove their non-conforming terrace railings.

Plaza Del Prado Condominium Association, Inc. filed a complaint for mandatory injunction praying that Harry and Irene Richman, owners of unit 1604 in Tower 3 South, be required to remove the present railings from their terrace and restore the terrace to its original condition. Plaintiff alleged that contrary to the by-laws of the association defendants, without the permission of 51% of the members, installed terrace railings which differ in both color and material from the original railings thereby altering the uniformity of the building’s exterior. The cause was tried non-jury and the testimony reflected that at the time defendants purchased their unit they were granted permission by the sale representative and his supervisor to make the change in the terrace railings. The owner/developer testified that the supervisor had the authority to and did approve changes from time to time. The record also reflects that defendant's brother, who owns the unit directly below them, had previously been granted permission by the developer/owner to make the identical changes to his terrace railings. Further, other unit owners were also permitted to make changes to their terrace railings with the permission of the owner/developer or the association. Last, more than one year had elapsed after the changes had been made before plaintiff association notified defendants that they were in violation of the condominium bylaws and demanded that the original railings be restored.

Based upon this evidence, plaintiff is es-topped from claiming any lack of compliance with the by-laws. See Quality Shell Homes & Supply Company v. Roley, 186 So.2d 837 (Fla.1st DCA 1966); Phoenix Insurance Company v. McQueen, 286 So.2d 570, 572 (Fla.1st DCA 1974). In addition, plaintiff conceded that some of the terraces had been changed with the permission of the owner/developer and/or the association and, therefore, the exterior appearance of the building is not uniform. Under the circumstances, we also point out that plaintiff was under a duty to assert itself sooner than one year after the defendants’ alleged violation of the by-laws.

Based on the evidence presented, we cannot say that the trial judge erred in entering final judgment for the defendants. See, e. g. Lamb v. Dade County, 159 So.2d 477 (Fla.3d DCA 1964).

Affirmed.


text:
    Thornton LEWIS, Individually and as father and next friend of Jeffrey Lewis, a minor, Appellant, v. ASSOCIATED MEDICAL INSTITUTIONS, INC., d/b/a Hialeah Hospital, a Florida Corporation, Appellee.
    No. 76-1061.
    District Court of Appeal of Florida, Third District.
    May 10, 1977.

      Marlow, Mitzel, Ortmayer & Shofi, Greene & Cooper, Miami, for appellant.
    Thornton, Dougherty & Conroy, Sam Daniels, Miami, for appellee.
    Before PEARSON, HAVERFIELD and HUBBART, JJ.
   PEARSON, Judge.

The appellant sued for personal injuries claimed to have been incurred by his minor son, who contracted serum hepatitis after having been furnished blood by the defendant hospital. The blood was furnished on dates between May 22, 1969, and June 23, 1969. The depositions on file establish without controversy that the parents of the minor discovered that he had contracted serum hepatitis on August 24, 1969. Suit was filed on June 27, 1973, more than three years from discovery.

Section 672.2-316(5), Florida Statutes (1973), which became effective June 24, 1969, provided:

“(5) The procurement,' processing, storage, distribution, or use of whole blood, plasma, blood products, and blood derivatives for the purpose of injecting or transfusing the same, or any of them, into the human body for any purpose whatsoever is declared to be the rendering of a service by any person participating therein and does not constitute a sale, whether or not any consideration is given therefor and the implied warranties of merchantability and fitness for a particular purpose shall not be applicable as to a defect that cannot be detected or removed by reasonable use of scientific procedures or techniques.”

The trial judge entered a summary final judgment for the hospital. On this appeal, two reasons for the trial court’s determination that the hospital was entitled to a judgment as a matter of law are presented by the hospital and argued by the plaintiff. The first is that the trial judge erroneously applied the three year statute of limitations, Section 95.11(5)(e), Florida Statutes (1973), rather than the four year provision of the statute of limitations, Section 95.-11(4), Florida Statutes (1973). The second is that the action is barred by Section 672.-2-316(5), above quoted. Inasmuch as we hold that the trial court correctly held that the action is barred by the above statute, we do not discuss the statute of limitations point.

The Supreme Court of Florida determined in Rostocki v. Southwest Florida Blood Bank, Inc., 276 So.2d 475 (Fla.1973), that the material date in determining the applicability of the above-quoted section, which is relied upon by the hospital, is the time the “cause of action arose.” Plaintiff’s argument that the proper date for the applicability of the statute should be the time of the commission of the tortious act, see Williamson v. Memorial Hospital of Bay County, 307 So.2d 199 (Fla. 1st DCA 1975); and Mercy Hospital, Inc. v. Benitez, 257 So.2d 51 (Fla. 3d DCA 1972), is, therefore, without effect. In the recent case of AB CTC v. Morejon, 324 So.2d 625 (Fla.1975), the Supreme Court of Florida held that a cause of action does not accrue until the breach of warranty in the form of a defective product is, or should be, discovered.

Affirmed.


text:
    Ruth WALTERS, Appellant, v. Alfred E. MERHIGE et al., Appellees. Ruth WALTERS, Appellant, v. ESTATE of James J. ABRAMS, Appellee.
    Nos. 76-1184, 76-1227.
    District Court of Appeal of Florida, Third District.
    May 10, 1977.
    High, Stack, Davis & Lazenby and Alan R. Dakan, Miami, for appellant.
    Beckerman & Beckerman, Adams, George, Lee & Schulte, Miami, for appellee.
    Before HENDRY, C. J., and BARKDULL and NATHAN, JJ.
   PER CURIAM.

Affirmed. Peoples v. Corbett, 117 Fla. 213, 157 So. 510 (1934); Hill v. Morris, 85 So.2d 847 (Fla.1956); Robbins v. Prudential Life Insurance Company of America, 168 F.Supp. 668 (N.D.Fla.1958); In re Estate of Nunnelley, 343 So.2d 657 (Fla. 2nd D.C.A. 1977); Section 731.31, Florida Statutes (1973).


text:
    ALLSTATE INSURANCE COMPANY, Appellant, v. Marcia FULTON, Appellee.
    No. 77-37.
    District Court of Appeal of Florida, Third District.
    May 10, 1977.

      McCormick, Bedford & Backmeyer, Miami, for appellant.
    James E. Miggins, Gus Efthimiou, Jr., Miami, for appellee.
    Before HENDRY, C. J., PEARSON, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

This is an interlocutory appeal from a partial summary judgment construing the terms of an insurance policy and holding that there was coverage under a policy issued by the defendant Allstate Insurance Company. There is no dispute as to the facts and the question is whether or not the plaintiff was entitled to a partial summary judgment as a matter of law.

The defendant issued its insurance policy to Michael G. Fulton, who was the husband of Marcia H. Fulton, the plaintiff here. The policy was a homeowner’s policy covering losses by burglary or theft. After the filing of suit and an answer denying coverage, the defendant filed a request for admissions. The plaintiff failed to answer the request for admissions and, therefore, admitted the request. Fla.R.Civ.P. 1.370. Two of the admissions which stand upon this record are that (1) the plaintiff is not the person identified as the named insured on the declarations page of the contract, and (2) that on the date of the loss, the plaintiff was not a resident of the household of the named insured, Michael Fulton. It affirmatively appears from the policy attached to the complaint that a wife is not an insured unless she is a resident of the named insured’s household. It, therefore, appears as a matter of law that the property of the spouse, who was not a resident in the named insured’s household, was not covered at the time of the loss. The trial judge in his order suggested as follows:

“1. That MICHAEL G. FULTON was the named insured under the policy of insurance sued upon by MARCIA H. FULTON.
“2. That on the date of the loss the marriage between MARCIA H. FULTON and MICHAEL G. FULTON had not, as yet, been legally terminated by decree of Court.”

The fact that the policy was issued when the parties were living together does not provide coverage to a wife who is not a resident of the covered premises. In the instant case, it further appears without controversy that the property was not located at the residence.

The wife’s argument that because she was an insured at the time of the issuance of the policy, she was, therefore, covered under the portion of the policy providing for temporary residence, simply cannot be a reason for coverage inasmuch as once she ceased to be a resident spouse “of the Named Insured’s household,” she ceased to be an insured. See Ringenberger v. General Accident Fire and Life Assurance Corporation, 214 So.2d 376 (Fla. 4th DCA 1968); General Accident Fire and Life Assurance Corporation v. Liberty Mutual Insurance Company, 260 So.2d 249 (Fla. 4th DCA 1972); and Fernandez v. United States Fidelity and Guaranty Company, 308 So.2d 49 (Fla. 3d DCA 1975).

Accordingly, the partial summary judgment appealed is reversed and the cause is remanded for further proceedings in accordance with the views herein expressed.

Reversed and remanded.

      . “DEFINITIONS
      (Applicable tb Sections as Indicated)
      Applicable to All Sections of the Policy When used in this policy the following definitions apply:
      1. ‘insured’ means
      (a) the Named Insured stated in the Declarations of this policy;
      (b) if residents of the Named Insured’s household, his spouse, the relatives of either, and any other person under the age of twenty-one in the care of any Insured; and .
      2. ‘insured premises’ means
      (a) the residence premises described on the Declaration Page of this policy; and . . . ”


text:
    STATE of Florida, Appellant, v. Margaret Louise SNOWDEN, Appellee.
    No. BB-435.
    District Court of Appeal of Florida, First District.
    May 11, 1977.

      Robert L. Shevin, Atty. Gen., Donald K. Rudser, Asst. Atty. Gen., for appellant.
    Miriam M. Ptomey, Pensacola, for appel-lee.
   BOYER, Chief Judge.

The State here appeals an order granting a defendant’s motion to dismiss filed pursuant to Fla.R.Crim.P. 3.190.

The information charged that the defendant, appellee here, “did, by her act, procurement and culpable negligence, inflict upon Wendy Mozell Snowden wounds and injuries which resulted in the death of said Wendy Mozell Snowden, a human being, by dropping the child to the floor causing its death, in violation of Florida Statute 782.-07.”

The defendant’s motion to dismiss alleged, and the trial judge in the order here appealed found, that the State had no proof of the corpus delicti of the criminal offense of manslaughter.

The facts are not in dispute. It is the sufficiency of the facts and their application which gives rise to the issues now raised.

We elect to approach resolution of this case by a multistep process, first determining whether the undisputed facts which were before the trial judge when he entered the order of dismissal were sufficient under the law “tending to prove” the corpus delicti of manslaughter without reference to statements made by the defendant.

Excluding those statements the record reveals, without contradiction, that on the afternoon of Monday, November 11, 1975, the defendant was in her home with her two-month-old illegitimate child, Wendy. Sometime in excess of one hour thereafter defendant asked her neighbor Ms. Caudle if defendant could borrow Ms. Caudle’s car and if Ms. Caudle would watch defendant’s other child Becky. Ms. Caudle inquired about Wendy and was told that defendant’s cousin had her. Ms. Caudle’s car broke down about a half a block away and defendant then borrowed a car from one Carl. Defendant’s cousin did not in fact have Wendy and a careful search of defendant’s residence and surroundings failed to reveal any signs of the two-month-old child.

In order to establish the corpus delicti in a homicide case it is necessary to prove the fact of death, the criminal agency of another person as the cause thereof and the identity of the deceased. However, in order to avoid dismissal upon appropriate motion pursuant to the rule it is not necessary that the proof then be beyond a reasonable doubt, it being sufficient if prima facie proof of the corpus delicti is made.

Corpus delicti is a latin phrase literally meaning “the body of the crime” and the phrase is generally used in legal writings to mean the elements legally necessary to show that a crime has been committed. The corpus delicti may be proved by circumstantial evidence.

It therefore becomes readily apparent that the facts above recited, standing alone, do not prima facie establish a corpus delicti of manslaughter. Accordingly, we must determine whether the statements of the accused should properly have been considered by the trial judge in passing on the motion to dismiss.

In Jefferson v. State, supra, the Supreme Court of Florida said:

“In order to establish the corpus delicti in a homicide case, it is necessary to prove three elements: first, the fact of death; second, the criminal agency of another person as the cause thereof; and third, the identity of the deceased person.” [citations omitted]
“In dealing with cases of homicide involving an issue of corpus delicti, it is necessary to remember that the term corpus delicti encompasses a dual aspect. On the one hand, there is the requirement that there be sufficient evidence introduced by the State tending to prove the three essential elements of corpus delicti before the jury will be permitted to consider any admission or confession of the defendant. When the term is used in this sense there is no requirement for proof of the elements beyond a reasonable doubt. It is enough if the evidence tends to show that the crime was committed, the only question being whether the evidence of corpus delicti is prima facie sufficient to authorize the admission or the confession, [citations omitted] * * *
“The second requirement regarding corpus delicti is that at the conclusion of all the evidence in a particular case there must be proof beyond a reasonable doubt of the essential elements of the corpus delicti. Lee v. State [96 Fla. 59, 117 So. 699] supra; Hulst v. State [123 Fla. 315, 166 So. 828] supra. This, of course, is a question for the jury upon proper instructions from the trial judge, and in making this determination they are permitted to consider all the evidence in the ease the only limitation being that a confession or admission standing alone is insufficient to prove the corpus delicti. 13 Fla.Jur., Evidence, Section 430 and cases cited there.”

In a later case, and in a different context, the Supreme Court stated:

“ * * * while the corpus delicti cannot be established by a confession alone, confessions and admissions may be considered in connection with other evidence to establish it * * *.”

In a more recent case involving an alleged manslaughter the Supreme Court of Florida, quashing an opinion of this Court, said:

“ * * * we reaffirm that circumstantial evidence may be presented prior to admission of a defendant’s confession in order to establish the occurrence of the necessary elements of the alleged crime. We also reject the implication in the District Court’s opinion that identification of the defendant as the guilty party is a necessary predicate for the admission of a confession.’’

It is preferable, the same opinion states, that the occurrence of a crime be established before any evidence is admitted to show the identity of the guilty party. Holding that the corpus delicti of the crime may be proved by circumstantial evidence as a condition precedent to introduction of a confession the author of the same opinion said:

“ * * * We are well aware that varying interpretations of circumstantial evidence are always possible in a case which involves no eye witnesses. Circumstantial evidence, by its very nature, is not free from alternate interpretations. The state is not obligated to rebut conclusively every possible variation, however, or to explain every possible construction in a way which is consistent only with the allegations against the defendant. Were those requirements placed on the state for these purposes, circumstantial evidence would always be inadequate to establish a preliminary showing of the necessary elements of a crime.”

Sub judice, defendant returned after having been absent in Carl’s car for about an hour and a half and told Ms. Caudle that she had thrown Wendy up in the air, dropped her, and determined that she was dead. She undertook to explain to Ms. Cau-dle what she had done with the body but Ms. Caudle exclaimed “Don’t tell me”. However, about three days later defendant told Ms. Caudle that she cut the baby up and threw it in the bay.

If we apply literally the teachings of Hodges v. State, supra, that while the corpus delicti cannot be established by a confession alone, confessions and admissions may be considered in connection with other evidence to establish it, then, even were the statements of defendant to Ms. Caudle to be considered as admissions or confessions, they would nevertheless be properly considered in connection with the other evidence of the unexplained disappearance of a two-month-old baby to establish corpus delicti.

However, we need not and do not treat the statements of the defendant to Ms. Caudle as either admissions or confessions as those terms are used in the cases above mentioned. Although under some circumstances a confession may constitute an admission and an admission may constitute a confession and a res gestae statement may constitute either or both, the terms are not synonymous. The res ges-tae may include statements, acts, and conduct of the accused whether exculpatory or incriminatory in character or effect and notwithstanding the fact that they may not be admissible as confessions or admissions. The rules relating to res gestae on the one hand and to admissions and confessions on the other are separate and distinct; a res gestae statement is admissible notwithstanding the fact that it may not be admissible as a confession or an admission. The term “res gestae” means literally the thing done, and it may be defined in a general

way as the circumstances, facts and declarations which grow out of the main fact and serve to illustrate its character, and which are so spontaneous and contemporaneous with the main fact as to exclude the idea of deliberation or fabrication. Statements admitted into evidence as part of the res gestae constitute original evidence. Res gestae is not confined to the act charged but includes acts, statements, occurrences and circumstances which are substantially contemporaneous with the main fact and so closely connected with it as to form a part or a continuation of the main transaction and to illustrate its character. In determining what is admissible as part of the res gestae no distinction is usually drawn between statements and acts. No precise measure of time or distance from the main occurrence can be arbitrarily applied. The word “contemporaneous” as used in reference to res gestae is not to be taken in its strict meaning and it is not necessary that the acts or declarations should be precisely concurrent in point of time with the main facts, nor is time the only criterion for determining whether a thing said or done is part of a given transaction. The ultimate test is spontaneity and a logical relation to the main event, and where an act or declaration springs out of the transaction while the parties are still laboring under the excitement and strain of the circumstances and at a time so near it as to preclude the idea of deliberation and fabrication, it is to be regarded as contemporaneous.

Treating the initial statements of the defendant as res gestae it is apparent that such statements are material and, being original evidence, should have been considered in determining whether or not the elements of the corpus delicti were sufficiently proved. So considered, there was prima facie proof of the corpus delicti. It necessarily follows therefore that ' the learned trial judge erred in granting the defendant’s motion to dismiss.

REVERSED.

MILLS and McCORD, JJ., concur.

      . There was no procedural issue raised in this case as to which party has the burden of proof when proceeding under the rule on a motion to dismiss.

      . The phrase “tending to prove” appears to have been considered as being synonymous with “prima facie”. Please see Gray v. State, 152 So.2d 485 (Fla.3d DCA 1962); Hodges v. State, 176 So.2d 91 (Fla.1965); and LaSalle v. State, 187 So.2d 407 (Fla.3d DCA 1963).

      . Jefferson v. State, 128 So.2d 132 (Fla.1961).

      . Jefferson v. State, supra.

        .State v. Allen, 335 So.2d 823 (Fla.1976).

      . 128 So.2d at page 135.

      . Hodges v. State, 176 So.2d 91 (Fla.1965) at page 92.

      . State v. Allen, supra.

      . 335 So.2d at page 825. Emphasis added.

      . 335 So.2d at p. 826.

      . For definition of confession and admission see 23 C.J.S. Criminal Law § 816 and cases therein cited.

      . 22A C.J.S. Criminal Law § 667 and cases there cited.

      . Ibid.

      . 22A C.J.S. Criminal Law § 662(1).

      . 22A C.J.S. Criminal Law § 662(1) and cases there cited.

      . Although disagreeing as to the effect, both parties in their briefs and in oral argument before the court appeared to have agreed that the defendant’s statements were part of the res gestae.


text:
    Earl CAMPBELL, Appellant, v. Lynn M. LoPUCKI, Appellee.
    No. BB-498.
    District Court of Appeal of Florida, First District.
    May 11, 1977.

      Peter Langley, III, Yankeetown, for appellant.
    John M. Green, Jr., Green, Simmons, Green & Hightower, Ocala, for appellee.
   BOYER, Chief Judge.

Appellant filed this appeal after his libel complaint was dismissed with prejudice by the trial judge. The issue is whether the allegations contained in a complaint drafted and signed by appellee, an attorney, are privileged.

After James Lee Donaldson was killed, apparently as a result of an automobile accident in Levy County, appellee filed suit for wrongful death in behalf of Donaldson’s parents against James Owen McMullen and appellant. In the second count of the complaint and a subsequently filed amended complaint, it was alleged that Donaldson was murdered by McMullen and appellant who (it was alleged) either struck or pushed Donaldson from the vehicle. Count III alleged that McMullen and appellant conspired with a third party to buy large amounts of insurance on Donaldson’s life with the intention of staging his death and collecting the insurance proceeds. In a newspaper article appearing in the Gaines-ville Sun, it was reported that appellee agreed that the wording of the suit was intended to accuse McMullen and appellant of murder. By deposition, Donaldson’s parents stated, and appellee agreed, that Mr. and Mrs. Donaldson did not draft the complaint and did not themselves make the statements found in the complaint. Appel-lee took sole responsibility for all of the allegations contained in the complaint and amended complaint.

In dismissing appellant’s libel complaint, the trial court ruled that the allegations of murder, homicide, conspiracy, and other wrongdoings were material, relevant, and pertinent to the wrongful death action filed by appellee and that consequently such allegations were absolutely privileged.

The rule in Florida regarding defamatory words published in the course of a judicial proceeding was announced in Myers v. Hodges, 53 Fla. 197, 44 So. 357 (Fla.1907). From that case, we learn that defamatory words, published by parties, counsel, or witnesses in the due course of a judicial proceeding, are absolutely privileged when they are connected with or relevant or material to the cause at hand. If the defamatory words are not relevant, then to be actionable, they must not only be irrelevant, but also malicious and spoken or written without a belief in their relevance or without reasonable or probable cause so to believe. (Myers v. Hodges, supra, at 362).

Appellant seeks to distinguish the Myers case and its progeny on the basis that in each of those cases, the pleadings containing the defamatory allegations were signed by the complaining parties whereas in the case sub judice, the attorney (appel-lee), not the client, was the defaming party. Such a distinction is ill-founded. Under Fla.R.Civ.P. 1.030(b), an attorney must sign his pleadings or motions. No such requirement is made of a party. Thus, the fact that a pleading is not signed by a client is immaterial to an action for libel. Nor is it pertinent to our discussion that the facts alleged in the complaint were not known by the party. In most, if not all, cases an attorney, after initially consulting with his client, will uncover numerous facts which were theretofore unknown to the client. Moreover, we have previously held that an attorney’s signature on a pleading does not and usually cannot enforce the truthfulness of the facts cited. (Metcalf v. Langston, 296 So.2d 81 (Fla. 1st DCA 1974)).

In sum, we agree with the trial court’s holding that the allegations of murder, homicide, conspiracy, and other wrongdoings were relevant to the previous action. As noted by the Supreme Court in the Myers case, “In determining what is pertinent, however, much latitude must be allowed to the judgment and discretion of those who maintain a cause in court. Much allowance should be made for the earnest though mistaken zeal of a litigant who seeks to address his wrong and for the ardent and excited feelings of the fearless, conscientious lawyer, who must necessarily make his client’s cause his own.” (Myers v. Hodges, supra, 44 So. at 362).

Accordingly, the order of dismissal with prejudice here appealed is

AFFIRMED.

MILLS, J., and DURDEN, J. ROBERT, Associate Judge, concur.


author: OTT, Judge.

text:
    STATE of Florida, Appellant, v. Mark BALE, Appellee.
    No. 76-1243.
    District Court of Appeal of Florida, Second District.
    May 11, 1977.

      Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellant.
    Jack 0. Johnson, Public Defender and Robert H. Grizzard, II, Asst. Public Defender, Bartow, for appellee.
   OTT, Judge.

Appellee was charged by information with aggravated assault. The information stated that appellee “. . . unlawfully did assault [the victim] with a deadly weapon, to wit: a gun . . . .”

The case went to trial before a jury. The judge declined to permit the state to introduce a proffered gun into evidence because of the failure to sufficiently connect that gun with the appellee. At this point the appellee sought to change his plea from not guilty to guilty of the “lesser” offense of aggravated assault with a deadly weapon, thereby seeking to avoid the three-year minimum sentence mandated by a conviction under Section 775.087, Florida Statutes (1975). See Sowell v. State, 342 So.2d 969 (Fla.1977) (Opinion filed February 17,1977). In an attempt to accomplish this, the appel-lee’s attorney asked that the terminology “to wit: a gun” be deleted from the information. The court recognized that it could not delete anything from the information, but accepted the plea to the lesser offense, stating that there was insufficient evidence to support a finding that a “firearm” was used in the commission of the offense within the definition of firearm set forth in Section 790.001(6), Florida Statutes (1975). Thus, the court reasoned that under the circumstances it was not obligated to impose the mandatory three-year sentence.

Appellant contends that upon the plea of guilty to the information the court had no alternative to sentencing the appellee to at least three years. In response, the appellee suggests that the use of the word “gun” in the information was insufficient in the first place to allege an offense under Section 775.087. This argument could cause concern if the bare allegation of assault with a gun was all that was contained. In this case, however, the information charged the defendant with use of a “deadly weapon, to wit: a gun”, which we believe to be sufficient to charge an offense under Section 775.087.

Nevertheless, and in spite of the fact that the trial court did not follow normally accepted procedures, we affirm. We do not believe that it is always essential that a firearm be introduced into evidence in order to permit the jury to conclude that a firearm was used in connection with an offense. However, we note that since the victim’s testimony concerning the appellee’s possession of a firearm was equivocal, the court asked the state if it had further evidence to present on establishing a firearm and connecting it with the appellee to which the state attorney responded in the negative.

Had the court directed a verdict as to this part of the charge, after the state rested, the state could not reach this action of the trial court by appeal. See Sections 924.07 and 924.071, Florida Statutes (1975); State v. Brown, 330 So.2d 535 (Fla. 1st DCA 1976). Therefore, we treat the trial judge’s action as equivalent to prematurely directing a verdict on the issue of whether the crime of aggravated assault was committed with a “firearm.”

Under the circumstances, the judgment and sentence are AFFIRMED.

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


text:
    Paul LYNCH, a minor, by his mother and next friend, Jacqueline Lynch, and Jacqueline Lynch, Individually, Appellants, v. Rodney STULL and Marley M. Stull, doing business as Doc’s Auto Parts and Allstate Insurance Company, Appellees.
    No. 76-1685.
    District Court of Appeal of Florida, Second District.
    May 11, 1977.
    Julian L. Miller of Miller & Anderson, St. Petersburg, for appellants.
    Mark E. Hungate and James C. Hadaway of Fowler, White, Gillen, Boggs, Villareal & Banker, St. Petersburg, for appellees.
   OTT, Judge.

The sole issue is whether the court below was correct as a matter of law in directing a verdict for the appellees/defendants. We hold that the court erred and accordingly reverse.

The minor plaintiff (then 10 years old) and two twelve year olds were playing with a two-wheeled boat trailer. They had placed a sheet of plywood over the trailer frame and would hitch the trailer to a bicycle. One would pedal while the other two would ride. The riders had no rails or anything else to hang on to.

Rodney Stull was driving by in an automobile. He responded to a call from the boys to hitch the trailer to his automobile and give them a ride. The boys,jumped on. Stull proceeded at a slow speed down a road which was not paved and which contained numerous stones and ruts or potholes. One of the trailer wheels hit a deep rut. The plaintiff was thrown from the trailer. His foot was caught between the trailer wheel and the road and severely injured before the defendant could bring the automobile (and trailer) to a stop.

Reasonable minds might differ as to whether or not the action of Rodney Stull was negligent under the circumstances. The plaintiff is entitled to have his evidence weighed and evaluated by a jury under appropriate instructions of the court. Hartnett v. Fowler, 94 So.2d 724 (Fla.1957); Lovings v. Seaboard Coastline Railroad Co., 340 So.2d 1279 (Fla.3d DCA 1977); Mathis v. Lambert, 274 So.2d 601 (Fla.3d DCA 1973).

REVERSED and REMANDED.

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


text:
    Ted CARAGEORGE, Appellant, v. FIDELITY & GUARANTY LIFE INSURANCE COMPANY, Appellee.
    No. BB-460.
    District Court of Appeal of Florida, First District.
    May 13, 1977.
    Roderic G. Magie, Levin, Warfield, Mid-dlebrooks, Graff, Mabie, Rosenbloum & Ma-gie, P.A., Pensacola, for appellant.
    Donald H. Partington, Clark, Partington, Hart & Hart, Pensacola, for appellee.
   PER CURIAM.

Appellant’s claim under an employees’ group policy of life insurance, for benefits attending the death of his wife, was rejected by a jury verdict and the trial court’s judgment. The master policy and the employee’s certificate provided that “If a person is not actively at work on the date his insurance would otherwise become effective, the insurance shall not become effective until the date he returns to active work.” Appellant’s wife, the employee, was on leave for extended illness when the policy would otherwise have become effective, and she never returned to active work. The policy therefore never insured appellant’s wife. No error otherwise appears. See Couch v. Conn. Gen. Life Ins. Co., 216 So.2d 72 (Fla. 2d DCA 1968). Contrast Denton v. Conn. Gen. Life Ins. Co., 323 So.2d 17 (Fla. 1st DCA 1975).

AFFIRMED.

MILLS, Acting C. J., and SMITH and ERVIN, JJ., concur.


author: GRIMES, Judge.

text:
    NEWS-PRESS PUBLISHING COMPANY, INC., d/b/a Fort Myers News-Press, Appellant, v. STATE of Florida et al., Appellees.
    No. 76-1108.
    District Court of Appeal of Florida, Second District.
    May 13, 1977.

      Steven Carta of Smith & Carta, Fort Myers, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee State of Flá.
   GRIMES, Judge.

This case involves an attack upon a court order sealing the depositions taken in a criminal case.

Richard Albert Woodrick, Jr. was indicted for first degree murder. In connection with the prosecution of that action, numerous depositions were taken. At some point in time, the court before whom the case was pending ordered that these depositions be sealed from the public. Thereafter, but prior to trial, Woodrick entered a plea of guilty to the crime of second degree murder and received a sentence of fifteen years. On or about the date of sentencing one of appellant’s reporters requested the opportunity to inspect the depositions which had been taken in the proceeding and was informed that the depositions had been sealed by order of the court. The appellant then filed a motion for limited intervention seeking to set aside the order which had sealed the depositions. Following a hearing, the court entered an order granting the motion for limited intervention but denying the motion to set aside the order sealing the depositions. '

At the outset, we note that this is not a case of prior restraint since the court has not sought to prohibit.the press from publishing any information it may have obtained. Nevertheless, the order in question does have the practical effect of making it more difficult for the press to obtain information about the case which it may wish to publish. Thus, the appellant was properly permitted to intervene. While appellant has attacked the order by way of appeal, we treat this appeal as a petition for certiorari.

The only Florida case directly bearing upon the issue before us is Miami Herald Publishing Company v. Collazo, 329 So.2d 333 (Fla. 3d DCA 1976). There, the trial court, at the request of both parties, directed that the terms of settlement of a civil case which had been reported to the court in closed proceedings be sealed from the public. In reversing the order which sealed the judgment containing the details of the settlement, our sister court held that there existed in that case “none of the persuasive or cogent reasons generally required to justify denying the right of the press or public to know what takes place in the courts.”

By virtue of its inherent power to control the conduct of its own proceedings, there is little doubt that under certain circumstances the courts may exclude the public and the press from its proceedings, but such authority must be cautiously exercised. State ex rel. Gore Newspapers Company v. Tyson, 313 So.2d 777 (Fla. 4th DCA 1975). As applied to the instant case, a showing that the‘opening of the depositions might endanger a person’s life could well justify the order entered below. On the other hand, an understandable desire to protect the victim’s family from exposure of the details of what was apparently a heinous crime would not warrant an order which would preclude public access to official court records in the form of these depositions. The press must be counted on to report such facts in a responsible manner. The desirability of press access to criminal proceedings was emphasized in Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966), when the U.S. Supreme Court said:

“. . .A responsible press has always been regarded as the handmaiden of effective judicial administration, especially in the criminal field. Its function in this regard is documented by an impressive record of service over several centuries. The press does not simply publish information about trials but guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism. . . . ”

There must be compelling reasons before some or all of the records of a court proceeding may be sealed. Moreover, these reasons should be specifically set forth by the sealing authority in order that the legality thereof can be reviewed. The basis for closing the records can be sufficiently stated without divulging the information sought to be protected. If the reasons given for sealing the records are deemed to be facially sufficient but their application to the records under consideration is questioned, the reviewing court may always exercise an in camera inspection of the records to see if the reasons given by the sealing authority are borne out.

Generally, in criminal cases the sealing of court records or proceedings is done with a view toward protecting the rights of the defendant to a fair trial. In the posture in which the propriety of the order entered below was argued, these factors no longer existed because the defendant had already pled guilty and had been sentenced. It is noteworthy that neither the state nor the defendant had requested that the depositions be closed. In denying the appellant’s motion to open the depositions, the trial judge observed:

“. . . [T]he court had extremely good and cogent reasons that in its sound judicial discretion felt that more harm would come from the disclosure of the contents of some of these depositions, and could possibly more harm than good could come out of it. And public interest has very great strength, but at the same time, the harm that could come from it would overweigh the good that could come from it. . . .”

The judge’s statement that he had “cogent reasons” for sealing the records obviously fell short of specifically setting forth the reasons why public access to these depositions was being denied. However, the trial judge did not have the benefit of our opinion at the time he made his ruling, and there conceivably could be compelling reasons why these depositions should be sealed. Therefore, we hereby remand this matter to the court below for further consideration of the appellant’s motion in light of our opinion. A copy of the new order on the subject together with the record of any hearing thereon shall be filed with this court in order that we may know whether any further action may be required on our part.

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


text:
    Lantis HARRELL, d/b/a Ocala Raceway, and Mitch Bozeman, d/b/a Ocala Raceway, Appellants, v. Edward MARTIN, Appellee.
    No. AA-346.
    District Court of Appeal of Florida, First District.
    May 17, 1977.
    Andrew G. Pattillo, Jr., Pattillo, MacKay & McKeever, Ocala, for appellants.
    Irwin A. Connelly, Gainesville, for appel-lee.
   PER CURIAM.

This is an appeal from a judgment obtained by the Appellee, Edward Martin, against the Appellants, Lantis Harrell, d/b/a Ocala Raceway, and Mitch Bozeman, d/b/a Ocala Raceway. Mr. Martin received his judgment for injuries incurred at the Ocala Raceway, which was owned and operated by the Appellants. The issue for our determination is whether or not there was sufficient evidence to support the judgment.

The record reveals that Mr. Martin went to the track in the company of two participants for the races to be conducted that evening. When they arrived at the gate in the late afternoon each of the parties purchased a ■ ticket, which gave all of them admission to the pit area. Mr. Martin was not a member of the pit crew. However, he had towed to the raceway a trailer and the car which was to be used by his fellow passengers in the race that evening. The race track officials were not advised one way or the other of Mr. Martin’s role in the races. The car he towed was raced that evening but, as previously indicated, without any assistance from Mr. Martin. He was a spectator at the races but did have the use of the pit area. At the conclusion of the races the Stickneys (who had come to the races with Martin) were in the process of loading their automobile on the trailer when Mr. Martin was injured. There is some indication that the tires had slipped and spun rapidly on the ramp due to their being wet from the dew on the grass. This in turn caused the ramps to “kick back” and against the Appellee who was walking by the area “to buy a Coke”. The plaintiff denied assisting in the loading of the vehicle and stated he had never been near a car being loaded before, although he had seen them being loaded from a distance.

It was the plaintiff’s theory in the trial that the defendants failed to maintain their premises in a reasonably safe condition and that the plaintiff was injured as a result thereof. In particular, it was alleged that the plaintiff, as a paying spectator, should not have been allowed to be in an area where automobiles were being loaded, and that the defendants should have supplied an area other than grass which was wet with dew for the loading of the vehicles.

It was the defendants’ duty to exercise reasonable care for the safety of its patrons. “When one undertakes to render service by furnishing accommodations of a public nature, the law imposes a duty to use proper care, precaution and diligence in providing and maintaining the accommodations in a reasonably safe condition for the purposes to which they are adapted, and are apparently designed to be used.” Elmore v. Sones, 140 So.2d 59 (Fla. 2nd DCA, 1962). Persons operating public places of amusement are not insurors. Elmore v. Sones, supra; Wometco Theatres Corporation v. Rath, 123 So.2d 472 (Fla.3d DCA, 1960). The danger to its patrons must be reasonably foreseeable. Reynolds v. Deep South Sports, Inc., 211 So.2d 37 (Fla. 2d DCA, 1968).

In Smith’s Bakery, Incorporated v. Jernigan, 134 So.2d 519 (Fla. 1st DCA, 1961) this Court was confronted with a situation where a pebble was thrown into the eye of the plaintiff as a result of the defendant’s vehicle being driven on an area which had recently received new gravel. This Court ruled that the incident was not reasonably foreseeable and reversed a judgment for the plaintiff, stating:

“ * * * there can be no recovery for an injury that was not a reasonably foreseeable consequence of his negligence, although according to the decisions from some jurisdictions the particular injury or the manner in which the hazard operated need not have been clearly foreseeable;***"

In Winn-Dixie Montgomery, Inc. v. Petterson, 291 So.2d 666 (Fla. 1st DCA, 1974) this Court states:

“(1) The duty of one who operates a place of business is to exercise ordinary or reasonable care to see that those portions of the premises which persons may be expected to use are reasonably safe. This duty would extend to the approaches to the premises also. * * *”
“(2-4) Liability for negligence in failing to maintain premises in a reasonably safe condition, or in failing to warn of existing dangers, must be predicated on the occupant’s superior knowledge or means of obtaining knowledge concerning the danger. * * *”

Schatz v. 7—Eleven, Inc., 128 So.2d 901 (Fla. 1st DCA, 1961) was a case before this Court wherein we held that a person injured while shopping in a store had no cause of action against the owner of that store as a result of being injured by an automobile driving into the store and striking her. The alleged neglect was the failure to erect a barrier. On the other hand, the Fourth District Court in the case of Johnson v. Hatoum, 239 So.2d 22 (Fla. 4th DCA, 1970) reversed a summary judgment for the defendant on similar allegations, the chief distinction being that the plaintiff was standing in an area on the outside of the premises, picking up food at a take-out stand adjacent to the parking area, and was struck by a car. The Third District Court in the case of Thompson v. Ward Enterprises, 341 So.2d 837 (Fla. 3rd DCA, 1977) reversed a directed verdict for the defendant when a person standing in a designated area in front of a super market, waiting for a delivery truck, was struck by an automobile. Each of these cases presents an interesting discussion on foreseeability.

The case of Warner v. Florida Jai Alai, Inc., 221 So.2d 777 (Fla. 4th DCA, 1969) involved a claim against the operator of a fronton for damages to a patron as a result of being struck by a drunk. It was written there,

“(1,2) The operator of a place of public entertainment owes his invitees the duty to use due care to maintain his premiseá in á reasonably safe condition commensurate with the activities conducted thereon * * *"

It was further stated:

“(3) * * * Where the defendant was thus without knowledge — actual or constructive — of the risk posed by the intoxicated individual, the defendant cannot be charged with negligence in failing to supervise or otherwise control him. The significance of actual or constructive knowledge of the specific risk — as distinguished from knowledge of a general or potential risk — which eventuates in harm is shown by a review of the Florida cases dealing with a proprietor’s duty to protect his patrons from acts of other patrons. In those cases where liability was imposed or recognized, actual or constructive knowledge of the particular risk was present. Central Theatres, Inc. v. Wilkinson, supra [154 Fla. 589, 18 So.2d 755]; Nance v. Ball, Fla.App.1961, 134 So.2d 35; Sparks v. Ober, supra [Fla.App., 192 So.2d 81]. Conversely, in those cases where liability was not imposed, knowledge of the particular risk was not present. Wometco Theatres Corporation v. Rath, supra; Elmore v. Sones, supra; Reynolds v. Deep South Sports, Inc., Fla.App.1968, 211 So.2d 37. * * *”

These statements must be construed, however, in the light of the language expressed in the Florida Supreme Court case of Pinkerton-Hays Lumber Company v. Pope, 127 So.2d 441 (Fla.S.Ct., 1961) which indicates the foreseeability test should be considered objectively, and not subjectively.

Applying the above principles to this case, we fail to find a legal basis for recovery against the defendants. No activities of the defendants directly caused injury to the plaintiff. There is no evidence that the defendants created the condition in any way. It is patently clear that the damage was caused as a result of a third party’s action, that is, the unfortunate accident which occurred when the Stickneys were loading their vehicle. There is no evidence in this record to substantiate a finding that the defendants knew or had reason to believe that this accident was the type that one would expect to occur and should take precautions against. There was no evidence that the defendants possessed any superior knowledge of the danger over the plaintiff to the extent that there was a duty to warn him of potential injury from his own comrades.

The proximate cause of the plaintiff’s injury was by no act of the defendants and, therefore, the plaintiff cannot recover. Foley v. Hialeah Race Course, 53 So.2d 771 (Fla.S.Ct., 1951).

Appellants urge other errors, but since the foregoing disposes of the entire action, they need not be discussed.

The judgment is, therefore, reversed.

RAWLS, Acting C. J., McCORD, J., and McDONALD, PARKER LEE, Associate Judge, concur.


author: RAWLS, Judge.

text:
    In the Interest of J. W. H. J. H. N., and T. A. B., children, Appellants, v. STATE of Florida, Appellee.
    No. EE-72.
    District Court of Appeal of Florida, First District.
    May 18, 1977.
    Michael J. Minerva, Public Defender, and David J. Busch, Asst. Public Defender, for appellants.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for appellee.
   RAWLS, Judge.

The primary issue involved in this appeal is whether the trial court erred in denying appellant-juveniles’ motions for discharge. We are here confronted with whether the legislative intent of the word “shall” in Section 39.03(2), Florida Statutes, is mandatory or directory.

J.W.H. and T.A.B. were arrested on April 17, 1976, and J.H.N. was arrested on April 27, 1976. The complaints were received by the Division of Youth Services intake officer on August 2, 1976, and petitions were filed in the Circuit Court of Wakulla County on August 19 and August 20, 1976.

On October 5, 1976, appellants filed motions for discharge alleging, primarily, that they had been denied their rights to speedy trial. The trial court denied their motions for discharge, and subsequently appellants entered pleas of nolo contendere specifically reserving their right to appeal. The trial court adjudged appellants to be delinquent and placed them on probation under the supervision of the Division of Youth Services for an indefinite period.

Appellants contend that when Section 39.03(2), Florida Statutes, is read in pari materia with Fla.R.Juv.P. 8.120, they were entitled, upon the facts of this case, to be discharged from Division of Youth Services supervision. We agree and reverse.

Section 39.03(2), Florida Statutes, provides, in pertinent part, that “the person taking the child into custody shall, within three days, make a full written report to the appropriate officer, stating the facts by reason of which the child was taken into custody” (emphasis supplied). Florida Rule of Juvenile Procedure 8.120 provides that a juvenile case must be brought to trial within 90 days of the day a complaint is filed with the Division of Youth Services intake officer.

The state contends that the three-day requirement as provided in Section 39.03(2), Florida Statutes, is merely a direction in procedure and that a technical violation does not affect any substantial rights of a juvenile.

In the recent Florida Supreme Court opinion of S.R., a child v. State, Fla., 346 So.2d 1018, 1977, the court held that “shall” as contained in Section 39.05(7) is mandatory and thus a petition alleging delinquency must be dismissed with prejudice if it- is not filed within 30 days from the date the complaint was received by the Division of Youth Services intake officer.

Juveniles have certain rights, one of which is speedy trial. In the instant case, appellants were arrested in April, 1976; however, the complaints were not received by the intake officer until August, 1976. We hold that the three-day requirement of Section 39.03(2) is mandatory, and the state cannot circumvent the provisions of that section and the 90-day speedy trial rule (Fla.R.Juv.P. 8.120) by waiting an indefinite period of time before filing a complaint with the Division of Youth Services intake officer. The trial court erred in not granting appellants’ motions for discharge.

REVERSED.

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

      . In State v. Benton, 337 So.2d 797 (Fla.1976), the Supreme Court held that when a juvenile is certified as an adult, the 180-day speedy trial rule (Fla.R.Crim.P. 3.191) runs from the date the juvenile is taken into custody.


author: SCHEB, Judge.

text:
    Alan P. BRONSON, Appellant, v. STATE of Florida, Appellee.
    No. 76-1343.
    District Court Of Appeal of Florida, Second District.
    May 6, 1977.
    Jack O. Johnson, Public Defender, and W. C. McLain, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Judge.

Appellant pled nolo contendere and was adjudicated guilty of robbery. He was sentenced to thirty years in prison with credit for time served awaiting disposition of his case. On appeal the only point which merits discussion concerns refusal of the trial court to disclose certain information from the presentence investigation (PSI) report considered by the trial judge before sentencing.

Presentence investigative disclosure is governed by Fla.R.Crim.P. 3.713, which provides:

(a) The trial judge may disclose any of the contents of the presentence investigation to the parties prior to sentencing. Any information so disclosed to one party shall be disclosed to the opposing party.
(b) The trial judge shall disclose all factual material, including but not limited to the defendant’s education, prior occupation, prior arrests, prior convictions, military service and the like, to the defendant and the State a reasonable time prior to sentencing. If any physical or mental evaluations of the defendant have been made and are to be considered for the purposes of sentencing or release, such reports shall be disclosed to counsel for both parties.
(c) Upon motion of the defendant or the prosecutor or on its own motion, the sentencing Court may order the defendant to submit to a mental or physical examination which would be relevant to the sentencing decision. Copies of such examination or any other examination to be considered for the purpose of sentencing shall be disclosed to counsel for the parties subject to the limitation of Rule 1.713(b).

Here, that portion of the PSI denominated as “factual” was disclosed to the parties pursuant to Subsection (b). Appellant’s counsel suspected some juvenile records on appellant may have been included in the part of the PSI denominated as “confidential.” On this basis, appellant moved for disclosure of the confidential portion of the report. The trial judge denied the motion.

We have reviewed the presentence investigation report as prepared by the Parole and Probation Commission and considered by the trial court prior to sentencing. Some factual information, the disclosure of which is mandated by Subsection (b) of the Rule, was included in the “confidential” portion of that report. Specifically, information pertaining to appellant’s juvenile record, disciplinary actions taken against him by the military, and the mental examinations administered to appellant constituted factual information, the disclosure of which was required.

Accordingly, the judgment of conviction is affirmed, but the sentence is vacated. The case is remanded for resentencing after disclosure to appellant of the factual information herein designated from the presen-tence investigation report.

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