text:
    Burton GOLDBERG, Appellant, v. Joyce GOLDBERG, n/k/a Joyce Goldman, Appellee.
    No. 76-1320.
    District Court of Appeal of Florida, Third District.
    Feb. 8, 1977.

      Herbert A. Warren, Miami, for appellant.
    Fine & Brownstein, Miami, for appellee.
    Before HENDRY, C. J., and PEARSON and HAVERFIELD, JJ.
   PER CURIAM.

Burton Goldberg and Joyce Goldman were formerly husband and wife. Upon the dissolution of their marriage, the final judgment incorporated a written property settlement. Thus, the final judgment provided for the payment of $1,570.25 monthly as alimony for 121 months. In addition, the judgment provided that Burton should pay such additional amounts as Joyce should be required to pay for her separate federal, state and city income taxes incurred by reason of the alimony payments.

The trial judge held an evidentiary hearing upon a motion by Joyce to compel payment of past due alimony. Thereupon, the judge entered the order, here appealed, which provided in material portions as follows:

“2. The Court finds and directs that for each taxable year hereafter, during the term of the Agreement between Joyce Goldman and Burton Goldberg, Mrs. Goldman’s income taxes shall be computed on the basis of her filing joint returns with her husband, and on the basis of her filing a return as a married person filing separately, and the lesser income taxes attributable to alimony under the two computations shall be the tax to be paid by Burton Goldberg.
“3. In computing the amount of tax to be paid by Burton Goldberg, additional taxes caused or incurred by virtue of his prior payment of taxes on alimony shall, in each instance, be included in the computation.
“4. In computing the amounts to be paid on account of income taxes by Mr. Goldberg, the first $10,000.00 of taxable earned personal income, as earned personal income is defined in the Agreement, shall be taxed in the lower bracket, and alimony, together with the remainder of personal income and other income of Mrs. Goldman, shall be taxed in total pro rata in its proper bracket.”

Burton has presented three points. The first urges error upon the ruling that he is required to pay the additional income tax incurred by virtue of his prior payment of taxes on alimony. We hold that no error appears. The agreement clearly contemplates that Joyce is to receive the alimony payments free of any tax thereon. An agreement must be enforced to give effect to the clear intent of the instrument, see Shaw v. Bankers Life Company, 213 So.2d 514 (Fla.3d DCA 1968), unless the provision sought to be enforced is illegal or unenforceable for some other valid reason. See Newsom v. Acacia Mut. Life Ass’n, 102 Fla. 567, 136 So. 389 (1931). The husband could have elected to make the payments without deduction upon his own tax return. Having elected to pay Joyce’s tax on the payments, he must pay all of the taxes incurred by her because of the payments.

Appellant’s second point urges error upon that portion of the order directing the computation of the tax to be paid upon the lesser of two methods, which are: (a) as a married woman filing separately from her husband, or (b) as a married woman filing jointly with her husband. Burton contends that the amount to be paid should be figured as though Joyce were a single woman. The agreement contemplates the remarriage of Joyce. See footnote [1], supra, section (a)(ii) thereof. It uses the language “ . . . on an individual basis and on a joint basis with her spouse . . ” [emphasis added] Burton’s interpretation of “individual” as meaning “as though a single person” is strained in view of the recognized fact that she would not be a single person, and the recognized fact that a married woman may not file as a single person. A trial judge may not be held in error for a failure to adopt a strained or illogical interpretation of the agreement. See Florida Sportserviee, Inc. v. City of Miami, 121 So.2d 450 (Fla.3d DCA 1960).

The third point presented claims error upon that portion of the order requiring that in computing the amounts to be paid by Burton, the first $10,000 of the wife’s earned personal income shall be taxed in the lower bracket and alimony together with all other income shall be taxed in total pro rata in its proper bracket. This provision is fully supported by the agreement and any other interpretation would deprive Joyce of the use of the lower bracket, thus increasing her total payment so that she would be paying a tax on the alimony received.

Affirmed.

      . “8.1 Alimony
      (a)Respondent agrees to pay the Petitioner or Petitioner’s estate in the event of Petitioner’s demise during the period of the payments hereinafter provided, and regardless of Petitioner’s remarriage or Respondent’s death, as alimony and as full and final satisfaction by Respondent of his obligations to support and maintain Petitioner and of Petitioner’s rights to property, periodic alimony payments as follows:
      (i) $1,570.25 on the third day of February 1972 and continuing thereafter on the third day of each and every month up to and including 3 February 1982, making an aggregate of 121 monthly payments, and
      (ii) Such additional amounts as Petitioner shall be required to pay for her separate federal, state and city income taxes, if any, by reason of the alimony payments received. For the purpose of determining the amount that shall be paid by Respondent to Petitioner as additional alimony resulting from receipt of said alimony by Petitioner and causing Petitioner to pay income taxes; said amount shall be determined by the Petitioner preparing a computation both on an individual basis and on a joint basis with her spouse and the lesser excess tax required shall be the amount that shall be paid by Respondent to Petitioner as such additional alimony. In determining such excess tax as hereinabove referred to, the first $10,000.00 of income earned by said Petitioner from her personal services (the computation which shall be prepared on a joint basis will include not only the first $10,000.00 of income earned by the Petitioner, which shall be calculated in the lowest bracket, but shall also include for said calculation the income of the Petitioner’s spouse) shall be calculated as taxed in the lowest brackets and the alimony payments thereafter in the next brackets. Any income earned by the Petitioner from personal services in excess of $10,000.00 will be taxed on a pro-rata basis with the alimony payments received.
      (b) ‘Income of the Petitioner from Personal Services’ shall include any sums earned by Petitioner as wages, commissions or salary from bona fide, genuine personal services performed by Petitioner, excluding, without limiting this exclusion to, income received in whole or in part by reason of remarriage, gifts, investments, commissions not earned by her personal services or otherwise. Any question of the bona fides of personal service income may be submitted to the Court for determination.
      (c) The payments required to be made in (ii) herein for income tax of the wife shall be made to the Petitioner on or before April 8 of each year, and for quarterly tax estimates at least 8 days prior to their due date; provided, however, that Respondent has received a statement from Petitioner’s accountant of the ‘earned’ income received by Petitioner, and the amount found to be due as income tax no later than April 1 of each year and each quarterly estimate no later than 15 days prior to its due date.
      (d) In the event that Respondent does not pay to Petitioner the additional amounts as are required to pay her taxes as set forth in (i) and (ii) and by reason thereof Petitioner suffers interest and/or penalties, the Respondent agrees to indemnify and hold the Petitioner harmless from the payment of same including Petitioner’s reasonable and necessary accounting and legal fees.
      (e) Each year Petitioner, through her accountant, Robert Altemus, C.P.A., shall inform Respondent of the amount of taxes due in accordance with the provisions of this paragraph (8.1). It is the intent of the parties that if Petitioner remarries, her husband shall not be required to disclose his financial affairs to Respondent personally. In the event that Robert Altemus ceases to serve as Petitioner’s accountant, the parties will agree as to his successor C.P.A. for purposes herein.”
      The agreement also provided:
      “25. DISAGREEMENT
      If the parties cannot resolve any dispute arising under the interpretations of this Agreement, any dispute(s) shall be submitted to and resolved by the Court having jurisdiction of this cause in accordance with the terms and conditions of this Agreement; however, the Court and the parties may consider the intent of the parties as expressed in the oral agreement in open Court on 3 February 1972. Any conflict between the provisions of the oral agreement and provisions contained herein shall be determined by the provisions of this written Agreement.”


source: Caselaw Access Project

license: Public Domain

text:
    JEROME NAGELBUSH, INC., Appellant, v. FRANK J. ROONEY, INC., Appellee.
    No. 76-1657.
    District Court of Appeal of Florida, Third District.
    Feb. 8, 1977.
    Friedman & Rosenberg, Davie, for appellant.
    Rosenberg, Rosenberg, Reisman & Glass and Carl A. Spatz, Miami, for appellee.

      Before HAVERFIELD and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   CHARLES CARROLL (Ret.), Associate Judge.

Certain persons doing business as Hollywood Fashion Center, as owners, entered into a written contract with Frank J. Rooney, Inc., as a general contractor, for the construction of improvements in a shopping center. Rooney entered into a sub-contract with Jerome Nagelbush, Inc., for performance of the plumbing work called for in the construction contract.

Subsequently the owners filed action against Rooney for damages for breach of contract, alleging as basis therefor that Rooney “failed to install the plumbing at the ‘Walgreen Store’ as set forth and required in said plans and specifications”, and alleging that by reason thereof plaintiff had suffered loss through expense incurred in correcting such defective plumbing installation. In a second count damages were sought, on the same facts, for alleged negligence.

Rooney answered admitting the contract and denying the allegations of improper performance. The answer averred the plumbing installation was done in a workmanlike manner and according to specifications, to the satisfaction of the architect; and pleaded that contributory negligence of the plaintiff proximately caused any plumbing deficiencies.

Separately the defendant Rooney filed a crossclaim against its plumbing sub-contractor, Nagelbush, for indemnity. Therein Rooney alleged the sub-contract, referred to the claims asserted by the plaintiff and alleged that in event Rooney should be held liable to plaintiffs under their contract, despite Rooney’s answer thereto, “then the Third-Party defendant is liable to Rooney for the sum to which Rooney may be held liable to plaintiffs”. Nagelbush answered the Third-Party complaint for indemnity, denying liability.

Rooney moved for and was granted summary judgment against Nagelbush. The judgment entered was a partial summary judgment on liability, in favor of Rooney against Nagelbush as indemnitor of Rooney. Nagelbush filed this interlocutory appeal therefrom.

We pretermit discussion of the arguments of the parties as to whether there were genuine triable issues of fact precluding the entry of the summary judgment because we hold that entry of judgment against the Third-Party defendant on the claim of indemnity, prior to a judgment against the general contractor in the main action, or a settlement and discharge of the action by payment by the contractor, was premature.

By virtue of the wording of Fla.R. Civ.P. 1.170(g), the filing of the crossclaim or complaint for indemnity at that stage of the proceedings was not premature, as a means of avoiding a multiplicity of actions and in order that the entire subject matter arising from the one set of facts may be disposed of in one action, but the entry of judgment against the indemnitor at that stage of the main action was premature, under the authority of Chappell v. Scarborough, 224 So.2d 791 (Fla.1st D.C.A.1969), and Mims Crane Service, Inc., v. Insley Mfg. Corp., 226 So.2d 836 (Fla.2d D.C.A. 1969).

For the reason stated, the summary judgment is reversed, without prejudice to and subject to further proceedings on the merits of the crossclaim of Rooney against Nagel-bush for indemnity, following judgment, if any rendered in favor of the plaintiff against the defendant contractor.

It is so ordered.


author: SCHEB, Judge.

text:
    Morace C. DUNCAN, as Administrator of the Estate of John Norace Duncan, Deceased, Appellant, v. John D. FLYNN, M.D., et al., Appellees.
    Nos. 76-618, 76-858.
    District Court of Appeal of Florida, Second District.
    Feb. 9, 1977.
    Rehearing Denied Feb. 28, 1977.
    Wagner, Cunningham, Vaughan, May & Genders, Tampa, Robert Orseck of Pod-hurst, Orseck & Parks, and Susan Goldman, Miami, for appellant.
    F. Ronald Fraley and John I. Van Voris of Shackleford, Farrior, Stallings & Evans, Tampa, for Flynn and Shelby Mutual Ins. Co.
    T. Paine Kelly, Jr. and Claude H. Tison, Jr. of Macfarlane, Ferguson, Allison & Kelly, Tampa, for St. Joseph’s Hospital and St. Paul Fire and Marine Ins. Co.
   SCHEB, Judge.

Appellant, plaintiff below, is the father of a baby who died during the process of delivery. As administrator, he sued appel-lees/defendants physician, hospital, and their insurers, for the baby’s alleged wrongful death. The trial court entered summary judgments in favor of all defendants. Plaintiff appeals. We affirm.

The significant legal issues presented are: (1) whether the baby was born alive whereby a cause of action accrued in favor of plaintiff; and if not, (2) whether the unborn viable fetus was a “person” on whose behalf suit for wrongful death under Florida’s former Wrongful Death Act could be maintained.

Essentially, the facts are these. During pregnancy, Shirley J. Duncan was cared for by the defendant, Dr. Flynn, who practiced obstetrics and gynecology. She was admitted to the defendant hospital on March 20, 1972, for purpose of delivery of her fourth child. Dr. Flynn, who cared for Mrs. Duncan during her previous deliveries, induced labor. By 9:00 p.m. she was completely dilated. She was taken into the delivery room around 10:00 p.m. Minutes later, her baby’s head emerged; however, the baby’s shoulders were too wide to allow further passage. Two other physicians were summoned to assist, but after unsuccessful attempts at various procedures for some twenty minutes, they noted the fetal heartbeat tones had disappeared. Concluding the child could not be born alive, the physicians then directed their efforts toward Mrs. Duncan’s condition. After receiving her husband’s permission, they removed the baby’s head. Sometime after 11:00 p.m., they proceeded to remove the remainder of the child’s body by a Caesarean section. The baby’s head and torso weighed 14 pounds, 8 ounces. The death certificate carried “cardio vascular failure due to or as a consequence of strangulation” as the stated cause of death.

By the third amended complaint against the defendants, Dr. Flynn and St. Joseph’s Hospital, plaintiff sought to recover for the child’s wrongful death. Plaintiff alleged that the defendants’ negligent failure to recognize in advance that a Caesarean section would be required caused the death of their baby during the course of childbirth. In entering summary judgments in favor of all defendants, the trial court noted that:

. . there can be no claim for the wrongful death of the unborn fetus, John Norris Duncan, and the court having determined that there are no genuine issues as to any material fact as to that claim which is a part of plaintiff’s third amended complaint, that defendants are entitled to a judgment as a matter of law.”

We address sequentially the issues posed by this appeal.

Whether the baby was born alive.

Admittedly, the determination of whether or not a birth has occurred is generally a factual one. The trial judge here adjudicated that the defendants were not liable on the defendants’ motions for summary judgment. We recognize it was incumbent upon the defendants to remove all doubts as to existence of any genuine issue of material fact on the question of whether birth occurred. Fla.R.Civ.P. 1.510; Holl v. Talcott, 191 So.2d 40 (Fla.1966).

No Florida cases speak to the precise question of when a live birth occurs. Plaintiff argues that the evidence demonstrated that Mrs. Duncan gave birth to a live baby and, but for the negligence of the defendants, the baby would have continued to live. Plaintiff points to the fact that the baby’s head was born spontaneously and that for at least twenty minutes, life existed while the shoulders of the baby were lodged in the mother’s pelvis. Plaintiff suggests that the stated cause of death on the death certificate; i.e., “cardio vascular failure due to or as a consequence of strangulation,” gives rise to an inference of breathing on the part of the child, and that this is consistent with a live birth having occurred.

Bennett v. State, 377 P.2d 634 (Wyo.1963), where the defendant was convicted of manslaughter in the killing of her newborn baby lends a measure of support to plaintiff’s argument. In Bennett, there was an issue of whether the baby born to the defendant was born alive. In reviewing the testimony from defendant’s trial, the court concluded that whether or not there was a live birth was a question of fact for the jury. The court held it was proper for the trial court to have received the expert opinion of the autopsy physician that based upon his examination and tests the child was born alive. The physician supported his opinion by adequate evidence that the child had actually breathed. He opined that the most reliable indicator as to whether or not a child was born alive was whether or not it had breathed. Although there was no direct evidence of breathing on the part of the Duncan baby, plaintiff argues that the fact of the cause of death having been attributed to strangulation gives rise to an inference that some breathing may have occurred.

Plaintiff also points to People v. Chavez, 176 P.2d 92 (Cal.App.1947), a case involving a prosecution for murder of a newborn baby. There, the court held the evidence that the baby had breathed and the existence of heart action supported the jury’s findings that the child was born alive. Chavez has been interpreted by the California Supreme Court as holding that a viable fetus in the process of being born is a human being within the meaning of the homicide statutes. Keeler v. Superior Court, 2 Cal.3d 619, 87 Cal.Rptr. 481, 470 P.2d 617 (1970).

The problem of when a live birth occurs, while novel in Florida, has been addressed by courts in several other jurisdictions. The earliest ease brought to our attention is Rex v. Ann Poulton, 5 Carr. & P. 332 (1832), in which the court opined:

“With respect to the birth, the being born must mean that the whole body is brought into the world; and it is not sufficient that the child respires in the progress of the birth.”

The English view was generally followed by American courts in early cases. For example, Wallace v. State, 10 Tex.App. 255 (1881), held that a live birth required that the child be expelled alive from its mother’s body. This view was followed in Goff v. Anderson, 91 Ky. 303, 15 S.W. 866 (1891), and more recently in People v. Hayner, 90 N.E.2d 23 (N.Y.1949).

The prevailing view still requires expulsion from the body of the mother, although the more recent cases conclude that no live birth has occurred until the child has been completely expelled and has attained a separate and independent existence. Most of the cases have arisen within context of homicide statutes. An Annotation at 65 A.L.R.3d 413, states:

“. . . And although it is not always clear whether the courts are trying to explain just what such a ‘separate and independent existence’ denotes physically, or whether they are setting forth elements of proof to be shown in addition to the showing of such existence, there is language expressed in several cases to the effect that ‘life’ is further contingent upon a showing of independent circulation and/or respiration. It is to be noted further that in the few cases considering the question, there appears to be a decided split of opinion as to whether a newborn still attached to the mother by the umbilical cord may be said to possess ‘life’ so as to be the subject of a homicide.”

While authorities may be divided on whether it is required for the cord to be severed, the cases generally hold breathing alone is not sufficient to establish live birth. People v. Hayner, supra; Jackson v. Commonwealth, 265 Ky. 295, 96 S.W.2d 1014 (1936); Montgomery v. State, 202 Ga. 678, 44 S.E.2d 242 (1947). While these are criminal cases, the view has also been taken in civil cases that an independent existence from the mother is essential and that this requires that there be an independent circulation of the blood. Cf. Wehrman v. Farmers’ & Merchants’ Savings Bank, 221 Iowa 249, 259 N.W. 564 (1935).

Recently in Justus v. Atchison, 53 Cal.App.3d 556, 126 Cal.Rptr. 150 (1975), the court recognized Chavez, supra, as standing for the principle advanced by the plaintiff that a viable child in the process of being born is a human being under the homicide statutes. But, the California court pointed out Chavez was a homicide case. Then the court went on to hold that a baby who apparently died during process of delivery or assisted birth was born dead and that an action for wrongful death could not be maintained on his behalf.

We adopt the view that to constitute “live birth” so as to give rise to an action for wrongful death, a child must acquire a separate and independent existence of its mother. This view, we think provides a reasonably definitive test, is logical, and is supported by the authorities. Generally, the requirements of separate and independent existence will be met by a showing of expulsion (or in a Caesarean section by complete removal) of the child’s body from its mother with evidence that the cord has been cut and the infant has an independent circulation of blood. Should the death occur prior to the cord being severed, expert medical evidence may be required to determine whether such separate and independent existence had been attained by the infant prior to that time.

We find the evidence before the trial judge conclusively negates that the Duncan baby acquired any separate and independent existence apart from its mother. For even if some breathing had occurred, it is unthinkable to conclude the baby had the required separate and independent existence considering the necessity for the physicians to remove the baby’s head before they could even remove its torso from Mrs. Duncan. Therefore, the court was correct in entering summary judgments in favor of Dr. Flynn and St. Joseph’s Hospital.

Whether the unborn viable fetus was a “person” under Florida’s former Wrongful Death Act.

The right of action for a wrongful death did not exist at common law. Wilkie v. Roberts, 91 Fla. 1064, 109 So. 225 (1926). Florida, however, grants that right by statute. Since the incident which gave rise to plaintiff’s suit occurred on March 20, 1972, the action before us is controlled by Sections 768.01 and 768.03, Florida Statutes (1971).

Section 768.01 in the relevant part provides:

“Whenever the death of any person in this state shall be caused by the wrongful act, negligence, carelessness or default of any individual . . . ” (Emphasis supplied)

Section 768.02 relates to parties and damages. The relevant part of Section 768.03 provides;

“Wherever the death of any minor child shall be caused by the wrongful act, negligence, carelessness or default of any individual . . . ” (Emphasis supplied)

Thus, the critical question becomes whether the word “person” in Section 768.-01 or the words “minor child” in Section 768.03 include a viable full term fetus which has not been born alive.

We think this question is controlled by the opinion of the Supreme Court of Florida in Stokes v. Liberty Mutual Ins. Co., 213 So.2d 695 (Fla.1968). In Stokes, the parents of a stillborn fetus sought to recover damages for the wrongful death of the fetus due to the negligence of a motorist. Mrs. Stokes was about seven months pregnant at the time of the accident, which occurred on February 27, 1965. The stillbirth occurred on March 4, 1965. The Stokes based their claim on Section 768.03 of the Wrongful Death Act. The court found that an unborn baby was not a “minor child” within the meaning of Section 768.03, which permits recovery for the death of a “minor child” due to a negligent act. Although Stokes involved a stillbirth, the court went on to hold that “a right of action for wrongful death can arise only after the live birth and subsequent death of the child.”

Despite the language in Stokes, plaintiff argues that the claim for wrongful death of the Duncan baby is not foreclosed. Plaintiff points to the language in Stokes where the court states;

“We are not here called upon to determine whether the stillborn fetus is a ‘person’ or a ‘party’ under the last two cited sections. The Stokes, rather, insist that a fetus qualifies as ‘minor child’ under Section 768.03.” Id. at 698.

Thus, the plaintiff argues for a distinction between a “minor child” as the term was interpreted in the Stokes case and a “person.” It is difficult for us to believe that while holding a stillborn fetus was not a “minor child” the Supreme Court intended that such a fetus was to be considered a “person.” In fact, the very reasons advanced by the court in Stokes for holding a stillborn fetus not to be a minor child were among those advanced by other courts relied upon in Stokes which held such a fetus not to be a “person.”

The question of whether an unborn fetus is considered a person under Florida’s new Wrongful Death Act, Sections 768.16 and 768.27, Florida Statutes, has been considered by two of our sister courts. In Davis v. Simpson, 313 So.2d 796 (Fla. 1st DCA 1975), the First District Court of Appeal held that the term “person” does not include a full term viable but stillborn fetus. In so ruling, the court took note of the Stokes decision having preceded the legislature’s enactment of the new wrongful death law. The court reasoned that the interpretation in Stokes was then available and if the legislature had intended to make such a radical change in the law, it would have done so in clear language. But, the Fourth District Court of Appeal in Miller v. Highlands Ins. Co., 336 So.2d 636 (Fla. 4th DCA 1976), recognized the trend of allowing recovery of prenatal injuries to viable children and concluded that a viable unborn child is a “person” within the meaning of Section 768.19.

This court has also recognized that trend of allowing recovery for prenatal injuries. In Day v. Nationwide Mutual Ins. Co., 328 So.2d 560 (Fla.2d DCA 1976), we held that once a child is born alive, there is a relation back to the time of injury in order for that infant person to maintain a cause of action against the tortfeasor. We recognized there that a child injured before birth, once born alive is a “person” under the constitution of the United States and the State of Florida. Each person is entitled to all the constitutional rights, privileges and protections afforded to every other person and once that baby becomes a “person” he should be allowed to recover for the injuries. Besides, we pointed out that the financial needs of such a person should better be borne by the tortfeasor than the tax payers. Parenthetically, in the first paragraph of our opinion in Day, we footnoted the significance of the child being born alive in reference to the Supreme Court’s opinion in Stokes.

We perceive the legislative purpose of the wrongful death statute being to provide compensation within the ordinary contemplation of persons who have been born alive. We adhere to the precedent of the Supreme Court in Stokes and the view expressed by our sister court in Davis, and conclude that the Duncan baby was not a person under Florida’s old Wrongful Death Act.

Accordingly, the judgment of the trial court is affirmed.

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

      . Plaintiffs third amended complaint was incorrectly brought under Florida’s new Wrongful Death Act (effective July 1, 1972), since death occurred on March 20, 1972. The parties now recognize that the former act; i.e., Sections 768.01-.03, Florida Statutes (1971), which apply to all deaths occurring prior to July 1, 1972, to be the applicable statutes.

      . True, fetal life may exist before birth. The distinction we make in this case is twofold; (1) that such “life” must assume a separate and independent existence, and (2) that to be a “person,” that life must evolve into a separate human being.


author: BOARDMAN, Chief Judge.

text:
    Diane G. HOEMKE, Appellant, v. Herbert HOEMKE et ux., Appellees.
    No. 76-1060.
    District Court of Appeal of Florida, Second District.
    Feb. 9, 1977.

      Wayne 0. Smith of Wallace & Smith, St. Petersburg, for appellant.
    Norman Bie, Jr., Clearwater, for appel-lees.
   BOARDMAN, Chief Judge.

Appellant petitioned for dissolution of marriage which was granted by final judgment on March 21, 1975. The pertinent provisions of the judgment were:

IT IS FURTHER ORDERED AND ADJUDGED that the Respondent be, and he is hereby ordered to pay unto the Petitioner the sum of $20.00 per week per child for a total of $60.00 per week for the support and maintenance of the minor children of the parties hereto. Said child support payments shall continue until such time as each child attains majority, dies, marries or becomes self-supporting whichever the first shall occur.
IT IS FURTHER ORDERED AND ADJUDGED that the Petitioner be and she is hereby awarded possession of the premises commonly known as 12671-139th Street North, Largo, Florida, until such time as the same is sold. At which time, the net proceeds shall be equally divided with the Petitioner getting credit for any reduction in principle she makes from the date of the judgment to the sale.

The former husband of appellant conveyed to appellees, his parents, his undivided one-half interest of the marital home described in the final judgment of dissolution. On April 8, 1976, appellees filed a complaint for partition of the real property alleging that appellant and appellees were joint tenants in the realty and that appellant had a one-half interest in the property involved by virtue of a warranty deed recorded in O. R. 2321 page 263 public records of Pinellas County, Florida, and that appel-lees held a one-half interest in the property by virtue of a warranty deed recorded in O. R. 4383 page 299 public records of Pinellas County, Florida. Appellees prayed for a public sale of the property the proceeds of which to be paid to appellant and appellees according to their respective interests. The trial court entered an order denying appellant’s motion to dismiss the complaint. This appeal is from that order. We agree with the trial judge’s ruling.

We cannot agree with appellant’s contention that she is entitled to remain in possession of the marital domicile until such time as each child “attains majority, dies, marries or becomes self-supporting whichever the first shall occur.” It is clear to us from a reading of the provisions, of the final judgment set out above that the trial court intended to award possession of the premises to appellant only “until such time as the same is sold.” Finally we point out that we are not passing upon the merits of appel-lees’ cause of action; upon appellant’s contention that the realty is homestead property therefore exempt from forced sale as provided in Article X, Section 4, Florida Constitution; nor upon the rights of the parties to this action were the property found to be homestead.

AFFIRMED.

GRIMES and OTT, JJ., concur.


author: PER CURIAM.

text:
    STATE EXCHANGE BANK OF LAKE CITY, Florida, Appellant, v. Jo Anne PUIG, Individually, and as guardian of her minor children, Victor Puig, III, et al., and as Executrix of the Estate of Victor Puig, Deceased, Appellee.
    No. DD-429.
    District Court of Appeal of Florida, First District.
    Feb. 10, 1977.
    William J. Haley, of Brannon, Brown, Norris, Vocelle & Haley, Lake City, for appellant.
    James L. Pendland, Jr., Gainesville, Frederick E. Landt, III, Ocala, Irwin S. Gars of Gars & Dixon, Miami, James E. Clayton, Gainesville, for appellee.
   PER CURIAM.

This interlocutory appeal having been found to be without substantial merit, the appeal is dismissed.

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


text:
    Dorothy RANDOLPH, Appellant, v. Eli McCULLOUGH et al., Appellees.
    No. AA-347.
    District Court of Appeal of Florida, First District.
    Feb. 11, 1977.
    Wayne L. Rubinas, of Pattillo, MacKay & McKeever, Ocala, for appellant.
    James M. Smith, Jr., Ocala, for appellees.
   PER CURIAM.

This is an, appeal from a Final Judgment in a quiet title suit. The issue is whether or not Dorothy Randolph is a child of Ellis McCullough.

Dorothy Randolph was the daughter of Lula Moment. At the time of Dorothy Randolph’s birth Lula Moment was married to one Ira Moment. There is some indication that later on in life Ellis McCullough claimed to be the father of Dorothy Randolph and so designated in writing on at least one occasion.

There is conflicting evidence upon which the trial judge could find the actual paternity of Dorothy Randolph. In his Judgment the trial judge found that Dorothy Randolph’s father was Ira Moment. On appeal this court does not substitute its findings of fact when there is competent substantial evidence to support the trial judge’s findings.

The Judgment is, therefore, AFFIRMED.

BOYER, C. J., McCORD, J., and MCDONALD, PARKER LEE, Associate Judge, concur.


author: McCORD, Judge.

text:
    Kemberely R. TENOPIR, Appellant, v. Carl Thomas BOLES ESTATE, Appellee.
    No. CC-53.
    District Court of Appeal of Florida, First District.
    Feb. 11, 1977.
    David W. Palmer, II, Crestview, for appellant.
    Ferrin C. Campbell, Sr., Crestview, for appellee.
   McCORD, Judge.

On the petition of Opal Elaine Vance, as mother and as next friend of Kemberely Renee Tenopir, a minor, for determination of heirs in the estate of Carl Thomas Boles, the court granted summary judgment, ruling that the decedent was not the father of the aforesaid minor child, and the child was therefore not an heir of the estate. This is an appeal from the summary judgment.

It was stipulated by the parties that the child was not born of a lawful marriage between Opal and the deceased. The court found Sarah Nell Boles and Brady Boles to be the natural mother and natural father respectively of the deceased and entitled to inherit the entire estate, which consists of $100 cash and $10,000 proceeds from an insurance policy. The court grounded its ruling against appellant entirely on her failure to produce a written acknowledgment of the decedent, signed in the presence of a competent witness, that he fathered the aforesaid child. Appellant contends that the determination of parentage in this cause is governed by the new probate code which repealed the old code of which § 731.-29, Fla.Stat.1973, was a part; that now under § 732.108, Fla.Stat.1975, (the new code) no written acknowledgment of parentage is necessary; that the probate court should have recognized § 732.108, Fla.Stat. 1975, as the statute under which such determination should be made rather than repealed § 731.29, Fla.Stat.1973; that the court erred in entering summary judgment since there are material issues of fact on the question. We agree and reverse.

The decedent, Carl Thomas Boles, died from an accident on September 29, 1973. The minor child, Kemberely, was born several months previously on May 4, 1973. At the time of decedent’s death, § 731.29, Fla. Stat.1973, (of the old probate code) was in effect and provided in pertinent part as follows:

“(1) Every illegitimate child is an heir of his mother, and also of the person who, in writing, signed in the presence of a competent witness, acknowledges himself to be the father. Such illegitimate child shall inherit from his mother and also, when so recognized, from his father, in the same manner as if the child had been born in lawful wedlock. However, such illegitimate child does not represent his father or mother by inheriting any part of the estate of the parents’ kindred, either lineal or collateral, unless his parents have intermarried, in which event such illegitimate child shall be deemed legitimate for all purposes.”

Appellant’s petition for determination of heirs was filed on April 8, 1975, and the summary judgment appealed from was entered on February 24,1976. The new Florida Probate Code, which became effective on January 1, 1976, repealed the old code with certain exceptions mentioned in § 731.011, Fla.Stat.1975, which will be subsequently discussed. The appropriate statute under the new Code, § 732.108 provides in pertinent part as follows:

“Adopted persons and persons born out of wedlock.—
* * *
(2) For the purpose of intestate succession ... a person born out of wedlock is a lineal descendant of his mother . The person is also a lineal descendant of his father ... if;
(a) * * *
(b) The paternity [of the father] is established by an adjudication before or after the death of the father.”

The foregoing statute succeeds § 731.29 of the old code, and it is readily seen that under the new statute no written acknowledgment of the child by the father is required to prove parentage. Therefore, if the new statute is applicable to the determination in this case, the trial court erred in granting summary judgment predicated upon the repealed provision of the old statute.

To determine the applicable statute, we must consider § 731.011, Fla.Stat.1975, (the new code) which provides as follows:

“Determination of substantive rights; procedures. — The Florida Probate Code shall become effective on January 1,1976. The substantive rights of all persons that have vested prior to January 1,1976, shall be determined as provided in former chapters 731-737 and chapters 744-746 as they exist prior to January 1, 1976. The procedures for the enforcement of substantive rights that have vested before January 1, 1976, shall be as provided in this code.”

Appellees contend that the substantive rights of decedent’s heirs vested at the time of his death and, therefore, § 731.011, Fla. Stat.1975, requires that the determination of heirs be adjudicated under the provisions of the old probate code. We disagree. While title to realty vests in the heirs at the time of decedent’s death [Creary v. Estate of Creary, 338 So.2d 26 (Fla. 1 DCA 1976)] and title to personalty vests at such time in the administrator of the estate [Mills v. Hamilton, 121 Fla. 435, 163 So. 857 (1935)], our concern here is with the vesting of the right of alleged heirs to receive property of the estate under the law of descent and distribution. Such right obviously cannot vest in an alleged illegitimate child until it is determined that such child is a child of the decedent. Likewise, the rights of heirs whose inheritance will be affected by or dependant upon the result of that determination cannot vest until the determination is made. Since the determination in this case was made (the summary judgment was entered) after the new probate code became effective, the trial court erred in making the determination under the old law rather than under the new.

REVERSED.

BOYER, C. J., and MILLS, J., concur.


author: SMITH, Judge.

text:
    The HAWAIIAN INN OF DAYTONA BEACH, INC., Appellant, v. H. Clinton DUNN et al., d/b/a Dunn Lumber & Supply Company, Appellees.
    No. DD-295.
    District Court of Appeal of Florida, First District.
    Feb. 11, 1977.

      William M. Barr of Raymond, Wilson, Conway, Barr & Burrows, Daytona Beach, for appellant.
    Richard W. Withers of Becks & Becks, Daytona Beach, for appellees Dunn and others; and S. LaRue Williams of Kinsey, Vincent, Pyle & Williams, Daytona Beach, for appellee Am. Employers’ Ins. Co., Day-tona Beach.
   SMITH, Judge.

We previously decided another aspect of this litigation. Snead Construction Corp. v. First Federal Savings & Loan Ass’n of Orlando, 342 So.2d 517 (Fla. 1st DCA, 1976). The owner of three motel projects now prosecutes an interlocutory appeal from a circuit court order reinstating it as a party defendant to mechanics’ lien foreclosure proceedings by certain material suppliers. Chapter 713, Florida Statutes (1975). By cross-appeal, the suppliers complain of the trial court’s order insofar as it dismissed their action against appellee American Employers’ Insurance Co., surety on the contractor’s payment bonds, on grounds the suppliers’ claims against those bonds were not asserted within one year after completion of delivery of the materials supplied. Section 713.23.

On December 5, 1975, the circuit court dismissed the suppliers’ complaint for lien foreclosure against the owner, on grounds the contractor had provided payment bonds for the protection of suppliers of labor and material to the projects and, therefore, the owner and its property were exempt from the claims of liens of suppliers. Sections 713.02(6), 713.23. On August 25, 1976, the trial court found in effect that the suppliers did not timely assert claims against the payment bonds and so lost their rights against the contractor’s surety. The trial court held it was therefore appropriate to reinstate the suppliers’ foreclosure action against the previously-dismissed owner and its property.

The owner contends on appeal that the trial court erred in two respects in its order reinstating the suppliers’ action: first, because the failure of the suppliers’ action on the payment bonds, resulting from untimely prosecution, could not revive the suppliers’ liens against the owner and its property; and second, because the trial court’s order dismissing the owner on December 5, 1975 was conclusive between the parties and not subject to reversal by the trial court several months later. We agree on both counts.

Pursuant to contract with the owner, the contractor supplied bonds entitled “labor and material payment bonds” which were intended to and did substantially comply with Section 713.23. To the minor extent the bonds purported to restrict statutory conditions, the bonds are properly considered as having been brought into full compliance by the statute they were intended to satisfy. Guin & Hunt, Inc. v. Hughes Supply, Inc., 335 So.2d 842 (Fla. 4th DCA 1976); Houdaille Industries, Inc. v. United Bonding Ins. Co., 453 F.2d 1048 (5th Cir. 1972). The suppliers make no claim that any irregular restriction in the conditions of the bonds accounts for their loss of bond protection, which resulted only from their failure to sue within a year. The conditions of the bonds were not broader and more protective than the statute required. Therefore the suppliers’ contentions on cross-appeal that the bonds were common law and not statutory bonds, subject to a more generous period of limitation on actions, must fail. Contrast United Bonding Ins. Co. v. City of Holly Hill, 249 So.2d 720 (Fla. 1st DCA 1971).

The trial court’s order reinstating the suppliers’ action against the owner and his property is based on the conception that a payment bond provided under Section 713.23 exempts the owner and his property from lien foreclosure only if the suppliers pursue and obtain their remedies on the bond. Because by delay the suppliers lost their bond claims, they urge it is appropriate that their prior statutory remedy of foreclosure be reinstated. The suppliers point out that while an action on a payment bond provided under Section 713.23 must be brought within one year after completing delivery, suppliers have 90 days plus one year from completing delivery to claim a lien and sue for foreclosure under Sections 713.08(5) and 713.22. Thus the suppliers’ argument would on every bonded job subject the owner to revived liability to foreclosure for a period of up to 90 days after termination of the surety’s bond liability. We cannot consent to that result. Section 713.02(6) provides:

“In any direct contract the owner may require the contractor to furnish a payment bond as provided in s. 713.23 and upon receipt of such bond the owner shall be exempt from the other provisions of [the mechanics’ lien law] . . . .”

The exemption so provided is permanent, not transitory. It is not forfeited by the suppliers’ failure to secure their remedies against the bond.

When the trial court on December 5, 1975, dismissed the suppliers’ foreclosure action against the owner because of the Section 713.02(6) exemption, that order was a final and appealable judgment. Shute v. Keystone State Bank, 159 So.2d 106 (Fla. 1st DCA 1963). Absent grounds for disturbing that judgment under Fla.R.Civ.P. 1.540, of which there were none, the trial court could not properly rejoin the owner for resumed litigation several months later.

The trial court’s order is REVERSED, insofar as it rejoined appellant as a party and restored the suppliers’ foreclosure suit; and it is AFFIRMED insofar as it dismissed the suppliers’ action on the bond of appellee American Employers’ Insurance Co.

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

      . Section 713.23 provides in part: “No action or suit shall be instituted or prosecuted against the contractor or against the surety on the bond required in this section after 1 year from the performance of the labor or completion of delivery of the materials and supplies.”


author: MILLS, Judge.

text:
    Horace Billie HOLMES, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. DD-398.
    District Court of Appeal of Florida, First District.
    Feb. 11, 1977.
    Richard W. Ervin, III, Public Defender, and Theodore E. Mack, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Donald K. Rudser, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

The question raised by this appeal is whether the legislature provided a punishment for the offense of leaving the scene of an accident involving personal injury without willful intent, an included offense and a misdemeanor by court construction of Section 316.027, Florida Statutes (1975). State ex rel. Miller v. Patterson, 284 So.2d 9 (Fla. 2d D.C.A.1973), and State v. Shepard, 299 So.2d 644 (Fla. 1st D.C.A.1974).

Section 316.027 does not set forth a punishment [see Section 316.026(4), Florida Statutes (1975)], and the Miller case fails to state the degree of the misdemeanor or the punishment. No punishment is set forth elsewhere in the statute.

In the case before us, the court was faced with the dilemma of having to sentence a defendant convicted of a crime for which no punishment was provided. The trial court turned to Section 775.081(2), Florida Statutes (1975), which states:

“(2) Misdemeanors are classified, for the purpose of sentence and for any other purpose specifically provided by statute, into the following categories:
(a) Misdemeanor of the first degree; and
(b) Misdemeanor of the second degree.
A misdemeanor is of the particular degree designated by statute. Any crime declared by statute to be a misdemeanor without specification of degree is of the second degree.”

The court concluded that the offense of which the defendant was guilty was a second degree misdemeanor and sentenced him to sixty days in jail. But the last sentence of Section 775.081(2) requires that the crime be declared by statute as a misdemeanor without specification of degree in order to be classified as a misdemeanor of the second degree. This section, therefore, does not apply to this case because the crime was not declared by statute as a misdemeanor but was declared to be a misdemeanor by case law.

The courts have no authority to provide a penalty where no punishment is provided by the legislature. The judiciary can only impose penalties within the limit set by the legislature. Bradley v. State, 79 Fla. 651, 84 So. 677 (1920), and Brown v. State, 152 Fla. 853, 13 So.2d 458 (Fla.1943).

The State’s argument that Section 775.02, Florida Statutes (1975), which provides that:

“When there exists no provision by statute, the court shall proceed to punish such offense by fine or imprisonment, but the fine shall not exceed $500, nor the imprisonment 12 months.”

has no merit because this section is applicable to common law offenses only. The crime of which the defendant was convicted is not a common law crime.

The defendant was convicted of a crime for which the legislature provided no punishment. The court erred in imposing a sentence on the defendant. It is the legislature’s responsibility to correct this defect. We are compelled to reverse.

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


text:
    In the Interest of D. R., a child.
    No. 76-1537.
    District Court of Appeal of Florida, Second District.
    Feb. 11, 1977.
    Robert E. Jagger, Public Defender, Clear-water, for defendant.
    Robert L. Shevin, Atty, Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for the State.
   PER CURIAM.

The following question was certified to this court by the Circuit Court for Pinellas County on September 15, 1976:

Whether a delay in sending the complaint to Division of Youth Services affects the operation of Rule 8.120, that the child must be tried within ninety (90) days of the date the complaint was filed with the intake counselor of the Division of Youth Services, to require a dismissal after 93 days from date child was taken into custody.

We decline to answer the question as certified because of the dearth of relevant procedural facts essential to a complete understanding of the question. Additionally, such relevant facts are best evaluated and decided by the trial court.

Therefore, we do not answer the certified question, but instead remand with directions that the trial court rule on the question as it may deem advisable and proper.

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


text:
    Ray H. FENNER, Appellant (Plaintiff), v. FLORENTINE FORGE, INC., a Florida Corporation, Appellee (Defendant).
    No. Y-68.
    District Court of Appeal of Florida, First District.
    Feb. 15, 1977.
    R. P. Warfield of Levin, Warfield, Mid-dlebrooks, Graff, Mabie, Rosenbloum & Ma-gie, Pensacola, for appellant.
    No appearance for appellee.
   MILLS, Judge.

Fenner appeals from an adverse final judgment which dismissed his amended complaint without leave to amend. The final judgment was entered on 11 February 1975 and dismissed the amended complaint on the ground that it was barred by the four year statute of limitations set forth in Section 672.725(1), Florida Statutes (1973). Fenner contends that the applicable statute of limitations is five years as set forth in Section 95.11(3), Florida Statutes (1973).

'■ The trial court erred in two respects. Firstly, Section 672.725(1) was repealed by Chapter 74-382, Section 26, Laws of Florida, effective 1 January 1975. Lastly, the action brought by Fenner on a written warranty not under seal is governed by the statute of limitations set forth in Section 95.11(3).

We reverse the judgment and remand for further proceedings.

McCORD, Acting C. J., and SMITH, J., concur.


text:
    Charles VINES, Sr., et al., Appellants, v. EMERALD EQUIPMENT COMPANY, a corporation, et al., Appellees.
    No. AA-159.
    District Court of Appeal of Florida, First District.
    Feb. 15, 1977.
    Ralph H. Atwell, Pensacola, for appellants.
    Calvin W. Wilson, Pensacola, for appel-lees.
   McCORD, Judge.

This is an appeal from final judgment and an amendment thereto in a suit brought by appellants against appellees for replevin of washateria equipment and for damages for wrongful detention thereof. By the final judgment and amendment, the trial court found that appellees had locked appellants out of the premises leased to appellants by appellees in which the equipment was located and had attempted to impose a self-help lien against such equipment but had failed to exercise due process of law and did not establish a lien alleged by appellees under Ch. 83, Fla.Stat.1975. The judgment held as follows:

“1. That plaintiffs are entitled to re-plevin the washateria equipment which is the subject of the replevin complaint filed herein.
2. That plaintiffs shall have and recover possession of the washateria equipment from the defendants upon the posting of a surety bond in an amount commensurate with the continued obligation to protect the defendant, Lessor, based upon the remaining term under the lease.”

Appellants have raised two points on this appeal as follows: (1) the trial court, in finding appellants entitled to replevin of equipment, erred in requiring appellants to post a surety bond as a condition precedent to possession and in denying damages to appellants for wrongful detention of the washateria equipment; (2) the trial court erred in denying appellants’ counterclaim for judgment and damages against appel-lees for breach of lease and unlawful eviction. We agree with appellant’s contention under both points and reverse.

We feel that we should call attention to the fact that Point 2 presents an unusual pleading situation, which from the record before us does not appear to have been questioned in the trial court and has not been questioned on this appeal. Appel-lees filed an answer and counterclaim to appellants’ complaint, and appellants then filed an answer to the counterclaim and a counterclaim against appellees. We question the propriety of appellants (plaintiffs) filing a counterclaim against appellees (defendants). A plaintiff who, after filing his complaint, wishes to plead an additional cause of action should move for leave to file an amended complaint. Each cause of action alleged by a plaintiff should be stated in his complaint. We know of no authority for a plaintiff to file a counterclaim against a defendant. Since, however, the case went to trial and final judgment without such procedure being questioned, we will not disturb it here.

It appears from the evidence that on January 10, 1971, appellants Vines, Sr., and Vines, Jr., leased a place of business from the Lobster House, Inc. Appellees Thomas and Mary Eversole were principal stockholders and officers of the lessor corporation. For reasons not established here, that lease was terminated, and on September 21, 1971, the same premises were leased by appellees Emerald Equipment Company as lessor to appellant Vines, Jr., and his wife. The Eversoles were also principal stockholders and officers in Emerald Equipment. Vines, Sr., who was a party to the first lease, was not a party to the new lease (the lease with which we are concerned on this appeal). The new lease contemplated that certain expenditures would be made by lessees for alterations and renovations of the premises including a sewer connection fee in the sum of $3,000 to prepare the premises for use as a washateria. The washateria equipment, which is the subject of the re-plevin suit, was purchased by Vines, Jr., and financed through the First National Bank of Atlanta. A security agreement and financing statement was made to the bank pledging the equipment as security for the loan given for its purchase. Although Vines, Sr., was not a party to this second lease, he assisted his son with the financing and operation. The venture was a failure and a financial drain on both Vines, Jr., and Vines, Sr. Vines, Sr., testified that in July, 1974, he arranged a sale of the equipment to a party in Baton Rouge, Louisiana, for the sum of $18,000 and preparations were made to remove and transport the equipment from Escambia County to the buyer. The lienholder, First National Bank of Atlanta, refused permission for removal of the secured equipment from Florida. Vines, Sr., negotiated a loan from appellant Brookhaven Bank and Trust Company, who paid off the loan of First National, took an assignment of the security agreement and financing statement, and gave Vines Sr., permission to remove and sell the equipment.

Appellant Vines, Jr., testified that on the night of July 9 he went to the washateria, disconnected the equipment and otherwise prepared it for its removal on July 10. On the morning of July 10, appellee Eversole went to the washateria and saw that the equipment had been disconnected. A man from the moving company was there and told Eversole that the equipment was to be taken to Baton Rouge, Louisiana, for sale. Eversole then refused admittance to the mover, changed the locks on the doors, and denied appellants access to the premises. Both Vines, Jr., and Vines, Sr., testified that they intended to continue payment of the rent but wanted to sell the equipment in order to cut down on their financial losses; that only they knew of the proposed sale of the equipment and they did not inform Eversole of it because they were paid up on their rent. Vines, Jr., testified that he had mailed a check dated July 8, 1974, to Eversole for the July rent. Ever-sole testified that on July 10 he had not received this check and thought that appellants were 10 days in arrears; that he received the check two to four days after the 10th and since held it in his safe.

Although the rent was due on the first of each month, the evidence shows that it was usual for payments to be made anywhere from the first to the 10th of each month. Eversole testified that he assessed no late penalties and took no other action when the rent was late other than to call Vines and inform him of it. Vines, Sr. testified that because of Eversole’s action in locking the premises, the proposed sale of the washate-ria equipment was lost. Appellee Eversole has offered to return the premises to appellant only if appellants would post a security bond to cover their continuing lease obligations. There is no provision in the lease for posting of such bond.

The new lease contains a paragraph entitled “LESSOR’S REMEDIES.” This paragraph lists various events, the occurrence of one of which will authorize the lessor to terminate the lease and resume possession of the property. By agreement of the parties, the provisions of the lease for one of these events were stricken and initialed by them. The stricken provision stated as follows:

“Or shall remove or attempt to remove or express or declare an intention to remove any of the goods or chattels from the premises without the expressed consent of the lessor,”

The parties left another provision in the lease which provides as follows:

“That at the expiration of said term, the Lessees may remove all the trade fixtures owned by said Lessees which can be removed without costly injury to or undue defacement of said premises, provided all rents stipulated are paid in full and all damage to said property is promptly repaired.”

From the above retained provision of the lease, it appears that it was the parties’ intent that trade fixtures of lessees remain on the premises until the termination of the lease and be removed only if all rents were paid in full. It further appears that the paragraph specifying the events which, if they occur, will authorize self-help by lessor does not contain an authorization for self-help if lessee is removing or attempting to remove trade fixtures. By striking the provision relating to removing or attempting to remove goods or chattels, it seems clear that the parties intended that the removal or attempted removal of goods or chattels would not authorize self-help. Washateria equipment obviously better fits the term “trade fixtures” than it does goods or chattels, but be that as it may, the lease does not authorize self-help by lessors upon removal or attempted removal of either. Thus, lessors breached the lease when Ever-sole changed the locks and barred admittance of appellants and their agents to the premises. There had been no breach of the lease at that time by appellants for nonpayment of rent because the record shows that appellees had waived prompt payment of the rent by their previous regular acquiescence in late payment. 52 C.J.S. Landlord & Tenant § 534. Thus, breach for nonpayment of the rent would not occur until notice and an opportunity to pay up were given by appellees to appellants. The trial court erred in granting replevin to appellants conditioned upon their posting a surety bond and further erred in denying appellants’ counterclaim for damages for breach of the lease and unlawful eviction.

Reversed and remanded for further proceedings consistent herewith.

BOYER, C. J., and MILLS, J., concur.


text:
    James H. COLCORD and Geraldine G. Colcord, his wife, Appellants, v. FLORIDA ROCK INDUSTRIES, INC., a Florida Corporation, d/b/a Denny Concrete Co., et al., Appellees.
    No. AA-210.
    District Court of Appeal of Florida, First District.
    Feb. 15, 1977.
    Robert 0. Stripling, Jr., of Chandler, O’Neal, Avera, Gray, Land & Stripling, Gainesville, for appellants.
    Donald F. Jacobs and E. Thom Rumber-ger of Pitts, Eubanks, Ross & Rumberger, Orlando, for appellees.
   PER CURIAM.

Having carefully examined the record-on-appeal and having thoroughly considered the 12 points raised by appellants as well as the written and oral arguments advanced by the respective parties, we have concluded that the learned trial judge correctly entered the final judgment here appealed. One issue raised by appellants relates to orders entered by the trial judge taxing costs. Following final judgment which was entered pursuant to a jury verdict, both appellants and appellees filed motions to tax costs. After appellants filed their notice of appeal, the trial court, at the request of appellees, held a hearing on appellants’ motion to tax costs and subsequently entered two costs judgments differing in amounts in favor of appellants. Appellants urge that the trial court was without authority to enter those costs judgments. The Supreme Court of Florida, in Roberts v. Askew, 260 So.2d 492 (Fla.1972) has held to the contrary.

AFFIRMED.

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


text:
    DEPARTMENT OF BUSINESS REGULATION, DIVISION OF BEVERAGE, State of Florida, Appellant (Defendant), v. The HUDDLE, INC., a Florida Corporation, Appellee (Plaintiff).
    No. AA-448.
    District Court of Appeal of Florida, First District.
    Feb. 15, 1977.

      Charles L. Curtis, Tallahassee, for appellant.
    Milton E. Grusmark, Miami, for appellee.
   MILLS, Judge.

The issues raised by this appeal are:

1. Whether that provision of Section 561.20(2)(a)3, Flordia Statutes (1975), effective 18 April 1972, which requires a special restaurant alcoholic beverage licensee to derive 51% of its gross revenue from the sale of food and nonalcoholic beverages applies to Huddle’s special restaurant license which was issued prior to 18 April 1972.

2. Whether that provision of Fla.Admin. Code Rule 65A-3.15, effective 1 September 1969 and repealed 1 May 1973, which requires a special restaurant alcoholic beverage licensee to derive 30% of its gross revenue from the sale of food and nonalcoholic beverages applies to Huddle’s special restaurant license.

Huddle is the owner of a special restaurant license located in Dade County. It has operated the restaurant on which the special license is located since February 1974. It obtained a transfer of the license from another special restaurant licensee who had operated under the license for more than twenty years.

In 1974, when Huddle received its special license, the Division notified it that it would be required to derive at least 51% of its gross revenue from the sale of food and nonalcoholic beverages. Huddle filed a declaratory judgment action seeking a determination of the applicability of the 51% requirement to its license. The trial court concluded that the 51% requirement was not applicable but that the 30% requirement was applicable. The Division appealed both rulings. Huddle appealed the 30% ruling.

The trial court correctly found that the 51% requirement was not applicable. Section 561.20(2)(b), Florida Statutes (1975), effective 18 April 1972, provides:

“Any county in which special licenses were issued under the provisions of s. 561.20(2)(b) in effect prior to the effective date of this act shall continue to qualify for such licenses pursuant to those provisions in effect prior to the effective date of this act, and shall not be affected by the provisions of paragraph (a) of this subsection.”

The prior Section 561.20(2)(b), enacted in 1961 and in effect until 18 April 1972, provided:

“This subsection shall not apply to any county having home rule under the constitution in which county the provisions of Section 561.20(2) in effect prior to the effective date of this law shall apply.”

Dade County has home rule under the provisions of Article VIII, Section 6(e), Florida Constitution (1968), and had it under its predecessor, Article VIII, Section 11, Florida Constitution (1885) as amended.

Although the current subsection (b) refers to “any county” in which special licenses were issued under the pre-1972 Section 561.20(2)(b), it then adds “shall continue to qualify for such licenses” pursuant to the prior law. It is not the county that qualifies for special licenses but operators of restaurants or others entitled to special licenses. Therefore, the legislative intent was to refer to existing licensees in such counties who could continue to qualify under prior provisions. The objective of the exception is to permit licensees who have complied with the prior law to obtain renewals under the requirements of the prior law. Huddle comes within this construction. As a holder of a special restaurant license under Section 561.20(2)(b) in effect prior to 18 April 1972, it is entitled to qualify for and receive a license pursuant to the provisions of the law in effect prior to 18 April 1972, provided it meets the other requirements set forth in Fla.Admin.Code Rule 7A-3.15 and the applicable rules and regulations of the Division.

■ Subsequent to the trial court’s judgment in this case, the Supreme Court of Florida held in Thayer v. State, 335 So.2d 815 (Fla.1976), that the requirement of Section 561 20(2)(a)3, Florida Statutes (1975), effective 18 April 1972, that a special restaurant licensee must derive 51% of its gross revenue from the sale of food and nonalcoholic beverages did not apply to special licenses issued prior to 18 April 1972. The court reached this result by reasoning that the provisions of the Act required that it be applied prospectively and not retroactively.

It has always been the legislative intent that a special restaurant license under Section 561.20(2) was available only when there was a bona fide substantial restaurant operation primarily engaged in the service of food and nonalcoholic beverages. It was never to be a subterfuge for the operation of a bar or cocktail lounge with only incidental sales of food. This was applicable to Dade County at all times.

The Director of the Beverage Department promulgated administrative rule 65A-3.15, effective 1 September 1969, which required restaurants serving alcoholic beverages under a special restaurant license to meet certain minimum requirements. Among these was the requirement that the monthly average of gross sales of food shall not be less than 30% of the (total gross revenue of the overall restaurant operation. This administrative rule sets forth a test of a bona fide restaurant operation and the test is reasonable and consistent with the statute then in force. Under the provisions of Section 561.20(2)(b), effective 18 April 1972, the provisions of this section in effect prior to that date would include not only the statutory language but also duly promulgated rules and regulations which were not inconsistent with the statutory provisions. Huddle comes within the 30% requirement applicable to the holders of special restaurant licenses in effect prior to 18 April 1972.

In view of the above, it is unnecessary that we reach the constitutional issue urged by the Division.

The final summary judgment entered by the trial court is affirmed.

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

      . The propriety of the circuit court entertaining this proceeding was neither raised nor passed upon. Thus, the applicability of Chapter 120, Florida Statutes (1975), to this proceeding was not put in issue.


text:
    CHARTER DEVELOPMENT CORP., Appellant, v. William EVERSOLE, d/b/a Eversole Construction Company, and Pools by Eversole, Inc., Appellee.
    No. BB-173.
    District Court of Appeal of Florida, First District.
    Feb. 15, 1977.
    F. B. Estergren, of Estergren, Fortune, Anchors & Powell, Fort Walton Beach, for appellant.
    Calvin W. Wilson, Pensacola, for appellee.
   McCORD, Judge.

This is an appeal from a final judgment impressing an equitable lien upon appellant’s property in favor of appellee. Such judgment was entered in an action brought by appellee which sought only the foreclosure of a mechanic’s lien. After considering the evidence presented by the respective parties, the trial judge, by the final judgment, correctly found that no valid claim of mechanic’s lien existed because of the failure of appellee to file a lien within 90 days after the last work or materials were furnished by it. The court further found, however, that appellant was unjustly enriched by the receipt of the benefit of the work and materials furnished by appellee upon appellant’s property and imposed an equitable lien thereon for the sum of $3,450.66. Appellant contends that the adjudication of such equitable lien was error. We agree and reverse.

Appellant property owner entered into a contract with Mercury Construction Company to construct an apartment complex including a swimming pool upon property owned by appellant. Mercury contracted with appellee for construction of the swimming pool. In the course of construction, disagreements arose between general contractor Mercury and appellee which resulted in appellee discontinuing work on the pool, appellee and Mercury each contending the other had breached the subcontract. Mercury then employed another subcontractor who completed the pool. The record shows that of $17,865 (appellee’s subcontract price plus extras) appellee was paid all but $9,010.76; that Mercury paid an additional $11,485 to the new subcontractor to complete the pool and paid $1,005.60 for additional costs. The record also shows that appellant paid Mercury this excess cost.

As previously mentioned, appellee sought only to foreclose a mechanic’s lien. Its complaint contains no prayer for or allegations to support an equitable lien. In spite of this, the trial judge granted an equitable lien finding only that “the defendant was unjustly enriched by the receipt of the benefit of the work and materials furnished by the plaintiff upon the defendant’s property.”

Appellee relies here upon Crane Co. v. Fine, 221 So.2d 145 (Fla.1969), in support of its equitable lien. There, however, the complaint sought foreclosure of a material-man’s lien and prayed in the alternative for an equitable lien and other relief. There the claim for materialman’s lien failed because the plaintiff’s notice of intention to claim a lien as well as his claim of lien were not filed within the time allowed by the statute. There the owner and general contractor were joint venturers and the plumbing subcontractor for whom plaintiff was a materialman was insolvent. The court found that the materialman was entitled to an equitable lien on a $15,000 “hold-back” fund which was due and owing the plumbing subcontractor for work already performed at the time the plumbing subcontract was abandoned; that such fund was still in the hands of the general contractor at the time the plaintiff notified the owner and general contractor that it had furnished materials to the job under the plumbing subcontract. The court further found that the plaintiff, as well as any other material-men whose materials were incorporated in the improvement under the plumbing subcontract and who, like plaintiff, remained unpaid at the time the plumbing subcontractor abandoned the contract, had “a right of a special nature” in the funds due and owing on account of materials supplied by them to the improvement. There, unlike here, nothing appeared in the record to show that the joint venturer owners were unable to complete the plumbing work for the amount payable under the plumbing subcontract. On the other hand, the court in Crane stated that from answers to interrogatories “it is fair to assume that the cost of completion did not exceed this amount.” The court went on to state further, “In these circumstances, it is inescapable that to allow the owner-contractor joint venturer to defeat the plaintiff’s claim to share in the $15,000.00 hold-back fund would unjustly enrich them at the expense of the plaintiff. And it would be especially inequitable in view of the fact that the plumbing subcontractor with whom plaintiff is in privity is insolvent.”

The Supreme Court in Crane continued with the following statement of the law which is particularly applicable in the case sub judice:

“Ordinarily, the only right or interest that such a materialman has in the funds payable under the direct contract by the owner — and, in the circumstances specified by the statute, in the property improved by his materials — arises out of the provisions of the Mechanics’ Lien Law, Ch. 84, Fla.Stat.1965 (Ch. 713, Fla.Stat. 1967, F.S.A.); and, in the absence of special or peculiar equities, his failure to perfect his statutory right thereunder leaves him only his remedies at law. We emphasize that this opinion is not to be interpreted as holding that a material-man is entitled to seek an equitable lien merely because his materials are incorporated in the improvement." (Emphasis supplied.)

The record in the case sub judice does not show any special or peculiar equities in ap-pellee’s favor. It only shows that appellee’s work and materials were incorporated in the improvement. We have considered the other authorities cited by appellee but find them not applicable to this case.

The trial court refused to hear testimony concerning attorney’s fees offered by appellant at the close of the trial and ruled in the final judgment that neither party was entitled to an attorney’s fee. Appellant having successfully resisted appellee’s claim for a mechanic’s lien, his attorney is entitled to a reasonable fee for his services pursuant to § 713.29, Fla.Stat.1975.

Reversed and remanded with directions to award appellant’s attorney a reasonable attorney’s fee for his representation of appellant in the trial court.

BOYER, C. J., and MILLS, J., concur.


text:
    Melville C. BASS, Appellant (Plaintiff), v. Reubin O’D. ASKEW and Kelly Phillips, Appellees (Defendants).
    No. BB-275.
    District Court of Appeal of Florida, First District.
    Feb. 15, 1977.

      Frank A. Graham, Jr., of Graham & Vos-sler, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., William C. Sherrill, Jr., Asst. Atty. Gen., for appellees.
   MILLS, Judge.

Bass filed a declaratory judgment action against the Governor seeking a declaration that an executive order of suspension and an amended executive order of suspension were legally insufficient, and that the Governor did not have authority to amend an executive order of suspension. The trial court ruled adversely to Bass on both issues. Bass appeals contending that the trial court erred (1) by applying an incorrect standard for review of the suspension orders, (2) by holding the suspension orders sufficient, and (3) by holding the Governor had authority to amend a suspension order.

Bass was elected to the office of Highlands County Commissioner. Ten months later, the Governor issued an executive order suspending him from his office. The suspension order was based on allegations of operating a motor vehicle while under the influence of an intoxicating beverage on three different occasions and attending only twenty-five of forty-five commission meetings.

Fifty days later, the Governor issued an amended suspension order continuing the suspension of Bass, substantially realleging the charges of the original order, and alleging that Bass’ attendance and his representation of the citizens of his district were impaired by his severe and chronic alcoholism.

The Florida Senate has not as yet reviewed the executive suspension of Bass.

The correct standard for reviewing a suspension order is whether it contains allegations that bear some reasonable relation to the charge. If it does, it should be adjudged sufficient. State ex rel. Hardie v. Coleman, 115 Fla. 119, 155 So. 129 (1934). The trial court correctly applied the reasonable relation standard in reviewing the suspension orders in this case.

In both orders, Bass is charged with malfeasance, misfeasance, neglect of duty, drunkenness or incompetence. Article IV, Section 7(a), Florida Constitution. A suspension order is sufficient if it states one or more constitutional grounds and supports the statement with alleged facts sufficient to constitute grounds of suspension. State ex rel. Hardie v. Coleman, supra.

The original order alleges that Bass failed to attend twenty of forty-five commission meetings. The most important duty of a county commissioner is to attend commission meetings because this is the place where county business is discussed and concluded. It is the Governor’s constitutional responsibility to initially determine how many absences constitute neglect of duty.

The amended order alleges that Bass failed to attend nineteen of forty-five commission meetings and failed to represent the citizens of his district because of a severe and chronic alcoholic condition. Absences caused by severe and chronic alcoholism, coupled with three separate arrests for driving while under the influence of intoxicating beverages, establish a prima facie charge of drunkenness, incompetence and neglect of duty. State ex rel. Hardie v. Coleman, supra.

The allegations of the orders bear a reasonable relation to the charges. Since each order contains a sufficient allegation of fact which supports at least one ground for suspension, it became the constitutional duty of the senate to review the charges and the evidence, and to determine if the evidence supports the charges.

We agree with the trial court that an executive suspension order has a twofold purpose. As he stated, it protects the people by providing a method of immediate suspension of an errant public official, and it protects the suspended official by informing him of the constitutional grounds of suspension so that he may prepare his defenses for presentation to the senate. As long as a suspended official is provided with adequate notice and a reasonable time within which to prepare his defenses, the Governor has the right to amend a suspension order. Bass was given adequate notice and a reasonable time to prepare his defenses after service of a copy of the amended suspension order on him. The amendment did not delay the senate hearing. Nor does Bass claim nor does he show that any prejudice has resulted to him because of the amendment to the suspension order.

The summary judgment entered in favor of the Governor and Phillips, whom the Governor appointed to replace Bass, is affirmed.

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


text:
    Billy J. MURPHY, Petitioner, v. STATE of Florida, DEPARTMENT OF ADMINISTRATION, DIVISION OF RETIREMENT, and State of Florida Retirement Commission, Respondents.
    No. CC-199.
    District Court of Appeal of Florida, First District.
    Feb. 15, 1977.
    Mallory E. Horne and Edward S. Jaffry, Horne & Jaffry, Tallahassee, for petitioner.
    Mary Clark and Steven S. Mathues, Tallahassee, for respondents.
   SMITH, Judge.

Respondent’s motion to dismiss Murphy’s petition for certiorari as untimely questions whether our decision in Dubin v. Department of Business Regulation, 252 So.2d 290 (Fla. 1st DCA 1971) applies in the calculation of the time for filing a petition for review under the 1974 Administrative Procedure Act. Dubin held, in the context of the 1961 Administrative Procedure Act, that an agency’s adjudicatory decision

“. . . is not deemed complete, and thus ‘rendered’, until three days following the date upon which the agency served its order on the party respondent by mail.” 252 So.2d at 292.

The petition in this case seeks certiorari review of the Retirement Commission’s order denying petitioner certain retirement benefits. The petition is in the form contemplated by our decision in Yamaha Int’l Corp. v. Ehrman, 318 So.2d 196 (Fla. 1st DCA 1975), approved in Shevin v. Public Serv. Comm’n, 333 So.2d 9 (Fla.1976). It was filed within thirty-three days, but not within thirty days, after a copy of the agency decision was mailed to petitioner. See Fla.App. Rules 3.2, 3.4. The respondent Commission urges the petition is untimely because the Commission’s decision was stated in the record by voice vote at a public meeting and petitioner was verbally notified of the decision the same day — more than thirty days before the petition for review was filed.

Section 120.59, Florida Statutes (1975) provides in relevant part:

“(1) The final order in a proceeding which affects substantial interests shall be in writing or stated in the record
“(4) Parties shall be notified either personally or by mail of any order, and, unless waived a copy of the final order shall be delivered or mailed to each party or to his attorney of record.”

By virtue of the quoted Section 120.59(4), the parties — who alone are conceivably interested in calculating the time for seeking judicial review — are entitled in the absence of waiver to notice of the final order affecting substantial interests by delivery or mailing of a copy. We conceive that, irrespective of any verbal notice an affécted party may have, the rationale of Dubin should be applied to the 1974 Administrative Procedure Act to add three days to the time for seeking judicial review of a final order which is required to be delivered or mailed to parties and which is mailed. Uncertainty would rule if the time for judicial review should be made to depend upon proof of the fact and extent of a party’s verbal notice of agency action.

In order to assure that affected parties have notice of their actions and that judicial review will be promptly sought, if at all, agencies should take care to comply with Section 120.59(4) immediately upon adopting a final order, and they should preserve in writing proof of service, as by appending to their orders appropriate certificates of the date of delivery or mailing. See Fox v. South Florida Regional Planning Council, 327 So.2d 56, 59 (Fla. 1st DCA 1976).

The petition for review, having been filed within thirty-three days after the agency’s order was mailed to petitioner, was timely. The motion to dismiss is

DENIED.

RAWLS, Acting C. J., and MILLS, J., concur.


author: By the Court. BOYER, Chief Judge,

text:
    Harry Moody SIGNS, Petitioner, v. STATE of Florida DEPARTMENT OF TRANSPORTATION, Respondent.
    No. DD-114.
    District Court of Appeal of Florida, First District.
    Feb. 15, 1977.

      William D. Rowland, Winter Park, for petitioner.
    Robert L. Shevin, Atty. Gen. and George L. Waas, Tallahassee, for respondent.
   By the Court.

Upon considering the briefs and the record, the petition for review is denied.

MILLS and McCORD, JJ., concur.

BOYER, C. J., concurs specially.

BOYER, Chief Judge,

specially concurring.

I concur in denial of the Petition for Review, not based upon the merits, but only because the Petitioner has failed to comply with the applicable rules and statutes.


author: SMITH, Judge. BOYER, Chief Judge,

text:
    Shellie ROWELL, Appellant, v. H. G. SMITH d/b/a H. G. Smith Realty and John Stocks, Appellees.
    No. EE-5.
    District Court of Appeal of Florida, First District.
    Feb. 15, 1977.
    Jackson G. Beatty of Gregory, Towles, Beatty & Hood, Tallahassee, for appellant.
    William L. Camper and David P. Hopstet-ter of Huey & Camper, Sam Spector and Gene D. Brown of Brown, McDowell & Hart, Tallahassee, for appellees.
   SMITH, Judge.

This interlocutory appeal in an action for money damages was taken from an order staying proceedings pending the disposition of another action involving common facts, related but distinct issues, and some but not all the same parties. Appellant, plaintiff in the trial court, is not a party to the other action.

Appellant’s interlocutory appeal is inappropriate because this action is not one formerly cognizable in equity. Florida Appellate Rule 4.2a. Yet, because no adequate remedy for the stay’s delay can be provided after final judgment, we treat the interlocutory appeal as a petition for certiorari. Article V, Section 2(a), Florida Constitution.

Appellant is not a party to the action on which the stay of this case is predicated; disposition of that case evidently will be further delayed by appellate proceedings; and there is no clear likelihood that this case will be controlled by the results of the other. We consider the stay is not in accord with essential requirements of law. See Neale v. Aycock, 340 So.2d 535 (Fla. 1st DCA 1976). The prayer of the petition for certiorari is therefore GRANTED, the stay order dissolved and the case remanded for further proceedings.

ERVIN, J., concurs.

BOYER, C. J., concurs specially.

BOYER, Chief Judge,

specially concurring.

I concur in the result reached and that such result is required by application of the principles announced in Neale v. Aycock, cited in the majority opinion. However, under the facts of this case, even in the absence of Neale v. Aycock, the same result would be required.