source: Caselaw Access Project

license: Public Domain

text:
    Clifford WILLIAMS, Petitioner, v. STATE of Florida, Respondent.
    No. 46035.
    Supreme Court of Florida.
    Dec. 3, 1975.

      F. Malcolm Cunningham, West Palm Beach, for petitioner.
    Robert L. Shevin, Atty. Gen., and Frank B. Kessler, Asst. Atty. Gen., for respondent.
   PER CURIAM.

This cause is before the Court on a petition for writ of certiorari to review the decision of the District Court of Appeal, Fourth District, in Williams v. State, 297 So.2d 655 (Fla.App. 4th 1974). We have jurisdiction pursuant to Fla.Const., Article V, Sec. 3(b)(3), F.S.A.

The petitioner was found guilty by a jury of violating State gambling statutes on August 13, 1973. On August 24, 1973, in open court, the trial judge denied the petitioner’s motion for new trial or, in the alternative, for arrest of judgment; sentenced him to serve 18 months, and pursuant to Florida Rule of Criminal Procedure, Rule 3.670, advised the petitioner of his right to appeal and that he had 30 days to exercise same. A supersedeas bond in the amount of $10,000 was set 'in the event notice of the appeal was filed. The court then adjourned and later that day the trial judge in his chambers signed the written judgment and sentence. Notice of appeal was filed that same day (August 24th), but the filing fee was not paid until August 31st. Even though the written judgment was signed on August 24th, it was not filed for recording, and thus rendered, until August 28th. The State moved to dismiss the appeal alleging that the District Court did not have jurisdiction thereof since the notice of appeal was filed four days prior to the time judgment was rendered. The Fourth District Court granted the motion and this Court granted certiorari.

There are two issues before the Court. The first is whether or not the payment of the filing fee is jurisdictional. This Court in State ex rel. Dedmon v. Carroll, 151 So.2d 5, 7 (Fla.1963) (dicta) observed that Florida Appellate Rule 3.2(d) “ . . . clearly provides that jurisdiction is accomplished by the filing of the notice of appeal in the trial court and payment of the required fee.”

Six years later in City of Gainesville v. Thomas, 229 So.2d 833 (Fla.1969), aff'g., 220 So.2d 644 (Fla.App. 1st 1969), we receded from this observation by holding that:

“While timely filing of notice of appeal is jurisdictional, the timely deposit of the required filing fee is not. We do not mean to imply by this that the deposit of the fee is not mandatory for we are of the opinion that it is. However, in circumstances where the clerk of the appropriate court is satisfied to accept a notice of appeal without simultaneously collecting the filing fee, then the subsequent deposit of the fee after the running of the appeal time limit will not affect the jurisdiction of the appellate court.” (Emphasis supplied)

Our decision in City of Gainesville v. Thomas, supra, was correctly applied to criminal cases by the Fourth District Court in Papp v. State, 249 So.2d 82 (Fla.App. 4th 1971).

Subsequent to our decision in City of Gainesville v. Thomas, s%ipra, three district courts of appeal opined that the timely filing of the notice of appeal alone is jurisdictional. This was so held without any reference to the discretionary power of the clerks to accept or reject the notice of appeal if the filing fee is not simultaneously paid or the adjudication of insolvency not simultaneously filed. State v. Sexton, 283 So.2d 578 (Fla.App. 2d 1973); Evans v. State, 255 So.2d 711 (Fla.App. 1st 1971); Papp v. State, supra. Prior to our decision in City of Gainesville v. Thomas, supra, the First District Court adopted this view. State ex rel. Moore v. Murphree, 106 So.2d 430 (Fla.App. 1st 1958); State ex rel. Moore v. Murphree, supra, in turn was relied upon by the First District Court in Thomas v. City of Gainesville, 220 So.2d 644 (Fla.App. 1st 1969), wherein it held likewise. At that period in time the Mur-phree and Thomas decisions were in direct conflict with the Second District Court’s decisions in Woolley v. State, 193 So.2d 706 (Fla.App.2d 1966) and Clark v. State, 191 So.2d 870 (Fla.App.2d 1966). Our decision in City of Gainesville v. Thomas, supra, was a compromise between these two diametrically opposing views. Regrettably, the passage of time has shown us that this compromise (vesting the clerks with discretionary power) has not accomplished its intended purpose. In retrospect, we can see that the clerks should not be burdened with a decision which requires the exercise of judicial power. Thus, we now recede from our decision in Thomas v. City of Gainesville, supra, as to the discretionary power vested in the clerks to either accept or reject a notice of appeal absent the simultaneous payment of the requisite filing fee or the filing of an adjudication of insolvency. Henceforth, the notice of appeal timely filed without simultaneous payment of the filing fee or the filing of an adjudication of insolvency shall act to vest jurisdiction in the respective appellate court. Consequently, our holding in City of Gainesville v. Thomas, supra, at 833, is modified as follows:

“While timely filing of notice of appeal is jurisdictional, the timely deposit of the required filing fee (or adjudication of insolvency) is not. We do not mean to imply by this that the deposit of the fee (or adjudication of insolvency) is not mandatory for we are of the opinion that it is. The subsequent deposit of the fee after the running of the appeal time limit will not affect the jurisdiction of the appellate court.” (Explanation added)

The sanction for the refusal, or inexcusable negligence of the appellant in ultimately paying the required filing fee or filing the insolvency adjudication lies within the discretion of the appellate court. Accordingly, an appellate court may, after reasonable notice to the appellant, dismiss the appeal.

Our adoption of this position is in accord with the liberal interpretation which is to be accorded procedural rules. We also note that the Federal courts follow the rule that the filing of the notice of appeal alone is jurisdictional. Parissi v. Telechron, 349 U.S. 46, 75 S.Ct. 577, 99 L.Ed. 867 (1955).

Having modified our holding in City of Gainesville v. Thomas, supra, we find it necessary to overrule the decisions of the Second District Court in Woolley and Clark, supra, and expressly state our approval of the First District Court’s decisions in Thomas v. City of Gainesville, supra, and State ex rel. Moore v. Murphree, supra, as to the issue treated herein.

The second issue before us once again raises the question of when the time for appeal commences. Herein, the petitioner filed his notice of appeal after the written judgment was signed, but before it was rendered. From the briefs filed in this cause, it is apparent that the terms “rendered” and “entered” as employed in the appellate rules still engender confusion as to exactly when the appeal period commences.

Both words are used in the appellate rules. For example, Florida Appellate Rule 3.2(b) provides that:

“Appeals from final decisions, orders, judgments or decrees shall be commenced within 30 days from the rendition of the final decision, order, judgment or decree appealed from, . . . .” (Emphasis supplied)

However, Florida Appellate Rule 6.2 provides that:

“Any appeal by the defendant from the judgment or sentence shall be taken within 30 days after the sentence is entered, provided that the defendant may take an appeal from the judgment within 30 days after the judgment is entered.” (Emphasis supplied)

That the use of the above emphasized two different words for the same purpose in the rules has caused confusion is understandable since their common law definitions are contrary to those accorded them by this Court,

At early common law, both possessed separate and distinct meanings. “To render judgment” meant that the court had pronounced, stated or declared the judgment of the court in a given case; whereas, “To enter — or to record judgment” meant the clerk’s ministerial act in spreading the judgment rendered upon the court’s official records. Black’s Law Dictionary, 1460 (Rev, 4th ed. 1968). Viewed within the confines o!f these two different definitions the above two rules are in direct conflict with one another. However, this Court’s adoption of Florida Appellate Rule 1.3 (Rendition) harmonized these two definitions by making them synonymous. The rule states in pertinent part that the:

‘‘Rendition of a judgment, decision, order or decree means that it has been reduced to writing, signed and made a matter of record, or if recording is not required then filed. A paper is deemed to be recorded when filed with the clerk and assigned a book and a page number.” (Emphasis supplied)

This definitional harmonization was reaffirmed by this Court in State ex rel. Faircloth v. Cross, 238 So.2d 81 (Fla.1970). Therein, Mr. Justice Adkins, for the Court, held that the term “rendition” as used in Florida Appellate Rule 1.3, and the term “entered” in Rule 6.2 were synonymous. The Court also held that the meaning of “rendered” as used in Florida Rule of Criminal Procedure, Rule 3.670 (formerly 1.670), is in accord with the two above rules.

In State ex rel. Faircloth v. Cross, supra, the Court was faced with the situation where the defendant filed his notice of appeal from oral judgments of guilt IS days before the written judgments were rendered, and thereafter filed a motion for a new trial. In such a case, a judgment is not deemed rendered (even though filed for recording) until such post-trial motions are disposed of.

Any question as to whether this synonym was to apply equally to both criminal as well as civil appeals was settled by this Court in Jenkins v. Lyles, 223 So.2d 740 (Fla.1969). Therein we expressly overruled the decision of the Second District Court in Gossett v. State, 188 So.2d 836 (Fla.App. 2d 1966), wherein that court declined to apply the harmonization of these two terms in Florida Appellate Rule 1.3 to criminal cases. Conversely, we expressly approved the Third District Court’s decision in State v. Shedaker, 190 So.2d 429 (Fla.App. 3d 1966), in which the latter court stated that the rule’s harmonization of these terms applied equally to civil and criminal cases. Jenkins v. Lyles, supra, at 742 n. 6. This is the settled construction of these two terms in this jurisdiction. State ex rel. Faircloth v. Cross, supra; Jenkins v. Lyles, supra; White v. State, 267 So.2d 360 (Fla.App.2d 1972). Thus, it must be realized that for appellate purposes the use of the terms “rendered, render or rendition” and “enter or entered” are synonymous and their respective use in the appellate rules is to be considered to be the definitional equivalent of rendition as stated in Florida Appellate Rule 1.3.

In the instant case, the petitioner filed his notice of appeal after the trial judge signed the written judgment, but before it was filed for recording. Consequently, under the above construction of synonymity of “rendered” and “entered”, the notice of appeal was premature, and did not vest the appellate court with jurisdiction. However, the petitioner was placed in an untenable position since the judgment condi-, tioned the grant of supersedeas bond upon the filing of the notice of appeal. Hence, it is understandable that the defendant would file his notice of appeal so as to be eligible for such bond at the earliest possible time.

Because of this situation, we now hold that a defendant may, for the purposes of obtaining supersedeas bond, file his notice of appeal at any time after oral judgment or sentence is pronounced and before it is rendered, i. e., filed for recording. Prior to the judgment, the notice of appeal shall not be effective to vest jurisdiction in the appellate court, but will allow the defendant to obtain supersedeas bond. At the time when the judgment and/or sentence is rendered (filed for recording) the notice of appeal shall be effective to vest jurisdiction in the appellate court. It must be noted that notice of appeal so filed (to obtain supersedeas before judgment is rendered) shall not be subject to dismissal either by motion of the parties or of the Court.

Leaving aside the question of obtaining supersedeas bond, we also hold that a notice of appeal which is prematurely filed shall not be subject to dismissal. Rather, such a notice of appeal shall exist in a state of limbo until the judgment in the respective civil or criminal case is rendered. At the time of rendition, the notice of appeal shall mature and shall vest jurisdiction in the appellate court.

Thus, a notice of appeal which is filed after the oral pronouncement of judgment and/or sentence, but before rendition thereof, is not to be dismissed on the grounds that it is premature. This rule shall apply to such situations as when the defendant filed his notice of appeal:

1. After oral pronouncement of judgment, but before the judgment is reduced to writing and signed.
2. After the written judgment is signed, but before it is rendered (filed for recording).
3. After the written judgment is filed for recording, but before a post-trial motion is decided.

This list is not to be considered as delineating the only situations in which this ruling applies. Others may arise in future cases. Thus, cases such as Holmes v. State, 267 So.2d 344 (Fla.App. 4th 1972), which held that a notice of appeal must be dismissed if filed prematurely, are expressly overruled.

Apart from these judgments, decrees, decisions and orders which are required to be recorded, our holding as to the premature filing of a notice of appeal is also to apply in these cases where the judgment, decree, decision or order is not required to be recorded. As to these, Florida Appellate Rule 1.3 only requires that it be “filed with the clerk” as opposed to “filed for recording.”

It is emphasized that our respective holdings herein do not expand the thirty-day appeal period mandated -by the Appellate Rules, but rather serve to' harmonize the inconsistent prior practices under the rules with this Court’s philosophy that procedural practices should not be permitted to frustrate substantive rights.

The decision of the District Court of Appeal, Fourth District, is quashed and the cause remanded with instructions that the petitioner’s appeal be reinstated.

It is so ordered.

ADKINS, C. J., ROBERTS, BOYD, OVERTON and ENGLAND, JJ., and KLEIN, Circuit Judge, concur.

      . It should be noted that this Court’s decision in State ex rel. Ervin v. Smith, 160 So.2d 518 (Fla.1964), and the First District Court’s decision in Gray v. State, 184 So.2d 222 (Fia.App. 1st 1966), were cited as controlling authority as to this point in the concurring opinion in Thomas v. City of Gaines-ville, supra. We do not deem them to be controlling upon this issue since both involved the untimely filing of a notice of appeal and did not speak to the question of whether the timely filing of the notice of appeal alone as opposed to the timely filing of the notice of appeal and the simultaneous payment of the filing fee is jurisdictional.


author: OVERTON, Justice.

text:
    Robert DAMORA, Petitioner, v. STRESSCON INTERNATIONAL, INC., a Florida Corporation, et al., Respondents.
    No. 45553.
    Supreme Court of Florida.
    Nov. 12, 1975.
    Rehearing Denied Jan. 23, 1976.

      Jackson L. Peters of Knight, Peters, Hoeveler, Pickle, Niemoeller & Flynn, and Jeanne Heyward, Miami, for petitioner.
    John F. Howard of Howard, Camillo & Payne, Fort Lauderdale, for respondents.
   OVERTON, Justice.

The petitioner, Damora, is a New York architect who is seeking to enforce, pursuant to Section 682.03, Florida Statutes, a contract provision requiring arbitration in a foreign jurisdiction, specifically New York City, New York.

Petitioner-Damora and the respondents-Givotovskys entered into a standard form American Institute of Architects (AIA) contract providing for the petitioner to design and supervise construction of a residence in Florida for the respondents. Respondents, who are the real parties in interest in this proceeding, filed a third party complaint alleging that the petitioner negligently prepared plans and specifications and negligently supervised construction, resulting in damages to the respondents.

The contract between the parties was the “standard form of agreement between owner and architect,” which included an arbitration provision as Condition 12. An addendum to Condition -12 was added to the contract, which provided that the arbitration would be in New York City, New York. The arbitration provision with the addendum inserted reads:

“12 Arbitration
“Arbitration of all questions in dispute under this Agreement shall be in New York City, New York, shall be at the choice of either party and shall be in accordance with the provisions, then obtaining, of the Standard Form of Arbitration Procedure of the American Institute of Architects. This Agreement shall be specifically enforceable under the prevailing arbitration law and judgment upon the award rendered may be entered in the court of the forum, state or federal, having jurisdiction. The decision of the arbitrators shall be a condition precedent to the right of any legal action.”
[The underlined portion is the addendum.]

The petitioner moved to require arbitration pursuant to the provisions of Section 682.03, Florida Statutes, and requested the court to enter an order directing the parties to proceed with arbitration in accordance with the terms and provisions of the contract. The trial court denied the motion to require arbitration, and the District Court of Appeal affirmed per curiam without opinion but certified this question to this Court:

“WHERE AN AGREEMENT TO ARBITRATE FUTURE DISPUTES PROVIDES for Arbitration in another JURISDICTION (IN THIS CASE, NEW YORK), IS SUCH A PROVISION A REJECTION OF THE FLORIDA ARBITRATION CODE, CHAPTER 682, F.S., AS TO RENDER THE AGREEMENT TO ARBITRATE NOT BINDING UPON OR ENFORCEABLE IN THE COURTS OF THIS STATE?”
We have jurisdiction.

The question is one of first impression in this state. We answer it in the affirmative. It is our opinion that under the contract terms in this specific case, the Florida Arbitration Code, Chapter 682, Florida Statutes, was rejected by the parties by reason of their agreement to arbitrate in New York City, New York. We hold the provision that arbitration was to take place in New York constituted a stipulation that the Florida Arbitration Code should' not apply. See Section 682.02, Florida Statutes (1973).

The Florida courts have no statutory authority under Chapter 682 to compel arbitration in another jurisdiction. Further, the agreement between the parties failed to specify either that Florida law shall govern or that Florida arbitration procedure shall apply. The inference from the wording of the agreement is that New York arbitration law shall govern and the American Institute of Architects’ standard form of procedure shall apply.

The rights of the parties under this arbitration provision stand and fall upon the contract terms, not the statutory arbitration procedure in this state.

Absent the statutory authority of Chapter 682 to enforce the arbitration provision, the controlling law of this state clearly makes an arbitration provision voidable at the instance of either party and prohibits its being used as a bar to an action by either party in a court of competent jurisdiction. Mr. Justice Sebring stated the law of this state prior to the enactment of Chapter 682 in Fenster v. Makovsky, 67 So.2d 427, 429 (Fla.1953), where he said:

“Agreements to arbitrate disputes between parties are generally looked upon with approval by the courts when the subject matter of such agreements is confined within legally permissible limits, and every reasonable presumption will be indulged to uphold arbitration proceedings which have resulted in an award. 6 C.J.S., Arbitration and Award, §§ 1 and 130. It cannot be doubted, however, that a general agreement in or collateral to a contract to submit in the future to final determination by arbitration the rights and liabilities of the parties with respect to any and all disputes that may thereafter arise under the contract is, at least until a subsequent valid submission agreement is entered into, voidable at will by either party at any time before an award is made and has no effect on the right of either party to invoke the jurisdiction of the courts. See 3 Am.Jur., Arbitration and Award, Sec. 31; Sturges, Commercial Arbitra-tions and Awards, Secs. IS, 75, 79; Yonge, Arbitration of Civil Claims in Florida, Vol. VI, No. 2, Univ. of Florida Law Review, pp. 163-164. .
***** *
“By the great weight of authority such an agreement is invalid as constituting an attempt to oust the legally constituted courts of their jurisdiction. Such being its nature it cannot be used as a bar to an action brought on the subject matter of the contract, nor can it constitute, logically, a ground for withholding relief in a court of equity when appropriate relief is sought by either of the parties. See Steinhardt v. Consolidated Grocery Co., [80 Fla. 531, 86 So. 431]; and 6 C.J.S., Arbitration and Award, § 29.” [Emphasis supplied]

See also Flaherty v. Metal Products Corporation, 83 So.2d 9 (Fla.1955); Prank J. Rooney, Inc. v. Charles W. Ackerman of Florida, Inc., 219 So.2d 110 (Fla.App.3d 1969).

We hold that an agreement to arbitrate future disputes in another jurisdiction is outside the authority of the Florida Arbitration Code, Chapter 682, Florida Statutes, and such a provision renders the agreement to arbitrate voidable at the instance of either party.

The certified question having been answered in accordance with the ruling by the trial court as affirmed by the District Court of Appeal, the petition for writ of certiorari is discharged.

It is so ordered.

ADKINS, C. J., and ROBERTS, BOYD and ENGLAND, JJ., concur.

      . Art. Y, § 3(b)(3), Fla.Const.

      . The Fourth District in a related factual situation in Knight v. H. S. Eguities, Inc., 280 So.2d 453 (Fla.App. 4th 1973), held the trial court had no authority to compel arbitration in Florida in accordance with a contract provision which specified New York law should govern arbitration proceedings.


text:
    Harry O’Neil ANJIMA, Petitioner, v. STATE of Florida, Respondent.
    No. 48153.
    Supreme Court of Florida.
    Oct. 14, 1975.
   Certiorari dismissed sua sponte. 317 So.2d 791.


author: PER CURIAM.

text:
    Maurice REVITZ, Trustee, Petitioner, v. COUNTY OF DADE et al., Respondents.
    No. 45448.
    Supreme Court of Florida.
    Nov. 5, 1975.
    Rehearing Denied Jan. 16, 1976.
   PER CURIAM.

Certiorari dismissed. 291 So.2d 18.

ROBERTS, BOYD, OVERTON and ENGLAND, JJ., and MUSZYNSKI, C. J., concur.

ADKINS, C. J., dissents.


text:
    In re ESTATE of Phillips KINDY, Deceased. KRONGOLD AND BASS, P.A., Petitioner, v. Vernamae KINDY, Respondent.
    No. 47333.
    Supreme Court of Florida.
    Nov. 12, 1975.
    Rehearing Denied Jan. 16, 1976.
   Certiorari denied. 310 So.2d 349.

ADKINS, C. J., and ROBERTS, OVERTON, ENGLAND and SUND-BERG, JJ., concur.


text:
    CITY PLUMBING COMPANY and Travelers Insurance Company, Petitioners, v. Arwood HOLLINS and Industrial Relations Commission, Respondents.
    No. 47332.
    Supreme Court of Florida.
    Nov. 17, 1975.
   Certiorari denied.

ROBERTS, Acting C. J., and BOYD, OVERTON, ENGLAND and SUND-BERG, JJ., concur.


text:
    James Young GHENT, Petitioner, v. Louie L. WAINWRIGHT, Secretary, Department of Offender Rehabilitation, State of Florida, and Ray E. Howard, Chairman, Florida Parole and Probation Commission, Respondents.
    No. 48276.
    Supreme Court of Florida.
    Nov. 17, 1975.
   Petition denied.


text:
    MAJOR REALTY CORPORATION and Commercial Union Company, Petitioners, Cross-Respondents, v. Albert GORDON and the Industrial Relations Commission of the State of Florida, Respondents, Cross-Petitioner.
    No. 47389.
    Supreme Court of Florida.
    Nov. 17, 1975.
   Certiorari denied.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and ENGLAND, JJ„ concur.


text:
    Shelton MERRITT, III, Petitioner, v. Keith K. BURGIN, d/b/a Seaside Plumbing Company, et al., Respondents.
    No. 47461.
    Supreme Court of Florida.
    Nov. 17, 1975.
   Certiorari denied. 311 So.2d 688.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and ENGLAND, JJ., concur.


text:
    The STATE of Florida ex rel. Peter A. LEVIN, Petitioner, v. Honorable Russell H. McINTOSH, Judge, Circuit Court of Palm Beach County, Florida, Respondent.
    No. 47983.
    Supreme Court of Florida.
    Nov. 17, 1975.
   Petition denied.

BOYD, Acting C. J., and OVERTON, ENGLAND, SUNDBERG and HATCH-ETT, TT., concur.


text:
    Willie Joe MORRIS, Petitioner, v. Ed STANCIL, Supervisor, Inmate Records, Dept. of Offender Rehabilitation, State of Florida, Respondent.
    No. 48023.
    Supreme Court of Florida.
    Nov. 17, 1975.
   Petition denied.


text:
    VOLUSIA COUNTY BOARD OF PUBLIC INSTRUCTION and the Travelers Insurance Company, Petitioners, v. William Louis RANGE and the Industrial Relations Commission, Respondents.
    No. 47417.
    Supreme Court of Florida.
    Nov. 18, 1975.
   Certiorari denied.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and HATCHETT, JJ., concur.


text:
    CERTAIN LANDS WITHIN SAN SEBASTIAN DRAINAGE DISTRICT et al., Petitioners, v. SAN SEBASTIAN DRAINAGE DISTRICT, Respondent.
    No. 47175.
    Supreme Court of Florida.
    Nov. 19, 1975.
   Certiorari denied. 308 So.2d 660.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and SUNDBERG, JJ., concur.


text:
    Calvin “Junior” COBB, Petitioner, v. STATE of Florida, Respondent.
    No. 48362.
    Supreme Court of Florida.
    Nov. 19, 1975.
   Petition dismissed sua sponte. 319 So.2d 208.


text:
    James Lenell JONES, Petitioner, v. Louie L. WAINWRIGHT, Secretary, Department of Offender Rehabilitation, and Ray E. Howard, Chairman of the Florida Parole and Probation Commission, Respondents.
    No. 48329.
    Supreme Court of Florida.
    Nov. 19, 1975.
   Petition denied.


text:
    John D. SOLLAZZO, Petitioner, v. STATE of Florida, Respondent.
    No. 48314.
    Supreme Court of Florida.
    Nov. 19, 1975.
   Petition denied.


text:
    Mary Lee WILLIAMS, etc., et al., Petitioners, v. WEST VOLUSIA HOSPITAL AUTHORITY, etc., et al., Respondents.
    No. 47225.
    Supreme Court of Florida.
    Nov. 19, 1975.
   Certiorari denied.

ROBERTS, Acting C. J., and BOYD, OVERTON and ENGLAND, JJ., concur.

SUNDBERG, J.,'dissents.


text:
    Willie Joe WILLIAMS, Petitioner, v. STATE of Florida, Respondent.
    No. 48324.
    Supreme Court of Florida.
    Nov. 19, 1975.
   Petition denied.


text:
    Percy SPANN, Petitioner, v. STATE of Florida, Respondent.
    No. 48307.
    Supreme Court of Florida.
    Nov. 19, 1975.
   Petition denied.


text:
    Sidney HOUGH and Jim Burnette, Petitioners, v. LEON REALTY, INC., et al., Respondents.
    No. 47381.
    Supreme Court of Florida.
    Nov. 20, 1975.
   .Certiorari denied. 310 So.2d 767.

ADKINS, C. J, and ROBERTS, OVERTON, ENGLAND and SUND-BERG, JJ., concur.


text:
    William MARKHAM, as Broward County Property Appraiser, Petitioner, v. ESCOM ENTERPRISES, INC., and Joseph L. Antonucci, Respondents.
    No. 47400.
    Supreme Court of Florida.
    Nov. 20, 1975.
   Certiorari denied. 311 So.2d 402.

ADKINS, C. J., and BOYD, OVER-TON, ENGLAND and SUNDBERG, JJ., concur.


text:
    Max MOGUL, Petitioner, v. McCLASKEY REALTY, INC., a Florida Corporation, Respondent.
    No. 47206.
    Supreme Court of Florida.
    Nov. 20, 1975.
   Certiorari denied. 309 So.2d 254.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and HATCHETT, JJ., concur.


text:
    Arthur E. MOORE, Petitioner, v. Dorothy M. MOORE, Respondent.
    No. 47363.
    Supreme Court of Florida.
    Nov. 20, 1975.
   Certiorari denied. 311 So.2d 152.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and SUNDBERG, JJ., concur.


text:
    Frederick John ROTI, Petitioner, v. STATE of Florida, Respondent.
    No. 47942.
    Supreme Court of Florida.
    Nov. 20, 1975.
   The Court has considered the petition for writ of habeas corpus and the return of the respondent to the writ that was issued and is now of the opinion that petitioner, according to the record now before us, is not entitled to his liberty, so the writ of habeas corpus is discharged and petitioner is remanded to custody.

It is so ordered.

ROBERTS, ENGLAND, SUNDBERG and HATCHETT, JJ., concur.

ADKINS, C. J., dissents.


text:
    In re the Interest of Howard DeWayne RUCKER, a minor. Mildred Rucker LITTEL, Petitioner, v. Lena Belle HUNNICUTT, Respondent.
    No. 47399.
    Supreme Court of Florida.
    Nov. 20, 1975.
   Certiorari denied. 310 So.2d 45.

ADKINS, C. J., and ROBERTS, OVERTON, ENGLAND and SUND-BERG, JJ., concur.


text:
    BROWARD COUNTY, Florida, et al., Petitioners, v. Louis A. BARRELLA, and the Industrial Relations Commission, Respondents.
    No. 47406.
    Supreme Court of Florida.
    Nov. 21, 1975.
   Certiorari denied.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and SUNDBERG, JJ., concur.


text:
    Wilmer DEAS, Appellant, v. SUWANNEE VALLEY ELECTRIC COOPERATIVE et al., Appellees.
    No. 47934.
    Supreme Court of Florida.
    Nov. 21, 1975.
   Case dismissed. 316 So.2d 330.

ADKINS, C. J., and OVERTON, ENGLAND, SUNDBERG and HATCHETT, JJ., concur.


text:
    William Joseph DEESE, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 47447.
    Supreme Court of Florida.
    Nov. 21, 1975.
   Certiorari denied. 312 So.2d 267.

ROBERTS, Acting C. J., and OVER-TON, ENGLAND and SUNDBERG, JJ., concur.

BOYD, J., dissents.


text:
    DIVISION OF VOCATIONAL REHABILITATION, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, State of Florida, and Division of Risk Management, Department of Insurance, State of Florida, Petitioners, v. Wilbur Kenyard THOMAS and Industrial Relations Commission, State of Florida, Respondents.
    No. 47336.
    Supreme Court of Florida.
    Nov. 21, 1975.
   Certiorari denied.

ADKINS, C. J., and ROBERTS, OVERTON, ENGLAND and SUND-BERG, JJ., concur.


text:
    Cumsie GIBBS, Petitioner, v. Louie L. WAINWRIGHT, Secretary, Department of Offender Rehabilitation, State of Florida, Respondent.
    No. 48322.
    Supreme Court of Florida.
    Nov. 21, 1975.
   Petition denied.


text:
    HARDRIVES CONSTRUCTION COMPANY and Seaboard Fire & Marine Insurance Company, Petitioners, v. Dean WATSON and Industrial Relations Commission, Respondents.
    No. 47268.
    Supreme Court of Florida.
    Nov. 21, 1975.
   Certiorari denied.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and ENGLAND, JJ., concur.


text:
    Robert C. KIZZIAH, Petitioner, v. STATE of Florida, Respondent.
    No. 48342.
    Supreme Court of Florida.
    Nov. 21, 1975.
   Petition denied.


text:
    Luke ROBERTS, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 48328.
    Supreme Court of Florida.
    Nov. 21, 1975.
   Petition denied.


text:
    Benjamin GREENWALD, as Executor of the Estate of Jeanne Blume, Deceased, Petitioner, v. Jack T. BLUME, Respondent.
    No. 47448.
    Supreme Court of Florida.
    Nov. 24, 1975.
   Certiorari denied. 312 So.2d 783.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and HATCHETT, JJ-, concur.


text:
    Phillip GRASSO et al., Petitioners, v. SORENSEN/FLETCHER CONSTRUCTION COMPANY, Respondent.
    No. 48400.
    Supreme Court of Florida.
    Nov. 24, 1975.
   Certiorari dismissed sua sponte. 319 So.2d 194.


text:
    Emil MORTON, individually and as Trustee, et al., Petitioners, v. Richard MORTON et al., Respondents.
    No. 47064.
    Supreme Court of Florida.
    Nov. 24, 1975.
   Certiorari denied. 307 So.2d 835.

BOYD, OVERTON, ENGLAND and SUNDBERG, JJ., concur.

ADKINS, C. J., dissents.


text:
    Arthur John PROCHASKA, Petitioner, v. Barbara M. Ogden PROCHASKA, Respondent.
    No. 48402.
    Supreme Court of Florida.
    Nov. 24, 1975.
   Certiorari dismissed sua sponte. 321 So.2d 153.


text:
    Russell K. WRIGHT, Petitioner, v. EASTERN AIRLINES, INC. and Florida Industrial Relations Commission, Respondents.
    No. 47349.
    Supreme Court of Florida.
    Nov. 24, 1975.
   Certiorari denied. 311 So.2d 205.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and SUNDBERG, JJ., concur.


text:
    SOUTH PINE ACRES, INC., etc., et al., Petitioners, v. M. H. W. PROPERTIES, INC., etc., et al., Respondents.
    No. 47328.
    Supreme Court of Florida.
    Nov. 24, 1975.
   Certiorari denied. 311 So.2d 427.

concur. ADKINS, C. J., and ROBERTS, BOYD, OVERTON and ENGLAND, JJ.,


text:
    James E. SMITH et al., Petitioners, v. COMMUNITY BUILDERS INTERNATIONAL, etc., Respondent.
    No. 47379.
    Supreme Court of Florida.
    Nov. 24, 1975.
   Certiorari denied. 314 So.2d 261.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and SUNDBERG, JJ., concur.


text:
    Walter M. BULGER, Petitioner, v. Louie L. WAINWRIGHT, Secretary, Department of Offender Rehabilitation, State of Florida, Respondent.
    No. 48190.
    Supreme Court of Florida.
    Nov. 25, 1975.
   Petition denied.


text:
    MACHINERY SALES & LIQUIDATION COMPANY, a corporation, Petitioner, v. Archie W. STARLING and Kathryn E. Starling, his wife, Respondents.
    No. 47324.
    Supreme Court of Florida.
    Nov. 25, 1975.
   Certiorari denied. 312 So.2d 254.

ADICINS, C. J., and ROBERTS, BOYD', OVERTON and SUNDBERG, JJ-, concur.


text:
    Ronald B. COY, Petitioner, v. STATE of Florida, Respondent.
    No. 48382.
    Supreme Court of Florida.
    Nov. 25, 1975.
   Petition denied.


text:
    VALLEY CAR WASH, INC., et al., Petitioners, Appellants, v. 163RD STREET SHOPPING CENTER, etc., Respondent, Appellee.
    Nos. 47391, 47362.
    Supreme Court of Florida.
    Nov. 25, 1975.
   Certiorari denied. 310 So.2d 320.

ADKINS, C. J., and ROBERTS, OVERTON, ENGLAND and SUND-BERG, JJ., concur.


text:
    Bernhard L. TONN, Petitioner, v. Maryjane H. TONN, Respondent.
    No. 47808.
    Supreme Court of Florida.
    Nov. 25, 1975.
   Certiorari dismissed. 314 So.2d 157.


text:
    TOBLER HOLDING COMPANY, Petitioner, v. DIVISION OF ADMINISTRATION, State of Florida, DEPARTMENT OF TRANSPORTATION, Respondent.
    No. 47487.
    Supreme Court of Florida.
    Nov. 25, 1975.
   Certiorari denied. 312 So.2d 557.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and HATCHETT, JJ., concur.


text:
    Dennis G. WILSON, Petitioner, v. STATE of Florida, Respondent.
    No. 47504.
    Supreme Court of Florida.
    Nov. 25, 1975.
   Certiorari denied. 312 So.2d 252.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and HATCHETT, JJ., concur.


text:
    Gordon M. JONES and Royal Globe Insurance Co., Petitioners, v. Paul F. KENT and Jessie L. Kent, etc., et al., Respondents.
    No. 47625.
    Supreme Court of Florida.
    Nov. 26, 1975.
   Certiorari dismissed. 313 So.2d 86.


author: NATHAN Judge.

text:
    A. Fred VANN, Appellant, v. FIRST NATIONAL BANK IN LITTLE ROCK, a national banking institution, Appellee.
    No. 75-947.
    District Court of Appeal of Florida, Third District.
    Dec. 16, 1975.
    Rehearing Denied Jan. 23, 1976.
    Starr W. Horton, Miami, for appellant.
    Bradford, Williams, McKay, Kimbrell, Hamann & Jennings and W. Sam Holland, Miami, for appellee.
    Before PEARSON, HENDRY and NATHAN, JJ.
   NATHAN Judge.

This is an interlocutory appeal by appellant, A. Fred Vann, plaintiff in the trial court, from an order dismissing ap-pellee, First National Bank in Little Rock, as a party defendant on the ground of improper venue.

Vann brought suit against certain individual residents of Dade County, Florida, formerly doing business as Barnes Detective Agency Automobile Recovery Bureau, Inc., a Florida corporation, and First National Bank in Little Rock, alleging certain illegal and tortious acts committed by the bank’s agent, Barnes Auto Recovery Bureau, Inc., in Dade County, against Vann, growing out of a repossession by Barnes Auto Recovery of an automobile owned by Vann.

The bank filed its motion to dismiss, asserting its privilege of venue under 12 U.S.C., § 94. Vann contends that the venue privilege was waived because the bank did not raise the issue of privilege in its initial motion to dismiss but rather by a second motion to dismiss filed while the former was pending but had not been argued before the court. We find that the motion to dismiss as to venue was timely made. See Rule 1.140 R.C.P. The law is well established that the venue privilege may be waived. First National Bank of Charlotte, North Carolina v. Morgan, 132 U.S. 141, 10 S.Ct. 37, 33 L.Ed. 282; Michigan National Bank v. Robertson, 372 U.S. 591, 83 S.Ct. 914, 9 L.Ed.2d 961. The question of waiver of this privilege has been determined on a case by case basis, Am.Jur., Venue (1st Ed) § 46. The primary purpose of 12 U.S.C., § 94 was to prevent inconvenience and interruption in the conduct of the bank’s business which might result from removal of records to a foreign district for purposes of defending a lawsuit. Northside Iron & Metal Company, Inc. v. Dobson & Johnson, Inc., 5th Cir. 1973, 480 F.2d 798, 800. Suits against banks were limited to the place where the bank was established 'because this is where the bank was “found” and its records were there.

When a bank “locates” itself in another jurisdiction for the limited transaction of business and commits tortious acts, by and through its agent, such as is alleged in this case, we hold that it has waived its privilege to the extent of being sued on the local transaction or activity involving the alleged tortious acts. Compare Buffum v. Chase National Bank of City of New York, 7th Cir. 1951, 192 F.2d 58.

Reversed.

      . “§ 94. Venue of suits.
      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 such association may be established, or in any State, county, or municipal court in the county or city in which said association is located having jurisdiction in similar cases. . . . ”


text:
    Joseph V. BARRY, Appellant, v. STATE of Florida, Appellee.
    No. U-248.
    District Court of Appeal of Florida, First District. En Banc.
    Sept. 3, 1975.
    Before BOYER, C. J., and McCORD, MILLS and SMITH, JJ

       Kawls, J., not partiepating because of absence from the state.

   PER CURIAM.

On October 11, 1973, Richard L. Brown, a member of the Florida Bar, as attorney for appellant, filed a Notice of Appeal in the office of the Clerk of the Circuit Court, reciting;, “the nature of the order appealed from is the final judgment of guilt following a jury verdict.” A certified copy of that order was filed with the Clerk of this Court as required by the Florida Appellate Rules.

Between January 18, 1974, and April 9, 1974, numerous orders were entered in the trial court extending the time for the transcription by the court reporter of the testimony.

On September 20, 1974, the Clerk of this Court, at the direction of the Chief Judge, wrote a letter to Mr. Brown as attorney for appellant, requesting that he, within seven days from the date thereof, advise the court as to the reasons for his failure to prosecute the appeal, nothing having been filed in this court except a certified copy of the above mentioned Notice of Appeal and various orders extending the time for the filing of the transcript. No response to that letter was received within the seven days therein provided.

On October 17, 1974, this Court issued a Rule to Show Cause directing Mr. Brown to appear before the Court on November 5, 1974, and show cause why he should not be held in contempt of court for failure to prosecute the appeal. Following the hearing pursuant to that Rule to Show Cause an order was entered by this Court publicly reprimanding Mr. Brown “for his dereliction for failure to prosecute this appeal in accordance with the Florida Appellate Rules” and granting 15 days within which to have the court reporter’s transcribed notes prepared and filed with the clerk of the trial court. That order contained a further provision to the effect that upon failure to comply therewith the cause would stand dismissed for failure to prosecute the appeal. The court reporter’s transcribed notes were not so filed and the case was dismissed.

On December 16, 1974, attorney Brown filed in this Court a “Motion to Reconsider and Reinstate Appeal”, which motion was granted by this Court’s order of December 17, 1974. In that order we provided that “this appeal is hereby reinstated and the appellant is granted to and including January 15, 1975, within which to have the transcript of the proceedings prepared in this cause. It is further ordered that this cause shall proceed to a conclusion on the merits without further delay.”

No further action was taken in this cause, whereupon the Clerk of this Court, at the direction of the Chief Judge, on August 8, 1975, wrote to Mr. Brown another “seven day letter”, reciting the foregoing facts and directing Mr. Brown “to advise * this Court as to the reasons for your apparent failure to prosecute this cause and as to the steps you anticipate taking to remedy same.” No response was received to that letter whereupon a Rule to Show Cause was issued on August 21, 1975, directing Mr. Brown to appear before this Court at S :00 a. m. on September 3, 1975, “and show cause, if any you have, why you should not be held in contempt of this Court and punished accordingly for your dereliction for failure to prosecute this appeal in accordance with the Florida Appellate Rules.”

At the hearing Mr. Brown revealed that his client, the appellant, was free on bail and employed, but earning insufficient monies to support his family and to pay for transcribing the record. Mr. Brown further represented to the court that he used the only fee that he has been paid in the amount of $500 to pay the court reporter for partially transcribing her notes and that he has invested approximately $400 additionally of his own funds attempting to prosecute the appeal. He further represented that installment financial arrangements have been made with the court reporter and that the court reporter has promised to deliver the transcript of that portion of the proceedings necessary for prosecution of the appeal on or before Friday, September 5, 1975. Mr. Brown offered no reason nor excuse for having failed to respond to communications from the court.

It is the decision of the court that Richard L. Brown, a member of the Florida Bar and an officer of the court, be and he is hereby publicly reprimanded and that a copy of this decision be published in the Southern Reporter. Further, such portions of the transcript as are to be included in the record on appeal in accordance with the provisions of the Florida Appellate Rules shall be filed in the office of the clerk of the trial court within ten days from date hereof and a certificate signed by Mr. Brown and styled in this Court shall forthwith be filed with the Clerk of this Court reciting the date and time of such filing. The Clerk of this Court shall forward to Mr. Brown a copy of the bill to be submitted by the court reporter called to this Court at the direction of the Chief Judge of this Court for the purpose of recording the proceedings at the hearing on the Rule to Show Cause giving rise to the entry hereof, and Mr. Brown shall pay same within five days from date he receives same from the Clerk of this Court. Upon complying herewith this cause shall proceed without delay in accordance with the provisions of the Florida Appellate Rules.

Failure to timely comply herewith will result in a dismissal of this case without further notice, and in such further disciplinary action in accordance with Rule 3.17, Florida Appellate Rules, and in accordance with the inherent power of this Court, as may then appear to be appropriate in the premises.

It is so ordered.


author: OWEN, Judge.

text:
    Robert Gregory GOBLE and Earl M. Waller, Appellants, v. STATE of Florida, Appellee.
    Nos. 74-1288, 74-1289.
    District Court of Appeal of Florida, Fourth District.
    Nov. 7, 1975.

      Richard L. Jorandby, Public Defender, and James R. Merola, Sp. Asst. Public Defender, West Palm Beach, for appellants.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Stephen R. Koons, Asst. Atty. Gen., West Palm Beach, for appellee.
   OWEN, Judge.

Appellants were jointly charged, tried and convicted for (1) possession of a controlled substance and (2) possession of drug paraphernalia, proscribed by Fla. Stat. §§ 893.13(1) (e) and 893.13(3) (a) (4) (1973) respectively.

There was no evidence of appellants’ actual possession of the controlled substance or the drug paraphernalia. The State’s case was based solely upon an attempt to prove appellants’ constructive possession.

The controlled substance and drug paraphernalia were found when a search pursuant to warrant was made of certain premises in the joint possession of the appellants and another. There was no direct evidence that either of the appellants had actual knowledge of the presence of the controlled substance or drug paraphernalia on the premises, nor was there sufficient evidence of incriminating statements and circumstances from which a jury might lawfully infer such knowledge by the appellants. Thus, the State’s evidence of possession was legally insufficient and it was error to deny the appellants’ motion for judgment of acquittal at the close of the State’s case. Smith v. State, 279 So.2d 27 (Fla.1973); Willis v. State, 320 So.2d 823 (4th DCA Fla., opinion filed October 24, 1975); Smith v. State, 276 So.2d 91 (4th DCA Fla. 1973); Frank v. State, 199 So.2d 117 (1st DCA Fla. 1967).

Accordingly, the judgment is reversed and the cause remanded with instruction to discharge the appellants.

Reversed and remanded.

WALDEN, C. J., and ALDERMAN, JAMES E., Associate Judge, concur.


text:
    Ronald COVINGTON, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1036.
    District Court of Appeal of Florida, Third District.
    Dec. 16, 1975.
    Ronald Covington, in pro per.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

This court, proceeding in the manner outlined and recommended by the Supreme Court of the United States in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, having deferred ruling on a motion of the public defender to withdraw as counsel for the indigent defendant-appellant, and having furnished appellant with a copy of the public defender’s memorandum brief, and having allowed the appellant a reasonable specified time within which to raise any points that he chose in support of his appeal, and the appellant having filed a memorandum brief in support of his position, and on consideration thereof upon full examination of the proceedings we conclude that the appeal is wholly frivolous. State v. Cullen, Fla. 1971, 253 So.2d 861; Chesebrough v. State, Fla.1971, 255 So.2d 675; Llano v. State, Fla.App.1973, 271 So.2d 34; State v. Baker, Fla.1973, 276 So.2d 470. Whereupon the public defender’s said motion to withdraw is granted, and the order or judgment appealed is hereby affirmed.


text:
    Joanne POERSCHKE et al., Appellants, v. Frances FANDREY and Walter Fandrey, husband and wife, Appellees.
    No. 74-156.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 1975.
    Rehearing Denied Jan. 22,1976.
    Henry W. Ciar, Miami, for appellants.
    Edward P. Swan and Charnelle H. Summers, Jr., Miami, for appellees.
    Before PEARSON, HENDRY and NATHAN, JJ.
   PER CURIAM.

Defendants, Joanne Poerschke, and her two children, Joed and Kathy, a minor, appeal from final judgment in favor of the plaintiffs, Frances Fandrey and Walter Fandrey, her husband, the parents of Joanne and grandparents of Joed and Kathy, in an action based on a complaint for a mandatory injunction.

In the amended complaint, the Fandreys allege that the defendants took the following personal property, belonging to the Fandreys: a box containing $88,000 in cash and documents and papers, including records, recorded and unrecorded deeds, mortgages, notes, cancelled checks and bank statements. They further allege that the defendants removed some $309,000 in cash from two safe deposit boxes; that the defendants removed and converted to their personal use all of the furniture, furnishings and personal effects owned by the plaintiffs; that since the filing of the original complaint, the court ordered that $224,700 be placed in a 90-day certificate of deposit in an escrow account. The complaint sought a mandatory injunction ordering the defendants to return all of the cash, documents and papers and other property of the plaintiffs. Following a non-jury trial, the judge ruled in favor of the plaintiffs and ordered the return of all of the cash and property, plus an additional $69,300 judgment against all defendants. The trial court entered a final amended judgment, in which the following findings are made:

“1. That the defendants did on April 1, 1973, unlawfully take from the plaintiff, FRANCES FANDREY, a shoe box containing the sum of EIGHTY EIGHT THOUSAND . . . DOLLARS cash money. That the claim of the defendant, KATHY POERSCHKE, that the above monies were hers by a gift from her grandmother, FRANCES FANDREY, is completely unfounded. It was never a gift or intended as a gift. In addition, there was no delivery of said monies.

That the sum of EIGHTY EIGHT THOUSAND . . . DOLLARS taken by the defendants and contained in said box, less the sum of TWENTY THOUSAND . . . DOLLARS thereof subsequently returned to the plaintiff, FRANCES FANDREY, making a total amount of SIXTY EIGHT THOUSAND . DOLLARS is the property of the plaintiffs and has not been returned to them by the defendants, nor has said sum been commingled with the cash contained in the two (2) safe deposit boxes referred to in the next ensuing paragraph.

2. That the defendants, JOANNE POERSCHKE and JOED POERSCHKE, did on April 2, 1973, remove all of the cash monies contained in the deposit boxes numbered 418 and 466 in the Hialeah-Miami Springs First State Bank and the International Bank of Miami respectively, said monies being the property of the plaintiffs, save and except the sum of TEN THOUSAND . . . DOLLARS which is the property of the defendant, JOANNE POERSCHKE. Said monies, less the sum of TEN THOUSAND . . . DOLLARS were unlawfully taken and withheld from the plaintiffs by the defendants. Of the monies taken from the safe deposit boxes above, the sum of TWO HUNDRED TWENTY-NINE THOUSAND SEVEN HUNDRED . . . DOLLARS was subsequently deposited by the defendants in the United National Bank of Dadeland, although the total sum of the monies taken from the foregoing boxes exceeded the amount of TWO HUNDRED TWENTY-NINE THOUSAND SEVEN HUNDRED . . . DOLLARS.

It is further unbelieveable to this Court that the defendants, JOANNE POERSCHKE and her son, JOED POERSCHKE, did not count the monies taken from the safety deposit boxes while the cash money was in their possession and prior to being deposited in the bank. As stated previously, none of the monies that were deposited in the United National Bank of Dadeland were from the shoe box money.

3. That of the sum of TWO HUNDRED TWENTY-NINE THOUSAND SEVEN HUNDRED . . . DOLLARS referred to above, FIFTY THOUSAND . . . DOLLARS was given to HENRY W. CLAR, Attorney for the Defendants, and that the total of said sum of TWO HUNDRED TWENTY-NINE THOUSAND SEVEN HUNDRED . . . DOLLARS, less FIVE THOUSAND . . . DOLLARS was subsequently marshalled and placed in an escrow Certificate of Deposit purchased from the City National Bank of Miami under the provisions of the Orders of this Court dated May 31, 1973, and June 5, 1973.

That the said FIVE THOUSAND DOLLARS was to be used for payment of the defendant’s costs and a like amount was distributed from the foregoing funds by Order dated December 10, 1973, to be used in payment of the plaintiffs’ costs.

That the foregoing sum of FIVE THOUSAND . . . DOLLARS advanced for defendants’ costs shall be offset against the sum of TEN THOUSAND . . . DOLLARS which was the property of the defendant, JOANNE POERSCHKE, and contained in the safe deposit boxes. The remaining sum of FIVE THOUSAND . . . DOLLARS which was owned by the defendant, JOANNE POERSCHKE, in the safe deposit boxes shall be offset against the sum of SIXTY EIGHT THOUSAND . DOLLARS taken by the defendants from the shoe box, thereby leaving a balance in the amount of SIXTY THREE THOUSAND . . . DOLLARS.

4. That the United States currency which comprised the sum of TWO HUNDRED TWENTY-NINE THOUSAND . DOLLARS described above consists primarily of old bills of the series 1920’s through 1950’s and was bound in aging and old packets and bands.

5. That the defendants did, on or after April 1, 1973, take from the plaintiffs certain documents, records, deeds, recorded and unrecorded, mortgages, notes, can-celled checks and bank statements. A portion of the foregoing items were returned to the plaintiffs on August 1, 1973, pursuant to an Order of Production entered in this cause on June 25, 1973, as amended July 23, 1973.

6. That on or after May 23, 1973, the defendants did unlawfully convert to their own use the furniture, furnishings and personal effects owned by the plaintiffs and located in the premises described as 2984 S. W. 16th Street, Miami, Florida. 7. That on or after May 23, 1973, the defendants did unlawfully remove from the premises located at 2968 S. W. 16th Street, Miami, Florida, substantially all of the furniture, furnishings and personal effects therein located and owned by the plaintiffs. That the Inventory attached hereto . . . constitutes personalty so removed, and are the properties of the plaintiffs, and are now stored at Bond Transfer, Inc. 8.That the Inventory attached hereto . represents personalty deposited in safe deposit boxes rented by the defendants, JOANNE POERSCHKE and JOED POERSCHKE, at the Southeast Bank of Miami on Coral Way and the Coral Gables Federal Savings and Loan Association respectively.

That all of the miscellaneous silverware deposited therein, together with one (1) complete set of eight (8) of each of the Wallace Sterling items are the property of the plaintiffs and the balance of the Wallace Sterling is the property of the defendant, JOANNE POERSCHKE.

******

12. That tried in this suit by the express and implied consent of the parties was the issue of the ownership of certain properties hereinafter enumerated:

A. . . . 3111 N. W. 60th Street, Miami, Florida
B. . . . 3111 N. W. 66th Street, Miami, Florida
C. . ... 3074 N. W. 67th Street, Miami, Florida
D. . .. . 5535 and 5541 N. W. 30th Avenue, Miami, Florida
E. . . . 3072 N. W. 66 Street, Miami, Florida
F. . . . 2928 N. W. 55 Street, Miami, Florida
G. . . . Mortgage interest in and to Lot 3, Block 1, Parcel A. INDIAN WATERWAYS, Monroe County, Florida
H. . . . 3278 N. W. 103rd Street, Miami, Florida

which were purchased by the plaintiff, FRANCES FANDREY, with her own monies and the defendant, JOANNE POERSCHKE, subsequently became a joint tenant by the addition of her name to the documents evidencing title thereto. This Court finds that the plaintiff, FRANCES FANDREY, is entitled to all of the proceeds, either rentals or on mortgages relating to such properties for her life-time. That the receipt by the plaintiff, FRANCES FANDREY, of the proceeds from either the rental or the mortgage payments on the abóvedescribed properties was proper and no accounting need to be made to the defendant, JOANNE POERSCHKE, as to any of the monies collected by FRANCES FANDREY.

13. That tried in this suit by the express and implied consent of the parties was the issue of the ownership of the rear house known as 2910 S. W. 16th Street, Miami, Florida ....

This Court finds that the foregoing property is owned exclusively by the plaintiffs, FRANCES FANDREY and WALTER FANDREY, and any and all monies collected from the rental on said property are the sole monies of the plaintiffs and no accounting needs to be made to the defendant, JOANNE POERSCHKE, as to any monies collected.

It is therefore

ORDERED AND ADJUDGED as follows :

1. That plaintiffs’ Amended Complaint is granted and defendants’ Counterclaim is denied.

2. That the sum of TWO HUNDRED TWENTY-NINE THOUSAND FIVE HUNDRED EIGHTY-FOUR AND 36/100 . . . DOLLARS, together with accrued interested (sic) invested in Certificate of Deposit No. 10577 issued by the City National Bank of Miami on December 10, 1973 under previous Order of this Court shall be paid over forthwith to the plaintiffs, FRANCES FANDREY and WALTER FANDREY, her Husband, and said plaintiffs do have of and recover from the defendants such funds.

The City National Bank of Miami is hereby directed to pay the proceeds of the foregoing Certificate of Deposit to the plaintiffs, FRANCES FANDREY and WALTER FANDREY, her Husband, and the escrow agents, EDWARD P. SWAN and HENRY W. CLAR, are directed to forthwith execute any and all documents necessary to effect such distribution.

3. That the plaintiffs, FRANCES FAN-DREY and WALTER FAND.REY, her Husband, do have of and recover from the defendants, JOANNE POERSCHKE, JOED POERSCHKE and KATHY POERSCHKE, a minor, a money judgment in the amount of SIXTY-THREE THOUSAND . . . DOLLARS for which let execution issue.

4. That the defendants, JOANNE POERSCHKE, JOED POERSCHKE, and KATHY POERSCHKE, a minor, shall forthwith return to the plaintiffs, FRANCES FANDRY and WALTER FANDRY, her Husband, all of the furniture, and in addition thereto,' all personal effects owned by the plaintiffs, and furnishings located in the premises described as 2984 S. W. 16th Street, Miami, Florida and said plaintiffs do have of and recover from said defendants such chattels.

5. That all of the items of personalty enumerated in Exhibit A attached 'hereto are to be returned to the plaintiffs, FRANCES FANDREY and WALTER FAN-DREY, her Husband, forthwith and the said plaintiffs do have of and recover such personalty from the defendants, JOANNE POERSCHKE, JOED POERSCHKE and KATHY POERSCHKE, a minor. It is further ordered that Bond Transfer, Inc. is authorized and directed to deliver all of said items to the plaintiffs forthwith and any costs incurred by Bond Transfer, Inc. is to be paid by the defendant, JOANNE POERSCHKE.

6. That the plaintiffs, FRANCES FAN-DREY and WALTER FANDREY, her Husband, do have of and recover from the defendants, JOANNE POERSCHKE, JOED POERSCHKE and KATHY POERSCHKE, a minor, all of the miscellaneous silverware, together with one (1) complete set of eight (8) of each of the Wallace Sterling items now on deposit in the defendants’ safe deposit boxes rented in the Southeast Bank of Miami on Coral Way and the Coral Gables Federal Savings and Loan Association respectively and described in Exhibit B attached hereto. Said defendants are ordered to forthwith deliver the foregoing items to the plaintiffs.

7.That the plaintiffs, FRANCES FAN-DREY and WALTER FANDREY, her Husband, shall and do have a life estate in and to the following described properties:

A. . . . 3111 N. W. 60th Street, Miami, Florida
B. . . . 3111 N. W. 66th Street, Miami, Florida
C. . . . 3074 N. W. 67th Street, Miami, Florida
D. . . . 5535 & 5541 N. W. 30th Avenue, Miami, Florida

and the remainder, interest upon the death of both FRANCES FANDREY and WALTER FANDREY, her Husband, shall vest in the defendant, JOANNE POERSCHKE.

It is further ordered that said plaintiffs shall not be compelled to account to the defendant, JOANNE POERSCHKE, for any rentals past or future collected on said properties. As to the mortgagee interest in and to Lot 3, Block 1, Parcel A, INDIAN WATERWAYS, Monroe County, Florida, the plaintiffs, FRANCES FANDREY and WALTER FANDREY, her Husband, shall own a life estate in and to said mortgage with the remainder interest therein to vest in the defendant, JOANNE POERSCHKE, and no accounting shall be made by the plaintiffs to said defendant.

As to the following described properties:

A. . . . 3072 N. W. 66th Street, Miami, Florida
B. . . . 2928 N. W. 55 Street, Miami, Florida
C.. . . 3278 N. W. 103rd Street, Miami, Florida

the plaintiffs, FRANCES FANDREY and WALTER FANDREY, her Husband, shall and do have a life estate as to any mortgagee interest or other interest present or past therein and need not account to the defendant, JOANNE POERSCHKE, as to any income therefrom. '

8. That the defendant, JOANNE POER-SCHKE, is directed to deed forthwith unto the plaintiffs, FRANCES FANDREY and WALTER FANDREY, her Husband, all of her right, title and interest, in and to the

South 50 feet of Lot 2, Block 10, of GRAPELAND REVISED, as recorded in Plat Book 3 at Page 196 of the Public Records of Dade .County, Florida.

This Judgment shall operate as a conveyance of the aforedescribed property to the plaintiffs upon the failure of the defendant, JOANNE POERSCHKE, to so deed such property within thirty (30) days from the date of this Judgment.

9. That the plaintiffs do have of and recover from the defendants all costs of this proceeding which shall be taxed upon motion at a later date.

10. That all of the documents not produced on August 1, 1973, pursuant to this Court’s Order of Production dated June 25, 1973 as amended July 23, 1973, shall be produced forthwith by the defendants.

11. That the plaintiff, FRANCES FAN-DREY, is relieved of liability as principal on that cash Injunction Bond executed May 30, 1973 and approved by the Clerk of this Court on June 12, 1973 in the sum of TEN THOUSAND . . . DOLLARS.

That the Clerk of this Court is directed forthwith to pay over to the plaintiff, FRANCES FANDREY, such sum of TEN THOUSAND . . . DOLLARS cash as posted by her, less any lawful expenses of the Clerk.” (Legal descriptions omitted from finding’s #12, #13, and from adjudicatory paragraph #7.)

The appellants have presented several points on appeal, three of which are meritorious. The first point is that the trial court erred in creating life estates by final judgment in favor of the Fandreys in and to certain property in which defendant, Joanne Poerschke, owned a joint interest by virtue of recorded deeds or recorded mortgages, when such life estates were not established or reserved in the recorded instruments by which Joanne acquired title as a joint tenant with her mother, plaintiff Frances Fandrey. The names of both Frances and Joanne appear as the grantees in warranty deeds or as joint mortgagees in the four mortgages. None of the documents by which these estates were created contain conditions, reservations or limitations. By paragraph 12 of the amended final judgment, recited above, a life estate was created in favor of Frances Fandrey as to real estate and mortgages owned by Frances and Joanne as joint tenants under recorded warranty deeds or mortgages, giving Frances the right to collect all rental and mortgage payments derived from the name properties for life without accounting therefor to Joanne. By adjudicatory paragraph 7, a life estate is created in favor of joint tenant Frances Fandrey together with husband, Walter, who had no interest in the properties, according both of them the right, without accounting, to all rentals and proceeds. In essence, then, the amended final judgment has created a life estate to property proceeds in one joint tenant and in a stranger to the property, in spite of the fact that the joint tenancy interests of Frances and Joanne were created by recorded instruments, none of which provides for any life estate.

Although Frances testified at the trial that Joanne’s name was added to the instruments as grantee or mortgagee at a later time, it is undisputed that Frances acquiesced to the creation of the joint tenancy. She contends, however, that there was an understanding that she (Frances) was to have a life interest in the properties and to receive all of the income derived therefrom until her death, whereupon all the interest would go to Joanne. It is stated in 21 Fla.Jur., Life Estates, § 3, that a life estate may be created by deed or by will. Although no certain words need be used in order to create a life estate, it is necessary that the language employed in the instrument as a whole clearly manifests an intention to do so. Anemaet v. Martin Senour Company, Fla.App.1959, 114 So.2d 23; Kach v. Cooley, Fla.App.1967, 201 So.2d 254. Under the facts and the instruments presented in this case, absent a showing of intent from the instruments themselves, this portion of the judgment is improper and should be reversed.

The second point is that the trial court erred in ordering a reconveyance to the plaintiffs of a portion of one of Joanne’s solely owned properties, acquired by a completed, delivered and recorded warranty deed from the plaintiffs vesting unconditional fee simple title in Joanne Poerschke. By paragraph 13 of the amended final judgment, the court vested in Frances and Walter Fandrey exclusive ownership in the described property and the right to collect all rental monies therefrom, and the judgment directed defendant Joanne'to convey her fee simple title of the south 50 feet of this property to the plaintiffs by deed. The record shows that this property had originally been deeded in fee simple by the plaintiffs to defendant Joanne Poerschke and her then husband. Subsequently, Joanne acquired her husband’s undivided half interest. At the time of the litigation, fee simple title had long since been vested in Joanne. There was conflicting testimony as to whether it was her homestead. At the rear south 50 feet of the lot there had been erected a small house used for rental purposes. No trial testimony was adduced from Frances with specific respect to this property, however, her husband, Walter, testified that the original deed in fee simple to Joanne (and her then spouse) was conditional upon the construction of a house on the property and its approval by the building department, followed by .a re-conveyance of the rear portion back to the plaintiffs. Joanne denied the existence of any agreements or contracts, oral or written, calling for such re-conveyance. Having reviewed the record in this regard it appears that the original conveyance in fee to defendant Joanne and spouse was clear, unconditional and vested fee title in the property in them as named grantees. It also appears that this deed was one of long standing; that title to all of the property had ultimately become vested in fee in Joanne; that the plaintiffs had obviously made no prior effort to upset or attack this conveyance; and that no written instrument of any character was produced in support of the claimed agreement to reconvey. The deed itself did not contain such a condition. Applying the settled principle of Florida law, that “a person who purports to convey an estate by deed is estopped as against the grantee to assert anything in derogation of the deed; that for the purpose of defeating the title of the grantee such person will not be heard to say that no title passed to the grantee by the deed, nor can he deny the deed its full operation and effect as a conveyance” (Overstreet v. Lamb, Fla.App.1961, 128 So.2d 897 and cases cited therein) to the facts of this case, it was error for the trial court to order a reconveyance of the property to the plaintiff. This portion of the order is reversed.

The third point is that the trial-court erred in entering a money judgment in favor of the plaintiffs where none was sought in the complaint and where the evidence did not support such an award. We agree. Our review of the record shows that there was no competent substantial evidence to support the award of a $69,300 judgment against all of the defendants. Therefore, it is reversed.

The remaining points raised by the defendants on appeal are not well taken. Therefore, for the reasons stated and on the authorities cited, the amended final judgment herein appealed is affirmed in all respects except the three discussed above.

Affirmed in part and reversed in part.


text:
    Eduardo ESPINOSA et al., Appellants, v. Alfred Robert RACKI, a minor, by and through his father and next friend, Alfred R. Racki, and Alfred R. Racki, Individually, Appellees.
    No. 75-84.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 1975.
    Rehearing Denied Jan. 22,1976.

      Stephens, Magill, Thornton & Sevier, Miami, for appellants.
    Robert M. Sussman, Hialeah, and Larry Schatzman, Miami, for appellees.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Defendants appeal an order denying their motion to vacate final judgment pursuant to RCP 1.540(b),

As a result of injuries sustained in an automobile-motorcycle collision, plaintiff, Alfred Racki, on July 19, 1974 filed suit against Angel Espinosa, the operator of the automobile at the time of the accident, Eduardo Espinosa, its owner, and Resources Insurance Company, the liability insurer. A copy of the complaint and summons was mailed to the New York office of defendant Resources which then assigned the case to its Florida adjuster, Rocky Kuznik of General Insurance Adjusters, which was employed by Resources to help handle its backload of claims. Upon his first notice of the claim on August 16, Mr. Kuznik immediately contacted plaintiff’s attorney and at the attorney’s request sent a copy of the insurance coverage on the condition that he forward to Mr. Kuznik plaintiff’s medical records. In addition, Mr. Kuznik noted this file in his diary, obtained a statement from Eduardo Espinosa and sent out a witness statement to an independent witness whose testimony was favorable to the defense.

Plaintiff’s attorney did not forward the medical records of plaintiff to Mr. Kuznik, and on September 12 filed without notice a motion for default against the defendants for their failure to file a responsive pleading to the complaint. The motion was granted and on November 5 the trial court entered a final judgment in the total sum of $42,000. Having received notice of the judgment for the first time on December 13, Resources shortly thereafter filed an answer which alleged a meritorious defense and a motion to vacate the final judgment. The primary grounds for the motion to vacate was that (1) plaintiff’s attorney had failed to send the medical records as agreed, and (2) Mr. Kuznik used a diary system to keep abreast of the many files in his office and in addition to a large volume of cases and an administrative backup, the diary in which he entered the file in this cause disappeared. In January 1975 a hearing was held on this motion and the trial judge denied it.

The policy in Florida in setting aside defaults in order to permit a trial upon the merits is one of liberality and the facts of each case are of singular importance in determining whether or not relief under RCP 1.540(b) should be granted. See Imperial Industries, Inc. v. Moore Pipe & Sprinkler Co., Fla.App.1972, 261 So.2d 540 and Edwards v. City of Fort Walton Beach, Fla.1972, 271 So.2d 136.

We find that the failure of plaintiff’s attorney to forward the medical records as agreed, the disappearance of the diary, the large volume of cases, and the fact that Resources Insurance Company in January 1975 was adjudged insolvent thereby making Eduardo and Angel Espi-nosa liable for the $42,000 judgment (without having their day in court), to be sufficient grounds to set aside the judgment. Cf. Edwards, supra.

Accordingly, the order denying the motion to vacate is reversed and the cause remanded to the trial court for further proceedings.

      . “Rule 1.540. Relief from Judgment, Decrees or Orders.
      “(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Eraud, etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, decree, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; . . . ”


text:
    KEYES NATIONAL INVESTORS, INC., a Florida Corporation, Appellant, v. PINE-CONE PROPERTIES, INC., a Florida Corporation, et al., Appellees.
    No. 75-258.
    District Court of Appeal of Florida, Third District.
    Dec. 16, 1975.
    Frank, Strelkow & Gay and Carl Schmitt, Miami Beach, Richard N. Krinz-man, Miami, for appellant.
    Samthers & Thompson and Shepherd D. Johnston, Miami, for appellees.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Plaintiff real estate broker appeals a summary judgment entered in favor of the individual defendants and a directed verdict for the corporate defendants in an action to recover a commission.

Keyes National Investors, Inc. filed a complaint to recover a real estate brokerage commission and named as defendants Pine-Cone Properties, Inc., Lauderdale Lakes Construction Co., The Village Apartments, Sherman Chassen, Sylvia Chassen, Morton Pine and Ruth Pine. The complaint alleged (1) that defendants had retained Keyes to obtain a purchaser for the rental complex known as “The Village;” (2) that pursuant to the oral listing agreement, Keyes was to be paid 2% of the purchase price as a fee for its services; (3) that Keyes procured a purchaser, the Fusco Corporation, ready, willing and able to purchase the property for $10,750,000 to which defendants allegedly agreed; and (4) that defendants refused to pay Keyes the sum of $215,000, the agreed commission. The Village Apartments, Sherman and Sylvia Chassen, and Morton and Ruth Pine filed a motion for summary judgment on the grounds that they did not hold equitable or legal title to the property, and at no time did they enter into a contract with Keyes. This motion was granted and the cause proceeded to trial as to Pine-Cone Properties, Inc. and Lauderdale Lakes Construction Co. At the close of plaintiff Keyes’ case, these two defendants filed a motion for directed verdict for the reasons that (1) a purchaser was not produced on terms acceptable to the defendant sellers, and (2) Keyes failed to prove that the purchaser was financially able to make the purchase. The trial judge granted the motion for directed verdict.

The rule is that before a realtor may be entitled to a commission, he (or she) is required to show some proof that the person who would be the purchaser is financially able to command the necessary money to close the deal on reasonable notice at the agreed upon time. Sharp v. Long, Fla.App. 1973, 283 So.2d 567; Chan-ton v. Drucker, Fla.App. 1974, 299 So.2d 145 and cases cited therein.

We note that the purchase price allegedly agreed to by the parties is in excess of $10,000,000. The record referring to Fusco Corporation’s financial ability is primarily based on a loan of $93,000 it made to defendant sellers and payment to its Miami attorney of $7,500 to $9,000 in fees. We conclude this was insufficient to show an available source of funds for Fus-co Corporation to make the purchase.

We also considered appellant’s contention with regard to the entry of the summary judgment in favor of the remaining defendants and have determined it to be without merit.

Affirmed.


text:
    Lori S. NORRIS et al., Petitioners, v. SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY, Respondent.
    No. 75-1009.
    District Court of Appeal of Florida, Third District.
    Dec. 16, 1975.

      Preddy, Haddad, Kutner & Hardy and Glenn P. Falk, Miami, for petitioners.
    Walton, Lantaff, Schroeder, Carson & Wahl and Stephen A. Edelstein, Miami, for respondent.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

We are presented with a petition for writ of certiorari seeking review of an order of the circuit court transferring a personal injury action from the circuit court to the county court upon the ground that the amount claimed in good faith does not reach the jurisdictional limit of the circuit court. See Fla.Stat. § 26.012 and § 34.01. Review of an order transferring is proper under a petition for certiorari. Easley v. Garden Sanctuary, Fla.App.1960, 120 So.2d 59, 78 A.L.R.2d 1199.

There is no doubt that the rule to be applied in determining the jurisdiction of a court as to the amount involved is the amount claimed in good faith. Rocco v. Coffey, Fla.App.1964, 163 So.2d 21. There may be a basis in this record for a belief that the plaintiff exaggerated her claim but it cannot be said that.such a conclusion appears without issue. It is not our purpose to preclude by this opinion a transfer if later developments in this case substantiate the trial judge’s conclusion in the order appealed. Nevertheless, under the rule as stated in Castellano v. Bader Bros. Van Lines, Inc., Fla.App.1968, 208 So.2d 842, we are compelled to quash the order transferring the cause with directions to the circuit court to proceed with the cause.

It is so ordered.


text:
    Arnold JOYNER, Appellant, v. The STATE of Florida, Appellee.
    No. 75-464.
    District Court of Appeal of Florida, Third District.
    Dec. 19, 1975.
    Rehearing Denied Jan. 22, 1976.

      Phillip A. Hubbart, Public Defender, and Lee Weissenborn, Sp. Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Linda C. Hertz, Asst. Atty. Gen., for appellee.
    Before BARKDULL, C. J., and HEN-DRY and NATHAN, JJ.
   PER CURIAM.

Arnold Joyner was charged by information, tried by jury, and found guilty of conspiracy to commit robbery. He was adjudicated guilty and sentenced to one year in the county jail, followed by five years probation to begin after serving eleven months of the jail term. The conviction and sentence is before us on appeal.

Joyner contends that the evidence was insufficient to support a conviction and that the court erred in failing to charge the jury that the State has the burden of proof of establishing the corpus delicti of the crime charged, independent of his confession.

Before a confession is received in evidence, there must be some independent proof of the corpus delicti. Parrish v. State, 1925, 90 Fla. 25, 105 So. 130; Keir v. State, 1943, 152 Fla. 389, 11 So.2d 886. There should at least be some additional substantial evidence of the corpus delicti, direct or circumstantial, before the jury should be permitted to consider any admission or confession of the defendant. Tucker v. State, 1912, 64 Fla. 518, 59 So. 941; Freeman v. State, Fla.App.1958, 101 So.2d 887.

From the record it is clear that the trial court, whose province it was to determine the sufficiency of the proof of the corpus delicti, was entitled to and did find the necessary prima facie existence, of the corpus delicti. See LaSalle v. State, Fla.App.1966, 187 So.2d 407. Having made a determination of the prima facie existence of the corpus delicti, it was not incumbent on the court to charge the jury that the State has the burden to prove the corpus delicti before the jury would be entitled to make a finding of guilt solely based on an admission or confession of the defendant.

The record contains competent substantial evidence to support the conviction. Accordingly, the conviction and sentence is affirmed.


text:
    Jerome BELSKY, Appellant, v. Eleanor BELSKY, Appellee.
    Nos. 75-506, 75-507.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 1975.
    Rehearing Denied Jan. 20, 1976.
    Milledge, Horn & Hermelee, Miami, for appellant.
    Blitstein & Molans, Miami, for appellee.
    Before BARKDULL, C. J., and PEARSON and NATHAN, JJ.
   PER CURIAM.

Jerome Belsky appeals from the financial provisions of a judgment dissolving his marriage to the appellee.

The principal points on appeal are that the award of lump sum alimony was excessive as to the needs of the wife and as to the husband’s ability to pay and, further, that the trial court erred in enjoining the appellant from extending a trust which will expire on December 14, 1976 by its terms.'

The record on appeal discloses that the parties were married in early 1960; they adopted two small children; they had lived on a lavish scale in the City of New York; have gone through certain domestic litigation in the State of New York, which is not pertinent to this decision. We find no error in the award of lump sum alimony to the wife, in light of the total assets that will come into the possession of the husband as the settlor of a short term Massachusetts Trust in 1976. Pending the receipt of these funds, the trial judge provided for periodic alimony, which is not an issue on this appeal. The husband has current assets on hand in excess of $250,000.-00.

Examining the record in toto, we find no error on the part of the chancellor in the amount of the lump sum award. Fishman v. Fishman, Fla.App.1971, 245 So.2d 258; Langston v. Langston, Fla.App. 1972, 257 So.2d 625; Bosem v. Bosem, Fla.1973, 279 So.2d 863. As to the ability of the husband to pay, this may be diminished at the present time but, from the record, he will obviously have the capacity to make such a payment upon the termination of the trust which he created and which will expire in 1976. The trust, by its terms, will expire on December 14, 1976 although the trust also contains a provision which would permit the husband, as settlor, to continue the trust. No such election had been made prior to the final judgment involved in this case, and we find no error in the trial judge prohibiting the appellant from continuing this trust so that upon its termination he may receive the corpus [which the record reflects will have a total value in excess of $500,000.00.]

The appellant also contends that the court lacked the jurisdiction to enter an order as to the trust in Massachusetts, citing Biederman v. Cheatham, Fla.App. 1964, 161 So.2d 538; Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283. We find these authorities to be good law but inapplicable in the instant case, as the trial judge did not interfere with the trustees or the corpus of the trust in Massachusetts but only entered an order in personam against the appellant which is effective upon the expiration of the trust. The courts have the power in equity matters to enter in personam orders, even though they may affect assets in a foreign jurisdiction. Winn v. Strickland, 34 Fla. 610, 16 So. 606; Lemire v. Galloway, 130 Fla. 101, 177 So. 283; Tower Credit Corporation v. State, Fla.App.1966, 187 So.2d 923.

Therefore, for the reasons above stated, the order respecting the financial aspects of the dissolution of marriage proceedings be and the same is hereby affirmed.

Affirmed.

      . The appellant also sought reversal of the award of attorney fees, contending that the award was not supported in the record. This point is found to be not well taken, in light of the stipulation of the parties.

      . Upon the satisfaction of this obligation, the husband is relieved of any periodic support.


text:
    SOUTHERN PINE ISLE CORP., Appellant, v. CAPITAL NATIONAL BANK, a national banking association, Appellee.
    No. 75-595.
    District Court of Appeal of Florida, Third District.
    Dec. 9, 1975.
    Rehearing Denied Jan. 21, 1976.
    Pettigrew & Bailey, Miami, for appellant.
    Bayard E. Heath, Miami, for appellee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Appellant, Southern Pine Isle Corporation, plaintiff in the trial court, appeals from an order granting the defendant’s motion for summary judgment with prejudice and denial of plaintiff’s motion for rehearing on such motion for summary judgment.

Plaintiff’s complaint was comprised of two counts, the first for fraud and the latter for breach of contract arising out of an alleged failure by the defendant bank close a loan based on a written commitment by the defendant bank to the plaintiff.

A careful review of the complaint, supporting affidavits and depositions relating to the evidentiary matters on the motion for summary judgment and the petition for rehearing thereon disclosed that there were genuine issues of material fact as to both counts of the complaint. Therefore, the order granting the motion for summary judgment is reversed; the order of dismissal with prejudice is vacated, and the cause is reinstated. Holl v. Talcott, Fla. 1966, 191 So.2d 40.

Reversed and remanded with directions.


author: NATHAN, Judge.

text:
    AETNA INSURANCE COMPANY, a corporation authorized to transact business in Florida, Appellant, v. Patrick SETTEMBRINO et al., Appellees.
    No. 75-1032.
    District Court of Appeal of Florida, Third District.
    Dec. 9, 1975.
    Rehearing Denied Jan. 20, 1976.
    George J. Baya, Miami, for appellant.
    Robert S. Korschun, Miami, for appel-lees.

      Before BARKDULL, C. J., and HÁV-ERFIELD and NATHAN, J J.
   NATHAN, Judge.

This is an interlocutory appeal by Aetna Insurance Company, defendant in the trial court from an order granting a partial summary judgment as to liability in favor of the Settembrinos, plaintiffs in an action on two insurance policies for loss due to fire.

Plaintiffs are the assignees of two fire insurance policies covering a building and its contents, located in Hialeah, Florida. Both policies were assigned to plaintiffs prior to the loss. The policies provided for cancellation at any time by Aetna by giving ten days’ written notice of cancellation with or without tender of the excess premium. On December 16, 1970, Aetna, by and through its agent, attempted to cancel the policies by written notices by U.S. mail to the plaintiffs and to the mortgagee named in said policies to become effective as of December 26, 1970. On December 28, 1970, at 1:23 A.M., the insured property was damaged by fire. In January, 1971, plaintiffs employed an insurance adjuster to advise and assist in the adjustment of the .loss. In March 1971, the adjuster wrote to Aetna stating that the fire occurred December 27, 1970; that the mailed notices were received by plaintiffs on December 19, 1970, and that they had coverage until December 29, 1970. Subsequently, plaintiffs filed a complaint against Aet-na seeking to recover the face amount of the policies, alleging that on or about December 27, 1970, while the policies were in full force and effect, the insured property was damaged by fire in amounts in excess of said policies. Aetna answered, alleging that on December 16, 1970, the policies were cancelled by mail as of 12:00 o’clock noon on December 26, 1970, and that the fire occurred on December 28,1970.

Both parties moved for a summary judgment. The trial judge denied the motion of Aetna for a summary judgment, entered a partial summary judgment against Aetna on the question of liability and provided for trial by jury on the question of damages. The court found the policies to have been in full force and effect at the time of the fire and found that the cancellation was not authorized under the policies. This interlocutory appeal ensued.

We hold that the U.S. mail is a sufficient method of giving written notice under the terms of the policies. The pivotal issue in this case is whether the effective date of cancellation of the policies is 10 days from the date of mailing or 10 days from the date of receipt. Aetna contends that the effective date of cancellation is 10 days from the date of mailing. As authority for its position, Aetna cites this court’s opinion in Foerch v. Atlantic Mutual Fire Insurance Company, Fla.App. 1974, 303 So.2d 345. We do not find that case to be controlling since it is readily distinguished on its facts. In Foerch, the insured had been residing out of the State of Florida continuously for three months during the time period material to the case, without arranging to have her mail forwarded to her and without notifying the insurance company or the insurance agents of her address. Under such circumstances, the method of mailing written notices to the insured’s address was reasonable and provided effective cancellation, even though she denied ever receiving the notices.

Where a policy provides for written notice of cancellation, but does not specify the mothod of giving the written notice, and the notice is given by mail, the effective date of cancellation generally is to be determined based on the date of receipt of the notice by the insured.

We find that Aetna’s contention that the plaintiffs asserted inconsistent positions by their pleadings is without merit. A judgment or decree will be affirmed if sustainable under any theory revealed by the record on appeal. Cohen v. Mohawk, Fla.1962, 137 So.2d 222; Smith v. Bettinghaus, Fla.App.1965, 178 So.2d 201. The trial court, then, was correct in entering a summary judgment in favor of the plaintiffs on the issue of liability. The summary final judgment herein appealed is affirmed.

Affirmed.


text:
    Shelly WHITE, Appellant, v. The STATE of Florida, Appellee.
    No. 75-616.
    District Court of Appeal of Florida, Third District.
    Dec. 9, 1975.
    Rehearing Denied Jan. 20, 1976.
    Phillip A. Hubbart, Public Defender, Mark King Leban, Asst. Public Defender, and Samuel I. Burstyn, Legal Intern, for appellant.
    Robert L. Shevin, Atty. Gen., Margarita Esquiroz, Asst. Atty. Gen., and Charles L. Hauch, Legal Intern, for appellee.
    Before PEARSON and NATHAN, JJ., and CHARLES A. CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Appealing from his conviction of attempted auto theft (§§ 814.03(1) and 776.-04 Fla.Stat., F.S.A.), the appellant argues insufficiency of the evidence of intent to permanently deprive the owner of the property involved. Further, appellant contends the court erred by denying his requested instruction relating to such intent.

• We find no reversible error is disclosed, and affirm. There was competent, substantial evidence to support the judgment, giving due effect to the quantum of proof involved.

Regarding the point as to the denied jury charge, the record fails to show, in the conference on jury charges or elsewhere, any timely objection by the defendant to the refusal of the court to give such requested charge, or any objection in that connection to the charges given by the court. Thereby, under Rule 3.390(d) RCrP, the contention on appeal of error for refusal to give such requested charge is not presentable here. Rayner v. State, Fla.App.1973, 286 So.2d 604; Miller v. State, Fla.App. 1958, 102 So.2d 737.

Moreover the record reveals that the jury charges given by the court included and adequately covered that element of intent. Refusal to give a requested charge when it is covered by charges given has been held not to constitute error in decisions too numerous to justify citation. Since the court here charged on the intent element of the offense, we need not express an opinion on whether the absence of any charge on that element of intent would constitute fundamental error, or review the decisions in which that question has been discussed.

Affirmed.


text:
    Grace Miller DOWNER and Peter Downer, her husband, Appellants, v. Robert Simpson MERCER et al., Appellees.
    No. 75-604.
    District Court of Appeal of Florida, Third District.
    Dec. 9, 1975.
    Rehearing Denied Jan. 22, 1976.
    Sheldon Yavitz, Miami, for appellants.
    Adams, George, Wood, Lee & Schulte, Petersen, McGowan & Feder, Miami, for appellees.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Plaintiffs seek reversal of an order of dismissal for failure to prosecute pursuant to RCP 1.420(e).

In 1969 plaintiffs, Grace and Peter Downer, filed a suit for damages against the defendants Robert Mercer, Allstate Insurance Company and Donald Hylland as a result of personal injuries sustained in an automobile accident. After the granting of several continuances to both sides, Judge Lee entered an order on March 4, 1974 which set the cause for trial during the weeks of September 23 and 30. In May the case was reassigned to Judge Nathan who was appointed to this court shortly thereafter. The cause was removed from the trial calendar and several months later all Judge Nathan’s cases were reassigned to Judge Ferguson. In March 1975 defendants filed their motion to dismiss for lack of prosecution under RCP 1.420(e). The motion was set for hearing before Judge Ferguson on March 12. However, the cause was reassigned to Judge Lee and the motion set for hearing on March 13. Plaintiffs filed their written reply to the motion. After hearing oral argument of counsel, Judge Lee entered his order dismissing the action for lack of prosecution. This interlocutory appeal followed.

We find that the recently released case of City of Miami v. Dade County, Fla.App.1975, 321 So.2d 140 is dispositive of the cause before us. Therein we held that it is the duty of, and the trial court is required to enter an order setting the cause for trial after notice is given that the cause is ready and it is determined that, in fact, it is ready for trial.

Turning to the case at hand, we find •that after the cause was removed from the September trial calendar because of the unfilled vacancy in Judge Nathan’s division, the duty devolvéd upon the trial court to enter a new order resetting the cause for trial. Good cause having been shown by plaintiffs, we conclude the trial judge erred in entering the order of dismissal.

Reversed and remanded with directions to reinstate the cause.

      . “(e) Failure to Prosecute. All actions in which it affirmatively appears that no action has been taken by filing of pleadings, order of court or otherwise for a period of one year shall be dismissed by the court on its own motion or on motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a party shows good cause in writing why the action should remain pending at least five days before the hearing on the motion. As amended effective October 1, 1968 (211 So.2d 206).”


author: HENDRY, Judge.

text:
    Al FELDMAN, Appellant, v. Alda Phyllis FELDMAN, Appellee.
    No. 75-952.
    District Court of Appeal of Florida, Third District.
    Dec. 9, 1975.
    Rehearing Denied Jan. 20, 1976.

      Brian R. Hersh and Jeffrey A. Bernstein, Miami, for appellant.
    Martin L. Sandler, Miami, Harvey Rich-man, Miami Beach, for appellee.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   HENDRY, Judge.

Appellant husband, plaintiff below, brings this interlocutory appeal from an order of the trial court assessing costs against him and awarding attorneys’ fees to appellee wife, defendant below.

This action was originated when appellant filed a complaint seeking to modify a final judgment of divorce incorporating a property settlement agreement between the parties. Subsequent to ruling on the merits of appellant’s complaint, after a hearing, the trial court in an order dated May 29, 1975, assessed costs against him and awarded attorneys’ fees to appellee. From the order, appellant brings this appeal.

Appellant makes several assignments of error contending basically that the trial court erred in entering the order because it was contrary to law and the evidence. Appellant also contends that due to the posture of case in the trial court it was premature for costs to be assessed against him. Appellee contends to the contrary.

It is well settled that an appellate court will not disturb an order of the trial court in the exercise of its judicial discretion unless an abuse of that discretion is clearly shown. There is a presumption in favor of the proper exercise of discretion, and the burden is on appellant to clearly show that there was a palpable abuse of discretion. See 2 Fla.Jur., Appeals §§ 326 & 327, and the cases cited therein.

We have considered the record, all points in the briefs and arguments of counsel in the light of the controlling principles of law, and have concluded that no reversi-' ble error has been demonstrated in regard to the trial court’s award of attorneys’ fees to appellee, however, it is clear that the costs assessed against appellant were improperly calculated by including certain costs of appeal. Therefore, the order appealed is affirmed as to the award of attorneys’ fees and reversed as to the assessment of costs and remanded for a determination of the correct amount.

Affirmed in part; reversed in part and remanded.